author: WESTERFIELD, J. PER CURIAM.

text:
    No. 13,955
    Orleans
    CITIZENS’ BANK OF WAYNESBORO, GA., v. HIBERNIA BANK & TRUST CO.
    (March 7, 1932. Opinion and Decree.)
    (April 4, 1932. Rehearing Granted.)
    (April 18, 1932. Opinion and Decree on Rehearing.)
    (April 25, 1932. Writs of Certiorari and Review Refused by Supreme Court.)

      John D. Miller, of New Orleans, attorney for plaintiff, appellee.
    Quintero & Ritter, Henry & Cooper and A. M. Suthon, of New Orleans, attorneys for defendant, appellant.
   WESTERFIELD, J.

This is a suit by the Citizens’ Bank of Waynesboro of Waynesboro, Ga., against the Hibernia Bank & Trust Company, as tutor of the minor William A. Wilkins, Jr., for $1,000, the amount of an assessment levied under the banking laws of the state of Georgia against stock in the plaintiff bank standing in the name of Mrs. Emma Couturie Wilkins, the deceased mother of the minor, William A. Wilkins, Jr.

The defendant bank, after filing an exception of no cause of action, which was referred to the merits, answered, attacking the constitutionality of the Georgia statute, under which the assessment was levied, as contravening section 10 of article 1 of the Constitution of the United States, and by denying that the Georgia statute could have any extraterritorial effect.

There was judgment below in favor of plaintiff, as prayed for, and defendant has appealed.

In this court the defendant filed an exception of no cause of action based upon the allegation:

“(1) That the assessment, which is the basis of this suit, was illegally issued, for the reason that at the special meeting of stockholders, held on October 23, 1926, the quorum required by law was not present, striking the proceeding of said meeting and the assessment levied as a result thereof with nullity.
“(2) That plaintiff has not proven the contracts, debts and engagements of the allegedly insolvent bank but relied solely on the right of recovery from defendant on the proof of the arbitrary assessment and the laws of the State under which it assumed to act, and that the conditions of defendant’s liability for a specific sum do not lawfully appear from the evidence in the record.”

The right of the defendant-appellant to raise the issues presented by the exception of no cause of action filed in this court is strenuously contested upon the ground that the questions presented by this pleading were not considered below, and we are of opinion that the objection is well founded. Shalley v. N. O. Public Service, Inc., et al., 159 La. 519, 105 So. 606.

It was conceded that the defendant bank represents the minor, as his tutor, and that the stock, against which the assessment has been levied belongs to the minor. Consequently, if there be any liability, judgment should properly go against the defendant bank, as tutor.

Mrs. Wilkins purchased five shares of stock of the plaintiff bank on May 27, 1911, and another five shares on October 3, 1911. On the 23rd day of October, 1926, at a special meeting of stockholders an assessment of 100 per cent was levied against all stock outstanding, including that owned by the Wilkins minor. This action was taken upon the authority of an act of the Georgia Legislature of August 16, 1919 (Laws 1919, p. -135). At least, there is no proof of any other Georgia statute in the record. Defendant’s counsel contends that the assessment must be justified under the law of 1919. or not at all, for the reason that our courts do not take judicial cognizance of the laws of the other states of the Union.

Our learned brother below disposed of this point by saying:

“Until it be shown that there was no law in effect at the time that Mrs. Wilkins became owner of the stock, the court must presume that the statute pleaded, the existence of which law is shown by the Supreme Court of Georgia in the case of Toombs v. Citizens’ Bank of Waynesboro, rendered September 24, 1929, and reported in 169 Ga. 115, 149 S. E. 645, in which the Supreme Court of Georgia held that this identical law has been the law of Georgia long anterior to the chartering of this plaintiff bank and long anterior to the issuance of the stock to Mrs. Wilkins.”

We believe this view to be erroneous. In Taylor, Bank Commissioner, v. Terzia, 171 La. 1045, 132 So. 781, 783, reliance was placed upon two decisions of the Supreme Court of Arkansas to show that the action of the state bank commissioner, in levying an assessment on defendant, was conclusive as to the necessity for the amount of the assessment [Davis v. Moore, 130 Ark. 128, 197 S. W. 295; Aber v. Maxwell, 140 Ark. 203, 215 S. W. 389]. The court held that, since the decisions of Arkansas had not been offered in evidence in the court below, they could not be regarded as evidence, because “the interpretation as well as the language of the laws of a sister state must be proved as a fact in a case; otherwise we cannot consider such an interpretation.”

But it is said the law of 1919 may with constitutional propriety apply to a stockholder who acquired her stock in 1911. Without considering this troublesome question, we will assume, arguendo, that it does, and that the assessment was levied in conformity with its terms. The next question is the effect to be given the law in this jurisdiction.

In Corpus Juris, vol. 14-A, section 1923, verbo “Corporations,” the rule is thus stated:

“Unless authorized to do so by statute the Courts will not enforce a cause of action vested in a foreign corporation against one of its directors where the liability of the director is based not on contract nor principles of the common law, but on a statute of the state where the corporation is domiciled.”

The law on the subject in Louisiana provides that shares in banking associations or savings banks are personal property, and that no stockholder of the company shall he held responsible for more than the unpaid portion of the purchase price of his stock. Act No. 179 of 1902, sec. 10. The Revised Statutes, section 282, provides:

“The shares of the banking companies shall be 'personal property, and shall be transferable upon the books of the same, in such manner as the by-laws may direct; but no shareholder therein shall be liable for its debts and contracts to a greater amount than the whole of his shares there-XU ^ *5»**

The General Corporation Law of Louisiana, Act No. 250 of 1928, sec. 19, par. 1, reads:

“A subscriber to or holder of shares of a corporation formed under this Act shall be under no liability to the corporation with respect to such shares, other than the obligation of complying with the terms of the subscription therefor, and said obligation shall continue whether or not his rights or shares have been assigned or transferred; but one who becomes a shareholder in good faith and without knowledge or notice that the shares he acquired had not been fully paid for, shall not be liable to the corporation with respect to payment for such shares.”

There is, therefore, no special statutory authorization in this state, but, on the contrary, the policy of our law in respect to the subject under discussion is quite different. It is elementary that the laws of the other states of the Union can have no extraterritorial effect, proprio vigore, and no recovery can be had in this state upon an obligation imposed by statute in another state, because, to enforce a liability created solely by the law of another state, would be tq give to the foreign law the same force and effect as though it were a law of the state.

It is otherwise with respect to foreign laws, which enter into and form part of contracts. Such laws will have the same effect in every jurisdiction, so far as the parties to the contract are concerned, because the law forms a part of the contract and “travels with it, wherever the parties to it may be found.” Ogden v. Saunders, 12 Wheat. 213, 259, 6 L. Ed. 606. In such case the contract between the parties is enforced and not the foreign law, except in so far as it may be said to form a part of the contract.

What, then, is the nature of the obligation which is sought to be enforced here? Is it contractual, or statutory?

The purchaser of stock in a corporation must, as a matter of course, hold his stock subject to such laws as may be in force at the corporate domicile, and it is said that, in buying stock, a contract between the corporation and the stockholder is entered into. On the other hand, it is contended that the usual elements of a contract are lacking in such transaction — the aggregatio mentium is not present — nor, in this case, has there been an express or tacit agreement to the effect that defendant’s ancestor shall be liable up to 100 per cent of the par value of the stock in the event of insolvency. The liability in such cases, the argument proceeds, is simply incidental to the ownership of the stock, and purely statutory, the stockholder being liable for the debt of a corporation, however it may accrue, whether from the breach of a contract, or from the commission of a tort, not by reason of contract, but under a statute so declaring. The weight of authority, however, it is conceded, supports the view that the liability of the stockholder is contractual. A very respectable minority, however, adheres to the opposite view. See the well-considered case of Crippen, Lawrence & Co. v. Laighton, 69 N. H. 540, 44 A. 538, 46 L. R. A. 467, 76 Am. St. Rep. 192, and authorities there cited.

Counsel for plaintiff in the instant case cites the following from Taylor v. Terzia, supra, as indicating that our Supreme Court has aligned itself with the majority:

“The liability of the defendant as a stockholder in the Citizens’ Bank of Pine Bluff must be determined by the laws of Arkansas. That state, by its laws, authorized the creation of the bank, with certain definite powers and obligations; and, when defendant, a citizen of this state, became a stockholder therein, he entered into certain contractual obligations depending upon and subject to those laws so far as they do not violate the statutes or settled policy of this state.”

The result in the Taylor case was to deny recovery to the Arkansas Commissioner of Banks, who sought to collect an assessment levied in Arkansas against the defendant in Louisiana. But, whatever may be the fair meaning of the excerpt quoted, and whether the minority or majority view is the proper one, certainly it would be going much further than any of the decisions cited to say that- a contract entered into in 1911 included a statute passed in 1919, so as to make the then non-existent law a part of the contract between the' parties as agreed upon in 1911. In volume 3, Ruling Case Law, we find the following expression (section 45, verbo “Banks,” page 418):

“Persons becoming stockholders of a corporation are bound by the provisions of the statute wherein the corporation was formed existing at the time of the acquisition of their shares.”

It is not shown that, at the time the defendant’s ancestor purchased the stock, there was any law in the state of Georgia imposing the liability which is sought to be enforced here. Consequently, there could have been in the contemplation of the contracting parties no intention to contract with reference to a law not in existence at the time.

It seems perfectly obvious that, whatever may be the effect of a statute passed subsequent to the purchase of stock as affecting the rights of a stockholder, whatever change is brought about in so far as his rights and obligations are concerned, it does not result from a contract, since, at the time the contract was entered into, the statute was not in existence. To say that subsequent statutory enactments form part of the contract created by reason of the purchase of stock is inconsistent with the primary requisite of conventional obligations, consent of the parties. If there be read into the contract, not only the existing laws, but all future laws which the state of the domicile of the corporation may see fit to enact, there could be no contractual certainty, or stability, since the rights and obligations of the contracting parties would be the subject of constant amendment and alteration.

The question of whether the effect of subsequent legislation would be such as to impair the obligation of contracts, with the result that the legislation would be unconstitutional, is another question with which the present discussion is not involved, for the legislation may be valid and effectual and yet the obligations and duties it imposes not contractual, but statutory.

Our conclusion is that the cause of action underlying this suit is based upon a statute of Georgia which is repugnant to the settled public policy of this state, and that, to permit a recovery, would necessitate the recognition of the Georgia statute as having the force of law in this state.

For the reasons assigned the judgment appealed from is reversed, and it is now ordered that there be judgment in favor of the defendant, Hibernia Bank & Trust Company, as tutor of the minor William A. Wilkins, Jr., and against the plaintiff, Citizens’ Bank of Waynesboro, of Waynesboro, Ga., dismissing plaintiff’s suit.

UPON GRANTING A REHEARING IN PART

A rehearing is granted limited to a consideration of whether the decree formerly handed down by us should be amended so as to non-suit the plaintiff, and limited further to the presentation of the issue upon briefs and papers now on file or which may be filed on or before the 10th day of April, 1932.

ON REHEARING

PER CURIAM.

The original decree rendered by us is recalled and it is now ordered, adjudged, and decreed that there be judgment in favor of the defendant, Hibernia Bank & Trust Company, as tutor of the minor William A. Wilkins, Jr., and against the plaintiff, Citizens’ Bank of Waynesboro, of Waynesboro, Ga., dismissing plaintiff’s suit as in case of non-suit.


source: Caselaw Access Project

author: JANVIER, J.

license: Public Domain

text:
    No. 14,021
    Orleans
    STATE EX REL. WILLIAMS v. CITY OF NEW ORLEANS
    (November 16, 1931. Opinion and Decree.)
    (November 30, 1931. Rehearing Refused.)
    (January 4, 1932. Writs of Certiorari and Review Refused by Supreme Court.)
    (March 30, 1932. Opinion and Decree of Supreme Court.)

      Edward Rightor, of New Orleans, attorney for relator, appellee, George E. Williams.
    Michel Provosty and Francis P, Burns, of New Orleans, attorneys for defendant, appellant.
   JANVIER, J.

During February, 1931, one Henry Kingston, a prisoner in the custody of the criminal sheriff in New Orleans, became gravely ill. There being in the then used prison no facilities for treating and properly attending to seriously ill prisoners, the sheriff, on the approval of the district attorney, obtained from the two judges of the Criminal District Court, in whose respective divisions the charges against Kingston were pending, an order to remove the said prisoner to the Charity Hopsital and to provide for special guards to attend him while he remained in the said hospital. The guards remained in attendance from February 27, 1931, to May 18, 1931, and for that period their salaries amounted to $999.99. The sheriff then obtained, on a bill for that sum, the approval of the clerk of the court, the district attorney, and the two judges above referred to, and presented the said bill to the commissioner of public finance for the city of New Orleans.

The city, acting through the said commissioner, refused to honor the bill, and relator, the criminal sheriff, now seeks, by mandamus, to compel the city to make payment.

The sheriff contends that, under section 1042 of the Revised Statutes, which section is Act No. 22 of 1859, as re-enacted by Act No. 16 of 1884, not only is the city liable for such charge, but that it is the ministerial duty of its disbursing officer to make payment. That section (Rev. St. sec. 1042), among other things, provides that expenses incurred “in the city of New Orleans, by the arrest, confinement, maintenance and prosecution of persons accused * * * and all expenses whatever attending criminal proceedings, shall be paid * * * by the city of New Orleans * * * by the city treasurer * * * after an account thereof shall be duly certified to be correct by the clerk of the court and the presiding judge thereof.”

The city maintains, by way of exception, that, even if relator’s contention be correct as to the liability of the city for unusual and extraordinary expenses, such as those here involved — which, in the second contention, is not conceded, but, on the contrary, strenuously denied — nevertheless mandamus cannot be resorted to to compel payment; that an ordinary suit must be brought and judgment first obtained in that suit; in other words, that the certificate of approval issued by the judge and the clerk of the criminal court is not conclusive and binding on the city.

The city, secondly, and on the merits of the controversy, contends that section 1042 of the Revised Statutes, which is a general provision under which the city is required to pay the expenses of criminal proceedings and the cost of taking care of prisoners, and under which it may well be contended that all such expenses must be paid by the city, has been overridden, in so far as it requires the city to pay the salaries of all regular or special deputy criminal sheriffs, by Act No. 108 of 1928, which later act fixes the number, the salaries', and the duties of deputy criminal sheriffs in the city of New Orleans.

The district court rendered judgment as prayed for, and the city has appealed.

The question of the right to proceed by mandamus will be first considered, and we shall proceed to refer to and to discuss the various adjudications of the Supreme Court in analogous situations.

The earliest case to which we have been referred on the subject is Parker v. Robertson, 14 La. Ann. 249, in which the Supreme Court had under consideration Act No. 191 of 1857, under which the criminal expenses “incurred in the different parishes of this State, by arrests, confinement, and prosecution of persons accused of crime * * * shall be paid by the State, upon the certificate of the Clerk and the presiding Judge of the several courts of this State.” It was contended that, even after the issuance of the certificate referred to, the auditor still retained discretion to issue, or not to issue, the necessary warrant, but the Supreme Court held, as appears from the syllabus, that, after the said certificate had been issued by the proper officers, “the duties of the Auditor relative to accounts for such expenses thus certified, are ministerial and imperative.” In passing, it might be well to note that the Supreme Court in that case stated that the auditor might refuse to issue the warrant, if the certificate of the clerk and judge “should show upon its face that it was not drawn in accordance with the law, as, for instance, if it purported to be for fees in civil suits.”

In the first adjudication, then, in a similar situation, we find that the Supreme Court held that mandamus is the proper procedure to compel the disbursing authority to pay a bill certified by the clerk of court and the judge.

The question was again presented in Shaw v. Howell, 18 La. Ann. 195, in which case the statute under consideration was Act No. 22 of 1859 (though the court does not so state in its opinion) which was almost identical with the act of 1857, except that, under it, the expenses referred to were required to be paid by the various parishes, or by the city of New Orleans, instead of by the state itself.

The sheriff of the parish of Orleans sought, by mandamus, to compel the city of New Orleans to issue and pay a warrant in his favor based on a voucher approved by the clerk and the judge of the criminal court. The comptroller and the treasurer of the city of New Orleans excepted to the form of the proceeding, contending that they could not, by mandamus, be compelled to make payment of such a bill. The trial court overruled the exceptions, holding that mandamus was the proper remedy. The Supreme Court said: “The exceptions filed by the Comptroller and Treasurer were properly overruled, * * *” so that here, again, we find that the Supreme Court .held that mandamus is the proper remedy to compel the city of New Orleans to pay such a bill.

In City of New Orleans v. Patton, 27 La. Ann. 168, the city brought suit against a former sheriff tp recover a large sum of money, which it alleged had been paid him over and above the amount to which he was entitled by law. There was judgment for the defendant sheriff. On appeal the Supreme Co’urt held that the various certificates issued by the clerk and the criminal judge were conclusive and binding upon the city, and further said:

“The city can not go behind the bills thus authenticated and contest any of the items therein contained.”

While the question of the right to the issuance of a mandamus was not' involved in that suit, the holding of the court to the effect that, the certificate having been issued by the clerk and the judge, the city could not refuse to make payment, carries with it the conviction that, had the bills not been paid, the court would have held the sheriff entitled to a mandamus to compel the city to carry out its ministerial duty of paying the bills, which had been approved by the proper authorities.

There are, however, in the jurisprudence of this state, three cases which, on first reading, appear to support the view that more than a mere ministerial duty is involved, and that the city may question the correctness and the legality of the bills presented by the sheriff, even though they be approved by the judge and the clerk. These cases are Fitzpatrick v. City of New Orleans, 27 La. Ann. 457; State ex rel. Houston v. City of New Orleans, 30 La. Ann. 82; and State ex rel. Guion v. Chauvin, 147 La. 703, 85 So. 645, 647. We will first discuss the Fitzpatrick case, then the Guion case, and leave for final consideration the Houston case, because the last-mentioned decision contains language referred to in various cases and which we find it very difficult to reconcile with that contained in the other decisions to which we have referred. In the Fitzpatrick case the suit was brought by the clerk of the criminal court against the city for salary and fees claimed to be due him. The bills were approved by the judge of the court. It was contended “that the account sued on having been approved by the judge, the city is concluded”; in other words, that the city had nothing but a ministerial duty to perform as soon as the account was approved by the criminal judge. Fitzpatrick cited and relied on the cases to which we have referred, Parker v. Robertson, Shaw v. Howell, and City of New Orleans v. Patton, supra. The Supreme Court held that it was evident from the certificate itself that the account which had been certified as correct by the judge covered items which were illegal, and that therefore, since, on the face of the certificate, illegality appeared, the city could not be made to pay the account as a ministerial duty. The court quoted with approval the following language, which appears in Parker v. Robertson:

“It is true, that as the certificate is, according to Mr. Crittenden, ‘the evidence of the exercise of a special and limited jurisdiction it must show upon its face a case within that jurisdiction.’
“If, for example, the certificate of the Judge and Clerk should show upon its face that it was for fees in civil suits, the Auditor might refuse to authorize its payment, because there is no law empowering the Judge and Clerk to certify them in order to have them paid by the State.”

We take it, then, that the decision in the Fitzpatrick case is in line with the other decisions to which we have referred, and that the Supreme Court, in that case, did not intend to overrule the other cases, but merely added to the doctrine that -mandamus is the proper remedy to compel the city to pay such an account as is involved here the qualification or proviso that the city may refuse to make payment if, on the face of the (papers themselves, it appears that there is an illegality, or that included in the bill are accounts for which there is no lawful authority.

We interpret the decision of the Supreme Court in the Guión case in the same way. There a district attorney sought to compel the payment to him of salary warrants. The Supreme Court on the merits held that the mandamus prayed for should not be made peremptory, but in the opinion used the following language:

“The duty of the parish treasurer to make payment on warrants which have been issued ‘by the proper authorities’ is clear and imperative; but, as was very properly held in the Houston case just cited, it would be otherwise if the voucher should show upon its face, to which may be added, if the account to which the voucher was appended should show, that it was not within the law; in other words, that the police jury was not the proper authority to allow, approve, or certify to the correctness of the account.
“Here it is shown that the police jury was without authority to issue the warrants sued upon; and the parish treasurer therefore had the undoubted right to refuse payment thereof, and to thus cause the matter to be submitted to the court for determination.”

We now find it necessary to consider the decision rendered by our Supreme Court in State ex rel. Houston v. City of New Orleans, the syllabus of which reads as follows:

“The approval by the Clerk and Judge of the Criminal Court of the parish of Orleans, of the account of the Criminal Sheriff, for fees and expenses of his office, does not amount to a judicial decree in his favor for the amount of the account, nor conclude the city of New Orleans from contesting the account. And if the city should dispute the correctness of his bill, he must, like the holder of any other contested bill, sue and obtain judgment on it, before he can ask for a mandamus to compel its payment.”

It must be conceded that, at first glance, the language above quoted seems irreconcilable with that contained in the various decisions to which we have referred, and yet, in view of the light thrown upon the question in those other decisions, and also in the Guion case, we have reached the conclusion that what the court intended to hold in the Houston case was that the city may dispute the correctness of the bill if illegality appears upon the face of it. It is very evident that, in the Guion case, the Supreme Court so interpreted the Houston decision, because, in the Guion case, the court said that it was the ministerial duty of the parish treasurer to make payment, unless “as was very properly held in the Houston case * * * the voucher should show upon its face * * * that it was not within the law. * * *” We com fess that the decision in the Houston case, had there been no earlier decisions, and had that decision not been referred to and interpreted in the Guión case, we would have felt to be conclusive here. But, in the light of the entire jurisprudence on the subject, we hold that mandamus, is the proper method of procedure, but that, in defense to an action for the issuance of a writ of mandamus, the respondent may interpose any objection appearing from the documents themselves, taking into consideration the legislative enactments pertinent thereto. If, however,, we have not properly interpreted the Houston decision, and if, as a matter of fact, it was the purpose of our Supreme Court to hold that mandamus will not lie, we feel that no substantial harm has been done, and that, in fact, in most cases no serious harm will be done In similar situations, because the only purpose of a mandamus is to compel a speedy trial of the matters actually involved, and here we find before us the entire record presenting the contentions of the parties on the merits of the case. For instance, if we felt that mandamus is .not the proper remedy, and if we should dismiss this suit solely on the ground that the method of procedure is incorrect, the present relator would he relegated to an ordinary suit for the collection of the amount claimed by him to be due. A new suit would then be filed and would have to be tried upon its merits, and the same defense, which is here presented on the merits, would be found in that other case. So that, even if there he some doubt as to the correctness of the method of procedure, no substantial harm has been done, or will be done, particularly since, upon consideration of the merits, we have come to the conclusion that relator’s claim should be dismissed.

Having determined that the controversy may properly he presented on a petition for 'mandamus, we shall now present our reasons for the view already expressed that the claim of relator should he rejected.

Section 1042 of the Revised Statutes is a general enactment providing for the payment by the City of New Orleans of “all expenses whatever attending criminal proceedings.” In the absence of other legislation on the subject, we could not do otherwise than hold that the salaries of all deputy criminal sheriffs should he paid by the city, and that the criminal sheriff could not be limited in the number selected, except by the necessity therefor and the reasonableness of his requirements. But in 1928 the Legislature enacted Act No. 108 which has for its object the definite fixing of the number of deputies to he employed by the criminal sheriff. That statute, in State ex rel. McKay et al. v. City of New Orleans, 171 La. 670, 131 So. 843, was held to be constitutional. It is a special act, and, so far as it is inconsistent with Rev. St. sec. 1042, it repeals the latter. Counsel for relator contends that by the earlier enactment the sheriff is given the right to employ as many deputies as may he necessary. If that be true, then it is inconsistent with, and has been in that regard nullified by, the later statute, which limits the number to eighty-nine. Counsel for relator finds no conflict in the two statutes. He maintains that the act of 1928 was passed to provide for the regular, normal number of deputies necessary in the operation and maintenance of the sheriff’s office and in the carrying out of the duties connected therewith, and he argues that, under the earlier statute, extraordinary expenses, such as the salaries of special emergency deputies, may still be assumed by the sheriff at the expense of the city. We do not so construe the statutes. It may be that, in extraordinary emergencies, a hardship will he placed on the sheriff, hut equally as serious would be the upsetting and throwing out of balance of the city’s budget, if it (the city) could be called upon unexpectedly to pay such unusual expenses.

It is conceded that the city might question the correctness of a bill issued by the sheriff, even though approved by the cleric and the judge of the criminal court, if, on its face, the hill showed that it was for an account for which, the city was not liable, and counsel for relator suggests, for instance, that, if the bill showed us on its face that it was for the salary of a civil sheriff, the city would not be precluded from contesting it. Since the act of 1928 limits the number of deputies to, eighty-nine, it is just as much a violation thereof to bill the city for three deputies over and above that number as it would be to bill the city for the salary of a civil deputy, or for any other expense plainly illegal and violative on the face of the bill itself of statutory provisions.

The judgment appealed from is annulled, avoided, and reversed, the alternative writ is recalled, and relator’s suit is dismissed, at his cost.

ON APPLICATION FOR REHEARING

In the application of the city of New Orleans for rehearing we have the unusual situation of a successful party asking for the amendment of an opinion rendered in connection with a favorable decree.

We have given further study to the matter and to the carefully and earnestly prepared brief presented on behalf of the city on application for rehearing and, as a result, our confidence in the view expressed to the effect that mandamus is the proper remedy in a matter of this kind has been considerably shaken.

Nevertheless, in view of the fact that we are convinced of the correctness of the de.cree rendered on the merits of the controversy, we have decided to refuse the rehearing requested by the city as well as the rehearing requested by relator.


author: McGREGOR, J.

text:
    No. 3411
    Second Circuit
    EDDINS v. NATL. LIFE & ACCIDENT INS. CO.
    (April 9, 1931. Opinion and Decree.)
    (May 20, 1931. Rehearing Refused.)
    (November 3, -1931. On Writs of Certiorari and Review to Supreme Court, Judgment of Court of Appeal reversed and Judgment of District Court Reinstated.)

      Dickson & Denny, of Shreveport, attorneys for plaintiff, appellee.
    Wilkinson, Lewis, Wilkinson & Buford, of Shreveport, attorneys for defendant, appellant.
   McGREGOR, J.

On August 13, 1925, Sophia. Eddins made application to the defendant for life insurance, under which a policy was issued as of August 31, 1925, and in which the plaintiff Ellen Eddins, was named beneficiary. The policy was based on a written application and a regular medical examination. These were not attached to, incorporated in, or indorsed on, the policy when issued. The usual provision of forfeiture for non-payment of weekly dues was. stipulated in the policy. The insured let the policy lapse, and forfeited same by failing to pay her weekly dues sometime during the year 1927. On May 3, 1927, she made a written application to have her policy revived. In this written application she made the following statement:

' “I hereby declare that I am the person who was formerly insured under the above named policy, and that having allowed it ■to become lapsed, I wish to revive it. I certify that I am now in good health, that I am suffering from no disease either acute or chronic, nor from the result of any accident or injury. Since my policy was lapsed I have been treated or examined by no physician except Doctor (none). (If female) are you now pregnant? No.
“I ask a revival of my policy with the understanding that it will not be in force (although I now pay the arrears) until the Company shall have approved this application and evidenced same by' endorsement on my policy, and that my policy, if revived, will only be in such benefit as provided by the rules of the Company.”

On the strength of this, revival application, the policy was revived as of May 16, 1927. On June 24, 1927, the insured died in the city of Alexandria. Due proof of the death of the insured was made by the plaintiff, her sister, and demand was made upon the defendant for the payment of the policy. The defendant declined and refused to pay, and the plaintiff thereupon brought suit for double the amount of the policy and attorney’s fee. On the trial of the case in the lower court, judgment was rendered in favor of the plaintiff, but her demand for attorney’s fee was rejected. The defendant took a suspensive appeal to this court, and the plaintiff did not answer.

The defense set up by the defendant is two-fold: (1) That in her original application for the insurance the insured made false statements or representations as to her health; and (2) that in her revival application she also made false statements as to her health and as to her having been treated or examined by any physieian since the forfeiture of her policy on account of the non-payment of her weekly premiums. It is specially alleged and proved on the trial of the case that the insured was a patient in -the Shreveport Charity Hospital from April 17 to 26, 1927, and that she was treated for syphilis and a number of aggravated affections and diseases springing therefrom. Just a week after she was discharged from the hospital she went to the office of the defendant in the city of Shreveport and made the following written statement in her revival application:

“I hereby declare that I am the person who was formerly insured under the above named policy, and that having allowed it to become lapsed, I wish to revive it. I certify that I am now in good health, that I am suffering from no disease either acute or chronic, nor from the result of any accident or injury. Since my policy was lapsed I have been treated or examined by no physician except Doctor (none). * * *"

This answer was absolutely false, and therefore fraudulent.

The insured died June 24, 1927, from general peritonitis resulting from a rupture of an internal ulcer which was no doubt of syphilitic origin. It is certain that the insured had been suffering from this disease for many years; that she had been to -the Shreveport Charity Hospital for treatment for it three or four different times at varying intervals during the last few years of her life. It is evident that she had this disease, and knew it, when she first applied for this insurance on her life, and consequently she was not in sound health at the time of the issuance of the policy, and was not entitled to receive it. The defendant has made this special defense, but, under the law, we think it is shut out from making this defense. Act No. 227 of 1916 specially provides that:

"* * * And no statement or statements not endorsed upon or attached to the policy when issued shall be ’used in defense of a claim under the policy unless contained in a written application and unless a copy of such statement or statements be endorsed upon or attached to the policy when issued. Any waiver of the provisions of this section shall be void.” Section 2.

As already stated, there were a written application and a medical examination, but these were not attached to the policy at the time it was issued. Therefore the defendant cannot, under the law just quoted, refuse to pay this policy on account of any misstatement made by the insured in her application, even though it may have been fraudulent.

But it is conceded that this policy was legally forfeited for non-payment of the weekly premiums. Until and unless this forfeiture is set aside and the policy revived, the beneficiary could not and cannot collect any sum from the defendant on account of the death of the insured. An attempt to revive the policy and set aside the forfeiture was made on May 3, 1927. On that date the insured, accompanied by the beneficiary, went to the office of the defendant in Shreveport and paid the sum of $5.60, and signed a written, statement that, since the policy was lapsed, she had not been treated or examined by any physician, and that, at the time of signing the revival application, she was in good health and suffering from no disease, either acute or chronic, nor from -the result of any accident or injury. This statement of the insured was false and fraudulent. On the strength of it, there was issued on May 16, 1927, by the defendant at its home office at Nashville, Tenn., a revival of the policy. This revival certificate reads as follows:

“In consideration of the -payment of the required arrears, the above policy is hereby revived, subject to all the terms and conditions of the original policy herein designated. * * *
“This revival endorsement is void, unless the insured under the original policy is alive and in sound health at the date hereof, and no liability whatever is assumed for death or disability due to causes originating prior to this date.”

As. will be seen from this revival certificate, it was void in case the insured were not in sound health at that date. Prom the testimony it is evident that the insured secured this revival of her policy fraudulently. She stated that she had not been treated or examined by any doctor since her policy was lapsed, when as a matter of fact she was just out of the Charity Hospital where she had been treated for nine days for an incurable disease that she had had for many years, and from which she died during the month after she signed this written statement. The only evidence of the revival of the policy is this revival certificate which we mention above, and by its very terms it is. void because of the false statement made by the insured in the presence of the beneficiary.

The only law cited by counsel for the plaintiff is Act No. 97 of 1908, but that can have no application here, as we hold that there was a medical examination, but that the defendant can take no steps to void the policy ab initio on account of any false representations contained in it because of the fact that the application and examination do not appear to have been attached to the policy at the time it was issued. See Act No. 227 of 1916. But, while we find and hold that the defendant cannot take advantage even of the fraudulent misrepresentations made by the insured in her application and medical examination, the policy was duly lapsed for nonpayment of weekly premiums. The defendant required written answers to certain questions before this forfeiture would be set aside. The evidence is conclusive that the insured’s statement made for the purpose of reviving the policy was fraudulently false. This being true, the revival was void. Act No. 227 of 1916 does not apply to the written statement made for the purpose of reviving a policy after it lapses for non-payment of premiums, and we find no law denying to the defendant its defense set up as to the fraudulent representation made for the purpose of reviving the policy.

For the reasons assigned, the judgment appealed from is annulled and reversed, and the demands of the plaintiff are rejected at her costs in both courts.


author: MOUTON, J.

text:
    No. 909
    First Circuit
    MRS. ADELE REGGIE ZWAN v. SALIM KARRE
    (February 8, 1932. Opinion and Decree.)
    (March 8, 1932. Rehearing Refused.)
    Percy T. Ogden, of Crowley, attorney for plaintiff, appellee.
    Milner & Porteous, of New Orleans, and Emile A. Carmouche, of Crowley, attorneys for defendant, appellant.
   MOUTON, J.

For the reasons stated in the case of Mrs. Victoria Aboud Reggie, vs. Karre, the judgment appealed from is affirmed with cost.


text:
    No. 908
    First Circuit
    MRS. ELIZABETH REGGIE v. SALIM KARRE
    (February 8, 1932. Opinion and Decree.)
    (March 8, 1932. Rehearing Refused.)
    Percy T. Ogden, of Crowley, attorney for plaintiff, appellee.
    Milner & Porteous, of New Orleans, and Emile A. Carmouche, of Crowley, attorneys for defendant, appellant.
   MOUTON, J.

In this case for the reasons stated in the case of Mrs. Victoria Aboud Reggie v. Karre, the judgment appealed from is affirmed with cost.


text:
    No. 910
    First Circuit
    MRS. JASMINE KARRE v. SALIM KARRE
    (February 8, 1932. Opinion and Decree.)
    (March 8, 1932. Rehearing Refused.)
    Percy T. Ogden, of Crowley, attorney for plaintiff, appellee.
    Milner & Porteous, of New Orleans, and Emile A. Carmouche, of Crowley, attorneys for defendant, appellant.
   MOUTON, J.

For the reasons stated in •the case of Mrs. Victoria Aboud Reggie vs. Karre, the judgment appealed from is affirmed with cost.


text:
    No. 911
    First Circuit
    REGGIE v. KARRE
    (February 8, 1932. Opinion and Decree.)
    (March 8, 1932. Rehearing Refused.)
    Percy T. Ogden, of Crowley, attorney for plaintiff, appellee.
    Milner & Porteous, of New Orleans, and Emile A. Carmouche, of Crowley, attorneys for defendant, appellant.
   MOUTON, J.

Mrs. Salim Karre, a resident of Crowley, on December 16, 1930, left her home in her Dodge car for an intended trip to Lafayette, La., with the following named ladies as her invitees or guests: Mrs. 'Fred Reggie, the plaintiff herein, Mrs. Elizabeth Reggie, Mrs. Jasmine Karre, widow of Pete Karre, and Mrs. Adele Reggie, wife of B. M. Zwan.

On their way to Lafayette, about five miles east of Crowley, the car was. overturned in a ditch, resulting in an accident in which Mrs. Karre’s four guests were all injured. Mrs. Salim Karre, wife of defendant, was driving the auto when the accident occurred.

Separate suits in damages, for different amounts were brought against defendant I by these four injured parties.

The suits, were not consolidated for trial but were tried together, and involve the same issues except as to the amounts claimed in damages.

The opinion rendered in this case will dispose of the four suits, but different and separate decrees will be entered in each case in reference to the amount of damages claimed.

Defendant filed exceptions in the four cases of want of protest on the part of plaintiff when the accident happened, and of no right or cause of action.

The allegations of the petition in this case indicate that the accident was unexpected and so sudden that the guests did not realize their perilous situation in time to enter a protest.

When the driver of an auto is driving at an excessive rate of speed or is otherwise negligent to the knowledge of the guest who fails to protest, the latter is guilty of contributory negligence. Pipes v. Gallman, 18 La. App. 434, 173 La. 158, 136 So. 302. Such a defense is more properly disposed of with the merits.

The other exception is one of no right or cause of action.

In the petition, it is alleged that, in attempting to pass ahead of another car going in the same direction, Mrs. Salim Karre increased her speed, and in so doing lost control of her auto, causing it to zigzag across the highway; that she continued to press her foot on the accelerator, instead of applying it to. the brakes, striking the car in front, turning her auto across the highway into the ditch, where the parties were injured. It is also alleged that at the time the highway was free of traffic except the auto ahead, with no pedestrian in sight; that on the surface of the . road there was more or less loose gravel; that after Mrs. Salim Karre lost control of her car, she continued to press violently on the accelerator, r,hus increasing its speed to at least 50 or 55 miles an hour; and that this speed under the alleged existing conditions was excessive, dangerous, careless and negligent, and in consequence thereof the auto left the roadway and tumbled into the ditch.

The facts so alleged, with the averment that the speed at which Mrs. Karre was traveling was excessive, careless and negligent, causing the auto to turn over, and which resulted in the damages claimed, are sufficient in law to set out a cause or right of action.

Counsel for defendant refer to the allegation where plaintiff, among her other averments, said: “That upon the surface of said public highway there was more or less gravel.” This averment cannot be converted into an allegation that the accident was due to the loose gravel on the roadway so as to destroy the other allegations, including the assertion that the accident was the result of the careless and negligent driving of Mrs. Salim Karre.

The contentions urged by counsel for defendant in support of the exceptions present issues which properly belong to the merits, where they were correctly relegated for trial by the district judge.

MERITS

Mrs. Elizabeth Reggie was sitting on the front seat of the car, next to Mrs. Karre, who was driving. On the rear seat were Mrs. Fred Reggie, plaintiff herein, Mrs. Zwan, and Mrs. Pete Karre.

We will first take up for consideration the defense that the parties, plaintiffs in these four suits, were guilty of contributory negligence because they failed to cry out or protest at the time of the accident or prior thereto, to the effect that Mrs. Salim Karre was going at an excessive or dangerous speed, or as to her mismanagement of the auto.

The record shows that Mrs. Karre, when she came at a distance of about 20 feet from the other car which was traveling in the same direction, was then going at about 35 or 40 miles, an hour. When at about that distance of the other car, Mrs. Elizabeth Reggie, who was sitting in the front seat, as hereinabove stated, referring to Mrs. Karre, testifies as follows:

“She start to zig-zag when she was a few feet from the car. When she come to the car she brushed the car. Instead -of put her foot on the brake to stop she put it on the gas and we went in a minute.”

Asked if after she put her foot on the gas if she was moving at 50 miles an hour, her answer was:

“She was going before she put her foot on the gas. We flew that time.”

It was, she said, after she had started zigzagging from one side of the road to the other that Mrs. Karre brushed the bumper or side of the other car, and then returning to her former expression, she says, “we flew.”

Mrs. Reggie testifies that she then said:

“ ‘Look out Mary’ and we are gone. That’s all I know.”

There can be no doubt from the evidence that this zigzagging, brushing of the other ear, and the' turning of the car into the ditch occurred almost instantaneously or in the twinkling of an eye. Mrs. Elizabeth Reggie who was sitting on the front seat had no time to realize that the car was moving at an excessive speed, except the time when she cried out to Mary “look out,” which was obviously an exclamation of sudden fear, when she saw that Mrs. Karre had put her foot on the gas instead of putting it on the brakes. Evidently when Mrs. Elizabeth Reggie saw her perilous situation, she just had time to utter an exclamation of fear which was expressive of her imminent peril, and she cannot be charged to have failed to give the warning which may be expected of a guest in the circumstances, where the law requires it. Pipes v. Gallman, 173 La. 158, 136 So. 302.

The three other plaintiffs who were occupying the rear’ seat noticed that the car was zigzagging and was increasing its speed, did not know that the driver had put her foot on the gas, never realized the danger in which they were placed, and cannot be held to have failed to give timely warning.

We therefore find no merit in this defense of lack or want of protest urged by defendant.

There is no question but that after Mrs. Karre began zigzagging in her effort to run ahead of the other car that she lost control of it, increased its s.peed, ran against the fender or side of the other car, and plunged across the roadway into the ditch.

Mrs. Salim Karre, the driver, testifies, as follows:

“We was going on the road. I see a car in front of me. I tried to pass it. Before I got to the car I lost control of the wheel. The car go this way and that way. Well, when I see I am going to the other car and I don’t want to hurt the people, I pass this way to the car. I do not know, I cannot tell you if I hurt the car or not. I got excited. I want to put my foot on the brake, I put my foot on the gas. I made mistake and I went right over to the ditch. Yes, sir, I wanted to put it on the brake, I made mistake. I don’t want to hurt the people. I turned my wheel too fast.”

In the case of Lawson v. Nossek, 15 La. App. 207, 130 So. 669, 671, the driver of the car gave the following explanation of the occurrence:

“Well, I don’t know. We were just driving, I thought on a gravel road, and all of a sudden I lost complete control of the car, the wheel. I tried to stop it and instead of that, it went faster and faster and I could not stop it. Just went from one side of the road to the other. Just swerved. And then I heard them hollering ‘Raye! Raye!’ But instead of stopping, it went faster and all I knew was that the car was turned over and I tried to get out.”

Asked, did she try to s’teer the car in the middle of the road, the driver in that case replies: “I tried but I could not.”

In commenting on the evidence in that ease, the court said:

“Common prudence and caution dictate that when an automobile begins, to swerve or zigzag from one side of the road to the other, that when a driver begins to lose control, he should slow down or stop. Defendant realizes that she should have done that. The way to stop an automobile from running is to cut off the supply of gasoline and apply the brakes. Defendant does not say that she did either. She says that she tried to stop the car, but she does not say what method she used to accomplish that purpose. According to her version, the car, instead of slowing down, went ‘faster and faster.’ It swerved and., zigzagged from one side of the road to the other.”

In that case, the court said also that:

“Automobile driver not applying brakes and cutting off gas to stop automobile going up-grade when losing control held grossly negligent.”

In that case the auto was going upgrade; still the court held not applying the brakes and cutting off the gas was. gross negligence.

The facts here are that the car was running on level ground over a highway 50 or 60 feet in width, and that, instead of applying the brakes, the driver pressed on the accelerator, turned her car around, and ran across the roadway.

In her explanation of the accident, Mrs. Karre says:

• “I don’t want to hurt the other car. * * * I turned my wheel too fast.”

Here is a clear admission of her fault in the statement: “I turned my wheel too fast.” The explanation of the occurrence given by Mrs. Karre is practically similar to the version of the driver in the Nossek case, with the only difference that it shows greater fault on her part than appears in the cited case.

The right of a guest to recover for injuries. occasioned in automobile accidents on account of the negligence of the driver is well settled. Lawrason v. Richard, 16 La. App. 434, 135 So. 29; Denham v. Taylor, 15 La. App. 545, 132 So. 372.

Counsel for defendant cites Beard v. Morris & Co., 156 La. 798, 101 So. 147, 148, where the court expressed itself, as follows:

“It is elementary that for plaintiff to recover he must show that defendant was at fault in causing the accident. Without proof of such fault there can be no recovery.”

No one disputes the correctness of that rule.

The proof shows that when Mrs. Salim Karre came at about 20 feet from the car in front and increased her speed to pass ahead, that she was then traveling between 35 and 40 miles an hour. Counsel for defendant say that the speed at which she was then moving was not excessive. Counsel therefore contend that there is nothing to show that she was then guilty of any negligence in thus attempting to speed ahead of the other car. That is perfectly true. It was at the time she increased her speed to pass ahead that her car began, to zigzag from one side of the road to the other, finally brushing against the side of the other car and turning over.

Counsel say there is no evidence to show that she was at fault when her car began to zigzag, as she was then running at a legal rate of speed.

The record shows that the highway where the accident occurred is 50 or 60 feet in width. The evidence clearly shows that there was no traffic at that time on the roadway, no car coming from the opposite direction, and no pedestrian in sight. The fact is, that the only car besides the one Mrs. Karre was driving was the car in front of her; that the road was open and free, with lots, of room for Mrs. Karre to pass ahead in absolute safety. There is no proof whatsoever to show that there was any accumulation of loose gravel or other obstruction on that roadway which could have interfered in the slightest with the free movement of Mrs. Karre’s car. It also appears that her car was. new, and that it had no defect in its mechanism or anything that could have interfered with its safe management or control. It is therefore impossible to ascribe her zigzagging t© loose gravel in the roadway, to heavy traffic, to another car coming from the opposite direction, or to pedestrians, or to any other impediment that could have affected the safe management of her car. This zigzagging can therefore be accounted for by only attributing it to her faulty or incompetent running of the car. It is. impossible to see how it can otherwise be explained. It was through her fault, we find, that she lost control of her car and then zigzagged from one side to the other across the road. The fact is she testifies that before she got to the other car she lost control of the wheel, that the car, to use her own language, “go this way and that way,” meaning zigzagging.

Counsel for defendant may say that our reference to the facts surrounding its occurrence, hereinabove given, which in our opinion show that Mrs. Karre was at fault when she lost control of her car, fall under the doctrine “res ipsa loquitur,” which shows want of due care, but is- not conclusive.

The testimony of Mrs. Karre goes further than what we have quoted, when, after stating she had lost control of the wheel, she continues and testifies, as follows: “I got excited. I put my foot on the gas. I made mistake and I went right over to the ditch.”

In the case of Lawson v. Nossek, above cited, the court, after applying the doctrine the “thing speaks for itself,” said:

“Automobile driver not applying brakes and cutting off gas to stop automobile going up grade when losing control held grossly negligent.”

Here, the auto was going on a level, smooth highway, certainly with no upgrade, and instead of applying the brakes, the driver actually set her foot on the gas, thus suddenly increasing its speed from 35 or 40 miles an hour, to 50 or 55, causing the car to bump the other and to plunge across the road into a ditch, in which there was water about four feet deep. If there was gross negligence on the part of the driver in the Nossek case, there was more negligence in the case at bar. “I don’t want to hurt the other car in the front,” says Mrs. Karre in her testimony. “I turned my wheel too fast.” In this last-quoted statement, she refers to no mistake, but clearly recognizes she was at fault by saying, “I turned my wheel too fast.”

Counsel for defendant say that a sudden perilous situation existed at the time of the accident, and that Mrs. Karre could not have been expected to exercise the same presence of mind which would have been required of her under different circumstances.

Counsel refer to Buckner v. Powers, 12 La. App. 630, 125 So. 744, where it appeared that a car had come immediately in front of the driver; that he acted quickly and under impulse to avoid the accident. He was confronted with a sudden emergency, and if he made the mistake of turning to his left instead of his right, the court said, he could not be charged with negligence. This doctrine has been frequently applied by this court where the driver had been confronted with a sudden emergency when another car unexpectedly appeared in his pathway, or some obstruction that could not have been seen suddenly impeded his passage. Such emergencies, however, must not be the creation of the driver himself, because if he has brought about a dangerous situation, he cannot, as was said in a number of decisions, excuse himself on the plea that owing to that condition he could not avoid the accident. Quatray v. Wicker et al., 16 La. App. 515, 134 So. 313.

The evidence shows that the perilous situation in which Mrs. Karre was placed was the result of her own fault or negligence, and hence the defendant cannot escape liability on the plea of sudden emergency, as contended for by his counsel.

We have carefully examined the evidence in this, case, and in the other three companion cases in reference to the quantum of damages, and find that the respective amounts granted therein are fair and just, and should not be increased as prayed for by appellees.

Separate decrees will be entered in the other cases.

In this case, the judgment is affirmed, with cost.


text:
    No. 914
    First Circuit
    CHAMBERLAIN v. HILLYER-DEUTSCH-EDWARDS, INC.
    (February 8, 1932. Opinion and Decree.)
    (March 8, 1932. Rehearing Refused.)
    Julius T. Long, of Shreveport, attorney for plaintiff, appellant.
    Thornton, Gist & Richey, of Alexandria, attorneys for defendant, appellee.
   MOUTON, J.

It is alleged by plaintiff that while throwing pieces of wood to be used for fuel in an engine operating a skidder for defendant company a piece of wood fell back, striking him in the abdomen, bruising, impairing the tissues, tearing the ligaments, nerves, muscles, and tissues in that area, causing a hernia or rupture, and incapacitating him from doing work of any reasonable character.

He is demanding $8.77 weekly compensation, not to exceed 400 weeks.

His demand was rejected, and he appeals.

Plaintiff averred that he was injured on June 21, 1930, and so testified, also some of his witnesses, that the accident occurred on that date.

It may be stated here, at the outset, that plaintiff worked with defendant company up to the noon hour of May 30, 1930; that he never worked for the company thereafter, from which it follows that if he was injured, as he alleges, the accident occurred on May 30, 1930. In connection with the above statement, it is proper to state that plaintiff went to work for defendant company on May 21, 1930, was then examined by Dr. Cather, physician for the company, and that he had no hernia or rupture at that time.

The case being cleared of all doubts on the foregoing point, we shall now proceed to the decision of the vital controverted issue involved herein, which is as. to whether plaintiff suffered the rupture complained of in his petition.

Plaintiff was pitching slabs or pieces of wood on a skidder May 30, 1930, with Evans and Soileau, two fellow workmen. Durant was fireman on the skidder and threw these slabs in the engine to operate the skidder.

Plaintiff says he was pitching wood on the skidder; that he had put a piece of hardwood weighing about fifteen or twenty pounds on top of the pile and that it fell at a distance of about ten feet from the skidder on the right side of his abdomen inflicting the injury of which he complains. Plaintiff fixes the time of the accident at about twenty minutes before noon, and says he continued to work until twelve o’clock, and then laid under a tank. He ate his dinner; that he quit work at noon; that he told Winchester, foreman of the skidder, and to others, that he had' quit. Plaintiff claims that when he was injured Evans and Soileau, who were assisting him in putting wood on the skidder, were then in the woods fighting a fire, and were not present. At the time he claims the accident happened, Durant, the fireman,. was on the skidder only eight or ten feet from where plaintiff was pitching the wood, and Ellis, with Seamen, two drum fullers, were also not over eight or ten feet from him.

Not one of these three fellow workmen saw the accident or had the slightest idea that it had happened, so they testified. Plaintiff said nothing to them, continued to work until noon, laid under a tank awhile, and then took his dinner. He showed neither by word nor act that he had been injured. According to his testimony, a piece of hardwood, weighing fifteen or twenty pounds, fell from a height of ten feet on his side, and according to his allegations “striking him heavily in the lower right part of his abdomen thereby tearing, bruising and seriously and permanently injuring and impairing the tissues, ligaments and muscles and nerves in that area, etc.” If he had received such a blow from a piece of wood of that weight falling from such a distance from a higher level, we have no doubt that there would have resulted the tearing of the ligaments, muscles, and nerves, as averred by him, and which could not have been called an exaggeration.

It seems a little singular that these three fellow workmen did not see the accident, but it is still more remarkable, if it occurred,- that plaintiff did not give the slightest -manifestation, by word or by action, that he had been so severely injured and, without making any complaint whatsoever, placidly continued to work up to twelve o’clock, laid awhile under a tank, and proceeded to take his dinner. It seems to us from the character of the accident, as described in plaintiff’s testimony, and as alleged in his petition, the suffering he experienced must have been extremely painful, if not intense, and that there would have been some manifestation of his condition by complaint or other communication with his three fellow workmen around the skidder.

The proof also shows that his two companions, Evans and Soileau, returned about noon from the woods where they had been fighting the fire to the skidder on which they were engaged with plaintiff to pitch wood. Strange again to say, .that plaintiff told them nothing of the accident. More than that, it appears that the skidder crew consisted of eight men, and that plaintiff failed to mention the accident he claims to have suffered to any member of this crew excepting Loyd Lasha, a friend and neighbor, to whom he says he spoke about the injury. The reason he advances for not speaking about it to these members of the crew is that he was “ashamed” to talk about an injury of that character.

Counsel for plaintiff says in his brief that he knows of but few persons that have hernias who are not “ashamed” of it, “and do not dislike the general public to know it.”

If a person knows he is so afflicted, it is probable, that he would dislike for others .to know it, and would not say anything about his trouble. Such a feeling might come to a man who knows that he has suffered a rupture. In this case, however, if plaintiff was struck as he claims, when the accident occurred, he did not know it had resulted in a hernia, as clearly appears from his evidence. It seems to us that when the accident happened, or soon thereafter, if it occurred, plaintiff not knowing then that he had suffered a hernia, he could not have been “ashamed” to say to Durant, Ellis, and Seaman, who were a few feet from him, that he had been struck by a heavy piece of wood on his right side. He could not have been “ashamed” to make such a statement to his fellow workmen on the skidder. He had then nothing secret to divulge about a hernia or rupture, and nothing of which he could be ashamed to divulge.

The proof shows that, after quitting work at noon on May 30th, plaintiff rode in a car with Cummings to Oakdale, where he resided. On this, trip it appears that he never said anything about his injury to Cummings. At that .time it might be said plaintiff had realized he had been ruptured, and because of shame or timidity he had refrained from broaching the subject to Cummings, but it is hard to believe that, under the impulse which would have resulted from such an accident, he would have said nothing to his companions on the skidder, nor soon thereafter to any of the eight members of the skidder crew, with the exception of Loyd Lasha.

It occurs to us that if plaintiff had suffered an accident of that character he would, under the circumstances above stated, have communicated it to the workers on the skidder, to some other of its members, and would not have restricted the information to Lasha only. It seems to us that a man of the most timid disposition would not have been so reticent under such circumstances.

It is also shown that plaintiff did not give the faintest appearance of having been hurt on that occasion, and that he did not say to any one immediately after he claims to have been injured, excepting Lasha, that he had been hurt, nor to Mr. Cummings, with whom he rode to Oak-dale.

It is hardly believable, from the description given in plaintiff’s petition, that he suffered no pains, if he experienced such an accident. It is even more remarkable that he did not manifest, in any way, that he had been so injured, either at the time, or soon after. If all that he said be true, he appears to be a man of extreme timidity and, at the same time, of unusual fortitude, a rare combination.

Lasha says plaintiff told him about the injury and showed him the bruised place on his right side. This took place, according to Lasha, a little after the noon hour, when plaintiff at the time had left his work.

Conly, another witness for plaintiff, says that plaintiff told him he had been hurt and had quit his job with defendant company, and showed him a blue spot on his right side. This statement by plaintiff to Conly was made, as far as deducible from the record, on the day when plaintiff claims to have been injured, when he was returning to his home.

Randle, testifying for plaintiff, makes a similar statement, saying it was made the day after the accident, and that plaintiff showed him a purple bruised spot, where he said he was hurt.

Richmond, another witness for plaintiff, says while he was at the house of plaintiff’s father the morning after the accident to borrow a plow he went in; that plaintiff made the same exhibition of the injured spot and explained how he was hurt.

It seems rather singular that plaintiff would have no hesitancy in showing the bruised spot to his intimates, but was so timid or modest about it that he would not mention the subject to others and members of his crew, even before he had realized that he had been ruptured.

Counsel for plaintiff contends that the judgment of the lower court is grounded on inferences and presumptions which were permitted to overturn the positive testimony of reliable witnesses who testified for plaintiff. These inferences and presumptions referred to by counsel, if we properly appreciate his argument, were drawn by the court from the improbable account of the injury given by plaintiff; his failure to complain immediately thereafter to those who were working near him on the skidder; his silence in respect thereto after his alleged injury, with the exception of his disclosures to Lasha, one of the eight members of the crew; to his subsequent silence about the matter while riding to his home with Cummings.

For the reasons hereinabove given, we do not find that the trial judge was not justified in drawing these inferences and presumptions in passing on the probative value o^ the evidence referred to.

Counsel argues that such presumptions should not be allowed to outweigh the positive testimony of Lasha, Conly, Randle, and Richmond, to whom plaintiff stated he had been hurt, and exhibited the spot where he had received the injury.

There is, we must say, some merit in that contention, although we must also state that the account given by plaintiff of the alleged injury appears, to us as being extremely improbable for the reason hereinabove given.

Counsel, in support of his contention that the positive testimony should be believed in preference to such inferences and presumptions, refers to a quotation from 10 R. C. L., sec. 194, Evidence, as follows:

“When a disinterested witness, who is in no way discredited by other evidence, testifies to a fact within the knowledge of such witness, which is not in itself improbable or in conflict with other evidence, the witness is to be believed, and the facts so given are to be taken as legally-established.”

In order .that we may make a correct application of that rule of evidence, it is. proper to consider the quotation in two parts. Proceeding thus to apply it, it must be noted that the quotation begins with the words: “When a disinterested witness * * * testifies to a fact not itself improbable” the witness should be believed. Here it must not be forgotten that proof that the alleged accident . occurred depends on the testimony of plaintiff, as no one else present at the time claims to have seen it, or then heard of its occurrence. The fact that any such accident occurred therefore rests altogether on the testimony of the plaintiff, who is unquestionably not “a disinterested witness,” words which we find at the very beginning of the quotation. Such a fact testified to by a disinterested witness, the quotation further says, “which is not in itself improbable or in conflict with other evidence, etc.” The fact that such an accident occurred, it must be observed, is extremely “improbable,” for the reasons- above given, unnecessary here to repeat.

In the application of that rule, it must be particularly noted that, after referring to a fact “not in itself improbable,” the rule says “or in conflict with other evidence, etc.” The quotation of the latter part of that rule affords here a crucial test for a proper application of the rule to the evidence in the case. In making that statement, we have reference to the testimony of Dr. Cather, who testified as a medical expert during the trial.

Dr. Cather testified that he made an examination of plaintiff on June 11, 1930; that he was then O. K., and had no hernia or rupture; that he remembered when he came into his. office for an examination, but that he relied on the records of his office. The judge, in his written opinion, says Dr. Cather made a written report of that examination and signed it; that, although it was shown to him, he could not find it in the record.

If plaintiff had received such a lick on his abdomen from a heavy piece of hardwood, as testified by him, and which had caused the laceration to his internal ligaments, muscles, etc., as. described in his petition, there can be no doubt that a hernia would have been easily detected, if it were not fully apparent, when Dr. Cather examined plaintiff on June 11, 1930, about ten days from the date of the alleged accident. Hence, there can be no doubt that plaintiff had no hernia on June 11th, and unquestionably did not suffer any on May 30, 1930. The finding of this medical expert is certainly “evidence” that plaintiff .then had no hernia.

This brings us to that portion of the rule which, in referring to a fact sworn to by a disinterested witness, says, not “in conflict with other evidence.” Obviously, the testimony of plaintiff .that he had suffered this hernia on May 30, 1930, was directly in “conflict with the evidence” of Dr. Cather, which shows he could not have experienced a rupture at that time.

The witnesses, Lasha, Conly, Randle and Richmond, it is appropriate to state here, did not see the alleged accident, and testified only to the injured spot on plaintiff’s side, and to the statement plaintiff had made to them in reference thereto. This evidence was only intended as corroborative of a fact which plaintiff had to establish, and which the record shows never existed. Even if such evidence could be considered otherwise than as of a confirmatory character it would, like that of plaintiff, be in “conflict with other evideuce,” that is, the evidence of Dr. Cather. It is true that in an examination of plaintiff by Dr. Cather in August, 1930, therefore subsequent to his examination June 11, 1930, he found that plaintiff had a hernia. This does not in any way indicate that he had any trouble of that character in June, 1930, and much less in May, 1930, and is therefore of no consequence in the solution of this case.

Counsel for plaintiff quotes the following excerpt from an address of Lord Tomlin of England, delivered before the International Law Association, viz.:

“Facts are really more important than theory and that without a due consideration of them there is no justice at all.”

In the large majority of cases brought up to this court on appeal, we find that a correct solution of the issues depends on a proper analysis of the facts, and that few are the cases that present for determination questions purely of law, except where technical issues are involved. This is the reason that we invariably give our closest attention to the facts of record. In the instant case, as usual, we have made an exhaustive study of the evidence and must say that, considering the issues from every angle, we have failed to find any error in the judgment under review.

Counsel for plaintiff has marshaled every fact and circumstance possible in support of his contentions, which he has presented with fervor and earnestness, with care and ability. In our desire to meet all of his contentions, we have, we regret to say, written an opinion much too long, but felt compelled to do so, that the contested question be fully considered and reviewed.

We find with the district judge that plaintiff has failed to prove his demand with the legal certainty required, and that it was correctly denied.


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    No. 920
    First Circuit
    WOODS v. LAKE CHARLES COMPRESS & WAREHOUSE CO., INC.
    (February 8, 1932. Opinion and Decree.)
    (March 8, 1932. Rehearing Refused.)
    (April 25, 1932. Writs of Certiorari and Review Refused by Supreme Court.)
    M. R. Stewart, of Lake Charles, attorney for plaintiff, appellant.
    C. Y. Pattison, of Lake Charles, attorney for defendant, appellee.
   MOUTON, J.

The opinion of the district judge is as follows:

“Sam Woods, plaintiff, while working for the defendant, was. rapidly pushing an empty truck across the warehouse floor, when the flange or some part of the bottom of the .truck struck an obstruction on the floor. Momentum caused the truck to fall forward, with the plaintiff on top of it. On the bottom side of the truck are two projections, which rest on the floor when the truck is in a horizontal position. Since the truck turned over in a forward direction, it fell with these projections sticking upward, and plaintiff fell with his stomach on one of them, causing a hernia.
“The plaintiff underwent an operation/ for the hernia, which was entirely successful, and the defendant paid all expenses in connection with the operation, as well as compensation for the time during which the plaintiff suffered disability from the hernia.
“Woods alleges that when he fell with the truck, his head struck the floor, causing severe head injuries in addition to his other hui'ts, all of which he now claims activated a dormant case of syphilis, which plaintiff claims caused paresthesia of - the entire left side of his body.
“That plaintiff now has paresthesia of his left side is clearly shown by the record, and was demonstrated by the severest sort of tests conducted in my presence. It is not contested that plaintiff is disabled to pei’form any sort of work.
“Defendant urges that Woods’ disability is due solely to syphilis, of which he now suffers, .the Wasserman test showing a plus four.
“Counsel for plaintiff, in urging the extent of plaintiff’s injuries, claims that¿ plaintiff’s head struck the floor, at the time of the accident, with such violence as to cause him to become unconscious, and he cites the testimony of Fontenot (Tr. 17) and that of the plaintiff (Tr. 23) on this point. This witness and Keys, another colored man, testified that they saw blood coming from plaintiff’s mouth and nose (Tr. 19, 20).
“Fontenot testified that plaintiff did not work after the accident, and on this important point he is contradicted by the white witnesses Quirk and Reese (Tr. 49, 51) both of whom testified plaintiff trucked bales of cotton after the accident.
“Fontenot and Reese, in their testimony as to the blood on plaintiff’s face, are contradicted by Quirk and Lewis (Tr. 49, 52).
“Plaintiff gave to the physician, Dr. White, who attended him throughout his trouble, no history of any head injury (Tr. 40), and he made no such complaint to his. wife (Tr. 47), nor to Palmer (Tr. 47) the latter seeing him right after the accident. The plaintiff complained of injuries to his side, not his head. (Quirk, Tr. 49; Reese, Tr. 51.)
“All of the above testimony, taken together with the statement of Reese that plaintiff was not unconscious (Tr. 51), and the fact that plaintiff continued for about twenty minutes after the accident to truck bales of cotton (Tr. 47) leads me, .to conclude that he was never unconscious, and sustained no considerable, if any, injury to his head.
“The record clearly shows that plaintiff was a strong, husky man, before the accident, able to do heavy and hard work, and that an examination given May 26, 1927, preliminary to obtaining a marriage certificate, showed no disease or abnormal condition (Dr. Hayes, Tr. 6). Another examination, by Dr. Combre, in February, 1930, also showed no evidence of disease (Tr. 11). Plaintiff now weighs 20 to 25 pounds less than he did before the accident.
“The fall on the truck, which struck a truck heel into plaintiff’s side, immediately caused a hernia (Tr. 40). This showed through his clothes (Tr. 18).
“Drs. Hayes and Combre, the colored doctors, were of the opinion that the blow in the side could have caused his present condition (Tr. 7, 8, 13, 14). Dr. Tuten, who first saw plaintiff about November 1, 1930, was of the opinion that plaintiff’s injuries caused his trouble (Tr. 31). Dr. Watkins, who operated on the plaintiff, was of the opinion that there is no connection between plaintiff’s paresthesia and his injuries, and that his present condition is due wholly to disease (Tr. 33, 34). This is also the opinion of Dr. Holcombe (Tr. 37) and Dr. White (Tr. 42).
“Dr. Tuten admitted that a patient with syphilis, showing a Wasserman plus four, often is in plaintiff’s condition, without any injury at all (Tr. 31). That this is so is shown by the testimony of Dr. Watkins (Tr. 36) and Dr. White (Tr. 42).
“The plaintiff was injured September 9, 1930, and the ease was tried April 17, 1931. Six weeks prior to the trial, or say March 1, 1931, plaintiff had no paresthesia (Dr. Watkins, Tr. 33). On April 2, 1931, according to Dr. Hayes, plaintiff had “slow” sensation (Tr. 7). On January 12, 1931, Dr. Combre found nothing wrong with plaintiff’s feelings of sensation (Tr. 7, 10). Dr. Tuten found loss of sensation as early as ‘November, 1930,’ (Tr. 32).
“Dr. Tuten, plaintiff’s witness, must be in error as to the date of plaintiff’s loss of sensation in his left side, for Drs. Watkins and White were positive plaintiff had no loss of sensation before March 1, or March 26, 1931, and Dr. Combre found no such loss on January 12, 1931, long after Dr. Tuten found that trouble. Dr. Hayes found a slow sensation on April 2, 1931. Drs. White and Watkins were more specific in their testimony on this point, recalling reasons why they remembered the point, and I must accept their recollection as to the date plaintiff’s trouble began.
“Dr. Tuten said that paresthesia resulting in a syphilitic patient from trauma would develop in ten days from the injury, but sometimes as late as two or three months (Tr. 30).
“It was the opinion of Dr. Watkins that paresthesia showing up in plaintiff after two months from the injury would be the result wholly of disease (Tr. 36). Dr. Holcombe said ‘the rank and file of such cases’ develop before six weeks (Tr. 39), and Dr. White said they would develop in two or three weeks (Tr. 41).
“According to Dr. White and Dr. Watkins, plaintiff’s trouble did not develop until about seven months from the accident, and according to Dr. Combre’s examination on January 12, 1931, certainly not before four months from the accident, and no witness would say that paresthesia would develop as. late as four to seven months from an accident.
‘Where a plaintiff suffers from syphilis which has reached the stage that commonly results in paresthesia, and has suffered traumatic injury producing hernia, paresthesia which developed subsequent to the injury, but months after the experts said it would have developed, had it been caused by the trauma, it must be held that expert opinion to the effect that the injury did not contribute to the paresthesia, outweighs any inference that might be drawn from the facts that plaintiff did have an injury, and months thereafter suffered the loss of sensation in his left side. Plaintiff has been unable to establish his case.”

After a most careful reading of this record, we have not been able to find where the lower court has fallen into any error in its reference to the facts of the case and in its analysis of the evidence. A review of the testimony is therefore unnecessary.

There is no doubt that plaintiff, when the accident occurred, was suffering with a dormant syphilitic disease. The preponderance of the expert medical evidence shows clearly that the trouble of which he complains was attributable solely to his pre-existing ° syphilitic condition which had not been activated or accelerated by the injury he received while in the service of defendant company. In the absence of such proof showing that the injury caused the disease to become active or virulent, super-inducing his physical disability, it is well settled that plaintiff cannot recover. Behan v. John B. Honor Co., 143 La. 348, 78 So. 589, L. R. A. 1918F, 862, and other authorities therein cited.

Counsel for plaintiff refers with confidence to the case of Hammons v. Southern Carbon Co., 5 La. App. 187. In that case, as we understand the opinion, there was conflict in the opinion of the experts. The court, in commenting on that feature of the case, remarked that the experts, who had expressed the opinion that the disability was not attributable to the accident, had failed to state the reasons for their conclusions. It is altogether different in the instant case, as it appears here that most all of the experts expressed the opinion that the disability was not to be ascribed to the accident, gave their reasons for their conclusion, and, more than that, traced the case of plaintiff’s condition to his pre-existing syphilitic trouble.

With such expert evidence, we must conclude, as was concluded below, that plaintiff has failed to establish his case, and his demand was therefore correctly rejected.

We have also given due consideration to the alternative demand of counsel for plaintiff to have this case remanded. There is no legal ground shown to support such a demand, which is also denied.


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    No. 930
    First Circuit
    BOARD OF LEVEE COMRS. FOR ORLEANS LEVEE DIST. v. DALTON ET AL.
    (February 8, 1932. Opinion and Decree.)
    (March 8, 1932. Rehearing Refused.)
    (April 25, 1932. Writs of Certiorari and Review Refused by Supreme Court.)
    Wilkinson, Palmer & O’Hara and George Piazza, of New Orleans, attorneys for plaintiff, appellant.
    C. A. Blanchard, of Morgan City, attorney for defendants, appellees.
   MOUTON, J.

November 9, 1928, plaintiff board leased the trapping rights to defendants to all the lands of what is known as the Bohemian spillway.

The land is described in the lease as fronting on the Mississippi river between the lower line of the Bohemia plantation and the east bank of said river in the parish of Plaquemines down to the Guselich canal, and extending from the river to the bays and bayous that are a part of the sea, and it is further stated in the lease that this tract of land contains 32,000 acres, more or less.

The consideration for the lease was $1,000 per year, payable in advance, beginning with the signing of the contract November 9, 1928, and was for a period of three years, with the privilege of renewing thereafter for the same period of time.

The first payment of $1,000 was made in advance; defendants took possession of the premises, on which they carried on their trapping operations until November 7, 1929, two days prior to the 9th of November, 1929, at which time another payment was to be made in advance for the ensuing year, as was required under the stipulations of the lease.

On November 7, 1929, John Dalton, defendant, says he received a letter from Emmet Alpha in which he claimed he had a lease of lands situated in the Bohemian spillway which defendant had leased from plaintiff board. Alpha’s letter is in the record, and shows that he was claiming township 17 S., R. 15 east, situated in the Bohemian spillway under a “ten-year lease contract’’ from the Lake Borgne levee district. Dalton says Alpha exhibited his lease to him in New Orleans, where he (defendant) had gone on November 7, 1929, with the intention of paying next morning the $1,000, second installment on his lease, for the trapping rights of 1929.

Instead of paying the rent, as he intended, defendant submitted the Alpha letter to Chas. J. Donner, secretary of plaintiff board of commissioners. Meetings of the plaintiff board were held in February and March, 1930, and the minutes, show that the board had grave doubts as to whether it had title to the land claimed by Alpha.

At the meeting held in March, 1930, as appears from the minutes kept by the board, it was proposed, as a compromise which was not consummated, that the disagreement between Dalton and plaintiff might he adjusted by Dalton agreeing to pay for the lands that were not those leased to Alpha; that a survey would be made, and the suit for the second annual payment on the lease would in the meantime be held in abeyance. These proceedings of the board indicate that it had serious doubts as to its title to the land comprised in the Alpha claim.

Dalton says Alpha threatened him with eviction from the land in question, and Alpha testifies he told Dalton, if “they went” on it, he would have .them arrested.

Counsel quotes several decisions which say that ownership is not essential to make a lease valid. As a general proposition, it is well settled that a lessee cannot question or contest his lessor’s title. This doctrine is recognized in Tippet v. Jett, 10 La. 362; Dennistoun v. Walton, 8 Rob. 213; Nicholls v. Byrne, 11 La. 173, cited by counsel for plaintiff.

In those decisions, however, it is said that a lessee sued for rent, and in undisturbed possession of the premises, under the lease, cannot contest the lessor’s title. In most all of these decisions it is held that the lessee cannot contest the lessor's title when he is in “undisturbed possession of the premises.” Where his possession is disturbed, he must therefore have the right to attack the lessor’s .title.

Article 2703, C. C. says:

“The lessor is not bound to guarantee the lessee against disturbances caused by persons not claiming any right to the premises,” etc.

Here, Alpha was claiming a right to the premises, one of possession under his lease in contravention to a similar claim by defendants.

It has often been held that a person may let out the property of another, but in such a case, article 2682, C. C., says, he “warrants the enjoyment of it against the claim of the owner.” This warranty of enjoyment means that, whether the lessor owns the property leased or not, the obligation is imposed upon him to cause the lessee to be “in a peaceable possession of the thing during the continuance of the lease.” C. C. art. 2692. Possession is the life of the lease, and, if the lessee be disturbed therein, he has the right to contest his lessor’s title.

In this case, the defendants’ possession was disturbed by Alpha’s claim, by his .threat to institute suit and of arresting any one sent ' on the property by defendants. The action taken by plaintiff in the investigation of its title, its uncertainty as. to its validity, also show that it considered that defendants had suffered a disturbance in their possession, and in which plaintiff failed to quiet him in before the expiration of the trapping season of 1929, and justified them in their refusal to pay the second note on their lease, unless plaintiff be entitled to relief under the provisions of article 2701, C. C., which says, when the premises have been stated to be “of greater extent than .they in reality are, the lessee may claim an abatement of the rent, in the cases and subject to the provisions prescribed in the title: Of Sale.”

The difficulty in this case would be to apply this rule of abatement invoked by plaintiff, conceding that it should govern herein in the disposition of the issues. In the minutes of the meeting of the plaintiff board, March 18, 1930, it there appears the proposition of the attorney of the board for a compromise was made, provided defendants were willing to pay for the lands leased, not including the lands claimed by Alpha under his lease, and that, if they agreed to settle on that basis, the board would have a survey made and would hold the suit in abeyance. This .tentative offer by the board shows that a survey would have been necessary to determine the extent of the Alpha holdings. No survey was made, as no compromise was effected, and it is therefore obvious that the area of the Alpha claim is still undetermined.

Elam, engineer for the plaintiff board, stated he had made no survey of the lands contained in the Bohemian spillway, but testified that according to official maps there were about 33,000 acres in that area. He thereafter stated that, according to that computation, there were 4,300 acres in the entire acreage claimed by Alpha under his lease. Further on in his testimony, while testifying on this subject, he was asked as to what was the total area of land in T. 17 S., R. 15 E., which Alpha was claiming. His answer to that question is: “There is no official record of the area of that Township.” Then he says the area of land in a township is about 12,000 acres, but as the land is marsh and mostly water, the acreage of half a township is only about 2,600 acres.

With evidence of that character and in the absence of a survey, it would be impossible for this court to make an accurate, or even a proximate, deduction based on a smaller acreage .than was leased by defendants, in order that we might apply the rule of abatement for which counsel for plaintiff are contending.

We now pass to the claim in reconvention for a breach of the lease urged by Dalton, who appears to be the only defendant.

The record shows, as hereinabove stated, that defendant had possession of the premises during the trapping season of 1928-1929, and until October 7, 1929, when he refused to pay his rent. He is claiming expenses incurred by him in his trapping pperations during that .time which amount to a total of $7,052.

The items constituting .this large claim are for services of the partnership estimated at $4,000, for boat hire, groceries, gasoline, incidental expenses, advertisement for trappers, traveling expenses, car fare, and such like. He is also asking for the reimbursement of the $1,000 paid for his lease of 1928-1929.

Defendant testifies that from the fur season of 1928-1929 he thinks he realized $300: He now desires to recoup himself, not only for the $1,000 but also for the large expenses he claims he incurred in a bad financial venture — if we are to judge from the sum he realized. If defendant had not been.put in possession during the years 1928-1929, and he had been deprived of the enjoyment of the thing during that period, he might have laid claim for expenditures he had suffered to put his undertaking in operation, and for the $1,000 paid for his lease of the premises of which he had not enjoyed the possession.

His claim for these expenses is grounded on article 2696, C. C., which reads as follows:

“If the lessee be evicted, the lessor is answerable for the damage and loss, which 'he sustained by the interrruption of the lease.’’

All of those expenditures occurred, if they ever were incurred, prior to the interruption of the lease, which occurred on November 9, 1929. As the evidence shows that he realized $300 from his trapping operations in 1928-1929, for which he claims to have spent $7,052 prior to the interruption of the lease, instead of suffering damages, if we are to be guided by the result of the enterprise, we must say that the interruption of the lease very probably saved him from further financial loss.

The foregoing reasoning is based on a mere assumption that defendant had established his claim to the various items constituting his demand for the $7,052.

The district judge, in a careful analysis of this evidence, remarked that these items had not been supported by proof of any vouchers, receipts, or checks, and denied their recovery.

We fully approve his finding. For the reasons stated in his. written opinion, and for those above stated by us, we are of opinion that this demand for $7,052 was properly rejected.

In addition to his claim for the alleged losses .that he sustained, presenting the issue above disposed of, defendant is claiming $20,000 for profits he avers he would have realized during the trapping seasons, of 1929-1930 and 1931, and of which he claims he has been deprived, citing C. C. art. 1924, in support of that contention.

In the case of Schleider v. Dielman, 44 La. Ann. 462, 10 So. 934, 935, the court said:

“As a general rule the future profits of a contract cannot he included in the injury suffered by its breach, mainly for the reason that they depend upon so many and various contingencies that it is impossible for a court or a jury to arrive at any definite determination of the actual loss by any trustworthy method. They are openi to the objection of remoteness as well as of uncertainty.”

Similar expressions, in cases of this character, were given by the court in Mirandona v. Burg, 51 La. Ann. 1190, 25 So. 982, and in Blymer Ice Machine Co. v. McDonald, 48 La. Ann. 450, 19 So. 459.

The proof in this case, as we have before remarked, shows that out of an alleged expenditure of $7,052, incurred by defendant in the operation of his trapping enterprise, he had realized only $300.

Such a result affords no foundation whatsoever to support a claim of $20,000 defendant avers he would have realized as profits in the fur seasons of 1930 and 1931, of which he was deprived by the interruption of the lease. Such a claim has no foundation upon which it can rest, is too uncertain, remote, and conjectural to support a claim in damages.

Judging from the failure defendant suffered in his operations in 1928-1929, the interruption of the lease in 1929 was a fortunate circumstance that worked to his advantage, otherwise he might have persisted in his venture which might have ended in greater financial losses.

The court also rejected this claim for $20,000, and correctly.