author: TALIAFERRO, Judge.

text:
    BAKER v. SMITH BROS. EQUIPMENT CO., Inc.
    No. 7427.
    Court of Appeal of Louisiana. Second Circuit.
    Jan. 31, 1950.
    Rehearing Denied March 8, 1950.

      C. B. Prothro, Shreveport, for appellant.
    Love &; Bailey, Shreveport, for appellee.
   TALIAFERRO, Judge.

This is a redhibitory action in which the plaintiff seeks to have rescinded and set aside a sale to him by the defendant of one floral refrigerator, and for return of $600.-00 paid on the price thereof. The sale was concluded on January 23, 1948. The price was $1,695.19, including tax, of which amount $100.00 was paid in cash. Plaintiff gave his note for the balance, payable $100.00 per month. He made five additional payments thereon. The refrigerator was purchased for the purpose of exhibiting flowers for sale and to preserve their beauty and freshness while being held for sale, qualities indispensable to the success of a business of this character. To provide this service the temperature of the refrigerator must be kept within certain degrees. It is electrically operated.

Plaintiff alleged that he is not a refrigerator expert, and, therefore, is unable to aver specifically the vices and defects that affect the refrigerator, but did allege that because of vices and defects, it, soon after installation, became useless and valueless to him and would not function for the purposes for which it was acquired; that because of its failure in this respect, he called upon defendant to remedy the defects and restore the box to satisfactory mechanical condition; that after considerable delay an engineer of the factory that manufactured the refrigerator came to plaintiff’-s place of business and attempted to remedy its vices and defects, but whatever was done by this engineer failed to accomplish any improvement in the refrigerator’s unsatisfactory condition, which was demonstrated by subsequent trials and tests.

Plaintiff also sues to recover the value of flowers allegedly lost from spoilage, the sum of $300.00, which he charges was directly due to the imperfection of -the box. However, this claim, during trial, was expressly abandoned.

Plaintiff also avers that he tendered the box back to defendant, after being convinced that it could not be made to efficiently function, on condition that the $600.00 paid down by him be refunded. This, of course, was refused.

Defendant denies all of the material allegations of fact relied upon by plaintiff as a predicate to this action, and affirmatively alleges that the refrigerator, when delivered to plaintiff, was free of any defects or vices that would militate against its efficient operation and that this condition has prevailed since then. Defendant also alleges, without admitting that the box was in any wise imperfect, that a new box of the same design and manufacture was tendered to the plaintiff before this suit was filed, •in lieu of the other one, and he refused to accept same; that this tender was made in the hope and out of a desire to satisfy plaintiff who seemed to be unusually hard to please.

By way of reconvention, defendant availed itself of the accelerating clause in the note representing the balance due on the purchase price, declared the whole balance due, and sued to recover judgment for said balance, being $1,085.19, plus interest and ten per cent attorney^ fee, with recognition of the vendor’s lien and privilege on the machine.

Plaintiff’s demand was rejected. There was judgment for the defendant in recon-vention as by it prayed.

The sole vice of the.refrigerator, if any, of a redhibitory character, ..was its failure to maintain a temperature (from forty-two to forty-eight or fifty degrees) adequate to preserve the freshness, within time limitations, of flowers placed therein.

Plaintiff here contends that the temperature would vary from forty degrees to seventy-five degrees, and as a result the coil became so heavily frosted and/or covered with ice that it necessitated defrosting three times per day, and this, each time, required from one hour to one and one-half hours. It is shown that a constant temperature of forty degress is too cold for most flowers, and that under a temperature of from sixty-five degrees to seventy-five degrees flowers will prematurely wilt. But plaintiff testified as regards defrosting as follows, to-wit: >

“Q. How many times a day was it necessary to defrost it? A. I didn’t do it every day, hut maybe every two or three days when it would ice up, you see; or four or five days — whenever it needed to be defrosted, just like the refrigerator at home.”

This testimony thereafter was repeated by him.

The complained of defect allegedly developed after the box had been in use some thirty days or more. Defendant was notified and according to the testimony of its agents, whatever shortcomings that existed, were remedied by proper adjustment, whereas plaintiff is positive that no good whatever was accomplished by these efforts.. Plaintiff continued to complain that the box inefficiently fmictioned and as often defendant would send some one to his place of business to look over the refrigerator, etc., but in each instance plaintiff says the same futile efforts were made. Notwithstanding all this and that, according to plaintiff the box actually rendered no service, but, in fact, “did more damage than good”, he continued regularly to make monthly payments on the note, to the number of five.

Plaintiff’s complaints 'became so regular and incessant that, although defendant was satisfied the box was free of vices and defects, it requested the manufacturer’s dealer in Beaumont, Texas, to send one of its engineers to Shreveport to the end that a complete check-uip of the box could be had and plaintiff be made satisfied, if such were possible. This engineer arrived in the month of September, 1948, some nine months after defendant purchased the refrigerator.

In the meantime, defendant • reported to the manufacturer that it (defendant) had a dissatisfied customer, and it was arranged that a new refrigerator be sent to Shreveport to be tendered to plaintiff. The tender was refused. This tender was made not from an admission that the other box was defective, but out of a desire to satisfy plaintiff and remove from the field one who might prove injurious to the company’s business; and, to some .extent, was made because of the friendship which existed between plaintiff and defendant’s president.

The engineer referred to, made no changes in the mechanical set-up of the box, save to place inside of it the air switch that was theretofore attached to some part of the building near the box, and connect it with the coil. The function of this switch is temperature control. It is easy of manipulation and provides the means through which temperature within the refrigerator may, from time to time, be determined.

Plaintiff’s primary complaint was that flowers placed in the box would prematurely wilt and become unmerchantable due to lack of proper temperature. His only effort to substantiate this charge involved roses ordered by a customer to be sent to a patient in a sanitarium. On complaint that the roses prematurely lost their .freshness and beauty, others were sent to the patient. However, it is shown to our satisfaction that neither bouquet was ever in plaintiff’s box. They were ordered by plaintiff’s employee from a wholesale florist in the city and then promptly delivered by plaintiff to the sanitarium.

• It is not uncommon, — in fact, it is to be expected, that any retail florist will lose some flowers from spoilage, regardless of efficient functioning of his refrigerator. This may be due to several things, inter alia, the age of the flowers when placed therein, and the time held awaiting sale. This is especially true of roses.

Study of the record leaves us without doubt as to the refrigerator’s efficient functioning .after the factory engineer’s visit, regardless of what may be said of such functioning prior to that- time. ■

Plaintiff had had no experience whatever a-s florist prior to engaging therein in December, 1947. He did employ a' very competent floral designer in the person of Mrs. Barbara Champion, who had had many years experience in that line of business. So far as the record discloses she was his' only help from the beginning of the business, and remained with him until 'some two weeks prior to the time of trial of this case, in March, 1949. Plaintiff did not tender Mrs. Champion as a witness but defendant did. Her testimony should have controlling weight as regards the operation of the box and the loss of flowers from spoilage. It is obvious from her demeanor that she reluctantly testified against plaintiff.

Mrs. Champion testified that a month or so after the box was installed some difficulty was experienced in maintaining uniform temperature for the flowers, but even with this the loss in flowers was negligible, and that the box functioned well after the factory engineer checked it. It is easily deductible from her testimony that excessive frosting was largely, if not entirely due to plaintiff’s action infrequently keeping the switch too low. Witnesses who visited plaintiff’s place of business a few days prior to trial, found the temperature of the box all right and the flowers therein in proper condition.

The testimony of experts who appeared as witnesses in the case is to one accord with respect to-the contention that the coil would frost or ice so heavily that defrosting had to be resorted to two or three times per day of twenty-four hours. All agree that such a thing is mechanically impossible, especially if the switch is set on a temperature admittedly adequate to preserve flowers.

The conclusion is easily reached that plaintiff either became dissatisfied with the business of florist, about which he knew nothing to begin with, and decided to recover the amount he had invested in the box, as he is seeking to do, or that he concluded he needed a refrigerator of a different type. Mr. W. D. Smith, Sr., president of defendant company, testified, and we perceive of no sound reason for him to falsify, that prior to and after the suit was filéd, plaintiff admitted to him that the box was not of the type he wanted. Mr. Smith then said to him that he would accept return of the box and allow him credit for the amount he had paid on its price, on any other refrigerator he wished to buy from him. This offer was evaded.

Considerable testimony was adduced concerning the condition of one of the sliding doors. Some witnesses stated that on account of the door not fitting'properly, air was admitted, but many witnesses testified that the air that entered the box through the narrow opening would not affect appreciably the box’s inside temperature. This lack of perfect closing developed after the manufacturer’s engineer examined the box, at a time it had been in use for around nine months or more. Granting that such an opening, as contended, did exist, surely it is not a redhibitory vice. It could be remedied in an hour’s time and at a cost not in excess of $5.00. Aside from all this, it is shown that plaintiff often employed too much force in closing the doors. This could have brought about, and perhaps did, a condition that prevented the door’s perfect closing.

Plaintiff was not legally bound to accept the refrigerator tendered to him in lieu of the embattled one, but refusal to accept the same certainly militates against the good faith of his position in the case.

Only questions of fact are involved. The lower Court’s resolution of these facts is manifestly correct. Plaintiff carried the burden of proving his allegations. He signally failed to do this.

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


source: Caselaw Access Project

license: Public Domain

text:
    LEVY v. STEPHENS.
    No. 7454.
    Court of Appeal of Louisiana Second Circuit.
    Jan. 31, 1950.
    Rehearing Denied March 8, 1950.

      James W. Jones, Jr., Natchitoches, for appellant.
    Gahagan' & Pierson, Natchitoches, for appellee.
   TALIAFERRO, Judge.

This action is a sequel to that decided by this Court in June, 1949, opinion in which is reported in La.App., 41 So.2d 242. In that proceeding (by rule) E. J. Stephens was made defendant, whereas in the instant action (also by rule), James W. Jones, Jr., St. Denis Securities Company, Inc., and the Rio Hondo Land Company, Inc., are the defendants. They were ruled, through Mrs. Lee Craig Levy, successful plaintiff in suit No. 7194, on the docket of this Court, La. App., 36 So.2d 44, to show cause why the costs in that suit should not be fixed at $214.79, and they be,ordered to pay the same, pursuant to the judgment in said cause No. 7194.

The defendants filed numerous pleas and exceptions. They are:

1. A plea to the court’s jurisdiction to issue, hear and decide the question tendered by the rule. The plea is based upon the premise that the judgment of this Court in said suit No. 7194 ha's not been recorded in the records of the lower Court, in keeping with the requirements of Art. No. 619 of the Code of Practice, and until this has been done, execution of the judgment cannot be had because the jurisdiction of the lower Court, divested by the appeal, has not been re-invested.

2. An exception of vagueness which is directed against the lack of facts, data and information, going to make up the items constituting in full the cost bill, alleged upon, consisting of:

Clerk’s Cost $101.25

Sheriff’s Cost 12.04

Witness fees, etc. 26.50

Court Reporter 75.00

$214.79

3. Exceptions of no right and no cause of action. Several bases are assigned to support these exceptions: (a) that the demand herein is a new one and is for a moneyed judgment, which cannot be awarded in any case through the function of a rule; (b) that the right to demand payment of Court costs, exclusively, reposes in the Clerk of the Court, “who. is at all times responsible for costs”, etc.; (c) that plaintiff has not alleged that she has paid said costs, and that since the Court of Appeal has adjudged the war-rantors, defendants herein, responsible for the costs involved herein, “that decree is a definitive judgment within itself”; (d) that the original suit (No. 7194) is no longer pending and for this reason no incidental or summary proceeding may be invoked or conducted in connection therewith; (e) that the right to proceed by rule in any case does not exist save when expressly authorized by statute and no such statute has been adopted to fit the present case"; (f) that plaintiff, not having alleged that all of said costs have been paid by her, “then her right would only be given by original demand.” ■ There are apparent inconsistencies between some of these alleged bases.

The trial judge overruled the plea and the exceptions, and made the rule absolute. Defendants appealed to this Court and re-urge the exceptions and plea. They will be discussed and passed upon in the order given, to-wit:

1. Code of Practice, Article 617,- provides that' the execution of a judgment belongs to the Court that tried the case in the first instance. Article 618 provides that the appellate court that' has pronounced judgment in a case appealed to it, “must send the same to the inferior court, in or-def that it may be executed.” And Article 619 reads as follows: “This judgment can not even be executed, until it has been recorded in the records of the inferior court which first had cognizance of the cause.”

These articles, especially No. 619, are relied upon to support the plea to the Court’s jurisdiction, it being alleged that the judgment of this Court in suit No. 7194 has not been recorded in the records of the lower Court. It is shown that said judgment has been registered in the conveyance and mortgage records off Natchitoches Parish, but we do not believe such registry meets the intention of the quoted article of the Code of Practice.

It is the duty of Clerks of. Court to keep a “well bound book” in which pleadings, judgments, etc., should ’ be registered. Dart’s General Statutes, § 1627, Act No. 17 of 1878, § 1., Such a book is generally called “Judgment and Pleadings Record”.

The Supreme Court in Thomas v. Goodwin et ah, 120 La. 504, 45 So. 406, and in other cases, held that the requirements of Article 619 of the Code of Practice were mandatory and compliance 'therewith was necessary before a judgment of an Appellate Court could be executed.

However, be this as it may, the present proceeding has not for its immediate object and purpose the execution of the judgment of this Court. It is designed to have definitely fixed the liability, in dollars and cents, of the defendants so that when and if execution is issued all concerned will know the extent of such liability. This may never occur.

We are of the opinion that the exception of vagueness should have been sustained. The law provides definitely the official acts of Clerks and Sheriffs in civil cases for which they may charge, and fixes the amount of each. It also limits the number of witnesses in a case whose mileage and per diem are chargeable to the unsuccessful litigant. In like manner there is limitation upon the compensation due the reporter who officiates in the case. To determine whether the items of cost involved herein are proper and legal charges against the defendants, it will be necessary that each item be broken down and the various charges making up the total in each instance shown. Defendants are within their rights when they insist that this be done as a condition precedent to the fixing of the measure of their liability under the judgment casting them for costs.

The exceptions of no cause and no right of action are not well founded. The procedure adopted by the plaintiff herein to have the costs fixed is entirely proper. It has so been held several times by the Courts of this state. See: Casey v. H. Abraham & Son et al., 113 La. 581, 37 So. 484; Larcade et al. v. Iseringhausen et al., 150 La. 1044, 91 So. 505; General. Finance Company of Louisiana v. Veith, La.App., 184 So. 364; Price et al. v. Town of Ruston, La.App., 148 So. 512.

Such a procedure is in no sense of the term a "new suit" nor a demand for a moneyed judgment. It is merely ancillary to the original suit; in fact, this procedure is the sole method for determining and fixing costs in an adjudicated case. The above-cited cases so held.

Because plaintiff has not paid in full (if such be true), the costs of the suit, is no bar to her proceeding as she has done. A. plaintiff (unless some express law is to the contrary) is responsible for costs of suit throughout its pendency and on to final judgment. Crespo v. Viola, 152 La. 1088, 95 So. 256. If the cast defendant is execution proof, plaintiff may be required to pay such costs. The existence of this liability gives to the plaintiff the right to proceed as has been done herein.

The ruling of the lower Court with respect to the plea to the jurisdiction and the exceptions of no cause and no right of action are affirmed, but we disagree "with the ruling on the exception of vagueness, and the judgment appealed from, to that extent, is reversed and set aside. This case is now remanded to the lower Court with directions to reinstate and sustain the exception of vagueness; and thereafter to proceed with the case, in keeping with law and this opinion. Appellee is cast for costs of appeal.


text:
    ARKANSAS LOUISIANA GAS CO. v. BLANCHARD.
    No. 7432.
    Court of Appeal of Louisiana. Second Circuit.
    Jan. 31, 1950.
    Rehearing Denied March 8, 1950.

      Alva Guy Blanchard, Shreveport, in pro. per.
    H. C. Walker, Jr., Shreveport, George Conger; Robert Roberts, Jr., Shreveport, Gilbert L. Hetherwick, Shreveport, for appellee.
   TALIAFERRO, Judge.

Plaintiff owns and operates a gas utility in the City of Shreveport, Louisiana, and by means of a system of pipe lines sells and delivers natural gas to domestic, commercial and industrial customers, and has done so for a number of years. It formulates, adopts and enforces rules and regulations, including schedules of rates, designed to govern its relationship with its customers, all within the purview of orders of the Louisiana Public Service Commission.

Defendant, prior to year 1933, operated in or near the City of Shreveport, what he refers to as a “shop”, and during that year moved same to its present location on Ricou Street in the northern section of the City. Plaintiff supplied the “shop” with gas necessary to its conduct prior to and after its removal. As relocated and reestablished, it consisted of two buildings, one on either side of Ricou Street, designated by municipal numbers 115 and 120. In the building at No. 115 is the office, machine shop, heating plant and a small testing boiler; whereas, the building at No. 120 houses a large boiler with attachments and a warehouse. The whole set-up is now more appropriately referred to as an industrial plant, and was provided with gas on this basis.

In the early part of 1939, defendant realized that the 2-inch meter which was at the No. 115 side of the street was inadequate for his needs, and he applied to ■plaintiff for a larger one. It was first intended to replace the smaller meter with the larger one,- but after some. discussion of the subject with plaintiff’s representative, it was decided to install the larger on the opposite side of the street, and not remove the smaller one. This arrangement provided the plant with two meters, each serving that part of the plant on its side of the street.

The increased consumption of gas gave to the plant a status that, under the rules of the Louisiana. Public Service Commission, necessitated the signing of special contract by the panties, and .this was done annually thereafter. ■ ■ ... •

The contracts between- them providing for the delivery of gas for the years 1945, 1946 and 1947 carry the following rule, not found in prior contracts, which is designated No. 8 of the several, to-wit:

“Separate customer premises shall be metered and billed separately even if under common ownership, and combined metering or billing shall not be permitted. Such premises shall be considered separate when not on the same tract, or contiguous tracts of land, or when each is a complete ‘unit’, not physically integrated with or essentially a part of the. other, or others and each renders a complete service or produces a finished product. Tracts of land separated by public streets, roads or alleys-shall be considered non-contiguous tracts.”

Through error on the part of plaintiff’s employees, in each contract the plant is described as being at No. 115 Ricou Street, and as a consequence both of the meters were identified on its records as being on that side of the street. Of course, when it came to making up bills at the end of each month the description in the contract was the guide in determining ■ the rate or rates applicable to the consumption for the month. The error was not' discovered until early in 1948.

The schedule of rates in the contracts discloses that the more gas one consumes, the cheaper by thousand cubic feet it becomes. It is therefore self-evident that to calculate the cost of gas consumed through both meters (combined) for a given time, a lesser result is obtained than if calculated separately. This difference for the years 1945, 1946 and 1947 and through September of 1948, amounts to $441.51. Demand for payment of this amount was refused by defendant and this suit to recover judgment therefor was then instituted. Plaintiff prevailed below. Defendant appealed from a judgment against him for the amount for which he was sued.

Defendant does not challenge the correctness of the calculation submitted by the plaintiff in arriving at the amount for which it sues. He resists the demand on the following grounds, to-wit:

1. That a public utility is without legal right to change conditions of its renewal contracts so as to have the effect of dividing (geographically) an industrial plant in such way as to increase the cost of gas to the consumer;

2. That rule No. 8 violates the Louisiana Public Service Commission’s order No, 647, as amended by orders Nos. 876 and 941, in that the rule’s operative effect works a “discrimination in rates as between customers”, prohibited by said orders.

We shall discuss and dispose of these defenses in reverse order. It is provided in the referred to order of the Louisiana Public Service Commission, as follows, to-wit:

“Consumers * * * using gas for industrial purposes and those consumers who use gas under boilers shall be served under special contracts, at rates to be agreed upon between the Utility and such consumers, provided, however, that in no case shall there be discrimination in rates as between such consumers engaged in the same character of business and using substantially the same quantities of gas under the same load factor and under the same circumstances * * * ”,

In support of this defense it is argued that rule No. ,8 discriminates against defendant and others of like situation and in favor of persons whose plants are entirely on the same side of a street or on the same or contiguous tracts of land.

To begin with, it is well to note that the contracts involved herein were freely signed by the defendant, who, the law presumes, was cognizant of the import of all of its provisions, although as a fact, he may not have been. He does not plead error.

The assailed rule is not unreasonable on its face, and a strong presumption arises therefrom that it is reasonable in its operative effect and not discriminative. 38 C.J.S., Gas, § 21, p. 651. The burden rested upon defendant to sustain his position on this defense.

The rule was designed to affect a class of industrial customers, out of the ordinary, by eliminating separate 'billing where more than one meter was being used.

The order of the Louisiana Public Service Commission, quoted supra, with respect to users of gas for industrial purposes and under boilers, contains the following “must”, viz: (a) special contract between the parties; (b) rates shall be agreed upon; (c) no discrimination in rates as between consumers engaged in the same character of business, etc. * * * and under the same circumstances.

We believe the rule meets fully the requirements of this order with respect to uniformity in its operative effect. Industries whose plants are divided by a street form a class and the rule certainly applies uniformly to that class. They are “under the same circumstances”. In formulating and putting into effect this rule, the appellee was but exercising the power, inherent in every public utility, to make and enforce reasonable rules and regulations for the promotion of its business. Underwood v. Southern Cities Distributing Co., La.App., 157 So. 160.

With respect to defense No. One, given above, what we have said in discussing number Two has the same application.

Defendant testified that when the larger meter was installed, he hesitated to ■ consent that It be placed across the street, but after examining his contract with plaintiff, and finding nothing therein to prevent this being -done, nor anything that 'would be prejudicial to him financially or otherwise, and being assured by plaintiff’s agent, in charge of the meter that the consumption registered by the two meters would be combined as formerly, to determine the applicable rates to be charged for gas consumed, he objected no further. He contends ■ that the plaintiff should be held bound by the action of its agent. In effect, this position is in the nature of a plea of estoppel. We think it untenable. In the first place, a public utility is not bound by the action of one not shown to have had authority to commit it on any given subject; and, in the second place, a public utility has the unquestioned right to alter, change and/or modify its rules and regulations so long as they remain not unreasonable nor discriminatory; and, in the third place, to accede to defendant’s contention on this score would clearly be discriminating against others of the class who are being compelled to pay on each meter. The testimony discloses that plaintiff has other customers whose plant is-divided by a street. And, finally, defendant signed three contracts in which this rule was incorporated, all after the second meter was installed, and bound himself thereto.

Defendant also argues that had he known that such a rule as No. 8 would be adopted, he would have built his plant entirely on one side of the street and thus have obviated the situation that now confronts him. As an astute' business man, defendant should have known, or anticipated, that plaintiff’s rate schedules, rules and regulations were not perpetual; that conditions change and with them come needed changes to meet the new conditions. It may be that he did no,t anticipate that his business would be so successful as to outgrow the small meter that served satisfactorily for several years, and as a consequence made imperative the installation of a larger one.

The contract between plaintiff and defendant, signed on December 10, 1946, was for a term of seven years, beginning January 24, 1947. At that time defendant’s business had grown to the proportions that the supply of gas through a two-inch line was inadequate. Plaintiff agreed to lay a four-inch line to his plant, 2,575 feet long, and - this ■ was done. Defendant was required to pay the cost of laying the line, referred to as connection charge, $1,545,00, and he did so under a refunding agreement whereby for the ensuing seven years plaintiff would pay over to him annually twenty per cent of the revenues received by it “from natural gas deliveries” to him during that period. This agreement is incorporated in the contract.

As a collateral argument, defendant contends that billing him separately . (by meters) for gas consumed violates the terms of the refunding agreement in that the “twenty per cent rebate covers only gas purchased through one meter”, and this would not repay the $1,545.00 in seven years. Defendant is in error in this respect. .The twenty per cent annual payments is 'based upon “natural gas deliveries”. No reference is expressly made to a meter or meters. It is obvious that by separate billing the twenty per cent of annual revenues will be greater than it has been under combined billing, assuming that consumption will be the same, or nearly so.

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


text:
    PHILLIPS v. CONLEY (UNITED PETROLEUM GAS CO., Inc., Intervenor).
    No. 7456.
    Court of Appeal of Louisiana. Second Circuit.
    Jan. 31, 1950.
    Rehearing Denied March 8, 1950.
    Sol B. Pressburg, Alexandria, for appellant.
    Polk & Culpepper, Alexandria, George M. Foote, Alexandria, for appellee.
   TALIAFERRO, Judge.

Plaintiff, a judgment creditor of A. R. Conley, doing business as the Dockson Gas Company in the City of Alexandria, Louisiana, caused to be seized under Fieri Fa-cias some real estate and considerable personal property of the defendant, including about 28,000 gallons of butane-propane gas then in two storage tanks, also seized, in said city. Prior to the Sheriff’s ’sale of the property, the United Petroleum Gas Company, Inc., intervened and asserted a vendor’s lien and privilege upon the gas to secure payment of a balance of $3,555.03 due it, on open account, for sale of gas to the defendant.

The intervenor alleged that for the period beginning June 16, 1948, and ending October 27, 1948, it sold and delivered to the defendant 209,244 gallons of gas, and the itemized account attached to an amended petition discloses that $17,088.18 was charged therefor against which payments in the amount of $13,538.20 were made. There was also a small charge of $5.15 in the account but this does not represent the price of any gas.

The intervenor also alleged that the gas was sold to defendant and delivered into his truck-tanks at Delhi, Louisiana. It prayed for recognition of the asserted lien and privilege upon the seized gas and that it be paid by preference and priority over other creditors, the proceeds of the sale thereof. Upon intervenor’s motion to that effect, there was separate appraisement and separate sale of the gas. It brought $1,-900.00 at the sale. To whom this fund should be paid is the primary issue in the case.

Defendant did not answer the intervention. Plaintiff’s answer articulately is a denial of each and every allegation of the petition of intervention, except those relating to the seizure under the fi. fa. and advertisement of the gas for sale.

The demand of the intervenor was rejected at his cost, and he appealed to this Court.

That Conley owes to intervenor the amount asserted by it on the price of gas is not questioned. He admitted this while testifying under cross-examination. The main defense revolves around the question of lack of identity of the gas on which the lien assertedly rests; and we understand that the lower Court’s judgment was based upon resolution of this 'factual question against intervenor.

The business relations 'between the inter-venor and defendant were 'conducted in this manner, viz.: The Sun Oil Company manufactured the gas and transported it in large tank cars from where manufactured to Delhi, Louisiana, where the tanks were spotted on what is referred to as Sun Spur. Through some sort of arrangement between intervenor and the oil company, not made clear in the record, after the tanks were spotted on the spur, the employees of the oil company would transfer the gas into tank trucks of the intervenor’s customers who would be billed therefor from intervenor’s office in Minneapolis, Minnesota. At the conclusion of each delivery of gas to defendant and, presumably, to other customers, an employee of the Sun Oil Company would make up what is called a “Gas Truck Sales Ticket” on a printed form. This ticket contained, inter alia, this information, to-wit: the date of delivery, gross and net gallonage, price per gallon and the total of the charge. It was then signed in multiple originals by defendant’s agent, the truck driver, and by the oil company’s employee, who delivered the gas. One of the signed tickets was delivered to defendant’s agent ■and another was mailed to intervenor’s office in Minneapolis, and served as a basis for the account charges against defendant. These tickets also disclosed that the gas was sold “for the United Petroleum Gas Company to Doekson Butane Company”.

The record discloses that from June 16th to October 26, 1948, defendant’s trucks were loaded with gas at Delhi over fifty times, which was delivered into his two storage tanks in Alexandria, whose combined capacity is over 35,000 gallons. The loads, eliminating three, each less than 500 gallons, averaged approximately 3,850 gallons. During June there were six deliveries, while in October there were eighteen deliveries. For 'said period, some four months, twelve payments were made on the account, three of which, aggregating $5,017.83, were made in October. The sale price of gas during October was approximately $6,000.00. Therefore, it becomes obvious that over this period of gas sales and deliveries to the defendant the contents of his. storage tanks were being daily reduced 'by drafts therefrom to meet the needs of his customers, while, on the other hand, these tanks were being resupplied with gas from the Delhi end of the line. It is also shown that at no time during said period of business was the account balanced. Unpaid for gas was, all,along; -commingled with gas that was in part, at least, p'aid for, the result being that the identity of each was lost. This condition continued without cessation to the date of seizure.

It is a fundamental principle of law that in order to enforce a vendor’s lien against movable property the identity of such property must be possible of establishment; and that if such identity be lost by uniting or commingling the affected movable with another movable (or in some cases with an immovable),' the lien and privilege automatically is destroyed. It no longer exists. For the preservation of the lien and privilege, it must be possible for one, so to speak, to be able to put his hands on the specific object that was sold, and ■have the ability to separate it unimpaired from other objects or things with which it may be associated or to which it may be attached. That cannot be done in the present case.

Pertinent to the tendered question is Article No. 3230 of the Civil Code. It reads:

“When the things reclaimed consist in merchandise, which is sold in bales, packages or cases, the claim shall not be admitted if they -have been untied, unpacked or taken out of the cases and mixed with other things of the -same nature belonging to the purchaser, so that their identity can no longer be established.”

See also decisions in the following cases, to-wit: Stackhouse et al. v. Foley’s Syndica, 1 Mart., O.S., 228; H. & C. Newman v. Cannon, Sheriff, et al., 43 La.Ann. 712, 9 So. 439; Id., 44 La.Ann. 579, 10 So. 933; Bender v. Davis Cash Store, Inc., La.App., 163 So. 170; Cottonport Bank v. Dunn, La.App., 21 So.2d 525; Monticello v. Delavisio, La.App., 191 So. 162.

Appellant has cited no -case or authority that in the least derogates from the Code article and the well established jurisprudence on the discussed subject.

Liens and privileges, it goes without saying, are in derogation of rights common to all, and their operative effect is always strictly construed and held within -strict bounds. He who invokes and seeks to acquire for himself the extraordinary advantage designed to be accorded 'by liens and privileges, is invariably held to submit proof, clear and 'Convincing, of his right to such relief. The intervenor has failed to meet this inexorable requirement.

Other defenses urged by appellee need not be discussed or passed upon. .

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


text:
    VERCHER v. LIBERTY MUT. INS. CO. et al.
    No. 7469.
    Court of Appeal of Louisiana. Second Circuit.
    May 31, 1950.
    Harry Fuller, Winnfield, W. T. McCain, Colfax, for appellant.
    Stafford & Pitts, Alexandria, for appel-lee. -
   TALIAFERRO, Judge.

Plaintiff, an employee of Nealy Roberts, claims to have been so seriously injured in an accident on April 26, 1949, while performing the duties of the contract of hiring, that permanent total disability to do work of a reasonable character resulted. He sued his employer and the carrier of his insurance, Liberty Mutual Insurance Company, of Boston, Massachusetts, to recover compensation at the rate of $30.00 per week for a ■ period of four hundred (400) weeks, and for $500.00 medical expenses.

Nealy Roberts, the employer, prior to and on the date of the alleged accident, was inter alia, engaged in the manufacture of piling, and to successfully conduct that business he employed many workmen, including the plaintiff, who actually cut down the trees suitable for piling, sawed them into required lengths, and peeled them.

For a cause of action plaintiff alleged that on said date, while peeling a piling thirty feet long, it became necessary to turn it over, and to accomplish this, on account of its excessive weight, a cant hook was employed, and “while in the act of turning the piling, felt a sudden severe and sharp pain in his back and .left groin, and the injury was- so painful to petitioner’s back and stomach he immediately became nauseated, causing him to vomit.”

He further alleged:

“That as a direct result of said accident, petitioner hag sustained a lumbo sacral sprain, as well as a hernia and an additional strain to his inguinal canal; that petitioner has suffered and still suffers severe pain in his back and left groin, and he is unable to stand erect, stoop or walk without extreme pain, discomfort and inconvenience.”

The suit is resisted on the sole ground that plaintiff suffered no accident while in Roberts’ employ. Defendants aver that no such accident wás reported to the employer and that whatever disability or sickness plaintiff experienced on and immediately after April 26, 1949, was solely due to mumps with complications.

Plaintiff’s demand was rejected and his suit dismissed. He appealed.

The trial judge has provided us ' with lengthy written reasons for the judgment rendered by him. The sole issue, one of fact, was regretfully resolved against the plaintiff. It was held that he had not discharged the burden of proof.

To manufacture piling in the woods it is necessary that workmen operate in pairs, each individual being commonly referred to as a partner. Plaintiff’s partner on the date of the alleged accident was one Columbus Perkins. Other pairs were felling trees and converting them into piling not far from plaintiff and Perkins.

To support the allegations of the petition, plaintiff testified that he had worked from the small end of the piling to its butt end; that Perkins had followed the opposite course, and in obedience to Pei-kins’ direction, he picked up the cant hook and was in the act of turning over the log when the alleged pains and abnormal sensations in his body, due to strain, suddenly developed. He further testified that he at once informed Perkins that he had hurt himself, but immediately resumed peeling the log; that in about thirty minutes he developed' fever and became very -weak. Contrary to this testimony, Perkins testified that he, himself, hándled the cant hook and turned the log over, and denies that plaintiff at the time and place alleged was hurt or complained to him of being hurt.

The accident is alleged to have occurred near the hour of 10:30 o’clock A.M. At the noon’ hour all of the workmen assembled for lunch at a truck carrying the water jug. There were perhaps a dozen of them. Not one of them testified in behalf of the plaintiff. They were used by defendants as witnesses. 'While some of them say that plaintiff then complained of having fever and felt badly, to none of them did he state that he had been injured as by him presently contended. After lunch the crew worked for another hour- or so and then Ml were transported to their respective homes in the employer’s truck. On this return trip plaintiff did not make mention of the alleged accident to anyone.

The second day following1 the alleged accident plaintiff succeeded in submitting his case to Dr. D. V. Donaldson of Colfax, Louisiana. He was then complaining of pain of the jaws and testicles, which were swollen. The diagnosis was mumps. The doctor prescribed in keeping with the diagnosis, but the medicine gave no relief. At ■the end of four days he reported back to this doctor and informed him of the failure of the medicine to give relief. More medicine was prescribed and taken, with like results. To- Dr. Donaldson plaintiff gave no history of the accident alleged upon. Dr. Lawrence of Colfax was then called in to treat plaintiff. He at once advised him to go to the Charity Hospital in Pine-ville, Louisiana, — in fact, carried him there. This was on May 3rd, one week after the alleged accident. Plaintiff remained in the hospital until the 6th of May, and was treated for mumps. Dr. Lawrence did not testify in the case, but the hospital records, introduced in evidence, reveal these significant facts, viz:

“Became ill about one week ago. At that time began to have chill® and fever. Had frontal headaches and pain in his back. Was nauseated and has vomited several times. About S days ago patient began to have painful scrotum. Both testicles became swollen and quite painful. Has continued to run high fever. Had contact with mumps 3 weeks ago. Has been bitten by many big black ticks. S. R. is negative. * * * Both testicles are diffusely enlarged 3 x and quite tender.

Orchitis. Due to mumps.

L’Herrisson.”

At this time his temperature was 102.5°. So far as the hospital records disclose, plaintiff, while a patient at this time, gave no history of an accident. He continued to complain of pain in his lower back and in the left inguinal region, and returned to the hospital for examination and check-up on June 6th. Until September 14th he repeated these visits weekly or nearly so. On July 13th the hospital record® disclose that the impression there was that the patient had a “lumbo sacral sprain” and was treated for that condition. X-ray pictures were negative as to bone injury. The record for September 14th, two weeks prior to trial of the case, discloses that patient was requested to return in two weeks, but it does not appear that he did so.

Dr. P. M. Davis, Jr., prescribed for plaintiff on some of his visits to the hospital from and after July 20th. Examination at that time indicated to Dr. Davis, that he had a lumbo-sacral strain. Treatment was by injections. Rest was recommended. He next saw the patient at' the hospital on August 30th. Examination at that time revealed very little if any of the unfavorable symptoms that were found at prior examinations. His general conditions seemed to be much improved. But, on September 14th, examination indicated “that he still might have lumbo-sacral strain or fibrosis” and use of proper corset was advised. The patient did not impart to Dr. Davis that he had recently had mumps. Dr. Davis was of the opinion that the pain in the inguinal region could have been the result of the mumps. He further testified that plaintiff had a chronically weak back, of many years’ standing, and that he was easily susceptible to lumbo-sacral strain which could arise from normal activity, without violent strain or accident. It was Dr. Davis’ opinion that plaintiff was disabled to perform heavy manual labor and would not venture an opinion as to its duration.

Dr. W. L. Murrell examined plaintiff on June 6th. This examination revealed definite varicocele which he defined to be a “tortuous blood vessel within the scrotum, or varicose veins within the scrotum”. The patient was then complaining of pain in the lower abdomen and around the left hip. He was not told by plaintiff of the mumps Ke had recently had. It was Dr. Murrell’s ■ opinion that the varicocele could be caused by a heavy strain, but not necessarily so. He would not say whether the mumps could produce the condition he found to exist.

At defendants’ request,- Dr. H. H. Hardy of Alexandria examined the plaintiff on June 27th. He gave a history of having hurt himself on April 26th by lifting the log with a cant hook.. He was then complaining of constant pain in the left inguinal region that extended “through to the back”; that it never completely ceased; was increased by activity, but abated some by lying down. It did not radiate but remained in the lumbar area.

Dr. Hardy put the patient through various tests to ascertain, so far as possible therefrom, whether there really existed the professed pain, etc. It was his opinion that plaintiff was greatly exaggerating the conditions. He believed he was able to resume work. Plaintiff, as with all the other doctors, in giving the case history, did not tell Dr. Hardy that he had not so long ago had a severe case of the mumps. When asked if mumps could bring about the condition of which plaintiff complained, the doctor answered: “Yes, it would account for all his complaints in this area.”

The only question to determine is whether the testimony supports the happening of the alleged accident. The trial judge simply held on this point that plaintiff had failed to make out his case. Plaintiff’s own conduct repels a favorable conclusion on this issue. It is very significant that he did not tell Dr. Donaldson nor the hospital physicians who gave him attention when first therein as a patient, that he had had the alleged accident. . It seems to us this would have been about the first information he would have imparted had he had the accident.

The disposition of fellow workmen, when possible, to assist one of their number when injured on the job, is proverbial. Not one of those in a position to assist plaintiff by his testimony (if he had been injured), did so. This strongly militates against his contention in the case.

Plaintiff’s credibility has suffered serious impairment, not only from the above related facts, but also from the fact that in giving the cáse history, some half dozen times, he withheld the fact that he had been exposed to mumps, and, in fact, had contracted a serious case of. it. He seeks to explain this conduct by saying when eight years of age he had mumps in both sides. It is inconceivable that the doctors could be in error in diagnosing the case in this respect, They all say that one never has mumps in both sides but once, and it is shown that both of plaintiff’s jaws and testicles were involved.

The trial judge, while deciding that plaintiff was suffering disability from physical conditions, at time of trial, ruled that the medical testimony was inconclusive as to whether this was due to trauma or traceable to the effect of the mumps. We believe, as said by Dr. Hardy, all his physical ailments are traceable to the mumps with complications.

There are strong reasons that support the suspicion that after realizing he would not be able to work for some time (after being treated at the hospital) the plaintiff conjured the idea of the accident.

The learned trial judge, in. a painstaking manner, analyzed the testimony of all of the witnesses, and, as said before, reached the conclusion that plaintiff had not established his case. We concur in this conclusion.

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


author: KENNON, Judge.

text:
    WALL v. GREAT AMERICAN INDEMNITY CO. et al. (TRAVELERS INS. CO. Intervenor).
    No. 7460.
    Court of Appeal of Louisiana. Second Circuit.
    Jan. 31, 1950.
    Rehearing Denied March 8, 1950.

      Morgan, Baker & Skeels, Shreveport, for appellants.
    Drew & Drew, Minden, for appellee.
    R. Harmon Drew, Minden, for Inter-venor.
   KENNON, Judge.

On January 26, 1946, plaintiff was one of a group of five highway employees engaged in pouring tar in the spaces between the paved sections of the highway between U. S. Highway No. 80 and Doy-line, Louisiana. Alleging that defendant, W. T. Sharpling, was the owner and operator of a Plymouth Sedan upon which the other defendant was the liability insurance carrier, and that Sharpling drove down the road at an excessive speed, ignoring the caution signs and presence of a truck and other equipment on the road, striking plaintiff and knocking him a distance of more than thirty-five feet and imposing serious and permanent injuries, plaintiff filed this suit praying for judgment against both defendants, in solido, for more than $6000.

The Travelers Insurance Company, alleging that it carried compensation insurance covering plaintiff at the time of his injury, intervened in the suit, praying that out of any judgment awarded the plaintiff, Walter C. Wall, it should be paid by preference the amount received from inter-venor by Wall as compensation.

The Great American Indemnity Company, liability insurer of the Plymouth Sedan, filed an exception of no right of action based upon the defense that the policy contained a provision that same should be of no effect in the event the vehicle should be used as a taxi, and that Sharpling had used same for that purpose.

After trial on the exception of no right of action, it was overruled by the District Court.

Defendants in answer admitted that the injury to plaintiff occurred on the date alleged, but set forth that defendant Sharp-ling was operating his car at a speed of not over thirty miles an hour when he approached the group of highway workmen; that as he approached within one hundred feet, one of the workmen who was engaged in warning traffic, signaled him to come on; that after sounding his horn, he proceeded past the highway equipment and working crew at a speed of twenty to twenty-five miles an hour; that the accident occurred when the plaintiff, without looking, stepped directly in the path of the Sharpling car and that the accident resulted solely from the action of the plaintiff in walking directly into the path of the oncoming car without looking and, without heeding the warning horn.

In the alternative, in the event the Court should find Sharpling guilty of negligence, the defendants pleaded the above listed acts of contributory negligence on the part of plaintiff as a bar to his recovery.

In a supplemental answer, the indemnity company set forth that the limit of its liability under the policy involved was $5000.

The District Court rendered judgment for $4996 in favor of plaintiff, giving well expressed written reasons for the judgment. Defendants appealed, and in this Court have reurged their exception of no right of action as well as their defense to the merits.

On the Exception of No Right of Action

The policy covering Sharpling’s Plymouth Sedan was issued for a term of one year beginning October 26, 1945. The purpose for which the automobile was to be used was stated as “business 'and pleasure.” Sharpling’s original 1945 license had been issued in January of that year for normal personal use. On 'November 19, 1945, Sharpling applied for and obtained a second 1945 license in which he stated that' the car was to be used as a taxi, and paid the 1945 taxi license fee of $10 (less $3 credit given him for the personal license previously purchased). On January 3, 1946, Sharpling applied for and was issued .a personal (non-taxi) 1946 license for his car! His testimony is that the taxi business had not been 'profitable and he decided to abandon it un January T, 1946, when his taxi license expired. At the time of the accident the 1946 plates were in the car, but the taxi-type 1945 license was still on his car, as was the taxi sign.

There is no proof that any fares were collected or any taxi trips made by Sharpling after January 1, 1946. On the day of the accident, Sharpling had gone to Shreveport from Doyline with one J. L. Green. Green lived in the same section of the parish as did Sharpling. They were friends and Sharpling had left some of his cattle at Green’s farm, or under Green’s care. Green wished to go to Shreveport to see about some watches and Sharpling wished to secure some chicken wire. Both testified that no fare was paid or contemplated. That the trip was under the control of Sharpling and was not made as a taxi mission for Green is further indicated by the fact that Sharpling, after beginning the return journey and reaching the edge of Bossier City, remembered that he had not purchased the chicleen wire and returned to Shreveport and fulfilled this personal mission before again starting the trip home. Our finding is in accord with that of the District Court which held that, on the day of the accident, Sharpling was not operating the car as a taxi or public conveyance and that Green was not a fare-paying passenger.

On the Merits

At about 11:30 a. m. on the day of the injury, a highway crew consisting of plaintiff and four other workmen was engaged in pouring tar in the crosswise spacing •cracks or crevices in the paved highway leading from U. S. Highway No. 80 to Doyline, Louisiana. The hot tar was procured from a kettle built into a small trailer which was being drawn along the west side of the twenty foot pavement in a ■southerly' direction by the highway truck proceeding” at a slow or “crawl” rate of speed. Besides the driver of the truck and one workman who remained some ten to fifteen feet in rear of the kettle trailer to flag the traffic approaching from the rear; there were three men (including plaintiff) who were engaged in drawing the melted tar into two gallon buckets, equipped with pouring spouts, and pouring same into the crevices of the pavement. These crevices extended across the full width of the pavement at intervals of approximately fifteen feet. One workman held his bucket under the spout extending from the rear of the trailer and when same was filled, dosed the spout and poured the hot tar through the pouring spout along the crack and across the width of the highway. Meanwhile, a second workman was filling his pouring bucket with tar in order to pour the next cross crevice. In the same manner the third workman filled his bucket and poured the next cross crevice, and then the first workman was back at the tar kettle. Meanwhile, the truck driver proceeded on the right side of the pavement at a crawling rate of speed and the flagman followed along in rear with the assigned mission of flagging down traffic approaching from the rear. There was no flagman at the front, the workmen verifying the statement of the rear flagman who testified that “we (the workmen) look for traffic meeting us, and I am watching for traffic coming from behind.”

Sharpling testified that as he drove south, he observed the highway equipment and crew and slowed his car down to six to eight miles an hour; that when he was “something like sixty feet” behind, the flagman gave him the signal to come ahead; that he then accelerated his speed and was in second gear going approximately twenty-five miles an hour when he passed the flagman, who was ten feet behind the kettle trailer; that he was watching Pace, a workman who had just finished pouring his line and who was on the left shoulder, when the plaintiff, Wall, in a stooped position pouring the tar, came out into the left lane; that he swerved to the left, applied his brakes and Pace yelled to Wall, who jumped into the air and fell on the hood of Sharpling’s ■ car, which carried him some twenty-seven or twenty-eight feet down the road before he fell off. Sharpling denied seeing the flagman give a slow down sign and testified that he blew his horn twice before speeding up at the time he received the “come on” signal Green, his passenger, testified that he saw the slow down signal given by the flagman. He fixed the speed of the automobile at the time of the impact at approximately twenty-five miles per hour. Both said they saw the workman Pace, who was working just ahead of plaintiff, pour his line from the right to left of the road, and saw plaintiff Wall as he was drawing his bucket full of tar. Both testified that they did not see him look in their direction. Sharpling testified that he knew that plaintiff would pour his line across the highway, but was not aware that he was going to do it while he, Sharpling, was passing. Plaintiff testified that he began to pour his line from the right (west) side of the pavement at a fast walk and was well over into the left side when, in response to the warning shout by Pace, he jumped in his futile effort to get out of the path of the car. When he fell from the hood of the Sharpling machine, his body was partly on the left shoulder of the highway and partly on the pavement.

Maddry, the flagman, testified that Sharpling was coming at a fast rate of speed; that he signaled him to slow down and when he kept coming at the same rate of speed, he finally motioned for him to turn to the left, hoping that the driver would succeed in going around plaintiff Wall, who was pouring tar from right to left. Maddry measured the distance between the point where Sharpling struck Wall and the place the sedan stopped at thirty-three steps, or approximately one hundred feet. The truck driver did not see the approaching automobile or know that anything was wrong until he heard a noise “like two cars coming together,” and then saw Wall on the ground. Pace and Roberson, who were pouring tar with plaintiff, verified Maddry’s testimony that the Sharpling car approached at a fast speed and did not slow down.

We find that Sharpling was guilty of negligence in proceeding at an excessive rate of speed past the equipment and workmen at a time when he was aware that plaintiff and his fellow workmen were engaged in repairing the highway. We further find that, while the- truck and kettle blocked only half of the highway, Sharp-ling had seen the men pouring tar across the whole pavement width and knew the workmen’s duties required them to pour lines across both sides of the highway. We further find that he did not slow down as he approached this obviously dangerous situation. We also find, as Sharpling testified as he drew close, after seeing plaintiff at the tar kettle with his back to the approaching danger, he did not look again in the direction, of plaintiff or the tar kettle; that while plaintiff was in plain view as he went from the kettle to the west edge of the pavement and while pouring from west to east across the pavement, Sharpling first observed that plaintiff was entering the left side of the highway when the workman was only six feet in front of the sedan. Sharpling blew his horn at that time, but it was too late for Wall to take action that would avoid the collision.

Having found that Sharpling was guilty of negligence, we next consider the defense that plaintiff Wall was guilty of contributory negligence in not observing the approach of the Sharpling car before he came out into the left (east) side of the pavement.

The record shows that all highway workmen are told by their foreman to be careful and to watch for traffic coming from both directions, and we find in- this case that Wall did not look to the rear just prior to the injury when he began to pour the tar across the pavement. Had Wall not been an employee of the highway department but simply a pedestrian crossing the highway for his own purposes, there is no doubt but that his failure to look for traffic in both directions would constitute negligence and would be a legal bar to his recovery (unless the circumstances were such that the doctrine of the Rottman v. Beverly et al., 183 La. 947, 165 So. 153, last clear chance, is applicable). However, a man whose entire working day is spent on the paved portion of a road and whose 1 principal attention must necessarily be .directed toward the performance of the drawing, carrying and pouring, without spattering, of liquid tar kept at a temperature of 400 degrees, cannot be always alert to the approach of traffic. In recognition of this situation, the highway foreman had- placed Maddry on duty as flagman to insure that approaching automobiles were slowed down and alerted to the danger incident to the presence of the workmen on the highway immediately in front. The testimony shows that the workmen kept a look ahead where it was convenient from their position behind the tar kettle, and where no flagman or guard was on duty, and that they — at least to a substantial extent — depended upon the pro- ' tection of the flagman or guard stationed between them and the traffic coming from their rear. This road, while wide paved, is little used since the manufacture of munitions has ceased at the Doyling ordnance plant. Under all the circumstances, we doubt that the defendants, who were under the burden of establishing the facts constituting the contributory negligence pleaded, have discharged this duty by the preponderance of the evidence.

Defendants have contended that, in proceeding past the highway repair point, Sharpling relied upon the signal of the flagman who 'motioned him to the left and ahead. It may be that the flagman, when he observed- defendant’s failure to slow down and that he was coming at an excessive speed, should have stuck to his slow down or stop signals instead of meeting the emergency ‘by waving the insistent driver to the left and risking whether or not he would clear plaintiff as he -came across the pavement. However, the negligence vel non of this flagman is not at issue because plaintiff is not chargeable with the contributory negligence of others, even of his fellow workmen, and the fact that defendant had virtually forced the flagman into a signal for him to proceed forward did not justify his proceeding past the working men at a dangerous rate of speed without watching out for the emergency that is so likely under the situation. As has been often stated, the first duty of those who operate motor vehicles is to keep a sharp lookout to discover the presence of those who may be endangered by virtue of being-in the vehicle’s path. Plaintiff’s duty required him to be on the highway at that point and it was defendant’s duty to operate his car at such speed and to keep his car under control and to keep himself on the alert, all in such manner as to meet the hazards which -should be reasonably anticipated under the situtation confronting the approaching motorist at the time and place.

Granting, arguendo, that plaintiff’s failure to look to the rear constituted contributory negligence, we note that the District Judge correctly found that the doctrine of last clear chance is applicable. Justice ' Odom of the Louisiana Supreme Court first set forth this doctrine in 1935 in the Rottman case, supra. The principle was followed — and somewhat extended-— in the case of Jackson v. Cook, 189 La. 860, 181 So. 195, and has since been followed by the Louisiana Courts in many other cases.

In the Rottman case, the plaintiff recovered damages despite the fact that she proceeded diagonally across a main highway without looking for approaching traffic, and this gross negligence continued up to the moment of collision with the approaching vehicle, whose driver • saw her perilous position in ample time to have averted the accident had he used proper precaution.

In the Jackson case, supra, the plaintiff was guilty of gross contributory negligence by walking, or rather staggering in a drunken condition along the wrong side of the highway. Defendant’s son, who was driving an approaching automobile, did not see the plaintiff until the car was, as in the present case, about five feet from him and too late to avoid the accident. The Supreme Court, in holding the defendant liable, stated [189 La. 860, 181 So.2d 198] : “In the present case (Jackson v. Cook), the plaintiff was guilty of gross negligence which continued up to the moment of the accident. The driver of the car did not see, but could have seen, plaintiff in his peril if he had been looking ahead. The mere fact that the driver of the car in this case did not see plaintiff does not absolve the defendant from liability, because it was the duty of the driver to look, and, according to the findings of both courts, he was not looking.”

In the present case, the accident happened on a straight road, at midday, and in clear weather. Defendant Sharpling ■observed the highway repair equipment and the workmen on foot at considerable distance ahead. He saw those pouring the tar leaving the tar kettle and performing the constantly repeated task of pouring the tar across the full width of the highway. He saw plaintiff’s fellow workman Pace pour bis line. He saw, while sixty feet away, the plaintiff filling his bucket at the tar kettle. He knew, according to his own testimony, that plaintiff, when he filled his bucket, would necessarily traverse the entire width of the road. He observed that the plaintiff had not looked around in his ■direction. In spite of these circumstances, he proceeded the last sixty feet at a relatively high rate of speed without further ■observation of plaintiff’s movements. The testimony of the workmen indicates that Sharpling did not slow down. The flag- ' man testified that he gave him the signal to come ahead only when he realized he was not going to slow down and felt that there was- danger of Sharpling striking him, the flagman’s hope being that Sharp.ling would be able to pull far enough to the left to avoid hitting plaintiff.

The testimony of Sharpling is that he, at a sixty foot distance in the rear of plaintiff’s position at the tar kettle, slowed down to six or ■ eight miles an hour, and after receiving the signal, speeded up to the twenty-five .miles an - hour speed at which his automobile struck plaintiff. The plaintiff had filled his bucket and turned off the spout at the tar kettle. He proceeded westerly several feet to the west edge of the pavement. Beginning at the intersection of the crevice with the west edge of the pavement, he moved smartly eastward across the highway, paying attention to keeping the spout exactly over the line he was pouring. The pavement was twenty feet wide. He was struck at a time when he had traversed the west half and approximately half of the east half. The distance he had traveled from the west edge to the center and thence a few feet into the east half would be thirteen to sixteen feet. During this same time, defendant at the rate of twenty-five miles per hour covered .approximately six times this distance, or seventy-five to ninety-five feet. The actual stopping distance, after discovery of peril, of a car with good brakes (and defendant testified his were in good condition) at a speed of twenty-five miles an hour is much less than seventy-five feet. See table, page 706, § 6237, Volume 9, Part 2, Blashfield Cyclopedia of Automobile Law and Practice. Perm.Ed.

It is therefore obvious that defendant Sharpling, had he observed plaintiff and taken proper precautions, would have had ample time to avoid the accident. Instead of watching plaintiff and observing his peril and taking precaution to avoid injuring him, defendant’s testimony is that while he had slowed down to six or eight miles an hour when sixty feet in rear of plaintiff, and observed him as he was drawing tar from the kettle; and that, during the succeeding brief interval — when had he been looking, he would have observed plaintiff moving' from the west edge across the pavement and heading into the path of his automobile — he, instead of continuing at a slow rate, or stopping, proceeded to accelerate his automobile from a speed of six or eight miles per hour to that of twenty-five or thirty miles an hour. This active negligence occurred at a time when he could have seen the plaintiff in his perilous position had he looked. Defendant is chargeable with not having seen what he should have seen. Under these circumstances, defendants are liable under the doctrine of the Rottman and Jackson -cases, supra.

Quantum

Plaintiff was seriously injured, suffering multiple fractures of the pelvis and a fracture of the left arm. He was badly bruised and suffered considerable shock. He remained in a sanitarium for six or seven weeks. At the time of the trial, more than three years after his injury, he was still disabled and suffered from considerable atrophy of muscles in the. vicinity of his hip injury. The doctors testified that he could not do hard physical labor, and while the doctor -called by defendants testified that much of his condition was due to nervousness or- mental causes, the fact remains that he, at the time of the trial, had been disabled for more than three years and was still unable to do manual labor. The record therefore amply sustains the award made by the District Judge.

A joint stipulation by counsel for plaintiff and intervenor, filed in this Court, indicates that additional compensation of $365.75 was paid by intervenor to plaintiff between the date of trial and the date of filing stipulation. For this reason, the judgment of the District Court is amended by increasing the award to intervenor to $1716.29, and as thus amended, the judgment is affirmed, with costs.


text:
    SKYLES v. UNITED INVESTMENT CORPORATION.
    No. 7436.
    Court of Appeal of Louisiana. Second Circuit.
    Jan. 31, 1950.
    Jackson & Mayer, Frank S. Kennedy,, Shreveport, for appellant.
    Wallace & Adams, Shreveport, for ap-pellee.
   KENNON, Judge.

Alleging that he was totally and permanently disabled as the result of an accident in the course of his employment as a truck driver with defendant, plaintiff filed suit for four hundred weeks compensation and. for medical expenses.

Defendant admitted plaintiff’s employment but denied that he was involved in: an accident within the meaning of the compensation statute.

The District Court found for plaintiff' and rendered judgment for 65% of plaintiff’s wages during disability, not to exceed four hundred, weeks. Defendant has. appealed.

Defendant is the owner and operator of the Frank Wholesale Company, which is. engaged in the business of selling and delivering merchandise to retail merchants, in the Shreveport trade territory. For several months prior to the alleged accident, and on the day of the accident, plaintiff worked for defendant as a truck driver. His duties included the handling and loading of various articles of merchandise, including one hundred pound sacks of feed. His testimony is that on January 12, 1949, he was alone in the plant, engaged in loading one hundred pound sacks of dairy feed; that, after he had hauled out a load of ten sacks and had placed three sacks of the second load of feed on the float, he stooped over to pick up another sack, lifted it, and when he was about half way up, he “got a hurting” in his back and had to drop the feed, and “couldn’t hardly raise up for awhile.” He testified that a colored boy helped him finish loading; that he didn’t think his back was hurt “as bad as it was that he told Mr. Carraway, the foreman, that he had hurt his hack, the reply being, .that “he hated to hear that;” that he ■continued to work that day (Wednesday), Thursday and Friday, but used the colored porters to help him with the loading; that on Saturday he did not serve as truck driver, but was asked to go back and unload salt from a box car; that after he had picked up four or five boxes of salt, he ■was unable to carry on; that he told a man In the office that he “had to go home and might have to see a doctor;” that he sent him to the stockroom and told him to work on, “without doing anything,” until Saturday noon. He did not return to work 'on the following Monday and on Tuesday his '.brother-in-law called defendant’s office to :report that plaintiff was suffering. Defendant sent an ambulance which carried him to a sanitarium where he was treated by Dr. M. S. LeDoux. Later he was treated by Dr. Carson Reed and examined by Dr. Gene Caldwell.

Plaintiff was in the hospital on two different occasions and after his second release a compromise settlement, under the terms of which plaintiff was to be paid $360, ■was prepared and presented to the First Judicial District Court, which refused to ■•approve the settlement even though plaintiff i(who testified that he was told by the .adjuster that he would soon be able to go to work) Indicated a willingness to accept. According to this petition defendant had furnished medical care to plaintiff, including the services of Doctors LeDoux and Reed, and had paid ambulance and hospital ••expenses amounting to a total of $291.28.

Defendant denied that the accident occurred to plaintiff as alleged and intro-, •duced several of plaintiff’s fellow employees who testified that some days prior to the alleged injury, the plaintiff came into the Del Rio Bar and stated that he had been "having trouble with his back since he had '“turned a truck over in the Army.” Plaintiff’s fellow employee on the truck testified that he observed plaintiff on one occasion carrying, the sacks of feed in front of him. and when asked what was the matter, replied that he had. a bad back.

Plaintiff denied making any statements to his fellow employees that he had previously suffered from a back injury and introduced a number of his fellow employees who testified that he did the heavy work prior to January 12th and after that date he complained of having been injured and that he did not perform heavy work between the time of his injury and noon the following Saturday, when he .left the employ of defendant.

Dr. Caldwell’s statement as to the condition of plaintiff is contained in the following questions and answers from the record :

“Q. What was your finding as a result of the x-rays? A. That he had a complete spondylolisthesis of the 5th lumbar vertebra, which means that there is a defect in a portion of the vertebra which permits the 5th lumbar vertebra to slip forward on the 1st sacral segment, or on the pelvis. It leaves the entire spinal column unattached to the pelvis, except by liga-mentous support — there is no bony support to it.

“Q. From your examination can you state whether or not the patient’s condition at that time was due to a recent injury or one of old standing? A. The spondylolis-thesis is of congenital origin, and he was born with that defect in his back. He had probably sustained an acute strain, superimposed on that, because this type of back, with this defect, is peculiarly liable to strain, since it lacks its normal bony support.

“Q. Would such a congenital condition disable a person of itself? A. Not of itself, no, sir.

“Q. In other words, with this congenital condition, to become disabled, he would have to suffer a strain or some blow or something of that nature, or some injury, to further that condition to where he would be disabled? A. That is usually the case.' The patient áoesn’t know that he has such a defect until symptoms arise.

“Q. In your opinion, Doctor, could lifting heavy objects cause such a strain as to disable a person with a spondylolisthesis ? A. Yes, sir.”

Dr. Caldwell further testified that an examination disclosed a muscle spasm involving both lumbar groups of muscles, which did not shift with the shifted body weight and there was a moderate decrease in the normal motion of the lumbar spine. He said he did not believe plaintiff would be able to do any type of work requiring heavy lifting and that an operation involving a spinal fusion would be necessary before this condition could be cured.

This testimony by Dr. Gene Caldwell is the only medical testimony in the record. Defendant’s counsel in closing his case noted that he 'dosed “with the exception of the testimony of Doctors LeDoux and Reed,”'and at the conclusion of the testimony, the District Court stated: “Let the matter be continued for taking the testimony of Doctor LeDoux and Doctor Carson Reed, and such rebuttal as the plaintiff might have.”

The record does not contain the testimony of Dr. LeDoux or Dr. Carson Reed. Since Dr. LeDoux treated plaintiff the Tuesday following the alleged injury, his testimony might have been of value in enabling the Court to consider the defense that plaintiff’s injury was chronic or of long standing. It is logical to'presume that the testimony of Doctors LeDoux and Reed, who treated Skyles at the request of defendant, and for whose testimony the District Court kept the case open at the request of defendant, would not have been unfavorable to plaintiff.

There is much conflict in the testimony, of witnesses for plaintiff and defendant. However, the record does establish beyond doubt that plaintiff actually performed his duties as a truck driver, including the handling of heavy merchandise, for several months prior to the date on which he testified the injury to his back occurred. Again, while there is a conflict as to whether or not plaintiff notified his foreman on the day of his injury and again on the following Saturday, there is no doubt but that defendant was notified of plaintiff’s condition on the Tuesday following the date of the alleged accident, and that, when carried to the hospital, plaintiff was treated by physicians furnished by defendant and was found to be suffering from a serious back condition. The testimony of Dr. Caldwell establishes beyond doubt that on April 21, 1949, plaintiff’s condition was such as to make him permanently and totally disabled from doing heavy work and that this condition could only be remedied by a serious operation.

There is ample testimony in the record to sustain the finding for plaintiff made by the District Court. In cases where the testimony is conflicting and the decision a close one, and there is no manifest error, it is the duty of an appellate court, under the established jurisprudence of this state, to affirm the decision of the trial Court.

The judgment is affirmed, with costs.


text:
    JONES et al. v. DESADIER et al.
    No. 7471.
    Court of Appeal of Louisiana. Second Circuit.
    March 8, 1950.

      James W. Jones, Jr., Natchitoches, for appellants.
    Gahagan & Pferson, Natchitoches, for appellees.
   TALIAFERRO, Judge.

This suit on a promissory note was filed February 24, 1933. The then judge of the District Court in and for Natchitoches Parish, Louisiana, being one of the parties plaintiff, recused himself and appointed Hon. J. B. Hill, Judge of the Eleventh District Court, to hear and determine the case. The order was entered the day the suit was filed. Since that time Judge Hill has died, and Judge Jones has ceased to be judge of the District Court for Natchi-toches Parish. However, on October 10, 1949, a default was entered in the -case before the present judge of that Court, more than five years after he became such. This action prompted defendant, Joe Desa-dier, to file a plea of prescription of five years as is provided by the second paragraph of Article No. 3519 of the R.C.G It reads as follows:

“Whenever the plaintiff having made his demand shall at any time before obtaining final judgment allow five years to elapse without 'having taken any steps in the prosecution thereof, he shall be considered as having abandoned the same.”

This plea was sustained and the suit dismissed at plaintiffs’ cost. They appealed.

Appellants argue that regardless of the status of-their suit with respect to abandonment, prior to the taking of default therein, it took on new life, became revived, so to speak, by effect of the default judgment, and, therefore, is not vulnerable to the plea'predicated upon Article 3519 of the Civil Code. In effect, this argument says that since the dismissal • of the case was not asked by defendants or either of them, prior to the default judgment, the right to do so was lost from and after date of the default judgment. They cite in support of their position the case of Harrisonburg-Catahoula State Bank v. Meyers et al., La.App., 185 So. 96. This case, on its face, does provide some comfort to the appellants, but unluckily for them, it is no longer the accepted jurisprudence of this Court, nor is it in consonance with the jurisprudence of the Supreme Court. It was expressly overruled by us in the more recent case of Evans v. Hamner, La.App., 24 So.2d 164. In this case it was explicitly held that the rendition of a judgment by default, after pend-ency of the suit for five years or more, without there being taken therein any step in its prosecution, was wholly abortive, without any legal effect whatever.

The Supreme Court granted writ of review in the Evans v. Hamner case and affirmed the opinion of this Court therein. 209 La. 442, 24 So.2d 814. The Court, in its opinion, cited an array of its own decisions which support what it had to say therein, several of which are discussed.

The judgment from which appealed, is correct. It is hereby affirmed with costs.


text:
    AIR CONDITIONING TRAINING CO. v. KNOUSE.
    No. 7458.
    Court of Appeal of Louisiana. Second Circuit.
    March 8, 1950.

      Eugene J. Coen, Shreveport, ifor appellant.
    J. S. Pickett, Many, for appellee.
   KENNON, Judge.

The petition of the Air Conditioning Training Company set forth that it was an ordinary partnership composed of two residents of Youngstown, Ohio, and that defendant had entered into a written contract wherein he had agreed to pay plaintiff $224.50 in consideration of plaintiff’s furnishing a correspondence course in air conditioning training, and that a balance of $162.50 was still due.

Defendant filed an exception of no cause or right of action which was referred to the ■merits. After trial, judgment was rendered rejecting plaintiff’s demands, and the case is before us on plaintiff’s appeal from that judgment.

On January 6, 1945, defendant signed a form letter prepared by plaintiff and addressed to itself, wherein he agreed to pay $224.50, plus a laboratory fee of $10, in consideration of which he was to receive nine specifically listed benefits, listed and summarized as follows:

“1. A Complete and Thorough training course in both practice and theory, consisting o.f 105 assignments of Home Study instruction, covering the following divisions: Commercial and Domestic Refrigeration (Gas and Electric), Commercial and Domestic Air Conditioning, Estimating, and Product Conditioning.

“2. The privilege of securing a Post Graduate course of two weeks of intensive and practical Shop training in your modern equipped Shop at Youngstown, Ohio, after graduating from home study course.

“3. The tuition includes bus transportation from the bus station nearest my present address to Youngstown and return. A. C. T. C. will arrange for this transportation prior to my trip to Youngstown.

“4. I further understand that my tuition fee includes the cost of board and room at a place designated by the Training Company during my attendance at the Shop training at Youngstown, Ohio.

“5. Individual instruction and attention supervised by graduate engineers.

“6. Consultation service supervised 'by competent engineer during course o,f training and after graduation.

“7. When I am ready to come to the laboratory (provided not less than Yz of the tuition has been paid) if I so desire the Training Co. will arrange to have the unpaid balance financed, repayment to be made in monthly installments after graduation plus a carrying charge of 7%.

“8. A sincere and conscientious placement service after graduation. Your placement department will contact distributors, dealers and service organizations in whatever section of the United States that I designate to stimulate interest in my placement. This includes permission to use employment department of the Training Company for a reference at any time. There is no time limit on this service. I can use it whenever I desire after graduation and as long as I wish. I further understand that Employment Cannot Be Guaranteed Or .Promised.

“9. I am to receive your Student News and Technical Bulletin issued monthly.”

Defendant paid $20 at the time of the execution of the contract and $6 a month for the first seven months of 1945.

Only one witness was introduced by plaintiff. This witness identified the contract and testified that 26 of the 105 lessons-had been sent to defendant; that defendant had completed 10 of these lessons and that defendant had paid $62 only of the $224.50' due under the contract. The statement introduced by plaintiff shows that the other 16 lessons were returned unsolved by the student.

The plaintiff did not introduce any testimony that it prepared all 105 of the lessons-set -forth in the contract, or tendered the remaining lessons to the defendant, nor did plaintiff offer proof that it had available the “modern equipped shop at Youngstown, Ohio,” specified in paragraph 2 above and the “competent engineers” mentioned in paragraph 6, or that the volume of business -enjoyed by plaintiff was such that the cost of furnishing the instruction and training to one individual student was negligible.

The defendant testified that he had not received the post graduate course o-f two weeks in the shop at Youngstown, Ohio provided in paragraph 2 quoted above; that no bus transportation had been 'furnished him as provided in paragraph 3 quoted above, or room and board furnished as provided in paragraph 4 quoted above.

Under the circumstances above set out, the case is distinguishable from the case of LaSalle Extension University v. Thibo-deaux, La.App., 155 So. 53, cited by counsel for plaintiff, where there was proof that the plaintiff had already gone to the full expense required of it in -furnishing the student with all the services included in the course of study contracted for, and that its volume of business was so great that no additional expense would have been incurred had the defendant been furnished all the lessons and services called for in his contract. In the LaSalle -case there was apparently no contract to furnish su-ch physical services as bus transportation, room and board, practical shop training, and personal expert supervision.

Section 591, under Contracts-, 17 Corpus Juris Secundum, page 1233, provides : “The burden is on plaintiff to establish the elements measuring the amounts of 'his recovery * *

This rule was -followed in Louisiana in the -case of Long v. Charles Kaufman Co., Ltd., 122 La. 281, 47 So. 606, 607. In that -case the defendant -breached a contract to use a delivery service operated by plaintiff. Plaintiff failed to prove any actual damage and the Court held, “plaintiff, however, not having proved any damages, cannot recover any.” A similar holding by the Louisiana Courts is found in the case of Shreveport Ice & Brewing Co. v. Brown, 128 La. 408, 54 So. 923.

Having found that the plaintiff did not prove any damage as a result of defendant’s failure to continue the course, the judgment of the District -Court rejecting plaintiff’s demands is affirmed, with costs.


author: HARDY, Judge.

text:
    ELLSWORTH v. JOHN FORT NEWS STAND.
    No. 7403.
    Court of Appeal of Louisiana. Second Circuit.
    March 8, 1950.
    Eugene J. Coen, Shreveport, for appellant.
    Drew & Drew, Minden, for appellee.
   HARDY, Judge.

This is a suit on account in which plaintiff prayed for judgment in the sum of $100.00 with interest and costs. There was judgment in the District Court rejecting plaintiff’s demands, from which judgment plaintiff has appealed. In this Court counsel for defendant has filed a motion to dismiss the appeal on the ground that this Court is without jurisdiction.

The jurisdiction of the Courts of Appeal is fixed by Section 29 of Article 7 of the Constitution of 1921, which reads as follows : “The Courts of Appeal, except as otherwise provided in this Constitution, shall have appellate jurisdiction only, which jurisdiction shall extend to all cases, civil and probate, of which the Civil District Court for the Parish of Orleans, or the District Courts throughout the State, have exclusive original jurisdiction, regardless of the amount involved, or concurrent judisdiction exceeding one hundred dollars, exclusive of interest, and of which the Supreme Court is not given judisdiction, except as otherwise provided in this Constitution, and all appeals shall be both upon the law and the facts.”

Since the amount involved in the instant case does not exceed $100.00, it follows that this Court is without jurisdiction. Lawson v. Most Worshipful Eureka Grand Lodge, F. & A. M., La.App., 171 So. 480.

Accordingly, the motion is sustained and the appeal is dismissed at appellant’s cost.


text:
    GLASS v. BELL.
    No. 7477.
    Court of Appeal of Louisiana. Second Circuit.
    March 8, 1950.
    Graydon K. Kitchens, Minden, for appellant.
    Campbell & Campbell, Minden, for ap-pellee.
   HARDY, Judge.

Plaintiff, Thomas A. Glass, alleges in his petition that he is “the holder and owner, for value, before maturity in due course, and without notice of one confession of judgment note signed by Charley Pyles and Defendant, Robert B. Bell, dated May 19, 1933, payable to Crichton G>. Ltd., in the sum of One Hundred Thirty and 84/100 Dollars ($130.84), with 8% interest from January 1, 1933, until paid, and 10% attorney’s fees on both principal and interest * * subject to certain credits which are enumerated. The petition refers to the “note” which is annexed thereto and made a part thereof. Defendant interposed pleas of prescription of three, five and ten years, and after trial on the issue of prescription, the Judge of the District Court sustained the plea and dismissed plaintiff’s suit, from which judgment plaintiff has appealed.

In view of the fact that our examination of the record discloses some very serious and very obvious defects in connection with plaintiff’s claim, we below reproduce the face and reverse ot the “note, respectively:

(Front of note)

“$__ 5/19 1933.

We or either of us

For a past due obligation, X. acknowledge that I owe Crichton G> Ltd , or bearer the sum of One Hundred & Thirty & 84/100 Dollars' for value received, with eight (8%) per cent interest from 1/1/33 date until paid, and ten (10%) per cent attorney’s fees on said sum, if necessary to collect same by legal process and all cost. The amount stated in this note is due and I hereby waive citation, time and all legal delays and confess judgment in favor of said Crichton Co Ltd or any legal holder hereof for said amount, interest, cost and attorney’s fees to be incorporated in and form a part of this judgment. ATTEST:

T. A. Glass

Charley Pyles

R. B, Bell ~’

(Reverse of note)

“By Cash 4/1/38 1.00

“ “ 5/24/41 20.00

“ “ 2/23/44 25.00

“ “ 10/22/45 50.00”

It is to be observed that the instrument fails to meet a number of sacramental requirements of a promissory note. First, there is no promise to pay, and the most that can be said of the instrument is that it is an acknowledgment of indebtedness. Second, there is no due date set forth. True, the instrument declares that the amount is due and confesses judgment, but it is exceedingly questionable if these statements can be accepted as conforming to the requirements of a promissory note.

The most casual inspection of the instrument reveals the fact that there is no showing of any right thereto or interest therein on the part of the plaintiff, Thomas A. Glass, nor does plaintiff’s petition cure this omission by any allegation of transfer, negotiation or other act which would serve to substantiate his' right to take action.

The matter has been presented to this Court by counsel for the parties in oral argument and briefs, and it. appears that the instrument has been'treated as a note. We observe that the learned Judge of the District Court in a written opinion made the following pertinent comment: “Plaintiff alleges that he is the holder and owner for value before maturity of the note, but this allegation could not be true, because the note was given for a past due obligation and was due on the date it was given.”

We think the above comment 'disposes of any claim that plaintiff might make as to his right to show by extraneous evidence negotiation of the alleged “note” and his acquisition before maturity.

We are convinced that the instrument sued upon cannot be considered as a note, and, 'for this reason, we find no purpose in discussing the applicability of the presciption of five or. .ten years involving the validity of certain notations of credit above reproduced.

We think the obligation in question can only be considered as an acknowledgment of indebtedness, which, accordingly, occupies the status of an open account and is answerable to the plea of prescription of three years. Since the last noted credit was made on October 22, 1945,'and plaintiff’s suit was filed on May 2, 1949, it is obvious that the obligation has prescribed.

The judgment appealed from is affirmed at appellant’s cost.