text:
    No. 3803
    Second Circuit
    FROST LUMBER INDUSTRIES, INC., v. BLUFORD
    (June 2, 1930. Opinion and Decree.)
    H. G-. Fields, of Farmerville, attorney for plaintiff, appellant.

      B. K. Watson., of Marion, attorney for defendant, appellee.
   DREW, J.

Plaintiff, claiming to be the owner of the following described lands situated in Union parish, La., viz: N. E. Vi of S. E. 14, section 34, and S. E. 14 of N. E. 14, section 34, and S. W. 14 of N. W. 14 and N. W. 14 of S. W. Vi, section 35, all in township 22 north, range 2 east, including all timber standing and growing thereon, sued defendant for damages resulting from the trespass of defendant upon said land and cutting timber thereon and removing it, in the sum of $250, with legal interest from judicial demand. It alleges that the act of cutting and removing the said timber by defendant was done willfully, maliciously, unlawfully, and against plaintiff’s consent, permission, or approval.

Plaintiff further alleges that • defendant has gone upon said land of plaintiff and fenced part of it described as N. W. Vi of S. W. Vi, section 35, township 22 north, range 2 east, and is engaged in farming and cultivating it; and that defendant has also taken possession, fenced, and is cultivating a portion of said N. E. Vi of S. E. Vi, section 34, same township and range, which land so possessed, fenced, and used, is worth $400. All of the alleged acts of trespass, plaintiff alleges, have damaged it in the sum of $250, for which it prays for judgment, with legal interest from judicial demand. It also prays to be declared the owner of all the above-described land and to be restored to possession of that portion which defendant has in possession.

Defendant admits that.he has cut timber on the N. E. Vi of S. E. Vi of section 34, township 22 north, range 2 east, which forty acres he claims to own and to have been in possession of “continuously, physically, uninterruptedly, peaceably, undisturbed, publicly, undisputed, notoriously and unequivocably’’ for a period of thirty years; that his possession has been in good faith and under the bona fide belief that he was the owner and possessor by legal title of the said forty acres of land, and pleads his said possession in bar of plaintiff’s action; he denies all the other allegations of plaintiff’s petition specifically.

The learned judge of the lower court has rendered a well-prepared, written opinion in this case, and, in so far as it applies to the timber cut on the three 40’s not claimed by defendant, we adopt it as the opinion of this court:

“According to plaintiff’s estimate of the timber cut on the entire tract of one hundred and sixty acres of land, as per testimony of plaintiff’s witnesses, the quantity in foot measurement is fixed at forty-eight thousand feet, or the equivalent of nine hundred and sixty-four cross-ties. And according to the testimony of plaintiff’s witnesses, the forty acres claimed by defendant has eleven and a half acres in timber, which is not fenced in, and the remainder of the forty is under fence and in cultivation, or a portion of it in cultivation. The timber was cut on the part not under fence. Further testimony for plaintiff shows that one hundred and fifty-one trees were cut on the N. E. Vi of S. E. Vi, Sec. 34 (the forty acres claimed by defendant as owner) cut in 1925 and 1926, and thirty-nine trees cut in 1928; on S. E. Vi of N. E. Vi, Sec. 34, twenty trees were cut in 1925 and 1926, and ten trees cut in 1928; on S. W. Vi of N. W. Vi, Sec. 35, ten trees were cut in 1925 and 1926; and on N. W. Vi of S. W. Vi, Sec. 35, ten trees were cut in 1925 and 1926. Plaintiff first learned of the cutting of said timber about two months before this suit was filed.

“Plaintiff’s witnesses estimate that the part in cultivation of the land claimed by defendant had been farmed sixty or seventy-five years ago, but no sign of fence or enclosure within the last fifty years. The testimony of plaintiff’s witnesses shows conclusively that quite a lot of timber had been cut on the one hundred and sixty acres described, in the forties adjoining the forty claimed to be owned by defendant and very close to it; but the serious difficulty encountered in considering the said testimony is, who cut the timber? Defendant admits cutting the timber on the forty acres claimed by him, but denies that he cut any timber on any of the other forties. Plaintiff’s witness, W. P. Addison, testified that John Bluford, defendant, admitted to witness that he (Bluford) cut the timber, but Bluford denies this on the witness stand, stating that he admitted cutting the timber on the forty acres claimed by him, and that only. No other witness testifies to Bluford having admitted cutting the timber on the other three adjoining forties. Bluford admits on the witness stand that he cut the timber on the forty claimed by him, but denies cutting any of the timber cut on either of the other forties. And that is the way the evidence stands on the question of who cut the timber.

“With the evidence standing this way, it is impossible to determine with any degree of certainty who cut this timber on the three forties adjoining the forty claimed by Bluford. It may be true, as contended by plaintiff, that Bluford cut it; and it is a very suspicious fact supporting that conclusion that the timber claimed to have been cut on these three forties was cut right up against the lines of the forty Bluford claims to own, and, apparently, not very far from Bluford’s house, from which it would appear that he would know who did cut it, if he did not himself do it; but he testifies most emphatically that he neither cut it himself, nor knows who did it. Of course, it is possible for him to be telling the truth in this statement. His manner of testifying did not convince the court that he was lying, and the court would be stretching its discretionary authority to so conclude, and, hence, declines to do so.

“The law imposes the burden upon the plaintiff of making his case certain by the introduction of competent, sufficient and satisfactory testimony, or evidence. A probable case will not suffice. Plaintiff has not done this, insofar as proving who it was that c.ut and removed plaintiff’s timber from the three forties adjoining the forty claimed by defendant. The fact of the cutting and removal and the consequent damage to plaintiff is fairiy well established, though not with the certainty, in dollars and cents, that could have and should have been done, considering the fact that the court is expected to render judgment for a definite and fixed sum, if for anything at all. This, of course, is intended to apply to the trespass upon the timber cut and removed from the three forties not claimed by defendant: the forty claimed by defendant is a different proposition, and calls for a different solution, as to timber as well as land.’’

The N. E. % of S. E. % of section 34 is claimed by defendant as owner, pleading as a basis of his title possession as owner for more than thirty years. Plaintiff has shown by deeds translative of property title back for many years, but has not shown any acts of. possession. Defendant did not offer in evidence or claim to have any paper title to said 40 acres, relying solely on his actual corporeal, uninterrupted, and unequivocal possession as owner for more than thirty years.

Twenty-eight and one-half acres of the said 40 is under fence and is being cultivated by defendant. All of the testimony shows that defendant has had actual corporeal possession as owner of this part under inclosure for more than forty years; that his possession has been undisputed and undisturbed during that time. His plea of prescription of thirty years as to that part of the N. E. % of S. E. % of section 34, township 22 north, range 2 east, under inclosure, must be sustained and defendant declared to be the owner thereof. Article 3490, Revised Civil Code of Louisiana.

Defendant contends that his possession extends to the remaining 11% acres that are not under fence as well as to the remainder of the 40 under fence. His testimony is that forty or fifty years ago, when a small boy, he cultivated that part of this 40. His testimony is, however, very uncertain on that point. The preponderance of testimony is that the 11% acres has not been cultivated in the last fifty years, and that it had grown up in pine timber thaf was fifty years old; that there was no vestige of a fence around this part of the 40, and the witnesses who had lived in the neighborhood for forty-five and fifty years testified that they never saw a fence around this part of the 40, nor do they remember it ever having been worked. Defendant does not claim that he has exercised any act of possession since he claims to have worked it forty or fifty years ago. He did not claim to use it for pasture or to take firewood from, or any act of possession of any kind.

“How favorable so ever prescription may be, it shall be restricted within just limits. Thus, in the prescription of thirty years, which is acquired without title, it extends only to that which has been actually possessed by the person pleading it.” Rev. Civ. Code, art. 3503; Brewer vs. Y. & M. V. Ry. Co., 128 La. 544, 54 So. 987; Roussel vs. Ry. Realty Co., 132 La. 379, 61 So. 409, 833.
“To maintain the plea of prescription of 30 years acquirendi causa, there must be corporeal possession in the beginning, which must be continued or else the possession must be preserved during the entire period by external and public signs announcing such possession, and the intention to possess, and such rule applies with equal force to swamp as to other lands.” Loeb vs. Fetzer, 155 La. 659, 99 So. 520.
“The principle that possession of a part of a tract is possession of the whole applies when the possession has been under title calling for the whole, and does not apply where the possession has been without title, in which case the possessor cannot acquire by prescription beyond the limits of actual occupancy.” La. Land Co. vs. Blakewood, 131 La. 539, 59 So. 984.

To support the plea of thirty-year prescription, the defendant must show with legal certainty an uninterrupted, continuous possession as owner for the time necessary to prescribe. Rev. Civ. Code, art. 3500; Clemens vs. Meyer, 44 La. Ann. 390, 10 So. 797; Loeb vs. Fetzer, cited supra; Howell vs. Metropolitan Land Co., 127 La. 399, 53 So. 664.

“The possession necessary for this species of prescription, when, it has commenced by the corporeal possession of the thing, may, if it has not been interrupted, be preserved by 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.” Rev. Civ. Code, art. 3501.

Defendant has failed to preserve his possession of this 11% acres not under inclosure, if he ever had any possession. The plaintiff has paid the taxes on the entire 40, and same is assessed to plaintiff.

If defendant ever had any corporeal possession of the 11% acres of this 40, he lost that possession by failure to exercise actual possession for ten years. Hanson Lbr. Co. vs. Riggs Cypress Co., 130 La. 772, 58 So. 567; Rev. Civ. Code, art. 3444.

Where adverse possession is without title, a person claiming under such possession cannot claim beyond inclosures. Ellis vs. Prevost, 19 La. 251; Richard vs. Poitevent & Favre Lbr. Co., 10 La. App. 608, 120 So. 235, 121 So. 357. The burden of proof to establish prescription rests on him making the plea. Chapman vs. Morris Bldg. & Land Imp. Ass’n, 108 La. 283, 32 So. 371. Defendant has utterly failed to overcome the burden that rests on him in so far as the 11% acres is concerned.

The mere plowing of this land when a boy does not in itself prove possession by defendant as owner for himself, and he does not contend that his ancestors ever possessed it. The court said in the case of Clemens vs. Meyer, 44 La. Ann. 390, 10 So. 787:

“To obtain title by prescription of thirty years, the intention of possessing as owner, as well as the possession of the land must be proven, and it is not enough to show cultivation of the land.”

For the past forty or fifty years defendant has done nothing to preserve in himself the actual possession of this tract of land. He has not paid taxes on it. He has not preserved any possession by external or public signs. He has not maintained any roads on it, and has exercised no more possession of this 11% acres of land than he has of the other three 40’s claimed by plaintiff in this. suit, all of which are adjoining this tract.

In Hanson Lumber Co. vs. Baldwin Lumber Co., 126 La. 347, 52 So. 537, 539, the court said:

“Actual possession is the real or corporeal detention of property. Civ. Code, arts. 3434, 3442. The possessor must hold the thing ‘in fact.’ Civ. Code, art. 3487. Natural possession is that by which a man detains a thing corporeally, as by occupying a house, cultivating ground, or retaining a movable in possession. Civ. Code, art. 3428. Such a possession in its nature must be visible, open, and public.”

The defendant’s plea of thirty years’ prescription in so far as it applies to the 11% acres not under inclosure in the N. E. % of S. E. % of section 34, township 22 north, range 2 east, is overruled, and his demands to be declared the owner thereof are rejected; said property is decreed to be owned by the plaintiff herein.

Defendant admits cutting the timber on this 11%-acre tract, and the amount cut from it amounts to nineteen twenty-fourths of the whole amount cut. The evidence shows there was cut from all the land 48',-000 feet of lumber of a value of $5 per thousand. It follows, therefore, that 38,000 feet were cut from this 11% acres, at $5 per thousand, making $190, the amount due plaintiff by defendant. Without going into a long discussion, it is enough to say that we do not think defendant acted in bad faith in cutting the timber, and can only be bound for the value of the timber as standing timber, which was proven to be worth $5 per thousand.

It is therefore ordered, adjudged, and decreed that the judgment of the lower court be reversed, and that the plaintiff, Frost Lumber Industries, Incorporated, do have and recover judgment against the defendant, John Bluford, in the full sum of $190, with legal interest thereon from judicial demand until paid. It is further ordered, adjudged, and decreed that the plaintiff, Frost Lumber Industries, Incorporated, are hereby decreed to be the true and lawful owners of all that part of N. E. % of S. E. % of section 34, township 22 north, range 2 east, situated in Union parish, La., that is not under inclosure, being about 11 % acres, more or less. It is further ordered, adjudged, and decreed that John Bluford, the defendant, is decreed to be the owner of all that part of N. E. % of S. E. % of section 34, township 22 north, range 2 east, situated in Union parish, La., that he now has under inclosure, being 28% acres, more or less, and that the possession of the said 11% acres be restored in plaintiff. Costs to be paid by defendant and appellee.


source: Caselaw Access Project

author: HIGGINS, J. JANVIER, J.

license: Public Domain

text:
    No. 11,794
    Orleans
    UNITED STATES FIDELITY & GUARANTY CO. v. CRAIS
    (April 7, 1930. Opinion and Decree.)
    (June 16, 1930. Rehearing Refused.)
    (July 19, 1930. Writ of Certiorari and Review Refused by Supreme Court.)
    Spearing & Mabry, of New Orleans, attorneys for plaintiff, appellee.
    Harold A. Moise, of New Orleans, attorney for defendant, appellant.
   HIGGINS, J.

Plaintiff sues defendant for $500 on a contract alleged to have been entered into between the parties on May 13, 1925. Defendant admitted his signature, but denied liability for want of valid or legal consideration. There was judgment in favor of the plaintiff as prayed for, and defendant has appealed.

The pertinent part of the contract reads as follows:

“May 13, 1925.
“In consideration of the discharge by the United States Fidelity & Guaranty Co. of its liability to the Canal Commercial Trust & Savings Bank of New Orleans, as surety for and on account of J. E. Johnson, Manager of the LeBreton Market Branch of the Canal Commercial Trust & Savings Bank of New Orleans, the undersigned bind and obligate themselves to pay to the United States Fidelity & Guaranty Co. the amount set opposite their respective names, or so much thereof as may be necessary to refund and reimburse the said company for any loss, damage or expense resulting from, and growing out of the bond herein above referred to, subject however, to the following conditions and provisions, to-wit:
“1st. ‘The amount of liability of the United States Fidelity & Guaranty Company shall be ascertained by an audit of the books of said bank for a period not extending beyond the term of employment of said Johnson, which audit is to be made in the presence of said Johnson.’ ”

The agreement also contains other provisions providing for the surrender by Johnson of certain movable and immovable assets to the plaintiff to make restitution for the loss. All of the conditions of the contract have been fulfilled, except the payment by defendant of the sum of $500, which he agreed to pay to the plaintiff under the terms and provisions of the contract.

The sole question before the court is whether or not the contract is supported by a valid consideration.

The record shows that Johnson was employed by the Canal Commercial Trust & Savings Bank as manager of one of its branches. It was discovered that he was short in his accounts in a sum estimated to be over $30,000, due to overdrafts and acts of embezzlement by him.

The plaintiff, in consideration of a certain premium, had issued a blanket bond, or insurance policy, covering all of the employees of the Canal Commercial Trust & Savings Bank in favor of the bank protecting it against loss from dishonesty, embezzlement, etc., by its employees. When Johnson’s misappropriation of the bank’s funds was discovered, he desired to avoid criminal prosecution and adverse publicity, and therefore called for a meeting between his friends and the officers of the plaintiff company to see what could be done. At the meeting there were the officers and attorneys of plaintiff, Johnson and his attorney, and a number of Johnson’s friends. Johnson’s idea was that, if he could make restitution, there should be no criminal prosecution or publicity of his dishonesty. He proposed a surrender of all of his property and assets to be applied against his shortage,' which the plaintiff was required to pay the Canal-Commercial Trust & Savings Bank under the blanket bond, or insurance policy whereby the bank was guaranteed or insured against any loss as a result of embezzlement, or dishonesty, etc., of its employees, and the remaining amount, if any, shown by an audit, would be paid by his friends. Johnson insisted that a provision be placed in the contract that, in consideration of complete restitution, the plaintiff would agree that there would be no criminal prosecution and adverse publicity. The attorneys for the plaintiff pointed out that the matter of criminal prosecution was entirely with the' district attorney representing the state of Louisiana, and refused to agree to such a proposition. After several drafts of the proposed agreement between plaintiff and the friends of Johnson, the agreement sued upon was finally confected and signed by plaintiff and the friends of Johnson for the amount set opposite their names.

Johnson surrendered all of his assets, which the plaintiff used to liquidate its loss, amounting to $39,589.01. However, the assets of Johnson were not sufficient to cover the loss in full, and plaintiff then called upon the respective signer of the contract to pay the amounts for which they had bound themselves in the agreement. It appears that some of the parties paid, but some did not, and three separate suits were entered against these parties in the civil district court. The eases were separately tried by different divisions of the civil district court, and are now on appeal in this court, but they have not been consolidated. This is the first case argued and submitted.

Plaintiff concedes that a contract for restitution, supported only by the consideration not to criminally prosecute for embezzlement, is against public policy and is illeg'al, null, and void, but contends that the contract between itself and the Canal-Commercial Trust & Savings Bank was one of suretyship and that, upon payment of the loss to the bank, the surety was subrogated by law to the rights of the bank against the embezzler, and therefore had the right to enter into any agreement for the settlement of its civil loss with Johnson and his friends, and hence the agreement was supported by a valid consideration.

Defendant contends that the contract between the plaintiff and the bank was one of insurance, because Johnson was never a party to it and that, before there could have been a contract of suretyship, Johnson would have had to be a principal; that, since Johnson was not a party to the contract, the contract could only be one of insurance, and hence the plaintiff did not have any right of subrogation against the defaulter Johnson, and that, as the plaintiff was legally bound to pay the bank under its blanket policy of insurance, in paying the bank the loss it was only doing what it was already legally obligated to do; that therefore the ‘contract between the plaintiff and the defendant was without any valid consideration, as Johnson and the defendant did not receive any benefit from the contract and plaintiff neither suffered any detriment nor gave up any right whatsoever.

If the contract between the bank and the plaintiff be one of suretyship, then the plaintiff was subrogated to the rights of the bank against Johnson. R. C. C. arts. 3052, 3053, 2160, 2161. In the case of Curtis vs. Kitchen, 8 Mart. (O. S.) 706, it was held that the surety who pays the debt is subrogated ipso facto.

If the contract between the bank and the plaintiff was one of insurance, then It appears that the plaintiff would not be subrogated to the bank’s rights against Johnson. In the case of Carroll & Co. vs. N. O., J. & G. N. R. Co. et al., 26 La. Ann. 447, the plaintiff insurance company insured a shipment of cotton against loss by fire. The cotton was destroyed by fire during transit. The insurance company paid the loss and sought reimbursement from the railroad. The court said:

“The question here is, whether the insurance company can recover its loss from the railroad company? We think not. There was no contract between the two companies; consequently there was no obligation from the one to the other. There was no conventional subrogation from the assured to the assurers, and there was certainly no legal subrogation by which payment by the one entitled them to payment from the other. The insurance company paid the loss for which they received a premium for insuring against to the persons who suffered the same. As there was no contract between it and the railroad company, and as no obligation existed towards them from the railroad company, they have no claim against it.”

The contract between the bank and the plaintiff is not in the record, and we are therefore unable to determine whether it was one of insurance or suretyship. However, we do not believe that it is necessary to determine whether the contract was one of suretyship or insurance, because we do not believe that would make any legal difference in arriving at a decision.

Under the law it appears that the motive for entering into a contract is immaterial so long as it is supported by legal or valid consideration. In the case of Benner vs. Van Norden et al., 27 La. Ann. 473, it was said (syllabus):

“The motives which influence a person to exercise a legal right do not destroy that right or affect its enforcement.”

Therefore, even if the sole motive of the friends of Johnson entering into the contract with plaintiff was to prevent criminal prosecution of him, if the contract is supported by valid and legal consideration, it would be binding. Was the contract supported by a valid and legal consideration?

In the case of Benner vs. Van Norden et al., supra, the Supreme Court cited with ap proval the definition of “consideration” given by Mr. Story in his work on Promissory Notes in the following language:

“ * * * A valuable consideration may, in general terms, be said to consist either in some right, interest, profit, or benefit accruing to the party who makes the contract, or some forbearance, detriment, loss, responsibility or act, or labor or service on the other side; and if either of these ex ist, it will furnish a sufficient valuable consideration to sustain the making or indorsing of a promissory note in favor of the payee or other holder.”

In Corpus Juris, vol. 13, verbo “Contracts,” par. 144, p. 311, the definition of consideration is given as follows:

“A benefit to the party promising, or a loss or detriment to the party to whom the promise is made. ‘Benefit’ as thus employed, means that the promisor has, in return for his promise, acquired some legal right to which he would not otherwise have been entitled. And ‘detriment’ means that the promisee has, in return for the promise, forborne some legal right which he otherwise would have been entitled to exercise.”

It has been uniformly held that a promise to perform an existing contractual obligation to a third person, or the performance of it does not constitute a valid and legal consideration. Johnson vs. Seller, 33 Ala. 265; Harris vs. Harris, 9 Colo. App. 211, 47 P. 841; Merrick vs. Giddings, 1 Mackey (12 D. C.) 394; Havana Press Drill Co. vs. Ashurst, 148 Ill. 115, 35 N. E. 89, Schuler vs. Myton, 48 Kan. 282, 29 P.163; McDevitt vs. Stokes, 174 Ky. 515, 192 S. W. 681, L. R. A. 1917D, 1100; Putnam vs. Wood-bury, 68 Me. 58; Arend vs. Smith, 151 N. Y. 502, 45 N. E. 872; Corpus Juris, vol. 13, verbo “Contracts,” par. 209, p. 352.

In the case of Monroe Inv. Co., Ltd., vs. Ford, 168 La. 475, 122 So. 586, 587, the Supreme Court of this state said:

“But ‘a promise to do what the promisor is already bound to do cannot be a consideration, for, if a person gets nothing in return for his promise but that to which he is already legally entitled, the consideration is unreal.' Therefore, as a general rule, the performance of, or promise to perform, an existing legal obligation, is not a valid consideration.’ 13 Corp. Jur. '351 (Contracts) sec. 207.”

Let us next determine how this principle of law would affect the present case. The record shows that the plaintiff company was bound either by bond or policy of insurance to indemnify the bank against any loss which it might sustain through the dishonesty of its employees. While this contract between the bank and the plaintiff was in existence and supported by a valid consideration, the premium paid for this protection, Johnson, one of the employees of the bank, embezzled money, causing a loss to the bank. Plaintiff then became indebted to the bank for the amount of the loss that the bank sustained through the dishonest acts of Johnson. This amount, at the time the defalcation was discovered, was indeterminate or approximate, but could be ascertained to a mathematical certainty by an audit of the bank’s books and records. The bank, whether the contract between itself and plaintiff was one of insurance or surety, would have to determine the extent of its loss and make satisfactory proof that such loss was sustained. With this legal contractual obligation and debt upon the plaintiff under the contract of suretyship, or insurance, with the bank, the plaintiff, on May 13, 1925, entered into the agreement in question with the defendant. It is obvious that the defendant did not secure any benefit from this contract. It is likewise clear that Johnson did not secure any benefit from it, unless it could be said that he was not criminally prosecuted, but such a consideration would be contra bonos mores, and therefore the contract would be invalid. Did the plaintiff give up any legal right which it might have had under its contract of insurance or suretyship with the bank, as a result of entering into the contract with the defendant on May 13, 1925? We believe not. Under the very provisions of the contract of May 13, 1925, the plaintiff owed the defendant the duty of not paying the bank one single penny for which it was not liable under its contract of insurance or suretyship with the bank. The plaintiff therefore did not waive any legal right which it had as a defense to the payment of any loss which the bank may have sustained as a result of Johnson’s dishonest act because of the contract of May 13, 1925. If the plaintiff had any defense against the bank as to its claim, then, under the very provisions of the contract between the plaintiff and the defendant, it was the duty of the plaintiff to have resisted any claim or action that might have been made or brought against plaintiff by the bank. If the plaintiff did not owe the bank anything, then, necessarily, the defendant would not owe the plaintiff anything; but, if the plaintiff owed the bank the amount of its claim, then it was an obligation that had already come into existence under a previous contract at the time the defendant entered into the contract with the plaintiff on May 13, 1925. The very beginning of the contract specifically says:

“In consideration of the discharge by the U. S. Fidelity & Guaranty Company of its liability to the Canal-Commercial Trust & Savings Bank of New Orleans,” etc.

We therefore believe that there was a failure of a valid or legal consideration, unless it can be said that the plaintiff was subrogated as a surety to the rights that the bank had against Johnson, and that the consideration for the defendant’s contract was the promise to pay the debt of a third person. The record shows that Johnson was not discharged or released from his obligation or any part of it when the defendant signed the contract sued upon, and hence plaintiff did not surrender any legal right which it might have had against Johnson. If plaintiff had released Johnson, then the situation might be different.

For the reasons assigned, the judgment of the district court is annulled, avoided, and reversed, and it is now Prdered, adjudged, and decreed that there be judgment in favor of Gustave H. Crais, defendant, dismissing plaintiff’s suit at its cost.

JANVIER, J.

(dissenting).

The surety company could have refused to settle with the assured for Johnson’s shortage until receipt by it of full proof in the usual form.

Johnson’s friends, including defendant, were interested in prevailing upon the surety to settle with the bank without requiring it to comply with the usual requisites and formalities.

In order to secure this waiver of the usual requirements, defendant, Crais, and the other friends of Johnson signed the document which is now sued on.

I think that full legal consideration was given and received, and therefore respectfully dissent.


author: LeBLANC, J.

text:
    No. 634
    First Circuit
    WELLS v. WHITE-GRANDIN LUMBER CO., INC.
    (June 9, 1930. Opinion and Decree.)
    (June 30, 1930. Rehearing Refused.)
    Pern M. Wood, of Leesville, attorney for plaintiff, appellant.
    Thornton, Gist & Richey, of Alexandria, attorneys for defendant, appellee.
   LeBLANC, J.

The plaintiff brings this suit, as tutrix of her minor child, Preda Lee Boyd, for compensation arising out of the death by accident of the father of said child while in the employ of the defendant lumber company. She alleges that she is the natural mother of the child, whose father was Isaac Boyd, the deceased employee, and .that the child, an illegitimate one, was acknowledged by the father who had had a certificate of its birth filed with the bureau of vital statistics in the city of New Orleans, also had had it christened in the Baptist Church at Slagle, La., where it was born, and also held it out wherever he went, as being his child.

The accident which caused the almost instant death of the deceased employee occurred, according to the allegation of the petition, on August 18, 1923, more than six years before this suit was filed.

The defendant filed three exceptions to the action; one being want of capacity in the plaintiff to bring this suit, another, of no cause or right of action, and, the third, a plea of one-year prescription under section 31 of the Employers’ Liability Act, Act No. 20 of 1914.

Under the requirement of the Compensation Act, the defendant, under reservation, filed its answer at the same time that it filed the exceptions. The answer constitutes practically a general denial of all the allegations on which the claim is based.

On the day the case was tried, the exceptions were argued and submitted; the plea of prescription first, then the exception of want of capacity in the plaintiff, and finally the exception of no cause or right of action. They were each referred to the merits and evidence was then taken. Upon submission of the case on briefs, the court rendered judgment overruling the exception of want of capacity and the plea of prescription and sustaining the exception of no cause or right of action.

Prom this judgment dismissing the suit on the exception, the plaintiff has appealed,

The judgment overruling the plea of prescription was correct. The prescription of one year provided for under section 31 of the Compensation Act (No. 20 of 1914) does not operate against a minor until he has a qualified tutor. See section 16 of the same act, and see also Wilson vs. Lyon Lumber Co., 7 La. App. 169. The plaintiff having testified that she had had herself qualified as tutrix to bring this suit, it was incumbent on the defendant, who had filed the plea of prescription, to show that more than one year had elapsed since her qualifying and before the suit was filed. This, the defendant did not do.

The exception of want of capacity on the part of this plaintiff to bring this suit involved an attack upon her appointment and qualification. Such an attack cannot be made collaterally, as is done in this proceeding, but must be by a direct action. The ruling of the court on this exception w;as also correct.

As the district judge heard the ease on the merits, and as most probably his ruling sustaining the exception of no cause or right of action was based upon a consideration of the evidence which he heard, and as we have it before us, we also will consider it and pass on the merits of the case as we are requested to do in the answer filed to the appeal by the defendant.

The important, and we may say the only, question raised under the exception' of no cause of action, as well as under the issue tendered by the petition and answer, is with regard to the acknowledgment by the alleged father of this illegitimate child.

Under the terms of the Employers’ Liability Law, it is only illegitimate children, duly acknowledged under the provisions of Civil Code, articles 203, 204 and 205, who can recover compensation. As article 204 refers to children against whose parents there were impediments to their contracting marriage at the time of conception, and article 205 refers to children acknowledged by the father without ,the concurrence or consent of the mother, neither of which conditions is presented here, the only form of acknowledgment we are concerned with is that provided by article 203 of the Civil Code, which reads as follows:

“The acknowledgment of an illegitimate child shall be made by a declaration executed before a notary public, in presence of two witnesses by the father and mother, or either of them, whenever it shall not have been made in the registering of the birth or baptism of such child.”

There is no contention here that there was an acknowledgment by declaration before a notary public in the presence of two witnesses. The acknowledgment relied on is based on a certificate of birth sent to the Louisiana state board of health, and on a ceremony alleged to have taken place in the Baptist Church for colored people at Slagle, La., which is alleged in the petition to have been a christening.

The certified copy of the birth certificate annexed to the petition shows that it was signed by “Mrs. Francis Janes, Midwife,” and that it was filed by the registrar of the Louisiana state board of health on April 9, 1923, almost five months after the birth of the child. The testimony, as a whole, leaves it very doubtful to our minds that Isaac Boyd, the alleged father of the child, was present when this certificate was made out, or that he knew anything whatever about it, and there is nothing in the document itself to intimate that there- were any declarations made therein by any one save the midwife herself. Declarations made by her were surely not enough to satisfy the requirements of article 203 of the Civil Code. In Succession of Lacosst, 142 La. 674, at page 684, 77 So. 497, 501, a situation almost similar to the one here presented with reference to this birth certificate had to be considered by the Supreme Court, and in the opinion in that case, we read:

“It would indeed be a dangerous doctrine to hold that the declaration of a midwife, having the birth of an illegitimate child recorded, as to who was the father or mother of the child, is equivalent to an acknowledgment of the paternity or maternity on the part of the person named by the midwife.”

Clearly, the plaintiff has failed to prove, on this point, any such acknowledgment as is contemplated under the article of the Civil Code, nor are we any more convinced that she has done so on the other ground urged by her, that the father had acknowledged the child by having it christened in the Baptist Church at Slagle, La., and having had a godfather and a godmother appointed for it.

Aside from the serious doubt raised by the testimony that the father was present at the alleged ceremony called a christening, or that he was the one who had had the child christened, and aside also of the uncertainty of the form of ceremonia 1 which was performed being a “baptism” izr the meaning of that term under the ritual of the Baptist faith, the plaintiff is confronted with the fact that, regardless of what the ceremony was that took place on the occasion stated, there was no registering of any baptism or registering of any acknowledgment or declaration made by the alleged father in the ceremony. Article 203 of the Civil Code, in requiring, in the absence of an acknowledgment by a declaration in authentic form, acknowledgment by a declaration made in the registering of the baptism of the child, certainly contemplated something more than the mere oral testimony concerning the baptism which we have before us in this case. At its best, oral testimony could not supply the proof necessary to substitute the declaration which has to be made before the notary and .two witnesses. What the law means by a declaration in the registering of the baptism of the child is some kind of record bearing some semblance at least of official approval or authority on the part of those empowered to perform the ceremony. Such record does not exist in this case, or if it does or did, was not, and apparently cannot, be produced.

If it be conceded that plaintiff’s petition sets out a cause of action, we are satisfied the proof fails to show an acknowledgment of the child by the father in the manner required by law, and thereforfe the claim has to be rejected.

It is therefore ordered that there be judgment in favor of the defendant and against the plaintiff rejecting her demands and dismissing her suit at her costs.


author: WESTERFIELD, J.

text:
    No. 13,169
    Orleans
    DE GRUY v. CAIENNIE, INC.
    (May 5, 1930. Opinion and Decree.)
    Legier, McEnerny & Waguespack, of New Orleans, attorneys for plaintiff, appellee.
    William McL. Fayssoux, of New Orleans, attorney for defendant, appellant.
   WESTERFIELD, J.

The question presented by this appeal is the value of the occupancy of the premises 1300 Canal street, for six months. The trial court in its judgment awarded $900, or $150 per month. We are of opinion that the judgment is correct and it is, therefore, affirmed.


text:
    No. 9,795
    Orleans
    CARONA ET AL. v. CANGEMI ET AL.
    (June 16, 1930. Opinion and Decree.)

      B. B. Howard, of New Orleans, attorney for plaintiffs, appellees.
    Theo. Cotonio, of New Orleans, attorney for defendants, appellants.
   WESTERFIELD, J.

Angelo Carona and Salvatore La Rocca, joined as parties plaintiff, bring this suit’ against Guiseppe Cangemi and Vincent Napolitano. It is alleged that Carona is the owner of the property 1301-02 Saratoga street in the city of New Orleans and that he employed La Rocca, a builder and contractor, to make certain repairs to the property; that La Rocca performed his contract satisfactorily, completed the work, and paid all workmen engaged thereon, but that, notwithstanding that fact, Cangemi and Napolitano, who were employed as carpenters in connection with the repairs to the property, recorded claims in the office of the recorder of mortgages for the parish of Orleans in the sum of $500 and $200, respectively. The prayer of the petition asks for citation upon the defendants and Augustus Williams, recorder of mortgages, and for cancellation of the liens resulting from the recordation of the claims. The defendants, Cangemi and Napolitano, through the same counsel, but by separate pleadings, filed exceptions of misjoinder of parties plaintiff and of parties defendant, vagueness, and of no cause or right of action. The exceptions having been overruled, Cangemi and Napolitano answered resisting the erasure of the liens and in reeonvention asked for judgment against plaintiffs, Cangemi in the sum of $376 and Napolitano in the sum of $216. Upon the trial of the case it was agreed between counsel that the benefit of the exceptions would be reserved to the defendants.

There was judgment below in favor of plaintiffs-, as prayed for, and dismissing defendants’ reconventional demand.

In this court the exception of misjoinder is vigorously pressed upon our attention. It will be observed that the proceeding is most unusual and partakes somewhat of the nature of a concursus, though the requisites and formalities essential to that character of action are not complied with. An owner and a contractor, joined, as parties plaintiff, sue two laborers with whom the recorder of mortgages is joined, pro forma, seeking the cancellation of liens which resulted from the recordation of their claims in the mortgage office. It is obvious that neither plaintiffs nor defendants have a common interest in the subject-matter of this suit, and this is the test which must be applied in considering a plea of misjoinder. Reardon vs. Dickinson, 156 La. 556, 100 So. 715. The owner of the property would be beneficially affected by the erasure of the lien, but the contractor does not appear to be interested in that result, particularly since there is no allegation in the petition that any part of his compensation has been withheld by the owner. The defendant Cangemi may or may not be entitled to the recognition of his lien, but its erasure or recognition could not affect the validity of Napolitano’s lien. There is no privity of interest between plaintiffs on the one hand, or defendants upon the other. It results from this situation that plaintiffs’suit must be dismissed as to both defendants. Babineaux vs. Miller, 5 La. App. 605.

We have reached this conclusion most reluctantly, for the case has been pending more than seven years, having been delayed, for one reason or another, in its progress through the courts. It appears to us, however, to present a situation which even the most liberal view of the principles of law referred to cannot sanction.

For the reasons assigned, the judgment appealed from is reversed, and it is now ordered that plaintiffs’ suit be dismissed at their cost.


author: HIGGINS, J.

text:
    No. 13,338
    Orleans
    C. A. BAYLEY & CO., INC., v. FAUST
    (June 16, 1930. Opinion and Decree.)
    Marcus & Corkern, of New Orleans, attorneys for plaintiff, appellee.
    Oliver S. Livaudais, of New Orleans, attorney for defendant, appellant.
   HIGGINS, J.

This is a'suit for $172.80, the alleged balance due for lumber sold and delivered by the plaintiff to the defendant during the months of June and July, 1928.

Defendant denied liability and averred that the plaintiff and defendant .had entered into a written contract on June 21, 1928, whereby the plaintiff sold to the defendant certain lumber at so much per thousand feet and that the lumber was to be paid for as each 10,000 feet of it was hauled away by the defendant; that the defendant had hauled away about 10,000 feet and' was in the act of removing another 10,000 feet when the plaintiff breached his contract and (prevented defendant from hauling any more material away. .

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

It appears from the record that the defendant employed an attorney, who filed an answer for him and also. propounded cross-interrogatories to two witnesses for the plaintiff, whose testimony was taken out of court. This attorney withdrew from the case and the defendant employed another attorney, who likewise withdrew from the case and defendant went to trial without the benefit of counsel. Defendant then employed his present attorney, who filed a motion for an appeal and who urges the court not to consider the testimony taken out of court because certain formalities of law were not complied with, and particularly that the signature of the attorney originally employed was not signed to the stipulation waiving the formalities of law necessary in taking testimony. But without. considering the testimony of the plaintiff's witnesses taken out of court by consent, we are convinced from the testimony of the defendant and the dray receipts offered in evidence that the judgment of the trial court is correct.

For the reasons assigned the judgment appealed from is affirmed.


text:
    No. 13,070
    Orleans
    RAPIER v. JOSEPH J. TROXCLAIR & SONS ET AL.
    (April 21, 1930. Opinion and Decree.)
    (June 2, 1930. Rehearing Refused.)
    (July 19, 1930. Writ of Certiorari and Review Refused by Supreme Court.)
    Prentice E. Edrington, Jr., of New Orleans, attorney for Mrs. R. J. Villere, assignee of Mrs. Henry J. Rapier, plaintiff in rule and appellant.
    W. J. & H. W. Waguespack, of New Orleans, attorneys for Globe Indemnity Company, surety, defendant, appellee.
   WESTERFIELD, J.

Mrs. Henry Rapier filed suit in the district court in the parish of St. Charles on December 15, 1922, claiming damages in the sum of $2,791.94 as against “Joseph J. Troxclair & Sons, a commercial partnership composed of Joseph J. Troxclair, Frank Troxclair and Oliver Troxclair, individually and in solido.” The cause of action was based upon the alleged negligent operation of a Ford truck, the property of Troxclair & Sons, by Frank Troxclair, and the resulting injury to plaintiff.

Upon the trial of the case in the district court judgment was rendered in plaintiff’s favor against “Joseph J. Troxclair & Sons, a commercial co-parfnership composed of Joseph J. Troxclair, Frank Troxclair and Oliver Troxclair, defendants herein, in solido, for the sum of $1,000.00.” A suspensive appeal was taken to this court, and an appeal bond signed by the partnership of Joseph J. Troxclair & Sons as principal, and the Globe Indemnity Company as surety, was furnished.

Plaintiff’s counsel, believing that this bond did not have the effect of suspending execution against the individual members of the partnership, caused a fi. fa. to issue, and seized several items of property belonging to the individuals composing the partnership. The defendants in execution then sued out an injunction against the execution of the judgment which was perpetuated by the district court, and on appeal to this court the judgment of the district court affirmed. Rapier vs. Troxclair & Sons, 1 La. App. 763.

A writ of review was granted by the Supreme Court and opinion of this court affirmed. Troxclair et al. vs. Rapier et al., 159 La. 419, 105 So. 417.

On the merits of the case this court held that there was no liability on the part of the partnership, for the reason that, at the time of the accident, the Ford truck was not being used in the interest of the business of the partnership, but by one of the partners, Frank Troxclair, for his own pleasure. Judgment was rendered against Frank Troxclair alone in the sum of $750.

Following the finality of this decision holding Frank Troxclair alone responsible to the plaintiff, an execution was issued against him, and, the writ being returned nulla bona, a rule was taken upon the surety, the Globe Indemnity Company, to show cause why it should not be condemned to pay the judgment. The lower court held that the surety was not liable and dismissed the rule, whereupon the present appeal was taken.

The question which we are now called upon to determine is whether the surety on the original appeal bond, in the name of the partnership of Troxclair & Sons, is liable for the judgment rendered against Frank Troxclair alone.

It will be recalled that the original conception of this suit involved the liability of the partnership of Troxclair & Sons and of the three individual members of that firm as members of the partnership, and that the original judgment by the trial court was in conformity with this view. This court finding itself unable to concur held that the partnership was not liable, and, the pleadings being deemed sufficient to warrant it, rendered judgment against Frank Troxclair, one of the members of the partnership, for reasons having nothing to do with his membership in that firm. It is true that we held that the suspensive appeal bond, given in behalf of the partnership, suspended execution as against the individual members of that firm, one of whom was Frank Troxclair, but it is also true that no judgment was asked as against Frank Troxclair and none rendered against him, except in his capacity as a member of the partnership; the execution which, with the approval of this court, was suspended by injunction and not directed against Frank Troxclair alone, but against all three members of the firm in their individual capacities. The judgment, execution of which was suspended, was against these three individuals as members of the partnership and not otherwise. ¥e realize that it was probably the intention of defendants to give a bond on behalf of the partnership in the usual form which would have included a provision covering the individual responsibility of the several members of the firm, but this was not done, and the plaintiff did not avail herself of the provisions of Act 112 of 1916 for the purpose of correcting what would appear to have been an inadvertence. At any rate, the surety’s obligation cannot be extended beyond the terms of its suretyship. R. C. C. art. 3039.

The bond upon which the surety company, appellee, is sought to be held, obligates it to respond to such judgment as may be rendered against Troxclair & Sons and the three members of that firm as incident to and by reason of their membership in the firm. Davenport vs. Adler, No. 1918, Orl. App., unreported (see Louisiana and Southern Digest). Baringue vs. Sanderson, 3 Orl. Ápp. 412; Troxclair et al. vs. Rapier et al., supra, but not otherwise.

Our conclusion is that the surety company cannot be held upon this bond given on behalf of the partnership of Troxclair & Sons for a judgment rendered against Frank Troxclair upon a cause of action having no relation to the partnership of which he was a member.

For the reasons assigned the judgment appealed from is affirmed. .


text:
    No. 13,356
    Orleans
    JOFFRION-WOODS, INC., v. ST. JAMES BANK & TRUST CO.
    (March 24, 1930. Opinion and Decree.)
    (April 7, 1930. Rehearing Refused.)
    (May 5, 1930. Writ of Certiorari and Review Granted ■ by Supreme Court.)
    (July 2, 1930. Opinion and Decree of Supreme Court on Writ of Certiorari and Review.)
    Martin, Woods & Woods, of Lutcher, and Chas. T. Wortham, of Donaldsonville, attorneys for plaintiff, appellant.
    P. M. Lambremont, of Convent, and Guión & Upton, of New Orleans, attorneys for defendant, appellee.
   WESTERFIELD, J.

The facts in this case are in substantial accord with the allegations of plaintiff’s petition, and appear at length in our opinion and decree reversing a judgment rendered upon the face of the papers, reported in 10 La. App. 658, 121 So. 378.

As intimated in that opinion, we believe that the case turns upon the interpretation to be given Act 86 of 1926. That act declares:

“That no State or National bank, located in this State, which shall receive for collection or deposit negotiable or non-negotiable paper or securities, payable elsewhere than at the place of its domicile and by it forwarded for collection, shall ever be liable for any loss resulting from the fault or negligence of any bank; State or National, or other person, acting in a fiduciary capacity, through whose hands such paper or securities may pass while in transit.”

Able counsel for plaintiff, in argument and in brief, devote much time and space to a discussion of the difference between a cheek accepted for collection and one accepted for deposit, so far as the relation of the accepting bank is concerned; it being insisted that, when a check is accepted for deposit, unlike the situation where it is accepted for collection, the ownership of the check passes to the bank, and the relation of debtor and creditor is established between the bank and the payee. Henefin vs. Bank, 116 Neb. 331, 217 N. W. 91, 58 A. L. R. 758; Douglas vs. Federal Reserve Bank, 271 U. S. 489, 46 S. Ct. 554, 70 L. Ed. 1051; Martin vs. Hibernia Bank, 127 La. 302, 53 So. 572.

Without discussing this proposition of law, we observe that the act of 1926 exempts hanks from liability upon checks, whether accepted “for collection or deposit,” under the circumstances obtaining in this case. Counsel say that this act has not been skillfully drawn, and that it could not mean what it appears to say. It is argued that the act should have provided that no “loss resulting from the fault or negligence of any bank,” etc., should prevent the initial bank from recovering the amount back from the depositor, but the fact remains that the act does not so provide, and we must deal with it as it is. Since in terms it is applicable, it is controlling. This, evidently, was the view of the trial judge, who, after hearing the case on its merits, rendered judgment in favor of defendant, and we believe his conclusion was correct.

For the reasons assigned, the judgment appealed from is affirmed.


text:
    No. 13,336
    Orleans
    THE CONTINENTAL JEWELRY CO. v. AUGUSTA
    (June 16, 1930. Opinion and Decree.)
    Arthur B. Leopold, of New Orleans, attorney for plaintiff, appellant.
    Raymond Gauche, of New Orleans, attorney for defendant, appellee.
   HIGGINS, J.

This is a suit for $204.50, the alleged balance due on a written contract for certain jewelry which the plaintiff sold to the defendant on July 29, 1928. Defendant denied liability, averring that the jewelry was not as represented and quickly tarnished'; that upon notifying the plaintiff that it was impossible to sell such jewelry the plaintiff exchanged the jewelry and replaced it with other articles of jewelry; that on December 24, 1928, plaintiff’s agent entered into a settlement whereby defendant returned the remainder of the jewelry and paid the sum of $35 cash, in full settlement of the balance of the claim of $204.50, as evidenced by written receipt and discharge in full. There was judgment dismissing plaintiff’s suit and it has appealed.

The record shows that the defendant paid the plaintiff the sum of $72 in installments on account of the indebtedness,but complained, in a letter of November 1, 1928, that the jewelry tarnished and that she had sold the ring to a customer for $5, who returned it because it tarnished within a couple of days and that she was compelled to return him his money. The plaintiff company then substituted other articles of jewelry for that originally shipped to the defendant, and upon further complaint by the defendant the plaintiff’s agent called upon her and the matter was compromised by the defendant returning the remainder of the articles and paying the sum of $35 cash. Counsel for plaintiff objected to any evidence as to what the salesman of the plaintiff agreed to do, on the ground that the written contract between plaintiff and defendant limited the authority of the salesman merely to taking orders. It is unnecessary to determine whether or not the agent had authority to effect a settlement with the plaintiff, because we are convinced that the original and substituted articles of jewelry were not as represented and that therefore there was a failure of consideration, and the plaintiff is not entitled to recover.

The judgment appealed from is affirmed.


text:
    No. 13,385
    Orleans
    BERNADAS v. MILLER
    (June 16, 1930. Opinion and Decree.)
    Quintero & Ritter, of New Orleans, attorneys for plaintiff, appellee.

      Lemle, Moreno & Lemle, of New Orleans, attorneys for defendant, appellant.
   HIGGINS, J.

This matter comes before the court on a motion to dismiss the appeal on the ground that the original return day for the filing of the transcript was fixed on or before February 10, 1930, and the appellant obtained an extension to March 9, 1930, within which to file the transcript of appeal, but that the application for an additional extension filed on March 10, 1930, came too late, and that the order signed to the application on that date extending the return day until April 9, 1930, was illegally and improvidently granted.

Counsel for the appellee contends that the three days of grace for filing a transcript only applies where the transcript is filed within three days after the return day originally fixed. But where the court grants an extension of the return day, the order must be literally complied with on or before the day fixed either by an application for a further extension of time or by filing the transcript on or before the day fixed; otherwise the appeal will be dismissed.

Counsel for the appellant contends that as March 9, 1930, which was the last day within which to file an application for a further extension of time, or the transcript, in this court, fell on a Sunday, that he had all of the next day to apply for an extension or to file the transcript.

The authorities cited by counsel for appellee in support of the motion to dismiss the appeal and his contentions appear to us to be sound, but in no wise are they in conflict with the authorities cited by counsel for appellant in support of his above stated contention.

The authorities appear to hold that where the extended return day falls on a “dies non,” the defendant has all of the next day to apply for an extension or to file the transcript.

The following cases are pertinent and decisive of the issue here presented:

“It appears that the return day, as extended, was the twenty-eighth of February, which was Sunday. The next day, between six and half-past six in the evening, the attorney of the appellant deposited in the clerk’s office the transcript, but the clerk being absent the filing was not indorsed thereon till the succeeding day.
“The transcript being deposited in the proper office, within office hours, must be regarded as filed, although the formal indorsement thereof was not written till the next day.
“The return day occurring on Sunday, we think the appellant was entitled to the whole of the next day to file his appeal.”

State ex rel. F. A. Luling vs. Judge of the Fourth Judicial District Court, Parish of St. Charles, 24 La. Ann. 333.

“That difference is simply this: the last day of the delay fixed by law for the return of such appeals, occurring on a Sunday, the district attorney pro tempore, apprehending the very objection raised by defendant,- caused to be filed in this court, on the ninth day after the judgment was signed, one of the transcripts herein mentioned; the other transcript was filed on the eleventh, and could not have been filed on the tenth day, which as admitted, was a Sunday. That both were filed in time is no longer an open question.” State ex rel. Duffel vs. Marks, 30 La. Ann. 97.
“That statute declares that all commercial paper which shall by law or commercial usage be required to be protested for non-payment ‘shall be deemed to be due, end shall be due 'and payable, on the first day not a Sunday or legal holiday * * * succeeding the third, or last day of grace, the third or last day of grace be a Sunday or legal holiday,’ etc.
“It seems but reasonable and just that a like interpretation should be by this -’ourt placed upon this statute with regard to the return day for appeals, in that it equally affects all judicial proceedings, and stays and restrains judicial action thereon upon dies non.”

Metropolitan Bank vs. Aarons-Mendelsohn Co., 50 La. Ann. 1047, 24 So. 125.

“The rule that when an act is to be done within a given time it may be done afterwards, if nothing occur to prevent it, and that neither the day of serving the notice, nor that on which the act is to be done, are included, do not apply to this case. Code Prac. art. 318; (Garland v. Holmes) 12 Rob. 421; (Palfrey v. Winter) 8 La. 206; (Vancampen v. Morris) 6 Rob. 79; (Harbour v. Brickel) 10 Rob. 419; (French v. Harrod) 9 La. Ann. 21; (McDonogh v. De Gruys) 10 La. Ann. 75; (Brother v. Bank of Louisiana) 10 La. Ann. 147; (Farmer’s & Mfg’s Aid Ass’n v. Strawbridge) 24 La. Ann. 126; (Police Jury of New Orleans v. Garrett) 19 La. Ann. 122; (Cousin & Bro. v. Johnson) 21 La. Ann. 210; (City of New Orleans v. Merchants Mut. Ins. Co.) 21 La. Ann. 213; (Moriere v. Robinson) 20 La. Ann. 229; (Dalton v. Viasco) 18 La. Ann. 651; (Bienvenu v. Factors’ & Traders’ Ins. Co.) 28 La. Ann. 901.
“There exists however an exception, when the last day on which the act to be done is a dies non. (State ex rel. Luling v. Judge) 24 La. Ann. 333.”
Lacroix vs. Bonin, 33 La. Ann. 119.
“Second. On the 16th December, 1880, the appellant applied for and was granted a delay of ten days for filing the transcript. The 9th day, the 25th, was Christmas; the next, the 26th, was Sunday. It was filed on the 27th of December, and was in time, the two last days of the delay not being legal days, should not be counted. (State ex rel. Luling v. Judge) 24 La. Ann. 333.
“The motion to dismiss is, therefore, denied.”

Gueringer vs. His Creditors, 33 La. Ann. 1280.

Counsel for the appellee contends that the law was changed by Act 92 of 1900 and Act 106 of 1908, but a reading of the acts does not bear out his contention.

Since March 9, 1930, which was the last day within which to make application for an extension of time to file the transcript, fell on a Sunday, a dies non, the appellant had all of the following day, March 10, 1930, within which to do so. The application for additional time, having been filed on March 10, 1930, was therefore timely.

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


author: JANVIER, J.

text:
    No. 13,200
    Orleans
    RUSSELL ET AL. v. CELENTANO
    (June 16, 1930. Opinion and Decree.)

      Huddleston Kenner, of New Orleans, attorney for plaintiffs, appellants.’
    Titche, Kiam & Titche, of New Orleans, attorneys for defendant, appellee.
   JANVIER, J.

Plaintiffs, father and mother of a child eighteen months old, bring this suit in his behalf in an effort to recover for damages sustained by the child as the result of an alleged fall from the second floor of the porch of a building owned by defendant. It is charged that the railing of the porch was defective, and that the little boy, while looking over the edge of the porch through a hole in the banisters, lost his balance and fell to the ground below.

On behalf of defendant it is contended that the petition fails to set forth a cause of action because it does not contain any allegation showing that the child was within its rights in being upon the porch. It appears that the porch was attached to premises leased to other parties, and that the parents of the child were not tenants of defendant and had no contractual relation with him. Defendant thus contends that he, as owner of the property, owed no duty to the child except not to wantonly injure it.

It is also argued that the evidence fails to show that the child sustained anything more than very slight superficial injuries.

The most serious defense is that the evidence fails to show to a reasonable certainty, or by a fair preponderance, that the child fell from the porch.

The matter was before this court on a prior occasion, and we then held that, not only did the evidence fail to sustain the allegation that the child fell from the porch, but that it appeared that, in all probability, the injuries were sustained as the result of stumbling while the little tot was trotting along the walk adjacent to the gallery in question. We therefore dismissed the matter as in case of nonsuit. See Russell vs. Celentano, 5 La App. 537.

This suit was thereupon filed, and the evidence introduced here consisted of the testimony taken at the first trial, and, in addition, the testimony of a little negro girl t^ja years old, who claimed to have been present at the time of the accident.

The evidence given by this little girl, Carrie Bell Shirney, in certain respects is rather convincing, but in others leaves the impression that she really did not see the child fall from the porch. At any rate, the trial judge, knowing of the opinion rendered by this court in the first case, and aware of the fact that, in view of the former decree, the only question presented was whether or not the testimony of this additional witness was sufficient to cause the evidence to preponderate in favor of plaintiffs, held that it was not sufficient for that purpose, and dismissed the suit. We are not prepared to say that he erred in determining this question of fact. Lewis vs. Tooke, 152 La. 752, 94 So. 379; Lutz vs. Toye Bros., 1 La. App. 612; Brasher vs. Grant, 3 La. App. 439; Riser vs. Breazeale, 5 La. App. 716; Dupuy vs. Adams, 6 La. App. 321; Lund vs. Schuermann, 8 La. App. 294; Coyle vs. Maestri Furniture Co., Inc., 10 La. App. 24, 120 So. 418.

It is not necessary for us to consider the other questions presented, but we cannot overlook the situation created by the refusal of plaintiffs’ counsel to allow physicians selected by defendant to examine the child in an effort to ascertain the extent of the injuries sustained. Under a decision rendered by us in Bailey vs. Fisher, 11 La. App. 187, 123 So. 166, and the decisions rendered by the Supreme Court in Kennedy vs. N. O. Railway & Light Co., 142 La. 879, 77 So. 777, and Grant vs. N. O. Railway & Light Co., 129 La. 811, 56 So. 897, such refusal, to say the least, throws grave doubt upon the evidence offered by plaintiffs as to the injuries sustained.

The judgment appealed from is affirmed.


author: WEBB, J.

text:
    No. 2870
    Second Circuit
    WREN & TURNER, INC., v. KROUSE (M. J. KROUSE AND CORA SANDERS, Interveners.)
    (July 5, 1930. Opinion and Decree.)
    A. ' S. Drew, of Minden, attorney for plaintiff, appellee.
    R. F. Langston, of Minden, attorney for interveners, appellants.
   WEBB, J.

Wren & Turner, Inc., a corporation, engaged in the mercantile and supply business, holding a judgment against C. P. Krouse, a farmer, issued execution on the judgment under which the sheriff seized the interest of Krouse in the farm cultivated by him as well as the growing crop and movables on the premises, among which were four cows and two calves, six hogs and some poultry and work stock, horses, mules, wagons, and some sheep and goats, and advertised the same for sale.

Cora Sanders, a servant, who kept house for C. P. Krouse, and who had charge of his household economics, attending to the animals and fowls around the barnyard, and M. J. Krouse, a brother of C. P. Krouse, living on a farm a few miles from the farm of C. P. Krouse, intervened in the suit, the former claiming ownership of the cows and calves, hogs and poultry, and the latter claiming ownership of the work-stock, wagons, goats and sheep; and interveners appeal from a judgment rejecting their demands.

. The case involved only issues of fact, and the evidence is conflicting, and the weight to be given the evidence involves the credibility of the witnesses, and from our review of the record we cannot say that the trial court, before whom the witnesses appeared, manifestly erred in rejecting interveners’ demands, and the judgment is affirmed.

DREW, J., recused.


text:
    No. 13,251
    Orleans
    SECURITY CREDIT CORP., INC., v. MENEFEE MOTOR CO., INC.
    (June 16, 1930. Opinion and Decree.)
    Rosen, Hammer, Wolff & Farrar, of New Orleans, and B. B. Purser, of Amite, attorneys for plaintiff, appellant.
    Woodville & Woodville, of New Orleans, attorneys for defendant, appellee.
   HIGGINS, J.

Menefee Motor Company, Inc., a New Orleans corporation engaged in the sale of automobiles, was unable to secure from the Chevrolet factory sufficient cars for the demands of its customers. It learned that Burnham Motor Company, Inc., of Amite, La., had on hand a larger stock of new cars than it could readily dispose of, and ascertained that the Burn-ham Company was willing to sell to it on a wholesale basis two new Chevrolet cars.

Thereupon the Menefee Company sent to Amite, obtained the two cars, and paid the Burnham Motor Company, Inc., therefor.

The Security Credit Corporation, Inc., held chattel mortgages on the two cars, and, claiming that it had not been paid by the Burnham Company nor by any one else the amounts due it, brings this suit against the Menefee Company for the amount of the indebtedness. The suit is brought under Act No. 198 of 1918, which is known as the Chattel Mortgage Act, and which, under certain conditions, makes the purchaser of mortgaged property personally liable to the holder of the mortgage.

It developed that certain formalities had been omitted in the execution of the mortgage on one of the cars, and, for this reason, it is conceded that Menefee Company is not liable to plaintiff for the amount of the mortgage debt on that car, but it is insisted that as to the other car all necessary formalities were complied with and that the defendant is therefore liable for the amount due to the mortgage creditor.

Defendant resists payment on two grounds:

First. That, by its action in allowing Burnham Company to sell the automobiles in question without accounting for the proceeds, the Security Credit Corporation, Inc., has estopped itself to claim that the purchaser is indebted to it.

Second. That certain funds of the Burn-ham Company came into the possession of the Security Company, which funds, if properly imputed by the Security Company, would have extinguished the mortgage debt due on the automobile in question.

The facts with reference to the first defense are that the Burnham Company found itself in straitened circumstances due to its being overstocked with both new and used or secondhand cars and advised the Security Company, through its president, of this condition, and also informed the Security Company that it had sold certain automobiles on which mortgages were extant without accounting to the Security Company, the holders of these mortgages, for the proceeds of the sales.

There is a sharp conflict as to what was then agreed to by the Security -.Company.

On its behalf, it is now contended that the president agreed that the Burnham Company should continue in business; that the Security Company would continue ' t'o make mortgage loans, and that, as cars were sold, the proceeds would be applied to the loans on the respective cars sold; that any surplus earnings would be applied to the old accounts due to the Security Company.

On behalf of the Burnham Company and the Menefee Company, it is contended that the Security Company agreed that it would continue to make loans, that the Burn-ham Company should continue to operate, and that, as the cars were sold, the proceeds would be devoted to the payment of the old accounts, and then, as these old accounts were gradually extinguished, to the payment of the later loans.

On this question of fact as to what was agreed to, the district judge found with the defendant to the effect that the Security Company had agreed that, though it held mortgages on cars in stock, these cars might be sold and the proceeds, instead of being applied to the payment of the mortgages on the cars sold, might be devoted to the extinguishment of the older debts.

A careful review of the'record convinces us that the district judge was not in error in so concluding.

It thus appears that, though the .Menefee Company paid in full for the particular car in question, the proceeds thereof along with the other funds were applied by the Burnham Company to the. payment of other . debts than the mortgage on the particular automobile, and that, though, the Security Company .may not have had particular knowledge of the transaction, it had given its consent to the course of action which was followed, and thus may be said to have consented that property on which it held a mortgage might be sold and the proceeds devoted to some other purpose than the payment of the 'mortgage thereon. It appears to us that this action on its part operates as a complete estoppel and prevents -recovery by it from the Menefee Company.

In Palmisano vs. Louisiana Motor Co., 166 La. 416, 117 So. 446, 448, the Supreme Court said:

“Of course, the ' mortgagee by his representations and conduct may estop himself from asserting his mortgage against the property while it is in the hands of a third person.”

Though the decision in the Palmisano case,' which in some respects is similar to the one we are now considering, was in favor of the holder of the mortgage, the language which we have above quoted shows conclusively that there may be circumstances under which the holder of a mortgage may estop himself to make claim against the purchaser of the ■ mortgaged' property, and we think that the reasoning in that decision makes any other view than the one we have expressed untenable.

In that case it was contended that the holder of a chattel mortgage on a new car was estopped to claim payment under the Chattel Mortgage Act from one who purchased the car from the dealer, because the mortgage holder knew that the automobile was to be placed on the dealer’s floor for sale, and that, having such knowledge, the holder of the mortgage in effect agreed that it might be sold free of the mortgage, ¿nd that he would look to the proceeds of the sale in the hands of the dealer.

The court held that under the circumstances there was no. estoppel. But here the facts were substantially different, in that the mortgage creditor agreed that the proceeds of the sale might be applied to some other debt: In other words, the mortgage creditor in effect said: “When you receive the proceeds of the sale you need not pay it to me on the mortgage debt, but I will agree that it may be applied to another debt instead.”

In view of the conclusion to which we have come, to the effect that the mortgage creditor is estopped to' claim payment from the purchaser of the mortgaged property, it is unnecessary for us to discuss the other point raised by the defendant.

The judgment appealed from is therefore affirmed.


text:
    No. 669
    First Circuit
    DAY v. ALLEN
    (June 30, 1930. Opinion and Decree.)
    Robt. T. Carter, of Greensburg, attorney for plaintiff, appelle.e.
    B. & M. Purser, of Amite, attorneys for defendant, appellant.
   LeBLANC, J.

Plaintiff brought this petitory action against the defendant, praying to be decreed the owner and placed in possession of lot 3 of section 6, township 2, south of range 5 east, containing 38.60 acres of land.' He avers that the defendant is in the actual, physical possession of the property described, without title thereto, and refuses to deliver possession to him without any good or legal excuse.

The defense puts the title at issue, defendant alleging that he has title to the property through his mother- who had acquired it in a partition between Demarcus Davenport Day and his children, after he had contracted a second marriage. He then avers that by error of the civil engineer who surveyed the property and made a plat thereof, and also of the notary who prepared the deed, the proper description was omitted from the act of partition. By this error he claims that his mother’s muniment of title is to the wrong tract of land, and that she actually did take possession of the property in dispute, and so remained until she sold it to him, and he has 'continued in that possession since the date of his acquisition.

It would appear from the foregoing statement of the pleadings and issues in the case that the act of partition and plot of survey referred to would form an important and necessary part of the proof required to correctly decide the question presented. Indeed, the transcript of evidence shows that they both, as well as other documents, were offered in evidence by counsel, for the defendant, but we find none of them in the record. We presume the district judge had them before him, or had access to them, in his consideration of the case. We deem it important that they should be in the record before us for ours. As it does not appear by whose fault it is that they are not in the record, we have concluded that the proper proceeding to take is to suspend judgment for the present and remand the case to the district court for completion of the record.

It is therefore ordered that this case be remanded to the district court for the purpose of supplying the record with the missing documents which have been offered in evidence.


text:
    No. 13,339
    Orleans
    MUNDY v. ORNSBY ET AL.
    (June 16, 1930. Opinion and Decree.)

      Charles J. Mundy, of New Orleans, in propria persona.
    Jules A. Grasser and W. J. Hennessey, of New Orleans, attorneys for defendants, appellees.
   JANVIER, J.

Plaintiff, Mundy, claiming to he the owner of all of the assets of the estate of Octavia Harris, brings this action against Edward and Mary Ornsby, claiming that they are indebted to the estate of Octavia Harris, and therefore to him as purchaser of the assets of that estate, in the sum of $248. The pertinent part of the document which plaintiff attached to his petition and on which he bases this action reads as follows:

“This is to certify that we have received from Mrs. Octavia Harris, Two Hundred and Forty-eight Dollars ($248.00) as a loan on the property in Square No. Forty-Nine (49) Town of Mandeville, that we, Edward Ornsby and Mary Ornsby have purchased through Mr. Lancaster.
“It is further understood that we agree to bind ourselves not to sell this property or not to mortgage this property without the consent of the said Mrs. Harris, or until we shall have paid her in full the Two Hundred and Forty-eight Dollars ($248.00) loaned us.”
“Edward Ornsby.
“Mary Ornsby.”

Defendants raise several objections to the suit, among them that plaintiff, as attorney for the estate, the heirs of which were ignorant people, had no right to purchase the assets thereof. We deem it unnecessary to comment on this feature of the ease because of the conclusion to which we have come after a consideration of the merits.

The main defense is that, after the money referred to in the document had been advanced, an offer to repay it was refused on the grounds that the lender, Octavia Harris, felt herself very much obligated to Mary Ornsby for personal attention and service and considered the loan as having been repaid. This defense raises a question of fact entirely, and on this question of fact the trial court found that the evidence preponderates in favor of defendants.

In the evidence we find the testimony of Mr. Caswell P. Ellis, Jr., a ■ substantial and highly respected citizen, to the effect that the deceased and' one of the defendants, Mary Ornsby, were for years domestics in his employ, and that, in conversations had by him with Octavia Harris, he was informed that she considered the debt as having been compensated and that she did not intend that it should be repaid in cash.

The document sued on is not a note in the sense that, if held by third parties, equities which existed between the maker and the original holder could not be established. Therefore, plaintiff is in no better position than was Octavia Harris, and, under the evidence which has been introduced, if Octavia Harris were alive today, she could not maintain this action, for the reasons which we have given and which the trial judge found substantiated! by the evidence. ■ ■

We cannot refrain from commenting on the mutilated condition of the record in this matter resulting from the attempt of one of the attorneys to forcibly call to our attention certain statements in the record. In the judgment of the writer, the underlining of statements specially attractive to one counsel or the other and the making of marks on the margin is highly reprehensible and should be discontinued.

The judgment appealed from is affirmed.


author: MOUTON, J.

text:
    No. 655
    First Circuit
    KILLBOURNE ET AL. v. R. J. HACKNEY LUMBER CO.
    (June 30, 1930. Opinion and Decree.)
    E. S. Muse, of St. Francisville, attorney for plaintiff, appellant.
    Albin Provosty, of New Roads, and Dubuisson & Burleigh, of Opelousas, attorneys for defendant, appellee.
   MOUTON, J.

There is no note of evidence in' this record, and which is not certified by the clerk.

It does not appear that these irregularities are imputable to appellant.

The record being incomplete it is ordered that it be, without delay, returned by the clerk of this court to the clerk of the district court of the parish of Pointe Coupee who is hereby directed to complete the record by -inserting therein the testimony or evidence produced in the case, documentary or otherwise, and that within thirty days from the reception of this order that said clerk return the record when so completed to the clerk of this court at Baton Rouge, Louisiana, and that the record be certified by the clerk of the district court of Pointe Coupee as directed and required by law.


author: DREW, J.

text:
    No. 3759
    Second Circuit
    WINN v. SCARBOROUGH
    (July 5, 1930. Opinion and Decree.)
    Rusca & Cunningham, of Natchitoches, attorneys for plaintiff, appellee.
    Breazeale & Hughes, of Natchitoches, attorneys for defendant, appellant.
   DREW, J.

This case is before us on rehearing, and after a careful study of same, we are convinced that our former decree is correct.

It is therefore ordered, adjudged and decreed’ that the former judgment of this court be reinstated.

Costs of appeal to be paid by appellant.


text:
    No. 639
    First Circuit
    WACO v. HILLYER-DEUTSCH-EDWARDS, INC.
    (June 9, 1930. Opinion and Decree.)
    (June 30, 1930. Rehearing Refused.)
    Pern W. Wood, of Leesville, attorney for plaintiff, appellant.
    Thornton, Gist & Richey, of Alexandria, attorneys for defendant, appellee.
   MOUTON, J.

The district judge has rendered herein the following opinion-:

“The plaintiff, George Waco, claims that he received a hernia while loading timber for the defendant company, on September 7, 1928.
“The defendant, Hillyer-Deutsch-Edwards, Inc., denied any injury on the date mentioned, but alleged that plaintiff suffered from a hernia long prior to the time -that he claims he was hurt.
“The plaintiff’s testimony (Tr. 1, ,2) to-the effect that he received the hernia ora September 7, 1928, is substantiated only by the testimony of his wife, who said that her husband had no hernia prior to the time mentioned (Tr. 24).
‘‘This testimony is contradicted by the conduct and statements of the plaintiff himself, by strong circumstantial evidence, and by two witnesses whom I believe.
“The plaintiff admitted that he never reported the accident to any of the company officials, and never told anybody about getting hurt except Sam Randle (Tr. .6, 8).
“In August, 1929, about a year after the alleged injury, the plaintiff was discharged, and during all of that time he never made any complaint to any person except one of the company’s doctors, who has been dead almost a year. (Tr. 7, 48) Notwithstanding plaintiff’s testimony to the effect that he stayed in bed two or three weeks after the accident (Tr. 10, 11), and that the doctors told him that he could do light work within two or three weeks after the accident, the record shows that between September 1, 1928, and August 5, 1929, plaintiff lost only seven days in September, beginning with September 15, and four days in January, 1929, beginning on the 11th, and that he lost no time at all on the date he alleged he was injured, nor for a week thereafter.
“As noted above, plaintiff was off a week in September, 1928, beginning on the 15th, but on this occasion, when he left work, he reported to his foreman and to an inspector that he was leaving because he was sick (Tr. 3). He made the same statement to Mr. Kennedy, the yard foreman (Tr. 6). About this time McKinley Taylor saw George Waco in Dr. Scott’s office, but at that time Waco made no complaint about the hernia, and when asked if Waco seemed to be suffering, the witness said, ‘About like he is now, he wasn’t making any cry’ (Tr. 17). On this occasion Taylor said he heard Dr. Scott ask the plaintiff how his stomach was acting (Tr. 18).
“For about a year subsequent to the date ' of the alleged injury plaintiff continued to do the same class of work — loading lumber’ — that he had been doing for about two years. The two men who worked with him in loading lumber and timber on cars for approximately two years, testified that they never saw him get .hurt, never heard about it, and that they never heard the plaintiff complain of being hurt. (Tr. 28, 29) Kennedy, the yard foreman of the defendant company, who had his office right on the car line, where the cars were being loladed by the plaintiff cars, during a good part of the time being right in front of the office, testified that no complaint of any injury was ever made by the plaintiff to him (Tr. 33, 34); that he saw the plaintiff working regularly; never noticed anything unusual about him; and that the plaintiff never complained of any suffering (Tr. 34).
“The plaintiff testified that Sam Randie, one of the men with whom the plaintiff worked as a member of the loading crew for nearly two years, knew about the injury, and that on one occasion the plaintiff took Randle in the woods and showed him the hernia (Tr. 27). This Sam Randle denied positively (Tr. 27, 28.)
“Dr. Cather testified that in the latter part of July, 1929, plaintiff came to him to have a rash on his legs treated, and at that time the witness noticed the hernia on the plaintiff, and asked him about it, whereupon the plaintiff said that he had had it for four or five years, and that ¡t did not bother him (Tr. 38, 39).
“The plaintiff testified that on September 7, 1928, Dr. Scott gave him a prescription for some salve to use on his hernia, and at. the same time had a drug store send the plaintiff a truss, to be worn to hold the hernia (Tr. 2, 7, 11, 12, 13). Dr. Cather examined the records in both of the drug stores in Oakdale, where plaintiff testified that he got the prescription filled, and the truss, and neither of the drug stores had any record of any prescription filled for the plaintiff on or about the time alleged, nor did either of the said drug stores have any record of any truss that was furnished the plaintiff (Tr. 40).
“The plaintiff denied that he had ever been treated by Dr. Cather for any rash or skin trouble (Tr. 8, 45), and as noted above, Dr. Cather recalled distinctly that he had treated plaintiff for a rash on his legs.
“The testimony of Henry Mitchell (Tr. 19, 20), and Elijah Holmes, (Tr. 21, 22), to the effect that in August and September they saw the plaintiff in bed for two or three weeks has already been shown to be untrue as far as the length of time is concerned, for plaintiff was never absent from his work more than one week at the time during the whole time he was with the defendant company. It is possible, however, that these two witnesses did see the plaintiff in bed with a hernia, but if they did, I am convinced it was an old hernia, acquired long before the time plaintiff complains about.
“The record above quoted convinces me that the plaintiff has not made out his case.”

In concluding the opinion, the district judge said:

“The record above quoted convinces me that the plaintiff has not made out his case.”
After carefully reading every line of the evidence, we have likewise reached the same conclusion.

Judgment affirmed.


text:
    No. 633
    First Circuit
    SIMMONS v. LONG BELL LUMBER CO.
    (June 9, 1930. Opinion and Decree.)
    S. I. Poster, of Leesville, attorney for plaintiff, appellee.
    Thornton, Gist & Richey, of Alexandria, attorneys for defendant, appellant.
   MOUTON, J.

While in the employ of defendant company loading posts for ship, ment, a post fell on the elbow of plaintiff’s left arm, causing, plaintiff alleges, a total and permanent loss of the use of that arm. Plaintiff was paid compensation by defendant at the rate of 65 per cent of his daily wage, $11.70 per week, during a period of 52 weeks after the accident, but declined thereafter to continue these payments. Plaintiff claims that he was entitled to that weekly compensation for a period of 200 weeks, and brought this suit to enforce the payment of that weekly allowance during an additional period of 148 weeks for which he obtained judgment.

Defendant company appeals.

The moment plaintiff was injured he quit his work and the car was loaded with the posts for shipment by his fellow laborers. A couple of days thereafter he reported to Dr. Frazier, the company’s physician, for treatment. Plaintiff says the post broke the skin on his elbow, deadened or knocked all the feeling out of his arm. He says he is a common laborer accustomed to heavy work, and since the accident has been unable to do work for which he is fitted. He says, however, that since then he has been working in a garage at Rose-pine, doing things that he is able to do, such as changing auto tires, and fixing punctures. He worked at the garage about two months at $1.50 a day, and left there two months prior to the trial. He explains that at night while in bed if he happens to get his injured arm over his head, to move it around he must use the other hand. This indicates that his arm is in an atrophied condition, which he explains in his testimony where he says: “My arm feels just like it is asleep.” He testifies that in the last six months his arm has “grown worse.” As to his arm being in a worse condition when the case was tried than when the accident occurred, there seems to be no disagreement between the witnesses. In other respects, however, the physicians, two for plaintirf and two for defendant, differ on most of the essential points in the case. It is axiomatic that physicians will differ.

Dr. Reed, expert for plaintiff, says he examined plaintiff’s arm about a week before the trial. He found his left arm atrophying, muscles flabby, no tone to them, his left arm smaller than the other, and, if he turned his arm, it dropped “like it had all this bone here out of socket.” He says the muscles of that arm would continue to atrophy, and in the next twelve months his arm would hang from his shoulder and would be “no good at all.”

Dr. Talbot, plaintiff’s other physician, testifying along the same lines, says he found atrophy in the left arm and shoulder of plaintiff, and loss of function therein to practically 100 per cent as to his ability to work at manual labor. This opinion of the physician was the result of an examination made about four or five days before the trial.

This atrophying of the arm to the shoulder Dr. Reed ascribes to the blow plaintiff received on his elbow. He explains that by indirect violence there resulted “an injury to the shoulder, a trauma.” He attributes the atrophy to the nerve injury, and not to non-use or disuse of the arm to which the two physicians sworn by defendant company would ascribe it.

Dr. Talbot is also of the opinion that the atrophy was the result of a nerve injury caused by the blow on plaintiff’s elbow, as such an injury, he testified, affects the whole arm. Drs. Reed and Talbot admit that disuse of the arm might bring about an atrophied condition, but, in the case at bar, concluded after examination that it had been caused by the blow plaintiff received.

Dr. Frazier, physician of defendant company to whom plaintiff first reported after the accident, says that he instructed plaintiff to take certain exercises of the arm to' prevent the atrophying of that member. Plaintiff states that he followed the instructions of the doctor. There is nothing to indicate that he did not. The fact is that plaintiff found work in a garage, as above stated, where he was employed during a period of about two months. He says he fixed punctures on tires, and changed tires. It is obvious that this character of work required the use of the hand and arm very probably in a slight degree, but as much as he could. In explaining the work he was trying to do, he says, 'to use his own language: “Things I can’t do, like a fellow getting to a bolt with his left hand or a generator or a starter, I can’t do it.” This testimony clearly implies that he tried to use his left arm and hand, but was unable on account of his disability, and negatives the idea of nonuse or disuse of his arm which counsel for defendant company would ascribe as the cause of the atrophy.

Dr. Rand, expert for defendant company, having testified about the different types of exercise that might have improved the condition of plaintiff’s arm was directed to the fact that plaintiff had worked in a garage where he had had exercises suitable to his condition. Referring to his work at the garage for two'months, the doctor said:

“I think that it is commendable and has probably been beneficial because none of us can say what condition he would be if he hadn’t worked, I think he would have been worse.”

The fact is that he was worse at the time of the trial than he was immediately after receiving the injury by the post falling on his elbow. Although he took commendable and beneficial exercise at the garage, .and had also followed the instructions of Dr. Frazier, in taking the exercises prescribed for him, still he grew worse as time wore on, and was in that condition more than one year after the accident when the case was tried.

In Hutchinson vs. Louisiana Cent. Lumber Co., 3 La. App. 413, the court said that:

“Where total disability is shown at the time of the trial, the Court will not venture a prediction as to when the condition will change to one of only partial disability or freedom from all disability but will leave this to be determined by the event and will give judgment for total disability.” See, also, Quattlebaum vs. Texas Pipe Line Co., 4 La. App. 406.

Here, the testimony of Drs. Reed and Talbot which is supported by the preponderance of the evidence shows that plaintiff’s disability in the left hand and arm was total and permanent, the court under such evidence will not therefore inquire as to when the plaintiff might recover, but will grant judgment for compensation. The fact is that in this case there is no testimony or evidence which could possibly enable us to fix with any degree of certainty the probable duration of plaintiff’s disability. The proof is that plaintiff took proper and beneficial exercises after the accident without obtaining any improvement in his condition. On the contrary, it grew worse instead of improving. Such being the situation, no improvement could, under the evidence, be expected in the future upon which the court could venture the prediction of future partial disability or freedom from all disability.

The judgment rendered below in favor of plaintiff for compensation during 148 weeks in the amount demanded with legal interest and attorney’s fees, as therein decreed, is therefore affirmed, with cost.