text:
    No. 10,897
    Orleans
    SUCCESSION OF MORRIS AND SEGRETO v. METROPOLITAN LIFE INSURANCE CO.
    (Consolidated)
    (February 24, 1928. Opinion and Decree.)
    (May 8, 1928. Writ Refused by Supreme Court.)

      (Syllabus by the Court)

    1. Louisiana Digest — Insurance—Par. 33, 139.
    The provision found in policies of industrial life insurance, known as the “Facility of Payment Clause”, under which the insurer is authorized to pay any relations by blood, husband or wife, or to any other person appearing to the insurer to be equitably entitled to the payment by reason of having incurred expense on behalf of the insured, etc., is in the interest of the insurer and for its protection in making prompt settlements upon these claims, 'without the expense of administration. In making such payments the discretion of the insurer is conclusive.
    2. Louisiana Digest — Insurance—Par. 33, 139, 144.
    The fact that plaintiff advanced money and paid premiums, fed and lodged the assured, gives rise to no obligation under the clause which compels the insurer to pay plaintiff’s claim out of the principal of a policy of life insurance.
    Appeal from Civil District Court, Division “A”. Hon. Hugh C. Cage, Judge.
    Succession of George Morris and action by John Segreto against Metropolitan Life Insurance Company. Cases consolidated.
    There was judgment for defendant and plaintiff appealed.
    Judgment affirmed.
    Chas. J. Mundy, of New Orleans, attorney for plaintiff, appellant.
    Theo. Cotonio, of New Orleans, attorney for John Segreto, appellant.
    Spencer, Gidiere, Phelps & Dunbar, of New Orleans, attorneys for Metropolitan Life Insurance Company, defendant, appellee.
   WESTERFIELD, J.

This is a suit against an insurance company on three policies of individual insurance aggregating $1000.00.

The petition alleges that the assured, George Moms, died in the city of New Orleans March 21st, 1923; that no bene-, ficiary was named in the policies; that at the reguest of George Morris, plaintiff was given the possession of the policies; that the weekly premiums were paid by plaintiff upon the understanding that he would collect the insurance in the event of Morris’ death; that Morris was fed and housed by plaintiff and given medical treatment for several years prior to his death, during which time Morris was too feeble to work; that the value of assistance rendered Morris exceeded the face value of the policies; that Morris expected the money to be derived from the insurance to partially repay plaintiff’s expense and generosity toward him; that Morris had no relations nor family connections: The policies were attached to the petition.

The defendant deposited the $1000 due on the policies, filed an answer, in which it pleaded the exception of no cause of action, and averred that one Luella Brandon Morris, claiming to be the heir- of the deceased assured, had claimed the avails of the policies and asked that she be made party. Luella Morris, thus impleaded, excepted also upon the ground that plaintiff’s petition disclosed no cause of action.

After hearing, the court maintained the exception and dismissed the suit and plaintiff has appealed.

Plaintiff is mistaken in his allegation to the effect that no beneficiary is named in the policies. He doubtless means that no individual is named, for the policies plainly provide that the principal is to be paid twenty-five years after the date of the policies, as an endowment to the assured, if living, and “if the insured shall die prior to the date of the maturity of the endowment to pay * * * to- the executor or administrator of the insured, unless payment be made under the next succeeding paragraph,” which reads as follows:

“The company may make any payment or grant any non-forfeiture privilege provided herein to the insured, husband or wife, or any relative by blood or connection by marriage of the insured, or to any other person appearing to said company to be equitably entitled to the same by reason of having incurred expense on behalf of the insured, or for his or her burial; and the production of a receipt signed by either of said persons, or of other proof of such payment or grant of such privilege to either of them, shall be conclusive evidence that all claims under this policy have been satisfied.”

It is not contended that plaintiff is the assignee, nor that he is the beneficiary, named in the policy, but the' paragraph we have quoted is relied on as establishing his right to the proceeds. In our opinion there is absolutely no foundation for this contention. The paragraph referred to confers certain privileges on the insurance company for its protection, or, what is known as the “Facility of Payment Clause”. It in no sense creates any obligation requiring the insurer to pay equitable claims against decedent. The discretion of this company in making such payments is conclusive. See Bass vs. Metropolitan Insurance Company, No. 7780 Orl. App. Opinion Book 56, and authorities there cited. Whatever may have been the indebtedness of George Morris to plaintiff at the time of his death, and no matter how benevolent or philanthropic plaintiff may have been, we cannot approve of the discharge of Morris’ moral and financial obligations out of the avails of these policies.

We believe the exception of no cause of action was properly maintained.

As to Luella Morris, she will have to establish her claims, if she can, in other and appropriate proceedings, for whatever may be said of the regularity of the pleading by which she entered these proceedings, it is certain that with the dismissal of plaintiff’s suit as disclosing no cause of action, she and her “intervening answer” must also be dismissed.


source: Caselaw Access Project

author: WESTERFIELD, J.

license: Public Domain

text:
    No. 10,075
    Orleans
    WINSOR v. TAYLOR
    (January 30, 1928. Opinion and Decree.)

      (Syllabus by the Court)
    1. Louisiana Digest — Taxation—Par. 377 380.
    In order to interrupt the constitutional prescription of three years in favor of tax sales, suit must be brought against the record owner of the property within the prescriptive period. A suit against the tax purchaser who has previously sold the property will not suffice.
    Appéal from Civil District Court, Division “B”. Hon. Mark M. Boatner, Judge.
    Action by Mrs. Harriet Anne Winsor et al. against R. M. Taylor.
    There was judgment for defendant and plaintiff appealed.
    Judgment affirmed.
    Monroe & Lemann, Walter J. Suthon, Jr., of New Orleans, attorneys for plaintiff, appellant.
    Wm. Winans Wall, of New Orleans, attorney for defendant, appellee.
   WESTERFIELD, J.

Plaintiffs, the widow and heirs of the late' George L. Winsor, brought this suit on October 18th, 1923, against Robert M. Taylor, the adjudicatee at a tax sale of a certain piece of real estate described in the petition, for the purpose of annulling the sale on the ground that the property had not been advertised for thirty days and upon the further ground' that Taylor was an employee of the municipal tax collecting department, and, as such, not permitted to purchase the property, by the prohibitory provisions of Act 94 of 1902.

Taylor excepted to the suit upon the ground that he was without interest in the property by reason of his having sold it to the Third District Land Company, Ltd., on March 24, 1922. On November 9, 1923, plaintiffs, by supplemental petition, made the Land Company a party.

Defendant relies entirely upon a plea of prescription of three years as established by the constitution.

The record shows that Taylor acquired the property at a tax sale which was recorded October 22, 1923. This suit was filed October 18, 1923, or within the three years, but at the time the suit was filed Taylor had parted with title and his vendee the Third District Land Co., the record owner was not made party to the suit until November 9th, 1923, or more than three years after the tax sale. Counsel contends, however, that it is unnecessary to sue the owner within the prescriptive period and that it suffices to sue the tax purchaser. We are referred to Weber vs. Harris et al., Man. Unrep. Cases 252, from which the following is quoted: “In a suit to annul a tax sale, the purchaser at such sale is a necessary party to the suit.” And to Neal vs. Pitre, 142 La. 737, 77 So. 582, and Recker vs. Dupuy, 161 La. 392, 108 So. 782, from which the following is quoted:

“The proceeding to annul is instituted when the suit is filed, for citation follows the institution of the suit.”

In the case at bar the tax purchaser had sold before the institution of the suit, and no suit filed, nor judicial demand made upon the owner and party in interest prior to the expiration of the prescriptive period.

Whether the prescription begins to run from the date of the service of citation or from the filing of the suit is of no consequence here, since neither suit nor service against the owner of the property was filed or effected within the three years. We cannot follow counsel in his contention that suit against the tax purchaser was alone sufficient to interrupt prescription.

The prescription of three years was properly maintained. The judgment appealed from must be and it is affirmed;


author: CLAIBORNE, J.

text:
    No. 10,508
    Orleans
    GRUNTZ v. HUBERT
    (October 31, 1927. Opinion and Decree.)

      (Syllabus by the Court)

    1. Louisiana Digest — Payment—Par. 21, 23.
    The fact that one hands another a sum of money is presumptive evidence of the payment of an antecedent debt and not of a loan.
    2. Louisiana Digest — Pleading—Par. 114, 115.
    When plaintiff sues upon an alleged loan of money, the defendant, under a general denial, may prove that the money was not a loan but the payment of an antecedent debt.
    Appeal from the Twenty-fourth Judicial District Court, Parish of Jefferson. Hon. L. Robert Rivarde, Judge.
    Action by Alphonse Gruntz against J. B. Hubert.

      There was judgment for defendant and the plaintiff appealed.
    Judgment affirmed.
    Chas. J. Larkin, Jr., of New Orleans, attorney for plaintiff, appellant.
    A. T. Higgins, of New Orleans, attorney for defendant, appellee.
   CLAIBORNE, J.

This suit was filed June 23rd, 1924.

The plaintiff alleged that on September 5th, 1922, he loaned $200 to the defendant which he refuses to pay, and for which plaintiff claims judgment.

The defendant denied each allegation of the petition.

There was judgment in favor of the defendant rejecting plaintiff’s demand and he has appealed.

The plaintiff, as a witness, testified that he loaned the defendant $200. To corroborate his testimony he produced and filed in evidence a check for $200 on the Hibernia Bank and Trust Co. drawn by him to the order of J. B. Hubert and by the latter endorsed. This check, far from being prima facie evidence of a loan, is presumptive evidence of payment.

In the case of Rohrbacker vs. Schilling, 12 La. Ann. 17, the Supreme Court stated the law to be as follows:

“The defendant in his answer to a suit for money loaned to him, averred that the money was not loaned but given to him partly in payment of an antecedent indebtedness, and partly as a remunerative donation for services rendered. Held, that this was not an admission that the defendant was ever indebted to the plaintiff, and that the burden of proof rested on the plaintiff to establish that the transaction was a loan.
“The bare fact that A handed a certain sum of money to B unexplained will not authorize A to recover it back on the allegation that it was a loan; it is the presumptive evidence of either the payment of an antecedent debt or of a gift.” See also Hymel vs. Tassin, 48 Ann. 739, 741, 19 So. 742; 1 Greel. Ev. S. 38.

Not only has the plaintiff the burden of proof of the loan he asserts, but his demand cannot be sustained without disproving the presumption of law “that the check was the payment of an antecedent debt”. Hymel vs. Tassin, 48 Ann. 737 (741), 19 So. 742.

Further testifying, the plaintiff stated that Hubert gave him no note for that check, nor kwas there any agreement to pay interest; it was to be repaid in three months; he did not give that check to Hubert in payment of a loan made by Hubert to him; plaintiff- gave that check to defendant’s wife; at that time he was not on speaking terms with the defendant; but his wife and defendant’s wife were “the best of friends”; in 1927 plaintiff borrowed some money from the defendant but paid it back; later he denied that he borrowed from the defendant in 1917; he did not give the check of $200 in payment of a debt to defendant; he never owed him a cent; his son wrote the check out and he (plaintiff) endorsed (signed) it; his wife was there too.

His wife was not produced as a witness. Why?

Leon Gruntz is a son of the plaintiff; he knows about a loan of $200 by his father to J. B. Hubert; he wrote out the check for his father and he endorsed (signed) it; he handles all his father’s business; his father was never paid anything on this loan; the defendant was to pay it back as soon as he got his money from the homestead; that is practically thirty days; ninety days was not specified; as far as he knew his father owed nothing to defendant at the time this loan was made.

Plaintiff introduced no other testimony. Two facts tend to make it improbable. The first is that the plaintiff who had not been on speaking terms with the defendant for over a year should have loaned him money; the second, that the loan which was made in September, 1922, payable in 30 or 90 days, was left in suspense for a year and nine months before suit was entered.

Mistress J. B. Hubert, to whom the plaintiff says he made this loan directly and to whom he delivered the check, for account of her husband, swears that the plaintiff gave her this check because he had not been on speaking terms with her husband “for over a year”; and that at that time he owed her husband $200, and that the check of $200 was “in payment of the debt that Mr. Gruntz owed her husband; that she never borrowed any money from Mr. Gruntz; her husband never authorized her to borrow any money from Mr. Gruntz, and she never agreed to pay that money back after the homestead had made a loan to her husband or in 90 days; on April 13th, 1922, she withdrew from the bank $50 which she loaned to Gruntz for which “there was a fuss in her house”; her husband said plaintiff had had enough money from her.

J. B. Hubert, the defendant, testified that he Iwas working at D. H. Holmes in the capacity of reserve stock man; that he had been working there for 17 years; he never authorized his “wife”- to make any loan from Mr. Gruntz of $200; he did not borrow through his wife any money from Mr. Gruntz; he was not speaking to' him at all; the $200 which Mr. Gruntz gave his wife was money Gruntz owed him since 1917; Gruntz owed him around $600; he never owed Gruntz anything; Gruntz never had money that he could loan; witness received the $200 check and deposited it to his account in bank.

If this check had been presumptive evidence of a lojan and corroborative evidence of the testimony produced by the plaintiff, upon which theory plaintiff seems to rest his case, it would have carried the weight of evidence in his favor. But as we have seen from the authorities quoted above, that this check is not a presumption of a loan, but, on the contrary, “is the presumptive evidence of the payment of an antecedent debt”. Therefore the burden was upon plaintiff to overcome this presumption. He has not done so, as the testimony of his two witnesses is contradicted and destroyed by that of defendant’s two witnesses. Therefore this presumption added to the testimony of defendant’s two witnesses tilts the scales in his favor, and gives him the preponderance of evidence.

The objection of plaintiff to the testimony offered by defendant was not well founded. Defendant’s answer was a general denial. Under that pleading any evidence was admissible to show that defendant was not indebted to the plaintiff for the cause alleged. Chase vs. New O. Gas Co., 45 Ann. 302, 12 So. 308. It is true, as stated in that case, that a special defense tending to show that a pre-existing obligation has been paid or extinguished, such as payment, novation, and the other modes of extinguishing an obligation mentioned in C. C. 2130, must be specially pleaded. Gleises vs. Faurie, 6 La. 457; Mortimer vs. Trappan’s Est., 9 La. 111; New Orleans G. L. & B. Co. vs. Hudson, 5 Rob. 486; Banking Co. vs. Hudson, 31 La. Ann. 81; Byrne vs. Ntl. Bank, C. P. 333, 336, 345.

But in this case the defendant does not admit that the loan alleged ever was made and that it was paid or extinguished. He denies the loan generally.

Under the authorities quoted above he was permitted to show that the check did not evidence a loan but was a payment of an anterior debt by the plaintiff to him.

In a condensed form the plaintiff alleged a loan, and the defendant denied it.


text:
    No. 10,918
    Orleans
    POWER v. CHRISTINA
    (January 2, 1928. Opinion and Decree.)

      (Syllabus by the Court)
    ON MOTION TO DISMISS
    1. Louisiana Digest — Appeal — Par. 300, 325,' 326, 516, 526.
    A motion to dismiss an appeal on the ground that the amount of the bond was not fixed by the court, as required by Article C. P. 578, must be made within three days following the return day of the appeal.
    2. Louisiana Digest — Appeal—Par. 530.
    In case of doubt appeal will be maintained.
    Appeal from Twenty-fourth Judicial District Court for the Parish of Jefferson. Hon. L. Robert Rivarde, Judge.
    Action by Powell Motor Co. against A. Christina & Bros.
    There was judgment for plaintiff and defendant appealed.
    Judgment on motion to dismiss, maintaining the appeal.
    W. O. Hart, of New Orleans, attorney for plaintiff, appellee.
    John E. Fleury, of New Orleans, attorney for defendants, appellants.
   CLAIBORNE, J.

This is a suit to be recognized as the owner of an automobile.

The plaintiffs of Mississippi alleged that on November 15th, 1922, they sold to Pat Murphy, alias Smith, alias Pippin, a Ford touring car for the price of $519.55, for which the said Murphy gave plaintiffs a check on the Jefferson' County Bank of Fayette, Mississippi, which was dishonored, N. S. F.; that under the laws of Mississippi no title passed to the said Murphy to said automobile; that said automobile is now in the possession of defendants who refuse to deliver it to plaintiffs. The plaintiffs pray that “there be judgment in their favor decreeing them to be the owners of said automobile and accessories, add ordering same to be delivered to them”.

The defendants admitted that the automobile was in possession of S: T. Christina, one of the members of defendant firm; who refused to deliver it to plaintiffs ; they denied all the other allegations and averred that on November 20th, 1922, they loaned $300 to Pat Murphy who pawned to them the automobile claimed; they pray that plaintiffs’ suit be dismissed or that they be condemned to reimburse to them the amount of the loan, $300.

There was judgment in favor of plaintiffs “decreeing the said Powell Motor Co. to be the owners of the automobile and accessories, commanding and directing the sheriff of the Parish of Jefferson to return to the said Powell Motor Co., plaintiff herein, the said Ford automobile heretofore sequestered”.

From this judgment the defendants obtained the following order of appeal:

“It is ordered by the court that movers herein, A. Christina & Bros., be granted a suspensive appeal herein returnable to the Honorable the Court of Appeal for the Parish of Orleans on the.7th day of March, 1927, upon furnishing bond with good and solvent security in accordance with law.”

Thereupon the defendants furnished bond in the sum of eight hundred dollars and filed the transcript in this court on March 7th, 1927.

In this court plaintiffs and appellees, on November 16th, 1927, moved to dismiss the appeal upon the ground:

“That the judgment by the District Court not being a moneyed judgment, the amount of the bond should have been fixed by the court, and this not having been done the appeal should be dismissed for want of a legal bond.”

The answer of the appellants is that this motion should have been made within three days of the return day of the appeal.

The general rule is that a motion to dismiss ’ an appeal for informalities or irregularities in the order of appeal, or in the appeal bond, and which are not essential or jurisdictional, and which do not strike at the foundation of the right of appeal, must be filed within three days after the return day. C. P. 886-589-591; 7 N. S. 271; Murrison vs. Seiler & Co., 22 La. Ann. 327; Mutual Life Ins. Co., vs. Houchins, 52 La. Ann. 1137, 27 So. 657; Walker vs. Sauvinet, 27 La. Ann. 314; Michel vs. Meyer, 27 La. Ann. 173; Monteleone vs. National Union Fire Ins. Co., 128 La. 425, 54 Sou. 929; Bradshaw vs. Knoll, 132 La. 829, 61 So. 839; Schmitt vs. Drouet & Rabasse, 42 La. Ann. 716, 7 So. 748; Black vs. Mayo, 42 La. Ann. 638, 8 So. 52; Stein vs. Brunner, 42 La. Ann. 772, 7 So. 718; State of La. vs. Callac, 45 La. Ann. 27, 12 So. 119; Saxon vs. Southwestern Brick & Tile Co., 113 La. 638, 37 So. 540; In re Linder, 113 La. 772, 37 So. 720; Francis vs. Lavine, 26 La. Ann. 311; State vs. Simpson, 122 La. 309 (313), 47 So. 622; Naghten vs. His Wife, 48 La. Ann. 800, 19 So. 762.

This rule has been applied to an informality in the order of appeal. O’Reilly vs. McLeod, 2 La. Ann. 138; Webb vs. Amelia Keller, 39 La. Ann. 55, 1 So. 423; State of La. vs. Callac, 45 La. Ann. 27, 12 So. 119; Coreil vs. Town of Welsh, 120 La. 558, 45 So. 438; State vs. Simpson, 122 La. 312 (313), 47 So. 622.

Or to the want of an appeal bond. Temple vs. Marshall & James and Sheriff, 11 La. Ann. 613; 12 Ct. of App., 107, 109; Hall vs. Neville, 3 La. Ann. 326; State of La. vs. P. B. Callac, 45 La Ann. 28, 12 So. 119; Coreil vs. Town of Welsh, 120 La. 558, 45 So. 438; Webb vs. Keller; 39 La. Ann. 55; 1 So. 423; State vs. Simpson, 122 La. 312, 47 So. 622; 13 Ct. App. 137; 8 La. Dig., p. 655; 526 Tessier Dig. 18; or that the bond was not such as was required by law; Succession of Robt. Charmbury, 34 La. Ann. 21 (25).

“The failure of appellant to give the kind of bond required (by the order) - to sustain the only appeal to which he was entitled is a matter of which the appellee should have complained within the three days following the filing of the transcript.” State vs. Simpson, 122 La. 313, 47 So. 622.

A distinction must be made between the cases where the appeals were dismissed upon the motion of appellees filed within the sacramental three days, and cases where such motions were made after the three days. For there are many cases where the appeals must be dismissed on grounds urged in proper time, and where it cannot be dismissed on the same grounds urged after the time fixed by law. The present case 'is one of the latter cases. In none of the cases quoted by the appellee does it appear that the motions to dismiss were made after the three days.

While it does not appear it must be presumed that in all the cases where the appeal was dismissed the motions were made in due time.

It cannot be said that the appellant had no order of appeal, for the order is there. All that can be said is that the order contains an error or an omission in not fixing the amount of the bond. That error or omission is protected by the prescription of three days in accordance with the authorities quoted above.

It is also protected by Article C. P. 898, which provides that no appeal shall be dismissed for any error in the order of appeal when it shall not appear that such error was imputable to the appellant.

Nor can it be said that the appellant has furnished no bond, for a bond of eight hundred dollars properly signed is in the transcript.

Appellee’s motion itself prays for dismissal “for want of a legal bond”.

All that can be said is that the bond is not for an amount fixed by the court.

That also is an error or an omission covered by the same authorities and the prescription of three days. The appellee may waive the necessity of a legal bond and he may be presumed to have done so when he fails to object within three days to the one filed by appellant. 12 Orl. App. 107 on rehearing.

The object of the three days’ prescription may be to prevent the appellee from waiting one year after the judgment has been rendered before springing a motion to dismiss and thus deprive the appellant of the benefit of appeal. C. P. 593

The tendency is to do away with the technicalities by which parties lose their appeals. Witness the amendment to C. P. 898 in 1870 and Act 112 of 1926.

The right of appeal is favored.

“When the ground for dismissal is doubtful the appeal will be maintained.” 1 La. Dig., p. 548, S. 530.

Motion to dismiss denied.


author: JONES, J.

text:
    No. 10,974
    Orleans
    VITALE v. CHECKER CAB COMPANY
    (December 12, 1927. Opinion and Decree.)
    (Mar. 13, 1928. Decree Supreme Court Writ Granted. Judgment Reduced to $1100, as amended affirmed.)

      (Syllabus by the Court)

    1. Louisiana Digest — Automobiles—Par. 6, 8; Death by Wrongful Act — Par. 6.
    Widow, guest of her husband in an automobile truck, cannot recover for her husband’s suffering and death, when evidence shows he was driving negligently, but his negligence cannot be imputed to her and she can recover for her own injuries and for the loss of his companionship when the record shows she was not guilty of negligence and defendant was.
    Appeal from the Civil District Court, Div. “A”, Hon. H. C. Cage, Judge.
    Action by Mrs. Domenica Vitale against Checker Cab Company, Inc.
    There was judgment for defendant and plaintiff appealed.

      Judgment reversed.
    George Piazza, of New Orleans, attorney for plaintiff, appellant.
    P. L. Fourchy, of New Orleans, attorney for defendant, appellee.
   JONES, J.

This is a damage suit for Fifty-five thousand ($55,000.00) dollars brought by Mrs. Domenica Vitale, widow of Louis Vitale; first, for the injuries and death of her husband; and second, for the severe injuries sustained by her, said injuries and death resulting from a collision between a truck driven by plaintiff’s husband and a Checker Cab, owned by defendant herein.

Plaintiff alleges as follows: Accident occurred at the intersection of Broad and Banks streets, this city, on July 2nd, 1926, about 6:25 o’clock a. m.; truck was traveling up Broad street. from Canal street towards Banks street and she was sitting in front by her husband, who was driving; the Checker Cab was traveling in Banks street towards the river; her husband stopped at the lower side of the intersection of Banks street, and then proceeded to cross the lower .roadway of Banks street; after he had crossed the lower roadway of Banks street and the neutral ground on Banks street, and had reached the right side of the upper roadway on Banks street, he turned his truck towards the river, intending to travel in that direction; that while in the act of turning and before the turn had been completed, a Checker Cab struck the rear end of plaintiff’s truck, dragged it a number of feet, and then turned it over; as a result of this collision, petitioner’s husband received fatal injuries from which he died forty hours later; that plaintiff received injuries from which she suffered for about eight months.

Plaintiff claims Forty-five thousand ($45,000.00) dollars for her husband’s death and Ten thousand ($10,000.00) dollars for her own injuries.

Defendant filed various exceptions, all of which were properly overruled.

Defendant answered that its cab stopped at the intersection of Broad street, then proceeded to cross the lake side roadway of Broad street at a very slow rate of speed; that when its cab had almost completed the crossing, the truck of plaintiff herein, traveling at a dangerous and reckless rate of speed, crashed into the left side of the cab and turned it over.

There was judgment below for defendant dismissing plaintiff’s suit and plaintiff has appealed.

Twelve witnesses testified for plaintiff and nine for defendant and the record fills 412 ipages. It would serve no useful purpose to analyze the evidence, because the witnesses for plaintiff and defendant contradict each other flatly in. all important particulars and there is no possibility of reconciling their statements.

After a careful study of the record, we have concluded that the deceased, Louis Vitale, driving up Broad street, was guilty of a violation of the traffic regulations and contributed to the accident by not yielding the right of way to the defendant driving on Banks street towards the river, and that by proper care he could have avoided the accident. Therefore, the plaintiff cannot recover for the injury or sufferings of the deceased.

But his negligence cannot be imputed to his wife, who was then his guest and was guilty of no negligence. Daule vs. New Orleans Ry. & Light Co., 147 La. 1012, 86 South. 477, Curchill vs. Texas & Pac. Ry. Co., 151 La. 726, 92 South. 314; Southern Surety Co. vs. Morgan’s L. & T. R. R. & S. S. Co., 6 La. Ap. 575; Berry, 4 Ed., pp. 492 to 494.

We also find that the defendant’s chauffeur was guilty of negligence. Both Banks and Broad streets are wide avenues with wide neutral ground in the center and the word “stop" was printed in big letters on the pavement of each street. Vehicles traveling upon either street, and crossing the intersection, could easily have been seen by the driver of the other vehicle. Thus, either driver could have avoided a collision by lessening speed and blowing horns. See Jones vs. Chicago, R. I. & P. Ry. Co., 162 La. 691; 111 South. 62.

The evidence shows that the defendant’s chauffeur did neither and that he was coming at an excessive rate of speed when he reached Broad street with a momentum which caried him 150 feet after the collision. His negligence contributed to the collision, thereby damaging plaintiff. Defendant is, therefore, liable to plaintiff for the injuries suffered by herself. In the language of Dr. Robin these were at the time: A lacerated wound in the forehead and ecchemosis around the eyes, which is a blackening of the eyes, general contusions of the body and brush burns of both shoulders and both knees and right leg and thigh, a mild sacro-iliac sprain, severe contusions of the right shoulder and a fracture of the right scapula or shoulder blade. Apposition good, and at that time I put her disability at about three months altogether and the scar. on her forehead she still has evidence of it now.

The same physician further testified that he had treated her about three months altogether, that he had found no disability twenty days before when he last examined her, but scar on forehead would probably remain.

The plaintiff should, therefore, recover:

(1) Fqr medical services to her $ 100.00

(2) For her sufferings_________________ 1,000.00

(3) For the loss of the society and support of her husband and her mental anguish_ 5,000.00

$6,100.00

Broussard vs. La. Western, 140 La. 517; 73 South. 606.

Taylor vs. V. S. & P. Ry. Co., 123 La. 768; 49 South. 518.

For above reasons the judgment' is reversed and it is now ordered, adjudged and decreed that there be judgment in favor of plaintiff, Mrs. Domenica Vitale, and against defendant, the Checker Cab Co., Inc., in the sum of Sixty-one hundred and 00/100 ($6,100.00) Dollars with legal interest from July 19th, 1926, and all costs of suit.


text:
    No. 11,017
    Orleans
    VITALE v. CHECKER CAB COMPANY, INC.
    (October 17, 1927. Opinion and Decree.)

      (Syllabus by the Court)
    ON MOTION TO DISMISS
    1. Louisiana Digest — Appeal—Par. 581.
    No separate appeal lies from a judgment on rule to tax costs. Such judgment is interlocutory, and forms part of judgment on merits, and is reviewable on appeal therefrom.

      Appeal from the Civil District Court, Division “A”. Hon. Hugh C. Cage, Judge.
    Action by Mrs. D. Yitale against Checker Cab Company, Inc.
    There was judgment for defendant and plaintiff appealed.
    Appeal dismissed.
    George Piazza, of New Orleans, attorney for plaintiff, appellant.
    P. L. Fourchy, of New Orleans, attorney for defendant, appellee.
   ON MOTION TO DISMISS

WESTERFIELD, J.

Plaintiff has appealed suspensively from a judgment on a rule to tax costs. Defendant moves to dismiss upon the ground that the amount is below the jurisdiction of this court, and the judgment on rule inseparable from the judgment upon the main demand, from which only a devolutive, and not a suspensive appeal, was taken.

The appeal must be dismissed. A judgment upon a rule to tax Costs is not a final judgment. Morries vs. Zeller, 4th Orl. App. 411. It is interlocutory and forms part of the original judgment. It need not be signed. Norries vs. Zeller (supra).

Irreparable injury is not averred and is not present because a suspensive appeal from the original judgment would have suspended the collection of the costs fixed under the rule to tax them. Block vs. Papania, 4th Orl. App. 417. No separate appeal lies from a judgment on rule to tax costs. Iron Works Co. vs. Reuss, 40 La. Ann. 121, 3 South. 500; State ex rel. vs. Lazarus, 40 La. Ann. 856, 5 South. 289.

The appeal will be dismissed.


text:
    No. 11,080-a
    Orleans
    REICKE v. BLAND
    (November 28, 1927. Opinion and Decree.)

      (Syllabtis by the Court)

    1. Louisiana Digest — Builders and Buildings — Par. 17; Obligations — Par. 104.
    A contractor may recover the value of work done by him though it be unfinished or defective.
    Appeal from the First City Court. Hon. W. A. Bahns, Judge.
    Action by Henry S. Reicke against E. J. Bland.
    There was judgment for plaintiff and defendant appealed.
    Judgment affirmed.
    E. L. Bordelin, of New Orleans, attorney for plaintiff, appellee.
    Lucia & Provensal, of New Orleans, attorneys for defendant, appellant.
   CLAIBORNE, J.

Plaintiff claims judgment on. four promissory notes each for $50.

The defendant admitted his signature to the notes but denied liability thereon for want of “proper consideration”. Further answering defendant averred that on July 29th, 1925, he .purchased from the plaintiff certain fixtures according to estimate; that plaintiff agreed to furnish in defendant’s store certain fixtures including “new vitrolite panels in doors of soda back bar” and to “take down present fixtures and haul them to new location and erect them as per plan”; that the estimate furnished amounted to $1050, of which he paid $300 on delivery, and for the balance, $750, he furnished eight notes of $93.75 each; that after reducing the amount of said notes to $550, by mutual consent defendant furnished eleven notes each for $50; that he paid all of said eleven notes with the exception of the four notes presently sued upon; that plaintiff failed to furnish the fixtures agreed upon; that instead of furnishing “new vitrolite panels in doors of soda back bar” according to estimate, plaintiff furnished ordinary glass doors painted white; that plaintiff promised to replace said glass panels but has failed to do so; that in removing the fixtures plaintiff’s workman broke one large glass mirror of the value of $50 which plaintiff promised to replace; that under said promises defendant signed the eight original and the eleven subsequent notes; “that he is, therefore, entitled to withhold payment of contract in full until such time as plaintiff makes proper delivery of all items included in estimate herein referred to”, and that he “is entitled to a new mirror or the price thereof which respondent hereby fixes at the sum of $50”; respondent avers further that, as the notes signed by him were to cover in full the estimate furnished by plaintiff, that failure of plaintiff to deliver and install all fixtures as shown in said estimate leaves the said notes signed by respondent without full and due consideration, thereby making said notes null and void until agreement (is) carried out in full by plaintiff”.

There was judgment for plaintiff and defendant has appealed.

The defendant is in error as to his conclusions.

“The jurisprudence of this state is that a contractor who has delivered his work to the owner may sue him when he has received it and is in the enjoyment of it; and that the contractor may recover the value of the work which has enured to the benefit of the owner, although the work be defective or unfinished; if a price has been agreed upon, the remedy of the owner is a reduction thereof to an amount necessary to perfect or to complete the work according to contract.” Babst vs. Peritz, No. 7548 Orleans Appeal; Industrial Homestead vs. Junker, No. 7402 Orl. App.; Berns vs. Reiss, 12 Orl. App. 126; 1 H. D. 807, No. 25; Succession of Kerry vs. Freed Realty Co., 6 La. App. 437.

The difference in value between the vitrolite and the glass was ten dollars. The testimony is that the defendant consented to the change until vitrolite could be procured; but that he never insisted on the change until this suit was filed. This was too late. But plaintiff consents to allow this reduction.

There is no testimony whatever concerning the mirror.

The judgment is therefore affirmed, with the reduction of ten dollars, defendant to pay all costs.


text:
    No. 11,182
    Orleans
    CITIZENS DISCOUNT & INVESTMENT CO., INC. v. MICHON AND LATERRIERE
    (December 12, 1927. Opinion and Decree.)

      (Syllabus hy the Court)

    1. Louisiana Digest — Appeal—Par. 320.
    Under Section 3 of Act 112 of 1916 new appeal bonds must be given within two days after adverse party has served upon appellant notice of insufficiency of original appeal bonds.
    Appeal from the Civil District Court, Division “A”. Hon. Hugh C. Cage, Judge.
    Action by Citizens Discount & Investment Co., Inc., against William J. Michon and Chas. A. Laterriere.
    There was judgment for plaintiff and defendant appealed.
    Petition for writs of certiorari and prohibition denied.
    Edwin F. Marx, of New Orleans, attorney for plaintiff, appellee.
    J. T. Prowell, of New Orleans, attorney for defendant, appellant.
   JONES, J.

This matter comes before us on a petition for writs of certiorari and prohibition directed to the judge of the Civil District Court, Divison “A”, and to plaintiff prohibiting the execution of the judgment originally obtained in this proceeding.

The petition recited that a final judgment had (been rendered by the judge of Division “A”, Civil District Court, on May 30th and signed on June 6th, 1927, in favor of plaintiff and against defendant in the sum of five hundred forty-one and 00-100 ($541.00) dollars with eight per cent on nine hundred ten and 00-100 ($910.00) dollars from October 28th, 1921, to April 17th, 1922, and eight per cent interest bn five hundred forty-one and 00-100 ($541.00) dollars from April 17th, 1922, until paid, and all costs.

That within legal delays suspensive and devolutive appeals were obtained and bonds filed.

That on June 21st, 1927, plaintiffs filed a rule calling upon relators to show cause on June 24th at ten o’clock why the appeals should not be dismissed on the ground that surety was insolvent and insufficient and that the bonds were insufficient in form and did not comply with the law; that the order on this rule was never signed by the judge.

That on July 18th, 1927, defendants furnished new appeal bonds as required by Act 111 of 1916.

That rule was tried on July 22nd over objection of relators on the ground that the order fixing the rule to show cause had not been signed by the judge and on the ground that new bonds had been filed in accordance with Act 112 of 1916.

That notwithstanding these objections the trial judge dismissed the appeals.

That they applied for appeals from this order of dismissal, but applications were refused by the trial judge.

The record confirms all above allegations, but the last. It contains no application for appeals from order of dismissal.

It further shows the service was made by civil sheriff on defendants through their attorneys of rule to show cause why appeals should not be dismissed on June 21st, 1927, and that the judge denied the filing of the new appeal bonds on the ground that they came too late, having been tendered more than two days after notice to test the bonds and surety was served.

We concur in this ruling of the trial judge for Section 3 of Act 112 of 1916 provides that the new bonds must be furnished within two days, exclusive of Sundays, legal holidays and half holidays from service of notice of insufficiency of bonds.

It is evident on the face of the papers that the additional bonds Were not filed until nearly a month after the rule to test bonds was filed, and the return of the sheriff on the rule shows it was served on the same day.

There is no merit in the contention that the notice to test sufficiency of surety and validity of bond was invalid, because the order to show cause was not signed by the judge. Section 3 of Act 112 of 1916 requires that notice be served through the proper office for service and the record in this case shows that such a notice was served on June 21st, 1927.

In Neely vs. Texas & Pacific Railway Co.; 140 La. 445, 73 So. 262, the Supreme Court said:

“By act 112 of 1916 the appellant may give a second appeal bond where the sureties on the first are pecuniarily insufficient, but this must be done ‘within two days’ after the adverse party has served upon him notice of such insufficiency.
“Notice was thus served upon appellant Neely by means of a rule to test the sufficiency of the surety on his appeal bond of which he accepted service on June 22nd, 1915, and the second bond which he gave, in an attempt to take advantage of the provisions of said act, was filed in September, 1915, evidently too late.”

On this point see also:

Hurry vs. Hurry, 144 La. 877, 81 So. 378;

Onorato vs. Sanchez, 14 Orl. App. 319;

Citizens Bank vs. Hudson, 5 La. App. 194;

Wesley M. E. Church vs. Tom Taylor, 3 La. App. 20;

Rousseau vs. T. & P. Ry. Co., 2 La. App. 279;

Creston Lr. Co. vs. Cockerham et als., 2 La. App. 30;

Montgomery vs. New Roads Oil Mill, 2 La. App. 580.

For above reasons the petition is denied.


text:
    No. 11,095
    Orleans
    STATE OF LOUISIANA v. CRESCENT CIGAR AND TOBACCO CO.
    (January 30, 1928. Opinion and Decree.)
    (March 14, 1928. Decree Supreme Court, Writ Denied.)

      (Syllabus by the Court)

    1. Louisiana Digest — Laws—Par. 68, 70.
    The object and purposes of an act should guide in the interpretation of its provisions.
    2. Louisiana Digest — Laws—Par. 70; Taxation — Par. 24.
    The purpose of the. Tobacco Tax Act 197 of 1926 was to require all containers of tobacco products to be stamped by the seller before or at the time of sale to a consumer.
    3. Louisiana Digest — Laws—Par. 68, 70, 72; Taxation — Par. 24.
    A sale of an unstamped container to a consumer by a, wholesale dealer is a sale at retail and constitutes a violation of the Act. (Tobacco Tax Act 197 of 1926.)
    4. Louisiana Digest — Laws—Par. 68, 70, 75; Taxation — Par. 24.
    It was not essential that the wholesale dealer should have had knowledge that the purchaser was a consumer and not a retailer.
    5. Louisiana Digest — Laws—Par. 68, 70, 75; Taxation — Par. 24.
    The wholesale dealer should have used reasonable means to ascertain that the purchaser was not a consumer.
    Appeal from First City Court, Hon. Yal. J. Stentz, Judge.
    Action by State of Louisiana against Crescent Cigar and Tobacco Co.
    There was judgment for defendant and plaintiff appealed.
    Judgment reversed.

      J. C. Pearce, of New Orleans, attorney for plaintiff, appellant.
    Frymire & Ramos, Gnion & Upton, of New Orleans, attorneys for defendant, appellee.
   CLAIBORNE, J.

This is a suit to enforce the penalty under the tobacco tax law.

The plaintiff alleged that although the defendant is supposed to be engaged solely in the wholesale business of selling tobacco products, H. C. Cornish, an assistant supervisor of public accounts, did, on December 22nd, 1926, go into the place of business of the defendant at 420-422 Poydras street, and purchased at retail 600 cigarettes for the price of $3.54, and also one box of cigars containing 50 five cents cigars for $1.85, and that neither the cigarettes nor the box of cigars had any tobacco tax stamps affixed to them as required by Act 197 of 1926; that the said Cornish was not in the business of selling cigarettes or cigars, and purchased .them for his own personal use, and therefore defendants had no right to sell them to said Cornish unstamped, and that no questions were put to him inquiring whether he was purchasing for resale or for his own personal use; that the above facts constitute a violation of said Act 197 of 1926 by the defendant and a first offense under Section 9 thereof, imposing a penalty of $20;

2nd. That on December 22nd, 1926, W. A. Cooper, also an assistant supervisor of public accounts, went into the same place of business of the defendants and also purchased from them one box of cigars containing 50 five cents cigars for $1.85, which also did not have any tax stamps affixed thereon; that said Cooper was not in the business of selling cigars, and purchased said cigars for his own use without any questions being asked of him; the sales ticket being made out to cash; that the above facts constitute another violation of the above Act and second offense calling for a penalty of $50 under said Act;

3rd. That on December 23rd, 1926, the same Cooper again went into defendant’s place of business and did buy from them for his own use 50 five cents cigars for $1.85 in a box also unstamped; that this fact constituted a third offense under said Act for which defendants aré liable to a penalty of $100;

4th. That on December 23rd, 1926, the same Cornish hereinabove mentioned again went into defendant’s place of business and purchased for his own use 400 cigarettes for $2.36, also unstamped; that this fact constitutes a fourth offense for which defendant is liable to a penalty of $100 under the Act.

That the plaintiff is also entitled under the last clause of Section 10 of said Act to such reasonable attorney’s fees as the court, in its discretion, may allow and, to $2.50 for the amount' of tax stamps which should have been affixed by the defendants upon the cigars and cigarettes sold by them as hereinabove.

Therefore, plaintiff claims judgment for $272.50 and for attorney’s fees.

The defendants admitted that they were a corporation doing a wholesale business in tobacco products, admitted the sale on December 22nd of 600 cigarettes for $3.54, also a box of cigars for $1.85, and that no tobacco tax was affixed on either the cigars or the cigarettes; it also admitted the three other sales. It denied all the other allegations of the petition, and specially denied that the purchasers were Cornish or Cooper, or that they purchased said cigars and cigarettes for their personal use, and that they were not in the retail business; they denied that they did not have the right to sell tobacco products to them; denied that said sales were retail sales, or constituted retail business; they admitted that the purchasers were strangers to them and that no questions were put to them inquiring whether the purchasers were buying for resale or for their personal use; they also admitted that the sale tickets were made out for cash.

There was judgment in favor of defendant dismissing plaintiff’s suit.

Plaintiff has appealed.

Cornish and Cooper, sworn as witnesses, both 'corroborate the allegations of the petition concerning their official position, the purchase of the cigars and cigarettes by them from defendants for their personal use, the absence of any stamps on the cigars or cigarettes, and the absence of any questions put to them as to whether they were retail dealers. They also testified that at the time they were buying there were various other people there buying tobacco, among them motormen and conductors of the Public Service. Cornish testified that he went to the store of defendant; that he walked to the window and told the gentleman he wanted three cartons of Chesterfield cigarettes and a box of El Trelles cigars and the man he spoke to wrote an invoice, kept the duplicate, and gave him the original and said: “Go up to the counter and get your tobacco,” and he went to the man, paid him, and walked out with the merchandise; the cigarettes were in small cartons, ten packages to the carton, 200 Chesterfields to each carton; the mode of procedure was as follows:

He walked in the door and there is an open window there, and a gentleman sitting at the desk; he asked for 400 Chesterfields, and handed in the money for them, and’ the gentleman handed him the two bills, original and duplicate, and he carried them both to the counter, and the person who puts up the packages keeps the duplicate and gives him the original and the tobacco; employees of the department have gone back and talked to people there, and told them they were representing the State and asked if they could buy tobacco and they were refused. On cross-examination the witness testified:

“Q. What did you think when you got this statement with the notation: ‘These goods bought for resale purposes,’ what did you think that meant?
“A. I didn’t pay any attention to that until I had gotten outside.
“Q. What did you think of it after you got on the outside and saw it?
“A. I read what was on there and noticed my other slip on the next day and it didn’t have that on it.
“Q. Did you place any construction on this at all?
“A. No, sir.
“Q. Didn’t it occur to you that if the Crescent Cigar and Tobacco Company had written on a bill of goods: ‘These goods were sold for retail purposes only,’ you couldn’t use' them for any other purpose?
“A. I knew there was no question asked as to that.
“Q. I asked you when you got this bill in box car letters: ‘These goods bought for resale purposes,’ what did you understand that to mean?
“A. I noticed that after I had gotten out of the store.
“Q. Well, after you saw it, what impression did that make on you?
“A. It was just merely a rubber stamp placed on there, because no questions were asked me.
“Q. Well, when you received the one on your next purchase, on the 23rd, without the rubber stamp on it, you didn’t consider that was significant?
“A. I thought that was perhaps an oversight that the rubber stamp was not put on it.”

The witness further testified that he paid for the fifty cigars $1.88 a box less two per cent discount the regular wholesale price in the original package; and that those cigars sell at retail 'five cents a piece; he has had reports that he could buy those cigars at defendant’s store, time after time, even when they knew that they were for the personal use of the purchaser.

Cooper’s testimony was practically the same as that of Cqmish.

J. S., DeBen, vice-president and manager of the defendant company, admitted that the company had made the sale set forth in the petition. He testified that “we don’t sell to consumers”; they have a sign in their store stating that they are “wholesalers only”; on one occasion a purchaser was asked whether he was purchasing for resale or for his own account, and when he answered that he was purchasing for himself the goods were taken away from him and the price paid refunded to him; he knows of no other case besides the ones sued for in which purchasers have bought for their' own use; about 2500 retailers in the city buy in his store; it is not unusual for a dealer to buy one carton of cigarettes; prior to the tobacco tax law it was not his habit to ask a purchaser where his place of business was and whether he was a retailer; now they ask everybody who comes in, if they do not know him, whether they are retailers or not; there are 20 cigarettes to a package and ten packages to a carton, and fifty cartons to a container shipped from the factory; it is unusual fo.r a retailer to buy the latter; his business is conducted now in the same manner in which it was prior to the tobacco tax law; since the tobacco tax law went into effect he has given orders to his employees “to be careful to sell only to dealers and try not to let anyone qome in and buy goods unless they know them or had reason to believe they were dealers”; he discussed this matter with his attorney and the result was that he purchased a rubber stamp to be placed on his goods; the stamp bore the words: “These goods bought for resale purposes,” and was placed on their invoices “to show that the goods were sold to them as dealers and not to be consumed”; their employees had instructions to use those stamps, and as far as he knew they followed those instructions; their policy is not to sell to consumers as it would affect their business with retail dealers; he is not personally acquainted with all his customers nor familiar with their names; whenever a sale is made a slip is made out and kept as was done in this case; out of the four purchases sued upon herein there is only one slip bearing the impression of the rubber stamp; he does not know whether his clerks followed his instructions relative to sales to people they did not know; a stranger could purchase cigars or cigarettes unless they had reason to believe that he was a consumer; if they had reason to believe that he was not a, dealer they would not sell to him; their instructions are, when a new customer comes in, to obtain his name and address, sometimes these instructions are not carried out; they make no effort to sell to consumers nor do they want to sell to them.

A. L. Rau, the president of defendant company, testified that' he has charge of the financial department; that they do a yearly business of a little less than $2,000,000 strictly wholesale.

Henry R. Eiermann is in charge of the city hilling desk where they make all sales; the meaning of the words on the invoices, “These goods bought for resale purposes”, is that they sell only to people who" resell the goods; these words are put on by a rubber stamp; this stamp is used on all their invoices; the majority of sales are one, two or three cartons of cigarettes, and one, two boxes of cigars; only great big retailers like Worner’s Pharmacy buy 50 carton packages; there is a sign just as you go in that “we sell wholesale only,” in the majority of sales deliveries are made by trucks; “but since we have a “cash and carry” department we do quite a lot of business over the counter with a discount of eight per cent for cash in cigarettes; employees were instructed by the managers of the Company not to sell to consumers; he does not know all the customers that come into the place, but he knows most of them; when a person comes in to buy they “ask if its for resale purposes”; they have always had those instructions, even before the tobacco tax law; he knows one of the clerks who made the sales in this case but he would not say that he was familiar with the instructions; in the rush of business around Christmas they employ extra clerks.

J. D. Atkinson is secretary and treasurer of the defendant Company; the words on the slips: “These goods bought for resale purposes,” mean what they say; they are put on with a rubber stamp; it was bought for use in connection with this tax law, just prior to October, 1926; as far as they are concerned everything is sold for resale; during holidays they increase the number of their sales clerks beyond two or three; motormen, conductors, policemen, firemen, white and black people come in and buy for retailers or for their wives who are in business; 50 to 75 per cent of their business is done in small quantities, such as the plaintiff’s witnesses purchased; the words on the rubber stamps mean that they “are selling these goods for resale purposes”.

The four invoices or slips delivered by defendants to plaintiff to represent their purchase are filed in the record; one of them bears the rubber stamp mark: “These goods bought for resale purchases”; the other three are without it. On the top left hand corner all the bills carry the following printed words: “Wholesale oily”. In the advertisement of defendants’ business in the Times-Picayune of January 12th, 1927, are the following words: “10% for cash on Cigarettes in case lots or 8% for cash on any quantity; Tobacco and cigarettes assorted as desired ‘cash and. carry’.” Nothing is said about wholesale., or retail, or consumers.

The tobacco tax Act No. 197, 1926, p. 322, reads as follows:

“An Act to levy a tax upon retail dealers in all forms of tobacco and tobacco products for the benefit of the public schools of the State of Louisiana, based upon the weight, or the sale price at retail; to provide for the collection of such tax and to require the use of stamps as evidence of the payment thereof to provide for an inspection of the records and stocks of all dealers subject to the payment of this tax, and prescribing penalties for the violation of this act.
“Section 1. That there is hereby levied a tax in the sum as hereinafter set forth upon tobacco, and tobacco products as defined in Section 2 of this Act for the benefit of the public schools of the State of Louisiana, which tax shall be paid and collected as set forth herein, from every person, firm, corporation, association of persons engaged in selling any or all such forms and kinds of tobacco, tobacco products and tobacco substitutes at retail.
“Section 2. The tax herein levied and tó be collected on all kinds of tobacco and tobacco substitutes provided for in this Act shall be one cent for each ten cents or fractional part thereof of the retail selling price of all cigarettes, smoking, and chewing tobacco, cigars, cheroots and snuff made of tobacco or any substitute thereof.
“Section 3. The payment of the tax as imposed in this Act on articles based on retail selling price shall be evidenced by affixing stamps in the manner and at the< time as herein set out. In the case of cigars and plug chewing tobacco, the stamps must be affixed to the box or container in which or from which normally sold as soon as received into retail place of business. In case of cigarettes, snuff, smoking and chewing tobacco, wrapped in packages, the stamps must be affixed to each individual package as soon as received into retail place of business. Stamps required to be affixed by the provisions of this Act shall be affixed in such manner that their removal will require continued application of steam or water. The stamps affixed to boxes containing cigars or chewing tobacco shall be cancelled by placing thereon the date of such affixing.
“Section 9. Any person, firm, corporation, or association of persons required to pay taxes under the provisions of this Act, who shall fail to affix stamps properly, or to cancel such stamps after affixed as are required to be cancelled, or who shall fail or refuse to (permit the Supervisor of Public Accounts or his authorized agent or representative to examine and inspect taxable stocks of merchandise, invoices, books, papers, and memoranda deemed necessary to secure information directly concerned in the enforcement of this Act, shall suffer a penalty of Twenty dollars for the first offense, $50 or the second offense, $100 for each offense thereafter, the said penalties to be collected by civil process as hereinafter provided.”

The Tobacco Tax Act does not define what it means by the word “retail dealer”.

But previous Acts have done so, and also our Supreme Court, Section 6 of Act 171 of 1898, p. 394, gives the following definition:

“No person or persons shall be deemed wholesale dealers unless he or they sell by the original or unbroken package or barrel only; and provided, further, that no person or persons shall be deemed wholesale dealers unless he o.r they sell to dealers for resale. If they sell in less qtiantities, than original and unbroken (packages or barrels, they shall be considered retail dealers and pay licenses as such.”

Section 8 of Act 233 of 1920, p. 403 and Sec. 7 of Act 205 of 1924, p. 333 repeat the same definition in ipsissimis verbis.

In State vs. Spencer, 127 La. 336, 53 South. 596, the Court said:

“Under the general license Act No. 171 of 1898, p. 387, no person is deemed a wholesale dealer unless he sells to dealers for resale. Hence a dealer in intoxicating liquors who sells to individuals for consumption is a retailer and may be properly convicted as such in a prohibition parish.”

The editorial staff added the following definition from Words and Phrases Yo. Wholesale.

“The primary and usual meaning of the word ‘wholesale’ is the sale of goods in gross to retailers who sell to consumers.”

This definition is also adopted by the court, quoting 30 A. and E. E. L., p. 518, and Black, who says:

“In reason, however, and upon a right use of language, “the distinction between wholesale and retail, in the absence of statutory definitions, should be made to depend not solely on the quantity sold, but also upon the purpose of the sale and the character of the purchaser.”

And the Court adds:

“It follows that every dealer is a retailer who is not within the definition of wholesaler.”

When the' meaning of a word has been defined by a statute and by decisions of the courts, and the legislature in a subsequent statute repeats that work, the presumption will arise that the legislature used it with the same meaning and definition. 1 H. D. 787, No. 18; State vs. Olympic Club, 47 La. Ann. 1095,. 17 So. 599; Maylwski vs. Creditors, 40 La. Ann. 94, 4 So. 9; State vs. Glandi, 43 La. Ann. 914, 9 So. 925; Succession of Rixner, 48 La. Ann. 552, 19 So. 597.

Therefore, we must assume that when the legislature used the word “retail dealer” in Act 197 of 1924, it intended to use it with the meaning given to it by the Acts of 1898, 1920, and 1924, and by the courts, that is one who sells directly to the consumer in contradistinction of a wholesale dealer who sells to dealers for resale. This is no strained construction. The record reeks with the proof that the defendants so understood the Act. Their president, their vice-president, and their secretary, themselves have defined' the word “wholesaler” when they testify that they do not sell to consumers, that they sell only to those who resell. Their president testified that “they did not sell to consumers,” meaning that it was not their business so to do. In this testimony he is corroborated by all the other officers who have testified. The testimony is that after consulting their attorneys they adopted a rubber stamp, to impress upon each invoice the words: “These goods bought f<?r resale purposes.” They also testify that instructions were given to the employees not to sell directly to consumers. This Court adopts the interpretation given to the act by the defendants themselves and are of the opinion that a sale made by the defendants to a purchaser not for resale purposes but for consumption by the purchaser was a sale by retail and constituted a violation of the Act unless the tobacco was stamped at the time of the sale. The learned trial judge has quoted several authorities to establish that defendants were not retail dealers and did not commit an act that constituted them as such by making the four sales for which they are sued. Those authorities are no doubt correct in so far as they interpreted the revenue acts for the purposes of determining the character of the defendants in those cases in relation to the license Acts and the sum each was to pay as wholesale or retail dealers. But these decisions are foreign to the question before us. The question in those cases was the character of the business carried on and the amount thereof as a basis for the license. The question in this case is whether the defendants háve violated a statute which imposes a penalty for selling tobacco to a consumer without proper stamps. It is immaterial whether the defendants are wholesale or retail dealers. The offense consists in selling unstamped tobacco to a consumer.

It will not be contended that it is a violation of the law for a retail dealer alone to sell unstamped tobacco to a consumer, but a legitimate act on the part of a wholesale dealer. Such a construction would defeat the law.

In construing a statute the object and purposes of the legislature should be considered. Charity Hospital vs. Cyril Meyeaux, No. 11,039, recently decided by this court. State vs. Olympic Club, 47 La. Ann. 1095. The purpose and only purpose of the Tobacco Tax Act was to require all containers of tobacco to be stamped by the seller before or at the time of the sale to the consumer.

In the case of State vs. McCrystol, 43 A. 907, a “tales juror” was held to be included in a law punishing the attempt to bribe a “grand juror or petit juror”. Such was the clear intention of the statute. “It would attribute fatuity to the legislature,” said the court, “to suppose that it would punish the bribery of one class and not of the other.” Also State vs. Winehill & Rosenthal, 147 La. 792, 86 South. 181. So in this case it would be absurd to suppose that it would be an offense for a retail dealer to sell unstamped tobacco to a consumer, but not an offense for a wholesale dealer to do so.

It was immaterial whether the seller called himself a wholesale and not a retail dealer. His act of selling to a consumer was one of a retail dealer, and was a violation of the statute, and by violating the^ statute once the wholesale dealer became a retail dealer, pro hac vice, and made himself amenable to the law. The defendants contend that it is the character of the business that determines the liability. The act is personal. It says in See. 99: “any person, firm, corporation, or association of persons required to pay taxes under the provisions of this Act who shall fail to affix stamps shall suffer a penalty, etc.”

It is not necessary that the defendants should be in the business of violating the law; one act is sufficient. We must read the ’whole Act, and not only one clause.

It is also contended that there must be a continuity of the illegal sale to constitute the offense. This cannot be so, inasmuch as the law punishes a first, a second, and a third offense by increasing penalties. We are of the opinion that a single violation of the law is ’ sufficient to incur the ¡penalty.

It has been argued that the State must show that the defendants had knowledge that the purchases were by consumers and were not being made for resale. The statute does not specifically require proof of that knowledge, and courts cannot add to the law.

Whenever knowledge <m the part of the defendant in a criminal prosecution must be shown, the statute creating the offense, specifically requires it. Such is the statute making it an offense to overdraw one’s bank account (and many other criminal statutes. It would be impossible in many cases for the State to make such proof. But it would be easy for the seller of tobacco products to have or to acquire that knowledge. In many instances the seller knows his customers for resale. From those whom he does not know, it is no unreasonable requirement that he make inquiry of them. The defendants themselves have testified that they inquire from purchasers whom they do not know as resalers.

The impression made by the rubber stamp upon the invoices is no protection to the defendants. The proof is that it was applied only once out of four (purchases, and is not binding upon purchasers. No proof is made that the purchaser’s attention is called to it. It was not in this case. Besides the purchaser may well ignore it. He commits no offense in purchasing or carrying away unstamped cigars; his interests will prompt him to keep silent, as he buys at a cheaper price. The seller is the one committing the offense. It is also to his interest not to enlighten a purchaser and thus lose a sale. The innocent seller in good faith who had taken means to avoid a violation of the law would be entitled to more consideration than the defendants here who appear to have neglected reasonable means of protecting themselves against violation of the law.

We are, therefore, of the opinion that a dealer, whether he is a wholesaler or retailer, who sells tobacco products to a consumer without affixing upon them the stamps required by the law is guilty of a violation thereof and amenable to the penalty imposed by that law.

But while we are of the opinion that each sale made by the defendants was a violation of the law, we do not believe than the State can recover more than the penalty for the .first offense.

Section 10, on page 325 of the Act contains the following provision:

“Whenever it shall appear to the Supervisors of Public Accounts that any such person, firm, or corporation, or association of persons engaged in the retail sale of tobacco and tobacco iproducts, as described in this Act has failed to affix stamps or cancel stamps as provided herein, the Supervisor of Public Accounts shall compute the correct amount of the tax due and so certify same as being the amount actually due and owing and shall state in what way this Act is violated, and he shall concurrently notify such person, firm, corporation, or association of persons of such facts, and in the event that such person, firm, or corporation, or association of persons shall not, within five days after such notification, pay the amount of tax found to be due and owing and affix stamps to taxable merchandise and cancel the same as provided in this Act, the Supervisors of Public Accounts shall, in the name of the State, without deposit or advance cost, enter suit against such person, firm, corporation, or association of persons for the amount due and owing, together with such penalties as are provided in this Act or for the amount of such penalties alone.”

We are of the opinion that when information of the violation of the Act was brought home to the Supervisor of Public Accounts on the occasion of the first violation on December 22nd, 1926, it was his duty to have given the defendant the notice required by the above clauses, and that he could not have proceeded against the defendants for further violations without having given this notice.

It is, therefore, ordered that the judgment herein be reversed and annulled, and it is now ordered that the defendants, the Crescent Cigar and Tobacco Company, be condemned to pay to the plaintiff the sum of Twenty-two 50/100 dollars, with fifty dollars for attorney’s fees and all costs of suit.


text:
    No. 10,146
    Orleans
    BYRNE v. COMMERCIAL SECURITY CO.
    (March 12, 1928. Opinion and Decree.)

      (Syllabus by the Court)

    1. Louisiana Digest — Taxation—Par. 338, 341, 377, 378, 383.
    No sale of property for taxes shall be set aside for any cause unless the proceeding to annul is instituted within three years from the date of registry of the tax deed, except on proof of dual as-' sessment, or of payment of the taxes for which the property was sold prior to the tax sale, or if the tax debtor was in the actual possession of the property sold, or if the formalities preceding the tax sale were radically null.
    2. Louisiana Digest — Taxation—Par. 338, 341, 377.
    Want of notice, or want of sufficient advertisement, or an assessment in the name of one not the owner of the property do not constitute radical nullities and are prescribed by three years.
    3. Louisiana Digest — Taxation—Par. 341, 345, 378.
    It is not necessary for the tax purchaser to take possession; it suffices that the original owner or tax debtor be not in possession.
    4. Louisiana Digest — Taxation—Par. 341, 377.
    Prescription begins in favor of the tax purchaser with the civil possession acquired by the registry of his title in the conveyance office.
    5. Louisiana Digest — Taxation—Par. 377; Prescription — Par. 18.
    The prescription of three years is not a prescription acquirendi causa, but one liberandi causa. (Relating to tax titles.)
    6. Louisiana Digest — Taxation—Par. 378.
    Possession by any other than the original owner will not suspend prescription.
    Appeal from the Civil District Court, Division “E”. Hon. W. H. Byrnes, Judge
    Action by Mrs. Harry H. Byrne against Commercial Security Co., Ltd.
    There was judgment for defendant and plaintiff appealed.
    Judgment affirmed.
    James B. Rosser, Jr., of New Orleans, attorney for plaintiff, appellant.
    W. Winans Wall, of New Orleans, attor ney for defendant, appellee.
   CLAIBORNE, J.

Plaintiff sues for the nullity of a tax sale. Her suit was filed June 4th, 1924.

She alleges that she is the owner in actual physical . possession of a lot of ground with the improvements thereon situated in this, city in the square bounded by Melpomene, Thalia, Constance and Annunciation streets, measuring 31'11"5'" front on Melpomene by 136' deep on the side line towards Constance street and about 117'6" deep on the other side line towards Annunciation street by 36'1"6'" wide on the rear line, according to a sketch of L. Fremaux, Surveyor, dated April 29th, 1869, purchased by her from Widow Thomas Butz by act of Wm. J. Castell dated June 7th, 1884, Reg. C. O. Bk. 118, p. 609.

That the Commercial Security Company, defendant herein, claims to be the owner of said property for having purchased the same at a sale made by the state tax collector on August 7th, 1920, for the state tax of 1919 assessed in the name of Mrs. Thomas Butz according to an act before John P. Sullivan dated October 22nd, 1920, registered in the conveyance office on the same day in book 325, p. 475.

It thus appears that this suit was filed by the owner against the purchaser at tax sale three years, seven months and twelve days after the registry of the tax sale in the conveyance office.

The' plaintiff further alleges that said act of sale is null for the two reasons: “1st, that the notice required by the constitution and laws of the state then in force were not given her preceding said tax sale, and 2nd, that said tax sale was not advertised for thirty days as required by the laws of the state”.

She prays for judgment in her favor annulling said tax sale.

The defendant admitted that it was the owner of the property for having purchased it at tax sale as alleged, but denied all the other allegations of the petition.

Further answering defendant alleged that since the tax sale and the registry of the act of sale it has had possession of the property and that plaintiff has been entirely without any possession thereof and therefore plaintiff’s suit is barred by the prescription of three years under the constitution of this state, and it prays for the dismissal of the suit.

By a supplemental petition plaintiff alleged that her property was illegally assessed in the year 1919 in the name of “Mrs. Thos. Butz”, who was not then the owner thereof.

The defendant filed, a general denial to this supplemental petition.

There was judgment in favor of defendant, rejecting plaintiff’s demand.

The plaintiff moved for a new trial on the ground of newly discovered evidence. The new trial was refused. The newly discovered evidence consisted in the testimony of six witnesses “that after the fall and the removal of the old fence erected on the lot facing Melpomene street, between Annunciation and Constance streets, in this city, being the property in controversy herein, by Mrs. Mary Creigh Byrne, -plaintiff herein or her authors in title, that the said property remained unenclosed from the time of the spring of 1918, until a fence was built across the front of said lot in the spring or summer of 1923 (one of said witnesses, Mrs. Lotz, fixing the time in June or July of the year 1923), and that said fence fell or was torn down by boys of the neighborhood, or another fence was erected across the front of said lot and same is unenclosed in front at the present time; the witness, Dr. B. P. Gallant, will testify that he caused a fence consisting of five posts and five boards about six or seven feet in height to be erected across the front of said lot in July, 1923, that said fence was standing in September, 1923, when St. Luke’s Private Sanitarium was sold and he removed from that neighborhood; that the witnesses, Mrs. Y. T. Crawley and Mrs. Margaret O’Brien Collins, will corroborate the above testimony of Dr. Gallant”.

The new trial was refused, and rightly so. It was based upon the assumption that the plaintiff, the purchaser at tax sale, must show possession in himself in order to avail himself of the prescription of three years, an assumption which was not warranted by Article 233 of the Constitution of 1898 and the numerous decisions of our Supreme Court interpreting the article.

The defendant appealed.

'The testimony of Mr. Sol Weiss, agent and attorney of the plaintiff, establishes that he caused the improvements on the lot to be demolished and the materials and debris removed in November, 1917.

The attorney for plaintiff herein testified that he visited the lot the day before the trial of this case. He said: “The lot is enclosed on three sides by fences, that is, two side lines and the rear, no fence in front; * * * there is nothing on the lot in the way of any buildings or sheds.” He further stated “that after the decay of the old fence on the front of the lot in controversy, that the only other fence that was ever erected on the front of said lot was a fence erected by Dr. B. F. Gallant, and that there was no fence on the front of said property on October 20th, 1924, nor is there now any fence on the front of said property”. He further stated that he expected to prove by the witness, Mrs. Collins, that the only fence erected on the front of said lot after the disappearance of the old fence erected by Mrs. Byrne or her authors in title was the fence erected by Dr. B. F. Gallant, while operating the sanitarium at the corner of Annunciation and Melpomene streets which immediately adjoins the lot in controversy.”

L. E. Konrad, president of defendant company, testified that he visited the lot immediately after the tax sale to it, there was no fence in front, it was vacant; he had a fence built upon the front twice; there were property fences on the other sides.

Philip G. Veith is employed by the witness, Konrad; he takes charge of properties bought by him for taxes; he saw this lot right after the sale; it was vacant; he caused a rail fence to be built in front of the lot; he put up sale signs upon the lot several times; defendant paid the city taxes for the years 1918, 1919 and 1922.

J. A. Bloom put up a rail fence in front of the lot in 1921 for defendant; there was nothing on the lot, no front fence; it was a vacant lot.

Article 233 of the constitution of 1898 provided that: “No sale of property for taxes shall be set aside for any cause except on proof of dual assessment, or of payment of the taxes for which the property was sold prior to the date of sale, unless the proceeding to annul is instituted within three years from the date of recordation of the tax deed as to sales made hereafter, if no notice is given.”

The decisions affirming the validity of this article have too firmly imbedded the jurisprudence on this point to be disturbed at this late day, beginning with the leading case of Ashley vs. Bradford decided by Judge Blanchard in 1902 and reported in 109 La. 642, whether the formalities of the law preceding the tax sale were complied with or not.

The illegalities of the tax sale charged by plaintiff are three: want of notice, want of sufficient advertisement, and assessment in name of a person not the owner.

The want of notice was the defect in the following cases: In re Lockhart, 109 La. 741, 33 South. 753; Terry vs. Heisen, 15 La. 1070, 40 South. 461; Little River Lumber Co. vs. Thompson, 118 La. 285, 42 South. 938; Holland’s Heirs vs. Southern State Land & Timber Co., 124 La. 407, 50 South. 436; In re Quaker Realty Co., 127 La. 210, 53 South. 526; In re Valloft, 155 La. 827; Canal-Commercial Trust & Savings Bank vs. Employers’ Liabiliay Assur. Corporation of London, Eng., 155 La. 827, — South. 542; Griffing vs. Taft, 151 La. 447, 91 South. 832; Winn Parish Bank vs. White Sulphur Lumber Co., 133 La. 282, — South. 907; Page vs. Loeffler, 146 South. 194; Atchafalaya Land Co. vs. Williams Cypress Co., 84 South 351; Hart Land & Improvement Co. vs. Kelly’s Heirs, 145 La. 349, 82 South. 366.

The want of advertisement in the following cases: Holland’s Heirs vs. South States Land & Timber Co., 124 La. 407, 50 South. 436; Grandchampt vs. Administrator of Succession of Bills, 124 La. 119, 49 South. 998; Griffing vs. Taft, 151 La. 447, 91 South. 832.

Assessment, in the name of one not the owner in the following cases: Ashley Co. vs. Bradford, 109 La. 649, 33 South. 634; In re Lockhart, 109 La. 741, 33 South. 753; Corkran Oil & Develop. Co. vs. Arnaudet, 111 La. 584, 35 South. 747; Terry vs. Heisen, 115 La. 1070, 40 South. 1461; Crillen vs. New Orleans Terminal Co., 117 La. 349, 41 South. 645; Little River Lumber Co. vs. Thompson, 118 La. 285, 42 South. 938; Lavedan vs. Choppin, 119 La. 1056, 44 South. 886; Holland’s Heirs vs. Southern State Land, 124 La. 407, 50 South. 436; In re Quaker Realty Co. (In re Valloft), 127 La. 210, 53 South. 526; Norgress vs. E. B. & S. P. Schwing, 128 La. 1043, 55 South. 667; Quaker Realty Co. vs. Purchell, 134 La. 1024, 64 South. 894; Griffing vs. Taft, 151 La. 447, 91 South. 832; Manade vs. Brown, 146 La. 888, 84 South. 170; Atchafalaya Land Co. vs. William Co., 166 La. 1047, 84 South. 351; Hart Land & Imp. Co. vs. Kelly’s Heirs, 145 La. 349, 82 South. 366.

Also Corkran Oil & Dev. Co. vs. Arnaudet, 111 La. 563, 35 South. 747; Armstrong vs. Progressive Realty Co., 128 La. 730, 55 South. 334; Griffing vs. Taft, 151 La. 449, 91 South. 832; 1 Orl. App. 99-213-229; 2 Orl. App. 272; 6 Orl. App. 220; 7 Orl. App. 190.

These informalities were held covered by Article 233.

Article 233 is a peremption rather than a prescription. Hollingsworth vs. Schanland, 155 La. 832, 99 South. 613.

Jurisprudence, has added two exceptions to the operation of prescription under Article 233.

Those are: 1st, when the nullities of the tax sale are radical or the description of the property insufficient. Gouaux vs. Beaullieu, 123 La. 692, 49 South. 285; Fellman’s Heirs vs. Interstate Land Co., 163 La. 529, 112 South. 405; In re Aztec Land Co. (In re Dupuy), 147 La. 672, 85 South. 634.

This exception does not apply in this case, as we have seen by the decisions just quoted that want of notice, insufficient advertisement, and assessment in the name of one not the owner are not radical nullities and may be cured by the prescription of three years.

The second is when the original owner or tax debtor at the time of the tax sale was in the real, natural, physical, or corporeal possession of the property sold, C. C. 3427-3428-3429, and so remained until the filing of the suit against him. It is a badge of ownership and no prescription runs against the owner. His possession is a continuous protest against the tax title and interrupts the prescription of three years. Carey vs. Cagney, 109 La. 82, 33 South. 89; Ashley Co. vs. Bradford, 109 La. 641, 33 South. 634; Koen vs. Martin, 110 La. 242, 34 South. 429; Koen vs. Martin, 110 La. 246, 34 South. 429; Pomeroy vs. McFarlain, 110 La. 338, 34 South. 467; In re Seim, 111 La. 555, 35 South. 744; In re Seim, 111 La. 562, 35 South. 744; Slattery vs. Kellum, 114 La. 288, 38 South. 170; Posey vs. Ducros, 115 La. 359, 39 South. 26; Lisso & Bro. vs. Giddens, 117 La. 507, 41 South. 1029; Bartley vs. Sallier, 118 La. 93, 42 South. 657; Little River Lumber Co. vs. Thompson, 118 La. 284, 42 South. 938; In re Sheehy, 119 La. 609, 44 South. 315; Huntington vs. Westerfield, 119 La. 615, 44 South. 317; Lavedan vs. Choppin, 119 La. 1058, 44 South. 886; Armstrong vs. Progressive Realty Co., 128 La. 727, 55 South. 334; Norgress vs. E. B. & S. P. Schwing, 128 La. 1040, 55 South. 667; Quaker Realty Co. vs. Purchell, 134 La, 1022, 64 South. 894; Hirst vs. Xeter Realty, 138 La. 401, 70 South. 339; Xeter Realty Co. vs. Basler, 140 La. 891, 74 South. 185; Bradley vs. City of New Orleans, 153 La. 281, 95 South. 718; 163 La. 529; Pickens vs. Dellinger, 161 La. 694, 109 South. 391; Pierson vs. Castell & Harbor Co., 159 La. 168, 105 South. 274; Charbonnet vs. State Realty Co., 155 La. 1044, 99 South. 865; Bonvillain vs. Richaud, 153 La. 435, 96 South. 21; Flanagan vs. Land Develop. Co., 145 La. 843, 83 South. 39; Adsit vs. Park, 144 La. 934, 81 South. 430.

The burden of proof of possession is upon the owner tax debtor. Quaker Realty Co. vs. Purcell, 131 La. 496, 59 South. 915.

It is abundantly established by all that precedes and especially by the motion for a new trial, and by the testimony of Dr. Gallant, Konrad, Veith, and Sol Weiss, plaintiff’s former attorney and agent, that plaintiff was not in the actual, physical possession of the lot at the time of the tax sale and never afterwards. The testimony of Sol Weiss is that he caused the improvements upon the lot to be demolished and removed in 1917 and that he never afterwards exercised any right of ownership over the lot. If the plaintiff’s possession continued after 1917 it was purely civil, C. C. 3429, and continued in her by a fiction of law under Article C. C. 3442. But that civil possession was taken away from her by the tax sale. C. C. 2479 (2455); “The law considers the tradition or delivery of immovables as always accompanying the public act, which transfers the property.”

The property being vacant, possession resulted from the registry of the title. 2 Orl. App. 277.

“The law recognizes possession as following the registry of the title without any actual occupation of the property bought. This is called civil or constructive possession as contradistinguished from natural or corporeal possession, and suffices to maintain the prescription of three years.” Ashley Co. vs. Bradford, 109 La. 653, 33 South. 634; Slattery vs. Kellum, 114 La. 288, 38 South. 170; Hirst vs. Xeter Realty, 138 La. 398, 70 South. 339; State vs. Celestin, 138 La. 407, 70 South. 342; 1 Orl. App. 213; 7 Orl. App. 190.

The word “sale” means a complete sale which vests a “color of title” in the purchaser. Ashley Co. vs. Bradford, 109 La. 657, 33 South. 634; Posner vs. Southern Exhaust & Pipe Co., 109 La. 658, 33 South. 641; Corkran Oil & Develop. Co. vs. Arnaudet, 111 La. 586, 35 South. 747.

But if more is required, Konrad & Veith, the agents of the defendant, testified that they followed the civil possession given by the tax sale by the natural, actual possession, and built a fence in the front part of the lot. This testimony was not offered for the purpose of showing possession in defendant, but for negativing actual and even civil possession in plaintiff.

It was not necessary for the defendant to show possession in itself. The prescription of three years under Article 233, unlike the prescription of ten years, is not a prescription, acquirendi causa; it is flatly a prescription liberandi causa; it is a bar to an action. Prater vs. Craighead, 118 La. 628 (639), 43 South. 258; Hirst vs. Xeter Realty, 138 La. 399, 70 South. 339.

For that reason it is not essential that the tax purchaser should take actual possession of the property purchased by him. His possession during three years is not the foundation of his title. It is the absence of possession by the former or original owner or tax debtor, which prescribes the right of said tax debtor to question the validity of the sale. Possession by the tax purchaser is not essential to his acquiring title by the prescription of three years liberandi causa. Hirst vs. Xeter Realty, 138 La. 399, 70 South. 339; Lavedan vs. Choppin, 119 La. 1059, 44 South. 886; Pickens vs. Dellinger, 161 La. 694, 109 South. 391; Tensas Delta Land Co. vs. Anders, 158 La. 98, 103 South. 522; Crutchfield vs. Moch, 156 La. 211, 100 South. 401.

Prescription enures to the benefit of the tax purchaser when neither he nor the former owner is in possession. Lavedan vs. Choppin, 119 La. 1056, 44 South. 886; Norgress vs. E. B. & S. P. Schwing, 128 La. 1043, 55 South. 667; Quaker Realty Co. vs. Purcell, 134 La. 1024, 64 South. 894.

Civil possession not preceded by corporeal possession is sufficient to support the prescription of the tax ¡title, when there is no actual possession by the tax debtor. 7 Orl. App. 190.

“It requires the actual physical possession of the original owner of the property sold for taxes to prevent the running of the prescription of three years in favor of the holder of the tax title. The fiction called civil possession resulting from the registry of the title of the original owner will not suffice.” Baldwin Lumber Co. vs. Dalferes, 138 La. 508, 70 South. 493; Maison Neuve vs. Dalferes, 138 La. 527, 70 South. 500.

While constructive or civil or legal possession as contradistinguished from actual corporeal possession may not suffice to acquire property by prescription, it is a sufficient foundation to support the prescription of three years under Article 233 of the constitution, when there is no actual or corporeal adverse possession by the tax debtor. Ashley Co. vs. Bradford, 109 La. 642 (654), 657, 33 South. 634; Lavedan vs. Choppin, 119 La. 1058, 44 South. 886.

Plaintiff contends, however, that the actual possession of the plaintiff was maintained by the act of Dr. Gallant in erecting a fence in front of the lot. This is an error. Gallant was not acting as the agent of the plaintiff or for her benefit. He acted in self protection for himself to guard against the nuisance to him of the vacant lot next to him.

It makes no difference who acted as owner of the lot or who was in possession of it, as long as it was not the former owner. The rights of the tax purchaser could be suspended only by the actual possession of the former owner himself, or of some one for his account. Slattery vs. Kellum, 114 La. 288, 38 South. 170; Crillen vs. New Orleans Term., 117 La. 349, 41 South. 645; Prater vs. Craighead, 118 La. 628, 43 South. 258.