author: MOUTON, J.

text:
    No. 697
    First Circuit
    HAIK v. UNITED STATES FIDELITY & GUARANTY CO.
    (October 8, 1930. Opinion and Decree.)
    (December 1, 1930. Rehearing Refused.)
    Adrian D. Schwartz, of Covington, attorney for plaintiff, appellee.
    Miller & Heintz, of Covington, attorneys for defendant, appellant.
   MOUTON, J.

The defendant company issued an insurance policy on a Peerless seven-passenger auto in favor of plaintiff. In May, 1928, during the term of the policy, the car, while being driven by the plaintiff, fell in a hole, and was damaged, requiring repairs to the sum of $227.35, which was paid by plaintiff, and was recovered against defendant in this suit.

The portion of the policy pertinent to the issue presented for decision provides for indemnity for loss or damage to the auto “caused solely by accidental collision with another object.”

Plaintiff left Covington, where he Vas living, with members of his family on a Sunday morning about 7 o’clock, for an outing to Reserve, and on his way stopped in Bogalusa, where he took up some friends for the trip. There were about eleven persons in his auto, counting the children. After leaving Bogalusa, when only a few miles from that place, being overtaken in a torrential rain, he proceeded towards the house of a Mr. Evans, intending to find shelter there, and in trying to pass around a small post, his auto fell in a hole, where it was damaged. There is nothing to indicate that plaintiff fell into this hole through his fault, carelessness, or negligence. The fall in the hole was therefore purely accidental, and the only question which remains for solution under the terms of the policy is as to whether or not there resulted therefrom “a collision” between the car and “anothér object.”

It is shown that Mr. Evans had, some time before the accident, operated a gas station near his home, had subsequently removed oil or gasoline tanks from there, leaving the hole into which plaintiff’s auto fell, as above stated. The hole was 6 feet deep, and had been filled by Mr. Evans with bricks, wood, and dirt.

The clause of the policy, to which we have hereinabove referred, provides for insurance against damages which might result from a collision between plaintiff’s auto and “another object.” We all know that an object may be real, visible, and tangible, or may be apprehended or conceived only by the understanding. The latter, obviously, must be eliminated from consideration in construing an insurance policy in a case of this nature. This elimination is made in Berry, Law of Automobiles, vol. 6, from which plaintiff quotes the following:

“The word object means anything that comes within the cognizance, or scrutiny of the senses, especially anything that is tangible or visible. * * * As used in a policy of insurance it includes water and land. So it is used to include both perpendicular and horizontal objects, including the flat earth.”

Evidently the wood, bricks, and dirt which had been thrown in that hole, whether they laid in there perpendicularly or horizontally, were by their nature, within the meaning of the policy, tangible and visible objects. If invisible at the time, this invisibility was caused by the heavy rain that had just fallen, and which made them more treacherous and dangerous.

It is shown that plaintiff, after the accident, did not go to Reserve, as he had planned, but returned to Covington, his home, where the auto was examined by a local mechanic. As the trouble could not be discovered, plaintiff phoned to Mr. Oster in New Orleans, from whom he had bought the auto. A mechanic was sent by Mr. Oster to Covington, who, after an inspection of the auto, had it shipped to New Orleans for the repairs which might be found to be needed.

Mr. Oster is engaged in the automobile repair business, and made the necessary repairs. His testimony is to the effect that the motor was burned up, and that the pump had been broken; also the crank case directly under the pump. He says, that “the crank-case under the oil pump showed the impact,” etc.

Technically speaking, a collision or impact would mean the striking against each other of two bodies in motion. Part of the clause of the policy, we have quoted, 'refers generally to collision with “another object.” Such a provision in an insurance policy, in the absence of more specific language, cannot be restricted to a collision with another “moving” object. When the object is real or tangible, whether moving, permanent, stable, inanimate, or immovable, a collision with it comes within the terms of that clause of the policy to which we have referred, and entitles the insurer to relief, if accidental, which was clearly shown to have been the case here.

It is evident in this case that in falling in that hole plaintiff’s auto came in contact or collided with some wood, bricks, or dirt which had been thrown into it by Mr. Evans when he undertook to fill it up.

Mr. Oster said that the pump and the crank case, directly under it, had been broken, which he said showed the impact. Evidently these breaks were the result of the collision, as it was shown that the auto was practically new, and had been found in good condition after being looked, over by an automobile mechanic, the day before the accident. In that make of cars, it was shown that the oil pump distributes oil to the motor, which being injured caused the bearings to burn up, thereby preventing the splaShings of oil to the pistons, no doubt, all of which was the direct result of the collision of the auto with some fixed object in the hole.

Counsel for defendant company, it seems, contend that the condition of the car was caused by plaintiff, by venturing immediately after the accident on a return trip to Covington, some 56 miles away; their contention being, in substance, that before starting back, plaintiff should have had the car inspected and the trouble remedied. The proof shows that Mr. Castera, the officer in a garage in Covington, was called over the phone by plaintiff and came up to the scene with a wrecker to pull the car out of the hole. After it was pulled out, Mr. Mitchel Haik, son of the plaintiff, asked Mr. Castera if the car would be ‘‘all right” for a drive back to Covington. Mr. Castera, who is an experienced automobile driver, looked at the indicator, had Haik to start the motor, saw he had all the oil needed, and, not seeing anything wrong with the auto, told him he could “go ahead all right.”

Plaintiff, it appears, knows little, if anything, about the mechanism of an auto and started back, as he felt assured he could, after receiving the advice from Mr. Castera. On their way back, plaintiff stopped at a garage in Bogalusa, had the oil drawn out of the auto and replaced with new oil to make the rest of the trip. This action on his part, and the fact that he consulted with Mr. Castera before starting on his way to Covington, show that he was cautious and careful in the management of the auto.

Defendant insists that, notwithstanding the advice of Mr. Castera, plaintiff should have had, before leaving the Evans house, an inspection of his auto, which he could have obtained, it is claimed, at a filling station then in operation at Pearl River, a few miles distant from where the accident occurred. There is nothing to indicate that plaintiff was advised to go to that station to have his car examined or as a matter of fact that there was, to his knowledge, such a station there, and that he could have found at the station any one who could have made an authoritative inspection of his car. There is therefore nothing in the record to show that plaintiff was in any way careless or negligent because he did not go to that filling station to have his car examined before returning to his home.

He had been caught, the evidence shows, in a roaring rainstorm, which had flooded the country through which he was traveling, and had been forced to stop near Mr. Evans’ place, where he was seeking a refuge for himself, his children, wife, and other occupants of his car, when he was suddenly and unexpectedly plunged into that excavation which had been caused by the removal of an oil or gasoline tank. It was shown that himself and his companions were drenched to the skin before getting into Mr. Evans’ home; that it was only many hours after the accident that his car was extricated from the hole; that his companions, children, wife, and himself, were naturally under considerable strain, and evidently, to their disappointment had to return without going to Reserve, where they intended to pass the day. Under such trying circumstances, it must, in all reasonableness, be held that plaintiff’s conduct was all that could have been expected, and that he is not in the least chargeable with negligence or carelessness in thus returning to Covington.

The proximate cause of the injury to the auto was its collision with some object in the hole in which it fell, and cannot be ascribed to any action of the plaintiff, either before or after the accident.

The court correctly held defendant liable for $227.35 paid by plaintiff for the repairs to his car.


source: Caselaw Access Project

author: LeBLANC, J.

license: Public Domain

text:
    No. 665
    First Circuit
    MARTIN v. CAZEDESSUS
    (October 8, 1930. Opinion and Decree.)
    (December 1, 1930. Rehearing Refused.)
    (January 5, 1931. Writs of Certiorari and Review Refused by Supreme Court.)
    Taylor & Parker, of Baton Rouge, attorneys for plaintiff, appellant.
    Cross & Moyse, of Baton Rouge, and Spearing & Mahry, of New' Orleans, attorneys for defendant, appellee.
   LeBLANC, J.

An automobile collision at Dufrocq and America streets, in the city of Baton Rouge, on January 24, 1929, gave rise to this damage suit.

The plaintiff is Dr. J. I. Martin whose minor daughter, Miss Margaret Martin, was an invited guest in the car of the defendant, Mr. Eugene Cazedessus. The car was being driven at the time by Mr. Cazedessus’ minor son, Camille, and another young man, Donald Ogden, was also a guest passenger.

The suit is brought by Dr. Martin for the use and benefit of his minor daughter, who, he alleges, sustained a severe foot injury in the accident. Charges of negligence by reason of careless and reckless driving are made against young Cazedessus, for which, it is alleged, his father is liable in damages for the young lady’s injuries.

The total amount sought to be recovered is $10,871, the principal item being $8,000, for having been deprived of exercising her chosen profession of toe dancing for which she had been preparing and training herself over a period of several years, and $2,000 for physical and mental pain and suffering. The other items consist of doctors’ and medical bills and expenses, and the sum of $500 for having been deprived of the honor and pleasure of graduating with her class at the public high school commencement during the summer of that year.

The answer of the defendant denies practically all the allegations of fact and particularly those of negligence on the part of his minor son, and contains averments to the effect that the accident was due solely and only to the excessive speed, wanton negligence, and lack of care on the part of the negro driver of the car with which his automobile collided.

The trial in the lower court resulted in a judgment in favor of the defendant, dismissing the plaintiff’s suit, and this appeal was taken.

The undisputed facts, up to the time of the accident, except with regard’ to the speed at which defendant’s son was driving, are as follows: Early in the evening of the accident, at about 7 o’clock, Camille Cazedessus went out for a ride in his father’s Buick coupe. He called for his friend Donald Ogden, and together they drove about the city, having no particular destination or purpose in view. They happened to stop at the Louisiana Bakery Shop where a friend named Oertling worked. In conversation there, it was suggested by Oertling, who seemed to have been an admirer of Miss Martin, that they go for her and take her to the shop. They then called her over telephone, and, on finding out that it was agreeable to her, Cazedessus and Ogden drove over to her home to get her. They all three got into the car, Cazedessus at the steering wheel, Miss Martin occupying the center of the seat, and young Ogden, the right-hand side. In these positions, they rode about the city for nearly two hours. The car apparently was running in perfect condition and the headlights were burning brightly. Some time between 10:30 and 11:00 o’clock, they were on Dufrocq street, going north, and nearing the intersection of America street, at which point the accident occurred.

Dufrocq street is considered one of the principal thoroughfares of the city of Baton Rouge. It runs north and south, is thirty-six feet wide, and the street car track, five feet wide, runs right through the center. America street is twenty-four feet in width, runs east and west and intersects Dufrocq street completely. The southeast corner of these two streets is open. There is a house on the corner, but it is some distance from the meeting point of the streets and traffic going north on Dufrocq street is clearly visible to’ a driver of an automobile coming west on America street, and likewise traffic going west on America street to the automobile driver going north on Dufrocqj street. Traffic going over Dufrocq street has the right of way over that running on America street.

According to his own testimony, young Cazedessus was driving at about twenty-five miles per hour. Ogden, who was used as a witness by the plaintiff, says that they were traveling between twenty and twenty-five miles. Miss Martin testifies that they were going at the rate of thirty-five miles per hour. The record contains a written and signed statement given to the claim adjuster of the insurance company which carried Mr. Cazedessus’ liability insurance, some time after the accident by Camille Cazedessus, in which it is distinctly stated that the car was going at a speed of twenty-five miles an hour. When this statement was made, there were present the claim adjuster, Mr. 'J. J. Hooley, Dr. J. I. Martin, Miss Martin herself, and Donald Ogden. After it had been read to them and signed by Camille Cazedessus, it was presented to Ogden and Miss Martin and signed by them, with the following notation appearing above the signature of each:

“I have also read the above and same is true and correct.”

It appears, moreover, that Miss Martin did not sign the statement before she had asked her father if it was all right, and he had read it over and told her that he saw nothing wrong with it. Miss Martin, on the witness stand, unsuccessfully attempted to show that the statement offered in evidence was not the one she had signed, and she was otherwise unable to reconcile her estimate of a speed of thirty-five miles per hour, given on the witness stand, with that of twenty-five miles appearing in the statement approved over her signature as being true and correct. Charlie Brown, the negro driver of the other ear, swears that he did not see the Cazedessus car until it came in contact with his, so, naturally he knows nothing about the speed at which it was going. Under the evidence before us on this point, it is reasonable to conclude that young Cazedessus was driving at about twenty-five miles per hour.

We do not believe that a speed of twenty-five miles on a right of way street, between 10:00 and 11:00 o’clock at night, with no traffic in sight, constitutes reckless and careless driving of an automobile. If, then, Cazedessus was not negligent in this respect, was there anything else he did or failed to do which may be considered careless and reckless and which might have caused the accident?

According to his version of the collision, when they were about fifty feet from the intersection of America street he saw the other car, which was a Ford coupe, coming from the east on America street. The Ford was also about fifty feet from the intersecting point of the two streets. As he was on the right of way street, he had every reason to believe, as he says he did, that the .other car would slow down, if not stop completely, on reaching the intersection. He was about the center of Dufrocq street, riding over the street car tracks. Anticipating that the driver of the other car might only slacken his speed instead of stopping entirely, he pulled over slightly to the left in order to make sure that he would pass in front of him. The nearer he reached the center of the intersecting street, however, the more he realized that the negro driver not only would not stop, but that, on the contrary, he kept coming on into Dufrocq street at lively rate of speed. Aware then of the emergen- . cy that presented itself, he made the hurried decision to swerve his car entirely to the left toward the west side of America street, so as to parallel, if he could, the Ford coupe which was headed in that direction. His action, no doubt well meant, did not serve the purpose he had in mind. The Ford car was already too far into Dufroeq street, and a collision became inevitable. The right front fender of his car struck the other car in the door which was about the center of the body. Ogden’s account of the accident is virtually the same, and, indeed Miss Martin’s own testimony is not at any great variance, except with regard to the speed of the Cazedessus car, to which she attributes the negligence of young Cazedessus. Against this evidence, there is the testimony of Charlie Brown, the negro driver of the Ford car. He says that he was about to enter Dufroeq street, and as he did so he almost stopped his car. On cross-examination, he says that he actually came to a stop. He says, further, that he looked south on Dufroeq street and did not see the Cazedessus car coming. As a matter of fact, he says that he never saw it until it actually came in contact with his car. This testimony seems to us to be incredible. If he looked south on Dufroeq, as he says he did, he was bound to have seen the Cazedessus car coming on with its bright, shining lights, and, having seen it so near the intersection of the two streets, ordinary prudence should have prompted him to wait for it to pass. If he did not see it, it was because he did not look, but, instead, kept coming on at the same rate of speed he had been going, and thus confronted the other car with the situation of peril in which the accident became unavoidable. In either event, it was his careless driving which caused the collision.

We believe that young Cazedessus used ordinarily good judgment and acted with the usual deliberation of a person who is placed in the situation that faced him. He assumed, as he had a right to do, being on a right of way street, that the driver of the other car would at least slacken his speed if he did not stop, and that by all means he at least would look on the .right of way street for on-coming automobiles. Neither of these things, the other driver did, but continued over the right of way street at the same rate of speed, he had been going before. The danger then became imminent and Cazedessus had to act quickly. The only other possibility of his avoiding the collision (and it seems that it would have been as much a probability as the course he followed) was for him to bring his ear to a short stop in as near a distance as he possibly could. Granting that that would have been a better way to avert the accident, his choice of the other cannot be charged against him as negligence. Under the circumstances he was placed, a person is not held to the exercise of the same presence of mind and deliberate judgment as one who apprehends the danger and has sufficient time to avoid it.

In the case of Buckner v. Powers, 12 La. App. 630, 125 So. 744, 748, decided by the Court of Appeal, Second Circuit, and in which are to be found many features of the ease before us, the court said:

“Counsel then proceeded with the argument that defendant’s driver lost control of his car and swerved to the left, when he should have gone straight ahead or veered to the right. It is probably true, as already stated, that defendant’s driver made a mistake in turning to the left, instead of the right; but his mistake in that respect cannot be charged against him as negligence. He was confronted with a sudden emergency. Plaintiff’s car came into the street immediately in front of him. He acted quickly and under impulse. One in peril, or who sees another in peril, when immediate action is necessary to avoid it, cannot exercise the same presence of mind and cool deliberation as under other circumstances.”

The court cited, apparently with approval, the following rule, which, as is said in the opinion, is taken from a case note in 27 A. L. R. 1197, and cited in cases from eighteen states, as well as from federal courts:

“* * * automobile driver, who by the negligence of another, and not by his own negligence, is suddenly confronted by an emergency and is compelled to act instantly to avoid a collision or injury, is not guilty of negligence if he makes such a choice as a person of ordinary prudence placed in such a position might make, even though he did not make the wisest choice.”

That rule, we think, is applicable in this case, and, in its application, we are constrained to hold young Cazedessus free from negligence.

If there was no negligence on his part, it follows that his father, the defendant herein, bears • no liability in favor of the plaintiff, Dr. Martin, for the use and benefit of his minor daughter, for any injuries which she may have sustained.

The judgment of the lower court was correct, and it is therefore affirmed.


text:
    No. 672
    First Circuit
    BLADES v. ZINSEL
    (October 8, 1930. Opinion and Decree.)
    (December 1, 1930. Rehearing Refused.)
    (January 5, 1931. Writs of Certiorari and Review Refused by Supreme Court.)

      Mat J. Allen, of Amite, attorney for plaintiff, appellant.
    W. H. McClendon, of Amite, attorney for defendant, appellee.
   LeBLANC, J.

This is a petitory action in which the plaintiff, alleging himself to be the owner of a 10-acre tract of land in the N. E. 14 of the S. E. % of the N. W. % of section 36, T. 6 S., R. 7. E., St. Helena meridian, situated in the parish of Tangipahoa, avers that the defendant has taken actual, physical possession of a narrow strip thereof on the west side of the old Hammond-Ponchatoula highway, measuring approximately 100 feet in width by the full length of the tract, running north and south. He avers further that the defendant has no title to the said strip of land, but has taken possession of same by virtue of a judgment of court rendered on April 19, 1928, in a possessory suit brought by the defendant against him. The prayer of the petition is to have the judgment in the possessory action under which defendant has taken possession declared null, void, and of no effect, and also for judgment decreeing him to be the owner of the strip of land, and, as such, entitled to its possession, and ordering the defendant to deliver possession to him.

The principal defense is a plea of thirty years prescription, which the trial judge referred to the merits.

During the trial of the case, the plea was sustained, and judgment rendered in favor of defendant accordingly. On appeal to this court (Blades v. Zinsel, 11 La. App. 244, 123 So. 405), the ease was remanded for the purpose of permitting the plaintiff to offer rebuttal testimony, which, right had been denied him by the trial court.

At this second trial, the case was submitted on the testimony taken previously as well as the rebuttal testimony offered by plaintiff, and judgment was again rendered maintaining the plea of prescription, whereupon the plaintiff appealed again.

We are- of the opinion that the judgment of the lower court is incorrect. The trial judge erred in holding that the defendant had shown by sufficient evidence a continuous, uninterrupted possession which is necessary to acquire under the thirty years’ prescription. Moreover, even if it be conceded that there has been adverse possession for thirty years, it is plain from the testimony, that the defendant necessarily has to add to his possession that of his vendor and authors in title to make the required composite, and this he cannot do under the law.

The preponderance of the testimony, as we view it, is to the effect that the defendant, by verbal acknowledgment and by several of his actions, recognized the ownership of the plaintiff and of his brother William Blades, at one time a co-owner of this strip of land, and permitted acts on their part and later on the part of plaintiff alone, which interrupted the possession he pleads.

According to the testimony of both plaintiff and his brother, one of the defendant’s first acts in regard to the land after they had purchased it, was to acknowledge to them their ownership. It appears from the evidence that one day he vas taking dirt from the land and hauling it away to some part of his property. After ascertaining that he was on their land, plaintiff and his brother protested to him, and he readily stopped and confessed the fact that he knew he was on their land. The offer of their deed in the record shows that they acquired it in January, 1922. Later on, in conversation with the plaintiff relative to the correct line on the western side of the property, he himself showed plaintiff an iron stake on the northwest corner of the strip which indicated the true-line, and again he verbally acknowledged to plaintiff the latter’s ownership. It is not made clear if it was during this same conversation, but there is the testimony of his former, wife, Mrs. Fournier, to the effect that she was present at a conversation between them, in the course of which defendant admitted that the strip of land was not his. This conversation took place, she says, before she and her husband separated, and that was in April, 1923.

These admissions and acknowledgments on the part of the defendant bring the case within the ruling announced in the syllabus and supported in the body of the decision in the case of City of New Orleans v. Joseph A. Shakspeare, 39 La. Ann. 1033, 3 So. 346:

“If it appears that the party who pleads the prescription of thirty years acknowledged, at any time before his possession covers a space of 30 years, that the title of ownership was in his opponent, his plea is defeated, and his alleged ownership is destroyed.”

In that case, also, as in the present, the property in dispute had never been assessed in the name of the defendant, and he, like the present defendant, had never paid any taxes on it. In its opinion, the court mentioned that as an additional fact which supported its conclusion that the plea of prescription of thirty years was not sustained by the evidence.

We think that the plaintiff has shown also that the possession which the defendant in this case had of the strip of land, for the time that he actually did hold it, was by sufferance, and with the understanding that plaintiff could obtain possession at any time, and as a matter of fact did take possession not long after by building a barn on it. It was about at this time also that the defendant further recognized plaintiff’s ownership by offering to buy the strip of land from him for $25. On this last point, the following may be quoted from the syllabus in the case of Davis v. Young, 36 La. Ann. 374, as significant:

“An offer to buy the land from one holding the adverse title, when not made for the purpose of acquiring an outstanding title and perfecting the title of the possessor, will defeat the plea.”

In that case also there had been an offer to purchase the land in controversy, and the court used that as a consideration in applying a principle stated by some text-writer of the time, from which it quoted the following:

“If a party in possession of land offers to purchase it from the true owner, and the offer is made not merely to buy an outstanding or adverse claim, in order to quiet possession or to protect himself from litigation, the offer is a recognition of the owner’s title and will stop the running of the statute.”

The court then adds:

“This is in strict accordance with our own law on this subject. O. C. 3490, 3500.”

The last article of the Civil Code cited, article 3500, is the law which governs in cases of this kind. It relates to the prescription of thirty years, and provides that “the possession on which this prescription is founded must be continuous and uninterrupted during all the time; it must be public and unequivocal, and under the title of owner.”

Article 3501 then provides how this possession, once acquired, may be preserved, if it has not been interrupted, and the examples given, are “external and public signs, announcing the possessor’s intention to preserve the possession of the thing, as the keeping up of roads and levees, the payment of taxes and other similar acts.”

Prom the evidence, as we view it, defendant has not had the kind of possession required under article 3500, Rev. Civ. Code, and, if it be conceded that he did once acquire it, he has failed to preserve it under the conditions laid down under article 3501, Rev. Civ. Code.

Tested by these provisions of the law, therefore, his plea is bound to fall.

But, even if defendant’s possession of the strip of land be regarded in its most favorable light, it could still avail him nothing under his plea of prescription. Under his own testimony, he took possession at the time of his purchase, which we learn from the offers of title made in the record was in September, 1913. He had possessed in his own name, therefore, at the time this suit was filed in November, 1928, only fifteen years. To make the required thirty years of possession, it would be necessary for him to add to his, that (assuming that they had possession) of Harang, who purchased from Korrigan in 1911, of Korrigan, who purchased from Longenecker in 1901, and of Longenecker, who purchased from Sentell in 1896. This, however, he cannot do. In order to claim the land under thirty years’ prescription, the vendee cannot add his vendor’s possession to his own, where there is no privity between him and his vendor in that respect. That proposition seems to be well settled under our jurisprudence, and was fully considered by this court in the comparatively recent case of Broussard v. Broussard, 8 La. App. 635. Pertinent decisions of the Supreme Court of the state are cited therein.

As already stated, we are of the opinion that the judgment of the lower court in this case is erroneous, and necessarily it has to be reversed.

For the foregoing reasons, it is therefore ordered that the judgment of the district court sustaining the plea of 30 years’ prescription be now avoided, annulled, and reversed, and, it is further ordered, adjudged, and decreed, that there be judgment in favor of the plaintiff, Murphy J. Blades, and against the defendant, William Zinsel, recognizing the said Blades to be the true and lawful owner of the strip of land measuring approximately 100 feet in width, by the full length of 10 acres, being the westerly portion of the N. E. Vi of the S. E. % of the N. W. % of section 36, township 6 south, range 7 east, St. Helena meridian, in the parish of Tangipahoa, state of Louisiana, and that as owner he is entitled to the full and undisturbed possession thereof, and it is further ordered that the said defendant, William Zinsel, deliver possession of the said strip of land to the said plaintiff, and, further, that the said defendant pay all costs of this proceeding.


author: JANVIER, J.

text:
    No. 13,361
    Orleans
    ITEM CO., LTD., v. NATIONAL DYERS & CLEANERS, LTD., ET AL.
    (November 17, 1930. Opinion and Decree.)
    (December 1, 1930. Rehearing Refused.)
    (January 6, 1931. Writs of Certiorari and Review Refused by Supreme Court.)
    Deutsch & Kerrigan, of New Orleans, attorneys for plaintiff, appellant.
    P. A. Middleton, of New Orleans, attorney for defendants, appellees.
   JANVIER, J.

The Item Company, Ltd., seeks to recover for certain advertising matter published for National Dyers & Cleaners, Ltd., which concern was the sole defendant named in the original petition and which, in answer to that petition, filed a general denial.

Before the matter came up for trial, plaintiff, in a supplemental petition, alleged that while the case was pending on the trial dockét on the issue as tendered by the original petition and answer, defendant had sold all or substantially all of its machinery, fixtures, automobiles, trucks and other property owned and used in its business to Augustus E. Massey; that Massey had sold all of the said property to National Cleaning & Dyeing Company, Inc., a new corporation; that neither plaintiff nor any other creditor was notified of either of said transfers; that for this and other reasons the said transfers were in violation of Act No. 270 of 1926 of 'Louisiana commonly known as the “Bulk Sales Act.”

In the supplemental petition it is also alleged that the sale to Massey and the sale hy Massey to National Cleaning & Dyeing Company, Inc., were not hona fide transactions, hut were in fact simulations, and that therefore plaintiff should he allowed recovery directly from the National Cleaning & Dyeing Company, Inc., the new corporation, and, in the alternative, if the said transfers were in fact real sales, then judgment should he rendered against the said Massey because of the provisions of the Bulk Sales Law.

To this second petition both Massey and National Cleaning & Dyeing Company, Inc., filed exceptions of no cause of action, and the matter is now before us on appeal hy the Item Company, plaintiff, from a judgment maintaining the said exceptions and dismissing the suit as to the defendants Massey and National Cleaning & Dyeing Company, Inc.

The contentions raised hy the exceptions, though not specifically set forth therein, are as follows:

First, that the Bulk Sales Act (Act No. 270 of 1926) applies only to a merchandising business involving the buying and selling of goods, wares, and merchandise, and < therefore has no application to such business as that conducted hy the various defendants, that of dyeing and cleaning.

Second, that even in cases in which the act is applicable, it affords protection, not to all creditors, hut only to those who have sold goods, wares, and merchandise.

In Esther R. Denekamp v. Mr. and Mrs. William F. Heisler and John D. Nix, Jr., 12 La. App. 471, 126 So. 447, 448, we were called upon to consider and pass upon the identical question presented hy plaintiff’s contention that the statute in question applies to all classes of business and is not limited to persons, firms, and corporations engaged in merchandising, and in that case we said:

“Section 1 of the act prohibits the transfer in bulk of a stock of merchandise otherwise than provided hy the act and sets forth the kind of merchandise embraced within the terms of the act as ‘the whole of a stock of merchandise, or merchandise and fixtures, or of all or of substantially all of the fixtures or equipment used or to be used in the display, manufacture, care or delivery of any goods, wares or merchandise including movable store and office fixtures, horses, wagons, automobile trucks and other vehicles or other goods or chattels of the business of the transferor shall be void as against the creditors of the transferor, unless made in conformity with the provisions of this Act.’ The only possible basis for the application of the act relied on to the transaction set forth in the petition is the use of the words ‘or other goods or chattels of the business of the transferor.’ But these words plainly relate to the goods or chattels of the same kind referred to in the detailed description. Defendant’s hoarding house business cannot he considered as merchandising within the meaning of the act. Swift v. Tempelos, 178 N. C. 487, 101 S. E. 8. 7 A. L. R. 1581; Bowen v. Quigley, 165 Mich. 337, 130 N. W. 690, 34 L. R..A. (N. S.) 218; Toxaway Hotel Co. v. Smathers, 216 U. S. 439, 30 S. Ct. 263, 54 L. Ed. 558.”

In that ease the Supreme Court granted a writ of certiorari and, after considering the case, remanded it on other grounds hut did not discuss the question presented here.

Counsel for plaintiff call to our attention the fact that one of the cases cited in our opinion in the Denekamp case has no application to the particular question presented here, which is true, that case being cited as authority for another proposition, and counsel also suggests that the other two cases dealt with statutes by their terms restricted in their application to mercantile pursuits, and it is argued that those cases should not be considered as binding even by authority of reason because our statute is broader than those which the courts in those cases discussed.

It is true that in Swift & Co. v. Tempelos, 178 N. C. 487, 101 S. E. 8, 7 A. L. R. 1581, the statute under consideration referred solely to “the sale in bulk of a large part or the whole of a stock of merchandise.” Likewise in Bowen v. Quigley, 165 Mich. 337, 130 N. W. 690, 34 L. R. A. (N. S.) 218, the statute which the court was called upon to interpret was, by its terms, limited to the sale of “* * * a stock of merchandise, or merchandise and the fixtures pertaining to the conducting of said business.”

The Louisiana statute prohibits the sale out of the regular course of business of not only merchandise, but also fixtures and “other goods or chattels,” and it is the inclusion in the prohibition of “other goods or chattels” which forms the basis of plaintiff’s argument; it being conceded that if the- inhibition were directed against the' sale of merchandise and display fixtures only, it would be impossible to interpret the act as applying to any business other than that of selling merchandise.

However, we do not feel that by including in the inhibition the sale of “other goods or chattels” the Legislature intended to bring into the contemplation of the statute all businesses, but that the words above quoted were inserted for the purpose of bringing within the terms of the statute, not all businesses, but all property owned by any one engaged in the particular class of business contemplated, that of buying and selling merchandise.

It would be most unreasonable to interpret the act as applying to any other business than that of buying and selling, as it is manifest that any concern not engaged in such business cannot sell anything without complying with the detailed requirements of the act, because any such sale would manifestly be out of the usual course of business or trade.

A doctor is not engaged in selling merchandise.. Therefore, any sale made by a doctor is out of the usual course of his trade or business. If a doctor desired to refurnish his office, he could not sell all or substantially all of his. old furniture without first notifying all of his creditors and without otherwise complying with the detailed requirements of the statute.

A telegraph company is not engaged in buying and selling; therefore, any sale made by it is out of the usual course of its trade or business. If it became advisable to sell its old autotrucks used in repairing its telegraph lines, such sales could not be made without the ‘preparation, ten days in advance, of a detailed inventory of the articles to be sold, without the preparation of a list of creditors, and without a notice from the transferee calling to the attention of each creditor the proposed transaction.

Such a result would be so burdensome to legitimate business that we cannot believe that it was intended by the Legislature.

If a statute is clear and unambiguous, courts may not look beyond the letter thereof in a pretended attempt to ascertain the reason which prompted the enactment. But where, as here, there is room for two interpretations, it is our duty to study the conditions which obtained at the time of the passing of the act, in an effort to determine what prompted its enactment, and to use that purpose as a guide in determining the meaning of ambiguous terms.

The situation which confronted the Legislature of Louisiana was similar to that which faced the Legislatures of practically all the other states of the Union. It was found that the small and impecunious merchandiser could fill his shelves with stock purchased from wholesalers and then, without notice to the wholesalers, dispose over night of his entire stock leaving the wholesaler or other seller of merchandise without recourse against the person to whom the stock had been transferred.

In Lemieux v. Young, Trustee, 211 U. S. 489, 29 S. Ct. 174, 175, 53 L. Ed. 295, the Supreme Court of the United States recognized that such a situation required a remedy, and, in holding constitutional a statute somewhat similar to that which we are now investigating quoted with approval the language of the court of last resort of Connecticut, as follows:

‘‘Twenty states, as well as the Federal government in the. district of Columbia, have similar statutes, some with provisions, more stringent than our own, and all aimed at the suppression of an evil that is thus shown to be almost universal.”

We are told that to interpret the statute as including only those engaged in merchandising will render it repugnant to the provisions of the Fourteenth Amendment of the Constitution of the United States as denying to such businesses the equal protection of the laws, and as denying to them due process of law, and that, if such is the case, and if our placing such an interpretation upon the statute will necessarily result in its hereafter being declared unconstitutional, we should not assume that the Legislature intended to act in defia'nce of the Constitution where an interpretation not repugnant thereto is reasonably possible.

Of course, the question of the validity of the statute is not now before us. Still, if we felt that the meaning, which we think the act contains, rendered it plainly violative of the constitution, we readily agree that we should seek to adopt some possible interpretation not objectionable.

It is true that in Illinois it has been held that a similar statute, if limited in its scope to one clas of business, is objectionable. Chas. J. Off & Co. v. Morehead, 235 Ill. 40, 85 N. E. 264, 20 L. R. A. (N. S.) 167, 126 Am. St. Rep. 184, 14 Ann. Cas. 434.

We are, however, of the opinion that the question of the unconstitutionality of such an act, if interpreted as we believe it should be interpreted, is not so free from doubt as counsel for plaintiff seem to think it. It has always been our view that it is not all discriminations which are prohibited by the Fourteenth Amendment, but only those which are unreasonable and which are not based on some fundamental difference justifying the distinction, and that a state may thus often, acting within its police power, place requirements on one kind of business not placed on others, provided those requirements are not unreasonable and are based on some fundamental difference distinguishing the particular kind of business from other businesses.

The Supreme Court of the United States has held, for instance in Lemieux v. Young, Trustee, supra, that just such a statute as we are now called on to interpret is not violative of the provisions of the Fourteenth Amendment, though it includes only those engaged in the sale of merchandise.

In fact, a careful study of the decision in .that case and of the opinion in Kidd, Dater & Price Co. v. Musselman Grocer Co., 217 U. S. 461, 30 S. Ct. 606, 54 L. Ed. 839, leads to the conclusion that the statute might, if held applicable to all classes of business, be objectionable for the reason that in the case of businesses in which compliance with the statute will constitute an unnecessary and unreasonable hardship as to them, the unconstitutionality which counsel now fears might really exist.

In the two cases to which we have referred the court at length discussed the reasonableness of the requirements of statutes similar to that before us, and said that as to merchants -a real reason exists for such statutes, and that therefore there is no violation of the provisions of the Fourteenth Amendment. t

So that instead of being plainly unconstitutional, if interpreted as we feel it should be, the situation seems to be rather the reverse and that there would be grave danger, if the statute could be interpreted as contended for by plaintiff, that later, in a direct action which might be brought, the unconstitutionality of the act might be decreed.

The conclusion to which we have come renders it unnecessary that we consider and discuss the other contention raised by defendants, and that is that even in the cases of those businesses included within the statute, it is not all creditors who are within the protection thereof, but only those ; who became creditors as the result of having sold goods or merchandise.

Nevertheless we feel that the provisions of the act with regard to that phase of the matter throw some light on the intention of the Legislature as to whether other than merchandisers were intended to be placed within the inhibition contained in the act because the affidavit which creditors are required to file in order to come within the protection of the statutes seems, by the form contained in the act, to be intended for use of only those who have sold merchandise.

The judgment appealed from is affirmed at the cost of appellant.


author: PER CURIAM. JANVIER, J.

text:
    No. 13,644
    Orleans
    RODRIGUEZ & ARIEUX v. HARDOUIN
    (December 15, 1930. Opinion and Decree.)

      Joseph Rosenberg, of New Orleans, attorney for plaintiffs, appellants.
    R. H. Burton, of New Orleans, attorney for defendant, appellee.
   JUDGMENT ON MOTION TO DISMISS

PER CURIAM.

The ground upon which this motion is based is the alleged failure of the clerk to include in the transcript evidence adduced in the original trial of the case; the appeal .having been taken from a judgment rendered upon a second trial following the granting of a new trial.

Assuming that this issue may, with propriety, be raised on a motion to dismiss, it is clear that, where a new trial is granted, the case is tried de novo, and the appeal is taken from the judgment rendered on the new trial. The record need contain only the testimony adduced on the second trial.

For the reasons assigned, the motion to dismiss the appeal is overruled.

Motion to dismiss denied.

JANVIER, J.

This case presents a rather unusual question, viz.: Whether the holder of a check made payable to his order may bring suit against the drawer of the check without proving that the check was presented to the drawee for payment and that payment was refused. Plair tiffs contend that defendant was indebted to them for $150, and gave them his check payable to their order, dated June 27, 1927, and drawn on the St. Bernard Market branch of- the Canal Bank & Trust Company, and that when the check was presented for payment, the bank refused to honor it, advising the person who presented it that the drawer had not sufficient funds on deposit.

Defendant sets up two defenses: First, that the check had never been presented for payment; and second and in the alternative, that the debt for which the check was given in payment has been novated.

The trial court held that the two defenses were inconsistent, and required the defendant to elect on which one of the two he would stand. His counsel thereupon decided to rely solely upon the contention that the check had never been presented for payment.

The evidence on this question is conflicting, but the trial court resolved the doubt in favor of the defendant, and held that the plaintiffs had never endorsed nor presented the check.

Plaintiffs counter now with the suggestion that presentment is not necessary, and that the only effect of failure to present a check for payment is that a plea of prematurity may be filed', and that defendant, by depositing the amount of the check, may require the plaintiffs to pay the court costs.

The situation however does not seem to be so simple as is contended for by plaintiff. Where a person to whom money is due accepts from the debtor an order on some one else, he must call on that other for payment before he can sue his original debtor.

In the Negotiable Instrument Law of Louisiana, Act No. 64 of 1904, it is provided in section 70 that:

“Presentment for payment is not necessary in order to charge the person primarily liable on the instrument; but if the instrument is, by its terms, payable at a special place, and he is able and willing to pay it there at maturity, such ability and willingness are equivalent to a tender of payment upon his part. But except as herein otherwise provided, presentment for payment is necessary in order to charge the drawer and indorsers.”

It is evident that section 70, from which we have quoted above, is intended to apply to checks, because section 185 of the act provides as follows:

“A check is a bill of exchange drawn on a bank payable on demand. Except as herein otherwise provided, the provisions of this act applicable to a bill of exchange payable on demand apply to a check.”

In Mechanics’ & Traders’ Insurance Co. v. Temple S. Coons, 35 La. Ann. 364, the Supreme Court of Louisiana said:

“The holder of a check, in order to recover against the drawer, must prove due presentment and notice of non-paymeDt, or some legal excuse for the absence thereof.
“Where there is no evidence on these points, he will be nonsuited.”

In Succession of Kercheval, 14 La. Ann. 457, appears the following:

“There is no evidence that the check was presented for payment and protested; nor that the drawer had funds in the hands of the drawee. It was the duty of the holder of the check to prove these facts in order to save his recourse upon the drawer and the indorser.”

That this rule requiring presentment as enunciated by the two early decisions of our Supreme Court from which we have above quoted has not been affected by the Negotiable Instrument Act is apparent. Joyce in “Defenses to Commercial Paper,” page 1062, vol. 2, sec. 745, says:

“The general rule requiring presentment for payment in order to bind drawers and indorsers was a well established rule prior to the enactment of the Negotiable Instrument Act, as well as since.”

The long delay of the holders of the check in bringing this suit — it not having been filed until nearly three years after the date of the check — may indicate that other negotiations between the parties have novated the original debt, and, if the check were now presented and suit brought as the result of the failure of the bank to honor it, that the original drawer could set up the real defense. At any rate, the trial eouH held that the check was not presented for payment, and, since the evidence on this question of fact does not convince us that such holding was erroneous, we are of the opinion that the present suit must fail.

It is therefore ordered that the- judgment appealed from, which was one of non-suit, be, and is, affirmed.


author: ELLIOTT, J.

text:
    No. 647
    First Circuit
    FRENCH MARKET ICE MFG. CO. OF N. O., LTD., v. DALTON
    (October 8, 1930. Opinion and Decree.)
    (December 1, 1930. Rehearing Refused.)
    (January 5, 1931. Writs of Certiorari and Review Refused by Supreme Court.)
    C. A. Blanchard, of Morgan City, attorney for plaintiff, appellee.
    L. O. Pecot, of Franklin, attorney for defendant, appellant.
   ELLIOTT, J.

French Market Ice Manufacturing Company of New Orleans, Limited, is the plaintiff in a suit against John Dalton for $1,402, alleged by plaintiff to be the balance due it by defendant on account, for ice sold and delivered to said Dalton during the months of May, June, July and August, 1926. The plaintiff alleges that the total amount sold was $2,152, on which the defendant paid $750, leaving $1,402, claimed in its petition.

The plaintiff alleges that said Dalton requested it to bill the ice to John Dalton Company and to carry the account in that name, which was done for his convenience.

It further alleges upon information and belief that it was so requested by said Dalton as a ruse, in anticipation of defeating its claim against him personally for liability on account of said ice.

That said John Dalton Company is composed of John Dalton, his wife and sister, and has been an inactive corporation for several years; no meeting of stockholders having been held or officers appointed, and no authorization given to the self-styled president, John Dalton, to engage in the ice business. That said ice business was carried on truly and simply for the benefit of John Dalton individually.

That said John Dalton used all the funds received from the sales in the ice business, derived the sole and exclusive benefit from the said business, and is therefore personally responsible to your petitioner for the amount due on said account.

Judgment against John Dalton was prayed for accordingly.

Defendant urged against plaintiff’s petition an exception of no right or cause of action. The exception was overruled in the lower court. Defendant urges that the ruling was erroneous.

Defendant contends that plaintiff’s averment that he requested it to bill the ice to John Dalton Company and to carry the account in that name as a ruse, in anticipation of defeating its claim against him personally, is contradicted by subsequent averments admitting that John Dalton Company was a corporation, without alleging that it had been legally dissolved or liquidated, and gives no right to a judgment against him as a stockholder.

Defendant is not sued as a stockholder in John Dalton Company, Ltd.

The averment is that he personally contracted the debt and endeavors by a ruse to escape liability. That he engaged in and carried on the ice business, with ice received from the plaintiff under said contract for his personal benefit, used all of the funds derived from the sales of said ice; and personally received the sole exclusive benefit of the business, states a cause of action against him personally.

The exception was properly overruled.

Defendant urges that plaintiff knew of the existence of the company, and having dealt with it as such, is estopped to deny its corporate capacity, citing Bond & Braswell v. Scott Lumber Co., 128 La. 818, 55 So. 468, and Tulane Improvement Co. v. Chapman & Co., 129 La. 562, 56 So. 509.

The lower court reviewed the case but makes no mention of this plea.

Defendant filed a petition for rehearing in the lower court, setting forth the various matters in regard to which he contended that the court had erred; but made no complaint on account of the failure of the court to rule on or to sustain such a plea.

The first and fundamental principle of the law on the subject of estoppel by matters in pais is that the language or conduct of the party estopped was acted on by the party urging the estoppel, and that the party thereby so induced to act will suffer injury if the other party is permitted to controvert his act, or deny what he has held out to him to be true. Greenleaf on Evidence, vol. 1, subject Presumptive Evidence, secs. 22, 27, and subject Admissions, secs. 207-209; Jones on Evidence, subject Admissions, secs. 275, 277, 279, 280; Best’s Principles of Evidence by Chamberlayne (7th International Ed.) subject Admissibility and Effect of Evidence, sec. 543, p. 495, and note p. 504; Bigelow on Estoppel, subject Estoppel by Conduct, secs. 1 and 2, pp. 556 to 585.

The defendant has not so alleged in his answer, nor was any proof of that kind tendered on the trial; hence there was no question of estoppel before the lower court, and there is none before this court.

In .the case of Bond & Braswell v. Scott Lumber Co., supra, and Tulane Improvement Co. v. Chapman & Co., supra, creditors, after dealing with a corporation as such, sought to hold the stockholders liable as commercial partners, because of informality in the act of incorporation.

In the present case, the plaintiff alleges that it contracted and dealt with John Dalton personally, and that the said John Dalton personally owes the debt that the contract calls for.

Defendant denies that he dealt with plaintiff personally, and personally contracted the debt. He alleges that he acted only as the agent and representative to John Dalton Company, Limited; that the plaintiff dealt with John Dalton Company; and that John Dalton Company, Limited, owes the debt. The lower ■ court acted on this issue and it was the proper course to pursue; there was no question of estoppel alleged to the court.

The defendant, on the trial, objected to parol evidence to prove a promise to pay a debt of a third person. The court ruled on this objection several times, holding that according to the plaintiff there was no third person debtor; that according to defendant if there was a debt, it was due by a third person; that the subject-matter involved the gist of the controversy and referred it to the merits.

Defendant urges that the ruling was in violation of the Civil Code, art. 2278. The objection was good, on the theory that the debt was due by a third person. But that theory could not become controlling until it had been first shown that the debt was due by a third person. The objection assumed the fact. The question was the principal issue before the court and could only be decided after hearing the parol evidence concerning the alleged oral agreement entered into, upon which the ice was sold and delivered. It was only after hearing the evidence as to the identity of the debtor, that the court could say whether it was John Dalton personally, or John Dalton Company, Limited, that owed the debt. The action of the court in referring the objection to the merits, and hearing the parol evidence was correct.

The testimony of S. P. Simone, president and general manager of ' plaintiff, was taken in New Orleans on May 2'8, 1928. He was asked in behalf of the plaintiff:

“Q. State whether or not you have ever had any business dealings with John Dalton, and if so, what those business dealings were and the manner in which your business relationship with John Dalton originated.”

His answer in effect was that John Dalton came to "his office and stated that because of particular circumstances obtaining among the ice dealers of Morgan City, he desired to purchase carloads of ice in New Orleans. He also requested, at die time, that the bills of lading and the me be shipped to John Dalton. Company, and requested that he make the bills out under said title, in order, as he stated, that the retail ice dealers would not be suspicious' of him. At the time he was not advised that there was any John Dalton Company, Limited, or that Mr. Dalton was connected with a corporation of the same name. The references that were given me in connection with the matter were references of John Dalton himself, and the reports were given to me on John Dalton himself. I knew nothing whatever of any corporation by the name of John Dalton Company, Limited.

In response to interrogatory 6, he said:

“In opening this account, I relied as an official of the company solely and exclusively on the declarations of John Dalton, his credit, standing and promises that upon selling the ice, he would make remittances to cover. It was only upon the failure of the ice business and the assets of John Dalton Co., Ltd., being seized that any endeavor was made on the part of John Dalton to avoid personal responsibility, and an attempt made to have the company look to the John Dalton Company, Limited, for the payment of this claim. Prior to this all business relations were to be with John Dalton himself. And the plaintiff looked exclusively to him for payment.”

Defendant did not cross the interrogatories propounded to Mr. Simone, but on the trial of the case, which commenced March 30, 1929, Mr. Dalton was asked on cross-examination:

“Q. Mr. Simone in his ansVer to interrogatory No. 3 says that you stated to him as follows: That you requested at the time that the bills of lading and the ice be shipped to John Dalton Co., and requested that bills be made out in the same way, so as to not cause any suspicion of you by the retail ice dealers in Morgan City, and at that time he was not advised that there was any John Dalton Co., Ltd. Why was that statement made?
“A. Mr. Simone’s statement is a misstatement. I made no statement like that to him. I introduced myself as John M. Dalton, president of the John Dalton Co., and Mr. Simone introduced himself as vice-president and general manager of the French Market Ice Co., Ltd. At the time we discussed the ice proposition he stated that he was a large shipper of ice in car lots, and appeared anxious to get the business. He knew who I was selling it to and he billed the account. He was not interested as to where the ice was going or who was going to buy it, or anything else in connection with the contract.”

Mr. Dalton must be supposed to have understood the question, as it was plainly stated; but in answering it, he neither denied having made the request imputed to him, nor did he deny Mr. Simone’s further statement that Mr. Dalton did not advise him that there was a John Dalton Company, Limited. Mr. Dalton gave his testimony at length. Mr. Simone had given his testimony some eight or nine months before, yet he did not deny any of the other statements of Mr. Simone.

Defendant’s failure to deny, as a witness, the statements of Mr. Simone adds weight to what Mr. Simone says. The ice was shipped to John Dalton Company. The difference is not important insofar as concerns the proper disposition of this case.

The evidence shows that John Dalton Company, Limited, was incorporated January 3, 1906. It was authorized by its charter to engage in general mercantile business, wholesale and retail of every kind; to engage in the manufacture and sale of ice, wholesale and retail; cultivating, packing, canning, and shipping oysters, shrimp, fish, etc. John Dalton testified that John Dalton Company, Limited, was reorganized in the year 1917, and that 596 of the 600 shares of its capital stock became vested in him, two in his wife and two in his sister. That he became president, his wife vice-president, and his sister, secretary-treasurer; that some stockholder meetings were held. But his oral statement is the only showing made on the subject. The charter provides that officers are to be elected on the first Wednesday in January of each year. No minutes of any date showing a meeting of stockholders or the election of officers were produced to the court. No hank deposits in the name of John Dalton Company, Limited, nor writings of any kind showing accounts due to John Dalton Company, Limited, were produced, except three statements of account for hardware, one of which hears date August 4, 1926, another September 9, 1926, and the other September 16, 1926, but nothing was produced showing that it had dealt in ice.

Mr. Dalton testified that John Dalton Company, Limited, had sold ice since the beginning of the account sued on, and produced some witnesses who testify corroboratively, but the fact is not to our mind established.

The record shows that defendant was in the ice business personally as far back as March 22, 1926, and was in the business up to September 8, 1926, at which time plaintiff’s account commenced.

The record shows that on January 12, 1928, John Dalton, Jr., defendant in the present suit, was sued on an ice account in the district court for the parish of St. Mary, by Terrebonne lee Company, Inc.

The plaintiff in the suit alleged that petitioner had sold and delivered ice to the said John Dalton, Jr., at various times between the dates March 22, 1926, and September 8, 1926, aggregating the sum of $335, upon which there has been paid certain sums aggregating the sum of $260; all as will more fully appear by sworn itemized statements of said account which is thereto annexed and made part thereof.

Defendant by his counsel answered the petition on February 7, 1928, alleging that by verbal agreement with plaintiff, he agreed to buy ice by carloads between the dates set forth in plaintiff’s petition, for which he was to be billed at $5 per ton, but in fact was to cost him f.o.b. cars at Houma, La., only $3.50 per ton. That this price was specially agreed upon, and plaintiff’s agreement was to allow your respondent sufficient extra weight for melt-age and in addition to make up the difference between $5 per ton for which he was billed, and the price of $3.50 per ton he was to pay for said ice. That petitioner shipped respondent 75 tons of ice between the dates aforesaid, allowed for the melt-age in the weight of each shipment, but failed and neglected to allow the extra weight to make up said difference in the price agreed on, even though respondent demanded of plaintiff to dq so. The answer judicially admitted that he had personally dealt in ice from March 22, 1926, to September 8, 1926. It judicially admitted that he was personally dealing in ice up to September 8, 1926, on which day the account sued on herein by the plaintiff commenced.

The defendant admits as a witness that the proceeds of the sales of the ice received from the plaintiff herein were deposited in the bank to his personal credit in the name of John Dalton. That he used the money as he saw proper; that the payments on the account sued on of July 21, 1926, in amount $500, and that of August 3, 1926, of $250, were made by checks on the account kept in his name. Asked to produce the checks showing these payments, to the end that it might be seen that they were signed John Dalton, he claimed that he did not have them.

The evidence shows convincingly that John Dalton Company, Limited, was inactive, as plaintiff alleges, and had been for years. That defendant in contracting for, buying and. selling, and receiving ice from plaintiff was dealing and acting for himself and for his personal benefit and profit, and that he is plaintiff’s debtor on said account.

The theory of the defendant in the present case is similar to that of the defense in New Orleans Fur Exchange, Inc., v. Levy et al., 10 La. App. 166, 119 So. 553. We deem it unnecessary to discuss the question as to the identity of the debtor any further. The evidence shows that defendant is the responsible party.

Defendant denies in his answer that the account sued on is correct, but does not allege in what way it is wrong. He testified on the trial that about 14 different shipments on as many different days, mentioning each from the account, were short in tonnage and weight, stating in each instance the amount. No accounts, data, nor memoranda of any kind were produced to support his recollection. His testimony was given nearly three years after the shipments had been made. It was impossible for him to remember the amounts of tonnage and weights of shipments on these different days so long past, without written data made at the time to support his memory. His testimony on this subject is not in harmony with his letters written at the time the ice was being received. In one written July 20, 1926, addressing Mr. Simone, he says:

“I hand you herein my check on Bank of Morgan City & Trust Co. for $500.00 which I shall thank you to place to the credit of our account. I want to thank you personally for the excellent services rendered and hope to see you at the earliest opportunity when I may reach your City.
“With best wishes I am, with regards
“(Signed) J. M. Dalton.”

More than half of the shortage which the defendant professed to remémber and mention, if such there had been, was previous to the date of this letter. In another letter written August 9, 1926, addressing the plaintiff, he says:

“We hand you herewith our check on Bank of Morgan City & Trust Co., for $250.00 which we will thank you to pass to the credit of our account.
“We would appreciate your sending an itemized statement; we have received only ione, that of July 1st.
“Thanking you for- your consideration, and with best wishes, we are,
“(Signed) John Dalton Co., Ltd.
“J. M. Dalton.”

Only one shipment, in amount $68, was received after this letter was written. We are satisfied from the evidence adduced that the account sued on, in the matter of tonnage and weights, is correct.

Defendant further testified that the prices charged were subject to rebate, but does not say to what amount. There is no complaint about prices charged in defendant’s letter; no claim that there was a rebate due. Asked by plaintiff to produce some written evidence showing an agreement of the kind, defendant admitted that he could not produce any, claiming that same was due under a verbal agreement entered into between him and Mr. Simone.

The lower court did not believe that any such agreement had been established, and our conclusion is the same.

The district court has discussed the facts fully. We agree with him in his conclusions.

Judgment affirmed. Defendant and appellant to pay the costs in both courts.


text:
    No. 11,546
    Orleans
    WILLIAMS v. N. TRADO & CO. ET AL.
    (November 17, 1930. Opinion and Decree.)
    (December 15, 1930. Rehearing Refused.)
    Theo. Cotonio and Theo. Cotonio, Jr., of New Orleans, attorneys for plaintiff, appellant.
    H. W. Kaiser, Thomas Tomeny and John H. Hammel, Jr., of New Orleans, attorneys for defendants, appellees.
   JANVIER, J.

Defendants are residents of New Orleans engaged in the business of buying and selling melons and other country produce at wholesale. Plaintiff claims that during the summer of 1924, at the request of defendants, he undertook to locate and purchase for them large quantities of watermelons in carload lots, and that in addition to the purchase price, it was agreed that he was to be paid $10 for each carload purchased. He avers that he shipped to defendants twenty-two carloads of melons, all of which were received, but that he has never been paid his commission, amounting to $220, and that the purchase price of seven of the carloads have not been paid. For the seven carloads he claims $1,305 which, when added to $220 commission claimed, makes the total amount in dispute $1,525.

The record before us is very confusingly arranged and contains two supplemental petitions and two answers. In the first answer filed, which is in answer to the second supplemental petition, we find a categorical denial of each material allegation of that supplemental petition.

In the second answer filed, which is in answer to the original petition, there appears, after a categorical denial of the material allegations, the following affirmative averment:

“That a complete settlement was had by and between plaintiff and defendants of any and all indebtedness of defendants to petitioner, and that your respondents have paid petitioner in full for any and all claims that he has or may have against your respondent.”

After a trial on the merits, judgment was rendered in favor of deféndants, and in that judgment appears the following:

“It is ordered, adjudged and decreed that the plea of payment herein filed by defendants be maintained.”

A reading of the evidence submitted on behalf of defendants shows that it was not their purpose to plead payment in the sense that they intended thereby to admit the purchase of the melons, and to set up the special defense that the purchase price thereof and the commission claimed had been paid. As a matter of fact, they deny that they purchased the melons and state that, on the contrary, Williams made the shipments to them on consignment in the hope that they could sell them for him at a profit. They further testify that fifteen or sixteen of the carloads were sold at a profit, the balance at a loss, and that they have remitted in full for the whole transaction.

The district judge was of the opinion that this defense had been sustained by a preponderance of the evidence, and we believe that he was not in error in reaching this conclusion.

But the most serious controversy was over defendants’ right to offer proof in substantiation of this defense, in view of the denials and averments in the answers, it being contended that a general denial is inconsistent with a plea of payment and that where both defenses are made the plea of payment must prevail. See McMicken v. Brent, 6 Mart. (N. S.) 249.

Defendants’ counsel counter with the suggestion that evidence admitted without objection may enlarge the pleadings, and that such has taken place here because the objections of plaintiff’s counsel to the evidence in regard to the consignment defense came too late.

We do not believe that that objection was unduly delayed. The record shows that as soon as it was apparent that an attempt was being made to prove that the shipments were sent on consignment and were not outright sales, objections were made and reiterated. Surely it is not necessary that an objection be made at the very instant an objectionable question is asked a witness. It is sufficient if it be made when the purport of the question or the line of questioning becomes apparent.

But we cannot subscribe to the view that the evidence tending to show that the shipments were made on consignment was objectionable as being inconsistent with the answer. True, if we could construe the answer as a plea of payment, then the defense tendered by the evidence would have been inadmissible. Although characterized by the district judge as a defense of payment, we do not believe the plea in the answer should be so construed.

The situation is very similar to that which confronted the Supreme Court of Louisiana in Robinson v. Landrum, 10 La. Ann. 539, in which “the defendant pleaded a general denial, admitting, however, that the plaintiff ‘had done work for him’ on the building, but that he had paid for the ■ same in full, to-wit: the sum of $310.”

According to the syllabus the court held:

“That this averment did not waive the general denial, and operate as a recognition of the whole debt.”

In the body of the opinion the court said:

“The doctrine that the plea of payment admits the debt, only affirms the general principle that litigants should be consistent and truthful in their pleadings, and cannot be allowed to assume positions which are contradictory.
“An allegation that a debt has been paid, is certainly an admission that it once existed, but an averment by a defendant that he has paid all that he admits to have been due, coupled with a denial of further indebtedness and specifying at the same time the amount thus paid, though it may operate as an admission pro tanto, cannot be considered as a recognition of the whole of the plaintiff’s demand. The answer of the defendant is consistent with itself, and if supported by the evidence would present a defense in every respect equitable.”

Similarly here, an allegation that a full settlement has been had does not necessari'ly mean that all that is claimed is, by that settlement, admitted to be due. The answers here, read together and as a whole, do not constitute an admission of indebtedness, but do constitute a denial that defendants agreed to purchase the melons and a denial that they agreed to pay the commission claimed. The evidence tendered supported these denials and was properly admitted.

The judgment appealed from is therefore affirmed, at the cost of appellant.

HIGGINS, J., takes no part.


author: ODOM, J.

text:
    No. 3871
    Second Circuit
    NORTH LOUISIANA SANITARIUM, INC., v. SERIO ET AL.
    (November 7, 1930. Opinion and Decree.)

      Richard H. Switzer, of Shreveport, attorney for plaintiff, appellant.
    Booth & Grafton, of Shreveport, attorneys for defendant Publishing Company, appellee.
    George T. McSween, of Shreveport, attorney for defendant Samuel Serio.
   ODOM, J.

While the son of Samuel Serio was witnessing a game of baseball played by some boys at the Princess Park in Shreveport he had his skull fractured by a ball bat which one of the players let slip from his hands. The child was immediately carried by Josh Jones to the North 'Louisiana*. Sanitarium, where an operation was performed. The total expense incurred at the sanitarium was $183. This suit is against Samuel Serio, the father of the child, and the Journal Publishing Company in solido to recover the amount. The father of the child did not carry it to the' sanitarium and did not originally authorize those in charge to care for and treat it; but was made defendant upon the theory that a father is liable under the law for such charges, whether authorized by him or not.

As a cause of action against the Journal Publishing Company, a corporation which publishes and distributes the Shreveport Journal, an afternoon paper, plaintiff alleged that the Serio child was carried to the sanitarium by Josh Jones and John H. Green, who were employees and agents of the said corporation, and who authorized the care and treatment at the expense of the company.

Serio defended on the ground that he did not authorize the treatment, and alleged that the Journal Publishing Company was responsible; and the publishing company- denied ' liability on the ground that Jones and Green had no authority to bind it, even if it be true that they did give instructions that the bill be charged to it.

There was judgment in the lower court in favor of plaintiff and against the defendant Serio, but rejecting its demands against the publishing company. Serio did not appeal, and therefore the judgment is final as to him. This appeal is by plaintiff from the judgment rejecting its demands against the publishing company.

The judgment is correct. The testimony shows that, immediately after the child was injured, Josh Jones, who was present, took it to the sanitarium and authorized those in charge to administer whatever treatment was necessary and, while it is alleged and contended that he told those in charge of the sanitarium that he was an employee and agent of the Journal Publishing Company, and that the bill would be paid by that company, there is serious conflict in the testimony on this point. Dr. Abramson, president and general manager of the sanitarium, testified that Jones told him that the publishing company was responsible for the bill and would pay it, while Jones, on the other handy testified that he made no such statement to Dr. Abramson, but stated to him that the bill would he taken care of, and, if necessary, he would take up a collection among the newsboys and in that way raise the money. The case was tried about two years after the occurrence, and, while Dr. Abramson testified that he was authorized by Jones to charge the bill to the publishing company, yet he was asked on cross-examination if it were not possible that Jones did tell him that he would see that the bill was paid, and, if necessary, would raise the money through the newsboys, he replied, “Tes, it is possible he could have said that.” He was then asked if Jones did not say to him in conversation that he was in charge of the newsboys, and he answered, “yes.” It is alleged that Mr. Green went with Jones to the sanitarium, but that was not proved. Mr. Green did go to the sanitarium later, and he says he told Dr. Abramson and others that the bill would be taken care of, but that he did not say that the Journal Publishing Company would pay it. It was not shown, therefo're, by a preponderance' of the evidence that these parties authorized Dr. Abramson to charge the bill to the publishing company.

But, even if it had been shown that Jones and Green did state that the bill would be paid by the publishing company, the testimony fails to show that these parties were in any sense the agents of the company or that they had any authority whatever to bind it.

The testimony clearly shows that Jones was not at the time an employee of the publishing company. He purchases newspapers from the publishing company and pays for them in cash, and in turn delivers them to newsboys to be sold on the streets. •He was neither an employee or agent of the publishing company. Mr. Green is circulation manager for the publishing company, and has charge of the newsboys known aa route boys, who deliver papers to the regular subscribers. He is an employee of the company, but not an officer, and has no authority to bind the company. It is not shown that he authorized the sanitarium to administer the treatment. Counsel for plaintiff advances the theory that the baseball game was being played' by newsboys employed by the defendant company, and that the game was sponsored by it, and that therefore one of defendant’s employees inflicted the injuries, and that therefore the defendant company should be held liable. But the testimony shows that the boy who let the bat slip from his hand and injure the Serio child was not one of the newsboys, but an outsider, and, furthermore, that the ball game was not sponsored by the defendant company but by Jones, who employed the boys to sell newspapers on the streets.

The officers and directors of the publishing company had no knowledge of this transaction until several months after-wards. The testimony shows that the sanitarium mailed bills to the publishing company and that the charge was not repudiated. But Mr. Franz, manager of the company, testified that he had no personal knowledge of these bills, and there is no testimony to show that any other officer of the company knew anything about them.

It is perfectly clear that plaintiff failed to show that the publishing company is in any sense liable for the amount.

The judgment appealed from is correct, and is therefore affirmed, with costs.


author: DREW, J.

text:
    No. 3813
    Second Circuit
    BURRAGE v. GILL
    (November 7, 1930. Opinion and Decree.)
    (December 23, 1930. Rehearing Refused.)
    W. W. McDonald and Kimball & Smith, of Shreveport, attorneys for plaintiff, appellant.
    Theus, Grisham, Davis & Leigh, of Monroe, attorneys for defendant, appellee.
   DREW, J.

Plaintiff alleges herself to be the mother of the minor, Sidney A. Bur-rage, and, living separate and apart from her husband, John Garrett Burrage, seeks as natural tutrix, in accordance with Act No. 197 of the General Assembly of the state of Louisiana for the year 1924, to recover damages in the sum of $40,000 for and in behalf of her minor son above named. •

She alleges, as the cause of action, a brutal, malicious, and unmerciful whipping of the minor by the defendant on or about the 6th day of August, 1928, which, according to the petition, was administered with a large, heavy strap on the minor’s naked, or partially naked, body. She further alleges that following the whipping the min- or was forced to bed without food or water, and that on the following day he was forced to work in the field in the burning sun with a guard standing over him, armed with a stick. She alleges that the above treatment was inflicted upon her minor son by the defendant, W. J. Gill, while he was superintendent of the Louisiana Training Institute, at Monroe, La., and while the minor was confined in that institute.

Defendant denies each of the allegations of plaintiff’s petition.

The case was tried before a jury, resulting in a verdict rejecting the demands of the plaintiff, and, from this judgment, she has appealed.

The issues to be determined by this court are wholly ones of fact. Plaintiff contends that her minor son was brutally whipped by the defendant. Defendant denies that he ever whipped plaintiff’s son, and testified that the minor had not committed any offense that would justify him in whipping him or having him whipped. To decide this question is to decide the case.

The jury was unanimous in its verdict for defendant, and the appellate courts of this state have repeatedly held that, where issues of fact only are involved, they will affirm the finding of the jury, unless such finding is manifestly erroneous. In this case, the finding of the jury is clearly erroneous.

On July 11, 1928, plaintiff’s minor son was sent to the Louisiana Training Institute, at Monroe, as a neglected dependent. On the 6th day of August, several boys escaped from that institution and were recaptured. The boys who escaped and were caught told the defendant herein, who was superintendent at that time, that other boys had assisted them in making their escape. Plaintiff’s son had not escaped, but claims that he was whipped for not telling on the boys that did. A few days later, on Friday of the same week, the plaintiff’s son W’as ordered to be sent home by the juvenile judge of Caddo parish, and arrived at Shreveport about o’clock on Friday evening, August 10th. The next morning, his mother went with him to the courthouse, in Shreveport, showed his condition to the' judge of the juvenile court and the probation officer, and from there she took him to the office of the Shreveport Journal, where she showed his condition to the editor of that paper and to other witnesses who were present at the time. Plaintiff then went with her son to an attorney’s office, and from there to a photographer’s studio, where she had pictures made of her son, showing the marks on his body. All of the above witnesses have testified in the case as to the boy’s condition the morning after he returned home from the institute at Monroe, and three or four of the boy inmates of the institute testified that plaintiff’s son had been whipped by defendant on the afternoon of August 6th. There can be no doubt that the boy shown to the above-named witnesses on August 11, 1928, and whose picture was taken on the same day, which picture is filed in evidence, had been whipped and very severely.

Defendant contends that the picture filed in evidence is of another boy, by the name of Tow, who, he admits, he whipped severely at about the same time. However, the record discloses that the Tow boy had been recaptured and placed back in the institute at Monroe before the plaintiff’s son returned to Shreveport, and there is no evidence to show that he had been released at the time the photograph of plaintiff’s son was made and at the time the boy was shown to the other witnesses above referred to.

The boy was shown to the probation officer who had him in charge and who had delivered him to Monroe only a little more than three weeks before, and to the judge who had sent him to Monroe, and it would be very difficult to believe , that the plaintiff displayed to the witnesses some boy other' than her own. We, would have to accept that view of the case without any evidence to support it in order to hold that the Burrage hoy had not been whipped, and severely whipped, at the time he was displayed to the witnesses in Shreveport.

The evidence is convincing that plaintiff’s son was whipped by the defendant at the time and place designated in the petition. There were two hundred or more young boys in this institute; plaintiff’s son had been there only a short time, and it is possible that he was whipped by mistake for some other child. Be that as it may, there is no doubt about his being whipped, severely and wrongfully. Defendant testified that the boy had committed no offense that would justify a whipping; therefore the defendant is liable for the damage occasioned by his illegal and wrongful whipping of plaintiff’s son.

The testimony shows that the boy was brutally and unmercifully whipped, judging from his appearance at the time the witnesses examined him. However, he has sustained no after effects from the whipping he received. His mother did not have a doctor with him. She testifies that he was highly nervous and rolled and tossed in his sleep from the effects of the beating he had received. However, it did not afféct him in the daytime, and, to assume that a child who rolls, tosses, and talks in his sleep, does so by reason of a whipping he has received, would be assuming too much. She claims that to mention the training institute to him made him highly nervous, but the boy testified that he had been to Monroe several times since his release from the institute and on each occasion had visited the institute. There can be no doubt that the boy suffered from the whipping he received for possibly several weeks; however, he was not confined to his bed, could walk around as usual, and was fully recovered before the trial of this case in the lower court.

There is no way of measuring the amount of damages in such a case as this. However, we think $600 will be a reasonable award.

It is therefore ordered, adjudged, and decreed that the judgment of the lower court be reversed, and there now be judgment in favor of plaintiff and against defendant in the sum of $600, with legal interest thereon from judicial demand until paid, and for all costs of this suit.

ODOM, J., dissents.


author: WEBB, J.

text:
    No. 3893
    Second Circuit
    HALL v. SPENCER ET AL.
    (December 23, 1930. Opinion and Decree.)

      Shotwell & Brown, of Monroe, attorneys for plaintiff, appellee.
    Dhu Thompson, of Monroe, attorney for defendants, appellants.
   WEBB, J.

In thid action plaintiff, E. S. Hall, seeks to obtain an injunction against defendants, W. L. and John Spencer, restraining them from taking gas from a pipe line located on lands belonging to defendants and their co-heirs, other than for the principal dwelling house located on the premises.

Plaintiff alleged, in substance, that he had acquired,- by assignment from the Transcontinental Oil-.Company, the gas and gas rights, together with a gas well, in and on certain lands, referred to above as the premises, which had been acquired by the Transcontinental Oil Company under an oil and gas lease from defendants and their co-heirs, in which lease there was a stipulation that the lessors should have gas free of cost from any well producing gas only, for all stoves and inside lights for the principal dwelling house located on the land, by making their own connections “with the wells at their own risk and expense,’’ and that, in the assignment to plaintiff, there was a stipulation that the gas rights were conveyed subject to the terms, conditions, and stipulations set forth in the lease.

Plaintiff further alleged that he had drilled several gas wells on the premises, and that defendants, W. L. and John Spencer, being two of the lessors, had constructed a gas line and distributing system, which they had connected to one of the gas wells belonging to plaintiff, through' which they were illegally, without right or authority, furnishing gas to various and sundry houses, other than the principal dwelling house on the premises, among which there were enumerated a dwelling house and store occupied by W. L. Spencer, and various tenant houses on the premises, and that said defendants were without right to take gas from the wells, other than for use in the principal dwelling house which was occupied by John Spencer.

Plaintiff further alleged that he had demanded of defendants that they cease taking gas for other uses than for the principal dwelling house, which they had refused to do, and that a writ of injunction was necessary to protect, his rights; and he prayed that a rule issue against defendants ordering them to show cause why a preliminary writ of injunction should not issue restraining them from withdrawing gas from- plaintiff’s wells for any other purpose than for use in the principal dwelling house on the premises, and that, on trial of the rule, the injunction be issued, and on final hearing maintained and perpetuated.

The rule was issued, and defendants appeared by counsel, and pleaded that E. S. Hall, plaintiff, was not the true owner of the gas rights, and was merely an interposed party for the. convenience of the Interstate Natural Gas Company, Inc., and that plaintiff was without right or interest to prosecute the suit.

On the plea being submitted and overruled, defendants answered admitting that the lease had been made to the Transcontinental Company, denying that any assignment had been made to plaintiff, or that their gas line was attached to plaintiff’s wells or pipe line, or that they were taking any gas belonging to plaintiff. Defendants further answered in the alternative, in event it should be held that they were taking gas owned by plaintiff, that the lease contract was modified in a certain suit brought by the lessors against the Transcontinental Company, and that the lessors had been recognized to have the right to take gas under the lease, free of charge, for use in a dwelling house and store occupied by W. L. Spencer, as well as for use in the principal dwelling house on the premises.

Further, defendants admitted that the gas line constructed by them had been connected with the various tenant houses on the premises, but denied that they made the connections or consented thereto, and prayed that the rule be discharged át plaintiff’s cost.

On trial of the rule, a preliminary injunction was issued, from which defendants were granted a suspensive appeal, and, in presenting the cause here, appellants urge that the plea originally filed should have been sustained, and in any event that the evidence failed to establish that the gas line of defendants was connected with the wells of plaintiff or that defendants were taking any gas owned by plaintiff, and that the rule should have been discharged; and finally, in the alternative, appellants urge that the lease had been modified, and that they were entitled to take gas under the terms of the modified lease free of charge, not only for the principal dwelling house on the premises, but also for a dwelling house and store occupied by W. L. Spencer, one of the co-lessors and co-owners of the property.

The last plea which is made in the alternative, as well as the plea that E. S. Hall was not the owner of the gas rights in the premises and that he was an interposed party, presupposes that the action is to determine the extent of .the lessor’s’ rights under the lease, and, in the alternative plea, we gather that defendants claim the right to show that the original lease was modified in an action between the original lessee, Transcontinental Company, and the co-lessors and co-owners of defendants.

There was not any allegation that defendants were authorized to represent their co-owners or co-lessors, and, the right reserved to take gas produced from the land being a covenant running with the land (Thornton, Oil & Gas, vol. 1, p. 289, sec. 99), and indivisible, all of the owners of the land would necessarily have to be made parties to an action involving any question as to the gas rights reserved, which would also involve the construction of the lease. And we do not think that defendants, being only two of the co-owners or co-lessors of the property, could raise any question involving the rights of their co-owners or co-lessors, and therefore the alternative defense was properly rejected.

The pleas that plaintiff, E. S. Hall', was not the owner of the gas rights in the premises, and that he was merely a party interposed and without right to prosecute the suit, are not sustained by the evidence, which shows that the gas rights in the premises were transferred to Hall by the original lessee, Transcontinental Company. There is not any evidence tending to show that E. S. Hall was a fictitious person, and, with the exception of parol testimony, which was not admissible (Hanby v. Texas Company, 140 La. 189, 72 So. 933; Barrow v. Grant’s Estate, 116 La. 953, 41 So. 220, and authorities cited), there is not any evidence which indicates that plaintiff was not the owner of the gas rights in the leased premises, and the pleas were properly overruled.

Considering the defense that defendants did not have their gas line connected with the wells or pipe line of plaintiff, and that they were not taking any gas owned by plaintiff, the evidence is somewhat conflicting. However, the evidence conclusively established that the gas line of defendants was not directly connected with the wells of plaintiff, and that the gas which flows from the wells of plaintiff passes first through a meter, and into a pipe line owned by the Interstate Company, where it commingled with gas from wells owned by that company, and the evidence shows that the gas line of defendants is connected with the pipe line of the Interstate Company.

The evidence further shows that the gas from the wells of plaintiff after it passes the meter, into the pipe line of the Interstate Company, belongs to that company, and we find that the evidence establishes that the gas taken by defendants is not the property of plaintiff. However, we gather from the brief that, even though defendants are not taking gas owned by plaintiff, plaintiff claims he has the right to enjoin defendants from taking gas from the line of the Interstate Company for any other use than in the principal dwelling house on the leased premises.

The specific grounds upon which the position is based are not stated. But we gather from the argument that it is contended that there was some agreement between Hall and the Interstate Company under which the latter obligated itself to furnish gas to the lessors or owners of the land covered by the lease, under the terms and conditions stipulated in the lease, and that defendants were permitted to connect the gas line constructed by them with the pipe line of the Interstate Company under the agreement between Hall and the Interstate Company, and by that agreement the defendants and their co-lessors or co-owners were not to take gas only for use in the principal dwelling house on the leased premises.

There were several witnesses called who referred to some agreement between the Interstate Company and Hall, all of whom admitted, however, on cross-examination, that they did not know of any agreement between the Interstate Company and Hall. It is clear from their testimony that they assumed there was some agreement from the fact, which was established by their testimony, that the Interstate Company was operating the lease, drilling wells, and taking the gas therefrom, and that one of the witnesses had permitted defendants to connect their gas line with the pipe line of the Interstate Company.

If there was any such agreement as assumed, it was the duty of plaintiff to have established same, or prove that he had an interest in preventing defendants from taking • gas belonging to the Interstate Company, as it cannot be presumed that plaintiff had any such interest.

We are therefore of the opinion that the preliminary injunction should have been refused, and the rule discharged at plaintiff’s cost, and it is therefore ordered that the -preliminary injunction issued herein be set aside, and the rule discharged at plaintiff’s cost.