text:
    No. 2239
    Second Circuit Appeal
    WALTER LAGRONE v. McINTYRE LUMBER CO., INC.
    (Feb. 3, 1925, Opinion and Decree.)

      (Syllabus by the Editor.)

    1. Louisiana Digest — Master and Servant— Par. 158.
    An employee riding on employer’s handcar running on employer’s tramroad from the corral to a boarding house at the mill run by employer’s authority was performing services arising out of and incidental to his employment in the course of his employer’s trade business and occupation within the Employer’s Liability Act No. 20 of 1914, Section 1, Par. 2.
    2. Louisiana Digest — Master and Servant— Par. 160 (j).
    Where there is no evidence to refute employer’s testimony given two weeks after his discharge from the hospital that his leg was stiff and dead, a judgment for compensation for sixty per cent of his previous wages for the period of disability not exceeding three hundred weeks under Employer’s Liability Act No. 20 of 1914, Sec. 8, Subsection 1 (a) (as amended by Act 43 of 1922) is correct.
    (The recent amendment is Act 216 of 1924. Editor’s Note.)
    Appeal from the Second District Court of Louisiana, Webster parish, Robert Roberts, Jr., Judge.
    This is a suit under Employer's Liability Act No. 20 of 1914, by an injured employee for compensation.
    There was judgment for plaintiff and dedenfant appealed.
    Judgment affirmed.
    Joel L. Fletcher, of Shreveport, attorney for plaintiff, appellee.
    Drew & Drew, of Mindén, attorneys for defendant, appellant.
   CARVER, J.

Plaintiff, a , negro laborer, sues his employer, the defendant company, claiming compensation under the' workmen’s compensation law. (Act No. 20 of 1914 and 'amendments) for injuries re-received on being thrown where he worked, to defendant’s mill, where he hoarded.

Defendant denies liability on the alleged ground that at the time of the injury plaintiff was not in its employ, claiming that he was employed by the day, and the day’s work being finished the employment for that day ceased; that his use of the handcar was unathorized; and that he boarded where he did, at the mill, contrary to the wishes of defendant company which had provided a boarding place at the corral which he should have used.

The lower court found in favor of the plaintiff, awarding him $9.90 per week, being sixty per cent of his wages, for a period of not over three hundred weeks and defendant appeals.

It it not denied that the injury occurred while plaintiff was riding on defendant’s handcar running on defendant’s tramroad from defendant’s corral to a boarding house at defendant’s mill run by defendant’s authority.

Defendant claims, though, that it did not authorize the use of the handcar, and that plaintiff should have boarded at the corral boarding house .instead of the mill boarding house.

Plaintiff testified, page 4, that he used the handcar because told to do so by Mr. Cox, defendant’s team boss, who was the man that hired him. Mr. Cox does not deny this, testifying, page 26, as follows:

Q. Had you argued with these boys about using this car?
A. Yes, sir.
Q. What did you tell them?
A. I told them from time to time not to run the car so fast; that some of them would get killed; and they did run it as hard as they coujd every time they left; run it as hard as they could.

Mr, Wheless, president and manager of defendant company testified, page 17 as follows:

Q. Now, Mr. Wheless, did you furnish any mode of transportation for the men to come into the mill?
A. No, sir, we did not, we brought onp hand car for the track crew to do the work on the track with, but some of the men that stayed at the mill I presume asked permission to use the hand car; I' know they did use it; the .section crew might have let them have it for some reason, for convenience the men used it; but that they had no authority from us.

He further states the mill was two and three-eighths miles from the corral.

There is no proof that plaintiff or the other hands were prohibited from using the handcar.

Under this state of facts we think the defendant must be regarded as having at least tactily consented to the use of the handcar.

As to the boarding place, Wheless testified, page 15, that the corral and mill being too far apart to expect the men to walk he provided “a house; all houses that we could secure within a reasonable distance around the camp, to be used as tenant houses for our men... Among others, we rented from F. H. Drake through Mr, Cox a. large house, about 200 yards from the corral; especially rented it for the boarding house”.

He further testified, page 16, he put Li Kennon in it to accommodate the men and that he also arranged a tent with wood-floor and four foot wood walls as a sleeping tent for any of the men that would stay there. Further, “the attraction in at the mill was more, so that most of them insisted on going into the mill every night. We did not want them to do it; it was a ‘detriment to our organization as a matter of fact as- we wanted them to 'stay out there at the work and we did everything we could to induce them to stay there.”

■ He further states that he did not know just how many stayed out at the corral. Subsequently he named six as staying out at the' corral, but we do not understand him to mean that they all stayed in the boarding house.' These six were: Jerry Turk; Authur Jackson, Arthur Holland, Tom Holland, the foreman, H. W. Cox; and Ralph Cox. He says the two Hollands and the two Coxes were white men; that Arthur Holland had a family, and Tom Holland boarded with him.

He further says that he sent beds out, enough for the entire crew, which beds he afterwards saw, some at Mr. Cox’s house and some in the sleeping shack.

Cox testifies, page 28, that L. Kennon kept the tented boarding house but that ho one stayed there with him except Jerry Turk and B. T. Rambaud, one of whom had. a room in the house and the other boarded, and that the boys that worked but among the teams and logged, boarding some at the mill plant and some at farm houses.

Lucien Walker, a witness for plaintiff, says the mill had two tents and two dwelling houses; that' there was no boarding house at the corral; and the tents had harness in them. He says he never heard of a boarding house out there and did not know where Kennon’s place was; that the two dwelling ' houses had white people in them. - We suppose these were the Coxes and Hollands.

' The plaintiff states, page 4, that the company did not have any place for him to stay out at the' corral and that Mr. Cox said he would fix a place out there and would try to do so the next week. He further says:

■ Q. Out where you work?
A. Yes, sir, I told him I did not care to be riding the handcar and asked him to fix a place to stay and he said that he would try and get it ready next week.

Cox does not deny this.

Plaintiff says, page 30, that he did not know of any boarding house out at the corral nor did any one ever tell him there was one there. Also, that he did not know where L. Kennon. lived and did not-know Kennon.

Under this state of the evidence, we think that the wish of the defendant company that plaintiff and the other woods workmen should stay at the corral was at most a mere preference that they should do so and that there was no prohibition against their boarding at the mill boarding house. We do not mean, though, to intimate, that, if the fact were otherwise, it would make any difference. Even if there had been a prohibition against plaintiff’s boarding at the mill; as long as he did so to the knowledge of defendant and used means of transportation belonging to it with its implied consent, defendant could base no plea on this ground; and it is by no means certain that it could do so in any event.

Defendant contends that the employment being by the day, with the privilege to plaintiff to draw his wages every day, the employment ceased each day on the plaintiff’s finishing work for that day; or, in other words, the case must be considered as though he was employed every morning just for that day. We do not think - this sound. Plaintiff testified he had been working there about two months and defendant’s manager said the company paid off twice a month. There was no pretence that plaintiff did draw his wages every day or that he was formally engaged every morning and discharged every evening.

Defendant’s counsel does not cite us to 'any authorities. .

We think the case falls within the principle of Provost vs. Gheens Realty Co., 151 La. 508, 92 South. 38, cited by plaintiff’s counsel, the syllabus of which reads as follows:

“An employee going from his work to his lodging house on the employer’s premises, where he had the privilege of sleeping as a part of the compensation for his work, was performing services arising out of and incidental to his employment in the course of his employers trade, business, and occupation, within the Employer’s Liability Act, Section 1, par. 2.”

It is true that in this ease the plaintiff in sleeping at the boarding house at the mill was not doing so as a privilege forming part of his compensation, but we do not think this circumstance sufficient to take the plaintiff’s case out of the principle of the decision.

See, also Myers vs. La. Ry. & Nav. Co., 140 La. 937; 74 South. 256, in which various cases are listed construing the phrase “out of and in the course of employment”.

As to the extent of the injury, Dr. Lambert testified, page 4, that plaintiff had a complete fracture of the femur of the left leg; that this leg was placed in a Buck Extension Apparatus with sandbags on either side and that he was kept in this position for about three weeks, when a plaster cast was put on and he was discharged with directions to return in four weeks for removal of the cast. He was first admitted to the, hospital (Charity Hospital, at Shreveport) March 28, 1924; discharged, April 30, 1924; readmitted May 26, 1924, and discharged the second time June 9, 1924, at which time Dr. Caldwell regarded the case as cured. Dr. Caldwell does not testify.

Plaintiff testifies, page 6, as follows:

Q. Well, after you were hurt, how badly weré you hurt, how were you hurt?
A. Well the handcar was wrecked and I was on the back end, four of. us on the car, when it wrecked and turned off .and threw me in front and this leg hit across the rail and I was on my stomach.
Q. Your left leg?
A. Yes, sir.
Q. Had your left leg injured?
A. Yes, sir, and bruised my back and I fell and bounced back and knocked my hip out of place.
Q. Wsa there any break or fracture of the leg?
A. Broke my leg here; knocked it out of place .here; my hip.
Q. How long did they keep you in the Hospital?
A. I was kept 'there twenty six days with the weights and they took that off and put a. cement cast on the leg, all over it) jacket around my body; big jacket so I could not move it; lay flat on my back for six weeks and took it off and my leg was dead, never came to life yet. (He was testifying June 23, 1924.)
Q. Is your leg dead yet?
A. Yes, sir, it is stiff, never came to life.
Q. How old a man are you?
A. Forty years old on the sixth of September.
Q. Can you do any other kind of work except manual labor?
A. No, sir, never done anything but hard work.

No effort was made to prove that plaintiff’s leg was not stiff or dead, nor. was it shown what, if any, work he has done since, the injury. Neither is there any evidence as to what, if any, he could have done or could do hereafter.

The plaintiff testified, and there was no contradiction, that his wages were $2.75 per day. The District Judge gave judgment for $9.90 a week for not exceeding three hundred weeks, this being equal to sixty per cent of this wages. Evidently he regarded the injury as coming under subsection (a) of clause 1, of - Section 8 of the compensa-tio nlaw (Act No. 20 of 1914, page 44, as amended by Act No. 43 of 1922, page 74) reading as follows:

“For injury producing temporary total disability to do work of any reasonable ’character, sixty per centum of wages during the pezüod of disability, not, however, beyond three hundred weeks.”

Defendant- contends that the term for which allowance, if any, should be made, should not exceed twelve weeks because of the testimony of Dr. Lambert» introduced b'y plaintiff, that about that time plaintiff was discharged as cured.

There was no attempt, though, to refute plaintiff’s testimony given two weeks after his discharge from the hospital, that his leg was stiff and dead.

We do not think the judge erred in deciding that the disability had not terminated and that during its continuance but not over three hundred weeks, he was entitled to compensation.

The judgment of the lower court is affirmed.


source: Caselaw Access Project

license: Public Domain

text:
    No. 2098
    Second Circuit Appeal
    ALONZO C. WHITTINGTON v. TOWN OF GLENMORA
    (February 3, 1925, Opinion and Decree.)

      (Syllabus by the Editor.)

    1. Louisiana Digest — Estoppel—Par. 22.
    Estoppel is not favored in law and should not be allowed except in clear cases.
    2. Louisiana Digest — Municipalities—Par. 20, 57.,
    Where the mayor and town council, acting under Par. 15, Section 15, of Act 136 of 1898, reduced. the salary of the town officers for four months due to insufficient funds, their action is valid and legal for four months.
    Appeal from Thirteenth Judicial District Court of Louisiana, Parish of Rapides, Hon. Leven L. Hooe, Judge.
    REYNOLDS, J.
    Action by Alonzo C. Whittington against the town of Glenmora to recover $37.50 per month for ten months during which time he worked as Marshal of the Town at a salary, he claims of $75.00 per month. Defendant claims the salary was $37.50 per month. Whittington received from the town $37.50 per protest. Defendant claims that because plaintiff received these payments he is estopped from now claiming the balance of $37.50 per month claimed by him.
    There was judgment in favor of plaintiff, for $375.00, and defendant appeals.
    Overton & Hill, of Alexandria, attorneys for plaintiff, appellee.
    B. T. Hawkins, of Alexandria, attorney for defendant, appellant.
   OPINION.

On the plea of estoppel plaintiff swears, and his testimony is uncontradicted, that he received each of the $37.50 per month payments under protest. Transcript, page 31, Mr. M. A. Blevins, clerk and alderman of the town of Glenmora, testifies as to the ordinance reducing the marshal’s salary from $75.00 per month to $37.50 per month.

Q. Were you present the night the ordinance was passed?

A. Yes, sir.

Q. Did Mr. Whittington protest at the time?

A. He protested. on the run. He was sitting in there when the salary was made. When the reduction was read he jumped up and said that there would be a lawsuit to recover salaries, • and called us a bunch of brainless wonders, and then he left immediately.

Under the testimony of Mr. Whittington and Mr. Blevins, we think there was a protest as to the reduction of the salary and that the payments of $37.50 per month were received under protest.

Estoppel is not favored in law, and should not be allowed except In clear eases.

Hornor vs. McDonald, 52 La. Ann. 396, 27 South. 91.

Harvin vs. Blackman, 108 La. 426, 32 South. 452.

OPINION

In this case plaintiff in suing for $375.00, the difference between $37.50 per month for ten months paid to him as Marshal of the town of Glenmora, and $75.00 per month claimed by him as his salary during said ten months.

Plaintiff was elected Marshal of the town of Glenmora in April, 1921. At that time, by a resolution of the board oí* alderman of date August 6. 1918, the salary of the Marshal was fixed at $75.00 per month.

From the date of his election in April, 1921, up to September 1, 1922, he was paid $75.00 month, in accordance with and as provided in the ordinance.

On August 9, 1922, the following resolu-. tion was passed by the town council.

“Whereas it is necessary to reduce the expenses of the town of Glenmora, Louisiana, therefore be it resolved by the Mayor and Town Council in special sessions legally convened that the salaries of all elective officers serving the town of Glenmora, Louisiana, be reduced fifty per cent., to wit: The salary of the town Marshal shall be $37.50 per month; the salary of the town Mayor shall be $12.50 per month; the salary of each Alderman shall be $1.00 per month.
“Be it further resol ved' that this resolution shall become effective September 1, 1922, and shall remain in effect until December 31, 1922, unless otherwise provided.
Yeas: 4.
Nays: O.

Dated this the 9th day of August, 1922, M. Quick, Mayor. M. A. Blevins, Clerk.”

From the date this ordinance went into effect up to the close of his term the Marshal, plaintiff herein, received under protest $37.50 per month.

Under these conditions there are two questions to be decided.

Is the above ordinance legal and binding on plaintiff?

Paragraph 15, Section 15, of Act 136 of 1898 vests in the Mayor and Town Council authority to fix the compensation of all officers, and when this compensation has been so fixed it will not be disturbed by the courts unless it is shown that the Mayor and council have violated the discretion vested in them.

State, ex rel. Gentry vs. Village of Dodson, 123 La. 905, 49 South. 635.

State ex rel. Thurmond vs. City of Shreveport, 124 La. 178, 50 South. 3.

State, ex rel. Marrero vs. Ehret, 135 La. 643, 65 South. 871.

The ordinance in this case shows, that not only was the salary of the Marshal reduced but that of all the officers of the town of Glenmora.

As to this reduction, Mr. M. A. Blevins testified (Tr. 50):

“They had borrowed all the money they could from the bank and still had insufficient funds to run out that year.”

Mr. Quick, testified (Tr. 27):

“I don't think it was political prejudice, it was on account of insufficient funds to run the town, and the duties that he had at that time, or was doing.”

This evidence is In no way contradicted or denied by the plaintiff.

Under the evidence we think the Mayor and town Council acted in good faith and clearly within their legal discretion in passing the ordinance reducing the salary of the Marshal and we now hold the ordinance as passed by the town of Glenmora .legal and valid.

The second question to be decided is, does the resolution or ordinance have the effect of reducing the Marshal’s salary after December, 1922?

We do not think it does.

Under its terms it is limited in its effect to the months of September, October, November and December, 1922, and obviously cannot be extended.

Without the resolution, the plaintiff was entitled to collect the salary of $75.00 per month fixed under the ordinance and resolution previously passed, and such ordinance the town Council recognized when they reduced the salary 50% for four months.

It is therefore ordered, adjudged and decreed that the judgment of the lower court allowing plaintiff $37.50 additional each month for the months of September, October, November and December, 1922, be and the same is reversed, and the judgment allowing $37.50 additional each month for the remaining six months is affirmed; and it is now ordered, adjudged and decreed that there be judgment in favor of plaintiff Alonzo C. Whittington and against the town of Glenmora, Louisiana, for the sum of $225.00 with five per cent per annum interest thereon, on $37.50 of said amount from February 1, 1923; and on $37.50 of said amount from March 1, 1923;' and on $37.50 of said amount from April 1, 1923; and on $37.50 of said amount from May % 1923; and on $37.50 of said amount from June 1, 1923; and on $37.50 of said amount from July 1, 1923; until paid, and for all costs in the lower court. The costs of the appeal to be/ paid by plaintiff.


text:
    No. 2281.
    Second Circuit Appeal.
    W. P. WEMP v. SEMMELMAN, INCORPORATED.
    (Feb. 3, 1925, Opinion and Decree.)

      (Syllabus by the Editor.)

    1. Louisiana Digest Appeal — Par. 625.
    The judgment of the trial court on a question of fact, namely, the existence of a verbal lease’ for one year, not being clearly erroneous, is affirmed.
    Appeal from the Eleventh Judicial District Court of Louisiana, Parish of Natchitoches, Hon. J. W. Jones, Jr., Judge.
    REYNOLDS, J.
    Action by W. P. Wemp to evict Semmelman, Incorporated, from his store building. Defendant denies plaintiff’s right on the ground that he had a lease for twelve months from June 1, 1924. There was judgment for defendant and plaintiff has appealed.
    Judgment affirmed.
    C. B. McClung, and Rusca & Cunningham, of Natchitoches, attorneys for plaintiff and appellant.
    Breazeale & Breazeale, of Natchitoches, attorneys for defendant and appellee.
   OPINION.

This is an action by W. P. Wemp to eject his tenant, Semmelman, Inc., from his store building, on the ground that the lease under which defendant holds the building was not to become effective until it was reduced to writing and signed. Defendant claims that he had a verbal lease for twelve months.

The question to be decided is, whether there was between plaintiff and defendant a completed verbal contract of lease, which the law does not require to be reduced to writing, and a subsequent agreement that it should be reduced to writing; or, was it a part oí the bargain that the contract should be reduced to writing?

The trial judge, who was acquainted with the witnesses and heard them testify, decided the case in favor of the defendant. In support of his finding, we quote the following testimony:

MRS. W. P. WEMP.
(E. 2.)
Q. Did Mr. Semmelman speak to you with reference to a change in the way he was renting?
A. He wanted a lease drawn up.
Q. Eor what period of time?
A. Por a year.
(E. 4.)
Q. When was the first time you found the Semmelmans and spoke to them about the advance in the rent.
A. I think it was first in March. I told him several other persons had been after it and I could get more for it, and I wanted to give him the first chance, and he said he thought we should wait on him and we agreed on it and I agreed to increase the rent on the first of June.
(E. 7.)
Q. In pursuance to that he had been paying you' $100 per month?
A. Yes, sir, since the first of June. '
Q. Gave you checks right along?
A. Yes, sir.
Q. Mr. McClung brought you a duplicate contract of lease, he gave you one, or did he give them both to you?
A. He gave them both to me and after they did not sign it and I did not think they wanted the lease, wanted to lease it, I destroyed it. I did not think they wanted the building.
(E. 8.).
Q. You went over to his store and saw him?
A. Yes, took it and he said he was busy, and he would read it later, I think he came in 'our place and I asked him something about it and he said he would see us about it.
Q. And didn’t he tell you that that lease ought to incorporate a statement that certain furniture and fixtures in there were his?
A. He did not tell me that, but he told me that he said he wanted to make some changes- and he did not say what to me.
(E. 9.)
Q. Your objection to the present tenants was based solely on the fact that they had not signed the lease?
A. Not solely.
(E. 11.)
Q. Did he give you a reason why he would not sign it?
A. The first time he said he was busy, and the other times he said he would sign it later.
W. P. WEMP.
(E. 13.)
Q. Did Semmelman object to the obligations?
A. No, sir, he said nothing except he wanted it changed to put something in there, so he could have his counters if he happened to move, or if something happened to me.
MRS. W. P. WEMP
(E. 19.)
Q. When did you actually agree on the $100 rent.?
A. He said he wanted me to wait until August, and I said no, and we finally agreed to start on the first of May at $100.
Q. The rent for $100 began after — became effective on the first of May, what month was it for?
A. It was. for March.
Q. You agreed $100 was to be paid for May?
A. Yes, sir.
Q. When was it that Mr. Semmelman first asked you about a lease on the building?
A. After he paid the first $100 or just before.
Q. Then it was about the 6th of June or that time?
A. Yes, sir.
(E. 20.)
Q. Please state as fully as you can, the nature — substance of that conversation?
A. I told him that I had been- offered more money for the building, and on account of him, I had not leased it, but from that on I wanted $100 per month for the property, and he persuaded me to wait until the first day of May, and then we agreed that he' would give me $100 every month from then on.
Q. For twelve months commencing from the first of June, a 12 months’ lease?
A. Yes, sir.
Q. That was the substance of your agreement in March?
A. I think it was.
(E. 21.)
Q. You received the $100 per month coming under the contract of March?
A. No, we received that before the lease was decided on.
Q. And you received that after the lease was decided on?
A. Yes.
' Q. You had rented it to him and distinctly agreed on a year’s rent from the first of June until the 30th day of May, 1925?
■ A. We did not have any talk over as to that, he a'sked me to fix the lease, and I had it fixed, and he was .to read it over and I was to read it over, they were to sign it.
Q. Who furnished Mr. McCIung with the data to draw the lease?
A. I told him to get it up.
Q. You told him what it was?
A. Yes, sir,
(E. 27.)
Q. How come it drawn, what agreement did you have?
A. We were to lease it for $100 for the year. I agreed to get up the lease and have him sign it, and I did it. I get the lease date mixed up.
Q. Who asked for the lease?
A. Semmelman wanted the lease.
(E. 28.)
Q. Did you agree to accept $100 per month for the building to commence on the first of June?
A. I suppose I did and had the lease drawn up.
Q. Pid you accept it?
A. I accepted it.
(E. 29.)
Q. The $100 in June was in accordance with your agreement of May, and did you accept the payments in accordance therewith?
A. I accepted the payments, yes.
Q. You did?
A. Yes.
I. SEMMELMAN.
(E. 33.)
Q. Will you state as clear and as brief a you can the conversation and agreements entered into between you and Mrs. Wemp, concerning the lease of this building to you? as evidenced by the duplicate lease attached, unsigned lease attached to your-answer.
A. In the first part of February Mrs. Wemp came into the store and asked where I was and she told Abe to tell Isidore that for the year beginning March first the rent will be $100 per month, -and when I came back Abe told me that, and I went to see Mr. Wemp because at that time he was posing as a friend of mine, and I saw. him in front of our store and I told him that Mrs. Wemp had told Abe to tell me the rent would be $100 a month for the next year, and he said I have not got anything to do with any arrangements you make with Mrs. Wemp, is satisfactory with me. If she rents it at $50 it is all right with me. I then went in to see Mrs. Wemp and I said we have been laboring under disadvantages and it is very dull and she said I know times are hard, and I said why not wait until a little later and let’s start the raise a little later, and I said July first will be all right, and she said she would not do it, and I said how about May first, and she said all right, and I said I would like to have a contract drawn up to that effect that I have the building for twelve months, and she said you do not need a lease, and she said we have been renting you the building on verbal agreement for four years, and she said we will not put you out, and she said we will never raise the rent more .than a hundred dollars, and she said that is all I expect to get out of it, and she saift she would get her attorney to draw up a lease to that effect commencing May first, 1924, for twelve months; and she did not bring in the contract and I mentioned it to her then, and she finally got Mr. McClung and he discusse'd it with me that he was drawing up the papers, and it was already in May, and she said go ahead and pay your rent and we will have the contract drawn up for twelve months beginning June first, and we drew up the contract to that effect, and she drawed it up in the latter part of May, and she brought it in and I was busy and I laid it on the desk. On June 6th, when I brought her the rent I told her I had brought the contract, and I said the only specification I would like to have put in there, if it is agreeable with you, that the same fixtures belong to me, and she said I do not know where I put my contract, I went behind the desk with her. and she looked for her contract, her copy of the contract, and she could not find it, and she would bring it to me when she found it for me to sign it. I have been paying the rent from May in accordance with the contract, May first. It was to begin in May, and by our agreement we were to begin June first paying the $100.
Q. That document was the basis of the agreement?
. A. Yes, sir. I have been carrying out the contract in good faith.
Q. Would you rent that store building by the month?
A. No, sir.

Under this evidence of both plaintiff and defendant we are persuaded that the preponderance of the testimony supports the contention of the defendant that he entered into a verbal lease with the plaintiff for the lease, of their building for twelve months from June first, 1924, and that from that time until the filing of this suit, November 3, 1924, the defendant has been paying his rent in accordance with the .terms of the verbal lease.

■ We also conclude that the defendant was the party who wanted the lease reduced to writing and- the fact that subsequently to the date the ■ verbal lease was entered into the parties agreed that it should be reduced to writing could not affect the already verbal lease agreement.

Defendant has filed a motion to dismiss the appeal on the ground .of acquiesence, and able briefs have been filed on the part of both plaintiff and defendant; but the conclusion that we have reached on the merits of the case renders it unnecessary for us to pass on the application to dismiss the appeal on the ground of acquiesence.

For the reasons assigned, the judgment of the lower court is affirmed; plaintiff to pay the costs in both courts.


author: ODOM, J.

text:
    No. 1816
    Second Circuit Appeal
    J. W. SIMPSON v. GEORGE K. FOSTER
    (Feb. 3, 1925, Opinion and Decree.)

      (Syllabus by the Editor.)

    1. Louisiana Digest — Obligations — Par. 182; Builders and Buildings — Par. 30.
    Where the preponderance of the testimony is to the effect that the plaintiff did as well with the work as he could have done considering the condition of the old canvas which had to be used under the wall paper according to the conditions of the contract, he can recover the amount agreed upon in payment for the work.
    2. Louisiana Digest — Bills and Notes— Par. 233.
    In. a suit on a promissory note where the defense is lack of consideration due to unsatisfactory ' paper-hanging, . the preponderance of the testimony shows the work done as well as could have been done under the conditions existing, plaintiff can recover the face value of the note with interest and attorneys fees.
    . Appeal from the First Judicial District Court of Louisiana, Caddo Parish, Hon. T. ,F, ..Bell, Judge.

      • This is a suit on a promissory note for the face value of the note with interest and attorney’s fees.
    There was judgment for plaintiff and defendant appealed.
    Plaintiff answered the appeal asking that the judgment he increased.
    Judgment increased and affirmed.
    Cal. D. Hicks, of Shreveport, attorney for plaintiff, appellee.
    Dickson & Denny, of Shreveport, attorneys for defendant, appellant.
   ODOM, J.

This is a suit for the sum of $198.38 with interest at 8% per annum from October 26, 1921, the date of the note, until paid .and attorney’s fees at 10%. The note' is' attached to and made part of the petition.

Defendant is the owner of a private residence in the City of Shreveport. He employed plaintiff to re-paper it and do some painting on the inside. The work was done in the month of June, 1921. On October 26th following, defendant executed his note for the sum of 190.38 due on November 26th, to cover the price of the work. This suit is to recover the amount of the note.

Defendant answered admitting the execution of the note, but alleges that the note was given “in payment of a certain job of wall papering and that said wall papering was done in a faulty, negligent, careless manner with improper materials and not according -to the agreement between plaintiff and defendant”.

And he further alleges that the work done was worthless, was absolutely useless, and he prays that plaintiff’s demand be rejected.

There was judgment in the lower court in favor, of the plaintiff for the sum of $141.80 with interest and attorney’s fees. From this judgment defendant has appealed. Plaintiff answered the appeal asking that the judgment be amended so as to allow the full amount sued for.

OPINION.

There seems to be no controversy over the' price of the work that seems to have been agreed upon, and defendant executed his note to cover the amount on October 26th, after the work was done in June.

The controversy which broúght on this litigation arose over the quality of the work done, the defendant claiming that the work was wholly defective and worthless to him. On that plea he expects to escape liability on the note.

We are not convinced that the defendant got a first class job of work but we are convinced that he got all he had a right to expect under the contract which he made with the plaintiff. When he contracted with the plaintiff to do the work he informed him that he did not want to spend much money on the house but merely wanted it fixed up so that he could sell it. Plaintiff says he told defendant that he should have new canvas, but defendant told him he did not want to spend much money for new canvas and to use the old canvas as he found it on the wall. Defendant admits that he told plaintiff to put the paper on over the old canvas and this was done. Very soon it was discovered that the paper was “bagging”. Plaintiff’s attention was called to this and he sent a man • to the house to repair it. The man who did this repairing says that Foster, the defendant, showed him what was to be done and that he did it.

But we think it is clear that there were, after this repair work was done, places where the paper had' pulled loose from the walls especially around the corners, and that this caused the paper in places to hang loose. The question is, what caused it to “bag” or hang loose?

Plaintiff says he did a first class piece of work so far as the papering was concerned and that all the trouble was caused on account of the fact that the canvas was old and would not hold. In this he is corroborated by Sehecknayder, J. L. Simpson, Paul Reynolds and Ed. Williams.

E. R. Darrow, who was called as a witness, testified for defendant on the first trial that the work was very poor but said it might be that the canvas was rotten and tore loose from the wall. However, when the case was re-opened, he was recalled and said that he had, since the first trial, examined the canvas and found it good and that he now thinks the trouble was due to the fact that the old canvas was not properly tacked to the wall.

Will Bell, called for defendant, said the canvas was not properly tacked. He says that the canvas would hold tacks, although it was old and of a cheap grade.

•The preponderance of the testimony is to the effect that plaintiff did as well with the work as he could have done considering the condition of the old canvas. We are not convinced that there was a great deal wrong with the papering. Defendant evidently was not very badly dissatisfied with the work for wé find that he signed a note in payment of the price of the work; something like four months after it was completed. He says he signed the note with the understanding that plaintiff would repair the work. Plaintiff denies this, but says that defendant did make a complaint and that he did all that he was asked to do.

We find in the record a letter written by defendant to Mr. Hicks, counsel for plaintiff, dated December 29, 1921, a little more than a month after maturity of. the note sued on. This letter is in reply to one written to him by Mr. Hicks on the day before demanding payment of the note. In this letter there is no word of complaint as to the character of the work done, nor does he ask for any reduction ,of the amount. He asks that he be allowed time in which to make the payment as he has no ’’ready money with which to pay note”, and he says “may I not ask that you give the facts due consideration before taking any action? I assure you that the account will be paid in time”.

This letter viewed in connection with the fact that, the note was executed about four months after the work was done and in connection with the testimony leads to the conclusion that plea of want or failure of consideration interposed by defendant is. an afterthought.

The court below rendered judgment in favor of plaintiff for $141.80. We are not informed as to how this exact amount was ascertained. The court evidently considered that the defendant should have some credit on the note on account of defective work, but just how it arrived at the amount of the credit is not explained. We do not think that the defendant is entitled to any credit under the testimony and if we did, we would not know what allowance to make as there is no testimony in the record to show how much it would cost to put the papering in the condition which the defendant and some of his witnesses think it should be. One of the witnesses said something about having repaired his own house at a cost of $50.00 and gave the number of rooms in his house. Later on, he corrected his testimony, by stating there were only three rooms in his house and that, of course, it would cost less to re-paper three rooms; but no one estimated the cost of putting the papering on defendant’s house in that condition which he seems to think it should be.

The plaintiff sued for $198.38 and attached the note onto his petition and made it a part thereof. We find that note is for the sum of $190.30.

Our conclusion is that the plaintiff should have judgment for the full amount of the note sued on with interest, attorney’s fees and costs.

For the reasons assigned, it is therefore ordered that the judgment appealed from be amended so as to read as follows: It is therefore ordered, adjudged and decreed that plaintiff, J. W. Simpson, do have judgment against defendant, George K. Foster, in the sum of one hundred and ninety and 38/100 dollars with interest thereon at 8% per annum from November 26, 1921, until paid, together with 10% on the amount of principal and interest, as attorney’s fees, and all costs of this suit.


author: REYNOLDS, J.

text:
    No. 1794
    Second Circuit Appeal
    DR. G. H. CASSITY v. J. H. LOWERY
    (February 3, 1925, Opinion and Decree)

      {Syllabus by the Editor.)

    1. Louisiana Digest — Physicians—Par. 6, 9.
    Where a divorced husband employes a physician to render services to his divorced wife, the husband is responsible for the bill for professional services.
    Appeal from the City- Court, City of Shreveport, Hon. D. B. Samuels, Judge.
    This is a suit by a physician for the collection of money for professional services.
    There was judgment for plaintiff and defendant appealed.
    Judgment affirmed.
    J. R. Blanton, of Shreveport, attorney for defendant and appellant.
    Otis W. Bullock, of Shreveport, attorney for plaintiff and appellee.
   STATEMENT OF THE CASE

REYNOLDS, J.

This is a suit on an open account for $137.00, less $7.00, leaving a balance of $130.00, for medical services rendered to Mrs. J. H. Lowery.

Defendant denies liability and especially urges that he was divorced from his wife on March 10, 1920, before the medical services were rendered.

There was judgment for the plaintiff for the amount sued for and defendant has appealed.

OPINION

In this case plaintiff sues for medical services, consisting of one operation for appendicitis, for which he charges $100.00, and after-treatment, for which he charges $35.00, on which $7.00 was paid, leaving a balance of $130.00 sued for.

The defendant, J. H. Lowery, was divorced from his wife but this fact was not known to the attending physician, G. H. Cassity. Dr. Cassity was called to treat Mrs. Lowery by Mr. J. H. Lowery. See evidence, page 3.

“Q. Who employed you?
“A. Mr. J. H. Lowery.”

The evidence shows that Mr. Lowery was •present at each of the times Dr. Cassity visited Mrs. Lowery and that Mr. Lowery, though divorced from his wife, was as attentive and affectionate towards her as though no divorce had ever been granted.

Evidence, page 10:

“Q. Well, what was his attention towards the lady you were nursing?
“A. He came in dnd kissed her but did not stay very .long. She told me he was her husband.”

Evidence, page 12:

“Q. By what name was she known?
“A. As Mrs. Lowery.
“Q. What, if anything, did X H. Lowery do while you were there?
“A. He came to see her.
“Q. What was his attitude towards her?
“A. He seemed very attentive.
“Q. Do you know how often he came to see her?
“A. He came every day, except the last day.
“Q. Did he refer to her as Mrs. Lowery in discussing the case with you?
“A. Yes.
“Q. Who paid the Schumpert sanitarium bill?
“A. He did.”

He directed that Mrs. Lowery be carried to the Schumpert sanitarium.- Later, being dissatisfied with the improvements that Mrs. Lowery was making, he directed that she be removed to the North Louisiana sanitarium where- she was operated on by Dr. Cassity for appendicitis.

Dr. Cassity treated Mrs. Lowery at her home, at the Schumpert sanitarium and at the North Louisiana sanitarium, and finally operated on her for appendicitis. During all of his visits Mr. Lowery was present and he paid fill of the sanitarium bills.

The defense set up by Mr. Lowery, fairly interpreted, is that the debt sued for is the promise to pay the debt of a third person and cannot be proved by parol testimony, and that being divorced from his wife he' is in no way liable for the professional services rendered by Dr. Cassity to her.

This defense cannot avail Mr. Lowery for the reason that he employed Dr. Cassity to render the services and the bill for the services is against him and not against Mrs. Lowery.

The correctness of the bill is not disputed. Indeed, it is a very reasonable bill.

The judgment of the'lower court is correct and is affirmed with costs in both courts.


author: CARVER, J. REYNOLDS, J.

text:
    No. 2240.
    Second Circuit Appeal.
    ELIZA TUCKER v. AUBREY ANGELL S. DELIA FREEMAN, Intervenor
    (February 3, 1925, Opinion and Decree)
    (March 30, 1925, Rehearing Refused)

      (Syllabus by the Editor.)
    1. Louisiana Digest — Donations—Par. 20; Sales — Par. 3.
    A contract of sale showing “$10.00 cash consideration and for the service and care and attention rendered the grantor herein in her affliction and helplessness -and for other good and valid considerations”, cannot be declared null under Article 1497 of the Civil Code as a donation of all the property which the grantor owns.
    2. Louisiana Digest — Donations—Par. -20; Sales — Par. 3.
    A contract of sale showing $650.00- cash consideration cannot be declared null under Article 1497 of the Civil Code' as a donation of all the property- which the grantor owns.
    3. Louisiana Digest — Registry—Par. 7, 12; Fraudulent Conveyances — Par. 31; Evidence — Par. 31,
    Third parties have the right to rely upon the verity of the public records; therefore, there must be very strong proof • to impugn the good faith of one who buys from the record owner: ,,
    4. Louisiana Digest — Appeal—Par. 625.
    The finding of the trial judge that there was not sufficient proof of fraud or simulation in a sale of real property to declare it null, being manifestly correct, is affirmed.
    5. Louisiana Digest — Fraudulent Conveyances — Par. 126.
    Under Civil Code, Articles 2480 and 1921, continued possession by the grantor creates a presumption of simulation and throws on the grantee the burden of proving the reality of the transfer, but the cited articles show on their faces that this rule does not' apply to the parties to the contract as between whom the act makes full proof.
    6. Louisiana Digest — Marriages—Par. 5.
    Where the only proof of an alleged slave marriage is one Witness who could not have been over sixteen years of age at the time the marriage took place and could not remember the county or county seat of the marriage or how long they lived together after emancipation, or the parties of other slave marriages, the marriage will not be-considered proven.
    Appeal from the parish of Caddo. Hon. T. F. Bell, Judge.
    This is a suit to annul two acts of sale.
    There was judgment for defendant and plaintiff appealed.
    Judgment affirmed.
    John Files, of Shreveport, attorney for plaintiff, appellant.
    W. A. Mabry and Lewell C. Butler, of Shreveport, attorneys for defendant, appellee.
    H. B. Barrett, of Shreveport, attorney for intervenor.
   OPINION

CARVER, J.

Eliza Tucker, original plaintiff herein, sued to annul two acts whereby she apparently conveyed to Mattie Smith, her granddaughter, three lots in the city of .Shreveport, described as lots 1, 2 and 3 of block 10 of ten-acre lot 7 of Allendale subdivision.

She brings the suit not only against Mattie Smith but also against J. T. Broghan, Lucie Land, Annie Hampton, Mattie Nelson and Aubrey Angelí; Broghan, Angelí, Annie Hampton and Mattie Nelson being the present claimants of the respective lots under the deeds to Mattie Smith; Broghan and Angelí claiming one lot each and Annie Hampton and Mattie Nelson claiming the remaining lot; and Lucy Land having bought from Mattie Smith and sold to Broghan the lot, claimed by him. Hon. E. P. Mills, Judge. - ,

Eliza Tucker died pending the suit, and Mary Johnson, Rosa White and' Henry Smith, alleging themselves to be: Mary Johnson the grandchild, Henry Smith the great-grandchild and Rosa White the great-great-grandchild of Eliza, springing from a marriage between Eliza and one Samuel Bolden, to whom she was married before her marriage to Jefferson Tucker, were recognized as Eliza’s sole heirs and substituted for her in the suit.

The lots in question were acquired in the name of Jefferson Tucker, husband of Eliza, during, the marriage between them.

The plaintiff alleged original ownership in herself one-half as widow in community and the other half as sole heir of her deceased husband.

She further alleged that she had obtained judgment in the District Court of Caddo Parish, recognizing her as his sole heir.

The deeds attacked were as follows:

One dated October 5, 1916, passed before Sam' W. West, a notary public, and two witnesses, covering “her one-half undivided interest” in the three lots.

The consideration in this deed is stated to be “the sum of ten dollars cash in hand paid, receipt of which is hereby acknowledged, and for the service and care and attention rendered the grantor herein in her affliction and helplessness and for other good and valid considerations.”

The other deed was passed October 15, 1921, before Joseph R. Blanton, -a notary public, with Mary Johnson and J. T. Broghan as the witnesses.

The consideration expressed in this deed is the sum of $650.00 “cash in hand paid, receipt of which is hereby acknowledged.”

This deed has a clause in it as follows: “This is understood to be a corrective deed' óf the same as given on and filed on March’ 24, 1917.”

We do not find this deed of March 24, 1917,,, in;- the record, but its presence is not necessary to a . decision.

Plaintiff alleged, substantially, that no consideration was really paid by Mattie Smith; that the deeds were really donations; that they comprehended all of her property, and were therefore void under Civil. Code 1497 which provides as follows:

“The. donation inter vivos shall in no case divest the donor of all his property; he must reserve to himself enough for subsistence; if he does not do it, the donation- is hull for the whole.”

And . that the second one was represented to her as being an act to perfect and straighten out her title.

She further alleged that the subsequent deeds forming the muniments of title of the present claimants were void, because simulated, or if not simulated were intended to be mortgages instead of sales.

Those deeds were as follows;

Mattie Smith to Lucy Land (hot in the record but alleged in paragraph 8 of plaintiff’s petition), covering lot 3 for a recited consideration of $500.00.

Lucy Land to J. T. Broghan, October 15, 1921, covering lot 3 for a recited consideration of $466.00 cash.

J. T. Broghan to Lucy Land, Annie Hampton and Mattie Nelson, March 2, 1922, covering lot 3 for a recited consideration of $548.53, represented by seven mortgage notes.

. The petition alleges that these notes were sold to Aubrey Angelí and that he foreclosed the mortgage and bought in lot .3 at sheriff’s sale.

Mattie Smith to J. T. Broghan, December 16, 1921, covering lots 1 and 2," for a consideration of $1-400.00, $500.00 of which was cash and $900.00 a six months' note.

J. T. Broghan to Annie Hampton and Mattie Nelson, stated in the deed to he the sole heirs of Jefferson Tucker, lot -2 for a recited consideration of $655.00 cash.

Interrogatories on facts and articles were propounded by plaintiff to all the defendants.

Lucy Land and Mattie Smith answered the interrogatories on the same day, before the same notary, and in precisely the same language; their answers being practically a confession • of the truth of plaintiff’s allegations.

Angelí filed answers to the interrogatories as well as an answer to the suit, denying the material allegations of plaintiff’s petition, pleading good faith, ignorance of any equities in plaintiff’s favor, and reliance on the public records.

Broghan answered the suit, making the same defense as Angelí did, but we do not find that he answered the interrogatories on facts and articles, nor do we find any motion to take the same as confessed. ■

We do not find in the record any exception or answer on the part of Mattie Nelson or Annie Hampton to the plaintiff’s petition, but -the extract from the court minutes shows the following:

October 6, 1923. Exception of no cause or right -of action filed on behalf of Annie Hampton and Mattie Nelson.

April 2, 1924. For reasons orally assigned, it is held that the exception of no cauSb of action did not join the issue, and as to these defendants the suit should be dismissed as having been abated, and it is so ordered.

Delia Freeman filed an intervention in the suit claiming an undivided half interest in the three lots and alleging that she was Jefferson Tucker’s sole heir, being his child by a previous marriage with Ellen Moore.

On exception of vagueness being made, she filed a supplemental petition alleging that the marriage of Jefferson Tucker and Ellen Moore took place in' the parish of Caddo in or about 1860, during slavery times, and that the parties continued to live together for - several years after abolition of slavery.

Plaintiff’s counsel cites:

Rocques vs. Freeman, 125 La. 60; 51 South. 68.

Harris vs. Wafer, 113 La. 22; 37 South. 768.

Lagrange vs. Barr, 11 Rob. 302.

Jaco vs. Jaco, 129 La. 621; 56 South. 615.

lYhich decisions establish the doctrine that where a donor divests himself of all his property the donation is null and is not saved because of any understanding or obligation of the donee to support the donor.

We think these decisions correctly interpret Civil Code 1497 but find them without application in this case.

In those cases the contracts attacked showed on their faces that they were donations, although carrying obligations to support.

In this case the contracts are not donations, at least on their faces, the stated consideration in the last one being, as said above, $650.00 cash, and that stated in the first one being $10.00 cash “and for the service and care and attention rendered the grantor herein in her affliction and 'helplessness and for other good and valid considerations.”

The granting clause of the deed did not say it was a donation but uses the terms “grant, bargain, sell, convey and deliver Vith full guarantee of title.”

The service and attention mentioned in the deed did riot purport to be such as were to be rendered but such as had been rendered.

Again, ' besides the $10.00 cash and .the service, the deed stated that there were other good and valid considerations.

Of course, as to Mattie Smith, the immediate grantee, this contract could be annulled' on her confessing in answer to interrogatories on facts and articles, that it was a disguised donation of all of donor’s property; but it could not be annulled as against one who bought from the donee in good faith, reliance on the public records, and in ignorance of the fact that it was a disguised donation comprehending all of the donor’s property.

We have carefully read the oral testimony but do not find in it any reason to question the good faith of Broghan in acquiring the property. He first acquired lot 3 from Lucy Land, to whom Mattie Smith had sold it. It was about to be sold at sheriff’s sale when Lucy Land appealed to him to rescue it. He employed an attorney to look up the title and the attorney reported that Eliza Tucker appeared to have an interest in it; so the parties 'met on October 15, 1921, on which day Eliza Tucker executed the second contract attacked reciting $650.00 cash and on the same day Broghan bought from Lucy Land lot 3. Broghan frankly admits that his understanding with Lucy was to give her a chance to ■ redeem Lucy was to give her a chance' to redéem this lot, and, as we appreciate the evidence, he did subsequently carry out this agreement, except that .instead of conveying it to her alone he conveyed in one deed one-half 'of it to her and the other half to Mattie Nelson and Annie Hampton, these latter having set up claims to all. three' lots .as heirs of Jefferson Tucker. -This deéd was executed March '2, 1922, and' the motes received' by Broghan as - the consideration of the sale were' those, afterwards foreclosed on by Angelí, to whom Broghan had sold them.

After Broghan acquired lot 3 in the manner above mentioned, he bought from Mattie Smith lots 1 and 2. Both he and Mattie testified that he really paid the consideration expressed in the deed, namely: $500.00 cash and a six months’ note for $900.00.

Mattie does not claim in her testimony that any right of redemption was stipulated as to these lots or that the deed was intended as a mortgage.

Besides conveying to Annie Hampton and Mattie Nelson a. half interest in lot 3 Broghan- conveyed to them by another deed passed the same day lot 2, the recited consideration being $655.00 cash; but as we appreciate the evidence, these two conveyances to Mattie Nelson' and Annie Hampton were really in settlement of the half interest which they claimed in all three lots as the sole heirs of Jefferson Tucker. She and Lucy so claim in tneir answers on facts and articles, but tnese are not admissible as against the other defendants.

Counsel for plaintiff claims that Broghan was aware that the transfers from Eliza were without consideration, because he was the merchant and confidential agent of the parties, his attorney having ascertained on investigating the title to lot 3 that Eliza had an interest in the property; that he was an attesting witness consideration recited in that deed; and that he did not disturb her. in her possession of it.

The proof does not, in our opinion, show that he occupied any confidential relation towards Eliza, whom he scarcely knew. ' That he left her in possession of lot 3, which was the only one improved, it having a little shack on it, was consistent 'with his admission thát the transaction between liim and Lucy Land, her granddaughter, with whom she lived, was a purchase with right of redemption — practically a security contract.

Blanton, his attorney, testified, that he understood the consideration expressed in the second deed had already been paid in the first deed. Mattie doe's not state that she told Broghan she had not paid for the property. When asked whether she had told Broghan whether she had paid Eliza for the property or not, her reply was, “he did not ask me.”

Eliza was very old and quite feeble but could get around without assistance, and, while hard of hearing, -was not entirely deaf, and while, her vision was impaired, she was not blind, and there is no pretense that she was not sane.

Blanton did not remember why it was necessary for Eliza to sign the second deed to Mattie, but evidently it was because the first deed covered only an undivided half interest in the lots. There is no proof that either he or his - principal, Broghan, misrepresented anything to Eliza. In all likelihood the first deed to Mattie covered only one-half the property, because at that- time -Eliza only claimed one-half, knowing that Jefferson had left one or more heirs who inherited his half. There is no proof that. anyone misrepresented-the matter-to Eliza iti order to obtain her signature to the 'second deed; but if Mattie or Lucy did’ so it could not affect Broghan or Angelí, " who are o not shown to have been aware of it.

The proof does not show what relationship existed between Annie Hampton and Mattie Nelson and Jefferson Tucker, or, indeed, whether any existed. On their asserting claims to the property Broghan made no resistance but conveyed to them lot 2 and a half interest in lot 3, evidently in , settlement of ' their claims., Mattie Smith' arid Lucy Land say in their answers on facts and articles that they claimed to be respectively the niece and sister of Jefferson.

From the following questions propounded to Broghan on trial, namely (page 44):

“Now, then, Mr. Broghan, after you acquired" title to this property, I will ask you whether or not any demand was made upon' you by Attorneys Fisher and Walker for a; half interest in it claimed by the descendants of Jeff Tucker?”

It would seem that the attorney propounding it considered that the claimants (evidently Annie Hampton and Mattie Nelson) were Jeff Tucker’s descendants. Broghan’s reply- does not show whether they claimed to be such descendants or not. If they were his heirs, whether descendants or not, of course EJiza never did have but a half interest in the property.

As to lot 3, now claimed by Angelí, there is no • evidence whatever to impugn his good faith or to deprive him of the benefit -of the well-settled principle that parties have a right to rely upon the verity-of' the public records.

As to lot -2, claimed by Annie Hampton and Mattie Nelson, it is very likely that they were entitled to a half interest in all the property as heirs of Jefferson Tucker, and if this be the case that would give them a strong equity in the premises. But -whether heirs or not, on their assertion of ownership Broghan conveyed to them this lot in partial satisfaction of their claims, and there is no proof tending to show that they were acquainted with the alleged rights of Eliza Tucker.

As to lot 1, still claimed by Broghan, We do not think the proof sufficient to .impugn his good faith.

Lot 1 and '2 were not sold with right of redemption, and the proof shows that Arini,e Hampton and Mattie Nelson took possession, "of lot 2 under their deed. ‘ Lot 1 being vacant, Broghan had no’ occasion to take actual possession of it.

Were the proof of fraud or simulation much stronger than it is, we would not be justified in reversing the District Judge on this question of fact; but careful consideration of the testimony satisfies us that he decided correctly on this question.

Counsel for plaintiff cites Civil Code 2480 (2456) and Civil Code 1921 (1915) and various decisions in support of the proposition that continued possession by the grantor creates a presumption of simulation and throws on the grantee the burden of proving the reality of the transfer. But the cited articles show on their faces that this rule does not apply to the parties to the contract as between whom the act makes full proof, and it is so distinctly held in Bundy vs. Greene, 45 La. Ann. 403, 12 South. 759.

A. M. Brown, a colored preacher, testified that he was present at the marriage between Jefferson Tucker and Ellen Moore, which, he says, occurred on Judge T. T. Land’s plantation in Mississippi two or three years before the war, and that the marriage was performed with a Bible by a negro preacher named Robert Land whom Judge Land kept on the plantation for the purpose of marrying his slaves. Brown was unable to fix the date very definitely or to state the county where it occurred or the name of the county seat; nor could he name any other slaves he saw married. At the time of testifying, in 1924, he stated he was 79 years old. This would fix the date of his birth as 1845. He states that he came to this “country (meaning, presumably, Louisiana) before the war”. He further states that Jefferson and Ellen lived together for two or three years after the surrender .and that they had one child, Delia, but no other.

Intervenor -complains that the District Judge did not accept Brown’s testimony as to the marriage, arguing that it is not reasonable to expect two eye witnesses to be found to a slave marriage in another state before, the war. We would not wish to commit ourselves to the proposition that a slave marriage could not be proven by the testimony of one witness, if such testimony were unsuspicious and consistent with the other facts of the particular case; but in view of the many circumstances of this case casting doubt on the theory that Delia was the sole child of a real marriage between Jefferson Tucker and Ellen Moore, we are not prepared to say that the District Judge manifestly erred in refusing to accept Brown’s testimony as conclusive. Amongst such circumstances are these: That there is no proof, except that of Brown, that Jefferson and Ellen lived together after the surrender,- and even according to Brown’s testimony they so lived only two or three years; that Jefferson married Eliza; that Delia did not assert her claims until November 30, 1923, although Eliza had filed this suit August 29, 1923, claiming the entire ownership of the lots, and had before that obtained a judgment in the District Court recognizing her as the sole heir of Jefferson; that Annie Hampton and Mattie Nelson asserted and obtained in March, 1922, a half interest in the property on the assertion that they were his sole heirs and probably the assertion that they were his descendants; that Brown could not have been over 16 years of age at the time of th§' alleged marriage and may have been considerably younger; and that he could not remember the county or county seat of the marriage or the parties to other slave marriages.

Intervenor’s alleged reason for not putting in her claim earlier is not _ well founded. E,liza was not entitled to the usufruct of Delia’s half interest in the property, if she had such interest, she not being Eliza’s child, but, according to her theory,. Jefferson’s child by a previous marriage.

The decision of the lower court was against the plaintiffs and in favor of defendants, and we think that decision correct. It is therefore affirmed.

ON APPLICATION FOR REHEARING

REYNOLDS, J.

Both attorneys for plaintiff and attorney for intervenor have filed application for rehearing. But they have submitted no additional authorities nor, have they given any additional reasons than those submitted in their original briefs.

The judgment heretofore rendered herein, in our opinion, is correct, and therefore the application for a rehearing is refused.


text:
    No. 1869.
    Second Circuit Appeal.
    W. T. PHILLIPS v. K. C. RAY.
    (Feb. 3, 1925, Opinion and Decree.)

      (Syllabus by the Editor.)

    1. Louisiana Digest — Partnership—Par. 82, 83.
    A partnership to drill an oil well is not commercial partnership under Article 2825 of the Civil Code, but an ordinary "partnership under Article 2826, and the losses are borne equally under Article 2865.
    2. Louisiana Digest — Partnership—Par. 82, 83.
    Where a payment is made by an ordinary partner (who is liable only for his share) without specifying that it is for his share, the payment will be imputed to the whole debt and not merely to his share.
    On Appeal from the City Court, City of Shreveport, Louisiana, Hon. Donald C. Dicki son, Judge ad hoc.
    This is a suit to recover the balance due on a contract brought against one partner.
    There was judgment for plaintiff for part of the balance due and defendant appealed.
    Judgment affirmed.
    ' A. P. Garland, of Shreveport, attorney •for plaintiff and appellee.
    ' Wallace," Lyons & "Peters, of Shreveport, attorneys for defendant and appellant.
   ODOM, J.

Plaintiff alleges that defendant is due him the sum of $300.00 and sets up the following as his cause of action,

Paragraph II of his petition reads as follows: “That your petitioner, on or about January 2, 1921, constructed for the said VK. C. Ray, on a tract of land situated near Jonesboro, Louisiana, one 112-foot derrick for the agreed price of four hundred and fifty dollars ($450.00), of which one hundred and fifty dollars ($150.00) has been paid by said K. C. Ray.”

Defendant answered denying that he is due plaintiff any sum but admits that he did pay plaintiff $150.00 as alleged, but denies that in doing so he acknowledge liability to plaintiff in any sum whatever.

He sets up, in the alternative, that he was a member of a particular partnership composed of one E. J. Roller and ten other persons, all of whom reside in the state of Michigan (none of them being named by him); that said particular partnership was formed for the purpose of drilling a well for oil on land situated near Jonesboro, Louisiana, the cost of said well to be paid for equally by all of said members of said particular partnership; and that therefore “defendant was liable for only one twelfth of $450.000, or the sum of $37.50, and that he had more than paid said sum to the plaintiff”.

He further alleges in the alternative, that if the court should hold that the partnership was not composed of twelve persons “then in that event defendant avers that he and one E. J. Roller formed a particular partnership for the limited purpose of drilling a well for oil near Jonesboro, Louisiana; that E. J. Roller employed plaintiff to erect a derrick on said land at a cost of $450.00; that he is liable to plaintiff in the sum of $225.00 of which he has paid $150.00, leaving a balance due of $75.00, which he admits owing to the plaintiff”.

The case was tried, and resulted in a judgment for $150.00 in favor of plaintiff, from which defendant appeals.

Plaintiff answered the appeal asking that the judgment be amended so as to allow him the full amount sued for.

OPINION.

The testimony makes it perfectly clear' that plaintiff erected a derrick on some land near Jonesboro, Louisiana, for defendant and one E. J. Roller who is not made a party to this suit, at an agreed price of $450.00. Of this amount there remains due the sum of $300.00, the defendant Ray having previously paid plaintiff the sum of $150.00.

It is plaintiff’s contention that the defendant Ray and said E. J. Roller were commercial partners, each being; bound for the entire debts of the partnership.

On the contrary, defendant contends that the business' in which he and said Roller were engaged was not a commercial partnership but a particular or ' ordinary one and that each of the partners is liable for only his virile share of the debt. Therefore he pleads that his portion of the debt was $225.00 on which he' has paid $150.00Í leaving a balance of $75.00 due by him.

The allegation that the partnership was composed of twelve persons seems to have been abandoned, as defendant in his testimony mentions no one except himself and Roiler.

Of course, if the partnership between defendant and Roller was a commercial one, defendant is bound for thé entire balance due.

If, on the contrary, it was an ordinary partnership, then defendant is bound for not more than one-half of it.

From the fact that the judge of the lower court rendered judgment' for $150.00, it fs evident 'that he considered that the partnership was an ordinary one.

As to the nature of the business engaged in by the defendant and Roller there is no testimony except that of the defendant himself. "He says that he and Roller were to drill a well near Jonesboro, Louisiana; that RolleV was to raise the money and he, Ray, to look'after the drilling of the. well; that he ‘ was to own a two-fifths interest, Roller á "two-fifths interest; and the parties who furnished the money with ■ which to drill 'the" w.éíl were to own the remaining dne-'fifth" interest’ therein.

He says they failed to get the money and that they got no further with the enterprise than the building of the derrick.

•Prom the facts it is evident that this was not a commercial partnership. Article 2825 Civil Code provides:

. ^Commercial partnerships are such as are foiled:

“1. For the purchase of any personal property, and the sale thereof, either in the same state or changed by manufacture.
“2. For buying or selling any personal property whatever, as factors or brokers.
“3. For carrying personal property for hire, in ships or other vessels.”

In the case of Shreveport Ice & Brewing Co. vs. Mandel Bros., 128 La. 314, 54 South. 831, the court made use of this expression:

“It is true that a commercial firm as such cannot acquire real estate, because the. law defines commercial partnerships to be such as are formed for the buying and selling of personal property and the carrying of such property for hire by ships or other ve.ssels.”

These parties were not engaged in' a commercial enterprise such as is meant in Article 2825 of the Civil Code. The partners are not, therefore, bound in solido for the debts of the enterprise but only' jointly; each partner being bound only for his virile share.

Defendant Ráy paid $150.00 on the debt. He says he borrowed that amount and paid it to plaintiff because plaintiff was “brolte” and needed help. He now claims that the amount which he paid should be credited on his share of the debt.

The amount of tljie debt was .$450.00. Plaintiff demanded, payment of the debt and defendant paid or had a friend to pay on the debt the sum of $150.00. He made no reservation at the time of payment. He did not at that time claim to the plaintiff that he was owing only one-half of the amount of the debt. Plaintiff credited the payment on the entire debt, thereby reducing. it to $300.00. We see no reason why the creditor should not have imputed this payment to the entire debt. If the defendant had intended to have this payment imputed to his share of the debt he should have raised the point at the time of payment.

Our conclusion is, that this was an ordinary partnership and that the partners were not bound in solido, and that the payment was properly imputed to the whole debt, leaving defendant bound for one-half the balance of the debt, whieh balance amounted to $300.00.

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


text:
    No. 1876.
    Second Circuit Appeal.
    PORTLAND SYNDICATE, INC., v. BELCHIC & LASKEY GAS CO..
    (Feb. 3, 1925, Opinion and Decree.)

      (Syllabus Toy the Editor.)
    1. Louisiana Digest — Taxation—Par. 33.
    Under Act 31 of 1920 the parties to a joint venture in which the profits are divided between them must pay the severance tax in proportion to the percentage of profits which each party receives under the contract.
    Appeal from First Judicial District Court of Louisiana, Caddo Parish. Hon J. H. Stephens, Judge.
    REYNOLDS, J.
    Action by plaintiff to recover from defendant $1608.94 severance license tax paid by plaintiff under an agreement with defendant that the same should finally be paid by the party owing same.
    Reversed, and judgment rendered.
    John B. Files, of Shreveport, attorney for plaintiff, appellant.
    Palmer and Harding, of Shreveport, attorneys for defendant, appellee.
   In this case, Portland Syndicate,; Inc., is the owner of a gas well and . entered into a contract with Belchic & Laskey Gas Co., under which defendant built a pipe line from the gas well to the Haynesville oil fields and sold gas to the public.

Through their combined efforts and holdings the plaintiff and defendant. severed the gas from the soil and sold it to the public.

Under Act 31 of 1920 the State is entitled to collect $1608.94 severance license tax for gas sold by plaintiff and defendant under their joint venture.

Under the joint venture of plaintiff and defendant the gross proceeds derived therefrom were to be divided sixty per cent to Belchic & Laskey Gas Co., and forty per cent to Portland Syndicate, Inc. This proposition of interest in said proceeds was to continue until said Belchic & Laskey Gas Co. had been reimbursed all amounts expended by them for constructing and operating said line.

Under their joint venture the plaintiff and defendant constituted themselves, under Act No. 31 of 1920 a firm, corporation or association of persons engaged in the business of severing natural resources from the soil and owe the severance license tax of $1608.94 in the proportion tha,t they were due to receive the gross proceeds on the date said severance license tax was paid.

It is, therefore, ordered, adjudged and decreed that the judgment appealed from be reversed.

It is further ordered, adjudged and decreed that the defendant, Belchic & Laskey Gas Co., pay to the plaintiff,' Portland Syndicate, Inc., forty per cent of $1608.94, with legal interest thereon from the date plaintiff paid the severance license tax, unless under the terms of the contract the condition had arisen under which the gross proceeds were to be divided in the proportiofi'of 50% and 50%, in which event it is ordered, adjudged and decreed that defendant,. Belchic & Laskey Co., pay to plaintiff, .Portland Syndicate, Inc., fifty per cent of $1608.94, with legal interest thereon; from the date of payment of the severance license tax.

The cpsts of both courts are to be paid by defendant.


author: CARVER, J.

text:
    No. 2010.
    Second Circuit Appeal.
    THOMAS W. HERRIN v. FRANK CICARDO.
    (Feb. 3, 1925, Opinion and Decree).

      (Syllabus by the Editor.)

    1. Louisiana Digest — Appeal—Par. 625.
    The judgment of the trial court on questions of fact, not being erroneous, is affirmed.
    2. Louisiana Digest — Negligence—Par. 25.
    Where the negligence of both parties con curs in producing the injury, the consequences (except in admiralty) are not shared between them but the injury remains where it falls.
    3. Louisiana Digest — Automobiles—Par. 7; Municipalities — Par. 224.
    Where one steps in front of an auto without looking he is contributorily negligent and cannot recover even though the auto driver was negligent in not blowing his horn, and running fast.
    (Civil Code, Art. 2315. Editor’s note.)
    On appeal from Thirteenth Judicial District court, Parish of Rapides, Hon. L. L. Hooe, Judge.
    This is a suit for damages for personal injuries sustained in an auto accident where a pedestrian was hit and injured.
    There was judgment for defendant and plaintiff appealed.
    Judgment affirmed.
    ' Gus ■ A.- Voltz, of Alexandria, attorney for plaintiff and appellant.
    Lamar Polk, of Alexandria, attorney for defendant and appellee.
   CARVER, J.

Plaintiff sues for damages for personal injuries inflicted on him by a delivery truck driven by defendant’s son,' Nick Cicardo, 18 years old.

He alleges negligence on the part of defendant’s son in driving at an excessive rate of speed, not signalling and not looking.

The defense is a denial of defendant’s negligence and a plea of contributory negligence.

From the testimony of the witnesses and the map and photographs introduced in evidence, the locus in quo is shown as follows:

Tenth street, in Alexandria, running north and south, is one of the main streets, traffic on the same being quite heavy, especially in the evening. It is forty-eight and one-half- feet wide from the sidewalk on the east to the freight depot of the Texas & Pacific ' Railway Company on the west. This depot extends on the west side of Tenth street a distance of two blocks. There is no pavement next to the depot.

Fisk street, thirty-three and four-tenths feet wide between curbing, fifty-three and four-tenths feet wide between property lines, comes to Tenth street from the east but does not cross it. The space on the west is occupied by the depot.

On the northeast corner of Fisk and Tenth streets is a candy kitchen and on the southeast corner is the house of Eppinette, one of plaintiff’s witnesses, facing Fisk street.

The map filed in evidence shows five doors of the depot marked as follows, beginning on the north, namely: 8D, 6, one unmarked and C. The doors are eight feet wide and the distance between. them nineteen feet.

The map shows certain positions fixed by Ball who made it from information furnished him by plaintiff, as follows.: Herrin’s car, pointed, south, -five feet from the .depot and on edge of the brick pavement, the right wheel being over the edge .on the depot side; Herrin at the place where picked up, twenty-five feet south of his car; Brown-Robert truck in front of door C about sixty feet south of Herrin’s car; place where Cicardo’s truck stopped in Tenth street about sixty-five feet from Herrin’s car.

Plaintiff, as a witness, states his case as follows:

As I was coming down Tenth street, the car was -rolling as I had a puncture, I drove to the other side of the street on the right side and stopped. I opened the door on the right side and got out on the right side, I stepped down' and looked 'at the back tire on. the right side, and then the one on the front, which was entirely out of the street on that side. There was nothing wrong with either tire. I walked around the car towards the front. I got around there and the left tire on the front wheel was about two-thirds gone. I looked down the street, I saw a truck coming driven by Nick Cicardo, and then .as I was standing right by the side of the •c^r when he drove in, his right fender struck me.

Q. You state that you saw him down the street?

A. Yes, sir.

Q. Please state how far his truck was down the street when you noticed him?

■' A. About across the court room.

Q. About twenty-five feet?

A. Yes, sir.

Q. When • he was twenty-five feet from you, what did you then do?

■ A. I just stayed by the side of my car.

Q.. And .then when he got up closer to you,, what did you do?

A. He struck me on the right side. He missed my car about one and one-half feet, •was how close he ran into my car.

Q. At the time he struck you, were you standing still or walking around towards (Interrupted).'

-...A. I was standing still.

Q. Did you think that he was going to come that close to your car?

' A. . No, Sir.

■ Q. -How far were you from -the left fender of your car?

A. Right against it.

He-then states that he was struck on-the right arm; was dragged down the street about twenty-five or thirty feet when he rolled off; that the truck did not -stop when he rolled off but ran “at least one-half block, whatever distance that is. It must have run sixty or seventy feet from where I fell off; that the first two persons reaching him were David Wilson and Charles Lassiter, and then Nick Cicardo who asked if he was hurt and kept saying “I did not see you, I did not see you”; that the incident occurred between 4:30 and 4:45 p. m., when it was still light; that his car had been stopped two or three minutes before he was struck; that he was standing right up against his fender, too close to see the deflated tire, but had previously seen it from the front; that he was standing there considering whether to fix it there- or not; that Cicardo did not sound his horn; that no other car was passing; that there was room for three or .four cars between his car and the east, side of Tenth street, so he did not think Cifcardo would strike him because Cicardo' was “sort of swerved out into the street” as shown by the tracing of Cicardo’s course on the plat; that he had gotten up unassisted and returned to his car when Ardoin came up.

He stated at first that his car was eight or ten feet from the depot (transcript, 34) but on looking at the plat, said it was as shown thereon, which was only three . or four feet from the depot. He also,, says there was no car between his car and; the depot and no room for any.

His account is substantially corroborated by Lassiter, a boy twelve years old. ip;the low sixth grade, who had just come out of Eppinette’s house, and also by David Wilson, a school boy eleven years old, in the low sixth grade, who was on the sidewalk in front of. the candy kitchen. These boys both say they saw Cicardo’s car first when it was about fifteen feet from Herrin’s car and that it' was going at the rate of twenty miles an hour or more. Eppinette (T. 67) says it was going about this fast after Herrin was struck.

Nick Cicardo, driving the Cicardo truck, after stating that he saw a Ford car parked on the side of the street but saw nobody around it, was asked what happened then, and stated:

“I was coming near to Mr. Herrin’s car and he came around and when I was almost there to the front of his car, he stepped out to the right fender of my car and walked right into my car and he missed his hand and hit the wind-shield and turned around and fell to the ground, and I stopped — I stopped all at once, and then I moved on to the side of the street:
Q. Did you see him prior to the time that he stepped out from the front of his car?
A. I seen him when he stepped, right into my car, that was the only time I seen him.
Q. What part of your car did he step into ?
A. At the right fender, near the front wheel.
Q. Did your' car drag him or carry him any distance?
A. No, sir.

He further stated that Herrin fell about eleven or fifteen feet from where he first struck him; that he fell near the back end of the Brown-Robert truck; that this Brown-Robert truck was between Herrin’s car and the depot; that from the time he saw Herrin he did not ’ have time to apply his brakes, blow his horn or switch his truck; that he was looking in the direction where he was .going; that he was, travelling nine or eleven miles per hour; that he did not see Herrin standing beside his car but would have seen him had he been there; that just before striking Herrin he had swerved out into Tenth street to go around .the. Thompson-Ritchie truck; that he did not say to Herrin “I did not see you”; that after swerving out into Tenth street to go around the Thompson-Ritchie truck he had swerved back towards the depot and then out again so as to get straight down Tenth street.

He further says that he did not pass further away' from Herrin’s car because he had to give room to another car coming on Tenth street towards him, which car he missed about two feet and Herrin’s car about three feet. We do not find any corroboration oj: his statement as to this other car. Mayfield' says no other car was passing then. (T. 166.)

He admits not blowing his horn.

After stating he had stopped a second time about twenty feet from where he hit Herrin, he located the place where .be stopped on the plat, which was approximately fifty feet from where he hit Herrin.

His account in respect of the speed st which he was travelling, the way in which Herrin was struck, the distance Herrin was carried before he fell, the distance travelled by the Cicardo truck after striking him, and the stopping of the truck twice, was corroborated by the testimony of March Parker and Victor Mayfield who claimed they were on- the Brown-Robert truck which, they say, was parked between Herrin’s car and the depot,-the front wheels of their truck just beyond the front wheels of Herrin’s car; their truck facing north and Herrin’s car south.

This location is between door D and door 6' on the plat.

They state that their truck' had been parked at this place about ten minutes' ' waiting’ to deliver freight at the depot when Mr. Herrin came up and stopped his car. They give the same account as he does of his getting out on the right hand side' of his car and inspecting the tires on that side' and then walking around the front of his car, but differ from him as to what .then occurred, they stating that he walked right into the Cicardo car.

Plaintiff makes a -serious attack on the testimony of Parker and Mayfield, claiming that the Brown-Robert truck was not where they place it, between Herrin’s car and the depot, but about seventy-five feet south of that, at door C.

Eppinette, Ardoin and Payne, who all went to Herrin, reáching him, though, after he had returned to his car, state they did not see this truck near Herrin’s car. Payne says he saw a car that he thought wás the Brown-Robert truck some fifty-five or sixty feet in front of Herrin’s .car. David Wilson also located the Brown-Robert truck about where Payne does. Eppinette says there was one truck about where Payne and Wilson located the Brown-Roberts truck but he didn’t notice name, and one about two doors behind Herrin’s car.

On the other hand, the position of the Brown-Robert truck where Parker and May-field place it- is testified to by F. H. Heard who was driving the Thompson-Ritchie truck, in front of which Cicardo passed just before striking Herrin, by Archie Norris who was on the Thompson-Ritchie truck with Heard, and by E. T. Barnacastle the receiving clerk of the railway company. Compton the delivery clerk of the railway company did not know where the Brown-Robert truck was but states positively it was not where Payne and Wilson place it, namely, at ’ door C, and states that door C is the place where Cicardo’s truck stopped after the occurrence. He further states that the doors north of door 6 are places where freight is received and doors south of 6 are places where freight is delivered by the railway company.' The Brown-Robert truck was bringing freight to the depot so had no business at doór C.

There is no reconciling'the accounts given by the two parties in the affair and supported by their respective corroborating witnesses. However we might have decided this crucial question of fact if we disregarded the decision of the District Judge, it is evident that he accepted the theory of the defendant on that question; and this is so stated by defendant’s counsel and not denied by plaintiff’s counsel.

In view of all the evidence supporting' that theory we cannot say that the District Judge manifestly erred; and in such case it is well settled that we should not reverse his decision.

See first Louisiana Digest, page 591. section 625, citing a very long list of ’ decisions on the principle.

“Judgment based upon facts will not be disturbed on appeal unless clearly erron-. eous”.

Wtyile not,- of course, exactly the- same, yet the facts ih this, case are sufficiently Similar .to the facts in the following cases to make the ruling in those cases applicable; those rulings being against the plaintiff on the ground of contributory negligence.

Legendre vs. Consumers, etc. Co., 147 J.a. 122, 84 South, 517, where the syllabus is:

“Where, both parties are negligent, the damages save in admiralty are not shared, unless one of such -parties, notwithstanding the negligence -of the other, might have avoided the. injury”.

Roder vs. Legendre, 147 La. 297, 84 South. 787, where the syllabus is:

“Plaintiff -who attempted to cross street to take a street car on a dark and rainy night after having seen automobiles approaching at a distance of a block and a half,, without looking for approaching automobiles, after having left; curb, was contributorily negligent.”

Collier vs. Varino, 153 La. 636, 96 South. 500, where the syllabus is:

“Even though driver of truck was driving at excessive speed and did not give signal of his approach, contributory negligence of one waiting for street car, in suddenly stepping in front of the truck, held the proximate cause of his death, as driver was deprived of last clear chance of preventing the collision.”

Friedman vs. N. O. Ry. & Light Co., 153 La. 954, 96 South, 821 where the syllabus is:

“When contributory negligence of one struck by street car continues up to happening of the accident and motorman had no chance to avoid the accident after danger became apparent, the doctrine of last clear chance is inapplicable.”

Without analysing decisions, they settle the doctrine that where the negligence of both parties concurs in producing the injury the consequences (except in admiralty) are not shared between them but the injury remains where it falls. This doctrine is subject to the exception that if notwithstanding the negligence of one party the other by the exercise of ordinary diligence can avoid the injury or the infliction of the injury and fails to do so, he alone must bear the consequences. This is called the doctrine of the last chance; but we find this doctrine without application in this case, because if the incident happened as defendant and his witnesses claim it did, Cicardo had no chance to save the situation after seeing the danger.

The decision of the lower court is therefore affirmed.