author: LeBLANG, Justice.

text:
    216 La. 957
    Succession of DEROUEN.
    No. 39229.
    Supreme Court of Louisiana.
    Feb. 13, 1950.
    See 46 So.2d 344.

      Mestayer & Mestayer, New Iberia, for opponent and appellant.
    Minos H. Armentor, Louis M. Cyr, New Iberia, for movers and appellees. ■
   LeBLANG, Justice.

This case is now before the court on motion to dismiss the appeal. The grounds for dismissal are stated in the .motion but inasmuch as we have concluded that the case is not appealable to this court, the grounds stated in the motion will not be considered.

The proceeding origináted in the district court on the petition of an alleged testamentary executor under a will to have the same probated. The will was one made in olographic form and after it had‘been submitted to the Court for probate, certain parties alleging themselves to be the forced legal heirs -of the testatrix filed an opposition to its probate on the ground that it was not genuine as it had not been em tirely written, dated and signed in the handwriting of the testatrix. In the alternative, they plead that should it be found to have been so written, dated and signed, it had been procured through undue influence, fraud, and false representations at the time of, or immediately preceding its execution.

After submission of the opposition in the court below, there was judgment maintaining the same and decreeing the' alleged testament to be null and void An application for rehearing was filed and rehearing refused, whereupon the alleged testamentary executor obtained an order for a suspensive and, .devolutive- appeal. In granting the order for appeal the district judge fixed, the amount of the bond in the sum of $2000.00 for,the-suspensive appeal and in the sum of $100.00 for the devolu-tive appeal.

We search the record in vain for any allegation, statement or proof of any kind of what the amount involved in the estate of this alleged testatrix is. The only amounts or sums we find mentioned in any way are those mentioned in the order for appeal and in the bond for a suspensive appeal in the amount of $2000.00 which was furnished by the alleged testamentary executor.

The jurisdiction 'of this Court is fixed by the Constitution of 1921. In Article 7, Sec. 10 thereof it is therein expressly stated that: “It shall have appellate jurisdiction 'in civil suits where the amount in dispute or the fund to be distributed, irrespective of the amount therein claimed, shall exceed two thousand dollars exclusive of interest, *. * * There follow then certain exceptions with which we are not concerned in this case. Formerly, by Article 1049 of the Code of Practice, in matters of successions .where the value exceeded $500, the appeal was carried directly to -the Supreme 'Court but that article has been superseded by the articles of the Constitution of -1921. (See- Succession of Lasseigne 181 So. 879).

Considering the entire contents of the record as it is presented to us in this case, it is impossible for us to determine in any manner what the value of the property that may 'be involved in this estate is.. In Succession of Lynch, 124 La. 127, 49 So. 1002, there appeared to have been an allegation in regard to the value of the property to' the effect that it was worth about $2000.00 and even then the court found it uncertain and problematical and not sufficient for a jurisdictional allegation of value. In State v. Cook, 197 La. 1027, 3 So.2d 114, 116, it is stated: “In determining whether this court has appellate jurisdiction because of the amount in dispute, or because of the value of the thing in dispute, or because of the subject matter of the suit, in a given case, the record must show affirmatively that the court has appellate jurisdiction; otherwise the appeal must, be dismissed or transferred to the Court of Appeal.”

If there is anything in this record which suggests a value of the estate it is the amount of the bond fixed by the Court and furnished by the appellant for the sus-pensive appeal bond and whilst the amount fixed therein cannot serve - as a criterion since the judgment appealed from is not one ordering the payment of-any sum of money, it is nevertheless fair for the court to infer from the amount fixed that the estate has a lesser value than $2000.00. It is clear therefore that the appeal was taken to the wrong court and as in such cases we have the right, by virtue of the provisions of Act No.. 19 of 1912, to transfer-the case to the proper court, instead of dismissing the appeal, it will he so transferred.

For the-reasons-stated it is ordered that the case be transferred to the Court of Appeal for the -First Circuit, provided that the record shall be filed in that court within thirty (30) days from the date on-which this decree shall become final; . otherwise the appeal shall be dismissed.


source: Caselaw Access Project

author: TALIAFERRO, Judge.

license: Public Domain

text:
    HYDROTEX INDUSTRIES, Inc., v. CARTWRIGHT.
    No. 7455.
    Court of Appeal of Louisiana. Second Circuit.
    March 8, 1950.
    Rehearing Denied April 5, 1950.
    . Browne, Browne & Bodenheimer, Shreveport, for appellant.
    ■Campbell & Padgett,-Benton, for appellee.
   TALIAFERRO, Judge.

Plaintiff sued on open account for the price of asbestos roof coating material sold and delivered to the defendant in the months of August and September, 1944, and for the value of seven drums containing the material when shipped, the total being $404. 50.

Defendant, in answer, denied that he purchased the material from the plaintiff. He alleged that he did purchase from' Sam Wilder and W. S. Thomas material of the kind, quantity and quality for which plaintiff -sued; that said material was purchased to repair the roof on an auction barn owned by him, and said Wilder and Thomas agreed, as part of the contract of purchase, to apply the material; that they, however, defaulted in their obligation on this score and he was thereby forced to expend $140.-00 to have the coating applied.

In the alternative, defendant pleads that should it be found and held that said Wilder and Thomas, in taking his orders for said material, acted as the agents of plaintiff, and therefrom a sale resulted, he then avers that said material was wholly unfit and unsuited for the use and purpose for which it was purchased by him and recommended by said Wilder and Thomas; that said material was applied according to instructions furnished therewith, but the roof of the building, thereafter leaked badly at each rainfall, and its condition in this respect constantly grew worse; that the faulty condition of said coating was not discoverable on simple inspection, and for said reasons he alleges he is entitled to have the sale of the material rescinded, for which he prays, and for judgment for $140.00.

The demand of each party was rejected. Plaintiff only appealed.

To prove plaintiff’s demand, the testimony of its credit manager and its managing partner was taken by deposition.

Defendant signed an order for the greater part of the roofing material on August 28th, the price thereof 'being $358.00. On the invoice listing this material there appear several articles of value, shipped to defendant for which no charge was made, including two hundred fifty pounds (250#) plastic cement.

While the material was being applied it was evidently discovered that the quantity of cement was insufficient, as on September 24th, Wilder sent a rush order (letter) to the plaintiff for three hundred (300) more pounds of cement. He stated therein: “It (the job) is already in progress and this is needed at once.” The charge for this cement was $46.50.

It is unthinkable that had Wilder and Thomas agreed to apply this material, as contended, defendant would have placed the order for additional material with them, after discovering that their commitment would not be observed.

Defendant can 'hardly be serious in contending that he thought he was buying the material from Wilder and Thomas. These men Were representing the plaintiff as its salesmen. Each of them signed the order of August 28th as “salesman”, opposite- defendant’s signature. In addition,' on two different occasions in 1943 defendant purchased from plaintiff some of the same kind of merchandise as is involved herein. It evidently was satisfactory as no complaint about its service was registered, and 'he paid for it.

When plaintiff honored defendant’s order of August 28th, and shipped to him the merchandise named therein, it mailed to him its “10 Year Guarantee Bond”, wherein it is stated that if the merchandise was applied pursuant to directions on the reverse side of the bond:

“and thereafter said roof fails to remain water-tight for a period of ten years from date of invoice as a result of Hydrotex proving defective; (damage from wind-storm, cyclone, hail, earthquake or other acts of providence beyond the control of the undersigned excepted) then and in that event, upon receipt of proof of claim form from buyer, shall furnish buyer, free of cost, freight collect, sufficient additional Hydrotex for buyer to recoat any surface where Hydrotex proved defective during the ten year period aforesaid.”

In belated 'brief appellee calls our attention to the fact that the record is incomplete in that it does not contain transcript of his own testimony and the testimony of witnesses sworn on his behalf. He says that two witnesses testified for him and others would have done so, but to save time plaintiff’s counsel agreed that their testimony would be the same as that of the witnesses who did testify. The trial judge in reasons for judgment refers to “defendant’s evidence”, by which, we assume, is meant the testimony adduced in his behalf.

In view of the related situation, and the failure of the appellant to comply with the provisions of either Article 601, 602 or 603 of the Code of Practice, appellee argues that the appeal should be dismissed.

Either party to a suit has the right (in cases appealable) to require the Clerk of Court to take down the testimony adduced on trial thereof. Article 601. And, when this is not done, the party intending to appeal “must require the adverse party or his advocate, to draw, jointly with him, a statement of facts proved in the cause,” to be used on appeal. Article 602. And when the parties cannot agree on the statement, then either has the right to request the Court to make such statement which shall serve on appeal. Article 603. It is conceded that neither of said courses was pursued in the present case.

The general rule has 'been announced in many cases that in these circumstances the appeal will be dismissed. See: Williamson v. Enterprise Brick Company, Inc., 190 La. 415, 182 So. 556; Durke & Broussard v. Crane, 112 La. 156, 36 So. 306; Chelette v. Roberts et al., La.App., 185 So. 678; Campbell v. Marshall, La.App., 28 So.2d 296.

But, there is an exception to this general rule, as there is to almost every' rule. It is to be found in the Williamson case, supra. The Court therein, in effect, said that if the provisions of either of Articles 601, 602 or 603 of the Code of Practice have not been availed of "and the correctness of the judgment appealed from depends upon the verha-l testimony that was heardj the appellate court must dismiss the appeal[190 La. 415, 182 So. 558] The converse of the rule is that if the correctness of the judgment does not depend upon the testimony heard, the appeal does not necessarily have to be dismissed, but should be adjudged. Parish of St. Martin ex rel. Baker v. Delahoussaye, 30 La.Ann. 1092. We believe this the situation in the case before us.

Appellant argues that inasmuch as it was not advised of the failure of the material to accomplish the purpose for which recommended and purchased (if such happened), prior to filing answer in the case, some eighteen months after the material was applied, and was not at any time called upon to fulfill the obligation of its guarantee, defendant’s action in these respects amounted to a waiver of his rights under the guarantee, and automatically released plaintiff thereunder.

In his answer defendant does not say that he advised plaintiff of the alleged defects in the material and called upon it to live up to the guarantee; nor is the suit resisted, on the ground that plaintiff breached the guarantee by not living up to it, after notice. If the facts made such a defense tenable, it was defendant’s imperative duty to have specially set it up and sustained it by adequate proof. Since this defense is not urged, we are warranted in assuming that there existed no predicate therefor.

As we view the legal situation, posed by the record facts, it may be conceded that the testimony of defendant’s witnesses, with respect to the láck of efficiency of the roofing material, was of the import as by him contended; and if this is done, plaintiff’s right to urge, because of unreasonable delay in giving notice of the failure of the material, waiver 'by defendant of his rights under the guarantee remained unaffected. The record itself, as presently made up, is sufficient to warrant a decision of the issue of waiver.

If the material was applied as directed, and leaks in the roof immediately, or very soon thereafter, developed, it was defendant’s obvious duty to have notified plaintiff of these facts and to have asked it to make good its warranty, and should it not have responded favorably to such request, then defendant would have had the right, at plaintiff’s expense, to effect the repairs. Instead of doing this, he chose to remain silent for nearly eighteen months, although regularly receiving requests for payment of the account.

By pursuing the course he did, defendant made it impossible for plaintiff to have protected itself on its guarantee. He was without right in law or equity to do as he did, and. by so doing he waived and forfeited the warranty obligation in his favor that the law and the bond imposed upon the plaintiff. In a case of this character the obligee cannot supinely sit quiet and allow matters to' drift for an unreasonable length of time without notifying the obli-gor, and then, when sued, assert successfully a defense of the character advanced herein.'

It was held in Kardis v. Barrere, 17 La.App. 433, 136 So. 135, 140, that: “A buyer does not waive his right to assert a breach of any promise or warranty in connection with a sale, unless he fails to give notice to the seller of the breach of the promise or warranty within a reasonable time after he knows of such breach. The question as to whether there has been a waiver is a question of fact in each case. Williston on Sales (2d Ed.) §§ 481-486, vol. 2 * * *_»

This principle has appropriate application to the facts of this case.

For the reasons herein given, the judgment from which appealed is annulled, avoided and reversed; and, for said reasons, there is now judgment in favor of plaintiff, Hydrotex Industries, Inc., a co-partnership, arid .against the defendant, Bruce Cartwright, in the sum of Four Hundred Four and 50/100 ($404.50) Dollars, with five per cent (5'%) per annum interest thereon from March 1, 1944, until paid, and for all court costs.


author: HARDY, Judge.

text:
    HOLICER GAS CO., Inc. v. WILSON et al.
    No. 7473.
    Court of Appeal of Louisiana. Second Circuit.
    March 8, 1950.
    Rehearing Denied April 5, 1950.

      Carstarphen & Carstarphen, Shreveport, for appellant.
    Irion & Switzer, S-hreveport, Harry A. Johnson, Jr., Shreveport, Blanchard Gold-stein, Walker & O’Quin, Shreveport, Albert E. Bryson, Shreveport, Booth, Loqkard & Jack, Shreveport, for appellees.
   HARDY, Judge.

This is a suit in which plaintiff claims the ownership of a butane gas tank alleged to be located on property belonging to the defendant, and seeks judgment -ordering delivery of said tank into its possession.

' There was judgment originally in favor of defendant rejecting plaintiff’s demands, but, on appeal, this court vacated the judgment by reason of the nonjoinder of a necessary party, and remanded the case to the District Court, Holicer Gas Co., Inc., v. Wilson, La.App., 39 So.2d 637. After remand the party in question, being the -present owner of the premises, was made a party defendant. Upon retrial there was again judgment rejecting plaintiff’s demands, from which plaintiff and other parties prosecute this appeal.

There is practically no dispute with respect to the material, facts involved. On or about April 11, 1946, plaintiff entered into what i-s designated as a “consumer’s contract” with A. A. Booras and wife, owners of a particularly described tract of land located in Caddo Parish, Louisiana. Under the terms of the contract the owners of the property agreed to purchase from plaintiff all butane gas required for the servicing of the buildings and improvements on said-property, and, in consequence of this agreement, plaintiff placed upon the property a particularly described 500 gallon capacity butane tank.

. The written agreement between plaintiff and Booras was never recorded. Some time subsequent to this transaction Booras sold the property in question to one Glenn v. Wilson, and, later, Wilson sold the property to Thomas E. IJrown.

A number of incidental pleadings are involved in this matter. In aid of the enforcement of its demands plaintiff procured the issuance -of a writ of attachment against property of Booras, a non-resident, in custody of the First National Bank of Shreveport. Proper calls in warranty were filed by Brown against Wilson and Wilson against Booras, which were answered by the parties called.

An accurate description of the gas tank is found in the testimony of A. W. Prather, a district manager of plaintiff corporation, which is quoted as follows :

“It is a spherical tank. An egg-shaped steel tank about six and one-half feet (6%') high, four feet (4') in diameter, weighing around two thousand pounds (2,000 lbs.).It has three legs welded stationary to the tank, about eighteen to twenty-four inches (18 to 24") long, clearing the tank from the ground about twelve to fourteen inches (12 to 14") from the bottom of the tank. These three legs set on concrete blocks about eighteen inches (18") square with a hole possible two inches (2") deep in them. Two inches deep by two inches in diameter, which is the diameter of each leg which sets down in a concrete block. These concrete blocks.set on top of the ground and the tank sets on top of those.

“The tank is connected to the house line by flexible copper connection with -one nut tightened, and the gas is ready to turn on.”

The only qualification as to the description above set forth is found in the testimony of other witnesses from which it is established that the concrete blocks in question, although they may have been originally set on the surface of the ground, have sunk or been buried until they are no longer visible.

It was also established that the weight of the tank was approximately 2,000 pounds and that, filled with butane gas, the total weight would approximate 4,000 pounds.

Further testimony of the witness Prather, which is pertinent to the issues involved herein, was tendered on cross-examination, as follows:

“Q. Mr. Prather I believe you state that this tank was installed .on the property by your company on the order and the request of Mr. Booras ? A. That is right, yes.

“Q. And it was placed there when you serviced their property for gas, is that correct? A. Beg pardon?

“Q. It was placed there to service this property with gas? A. Yes.

“Q. It is the sole source of supply of gas to the property, isn’t that a fact? A. Yes, sir.

“Q. And the pipe leads from this tank under the ground, does it not? A. Most of the pipe is under ground, yes.

“Q. That conducts the gas from the tank into the house, is that right? A. Yes.

“Q, And that residence, which has several rooms to the home, is hooked on to a separate pipe, which in turn is hooked to the pipe from the tank, is that correct? A. Yes.

“Q. And in these rooms there are heaters to burn this gas for warmth and also use for cooking purposes, isn’t that true? A. Yes.

“Q. There are other buildings, other than the residence, on this property, isn’t that true? A. Yes, sir.

“Q. And does this tank service them too? A. One of them is piped into the main. I put it in one building myself.

“Q. Other than the home? A. Other than the main home.

“Q. That was the garage? A. Combination garage and washroom.

“Q. And there is also a guest house on that property? Do you know about that? A. No, sir.

“Q. You know it was also carried to this line? A. No, sir.

“Q. In order to get the picture perfectly clear, this line that runs from the tank to the ground is in turn connected to a pipe under the ground. Gas flows through that into the house and then by various means in subsidiary pipe ? A. Yes.

“Q. Same thing in the garage and washroom? A. Yes.”

The basis of the contention made by the parties is simple. Plaintiff asserts that it owns the tank which it describes as movable equipment; that it was loaned to Booras, the then owner of the property, in consideration of the provisions of the “lend lease” agreement between the parties, and, the tank being a movable, ownership did not pass to the successive purchasers of the realty. As opposed to this contention both Wilson and Brown assert that the tank became an immovable either under the provisions of Article 464 of the Civil Code, or Article 467 or Article 468, or all. The pertinent articles relied upon read as follows:

“464. Real estate and structures thereon. —Lands and buildings or other constructions, whether they have their foundations in the soil or not, are immovable by their nature.”

******

“467. Fixtures.- — Wire screens, water pipes, gas pipes, sewerage pipes, heating •pipes, radiators, electric wires, electric and gas lighting fixtures, bathtubs, lavatories, closets, sinks, gasplants, meters and electric light plants, heating plants and furnaces, when actually connected with or attached to the building by the owner for the use or convenience of the building are immovable by their nature.”

“468. Immovables by destination — Illustrations. — Things which the owner of a tract of land has placed upon it for its service and improvement, are immovable by destination.

“Thus the following things are immovable by destination when they have been placed by the owner for the service and improvement of a tract of land, to-wit: Cattle intended for cultivation. Implements of ¡husbandry. Seeds, plants, fodder, and manure. Pigeons in a pigeon house. Beehives. Mills, kettles, alembics, vats, and other machinery made use of in carrying on the plantation works. The utensils necessary for working cotton, and sawmill's, taffia distilleries, sugar refineries and other manufactures. All such movables as the owner has attaohed permanently to the tenement or to the building, are likewise immovable by destination.”

Defendant’s contentions are met by plaintiff on the ground that Article 464 does not apply for the reason that the tank cannot be construed as a "building” or “construction”, and that Article 467 is not applicable because “tanks” are not among the fixtures enumerated in the article. With further reference to the inapplicability of Article 467, plaintiff claims that even if the enumeration of fixtures in. Article 467 be held to be examples and not an exclusive list, then the tank involved in this case would still be outside the provisions of the article for the reason that it was not “actually connected with or attached to the building by the owner".

Similarly, application of Article 468 is resisted on the ground that the tank was not placed upon the land by the owner.

The above are the issues of law comprehended, and it is at once perceived that the determination of this cause must inevitably rest upon the conuclsion reached as to whether the gas tank shall be considered a movable or an immovable.

In our opinion the facility with which a structure may be transported, placed and displaced, is not a reliable guide. In Vaughn v. Kemp, 4 La.App. 682, the court held that a small structure set above ground on wooden blocks by a landowner’s lessee became an immovable by nature and this despite the existence of an agreement permitting the removal by the lessee on termination of the lease.

Similarly, a cistern was held to be a “construction”, immovable by nature, under Article 464, Polhman v. De Bouchel, 32 La.Ann. 1158.

Nor are we disposed to accord great weight to plaintiff’s contention that the gas tank occupies the status of a movable because it was manufactured or fabricated before being placed upon the property. We have been able to find nothing in the law or jurisprudence of this State which requires buildings or constructions to be actually built or constructed upon the land in order to be classed as immovable. Such a conclusion would be utterly unjustified, and, m these days of prefabrication, would lead to absurd consequences entirely incompatible with the obvious intent of the codal provisions.

Proceeding to an interpretation of the articles of the Code, we feel that it is definitely settled by the jurisprudence of this State that lists of examples are not to be construed as being exclusive or restrictive. This conclusion is further substantiated by the provisions of Section 2 of Act 51 of 1912 (the act amending Article 467 of the Civil Code), which declares that “no court shall have jurisdiction or power to declare that any such articles above referred to are movables and treat them as such”. (Emphasis by the court.)

Considering the several requirements of Articles 464, 467 and 468, it appears quite clear to us that the gas tank, the subject matter of this litigation, is to be regarded as both a “construction” and a “fixture” and, finally, as a “thing” which the owner of a tract of land had placed upon it for its service and improvement.

■ The facts speak eloquently for themselves in support of these conclusions. The tank must be regarded as a construction under the holding in Vaughn v. Kemp, supra. But as opposed to this theory, plaintiff has cited the case, inter alia, of Louisiana R. & Nav. Co. et al. v. Cash Grocery & Sales Co., Inc., La.App., 150 So. 57, in which the court held .that railroad tracks placed upon land did not become immovábles by nature. Examination of the cited case discloses the fact that the railroad tracks did not meet the requirements of the provisions of Articles 467 and 468, and it does not appear that any contention was made as to their status as a construction under Article 464. We observe, in passing, that similar questions with respect to railroad tracks were considered in Woodward v. American Exposition Railway Co., 39 La.Ann. 566, 2 So. 413; and Morgan’s Louisiana & T. R. & S. S. Co. v. Himalaya Planting & Mfg. Co., 143 La. 460, 78 So. 735, 736.

In the Woodward .case the court held, in effect, that, a railroad construction on the land of another was a movable subject to pledge. But in the Morgan case the court determined that the constructiqn of a railroad “for the use and improvement” of a plantation gave it the status of an immovable.

The gas tank was attached to a pipeline system which furnished fuel to the buildings on the property, and, consequently, the conclusion is inescapable that this connection or attachment was for the “use or convenience” of the buildings. We do not think that the method of connection is of any considerable importance, and the- fact that such connection was by means of a flexible copper pipe is no less -significant than if such connection ihad been made by use of several rigid cast iron pipes, for example-

But it is zealously urged on behalf of plaintiff that the tank was not connected or attached to the building by the owner, under the requirements of Article 467, nor was it actually placed upon the land by the owner under the requirement of Article 468. We think this contention is without merit. We cannot construe the codal articles as being so narrow and circumscribing in intent and purpose as to require that an owner of realty himself physically perform the actual transportation, placing, fixing, attachment and connection of a structure or fixture in order to meet the codal provision. And,- it is further to be observed that Article 468 does not -require that the owner place a “thing” upon a tract of land, but, on the contrary, declares “things which the owner of a tract of land has placed upon it * * *.” The use of the word “has” can only be interpreted in the -sense of procurement or direction. In the instant case according to the testimony of plaintiff’s witness Prather, quoted supra, the then owner of the property, Booras, directed and ordered the gas tank to be placed on the property.

Articles and things similar to the gas tank under consideration here have been declared immovables by our courts, e. g. a sprinkling system, Whitney Central Trust & Saving's Bank v. United States Const. Co., 5 Cir., 250 F. 784; a water heater, Scott v. Brennan, 161 La. 1017, 109 So. 822, 48 A.L.R. 1143; a Delco light plant, Boykin v. Boykin, 4 La.App. 210; a pumping plant, Pan-American Life Insurance Co. v. Reynaud, 4 La.App. 290; and a gas system, Cottonport Bank v. Dunn, La.App., 21 So.2d 525.

We think it unnecessary to pursue, the discussion of this question at any greater length since we -are convinced that the gas tank, under the plain and undisputed facts of this case, should and must properly be regarded as an immovable under any one of -the three codal articles discussed.

We observe that the judgment of the District Court in this case, while dismissing plaintiff’s demands and all calls in warranty, was silent as to the writ of attachment which issued against Booras. While as a practical proposition the dismissal of this writ -should be considered as consequent upon failure of plaintiff’s suit, we, nonetheless, feel that this point should be covered in an appropriate judgment.

Accordingly, and for the reasons assigned, the judgment appealed from is amended to provide for the dissolution of the writ of attachment issued against property of A. A. Booras, and, as amended, the judgment is affirmed -at the cost of plaintiff-appellant.


text:
    ELLIS et al. v. BLANCHARD.
    No. 7464.
    Court of Appeal of Louisiana. Second Circuit.
    March 8, 1950.
    Rehearing Denied April 5, 1950.

      Alva Guy Blanchard, in pro. -per.
    . Irion & Switzer,'Shreveport, C. C. Burton, Jr., Shreveport, for -appellee.
   TALIAFERRO, Judge.

Defendant owns and operates a manufacturing establishment in the northern part of the City of Shreveport, Louisiana, about fifty per cent of the volume of its business consisting of the manufacture, setting and testing of safety valves for boilers, under high steam pressure.

The plaintiffs, ten in number, each operates a business of his or its own in the vicinity of defendant’s plant, ranging from one hundred feet to three hundred yards distant therefrom.

Plaintiffs allege that the manner and method by which defendant conducts his business amounts to a private nuisance in that the noise from the steam when applied to the valves is so loud, shrill and penetrating that it greatly disturbs petitioners themselves, and also disrupts and interferes with their businesses; specifically, that they and their employees, while the noise is in progress, are unable to talk over the telephone or hear what others say thereon; that conversation with their employees is practically impossible save by loud voice; that in the summer time in an effort to reduce the annoyance of the noise and make conditions bearable, they close the windows of the buildings and that this creates a constant pounding in their ears and drives customers away. They prayed for and were granted a rule on the defendant • to show cause: “on a day and hour to be fixed by this Honorable Court, why a preliminary injunction should not issue herein, enjoining, restraining ■ and preventing him, his agents, servants and employees from in any manner operating his machinery in the adjusting and testing of . steam valves in such a way as to disturb and disrupt petitioners in the conduct of their respective businesses.”

They further prayed that after trial, etc., said injunction be made perpetual.

Defendant filed exceptions of no cause and no right of action, which were overruled.

Answering the petition, he denies the right of plaintiffs to the sought injunctive relief. He alleges that it is impossible to conduct his business without some noise emanating therefrom but that the noise made by his machinery, etc. is not of such intensity or continuity as to produce the ■effects alleged by the petitioners. He further resists the suit on the ground that the area wherein his and plaintiffs’ businesses are located has been zoned by the 'City of Shreveport for heavy industrial use and has been so zoned for a period of twenty years; that industries, including his own, authorized by said zoning ordinance, will, of necessity, produce some noise even when most efficiently operated. He prays that the suit be dismissed and plaintiffs’ demand be rejected at their cost.

There was judgment, after trial, granting the issuance of a preliminary injunction in favor of all of the plaintiffs except Lar-Tex Engine Company, A. J. Albertine and Estee Drilling Company. Defendant appealed suspensively and devolutively.

While the trial was in progress the defendant offered in evidence what purports to be a copy of the zoning ordinance of the ■ City of Shreveport, referred to in his answer, and a map of the City of Shreveport on which he or some other person had marked the location of :his manufacturing plant. Admissibility of these documents was objected to on the ground that neither had been certified by any officer having authority so to do.' The objection was sustained and the documents were ruled out. Two weeks after the trial was concluded •defendant filed a motion to re-open the case to afford him opportunity to introduce said documents in evidence which had then been duly certified and were attached to the motion. The motion was denied.

It is evident that defendant no longer controverts the charge that the noise complained of by the appellees is of the char’acter and produces the effects alleged by them. His position and argument in this Court make this quite clear. The testimony abundantly sustains the complaint on this score.

In brief, appellant states that the record presents three questions for decision, which we quote, to-wit:

“(1) The effect of Article 765 of the Louisiana Civil Code:

“ ‘Continuous and apparent servitudes may be acquired by title or by a possession of ten years’, and

“(2) The effect of Article 669 of the Code:

“ ‘If the works or materials for any manufactory or other operation cause an inconvenience to those in the same or neighboring houses, by diffusing smoke or nauseous smell, and there be no servitude established by which they are regulated, their sufferance must be determined by the rules of the police or the customs of the place,’ and

“(3) The effect of the District Court’s refusal to consider the certified copies of the City of Shreveport’s zoning ordinance and zoning map, which were submitted in a1 motion to re-open the case.”

Arguing proposition No. 1, appellant contends that as his business has been operating without interruption at its present location for more than ten years “a servitude of noise” has been established in his favor as is authorized by said Article 765 of the Civil Code. Answering this contention, appellees simply say that under the laws of this State there is no such thing as a servitude of noise, and if such were possible, it would be a noncontinuous servitude which could only be created by title.

Conceding, without admitting, that appellant’s position with regard to the servitude is correct, his pleadings are not in condition to warrant us to pass on the plea of ten years prescription. A plea of prescription cannot be supplied by the Court. Article 3463 of the Civil Code. It must be specially pleaded. Article 3464 of the Civil Code. The question of presciption was first raised and argued in brief in this Court. Such a plea, it is true, may be filed in an appellate court and passed on by that court on the face of the record if that -action be thereby warranted, but the issue must be tendered through and by special plea.

It may be further said against the tenableness of said plea, that it has no application here, even though its alleged basis be conceded, because not one of the plaintiffs’ businesses had been in existence for ten years when this suit was filed.

Motions to re-open, like those for continuance, address themselves to the sound legal discretion of the Court. Ofttimes such motions involve the question of due diligence, or lack of it, on the part of a litigant or his counsel. In the present case it is not necessary to specifically pass on this phase of the motion to re-open, as we shall endeavor to point out 'hereinafter. It is apropos to say that defendant, while, representing himself before the Court is not an attorney at law. The excluded documents are in the record and may be considered in passing -on their probative value had they been admitted in evidence.

In connection with the aforesaid questions, it is pertinent to here register the following observations, viz.: The zoning ordinance was passed by the Council of the City of Shreveport in 1948, after all or nearly all of the appellees had established their present businesses. The extension of Market Street by the Department of Highways, directly north from -Cross Bayou, that traverses the northern section of the City generally in an easterly -and westerly direction, immediately brought about a-rapid development, in a business way, along both sides of the new four-lane highway. Prior to this development defendant’s business location was in a way isolated, and the noise from its operation bothered no one to a material extent. This, however, underwent a complete change following the extension of the street above mentioned.

The ordinance involved zones the entire city for building and improvement purposes. Section 14 thereof is designated “H — Heavy Industrial District.” It contains the names of 129 different businesses permitted within that district. No. 17 thereof is “Boiler Works”. Defendant contends that his business falls within the purview of this designation. We -are not prepared to -say exactly what “Boiler Works” does or does not comprehend, but, as we view the matter, it is not here material to further elaborate upon the -subject. The City, by granting the privilege to operate “boiler works” in said district, did not at all imply that such works could be conducted in a way and manner to amount to a private nuisance. The ordinance is wholly silent as regards the volume, extent and/or duration of the noise that could be produced by either of the one hundred twenty-nine businesses permitted thereby. It could not well have done otherwise. What may constitute a nuisance because of smoke, noise, etc., necessarily depends upon the facts and circumstances pertinent to each case.

For the above assigned reasons, we conclude that appellant’s rights were to no extent prejudiced by the Court’s refusal to re-open the case.

Appellant also contends that since his business was established several years prior to that of either appellee, they are without right to complain of the nuisance. This same contention has been made and overruled in other cases. Tucker v. Vicksburg, S. & P. R. Co., 125 La. 689, 51 So. 689.

If appellant’s contention in this respect were upheld, the result would be inevitable that the value of large area-s suitable for commercial and industrial purposes would be practically destroyed. The prior presence of a nuisance would be an effective bar to investments and developments in the affected area.

It is a well fixed and generally observed principle of the law, so much so that repetition here would seem unnecessary, that regardless of the high degree of protection extended by law to private ownership of real estate, the owner must use or employ his property in such way and manner as to not unnecessarily annoy, inconvenience and/or disturb his neighbors. Private ownership, to that extent, must yield or suffer modification.

Recent cases involving the principles here discussed, are: McGee et al. v. Yazoo & M. V. R. Co., 206 La. 121, 19 So.2d 21; Devoke et al. v. Yazoo & M. V. R. Co., 211 La. 729, 30 So.2d 816; Borgemouth Realty Company, Ltd. v. Gulf Soap Corporation, 212 La. 57, 31 So.2d 488; Gayle v. Auto-Lec Stores, Inc., 174 La. 1044, 142 So. 258; Fos et al. v. Thomassie, La.App., 26 So.2d 402.

Appellant complains of the lack of exactness in the judgment, with respect to the mode and manner necessary to abate the noise to the degree that it will no longer be a nuisance to the appellees. It was not the duty nor the province of the Court to undertake to point out exactly the steps appellant should take to comply with the judgment. Appellant is in a position to determine this question. At the present time the boiler and testing equipment are located in a small structure, roofed by sheet metal, with only one side enclosed, and of the same material. The noise, perforce, escapes unrestrained. To remedy this would seem rather simple. Anyway, the duty devolves upon the appellant to so adjust and arrange the operation of his business that the judgment will be complied with. This identical question was presented and passed upon adversely to the contention of the proponent in the McGee case, supra.

Defendant testified and argues that to require him to reduce the noise to the extent demanded by the appellees, would destroy the efficacy of his business and force him to abandon same entirely. We have some doubt of this. But the books are replete with cases where, because of being judicially condemned as a nuisance, a business was forced to find a new location, or be entirely abandoned.

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


text:
    HAAS v. D’AVANZO.
    No. 7459.
    Court of Appeal of Louisiana. Second Circuit.
    March 8, 1950.
    Rehearing Denied April 5, 1950.

      Thomas P. Fitzgerald, Shreveport,1 for appellant.
    Freyer, Goode, Nelson & Freyer, Shreveport, for appellee.
   HARDY, Judge.

This is a suit in which plaintiff seeks to recover the sum of $1,500 as professional fees for architectural services alleged to have been rendered for the benefit of defendant under a contract of employment. Alternatively, plaintiff claims the right to recover the same amount on the basis of quantum meruit as the reasonable value of services rendered. Defendant categorically denied the allegations of plaintiff’s petition and additionally alleged’that the agreement with plaintiff was for the performance of services, payment for which was contingent lipón a construction contract for the work contemplated, not exceeding the . sum of $20,000. After trial there was judgment in favor of plaintiff in the sum of $500, from which judgment plaintiff has appealed. Defendant has answered the appeal, praying for the amendment of the judgment and the rejection of plaintiff’s claims, in toto.

Plaintiff is a licensed architect of high professional standing and unquestioned reputation. Defendant is the proprietor of a restaurant business which he operates in leased premises in the City of Shreveport, located at 510 Louisiana Avenue. 1 There is no question as to the initial employment. Defendant, being desirous of remodeling the premises which he occupied, upon receiving advice that the law of this state requires the employment of a licensed engineer or architect with respect to all construction jobs in excess of $10,000, contacted plaintiff, and briefly explained his ideas and wishes in connection with his plans for remodeling and enlarging his place of business. Plaintiff, in consequence of the employment, proceeded to prepare preliminary plans. These plans were submitted to Sandel & Lastrapes, a contracting firm in the City of Shreveport, who, after examination of the plans and an inspection of the premises, made an estimate of the probable cost as $21,500.

It is at this point that there enters into consideration an irreconcilable difference of opinion and understanding as between plaintiff and defendant. The latter strenuously contends that he advised plaintiff that the funds available for the proposed project were limited to $20,000, and in the event the work could not be performed for an amount not exceeding said sum, including plaintiff’s fees, he, defendant, could not proceed with the matter. This contention is vigorously denied by plaintiff, who asserts that defendant did not predicate his employment on the basis of the expenditure of any specified sum, and that, accordingly, he proceeded with the preparation of complete plans and specifications, after which bids were invited from several of the leading contractors in Shreveport.

The bids received, in every instance, far exceeded the figure fixed by defendant, the lowest bid, in the sum of $35,922, being submitted by Sandel & Lastrapes. After conference with the named firm, involving certain changes and scaling down ‘of specifications, a figure of $25,922 was reached. This amount still being substantially in excess of the sum available to plaintiff, the project was abandoned. After the lapse of some two or three months plaintiff rendered defendant a bill. Receiving no reply to the statement rendered, after forwarding another monthly statement of account, plaintiff- called defendant, who advised that he had no intention of paying the bill. Formal demand was made, failing satisfaction of which this suit was instituted.

The agreement alleged by plaintiff required payment for services on the following basis:

A sum equal to 2%% of the estimated cost, payable upon completion of preliminary plans;

An additional sum equal to 5% of the cost computed on the basis of the lowest bid, or on the estimated cost in the event of failure to receive any bids, payable on completion of working drawings and specifications ;

Finally, a sum equal to 2%% of the cost of the work to be paid for supervision during construction.

Since the project was abandoned no claim is made for the last item and plaintiff has chosen to base his demands on the figure of $20,000 rather than consider the actual bids as the ground for computation of any part of the fee. The demand therefore may be broken down into the sum of $500, representing 2%% on $20,000 for the preparation of preliminary plans, and $1,000, representing 5% on the sum of $20,000 for the preparation of complete working drawings and specifications. Under the judgment of the District Court the first item was allowed, but plaintiff’s claims as to the second item were rejected.

In a well reasoned written opinion our learned brother of the District Court made the following pertinent observations, which we regard as succinctly and correctly expressing the crux of the case:

“We do not recognize any issue of veracity here. Mr. Haas is a most reputable architect of the City of Shreveport, in whom this Court has complete confidence. On the other hand we have no reason to question the good faith or truthfulness of Mr. D’Avanzo. We are convinced from the testimony in this case that there was not a “meeting of the minds” between these parties other than for the preliminary plans. It is our opinion that each party was sincere in his individual belief, but that there was a mutual misunderstanding on both sides. Counsel for the plaintiff has cited authorities wherein the courts have held that where the contract of employment is proven in cases of this nature, the burden is on the owner to prove that the cost of the building was to be kept within the limit alleged. If applied in this case it would have the effect of placing the burden of proving the agreement of the $20,000.00 limit on the defendant. However, we are of the opinion that these cases are not applicable for the reason that the fact has been proven to our satisfaction that the employment was entered into as a result of error of fact or misunderstanding by both of the parties involved insofar as the fee of five per cent for the completed specifications and detailed plans or working drawings is concerned. For the same reason we are of the opinion that we could not give the plaintiff judgment for the total amount asked for herein on the basis of quantum meruit.”

Briefly elaborating upon the above statement, we observe that defendant’s conduct, as reflected by the vast preponderance of the testimony in the record, during the negotiations between the parties and the consequent developments, was entirely and thoroughly consistent with his contention. It is equally true that there is nothing in the record which reflects upon plaintiff's sincerity with respect to his claim. However, we think defendant is entitled to prevail, at least with respect to the bulk of plaintiff’s demand, on the ground that plaintiff has not established a definite and certain understanding, a meeting of the minds.

As observed by the District Judge, there is no question as to the sincerity of either party, but, as frequently happens, it is obvious that each was proceeding in accordance with his own view and conception of the understanding and without any certainty as to the mutuality thereof.

With respect to the allowance of the sum of $500 in response to plaintiff’s claim of 2%% for the preparation of preliminary plans, we have no doubt in our minds as to the correctness of this award. This much of plaintiff’s work was certainly performed with defendant’s full knowledge and consent. And, indeed, it was not until after this had been done that the excessive cost of the project became an issue.

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


text:
    TAYLOR v. TURNER et al.
    No. 7467.
    Court of Appeal of Louisiana. Second Circuit.
    March 8, 1950.
    Rehearing Denied April 5, 1950.
    Meadors, Shaw & Meadors, Homer, for appellant.
    Smitherman, Smitherman & Purcell, Shreveport, for appellees.
   TALIAFERRO, Judge.

The contest involved in this litigation tenders for decision the ownership of one-twelfth of the minerals in, on, under or which may be produced from the following described tract of land in Claiborne Parish, Louisiana, to-wit: “An undivided % interest in and to the SE 14 of the SE $4 and 15 acres on the South side of the SW % of the SE 14 of Section 19; and the E % of the NE % and 25 acres on the North side of the NW % of the NE %, North of a line drawn from the SE corner and running NW in Section 30, all in Township 22 North, Range 4 West and containing 162 acres more or less, Claiborne Parish, Louisiana.”

On December 23, 1937, Will Taylor, plaintiff herein, acquired by purchase from one Cleveland Robertson, an undivided one-sixth (Ve) interest in and to the parcels of land constituting said tract. The sale to him is in notarial form, being signed by both vendor and vendee. Following the vendee’s name therein appear these typed words, to-wit: “whose wife is Thelma Taylor, nee Glover.” He was not at that time the husband of Thelma Glover. He had previously married Millie A. Davis, from whom he had not been legally divorced, but they were then living separate and apart. Plaintiff did, however, on January 6, 1939, procure absolute divorce from Millie and on February 13, 1940, contracted marriage with Thelma. That union went on the rocks also, culminating in final divorce on February 12, 1943. Both marriages were celebrated in Claiborne Parish, where both divorces were sued for and obtained.

On November 28, 1946, a date subsequent to both divorce judgments, plaintiff executed an oil and gas lease to one L. FI. Pratt that covered the land he had acquired from Cleveland Robertson.

On November 12, 1947, Thelma Glover, then the wife of Bill Turner, while a patient in the Shreveport Charity Hospital, signed a co-lessor’s agreement wherein she joined and concurred in'the lease to Pratt and ratified the same. On the following day she signed an instrument wherein she declared that for $100.00 cash she sold and conveyed to W. W. Lincoln one-twelfth (¥12) of “the oil, gas and other ■minerals in and under and that may be produced from” said land.

On January 2, 1948, W. W. Lincoln- sold and conveyed to Bryon H. Schaff one-half (%) of the mineral rights acquired by him through the sale from Thelma Turner, or ¥24 of the whole.

While the public records, with respect to said lands, disclosed the history above related, Will Taylor instituted the present suit, an action in jactitation or slander of title, against Thelma Turner, Lincoln and Schaff. He alleged that Thelma Turner was slandering his title to said property by claiming to be the fee simple owner of an undivided one-twelfth (¥12) interest therein, less the minerals. He alleged that Lincoln and Schaff were slandering his title by asserting ownership of the minerals and mineral rights described in the instruments running to them, respectively, and by having the same registered in the conveyance records of Claiborne Parish.

Plaintiff prayed “that in due course each of the defendants be ordered to either disclaim any title whatsoever to said property or to assert herein such rights as he may have against said property.” He also alleged in an amended petition that both Lincoln and Schaff well know that they have no legal interest in the minerals they are presently claiming and, therefore, are acting maliciously in so doing. Judgment for damages against them in the sum of $1,000.00' is prayed.

Thelma Turner did not answer the suit. As to her, issue was joined by judgment by default. Defendants, Lincoln and Schaff, deny all of the material allegations of fact and legal conclusions advanced by plaintiff as a basis of his action. They admit that Thelma Turner is claiming to own an undivided one-twelfth (¥12) interest in and to said lands; they admit that each of them owns and is asserting ownership to an undivided one-twenty-fourth (¥24) interest in the minerals and mineral rights described in and by virtue of the instruments of conveyance to them, respectively, •mentioned in plaintiff’s petition. These defendants, in the alternative, plead that should it be found and held that they did not each own indefeasible title to an undivided one-twent-y-fourth (%t) interest in the minerals and mineral rights herein described, through and by virtue of said conveyances to them, in that event, they allege that they made the purchases in good faith, relying upon the public records of Claiborne Parish, and that: “Will Taylor, having recited by authentic act in the deed from Cleveland Robertson to Will Taylor, referred to in paragraph 9(a) above, that he was married to Thelma Glover and having recorded and allowed same to remain on the Conveyance Records of Claiborne Parish, Louisiana, unchallenged until the filing of this suit and having, subsequent to the date of said deed, instituted suit for divorce and obtained divorce by judgment of this honorable court of date February 12, 1943, thereby dissolving the community of acquets and gains between the said Will Taylor and Thelma Taylor, nee Glover, is estopped from denying or attacking the title of these defendants acquired through Thelma Glover, as alleged in paragraph 9 above, and these defendants W. W. Lincoln and Bryon H. Schaff especially plead estoppel against Will Taylor, plaintiff herein, from attacking or denying their title to a %4th mineral interest each in and to the whole of the above described property.”

Defendants pray in keeping with their pleadings. Their answer converts the suit into a petitory action wherein they carried the burden of proof.

Plaintiff’s demands were rejected as to defendants Lincoln and Schaff. There was judgment in their favor recognizing and decreeing each of them to own an undivided one-twenty-fourth (tyi) interest in and to the minerals on, in, under and that may be produced from the lands in question.

According to the Court minutes, plaintiff was given judgment against Thelma Turner but it does not appear that formal judgment has been signed. Plaintiff appealed from the judgment in favor of Lincoln and Schaff.

It is quite clear that the lower Court sustained the plea of estoppel or else it would not have rendered judgment against Thelma Turner as reflected from the minutes. , .

The record establishes beyond any doubt that when plaintiff acquired the one-sixth (%) interest in the lands from Cleveland Robertson on December 23, 1937, he was not the husband of Thelma Glover and that being described in the deed as her husband was wholly untrue. She did not become his wife until some years later.

One who examined the public records of -Claiborne Parish, read the deed to plaintiff, and observed that Thelma Glover was described therein as his wife, and then found that they were thereafter divorced, would naturally conclude that she owned a one-twelfth (%2) interest in the land described in the deed to plaintiff at dissolution of the marriage. But, had the examination been complete it would also have disclosed that plaintiff had previously married Millie A. Davis, from whom he had been divorced after said purchase and also that plaintiff’s marriage to Thelma Glover occurred- subsequent to said purchase.

The pivotal question posed by the record is: As regards the . interest of Lincoln and Schaff, is plaintiff estopped to contradict the descriptive reference to Thelma Glover, as being his wife, in the deed from Cleveland Robertson?

Under Act No. 122 of 1908 the Notary Public who passes a deed or mortgage affecting real property is required to give therein the marital status of each party. As a rule, of course, the information necessary to meet the requirements of this act is acquired from the parties. The act, in this respect, imposes no duty upon them. If this descriptive information is omitted from the instrument its validity to no extent is affected thereby.

It is an experience common to all examiners of land titles, that after the lapse of many years from date of an instrument, ofttimes it is quite difficult to ascertain the marital status of the parties thereto. In order to measurably overcome this difficulty the Legislature passed the act. The incorporation of the data in an instrument creates a rebuttable presumption of its correctness, but it forms no essential or sacramental part thereof. Fifty years thereafter the presumption will be much stronger.

In the present case, the Notary was not called as a witness. From whom he got the data about Will Taylor’s marital status, the record does not disclose. Taylor is a member of the colored race, barely literate, and his testimony reveals him to be of below average mentality. It is not made clear that he knew, when he signed the deed, his marital status was incorrectly stated therein. He admits, however, that soon after the act was recorded he did learn of the misstatement.

Estoppels are of three kinds: (1) By record; (2) by deed; and (3) by matter in pais. If the facts of the present case warrant placing it in either classification, it will fall in number two, or “by deed”. We have most serious doubts that the law pertinent to either of said classifications has application to the facts of this case. If estoppel by deed is applicable, a simple statement of the fundamental law of that class will set at rest every doubt of defendants’ lack of right to recover herein. It is as follows: “An estoppel by deed is operative only between parties to the deed and their privies; strangers to the deed are not bound by, nor can they invoke, the estoppel.” 19 Am.Jur. 601, § 6.

We prefer to pitch opinion upon a different predicate. Estoppels are not favored in law. One who hopes to succeed in a litigation through the agency of such a plea is required to establish, with unusual clearness, his right so to do. Title to real estate is rarely ever lost or acquired through the plea.

The rule is almost, if not invariable that to sustain a plea of estoppel two essential facts must be well established, viz:

1. The party against whom the plea is leveled must have knowingly, orally or in writing, asserted as true, facts that were not true, and

2. The proponent of the plea must have had knowledge of said assertions and, in good faith, acted thereupon and/or changed his position with respect to the matter involved, to his loss, injury or detriment.

We do not believe defendants’ case meets the test of these two requirements.

It clearly appears that neither Lincoln nor Schaff had any knowledge whatever of the existence or registry of the deed from Cleveland Robertson unto Will Taylor, prior to time Thelma Turner signed the mineral sale, and, therefore, had no knowledge of the erroneous statement in the deed to Taylor with respect to his marital status. Nor did either have any definite information concerning the divorce suit between Thelma Glover and Taylor.

In the plea of estoppel, quoted herein-above, it is not alleged that these two defendants had any knowledge of the contents of said deed or of the divorce proceedings prior to dealing with Thelma Glover at the hospital. The plea simply states that having allowed the deed to remain of record, uncorrected, and thereafter having secured a divorce from Thelma, plaintiff is estopped to attack or deny the validity of their title to one-twenty-fourth O/24) interest each in said minerals.

We arc unable to perceive wherein defendants were misled or acted to their injury or prejudice because of the divorce proceedings or the erroneous statement in the deed with reference to Taylor’s marital status. In a case of this character constructive knowledge, if such be admitted possible, is insufficient.

It is true that the co-lessor’s agreement was procured by Lincoln by the direction of his employer’s attorney in the City of Shreveport, who advised him that Thelma had an interest in the lands, but the attorney did not impart to Lincoln or Schaff the facts or information upon which he based his opinion. The attorney did not testify in the case. They assumed that it was safe to buy the minerals from Thelma since the attorney believed she was vested with title to an interest in the lands.

Plaintiff’s demand for damages is not sustained by the testimony.

Assiduous counsel for appellees have favored us with elaborate brief in’ support of their position and contentions herein, and cite and quote from many decisions having to do with pleas of estoppel, including the following, viz: Elbert v. Wallace, 26 La.Ann. 70S; Templet v. Babbitt et al., 198 La. 810, 5 So.2d 13; Lewis et al., v. King, et al., 157 La. 718, 103 So. 19; Karcher et al. v. Karcher, et al., 138 La. 288, 70 So. 228; Jordan et al. v. Marks et al., D.C., 55 F.Supp. 204; Lawrence et al. v. Joseph, La.App., 35 So.2d 885.

It is true that the syllabi in some of these cases is broad enough to cover the present case, but a careful reading of the cases at once reveals that the facts thereof and those of the case at bar are wholly dissimilar. In suits of this character, as has been said in some decisions, the outcome depends wholly upon the .peculiar facts of each case.

For the reasons herein assigned, the judgment from which appealed is annulled, avoided and reversed; the plea of estoppel is overruled; and, there is now judgment in favor of the plaintiff, Will Taylor, and against defendants, W. W. Lincoln and Bryon H. Schaff, decreeing the mineral deed by Thelma Turner to Lincoln and by Lincoln to Schaff, referred to hereinabove, to be null, void and of no effect. And, accordingly, plaintiff is recognized as the owner of the lands involved herein, to-wit: “An undivided % interest in and to the SE 54 of the SE 54 and 15 acres on the South side of the SW 54 of the SE 54 of Section 19; and the E 54 of the NE 54 and 25 acres on the North side of the NW 54 of the NE 54» North of a line drawn from the SE corner and running NW in Section 30, all in Township 22 North, Range 4 West and containing 162 acres more or less, Claiborne Parish, Louisiana.”

It is further ordered, adjudged and decreed that plaintiff’s demand for damages be and it is hereby rejected.

Appellees are cast for all costs.


text:
    RICHMOND v. NEW YORK LIFE INS. CO.
    No. 7472.
    Court of Appeal of Louisiana. Second Circuit.
    March 8, 1950.
    Rehearing Denied April 5, 1950.

      Robert L. Richmond, Shreveport, for appellant.
    Blanchard, Goldstein, Walker & O'Quin, Shreveport, for appellee.
   HARDY, Judge.

This is a suit in which plaintiff seeks, under the provisions of Article 607 of the Code of Practice, to annul a judgment of September 29,1945, No. 82,207 on the docket of the First District Court of Caddo Parish, Louisiana, entitled Robert L. Richmond v. New York Life Insurance Company, which judgment in favor of defendant was affirmed by this Court on appeal, La.App., 25 So.2d 94, 96.

In this action defendant filed an exception of no cause of action which was sustained, and there was judgment dismissing plaintiff’s suit, from which judgment plaintiff has appealed.

The record in the original suit was made part of an amended petition filed by plaintiff.

Numerous grounds are alleged and strenuously urged on behalf of plaintiff in support of his contention as to the nullity of the judgment, among which are collusion and connivance between one of the witnesses and the defendant, alleged to have been intended to defraud plaintiff of his rights; perjury on the part of the witness in question, in the making of false and untrue answers to certain interrogatories; attempts on the part of defendant to deceive the Court in the effort to defeat plaintiff’s claims, and numerous other reprehensible actions of lesser magnitude and degree.

It appears to us on the face of the pleadings that plaintiff’s petition in this matter is more in the nature of an application for new trial or rehearing than a new and independent action, and, accordingly, there is serious question in our minds as to the propriety of the procedure employed. Be this as it may, we think the matter may be disposed of on other grounds, which are hereinafter set forth.

We observe the allegation in plaintiff’s petition “that the decision of the Court was influenced, and based solely and wholly on the answers to the interrogatories * * * ”, which were propounded to the witness whose deposition is so viciously attacked. Reference to the record of the original suit and to our opinion on appeal discloses that this allegation is in error. In our opinion in Richmond v. New York Life Insurance Company, supra, we made the following definite statement: “We have carefully examined the very brief record upon which the learned Judge of the district Court based his conclusion, and we find no error in his holding that plaintiff’s disability had ceased. There is abundant evidence in the record justifying this holding, particularly evidence of statements made by plaintiff himself to the effect that he no longer suffered from any disability, the conditions which had caused same having been corrected.” (Emphasis ours.)

Reference to the record of the original suit only serves to confirm the finding which we above expressed. It is therefore obvious that the charges of fraud, collusion, bad faith, etc., and the claims of irregularity in the taking of the deposition are immaterial and without bearing upon the merits.

It is true that the statements of plaintiff as to his recovery from his disability were made in certain letters subscribed by plaintiff and directed by him to his prospective employer, which were attached to the deposition in question. Plaintiff attacks the admission and consideration of these documents, many of them in his own handwriting, on the ground that they were procured by the defendant through a breach of trust on the part of the agents of his employer, and that they are privileged communications. With this contention we cannot agree, nor can we find any authority upon which such an argument might be logically predicated, and, indeed, plaintiff has suggested no authority which would sustain such a position. To our knowledge there is no privilege nor trust relationship between employer and employee which would prevent or prohibit the furnishing of voluntary statements in writing made by an employee or an applicant for employment.

In view of the fact that even the proof of plaintiff’s charges would not serve to change the conclusion heretofore reached, we perceive no purpose in burdening this opinion with a detailed discussion thereof. However, we observe, in passing, as a practical proposition, that there would be no end to litigation if a litigant were permitted to reopen a case after a lapse of years on grounds which were available and which could and should have been produced on original hearing.

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


author: KENNON, Judge.

text:
    WALKER v. JOYNER.
    No. 7457.
    Court of Appeal of Louisiana. Second Circuit.
    March 8, 1950.
    Rehearing Denied April 5, 1950.
    John G. Gibbs, Natchitoches, for appellant.
    Gahagan & Pierson, Natchitoches, for appellee.
   KENNON, Judge.

Plaintiff, who operates a store and filling station at Chestnut in Natchitoches Parish, Louisiana, brought suit against defendant for a total of $179.49 allegedly due by defendant to him on open account for gasoline, food, and other items. After a plea of vagueness was overruled, defendant filed an answer denying that he had made any of the purchases upon which the suit was filed, and setting forth that he had paid plaintiff in full for a'll amounts which he had purchased on credit from him.

Trial was had on May 9, 1949. On June 16, 1949 defendant filed a motion to reopen. On June 23, 1949 trial Court denied the motion to reopen and rendered judgment in favor of the plaintiff as prayed for. After motion for a new trial was denied, defendant appealed to this Court.

At the trial, plaintiff testified that defendant, during November and December, 1947, made the purchases listed on the charge slips introduced in evidence and which aggregated the amount sued for. Defendant testified that in August, 1947, he was indebted to the plaintiff in the sum of $176.00, at which time he signed a note; that the plaintiff, who also signed the note, received from the bank at Campti, Louisiana, the face amount of the note, which constituted payment in full of all amounts due by defendant to plaintiff up to that time; that subsequent to that time, he traded with plaintiff but only for cash and not on credit; that he had paid the full amount of the note at the bank and consequently nothing further was due by him to plaintiff.

Plaintiff introduced the testimony of two of his clerks, each' of whom testified that certain of the purchases shown on the charge slips were made in person by defendant during the months of November and December, 1947; plaintiff also presented the truck driver from the oil company from which he purchased gasoline, who testified that on one occasion, during the period in controversy, he acted, as an accommodation, as attendant at the filling station; that, at defendant’s request, he filled defendant’s gasoline tank and that defendant directed him to have the plaintiff, Mr. Walker, charge the gasoline to defendant’s account.

Under these circumstances, we hold that the record amply sustains the finding of the District Judge in favor of plaintiff.

Attached to defendant’s motion to reopen the case is an affidavit from a merchant in the same community with plaintiff and defendant which sets forth that during November and December, 1947, defendant traded at affiant’s store both for credit and cash. The transcript of the trial bears the notation that the case would be held open for the testimony of this merchant and another party if counsel “are not able to stipulate” as to their testimony. A reading of the record and minutes indicates that the District Judge overruled the motion to reopen and did not consider the affidavit of the second merchant. However, defendant’s counsel in brief makes the statement that this second merchant’s testimony is in corroboration of defendant’s contention that no credit purchases were made by him after the August note was given to plaintiff. The decision as to whether or not a case should foe reopened is one which addresses itself to the sound discretion of the trial Judge and in the absence of manifest error1, his ruling should be sustained on appeal. In any event, if the facts set forth in the affidavit attached to the motion to reopen were accepted as true, it would not necessarily follow that the District Court’s judgment was incorrect.

The judgment appealed from is affirmed, with costs.


author: ELLIS, Judge.

text:
    SHAW v. ESKEW et ux.
    No. 3221.
    Court of Appeal of Louisiana. First Circuit.
    March 28, 1950.

      Tom C. M’cLure, Jr., Alexandria, for appellant.
    Richard H. Kilbourne, Clinton, for appel-lees.
   ELLIS, Judge.

This is a suit for damages for an alleged illegal conversion of an automobile. It is alleged in the petition that the petitioner is a duly qualified and acting administrator of the Succession of Dr. Edgar Burk Shaw who died on July 30, 1947, and that on July 31, 1947 “the said John Eskew and the said Norma S. Eskew furthermore unlawfully took possession of and removed from the aforesaid premises which had been occupied by the deceased Edgar Burk Shaw as his residence, one (1) Model 1946 Dodge automobile Motor No. D24104021 which said automobile was the property of and owned by the said Edgar Burk Shaw.” Further, “that, after taking and removing the Dodge automobile as aforesaid, the said John Eskew and Norma S. Eskew converted the same to their own use or disposed of the same for their own benefit all without any legal right whatsoever.” Plaintiff prayed for a judgment for $2,000 for the value of the automobile illegally taken, which he alleged was the value of the car. (Emphasis added.)

Defendants filed an exception of no cause or right of action which was overruled, whereupon answer was filed specifically denying the articles quoted together with all other allegations of fact necessary to plaintiff’s cause of action, and further, in reconvention, defendants prayed for judgment against the plaintiffs for $150 which they alleged as having been spent on Dr. Shaw’s funeral by them personally.

The Lower Court first rendered judgment in favor of the plaintiff for $2,000 which it found to be the value of the car but allowed the defendants credit for the original purchase price of $1,336.30. The plaintiff filed a motion for rehearing on the ground that no claim had been made for the purchase price by the defendants in their answer, and the Court granted the rehearing and rendered judgment for the $2,000 as the value of the automobile without any credit to defendants and refused the reconventional demands of the defendants.

The defendants have appealed from this judgment.

It is shown by the testimony that the deceased, Dr. Edgar Burk Shaw, was an elderly bachelor who, up to the date of his death, still was considered a practicing veterinarian, and who lived near Clinton, Louisiana in the home of a Mr. and Mrs. Matthews, all of his relatives being nonresidents. He had moved into the Matthews home in December 1946. It is also shown that he felt closer to the defendants than to any of his relatives, and when he died the defendants were the first to be notified in accordance with previous instructions and a note left by Dr. Shaw. Immediately upon notification of Dr. Shaw’s death, the defendants drove from their home in Alexandria, Louisiana to Clinton, Louisiana, took charge of the funeral arrangements, notified his relatives, only one of whom attended, Mrs. Virginia Shaw Dinges. After the funeral services in Clinton, the defendants, together with Mrs. Dinges, returned to the Matthew’s home and it was then that the defendant John Eskew removed the automobile to Alexandria, Louisiana. The administrator thus claims that the automobile was the property of and owned by Dr. Shaw at the time of his death and the taking thereof by the defendants was illegal, whereas, the defendants deny this and allege in their answer that it was merely loaned to the deceased.

As the defendants’ answer sets forth that it was agreed that the automobile would be registered in the name of Dr. Shaw and the insurance would be issued in Dr. Shaw’s name “just the same as though it was owned by him, and that in order to carry out this understanding, it was agreed between decedent and John Eskew that such automobile loaned would be charged on the books of Eskew’s business to the decedent”, the plaintiff contends that this was an admission by the defendants that Dr. Shaw was in possession of the automobile as owner and that it therefore became the defendants’ burden to prove the affirmative defense that the car was merely loaned to Dr. Shaw. We cannot agree with this contention or this premise for it is clear that under the allegations of defendants’ answer they denied the affirmative allegation in plaintiff’s petition that Dr. Shaw was the owner of the automobile, and the allegation of the answer upon which plaintiff bases his argument is not an admission that he possessed the automobile as owner but merely that he was in possession by virtue of the defendant having loaned him the automobile. The burden of proof is upon the plaintiff to show that Dr. Shaw, at the date of his death, owned this automobile. There is no allegation nor any contention that it was a gift. There is no denial that the automobile in dispute, prior to coming into Dr. Shaw’s possession, was owned by the Eskew Motor Company which was owned in its entirety by the defendant, John Eskew.

The plaintiff has offered, as proof of the fact that Dr. Shaw was the owner of the automobile by virtue of its purchase from the defendant John Eskew or the Eskew Motor Company, the fact that on the date of Dr. Shaw’s death he was in possession of same; that he obtained possession of the automobile from the Eskew Motor Company September 23, 1946, and on September 25, 1946 obtained insurance on the automobile as owner in which, presumably, he stated to the insurance company that the actual cost of the automobile when purchased including equipment was $1,336.30; that it had no encumbrances against it; that it was new, having been purchased in September, 1946. Plaintiff also offered two certificates of registration, one issued 10-4-46 and the other issued 1-10-47 to E. B. Shaw, with the certificate on the back of the latter registration that “I hereby certify I am the owner of the Motor Vehicle described on reverse side,” Signed “E. B, Shaw.”

There is not one line of proof of actual payment of the purchase price of $1,336.30. The petition of plaintiff does not allege, nor is there any proof to show, that the automobile was sold to the deceased on credit, or part cash and the balance credit, or paid for entirely in cash. On the other hand, it is shown that Dr. Shaw was looked upon and treated as a member of defendants’ family. He lived with them for quite a number of years at their home in Alexandria, Louisiana, and it is shown that the defendants built a special room and bath for him which at the date of his death was considered his room and unoccupied by any one else, all of which was without charge,

It is further shown that Dr. Shaw left a policy of insurance payable to the defendant, Mrs. .Norma Eskew, to take care of his funeral expenses, but when the expenses exceeded the amount of the policy by $183.26, this amount was immediately and without any quibbling, paid by Mrs. Norma Eskew as shown by her check dated August 1, 1947, which she had no intention of claiming or attempting to collect until the present suit was filed.

It is further shown that Dr. Shaw, during his lifetime, used other automobiles belonging to the Eskew Motor Company and that he had placed an order for a Chrysler automobile. The trial judge sustained an objection to the introduction of this order, which We believe should have been overruled and allowed to be placed in the record for what it was worth. If he had signed this order it was admissible.

It is further shown that just prior to obtaining the car in dispute, Dr. Shaw owned a 1942 Dodge which was sold by an employee or salesman of the-Eskew Motor Company and the money given to Dr. Shaw. After this 1942 Dodge was sold, there is no denial that he borrowed and •used or that he was loaned for his use a pick-up truck which belonged to the Es-kew Motor Company and which at times he- used to go back and forth between Alexandria and Clinton. It is shown that he returned this truck to the Eskew Motor Company and in return was given the car in, dispute. .

It is further shown that the Eskew Motor Company owned approximately six cars at the time it sold Dr. Shaw’s personal 1942 Dodge car, which had been loaned to and were in the possession of various persons — one to its parts manager, one to a salesman, one to a man by the name of Forrest Campbell, one to Mrs. John Eskew, one to Dr. Shaw, and one was being used by the Eskew Body Shop. In each case, the insurance was carried by the individual who operated the automobile.

There is nothing unusual in the defendant’s testimony that he loaned this automobile to Dr. Shaw, in view of the relationship which existed between the defendants and Dr. Shaw, neither is there anything unusual in the fact that Dr. Shaw carried the insurance in his name and secured the registration certificates in his name, for this would be little enough for him to do in return for the loan and use of the automobile. Counsel for plaintiff seems to think it strange that the defendant, John Eskew, who is described as having the appearance of a hard-headed business man, knowing that Dr. Shaw had a heart ailment and might die at any time, had not secured something in writing to show that he had loaned him the automobile. While this might have been the advisable thing to do, the failure of Eskew to obtain a written statement that he had only loaned the automobile to Dr. Shaw is no more: strange than the failure of Dr. Shaw, if he had paid cash for this automobile, to have obtained or demanded a receipt in the ordinary course of business. If he had paid by check it would have been among his papers or the records at the bank would reveal any such payment to the Eskew Motor Company, and all these records were in the possession of ■ or could have been obtained by the plaintiffs. If this automobile had been purchased from the Eskew Motor Company and paid for by Dr. Shaw, the books of the company for the year in which it was purchased would reflect this fact, which information could have also been obtained by the plaintiffs. The fact that the trial judge came to the conclusion that Dr. Shaw had not paid for the car is corroborative of defendant’s position that the car was loaned to D’r. Shaw.

It is our opinion that the plaintiff, in order to prove that automobile was the property of and owned by Dr. Shaw, of necessity had to prove payment for the automobile, or the purchase of the automobile for part cash and the balance on time, or, if purchased entirely on credit the defendants are entitled to credit for the purchase price. We do not agree with counsel for plaintiff or the trial judge that it was necessary for the defendants to ask for credit for the unpaid purchase price. The proof offered by the plaintiffs made a prima facie case, a presumption of the ownership of the automobile by Dr. Shaw. It was then encumbent upon the defendant to prove that the car was loaned to Dr. Shaw, or in oth^r words, to rebut the prima facie case made by plaintiffs. We are of the opinion that defendant has sufficiently rebutted this prima facie case or presumption of ownership in Dr. Shaw. Having done so, the plaintiffs were then called upon to show the purchase from defendant of the car and the payment therefor. The plaintiffs have failed to show the purchase of and payment for the automobile by Dr. Shaw. It then must be presumed that Dr. Shaw did not pay for the car; in other words, they have failed to sustain the burden of proof showing the ownership of the car in Dr. Shaw.

It is unnecessary to consider the question of whether this automobile was taken with the consent and authority of the heir and relative Mrs. Dinges, who was present at the time the car was moved by Eskew, nor is it necessary to consider the amount of damages which, if the plaintiff had been entitled to same, would have been the value of the equitable interest in the automobile under the authority of Bryson v. Bates-Crumley Chevrolet Co., Inc., La.App., 171 So. 605; Victor v. Fairchild Motor Corporation, La.App., 8 So.2d 566; Carter v. Mintz & Goldblum, La.App., 8 So.2d 709; Strahan v. Simmons, La.App., 15 So.2d 164.

For the reasons assigned, it is ordered that the judgment of the District Court be reversed and the plaintiff’s suit dismissed at his cost.


text:
    SAVOY v. SHREVEPORT LAUNDRIES, Inc.
    No. 7476.
    Court of Appeal of Louisiana. Second Circuit.
    March 8, 1950.
    Rehearing Denied April 5, 1950.
    J. Bennett Johnston, Shreveport, for appellant.
    Tucker, Bronson & Martin, Robert McL. Jeter, Jr., Shreveport, for appellee.
   KENNON, Judge.

Alleging that he had delivered a bundle of laundry, valued at $135.85, to a laundry truck driver employed by the defendant company for the purpose of having same cleaned and returned, and that the bundle had been lost through negligence of defendant’s employees, plaintiff' filed suit in the City Court of Shreveport,. Louisiana for the value of the lost articles.

Defendant denied receipt of the laundry and all the other allegations of plaintiff’s petition.

The City Court found for plaintiff on the issue of whether or not the laundry had been delivered, but fixed the value of the lost articles at $68.03. After its motion for a new trial was overruled, defendant appealed. Plaintiff answered the appeal, asking that the award be increased to the amount sued fon

Plaintiff, who occupied an apartment in the City of Shreveport, testified that he prepared two bundles of laundry on the day in question, one containing bed linens (which apparently was returned in due course), and the other containing the items sued for. The porter at the building testified that he picked up the two bundles of laundry and delivered them to the laundry room of the apartment house. Mrs. Burris, manager of the building, testified that she saw the two bundles brought down by the porter and that the truck driver for defendant company went in and got the bundles and said that he had “Savoy’s laundry.”

Defendant’s employee, while admitting that he picked up two bundles of laundry on the day in question, stated that one of the bundles was for a- customer named Newton. Defendant, in support of this testimony, introduced in evidence its route sheet which showed only one bundle of laundry under the name of Savoy on the day in question. This route sheet did not contain a bundle entry under the name of Newton.

While the testimony is "conflicting, we find that the record supports the finding of the trial court for plaintiff on the issue of delivery, vel non, of the bundle to defendant’s driver.

Plaintiff’s suit was for the full retail value of the lost articles. In his testimony he frankly -admitted that a reduction should be made due to the fact that the articles had been in use. He further testified that he had purchased most of the articles at a substantial discount due to the fact that he was an employee of a retail concern. Under the circumstances, the value fixed by our brother of the City Court is reasonable.

The judgment is affirmed, with costs.


author: FRUGE, Judge ad hoc.

text:
    POWERS v. ALLIED CHEMICAL & DYE CORPORATION.
    No. 3226.
    Court of Appeal of Louisiana. First Circuit.
    March 28, 1950.
    Rehearing Denied May 15, 1950.
    See 46 So.2d 332.
    Hirsch & Greene, Baton Rouge, for appellant.
    Taylor, Porter, Brooks, Fuller & Phillips, Baton Rouge, for appellee.
   FRUGE, Judge ad hoc.

This is a suit under the Workmen’s Compensation Law of Louisiana, Act No. 20 of 1914, as amended, in which plaintiff, who sustained an injury to the little finger of his right hand, is seeking to recover permanent and total disability compensation from the defendant, his employer.

The facts as to how the injury occurred are well established and are as follows:

On August 21, 1947, at approximately 11:50 a.m. the plaintiff, an ironworker and employee of defendant, after purchasing a bottle of milk, was walking up some stairs with the bottle of milk which he intended to drink with his lunch. While walking up said stairs he slipped and cut his small finger of his right hand severing the tendons of this finger. He was given first aid treatment and then was sent to Dr. T. Jeff McHugh for treatment. Dr. Mc-Hugh first tried to tie the tendons with silk but it did not hold, and he subsequently tried a graft but this, likewise, failed. The little finger on his right hand was thereby left in a perfectly flexed position.

At the first trial of this matter the District Court applied the doctrine in the case of Leday v. Lake Charles Pipe & Supply Company, La.App., 185 So. 655, and rendered judgment in favor of plaintiff decreeing that plaintiff was totally and permanently disabled, and that compensation was to be paid to plaintiff on the date the judgment became executory and further ordering the plaintiff to submit to an operation for the amputation of the little finger by a doctor of his own choosing at the expense of the defendant; and on the refusal of the defendant to submit to such an operation within said time and without reasonable grounds for such refusal, then compensation to cease after the expiration of said period of thirty days and the defendant given the right to show that by reason of said operation or otherwise the plaintiff’s disability no longer exists and compensation ceases. Thereafter on May 14, 1949, plaintiff selected Doctor J. Willard Dowell of Baton Rouge, Louisiana, and had the little finger amputated. Then, in accordance with the first ruling of the Trial Judge, the defendant ordered the plaintiff to show cause why the first judgment should not be modified on the grounds that the incapacity and disability of the said plaintiff had ceased. The rule came up for trial and on the 10th day of October, 1949, judgment was rendered by the Trial Court finding that the plaintiff was relieved of any disability and that no further compensation was due plaintiff.

At the first trial of this matter numerous- orthopedic specialists testified that an amputation of the finger would relieve plaintiff of his disability and incapacity. After plaintiff’s finger had been amputated by Dr. J. Willard Dowell, a physician of plaintiff’s own choosing, Dr. Dowell testified that plaintiff was able to do the work that he had been accustomed to doing and stated that the hand had healed perfectly ■with the exception of one small adherence scar. Doctors T. Jeff McHugh and Charles McVea, who had examined plaintiff before the first trial on this matter also opinioned that the amputation of plaintiff’s finger would relieve any disability insofar as performing the duties of an ironworker. After the amputation of the finger by Dr. Dowell they testified that the amputation had been a very successful one, that the hand had healed completely and that the pláintiff was able to flex and extend all of the remaining fingers. They further testified that plaintiff had the full range of motion in' all of the remaining fingers and stated that plaintiff was able to perform the duties of an ironworker.

In the Lower Court many men were called to testify, who had disabled members of the hand. A Mr. Henry B. Nesom testified that he was employed as an iron-worker and had lost his thumb right down to the hand; that he was employed as an ironworker and did all sorts of heavy work including climbing, rigging and -other work.

A Mr. Charles H. Cassle who had lost his index finger when a child was presently following the employment as an iron-worker.

A Mr. Walker Roy Ellis, who had lost half of a ring finger and had two -fingers partially smashed, which were partially stiff, held an ironworker’s card, and a Mr. Wilton R. Davis, who had some crippled fingers on both hands and only had about three-fourths of the grip in his left hand was an ironworker who was following that occupation satisfactorily.

Taking into account the duties of an ironworker, as described by the plaintiff himself, and his witnesses, as well as the testimony of the other ironworkers suffering much greater disability than the loss of a little finger, there is an overwhelming preponderance of evidence that the plaintiff can perform his duties as an ironworker.

All material testimony in the case leads to the conclusion that the amputation of plaintiff’s finger was successfully performed. That he has had a perfect recovery and all he is left with is the loss of a finger for which he has been paid all the compensation he is entitled to under the law.

Plaintiff has perfected an appeal from the first judgment based on that portion of the judgment decreeing that the compensation should commence when the judgment became executory, alleging that Act No. 20-of 1914, as amended, requires the payment of compensation from the date the disability begins. The facts reveal that plaintiff remained in the employ -of the defendant after the accident occurred until March S, 1948, and was paid full wages in lieu of compensation. Thereafter the first judgment was rendered on the 30th day of March, 1949, and defendant paid compensation to plaintiff at the rate of Twenty ($20.00) Dollars per week from April 11, 1949, the date the said judgment became executory until judgment was rendered on the second trial of the matter. Plaintiff actually received more compensation than that was due under the Workmen’s Compensation Law. Therefore the judgment appealed from is, in our opinion, correct and is affirmed.