author: REYNOLDS, J.

text:
    No. 2003
    Second Circuit Appeal
    GEORGE T. PICKLER v. CHARLES A NEAL, L. E. NEAL
    (March 17, 1925, Opinion and Decree)
    (April 11, 1925, Rehearing Granted)
    (Oct. 21, 1925, Remanded for New Trial.)

      (Syllabus by the Editor.)

    1. Louisiana Digest — Marriage—Par. 71, 84.
    Under the laws of Arkansas, Act 159 of 1915, as amended by Act 66 of 1919, a married woman has all the rights to contract, sue and be sued as though she were a femme sole. Therefore, she may bind herself in solido on a promissory note by joint promise with her husband to third person.
    2. Louisiana Digest — Prescription—Par. 87.
    Under the laws of Arkansas Section 6940 of the Digest of the Statutes of Arkansas, all action founded upon any contract or liability, expressed or implied, not in writing, is prescribed by three years’ prescription. Therefore, a demand in reconvention for the value of three hundred pounds of cottonseed at $3.15 per pound more than three years old is clearly prescribed.
    Appeal from the Second Judicial District Court of Louisiana, Parish of Webster. Hon, Robert Roberts, Jr., Judge.
    This is a suit on a promissory note with interest and attorney’s fees against the makers, a man and his wife.
    There was a demand in reconvention and compensation.
    Judgment for plaintiff on main demand and on reconventional demand for defendant
    Plaintiff appealed the judgment on reconventional demand.
    Judgment for plaintiff affirmed.
    Judgment on reconventional demand amended and reduced.
    R. G. Langston, of Minden, attorneys for plaintiff, appellant.
    L. K. Watkins, of Minden, attorney for defendant, appellee.
   REYNOLDS, J.

In this case George T. Pickier sues Charles A. Neal and L. A. Neal, his wife, for $975.00 with 10% per annum interest and 10% attorney's fees on their promissory note.

Mrs. L. E. Neal denies liability on the ground that she could not be held liable on a debt contract for her husband and for his benefit alone.

Charles A. “ Neal denies liability on the ground that plaintiff’s claim is compensated or set off by a claim held by defendant against plaintiff for 300 bushels of.. cottonseed , at the price of $3.15 per bushel,

Ther¡e .was judgment in favor of tha plaintiff, against the defendants in solido for th.e amount expressed in the note with Interest, and attorney’s fees.

We think this part of the judgment correct for the reason that in the state of Arkansas a married woman may bind herself to pay the debt of her husband.

Act No. 159 of the General Assembly óf the State of Arkansas of 1915, approved March 19, 1915, reads as follows, to-wit;

ACT NO. 159
“AN ACT to remove the disabilities of married women in the State of Arkansas :
“Be it enacted by the General Assembly of the State of Arkansas:
“Be it enacted by the people of the State pf Arkansas:
“Section 1. That from and after the passage' óf this act every married woman, and every woman who may in the future become married, shall have all the rights to contract and be contracted with, to sue and be sued, and in law and equity shall enjoy all rights and be subjected to all the laws of this state, as though she were a fémme sole.
“Section' 21 That all laws and' parts of laws in conflict with this act are hereby repealed,..and this act shall.take effect and be in force from and after its passage.
“Approved March 19, 1915.”

, And Act No. 66 of the General Assembly of .the State of Arkansas of 1919, approved February 11, 1919, provides as follows, to-Wit,:

ACT NO. 66
“AN ACT to amend Act 159 of the Acts bf 1915, entitled: ‘An Act to Remove thé'Disabilities of Married Women in ... the State of Arkansas’:
■.¡“Be. it .enacted, by the General Assembly of the State of Arkansas: .
“Section 1. . That Section 1 of Act 159 óf the'Acts of '1915, entitled: ‘An Act to Remove 'the Disabilities of Married Women in the State of Arkansas,’ approved March 19, 1915, be and the same is hereby amended so as to read as follow's, to-wit:
“Section 1. That from and after the passage of this act every married woman, and every woman who may in the future become married, shall have all the rights to contract and be contracted with, to sue and be sued, and in law and equity shall enjoy all rights and be subjected to all the laws of this state, as though she were a femnie sole; provided, it' is expressly declared to be the intention of this act to remove all statutory disabilities of married women as well.as- all common law disabilities, such as the disability to act as executrix or administratrix as 'provided by Section 6 of Kirby’s Digest, and all other statutory disabilities.
“Section 2. That all laws and parts of laws in conflict with this act are hereby repealed, and this act' shall take effect and be in force from and after its passage, relating back to the passage of the original act in its interpretation 'thereof.
“Approved February 11, 1919.”

Duly certified copies of these acts were introduced in evidence by plaintiff.

On October 30, 1916, the Supreme Court of Arkansas, in the case of Holland vs. Bond, in interpreting this law, held as follows:

“Under Laws 1915, giving to a married woman all the right to contract and be contracted with, and to sue and be sued as though she were a femme sole, a married woman may be sued and judgment obtained on her note and an open account, the consideration of which was a debt of her husband to plaintiff, and not money spent on her separate property.”
“Prior to the passage of this act, a married woman .would not be liable as surety on a promissory note for her husband because contracts could only be made by a married woman in reference to her separate property or business. But the Act of 1915, just referred to, has removed that restriction and in the broadest terms enables a married woman to sue and be sued, to contract and be contracted with, and in law and equity to enjoy all rights and be subjected to all laws of this state as though she were a • femme sole, • •
Major vs. Holmes, 124 Mass. 108. This construction also results from the reasoning of the court in Fitzpatrick vs. Owens, 186 S. W. 832, where we held that the statute meant to give the wife the right to maintain an action against her husband either upon contract or for tort.”

Under the act in question a wife may bind herself by joint promise with her husband to a third person in the same manner as if she were a femme sole.

For these reasons the judgment against the defendants in solido for the sum of $975.00, interest and attorney’s fees, must be affirmed.

The defendant, Charles A. Neal, obtained judgment against the plaintiff on his plea of compensation and set off for $975.00 for 300 bushels of cottonseed at $3.15 per bushel.

This part of the judgment plaintiff has appealed from, and it becomes our duty to pass on the correctness or incorrectness of this part of the judgment.

Defendant’s cause of action as to his claim for 300 bushels of cottonseed at $3.15 per bushel arose in the spring of 1919. The car of cottonseed ordered by Mr. Neal was shipped from Caldwell, Georgia, January 29, 1919, and arrived in Taylor, Arkansas, in February, 1919, and at that time defendant’s cause of action came into existence.

Defendants remained residents of Arkansas from that time until September 19, 1922, more than three years, without filing suit on the claim for 300 bushels of cottonseed at $3.15 per bushel, or having same liquidated.

Section 6940 of the Digest of the Statutes of the State of Arkansas, as introduced by plaintiff, provides:

“Contracts or Liability Not in Writing, Etc. — The following actions shall be commenced within three years after the cause of action shall accrue, and not after:
“First: All actions founded upon any contract or liability, express or implied, not in’ writing.”

Under this law of the State of Arkansas defendant’s claim against plaintiff for damages for failing to take and pay for 300 bushels of cottonseed at $3.15- per bushel is clearly prescribed, and the judgment of the trial court, as to this item, must be reversed.

Under the evidence of both plaintiff and defendants it is shown that plaintiff got 40 bushels of cottonseed from defendant in the spring of 1920. Plaintiff therefore owes defendant for the 40 bushels of cottonseed at $3.15 per bushel, for as to these seed received by the plaintiff from defendant the Arkansas statute does not apply in that defendants did not remain in Arkansas for three years after plaintiff received the seed from defendant, and plaintiff has not pleaded the three-year prescription provided by the laws of Louisiana and this court is without authority to interpose that plea.

It is therefore ordered, adjudged and decreed that the judgment herein appealed from, insofar as it gives to the plaintiff judgment in solido against the defendants, Charles A. Neal and L. E. Neal, for the sum of $975.00 with 10% interest thereon from November 4, 1919, and 10%. attorney’s fees and all costs, be affirmed. That that portion of the judgment in which it is stated, “less and subject to the sum of nine hundred and forty-five ($945.00) dollars with 5 per cent legal interest per annum from November 4, 1919, for which amount judgment in reconvention and compensation is decreed in his favor,” be so amended as to read, “less and subject' to the sum of one hundred and twenty-six ($126.00) dollars with five per cent per annum interest from March 1, 1920, for which amount judgment in reconvention and compensation is decreed in favor of defendants,” and, as thus amended, the judgment appealed from is affirmed.


source: Caselaw Access Project

author: REYNOLDS, J. ODOM, J.

license: Public Domain

text:
    No. 2365.
    Second Circuit Appeal.
    L. L. BRICE v. D. H. RUTLEDGE HEMENWAY FURNITURE COMPANY, LTD., Intervenor.
    (June 6, 1925, Opinion and Decree.)
    (October 5, 1925, Opinion and Decree on Rehearing.)

      (Syllabus by the Editor.)

    1. Louisiana Digest — Imputation—Par. 8.
    Where debtor owes two accounts, one for rent and the other for merchandise on open account, makes payments which are credited to the open account by the creditor and acknowledged as such by the debtor, the. payments thus made cannot be imputed otherwise by the court,
    ON APPLICATION FOR A REHEARING.
    1. Louisiana Digest — Imputation—Par. 1.
    The debtor has the first right to make the imputation; if he does not exercise this right then it appertains to the creditor; if neither makes the imputation the law makes it for them.
    Appeal from Ninth Judicial District Court of Louisiana, Parish of Rapides, Hon. L. L. Hooe, Judge.
    This is a suit to recover on two accounts, a rent account and an open account. The rent account was coupled with a provisional seizure of furniture. The Hemenway Furniture Co., Ltd., intervenor, claimed balance due on purchase price covered by a chattel mortgage which they hold.
    There was judgment for plaintiff and intervenor appealed.
    Judgment affirmed.
    Lamar Polk, of Alexandria, attorney for plaintiff, appellee.
    Hakenyos, Scott & Provosty, of Alexandria, attorneys for intervenor and appellant.
   STATEMENT OF CASE.

REYNOLDS, J.

In suit No. 16,535 on the docket of the Ninth Judicial District Court of Louisiana, Parish of Rapides, L. L. Brice sued D. H. Rutledge for $117.00 rent and on open account for $52.00 and obtained writs of provisional seizure under which all of the furniture on the rented premises was provisionally seized.

Judgment in favor of the plaintiff for $50.00 on the open account and for $117.00 on the rent account and recognizing plaintiff’s lessor’s privilege on the property seized and ordering it sold and the proceeds applied to plaintiff’s judgment for rent in reference to all other claims wa3 signed by Judge R. C. Culpepper on February 13, 1925.

On January 20, 1925, Hemenway Furture Company, Limited, intervened in suit No. 16,535, claiming judgment against D. H. Rutledge for $498.70 for balance due on the purchase price of the furniture seized and claimed to be paid by preference out of the proceeds of the sale thereof by virtue of its vendor’s privilege and a chattel mortgage on the furniture.

On these issues the case was tried and there was judgment in its favor and against D. H. Rutledge for $498.70 and recognizing its vendor’s privilege and mortgage on the property seized and ordering the same sold and intervenor paid out of the proceeds thereof in preference to all other creditors except the judgment of L. L. Brice for $117.00 for rent.

From this judgment Hemenway Furniture Company, Limited, appealed.

OPINION.

The question first presented is as to the imputation of payments made by D. H. Rutledge to L. L. Brice.

These payments were credited by Brice on his open account.

Intervenor claims that the cash payments ¡made by Rutledge to Brice should have been -.imputed to the claim for rent and. that it extinguished it, for the reason that .the .rent account was the most onerous debt, and that the payments were made, without any agreement as to how they should be credited and that therefore . the law imputed them to the rent claim, and insists with great earnestness that plaintiff gave D. H. Rutledge receipts from time to time without having any ■ imputation of.- payments on same and that therefore the law imputes the payments to the rent account.

This contention of intervenor, in our op.inion, is not sound, for the reason that the receipts referred to by intervenor are not -. receipts but statements . showing the balance due by. Rutledge and are in accordance .. with plaintiff’s account which showed that plaintiff, kept two accounts against D. -H. Rutledge, one an account for goods purchased and one for rent, and the credits that intervenor is now asking to have decreed .to have extinguished plaintiff’s rent account were at the time they were made credited by L. L. Brice to D. IT. Rutledge on his open account.

Plaintiff -testified, page 20:

“Q., Had you, at.any time previous to this, advised Mr. Rutledge as to the imputation of the payments made by him?
“A. I did.
“Q. Then he knew to what account you were crediting the payments made by him ?
“A. He did.

Plaintiff is corroborated in this testimony by the fact that he presented to D. H. Rutledge two accounts for the balance claimed by him, one showing $52.09 balance due oh open account, and one showing $117.00, balance due on rent account, and D. H. Rutledge signed each of said accounts as being correct.

From the decision of the District Judge we think that he accepted and gave weight to this testimony of the plaintiff, and we think his finding of fact was correct.

Having reached this conclusion,' as to imputation of payments, we find it unnecessary to. pass on the other issues ably presented in .the brief.

It is therefore ordered, adjudged and decreed that the judgment of the lower court be affirmed.

ON REHEARING

ODOM, J.

Counsel for intervenor, appellant, in their application for a rehearing, say:

“That there was error in law in.'/holding that credits made by L. L. Brice oir'B. H. Rutledge’s open account, without,the, /knowledge or consent of Rutledge, shó'hld be imputed to the open account.”

The court did not hold that.

The record shows that at the time' Rutledge made the payments they were credited by Brice on the open account for goods and merchandise purchased by Rutledge with his full knowledge. ' ■ ,

Brice says that he informed Rut-ledge that he was crediting the amounts paid--by -him to his open account. . ■ -.

Counsel for intervenor, appellant, say that Brice repudiated this statement oneross'-examination. But we thikk they are-in error.

Brice was asked, on eross-e'xamination, to' explain what the word “imputatioIill,'''rileaht, and he failed to give a- satisfactory • explanation of the meaning of -the word.

But on page 20 of the testimony,.jje,,-was asked: ... .....

“Then, he knew to what account yoii were crediting the payments made,to.,him? ,

And he answered:

“He did.

And on page 24 he was asked:

“When I asked you the question as to whether or not certain credits had been imputed or applied to the open or the rent account, you knew what I meant?

And he answered:

“Yes, sir.”

Brice’s testimony on this point is strongly corroborated by the fact that Rutledge approved a statement showing that he was due $117.00 on the rent account and another statement showing that he was due $52.09 on the open account.

Rutledge, the debtor, made no request that the amounts paid by him be imputed to the rent account, except on one occasion he gave Brice, the creditor, a check for $20.00 and wrote on the check “For rent”. The rent account was credited with this amount.

If he had intended that other amounts paid by him be credited on this rent account he would, no doubt, have made the request. ' But he tacitly, at least, acquiesced in the imputation of the payments on this open account, and when he approved the statement showing the balance due for rent he ratified the imputation made by the creditors.

In the case of Bloodworth vs. Jacobs, et al., 2 La. Ann. 26, the court said:

“The debtor has the first right to make the imputation; if he does not exercise this right then it appertains to the creditors; if neither makes the imputation the law makes it for them.”

See, to the same effect:

Flower & King vs. O’Bannon, 43 La. Ann. 1042, 10 South. 376, and the authorities there cited.

Rehearing refused.


text:
    No. 2338
    Second Circuit Appeal
    WILLIAM M. McMULLEN v. LOUISIANA CENTRAL LUMBER COMPANY
    (June 6, 1925, Opinion and Decree.)
    (July 11, 1925, Rehearing Refused.)

      (Syllabus by the Editor.)

    1. Louisiana Digest — Master and Servant —Par. 159 (a), 160 (j).
    Where the evidence shows that the injured employee, suing under Workman’s Compensation Act, is able to do work to some extent, and hence that his injury has produced partial disability to' do work of any reasonable character, he is entitled to receive sixty per cent of the difference between the wages he was receiving at the time he was injured and the wages he is able to earn at this. time. Under Section 8, Paragraph 1 (c) of Act 20 of 1914,
    (The recent amendment to Section 8 of Act 20 of 1914 is Act 216 of 1924. Ediditor’s note.)
    2. Louisiana Digest — Master and Servant —Par. 160 (j), 160 (l).
    Where the lower court in deciding a workman’s compensation case, Act 20 of 1914 failed to take evidence to show the difference between the amount of wage that plaintiff was receiving at the time of accident and at the time of trial, the case will be remanded to the lower, court for the taking of evidence on that point.
    ON APPLICATION FOR A REHEARING.
    3. Louisiana Digest — Master and' Servant —Par. 154. ,
    Under the Workman’s Compensation Act No. 20 of 1914, Section 2, Subsection 1, and other sections, the term “accident” includes injury from muscular strain or physical over-exertion such as hernia- or rupture, or bursting of blood vessels. Thi# is true although the physical condition of the employee' is such as to predispose him to the injury. But it has been held there must be a definite particular occurrence to which, the injury can be attributed.

      4. Louisiana Digest — Master and Servant —Par. 159.
    Where the injury to injured employee is accelerated by a diseased bodily condition, he may nevertheless, receive compensation under the Workman’s Compensation Act No. 20 of 1914.
    5. Louisiana Digest — Master and Servant —Par. 158.
    In order for an injured employee to recover compensation under the Workman’s Compensation Act No. 20 of 1914, Section 1, Paragraph 2, it is necessary for him to show that the injury, a hernia in this case, was caused by a .strain while he was in the employment of the defendant.
    Appeal from the Thirteenth Judicial District Court of Louisiana, Parish of Caldwell, Hon. F. F. Jones, Judge.
    This is a suit by an injured employee for the recovery of compensation under the Workman’s Compensation Act No. 20 of 1914.
    There was judgment for plaintiff and both plaintiff and defendant appealed.
    Judgment affirmed but case remanded for the taking of evidence on the question of the amount plaintiff has been able to earn since injury.
    The case was remanded for a new trial on all points involved reserving the right of the plaintiff to apply for a rehearing.
    Huey P. Long, of Shreveport, attorney for plaintie, appellee.
    Thornton, Gist & Richey, of Alexandria, attorneys for defendant, appellant.
   REYNOLDS, J.

In this case William M. McMullen sues to recover judgment against Louisiana Central Lumber Company for $7,200.00, payable at the rate of $18.00 week for four hundred weeks, for an accidental injury caused plaintiff while he was tightening a bolt with a 16 or 18-inch wrench while standing on the box of the axle of an American Log Loader.

Defendant denies liability on the ground that the injury from inguinal hernia was not caused from an accident which plaintiff suffered while engaged in the discharge of his duties as an employee of defendant.

On these issues the case was tried and there was judgment for plaintiff granting him judgment for $18.00 per week for 300 weeks.

Both plaintiff and defendant appealed.

The first question presented for our determination is whether or not plaintiff received the injury that caused the inguinal hernia while he was engaged in the course of his employment with defendant.

On this point plaintiff testified, pages 2, 3, 6, 13:

"Q. How were you hurt, if at all?
“A. A drum came loose and I was tightening up the studs put down between the timbers, and I gave a pull on the wrench a pain struck me in the side.
“Q. What side?
“A. The right side.
“Q. In what region of the body?
“A. In the lower right side.
“Q. How did it affect you at that time?
“A. It came with a bad pain.
“Q. What did you do then?
“A. Well, I called one of the tongue hookers to come and tighten it up for me.”
“Q. State whether or not you suffered any more pain that time?
“A. Yes, sir. It hurt pretty bad. I worked two days after that and went to bed.
“Q. What physician, if any, did you go to or attend you?
“A. A few days after that I went to Dr. Joyner.
“Q. He is a physician and surgeon for the Louisiana Central Lumber Company?
“A. Yes, sir.
“Q. Did he tell you what was the matter with you ?
“A. He told me .that I was ruptured, and told me to go and see Dr. Gardner, so I went to see Dr. Gardner and he told me that all I needed was a truss.
“Q. What did he call it, rupture, hernia or what?
“A. He didn’t say, tie called me in the back room and wapted to fix me a truss but he did pot have one and said for me to come back as it would be two or three days before he could get one.”
“Q. What injury, if any, or ailment did you have about this right side of yours before the accident happened?
“A. None.
“Q. What, if anything, had been the matter with you in a serious way before this time?
“A. There had been nothing the matter with me.
“Q. Had you experienced this same kind of pain before this- accident happened to you, when you say you pulled on this wrench?
“A. No, sir.”
“Q. What were you doing when you received the injury — what particular thing?
“A. I was tightening up some studs on the drum bolts.
“Q. What position did you have to get in to to that?
“A. I was standing on the box of the axles.
“Q. Did you stand erect or standing in a stooping position?
“A. The. way a man has to stand when he has no room to do anything.”

Claude McMullen testified, pages 14, 15, 16:

“Q. State just what he was doing at the time?
“A. He was tightening up the box on the drum.”
“Q. What was he standing on?
“A. He was standing on the axle of the loader or box.”
“Q. What happened — what unusual thing happened then?
“A. He hollered and said he couldn’t tighten up this box and so I called a negro to go and tighten it up for him.
“Q. Did he complain of any pain after that?
“A. Yes, sir.”

From this evidence we must conclude that plaintiff is able to do work to some extent, and hence that his injury has produced partial disability to do work of any reasonable character and he is entitled to receive sixty per cent, of the difference between the wages he was receiving at the time he was injured and the wages he is able to earn at this time.

The evidence failing to establish what this difference is, this case must be remanded to the lower court for the determination of this question only.

Por these reasons it is ordered adjudged and decreed that the judgment of the lower court, insofar as it holds that plaintiff is entitled to recover judgment in some amount, be and the same is hereby affirmed, and the case is remanded to. the lower court for the taking of evidence on the question of the amount plaintiff has been able to earn since the injury or is able to earn at this time.

ON APPLICATION POR REHEARING.

Defendant’s counsel, in a very able brief, call attention to the fact that plaintiff did not testify that in pulling the wrench he strained, and also call attention to the definitions of “accident” and “injury,, as contained in the workmen’s compensation law, cite the cases of Tackles vs. Bryant & Detwyler, 200 Mich. 350 (167 N. W. 36), Alpert vs. Powers, 223 N. Y. 97 (119 N. E. 229), Cavalier vs. Chevrolet Motor Co., 178 N. Y. Supp. 489, and Schneider on Workmen’s Compensation, volume-1, page 837, and DaCosta on Modern Surgery, page 973, and argue with great plausibility that as nothing particular happened when plaintiff felt the pain in his side, but was only performing his usual work, he has not proven any compensable injury under the workmen’s compensation law.

We think it will be conducive to clarity to consider the question of law and the question of fact.

In “Workmen’s Compensation Acts”, a Corpus Juris treatise by Donald J. Kiser, issued by The American Law Book Company and intended as a part of Corpus Juris, we find the following statement of the law on page 68.

“The term ‘accident’, as employed in the compensation acts, is broad enough to include a injury from muscular strain or physical overexertion, (41) such as hernia or rupture, (42) or bursting of blood vessels, (43). This is true although the physical condition of the employee is such as to predispose him to the injury, (44). But it has been held there must be a definite particular occurrence to which the injury can be attributed, (45).”

Under note 42, relating to hernia or rupture, are cited the following cases.

Bell vs. Haynes-Ionia Co., (Mich.) 158 N. W. 179.

Robbins vs. Original Gas Engine Co., (Mich.) 157 N. W. 437.

Zappala vs. Industrial Ins. Comm., 82 Wash. 314, 144 Pac. 54; L. R. A. 1916 A. 295.

Peccardi vs. Pub. Service Comm., 75 W. Va. 542, 84 S. E. 242; L. R. A. 1916 A. 299.

Fenton vs. Thorley, (1903) A. C. 443, 5 W. O. C. 1.

Brown vs. Kemp, 6 B. W. C. C. 725.

Fulford vs. Northfleet Coal Co., 1 B. W. C. C. 222.

Under notes 41, 43, 44, 45, 46 and 47 are also cited:

“Acceleration of a .diseased bodily condition may constitute a personal injury, (46) and an injury may be by accident, although it would not have been sustained by a perfectly healthy individual. (47)."

Under notes 41, 42, 43, 44, 45, 46 and 47 are also cited numerous cases.

We have not had opportunity to examine these cases but we think the principle of law laid down is sound, and, in fact, do not understand defendant’s counsel directly to question it.

We have not had opportunity either to examine the cases cited by them except Alpert vs. Powers, 119 N. E. 229. This case we do not understand as questioning the doctrine. The decision is placed expressly on the ground that as a matter of fact the hernia dealt with was not produced by any strain. In fact the plaintiff admitted that he did not have anything like an accident happen to him, and did not undergo any extra strain and could not account for the occurrence of the rupture. At the time of the injury he was engaged in lifting bundles of paper weighing forty to sixty pounds, putting them on his shoulder and carrying them up two or three steps and had been doing this same thing twenty times a day for several years. He was only twenty-five years old.

We gather from defendant’s discussion of the Tackles case that in it, too, the court found no connection between any strain and the injury which developed ten days after lifting the timber, to which lifting he sought to attribute it. If the court found as a matter of fact that there was no strain or that the strain was wholly disconnected from the injury, the decision is in line with the text cited from- Corpus Juris; and this is probably the case. If, on the contrary, the court held that though there was a strain and though the strain did produce the injury yet it was not a compensable injury within the meaning of the compensation law, we cannot hold that such is the case within the Louisiana Compensation Law.

We find in “Workmen’s Compensation Legislation of the United States and Canada”, being Bulletin No. 272, issued by the United States Bureau of Labor Statistics, an interesting discussion of the question of hernia as dealt with under the workmen’s compensation acts of various states. It appears there is some conflict between the .various courts of the -United States on the question but we believe--the text--cited above from Corpus Juris represents the majority view.

II.

Was the hernia in this case produced or accelerated by any strain in pulling on the wrench?

Doctor Cassity testifies:

“Q. I will ask you to please state, if assuming that this party did have a serious strain, or sudden jerk, as he alleges' he had, could a sudden jerk with a wrench have caused an inguinal hernia?
“A. Yes, sir.
“Q. I will ask you, assuming that there was a hernia developing already in the process of developing, is it possible or probable or natural for a hernia in the process of developing to be aggravated, by reason of such a sudden jerk or strain?
“A.Yes, sir, that is the very thing that causes hernia to develop.”

Doctor Sanderson testifies:

“Q. I will ask you if a hernia that is started or.in the process of developing, or not in the process of developing, could be aggravated and brought on by or made acute by a wrench or trauma?
“A.'' It could.
“Q.. Did this man give you a history of his case?
“A.' Yes, sir.
“Q. What was that history as reported to you?
“A. He said that while working on a loader or some kind of machine he was handling a very heavy wrench and was sort of stooped in a twisted position- and pulled suddenly on the wrench and had severe, acute pains in the right groin.”

Doctor Hines testifies:

“Q.” Doctor, if this man, assuming that this' plaintiff, ' sixty years of age, was pulling at the end of a sixteen-inch wrench trying to turn a bolt and while so pullling it he experienced a sudden and severe pain in the right- inguinal region, such as he had; that he called to some one to come and do the work for him and made some exclamation' of pain, isn’t it your opinion that is - what caused the hernia if in two or ,thre,e days,he had to quit his work and go to k physician for treatment of hernia?
“A. It might be possible. Assuming 'there had never been any pain or trouble in that re'gion before that, I would say yes.”

Doctor Hines' was a witness for defendant and the other two doctors testified for plaintiff. The questions propounded to

the three doctors, it will be observed, were not the same but that propounded to Doctor Hines referred solely' to pulling without any allusion to jerks.'

Plaintiff testifies':

“Q. What, if anything, had been the matter with you, in a Serious way, before this time?
“A. There had been nothing the matter with me.
“Q. Had you experienced this same kind of pain before this accident happened to you, when you say you pulled on this wrench?
“A. No, sir.”

It is true that plaintiff nowhere states that in the particular pulling in question there .was any strain or any greater exertion than had been used before; perhaps, though, from a fair interpretation of his testimony, taken as a whole, a strain might well be inferred. He was screwing up a nut which became loose and we do not doubt that in doing so he could have strained. We do not think the fact that this was one of his regular duties would bar recovery if as a matter of fact the strain did produce the hernia. The strain might have been somewhat harder than usual or even if no harder the hernia might have been in process of developing and might have arrived at a stage where a strain no. harder than customary could have produced it.

However, inasmuch as there will have to be another trial in order to ascertain the plaintiff’s earning capacity since the injury, we think the purpose of justice will be subserved by reopening the case for, all purposes.

Inasmuch, though, as this is a modification of our previous decree, to the prejudice somewhat of the plaintiff, the right is reserved to him to ask for a rehearing.

For these reasons it is decreed that the rehearing asked for by defendant be denied but that the new trial to take place in the District Court be of the whole case and not merely on the question of plaintiff’s earning capacity.

It is further decreed that the right to apply for a rehearing be granted plaintiff.


author: CARVER, J.

text:
    No. 2356
    Second Circuit Appeal
    H. D. CHANDLER v. OIL FIELDS GAS COMPANY, INCORPORATED
    (June 30, 1925, Opinion and Decree)
    (July 11, 1925, Rehearing Granted.)
    (October 20, 1925, Compromised)

      (Syllabus by the Editor.)

    I. Louisiana Digest — Master and Servant— Par. 160 (e), 160 (I).
    Where an injured employee suing under the Workmen’s Compensation Law, Act No. 20 of 1914, asked for compensation for 400 weeks but received a judgment for 125 weeks he does not by accepting weekly compensation after the judgment thereby acquiesce in this judgment.
    (Code of Practice, Art. 567 does not apply. Editor’s note.)
    ON THE MERITS.
    2. Louisiana Digest — Master and Servant— Par. 159, 159 (a), 160- (j).
    Where the evidence shows that the injured employee suing for compensation under the Workmen’s Compensation Law, Act No. 20 of 1914, was so injured that he cannot walk on his foot without the use of crutches ■ he can recover compensation under Section 8, Subsection 1 (b) as for injury producing permanent total disability during the period of disability not exceeding 400 weeks.
    3. Louisiana Digest — Master and Servant — ■ Par. 154, 159, 159 (a).
    The clause in Section 8, Subsection 1 (d) of the Workmen’s Compensation Law, Act No. 20 of 1914, which states that “The permanent total loss of the use of a member shall be equivalent to the amputation of a member,” does not apply where the employee is so injured that he is totally disabled to do work of any reasonable character. In that case Section 8, Subsection 1 (b) applies.
    (The recent amendment of Section 8 of Act No. 20 of 1914, is Act No. 216 of 1924,' Editor’s note.)
    Appeal from First Judicial District Court of Louisiana, Parish of Caddo, Hon. E. P. Mills, Judge.
    This is a suit for compensation under the Workmen’s Compensation Law, Act No. 20 of 1914, Act amended by Act 43 of 1922, brought by an injured employee for compensation.
    There was judgment for plaintiff and plaintiff appealed.
    Judgment increased and affirmed.
    Huey P. Long, of Shreveport, attorney for plaintiff, appellant.
    John B. Files, of Shreveport, attorney for defendant, appellee.
   CARVER, J.

Plaintiff sues for compensation under the Workmen’s Compensation Act (Act No. 20 of 1914, as amended by Act No. 43 of 1922).

He alleges total disability and claims $18.00 per week during disability, not exceeding 400 weeks, under clause (b) of Subsection 1 of Section 8.

This clause reads as follows:

“For injury producing permanent total disability to do Work of any reasonable character, sixty per centum of wages during the period of disability, not, however, beyond four hundred weeks.”

He appeals from a judgment awarding him $18.00 a week during, disability, not to exceed 125 weeks.

Previous to the time of trial he had received $108.00, being six months’ compensation, for which the judgment gives credit.

In this court the defendant moved to dismiss the appeal on the ground that plaintiff had acquiesced in the judgment of the lower court by receiving compensation of $18.00 per week up to June, 1925.

It is admitted by counsel for plaintiff that he did demand and receive compensation as fixed in the judgment prior and subsequent to the time the appeal was taken, though it is not stated in the admission how much compensation was received since the judgment was rendered.

ON MOTION TO DISMISS

On the authority of Kittridge vs. Grau, 158 La. 154, 103 South. 723, we think the motion to dismiss must be overruled.

In that case plaintiff sued to be declared the owner of certain stock and, in the alternative, for a money judgment for the value of the stock. They obtained judgment in the lower court for twenty-eight hundred and odd dollars, which was less than they . claimed. They took an appeal, which they characterized as both a suspensive and a devolutive appeal. After the time allowed for taking a suspensive appeal had expired, defendants filed an answer to plaintiff’s appeal, praying that the judgment be amended by reducing the amount to sixteen hundred and'odd dollars. Thereafter plaintiff’s attorney had the judgment of the lower court recorded in the mortgage office. Defendants moved to dismiss the appeal on the theory that the recording of this judgment was an execution of it and therefore an acquiescence in it.

The court overruled the motion to dismiss, pointing out that Article 567 of the Code of Practice, which provides that the party against whom a judgment has been rendered cannot appeal if he has acquiesced in same by executing it voluntarily was founded expressly upon the theory of acquiescence and that plaintiff had not acquiesced in the judgment of the lower court so far as it was against him by recording the judgment awarding him part of what he claimed in the alternative.

In this case plaintiff is claiming $18.00 per week for 400 weeks. We do not think that his acceptance of $18.00 per week as time goes on is an acquiescence in the judgment limiting his right to 125 weeks.

Counsel for appellee seeks to differentiate this case from the Kittridge case by saying that in that case the appeal was from the judgment only insofar as it rejected their demands, whereas in this case the appeal is from the judgment generally.

It is true in the Kittridge case the court says:

“The plaintiffs in this case appealed from the judgment only insofar as it rejected their demand.”

We do not understand this to mean, though, that in their appeal the plaintiffs specified that it was from the judgment so far 'as it rejected their demand but only that that was the logical effect of the appeal which was taken.

Counsel for appellee cite the case of Mountz vs. Dyer, et al., 158 La. 383, 104 South. 123.

We do not think this case in point. The question there was not one of acquiescing in a judgment but one of contesting in an action of nullity the jurisdiction of the court ordering executory process in a previous suit after the appearance in said previous suit for the purpose of appealing from the order decreeing executory process, said appearance being general and not limited to questioning the court’s jurisdiction.

The motion to dismiss is overruled.

ON THE MERITS

The only evidence in the case is the testimony of the plaintiff himself.

He testified that oil April 30, 1924, he received an injury to his ankle in an accident arising out of and in the course of his employment with the defendant. He says his ankle was broken just at the joinder of his instep with the leg and in two places above there.

The trial was had on October 15, 1924, up to which time, he says, he had not been able to work.

He also says that it pains him, that he cannot walk on it, that he has to use crutches, and that he cannot bear to put anything on it. He says that if he puts his weight on it and walks, it seems to hurt all through his leg. He says he can get about on his crutches but cannot turn them loose and do anything.

Without detailing the injury any further, it is sufficient to say that the appellee does not really dispute the disability. His sole argument is that the applicable clause of the compensation act is the one reading:

“The permanent total loss of the use of a member shall be equivalent to the amputation of a member.”

Under which plaintiff would only have the right to sixty per centum of w'ages during 125 weeks as for the loss of a foot.

It is true that the evidence does show total loss of the use of the foot, but it also shows a good deal more than this. We are satisfied that the condition of his foot does, as he claims, render him totally disabled to do work of any reasonable character. If it does, then clearly either Clause . (a) or Clause (b) of Subsection 1 of Section 8 is applicable. If the clause contended for by appellee was also applicable then the court would be required to determine which of two equally applicable clauses should be actually applied. In such case it would not be consistent with the jurisprudence requiring an' interpretation liberal to the employee to apply that clause giving the lesser compensation.

We think, however, that the clause contended for by appellee is not applicable because that clause, in our opinion, only applies where the injury is limited to a total loss of the use of a member.

As pointed out above, though, it is not so limited in this case. He has not only lost the use of a member but it is in his way, causes him pain and hampers him in his needful activities. To say that everything is to be ignored except the fact of the loss of the use of the foot seems to us unwarranted in reason.

Although the judgment of the lpwer court, as signed, only gives compensation during disability, not exceeding 125, weeks, we think the intention was to give it for 125 weeks fixed, as for the loss of a foot. The minute entry seems to support this view.

We are constrained, though, • to . differ from our learned brother of the lower court and to hold that inasmuch as. the injury has resulted in total disability compensation should be awarded on that basis; as the disability had not ceased at the .time of the trial and as it would be purely speculative on our part to indulge in any opinion as to when, if ever, it will cease; and as after a year from the time the judgment becomes operative the defendant will have the right to review the judgment, we think it proper to apply Clause (b) of Subsection 1 of Section 8 quoted above.

For these reasons it is ordered, adjudged and decreed that the judgment of the lower court be amended by decreeing plaintiff entitled to compensation of $18.00 per week during disability, not exceeding 400 weeks, subject to the credit of $108.00 allowed in the judgment of the District-Court, and subject, also, to whatever compansation he has received beyond the $108.00 so credited, each weekly payment to bear interest at the rate of 5% per annum from its maturity until paid. Defendant to pay the costs of both courts. And as thus amended the judgment appealed from is affirmed.


author: CARVER, J. CARVER, J. ODOM, J.

text:
    No. 1814
    Second Circuit Appeal
    MRS. MAE WALKER, ET AL., v. L. T. WALLER, ET AL.
    (March 17, 1925, Opinion and Decree.)
    (March 30, 1925, Rehearing Granted.)
    (October 21, 1925, reversed and remanded for a new trial.)

      (Syllabus by the Editor.)

    1. Louisiana Digest — Minors—Par. 188.
    A tutor ad hoc appointed to represent a minor who signs an acknowledgment of citation reading: “I hereby acknowledge service of copy of petition and citation in this case, reserving time and delays, this September 25, 1907,” does not waive citation . but acknowledges it and is within his authority granted by law.
    ON APPLICATION FOR A REHEARING
    2. Louisiana Digest — Pleading—Par. 62.
    For the purposes of the trial of an exception no cause of action the allegations of petition must be accepted as true.
    3. Louisiana Digest — Pleading—Par. 62.
    Where an allegation of the petition denies that any service of citation and petition was made on a tutor ad hoc and claims the proceedings a nullity, an exception no cause of action by the defendant should be overruled.
    4. Louisiana Digest — Absentees—Par. 27; Citation and Appearance — Par. 46.
    The acknowledgment by the tutor ad hoc that service of petition and citation was made upon him will not be accepted by the court as conclusive proof of r the fact of the issuance and service . of citation when the verity of such acknowledgment by him is challenged.
    Appeal from Third Judicial District Court of Louisiana, Parish of Claiborne, Hon. J. E. Reynolds, Judge.
    This is a suit to annul a judicial partition of land. There was an exception no cause of action filed which was sustained. Plaintiff appealed. Judgment affirmed.
    On a rehearing judgment reversed, exception no cause of action overruled, and case reinstated on the docket of the district court to be proceeded with according to law.
    Theus, Grisham & Davis, of Monroe, attorneys for plaintiffs, appellants.
    Smitherman and Tucker, of Shreveport, attorneys for defendants, appellees.
   CARVER, J.

Plaintiffs sue to annul a judicial partition of land in which they had an interest, on the ground that at the time of the partition they were minors without a Tutor and that a Tutor ad hoc appointed to represent them in the partition suit waived service and citation, which he was without authority to do.

In the following cases it was held that Tutors ad hoc and Curators ad hoe had no such authority. , >

Cornier vs. De Valcourt, 33 La. Ann. 1168.

Hill vs. Barlow, 6 Rob. 142.

Stockton vs. Haslock, 10 Mar. (O. S.) 472.

Jacobs vs. K. C. S. & G. Ry. Co., 134 La. 389, 64 South. 150.

But in this case, the record in the partition suit, produced and filed by plaintiffs in response to a prayer for oyer, shows that the Tutor ad hoe did not waive service or citation but instead signed an acknowledgment reading as follows:

“I hereby acknowledge service of copy of petition and citation in this case; reserving time and delays. This September 25, 1907.”

It was held in Millaudon vs. Beazley, 2 La. Ann. 916; Bartlett vs. Wheeler, 31 La. Ann. 540, and Fly vs. Noble, 37 La. Ann. 671, that such an acknowledgment was not a waiver but, on the contrary, was an admission that service and citation had been properly made and therefore the case did not fall under the principle announced in the cases first above cited.

Those secondly cited seem controlling in this case, so, in our opinion, the judgment of the lower court dismissing the suit on an exception of no cause of action was correct and it is affirmed.

Reynolds, Judge, being recused, took no part in the decision.

ON APPLICATION FOR REHEARING.

In our opinion in this case we said:

“But in this case the record in the partition suit produced and filed by the plaintiff in response to the prayer for oyer, shows that the Tutor ad hoe did not waive service of citation but instead signed an acknowledgment reading as follows: T hereby acknowledge service of a copy of petition and citation in this case, reserving time and delays’.”

The plaintiff brought this suit to annul the partition on the ground, as we understood it, that the Tutor ad hoc waived citation. In their petition reference is made to the waiver of citation by the Tutor ad hoc. On looking over the record we saw that the Tutor ad hoc had accepted service of citation and petition. The wording of the acceptance implies that a citation had in fact issued and that it with petition was actually served on him.

Plaintiffs, in application for rehearing, set up that, as a matter of fact, no citation ever issued and that, therefore, the acknowledgment of the Tutor ad hoc that it was served on him is false. This point was not raised or presented to us originally.

Rehearing granted.

ON A REHEARING

CARVER, J.

In their application for rehearing, counsel for defendants do not claim that the cases of Blackwell vs. Campbell and Miller vs. Secton, which our opinion, on rehearing followed, are not decisive of the question now before the court, but say that the ruling in these cases and our ruling on rehearing herein are contrary to the decisions of the Supreme Court in the cases of Millaudon vs. Beazley, 2 La. Ann. 916; Bartlett vs. Wheeler, 31 La. Ann. 540, and Fly vs. Noble, 37 La. Ann. 667.

These decisions we hold inapplicable here for the reason that in this case an attack was made' on the verity of the curator’s acknowledgment of service whereas in those cases no such attack was made.

Counsel say that we misconstrued these decisions and that a careful reading of them will show that such attack was made. We have reread them and are satisfied that we made no error in our construction.

In the Millaudon case — being a suit defended by a curator ad hoc — the curator in the lower court did not plead non issuance or even non service of citation hut plead as exceptions want of authority to appoint a curator and want of amicable demand, which exceptions being overruled, he filed an answer to the merits and pleas of prescription. In the Supreme Court he contended that no service had been made on him and that he was without authority to waive service. He still- did not claim that citation had not been issued. The court said:

“The curator, in the present instance, as far as appears from the record, waived none of the rights of the party whom he was appointed to represent. There was no waiver of citation nor of service of the petition, but the written acknowledgment of the curator is that both were served on him.”

In the Bartlett case, which was a suit to annul a judgment against an absentee represented by a curator ad hoc, the alleged ground of nullity was not that citation had not issued but "that the curator ad hoc had not been cited”. The court said that in the curator’s answer in the original suit he had acknowledged that he had been duly cited, and held that under the Millaudon case he could validly acknowledge service. The court does not say or intimate that no citation had ever issued in the original suit or that the suit to annul was based on any such claim.

In the Fly case (also a suit to annul a judgment rendered against an absentee represented by a curator ad hoc) it was not alleged that citation had not issued in the original suit, the allegation being that the curator “waived service of necessary proceedings”. The court said:

“The curator ad hoc does not appear to have waived service of necessary proceedings. He acknowledged service of the petition and citation for the homologation of the account. The acknowledgment implies an admission of actual service.”

All these cases were tried on their merits. The allegations were not that no citation had issued and that therefore the curator’s acknowledgment was false, but were respectively as follows:

“No service had been made.”
“Had not been cited.”
“Had waived service.”

In each case the curator had acknowledged that service of petition and citation had been made. There was nothing in the record in any of these cases to impeach the truth of this acknowledgment. Here the case comes to us on an exception of no cause of action. The petition in this case, inferentially at least, alleges that the acknowledgment of service is false. What the petition says is: “That no citation issued”. If none issued, of course none could be served, and the acknowledgment of the curator that he was served cannot be true. When the case was tried on its merits it may appear that the curator’s acknowledgment of service is true, but we think plaintiff entitled to a trial on the allegation which he made in substance that it is not true.

Counsel also ask us to consider the case of Mitchell and Remmelburg Furn. Co. vs. Simpson, 40 Fed. 811, which we have done, but we find nothing in that case contrary to the views herein expressed.

Plaintiff in that case brought suit in Florida on three judgments which had been rendered and subsequently revided in Louisiana. Two of the revivor judgments were held void, there being neither proof of service on the curator nor acknowledgment of service by him. Both the original judgment and the judgment of revivor in the third case were held valid. In the original suit no mention was made of defendant’s being an absentee or of any curator ad hoc being appointed, but an answer was filed by counsel beginning as follows:

“And into this honorable court come defendants by their undersigned counsel who for answer” etc.

We take it that this was a voluntary appearance of defendants by counsel of their own selection. Of course such an appearance was a waiver of citation by the defendants themselves. The court said:

“In the suit to revive said judgment citation was issued to Simpson Brothers. The sheriff returned that after due and diligent injuiry and search he was unable to find Simpson Brothers, defendants, but was credibly informed that they were out of the State of Louisiana and resided in the State of Florida; that thereupon, on suggesting the citation and return thereof, the court appointed a curator ad hoc to represent the absent defendants; and that eight days thereafter the said curator ad hoc filed an answer acknowledging the service of petition and citation, and pleading general denial. These proceedings seem to be regular and valid.”

From the above quotation it is seen not only that no claim was made to the effect that citation had not issued but, on the contrary, the record affirmatively showed that one addressed to Sampson Brothers had issued.

Rehearing refused.

ON REHEARING

ODOM, J.

The plaintiffs bring this suit to set aside the sale of certain property situated in the Parish of Claiborne in which they claim to own an interest sold under a judgment ordering a partition thereof.

They allege that at the time the judgment was rendered and the sale made they were minors and had no tutor but that the court undertook to appoint a tutor ad hoc to represent them.

It is specifically alleged:

“That the said pretended sale was an absolute nullity insofar as your petitioners were concerned, for the reason that they were minors at that time, and were not ■made parties to the pretended partition suit.”

And that:

“That there was no citation issued in the said cause, for the purpose of bringing the said minors into court by service of the same on the said tutor ad hoc, that he was without authority to waive service of such citation or to waive service of copy of the petition, and that his acts in so doing were an absolute nullity, and that accordingly, the judgment rendered against the said minors and the sale thereunder were absolute nullities, at least insofar as your petitioners were concerned.”

And in an amended petition it is reiterated :

“That there was no citation issued in the said cause for the purpose of bringing the said minors into court by service of the same' on the said tutor ad hoc.”

Under a motion and prayer for oyer they file in court a complete record of the partition suit and proceedings under which the property in question was sold, which court ordered the plaintiffs to produce and was accordingly done.

The record brought up and filed shows that on September 25, 1907, the then presiding judge appointed E. H. McClendon, Esq., tutor ad hoc to represent the minor defendants in the suit.

On the same day the tutor ad hoc filed his written acceptance of the trust and the following acceptance of service:

“I hereby acknowledge service of copy of petition and citation in this case, reserving time and delays. This Sept. 25, 1907.
“(Signed) E. H. McClendon,
“Tutor act hoc.”

The record as brought up does not disclose that a citation was in fact issued by the clerk of court directed to the tutor ad hoc or that a copy of the petition was made to be served on him.

There is nothing, therefore, to show that such was done, except the acceptance of service thereof as above shown.

The defendant, upon the filing of the record in this case, tendered an exception of no cause of action, which was sustained by the court and the plaintiffs’ suit dismissed.

The plaintiffs have appealed.

As a cause of action, the plaintiffs set up that at the time the judgment ordering the property sold t'o effect a partition was granted and at the time the sale thereof was made, they were minors and that they were not cited according to law.

As we construe the petition, the plaintiffs make an attack upon the verity of the acknowledgment of service of citation and petition upon the tutor ad hoc.

Counsel for defendants say, in brief, substantially, that the plaintiffs’ petition cannot be construed as an attack upon the correctness of the recitals of the tutor acl hoc. but that it should be construed as attacking the judgment and the sale thereunder because the plaintiffs allege that the tutor ad hoc had no right to waive citation.

It is true that plaintiffs in their petition say that the tutor ad hoc attempted to waive citation, etc., but we think, in view of the fact that plaintiffs have made the specific allegation that no citation was ever issued to be served on the tutor ad hoc as a basis for the suit, it was intended by the pleader to attack and challenge as false the statement of the tutor ad hoc that service of citation and petition was made upon him.

Citation is the foundation of all actions and without it the proceedings are absolute nullities.

The settled jurisprudence of this state is that a curator ad hoc or a tutor ad hoc cannot waive service o£ citation or petition.

This point is not controverted but is conceded by counsel for defendants; but counsel, in support of his contention that the proceeding and sale in this case were valid, has cited a long list of authorities holding that a curator ad hoc may validly acknowledge service of citation and petition, notably the cases of:

Millaudon vs. Beazley 2 La. Ann. 916; Bartlett vs. Wheeler, 31 La. Ann. 540; Fly vs. Noble, 31 La. Ann. 667.

In each of the cases cited the. court held that a curator ad hoc may validly accept service of citation and petition; but in those cases the question whether citation had in fact been issued was not raised but the court assumed that it had issued and that the curator ad hoc in reality accepted service thereof.

In Fly vs. Noble, the court says:

“The curator ad hoc does not appear to have waived service of necessary proceedings. He acknowledged service of the petition and citation for the homologation of the account. The acknowledgment implies an admission of actual service.”

In none of the cases cited was the verity of the curator ad hoc’s acknowledgment of service challenged.

In the cited cases the judgments were not sought to be set aside on the ground that no citation had in fact issued. The court, assumed that citation had issued, and the question was whether the curator ad hoc could accept service thereof so as to bring the absent defendant into court, and the court held that he could.

But in the case at bar the plaintiffs allege that no citation was issued, and when the record in the suit is brought up it contains no evidence of the issuance of any citation nor of the making of a copy of the' petition to be served on the tutor ad hoc.

In the case of Ticknor vs. Calhoun, 28 La. Ann. 259, the court said:

“And after trial and judgment it was discovered that no evidence of the citation on the absentee had been made.”

And—

“The curator ad hoc cannot dir-ectly or indirectly Waive citation.”

In the case of Heirs of Morris Miller vs. J. N. Secton, on the docket of this court, it was alleged that the judgment under which the property was sold was an absolute nullity for the reason that the plaintiffs were never cited.

In that case, as in this, the curator ad hoc signed an acceptance of citation and petition, in the following words:

“I hereby accept the appointment as curator ad hoc in the above and foregoing petition, acknowledge service of the above and foregoing petition and citation.”

The late Judge Porter, as the organ of the court, in the course of his opinion said:

“The evidence conclusively shows that no copy of the petition was ever issued or served upon the curator ad hoc. His purported acknowledgment of the service and citation was a pure fiction, the acknowledgment of something which had no existence. It was to all intents and purposes a waiver of something which was essential to his existence as curator ad hoc and to his authority to represent them.”

And in the case of Wallace Blackwell, et al. vs. Cicero Campbell, No. 1052 on the docket of this court, a sale was attacked on the ground that it was void for want of service of petition and citation.

In that case„ a curator ad hoc was appointed and acknowledged service as follows:

“I hereby acknowledge service of the above and foregoing petition and citation. This Nov. 11, 1910.”

The late Judge Dawkins, as the organ of the court, in his opinion said:

“The record in that case is bare of any evidence that any copy of petition or citation ever issued, nor is there anything to show that the sheriff ever made any return into the court. In fact, the record is composed merely of the petition, the curator’s answer and the judgment.”

In the case at bar, the plaintiffs make 'the specific allegation that no citation was issued. If none was issued, the tutor ad hoc could not accept service of one. He could not accept service of that which did not exist. ' Therefore, the' pleadings tendered the issue, not whether a tutor ad hoc may accept service of' citation and petition, but whether proceedings based upon acknowledgment of service of petition and citation by the tutor ad hoc are valid even though no citation was ever issued.

The acknowledgment by the tutor ad hoc that such service was made upon him will not be .accepted by the court as conclusive proof of the fact of the issuance and service thereof; and when the verity of such acknowledgment by him is challenged, it is the duty of the court to hear evidence on that point.

In the case of Blackwell, et al. vs. Cicero Campbell, supra, the late Judge Dawkins, as the organ of the court, used this language:

“To acknowledge service of a document after it has already been made, would be a vain thing. It is well known that acknowledgment of service of petition and citation are made for no other purpose than with the view of dispensing with the service of those documents and the cost arising from the issuing and serving of them. In the light of this common knowledge, the courts should require that proof be made that service in accordance with the requirements of the statute has been made on the curator, even when that individual acknowledges, as in the case in question, that service has been made.”

It is elementary that for the purposes of the trial of an exception of no cause of action the allegations of the petition must be accepted as true.

We think the court should have' overruled the exception of no cause of action and let the case go to trial on its. merits.

For the reasons assigned, it is ordered, adjudged and decreed that tile judgment appealed from be avoided and reversed, and it is further ordered that the' exception of no cause of action be overruled and the case reinstated on the dociet of the district court of Claiborne parish, there to be proceeded with according to law/


author: MOUTON, J. ELLIOTT, J.

text:
    No. 7172
    First Circuit Appeal.
    FRANK G. PRUYN v. GILBERT GAY
    (December 2, 1924, Opinion and Decree)
    (March 3, 1925, Rehearing Granted)
    (June 30, 1925, Rehearing Opinion and Decree.)

      (Syllabus by the Editor.)

    1. Louisiana Digest, Sales — Par. 47; Obligations — Par. 76.
    An agreement to sell real estate in which it is stipulated that the “failure of the purchaser to make said payments (installments, insurance; taxes and assessments) when due shall, ipso facto without demand or putting in default and as a penalty nullify and abrogate the contract” is a promise of sale. And the further stipulation that “sums previously paid for that purpose would be considered as rentals for that property” in case of the failure to make payments agreed upon is a valid agreement which entitles the seller to have the promise of sale erased from the record.
    (Article 2462 of the Civil Code. Editor’s note.)
    ON APPLICATION FOR A REHEARING
    2. Louisiana Digest — Sales—Par. 72.
    The stipulation in a promise of sale that payments on the purchase price and insurance were to be made at certain ' times and in case they were not paid at the time fixed the failure was . to ipso facto nullify and abrogate the contract was for plaintiff’s benefit; but such stipulations could be waived by him and renounced under Article 11 of the Civil Code.
    3. Louisiana Digest — Sales—Par. 69, 72.
    One who receives payments in less sum than stipulated in a promise of sale and made long after the 'expiration of the times fixed for payments and applied to the purchase price by the . . seller, must he regarded as an absolute waiver and renunciation by the ■ ' seller of the stipulation in the contract that failure of purchaser to make the payments stipulated on time will nullify the agreement.
    4. Louisiana Digest — Sales—Par. 73.
    Under Article 2045 of the Civil Code the resolutory condition in .a contract cannot be enforced unless the parties can be placed in the same condition in which they were at the time the contract was entered into.
    5. Louisiana Digest — Sales—Par. 73, 85.
    Where the plaintiff by selling a part of the property covered by a promise of sale has made it impossible for him to make restitution to the defendant for the purpose of placing the parties in the same condition which they were at the time the contract was made as contemplated by Article 2045 of the Civil Code, Judgment must be equitably given under Article 21 of the Civil Code to defendant on his complying with the conditions of the contract.
    Appeal from the Twenty-second Judicial District Court, Parish of East Baton Rouge. Hon. W. Carruth Jones, Judge.
    This is a suit for the cancellation of a promise of sale of immovables.
    There was judgment for plaintiff and defendant appealed.
    Judgment affirmed. But on a rehearing judgment reversed.
    Sanders & Gottlieb, of Baton Rouge, attorneys for plaintiff, appellee.
    Dewey J. Sanchez, Jos. A. Loret, of Baton Rouge, attorneys for defendant, appellant.
   MOUTON, J.

On June 10, 1928, plaintiff and defendant entered into the following contract.

“State of Louisiana Parish of East Baton Rouge.”
“For and in consideration of Seventeen Hundred, Seventy Five no/100 dollars, of which I, F. G. Pruyn, have received in cash the sum of two Hundred and no/100 dollars, and the remainder of which is to he paid to me in quarterly installments of Forty Six and 25/100 dollars each due respectively on the 10th day Of September 1918, and quarterly thereafter at 444 Lafayette Street, Baton Rouge, La., with gight per cent per annum interest on each installment from maturity until paid. I hereby agree to sell to Gilbert Gay the following described property to wit:
“Lots 2-3 and 4 of Square 1 Me Grath Heights with improvements thereon, it is distinctly understood that this promise is made upon the following conditions;
“First — That the contemplated purchaser shall pay all taxes and assessments of any kind that may be due on said property before they become delinquent; and
“Second — That said purchaser pay all the above installments and all insurance promptly and punctually when they become due. The failure of said purchaser to make said payment when due shall ipso jauto without demand or putting in default and as a penalty nullify and abrogate this contract; in which event all sums paid to said Pruyn shall be considered as rental for the use of said property, and any building or other improvements on said property shall remain and become the property of said Pruyn.
“The said purchaser, being here present, accepts this agreement under all the conditions above set forth.”

It will be observed that after declaring in contract that Pruyn had received $200.00 in cash, and fixing therein the quarterly; payments to be made by Gay, the agreement referring to Pruyn, says: “I hereby; agree to sell to Gilbert Gay the property; which is described.” Immediately thereafter, the contract says: “It is distinctly under stood that this promise is made upon the following conditions: First — That the con templated purchaser shall pay all taxes etc.” as appears in the contract above reproduced.

The words used in the instrument: “I hereby agree to sell” and “this promise” give a clear insight into the intention of the parties in entering into this contract. Pruyn promised to do what? Obviously to sell otherwise there would have been no reason for the use of this word “Promise.” Again, the agreement refers to Gilbert Gay as the “contemplated purchaser”. If a sale or its equivalent had been intended, the use of such language would have been unnecessary and out of place.

It will also be^noticed that Gay does not bind himself specifically to pay the installments or insurance stipulated for in the contract. Pruyn would not have been entitled thereunder to a specific performance as Gay had not bound himself to the performance of the conditions mentioned in the agreement. The contract provides also that if Gay failed to pay punctually, the installments and insurance, the contract would be abrogated, ispo facto, without the necessity of a default and that all the payments made on the installments and for insurance would be considered as rentals for the use of the property. This provision in the agreement shows that Gay retained, by implication, the right of not paying all of the installments and insurance, but if he exercised this privilege, for his failure to comply punctually with this requirement of the contract, the sums previously paid for that purpose wouíd' be considered as rentals for the property. This provision, aforesaid, was in the nature of an option, which shows that the agreement was a mere promise of sale and was not a sale.

In the case of S. J. Campbell vs. Richmond Insurance Company, 156 La. 455, 100 South. 679, a contract embodying practically the essential features characteristic of those appearing in the agreement involved in the present. case came up for consideration to this court. In that case we held the contract to be a promise to sell and not a sale. The Campbell case went up to the Supreme Court on a writ of review and our judgment was there affirmed. 156 La. 455, 100 South. 679; see also: Peck vs. Bemiss, 10 La. Ann. 160; Clark vs. Comford, 45 La. Ann. 502 12 South. 763; J. C. Trichol vs. Home Insurance N., 155 La. 459, 99 South. 403; Cavil vs. Trichel, 156 La. 136, 100 South 249; Broadwell vs. Raines, 34 La. Ann. 677; Foreman vs. Saxon, 39 La. Ann. 1117; City of Baltimore vs. Parlange, 23 La. Ann. 365; Baldwin vs. Merey, 41 La. Ann. 1105, 6 South. 796;; Joffrion vs. Gumbel, 123 La. 391, 48 South. 1007; Thompson vs. Duson, 40 La. Ann. 712 5 South. 58; Oeschner vs. Keller, 134 La. 1098, 64 South. 921. There was no conveyance of title here. A subsequent act would have been necessary to transfer ownership .to defendant. It was therefore incumbent upon defendant to pay the installments punctually to avoid a forfeiture as was provided in the agreement. It is shown that defendant was tardy in making the payments, and thus violated the conditions of the agreement, repeatedly. Plaintiff, at different times, accepted payments of some of the installments after their maturity, but in! this, plaintiff, as the evidence shows was prompted by a spirit of forebearance, but at no time waived his rights of cancellation of the contract for failure on the part of defendant to meet his obligations under its terms.

To the contrary, it appears that plaintiff insisted on payment by defendant at the dates stipulated in the agreement, and that he notified defendant that he would demand a cancellation if defendant did not live up to the conditions and stipulations of the agreement. The evidence shows that plaintiff before instituting a suit for cancellation of the agreement sold a part of the property in question. Counsel for defendant contends that when a vendor thus sells a part of the property deeded to the first vendee, the amount received by him from the second sale should be applied to the purchase price of the first sale. The principle contended for by counsel may apply where a sale has been made by a vendor of property of which he thereafter sells a portion to another purchaser.' This is, however, not the case here, as there was no sale made in the first instance to defendant. Plaintiff had executed in his favor a mere promise to sell, had remained the owner of the property, and had the absolute right to sell any part of it to a subsequent vendee. It is stipulated in the contract that the failure of defendant to pay at the dates specified should ipso facto abrogate the agreement, as a penalty for its violation and without the necessity of a demand or of formally putting in default. We do not understand that counsel for defendant disputes the binding effect or legality of such a stipulation. Defendant having failed to meet these requirements of the contract, forfeited all his claims thereto, and plaintiff was entitled to its cancellation, and erasure from the public records as was decreed below.

ON APPLICATION FOR A REHEARING

ELLIOTT, J.

The plaintiff, Frank G. Pruyn, and the defendant, Gilbert Gay, entered into a written contract dated June 10, 1918, whereby Frank G. Pruyn for and in consideration of $1775.00, of which the sum of $200.00 was paid in cash, agreed to sell to Gilbert Gay lots Nos. 2, 3 and 4 of Square No. 1, McGrath Heights Addition to the City of Baton Rouge, with the improvements thereon. The balance of the price was to be paid in installments of $46.25 each, commencing September 10, 1918, and quarterly thereafter.

The agreement then provides that the promise is made upon the following conditions: That the contemplated purchaser shall pay all taxes and assessments of every kind that may become due on said property before they become delinquent; all the quarterly installments and all insurance promptly and punctually as they become due. The failure of the purchaser to make said payments when due, to ipso facto, without demand or .putting in default and as a penalty, nullify and abrogate the contract; in which event all sums paid were to be considered as rent for the use of the property. Any buildings or other improvements thereon to remain and become the property of said Pruyn, etc.

The plaintiff, Pruyn, alleging that defendant, Gilbert Gay, had violated the contract by not making payments as stipulated, he brought suit to have the contract annulled, .cancelled and set aside. He annexed to and made part of his petition a statement of account showing the payments which said Gay had made under the contract, the amount and date of each.

The defendant, Gay, for answer, alleges that plaintiff condoned his payments by accepting same under the contract before and after they were due and in sums as paid. That he accepted one on January 3, 1923, for $50.00. That plainiff violated the contract on June 4, 1923, by selling lot 4 to Joe Pizzllo. tie claims that the price which plaintiff received from Joe Pizzllo, $600.00, should be applied to their contract as a payment. Avers that on September 28, 1923, he tendered to plaintiff the sum of $250.00 on the contract; which sum tendered and the said $600.00 received from Joe Pizzllo applied to the contract payments, the same were overpaid at the time of the suit.

Alleges and prays for damages against the plaintiff on account of tire sale of lot No. 4 that plaintiff’s demand be rejected; that plaintiff be condemned to specific performance and prays for general relief, etc. Judgment was rendered in plaintiff’s favor as prayed for. Defendant appealed.

As for the character of the contract, we think our first conclusion was correct. It is a promise to sell, dependent on suspensive. conditions.

The conditions are that certain payments are to be made at specified times with taxes and insurance before they become delinquent.

' The, account annexed to plaintiff’s petition shows the payments made under the contract, the date and amount of each. The total sum paid was $209.50. This account is not disputed.

The first payment was to have been made after the contract was signed on September 10, 1918, and quarterly thereafter until the balance of the purchase price was fully paid.

The account shows that some installments were paid ahead of time and in excess of the sums due' up until about say July 16, 1921, after which there was no more paid until April 21, 1922, when $15.00 was paid. The next payment was on June 2, 1922, when $10.00 was paid. The next was on January 3, 1923, when $50.00 was paid; since then nothing has been paid.

On June 4, 1923, or about six months after the receipt of the last payment, the plaintiff, Pruyn, without notice to defendant and without his consent, sold and delivered to Joe Pizzllo lot 4 covered by the 'contract for $600.00.

Defendant, learning of this, had the contract recorded. Previous to that time the contract had not been recorded.

The evidence shows that plaintiff paid taxes and insurance on the property.

Nothing of that kind appears to have been paid by defendant; but the sums Which plaintiff received from defendant ahead of time and in excess of the sums due in 1918, 1919, 1920 and 1921 equitably extinguished and covered the taxes and insurance paid by Mr. Pruyn; but commencing, say September 10, 1921, payments fell behind.

The plaintiff notified defendant verbally that he had fallen behind; that he must bring his payments up to date, else he would cancel the contract; but it was not done. Plaintiff’s contention is. that defendant’s failure to pay installments, taxes and insurance as they fell due, under the contract, ipso facto nullified and abrogated the contract. That all payments received since the delinquencies must be regarded as rent; that lot 4 must be looked on as having belonged to him at the time it was sold and the proceeds as his property, and that he became the unconditional owner of the other two lots and of the buildings and improvements thereon in the same way and at the same time.

The intent at the time of the contract was that there was to be no sale unless the installments, taxes and insurance were paid as they fell due under the contract; but plaintiff did not stand on the contract in that respect any more than the defendant.

If plaintiff had stood on the contract, and after the first delinquency had demanded and exacted rent for plaintiff’s property as the owner thereof, the penalty stipulated in the contract would have stood; the judgment appealed from would in that event have been correct and our first opinion and decree would be now reinstated. 24 A. 235; Baker vs. Baker, 125 La. 969, 52 South. 115; Baldwin vs. Young, 47 La. Ann. 1466, 17 South. 883; Barber Asphalt Pav. Co. vs. St. Louis Cypress Co., 121 La. 152, 46 South. 193; Standard Milling Company vs. Haffpauir, 139 La. 1095, 72 South. 748.

But plaintiff did not do that. He instead accepted payments on the purchase price as shown by the account which he himself kept, after they were delinquent in date and amounts, and particularly as late as April and June, 1922, and January, 1923, and applied these payments to the purchase price himself long after the expiration of the time when they were due under the contract.

Having done that, plaintiff could not, without the consent of the • defendant, treat the contract as if it had.no life, or existence, and these various sums thus received as rent on property unconditionally belonging to him.

The stipulation that payments on the purchase price and taxes and insurance were to be made at certain times and in case they were not paid at the time fixed the failure was to ipso facto nullify and abrogate the contract was for plaintiff’s benefit; but such stipulations could be waived by him and renounced. C. C. Art. II. And by receiving so many payments in less sums than stipulated ancl made long after the expiration of the times; fixed for payments and the application of them to the purchase price by the plaintiff himself must be regarded as an absolute waiver and renunciation on his part of the stipulations in question.

Plaintiff having long prior thereto waived and. renounced the penalty stipulated in the matter of payments, etc., he had no right' in June, 1923, to sell lot 4 without the consent of the defendant. The penalty having been waived and renounced in the way stated, the law, C. C. Arts. 2045, 2046 and 2047, etc., and Nos. 1911, No. 2 and 1912 must be reckoned with. The contract could not in that situation be treated as dead and without existence. It could not be utterly disregarded by the plaintiff and lot 4 sold, but had to be sued for and the defendant heard from before anything could be done.

The resolutory condition in the contract, moreover, cannot be enforced unless the parties can he placed in the same condition in Which they were at the time the contract was entered into. C. C. Art. 2045; Bermudez vs. Union Bank of Louisiana, 7 La. Ann. 65; Evan George vs. E. A. Knox and Husband, 23 La. Ann. 354; Heirs of Allen Castle vs. Mrs. E. S. Floyd, et al., 38 La. 583; Henry Bryant vs. Mrs. E. R. Stothart, 46 La. Ann. 485, 15 South. 76; Lawson vs. Conolly, 51 La. Ann. 1753, 26 South. 612; Ragsdale vs. Ragsdale, 105 La. 405, 29 South. 906; Latour vs. Guillory, 130 La. 570, 58 South. 341; Lewy vs. Wilkinson, 135 La. 105, 64 South. 1003; and Louisiana Digest, Vol. VI, p. 521, Sec. 73, etc.

And this cannot be done because plaintiff has made it impossible by selling lot 4.

We based our first opinion and decree on the case, 156 La. 455. The form of the contract in that case was very much like the one before us in the present case. But on re-examination we find that case was decided on the issue whether the title in question was a title in fee simple and the court found that it was not. The case cited, 155 La. 459, was also different from the situation we now have in hand.

The Art. C. C. 2047 has been considered by the Supreme Court in a number of cases. The situation in each must be taken into account and the matter equitably decided. Turner vs. Collins, 2 Martin N. S. 605; Newman vs. Eldridge, 107 La. 320, 31 South. 688; Murray vs. Barnhart, Pitts, vs. Same, Graham vs. Same, 117 La. 1023, 42 South. 489; Watson vs. Feibel, 139 La. 375, 71 South. 585.

The case last mentioned is the leading case Oh the subject. The eleventh clause of the syllabus reads:

“* * * dissolution of the contract of sale never became the creditor’s absolute right, since Article 2047 gives the court power to allow a reasonable time for performance after suit.”

Clauses 24 and 27 are also pertinent to the present situation. As restitution cannot be accomplished in this case, we will in conformity with the provisions of the law, C. C. Art. 21, render the judgment which appears to conform with natural right.

It is therefore ordered, adjudged and decreed that our first opinion and decree herein be set aside, the judgment appealed from is annulled, avoided and reversed, and the demand of the plaintiff, Frank G. Pruyn, is refused and rejected. It is further ordered, adjudged and decreed that the contract of June 10, 1918, between said Pruyn and Gilbert Gay is still in force and effect between them. The $600.00 received by said Pruyn from the sale of lot 4 described in the contract is applied as a payment on the installments under the contract as of date June 4, 1923. That the tender to plaintiff of $250.00 on September 28, 1923, should have been accepted as a payment on the installments under the contract and if the sum is still declined that same be now paid into the treasury of the court to the cred't of said Pruyn as of date September 28, 1923. That when these payments on the contract installments have been applied and credited, computed from the time when defendant first fell behind, then if defendant, Gilbert Gay, shall pay all future installments on the contract price and taxes and insurance as stipulated in the contract, until the contract price has been fully paid, then the said Frank G. Pruyn shall execute in favor of the said Gilbert Gay an unconditional title as agreed to the lots 2 and 3, with the buildings and improvements thereon, called for by the contract.

That the plaintiff and appellant pay the cost in both courts.

LECHE, J., concurs in the decree.


author: MOUTON, J. LECHE, J.

text:
    No. -
    First Circuit Appeal
    FIRST STATE BANK AND TRUST COMPANY v. J. E. SMOOT AND COMPANY, INC.
    (March 4, 1925, Opinion and Decree.)
    (June 12, 1925, Rehearing Refused.)

      (Syllabus by the Editor.)

    1. Louisiana Digest — Bills and Notes— Par. 148, 150.
    Under Section 89 of Act 64 of 1904 the negotiable instruments law unless there is notice of dishonor to the drawer endorser of a draft, the drawer is discharged.
    2. Louisiana Digest — Pleading—Par. 62.
    An exception no cause of action aimed at a petition, a suit to enforce payment of a draft, which does not allege notice of dishonor to the drawer and endorser thereof, should be maintained.
    Appeal from the Parish of Livingston, Hon. Columbus Reid, Judge.
    This is a suit to enforce payment of a draft. There was an exception no cause of action filed which was overruled. There was judgment for defendant on the trial of the case and plaintiff appealed.
    Judgment overruling the exception no cause of action reversed and plaintiff’s suit dismissed.
    W. S. Rownd, of Hammond, attorney for plaintiff, appellant.
    Kemp and Buck, of Amite, attorneys to-defendant, appellee.
   MOUTON, J.

Plaintiff, in its petition, alleges that J. E. Smoot and Company, on October 27, 1920, drew a draft on the Columbia Box Factory Inc., to its own order and by it endorsed, for the sum of $399.23; and, that it acquired this draft, in good faith before maturity and for a valuable consideration. Reserving its rights against the Columbia Box Factory, acceptor, and the Ten Day Grocery Co., endorser, plaintiff sues defendant company for the amount of the draft, with exchange and legal interest.

The court overruled an exception of no cause of action filed by defendant, but rejected the demand on the merits.

Plaintiff appeals.

Non-payment of the draft is alleged in the petition but there is no allegation of notice of dishonor to the J. E. Smoot and Company, drawer and endorser. Such a notice is required by Section 89, of Act 64, 1904, or else the drawer is discharged. Nor is there any averment in the petition that notice of dishonor was dispensed with or was waived either expressly or by implication. Plaintiff having failed to so allege, the petition discloses no cause of action. 120 La. 711.

It is therefore ordered, adjudged and decreed that the judgment overruling the exception be avoided, and reversed; that the exception of no cause of action be and is hereby maintained, dismissing plaintiff's suit at its costs.

ON REHEARING.

LECHE, J.

A decree maintaining an exception ’of no cause of action in this ease, was entered on March 4, 1924, and the case was again submitted to this court, at Amite, on May 6, 1925. Presumably a rehearing was granted, but the written order granting such a rehearing, is not in the record. Nor do we find in the record any brief on behalf of plaintiff, either on the first or the second hearing. With the lights before us, we can discover no error in our former opinion and for that reason

It is ordered that our former decree be reinstated and made final.