text:
    STATE ex rel. SCOGGINS v. VERNON PARISH SCHOOL BOARD.
    No. 3195.
    Court of Appeal of Louisiana. First Circuit.
    Feb. 17, 1950.

      Jack L. Simms, Asst. District Attorney, Leesville, for appellant.
    Kay & Kay, DeRidder, for appellee.
   ELLIS, Judge.

This is a mandamus proceeding in which the relator, Henry Y. Scoggins, is seeking to compel the Vernon Parish School Board to grant him a Sabbatical leave for one semester for cultural improvement for the school term of 1949-1950, beginning September 12th, 1949 and ending January 28th, 1950. The petition contained all necessary allegations and particularly that the relator complied with all the necessary requisites provided for by Sections 2, 3 and 4 of Act No. 319 of 1940 and amendments thereto, Act No. 235 of 1946, Act No. 341 of 1948, and relator also alleged that he had filed two applications with the defendant school board and had been refused both times; that he had delivered these applications to the superintendent of the schools of Vernon Parish, Louisiana.

The defendant school board filed no an-, swer but did file an exception of no cause of action levelled at relator’s failure to send either of the applications to the Superintendent of Schools by registered mail as required by the Sabbatical Leave Act. This exception was referred to the merits “to stand as part of the answer.”

The case was tried, the exception of no cause of action overruled, and judgment rendered making the alternative writ of mandamus peremptory, commanding the Vernon Parish School Board to grant the relator sabbatical leave for one semester for professional and cultural improvement for the school term of 1949-50, beginning September 12, 1949 and ending January 28, 1950.

From this judgment the defendant school board has appealed and the relator apparently has answered and filed an answer to the appeal in which he asks that the judgment of the District Court be affirmed and that the defendant school board be condemned by this Court to pay to relator ten per cent on the amount of the loss in salary as damages for a frivolous appeal.

Defendant school board has raised but two questions on this appeal, viz.:

(1) Is the requirement that applications for Sabbatical Leave be sent to the superintendent of schools by registered mail as provided by La.Act No. 319 of 1940, as amended by La.Act No. 235 of 1946, to be construed stricti juris? and

(2) Where less than five per centum of the total number of teachers employed in a given parish are taking Sabbatical Leave as provided by Section 5 of La.Act No. 319 of 1940, as amended by Section 1 of La.Act No. 341 of 1948, does a School Board have authority to reject applications for Sabbatical Leave for any reason?

As to the first question, the evidence shows both applications for Sabbatical Leave were in accordance with law in all respects, but that both were delivered to the superintendent of schools personally rather than by registered mail as provided by the Act. The facts further show that both applications were presented by the superintendent to the School Board and the School Board acted upon these applications by refusing them. The first application by relator was made October 19th, 1948 in which he asked for sabbatical leave for one semester for the school year 1948-1949, for the period beginning the 21st day of January and ending the first day of June for the purpose of professional and cultural improvement. In the record is a certified copy of the minutes of the School Board of January 6th, 1949 in which it shows two yeas and eight nays. No objection whatsoever was made to the application nor were any reasons given for its refusal at that time. The second application was made on March 2, 1949 for leave for the same purpose for a period beginning September 12, 1949 and ending January 28, 1950, which is the one in contest. This application was refused by the Parish School Board at a meeting held on the third day of March, 1949, and there is no objection noted to the application such as is being raised in the present suit, nor was any reason given as shown by the minutes of the School Board for the refusal. The purpose of sending the application by registered mail was to insure its delivery and a record of its being sent and delivered. The record shows that the same purposes were accomplished by the manual delivery. The application was in proper form in all respects, was personally delivered to the school board and acted upon by the school board. The purpose of filing the application was to have the same placed before the school board for action. Had it been sent by registered mail the same course would have been followed, that is, the superintendent would have delivered it to the school board for action by that body. Had the superintendent refused to submit the application to the school board by reason of the fact that it was delivered to him personally, rather than sent to him by registered mail, would be another question. The school board is estopped from raising such a question and has waived the right to make any such objection to the application.

Counsel for the defendant school board has so phrased what he contends is the second question in this suit to be answered by this Court that it covers much more territory, that is, is much broader in scope than the actual question to be decided. It is not necessary to decide whether or not a school board has authority to reject applications for sabbatical leave for any reason; only is it necessary to decide whether this defendant school board in the present case, under the,present facts and the law, had the right to reject relator’s application.

It is shown by the record in this case that not one teacher employed by Vernon Parish School Bodrd was on sabbatical leave at the time relator made his application, and at the time it was rejected, and, therefore, under Section 5 of Act No. 319 of 1940 and amendments thereto relator was clearly entitled to the leave for which he applied. It is contended, -however, that the board did not have and could not get any qualified substitute teachers, and that this court should take judicial notice of the acute shortage of teachers and should hold that “in the face of such acute shortage the rights of the school children of this State to competent instruction must take precedence and priority over the rights of individual teachers who seek to take their sabbatical leave and increase their earning power at a time like this.” In the first place, there is no testimony in the record except that of the Superintendent of Education that they did not have and could not get any qualified substitute teachers and there is no showing that any effort was made to get a substitute teacher and we cannot take judicial cognizance of the shortage of school teachers. It would appear to us that the board could have found one teacher to employ if it had made an effort and it was their duty to do so.

It is through no fault of the relator that the length of time necessary in order to obtain a final judgment in the case overlapped the period of time for which he had applied for such leave, and in view of the fact that his application was filed in accordance with law and in the time prescribed thereby, we believe that we should affirm the judgment and order the defendant school board to grant relator sabbatical leave as requested in brief filed in his behalf for the school term of 1950 to 1951, beginning September 1950 and ending January 1951, as was done in the extension of time in which to cut timber which had expired by reason of the length of time necessary to have the right of the party finally adjudicated. See Bennett v. Bennett, La.App., 14 So.2d 272.

Relator has requested that for a frivolous appeal we condemn the defendant board to pay damages in the amount of $100.00 for the loss of salary which would have been $700.00 per year increase in salary had he successfully completed his work under the sabbatical leave for which he applied. We cannot grant such a request as there is no money judgment in this case. See Article 907 of the Code of Practice and authorities cited thereunder.

It is, therefore, ordered that the judgment of the District Court be affirmed and that the Vernon Parish School Board be ordered to grant relator Sabbatical Leave for the school term of 1950-1951 beginning September 1950 and ending January 1951.

It is further ordered that relator be decreed exempt from the payment of any costs herein and that the Vernon Parish School Board be ordered to pay all costs as may be taxed against it under the law, viz, all stenographic fees.

J. CLEVELAND FRUGE, Judge, ting ad hoc.


source: Caselaw Access Project

author: ELLIS, Judge.

license: Public Domain

text:
    GIROUARD et al. v. AGATE.
    No. 3185.
    Court of Appeal of Louisiana. First Circuit.
    Jan. 31, 1950.
    A. Wilmot Dalferes, Lafayette, for appellants.

      Mouton & Mouton, Lafayette, for appel-lee.
   ELLIS, Judge.

The plaintiffs in the main suit are seeking damages because of injuries received by their brother which caused his death when he allegedly fell through an elevator shaft in a building owned by the defendant Agate and under lease to Bernard LeBlanc, who in turn, had subleased the upper floor of the building to Parkerson-Dupuis, Inc. for a temporary office.

By way of answer to the suit the defendant prayed that Bernard LeBlanc be called in warranty to defend the suit and for judgment against him for whatever amount be rendered against the defendant. To this call in warranty Bernard LeBlanc filed an exception of no cause or right of action. On the exception of no right of action evidence was taken, and after due hearing the trial court rendered judgment maintaining the exceptions of no right and of no cause of action to the call in warranty.

From this adverse ruling, the defendant has taken this appeal. Both counsel have filed quite extensive briefs, however, the defendant is basing his call in warranty upon an alleged violation by Le-Blanc of the provisions of Articles 2710 and 2711 of the Civil Code. To put it as stated in defendant’s brief, this case “involves a failure of the lessee to carry out the obligations under the plain terms and conditions of Articles 2710 and 2711, C. C.” He does not contend that his call is based upon the Code of Practice, Articles 378 or 379. An examination of the contract of lease entered into between the defendant and Le Blanc fail's to disclose any contract of warranty or any assumption of responsibility for the condition of the premises under the provisions of Act No. 174 of 1932. There is no obligation set forth in the lease whereby LeBlanc is called to defend an action against Agate arising from his failure to keep the building in proper repair, nor does the contract contain any assumption by LeBlanc of an obligation to pay anything in the nature of a debt which might he due by the lessor,' Agate, which, of course, could not’exist in this case as this is an action in tort for the recovery of damages. Therefore, if the call in warranty is not based on a contract of warranty under Article 379 of- the Code of Practice, it must "be based on some statutory provision. See Bank of Baton Rouge v. Hendrix et al., 194 La. 478, 193 So. 713.

As above stated, it is contended, by the defendant that he is entitled to call Le-Blanc under Articles 2710 and 2711 of the Revised Civil Code. Article 2710 reads as follows:

“The lessee is bound:
“1. To enjoy the thing leased as a good administrator, according to the use for which it was intended by the lease.
“2. To pay the rent at the terms agreed on.”

Article 2711 states:

“If the lessee makes another use of the thing than that for which it was. intended, and if' any loss is thereby sustained by the lessor the latter may obtain the dissolution of the lease.”
“The lessee, in that case, shall be bound to pay the rent, until the thing is again leased out; and the lessee is also liable for all the losses which the owner may have sustained through his misconduct.”

It is defendant-lessor’s contention that the lessee LeBlanc, having made, other use of the building other than that for which it was intended, is, therefore, liable to the defendant for any loss which he might suffer in this suit. The building for many years had been used as a garage and the second floor had been used as a storage and repair shop. There was a freight elevator in this building and it is alleged that on the night of the accident LeBlanc and Parkerson-Dupuis, Inc. had employed a night watchman who, on numerous occasions, was assisted by plaintiffs’ brother, and that on March 3, 1948 plaintiffs’ brother went into the defendant’s building and up to the second floor and accidentally fell through an opening in the elevator shaft which.opening, it is alleged, was caused by prior removal of a large beam which was formerly' laid on the floor level between the west wall of the building aiid the elevator platform. For the purpose of the exception it must be assumed that the facts arc as stated in the pleadings of the defendant (plaintiff in warranty) rather than as alleged in the petition of plaintiff in the main cause. Muntz v. Algiers & G. Ry. Co., 114 La. 437, 38 So. 410.

The.defendant in Article 3 of his answer stated: “Further answering paragraph No. three, defendant avers that, although under the terms and conditions of the lease described in paragraph No. two of plaintiffs’ petition, lessee Bernard LeBlanc was given the right and privilege of altering the 'building as he saw fit, the said lessee Bernard LeBlanc, without making any alterations, sub-let the entire second floor of defendant’s building which had been used for approximately thirty years as an automobile repair shop to the Parkerson-Dupuis Insurance Agency for the purpose of conducting a general insurance agency; that it was not intended by defendant, lessor, that the second story of the garage building was to be used as an office building, nor was defendant’s lessee using or causing to be used, the second story of the garage building according to the use intended by the lease.”

In Articles 25 and 26 defendant set forth :

“Further answering defendant avers that on the. 1st day of July 1947 by written lease, defendant leased his two story garage building to Bernard LeBlanc which said lease was duly filed in the Clerk’s office for the Parish of Lafayette, Louisiana as Act No. 202560 and recorded in Book Q-17 at page 106; that under the terms of said lease, lessee accepted said garage building in its then condition and as a condition of the lease agreed to make all alterations necessary to convert said garage building to any other suitable use; that said lessee, Le-Blanc, did make certain alterations to convert certain portions of defendant’s building to other uses than that which said building was suited; that Lessee LeBlanc subleased the second floor of the said garage building to Parkerson-Dupuis Insurance Agency to be used as a general insurance office, without the knowledge or consent of defendant and without making any alterations to transform the second floor from an automobile repair shop to an office building; that the use made of the property by lessee in causing the second floor to be subleased for an office was not the use intended by lessor at the time of making the said lease;”
“Further answering defendant avers that under the provisions of said lease agreement and the provisions of existing law defendant 'is entitled to call said Bernard Le-Blanc in warranty to defend this action for defendant and in the event that defendant should be held liable herein toward the plaintiffs for any reason or for any sum whatever, defendant is entitled to have, on his call in warranty, a judgment for and against said Bernard LeBlanc for whatever amount, if any, with interest in all other costs that plaintiffs herein shall have or recover against this defendant.”

The above are the main allegations of defendant’s answer dealing with the call in warranty or setting forth the grounds upon which the defendant is basing his call in warranty.

There is nothing unusual about the lease between the defendant and LeBlanc of July 1, 1947. It is simply a five year lease of the brick building in the City of Lafayette with the right of' the lessee to sublease the entire property or any portion thereof and the right to make any alterations to the building lessee might see fit, provided he returned the building to the lessor at the termination of the lease in its present condition, ordinary wear and tear excepted. There* is nothing in the lease changing any of the obligations of either party under the law as may be done under Act No. 174 of the Legislature for the year 1932.

The defendant intended to operate a Goodrich store and he fixed part of the building for that purpose. He then rented another portion of the building for a coffee shop, and when the offices of Parkerson-Dupuis were burned, he rented the second floor temporarily to them and it was during their occupancy that" plaintiffs’ brother was injured and died as a result thereof. While the defendant in his brief cites Articles 2692 and 2696 of the Civil Code, they are not applicable at all to this case for it has been specifically held in Duplain v. Wiltz, La.App., 194 So. 60, 62, that: “We conclude that while the question before us has been decided both ways a number of times, it is now well settled that a third person cannot rely upon Articles 2692 and 2695 of the Civil Code, since those articles run in favor of the lessee alone. It follows that since plaintiff is not the lessee her suit must be dismissed, consequently, and for the reasons assigned the judgment appealed from is affirmed.”

In this case after rehearing was denied, writs were applied for and by the Supreme Court denied.

Under the evidence it was shown that it was generally known when LeBlanc rented the building from the defendant that he intended to use a portion of it for a store. There is nothing in the record to indicate that LeBlanc was to continue to use the building for a garage and repair shop and there is nothing in the lease restricting LeBlanc in the use to which he might have for the building. The lease shows that LeBlanc intended to change the building and was given the right to make any alterations he might see fit and to sublease all of the building or any portion thereof. Also, as pointed out by the trial judge, the owner was well aware of the use to which the building was put, that is, for a store and coffee shop and temporarily for an office for Parlcerson-Dupuis Insurance Agency, and at no time made any obj ection. The property in question was commercial property and the use to which LeBlanc put it and for which it was intended to be used was for commercial purposes.

Furthermore, in order to render LeBlanc liable for misuse of the property under Article 2711 of the Civil Code, the loss to the lessor must result from using the thing for other purposes than for which it was intended. Mere misuse would not impose liability. However, we do not believe any misuse of the building has been proven and certainly no connection between the use of the building and the loss claimed.

Counsel for defendant in his brief stated that:

“The trial court in reaching its decision and sustaining the exception to the call in warranty cited as authority therefor Great American Insurance Company v. Gulf States Truck Lines, et al., [La.App.] 37 So.2d 379; Bank of Baton Rouge v. Hendrix et al., 194 La. 478, 193 So. 713; Muntz (incorrectly referred to as ‘Guaranty’) v. Algiers & G. Ry. Co., 114 La. 437, 38 So. 410.”
“It is worthy of note that the Court of Appeals, Second Circuit at this late date (October 27, 1948) in effect cited with approval Muntz v. Algiers & G. Ry. Co., 114 La. 437, 38 So. 410 and Bennett v. Weinberger, 160 La. 1001, 107 So. 780.”
“We refer to the two above cited cases for the reason that we hold these cases to be controlling in support of our position.” (Emphasis ours.)

The Muntz case, supra, was one in which the basis for the call in warranty was the contract of lease which contained a specific stipulation by which a lessee bound himself to assume all the obligations of the lessor. In the instant case, there is no such stipulation nor any assumptions of any obligations of the lessor by defendant. As stated, it is true that LeBlanc was the lessor of the Parkerson-Dupuis Insurance Agency but the plaintiffs, under the law previously cited, Duplain v. Wiltz, could not have sued LeBlanc. Articles 2692-2695 only apply to the lessee and not a third party.

Of the case of Bennett v. Weinberger, supra, counsel in his brief stated: “It is our contention that the instant case is controlled by the jurisprudence enunciated in Bennett v. Weinberger, [160 La. 1001], 107 So. 780.” In this case the lessee actively and openly violated the contract of lease by refusing to release the property at the expiration of the lease and the plaintiff having leased to another, and by reason of the lessee’s refusal to surrender the property caused damages to the new lessee which he had to pay. In this case the Court said:

“On the question of the right to call in warranty we are of the opinion that the facts of this case authorize the call.”
“It was the refusal of the warrantors to turn the leased premises hack to their lessor at the expiration of the lease that caused the defendants to breach their contract with the plaintiff.”
“There can be no question, therefore, of the liability of the warrantors to make good whatever amount their conduct caused the defendants to have to pay the plaintiff.”
“There can be no good reason given why the warrantors should not be called upon in this suit to respond to that liability.”
“While it is true there was no privity of contract between the plaintiff and the war-rantors, there was a direct contractual relation existing between the defendants and the warrantors.”

In the instant case, under the facts the lessee did not violate any of the obligations imposed upon him under the terms of the lease nor under Articles 2710 and 2711 of the Civil Code.

We are, therefore, of the opinion that the judgment of the District Court is correct and it is hereby affirmed.

ROBERT D. JONES, J., sitting ad hoc


author: FRUGE, Judge Ad Hoc. ELLIS, Judge

text:
    ALEXANDER v. J. E. HIXSON & SONS FUNERAL HOME et al.
    No. 3217.
    Court of Appeal of Louisiana. First Circuit.
    Feb. 17, 1950.
    King, Anderson & Swift, Lake Charles, W. -R. Jackson, Jr., Lake Charles, Thos. C. Ha-11, Lake Charles, fox appellant. ,- ’
    Moss & Graham, Lake Charles, John R. Stewart, Lake Charles, for appellees.
   FRUGE, Judge Ad Hoc.

Plaintiff instituted this suit against defendant, J. E. Hixson & Sons Funeral Home, as a partnership, against the partners individually and the funeral home’s insurer, Continental Casualty Company under the Workmen’s Compensation Act. Act No. 20 of 1914, as amended. After issue joined on merits, the District Judge decided in fayor -of defendants, rejecting plaintiff's demands at his costs. Plaintiff appeals.

Plaintiff-alleges and -contends that -he was an employee of defendant and that on or about the 7th day of May, 1947, he was injured -during, the course of his employment while in the process of lifting a vault .lid in a cemetery near Sulphur, Louisiana. He alleges that he ruptured himself in removing the vault lid and was temporarily totally -disabled to do work -for a period o-f 16 He alleges that he is entitled to receive compensation from defendants at the rate of. $20.00 per week for the sixteen weeks and should be reimbursed for all medical expenses incurred in the treatment of said injury which are in the amount of $232.00. weeks-.

The defendants admit that plaintiff was injured on May 16, 1947, and as a result o-f the injury he was temporarily and totally disabled to do work o-f any reasonable character for a period of sixteen weeks, but they deny that he was their employee.

The facts in this case are without dispute and these, material to the issue, are established as follows:

The plaintiff -owned and operated a florist business in Sulphur, Louisiana. The defendant, J. E. Hixson & Sons, at the -same time owned and operated a branch -funeral home in the t-o-wn of Sulphur, Louisiana, under the management--o-f one James Young.. About -a year before plaintiff’s injury, when Young ordered a casket spray from Alexander, the plaintiff, Alexander offered Young a percentage of the price in gratitude for the business. Instead, Young suggested that each man might help the other in their business when not too occupied with their own. This arrangement continued up to the date of the injury to plaintiff. The evidence reveals that Alexander, the plaintiff, worked with Young in the preparation of funerals in that he did take ambulance trips, set up equipment for funerals, and did go to the cemetery to take vault lids off 'before the funeral services. On the other hand, Young, who had once been a florist, did help the plaintiff in the preparation of floral designs.

There is no question involved of the hazardous nature of the business and the question at issue is whether or not the plaintiff was, at the time of his injury, an employee of the defendant, J. E. Hixson & Sons Funeral Home.

The Louisiana Workmen’s Compensation Act, as amended, Act. No. 20 of 1914, as amended, lays no. specific definition of what constitutes an “employee”, Section 1 of said act merely stating:

“2. Every person performing services arising out of and incidental to his employment in the course of his employer’s trade, 'business or occupation in the following hazardous trades, businesses and occupations * * and thereafter listing the trades and occupations.

The general statement of the law defining the status of Employer-Employee, found in American Jurisprudence, Vol. 35, Sec. 3, p. 445, is to the effect:

The essence of the relationship is the right to control. The four primary eviden-tiary factors considered in deciding the above are—

1. Selection and engagement,

2. Payment of wages.

3. Power of dismissal.

4. Power of control.

Taking up the above factors in chronological order, it appears from the evidence and the testimony of the plaintiff himself, that he and Young developed a working arrangement of mutual benefit to themselves in their complementary work, that there was no selection or engagement.

As to the second factor, the evidence clearly shows that Young and the plaintiff merely helped one another out when called upon and that no wages were ever discussed or contemplated. Plaintiff contends that it is not necessary that there be payment of wages in order that an employer-employee relationship exist and cites the following cases: Roush v. Heffelbower, 1932, 225 Mich. 664, 196 N.W. 185, 35 A.L.R. 196, Michigan Supreme Court; Schumacher v. Schumacher et al., 1939, 67 S.D. 46, 288 N.W. 796, Supreme Court, South Dakota; and Langley v. Findley et al., 1944, 207 La. 307, 21 So.2d 229.

Plaintiff also cites the following rules to support his.contention, to-wit:

Horowitz (Samuel B..,Horowitz-Injury and Death Under Workmen’s Compensation Laws, pages 203-204) states the law as follows :

“Compensation is denied also, to most persons who are mer.e volunteers, e.g. assist without pay or contract of hire, but an emergency or authority to 'hire help may make the “volunteer” an employee * * The absence of wages is no bar. Where the wage is not yet agreed on the law will imply a reasonable remuneration.”

For the view in other states we further cite 28 R.C.L. 760:

“According to a rule of general recognition, a person who works for another of his own volition, without the knowledge or request of anyone in authority, cannot thereby establish the relation of employer and employee, so as to base any claim for damages on the duty owed by the employer to his employee. And this- principle must hold true in respect of demands under the compensation acts. But one who actually performs services for another, at the instance of an accredited employee of the latter, is not to be deemed a volunteer, where it appears that the inducing employee was clothed with actual authority to engage assistance, or where there existed an emergency from which the law implies an authority to secure the help of other persons. Accordingly, the driver of a team who, at the request of one whose team had become •mired and unable to draw out its load, hitches his team to the wagon in an attempt to get the same out of the mud, and is injured, is held to he entitled to compensation from the owner of the, team that was mired, since the driver of that team had implied authority to employ the necessary assistance to extricate his team.”

However, in the case at hand the arrangement between Young and Alexander continued for over a year, during which time Alexander neither received nor requested wages or compensation of any kind. It was a reciprocal -good fellowship agreement for mutual .benefit. In most of the cases cited by plaintiff where no definite wage was agreed upon the injury occurred a very short time after employment, and conséquently the court held that wages is no bar, but in this case, as stated, the arrangement between Young and Alexander had continued for over -a year.

Further, Subdivision 3, Section 8 of the Compensation Act, as amended, Act No. 120 of 1944, provides:

“The term ‘wages’ as used in this act is defined to mean the daily rate, of pay at which the service rendered by the injured employee is recompensed under the contract of hiring in force at the time of the injury, and anything herein contained to the- contrary notwithstanding the maximum compensation to be paid under this act, shall be twenty dollars per week and the minimum compensation shall be three dollars per week; provided that if at the time of - the injury the employee was receiving wages at the rate of three dollars or less per week, then compensation shall be full wages.”

The act thus contemplates a contract of employment whereby the employee and employer agree on a fixed wage in order that the court may properly determine the amount of compensation due the employee in case of injury while in the course of employment.'

Alexander testified that he only helped Young when he had sold flowers for the funeral. Such services he performed for Young were in return for Young keeping his, Alexander’s', shop whenever he was away from Sulphur.

Taking the third and fourth factor, namely the “Power of Dismissal” and the “Bower of Control” together, the court thinks that these factors were not present in this case. The evidence clearly shows that Alexander was not under any obligation to help the defendant’s manager with the preparation of funerals. In fact, on many occasions he did not help Young and was free to go and return as he saw fit. The fact that he did not help Young every time ■he was called upon reveals that their agreement was one based on cooperative friendship. Young never had the authority, nor did he ever try to exert any power of control over the plaintiff.

The evidence further showed that the defendant, J. E. Hixson & Sons Funeral Home never did carry plaintiff on its books as being in its employ; that the plaintiff never did receive any money of any nature from Hixson; that -further, although it.did report and make a list of employees, which it reported to its Insurance Carrier, the -name --of the plaintiff was omitted even though this agreement between Young and the plaintiff bad existed over ,a year.

For reasons assigned the Judgment is affirmed.

ELLIS, Judge

(dissenting).

As stated in the majority opinion, the only question at issue is whether the plaintiff was, at the time of his injury, an employee of the defendant company, J. E. Hix-on & S'ohs Funeral Home. Also stated in the majority opinion is the general statement of the law defining the status of the employer-employee as found in American Jurisprudence, Vbl. 35, Sec. 3, Pg. 445 to the effect:

The essence of the relationship is the right to control. The four primary evi-dentiary factors considered in deciding the above are—

1. Selection and engagement

2. Payment of wages.

3. Power of dismissal.

4. Power of control.,

I am of the opinion that under the facts in this case all four factors are present.

The plaintiff owned and operated a florist business in Sulphur, Louisiana, and the defendant, J. E. Hixson & Sons, at the same time owned ’and operated a branch funeral home under the management of James Young, who 'had formerly owned a floral shop and was experienced in that type of business. There is no dispute that Young had authority to engage the necessary employees to carry on the business of the defendant. ' On 'cross examination, Young testified as follows:

“Q. You mention that you had an agreement with Mr. Alexander. Wasn’t that something that just worked itself out as you worked over here in Sulphur? A. No it didn’t because when I first moved over there a family asked me to order a casket spray. I ordered it from him. He came down and offered me twenty per cent of the amount he received 'for the spray. I believe it was a $50.00 casket spray. I told him then, ’Bruce, I don’t give you twenty per cent of my salary but I would 'like to make an agreement with you that I will work with you if you will work with me when we need help.’ (Emphasis mine.)
“Q. I believe you stated that either of you would call the other and find out if he was busy and if not the one would help the one who would call? A. We helped each other when we were busy. * * * ”

It is further shown by the testimony that the plaintiff accepted Young’s proposition to work for the defendant when it needed help and he was to receive in return the services of defendant’s manager in his floral shop when needed. Plaintiff attended approximately 95% of the funerals handled by the defendant from the date of the agreement until he was injured. On the day that plaintiff was injured as a result of lifting a vault lid he had been called by Young, defendant’s manager, to come and assist in that particular funeral.

Plaintiff, also, during the same period, drove the ambulance of the defendant, answered emergency calls, picked up bodies and, in general, performed any duties in connection with' the defendant’s business when called upon' by its managed It is shown by the record that the value of the services which the plaintiff rendered were worth $10.00 per day. All of this was done by plaintiff with the knowledge of the owners of the defendant company.

There is no dispute that the plaintiff became a trained assistant funeral director, in fact, the testimony of Young, the manager of the funeral home, was:

“In other words, he (plaintiff) was just like an employee there. In fact, when I first went over there (Sulphur, La.), he wasn’t what. I "considered — and you know every undertaker has a way of doing things and I trained him the 'way I wanted him and he was a lot of 'help on funeral.” (Emphasis added.)

Naturally, it was the duty and desire of the manager of the defendant company to carry on its business as economically as possible and that is what he did in this instance by selecting and engaging the plaintiff to work for the defendant without the payment of any money as wages. The duties which the plaintiff was called upon to perform were all in connection- with the defendant’s business. I am, therefore, of the opinion that the plaintiff was selected and engaged to work for the defendant.

As to the payment of wages, it is true that he received no money and none was intended to be paid to him, but he received valuable services from the manager of the defendant compariy. The nature of defendant’s business was such that its manager of necessity had to be on duty at all times, night and day, and when he worked for the plaintiff in his floral shop he was doing so on the time o.f the defendant company. There is no dispute that he had authority to employ the plaintiff and it follows that he would have had authority to pay plaintiff wages or to pay him anything else which the plaintiff was. willing to accept. In the present case, the plaintiff at times needed help in his floral business and he, therefore, accepted as wages the services of the defendant’s manager. Cash wages are not necessary. Langley v. Findley et al., 1944, 207 La. 307, 21 So.2d 229; Roush v. Heffelbower, 1932, 225 Mich. 664, 196 N.W. 185, 35 A.L.R. 196; Schumacher v. Schumacher et al., 1939, 67 S.D. 46, 288 N.W. 796.

Horowitz (Samuel B. Horowitz-Injury and Death under Workmen’s 'Compensation Laws, pages 203, 205) states the law as follows:

“Compensation is denied also to most persons who are mere -volunteers, E. G. assist without pay or contract of hire, 'but an emergency or authority to hire help may make the ‘volunteer’ an employee. * * * The absence of. wages is no bar. Where the wage is not yet agreed on the law will imply a reasonable remuneration.”

For the view‘in other states we further cite 28 R.C.L. 760 :

“According to a rule of general recognition, a person who works for another of his own volition, without the knowledge or request of anyone in /authority, . cannot thereby establish the relation of employer and employee, so as to base any claim for damages on the duty owed by the employer to his employee. And this principle must hold true in respect of demands under the compensation acts. But one who actually performs services for another, at the instance of an accredited employee of the latter, is not to ¡be deemed a volunteer, where it appears that the inducing employee was clothed with actual authority to en-gáge assistance, or where there existed an emergency from whidi the law implies an authority to secure the help of other persons. Accordingly, the driver of a team who, at the request of one whose team had become mired and unable to draw out its load, hitches his team to the wagon in an attempt to get the same out of the mud, and" is injured, is held to be entitled to" compensation from the owner of the team that was 'mired, since the driver of that team had implied authority to employ the necessary assistance to extricate his team.”

In the present case, the plaintiff was not working for the defendant without its knowledge or without the -request of anyone in authority. He was -engaged to work for the defendant by its manager and performed his duties with the full knowledge of the defendant. He actually performed services for the defendant for which he did not receive any monied compensation .but he- agreed to accept and did receive the services of the manager of the defendant as compensation for his services to the defendant.

The Court, in the case of Smith v. Jones, 1925, 102 Conn. 471, 129 A. 50, 51, 43 A.L.R. 952 stated:

“This appeal relates to certain claimed errors of the tria-l court in failing to hold from the subordinate facts found by the commissioner:
- “(1) That plaintiff had no contract of employment with the defendant Jones, and that the relation of employer and employee did not exist between them, and hence that they were not subject to- the Compensation Act. * * *;
“(2) That the parties (Smith and Jones) were; engaged in a joint enterprise as to which no relation of employer -and employee arose. * * * ” ,
“The subordinate facts, as found by the commissioner, -are that Smith (the claimant) -and Jones were dairy farmers owning adjoining. farms; that both used silos to store food for their cattle.”
* * * * * *
“By mutual agreement, between Mr. Smith and Mr. Jones they assisted each other in filling silos and icehouses. In. the season of 1923 Mr. Jones’ ensilage corn was farther advanced and matured than that of Smith, and it was accordingly arranged that Jones’ silo should be filled first.”
* * * * * *
“During all the time that the claimant was engaged in this work for’ the respondent, the respondent directed his activities, told him what to do and when to stop. The plaintiff was engaged in running the mechanical operation.”
* * * * * *
“(2) The question presented is "whether the finding as to the mutual agreement of "Smith and Jones, that they should assist each -other in -filling silos and i.ceh'ouses, coupled with the work -done by Smith in pursuance of this agreement, is a Tiasis for a logical and legal conclusión that there was a -contract of service" and employment between them when the injury occurred. They had agreed to assist each other to fill their respective silos, their compensation for working one 'for the other was work to ■be 'done Iby the other. These were mutual agreements creating a valid contract for service, and enforceable at law in case of a breach. The fact that the services were to •be compensated for 'by labor and not money does' not make the agreement any the léss a contract for service.”
“The Compensation Act (Gen.St. 1918, § 5388) defines an employer as 'any person, corporation, firm * * * using the services of another 'for pay.’ Pay here means compensation. Aisenberg v. Adams Co., 95 Conn. [419], 423, 111 A. 591; Roush v. Heffelbower, 225 Mich. 664, 196 N.W. 185, [135 A.L.R. 196].”
“The respondents claim that the only conclusion legally and logically to be drawn from the mutual agreement of the parties is that of a joint enterprise entered upon which did not create the relation of employer 'and employee, or a 'social affair in the nature of a social barn raising or corn husking. Joint enterprise, as used by the appellant, means something in the nature of a partnership.”
“The agreement between Smith, and Jones was mot in the nature of a partnership or one made dor social diversion. It was on agreement for employing service, compensation to be made by similar service. * * *
“There is no error.”
“All concur.”

We have the same situation in the case at bar 'and I believe that as in that case so it is in the present case, “an agreement for employing service, compensation to ibe made by similar service.”

The majority opinion states that they do not believe that the third and fourth factors, viz : the “power of dismissal" and the “power of control” were present in this case for “Alexander was not under any obligation to help the defendant’s manager with the preparation of funerals.” It appears to me that Alexander was under the same obligation to perform the duties he had agreed upon, one of which was to help w.ith the preparation of funerals as any ordinary employee, drawing cash wages would have ■been. It is argued that “on many occasions •he did not help Young and was free to go and return as he saw fit. The fact that he did not help Young every time he was called upon reveals that their agreement was one based on cooperative friendship.” I do mot think that plaintiff was free to go and return as he saw fit any more than any ordinary employee. The same thing could happen to the .plaintiff if he refused to perform the agreed duties as could happen to any _ employee who was being compensated by- cash wages.' The ordinary employee could be dismissed and the plaintiff could have been dismissed and would have suffered the loss of the services of defendant’s manager which was the compensation agreed upon. The plaintiff assisted in 95% of the funeral's, and the mere fact that he did not assist in the other 5%, even if he was called upon, is not, to my mind, proof that the agreement was one based on “cooperative friendship.” Any ordinary employee could have done the same, that is, toíd the defendant, “I am not going to work today,”' and the only thing the defendant could do would be to dismiss the employee for refusing to come to work. He could have done the same thing to plaintiff.

The majority opinion disposes of the fourth factor, “power of 'Control” with the statement: “Young never had the authority, nor did he ever try to assert any power or control over the plaintiff.” Young testified that he had the power of control over the plaintiff and it is proven that he did by reason of the fact that he trained this man so that he became an expert in the line of business of the defendant. Young stated in effect that the plaintiff knew nothing about the funeral business at the time he was employed, and he could not have taught him unless he had exercised the power of control ,and direction. Young, in my opinion, had the right to control in the sense necessary to constitute the fourth factor. The fact that the defendant did not carry the plaintiff on its books as being in its employ, nor pay him 'any money as wages nor report his name to its insurance carrier as an employee does not alter the fact that he was an employee under the proven facts and the law and jurisprudénce applicable thereto.

For these reasons I respectfully dissent.


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    LACAZE v. BEESON et al.
    No. 3201.
    Court of Appeal of Louisiana. First Circuit.
    Feb. 17, 1950.
    Peterman & Burden, Alexandria, for appellant.
    Stafford & Pitts, Alexandria, Alva Jones, Oakdale, for appellees.
   ELLIS, Judge.

The 'plaintiff, Monroe Lacaze, Instituted this suit in forma pauperis against the defendants, Frank J. Beeson, Willard Beeson and the Joslyn Manufacturing and Supply Company of Mena, Arkansas, a nonresident company authorized to do and doing business within the State of Louisiana, and its liability insurance carrier, the Liberty Mutual Insurance Company, in which he is seeking' to recover damages for injuries sustained by him on August 30th, 1948 at Pitkin, Louisiana, when a truck allegedly negligently driven by defendent Frank J. Beeson, struck an automobile on a hydraulic grease lift under- which the plaintiff was working, which resulted in a car being knocked off the lift and falling on the plaintiff. The plaintiff sought to hold the defendant Willard Beeson and the Joslyn Manufacturing and Supply Company liable on an allegation that at the time of the accident “the defendant Frank Beeson was employed by defendant Willard Beeson; that they both worked for defendant Joslyn Manufacturing and Supply Company of Mena,' Arkansas, and that their job was to haul poles and piling for the said company.”

The defendant Frank Beeson filed an answer in proper person denying liability and the defendant Frank Beeson, through counsel, is defending the- suit on the ground that the defendant Frank Beeson was an in-dependant contractor and, further, that at the time of the accident he was not acting as an employee or contractor of the defendant Willard Beeson but was acting on his own authority. The other two defendants, Joslyn Manufacturing & Supply Compauiy and Liberty Mutual Insurance Company,' denied all material allegations of plaintiff’s petition and further answered “that there has never been any agency between the Joslyn Manufacturing and Supply Company and the defendants, Frank Beeson and Willard Beeson,” and that, therefore, they cannot be held liable for the actions of either.

The case was duly tried and resulted in a judgment in favor of the plaintiff and against the defendant, Frank J. Beeson, for $9,811.32 with 5% thereon from judicial demand until paid, and further fixed the fee of an expert witness at the sum of $50.00 and taxed it as 'costs in the suit. The Lower Court rejected the demands of the plaintiff against the defendant Willard Beeson,. Joslyn Manufacturing and Supply Company and Liberty Mutual Insurance Company.

From this judgment, the plaintiff was granted a suspensive and devolutive appeal without bond and the defendant, Frank J. Beeson, was granted a suspensive and devolutive appeal, suspensive according to law and devolutive upon furnishing bond in the sum of $500.00. The defendant Frank Beeson did not perfect his appeal.

The plaintiff in his brief states that he is appealing “from the portion of the judgment dismissing the claim against Joslyn Manufacturing and Supply Company and the reduction of the quantum.”

There is no doubt that it is established by the testimony practically without the least .contradiction that the negligence of the defendant Frank Beeson .was the cause of the accident and the resulting injuries to the plaintiff. Frank Beeson had broken the “A” frame on the truck which he used to load piling at Starks, Louisiana, and he brought it to the plaintiff’s shop in his home town of Pitkin, Louisiana, a distance of fifty or sixty miles, for repairs. He arrived on Saturday afternoon and' although work was done on the truck on Sunday, there was still, a small amount of work left to be done and, therefore, Beeson brought his truck back on Monday morning and backed it into plaintiff’s shop. Plaintiff’s partner, Ernest Beeson, was doing the work on this truck and the plaintiff at the time had a car up on the grease lift placing a “U” bolt in a shock absorber when Frank Beeson drove his truck with the loading boom on it out of the garage and in doing so allowed the loading boom to strike the car and knock it off of the grease rack and it fell on the plaintiff. There was no reason, from the" evidence, for defendant Frank Beeson to have struck this, car had he not been extremely negligent.

As to the liability of the Joslyn Manufacturing Company, we are of the opinion that the judgment is correct. The plaintiff contends that Frank Beeson was Joslyn’s agent and employee at- the time of the' accident, whereas Joslyn contends that there was no agency or employee relationship whatever between it and the defendant Frank Beeson, and that, as a matter of fact, Beeson was an independent contractor. The plaintiff and the defendant cite, as correctly stating the test to be applied -in order to determine whether the relationship of-employer-employee or that of independent contractor exists in cases involving such a question, Crysel v. Gifford-Hill & Co., La.App., 158 So. 264, and Ravare v. McCormick & Co., La.App., 166 So. 183.

In Crysel v. Gifford-Hill & Co. the Court held:

“One contracting to do certain work according to plans and specifications prepared by contractee, but who exercises full control as to method of doing work, save that it must be up to certain standard, is an ‘independent contractor,’ for whose actions contractee is not liable, though he exercises some supervision over work to see that it is done according to contract.
“Subcontractor employed by contractor to do dirt work on state highway, who was financed by contractor and subject to his general control and supervision, held ‘independent contractor,’ and not ‘employee’ of contractor, and hence contractor was not liable for negligence of subcontractor’s employee. *
* * * * * *

“ ‘And our own courts have repeatedly held that the mere fact that a proprietor retains general supervision over work to be constructed for him by another, for the purpose of satisfying himself that the contractor carries out the stipulation of his contract, does not make him (the proprietor) responsible for the wrongs done to third persons in the prosecution of the work. Lutenbacher v. Mitchell-Borne Const. Co., 136 La. 805, 67 So. 888, 19 A.L.R. 206; Robichaux v. Morgan’s L. & T. R. & S. S. Co., 131 La. 727, 60 So. 206; Robideaux v. Hebert, 118 La. 1089, 43 So. 887, 12 L.R.A., N.S., 632; Muldry v. Fromherz & Drennan, 142 La. 1087, 78 So. 126.’” [158 So. 265]

In Ravare v. McCormick & Co., the Court held [166 So. 183, 185]:

“What is an independent contractor ? It is, defined as ‘one who is rendering services, an independent employment or occupation, and represents the employer only as to the results of his work, and not- as the means whereby it is to be done.’ 39 C.J. § 1517, Page 1315. The most generally applied test of the relationship is the ‘right of control as to the mode of doing the work contracted for.’ Ibid, Section 1316, Faren v. Sellers, 39 La.Ann. 1011, 3 So. 363, 4 Am.St.Rep. 256; Gallagher v. Southwestern Exposition Ass’n, 28 La.Ann. 943.
“The circumstances which go to show one to be an independent contractor are the ‘independent nature of his business, the existence of a contract for the performance of a specified piece of work, the agreement to pay a fixed price for the work,-the employment of assistants by the employee who are under his control, the furnishing by him of the necessary materials and his right to control the work while it is in progress.’ 39 C.J. p. 136, § 1517.”

Each case depends upon its own facts in order to determine the question and it is, therefore, necessary that we examine the facts in the present case.

The Joslyn Manufacturing and Supply Company of Mena, Arkansas was engaged in the pole and piling business and in the furtherance of its business furnished to various producers of poles a price list showing the various prices they were willing to pay for the different length poles. They had an agent who came to Louisiana in order to buy poles for them. Among the producers of poles was Willard Beeson, one of the defendants herein, and he was furnished a list of prices which the Joslyn Company was willing to pay for poles of certain lengths and certain grades and he sold' some poles to the Joslyn Company. These poles were sold by Willard Beeson to the Joslyn Company F.O.B. the cars at Starks, Louisiana. Willard Beeson would cut and haul the poles to a pole yard at Starks, where an agent of the Joslyn Company would inspect and grade the poles which he desired to purchase. In other words, he would pick out the poles that met the requirements and needs of the Joslyn Company, whereupon Willard Bee-son would be paid 85 %■ of the purchase price and 15% was withheld' to be paid to Willard Beeson after the poles were loaded oil cars at Starks, Louisiana and had arrived at Mena, Arkansas. The 15% was withheld as a protection to the Joslyn Company in order to assure it that Willard Beeson would load the poles within 60 to 90 days from the date of the purchase and before they began to rot or deteriorate. The 15% retained was approximately 5% over and above the cost of such loading and if Willard Beeson failed or refused to load the poles he forfeited the 15% retained and the Joslyn Company could then have the poles loaded.

Willard Beeson employed the defendant Frank Beeson, who was engaged in the hauling and loading of poles generally, to load the poles he sold to Joslyn Manufacturing -and Supply Company and agreed to pay him the full 15% of the purchase price retained by the Joslyn Company. When the poles which Frank Beeson loaded as a result of his contract with Willard Beeson arived at Mena, Arkansas, the Joslyn Company would make a check payable to Willard Beeson for the 15% retained, and upon receipt of this check, Willard Beeson would endorse it to Frank Beeson. It was the duty of Frank Beeson to order the railroad cars upon which to load the poles, and if there was such a delay in the loading that demurrage was due and chargeable by the railroad, such demurrage was an obligation of Frank Beeson. It was while loading the Joslyn Company poles under his contract with Willard Beeson that the “A” frame on his loading truck was broken which resulted in his taking it to his home at Pitkin, Louisiana, for repairs.

It is further shown by the record that introduced in evidence are copies of the original 'checks, each having attached thereto a copy of a statement showing the items covered by the check “in settlement with Willard Beeson” and on each statement is a deduction for insurance in different amounts.

It is further shown that a representative 'of the Joslyn Company on some occasions did request and designate certain old poles to be loaded and at times asked 'that 'certain lengths-be loaded. Under this state of facts and the law as above cited it is the contention of the plaintiff that the Joslyn company had the right to control the mode of doing the work as well as the result as “there is the testimony of Frank Beeson himself to the effect that he loaded poles and piling of a certain length at the time and place specified by the agent of the Joslyn Company.” Plaintiff then quotes an extract of this testimony. It is true that he testified “ * * * there were some old poles on the yard they told me to get * * * . By “they” he testified he meant the inspector for the Joslyn Company. However, it will be noted that in this same extract of testimony Frank Beeson was. asked the question, “Did anyone control you in regard to the operation of your work?” (A) “Not directly, only to see that the work was done correctly; * * * The Joslyn Company under the law retained the right to see that Willard Beeson or' anyone employed by him carried out the stipulations of the contract of sale between the Joslyn Company and Willard Beeson, that is, that the poles were loaded within 60 to 90 days of the date of purchase" and at least before they deteriorated or rotted. Under the facts in this case, Willard Bee-son, under the terms of the purchase agreement, was "responsible for loading the- poles, and although they were the property of the Joslyn Company from the moment they accepted them and paid 85% of the purchase-price, Willard Beeson certainly had an interest in carrying out the sales contract, that is, to load the poles or see that they were loaded for he was engaged in the pole and piling business and aside from the fact that he would have forfeited 15% of the-purchase price by such failure to carry out. his '"contract, it was also in furtherance of his general business to see that the poles-were loaded in accordance with his contract. It is true, as stated, that Joslyn made deductions for insurance but not for Frank Beeson. Such deductions were made in a. settlement with Willard Beeson. This alone would not make Frank Beeson an employee-of the Joslyn Company. In the first place, Joslyn’s entire agreement was with Willard Beeson and it is not shown that they had' any agreement, actually or implied, with Frank Beeson. Under Frank Beeson’s contract with Willard Beeson, he furnished his own means and equipment for loading the poles, and if it had been necessary for him to hire any extra labor it would have been his responsibility to do so and he could have hired whom he .pleased, when and as he pleased. Under the agreement with Willard Beeson he could load the poles as and when he pleased and by any method or mode that he thought best. This was a part of Joslyn?s purchase agreement with Willard Beeson and Joslyn looked to him to load the poles and carry out his agreement. It made no difference to Joslyn whether he employed somebody to do this for him or not. Joslyn had no right to fire Frank Beeson. If Willard Beeson breached the sales agreement by failing or refusing to load or cause to be loaded the poles in question, Joslyn could then refuse to pay him the remaining 15% of the purchase price and could use this in order to personally employ someone to carry out the loading part of the sales agreement.

The Joslyn Company in this case made no separate agreement with Willard Bee-son or anyone else with regard to the loading of the poles, for the company bought the poles F. O. B. the cars at Starks, Louisiana and retained 15% of the purchase price in the event Willard Beeson failed to carry out the entire sales agreement.

"While counsel for plaintiff has cited many cases, we do not feel that there is any necessity to discuss them for under the facts and the test as laid down in the two cases cited we are satisfied that Frank Beeson was neither an employee nor agent of the Joslyn Company and it is, therefore, not liable. In addition to the above, we are of the opinion that at the time of the accident Frank Beeson was not doing anything in the furtherance of the Joslyn Company’s business but was on a mission of his own and for his own advancement.

According to plaintiff’s statement in his brief, he is not questioning the judgment of dismissal as to Willard Beeson, however, we might add that'in our opinion the judgment of the Lower Court was also correct in dismissing plaintiff’s claim against Willard Beeson.

As to the quantum of damages, it is shown by the record that Frank Beeson was judgment proof and plaintiff only argues this phase of the case in the event that we should hold the defendants liable in solido. Although plaintiff’s injuries were most serious and of a permanent nature and his pain and suffering excruciating and while we feel that an increase would be justified under the facts, in view of Frank Beeson’s financial inability to respond for any amount and as the other defendants are not liable, we will not disturb the award.

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

J. CLEVELAND FRUGE, Judge, sitting ad hoc.


text:
    LEE v. TRAVELERS FIRE INS. CO.
    No. 3198.
    Court of Appeal of Louisiana. First Circuit.
    Feb. 17, 1950.

      Thompson, Lawes & Cavanaugh, Lake Charles, for appellant.
    J. S. Pickett, Many, for appellee.
   ELLIS, Judge.

This is a suit by the plaintiff, Ivy G. Lee, against the defendant, Travelers Fire Insurance Company, for the recovery of $975.00 which is alleged to be due the plaintiff under the terms of a contract of fire insurance issued by the defendant to the plaintiff, covering a certain Ford truck owned by the plaintiff, and for the additional sum of $243.75 and the sum of $500.00 as attorney fees, both of the latter being allegedly due by reason of the failure and refusal of the defendant insurance company to pay plaintiff’s claim within sixty days from the date .upon which it received the proof of notification of loss in accordance with Section 3, Act. No. 59, of the Extra Session of the Legislature for the year 1921.'

The defendant in its answer admitted having issued a fire insurance policy to the plaintiff, but denied that the plaintiff had sustained the- loss, of $975.00, and further denied liability under the contract of insur-anee, contending that the policy did not apply where there existed upon the insured property encumbrances which were not declared on or described in the policy and that at the time the defendant issued the policy to the plaintiff covering the Fo.rd truck, such was the case. Counsel entered into a stimulation as to the facts and the case 'was submitted on such facts and the pleadings."

The case resulted in a judgment in favor of the plaintiff for the amount of the loss by fire to the Ford truck in the amount of $800.00 and for an additional sum of $200.-00, being 25% of the amount of the loss as damages, and for the further sum of $150.00 as attorney fees, making a total judgment of $1150.00 with legal interest from date of judicial demand until paid and all costs of this suit, from which judgment the defendant has appealed.

Counsel for both parties agreed that under the law and jurisprudence of this state a fire insurance policy should not be declared void by an insurer for the breach of any representation, warranty or condition contained in the policy unless such breach shall exist at the time of the loss and shall be such a breach as would increase either the moral or physical hazard under the policy. Act No. 222 of 1928; Knowles v. Dixie Fire Insurance Company of Greensboro, N.C., 177 La. 941, 149 So. 528; Godfrey v. Security Insurance Company, La.App., 147 So. 101; Brough et al. v. Presidential Fire & Marine Ins. Co., La.App., 176 So. 895.

Thus, the question to be decided in this case is whether or not at the time of the loss the plaintiff’s breach of the provisions of the policy were such as would ordinarily increase the moral hazard under the policy. The answer to this question is to be determined by the particular! facts and circumstances of each case and the burden of proof in establishing that there has been such a breach of representation, warranty or condition and that the moral hazard has been increased rests upon the fire insurer.

Under the stipulation of facts it is shown that the- insurance policy was issued -on April 15, 1947 and that the truck burned ón June 28th, 1947,'and that, on these respective dates the truck was encumbered with the following mortgages:

1. Chattel mortgage dated November 7, 1946, executed by plaintiff in favor-of Riemer Calhoun, securing a note for $790.00, due in eight 'monthly installments of $98.75 each, beginning December 7, 1946, covering said truck and a Nabor’s trailer. ' April 15; 1947 — Balance Due, $395.00j in arrears one monthly installment; June 28th, 1947— Balance due, $395.00; in arrears three monthly installments. Paid in full subsequent to September 19th, 1947.

2. Chattel Mortgage dated January 11, 1947, executed by Homer Lee, the son of plaintiff, in favor of P. C. Fair Insurance Agency, securing a note for $737.81, due in-ten monthly installments of $73.79 each, beginning on February 11, 1947, covering said' truck and a Nabor’s Trailer. April 15th, 1947 — Balance due $664.02; in arrears 2 monthly installments; June 28th, 1947— Balance due $64.02, which was subsequently paid.

3.. Chattel mortgage dated February 28,. 1947, executed by plaintiff in favor of V. H. Brumley, securing a note for $200.00,, due June 1, 1947, covering said truck. Past due on June 28th, 1947, remains unpaid.

4. Chattel mortgage dated April 15,. 1947, executed by plaintiff in favor of Fred' Rivers, securing a note for $1152.00, due in twelve monthly installments of $96.00> each, beginning May 17, 1947, covering-said truck, agreed value $1100.00; one Dual Wheel Trailer, agreed value $350.00;' One-Craden Wench, agreed value $150.00; and', one pair of horses, agreed value $350.00, or a total value of $1950.00. The note secured' by this chattel mortgage was immediately-sold to Caddo Finance Corporation and it is this encumbrance which was declared in the fire insurance policy. The trial judge-in his reasons for judgment stated that counsel for defendant in his brief gave as. the balance due on the’ date that the truck: burned $990.00 which would show a payment of $162.00 on this mortgage indebtedness which, even under this statement would place the plaintiff in arrears $30.00-' on June 15, 1947. We do not doubt’ the-statement of the trial judge in the least but on this appeal we do not-have the brief filed in the lower court and under the stipulation of facts there-was nothing paid on this mortgage on the date of the fire and there is no contention by counsel for plaintiff in brief filed that any payment was made, however, defendant in his brief admits that in its, trial brief it was stated that, there was $990.00 due on this mortgage on the date of the fire.

The question involved in this case was the subject matter of Act No. 222 of t-he Legislature of 1928 as well as many cases decided by the Courts of this and other states. Section. 1 of Act No. 222 of 1928, Louisiana General Statutes, § 4191, provides in part: “No policy of fire insurance issued by any insurance company, corporation, association, firm or individual, on property in this State,. shall hereafter be declared void by the insurer for the breach of any representation, warranty or condition contained in the said policy, or in the application therefor, nor shall any such breach avail the insurer to avoid liability, unless such breach shall exist at the time of the loss and shall be either such a breach as would increase either the moral or physical hazard under the policy, * *

“Moral Hazard” is defined in Vol. 27 “Words and Phrases”, Perm.Ed., Page 548, as follows: “ ‘Moral Hazard,’ in insurance, is but another name for a pecuniary interest in the insured to permit the property to burn. Statistics, experience, and observation all teach that the moral hazard is least when the pecuniary interest of the insured in the protection of the property against fire is greatest, and that the moral hazard is greatest when the insured may gain most by the burning of the property. Syndicate Ins. Co. v. Bohn, 8 Cir., 65 F. 165, 170, 12 C.C.A. 531, 27 L.R.A. 614.”

In the Godfrey v. Security Insurance Company case, La.App., 147 So. 101, 103, the Court in quoting the trial judge stated: “If the property insured was mortgaged for more than its value or for a sum approximating its value, there is little doubt that as a legal proposition the moral hazard would be- -increased, because the interest of the insured would be greatly lessened or eliminated, and he would not have the same interest in protecting it from loss; *

The Supreme Court in the case of Knowles v. Dixie Fire Insurance Company of Greensboro, N.C., 177 La. 941, 149 So. 528, 531, stated:

“Under Act No. 222 of 1928,.p. 291, the question whether the existence of the chattel mortgage on the property subject to the insurance at the time of the loss increases the .moral hazard is one of fact which must be determined by the circumstances surrounding each case.
“In order that an insurer may avoid liability under a fire policy on the ground that the moral hazard was increased by a breach of the warranty contained in the chattel mortgage clause, it carries the burden of showing that the changed conditions brought about by the imposition of the mortgage were of such real and substantial character as might influence the insured in his conduct and attitude toward the property. The term ‘moral hazard’ as used in the act and in the decisions - relates to. the pecuniary interest which the insured or some other person has either in protecting the property from loss by fire or destroying it. The moral hazard is least when the pecuniary interest of the insured in protecting it is greatest. It is greatest when his pecuniary interest is such that he might gain most by burning it. While the confession may be a sad commentary on human nature, yet it is a fact known to all that men’s' pecuniary interests do sometimes influence their conduct even to the extent of burning their own property in order to collect insurance policies. The books are full of cases upholding convictions for arson where the motive was shown to be pecuniary.
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“•But under the law as it now exists in this state all the clauses in the policy, whether relating to representations, conditions, or warranties, save and except those relating to such a breach as.would be a violation of warranty or condition requiring the insured to take inventories and keep books, records, etc. (the iron safe clause), are modified by Act No. 222 of 1928 to this extent, that the violation of them is not a defense unless it be shown by the insurer that such breach shall exist at the time of the loss, and shall be such a breach as would increase either the moral or physical hazard.
“If the property insured is mortgaged for an insignificant amount, an amount out of all proportion to its value, it is not probable that the mere fact of the existence of the mortgage would be an inducement or temptation to the owner for burning it. He would have no pecuniary interest in doing so. On the contrary, if he were able to secure a mortgage on the insured property for its full value of an amount approximating its value, he would gain by destroying it. In such case he would have no interest in protecting it, and might gain by .destroying it. From the standpoint of the mortgagee, he would have no interest in burning the, property to collect his debt if the amount of the mortgage was inconsiderable as compared with the value of the property, for then his debt would be amply secured.
“But, if the property was heavily mortgaged and the security for his debt was not ample, he too might be interested in seeing it burn.
“Another feature which might enter into the question whether the. existence of a mortgage on the property at the time of the loss would increase the moral hazard would be whether the owner-was able to make his payments. If he were not and had lost hope, a burn might be a relief, and the mortgagee might feel the same way.
“Another circumstance to be considered would be whether the amount of the mortgage at the'’time of the loss had been reduced from its original amount and to what extent. Under the act, it is not the amount of the mortgage as originally given which is to be considered but the amount ‘at the time of the loss.’
“What the act means is that, if at the time of the loss, not at any previous time during the life of the policy, there exists such a breach as would reasonably be said to increase the moral hazard, then the policy is void. No hard and fast rule can be laid down as to when such a breach exists. Each case must be determined according to its own facts and circumstances, and this is true whether the hazard be moral or physical. In either event, a plea that the policy has been rendered void by such a breach is a special defense which defendant must maintain in order to avoid liability. This is the view taken by our brethren of the Courts of Appeal for the First and Second Circuits in at least three cases. Godfrey v. Security Ins. Co., decided March 31, 1933, by the Second Circuit, La.App., 147 So. 101; Sigrest v. Federal Ins. Co. (First Circuit) 14 La.App. 55, 129 So. 379; and Perry v. Fidelity & Guaranty Fire Corp., 17 La.App. 563, 136 So. 755.”

The Supreme Court again, in the case of Brough v. Presidential Fire and Marine Insurance Company, La.App., 176 So. 895, 904, made the following statement:

“Surely it cannot'be said that, for a defendant insurer to successfully resist on the ground of increase in moral hazard, there must be proof that the particular insured was actually tempted to destroy his property, because, if such proof were required, it is obvious that in almost no case could such fact be shown. * * * The statute itself does not say that there must be an actual increase in the moral hazard, but that the facts must be such as ‘would’ ordinarily increase the hazard. We take it to mean that all that is necessary is that the evidence shall show facts which, not taking into consideration the personal integrity of the individual insured, would, in the ordinary case, create in the insured satisfaction with destruction by fire. If the result would create in the ordinary individual such a sense of satisfaction, then the moral hazard has been increased.
“In the same article of the Tulane Law Review, referred to above, reference is made to many cases, in each of which it was held that there had been an increase in the moral hazard, and it is said that: ‘Since the increase in risk in the above cases was not an increase in physical risk but resulted from- the insured’s diminished interest in the insured property, it seems patent that it was equivalent to an increase in moral hazard.’ ”

• Referring to' the facts of the present case with an 'application of the law as above cited and as fully stated in the Knowles case in mind, we find that on April 15th, 1947 when Mortgage No. 4 above described was placed upon the Ford truck and trailer, together with other movable property, the total amount of mortgages against this property amounted to $2,411.02. On the following day, April 16th, 1947, the plaintiff, having been given by Fred .Rivers, original mortgagee of mortgage'No. 4, a sum of money sufficient to pay and satisfy Mortgage No. 2 which was then held, by the First National-Bank at Mansfield, the balance due amounting to $664.02, did. on the 16th day of April, 1947 go to the First National Bank in Mansfield and pay on the balance due on Mortgage No. 2 the sum of $600.00, leaving a balance of $64.02, and, therefore, on April 16th, 1947 the mortgage indebtedness amounted to $1811.02.

On April 15th, 1947 the value of the property mortgaged -was $1950.00 and of this amount the Ford truck was valued at $1100.00. On April 16th, 1947, therefore, under the. authorities cited, the moral hazard had certainly been increased, for .although it is true that there was personal property besides the truck mortgaged insecure the $2411.02, the fact remains that the truck was encumbered for this full amount. On April 16th, as stated, the indebtedness had been reduced by $600.00 and even then it is well to note that the plaintiff kept $64.02 of the money which was given him for the specific purpose of paying and cancelling Mortgage No. 2, and the $600.00 did not -come out of -his pocket -but was obtained out of the proceeds of Mortgage No. 4 and, in our opinion, did not change the situation nor lessen to any extent the in-' crease in the moral hazard which existed on April 15, 1947.. Certainly, on April 15th or April 16th, 1947 the property insured, the Ford truck of plaintiff, was not mortgaged for an insignificant amount but was mortgaged for an amount out-of all proportion to its value. It must be remembered that on April 15th, 1947, the - date upon which the policy was issued, the .defendant insurance company had notice only of Mortgage No. 4 for $1152.00 whereas on that date there- really existed additional and! undisclosed mortgages in the sum of $1259.-02, and on April 16th, after the payment of $600.00, naturally the undisclosed -amount of mortgages would be reduced to $659.02..

On June 28th, 1947, the date upon which the truck burned, if we accept $990.00 as a balance due on mortgage No. 4 thereby-showing that plaintiff had paid upon it: $162.00, the total mortgage indebtedness on: that date would be $1649.02. As we view the record, even though the defendant in-his trial brief stated that this was the-amount' due on the mortgage, under the-stipulation of fact it does not show any payment on this mortgage and, therefore;, under this state of facts the mortgage indebtedness on June 28th, 1947 would be the-same as it was on April 16, 1947. Be that as it may, we do not think that- the difference of $162.00 would change the final decision. Under the stipulation of facts, on June 28th, the fire damage was $800.00 and the damaged truck sold for $125.00 making a total value of $925.00 which this truck had on the date of the fire. Thus, a $925.00 truck was encumbered with mortgages in the amount of $1649.02 or $1811.02. If we-should take into consideration or look at the case from the standpoint of the entire property mortgaged, we still think the answer should be the same, for the value of all the-property on June 28, 1947, placing a value of $925.00 on the truck, and- leaving, the-value of the other personal property mortgaged under Mortgage No. 4 at the value •fixed, therein, would be a total of $1775.00' as against a mortgage indebtedness of. $1649.02. It might -be argued that the insurance company knew of $1152.00 of-this amount, which is perfectly true, but .this, fact does not alter our opinion, that, under the law the additipnal undisclosed amount of $659,02 certainly changed the entire picture when viewed in- the light of the settled jurisprudence. In our opinion, on the date of the issuance of the insurance policy, as well as on the date of the loss, June 28, 1947 the property was certainly -mortgaged, to-say the least, for its full value, in fact, for from 1J4 to almost twice its value. The truck alone could have been, seized and sold to satisfy the entire.mortgage indebtedness on April 16th, 1947, which amounted to $1811.02, or on June' 28th, 1947, which mortgage indebtedness amounted to $1649.02, whereas on these dates as stated the value of the truck was respectively $1100.00 and $925.00. Therefore, on any one of- the three dates mentioned, April 15th, April 16th, or June 28th, 1947, the plaintiff would have gained by destroying the truck. He would have had no interest in protecting it or, to put it another way, “he too/ might be interested in seeing- it burned.” He could save the horses which were not mortgaged except to-Caddo.

In addition to the above facts and circumstances, there are other facts which are very pertinent to the issues in this case and which the Supreme Court in the Knowles case considered pertinent as to whether the existence of the mortgages on the property at the time of the loss increased the moral hazard. It is relevant and pertinent to inquire whether the owner was able to malee his payments. If he were not and had lost hope, a burn might be a relief and the mortgagee might. feel the same way. It is shown by the facts in this case that the plaintiff mortgaged the truck first, on November 7th, 1946 and that he was in arrears on April 15th, 1947 one payment and on that date there was a balance due of $395.00 which remained due and unpaid on June 28th, 1947, the date of the loss.. Approximately sixty days later, on January 11, 1947, he again mortgaged this truck and on April 15th, 1947 was in arrears three monthly payments and there is nothing in the record to indicate that he could have paid the $600.00 on this mortgage on April 16th, as he did, unless he had secured the money by placing Mortgage No. 4, dated April 15, 1947 on the truck. This payment was made with somebody else’s money arid was made by increasing the mortgage indebtedness that much and more. Even on June 28th, although he had been given the full amount of money to cancel this mortgage, there was still a •balance 'due of $64.02. In slightly more than thirty days he again mortgaged this truck for $200.00 which was past due and unpaid on June 28th, 1947. Then, in slightly less than sixty days, he again mortgaged the truck (mortgage No. 4) and while we find nothing definite to show any payment on this mortgage, if we accept a statement of defendant’s counsel made in his trial brief of the payment of $162.00 he was still in arrears on June 28th, 1947 in at least the sum of $30.00 -on this mortgage. Therefore, considering these facts, the mortgaging of the property at short intervals, the fact that he was in arrears in every mortgage on the date of the loss, the three existing mortgages on the daté that he took out Mortgage No. 4 and the policy of insurance, it certainly leads to the conclusion that he was not able to make his payments.

Also, at the time of the loss, under the most favorable view of the facts that could be given in behalf of the plaintiff, he had only paid $162.00 out of his own money personally. We presume this was his personal money, although he had retained $64.02 which was given to him to pay on Mortgage No. 2, and after payment of the $600.00 he would still have had $552.00 remaining, the proceeds of the fourth mortgage. In addition, the record shows that outside of the $162.00 paid on Mortgage No. 4, plaintiff had made no payment on any of the outstanding mortgages since March 1947 which was Mortgage No. 1. We, therefore,' cannot agree with the trial judge when he say.s, “In the present case there is nothing in the evidence to indicate that plaintiff was unable to pay the debts secured by a mortgage on his truck but on the contrary the record shows that he made substantial payments on such debts during the short period of time which elapsed between the issuing of the policy and the date of the loss.”

In cases of this kind, as stated in the Brough case, supra, the personal integrity of the individual insured is not taken into consideration, but otherwise the facts must be such that would ordinarily increase the hazard. In this case, the plaintiff evidently was not making á success and it was necessary for him to place four mortgages on his property from November 1946 to April 1947. The first three mortgages amounted to $1727.81, of which amount he was only able to repay personally $468.79, and on the date of the loss by fire, June 28, 1947, he was delinquent on all four of the mortgages. These facts are strong evidence that he would gain by destroying or at least would-have no interest in protecting the property and, therefore, under all the facts in this case, at the time of the loss there did exist such a breach as can reasonably be said would have increased the moral hazard and the policy was, therefore, void.

It is, therefore, ordered that the judgment of the District Court be reversed, and that plaintiff’s suit be dismissed at his costs.

J. CLEVELAND FRUGE, J., sitting ad hoc.