text:
    GOODWIN v. NEWSOME.
    No. 7402.
    Court of Appeal of Louisiana. Second Circuit.
    Jan. 31, 1950.

      Floyd D. Culbertson, Jr., Minden, Charles B. Emery, Shreveport, for appellant.
    Campbell & Campbell, Minden,ifor appel-lee.
   HARDY, Judge.

This is a suit to annul a tax sale on certain described property located in Webster Parish, Louisiana. Plaintiff alleged himself to be the owner of the property in question, claimed bjr defendant to have been acquired on December 17, 1932, at tax sale for unpaid taxes for the years 1930 and 1931. After trial there was judgment in favor of defendant rejecting plaintiff’s demands and decreeing defendant to be the true and lawful owner of the property described. From this judgment plaintiff has brought this appeal.

The principal ground upon which plaintiff bases his action is the alleged nullity of the tax sale by reason of want of notice to plaintiff as owner. Plaintiff further alleged that he had continuously possessed the property in question as owner up to the date of filing of this suit when he tendered the amount of taxes admittedly due defendant. The allegations of plaintiff’s petition were denied in defendant’s answer, who further pleaded the prescription of five years in bar of plaintiff’s demand.

Oil trial of the case, by consent, plaintiff amended his petition by dictating into the record the following allegations :

“That the defendant, H. L. Newsom, concealed from plaintiff the fact that he had purchased the property at said tax sale, and stated to plaintiff that he paid plaintiff’s taxes on said property for the years 1930 and ’31.
“That during each of the subsequent years when the taxes on plaintiff’s property became due, defendant, Newsom collected from the plaintiff the amount of said taxes and told plaintiff that he had paid each year’s taxes.
“That it was not until the year 1936 that plaintiff learned of the tax sale, after the three year redemption period had passed.
“That defendant Newsom has constantly promised to reconvey this property to plaintiff since plaintiff’s discovery of the tax sale in 1936 until just prior to the filing of this suit; plaintiff showing that he was not able to pay the amount of money demanded by Newsom until recently.”

The amended allegations of plaintiff’s petition were promptly denied by defendant, who also filed a plea of prescription of one and ten years.

Plaintiff and defendant are brothers-in-law, having married sisters. Prior tó 1932 plaintiff was the record owner of the property here involved, which was encumbered by a mortgage in favor of defendant. Plaintiff failed to pay taxes on the pi'operty during the years 1930 and 1931 and the property was bought in by defendant at the sale for delinquent taxes on December 17, 1932. So far as the record shows plaintiff has neither paid not made any effort to pay taxes on the property since said date. This suit was instituted on February 2, 1948.

In consideration of plaintiff’s claim that the tax sale was null and void and conveyed no title to defendant purchaser by reason of the fact that no notice of the proposed sale was ever served on petitioner as required by law, we observe that the record contains a registered mail return receipt which is identified as having accompanied the registered mail notice of delinquent taxes directed to plaintiff. The receipt above the line designated “Signature or Name of Addressee” bears the name “E. S. Goodwin” written in pencil, and on the line provided for “Signature of Addressee’s Agent” there is the penciled name “Mrs. E. M. Burton”. The receipt bearing the above name and signature was properly returned to the Tax Collector for Webstei Parish showing delivery of the registered article of mail on “10/20/1932”. The Mrs. Burton, whose signature appears on the receipt, is deceased and, for this reason, her testimony does not appear in the record. However, the fact is that Mrs. Burton lived near plaintiff’s home, and it is claimed that she acted in the capacity of an unofficial postmaster for a number of her neighbors since the mail route ended at her house. . True, plaintiff testified he did not receive the notice, but this has no bearing on the matter. The facts above recited bring this point squarely within the holding of this Court in Goodwill v. Smith, et al., La.App., 29 So.2d 188, to the effect that actual receipt of the notice by the tax debtor was unnecessary to the validity of the sale in view of the fact that the tax collector was shown to have directed proper written notice of the tax deliquency by registered mail addressed to the tax debtor. In support of this principle the Court cited Carey v. Green, 177 La. 32, 147 So. 491.

Plaintiffs counsel relies upon Hodges v. Kranz, 10 La.App. 227, 120 So. 677. The facts of the cited case are entirely inappropriate to the one here at issue since the question involved the validity of a notice addressed jointly to two’ tax debtors. In the case before us there is only one tax debtor and the evidence is conclusive as to the proper direction of the required notice.

We next proceed to a consideration of plaintiff’s contention that he possessed the property as owner after the passing of the redemptive period of three years. Having found that plaintiff’s only attack upon the validity of the tax sale, based upon alleged failure to receive notice, has failed, we do not percieve that the question of possession has any bearing upon this matter. This question could only arise and could only be interposed for plaintiff’s benefit in the event we had found the existence of some formal defect with respect to the tax sale. In such event, of course, it follows that plaintiff’s plea of continuous possession would have served to deprive defendant of the benefits of the peremptive or prescriptive periods provided by the Constitution, § 11 of Article 10, in the validation of his title.

Under the established facts in this case where there has been no irregularity or informality in connection with the tax sale, and where the requirements of law have been followed, certainly the purchaser at tax sale has been vested with an indefeasible title and the tax debtor has been legally divested of title. The question of continued possession on the part of the tax debtor, therefore, does not enter into consideration.

However, we observe, in passing, that plaintiff’s claims of possession as owner have been utterly and completely destroyed by the effect of evidence submitted on behalf of defendant in the nature of instruments of waiver of rent claims. These waivers were signed by the defendant in aid of plaintiff's applications for loans to the Farm Credit Administration, which loans were proposed to be secured by crop liens. These applications were made in the years 1940, 1941, 1943 and 1945.

The next ground urged by plaintiff in support of his right to recover is the claim of nullity of the tax deed by reason of fraud practiced by defendant. In support plaintiff complains that defendant promised to pay the taxes for the years 1930 and 1931 and instead bought the property at tax sale, of which fact plaintiff remained in ignorance. Conceding, which we do not find to be a fact, that plaintiff was in ignorance of defendant’s purchase of the property at tax sale in 1932, it is conclusively established that he was fully acquainted with the fact of the sale not later than 1936. Inasmuch as defendant has interposed specific pleas of prescription of one and ten years, under the provisions of Articles 3536 and 3544 of the Civil Code, which pleas are clearly valid, plaintiff’s claim on this ground must be unavailing.

However, it is additionally urged on behalf of plaintiff, despite his discovery in 1936 of the facts surrounding the tax sale to defendant, that a continuing fraud was practiced by defendant, who lulled plaintiff into a sense of security by promises to straighten out the title as and when plaintiff raised the tax money. In other words, plaintiff urges not only the original fraud of concealing the circumstances of the tax sale, but a continuing fraud consisting of promises made by the defendant. We think it unnecessary to enter into any extended discussion of this point since we are firmly of the opinion that plaintiff has failed to establish the facts upon which he bases this contention.

For the reasons assigned, the judgment appealed from is affirmed at appellant’s cost, and it is accordingly ordered, adjudged and decreed that the demands of plaintiff, E. S. Goodwin, be, and the same are hereby rejected, and further, that there is judgment decreeing the defendant, H. L. Newsome, to be the true and lawful owner of the following described property, to-wit:

NWj4 of NWj4 and the West 15 acres of Ei/2 of SW%, of NW% of Section 16, Township 18 North, Range 8 West, Webster Parish, Louisiana, and estimated to be 55 acres more or less, together with all improvements thereon and rights thereto belonging.


source: Caselaw Access Project

author: KENNON, Judge.

license: Public Domain

text:
    A. M. CAMERON CO., Inc. v. SHAW’S DEPARTMENT STORE.
    No. 7404.
    Court of Appeal of Louisiana. Second Circuit.
    Jan. 31, 1950.
    Eugene J. Coen, Shreveport, for appellant.
    Campbell & Campbell, Minden, for ap-pellee.
   KENNON, Judge.

This is a suit to recover from defendant $270.20 allegedly due plaintiff as the price of ten dozen pairs of ladies’ silk hose sold and delivered to defendant.

Defendant in answer admitted placing an order for the hosiery in October, 1946, but set forth that delivery did not occur until the latter part of November; that in the meantime, the price of merchandise of this character had declined and purchase of similar merchandise had been made from other sources, and that the hose had consequently been returned to the. plaintiff company.

The District Court rendered judgment rejecting the demand for the full price of the hose, hut reserved to plaintiff the right to claim damages based upon the difference between the purchase price and the value of the merchandise on the date of its return. Plaintiff has appealed.

Defendant in October, 1946 signed an order for the merchandise which had not been canceled prior to its shipment on November 21, 1946. Therefore, there was. a valid contract of sale existing between the parties at the time the merchandise was received by defendant. We further find that defendant’s return of the order to plaintiff on December 20, 1946 was without plaintiff’s authorization.

We agree' with counsel that plaintiff in the case before us is entitled to recover damages against defendant for breach of the contract by virtue of the buyer’s unauthorized return of the shipment. The measure of damages where there has been a breach of the contract of sale is the difference in the price stipulated in the contract and the market price at which the goods can be readily sold. Cyrus W. Scott Mfg. Co. v. Stoma, 10 La.App. 469, 121 So. 335.

This rule was recently applied by this Court to the breach of a contract to purchase silk hose in the case of Prestige, Inc., v. Schwartzberg, Inc., 38 So.2d 169. Plaintiff cites the case in brief, quoting the syllabus as follows: “Where buyer attempted to cancel order for silk hose on ground that the hose was of poor quality, but the quality of the hose was as good as or better than any comparable product, and real reason was that market for silk hose had sharply declined, seller was entitled to recover damages for breach of contract for buyer’s refusal to accept shipments of the hose.”

Since the record does not contain evidence of what the value of the merchandise was at the time of its return to plaintiff, we agree with the District Court that the proper judgment was to reject plaintiff’s demand for the full purchase price, reserving to it the right to recover in a separate action the difference between the contract price and the value of the merchandise at the time of its return to the seller.

The judgment appealed from is affirmed. Costs of the District Court to be borne equally by the parties; costs of appeal to be borne by appellant.


text:
    STEEDLEY v. WINBARG.
    No. 7377.
    Court of Appeal of Louisiana. Second Circuit.
    Jan. 31, 1950.

      J. D. Rusca, Natchitoches, for appellant.
    Gahagan & Pierson, Natchitoches for appellee.
   KENNON, Judge.

Plaintiff alleged that from 1941 to February 23, 1948, she worked as an overseer on a plantation in Natchitoches Parish, Louisiana, owned by Mr. E. B. Winbarg until his death on January 28, 1948 and then owned by his widow, defendant in the present case, until she .sold same the following month.

Asserting that she had been employed by Mr. Winbarg, prior to his death, for the year 1948 at a salary of $25.00 a week, and that an additional bonus of $500.00 had been stipulated to be paid in the fall when the crop was gathered, and that she had been discharged by Mrs. Winbarg on February 23, 1948, without just cause, plaintiff filed his suit for $1100.00 in wages for the remaining forty-four weeks of 1948, for $100.00 allegedly due on the 1947 bonus of $500.00 and for $500.00 due as a bonus for the year 1948.

In answer, the defendant admitted the employment of plaintiff, but set forth that her services were not those of overseer, but rather that she was employed “to perform only such services as may be required of her,”, and that such employment was on a weekly basis.

The District Court held that plaintiff had been employed as an overseer on an annual basis and rendered judgment in her favor for $1100.00 (forty-four weeks at $25.00 per week). The District Court denied the $600.00 claimed for bonus on the ground that the contract was not reduced to writing nor established by corroborative circumstances or an additional witness, as required by Article 2277, Revised Civil Code.

Defendant appealed. Plaintiff answered the appeal praying that the judgment be increased to include the $600.00 claimed under the bonus paragraphs of her petition.

In corroboration of her own testimony that she was employed as an overseer on the Winbarg plantation, plaintiff produced representatives of two farm equipment businesses and the wholesale agent of the Gulf Refining Company, all of whom testified that they dealt with Mr. Winbarg constantly in connection with his farming operations and that plaintiff acted in the capacity of overseer. Two or more testified that Mr. Winbarg himself told them that she was his overseer and added that she was a good one. Similar testimony was given by the operator of the gin which handled cotton from the Winbarg plantation.

Without going into further details of the testimony, we find that the record amply supports the finding of the District Judge that plaintiff was in fact employed as an overseer on the Winbarg farm and had been so employed for the year 1948. We further find that she had actively managed the arrangements incident to the beginning of operations for the farming year of 1948 and was so engaged in February when Mrs. Winbarg sold her farm holdings for $60,000.00 to Dr. R. S. Roy of Natchitoches.

It is unfortunate that the death of Mr. Winbarg and the sale of the plantation shortly afterwards made it to Mrs. Winbarg’s interest to discontinue the employment of plaintiff. However, as far as plaintiff was concerned, the dismissal was not justified by any lack of attention by plaintiff to her duties as overseer and therefore defendant is liable for the remainder of the year’s wages. Article 2749, Revised Civil Code; Fletcher v. Crichton, 183 La. 551, 164 So. 411.

We agree with the District Court that plaintiff failed to introduce sufficient evidence to support her allegation that she was entitled to the annual bonuses as set forth in her petition.

The judgment appealed from is affirmed, with costs.


text:
    McGUFFIN et al. v. BARKETT (PIONEER BANK & TRUST CO., intervenor-appellant).
    No. 7441.
    Court of Appeal of Louisiana. Second Circuit.
    Jan. 31, 1950.
    Morgan, Baker & Skeels, Shreveport, for-intervenor-appellant.
    Tooke & Tooke, Shreveport, for appel-lees.
   KENNON, Judge.

On November 16, 1948, Louis K. Mc-Guffin, H. Burford McGuffin and Miriam McGuffin West, owners of the' premises at 618 Marshall Street, Shreveport, Louisiana filed suit against W. T. Barkett, lessee of the premises. Plaintiffs set forth that an original act of lease provided a monthly rental of $250 per month during the year 1947 and $275 per month during the year 1948, but that in January, 1948, the written lease was amended by verbal agreement to provide a inonthly rental of $325 per month; that by further agreement the monthly rental was reduced about the first of March, 1948 to $300 per month. The consideration for'the’increase in rental being the abro-' gation by the lessors of the restriction in the lease prohibiting the sale of alcohol other than beer.

The petition recited that the sum of $110 had not been paid on the June, 1948 rent and that $300 was due for each of the months of July, August, September, October and November, 1948, making a total of $1,-610 past due, with 10% attorney’s fees.

Barkett made ho appearance and on December 8, 1948, judgment was rendered in the First District Court for Caddo Parish in favor of plaintiffs, for the full amount sued for. The judgment further directed the sale of- the furniture and fixtures contained in the leased premises and recognized plaintiffs’ rights, under their lessor’s lien, to be paid by preference.

On January 11, 1949, the Pioneer Bank & Trust Company filed a petition of intervention in which it set forth that it was the owner of a chattel mortgage note signed by Barkett upon which there was a balance due of $1,445; that the note was secured by and identified with a chattel mortgage covering fourteen listed items located in the premises leased by Barkett from plaintiffs; that the chattel mortgage had been duly recorded in the chattel mortgage records of Caddo Parish, and prayed that the Sheriff be ordered to make a separate appraisement and sale of the property so mortgaged and that there be judgment in favor of the inter-venor against Barkett for the amount of its note, and against plaintiffs recognizing the chattel mortgag-e debt and lien to be superior in rank to the lessor’s lien and privilege asserted by plaintiffs in the original suit.

An exception of no cause of action filed by plaintiffs was overruled. The original plaintiffs then filed a general denial, praying that the demands of the intervenor be rejected.

The District Court granted the interven- or’s request for separate sale and appraisement, but after trial, rejected intervenor’s claim, holding that plaintiffs’ lease was in effect at the time the chattel mortgage was recorded and therefore was superior in rank. From this judgment, intervenor has appealed. . ,

The defendant has not appealed from either judgment and the sole issue presented to us is whether the lessors or the mortgagee is entitled to the proceeds from the sale of property covered by the mortgage and contained in the leased premises.

When defendant Barkett began to occupy the premises — some four or five years prior to 1948 — there was no written lease or specific term provided in the agreement. He testified that he paid rent of $115 per month in the beginning, which was steadily advanced and that in 1947, he was paying a rental of $275 per month.

Attached to plaintiffs’ petition is a lease (Form No. 71 — Rev. 4-39 — Rent Lease, sold by M. L. Bath Co., Ltd., Shreveport, La.). At the top of the front page is typed the word “copy.” The document is undated, the filled in spaces indicating that the agreement is between plaintiffs and Willie Bar-kett, covering the premises at 618 Marshall Street for a period of two years beginning January 1, 1947, the consideration being a rental of $250 per month during 1947 and $275 per month during 1948, with a further proviso that no alcohol other than beer should be sold on the premises during the term of the lease.

Plaintiffs’ own petition recites that the original consideration of $275 per month for the year 1948 was changed by verbal agreement between lessors and lessee to $325 per month on January 1, 1948, the consideration of the increase being the abrogation by the lessors of the restriction against the sale of alcohol other than beer. The petition also stated that there was a further agreement on March 1, 1948 to again change the monthly rental, this time to $300 per month.

On the trial of the intervention, it was conceded by plaintiffs that the lease attached to their petition was not executed between the parties at the timé of the commencement of the recited term, January 1, 1947. Only one of the plaintiffs took the witness stand. He testified that his brother had delivered a copy of the proposed lease to defendant Barkett some time in 1947, the first part of March, to the best of his memory, and that despite his efforts over the months, Barkett had never returned this original and that finally, after many unsuccessful efforts to get the lease form, which his brother had delivered to Barkett, he himself had typed out the undated document attached to the petition. He could not recall at what time this form was executed. The uncertainty of his recollection as to when this lease form, attached to the petition, was executed, is indicated from .the following extract of his testimony :

“Q. Mr. McGuffin, when, to the best of your memory, did you get this copy? A. Copy of which?
“Q. This lease that is attached to the petition ? A. The copy of the lease ?
“Q. Yes, sir? A. The copy of the lease — let me see — this is it. Now, just when I don’t know, but this I will say: It was months after the real lease had been entered into, and I had tried time after time to get Willie to bring it up to the cafe from the house, and it was months after, but as to what month I can’t say.”

Later in his testimony he was asked whether this form was typed up in 1948. His answer was, “As to just when it was, I can’t say.”

W. T. Barkett, defendant, was called as a witness by intervenor and testified that he didn’t have any lease prior to 1948; that his payments during 1947 were $250 per month under a verbal lease. He admitted that he had, during 1948, a lease in his possession which had been signed by one of the plaintiffs, which he kept in his cafe for awhile and later carried home. Barkett was not asked whether he had signed this lease or not and the plaintiff who had delivered the form to him was not called as a witness. Defendant Barkett testified that the lease contract attached to plaintiffs’ petition was signed “the last part of 1948” when one of the plaintiffs told him that he would “seize everything you (Barkett) have here and appoint you as keeper.”

A certified copy of the note and chattel mortgage sued upon by intervenor is contained in the record., This mortgage was filed for record in Caddo Parish in August, 1947. The judgment which plaintiffs have obtained against Barkett was for rent during the months of June to November, 1948, inclusive.

Plaintiffs’ contention is that the rent past due for these months was under a lease entered into between plaintiffs and Barkett in January, and not later than March, 1947. l’ntervenor’s contention is that no lease was executed until 1948 and that consequently, their chattel mortgage, recorded in 1947, is superior in rank. In-tervenor makes the further contention that, granting that there was a lease in effect covering 1947 and 1948, same came to an end, and a new one was begun when the price was changed from $275. to $325 in January, 1948 and again in March, 1948, when the monthly rental was by agreement changed to $300.

Our conclusion is that Barkett’s occupancy of the premises in August, 1947, when intervenor’s chattel mortgage was recorded, and prior thereto, was on a month to month basis. Accepting the testimony of plaintiff, Louis K. McGuffin, that a lease covering a two year period was delivered by McGuffin’s brother to Barkett at his cafe about March, 1947, we still have no proof that such a lease was ever signed by Barkett as McGuffin’s brother was not placed on the stand, and there was no testimony from Barkett that he ever signed such a lease. The only plaintiff who took the witness stand, Louis K. McGuffin, testified that Barkett had never given the copy back. Under these circumstances, we find as a fact that in August, 1947, no lease was in existence for a two year term as contended by lessors.

'Under our appreciation of the Louisiana law, our decision would be the same whether Barkett’s occupancy in August, 1947 (when the chattel mortgage was recorded) was by virtue of a term lease as set forth in plaintiffs’ original petition, or under a month to month arrangement as contended by intervenor and testified to by Barkett. The relative rank of a lessor’s lien and a recorded chattel mortgage covering property located in the leased premises is discussed in the following cases: Youree et al. v. Limerick, 157 La. 39, 101 So. 864, 37 A.L.R. 394; Comegys v. Shreveport Kandy Kitchen, 162 La. 103, 110 So. 104, 52 A.L.R. 931; Bernhardt v. Sandel, 3 La.App. 139; Kidd v. Terrel, La.App., 145 So. 23; Thigpen v. Wall Printing Corporation, Inc., La.App., 145 So. 714; and in two opinions of this Court in the case of Weaks Supply Company, Ltd., v. Werdin et al., 147 So. 838 and Id., 154 So. 378.

The Supreme Court in the Comegys case, supra, citing Article 2689 of the Civil Code as authority, held that once a landlord’s lien attached to property in the leased premises under a conventional lease, the continuing of the lease from month to month (after the original term had ended) by reconduction, did not constitute “a new contract,” [162 La. 103, 110 So. 106] but that the lease in existence at the end of the term continued in existence from month to month and consequently the lessor’s lien for rent, even though it accrued subsequent to the chattel mortgage which had been recorded during the term of the original lease, was entitled to the priority granted the lessor as against the holder of the chattel mortgage.

The issue before us in the present case is the same as disposed of by this Court in its second opinion in the Weaks Supply Company case, 154 So. 378. We quote from that opinion: “We held originally (147 So. 838) that, as said lease had no conventional term for its duration, it was necessarily, in view of article 2685, Civil Code, by the month, and that its existence was continued from month to month by tacit reconduction, which, in effect, did not constitute a new lease, .but simply prolonged the life of the original lease contract. We also held that the continuity of the original lease as reconducted ceased when the lessor reduced the monthly rental, and for all legal and practical purposes, from that date, a new contract of lease existed between the lessor and lessee.” (Italics by writer of this opinion).

The decree affirmed the judgment of the lower Court described in the opinion as follows: “The lower court held that the rent was reduced subsequent to the filing and recording of plaintiff’s chattel mortgage, and ordered the sheriff to pay over to plaintiff the proceeds of sale of the mortgaged chattels held by him under the court’s order.”

Intervenor’s chattel mortgage was recorded in August, 1947. Plaintiffs’ original petition contains the allegation that the monthly rental was changed on January 1, 1948 from $275 to $325, and that this $325 monthly rental was, on March 1, 1948, reduced to $300 per month. The past due rent on which their suit is based was the months of June to November, 1948, inclusive. Therefore, under the allegation of plaintiffs’ own petition, the facts of the case are such as to make the above quoted extract from the Weaks opinion applicable.

Our brother of the District Court, in his comprehensive written opinion, stated that no authority was cited to him in support of intervenor’s contention that the change in the monthly rental had the effect of creating a new contract of lease. Counsel for intervnor in his brief before this Court frankly confesses this failure to dig deeply enough into the books to discover the “goose” case until after he had felt the sting of adverse judicial opinion. Counsel shojuld take comfort in the fact that many of us, as practitioners, find a keener interest in searching out law to get out from under an adverse judgment than we do in briefing a case to the Court before it has made a decision. This case presents another proof that thorough briefing by counsel is both helpful to his case and beneficial to the Court in keeping its decisions consistent with the established jurisprudence.

Lessors have contended that the description contained in the chattel mortgage was insufficient.

The Louisiana Supreme Court considered a similar contention in the case of Smith et al. v. Bratsos, 202 La. 493, 12 So.2d 245, 248, and cited with approval the following textbook statement: “ ‘A description which will enable third persons, aided by inquiries which the instrument itself suggests, to identify the property, is sufficient.’” (Italics ours). The Court further approved the statement that parol evidence may be admitted to aid in the identification of the chattels mortgaged.

The chattel mortgage contains no street address listed for the “Barkett’s Cafe’’ which heads the description contained in the mortgage. Barkett testified that his son operated a business on Louisiana Street in Shreveport known as “Bark-ett’s Cafe and Bar," and that he, when he was negotiating with plaintiffs in January, 1948, had obtained a lease for a cafe on Common Street, where he later opened a second cafe. No proof was offered that his second place was called "Barkett’s Cafe.”

The chattel mortgage lists in detail fourteen separate items of equipment, giving the exact dimensions of the refrigeration equipment and. counters and the number on the motor of the six foot Norge Refrigerator and on the six door Hill butcher refrigerator box. Also included in the items are “three booths & seats, leather upholstery” and “two counters totaling 48 feet, with 20 stools.” A reading of the descriptions shows that two of the principal items are described with absolute certainty and that the whole description is such that no one could long be misled by the fact that defendant opened a second cafe, months after the chattel mortgage was executed and recorded, or that defendant’s son o> erated a business in the city described as “Barkett’s Cafe and Bar.” There is no proof that the son’s initials were the same as his father’s or that his cafe or the second one opened by W. T. Barkett was of similar inside counter construction or contained similar equipment to the place at 618 Marshall Street. We conclude that the description contained in the chattel mortgage was sufficient to meet the requirements of law.

The judgment appealed from is reversed and judgment is now rendered ordering the Sheriff of Caddo Parish, Louisiana, to pay to intervenor, Pioneer Bank & Trust Company, the amount of $950 realized from the sale of the property listed in inter-venor’s petition, less one-half of all costs in the lower Court, for which intervenor is hereby cast. Costs of appeal to be paid by plaintiffs.


author: TALIAFERRO, Judge.

text:
    CHAMBERLAIN v. BRUCE FURNITURE CO. et al.
    No. 7443.
    Court of Appeal of Louisiana. Second Circuit.
    Jan. 31, 1950.

      Eugene J. Coen, Shreveport, for appellant.
    Jackson B. Davis, Shreveport, for appel-lees.
   TALIAFERRO, Judge.

This case has been before this Court twice heretofore. 29 So.2d 183; 35 So.2d 257. The facts of the litigation are fully set out in the former opinions, and will not again be repeated save insofar as may be necessary to a presentation of the issues now before us.

The first appeal was prosecuted by plaintiff herein from judgment that sustained a plea of res judicata. The judgment was reversed and the case remanded for further proceeding.

The second appeal was from judgment that sustained a plea of estoppel. This judgment was also reversed and the case •again remanded. It is now before us on appeal by the defendant from a money judgment in favor of the plaintiff for $219.38, less a credit of $78.79.

The furniture, the price of which was sued for, was stored by plaintiff’s wife in a warehouse in the City of Shreveport, Louisiana, on June 1, 1944, where it remained until seized in November 1945, under a fi. fa. issued on a judgment on which there was a balance due of only $16.04. In the second appeal we held that the stay order had been erroneously set aside by the lower Court; and, therefore, since the judgment was not executory, the furniture was illegally seized and sold at defendant’s instance. As is reflected from our prior opinions, plaintiff here sued to recover the value of the furniture at time sold. Defendant 'became the purchaser of the furniture at Sheriff’s sale.

On the merits, the sole issue now before us has to do with the value of the furniture when sold.

The furniture, it is shown, was in good condition when stored. Some of it had not been in use for one year and none of it in excess of eighteen months. An employee of the storage company testified that when seized the furniture was still in good condition; that no scratches or other like injury had been done to it while in storage. The original cost of the furniture, including tax, was $235.42. It was then new.

Mr. W. W. Bruce, member and general manager of defendant partnership, testified concerning the furniture’s condition when sold by the marshal. No other testimony was offered on this score by the defendant. He stated that due to the varnish cracking, while in storage, each piece of the furniture had to be revarnished; that “as a furniture man buying that furniture and having to refinish and handle it,” its value when sold was not more than $50.00; that furniture that “showed any wear of any kind, could not sell for more than one-third of its original selling price”, and that when refinished it would not sell for more than two-thirds of the original selling price. He did not disclose the expense of refinishing the furniture nor the price at which he resold it. Mr. Bruce’s opinion of the value of the furniture is, naturally, .that of a furniture merchant, dealing in new and used goods for profit. When purchasing used merchandise he is actuated primarily by the desire to resell at a profit, and in furtherance of this desire values are fixed with extreme care and caution.

But there is another side to the question. This furniture was less than two years old. For plaintiff and his wife, it would have served as well as if new. Its possession would have obviated the necessity of acquiring new furniture, and now, since they have been deprived of its use and possession, they are faced with the .necessity of again involving themselves for the price of a new supply.

Due to the paucity of evidence in the record and its inconclusive character on the question of value of the furniture when seized, to determine the measure of defendant’s liability to plaintiff, is not free of difficulty. However, it is imperative that this litigation should terminate.

The lower Court fixed liability of the defendant to plaintiff at an amount only $16.00 less than the original cost of the furniture, or practically seven per cent. It, of course, had depreciated in value from use to some extent, and we think more than this amount. We feel warranted in fixing this depreciation at $45.00, or nearly twenty per cent, and for this amount defendant is entitled to additional credit.

The appellee has asked for no amendment of the judgment. On the contrary, its affirmance is prayed for.

Appellant re-urges all of the pleas and exceptions filed by him in the case. His counsel devotes a considerable portion of his brief to a discussion of the pleas of res judicata and estoppel, notwithstanding, so far as this Court is concerned, these have been consigned to the realm of the thing adjudged.

He also stresses the exceptions of no cause and no right of action and of non-joinder.

In support of the exception of non-joinder, it is argued that plaintiff should have proceeded for reimbursement, of his losses, if any, against attorney Lockard, if he had no authority to represent him in the original suit. Counsel can hardly be serious in this position. The issues in the original suit were settled by rendition of judgment with stay order. That ended Mr. Lock-ard’s connection with the suit. Counsel was so advised when considering the mode of service of the rule to have the stay order set aside.

The exceptions of no cause and no right of action are also not tenable. Plaintiff was absent in the military service of his country when his wife found it necessary to abandon housekeeping in Shreveport, and to store their furniture, as was done. In the effort to collect the small balance of $16.04 due on the judgment, it was seized and sold under an appraisepient of only $30.00. Defendant became the purchaser for $20.00. We have held that for lack of legal service of the rule to revoke the stay order, this seizure and the sale were unlawful. The furniture may no longer be recovered. It is gone. In view of these facts, the only recourse available to plaintiff was that adopted by him herein, viz.: to seek to recover its value. The petition is clear in this respect and therefore discloses a right and a cause of action against defendant who put in motion the various acts that have redounded to plaintiff’s loss.

For the reasons herein assigned, the judgment is amended by reducing the principal amount due plaintiff to One Hundred Eleven and 63/100 ;($111.63) Dollars, with legal interest from judicial demand until paid, and as thus amended, it is affirmed. Plaintiff is cast for costs of appeal. Defendant is cast for all other costs.


author: JANVIER, Judge.

text:
    ESTA v. PERSOHN.
    No. 19292.
    Court of Appeal of Louisiana. Orleans.
    Jan. 30, 1950.

      Oliver P. Schulingkamp, New Orleans, for plaintiff-appellant.
    John E. Fleury, Waverly A. Henning, Gretna, for defendant-appellee.
   JANVIER, Judge.

This suit for damages for personal injuries is brought by a seaman against the owner of a shrimping vessel on which the plaintiff performed services as a member of the crew. It is brought under Section 688, Title 46 United States • Code Annotated, — the Merchant Marine Act of June 5, 1920, § 33, 41 Stat. 1007, commonly called the Jones Act.

Plaintiff alleges that he was employed by the defendant on a profit-sharing basis and that his weekly earnings varied with each individual catch of shrimp, and that during the term of his employment his earnings had never been less than $100.00 in any one week and had amounted to as much as $357.00 in other weeks. He alleges that on November 15th, 1946, at 10:30 in the morning, while the vessel “Buddy” on which he was employed was engaged in shrimping operations in the Gulf of Mexico, about ten miles southeast of Grand Isle, Louisiana, there occurred an accident which was caused by the negligence of the' owner of the vessel, and that as a result of the accident a bone in the big toe of his right foot was fractured; that it became necessary to graft new skin on his injured foot, and that he suffered excruciating pain. Plaintiff prays for judgment for $15,000.00.

Plaintiff alleges that the accident occurred as he attempted, under orders of the defendant, to straighten a twist in a rope leading to a board or door, which was part of the front end of the trawl which had been dragged behind the vessel and that this board fell upon his foot causing the injury. .

Plaintiff further alleges that there was negligence in the owner of the vessel in the following particulars:

That he did not equip the vessel with a whip line and that he was not using the power winch which was available to haul the trawl aboard so that it could be straightened; that he did not stop the vessel before attempting to straighten the board; that he ordered plaintiff into a dangerous position and that the vessel was not seaworthy.

Defendant filed, first, a plea to the jurisdiction of the State court averring that “this suit involves an accident in admiralty which is cognizant only by the Admiralty Division of the United States District Court for the Eastern District of Louisiana and not by this Honorable Court.”

We are unable to determine from the record whether this plea was acted upon, though we assume that it was overruled since the defendant filed answer and the case went to trial on the merits.

Defendant admitted the occurrence of the accident and the details of the contract of employment, but averred that as a result of that contract plaintiff was a partner and not an employee of defendant and that therefore he could not maintain an ac-tipn in damages against defendant. Defendant further denied that there was any negligence on his part, denied that the vessel was unseaworthy, and averred in the alternative that the accident resulted solely from contributory negligence of plaintiff himself.

There was judgment in favor of defendant, and plaintiff has appealed.

We find it clear that there is no merit in the exception to the jurisdiction of the State Courts.

Section 688 of the Jones Act, 46 U.S.C. A., reads as follows: "Any seaman who shall suffer personal injury in the course of his employment may, at his election, maintain an action for damages at law, with the right of trial by jury, and in such action all statutes of the United States modifying or extending the common-law right or remedy in cases of personal injury to railway employees shall apply; and in the case of the death of any seaman as a result of any such personal injury the personal representative of such seaman may maintain an action for damages at law with the right of trial by jury, and in such action all statutes of the United States conferring or regulating the right of action for death in the case of railway employees shall be applicable. Jurisdiction in such actions shall be under the court of the district in which the defendant employer resides or in which his principal office is located.”

It is true that in this section there is no unequivocal statement that there is concurrent jurisdiction in the State and Federal courts. However, this same question was considered 'by us in Macomber v. DeBardeloben Coal Co., La.App., 4 So.2d 483, and we found it to be settled as a result of many decisions of the Supreme Court of the United States. We cited Engel v. Davenport, 271 U.S. 33, 46 S.Ct. 410, 412, 70 L.Ed. 813, in which the Supreme Court said: “It is clear that the State courts have jurisdiction concurrently with the Federal courts, to enforce the right of action established by the Merchant Marine Act as a part of the maritime law.”

As we have already said the exception to the. jurisdiction is without merit.

We next give consideration to the contention of defendant that he and the plaintiff were engaged in a joint venture and that therefore there is no right of action in plaintiff since one partner may not sue another for damages for injuries sustained in the operation of the partnership.

Let us first set forth the admitted facts concerning the relationship between plaintiff and defendant. The vessel “Buddy” is owned by defendant, who, with plaintiff and a third member of the crew, Cheramie, operated the vessel under an agreement that such profits as might result from each fishing venture were to be divided into five parts; two to go to the owner of the vessel as the vessel’s share, one to the owner as his share, one to Cheramie, and one to plaintiff. Plaintiff was not to share in the losses, if any. The vessel was at all times under the sole management and control of defendant and the entire catch on each occasion was sold by the defendant who made the distribution of the proceeds.

That the defendant Persohn was in complete control is shown by his own testimony:

“Q. Do you consider the captain of the boat gives the orders? A. Yes.
* * * * * *
“Q. Well, if that boat were in grave danger, would you have the say so as to the destiny of the vessel? A. That’s right.
* * * * * *
“Q. Who has the say so as to where you fish? A. The captain does.
“Q. You do, as to your boat? A. Yes; that’s correct.
“Q. Suppose you wanted to fish in one place, and the deck-hands wanted to fish in another — what would happen then? A. It would be just too bad. They would have to fish there till the end of the trip. * * * ”

In corroboration of the other evidence to the effect that defendant was in complete control of the vessel, plaintiff gave the following testimony:

“Q. Were you, at all times when you were on the boat, subject to the orders from Captain Persohn? A. Yes, he is the captain. What he says goes.
“Q. In making an effort to grab this trawl board, were you acting under the orders of Captain Persohn? A. That’s right.”

While there seems to be no dispute over the question, the following testimony shows that even as to the sale of the shrimp plaintiff had nothing to say, this being completely under the control of the defendant:

“Q. I imagine you sold the shrimp and divided the money; is that right ? A. No, Captain Persohn sold the shrimp.
“Q. Captain Persohn handled the disposal of the shrimp at the market; isn’t that right? A. Yes.”

It is well established, both in the Federal jurisprudence which has grown out of the operation of the Jones Act, and in the jurisprudence of this State in cases involving the question of what is necessary to constitute a partnership, that the major factor in determining whether an individual is a partner or an employee is his right or lack of right to exercise control.

In Glaser v. Katalinich, 169 Wash. 133, 13 P.2d 468, 471, the contract was quite similar to that which is found here with the exception of the fact that there the contract provided also for the sharing of the losses. The Supreme Court of Washington held that the contract did not create a partnership since the plaintiff had no right of control. The Court cited Domandich v. Doratich, 165 Wash. 315, 5 P.2d 310, in which it had been held that the plaintiff was not a partner and was not engaged in a joint venture. The Court, referring to the various employees in the same category with plaintiff, said that none of them had .a voice in the control of the vessel, nor had anything to say as to where the fishing would be done, nor as to the manner in which they would perform their various duties. Finally, the Court said: “ * * * They were still mere seamen subject to the orders of the captain to the same extent as if they had been employed at a fixed wage, payable regardless of the profits of the venture.”

In Norland, 9 Cir., 101 F.2d 967, 972, is found the following: “ * * * Also inconsistent with the theory of joint venture is the indication in the testimony , of Pete Johnson that the- crew was controlled as to where the fishing wag.to be done, the labor to be performed, and even as to the manner of the performance of their labor, by the orders of Loe and Captain Ball. * * * This last factor points to. the existence of an employer-employee relationship between the owner and the crew. * * $»

In Louisiana the principle is well settled that there is no partnership unless there is a joint right of- control. In Blackburn v. Chenet, La.App., 42 So.2d 288, an owner of a mule and wagon made a contract with the driver under which the owner provided the cash for the purchase of vegetables. The driver drove the wagon, peddled the vegetables, and then made settlement with the owner of the wagon. We held that the driver was not a partner of. the owner of the wagon. We cited Buettner v. Polar Bar Ice Cream Co., La.App., 17 So.2d 486 and Shea v. Reems, 36 La.Ann. 966, in each of which it had been held that a contract somewhat similar did not create a partnership.

Before discussing the details of the occurrence of the accident, it may be well to refer briefly to the legal effect which may be given to the fact that the defendant, in his answer, in the alternative averred that the accident had resulted from the contributory negligence of'the plaintiff and also to the fact that in oral argument counsel for defendant contended that the accident was one of a type which might be expected in occupations of that kind; that the risk was one inherent in that kind of work and in effect therefore that plaintiff could not recover in any event because he had assumed the risk of such an accident.

It will at once be noted that section 688 of the Jones Act provides that in an action brought thereunder “all statutes of the United States conferring or regulating the right of action for death in the case of- railway employees shall be applicable.” The reference, of course, is to the Federal Employers’ Liability Act and particularly to sections 51 through 60 of the Title Railroads, United States Code Annotated, Title 45. Reference to that statute discloses the fact that by section 54 it is provided: “That in any action brought against any common carrier under or by virtue of any of the provisions of this chapter * * * such employee shall not be held to have assumed the risks of this employment in any case where such injury or death resulted in whole or in part from the negligence of any of the officers, agents, or employees of such carrier; * *

It is obvious then that, if there was any negligence on the part of the owner, the right of the employee to recover may not be defeated on the ground that he assumed the risk of his employment.

Nor may the contention that contributory negligence of the employee was the cause of the accident be availed of to entirely defeat his right to recover, for the reason that in section ,53 of the Employers’ Liability Act, which by the reference to which we have already mentioned is made applicable in cases of this kind, it is provided that contributory negligence shall not prevent recovery, “but the damages shall be diminished * * * in proportion to the amount of negligence attributable to such employee.”

Concerning both the defense of assumption of risk and the defense of contributory negligence, in Ducombs v. Lykes Bros. S. S. Co., La.App., 1 So.2d 114, 115, we had this to say:

“In volume I of the Law of American Admiralty by Benedict, Sixth Edition by Knauth, at page 50, we find the following:
‘“The gravamen of a Jones Act suit is negligence; the defence of common employment (the fellow servant rule) is abolished, and the doctrine of assumption of risk is profoundly modified. If a statute relating to safety devices is not complied with the seaman assumes no risk whatsoever. Contributory negligence is not necessarily a complete defense; the damages may merely be reduced proportionately.’ ”

We, therefore, pass to a consideration of the facts of the accident in an effort to determine whether there was negligence on the part of the owner, and if so, to what extent any contributory negligence on the part of the employee may reduce the amount of an award which may be made.

There is some slight dispute as to whether the accident occurred on November 15th or November 17th. There is no reason for us to decide this most unimportant question.

The accident occurred in the following manner: The vessel was what is known as a trawl boat which catches shrimp in a net known as a trawl, which is dropped from the stern and dragged behind the vessel, the front end being held open by two large boards known as doors. These boards are rectangular and are about thirty inches in height and several feet long. They are so attached, one on each side of the front end of the trawler that the pressure of the water as they are pulled through it spreads them apart, one to the right, the other to the left, with the result that the opening between them into the trawl is quite large. These boards are very heavy, weighing about 200 pounds each, there being attached to the lower edge of each a piece of heavy metal so that each board will “ride” upright as it is pulled through the water. After each haul the vessel is stopped and these boards are lifted to the rear deck and then the trawl itself is pulled in and the catch removed. Sometimes, because of rough weather, the ropes, which extend from the vessel to these boards, become twisted so that it is necessary to pull them to the deck and to remove the twist by turning the boards one way or the other.

Plaintiff states that on the morning of the accident, as these boards were pulled to the deck, it was noticed that there was a twist in the ropes leading to one of them and that a third member of the crew, Cheramie, together with the defendant, attempted to straighten the board but that Cheramie, being younger and not having sufficient strengh, could not do the job and the defendant, owner and master of the vessel, ordered plaintiff to exchange positions with Cheramie and to remove the twist by turning the board over. He says that the board was partially on the deck, but that the end extended out over the rail- and that he put his foot upon this rail and reached out as far as he could to grasp and turn over the very heavy board, and that as he was turning it over the board slipped and crashed down upon his foot causing the injury.

The principal charge of negligence which plaintiff makes is based on the fact that at the time of the occurrence the vessel was not equipped with what is known as a “swing line”, and plaintiff also charges that defendant was negligent in that he did not order the use of a winch and other tackle which was available, and in that he did not stop the vessel completely before attempting to adjust the twist in the line leading to the board.

Plaintiff charges that a swing line is a necessary part of the equipment of the trawl boat and that if there had been one on the Buddy it could have been used to pull up the board, with the result that plaintiff would not have had to put his foot on the rail and would not have had to lean far out over thé side of the vessel; and he says that the board could not have slipped and fallen upon his foot if it had been raised from the water by a swing line.

We find in the record no detailed description of a swing line. However there is enough evidence concerning such a device to enable us to understand in a general way what it is. It seems to be a rope, with a hook or catch on one end and with the other end attached to a drum or pulley or some power- device in such a way that when the catch-is affixed to the board and the power applied to the other end of the rope, the board is lifted from the water and can ea sily be deposited upon the deck of the vessel. It is conceded that the Buddy did not have such a swing line at the time, and it is also conceded that since the accident a swing line has been added to her equipment.

Defendant admitted that most trawl boats are equipped with swing lines. In fact' he said that about seventy-five per cent of them are so equipped. Plaintiff says that practically all such vessels are so equipped and Cheramie, the third member o-f the crew says that he had not worked on any boat without such a line until he was employed on the Buddy.

We conclude that there is no doubt at all that it is very predominantly the custom to have such lines and in fact it is almost conceded that this is true, but on behalf,of, the defendant it is argued that while it is customary to have such lines, they are not in fact used for the purpose for which plaintiff says they should have been used had there been- such a line on the boat. Defendant contends that such lines are used for the purpose of pulling the trawl out .of the water for drying at the completion of each day’s operation. Defendant says also that while there was no such swing line on the Buddy, there was other tackle which could have been used for the same purpose.

From the evidence adduced we cannot escape the conclusion that had the swing line been used, or had other available tackle been substituted for the swing line, the accident would not have taken place, and therefore we cannot avoid the further conclusion that the accident resulted either from the fact that there was no swing line available, or from the fact that defendant, who was in complete charge of the operation, ordered plaintiff to raise the board by hand instead of making use of other tackle. ' In either event, we think it evident that there was negligence on the part of defendant in failing to equip his vessel with the proper line, or in failing to make use of other equipment, and thus requiring that the operation be performed in a dangerous manner.

We think also that it appears from the record that it would have been -much safer to have stopped the vessel. completely in view of the fact that there was a considerable sea running and that this added to the danger. ,

In determining what is negligence, it is well settled that a considerably higher standard of care is required of the operator of a vessel than is required of an employer on shore.

In Koehler v. Presque-Isle Transp. Co., 2 Cir., 141 F.2d 490, 492, it was held that:

“ * * * the obligation of a shipowner to his seamen is substantially greater than that of an ordinary employer to his employees.”

In Mahnich v. Southern S. S. Co., 321 U.S. 96, 64 S.Ct. 455, 459, 88 L.Ed. 561, appears the following: “We have often had occasion to emphasize the conditions of the seaman’s employment * * * which have been deemed' to make him a ward of the admiralty and to place large responsibility for his safety on the owner. He is subject to'the rigorous discipline of the sea, and all the conditions of his service constrain him to accept, without critical examination and without protest, working conditions and appliances as commanded by his superior officers.”

In Jamison v. Encarnacion, 281 U. S. 635, 50 S.Ct. 440, 442, 74 L.Ed. 1082, the Supreme Court of the United States said:

“ * * * The act is not to be narrowed by refined reasoning or for the sake of giving ‘negligence’ a technically restricted meaning. It is to be construed liberally to fulfill the purposes for which it was enacted, and to that end the word may be read to include all the meanings given to it by courts, and within the word as ordinarily used. * * *
* * * * * *
“ ‘Negligence’ is a word of broad significance and may not readily be defined with accuracy. Courts usually refrain from attempts comprehensively to. state its meaning. While liability arises when one suffers injury as the result of any breach of duty owed him by another chargeable with knowledge of the probable result of his conduct, actionable negligence is often deemed—and we need not pause to consider whether rightly—to include other elements. * * *
* * * * * *
“ * * * unquestionably the employer would be liable if plaintiff’s injuries had been caused by mere inadvertence or carelessness on the part of the offending foreman * *

Nor do we think that it can be said that plaintiff was guilty of contributory negligence in placing his foot upon the rail and in reaching out over the water to grasp the end of the board. We are convinced that he told the truth when he said: “There was no other way to catch the board.” He was asked: ' “Could you have gotten in reach of that trawl board without getting on the railing? ” and he answered:

“No. No one else can do it either.”

A seaman is not at fault in doing what he is ordered to do unless it is obvious that to carry out the orders given him by the master of the vessel will almost certainly be extremely dangerous. In Hanson v. Luckenback S. S. Co., 2 Cir., 65 F.2d.457, 458, the Court said: “Being a seaman, it is well settled that plaintiff did not assume any risks involved in obeying orders.”

In Holm v. Cities Service Co., 60 F.2d 721, 722, the Circuit Court of Appeals, Second Circuit, said: “Where a seaman is injured when acting under orders, he does not assume the risk. Panama R. R. Co. v. Johnson, 2 Cir., 289 F. 964; Masjulis v. Shipping Board, 2 Cir., 31 F.2d 284. The defense of assumption of risk is not available when a seaman so injured sues to recover because his duty to obey the order of a superior is so compelling that a rule of law based on the maxim ‘volenti non fit injuria’ cannot be applied. * * * ”

In Crickett S. S. Co. v. Parry, 2 Cir., 263 F. 523, 525, appears the following: “The defendant contends that -the plaintiff cannot recover because he shipped with knowledge of the condition complained of, and because, so far as the wire rope is concerned, proper rope could not be obtained. * * * We are considering the rights of seamen, who have constituted from early times a peculiar class. The unusual protection extended to them is reflected in the familiar saying that they are the wards of the admiralty. As to the second proposition, shipowners cannot justify furnishing them with defective and dangerous appliances on the ground that they knew of it. * * * ft

In conclusion let us say that we are not impressed with the sincerity of defendant, and notice that in various parts of his testimony he found it convenient to avoid admitting knowledge of things which he must certainly have known. For instance, although he was standing about five feet away and says that he was looking at the board, he also says that he did not know that it had fallen on plaintiff's foot. He added: “I was not looking at his foot.”

Our conclusion is that the accident was caused by the negligence of the master of the vessel, who is the defendant, and that plaintiff was not himself at fault.

When we come to consider the amount to which plaintiff is entitled we note that there are certain facts which should be considered, but concerning which there is little, if any, evidence in the record. From the testimony of plaintiff’s physician we learn that by January 23rd, 1947, plaintiff had completely recovered and could do a normal day’s work. The accident occurred on November 15th, or possibly November 17th, and it therefore appears that he was disabled for a total period of more than nine weeks. He says that the most he had earned in any one week was $347.00 and the least $96.00. There is nothing to show what would have been an average week’s earnings, and we do not think that it would be proper to total the amount earned in the maximum week and the amount earned in the minimum week, divide that by two, and then say that the result represents the average weekly earnings. There are too many other factors which should be taken into consideration. For instance, there can be no doubt that on many days the vessel would have remained at home, and there can be no doubt that on other days, due to stress of weather or for other causes, no shrimping operations could have been conducted. The record does not show whether there was an open season for shrimping during the whole of the period in which plaintiff was unable to work.

Taking into consideration all of the evidence which .is available, we have reached the conclusion that plaintiff’s earnings during that period would not have amounted to more than $800.00. In addition, he should be allowed $125.00, which is the medical expense shown by the record.

Plaintiff’s physical injuries consisted of a fracture of the big toe with contusions and’ lacerations. His doctor stated that normally a fracture of that type would knit in ’ about six weeks' but that, due to an infection which had set in, a longer period was required. He stated too that the infection had been caused possibly by fluid from the shrimp in which plaintiff worked, or for some'Other cause of which there might have been no evidence, but that, whatever may have been the cause, there was 'an infection which complicated the situation and which retarded plaintiff’s recovery. Because of this infection it was necessary that, for a period of from two and one-half to three weeks, plaintiff soak his foot about four times each day.

In Cartwright v. Puissigur, 1910, 125 La. 700, 51 So. 692, the Supreme Court approved an award of $400.00 for physical pain and suffering for the mashing of two toes. Apparently there was no fracture. In Scarborough v. Louisiana Ry. & Nav. Co., 145 La. 323, 82 So. 286, 288, there was involved a claim on behalf of a child six years old. His right foot was badly mashed; his great toe amputated and his second toe dislocated. There was great pain and suffering. The Court said that “ * * * while there is disfigurement of the child’s foot which will be permanent, he will largely recover the use thereof, * * * the result of the injury will greatly disappear in the course of a few years, and * * * he will not be able to walk so well or so far as he would have walked with the great toe in its proper place.” There was an award of $2,000.00.

In DeCuers v. Crane Co., La.App.,1949, 40 So.2d 61, 70, plaintiff, a young woman, sustained “a fracture of the distal phalanx of the right great toe and chipped fractures of the terminal phalanges of the third and fourth fingers of the right hand.” She was required to remain in bed for one month and was partially disabled for an additional three weeks. For her physical injuries she was allowed $1500.00.

In the case at bar, while plaintiff was disabled for approximately ten weeks, he w.as not required to remain in the hospital for any perio'd at all. We think that,’ taking into consideration all of the facts which do appear in the record, and considering the cases which we have cited, an award of $2000.00, which will include his medical bill, his loss in earnings, and his physical suffering and disability, would be substantially correct.

It is therefore ordered, adjudged and decreed that the judgment appealed from be and it is annulled, avoided and reversed, and that there now be judgment in favor of plaintiff and against defendant in the sum of two thousand ($2,000.00) dollars, with legal interest from judicial demand, and for all costs.

Reversed.


author: DORE, Judge.

text:
    BLANCHARD v. THIBODEAUX.
    No. 3183.
    Court of Appeal of Louisiana. First Circuit.
    Jan. 31, 1950.
    Dugas & Bean, Lafayette, for appellant.
    J. Minos Simon, Lafayette, for appellee.
   DORE, Judge.

Plaintiff, Mrs. Angella Blanchard, widow of Leopold LeBlanc, alleges that on or about December 1, 1947, while she was slowly and cautiously making her way along Dewey Street, and at or about municipal No. 225 of said street, said municipal number being the residence of Gladys and Caffrey Dean, in the City of Lafayette, a dog, allegedly belonging to and owned by the defendant, while in the care and custody of Gladys and Caffrey Dean as defendant’s agent, suddenly and viciously ran toward her, leaped onto her body, biting her about the right arm and hurling her body to the ground, breaking her right arm and bruising her body. The plaintiff further alleges “that the viciousness and dangerousness of the dog was well known to the defendant and its custodians, Gladys and Caffrey Dean, as well as to the general neighborhood where the dog was being kept at the time of the attack upon your petitioner.”

The amount of damages claimed is made up of pains and sufferings, broken arm with resulting impairment and for medical expenses incurred and to be incurred, aggregating the amount of $3,750.00.

Defendant denied all the allegations in the petition and in further answer, alleged that the dog mentioned in plaintiff’s petition had always been of a kind temper and never bit any one nor attempted to bite any one or ever gave occasion to suspect that it would bite any one. He further alleged, in the alternative, that should the Court find him responsible for the said accident, plaintiff’s negligence or contributory negligence was the proximate cause of the accident, and consequently barred any recovery by her. Her negligence, as alleged, consisted in imprudently continuing to “harass, tease and aggravate the dog with unnecessary and loud shouting directed towards the dog and at the same time flailing her arms in a threatening and menancing manner towards the said dog.”

In his written reasons for judgment, the District Judge reached the conclusion that the plaintiff had failed to sustain the burden of proof and had failed to establish the verity and correctness of her claim to a legal certainty, and dismissed her suit at her costs. Plaintiff has appealed.

The suit is brought under Civil Code, Article 2321 which makes an owner of an animal responsible for the damages caused by it. In connection with this article, the courts of this State have applied Civil Code, Article 2315, providing for liability for- fault, and Civil Code, Article 2316 providing for liability for negligence. In other words, a person who is bitten by a dog must show that the dog belonged to defendant and that the defendant was at fault and/or negligent.

The first and most serious question presented on this appeal is the ownership of the dog which allegedly caused the injury complained of. On that score, we find the evidence conflicting and contradictory.

It appears from the testimony of defendant’s wife that a sister of hers living in Alexandria, Louisiana, gave her this dog as a pup. This pup was taken to her home at Lafayette wherein it remained until June, 1947. Mrs. Thibodeaux then,,in June 1947, gave the pup to Gladys Dean, her colored cook, who took the dog to her home. At this time it may be proper to state that Gladys Dean resided with her husband at municipal No. 225 Dewey Street, in the City of Lafayette, a colored section of the said city, while defendant lived in another section of the city, somewhat remote from Dewey Street, and that the accident or injury occurred at about the premises of Gladys Dean. The defendant in his testimony absolutely denies the ownership of the dog, testifying that the dog had been given to his wife as a pup and that the dog was given by his wife to Gladys Dean in June, 1947. Gladys Dean in her testimony, admits the gift and ownership of the dog ever since June, 1947.

In seeking to prove the ownership of the dog in the defendant, the plaintiff mainly relies upon admissions made by him and Gladys Dean to Police Officer Benton, who was called to investigate the case.

Police officer Benton testified that he was detailed to make an investigation of the accident. He proceeded to the residence of Gladys Dean about an hour and one-half after the accident. Gladys Dean informed him who was the owner of the dog. He advised Gladys Dean to keep the dog tied for eleven days for observation. A couple of days thereafter, he called defendant’s office and was informed that defendant was out of his office; he left word for defendant to call him and later on defendant called him. In this conversation, the defendant told him, the officer, that the dog was his and was at his cook’s, Glady’s, house and that he would move it from there; “he said it was a very good dog and he would try to take it in the country and if he could not he would call me back and let me pick it up. He said the dog was going to have puppies and that they usually got out of line, but it was a very good dog. * * * That month she was going to have puppies.” The officer did not go back to Gladys Dean’s house because some other officer was assigned on duty and he did not follow up the case. On cross-examination, he stated that defendant seemed surprised to know that the dog had bitten the plaintiff; and acted as if he had not been informed before. He reiterated that Gladys Dean had informed him twice that defendant was the owner of the dog, and that she was keeping the dog for defendant and would contact the defendant to do something about it. He describes the dog as of about two and one-half feet high, of about twenty-five pounds in weight, of yellow-greyish in color, and an “alley dog” in kind.

Gladys Dean, the admitted keeper or har-borer of the dog, testified on direct examination that she was the owner of the dog; that she got the dog from Mrs. Thibo-deaux in the beginning of June, 1947; that she fed the dog at her own expense; that she had the custody of the dog continuously from the beginning of June, 1947 until around Christmas time of 1947, when it died presumably of poisoning; that at the time of the accident or injury, the dog was pregnant; she was working for Mrs. Thibodeaux prior to and on June 1, 1947, and continuously to and after December 1, 1947, the date of injury. On cross-examination, she admits that she told Officer Benton that the dog belonged to defendant, giving as her reason for so stating, “because I got so upset and scared at the moment when he came to the house and I saw him getting out of his car and he was twirling a little stick and I didn’t know if he wanted to take me or my husband to jail. That is why I said at the moment that the dog belonged to Mr. Thib-odeaux.” She again repeats that she was the owner of the dog, having acquired it by donation from Mrs. Thibodeaux in the beginning of June, 1947.

Defendant, on being called for cross-examination under the Act, testified that the dog formerly belonged to his wife, she having acquired it by donation from her sister in the latter part of 1946 and that his wife disposed of the dog in the early part of June, 1947. He states that Officer Benton inquired of him as to the ownership of the dog and that he told Officer Benton that the dog formerly belonged to his wife; outside of this statement he categorically denied having told Officer Benton anything else as testified to by the said officer. Further in his testimony, he denies having placed the dog in the custody of Gladys and Caffrey Dean; however, in answer to a question of who did, he answers, “Mrs. Thibodeaux. She is the owner of the dog.” He further states that on June 2, 1947, upon request of his wife, he personally had the dog vaccinated.

At this time we might mention that we find this witness to be very evasive in his answers to questions. We see no reason why Officer Benton should have testified as to what was told to him by defendant if in truth and in fact the defendant had not so told him.

The testimony of Miss Anne Turren-tine is to the effect that the latter part of November, 1946 she gave to her sister, Mrs. Sidney S. Thibodeaux, the wife of defendant, a part airdale puppy of about four weeks old. Mrs. Sidney Thibodeaux testified that this puppy was taken by her to her home at Lafayette; that about the middle of June, 1947, she gave this dog to her cook, Gladys Dean, who in turn took the dog to her house as her own. The reason given, for the disposition of the dog is that defendant’s- children became tired of the dog.

Facts which may be considered in determining the issue under consideration are that' it is undisputed that the dog in question had been in the possession and care of Gladys Dean for some six months and away from the premises of defendant for that length of time, and furthermore, the location of the premises of Gladys Dean and the situs of accident were of sufficient distance from the residence of the defendant so as not to create a presumption of ownership and/or control of the dog in defendant. No other reason but the one stated by defendant, that is, that his children had gotten tired of the dog, has been given as the reason for turning the dog to Gladys Dean. The fact that the dog was pregnant does not enter into this phase of the case. According to the evidence, delivery of the pups was expected during the month of December, a lapse of six months or more after Gladys Dean obtained possession. We understand that the period of gestation for a dog is much less than six months.

The burden of proof lies on the plaintiff to prove the ownership of the dog in defendant. Has she done so? We have our serious doubt that she has sustained it. The most that can be said is that probably the defendant, or his wife, was the owner of the dog. Plaintiff points to the fact that defendant had the dog vaccinated on June 2, 1947, and argues that such is a circumstance to be considered. However, according to the testimony of Mrs. Thibodeaux, the defendant, and Gladys Dean, the dog was given after that date. It appears from the reading of the opinion of the trial judge that he was also of -the opinion that plaintiff had failed to discharge the burden of proof on the question of ownership.

However, admitting for mere sake of argument that the plaintiff has sustained the burden of proof that defendant was the owner of the dog, then we say that on the question of liability, we find that the discussion of the facts and law involved in this case have been fully set out in the written reasons for judgment by the trial judge. We quote as follows:

“If the defendant be the owner, did he have any knowledge of the vicious propensities or the acts of misconduct of the dog? Were there facts and circumstances from which he can be presumed to have had knowledge of its vicious tendencies or actions that would cause injury to another? Did Gladys and Caffrey Dean have such knowledge as custodians and can that knowledge, if any, be imputed to the defendant? :
“The defendant testified that the dog was given to his wife while just a puppy and that it was kept by them from November, 1946 until early June 1947 when it was given to Gladys Dean. That during that time it never manifested any viciousness, and due' to the fact that the children had become tired of it, was given to Gladys Dean. The record is void of any evidence that anyone ever reported the tendencies of the dog to him, or that he knew of its habits of misconduct. The first information, according to the evidence, concerning the dog was when officer Benton had the telephone conversation with him, subsequent to the accident.
“The. evidence is likewise vague , as to the knowledge, of Gladys and Caffrey Dean, John Comeaux, husband of plaintiff’s granddaughter, testified that he lived next door to the Deans, that he had eight children and that they played around the neighborhood, yet the dog had never bitten any of them. According to his testimony and that of Dewey Francois, a a dog -had bitten Francois on Thanksgiving day. Yet neither her nor Francois reported the fact to anyone. Comeaux did talk to Caffrey Dean about the dog, yet Francois told no one about the dog. While Mrs. Comeaux testified that the dog had never bitten her children, she would not permit them to play with it as she was afraid.
“The plaintiff and'her grandson, Joseph Himel, testified that the dog barked and jumped the fence and chased Himel while riding by on his bicycle. Mr. and Mrs. Comeaux did not testify that the dog barked, jumped the fence or chased passerby. Comeaux did say that the dog rushed to the fence and could have jumped it. Dalton and Rita Dean corroborated the plaintiff and Himel as to the dog barking and chasing Himel as he passed the house on the day of the accident. However, there is no evidence in the record showing that the dog was in the habit of chasing and barking at other people on other occasions.
“Several neighbors testified as to the character of the dog. All but one, had several young children who played with the dog and that neither they nor the children were afraid of it. One knew the dog to be a good dog and had seen children playing with it. ‘ Evidently the particular section of the City of Lafayette in question is thickly populated area, yet no other disinterested parties testified as to the conduct and habits of the dog. The only notice either Gladys or Caffrey Dean received, concerning the dog was at the time John Comeaux talked to Caffrey, yet he did not tell any one else before the accident in question of the Francois incident because ‘did not want to create hatred,’ and does not say that he told Caffrey Dean of the Francois incident.
“In every case in our reports where the owner was held liable there was evidence that the animal was known by the owner to be dangerous or had injured someone at some prior time or that the dog was in the habit of jumping and barking at any body that passed by. DeLisle v. Bourriague, 105 La. [77] 84 [29 So. 731, 54 L.R.A. 420]; Montgomery v. Koester, 35 [La.] Ann. 1091 [48 Am.Rep. 253]; McGuire v. Ringrose, 41 [La.] Ann. 1029 [6 So. 895]; Bentz v. Page, 115 La. 560 [39 So. 599]; Serio v. American Brewing Co. 141 La. 290 [74 P. 998, L.R.A.1917E, 516]; Mercer v. Marston, 3 La.App. 97.
“In the Mercer case the defendant’s daughter as well as others testified that the dogs in question jumped off the porch and barked at anyone passing, and while the law makes no distinction between an animal dangerous from viciousness and one merely mischievous or dangerous from playfulness, the court held that the defendant, in view of the testimony of the dogs’ bad habits had failed to rebut the presumption of knowledge and the evidence showed knowledge on the part of the owner. There are distinguishing features in all the cases, as in the instant one.

“ ‘The owner of a gentle dog which has always been of a kind temper and has never attempted to bite anyone and has never given occasion to suspect that it would bite anyone is not liable in damages by the mere fact that the animal has bitten someone.

“ ‘The owner of a domestic animal is not liable for any injury committed by it when he shows affirmatively that the animal was not previously vicious and that he had no knowledge that it was vicious.’ Martinez v. Bernhard, 106 La. 368 [30 So. 901, 55 L.R.A. 676, 87 Am.St.Rep. 306].

“ ‘Damage may be done by a domestic animal kept for use or convenience, but the rule is that the owner is not liable to an action on the ground of negligence without proof that he knew that the animal was accustomed to do mischief * * *. Domestic animals may injure the person or property of another, but the courts of justice invariably hold that if they are-rightfully in the place where the injury is inflicted, the owner of the animals is not liable for such injury, unless he was accustomed to be vicious, and in suits for such injuries such knowledge must be alleged and proved, as the cause of action arises from the keeping of the animal after the knowledge of its vicious propensity.’ Spring [Co.] v. Edgar, 99 U.S. 645 [25 L.Ed. 487].

“This dog never displayed vicious-propensities to his knowledge, no one says-it snapped at or had bitten anybody before except Dewey Francois, which was unreported; the children in the neighborhood played with it; the only one it ever chased was Joseph Himel. What is said about this dog is true with every dog,, that is dogs of every breed are liable to-bite. But because every dog may become obnoxious in its habits and conduct or may-bite under certain conditions, it does not follow that it is negligent or wrong to have a dog.

“Plaintiff must prove that the defendant owned the dog; that the dog was vicious or had habits and conduct that would lead one to believe that it intended harm, in-order to charge defendant with negligence, however slight; or the defendant may prove that the dog was not vicious or that he did not know that it was vicious, and thus absolve himself from liability.”

Finding no reversible error committed' by the trial judge either in his findings of facts or the law appertaining to cases of' that nature, the judgment appealed from, is affirmed.

ROBERT D. JONES, J., sitting ad hoc.


author: McBRIDE, Judge.

text:
    FIDELITY & DEPOSIT CO. OF MARYLAND v. REDNOUR.
    No. 19334.
    Court of Appeal of Louisiana. Orleans.
    Jan. 30, 1950.

      Sidney G. Roos, New Orleans, for defendant and appellant.
    Phelps, Dunbar, Marks & Claverie, New Orleans, for plaintiff and appellee.
   McBRIDE, Judge.

This suit was brought by Fidelity and Deposit Company of Maryland, as sub-rogee of Mrs. A. V. Reitsma, against Mrs. Caroline Catherine Schick Rednour, widow of William Rednour, doing business as William Rednour Transfer and Storage Company, for the value of certain articles stored by Mrs. Reitsma with defendant, a warehouseman, said articles having been lost while in defendant’s keeping.

The substance of the allegations of the petition is that on September 11, 1944, at her residence in New Orleans, Mrs. Reits-ma delivered to defendant’s drayman a chest containing her personal and separate effects, which defendant agreed to warehouse and store. That on or about November 11, 1944, Mrs. Reitsma instructed defendant to deliver to her the aforesaid chest and contents, which were of a value of $450.50, but the defendant, who claims that the chest has been lost in some unaccountable manner, has failed to make delivery thereof.

The petition then alleges that on February 20, 1945, Mrs. Reitsma subrogated to plaintiff the claim against defendant.

Defendant, after denying the allegations of the petition, set up two special defenses: (1) that defendant acted prudently and kept her warehouse guarded at all times by a watchman, and that all doors, entrances, and exits were kept properly locked, secured, and fastened, and, alternatively, (2) that if defendant is liable, the extent of' the liability cannot exceed the sum of $50 under the following provision of the warehoue receipt issued to Mrs. Reitsma, to-wit: “12. Our responsibility for any one-piece or package (and contents of such package) is limited to the sum of fifty dollars, unless value is declared at time of securing rate and special charge is made for higher valuation.”

Plaintiff recovered judgment for $450.50, from which defendant has appealed.

Mrs. Reitsma, after sending the chest to defendant, left for Patterson, New Jersey; her husband followed her shortly thereafter. Their testimony, taken at Newark, New Jersey, de bene esse, in accordance with the provisions of Act 143 of 1934, shows that Mr. Reitsma telephoned defendant’s establishment on September 11, 1944, requesting that the chest be picked up from 2315 Sere Street in New Orleans and stored for an indefinite period. Defendant’s drayman received the chest from Mrs. Reitsma, who paid him, at the time, the hauling charges and one month’s storage ; she took the drayman’s receipt for both the payments and “1 box.”

In the latter part of October, 1944, Mr. and Mrs. Reitsma, who had temporarily returned to New Orleans, called at the warehouse and directed that the chest be delivered to them; defendant collected the hauling charge, plus the second month’s storage, but 'has never returned the chest, explaining that it had been misplaced.

The chest and its contents had been insured along with other property against loss under a policy issued by plaintiff to Mr. Reitsma, and in due course the Reits-mas made claim for the value of the effects, and ultimately received plaintiff’s draft for $450.50 payable jointly to Mr. and Mrs. Ellsworth Reitsma. Coincidentally, they both executed a “Receipt and Release,” and Mrs. Reitsma, by authentic act, which recited that the contents of the chest were her separate property, subro-gated plaintiff to her claim against defendant. Her husband intervened in the act to authorize and assist 'her, and joined and concurred in the assignment and sub-rogation.

Defendant objected to the admissibility of the depositions and the documents attached thereto, upon several grounds, viz., (1) that they seek to enlarge the recitals of plaintiff’s petition, (2) that they are immaterial and irrelevant, (3) that the petition does not set forth with particularity the nature of the damages claimed, and (4)-that the petition alleges that plaintiff was subrogated to the rights of Mrs. Reitsma, a married woman, and, therefore, the subrogation is invalid because under our law a wife can make no valid disposition of a claim which belongs to the marital community.

These objections, after being referred to the merits of the case by the trial judge, were never passed upon. Defendant has reurged them before us.

The objections are unfounded. First, the testimony and subrogation are in strict conformance with the recitals of the petition, and in no manner tend to enlarge, the pleadings. It seems to us, taking into consideration all of the declarations of the document, that Mr. Reitsma is irrevocably estopped from ever contesting his wife’s separate ownership of the property. The situation here is analogous to a case where a husband is a party to an act of purchase, in which it is declared that the price belonged to the wife in her para-phernal right, and that the property is to be owned by her in 'her paraphernal right. The rule that a husband who makes such a solemn declaration cannot afterwards contradict or assail his assertions has been repeatedly reaffirmed. See Pfister v. Casso et al., 161 La. 940, 109 So. 770; Kerwin v. Hibernia Insurance Co., 35 La.Ann. 33.

Second, even assuming, arguendo, that the effects did belong to the community, the husband, as its head and master, is effectively bound by the subrogation. If, however, such was the situation, it may be that the petition did not technically set forth correctly a description of the instrument, but nevertheless the evidence is still admissible. It is true, as a general rule, that the allegata and probata must correspond, and that, in administration of proof, parties offering evidence must be confined to the allegations of their pleadings. But the rule is not without exceptions. Where the defendant is amply protected against being surprised or mislead,, a variance between pleadings and proof, not affecting the gist of the action, is immaterial. United States Fidelity & Guarantee Co. v. Manthe, our docket No. 8249, opinion book 59, and cases therein cited. See Louisiana and Southern Digest.

There is no element of surprise in this case, and we cannot see how defendant has been mislead to her prejudice. The suit by the subrogee is for the value of the goods stored by Mrs. Reitsma and lost or misplaced in defendant’s warehouse. The averments of the petition forcibly brought home to defendant the issue to be met in court. There is not the slightest possibility that defendant will be exposed to multiple liability.

In Winkler v. Ascension Bank & Trust Co., 182 La. 69, 161 So. 23, 26, the Supreme Court said: “ * * * The rule which requires that a plaintiff’s proof must conform strictly with his allegations is founded upon the principle of fair play, to avoid taking a defendant by surprise, and to put an end to whatever complaint the plaintiff really has. * * * ”

Insofar as the vagueness or generality of plaintiff’s claim is concerned, any complaint which defendant had was waived when the answer was filed. C.P arts. 332 and 333.

In Doullut v. McManus, 37 La.Ann. 800, is to be found the following observation:

“The objection that the claim for specific damages has not been set forth and detailed under which plaintiff can recover, is likewise unfounded. That omission could not justify the exclusion of the evidence.
“It is well settled that vagueness, want of precision, or generality in the averments of a petition, should be taken advantage of by exception, which should be filed in limine before answer to the merits, unless the opposite party had therefrom no sufficient notice of the nature of the demand and would be surprised.”

The value of the chest and the items therein is not in controversy. Mr. and Mrs. Reitsma were positive as to what the chest contained, and Mrs. Reitsma stated where and the approximate date when each article was purchased.

The defendant offered no evidence showing that she was without fault, and advanced no explanation whatever as to what became of Mrs. Reitsmas’ property.

The law of this state is to the effect that where the bailor shows the loss by proof of delivery to the bailee, and by proving that bailee has not returned the articles stored, the bailor has successfully raised the presumption that the failure to deliver has resulted from negligence of the bailee, and there is then shifted to the bailee the duty of proceeding with the evidence and of proving that he was free from negligence.

In Colgin v. Security Storage & Van Co., La.App., 15 So.2d 664, 666, we quoted the following language used by the Supreme Court in Alex W. Rothschild & Co., Inc., v. Lynch, 157 La. 849, 103 So. 188: “The depositary is bound to use the same diligence in preserving the deposit that he uses in preserving his own property. Civ.Code art. 2937. And, where he is unable to explain the disappearance of the deposit or to show his own freedom from negligence, he is liable. Nicholls v. Roland, 11 Mart., O.S., 190; Short v. Lapeyreuse, 24 La.Ann. 45.”

The only serious question presented is whether defendant’s liability is to be limited to $50.

Mrs. R.eitsma received from the drayman only a receipt for “1 box.” There is no evidence showing that defendant or any of her employees ever made any statement to Mr. or Mrs. Reitsma concerning the warehousemans’ limited liability. According to an office employee, the warehouse receipt, which bears the date September 11, 1944, was mailed out from defendant’s establishment on the same day the deposit was made. Mr. Reitsma is positive that he did not receive the receipt until after his wife had gone to New Jersey. It came enclosed with defendant’s bill of September 30, 1944, and reached him about that date. Mrs._ Reitsma did not see the warehouse receipt until November 4, 1944, when her husband showed it to her.

The decision in the case of Colgin v. Security Storage & Van Co., 208 La. 173, 23 So.2d 36, 160 A.L.R. 1107, appears to be full authority for adjudicating the issue under consideration. The facts are. strikingly similar to those in the instant case. A cedar chest was delivered to defendant’s warehouse through an independent drayman by an agent of plaintiff. The warehouse was notified by telphone that the chest was being delivered. The plaintiff’s agent called at the warehouse later in the day to settle a bill for storage on other property belonging to plaintiff. Neither the drayman nor the agent was presented with a warehouse receipt, but on the same day that the cedar chest was received, a warehouse receipt was mailed to plaintiff’s wife. When the chest was withdrawn from storage, more than a year later, certain articles were missing therefrom, and plaintiff instituted 'his -action for their value. The case was appealed to this court, and we first concluded that the plaintiff was not bound by the clause in the warehouse receipt limiting the warehouseman’s liability, La.App., 15 So.2d 664. On rehearing, we reversed our original decree and held that the clause was binding on the plaintiff, La.App., 17 So.2d 473. The matter was heard on review by the Supreme Court, and it was 'held that the defendant could not avail itself of the special provisions of the warehouse receipt. The Court said [208 La. 173, 23 So.2d 38]:

“ * * * However, as to terms and conditions * * * which redound to the benefit of the warehouseman, the depositor could not be charged with notice of such unless they are brought to his attention or he assents to them as a part of the contract between himself and the warehouseman. * * *
“A contract is implied by law when the deposit is received. To modify the contract implied by law, the special provisions -must be either a part of the original contract or contained in an amendatory contract. In order for the special provisions to be effective, the assent of both parties is necessary. One of the parties, without the consent of the other, cannot modify the implied contract. There must be a meeting of the minds of the parties to effectuate the special contract.
“The limiting clause was not brought to the attention of the depositor, and we are at a loss to see how he could be charged with consenting to a limitation of defendant’s liability.
* * * * * *
“The Court of Appeal in its final decision in this case was of the opinion that at the time the deposit was made the parties contemplated the issuance of the receipt as a necessary part of the contract.
“There is nothing in the evidence to show that the parties intended, at the time the deposit was made, that there would be any limitation placed on the liability of the defendant.”

Defendant’s counsel insists that the facts in the Colgin case are distinguishable from those under consideration, in that in the instant case the contract was a continuing one from month to month, and he argues that whereas Mrs. Reitsma saw the warehouse receipt on November 4, 1944, prior to the beginning of the third month, she, not having repudiated it, must be held to have acquiesced in its terms. The printed report of the Colgin casa does not show whether there was a monthly storage charge, but it appears that more than a year elapsed, after the cedar chest was placed in the warehouse, before the loss was disclosed. But be that as it may, we are convinced that the holding in the Colgin case is controlling here. The property was stored for an indefinite period, and the rights and responsibilities of the parties implied by law, it seems to us, became fixed at the moment the chest was turned over to defendant’s drayman, and the assent of both parties was necessary before the special provisions could become effective. We do not think, simply because the warehouse charges were payable monthly, that a new contract came into being each month the property remained with defendant, or that the bailee could alter the terms of the original contract each time a month’s storage charge became due.

For the above reasons, the judgment appealed from is affirmed.

Affirmed.