author: JANVIER, Judge.

text:
    MATHEWS FURNITURE CO., Inc. v. LA BELLA.
    No. 19427.
    Court of Appeal of Louisiana. Orleans.
    Jan. 30, 1950.

      Benjamin Washastrom and E. I. Ma-honey, New Orleans, for defendant and appellant.
    Weiss & Weiss and Harold Marx, Jr., New Orleans, for plaintiff and appellee.
   JANVIER, Judge.

Plaintiff 'corporation is engaged in the retail furniture business in New Orleans. It brings this suit against Charlés La Bella and prays for judgment in the sum of $118.75, with 8% per annum interest and attorney’s fees at 20% on the total amount. The suit is brought on a note executed by Mrs. Charles La Bella on December 19, 1947, which is alleged to have been given by Mrs. La Bella for certain household furniture purchased by her. The note was originally executed for $168.75, and is payable $16 on the date on which it was executed, $15 on the delivery of the furniture and the balance at the rate of $11.55 per month. It provides for interest at the rate of 8% per annum on each installment from its due date and for attorney’s fees at 20% on the aggregate amount which might be due should it be necessary to employ an attorney. And it also contains an acceleration clause under which failure to pay any installment at its maturity matured the entire unpaid balance.

It is alleged that Charles La Bella is liable on the note executed by -his wife because “the goods, wares and merchandise purchased, the payment of the purchase price of which was secured by said note, constituted necessites, and because said purchases were authorized, approved and ratified by the defendant, Charles La Bella.” It is alleged that there is an unpaid balance of $118.75 due on the said note.

La Bella filed exceptions of no right of action and of no cause of action and of vagueness, and at the same time, as required by the rules of the First City Court of New Orleans, he filed an answer in which, for lack of information, he denied all the material allegations of the petition and averred that he at no time failed to provide his wife with all necessites of life. He averred, too, that at no time did the plaintiff corporation look to him for payment, and that it had extended the credit to Mrs. La Bella from whom he had' been living separate and apart “for a number of months.”

Defendant also averred that Mrs. La Bella had gone into bankruptcy; that plaintiff had appeared in the bankruptcy proceedings for Mrs. La Bella, and that until the institution of the bankruptcy proceedings of Mrs. La Bella, plaintiff had made no attempt to collect the note from him.

The exceptions were overruled, and after a trial there was judgment for plaintiff as prayed for. Defendant has appealed.

We are not at all certain that the entire controversy could not have been decided on the exceptions of no cause of action and no right of action, but since the matter went to trial on the merits and since evidence was adduced and that evidence, which clears up certain facts concerning which the allegations were possibly slightly vague, is now before us, we think it best to consider it.

It is contended on behalf of defendant that whatever may be the effect of Article 120 of our Civil Code, and regardless of the fact that it has often been held that as a result of that article one who, on the credit of the husband, provides the necessities of life to the wife, may recover the price of those necessities from the husband who may have failed to provide them, this is true only where the credit has been furnished to the husband, and is not true where obviously the sale was made to the wife on her own credit and the merchant who provided the necessities expected to receive payment from her.

The question of what effect should be given.to Article 120, as between the husband and the person who may have furnished the necessities of life to the wife, has been many times considered by the Courts of this State, and several of these decisions have been called to our attention. We have given consideration to Van Horn v. Arantes, 116 La. 130, 40 S.E. 592; Schaeffer v. Trascher, 16S La. 315, 115 So. 575; Standard Manufacturing Co. v. Dupuis, 6 La.App. 476; Keller-Zander, Inc., v. Copeland, La.App., 196 So. 527 and D. H. Holmes Co., Ltd., v. Morris, 188 La. 431, 177 So. 417, 114 A.L.R. 905.

As a result of these decisions and several others we find ourselves in no doubt at all that where the articles furnished are such as the husband should have provided “for the convenience of life, in proportion to his means and condition,” and it appears that the husband- did not furnish these articles, and it further appears that the person who furnished the articles did so under the belief that he was furnishing them on the credit of the husband, he may recover the value or price thereof from the husband.

We have some little doubt concerning the question of whether the person, who attempts to recover from the husband under such article, is under the burden of proving that they were necessities and that the husband did not furnish them, or whether the husband, who is sued, must set up in defense that the articles were not necessary, or that he himseslf had already adequately provided for the wife. This doubt on our part as to where lies the burden of proof in such a situation results from our fear that if the merchant, who provides necessities to the wife, may do so only after investigating these facts and after determining that the husband has failed to provide them and then must bear the burden of proving those facts, possibly the object which is sought to be accomplished, that is, to give the wife the right to obtain food or real obvious necessities, may be defeated.

We recognize, of course, that we ourselves said in Keller-Zander, Inc., v. Copeland, supra [196 So. 529], that “a third person who has extended credit to a wife can invoke the codal provision only in cases where it is shown that the husband has failed or has refused to supply her with such necessaries”, thus indicating that the burden is on the person who furnishes the supplies. And we realize, too, that in D. H. Holmes Co. Ltd., v. Morris, supra, the Supreme Court came very close to saying the same thing when, in reaffirming what it had previously said in Schaeffer v. Trascher, supra, that Court said [188 La. 431, 177 So. 419]: “ * * * that there was no authority for any outsider to take upon himself ex humanitate, the duty of the husband to furnish his wife the necessaries of life, unless the husband failed or refused to perform that duty. * .* * ”

If we felt that it is well and completely established by those, or by other decisions, that the burden is on the merchant to produce such proof, then we could at once decide the case on the fact that the merchant, who is plaintiff, and who sold the furniture to the wife, has completely failed, we think, to prove either that the articles were necessaries or that the husband had failed to adequately provide all such necessities. Being in some doubt on that question, however, we prefer to base our conclusion on what we consider a firm legal foundation — that where the merchandise is sold to the wife and obviously the credit is extended to the wife in her own name and not as the agent for the husband, and not because the merchant is attempting to provide those things, which under Article 120 of the Code the husband should have provided, there can be no recovery from the husband unless it is shown that he has authorized or ratified the purchase.

We realize that in Standard Manufacturing Co. v. Dupuis, supra, this Court considered facts which, at first, might seem to present the identical legal question which is now before us. There the wife gave notes for the purchase price of a pleating' machine and when she failed to pay those notes, suit was brought against the husband. It was held that the husband was liable. This Court said that in such a case “a husband is liable, not on the note, but for it.” We see, however, at least two reasons for distinguishing that case from this. There it was not contended that the pleating machine was a necessary article which the husband had failed to furnish. It was not contended that Article 120 of the Civil Code had any application to the situation. The only contention of the husband was that the pleating machine was used by the wife in carrying on a business, trade, occupation or industry separate from her husband and that therefore since, because of the effect of Article 2334 of the Civil Code, as amended by Act No. 186 of 1920, the wife’s earnings were her separate property, the husband was in no way concerned with or liable for the purchase price of the pleating machine. The Court then found that there was “no evidence at all that the pleating machine enured to the benefit of the wife” and that she “did not carry on a business, trade, occupation or industry such as the law contemplates and provides for.” Having found then that the wife used the machine “for the benefit of the community”, the Court said that the husband should be held liable for its purchase price and, therefore, could be held for the amount of the note, not on the note, but for it. Article 120 of the Civil Code was not referred to in the entire decision.

Furthermore, the Court held that the husband could be held liable because of his tacit ratification of the purchase of the pleating machine, saying: “ * * * He saw this machine brought and set up in the house; it has been there for more than a year. He never objected to this being done; he is therefore just as liable for it as if he had ordered it himself.”

Even had the Court considered the contention which is here made that the credit was extended to the wife in her own name and not as agent for the husband, it is possible that, because at that time Act No. 283 of 1928 had not been passed, the same conclusion which it had reached would have been arrived at. By that statute the amancipation of women was completed. By it, says the Supreme Court in D. H. Holmes Co., Ltd. v. Morris, “ * * * married women were declared fully emancipated and relieved of all of the incapacities to which, as such, they were theretofore subject, and were empowered to enter into contracts and obligations of all kinds, without the authority of the husband or of the judge. * * * ”

Bearing in mind that when Standard Manufacturing Co. v. Dupuis, supra, was decided the act of 1928 had not been passed, it must be realized that possibly had the contention, which is now made, been presented, the Court would not have accepted it as sound for this reason: If, at that time, the purchaser of the pleating machine, the wife, who gave the note, was not authorized by law to bind herself, then the vendor of the pleating machine, as a matter of law, could not have looked to her for payment and could have looked only to the husband as head of the community to which the sale was made. The note was an absolute' nullity i It had no effect whatever. It was nothing more than a scrap of paper.

Not so here. As á result of the emancipatory statutes, the last of which was the act of 1928, a wife has full authority to enter into any obligation in her own name, and Mrs. La Bella had full authority to bin'd herself for such purchases as she might desire to malte.

If, considering the condition in life of her husband, the furniture which she bought could be classed as necessary, and if the husband had not already furnished it, she could have bought it and the merchant who sold it could have looked to the husband for payment had he sold it for account of the husband. Obviously he did not do so, but sold the furniture to the wife on her own credit and accepted her note. He cannot look to the husband.

Where a wife makes a purchase on her own credit she may be held liable. This was held in D. H. Holmes Co., Ltd. v. Morris, supra.

In Keller-Zander, Inc. v. Copeland, supra, we found a case in which a husband and a wife had separate accounts at a local store. The purchases sued on had been made by the wife and had been charged to her own account. When payment was not forthcoming, the merchant attempted to make collection from the husband. We said [196 So. 528]: “ * * * the goods were charged to the account of Mrs. M. Copeland just as other articles had been charged to her account in the past and it was only after the plaintiff discovered that she was not going to pay her bill that it belatedly took the position that Mr. La Riviere [the husband] was liable.” (Brackets ours.)

In Schaeffer v. Trascher, supra, purchases were made by a wife who was living apart from her husband. It was held that the husband was not liable. Although the wife and the husband were not living together, the decision was based on the fact that the purchases were made by the wife “ * * * in her own behalf and on her own exclusive credit * * *[165 La. 315, 115 So. 576.]

We conclude that where a merchant sells to a married woman on her own exclusive credit and takes her own note, he may not later look to the husband for payment unless .it-appears.that the husband either authorized the purchase or later ratified it. And we have no hesitation in saying, from the record here, that the husband did not authorize the purchase and did not later ratify it. We find nothing to contradict his statement that, although at times he and his wife may have lived together and he may have noticed that the furniture was present, he had furnished all necessary furniture and did not know the source from which this particular furniture was obtained.

Counsel for plaintiff have vehemently argued that it is not practical in the furniture business to require, that the husband be present and authorize the purchase or to require that the husband sign such note as may be demanded. Counsel say that many times sales would be lost if it was required that the husband be present. That is a misfortune under which the merchant labors, but if he chooses to take a short cut and to sell directly to the wife, he does So at his peril.

For the reasons assigned, the judgment appealed from is annulled, avoided and reversed, and plaintiff’s suit is now dismissed at its cost.

Reversed.


source: Caselaw Access Project

author: TALIAFERRO, Judge.

license: Public Domain

text:
    WHITAKER v. SNEED.
    No. 7440.
    Court of Appeal of Louisiana. Second Circuit.
    Jan. 31, 1950.

      W. M. Phillips, Shreveport, for appellant.
    Stephens & Allen, Shreveport, for ap-pellee.
   TALIAFERRO, Judge.

Plaintiff sued to recover a balance due him on the price of construction of a plain stucco building, 18' x 27' at the corner of Texas and Jordan Streets in the City of Shreveport, Louisiana. Defendant owned the lot and another building thereon, which was at the time being used as a cafe. The contract for the construction of the new building, regrettably, was not reduced to writing. There were no written plans and specifications. This fact adds to the difficulty attending a solution of the factual issues that abound in the case.

When defendant first mentioned to plaintiff his desire for a small, plain building, the latter stated that he had recently constructed such a building on Line Avenue in the city, and suggested that defendant go with him to look at the same, thinking that from an inspection thereof defendant would be assisted in deciding what he wanted in the way of a building. This was done and immediately thereafter an agreement was reached by the parties. The Line Avenue building consisted simply of four walls, floor and roof. It was of stucco finish and was provided with one door, one window, one ceiling light and one gas outlet. It measúred 12' x 16'.

There is wide variance between.the parties as .concerns the terms of the contract, and the basis of pay for constructing the building. To begin with, defendant contends that it was originally agreed that it was to be 18' x 27', whereas plaintiff contends that the original understanding was that it should be 18' x 20', and that subsequently, at defendant’s request, its length was increased to 27'. It was agreed, however, that as to general outlines and character of material the building should be a duplicate of the one on Line Avenue.

The size of the. finished building has important bearing upon the merits of the controversy in view of the'sharp difference between the parties as concerns the basis of remuneration plaintiff was to receive for completing the structure. It is shown that in calculating th.e cost to construct a building, the amount of floor space is a, if not the, determining factor.

The Line Avenue building has 192 square feet of floor space. It cost approximately $4.68 per square foot. Plaintiff testified that he agreed to construct the building at a cost per square foot not in excess of' that of the Line Avenue building, and since defendant’s building has 486 square" feet of floor space, on this basis, it should have cost $2,289.00.

Defendant is positive that in addition to erecting the building and furnishing all material and labor necessary therefor, plaintiff agreed and obligated himself to do the following, viz:

1. Install four ceiling lights and four wall plugs;

2. Furnish and pay for the labor and material to complete the electrical system;

3. Provide, install and properly connect with water and sewerage lines, a sink;

4. Build some shelves,- a counter, and install some stools for use of patrons while eating;

5. Remove a small structure necessary to provide adequate ground space for th,e new building, and pour a, concrete floor therefor.

He testified that all of this, plus the building proper, was to cost him only $2,-000.00.

It will be noted that all of the work and material embraced in the five numbered items is in excess of that put into the Line Avenue building, save one ceiling light and one gas outlet.

Plaintiff’s version of the terms of the contract is this:

He originally agreed to construct complete a building 18' x 20', provide all labor and material therefor, and install two ceiling lights and one base plug, on a cost plus 12% per cent basis. He says that he assured defendant that the final cost of the building would be around $2,000.00. He also testified that when laying off the ground for the foundation of the building, the defendant stated that he wanted the building to cover all of the lot except some nine feet, adjacent to his line, so as to leave space for vehicles to pass over, and that this is the reason the building’s length was extended seven feet.

It is not seriously questioned by defendant that in addition to completing the building satisfactorily, plaintiff provided the labor and furnished the material necessary to do that which was comprehended in the five items above described; and plaintiff testified that he did so by authority of defendant or his agent. But, defendant contends he did not authorize the extras and, therefore, he is not responsible for the cost of them.

Defendant admits that while the work was in progress he did authorize plaintiff to purchase and install an attic fan, and to build a barbecue pit in the building, the bricks for which he furnished. The fan cost $146.75 and the pit cost $383.39, making a total of $530.14. These amounts defendant paid on October 29, 1948, and do not have further importance in the case. He does not concede that he is liable for the cost of installing the attic fan.

Eliminating from the account the $530.-14, leaves it in this condition:

Cost of material and labor to complete the building according to plaintiff’s version of the original contract, as amended by increase in length of building, after eliminating charge error of $40.82. $1,847.99

12%% thereof. 231.00

Cost of material and labor to perform items 1 to 5. 971.79

12%% thereof. 121.47

12%% of the $530.14 payment.. 66.27

Total $3,238.52

Credits Nov. 12, 1947.. $2000.00

12%% of charge error of $40.82. 5.10 2,005.10

Balance Due $1,233.42

Plaintiff sued for $1,284.44. There was judgment in his favor for $1,238.51. This takes into account the error mentioned above, but does not give credit for the $5.10 to which referred. The trial judge gave lengthy written reasons to support his judgment. Defendant appealed.

It is not seriously contended by defendant that any part of the material charged to plaintiff and that furnished by him from his own warehouse did not find its way into the construction of the building. Nor is it contended that the charges for either the material or labor are, to any extent, excessive.

Plaintiff is a construction contractor of fifteen years experience. During the year preceding the trial of this case contracts executed by him involved around one-quarter of a million dollars. Evidently, he is competent in this field of activity. It would do violence to his reputation for ability and competency as a building contractor, to accredit him with having agreed to construct a building for $2,000.00, that, in fact, actually cost over $3,000. He could not long stay in business if his judgment was so fallible.

This building was primarily constructed to serve as a place in which to barbecue and retail over the counter meats of various kinds. Defendant’s kinsman, one Hornsby, had been selected to conduct the business as soon as the building was completed. He remained on the ground as defendant’s agent, while work was being done, and defendant admits that he had full authority to represent and bind him in all matters concerning the construction of the building. Defendant seldom visited the scene of the work. Plaintiff was represented by his foreman, one Aldridge. Whatever extra work Hornsby desired done he went with it to Aldridge and he invariably did or had done all that Horns-by requested. Aldridge testified that either defendant or Hornsby authorized the extra work to be done.

Plaintiff testified, and we think truthfully, that at the beginning, defendant told him all he wanted was a plain building of four walls and a barbecue pit; that he would sell the barbecued products in the cafe adjoining. The sink was not considered until defendant was informed by someone that the Board of Health required it.

Evidently, while work on the building proper was in progress, deféndant and Hornsby changed their plans. They decided to conduct the retail of meats in the building and this required the construction of shelves, the counter and the installation of stools. It also required the use of an electric meat grinder and a walk-in ice box in which to keep fresh meats. The electrical wiring had been completed so as to serve the building as plaintiff says he originally agreed to construct. To operate the grinder and ice box, this wiring, in material respects, had to be changed. These facts are pointed to by appellee as corroborative of the contention that originally the meat grinder and ice box were not under consideration; and therefore, only light wiring was necessary.

The building was completed about September 15th, some sixty days after work began. Defendant paid the $2,000.00 some two months thereafter. The matter of the cost of the building was then discussed by him and plaintiff. Defendant thought some of the charges were excessive, and asked for itemized bills. These were given him soon thereafter, and repeated demand for payment made, but ignored. It is also pointed out that had the price been fixed at $2,000.00 defendant would not have been interested in itemized bills. He made no further payment until November 12, 1948, and this was done only after plaintiff’s attorney had made demand therefor. Anent this phase of the case, the lower Court said:

“and thereafter (after payment of $530.-14 on November 12, 1948) was the first plaintiff heard about the contention that the $2,000.00 was to cover the contract price. Hence, we do not think that defendant’s action is in line with that of a person who, in his own mind, had made a flat contract of $2,000.00, and when the work had been completed would have gone down and paid the $2,000.00 and said ‘here’s your money’; he would not have asked for itemized bills, etc.”
******
“We think defendant has received from plaintiff a building which cost the amount stated by plaintiff and that he should pay for it, believing that plaintiff has made out his case; and that defendant did not satisfactorily prove his defense.”

We agree with the Court’s resolution of the factual issues in the case, and, for the reasons assigned, the judgment appealed from is reduced to One Thousand Two Hundred Thirty-Three and 42/100 ($1,-233.42) Dollars; and as thus amended, it is affirmed with costs.


author: KENNON, Judge.

text:
    COMMERCIAL CREDIT CORPORATION v. SETLIFF.
    No. 7363.
    Court of Appeal of Louisiana. Second Circuit.
    Jan. 4, 1950.
    Rehearing Denied Jan. 31, 1950.

      Vance Thompson, Alexandria, for appellant.
    Polk & Culpepper, Alexandria, for ap-pellee.
   KENNON, Judge.

Alleging that it was the holder in good faith for value and before maturity of a promissory note executed by defendant in favor of Pierce Brothers, plaintiff sued to recover $459.25 alleged to be the balance due, together with interest and 25% attorney’s fees.

Defendant in answer admitted his signature on the instrument but set forth that he thought he was signing an order for the meat display case involved and defended further upon the ground that- the equipment covered by the note had never been delivered by Pierce Brothers; that the plaintiff, Commercial Credit Corporation, had in course of its previous dealings with Pierce Brothers been put on notice and “guard” that Pierce Brothers were not delivering merchandise in some instances even though the act of sale and chattel mortgage set forth that merchandise had been in fact delivered; that Pierce Brothers, and not himself, had paid the first seven installments of the note sued on; that plaintiff was in bad faith and the demand should be accordingly rejected.

In a supplementary answer, defendant set forth that the payee of the note, Pierce Brothers, was an agent of plaintiff, Commercial Credit Corporation, in making credit sales of merchandise and that the note and chattel mortgage sued upon had been delivered by Pierce Brothers to plaintiff’s office before the figures and data had been filled in and before any witnesses had signed; that the plaintiff caused its own employees to sign as witnesses and one of its own employees to sign an acknowledgment to the act of mortgage in which it was stated under oath that this employee of plaintiff had seen the defendant execute this act of sale, when in fact and in truth such witness had not seen defendant sign nor been present when the documents were executed.

The District Court found for plaintiff and the case is before us on defendant’s appeal from that judgment.

Plaintiff, the Commercial Credit Corporation, engaged in the business of buying installment paper secured by chattel mortgage, and in June, 1947, maintained an office in the Guaranty Bank Building in the City of Alexandria, Louisiana. Pierce Brothers operate a retail merchandise establishment and place of business some twelve blocks distant from the office of the plaintiff corporation. On June 23, 1947, defendant entered this establishment and Pierce Brothers’ representative, a M-r. Estrada, showed him a meat display counter, which defendant agreed to purchase for a price of $950, of which $250 was to be paid on delivery ($100 by the delivery of an old box and $150 in cash). At Estrada’s request, Miss Doris Daniel, another employee of Pierce Brothers, prepared an act of sale and chattel mortgage showing a total consideration of $1,001.50 ($51.50 being for carrying charges). The instrument recited that the meat display counter had been that day sold and delivered; that the seller had received $250 in cash and purchaser’s note for the $751.50 balance. This amount of $751.50 was filled in on a promissory note form with Pierce Brothers as payee and with the amounts payable at the office of plaintiff, Commercial Credit Corporation, New Orleans, Louisiana. Defendant signed both the note and chattel moi'tgage at the place where an X mark had been made.

The meat display counter was not delivered that day nor subsequently. No payment was made by defendant and his order for the merchandise was canceled some weeks later.

The first sheet of the act of sale and chattel mortgage was notarial in form, reciting that J. R. Estrada personally appeared to represent Pierce Brothers as seller and that Johnnie Setliff, Jr., defendant, personally appeared before the notary as buyer. The document was signed, above the signature of Johnnie Setliff, Jr., “Pierce Bros, by Doris Daniel.” No notary or witness signed the act of sale while same was in the office of Pierce Brothers.

Subsequent to. the execution of the note and act of sale and purchase by Setliff, it was' carried by Miss Daniel to the office of Commercial Credit Corporation. There it was witnessed by two employees of plaintiff, who in fact had never seen defendant or been near the Pierce Brothers place of business when the transaction was made. One of these witnesses appeared before a notary public, who was secretary to plaintiff’s attorney, and executed an acknowledgment stating that she executed the instrument as a subscribing witness and that same had been signed by defendant in her presence and in the presence of the other subscribing witness.

The note was payable in monthly installments of $41.75 each. Pierce Brothers, after no delivery of the display counter was made, agreed to meet the installment payments. It paid two installments on August 29, 1947, two more on November 29, 1947, a fifth one on December 29, 1947, a sixth one on February 10, 1948, a seventh one on March 3, 1948, making its last payment on November 23, 1948. No other payments were made by Pierce Brothers.

Early in 1948, plaintiff gave to defendant the first notice he had that it, or any one else, was claiming that an indebtedness was due by him by virtue of the June, 1947 transaction. Defendant promptly went to plaintiff’s Alexandria office. Plaintiff’s representative, in the presence of defendant, called Pierce Brothers’ office on the ‘phone. Defendant’s version of what plaintiff’s agent said — and we think the record bears out the truthfulness of his statement — is as follows: “A. He called them and told them he had been out to my place and it cost him ten dollars, and kinda winked at me, which I knew he hadn’t, and that he was tired of them sending victims up there, that I was the sixth victim, and called my name and told them he was going to put them out of business and stop their business up there if they didn’t straighten up that deal or something to that sort.”

No further action was taken until November, 1948, when this suit was filed against the maker of the note. Pierce Brothers was not made a party defendant.

Since the meat display counter was never delivered, there is no question but that there was a complete failure of consideration for the note sued upon. Apparently, Pierce Brothers acquiesced in the cancellation as the record shows that Pierce Brothers informed the Commercial Credit Corporation that no delivery had been made and agreed to “pay the box off on a monthly basis” and actually made eight of the eighteen monthly payments.

The Louisiana Courts have adopted the generally accepted rule that once the defendant has established want of consideration or other defect in the title of one transferring a negotiable instrument, the burden is then upon the holder not only to show that he took the instrument in good faith for value, but also to go further and prove want of knowledge on his part of the infirmity or illegality. The rule is described in 11 C.J.S., Bills & Notes, § 654, p. 66, as follows: * * * it is now very generally held that the Negotiable Instruments Act adopted the minority rule, and that the holder’s burden is not fully met by proof that he acquired the instrument before maturity and for value, but that in order to discharge the burden imposed by the statute, it is incumbent on him to prove every fact necessary to constitute him a holder in due course, namely, that he took the instrument before it was overdue, without notice of any previous dishonor, in good faith for value, and without notice of any infirmity in the instrument or defect in the title of the person negotiating it. To satisfy this burden, the holder is required to disclose the facts that are peculiarly within his knowledge tending to show his good faith, or, as it is sometimes expressed, he must show all the circumstances under which he took the paper, with a view to determining his good faith as a holder; * *

The following quotation from Judge Higgins’ opinion in the case of Tolmas v. Norwood, 15 La.App. 492, 132 So. 148, shows that the Louisiana Courts have followed this rule for many years:

“In the case of Steeg v. Codifer, 157 La. 298, 102 So. 407, 409, the Supreme Court said: ‘As between the maker and payee of said note it is clear, therefore, that the defense of fraudulent misrepresentation has been established. This being true the burden rested upon plaintiff to prove good faith and want of knowledge of such equities. Neg.Ins. Law, § 59.’ Act No. 64 of 1904.

“In the case of Stevens v. Sonnier, 11 La.App. 398, 122 So. 894, 897, the proof showed that the consideration for the note had failed, but the holder of the note sought to avoid the effect of failure of such consideration by showing that he was an innocent holder of the notes before maturity, etc. The court said: ‘Therefore the burden of proof is upon Stevens (the holder of the notes) to sb.ow that he acquired them in due course, in good faith, and before maturity, and without notice of any infirmity or defect in title, as he claims to have done. Act 64 of 1904, § 59.’ ”

We examine the case before us to determine if plaintiff has sustained its alleged position as a bona fide holder. The record shows that there was a close relationship between Commercial Credit Corporation, plaintiff, and Pierce Brothers, the payee of the note. Mr. Estrada, Pierce Brothers sales manager, testified that all the credit sales be handled were on forms provided by plaintiff. These forms (the note sued upon is on one of these) make the obligation payable at the office of the Commercial Credit Corporation. In the act of sale and chattel mortgage, it is again specified that the installments are payable at the office of the Commercial Credit Corporation.

The proof is plain that at the time the act of sale was signed there had been no delivery and no down payment had been made. Plaintiff’s agent caused two of its own employees to subscribe their names as witnesses to the act of sale and further caused one of these employees to execute a notarial acknowledgment setting forth that she had witnessed the signing of the instrument by defendant in her presence and in the presence of the other subscribing witness.

The record further establishes that plaintiff’s agent knew .that Pierce Brothers had negotiated other notes, each secured by chattel mortgage and act of sale, reciting delivery of equipment which in fact had not been made. The fact that plaintiff’s knowledge or acquiescence in this practice of Pierce Brothers is indicated, at least, by its accepting the past due monthly payments from Pierce Brothers — without making demand upon defendant.

In the case of Collins v. Magee, 15 La.App. 66, 130 So. 267, 270, we find a resume of authorities as to what constitutes notice of infirmity in the title to a negotiable instrument, dating back to the first Louisiana Annual. After quoting Section 56 of the Louisiana Negotiable Instrument Act,Act No. 64 of 1904, the Court quotes a case from Lanfear v. Blossman, 1 La.Ann. 148, 45 Am.Dec. 76, as approving the statement by Story on Bills of Exchange that express notice of the infirmity is not indispensable and cites Ruling Case Law as authority for the proposition that for such a holder to successfully establish a case of good faith, “ ‘It should appear also that the facts and circumstances attending the transfer were not such as to charge the transferee with notice of a defect or infirmity in the paper’—citing, as authority, Vairin v. Hobson, 8 La. 50, 28 Am.Dec. 125.”

Our conclusion is that no consideration was given to defendant for the note sued upon and that plaintiff has failed to show that it was the purchaser of the note without notice of this infirmity. On the contrary, we find that the record shows that the facts and circumstances attending the transfer of the note were such as to charge the plaintiff with notice of the infirmity in Pierce Brothers’ title to the note.

The judgment appealed from is reversed and judgment is now rendered dismissing plaintiff’s suit, with costs of both Courts.


author: TALIAFERRO, Judge. KENNON, Judge

text:
    COULON v. CITY OF ALEXANDRIA (EMPLOYERS’ LIABILITY ASSUR CORPORATION, Limited, Intervenor).
    No. 7366.
    Court of Appeal of Louisiana. Second Circuit.
    Jan. 4, 1950.
    Rehearing Denied Jan. 31, 1950.

      L. A. Newsom and C. E. Hardin, Jr., Batoii Rouge, for appellant.
    Durrett & Hardin, Baton Rouge, for in-tervenor.
    Frank H. Peterman, Alexandria, for appellee.
   TALIAFERRO, Judge.

The learned trial judge has favored us with written reasons for the judgment rendered by him in this case, wherein he clearly marshals the essential facts, resolves them against the plaintiff, and applies law appropriate thereto. We adopt said reasons as our own, supplementing same to the extent we deem necessary, the whole to constitute the opinion of this Court, viz.:

“This suit is action in tort by the plaintiff against the ICity of Alexandria, seeking damages for personal injuries which he sustained on June 9, 1945, which damages were sustained by the plaintiff under the following conditions and circumstances:
“The City of Alexandria owns and operates its water system in connection with its other public utilities and in connection therewith owns and operates a pumping station approximately seven miles out in the country from the city limits. The pump house is a small brick structure which is shown in the different photographs, which are found in the record.
“Approximately seventy or seventy-five feet from the pump house is a transformer station which is necessary for the operation of the pumps and electric lights about the premises. The electric wires lead off from poles at the transformer station and entered the pump house. There were eight wires, six being what is referred to in the testimony as primary wires which carried 2300 volts and two wires which carried 110 volts and referred to in the testimony as secondary wires. They will be referred to as such in this opinion. The primary wires were not insulated and left the poles at the transformer station twenty-four feet above the ground and directly beneath them at a distance of six feet the secondary wires left the poles and all of them entered the pump house at the same level of 10% feet above the level of the ground. In other words, seventy or seventy-five feet away there was a perpendicular difference between" the wires of six feet and they gradually converged to the same level at the pump house. Laterally the secondary wires entered the pump house two feet to the left of the primary wires looking from the transformer station to the pump house. The primary wires were fifteen inches apart at their entrance. The secondary wires were insulated and it seems from the testimony that all of the wires carrying low voltage are ordinarily insulated. There was no evidence as to the reason for the high voltage wires not being insulated but I assume that because of their size they are hot usually insulated.
“In 1945 this area suffered from flood waters and it was necessary to build a levee by means of sand bags around this pump house. As the primary wires were 10% feet above the ground at that point, the City protected the workmen who might come in contact therewith in the use of spades and similar instruments, by placing a loose rubber covering over those wires which extended out ten or twelve feet from the building. They are referred to in the testimony as rubber guts and from the testimony it appears that they remained thereon until the time of this accident.
“Because of the fact that the elevation of the ground at the pump house was too low the City entered into a contract with Vardaman Ferguson to haul dirt and to build up and raise the elevation around the pump house to a height of approximately three feet at the house and tapering off to a zero point one hundred feet in every direction around it. Mr. Ferguson employed trucks to haul dirt and a bulldozer to spread the same in this process. Mr. Coulon, the plaintiff, was the operator of' the bulldozer and while operating underneath the wires both of his hands came in contact therewith and practically burned them off' and this suit followed.
“The insurance carrier for Mr. Ferguson intervened for compensation which it had paid the plaintiff and which, is set out in detail, both in the pleadings and the evidence/and concerning which there is no controversy.
"There is a sharp controversy as to how the accident happened and the able counsel for the plaintiff urges neg'ligence on the part of the City of Alexandria as the proximate cause of the injury. The principal controversy concerns the facts immediately connected with the injury but none as to the extent of the injury for the plaintiff was very painfully and severely injured. Fortunately, he did not lose his life. The fact that he did not seems miraculous.
“The City of Alexandria realized that it was dangerous to conduct the operations in close proximity to the primary wires and provided a guard to be on duty at all times to warn all of the employees of the dangerous nature of the operation near the wires and to warn them sufficiently to keep them from coming in contact therewith. Counsel for the plaintiff rest their case largely upon the contentions that the wires sagged between the transformer station and the pump house and were not sufficiently raised from the ground to prevent injury to the employees and especially were they lower than provided by safety rules of United States Department of Commerce, which rules were introduced in evidence and provide for a clearance of twenty feet between such wires and the ground. Further, that the City placed guards at the scene to prevent workmen from coming into contact with the wires and that they were negligent in the performance of their duties in permitting the plaintiff, who was ignorant of the danger, to continue to operate underneath them and to gradually raise the level of the ground to a sufficient height to ■bring the plaintiff and his machine to such close proximity that while he was spreading dirt underneath the wires he was suddenly confronted with wires in his face and threw up his hands to ward them off; as he threw his hands up against the wires they came in contact with the primary wires and resulted in the injury. They further contend that Coulon had no knowledge of the high voltage wire or the danger that might result in coming in contact with them, that they negligently failed to protect him and he came in contact through the negligence of the City and through no fault of his.
“Due to the conclusion to which I have come after careful study of this record, I do not deem it necessary for me to pass- on whether or not the City was negligent. I shall not attempt to analyze all of the evidence in detail. To do so would unnecessarily lengthen this opinion. I am of the opinion that- the plaintiff was negligent and that his severe injuries were due to that negligence which was the proximate cause of the accident.

“The wires from the transformer station undoubtedly sagged as might be expected of all wires. The evidence showed that approximately twelve feet from the pump house the secondary wires were underneath the primary wires a distance of approximately six inches. Of course, that distance increased as you follow the wires back towards the transformer station. The evidence shows that a short time 'before the accident the employees of the City of Alexandria had raised three of the primary wires by raising a temporary cross arm.' Witnesses for the plaintiff gave negative testimony in that they had not observed the same, but I am of 'the opinion that it is of relative unimportance for the reason they did not raise all of the primary wires and did not raise the two secondary wires which continued to hang approximately eight or nine feet above the ground at a distance of approximately twelve feet from the pump house. The guards had specifically warned the plaintiff of the danger of coming in contact with the primary wires and on the day before the accident one of them had thrown -clods of dirt at him to warn him from time to time. This was due to the fact that the noise of the bulldozer made it necessary. He had also been asked by one of the guards to warn the truck drivers while' the guard was absent at lunch. I think it is very evident from the testimony that everyone on the premises, including the plaintiff knew of the danger of coming in contact with these wires. Beyond this it would seem to me to be self-evident and to be a matter of common knowledge that all electric wires are dangerous and especially was this true at this particular spot for the reason that there was a transformer station near the pump bouse and that electric pumps were being operated by the energy transmitted through the wires. Being therefore convinced that the plaintiff, as well as all other workmen had this knowledge, I will consider the circumstances at the moment of the accident.

“I am convinced from the evidence that Mr. Coulon drove his bulldozer underneath the wires at approximately twelve feet or more from the pump house. Undoubtedly, the secondary wires, which ordinarily hung below the primary wires, were so low that he felt that his bulldozer, which was approximately eight feet high, might come in contact therewith and that he stopped his machine directly under those wires and attempted to lift them with his hands. I am of this opinion because after the accident the machine, with no evidence of having touched any wires, was stopped at this immediate spot and had he not manipulated the mechanism for the purpose of stopping it, it would have continued to move forward. A guard who was watching saw him stop, stand and take hold of the secondary wires as if to loop them over the higher primary wires. Mr. Flynn, a City employee, was standing with Mr. Doss, a guard, a few feet away. As the plaintiff attempted to perform this dangerous act Mr. Doss ran to a nearby switch to break the current. He did so for the reason that he knew if the plaintiff touched the primary wires he would in all probability, lose his life. I am further convinced of the correctness of my conclusion by reason of the fact that the secondary wires were burned at that particular point and a part of the plaintiff’s glove was hanging to the secondary wires ■ after the accident. Had the secondary wires not come in contact with the others there would not have been any burning and, of course, if the plaintiff had not come in contact with them he would not have been injured.

“Plaintiff approached the wires from the west. It was on that side the secondary wires were hanging. If he or his machine entangled with any wires it would have been first with the secondary wires. There was no evidence that the bulldozer entangled with any of them. Plaintiff’s head was well below the top of the frame of the bulldozer and I cannot see how any wires suddenly appeared in his face. However, if that be true it would necessarily have been the harmless secondary wires.

“Had the plaintiff not taken hold of the secondary wires and attempted to hang them over the upper and primary wires, which I believe he did, and for the sake of argument admitting that not to be true, the plaintiff, knowing that these wires were dangerous, stopped his machine underneath the wires and so close underneath as to enable him to reach them with his hands, and then to deliberately do anything with them, was such negligence as to bar his recovery. It is my opinion that the evidence shows clearly his negligence and that it was his negligence which was the' proximate cause of his injury.

“I cite no authorities for the legal conclusion to which I have come as they are so well known that the principle is axiomatic to the effect that where the plaintiff’s negligence is the proximate cause of the injury he cannot recover regardless of any negligence on the part of the defendant.”

Plaintiff admitted, with some equivocation, that the bulldozer was stopped under the wires in a normal manner, to-wit: by operation of the proper lever with the left hand. Therefore, it is clear that he caught hold of the wires after the bulldozer was stopped. It is certain he could not have manipulated the lever after contact between the left hand and the wires.

He had been operating the machine over the lot and under the wires for three or four days. The gradual raise in the lot’s elevation, reduced the distance between it and the wires, near the pump house, to such extent that the A-frame would not clear the secondary wires. He had ample time and opportunity, after the secondary wires contacted the A-frame, to have put the machine in reverse and backed it to a zone of safety. This movement would have entailed only a few feet. Instead of pursuing this course, he allowed the bulldozer to remain at stop, with motor running, stood erect and deliberately took hold of the wires. The shock then followed.

It is argued, in effect, that no one of sound mind would have acted as defendant charges plaintiff did after the wires contacted the A-frame. It is not intimated that plaintiff is not well balanced mentally. However, the well established facts prove that he did exactly as charged. His conduct may be explained only on the theory that for the moment he became oblivious to the lethal potentiality of the primary wires. It requires some stretch of the imagination to so conclude, but this must be done or else conclude that he intended self-destruction. We are sure this was not intended.

Plaintiff cites several cases in which damages were awarded because of death or bodily injury due to contact with electric wires carrying heavy voltage including: Layne v. Louisiana Power & Light Co. et al., La.App., 161 So. 29; Potts v. Shreveport Belt Railway Co., 110 La. 1, 34 So. 103, 98 Am.St.Rep. 452; Whitworth et al. v. Shreveport Belt Railway Co., 112 La. 363, 36 So. 414, 65 A.L.R. 129; Clements v. Louisiana Electric Light Co., 44 La.Ann. 692, 11 So. 51, 16 L.R.A. 43, 32 Am.St.Rep. 348; Myhan v. Louisiana Electric Light and Power Co., 41 La.Ann. 964, 6 So. 799, 7 L.R.A. 172, 17 Am.St.Rep. 436.

But, in each of these cases the facts are largely dissimilar to those of the instant case. In each contact and death or injury were instantaneous, and in each instance the victims were unaware that the dangerous wires, near to which they worked, were inadequately insulated or wholly uninsulated, or that there was a leak in the current to which the tragic result was traceable; whereas, in the present case the plaintiff knew of the presence of the highly charged wires and, of course must be held to have known that they were not insulated at all. This was obvious from casual observation.

There can be little or no doubt that the primary wires were negligently placed and negligently maintained. The City fully realized this to be true. The rules of the Bureau of Standards of the Department of Commerce require at least twenty feet clearance between wires of this character and the ground. This rule was not observed. Prior to the beginning of the task of raising the level of the lot, the City did raise three of the six primary wires a few feet. It is not shown why the other three were not also raised. Within forty-eight hours after the accident all six of these wires were raised to a level of safety and were attached to a permanent structure. Had the wires, at time of the beginning of the work, not been considered dangerous to motor vehicles engaged therein, the employment of guards to warn the operators would not have been resorted to. Regardless of all of this, had plaintiff exercised ordinary care for his safety, the accident would not have happened. We conclude, as did the trial judge, that his own negligence was the efficient, proximate cause of the accident and the City’s negligence the remote cause. In so holding we are not unmindful of the high degree of care, for the safety of others, imposed upon all persons who generate, transmit and sell electric energy.

In this Court plaintiff invokes the doctrine of the last clear chance. It was not pleaded below. This plea is predicated upon the proposition that defendant’s guard saw plaintiff as he stopped, stood erect and took hold of the secondary wires, then being in a position of peril, and failed to warn him thereof. It is shown that when the guard did realize what plaintiff was about to do, he holloed loudly at him and beleiving he was not being heard, at once rushed to the switch, some fifty feet away, and thereby saved plaintiff’s life. Under this state of facts we think the doctrine not applicable. In the first place, the conclusion is inescapable that plaintiff must have known that it was perilous to undertake to do that which he actually did, and, in the second place, since the effort to warn him was abortive, further effort would only have additionally jeopardized his life’.

Exceptions of no cause and no right of action were filed by the City and overruled (with written reasons) by a judge of the lower Court other than the one who presided when the case was tried on its merits. Counsel for plaintiff argue that this opinion correctly reflects the facts of the case and cites law appropriate to them. They, in effect, contend that there is conflict between this opinion and that rendered on the merits. We do not share this view.

In paragraph 14 of the petition, it is alleged: “That petitioner knew that defendant’s employee was placed on the job to warn Ferguson’s (the man who was contracted with to do the work) employees, including petitioner, in the event they approached too near the wires and that petitioner relied on the faithful performance of this duty and timely warning in the event of danger.”

He further alleged (in paragraph 15 of the petition) that the City failed in its duty by not apprising him of the presence of the dangerous wires and by not warning him thereof when the machine he was operating came in close proximity thereto. The Court’s ruling on the exceptions, of course, was based upon the allegations of the petition, especially those to the effect that plaintiff was ignorant of the potentially dangerous wires because he had not been warned thereof by the City’s employees, whereas the judge who presided at trial on the merits expressly held that these allegations were untrue, as plaintiff had been warned and had knowledge of the fact that the primary wires carried voltage dangerous to human life. Obviously, there is no conflict between the opinions. From plaintiff’s own allegations it is clear that he was wise to the fact that the primary wires were dangerous since he alleged that “he knew” that the City had employees on the job “to warn” the contractor’s employees thereof.

For the reasons assigned, the judgment from which appealed, is affirmed with costs.

KENNON, J., dissents, giving written reasons.

KENNON, Judge

(dissenting).

I agree with the majority on the finding of fact, but feel that under the holding below quoted from Layne v. Louisiana Power & Light Co. et al., La.App., 161 So. 29, 35, that plaintiff should recover: “If we should presume that plaintiff momentarily forgot the dangerous wire, which we would not be justified under the evidence in doing, there are many decisions of other jurisdictions which hold that momentary forgetfulness of the danger close at hand is not of itself sufficient to constitute contributory negligence, and while our Supreme Court did not rest its decision on that ground in the case of Whitworth v. Shreveport Belt Railway Company, 112 La. 363, 36 So. 414, 65 L.R.A. 129, an analysis of the case shows that is what was held, for, under no circumstances would Whitworth have taken hold of the hot wire which had a few seconds before killed his companion, Potts, if he had thought for a second. In his desire to render assistance to his stricken fellow worker, he momentarily forgot the danger of grasping the very wire that had killed Potts. In doing so, he went to his death. See Giraudi v. Electric Improvement Co., [107 Cal. 120, 40 P. 108, 28 L.R.A. 596, 48 Am.St.Rep. 114], supra; also Dorsey v. Phillips & Colby Const. Co., 42 Wis. 583, and McQuillan v. City of Seattle, 10 Wash. 464, 38 P. 1119, 45 Am.St.Rep. 799.”


author: HARDY, Judge.

text:
    LOCKWOOD v. KENNEDY et al.
    No. 7416.
    Court of Appeal of Louisiana. Second Circuit.
    Jan. 4, 1950.
    Rehearing Denied Jan. 31, 1950.

      J. V. Thompson, Alexandria, K. Hund-ley, Alexandria, for appellant.
    Polk & Culpepper, Alexandria, T. C. McLure, Jr., Alexandria, for appellees.
   HARDY, Judge.

Plaintiff brought this suit seeking to recover the sum of $31,651 in the nature of personal injuries sustained in an accident which occurred on December 1, 1947, allegedly as the result of the negligent operation of a winch truck and its equipment by the defendant, Kennedy, whose liability insurer is joined as a party defendant. After trial there was judgment in favor of defendants rejecting plaintiff’s demands, from which plaintiff prosecutes this appeal.

With a few exceptions, to which attention is hereafter particularly called, the facts are without dispute. Plaintiff is a skilled mechanic and is the owner of welding equipment, which, on occasions, he rents to other parties. On or about the date of the accident a large White tandem truck belonging to the Latex Construction Company and driven by its employee, Marion D. Kennedy, which truck was loaded with heavy machinery, while en route from the City of Baton Rouge, became disabled while passing through the City of Alexandria. Necessary repairs were effected by one William H. Smith, the operator of a heavy equipment repair shop, in the course of which work plaintiff’s welding equipment had been used. Upon completion of the repairs, sometime late in the afternoon of December 1st, plaintiff removed his welding equipment to his shop or storage space. While on his waj' to his home plaintiff found that the Latex truck had, in some manner, been driven off the highway into a ditch on Masonic Drive in the outskirts of the City of Alexandria, and he stopped for the purpose of offering whatever assistance he might be able to render. Plaintiff was requested by the driver of the truck to contact some operator of wrecking equipment who would be able to extricate the truck from the ditch. Pursuant to this request plaintiff telephoned several operators, without success. Entirely by coincidence, it was discovered that the defendant, Kennedy, was at the home of one of the parties whom plaintiff called, a Mr. James Guinn, to whom he was exhibiting his new winch truck and equipment which had been delivered to him only that morning. In response to Lockwood’s request the defendant, Kennedy, proceeded to the location of the stalled truck. At the scene several parties, who had interested themselves in the effort to extricate the truck, were present, namely, the plaintiff, Lockwood, William H. Smith, at whose shop the repairs on the truck had been made earlier in the day, the defendant, Pat C. Kennedy, and, of course, the driver of the Latex truck, Marion D. Kennedy.

After surveying the situation, the attempt was made to pull the truck out of the ditch by attaching a chain to the winch truck, but this effort was in vain, due to the fact that the winch truck was too light to permit of the necessary traction.

At this point it is necessary to describe in some detail the equipment which was being operated by defendant. The winch truck, consisting of a cab and a platform body on which was mounted a motor-driven winch, as has been observed above, was new equipment and had been delivered to defendant only on the morning of the day of the accident. The winch, driven by the motor of the truck, was fitted with a steel cable running from the drum of the winch through a pulley or block at the apex of an “A” frame. The end of the cable was equipped with a large hook which was customarily affixed to a device known as a rolling tailboard, at the rear of the truck. The “A” frame referred to consisted of two hollow pipes some 20 feet in length, more or less, arranged in the shape of an inverted “V” affixed at the base to each side of the frame of the truck and fastened at the apex with a pin which was secured to the block or pulley, through which ran the cable. The pipes, or gin poles, were supported in position with long chains, one or more, laced at the apex of the gin poles. The elevation of the frame was controlled by reeling the cable in or out, in which operation the hook end of the cable attached to the rolling tailboard served as an anchor. Thus, the operator of the machine, by means of clutch and gear, could raise or lower the frame to the desired angle, dependent upon the degree of leverage required for any particular operation. When the proper elevation was obtained the chains were tightened, thus providing a fixed support for the frame, and the equipment was then rigged and ready for loading, hoisting or pulling operations. It is thus to be seen that the equipment was similar to a mobile derrick or crane.

One of the serious conflicts of testimony occurs with respect to the next step of the operation in the effort to disengage the Latex truck. Plaintiff, supported by one of his witnesses, insists that the defendant, Kennedy, requested him to climb the “A” frame, disengage the pulley or block and free the cable therefrom, thus permitting the cable to be operated in a straight, horizontal pull from the winch. Obviously, the freeing of the cable was necessary since the hook could not pass through the pulley. It is established that there are two methods of effecting this operation. The first and safer procedure is to lower the gin poles until they are in,a horizontal position, thus permitting the release of the' pulley and the disengagement of the cable. The second and more dangerous, though quicker method, is to have someone climb the gin poles to the apex, release the block and disengage the cable. The latter is the method that was used in the instant case and defendant, Kennedy, contends that it was determined upon after a sort of found table discussion by the several interested parties'present at the scene.

In any event, Lockwood climbed the gin pole and, upon reaching the apex of the frame, called to the defendant to give him some slack in the cable. Defendant complied by throwing the winch into gear and engaging the clutch, at which instant the entire “A” frame collapsed, precipitating plaintiff to the pavement some 12 or 15 feet below and inflicting serious and permanent physical injuries.

The cause of the collapse of the frame is unknown. .Numerous theories are advanced by several of the witnesses, but careful study of the record fails to disclose any explanation which may be substantiated by any reasonable degree of certainty. It is established that after the collapse one of the links of one of the support chains was found to be opened and it may reasonably be assumed that the failure of this weakest link in the support chains was responsible for the collapse of the frame.

However, the Court is not confronted with the necessity of determining the exact nature of the failure of the rigging, but it is incumbent upon us to make pronouncements as to the negligence, vel non, of the defendant, Kennedy.

Plaintiff alleges various counts of negligence, all upon information and belief, which may be briefly summarized as follows :

1. The improper operation of the control levers and clutch, causing the winch to be thrown out of gear with the consequent release of the heavy “A” frame.

2. That the frame was released with such speed by the negligent operation of the machinery as to cause the breaking of the support chain.

3. That the support chain was broken before the cable was slackened, and, as a result, failed to support the frame.

4. Generally, that the defendant, Kennedy, was inexperienced in the control of the winch and his negligent operation caused the breaking of the support chain and the consequent collapse of the frame.

Further material facts which we find to be established by the record are that both the plaintiff, Lockwood, and defendant, Kennedy, were gratuitously engaged in the undertaking which led to the accident and no expectation of compensation appears to have entered into the consideration on the part of either. As pointed out, defendant Kennedy’s trucking equipment was new, and, according to the vast preponderance of the evidence, was properly rigged in accordance with one of a number of accepted method?. The. support chains were three-eighths inch. No evidence of any known ,or existing defect in any of the equipment is established.

With respect to the several counts of negligence above enumerated, it suffices to observe that plaintiff has failed to establish any of them. Plaintiff freely admitted that he did not know the cause of the accident. At the time the rigging collapsed he was stretched out along one of the gin poles at the apex of the frame with his back to the cab in which defendant, Kennedy, was operating the levers and gears by which the winch was set in motion.

In view of plaintiff’s inability to assign or establish any explanation as to the cause of the accident, he invokes the doctrine of res ipsa loquitur.

As we have observed, irrespective of the cause of the accident, the principal point at issue concerns the question of negligence on the part of the defendant, Kennedy. Such negligence, in order to justify recovery by plaintiff, must be established by a preponderance of the evidence either as to some act of commission, that is, an active negligence, or the proof of some omission, a passive negligence involving the failure of the performance of some duty or the taking of some precaution. It must be borne in mind that the measure of negligence, the degree thereof, is also affected by the relationship existing between the parties at the time of the accident. The mere occurrence of an accident does not of itself serve to establish the existence of negligence.

In the instant case we are convinced beyond any doubt that plaintiff has failed to affirmatively establish any showing of negligence on the part of defendant, Kennedy. The testimony overwhelmingly preponderates to the effect that the new equipment was properly rigged with materials of reliable strength and quality and no latent defects were shown to exist. The attempt to show negligence in defendant Kennedy’s operation of the winch has utterly 'failed. The only testimony on behalf of plaintiff is based upon speculation, conjecture and surmise, and is completely overcome by the direct and positive testimony of the defendant, Kennedy. Additionally, we observe that the charges of lack of experience directed against the defendant, Kennedy, were not established, and, on the contrary, it was affirmatively shown that Kennedy was an experienced operator. A further established fact in this connection is that the motor winch was of a type which would not permit the free running of the cable off of the drum and through the pulley in such manner as would give the sudden slackening of the cable. On the contrary, it is conclusively shown that the cable would have played out very slowly. This fact eliminates the contention that the sudden, violent and uncontrolled running out of the cable was responsible for the collapse of the frame.

In the absence of any proof of active negligence, the plaintiff, as a consequence, is relegated to a reliance upon the applicability of the doctrine of res ipsa loquitur for any hope of recovery.

Pretermitting a discussion of the propriety of the application of the doctrine, as to which we have grave doubt under the pleadings and the facts comprehended in the instant case, we proceed to a discussion of the essential principles and elements of the doctrine as revealed by the record before us.

Briefly, analyzing the requirements which are indisputedly necessary to the success of' plaintiff in his invocation of the doctrine, it is essential, first, that plaintiff fulfill the obligation of proving as a fact that the agency or instrumentality causing the injury was under the exclusive custody and control of the defendant at the time of the accident, and, second, that plaintiff establish facts which evidence some negligence, either express or reasonably to be implied, on the part of defendant.

In considering the question of control the relationship of the parties is of some considerable importance. Plaintiff’s status as an employee, invitee or licensee must be determined, both with respect to its bearing upon control and upon the degree of care imposed by law upon the defendant.

We have been unable to find any case involving facts indentical with the instant matter. Clearly, there was no employment under the facts of this case for the undertaking appears to have been entirely gratuitous on the part of both plaintiff and defendant. Nor was plaintiff invited by the defendant to participate in the venture. Quite the opposite, since the facts are uncontradicted on the point that defendant was solicited by plaintiff to engage in the operation.

The established facts indicate that plaintiff, Lockwood, and defendant, Kennedy, were engaged in a joint venture, to-wit, an effort, comporting with what appears to be a commendable mutual assistance custom among the trucking fraternity, to restore a disabled vehicle to operational status without any purpose of obligation, compensation or remuneration. In this enterprise Lockwood and Kennedy were collaborators, each apparently of equal authority. The accident transpired as the result of a voluntary action on the part of Lockwood, a skilled mechanic, who appears to have taken the lead in the effort to extricate the Latex truck. By reason of his recognized expert ability and experience, it is evident that Lockwood’s opinions were accorded considerable, if not controlling, weight in the enterprise. Under these circumstances it cannot be concluded that the operation was under the exclusive control of the defendant, Kennedy. However, inasmuch as Kennedy was in control of the actual mechanical operation, it may be conceded, arguendo, that he should be considered as having control and management of the instrumentality which caused the injury.

However, at best, the legal status of plaintiff, Lockwood, can be regarded as nothing more than that of a licensee. In Mercer v. Tremont & G. Ry. Co., La.App., 19 So.2d 270, in which case certiorari was denied by the Supreme Court, we had occasion to discuss this point at some length. The principle is well established that the owner of a property is under no greater duty to a licensee than that of refraining from wilfully or wantonly causing him injury. Certainly in the instant case there is not the vaguest shadow of support for the conclusion that defendant, Kennedy, was guilty of any wilful or wanton act.

The doctrine of res ipsa loquitur was discussed by this Court at length in the Mercer case, supra, and in the comparatively recent case of Anderson et al. v. London Guarantee & Accident Co., Ltd., La.App., 36 So.2d 741, 745, certiorari denied by the Supreme Court on November 8, 1949.

Reiterating the conclusions at which we arrived’ in the cited cases which’ are applicable to the instant matter, it is observed that in the Anderson case we made the following statement: “An essential element in the application of the doctrine of res ipsa loquitur is a showing that a defendant failed to use proper care as to the instrumentality under his control.”

There is no such showing in the case before us. Conceding, as was done in the Anderson case, that the accident was caused by an agency under the control of the defendant, Kennedy, plaintiff has failed to show any act of commission or omission constituting negligence on the part of said defendant and, certainly, it could not even be contended that any evidence :has been adduced which would fix liability upon the defendant’ by reason of his violation of his obligations to plaintiff, a mere licensee, whiqh legal obligations require simply a showing of the lack of wilful or wanton infliction of injury.

The evidence in the record has conclusively established the fact that defendant Kennedy’s truck had been newly equipped with the winch, the “A” frame, and other necessary appliances by the Lufkin Foundry & Machine Company of Lufkin, Texas. The rigging of the truck with a new steel cable and new support chains was performed by an experienced employee on the very day of the accident, and the testimony of a number of witnesses to the effect that the truck was properly equipped and rigged is uncontradicted. In view of these facts it cannot possibly be concluded that defendant Kennedy is chargeable with any negligence, either active or passive, with respect to any defects in the equipment which might have caused the accident.

With reference to the operation of the winch, the testimony is also conclusive that theré was no careless nor negligent operation on the part of Kennedy which could have caused the collapse of the frame.

We have carefully examined the authorities cited by distinguished counsel for plaintiff, but find nothing which would alter the conclusions at which we have arrived based upon the reasons set forth. The facts are obviously at variance with those of the instant case. Certainly, the case of Plunkett et ux. v. United Electric Service, 214 La. 145, 36 So.2d 704, 3 A.L.R. 2d 1437, is easily to be distinguished.

It is noted in brief of counsel for plaintiff that issue is taken with the pronouncements of this Court in the Anderson case, supra, and statement is made in brief that no application for certiorari was made. This statement is inadvertent error, and, in our citation of the case supra, we have called attention to the fact that certiorari was refused by the Supreme Court on November 8, 1949. Clearly this action of the Court is equivalent to the approval of the principles enunciated by us in our opinion, which principles, we think, are clearly controlling under the facts developed in the instant case.

The learned Judge of the District Court expresses his final conclusion in these words: “I am, therefore, of the opinion that under the facts of this case there is no presumption of negligence on the part of the defendant which arises from the happening of this accident. However, assuming that the presumption does arise, I am of the opinion from the evidence that it was adequately met and fails to show that there was any negligence on the part of the defendant.” With this expression we are in full and complete accord.

It is noted that the judgment in this case, in addition to rejecting plaintiff’s demands, further provides for judgment in favor of the defendant, Pat C. Kennedy, against the National Mutual Casualty Company in the sum of $500 as attorney’s fees and carries a further provision that said amount be increased by an additional $100 in the event of appeal and hearing before this Court. No appeal was taken from these specific decrees by the defendant insurer, nor has any objection to the allowance been advanced before this Court, and it is therefore to be assumed that the parties are in agreement.

For the reasons set forth, the judgment appealed from is affirmed at appellant’s cost.


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    FINANCE SECURITY CO., Inc. v. ELLINGTON.
    No. 7374.
    Court of Appeal of Louisiana. Second Circuit.
    Jan. 4, 1950.
    Rehearing Denied Jan. 31, 1950.

      T. C. McLure, Jr., Alexandria, for appellant.
    Gus Voltz, Alexandria, Leo Gold, Alexandria, for appellee.
   HARDY, Judge.

Plaintiff brought this suit on a promissory note which it alleged to hold as owner in good faith, for value received, for the sum of $819.85, with interest, attorney’s fees, etc. The petition also sought recognition of a special mortgage, lien and privilege under an act of chattel mortgage.

The defense was based upon the claim that plaintiff had taken possession of the automobile, purchase of which initiated the obligation sued on, and' had resold the said vehicle, not only effecting a cancellation of defendant’s note, but further comprehending a profit which defendant, assuming the position of plaintiff in reconvention, claimed from plaintiff in the sum of $880.-15.

After trial there was judgment rejecting plaintiff’s demands and further judgment in favor of defendant as plaintiff in recon-vention in the sum of $700, from which judgment plaintiff brings this appeal.

In this case there is little which needs .to be said. The facts, unbelievable as they may seem, are that defendant purchased a car on April 5, 1946, for a total consideration of $1,519.85, of which amount .$700 was represented by cash and the bal.ance of $819.85 by defendant’s promissory note payable on the 4th day of May, 1946. The installment portion of the purchase price was payable to plaintiff and was secured by a chattel mortgage on the purchased automobile. The day after the transaction the car, being on the parking lot of defendant’s vendor, after being washed and cleaned, was inspected by a mystery woman, “Miss X”. The interested party was given a demonstration by an employee of the parking lot and immediately entered into negotiations for the purchase ■ of the car. The matter was concluded in a matter of hours on a Saturday afternoon .and “Miss X” departed with the car, leav- • ing a down cash payment of $50 and what ; proved to be an extremely elastic check in the amount of $1,650 made payable to plaintiff, which had also received the down payment. The story advanced by “Miss X” of a pending collection by an Alaskan bank, though interesting, is not pertinent to the issues here involved.

Plaintiff brought this suit to collect the total amount of the vendor’s lien note from defendant, who promptly reconvened, as above set forth, for the sum of $880.15, represented as being the difference between the amount of defendant’s unpaid note ($819.85) and the price of $1,700 alleged to have been accepted by plaintiff on the sale of defendant’s automobile.

Concededly this cause primarily involves questions of fact.

We observe with considerable amazement the statement of learned counsel for plaintiff, in brief, that “the evidence in this case is remarkably clear.and unconflicting”. It has rarely, if ever, been the opportunity of this Court to consider a case in which the evidence has been as confused and confusing.- Witnesses have disagreed with one another and have contradicted themselves with frequency. Facts as related have been so improbable as to strain the imagination. In truth, the only facts established without dispute are that defendant bought the automobile from a vendor styled'“Cantrell’s Parking Lot”, which was owned by one- Richard Babington, who was also the agent and manager of the plaintiff finance company, which financed the unpaid balance, and that “Miss X”, unquestionably á' persuasive person, “flimflammed” some party or parties out of possession of the automobile. Beyond these facts the truth is shrouded in the mists of vague uncertainties.

Though we can point to no rule of law quite in point, we are constrained to observe that, with respect to irreconcilable and conflicting improbabilities, the one of lesser degree should be accorded the greater weight.

Plaintiff contends that defendant bought the automobile for purpose of resale and himself made the sale to “Miss' X”. Defendant, on the other hand, declares that plaintiff took charge of the automobile, gave the demonstration to “Miss X”, conducted all negotiations and transactions, and received all the evidences of the consideration for the purchase by the lady.

The learned Judge of the- District Court, who had the opportunity of observing and evaluating the testimony of the witnesses at first hand, rendered judgment in favor of the defendant. Conclusively, our brother must have been of the opinion that defendant’s contentions were the more acceptable in the light of the circumstances and conditions surrounding the matter.

We find no manifest error in .the judgment, which, accordingly, is affirmed at appellant’s cost.


text:
    MADDING v. HOOVER et al.
    No. 7445.
    Court of Appeal of Louisiana. Second Circuit.
    Jan. 31, 1950.

      M. T. Monsour, Wilson, Abramson & Maroun, Shreveport, for appellant.
    Bullock & Bullock, Shreveport, for ap-pellees.
   KENNON, Judge.

Alleging that he was pledgee of two diamond ear screws on which pledge there was due $800 with interest, the pledge having been made in October, 1928 by F. A. Bell, and that by virtue of a series of Court judgments, including three decisions of his Court, his right to hold the ear screws until he had been paid this $800 with interest had been established, T. E. Madding filed this suit naming as party defendants F. A. Bell, to whom plaintiff had advanced the $800 and from whom he had received the ear screws in pledge, Mrs. Anna C. Hoover, formerly Mrs. F. A. Bell, who in the three previous suits involving the same jewelry had claimed ownership first for a corporation in which she was a 'stockholder and later as her individual property, and the Continental American Bank & Trust Company, which was in possession of the ear screws as the aftermath of a loan made by it to the pledgee.

Plaintiff prayed for and was granted a writ of sequestration under which the Sheriff of Caddo Parish took possession of the jewelry from the defendant bank. A curator ad hoc was appointed to represent F. A. Bell and Mrs. Anna C. Hoover. On June 15, 1949, a default was entered against “both defendants.” On June 21, 1949, the defendant, Mrs. Anna C. Hoover, filed a motion to dissolve the' writ of sequestration in which she prayed for judgment in reconvention for $200 as attorney’s fees. On the same day she filed an answer in which she denied that any of the former judicial decrees were binding upon her, and specifically denied the validity of the pledge of the jewelry made by F. A. Bell on the ground that as to her it was unauthorized; that the original debt secured was invalid as being a gambling debt; that the pledge was invalid because same was oral and not in writing, and finally pleaded the prescription of three, five and twenty years.

The minutes of Court of June 30, 1949 show that the case was “taken up for trial as on confirmation of default as to F. A. Bell.” The bank made no appearance nor was any notation made that the case was taken up against it “as on confirmation of default;” since the bank was only a stake holder, it seems to be no longer a party at actual interest.

Plaintiff introduced in evidence the records of six separate lawsuits previously filed over this same jewelry pledge transaction in the First Judicial District Court for Caddo Parish, Louisiana, and records involving three of these Caddo Parish suits “as appealed to the Court of Appeals.”

Counsel for Mrs. Hoover moved to try the motion to dissolve the writ of sequestration separate from the merits and the Court ordered trial of -the motion to proceed with the merits “without prejudice to the rights of defendant in the motion.”

Defendant offered in evidence the same Court records previously offered by the plaintiff and presented testimony as to the value of the legal services 'and the facts surrounding the sequestration.

By agreement, the District Attorney rendered judgment and granted orders of appeal in vacation time. In his judgment, the District Court held that while there was a debt shown to be due from F. A. Bell to plaintiff and a default taken as against F. A. Bell, judgment should not be rendered against him because plaintiff did not pray for same, and non-suited plaintiff’s claim as against F: A. Bell. The District Court further held that Mrs. Anna C. Hoover was the owner of the jewelry, and since the pledge by F. A. Bell was not in writing, she, on the theory that she was a third person to the transaction, was- not bound by the pledge, and gave .judgment ordering the jewelry delivered to her. Plaintiff appealed.

Defendant, Mrs. Ploover, filed an answer to the appeal, praying that the judgment be amended by awarding her damages and attorney’s fees.

On the Plea of Res Adpidicata

This is the fourth time the question of the ownership, possession and right of the pledgee of the diamond ear screws involved in this case has been before this Court. See Hoover v. Madding, La.App., 15 So.2d 557; Dunkelberg Farms, Inc., v. Madding, et al., La.App., 6 So.2d 801; Dunkelberg Farms, Inc., v. Mays et al., 19 La.App. 106, 138 So. 224.

The plaintiff filed in this Court a plea of re-s adjudicata, setting forth that in a previous case (reported in 15 So.2d 557), a final decision had been made decreeing Mrs. Hoover’s ownership of the ear screws to be conditioned on the payment of the debt to plaintiff.

Although the opinion' of this Court, as reported in 15 So.2d 557, 558,. recited that the lower Court in its written opinion held that plaintiff (Mrs. Hoover) could have possession of the ear screws “only after satisfying the amount due which they were pledged to secure,’’ and although our decree affirmed the judgment of the lower Court, the fact remains that the judgment was one of non-suit. We have therefore concluded to overrule the plea of res ad-judicata and pass upon the merits of the case now before u's.

An examination of the record as a whole, including evidence taken on previous trials and the opinions of Judge McGregor, Judge (now Justice) Hamiter and Judge Drew, leads to the following finding of fact.

The defendant, Mrs. Hoover, has been married three times. Her first husband, Mr. Charles A. Dunkelberg, died in 1918. About 1928, she became the wife of F. A. Bell, from whom 'she was divorced in 1932. Her third marriage wa-s to Mr. Hoover.

In 1928, she and her husband, Mr. F. A. Bell, came to Shreveport, Louisana, for the purpose of attending the Louisiana State Fair and stayed for several days or more-at the Creswell Hotel. She was the 'owner of a pair of diamond ear screws valued by her at more than $1000. Mr. Bell had possession of this jewelry, the purpose originally being for safekeeping, but becoming in need of funds, he had secured $400 from one Cal Cross by pledging Mrs. Bell’s earrings. Desiring to raise more money, he and a friend of his Ralph Mays, went to plaintiff, T. E. Madding. Madding delivered $400 to Mays for the purpose of redeeming the jewelry from the first pledge.. After this was done, Bell and Mays returned to Madding, who, after looking over the earrings, accepted them as a pledge to secure a loan of $600, delivering an additional $200 in cash. A few days later, Bell, desiring more funds with which to pay his-hotel bill and use for expenses on the return, trip, secured an additional $200 from Madding, leaving the jewelry in pledge as security for the total loan of $800. No written instrument of pledge was executed by-Mr. Bell or Mrs. Bell.

On March 5, 1929, Bell wrote from Houston, Texas, to Ralph Mays, who acted throughout as a sort of broker and representative of all parties, the following letter r

“1712 Bissonnett Ave.
“Houston Tex.
“Mch 5th 1929
“Mr. Ralph Mays
“Caddo Hotel
“Shreveport La.
“Dear Friend Mays. — We were sorry to miss you about ten days ago when we were-in Shreveport as we came prepared to take-up the obligation against the diamond ear-screws which I left with you during the-state fair last fall.
“On our way back home last week a wire to you was answered to the effect that you were still out of town.
“We are home now and if you will forward the diamonds insured and collect by' express as soon as this reaches you I will-be very much obliged.
“With warm personal regards I am
“Yours truly
“signed/ F. A. Bell
“PW/FAB”

Possibly had Mr. Mays been in town at the time this letter reached Shreveport and forwarded the diamonds insured and collect as directed, payment would have been made and four less cases would have reached the Southern Reporter. However, it was not until April 22d that Ralph Mays returned to Shreveport and wrote to Mr. Bell stating that interest was due on the jewelry .and that he was holding the bank off for a week longer. At the time Mr. Bell received this letter his financial condition was evidently not as good as it was at the time he wrote the above quoted March 5th letter, because he replied to Mr. Mays as follows:

“April 27th 1929
“1712 Bissonnet Ave.
“Houston, Tex.
“Mr. Ralph Mayes
“Caddo Hotel
“Shreveport La.
■“Dear Ralph,
“I find yours of the 22nd here on my return from an absence from Houston and I am glad to hear from you.
■“Regarding the ear-screws, I am not in position just now to take them up, and wish you would refinance them for me, send me word just what the interest is and I will pay that at once.
"“Appreciating your good wishes and assuring you they are fully reciprocated, I am ‘“Sincerely your friend,
“AC B/FAB”

Parenthetically, while defendant, Mrs. Ploover, testified in Court that she did not know that her diamond ear screws were not still in her husband’s possession until she saw a letter which her husband received on .July 8, 1929, in her answer to interrogatories in one of the suits in the record, she testified with reference to the above quoted April 27, 1929 letter that: “I wrote this 'letter at Mr. Bell’s dictation.” Her initials at that time were AC B, as shown by the identifying stenographic initials at the end of the letter.

The next letter in the record is the following one which Mrs. Bell testified that :she herself wrote at her husband’s request:

’1712 Bissonnet
‘Houston Tex.
‘July 6th 1929.
“Mr. Ralph Mayes,
“Caddo Hotel
“Shreveport, La.
“Dear Sir, — Mr. Bell received your letter saying that you had arranged to carry the loan on the diamond ear-screws until August First. He meant to have me write you at once but has been down with malarial fever and so have I. In the meantime your letter was mislaid and rather than look it up in the files this moment I am writing to say that we may not be able to meet the entire amount at that date, however if you will tell us just how you are handling this we will give you something definite that you can depend on.
“I will send this registered so that there will be no slip about its reaching you.
“Mr. Bell is getting better every day now and sends you his warm regards,
“Yours truly,
“signed/ Anna C. Bell
“(Mrs. F. A. Bell).”

Mr. Mays on July 9, 1929 answered this letter stating that the total due on the earrings with interest was $834.75 and suggested that the Bells remit $344.75 and carry over the $500 balance. Mrs. Hoover testified that her husband showed her this letter. .

An examination of the other testimony in the various records leaves us in agreement with the finding of fact contained in the former opinions of this Court. Since these have 'been cited above, we will not burden this opinion with a summary of or quotations from these.

We also agree with the writers of the former opinions that Mrs. Hoover’s testimony was evasive, inconsistent and unconvincing. We find it completely established that Mrs. Hoover not only ratified the act of pledge, as indicated by her July 6, 1929 letter, above quoted, but conclude, based on her evasive and inconsistent testimony and actions and the facts proven in the record, that she was aware either at the time the earrings were delivered or soon thereafter that the jewelry ¡had been pledged by her husband and knew the entire detail's of the transaction.

The District Court based its decision in favor of Mrs. Hoover on the following quoted portions of Article 3158 of the Civil Code:

“But this privilege shall take place against third persons only in case the pledge is proved by some written instrument, in which shall he stated the amount of the debt intended to be secured thereby, and the species and nature of the thing given in pledge; * * *
“ * * * All pledges may be made by private writing of any kind if only the intention to pledge be shown in writing, but all pledges must be accompanied by actual delivery; * *

We find that the conduct and actions of Mrs. Hoover (then Mrs. Bell) were such as to identify her as a participant in the transaction and remove her from the category of a “third person” as contemplated by the above article. Granting, for the sake of argument, that Mrs. Hoover was a “third person” within the meaning of Article 3158 of the Civil Code, we note that the article does not require that there be a formal written act of pledge, but rather the article requires that the pledge be proved “by some written instrument, in whioh shall be stated the amount of the debt intended to be secured thereby, and the species and nature of the thing given in pledge.” The letter of April 27th which Mrs. Bell herself wrote at her husband’s dictation, the letter of July 6, 1929, which Mrs. Bell personally wrote and signed, to Mays and his July 8th reply to her letter of July 6th, which reply she admits was shown to her by Mr. Bell, constitute written evidence stating the exact amount of the debt secured by the pledge and the description of the article pledged. These letters constitute a compliance with the codal re-’ quirements.

When this case was last before this Court, it was held that under Article 3165 of the Revised Civil Code, it was incumbent upon the holder of pledged property to obtain judgment in regular course in the suit in which Bell was made a party. In the-case before us, we find that’this has been done. It is true that the petition fails to name F. A. Bell in the paragraph which specifically asks for the $800 money judgment. However, we find that the prayer asks that “a curator ad hoc be appointed to represent the absentee defendants, F. A. Bell and Anna C. Hoover.” A subsequent paragraph sets forth: “Petitioner further prays that the Continental-American Bank & Trust Company, F. A. Bell and Anna C. Hoover be duly cited to appear and answer this petition; that after due proceedings had there be judgment in favor of petitioner and against defendants, Anna C. Hoover for the full sum of Eight Hundred and no/100 ($800.00) Dollars, with legal interest from October 2, 1928, until paid, and for all costs of this suit, * * *.”

(Italics ours.)

It is noted that the word “defendant” in the last quoted paragraph -is in the plural. Taking this in connection with the prayer “for general and equitable relief,” and with the fact that a curator ad hoc was appointed to represent F. A. Bell (the letter written by the curator to Bell was returned unclaimed), and the fact that the minutes show that a preliminary default was taken out as to “both defendants,” and that the minutes on the day of trial show that the case was “taken up for trial as on confirmation of default as to F. A. Bell,” and that the curator ad hoc who was appointed to represent F. A. Bell accepted service and waived citation, and since the proof in the record is overwhelmingly that F. A. Bell is indebted to the plaintiff as alleged in the petition, we find that the plaintiff is entitled to judgment against him in rem as prayed for.

The plea of prescription was not urged before us. Apparently, counsel concedes the correctness of the District Court’s finding that the plea is unavailable when the obligation is secured by pledge of property in the physical possession of the creditor.

For the reasons assigned, the judgment appealed from is reversed and judgment is now rendered in favor of plaintiff, T. E. Madding, and against defendant, F. A. Bell, in rem, in the sum of $800, with 5% interest from October 2, 1928, until paid.

Judgment is further rendered in favor of plaintiff, T. E. Madding, and against the defendants, Mrs. Anna C. Hoover and the Continental American Bank & Trust Company, maintaining the writ of sequestration sued out herein and recognizing plaintiff’s lien and privilege upon the two diamond earrings sequestered by the Sheriff, of Cad-do Parish, who is hereby ordered to proceed with the sale of same in due course and according to law. The claim of plaintiff and costs of these proceedings to be paid by preference and priority out of the sale of this property. Any balance remaining is to be paid over to defendant, Mrs. Anna C. Hoover, who is cast with costs of both Courts.