author: TALIAFERRO, Judge. PER CURIAM.

text:
    JACKSON v. BERNSTEIN et al.
    No. 7257.
    Court of Appeal of Louisiana. Second Circuit.
    Nov. 24, 1948.
    Rehearing Denied Feb. 21, 1949.

      Anders & Anders, of Winnsboro, for appellant.
    Thompson, Thompson & Sparks, of Monroe, for appellee.
   TALIAFERRO, Judge.

For the -delinquent taxes of the year 1921, the NW % of the NW %,. Section 11, Township 1.6 North, Range 9 East, in Franklin Parish, Louisiana, assessed to its then owner, William Jackson, was advertised for sale. At the sale, obviously on account of competitive bidding, Henry Bernstein, now deceased, offered to pay the taxes of said year, plus interest and cost, for only seven acres of the land, and the description in the deed to him by the tax collector, as recorded, reads: “7 acres in SW corner of NW J4 of NW y4, Sec. 11, T. 16, R. 9”. The description as first written in the tax deed read: “7 acres off the West side of the NW y4 of NW %, Sec. 11, T. 16, R. 9”, but through the words “off the West side” a line was drawn and above these words, apparently in the same handwriting, was written “in SW corner”.

On December 23, 1936, the widow and heirs of Henry Bernstein, deceased, sold and conveyed “7 acres in the Southwest corner of NW of NW %, Sec. 11, Tp. 16 N., R. 9 E.”, in Franklin Parish, to T. J. Owen. The deed was not recorded until several years later.

This suit was instituted by the surviving widow and sole heir of the tax debtor, William Jackson, who died in August, 1939. T. J. Owen and the widow and sole heirs of Henry Bernstein, deceased, are implead-ed as defendants. The tax deed is attacked on the ground that it does not describe or convey any definite seven acres of said forty acre tract; that because of vagueness and. indefiniteness, identity of the seven acres sought to be adjudicated is not possible and, therefore, nothing was-conveyed by the tax deed; and for this reason, as a muniment of title, it is absolutely null and void.

Defendants filed joint answer. They denied the allegations of the petition save those relating to the tax sale to Henry Bernstein and the sale by his widow and heirs to Owen. They pled the prescription of one, five, ten and thirty years, and averred that they had possessed said seven acres in good faith since the date of the tax sale. They further aver that all taxes assessed against the land since the date of the tax sale have been paid by them. They pray that plaintiffs’ demand be rejected and for full and general relief. After filing of answer, Owen filed a plea of peremption of three years against the attack on the tax deed. Article X, Section 11 of the Constitution of 1921.

There was judgment for plaintiffs and against the widow and heirs of Henry Bernstein, deceased, decreeing the tax sale to be null and void, but as to Owen the suit was dismissed as of non-suit.

Plaintiffs appealed from the judgment jnly insofar as non-suit of their demand against Owen was ordered. Answering the appeal, the appellees assigned error in the judgment, insofar as it decrees null and void the tax sale, and they pray that it be amended by decreeing said sale to be legal and valid and Owen be recognized as -the owner of “7 acres of land off of the West side of the NW % of the NW %, Section. 11, T. 16 N., R. 9 E.”

In the alternative, should it be held that the tax sale is null and void, and conveyed title to no part of said land, in such event appellees pray that the judgment be amended by -ordering the cancellation of the tax deed only upon the payment to defendants the amount of taxes, penalties, costs, etc. paid on said land by them, and Henry Bernstein, deceased, with interest thereon at ten per cent per annum, from the date of each payment.

Defendants do not seriously contend that the description “7 acres in the Southwest corner” of the forty acre tract is susceptible of identification. As neither the shape of the seven acres nor the dimensions thereof are given, one is left to conjecture as to what land was intended to be sold by the tax collector, and purchased by the bidder. It is hornbook that unless the description of the land in a tax deed is sufficiently clear and definite that location on the ground of the land intended to be adjudicated is possible, the sale is subject to annullment for that reason. It is without effect. A case in point is Brock et al. v. E. McIlhenny’s Son, 136 La. 903, 67 So. 951. In that case the description read: “50 acres of land in the northeast corner”' of a large tract, the sub-divisions of which were all given. The court, as disclosed from paragraphs one and two of the syllabi, said:

“There is no statute or rule of law providing that such a description as 50 acres-of land in the northeast corner of a designated larger body of land means necessarily a square tract containing 50 acres.
“Such a- description -of land as 50 acres-in the northeast corner of a large area constituting two tracts several miles apart is no designation at all; and a tax deed containing such description is absolutely null.”.

To the same effect are: Stanley et al. v. Snell, 5 La.App. 635; Levy v. Gause et al., 112 La. 789, 790, 36 So. 684; Jackson v. Irion, 196 La. 728, 200 So. 18, 133 A.L.R. 566; Yuges Realty, Ltd., v. Jefferson Parish Developers, Inc., 205 La. 1033, 18 So.2d 607.

It was said, and logically so, in the Jackson and Brock cases, supra, and •doubtless in others, that where a tax sale is null because the land described could .not be identified, the Constitutional per-emption has no application.

Of course, the description “7 acres •off of the West side” of a forty acre tract is, in our opinion, a legal description and •sufficiently definite to confer validity upon •a tax deed carrying such description. But we are not authorized, from the record before us, to hold with the defendants in the ■contention that in determining the legal status of the tax deed to Bernstein the deleted part of the description should be giv■.en effect and that that part of the description “in the SW corner” be ignored.

The tax deed was of record some fourteen years before the sale by Bern•stein’s widow and heirs to Owen. No proceedings were instituted to correct the de■scription. For this period of time the •description of the land as disclosed in the tax deed, was annually assessed to Bernstein and taxes thereon paid. And, as further recognition of the tax deed as written and recorded, the widow and heirs •of Bernstein sold to Owen the same description that appears in the tax deed after the change in the description was made. And, in addition, as said above, the handwriting of the deleted words and that in which the words “in SW corner” is written, clearly appear to be identical. The color of the ink in each instance is the ■same. Surely, in view of the related facts, including the long 'lapse of time the deed has been of record without its correctness in any respect being called into question, •a strong presumption arises that the change in the description was made by some official having authority so to do in •order to conform to the true facts as he •understood them.

The record shows that William Jackson had deed to and was in possession of this forty acre tract for many years prior to the tax sale and thereafter until he died in 1939; and that Richard Jackson possessed and cultivated the same, in part by tenants, during the years 1940 and 1941.

Section 11, Article X of the Constitution of 1921, concerning tax sales, in part, reads as follows:

“No judgment annulling a tax sale shall have effect until the price and all taxes and costs paid, with ten per cent per an-num interest on the amount of the price and taxes paid from date of respective payments, be previously paid to the purchaser; * * * ”.

The quoted language is free from ambiguity. It has been enforced as written in all cases wherein application of it was found to be proper. The following cases are in point: Gomez v. Wilde, 135 La. 204, 65 So. 109; Westwego Canal & Terminal Company, Inc., v. Pitre et al., 195 La. 107, 196 So. 36; Westwego Canal & Terminal Company, Inc., v. Pitre et al., 197 La. 374, 1 So.2d 550.

But, does the right conferred by the quoted part of the Constitution, that is, the right to demand reimbursement of taxes, etc., plus interest, as a condition precedent to cancellation of the null tax deed, extend to the vendee of the tax purchaser? We think not. The quoted provision seems to put this beyond doubt. It plainly says that the taxes, etc. “be previously paid to the purchaser”, before the cancellation shall be authorized.

Although the widow and heirs of Henry Bernstein, deceased, in their answer did not ask for 'the relief to which they were entitled by the quoted provision of the Constitution, it is our opinion that specific demand for such relief was not necessary. In a proper case it becomes the court’s duty to incorporate in its judgment a provision that preserves to the tax purchaser, his widow and heirs, the right to claim the benefits of the quoted provision and to require same to be made as therein expressed, as a prerequisite to the cancellation of the sale. This would be true even though proof of the several amounts of taxes paid on the land and the dates when paid be absent from the record. However, in the present case such proof was adduced on trial.

The record discloses that the seven acres were assessed to Henry Bernstein for the years 1923 to 1936, inclusive. The amount of taxes for each year and the dates when paid are also shown. In the absence of proof or suggestion to the contrary, it will be presumed that the tax purchaser and/or his widow and heirs paid these taxes. The years, the amount of taxes paid, and the dates of payment follow:

Year Date Paid Amount
(1) 1923 10-25-23 $5.92%
(2) 1924 4-20-25 7.87
(3) 1925 12-18-25 6.76
(4) 1926 12-6-26 6.54
(5) 1927 12-31-27 6.32
(6) 1928 • 1-19-29 6.22
(7) 1929 12-31-29 9.20
(8) 1930 5-5-31 9.36
(9) 1931 1-14-32 9.36
(10) 1932 12-19-32 8.13
(11) 1933 12-30-33 8.52
(12) 1934 1-7-35 9.82
(13) 1935 12-18-36 9.95
(14) 1936 2-16-37 9.69”

To these amounts should be added $46. 25, being taxes, interest and costs paid by Bernstein when the tax deed was made to him. On this amount and on the amount of taxes paid for the named years, the widow and heirs are entitled to recover in addition to the principal amounts) ten per cent per annum from date of payments before cancellation of the tax deed may legally, be made. The lower court did not expressly pass on this phase of the case.

We can perceive of no good reason, since the tax sale was null and void ab initio, as to Henry Bernstein, why it should not be null and void as to Owen as none of the pleas of prescription nor of peremption is well founded; nor has he had possession of any part of said forty acre' tract for as much as ten years.

Our conclusions require that the judgment be amended in material respects. For the reasons herein assigned it is ordered, adjudged and decreed that plaintiffs, Anna McCall Jackson, widow, and Richard Jackson, sole heir of William Jackson, deceased, do have judgment herein against Mrs. Cheriy Roberts Bernstein, surviving widow, and Henry Bernstein, Jr., and A. Milling Bernstein, sole heirs of Henry Bernstein, Sr. deceased, and T. J. Owen, all defendants herein, declaring null and void the tax sale to Henry Bernstein, deceased, on August 5, 1922, to seven acres of land in the Southwest corner of the NW 1/4 of the NW 1/4, Section 11, Township 16 North, Range 9 East, according to deed recorded in Conveyance Book No. 9, page 485, of the records of Franklin Parish, Louisiana. And, subject to compliance with the condition below stated, the Clerk and Recorder of Franklin Parish is hereby authorized to cancel and erase in full the registry of said tax deed.

It is further ordered, adjudged and decreed that this judgment shall be ineffective unless and until said plaintiffs pay to the widow and heirs of Henry Bernstein, deceased, the amount of taxes paid on said lands for the years 1923 to 1936, inclusive, with interest at the rate of ten per cent per annum from the date of such payments, all as shown hereinabove; and payment of the additional sum of $46.25, with ten per cent per annum interest thereon from August 5, 1922.

It is further ordered, adjudged and decreed that the defendants pay all costs of this suit.

On Application for Rehearing

PER CURIAM.

Among the several assignments of error in the judgment rendered' in this case, the fact that we did not pass upon the exceptions of no cause and no right of action is stressed. Neither the merits of these exceptions nor the correctness of the judgment as against the widow and heirs of Henry Bernstein, deceased, were tendered by the appeal.

Plaintiffs appealed from that part of the judgment that dismissed as of non-suit their case against T. J. Owen. The defendants did not appeal nor did either answer plaintiffs’ appeal. Therefore, the judgment could not be amended in their favor. See Jones v. Chicago Mill & Lumber Company, La.App., 15 So.2d 826, and cases cited therein; Britt v. Leaderbrand, La.App., 39 So.2d 645.

The lower court did not expressly pass on the exceptions hut since it decided the case on its merits clearly implied that the exceptions were deemed to be without merit and for this reason were overruled.

However, the rule that a judgment may not he amended in favor of one who has not appealed therefrom nor answered the appeal taken by another, cannot apply to the right to invoke on appeal the benefit vouchsafed to a tax purchaser by the Constitution with regard to repayment of taxes as a condition precedent to the right to have the tax sale canceled. The provision of the Constitution in this respect is mandatory, and a judgment declaring the tax sale null and void. would be without effect unless this condition precedent is incorporated therein. Gomez v. Wilde, 135 La. 204, 65 So. 109.

The application for rehearing is' denied.


source: Caselaw Access Project

author: TALIAFERRO, Judge.

license: Public Domain

text:
    ILES v. BOOKMAN.
    No. 7273.
    Court of Appeal of Louisiana. Second Circuit.
    Jan. 6, 1949.
    Rehearing Denied Feb. 21, 1949.
    Sol B. Pressburg, of Alexandria, for appellant.
    J. B. Nachman and Isaac Wahlder, both of Alexandria, for appellee.
   TALIAFERRO, Judge.

Lot No. 13 of the Williamson Addition to the City of Alexandria, Louisiana, under an assessment in the name of Clorinda Holmes, was in the year 1931 adjudicated to the State for due and delinquent taxes by the Sheriff and Tax Collector of Rapides Parish.

Acting under a commission from the Register of the State Land Office, dated April 2, 1948, said Sheriff and Tax Collector, in accordance with the provisions of Act No. 237 of 1924, as amended by Act No. 296 of 1944, advertised said property for sale at public auction for more than thirty days. The sale took place on May 15th and William lies, plaintiff herein, a resident of said parish, being the last and highest bidder, the advertised property was adjudicated to him for $875.00 cash. A proces verbal reciting the acts performed by him in effecting the sale, was prepared and signed by the Sheriff. Inter alia, he declared therein that he did “sell and transfer * * * said property to the said William lies and all the right and title which the said State of Louisiana had in or to” the same.

On June 15, 1948, William lies presented to one of the judges of the Ninth District Court a petition, to which was attached and made part thereof, a certified copy of the proces verbal and transfer to him by the Sheriff, above mentioned, which is denominated a “tax sale”, wherein he alleged that Estelle Bookman is in possession of said property and has refused to vacate same after repeated demands upon her to do so. He further alleged' that in accordance with the provisions of Act No. 170 of 1898, § 66, “upon the presentation of the tax deed the judge * * * is directed to grant, in chambers, an order of seizure and possession, commanding the Sheriff of Rapides Parish to seize the property and place petitioner, as the purchaser thereof, in the actual possession of same.”

The judge, to whom said petition was presented, ordered, ex parte, that a writ of seizure and possession issue by the Clerk of the Court, directed to the Sheriff of said parish, commanding him to seize the property and place petitioner in actual possession thereof.

Before said writ was executed Estelle Bookman procured an order of the Court, directed to lies and the Sheriff, wherein each was ruled to show cause why the “order of seizure and possession” should not be “rescinded, recalled and set aside” on a date fixed by the Court.

In her petition for the rule, Estelle Book-man alleged that she acquired an interest in said property by inheritance from Clorinda Holmes, whose succession was opened in said Court under No. 3717 on the probate docket thereof, and that she is now in possession of the property. She additionally alleged' that the writ improvidently issued because patent from the State to lies had not issued as required by Section 4 of Act No. 237 of 1924, and for this reason he was without title to the State’s rights in and to said propertjr. She also' charged that said writ improvidently issued: “for the reason that the act under which this plaintiff proceeded relates to tax deeds of property sold for unpaid taxes, while in the instant case the property was purchased from the State of Louisiana and Act 178 [170] of 1898 (Dart’s 8493) is not applicable.”

lies excepted to the petition of Estelle Bookman, hereinafter called plaintiff in rule, and moved the Court to strike same from the record for the following reasons, to-wit:

That it did not express or set forth a right or cause of action; that the order of the Court under which said writ issued is final and definitive and for this reason its legality may only be tested by appeal; that whatever interest Estelle Bookman may have or is conceived by her to have in said property may only be asserted by direct action; that the “tax deed” annexed to plaintiff’s original petition, as a basis for the issuance of said writ, is prima facie valid under the provisions of Section 11 of Article 10, of the Constitution of 1921; that said Estelle Bookman is without interest to question the validity of the adjudication by the State, through said Sheriff and Tax Collector, to lies.

Trial of rule resulted in judgment for the defendant therein, the specific ruling being that “the exceptions of no right and cause of action and motion to strike” he sustained. The rule was dismissed. The writ -of seizure and possession was maintained and recognized to be in full force and effect.

Plaintiff in rale appealed suspen-sively and devolutively. Defendant in rule filed' motion in this court to dismiss the suspensive appeal on the ground that the same was perfected after the expiration of the time prescribed by law. It is conceded in brief of defendant in rule that since this motion was not heard in advance of hearing on the merits, the issue raised therein is virtually moot as the devolutive appeal is in effect and will remain so until the case is finally disposed of here. This being true, we see no good reason for passing upon the question tendered by the motion to dismiss.

The primary question raised by the exceptions to the rule has to do with procedure. Since the record discloses that Estelle Bookman is in possession of the property and asserts a proprietary interest therein, she would have had the right to appeal from the order of the court directing the issuance of the writ of seizure and possession. Code of Practice, Article 571.

Defendant in rule argues that appeal was the only course open to Estelle Bookman if she would assail the legality of the issuance of said order; that the order was definitive in character, partook of the nature of a judgment, and appeal therefrom by anyone aggrieved by the order was the exclusive remedy open to them. He does not deny the right of such a person, by direct action, to question or attack the validity of the tax sale to the state on any pertinent ground of nullity, as was done in Westwego Canal & Terminal Company v. Pitre et al., 195 La. 107, 196 So. 36; but challenges the right of plaintiff in rule to do indirectly that which she allegedly is forbidden to do directly, to-wit: attack the legality of the order in the court of its issuance, by rule designed to prohibit the execution of said order.

We have been referred to no case in which this exact question has been tendered or discussed, nor have we found such a case. In the two cases that reached the Supreme Court, wherein writs of seizure and possession were involved, suspensive appeals were taken from the orders of the court that directed the issuance of the writ. See: Pate v. Burnside, 129 La. 104, 55 So. 729; Zahn v. Unknown Owners, 154 La. 776, 98 So. 184, 185.

In these two cases the right to appeal sus-pensively does not appear to have been questioned. In the Zahn case, the court said:

“The question also whether the evidence before the lower court was such as is required by section 66 of Act 170 of 1898 as a basis for the issuance of the writ of possession is a matter affecting the merits, to be decided after hearing the case on appeal.
* * * * * *
“The question presented to us is not whether a suspensive appeal can be taken in this case; it has already been taken.”

The reports do not disclose that the Supreme Court decided the case on original appeal.

The situation presented in a case of the character before us is not unlike that which arises from an order of executory process.

Counsel of the plaintiff in rule has not argued nor briefed this question of procedure. Generally, such attitiude toward an important issue in a case is construed to indicate lack of faith on the part of the litigant who so acts.

We are of the opinion that the lower court correctly ruled, and for the reasons herein assigned, the judgment from which appealed is affirmed. Plaintiff in rule is cast for all court costs.

TALIAFERRO, KENNON and HARDY, JJ., sitting.


text:
    LEVY v. CAPPEL.
    No. 7276.
    Court of Appeal of Louisiana. Second Circuit.
    Jan. 6, 1949.
    Rehearing Denied Feb. 21, 1949.
    H. W. Hill, of Alexandria, for appellant.
    J. B. Nachman, of Alexandria, for ap-pellee.
   TALIAFERRO, Judge.

Plaintiff, E. Levy, operating under the trade name of E. Levy and Company, instituted this suit against Newton S. Cap-pel, doing business as Independent Oil Company, to recover judgment for $349.68 allegedly due for labor and material furnished under a contract whereby plaintiff agreed and obligated himself to rewire for electricity the offices and warehouse of the defendant, which had been partially destroyed by fire. To an amended petition, plaintiff attached and filed an itemized account that discloses the kinds and quantity of material furnished to complete the rewiring and a charge in globo for labor. It is alleged that the contract between the parties “was oral and the price was to be based upon the labor and material entering into said job”; that during the progress of the work the said Cappel “made additions” which increased ■the amount of labor and material beyond what was origin-ally contemplated.

Defendant opposes the suit to the extent of $108.13. He alleged that he and plaintiff’s superintendent, William J. Keat-ing, entered into an oral agreement for the re-wiring of his offices and warehouse, whereby plaintiff was .obligated to furnish all material and labor therefor for a price not over $200.00; and, also agreed to provide two fluorescent lights at an estimated price of $40.00, in addition to said $200.00. The cost of these fixtures, as charged in the account, is $41.55, about which there is no question. This amount added to the alleged contract price of $200.00 makes an indebtedness of $241.55, which defendant admits he owes.

Defendant also alleged that at his request Keating came to the warehouse not many days after the fire, for the purpose of looking it over in order bo be in a position to intelligently estimate the cost of re-wiring it in accordance with defendant’s desires; that Keating closely looked over the situation, took measurements where necessary, after being fully in-farmed by defendant concerning the lines of wires, outlets, switches, etc., desired by him, and he then submitted said price; that the completed wiring was in strict conformity with the .understanding reached between him and Keating. Defendant also alleges that the contract was to no extent nor in any manner changed, altered, or added to on his part. He further alleges that after the work was completed he offered to pay defendant for same on the basis of the price made to him but that the offer was refused. After suit was filed defendant tendered to plaintiff the sum of $241.55, plus accrued court costs, which was refused.

There was judgment for plaintiff as by him prayed, from which defendant appealed.

The warehouse was not ceiled. The wiring is referred to as open work, which means that the wires, switches, outlets, etc., were all exposed. The two offices, it appears, were celled but tops thereof were open. We mention these -facts because it is clear therefrom that the wiring work was not of a complicated character and there should have been no difficulty in easily determining the number and routes of the lines of wires, the number of outlets, switches, etc.

Mr. Keating testified that the agreement between him and defendant was to this effect: that the warehouse and offices would be re-wired exactly as they were wired prior to the time o'f the fire and at a cost not t-o exceed $200.00. He also testified that as the work progressed, defendant added outlets not in the building -originally, and required the electrician, who was doing the work, to make changes in the wiring not originally included in the agreement. However, the itemized account sued upon does not segregate the two classes of work, to-wit: that included in the price of $200.00, according to Keat-ing, and 'that allegedly done in excess of that for which said amount paid. Keating also testified that outlets to the number of ten o-r twelve, in excess of the number originally contemplated, at defendant’s request, were installed and that outlets of this kind cost around $10.00 each. He stated that the cost of electrical wiring is generally based upon the number of outlets. The account shows a total of possibly twenty-six (26) outlets . charged.

Mr. L. C. Martin, an electrician, did the ■wiring for plaintiff. He had no knowledge of the details of the contract between the parties, but testified that Keating delivered to him “a sheet with a sketch on it, showing some outlets down the building”. He also testified that Keating, -in regard to the sketch, said: “That will be approximately what if is, but you go down there and put in what Mr. Cappel wants”, and that he did this. This testimony, in a measure, supports rather than detracts from defendant’s position in the case. lit shows that Mr. Keating did not consider •the sketch complete as to extent and details of the work and that after all Cap-pel was looked to to provide the details ■concerning which the sketch was incomplete. This testimony clearly implies that there was a meeting of minds as between defendant and Keating with respect to the details of the work, all of which was not reflected from the sketch, and that Cappel was expected to provide Martin with the additional details. From this witness’ testimony it seems .fairly clear that the work could not hav-e been completed, even on the basis of plaintiff’s contention, without defendant’s -aid and information.

Martin testified that defendant directed him to make provision for two, o¡r three lights near the end of the warehouse, next to the office, after the wiring thereabout had been completed. In oomplying with this request, he says it was necessary to cut the conduit in one or . more places. This is denied positively by defendant and •his wife.

Defendant’s own testimony supports the allegations of fact set up in his answer. He testified that the wiring job was completed in conformity to the contract between him and Keating, acting for the plaintiff; that he and Keating went over the building, made measurements, and it was definitely determined between .them ■the exact location of every outlet, etc.; ■that it was not the agreement that the rewiring should be a reproduction of the old system; that while Mr. Martin frequently consulted with him with respect to some details of the work, at no time did he ask Martin to do any work not comprehended within the purview of the agreement wi'tth Keating. He is certain the two outlets necessary for installation of an attic fan, not in the building prior to the fire, were included in the agreement and to strengthen his testimony on this score, he and his wife both testified that the location of the fan was suggested by Keating, who also agreed to hold for them a fan he then had on hand.

Defendant was charged with new wire and labor to install same, which extended from the warehouse to an old pump o.f some sort, some distance therefrom. Defendant is positive this work was not mentioned between him and Keating and is certain it was not authorized by him to •be done. The pump was not in use and had not been for some eight years. No good reason appears why it would be desired to have new wire run to it. These wires were not injured by the fire but to some extent insulation thereon had been destroyed from exposure to weather. Mr. Martin did not testify that defendant or his wife authorized him to do this work.

Mrs. Cappel was present in the office at the time Keating and defendant surveyed the situation and while she did not hear all of the discussions, between them, she did hear what was said by them after making said survey and returning to the office. She is .positive that at this time ■and place Keating "told the defendant that the completed work would not cost more than $200.00. She was present almost continuously while Martin was doing the wiring and is certain that neither she nor the defendant requested or directed him to install outlets, etc., not comprehended within the terms of the agreement as ■they understood it.' .

No good reason appears, and none has been suggested, why the defendant would have overlooked, in his discussions with Keating, a dozen outlets necessary to his lighting system. Surely it would have .been most extraordinary that in a contract so small in volume as this one, an increase in outlets of nearly one hundred per cent would .have been found necessary, and especially so after the parties had closely inspected the building and offices for the very purpose of determining fully the volume o.f the work in order to arrive at a fair estimate at which it couild he done.

We are of the opinion that plaintiff has not discharged the burden of proof with respect to the alleged extra work. We think the testimony of Mr. Martin very significant. It materially supports the position and contention of the defendant and is sufficient in probative weight to torn the scales in his favor.

For the reasons herein given, the judgment from which appealed, is -amended by reducing the principal amount thereof to Two Hundred Forty-One and BS/ioo ($241.-55) Dollars, and as thus amended the judgment is affirmed. Defendant is cast for all costs that accrued subsequent to the making of said tender.,

On Application for Rehearing

PER CURIAM.

In his application for rehearing, inter alia, appellee complains of being cast for costs that accrued after the alleged tender was made. He insists that we were in error in holding that a tender, as required by’ law, was made; and we concur in this position.

To evidence the alleged tender, defendant simply attached to his answer his personal check in plaintiff’s favor for the amount admitted to be due by him, and stated in the answer that the check was intended as a tender thereof. Nothing further was done or said on the subject. This action manifestly does not meet legal requirements for a real tender. To correct the error, a rehearing is not necessary. Code Prac. art. 547.

And, for the reasons assigned our former decree herein is amended by condemning defendant to pay all costs. The rehearing is refused.


author: ELLIS, Judge.

text:
    BOURGERE et al. v. CHERAMIE et al.
    No. 3066.
    Court of Appeal of Louisiana. First Circuit.
    March 7, 1949.
    Rehearing Denied April 19, 1949.
    Writ of Certiorari Denied May 31, 1949.
    See also 37 So.Zd 875.
    C. A. Blanchard, of Donaldsonville, for appellant.
    St. Clair Adams & Son, of New Orleans, and Aubert L. Talbot, of Napoleonville, for appellee.
   ELLIS, Judge.

This suit was filed by Paul Bourgere, Sr. and Mildred Nelson Bourgere, father and-mother, respectively, of Paul Bourgere, Jr. who was struck and killed by a motor vehicle on the 26th day of May, 1944 near what is known as The Rendezvous Restaurant, approximately one mile north of the town of Napoleonville, Louisiana. Plaintiff alleges that the accident happened at about 9:30 P.M. while Paul Bourgere, Jr. was walking or standing on the shoulder of the paved highway which runs up and down Bayou Lafourche, on the left hand side thereof and at the time he was struck he was about three feet off of the pavement; that a truck and trailer belonging to the defendant, Bertoul Cheramie, operating as Morgan City Packing Company, was parked on the highway at an angle of forty-five degrees, with the front of the truck on the shoulder of the highway but with the rear of the truck and trailer on the paved portion of the highway; that there was not sufficient space for -the passage of traffic on the highway between the rear of the truck and trailer and the opposite side of the said highway, the distance being less than nine feet; that this truck and trailer was facing toward Napoleon-ville, Louisiana, and was on the right side of the road; that.said truck and trailer had no. rear light and no flares were put out. Plaintiff also alleges that a second truck and trailer loaded with lumber was proceeding along this highway in the direction of Napoleonville from Donaldsonville,- Louisiana, which would also be in a southerly direction; that this lumber truck was owned by the Succession of Alonzo- Mc-Craney, operating under the name of the “McCraney Lumber Company, through Ethel Sitman McCraney, the Administra-trix of the said Succession.” Plaintiff then sets forth that this lumber truck was being driven at 55 miles per hour and that when it reached the proximity of the parked truck, it suddenly and without any warning whatever swerved across the highway on to the shoulder of the left side of the highway in order to avoid running into the rear of the parked truck and trailer belonging to the defendant Cheramie; that the driver of the lumber truck immediately swerved back on the paved highway but that this caused the rear end of the truck and trailer to swing out on the left hand shoulder and strike and kill Paul Bourgere, Jr-

Plaintiff also joined the Pennsylvania Casualty Company and the Massachusetts Bonding and Insurance Company as the insurers of Bertoul Cheramie, operating under the name of Morgan City Packing Company, and further alleged that the Mc-Craney Lumber Company and/or Ethel Sit-man McCraney carried public liability with the Massachusetts Bonding and Insurance Company.

Plaintiff Paul Bourgere, Sr., claimed damages for funeral expenses in the amount of $250.00; for mental pain and suffering, $5,000.00; loss of support and assistance, $5,000.00; and loss of love and affection and companionship, $10,000.00, or a’ total of $20,250.00. - The mother, Mildred Nelson Bourgere’s claim was identical except for the funeral expenses in the amount of $250.00.

The Pennsylvania Casualty Company filed an exception of vagueness and, in the alternative, an exception of no right or cause o-f action which resulted in the taking of testimony, and upon the trial it was shown by the Pennsylvania Casualty Company that it did not carry the insurance upon the truck of the defendant, Cheramie, involved in-this wreck, and the Judge sustained the exception, dismissing the plaintiff’s suit as to this insurance company. This ruling of the trial court was proper under the testimony and it is not contested on this appeal.

The defendant Bertoul Cheramie, operating as Morgan City Packing Company, filed a general denial and, in the alternative, plead contributory negligence on the part of Paul Bourgere, Jr., (a) “in running into the side of the truck and trailer (owner and operator unknown) after the truck and cab had passed the point on the shoulder where he had been standing;” (b) “In failing to observe any care or caution whatever in attempting to cross from the east to the west side of the road.”

The defendants, Ethel Sitman McCraney, individually and as the Administratrix of the Succession of Alonzo McCraney, J. L. Martin, driver of the McCraney truck, and Massachusetts Bonding and Insurance Company, also filed a general denial in which they specifically set forth that the McCraney truck and trailer was not involved in the accident and, in the alternative, plead contributory negligence for the same reason as the defendant Cheramie, above quoted. These answers were filed on the 29th day of November, 1944.

On June 18th, 1945, the defendants secured an order for the plaintiffs to show cause why they should not be required to furnish security in the amount of $100.00 to cover the costs incurred in defending the suit. To this rule and order, plaintiffs excepted on the ground that the motion disclosed neither a right nor a cause of action and further set up that the defendants had no right to such a bond and denied all and singular the allegations contained in the motion. The minutes of June 26, 1945 state that the rule ordering “defendants” to show cause was refused, however, this was clearly an error and should have been a rule upon the “plaintiff” to show cause why bond should not be furnished. There is no doubt but that this minute entry refers to the rule under discussion. At any rate, it was properly refused.

The case was tried and the judge, with written reasons, dismissed plaintiffs’ suit at their costs. Since the trial of the case, the plaintiff Paul Bourgere, Sr. died and the appeal was perfected to this Court on behalf of Mildred Nelson Bourgere as the widow of Paul Bourgere," Sr. and as the mother of the boy who was killed. At the beginning of the trial in the lower court, the plaintiff moved to have the defendants elect “as to which defense they would rely upon, since under the law and the Practice and Pleading Act one cannot plead contributory negligence until and unless his own negligence has been admitted.” The judge of the District Court overruled the motion to elect and plaintiff is apparently reurging the motion as he has raised the point in his brief. The defendants filed a general denial and, in the alternative, plead contributory negligence which was the correct procedure, and the judge was therefore correct in denying such a motion.

The record discloses that on the night of May 26, 1944, at approximately 9:30, the truck of the defendant Cheramie was parked on the west or right side of the paved highway facing south and slightly south of a club known as The Rendezvous, which is about one or one and a half miles north of the town of Napoleonville. There is no testimony to sustain plaintiff’s allegation that this truck was parked at an angle with the rear part protruding on to the highway, with no taillight and no flares and in such a position as to leave less than nine feet of space between the-rear end of the truck and the edge of the pavement on the east or north lane of traffic. Plaintiff has utterly failed to prove this allegation. In fact, the only positive testimony is that the truck was parked facing south off of the paved portion of the highway and on the shoulder. This truck was used by the defendant Cheramie to come to Napoleon-ville and haul laborers for the Morgan City Packing Company, and it went as far as Belle Rose in order to pick up these laborers, and the driver, James Washington, testified that is what he was doing on this night at the time the accident actually happened. James Washington was in his truck and wás just preparing to drive it off. He had stopped after being flagged and stated that “some boys” requested a ride and they were loading “in the back and one in the front,” when the truck which struck young Bourgere passed by."

The testimony shows that young Bour-gere was on the east side of the highway and intended to cross this highway to get in the defendant Cheramie’s truck. The driver, James Washington, testified with regard to the actual accident and as to what kind of truck struck the boy as follows:

“Some boys asked me for a ride and they got loading in the back and one in the front "and finally a trailer came by. When the trailer came by I noticed one of the boy’s hat was flying from the window. I asked one of the boys what’s that? He’s hit! He said Paul’s hit. He called the boys three times. He didn’t come. One of the boys in the back came to the front and said: ‘Mr. Jim, a trailer passed and hit little Junior. Finally I noticed it was a lumber truck. I stayed parked about 20 minutes or more. I left, I didn’t see none of his people.’
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“Q. Did you tell him it was a truck loaded with lumber that had hit the boy? A. That’s what the boy from thé back told me.
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' Q. Did you tell Mr. Cheramie what truck had hit the boy? A. A lumber truck, I told him.
“Q. Did you tell him to whom if belonged? A. What the man told me, I told him.
“Q. You told him it was a lumber truck? A. That’s right; that’s what I know.”

The record does not disclose who told him it was a truck loaded with lumber that had hit the boy.

Another eyewitness, Taylor Parker, testified that a truck passed but that he did not know what kind because he didn’t see it, but he knew it was a truck by the “run of it.”

Eddie Carter, who was also a short distance away from Young Bourgere at the time he was killed, testified he didn’t know just what killed him but that he felt that it was a. truck, and when asked what kind of a truck, -he testified that it was a lumber truck. This is the only positive testimony that it was a lumber truck that was involved in the death of Paul Bourgere, Jr. There is no witness who testified that he could identify the truck or that it was a McCraney truck. None of them attempted to describe the truck.

There is also no witness who testified that the alleged McCraney truck swerved to its left to avoid striking the defendant Cheramie’s truck. In view of the fact that there is no testimony to prove that the Cheramie truck was parked as alleged by plaintiff but, on the contrary, was properly parked off of the highway on the shoulder, there would be no reason and the testimony fails to reveal any other reason for the truck which caused Bourgere’s death to swerve to its left.

It is most seriously disputed that the Mc-Craney truck was the one which passed The Rendezvous át about 9:30 P.M. and caused the death of young Bourgere. The testimony as to this fact reveals that the McCraney truck No. 22 driven by the defendant J. L. Martin was loaded with lumber to be delivered at or near Morgan City, Louisiana; that at 9:30 P.M. the truck was at White Castle, Louisiana, at a gasoline filling station for the purpose of getting gas. This gasoline station was operated 'by Mrs. May Fontenot who testified that she usually closed at 9 P.M. and that on this particular night she had already closed up but that Martin, driver of the McCraney truck, asked her to serve him with gas. As he was a regular customer, she opened her station and at 9:30 P.M., after serving the customer, she was anxious to eat something and the restaurant closed at 10:00 P.M.; so at this time, 9:30 P.M., Martin was still at the station. She knew Martin well as he was a good customer and bought gas from her at least two or three times per week. She testifies positively that she knows it was 9:30 when she left the station and the truck had not yet pulled out. Martin, the driver of the McCraney truck, also testified that he left White Castle at 9:30; that he had asked “the girl at the station what time it was,” as he noticed that she had a wrist watch on her arm. We believe that it is definitely established that this truck was at White Castle at this filling station at 9:30 P.M. If the allegations of plaintiff’s petition are correct and the approximate time of the accident as fixed by the witnesses is also correct, which was about 9:30 P.M. or not later than 9:40 P.M., then it could not possibly have been the McCraney truck that was involved in the death of young Bourgere, as White Castle is shown by the record to be approximately 26 or 27 miles from the place of the accident.

Plaintiff contends that it has borne the burden of proof by such strong circumstantial evidence that it leaves no other hypothesis but that the McCraney truck •killed Bourgere, Jr. Plaintiff contends that it has proven that there was no other lumber truck on this highway from the scene of the accident, The Rendezvous, to Morgan City other than the McCraney lumber truck. It is, therefore, most important that we analyze the testimony of the witnesses with a view of deciding as definitely as possible the exact time of the accident.

Counsel for plaintiff in his brief states that it has been fully established by the evidence “that he was killed on said date alleged; and at the place and approximately at the time shown in the petition — between 9:30 and ten minutes to ten.” As stated, the petition alleges that the accident happened at 9:30 P.M. The father of the boy, Paul Bourgere, Sr., testified that it could have been about five minutes after ten, as near - as he could remember, when he arrived at the scene of the accident, as he stated that he was waiting for the boy to come home at ten minutes before ten. This testimony, of course, is not very definite. However, he did testify on cross-examination that he knew it was not as late as 10:15 P.M. His wife, Mildred Bourgere, present plaintiff, testified that she thought it was around 9:00 or 9:30 that she went to the scene of the accident.

The witness Sam Klotz, who was with Miss Josie Schillaci on the night of May 26, 1944, testified that they were driving up the highway north of Napoleonville when they saw the boy lying on the 'side of the road, and when asked what time that was, he testified between 9:00 and 10:00 P.M. On cross-examination, counsel sought to have him fix the time he arrived at the scene of the accident more accurately but his answer was, “It was around nine or ten o’clock, I am not positive because I did not look at the time.” Pie was further asked if he knew how long after the accident he arrived at the scene and he testified, “They said it had just happened.” This witness also testified that he was the first one there and he went for the doctor. “I got Dr. Roger and the coroner.”

Klotz’ companion, Miss Josie Schillaci, testified that she thought it was after nine o’clock but that she did not know the exact time. Both this witness and Klotz testified that the defendant Cheramie’s truck was still parked on the opposite side of the road. The driver of this truck, James Washington, testified that after the accident he only remained about twenty minutes. This fact would corroborate these witnesses in their statement that they thought they had arrived just after the accident happened, for both saw the Cher-amie truck still parked at the scene of the accident.

The eyewitness, Taylor Parker, was not asked by either counsel nor did he fix the time of the accident. Eddie Carter, another eyewitness, upon being' questioned about the time testified, “I couldn’t just exactly tell. I had no watch.”

Dr. Charles Roger testified that he went to the scene of the accident; that he had no definite idea of the time he arrived there but he thought it was between seven and eight P.M. However, when he was told that all the witnesses fixed the time at between nine and ten p. m., he stated that prqbably it was, that he had no definite idea.

Mr. Ferdinand Richard, the Sheriff of Assumption • Parish, testified that on May 26, 1944 at about a quarter to ten P.M. he was called, he believed by Sam Klotz, and told of the accident. He testified that he was called “immediately after the accident.” The Sheriff’s testimony is the most definite of all 'and while he testifies that he was called immediately' after it occurred, it would almost be safe to assume that not less than five minutes had elapsed after the accident at the time he was called. We can assume that anywhere- from five to fifteen minutes could be classed as “immediately.” Be this as it may, if the accident happened at 9:30, 9:40 or 9:45, under the testimony in this case it would be impossible for the McCraney loaded lumber truck to have left White Castle at 9:30 and driven this twenty-six miles in fifteen minutes.

Should we assume that it was within the realm of possibility for the truck to have driven this distance in fifteen minutes, the testimony as to the speed of the McCraney truck is all to the contrary. The driver of the truck, J. L. Martin, testified that he averaged 32 to 34 miles per hour. It was agreed that his companion on the trip, Morris Lee Wahl, would testify to the same facts. Counsel for plaintiff in his brief states that the distance from White Castle to Morgan City was from 68 to 69 miles. He then has the following in his brief:

“Time: 9 :30 Whitecastle;
H':30 Morgan City.”

This statement alone fully corroborates the testimony of Martin, the driver of the McCraney truck, for if it took him two hours to go from White Castle to Morgan City, a distance of 68 miles, this would be an average of 34 miles per hour. This statement by counsel for plaintiff is also borne out by the testimony, except that Trooper Theriot testified that they stopped the McCraney truck at Morgan City “between 11:30 and 12 — about 20 minutes to 12,” while State Trooper John Crispino testified that they stopped the truck in Morgan City, “in the neighborhood of 12 or 12:30 — exact time, I don’t remember.” Regardless of the slight discrepancy in the testimony of the troopers as to the time, it still would be corroborative of Martin’s testimony that he was driving at an average .of about 34 miles per hour.

While it would seem that this should be a sufficient discussion of the facts to show that the McCraney truck was not the truck involved in the accident at The Rendezvous at 9:30 P.M., there are additional reasons as shown by the testimony which exonerate the McCraney truck. The Sheriff testified that he lived in Labadieville, ’which is a distance of nine miles' from Napoleonville and, therefore, ten or ten and a half miles from The Rendezvous, the scene of the accident. He testified that within two minutes after he got the call he was out in front of his house on the highway, hoping to stop the lumber truck that had struck Paul Bourgere, Jr. He remained in front of his house “maybe ten minutes,” and then he went into his home and called Thibo-deaux and had the night watchman watch the road in order to stop the lumber truck. According to the record, Thibodeaux is approximately 25 or 26 miles from Napoleon-ville. The Sheriff then got in his car and went to Thibodeaux, and the night watchman there told him the truck had not passed.

In plaintiff’s’brief, he makes a statement that the nine miles between Napoleonville and Labadieville had already been negotiated by the truck before the sheriff reached the road, and he has a table of time in which he estimates that from the time the truck was involved in the accident at The Rendezvous to the time the Sheriff got on the road would be ten to eleven and a half minutes. Therefore, he says the truck negotiated the ten to ten and a half miles from The Rendezvous to Labadieville in ten to eleven and one-half minutes, which would be approximately sixty miles per hour. This could be possible, but, under the facts, the McCraney truck could not have been at these points at that time, aside from the fact that there is no testimony to show that the McCraney truck ever traveled sixty miles per hour from White Castle to Morgan City. It seems more than likely that if a loaded lumber truck struck this boy at The Rendezvous ten to eleven and one-half minutes prior to the time the Sheriff actually got on the highway, that the truck would have been seen or stopped by the Sheriff. This truck had to go through the town of Napoleonville and it is more than reasonable to assume that it would have slowed down for street entrances into the highway.

Some of the witnesses to the accident testified that they did not think that the driver of the truck that struck the boy even knew that it had happened, as the entire front portion of the truck, the lights and cab, had passed the boy and he was struck or ran into the trailer part of the motor vehicle. Therefore, there would be no reason for the driver to be running away from the scene of the accident and normally he would have slowed down for the town of Napoleonville.

While counsel for plaintiff contends that “Since Sam Klotz did not meet the truck between Napoleonville and The Rendezvous it shows that he had already negotiated the distance of one and one-half miles to Napoleonville.” The testimony of Sam Klotz on this point under direct examination by counsel for plaintiff was as follows:

“Q. You are positive you didn’t meet a lumber truck? A. Not positive. I met plenty of traffic, but don’t know what they were in the nighttime. I don’t know.”

His companion, Miss Josie Schillaci, testified that she did not remember meeting a lumber truck between Napoleonville and The Rendezvous. There is no’ testimony as to how many roads lead off from the highway between The Rendezvous and Na-poleonville or between The Rendezvous and Labadieville, and certainly the evidence would indicate that the truck that struck Paul Bourgere, Jr. evidently did not go as far as Labadieville or it would have been stopped or seen by Sheriff Richard. However, assuming that it did negotiate the ten to ten and one-half miles in ten to eleven and one-half minutes, it certainly could not have passed the blockade at Thibodeaux, for, according to Sheriff Richard’s testimony, he received the call at 9:45 P.M., took two minutes to get on the road, and stayed on the road’ ten minutes, when he went back into his house and called Thibo-deaux, which would have been at three minutes to ten P.M. Under these facts, the truck would have had to negotiate the sixteen miles from Labadieville to Thibodeaux in ten to fifteen minutes. Otherwise, it would have been seen or stopped at Thibo-deaux by the night police.

While all of the testimony, positive or circumstantial, refutes the contention of the plaintiff that the McCraney lumber truck was at The Rendezvous at 9:30 or 9:40 P.M., all of the testimony is to the effect that the McCraney truck was not traveling sixty or seventy miles an hour but took two hours to travel sixty-eight miles, as was testified to by the driver of the truck and his companion. If we assume that the McCraney Lumber truck was at White Castle at 9:30 P.M., which is definitely established by the testimony, and that it traveled at approximately ■ 34-miles per hour, it would have reached The Rendezvous, a distance of some 26 miles, in approximately 47 minutes or about 10:17 P.M., which would appear to be borne out by the testimony for the reason that the testimony leads us to believe that at this time the body had been picked up and Paul Bourgere, Sr. and Sam Klotz were in Schil-laci’s Restaurant and Bar at Napoleonville, Louisiana. Paul Bourgere, Sr. testified that he remained at the scene of the accident about thirty minutes, and Sheriff Richard testified that he came from Thibo-deaux to Labadieville, his home, and called Franklin, Louisiana, about 10:20 P.M. This is the approximate time the State Troopers testified they were notified from Franklin, Louisiana, to look out for a lumber truck. Sheriff Richard then went to Napoleonville, a distance of nine miles only and, according to his own testimony he was driving fast that night, where he met Paul Bourgere, Sr. and Sam Klotz at Schil-laci’s Restaurant and Bar. It would, therefore, be within the bounds of reason to assume that while Sheriff Richard .was talking to Bourgere and Koltz at Schillaci’s the McCraney truck went through Napole-onville. Further, Martin, the driver of the McCraney truck, testified that he did not see any truck parked on the side of the road at The Rendezvous (meaning the Cheramie truck driven by James Washington) nor did he notice any crowd .of people or anything unusual when he passed. James Washington, driver of the Cheramie truck, testified that he remained at the scene of the accident approximately twenty minutes after it happened. Therefore, he had left prior to the time the McCraney truck arrived at The Rendezvous. While it is not definitely stated at what time the undertaker picked up the body of Paul Bourgere, Jr., we believe that this had been done prior to the time the McCraney truck passed The Rendezvous, else someone would have been watching the body and would most assuredly have seen ■ this loaded lumber truck.

As to why the night officer at Thibo-deaux did not see the McCraney lumber truck, we are unable to explain other than he must not have stayed on the road at all times. Also unexplainable is the fact that Sheriff Richard, after talking to Paul Bour-gere, Sr. and Sam Klotz at Schillaci’s Restaurant and Bar in Napoleonville, staying there about twenty minutes, then left and went to Morgan City, traveling the Chaca-houla Cut Off which is the same route taken by the McCraney Lumber Company truck on its way to Morgan City, and the Sheriff came back this same route and did not see the McCraney Lumber Company truck, either coming or going. As he walked in his house after his trip to Morgan City, he received a phone call- about 12:15 A.M. from Franklin., Louisiana, to the effect that they had arrested Martin, the driver of the McCraney Lumber truck. It is impossible to explain from the testimony why the Sheriff did not see the Mc-Craney lumber truck on his trip, regardless of whether this truck passed Labadieville just before he got on the highway after being notified, or whether it passed through Napoleonville at the time he Was in Schil-laci’s Restaurant, for the truck, according to the testimony of the State Troopers, was stopped at twenty minutes to twelve, or around 12:00 or 12:30, and the Sheriff made the trip to Morgan City and back to his home by 12:15. Therefore, he was bound to have passed this truck somewhere, else one or the other had turned off the road or stopped off the side of the road and was not seen at the time the other passed..

It is also in evidence that the McCra'ney truck was examined by two- State Troopers, Sheriff Richard and one- of his deputies, and there was no evidénce on it that it struck Paul Bourgere, Jr.

We are therefore of the opinion that the plaintiff has failed to prove that the McCraney Lumber Company truck was the truck involved in the accident in which Paul Bourgere, Jr. was killed.

We think it best to also discuss the 'plea of contributory negligence or the liability of the defendants, if the McCraney Lumber Company truck, for the sake of argument, was the one which was involved in the accident. All of the defendants plead contributory negligence on the part of Paul Bourgere, Jr., who was sixteen years of age at the time of his death.

James Washington, the driver of the defendant Cheramie’s truck, testified that he was properly parked on the shoulder of the road, near The Rendezvous, which is a night club located approximately one or one and a half miles north of Napoleon-ville; that he was engaged in picking up laborers for his employer as far as Belle Rose, Louisiana, that being what he was doing on this night. He testified that some of “the boys had flagged me” and he had stopped facing south on the west shoulder of the paved highway running along Bayou Lafourche. It will be noted that in his testimony which has been previously quoted, one of the boys in the back of his truck came to the front and told him, “Mr. Jim, a trailer passed and hit little Junior.” (Emphasis ours.) It is somewhat significant that the boy used the word “trailer” rather than truck, for we believe the testimony clearly shows that it was the trailer part of the truck that came in contact with Paul Bourgere, Jr. and caused his death.

Plaintiff has introduced two maps in evidence, however ,the witnesses practically destroyed the effect of these maps, for one did not know how to write and therefore, we do not believe he could have drawn a map, and the other one could barely sign his name and denied drawing the important and damaging parts of the map; therefore, these maps may be disregarded as being of no probative value.

Paul Bourgere, Jr. fell with both of his legs on the pavement and his head off the pavement and was lying face down. Dr. Roger testified that it seemed to him that the body was lying face down on the shoulder of the road and that he died of “multiple cranial injuries and what seemed to be compound fracture of the thighs, — as to which I don’t' have recollection.” Dr. Roger’s testimony is rather vague and we therefore accept the testimony of James Washington that Paul Bourgere, Jr. was lying with his legs on the pavement and the rest of his body on the shoulder face down. However, the injuries were mostly to the right side.

Taylor Parker, who was an eyewitness, testified that he was working at The Rendezvous and just'before Paul Bourgere was killed, he asked Parker for a cigarette and after he gave him the cigarette, “he ran on the side of the road. He dropped the cigarette and turned around, went on the side and a truck passed. After the truck passed, I didn’t see him no more.” He further testified that after the lights of the truck had passed and got off him (meaning the deceased, Paul Bourgere, Jr.) he didn’t see him any more. He testified that he didn’t notice which side of the road the truck passed on.

The testimony of Eddie Carter, who was at The Rendezvous restaurant the night the accident occurred, was to the effect that he was out in front when Paul Bourgere came by his car and asked him for a cigarette; that he had none and he saw Bourgere when he went over and asked another colored boy named Taylor for a cigarette; that when Taylor gave him a cigarette “he left out from the Rendezvous at a slow trot. He was coming down the Bayou, running on the side of the road, and while he was running, I was not even paying attention to him, but the woman I was with called my attention to it, she said: ‘That boy’s going to get killed’. I looked slightly back, he was running slow. Just as the truck was passing him, he motioned over, but what happened then I don’t know, but at that time I hear he was dead.” This witness further testified as follows:

“Q. When the truck was coming, Paul was still running, just about when Paul got to where Jim’s gadabout was, and just when the headlights were passing Paul, you could see Paul motion towards the other side of the road? A. Like he started for to cross; the truck passed; I could see him until the headlights passed him, then I could see him go towards the road.
* * * * * *
“Q. I thought you told me you had not seen him? A. I told you I seen him until the headlights passed him.
“Q. Then if he had continued -with his motion when the headlights were still upon him, he would have been in front of the truck? A. I don’t know.
“Q After the headlights passed, you didn’t see him any more? A. No, sir. I seen him when the headlights were on him, I said to myself he intends to go across the road. The last I see, he was still on the shoulder of the road; he was already propped to go across the road.
“Q. You didn’t see him cross the road? A. No, sir.
“Q. You didn’t see him on the pavement? A. No, sir. .
“Q. After the truck passed, he was on the pavement dead ? A. Yes, sir, when we got there he was lying dead on the pavement.”

This is the main testimony with regard to the accident itself, the position of the body and the injuries which caused the death of Paul Bourgere, Jr. It is proven that the Cheramie truck was properly parked off of the highway, therefore there would be no reason for the truck driving south and which was involved in the accident to have swerved to its left or to have left its own lane of traffic, and there being no testimony in the record that’ the truck did swerve out of its lane of traffic, we see no reason why we should not assume that it did not do so. Taking the testimony of the eyewitnesses, we are of the opinion that this boy was extremely negligent in that he intended to cross the highway to get into the Cheramie truck and as soon as the headlights and main body of the truck itself had passed him, he ran into the side of the trailer which would naturally have injured his right side as the .truck was traveling south, and this is the side that would have received the blow, and, as a result of the blow, it knocked him back across the east lane of 'traffic where he fell with his legs on the pavement and the rest of his body on the shoulder.

We are therefore of the opinion that the judgment of the District Court is correct and that it should be affirmed and it is so ordered, plaintiff to pay all costs.


author: DORE, Judge.

text:
    MORGAN v. AMERICAN BITUMULS CO. et al.
    No. 3087.
    Court of Appeal of Louisiana. First Circuit.
    March 7, 1949.
    Rehearing Denied April 19, 1949.
    Writ of Certiorari Granted May 31, 1949.

      Samuel M. Robertson, of Baton Rouge, for appellant.
    Taylor, Porter, Brooks & Fuller, of Baton Rouge, for appellees.
   DORE, Judge.

On or about April 27, 1945, Willie Morgan, a colored man of the age of approximately 36 years, was employed by the American Bitumuls Company, as a common, laborer, and while in the course and scope of his employment sustained an accident and injuries as a result of which he filed this suit on June 22, 1945, against the said employer and its insurer, for benefits under the Workmen’s Compensation Law. The original petition sets forth that the accident involved occurred on April 20, 1945, bu't the defendant set forth that the proper date was April 27th, and said date was thereafter admitted by the plaintiff to be correct,, and there is no contest as to this point. The accident is admitted to have occurred while plaintiff was unscrewing a cap on a pipe .which enters the bottom of a tank car, with a Stilson wrench, for the purpose of attaching thereto a pipe with which to unload the tank car. The wrench slipped, and as a result he fell and his left shoulder struck a valve or drain pipe (drain barrel), as stated by'plaintiff, which resulted in his alleged injuries. The original petition alleges that the injuries resulted in a sub-deltoid Bursitis and Myositis of the left shoulder and prays for compensation for temporary total disability, reserving the right to plead for permanent total disability if developments in his condition should warrant it. By supplemental petition filed February 11, 1947, plaintiff asked for total permanent disability compensation on the ground that his injuries were more serious than at first realized at the time the original petition was filed. It is admitted by the pleadings that an accident as alleged was sustained, and that the said accident ,was duly reported to petitioner’s foreman.

The defendants, however, deny that as a result of the accident the plaintiff sustained any disabling injury and therefore deny that they are indebted to the plaintiff in any sum whatsoever under the terms of the Workmen’s Compensation Act, as ámended.

In addition to the main issue there is some dispute as to the wage scale of Willie Morgan. It is admitted that he was hired at a rate of pay of 55 cents per hour for 8 hours per day, 5 days per week, plus time and a half for overtime, and double time for Sundays. The testimony also shows that at the time of the employment of. plaintiff, he was employed for some 3 weeks, the defendant Company was engaged in war production, and was working its employees 7 days per week, a minimum of 56 hours per week. It appears that plaintiff was working as much as 10 or- 11 hours per day on some days. In any event, it seems reasonable to conclude that his contract of employment called for a minimum of 56 hours per week for which he was paid 55^ per hour 'for 40 hours, making $22 and 16 hours at the rate of 82.5 cents per hour, making $13.20, a total of $35.20 per week for his wage. On these facts, the trial judge concluded correctly that in the event he was totally and permanently disabled, as alleged, the compensation rate should be at the maximum under the law at that time, of $20 per week.

After the trial of the case, the trial judge came to the conclusion, for written reasons assigned, that plaintiff had sustained a compensable disability of 20% and that therefore he should recover compensation at the rate of 20% of the maximum of $20 per week, that is, $4 per week for not more than 300 weeks, and accordingly granted judgment to plaintiff in that sum, plus legal interest on past due instalments, plus an award for medical assistance heretofore given plaintiff, and costs. Both defendants and plaintiff have appealed. Defendants contend, as they did in the lower court, that plaintiff has suffered no compen-sable disability and his case should be dismissed. Plaintiff contends that he has sustained a disability of a total and permanent character and that the award should he for total and permanent disability, to wit, $20 per week for 400'weeks. Plaintiff further contends that the lower court erred in not allowing an expert fee of $25 to Dr. Coyt Moore, the Osteopath who treated plaintiff and who testified at the trial, and an expert fee in the sum of $25 to the photographer who made pictures of plaintiff’s shoulder and testified with reference thereto.

The main questions involved on appeal are whether or not it has been established that the plaintiff sustained an accident which resulted in an injury which is com-pensable under our Workmen’s Compensation laws, and if so, what'rate of compensation should be awarded him.

The plaintiff testified that at about 4:30 in the evening he was pulling upon a wrench unscrewing a cap of a pipe that entered the bottom of a tank car by means of which the car was loaded and unloaded and that when the wrench slipped he fell back against what he calls a drain barrel, and struck his shoulder. This accident is supposed to have occurred, according to plaintiff’s petition, on April 20, 1945, at 4:30 p.m., but defendant set forth that it occurred on April 27, 1945, at 10:00 a. m., and it is admitted by plaintiff that the correct date is April 27th. There is no admission or proof as to the time of the accident. In any event, it is shown that plaintiff worked the remainder of the day on which he was injured, which wás a Friday, and reported back for work the next day, Saturday,- and he quit early and did not work the following Sunday, but returned on ■Monday, Tuesday, Wednesday, arid Thursday; and on May 3rd he was sent to the Company doctor, Dr. Godfrey, for attention.

The date of his examination by Dr. God-frey is not established, but the record contains the report from Dr. Godfrey dated May 19, 1945, in which he states that he was unable to find anything objectively wrong with plaintiff -aside from a possible mild contusion and that X-Rays showed nothing; that “His actions lead me to believe he is malingering, or at least exaggerating his complaint”.

Plaintiff’s version of the accident is corroborated by fellow employees, and there seems to be no question that it did occur. The serious question is the result of the •accident.

After being examined by Dr. Godfrey it appears that he placed himself ■ under the care of Dr. Coyt Moore, an osteopathic surgeon. Dr. Moore testifies that he examined Willie Morgan on May 11, 1945, and that he treated him 62 times thereafter. He states that at the time of his original examination, “There was swelling of the muscles, some thickening of the bones and ligaments of the left shoulder, and I diagnosed injury or inflammation of the nerves of that area at the time of my examination. There is some thickening and apparent soreness of the left shoulder and nearby structures, with a small amount of thickening of the long structures of this left shoulder”. He sums up plaintiff’s condition as “a combination of arthritis, injury of the ligaments, and straining of the nerves”. He states that his treatment consisted of manipulation of the muscles and other soft tissues and the use of infra light. .His conclusion is that plaintiff wil. never be able to do heavy manual labor for a living. He states that plaintiff has a limitation of 10% on the upper motion of his left arm.

Dr. O. F. Cosby, an Eye, Ear, Nose and Throat specialist, testified on behalf of plaintiff with reference to the Robertson Sign, and quoted extensively from the text book of Ophthalmology by Duke-Elder on this proposition, and together with Dr." J. A. Thom, conducted an examination before the Court, of the plaintiff. Dr. Thom applied pressure on plaintiff’s left shoulder and according to Dr. Cosby,' upon doing so, plaintiff’s eyes dilated almost coincidentally with the application of the pressure. The application of pressure on the right shoulder did not cause this reaction. It seems to be the opinion of medical science that the application of pressure on a painful area will cause a dilation of the eyes; but the same reaction is caused by tickling or by any other stimulus, and for that reason this test, known as “Robertson’s Sign” has little, if any probative value, and has not been accepted by the courts. ■

Francis Julius, a photographer, was called to identify pictures" of the plaintiff, which he had taken. These pictures show that plaintiff’s left shoulder, at about the middle area posteriorly, had a slight bump, and that his left arm and hand are slightly swollen, and also, that according to the pictures, he is unable to lift his left arm above his head.

Dr. Thom testified that he first saw plaintiff on January 15, 1946, and that plaintiff gave him a history of having bumped his shoulder in April, 1945, against an iron valve and drain cock, and that he complained of pain in the middle portion of his left shoulder posteriorly; that based on the. history of the case and the history of the treatment which he reported he had received, he made a diagnosis of brachial plexus neuralgia. He states that on several occasions he measured his arm, and that on two.of these occasions he found the arm enlarged particularly from the elbow down to the wrist. He adds that from later observation he made a diagnosis of “Bursitis of the supraspinatus Bursa”'. He states that the plaintiff’s' condition disables him to some extent, and that if he tries to work, the condition flares up again; that any kind of hard work with that arm may cause it to flare up, although he may work with it at any time. His opinion is to the effect that there are enough objective findings to convince him that the man has some pathology there, and that he thinks the condition is .of indefinite duration.

Mr. J. W. Sicard testified that for several months prior to this accident plaintiff had worked for him as a presser in his cleaning and pressing establishment, and he explained the nature of a presser’s duties and, in effect, that to do this work one must have the use of both arms. It may be noted here that plaintiff, prior to assuming his job as common laborer.with the defendant company herein, had for several years engaged in the cleaning and pressing business, and that subsequently to his injury,, just a few weeks thereafter, he pressed clothes and blocked hats at his house, and derived some earnings therefrom, admitting that some weeks he made as much as $25.

Other medical evidence in behalf of plaintiff consisted of X-Rays which were reported negative, and a report of Charity Hospital of Louisiana at New Orleans, to which plaintiff went for treatment. This, report shows that plaintiff was examined by Dr. Guy E. Caldwell and Dr. Baz, and that they made a tentative diagnosis of arthritis in his left shoulder and arm; that he was given a stellate nerve block on October 26, 1945, and told to report back in a week; that on November 2, 1945, he was again given a nerve block in his shoulder and told to report back in 2 weeks, at which time he was discharged.

The testimony of Dr. H. Reichard Kahle and Dr. Frank Brostrom was taken by deposition before a notary public in the Parish of Orleans after düe notice to plaintiff. However, neither plaintiff nor his attorney was present at the time their depositions were taken because plaintiff or his attorney refused to be present although the defendants offered to pay his or their expenses to be present, and the only questions addressed to them were by the attorney for the defendant. Dr. Kahle, a surgeon, testified that “His history was one of pain in the left shoulder. My examination showed no atrophy, and I could find no external evidence of injury; that all his movements were normal in range and did not apparently appear to be painful — that is, of the left shoulder. I found no evidence of nerve injury or of injury to the large vessels supplying the left arm. My conclusion was that I could find no organic cause for symptoms of which he complained.” His .conclh'sion is that he could find no disabling injury except as based on subjective symptoms.

Dr. Brostrom, from his examination, states: “I was unable to, see any atrophy of the left shoulder * * *. The shoulders were held at equal level. The range of motion, both actively and passively, was normal in the, shoulder,, elbow, wrist and hand. There were no areas of tenderness •on palpation.” His opinion is that plaintiff was in no way disabled.

The examination by Dr. Kahle was on October 31, 1946, and by Dr. Brostrom on November S, 1946. It may be noted that both of these doctors .testified that the left arm was slightly larger than the right, and that they were both under the impression that he was left-handed. But it is clearly shown by the evidence that he is right-handed.

The Court, not being fully satisfied with the medical testimony, appointed Dr. T. Jeff McHugh and Dr. J. Ashton Robbins to examine the plaintiff and report to him. Both of these doctors accordingly examined the plaintiff and made reports of their examinations to the trial judge.

Dr. McHugh, in his report, states that the plaintiff gave a history of having fallen and striking the back of his left shoulder on a drain valve, in May of 1945; that he ■experienced pain in the shoulder for a few minutes, after which it passed off, and he continued to work for the balance of the ■day, which was about 2 hours; that on arriving home, the shoulder began to swell and pain; that he returned to work the next morning (Saturday) and worked the entire day; that he was supposed to work Sunday, but was unable to do so; that on Monday he was better and he did his regular work Monday and Tuesday; that.on Wednesday he returned to the job, but was having pain and was given lighter work; •that on Thursday he was sent to Dr. God-frey, and did not work thereafter. Dr. McHugh states that his complaint at the time of the examination in March, 1937, was “Pain in my left shoulder 'and swelling that goes down into my arm into my hand:” He states that his examination showed the following:

“Well nournished and developed colored male giving his age as 36 years.

Head and neck negative.

Back is regular and negative.

Shoulders are well developed and symmetrical.

He complains of pain from the left neck downward over the left shoulder and down the arm and forearm into the hand.

Both arms appear equally well developed and appear the same size.

The left hand and fingers appear slightly swollen.

He complains of a trigger point of tenderness over the posterior point of the shoulder. At this location he has a small ill-defined lump which is said to come and go-

He adducts both arms to one hundred •eighty degrees but complains of the left shoulder in so doing.

He adducts both arms and rotates both •shoulders.

On reaching up behind his back the finger tips of the left hand reach the lower border of the shoulder blade.

On reaching up behind his back with the right hand the tip of the fingers reach within three inches of the upper border of the right shoulder blade.

He has a full normal range of motion in the elbows, wrists, hands and fingers.

No atrophy of the muscles of the-shoulders, arms or hands could be found.

Blood pressure right arm 125/80 and of the left arm 120/80. I viewed the X-rays which he brought. One set was made by Dr. Lester Williams and one set by Tourc Infirmary of New Orleans. I am unable to see any fracture, dislocation or bone pathology, in the films of the left shoulder.”

He finds that the only objective evidence of abnormality is a small lump in the left upper back and a slight swelling of the left hand, and that the swelling of the left hand, which he states comes and goes, suggests some disturbance in the venous return blood supply of the arm and yet it is difficult to connect this with trauma over the back of the shoulder; that the discrepancy in the blood pressure on the two sides is not an unusual finding; that he could produce some slight swelling of the hand voluntarily by allowing the arm to hang without movement for a long period or by making the pressure over the axillary space. He adds that the disturbance in the venous return blood supply may be caused by a cervical rib, which is a congenital condition, and that the cervical rib condition would be established or ruled out by X-Rays of the neck. It does not appear that any such X-Rays were made and that therefore the cervical rib proposition, as well as the other condition -which could be caused voluntarily by the plaintiff, to wit, by the exertion of pressure on his arm, shutting off the blood supply for a period of time, commonly known as “Saturday Night Shoulder”, are both in the possibility stage and neither is established by ahy evidence. In conclusion he estimates that plaintiff has a disability of 15 or 20 per cent., but states “it is difficult for me to reconcile his complaints and findings with the alleged injury which he describes.”

It is noted that Dr. McHugh, however, does not connect the disability with any other cause, except the possible causes stated herein.

Dr. Robbins in his report of 'his examination of plaintiff testifies as follows: “General examination is essentially negative except for slightly enlarged tonsils. Examination of the left shoulder and left arm reveals a slight swelling in the mid-portion of the shoulder, posteriorly. The swelling is slightly indurated (hard and firm), and the skin over it has a slightly shiny appearance, it does not. pulsate and no murmur is heard over it. The mass disappears on raising arms above head, becomes more prominent on extending arms to the front and practically disappears on resting arms on table at shoulder level. It is not especially tender. There is no demonstrable muscular atrophy of the left upper extremity. The left hand shows a slight swelling (or edema) and the skin has a shiny appearance. The grip seems weaker in the left hand (The patient claims it causes pain to grip hard.) All motions are normal and all reflexes are normal. There is no apparent loss of sensation.” He adds, however, that plaintiff seems to have interference with the returning of blood in the left extremity which cau'ses the swelling of the left hand; that the swelling in the shoulder could have been caused by a blow; that it is hard to connect the location of this slight swelling with any disturbance of the left arm or its circulation. He states that no diagnosis had been made, and that several possibilities suggest themselves, such as a cervical rib, a scalenius Anticus syndrone (Spasm of the scalene muscles) or injury to veins of upper extremity, or even disturbance to the nerve supply of the blood vessels of the left arm. Dr. Robbins states that trauma could play a part in these conditions, except that of a cervical rib. In his testimony he admits that plaintiff could cause a condition of '“Saturday Night Shoulder” Voluntarily, but, as stated before, this is merely a possibility unsupported by any evidence. Dr. Robbins’ conclusion is “It is my belief that this man is disabled, I would say, a possible 25%. I cannot say that it is due to the accident from studies made thus far.”

Other physicians, namely, Dr. Moss M. Bannerman, Dr. Lawrence J. Kern and Dr. Charles McVea examined plaintiff herein. They were not called by the plaintiff and on the attempt of counsel for defendant to call these physicians plaintiff’s counsel objected on the ground of professional privilege. The objection was sustained. There is no basis for sustaining of this objection in a compensation case.

Presumably, these physicians would have testified adversely to the claims of plaintiff as we see no other reasons why plaintiff would not permit them to testify. It is a fact that the report of Dr. Bannerman is in the record, but it is an ex parte statement to which timely objection was made to its filing and correctly sustained. It cannot be considered.

The fact remains that the trial judge based his opinion principally on the testimony of the doctors whom he appointed to examine plaintiff, namely, Dr. McHugh and Dr. Robbins. As set forth above, Dr. Mc-Hugh found that the plaintiff had a disability of 15% or 20% and Dr. Robbins found that he had a disability of 25%. Neither one of these doctors connected the disability with the accident, but, on the other hand, they failed to attribute the disability to any other cau'se, and the trial judge apparently gave the plaintiff-employee the benefit of the doubt. We can see no manifest error in his having done so. The gist of the testimony of Dr. Moore, the Osteopath, and of Dr. Thom, both of whom treated plaintiff, is to the effect that his disability is the result of his accidental injury. Dr. Godfrey, the Company physician, apparently believes that he is a “malingerer”, as did Dr. Kahle and Dr. Brostrom, but these experts merely point to possibilities, and not to anything certain, in attempting to establish the malingering of plaintiff.

In the present case the issue seems to be strictly whether the injury sustained by the plaintiff has affected his capacity to work as a common laborer, the work he was doing at the time when he was injured, or to work at his trade in the cleaning and pressing business. We do not find any reason to disagree with the trial judge’s conclusion that the plaintiff had a partial disability. Plaintiff is therefore entitled to recover under paragraph (c).Subsection 1 of Section 8 of Act No. 20 of 1914, as amended Act No. 242 of 1928, p. 357. That paragraph provides for compensation for an inju'ry producing partial disability to do work of a reasonable character at sixty-five per cent, of the difference between the wages at the time of injury and wages which the injured employee is ablé to earn thereafter during the disability, not beyond three hundred weeks. As set forth hereinabove, in the discussion of the issues, and as brought out by the testimony of L. E. Sandretta, who was in charge of the office of the defendant company, the plaintiff earned 550 an hour for 40 hours a week, plus time and a half for overtime and according to his contract of employment at the time of his -injury, he was working a minimum of 56 hours a week, so that -his weekly wage was 550 for 40 hours, or $22, and 82.5 cents for 16 hours, or $13.20, making a total of $35.20 per week, which appears to be his correct weekly salary. Under plaintiff’s testimony, he made as much as $25 a week thereafter in his chosen trade or occupation. This makes a difference o-f $10.20 between the wages he was receiving at the time of injury -and the wages he was able to earn thereafter, and 65% of which is the sum of $6.63. The judgment appealed from will be amended so as to allow plaintiff compensation to that amount.

The plaintiff contends that the district court erred in not granting an expert fee to Dr. Coyt Moore. In his reasons for judgment, after allowing the bill of Dr. Moore in the amount of $189, the trial judge states: “I do not think however that in addition to this sum Dr. Moore should receive expert witness fee, as his testimony consisted largely of his treatment and diagnosis of plaintiff’s condition.” We find no error in his ruling.

Plaintiff also complains of the dis-allowance of a claim for $22 representing the amount charged by Francis Julius, photographer, for taking pictures of plaintiff’s shoulder, and also the failure to grant an expert fee to the said Francis Julius. The trial judge was of the opinion that the charges were not a legitimate item of costs. We are in accord with the trial judge’s ruling.

Plaintiff also complains of the dis-allowance of his expenses in going to and from New Orleans. The trial judge found that the proof was insufficient to sustain an allowance. In his brief, plaintiff claims that an allowance of $10 per trip is a reasonable one. The record is barren of any proof that plaintiff expended such an amount lor bus or railroad fare, meals or other expenses. The trial judge was correct in his ruling.

For these reasons assigned, the judgment appealed from is hereby amended by increasing the rate of compensation from $4 per week to $6.63 per week and as thu's amended the judgment is affirmed.


author: LE BLANC, Judge.

text:
    JEFFERSON COUNTY STOCK YARD v. WASHINGTON PARISH LIVE STOCK COMMISSION CO. et al.
    No. 3096.
    Court of Appeal of Louisiana. First Circuit.
    March 7, 1949.
    Rehearing Denied April 19, 1949.
    Writ of Certiorari Denied May 31, 1949.
    ' Ponder & Ponder, of Amite, and Truly & Truly, of Fayette, Miss., for appellant.
    Ott & Richardson, of Bogalusa, for ap-pellee.
   LE BLANC, Judge.

. Plaintiff sued the Washington Parish Live Stock Commission Company which, he alleges, is owned and operated by P. L. Cobb and his wife, Mrs. Beatrice Hughes Cobb, the said P. L. Cobb and Mrs. Beatrice Hughes Cobb, and also the Century Indemnity Company, on an obligation arising out of the sale of certain live stock and for which a check in the sum of $1023.47 had been given in payment but was returned unpaid. Whilst all defendants were cited and proper service was made on all of them, only the Century Indemnity Company has made an appearance in the suit and that was to file an exception of no right and no cause of action which' was ' sustained in the trial court. From a judgment rejecting the demand made and dismissing the suit as to that defendant, the plaintiff has taken and perfected -this appeal.

In its petition plaintiff alleges that the Washington Live Stock Commission Company was compelled by statute to post a bond with the Louisiana State Live Stock Sanitary Board, which bond was furnished by the defendant, Century Indemnity Company, indemnifying' them as 'well as all others who sold cattle to Washington Parish Live Stock Commission Company, from any loss occasioned by reason of the sale on commission or consignment, or as broker and trustees, or violation of any trust. It is then alleged that on December 1, 1947, petitioner sold to Washington Parish Live Stock Commission Company, P. L. Cobb and Mrs. Beatrice Hughes Cobb, .19 head of cattle for the purpose of resale at the Franklinton barn and was paid by check in the amount already stated, which check, as also stated before, was returned unpaid and remains unpaid despite repeated amicable demand. After setting out that it is the owner and holder of the said check which represents the value of the cattle that were sold at the barn, within the provisions of the clauses of the bond posted by Century Indemnity Company, plaintiff seeks to hold that company on the ground that it had indemnified it and others dealing with the Washington Live Stock Commission Company, for a valuable consideration, from the loss it had sustained.

Plaintiff annexed, the check, on which the demand is predicated, to its petition. Upon examination it is found to be a check signed as follows: “P. L. Cobb, by Lewis Edwards.” A copy of the bond posted by the defendant, Century Indemnity Co., is also filed in the record. It is shown to be a bond in which Mrs. Beatrice Hughes Cobb appears as principal and Century Indemnity Co., as surety. The condition of the bond is as follows: “The condition of this obligation is such that if the above bounden Mrs. Beatrice Hughes Cobb shall well and faithfully discharge and perform the duties and obligations imposed by Act No. 104 of 1944 upon him or incumbent on him as market agency, or market dealer, customarily handling not less than five nor more than twenty-five head of live stock per week at his establishment located at Franklinton, Louisiana, within the State of Louisiana, then in such case the above obligation shall be null and void; otherwise same shall remain in full force, virtue and effect under the provisions of said Act and other laws of the State of Louisiana.”

The exception is based on three separate grounds: The first is, taking it for granted, as alleged, that the Washington Parish' Live Stock Commission Co. is owned and operated by P. L. fcobb and his wife, and presumably therefore is owned by the community existing between them, the obligation sued on can only be enforced against the husband' as head and master of that community. The principal whose obligations the surety company indemnified in the bond is Mrs. Beatrice; Hughes' Cobb who did not sign the check and cannot be held liable for its payment. The second ground is that the bond, being á 'Statutory bond, is limited by the provisions of the statute under which it was given, namely Act No. 104 of 1944, and under the terms of' that act, nothing like the obligation sought to be enforced is contemplated. Thirdly, it is urged that the check, having been signed through some one else than the drawer himself, it was necessary for the petition to have shown that some form of agency or power of attorney existed in favor of the party who signed it for him.

We are of the opinion that all three points urged in favor of the exception are good. The trial judge did not assign reasons for judgment and we do not know therefore whether he sustained all three of them or only one or two. One of course was all that was necessary to decide the case on and since we believe that the second we have mentioned is the most convincing, we will dispose of it on that ground.

Act No. 104 of 1944, under the terms of which the bond in this case was posted, is intended to regulate the business of buying or selling live stock. It provides that all persons, firms, corporations and or associations, acting as Market Agencies or Dealers, as those terms are defined' in the act itself, when engaged in' the business of buying and or selling livestock “either at a public stock yard or at a privately owned sales pen(s) or concentration point, or on a commission basis, shall secure an annual permit from the Louisiana State Live Stock Sanitary Board, for the privilege of conducting such business, * * By' the terms of Section 4 of the act, such persons, firms, etc. “conducting public live stock sales shall keep complete records of all sales ánd purchases for each period of twelve months. The said record shall consist of the name of seller; the number of the sales tag of the animal; the weight and price of the animal and the name of the purchaser. * * *” Sec. S is the one dealing with the bond requirement and it provides that “every Market Agency and Dealer, shall on or before the date of commencement of operations, execute and thereafter maintain, or cause to be executed and maintained, a bond payable to the Secretary and Executive Officer of the Louisiana State Live Stock Sanitary Board for the use and protection of live stock producers and or shippers to secure the performance of their obligations incurred as such Market Agency or Dealer, and shall immediately file or cause to be filed with the Secretary and Executive Officer of the Louisiana State Live Stock Sanitary Board, a fully executed duplicate of such bond. * * * ”

It is clear that the act was intended to regulate the business of buying and selling of live stock either at public stockyards or privately operated pens or concentration points, or, if at any other place, on a commission basis. It was not intended, we are sure, to apply to such purchases of live stock as was made in this case where the market agency or dealer goes to a man’s farm or ranch, buys so many head of cattle from him and pays cash for them. We doubt very much that, a person could induce a surety company, even at a handsome premium, to post a bond guaranteeing all the obligations incurred by him in such transactions. Certainly the statute does not contemplate the posting of such a bond. The only bond required is one to secure the performance of a “Market Agency or Dealer,” as those terms are defined in the Act, of conducting his business as such, under the provisions of the statute. Counsel for plaintiff would have the words “Market Agency or Dealer” taken in their general and broad meaning and in that way, they contend, the bond covers and protects such a transaction as the one in this case. But in view of the well defined meaning of those two terms, as appears in the act, their general meaning cannot be applied. As restricted in the definitions given, the terms refer to such persons, firms, etc., only as do business in selling and buying live stock in commerce or on a commission basis, either at a public stockyard or a privately owned and operated sales pen or concentration .point. The bond in this case having been posted in conformity with the provisions of the act, is strictly a statutory bond and as such is controlled and restricted by the terms and provisions of that act. Davis v. West Louisiana Bank, 155 La. 245, 99 So. 207; Davis v. West Louisiana Bank, 155 La. 252, 99 So. 210; John H. Murphy Iron Works v. U. S. Fidelity & Guaranty Co., 169 La. 163, 124 So. 768.

The judgment appealed from is affirmed at the costs of plaintiff, appellant herein.