text:
    No. 2378
    Second Circuit
    RIVERS v. ST. LOUIS SOUTHWESTERN RAILWAY COMPANY
    (April 10, 1926, Opinion and Decree)
    (May 7, 1926, Rehearing Refused)

      (Syllabus by the Editor.)
    1. Louisiana Digest — Railroads—Par. 86, 89.
    The engineer of a railway motor car who, upon seeing a cow on the railroad right-of-way start" to cross the track, blew the whistle but did not apply the brakes until it was too. late to avoid the accident, although a prompt application of the brakes would have avoided the accident, was negligent, and the railway company will be held liable in damages.
    (Civil Code, Art. 2315. Editor’s note.)
    2. Louisiana Digest — Appeal—Par. 625.
    The finding of fact by the trial court as to the value of a cow killed by the railway, being clearly correct, is affirmed.
    Appeal from the First Judicial District Court of Louisiana, Parish of Bossier. Hon. T. F. Bell, Judge.
    Suit by Henry Jefferson Rivers against St. Louis Southwestern Railway Company.
    There was judgment for plaintiff and defendant appealed.
    Judgment affirmed.
    Thomas W. Robertson, of Shreveport, attorney for plaintiff, appellee.
    Wilkinson, Lewis & Wilkinson, of Shreveport, attorneys for defendant, appellee.
   ODOM, J.

This is a suit to collect the sum of $200.00, thé alleged value of a cow killed by a motor-car or train operated by defendant on its line of railroad.

The defense is that the engineer in charge of the car was not negligent and that the killing of the cow was unavoidable.

The district judge found .that the engineer was negligent and gave judgment in favor of the plaintiff for $200.00, which, be held, wad the value of the cow killed, and defendant appealed.

OPINION

Plaintiff’s cow was run over and killed in the daytime at Alden. Bridge, on defendant’s line of railroad, . by a motorcar or train owned and operated by defendant.

The car or train consisted of a large 175-horsepower gasoline engine and a coach or car equipped for carrying baggage and passengers, and was 90 feet long.

The car was going south at the time the cow was struck. The track at that point and for a distance of five or six hundred feet north is straight, and we gather from the testimony that there is nothing on either side of it to obstruct the view.

The car or train at the time was going about thirty or thirty-five miles an hour, which is not shown to be an excessive or unusual rate of speed.

Just prior to the time that the cow was struck she was grazing on the side of the track, and one witness says about six feet from it, and when struck she was attempting to cross the track.

The plaintiff called two witnesses who saw the accident, one of whom was standing about 60 yards away and the other near enough to see it and detail the circumstances.

Mr.. Northcut testified that he was standing on the west of the track and that the cow was grazing between the switch and the main line; that when the car was about 150 yards or 450 feet away the whistle was blown; and that he observed no effort on the part of the engineer to stop the car until after the cow was struck.

He says the cow was dragged 450 feet after she was struck.

W. O. Weston testified that he was standing about 60 yards away, says that the whistle was sounded when the car was about 150 or 160 yards (450 to 480 feet) from the cow, and that when the car was about 50 yards from her the cow went upon the track and that:

“He (referring to the engineer) never offered to stop the car until he had dragged her about one hundred and fifty yards (150 yds.), where they pulied her out.”

And that the train did not slow down and that:

“From the time' that he whistled until he hit her he did not stop or anything. He began whistling about one hundred and fifty yards (150 yds.) from her.”

And that:

“He had plenty of time to stop from the time that she stepped on the track.”

One of these witnesses says he heard “no grinding of the brakes”.

Mr. H. Nichols, the engineer in charge of the train, testified that the car had been inspected only a few hours previously and that the brakes as well as the track were in perfect condition.

He says that when he first saw the cow she was on the left-hand side of the crossing (from which we infer that the cow was killed at a crossing); that the track was straight at that point and for a distance of five or six hundred feet to the north; and he was asked:

“How far was the engine from the cow when she started to cross the track?”

And he said:

“I suppose four or five hundred feet.”

And being asked:

“How far was the engine from the cow when she got on the track?”

He said:

“Oh, I suppose twenty-five feet (25') or thirty feet (30').”

And he said further:

“When I saw her going to get on the track or likely to I applied the brakes and emergency.”

On being further questioned as to the distance away from the cow he was when he observed that she was moving towards the track, he said:

“Well, I should say that I was three or four hundred feet when I first saw that she was going on the track — that she was going to try to cross the track.”

He further testified that as soon as he saw that the cow was going to cross the track he applied the brakes and that the “brakes worked good”, and that under the conditions which prevailed at that time he could stop the car within six hundred feet.

Construing all the testimony together, we think the engineer saw the cow moving towards the track when he was four hundred feet away from her. He said that when he saw her going toward the track he immediately applied the brakes and that they worked perfectly. But, in view of the fact that the car could be stopped within 600 feet, according to the engineer’s testimony, and the fact that the undisputed testimony is that it ran 450 feet after striking the cow, making a distance of 850 feet which the car ran after the engineer first saw the cow before it stopped, we are forced to the conclusion that the engineer is mistaken when he says that he applied the brakes and the emergency as soon as he saw the cow going toward the track. If he had applied the brakes when he was 400 feet from the cow, and if the car could be stopped within 600 feet, as he says it could, -then the car would have stopped 200 feet from where the cow was struck. But the testimony is that it went 250 feet further than that.

It therefore follows necessarily that he did not apply the brakes when he says he did.

These facts, based upon the engineer’s own figures, add great strength to the testimony of the witnesses for the plaintiff who say that there was no effort to stop the car until the cow was struck.

We think it very reasonable to assume that the brakes were hot applied until at or about the time the cow got on the track and the engineer says she got on the track when the engine was 25 or 30 feet from her. The car ran 450 feet after she was truck. Therefore, it ran 475 or 480 feet after she got on the track.

We are further of the opinion that if the brakes had been properly applied when the engine was 25 or 30 feet from the cow, the car could háve been stopped within 475 feet in view of the fact that the cow was not knocked off the track but was literally dragged a distance of 450 feet, and that when the car stopped she had to be pulled from under it. Certainly the dragging of the animal impeded the progress of the car to some extent and aided the brakes in bringing the car to a stop.- Unobstructed, the car could have been stopped within 600 feet!

Our conclusion is that when the engineer saw the cow approaching the track at a distance of 400 feet away he thought that she would get across before the engine reached her or that the sound of the whistle would frighten her and cause her to turn back and that he took the chance.

The testimony shows that the cow was moving very slowly, and in view of the speed of the car he could not reasonably expect that she would get across the track before he reached her. The prudent and cautious thing for him to do would have been to apply the brakes and emergency the moment that he saw the cow moving toward the track, and his failure to do so .was negligence. If he had applied the brakes and emergency when he was 400 feet away from the cow and had thereby slackened the speed of the car, we have no doubt that the cow would have gotten across the track in safety. There is no evidence or suggestion that ’the cow did the unexpected by changing her course or by stopping on the track, and that the collision was unavoidable for that reason.

The testimony convinces us that the engineer was negligent in the handling of the car and that it was due to his negligence that the cow was killed.

Counsel for defendant have cited in brief Thompson on Negligence, Section 2012, to the effect that a railroad company is under no obligation to slack its speed and disarrange its time table in order to drive stock off the track, and Sanders vs. Ill. Cent. R. R. Co., 127 La. 917, 54 South. 147, to the effect that express trains need not be run slowly for fear of killing stock.

But these authorities are not in point, for it is not charged nor do we hold that defendant was negligent in operating its car at a speed of 30 to 35 miles an hour; and in the Sanders case, supra, the court found, as a fact, that the engineer was looking ahead and saw the animal “but not in time to even blow the whistle, let alone stop the train”!

Counsel for defendant also cite the case of Moore vs. K. C. S. Ry. Co., No. 1493, decided by this court, which case also is not in point; for the court held that when cattle appear upon the right of way of a railroad a sufficient distance ahead of a train to enable those in carge of the train to stop it before reaching them when the brakes are in perfect condition, no duty devolves upon those in charge of the train to stop it or slacken its speed—

“until the stock in question takes such action that it is reasonably probable they will be struck by the train, or may be struck. The simple fact of stock along the right of way, giving no evidence of going on the track or causing an accident, may be disregarded by those in charge of the train, provided the equipment of the train is in good condition and its operation careful.”

In the case at bar the engineer not only saw the cow when he was 400 feet away from it but at that distance saw that she was moving toward the track, and our holding is that if he had at once applied the brakes the speed of the train would have been so slackened that she would have gotten across unharmed.

AS TO THE VALUE OP THE COW

All the testimony shows that the cow was worth $200.00. She was a pedigreed, registered Jersey milch cow a little over 11 years old. Mr. J. Morgan Cornich, who had lived in Bossier parish for nineteen years and been in the stock business all his life, says that she was the finest Jersey cow he ever saw. Plaintiff paid $200,00 for her three years ago and kept her in first-class condition. The testimony shows that he offered to assess the cow at $200.00 but was informed by the assessor that no one else assessed cows that high.

Mr. Joe Lowry, who sold the plaintiff the cow, testified that he had been offered $250.00 for her, but that he sold her to plaintiff for $200.00 because he knew he would take care of her, and he reserved the right to buy her back at that price in case plaintiff desired to sell her.

For the reasons assigned^ it is therefore ordered, adjudged and decreed that the judgment appealed from be affirmed, with costs.


source: Caselaw Access Project

author: REYNOLDS, J.

license: Public Domain

text:
    No. 2548
    Second Circuit
    STOVALL v. WYATT LUMBER COMPANY
    (April 10, 1926, Opinion and Decree)

      (Syllabus by the Court.)

    1. Louisiana Digest — Appeal—Par. 625.
    The finding of the district judge on a question of fact will not be disturbed by the Court of Appeal unless manifestly erroneous.
    Moore vs. L. & A. Ry. Co., 3 La. App. 731.
    2. Louisiana Digest — Appeal—Par. 495, 588.
    An amendment of the judgment of the trial court must be prayed for by answer to the appeal, otherwise it will not be noticed by the Court of Appeal.
    Lynn vs. Lowenthal, 19 La. Ann. 527. '
    Appeal from the Eleventh Judicial District Court of Louisiana, Parish of Sabine. Hon. H. A. Burgess, Judge.
    Action by Oscar Stovall against Wyatt Lumber Company for compensation under the Workmen’s Compensation Act No. 20 of 1914.
    There was judgment for defendant and plaintiff appealed.
    Judgment affirmed..
    F. M. Wood, of Leesville, attorney for plaintiff, appellant.
    Ponder & Ponder, of Many, attorneys for defendant, appellee.
   STATEMENT OF THE CASE

REYNOLDS, J.

Plaintiff sues for damages under the Workmen’s Compensation Law for the loss of an eye. Defendant pleaded the prescription of one year and also denied liability on the ground that the loss of plaintiff’s eye was owing to disease or an inherited defect and not from any injury received by him in the course of his employment by defendant.

The plea of prescription was overruled by the district court. The case went to trial on these issues and there was judgment rejecting plaintiff’s demand and he appeals.

OPINION

Defendant did not appeal from the judgment overruling its plea of prescription nor did it answer plaintiff’s appeal and ask that its plea of prescription be sustained. Hence the ruling of the lower court on the plea of prescription is not before us for review.

Lynn vs. Lowenthal, 19 La. Ann. 527.

Counsel for both plaintiff and defendant contend in brief that the only question in the case is one of fact, namely, whether the plaintiff lost his eye from an injury received in the performance of services arising out of an incidental to his employment by defendant.

There were three witnesses who testified in- the case. The plaintiff, Oscar Stovall, Dr. J. E. Johnson and Dr. Simonton.

. Plaintiff testified that he had had no trouble with his eye previous to the accident complained of, but his statement is in conflict with the history of his case that he gave Dr. Johnson.

Dr. Johnson testified, pages S, 9, 10:

"Q. Was there any more injury to the eye than just soreness and inflammation?
“A. An old injury in black part; the pupil of the eye was very near closed with a film; looked like it had been there for years.
“Q. You saw an old injury?
“A. That’s what I figured it was.
“Q. Describe the injury?
“A. There was a film formed over the pupil of the eye; I couldn’t say what caused the injury. There was a little inflammation on the outside of the eye, but not deep in the eye.
“Q. What do you mean by a film over the eye?
“A. A formation that grows on the pupil of the eye.
“Q. Does that film take place gradually through the lapse of time, or —:—
“A. Takes time.
“Q. It is a growth?
“A. Yes, sir.
“Q. Was it possible for this to have grown between the 20th of June, the time when his eye got hurt, and the time when you made the examination?
“A. No, sir.
* * * *
“Q. How come him to be taken off compensation, doctor?
“A. He came in and said his eye was all right, and he was ready to go to work.
“Q. Did you examine his eye at this time?
.“A. Yes; the redness and inflammation were gone,' but still evidence of an old injury there.” ' .....

Dr. Simonton, a distinguished physician and surgeon of Shreveport, who specializes in the treatment of diseases of the eye, ear, nose and throat, testified, pages 12, 13:

“Q. When you first examined his eye, doctor, what did you find about the eye?
“A. On the first examination, July 24, 1923, I treated it — right eye, 20-20, which is normal, left eye fingers four feet. The patient came in and said he had very poor vision in his left eye for practically all his life; he could count fingers at four or five feet. Says in June, 1923, some sawdust and shaving flew in his left eye; no record of splinter or steel or anything else. Examination of left eye shows that left eye was smaller than right eye. That indicates that the left eye is undergoing degenerative changes. That the iris of the left eye is paler than the iris of the right eye. That indicates that he has an old diseased eye. On further examination we found that he had acute inflammation of the white part of the eye. At this time there was no action going on in the inside of the eye; if there had, there would have been redness in the colored part of the eye. He* didn’t have this. My examination shows that it was on the outside. We know that this is an old condition just by looking at it. He came again on August 20, 1923, and at that time he had no inflammation in his eye at all, except probably what he called a growth that has no connection with the case whatever. If my memory is correct, at that time he came I treated his eye and he had no inflammation at that time. That the injury he sustained, in my opinion, the sawdust in his eye, has no connection with it at all. It would be impossible for the injury he sustained to have caused an acute flareup of the old trouble or disease, for the reason that there was no abrasion of the cornea at that time nor any other part of the eye, an opening in the eye.
* * * *
“Q. Was there any evidence in the eye that a splinter had stuck in it?
“A. There was not.
“Q. Then you say that this inside injury. which caused partial blindness was brought about by an old condition, an old injury — that correct?
“A. By old disease or old injury.
*‘Q. Was it possible for this to have be.en caused by the inflammation that was in the eye when he visited you?
“A. No, sir.
“Q. I believe you stated that there is no connection between the swelling or inflammation caused by the sawdust and the old injury he had.
“A. No, sir, none.”

From all the evidence in the case we are convinced that plaintiff has failed to show that the injury complained of was received by him while performing services arising out of or incidental to his employment by the defendant, or that such employment caused or contributed in the slightest degree to the loss of the sight of his eye.

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


text:
    No. 2110
    Second Circuit
    CITY SAVINGS BANK & TRUST COMPANY v. MASSEY, ET AL.
    (April 10, 1926. Opinion and Decree)

      (Syllabus by the Court.)

    1. Louisiana Digest — Novation—Par. 4.
    Novation is not presumed; the intention to make it must clearly result from the terms of the agreement, or there is no novation.
    Civil Code, Article 2190.
    Baker vs. Frellsen, 32 La. Ann. 826.
    Hughes vs. Matte, 104 La. 231, 28 South. 1009.
    Appeal from the First Judicial District Court of Louisiana, Parish qf Caddo, Hon. T. F. Bell, Judge.
    Action by City Savings Bank & Trust Company against W. B. Mas.sey, et al., for collection of a promissory note. Judgment for plaintiff. Defendant, appealed.
    Judgment affirmed.
    L. Percy Garrot, of Shreveport, attorney for plaintiff, appellee.
    Seheen & Blanchard, of Shreveport, attorneys for defendants, appellants.
   STATEMENT OF THE CASE

REYNOLDS, J.

This is a suit on a promissory note. The defense is that it has been novated or, if not, then paid, so far as the present plaintiff is concerned.

On these issues the case was tried and there was judgment for the plaintiff and defendants appealed. Plaintiff answered the appeal and asked for damages for frivolous appeal.

OPINION

The note sued on is for $800.00, is dated January 15, 1923, drawn payable to the order of plaintiff sixty days after its date, bears 8% per annum interest from its maturity until paid, signed by W. B. Massey and H. G. Burkhalter and endorsed by F. A. Blanchard and O. L. Pugh.

When it became due the defendant W. B. Massey executed his note for $800.00 and also a note for $1000.00 payable to his own order and by him endorsed in blank and secured by a' mortgage on his home and attached the latter note to the former and tendered them to plaintiff in satisfaction of the note sued on.

Plaintiff refused to accept the notes tendered and surrender that sued qn unless it was agreeable to Mr. Pugh. It was not agreeable to Mr. Pugh, and plaintiff put the note in an envelope with Mr. Massey’s name written on it and has held them subject to his order ever since.

This transaction between W. B. Massey and the plaintiff did not constitute a novation of the note sued on, and the defense of novation has failed.

The other defense is that plaintiff had charged the note sued on to the account of O. L. Pugh and that therefore as between plaintiff and defendants the note had been paid.

This defense should have been presented by exception in limine.

The evidence does not establish this contention.

This brings us to plaintiff’s answer and prayer for damages for frivolous appeal.

In view of the fact that at the time this suit was filed the plaintiff held and still holds the two notes of W. B. Massey which he claims constituted a novation of the one sued on, we are not prepared to hold that the appeal was frivolous, and therefore plaintiff’s prayer for damages on this ground must be denied.

For the reasons assigned, it is ordered, adjudged and decreed that the judgment appealed from be affirmed.


author: MOUTON, J.

text:
    No. -
    First Circuit
    PELLETIER v. STANDARD OIL COMPANY OF LOUISIANA
    (April 1, 1926. Opinion and Decree)

      (Syllabus by the Editor.)

    1. Louisiana Digest — Appeal—Par. 625> 637.
    The finding of the trial court as to a matter of fact namely, the value of services of one who made an abstract of title being clearly inadequate is increased.
    Appeal from the Parish of East Baton Rouge, Hon. W. Carruth Jones, Judge.
    Action by Harvey Pelletier against Standard Oil Company of Louisiana. There was judgment for plaintiff and defendant appealed.
    Judgment affirmed and increased.
    Fred G. Benton, of Baton Rouge, attorney for plaintiff, appellee.
    Hunter C. Leake, Lemle, Moreno .and Lemle, of New Orleans, attorneys for defendant, appellant.
   MOUTON, J.

Plaintiff, an attorney of Thibodaux, was employed by H. Burgard, agent of defendant, to make an abstract of title for two plantations in the Parish of Lafourche, one known as the Raceland Plantation and the other as the Beattie property. The abstracts were made and were accepted by defendant company which plaintiff sues in the sum of $750.00 for services rendered. He appeals from a judgment rendered in his favor for $270.00 with legal interest from judicial demand.

Mr. P. J. Aucoin, an abstractor, was engaged by plaintiff to assis.t him to make the abstracts. Mr. Aucoin testified that his work on the abstracts was somewhat irregular; that most of his work was from 7 to 9 in the morning, and in the evening from 10 to 11 o’clock, which he says was nearly every day. He says, some ten, twelve or fifteen days were taken to complete the abstracts. Evidently, these were not full days as his testimony indicates that about six hours a day were given to the actual work performed.

The evidence shows that plaintiff was employed to make these abstracts, and was not burdened with the responsibility of passing on the Validity of the titles, though the work done by him was somewhat exacting, and required care and dili'gehee, -it- demanded no particular knowledge, ■ technical skill or professional qualifications. . His work was largely clerical and no element of value enters into his ■claim ..because of weighty responsibilities devolving upon him. It is true. that the Raceland Plantation is valued at $500,-000.00 and the Beattie property at $250,-000:00, but this fact did not burden plaintiff with any particular responsibility, as he..was required only to make. accurate abstracts which were to be examined, approved and accepted by the attorneys of the company upon whom rested the duty of passing on the validity of the titles.

Counsel for defendant company contend that the company’s purpose was to obtain the abstracts with a view of purchasing only small fractions of these properties for the erection of filling stations, and that plaintiff’s claim should be proportionate to the value of the property which was intended to be acquired. The testimony of Buslog, witness for defendant, makes it plain that this would be no reason for any difference in the price or charge for the ■ abstracts. Of this there can be no doubt as it was absolutely necessary for •plaintiff to make abstracts of the properties as a whole for the purpose of ascertaining the validity of the titles for the portions however small which the company intended to buy. Plaintiff is therefore entitled to recover for the abstracts for the two plantations for the reasons above stated, and- for the .additional reason that when-he was employed he was not' apprised in • any manner whatsoever that the company-wanted-to-acquire only a small fraction of these properties. Lawyers and abstractors were sworn to make nil" estimate of the. value' bf the services rendered" "by ' plaintiff. ' ’The record "shows a- wide variance or divergence'' in' their respective estimates which range from the amount of $270.00 allowed by the district judge to a sum in excess of the - amount claimed by plaintiff. These divergent appraisals leaves the question ’ as ■ to the real value of plaintiff’s services much in doubt. After a careful examination of the record, and proper consideration of the time taken by plaintiff and his associate in making these abstracts, also the character of the services rendered, we think plaintiff should have judgment in the sum of $350.00 instead, of $270.00 allowed below.

It is therefore ordered, adjudged and decreed, that the judgment in favor of plaintiff be increased to the sum of Three Hundred and Fifty ($350.00) Dollars; and as thus amended it be affirmed with cost. Defendant and appellee to. pay cost of appeal.


text:
    No. -
    First Circuit
    QUEBADEAUX v. CALADIA PRODUCTION COMPANY, INC.
    (December 22, 1925. Opinion and Decree)

      {Syllabus by the Editor.)

    1. Louisiana Digest — Master and Servant —Par. 154, 156.
    An injured employee who dies as a result of a bruise, cut or abrasion on his thumb which becomes infected is covered by Section 38 of "the Workmen’s Compensation Act No. 20 of. 1914, as amended by Act 38 of 1918. '
    Appeal from the Parish ,of Acadia,. Hon. ■W. Wi Bailey, Judge. .... ' ¡

      , Suit by Mrs. Mary Cobena Quebadeaux, the surviving widow of Henry Quebadeaux. for herself and minor son for compensation. under Section 8, Subsection 2 (b) of the Workmen’s Compensation Act No. 20 of 1914 for the death of her husband. There was judgment for plaintiff and defendant appealed.
    Judgment affirmed.
    Medlenka and Bruner, of Crowley, attorneys for plaintiff, appellee.
    Harry Sellers, of New Orleans, attorney for defendant, appellant.
   MOUTON, J.

' This suit was instituted under the Employer’s Liability Act by Mrs. Mary Cobena Quebadeaux as surviving widow of Henry Quebadeaux, for herself and lor her minor son, against Caladia Production Company and the General Accident-Fire and Life Insurance Company of Perth, Scotland.

Judgment was rendered against the Caladia Production Company from which said company appeals.

Henry Quebadeaux, deceased husband of the plaintiff, was injured while working for the Caladia Production Company in the Evangeline Oil Field of Acadia parish. He was engaged in the building of a reservoir for the storage of oil when he was injured. His work consisted in pounding or “tamping” the,dirt as it was dug out of the pit and thrown by his fellow workmen on the sides of the reservoir. In doing this work he was using a pounder which was between five and six feet in length. ’ Near the top end of the handle of the pounder there was a bump from which “a nail came out”. The handle of the pounder' was black, full of oil and grease: and was rusty where the nail stuck out. It was on a Thursday evening that deceased was hurt. He had left. bis home- on the morning of. that-day ,in.perfect health. When he returned home, in the evening from his work, he complained of having bruised, his thumb, and showed his wife a “red place” on his thumb. The next day he exhibited it to The.rsac Doucet, a co-laborer, who said, a “little red spot” could be seen on his thumb. .He was- first.- treated for -his. injury by . Dr. Kramer. The doctor says, the first time he examined the thumb of deceased he saw no abr r n, but could see the infection of the tissues. This examination, the doctor says, was not microscopical. He explains, however, that a break could have been on the thumb without being discern-able to the naked eye, but says, that there “must have been an opening to allow. the infection in”. The physician was questioned as to the general condition of the hands of the deceased. He answered that they were rough and cracked, and presented the appearance of an ordinary workman’s hands. He explained that the infection could not have entered by these cracks or creases, unless there had been an opening in the skin, but that a small cut, just skin deep, could cause an infection. The logical inference is, from that state of facts, that there must have been an abrasion, bruise or cut there, perhaps slight, and not perceptible to the naked eye, but from which the poison entered the thumb of deceased. The primary cause of the infection, the physician says, was from the thumb, where the pus was first formed, and from there travelled to every organ of the body, and finally resulted in blood poison from which deceased died.

Counsel for defendant company contends that under the word “accident” as used in Section 38 of the Compensation Act, that plaintiff is not entitled to recover. The portion of the Act which he quotes^ as pertinent to the issue reads: “The terms ‘injury’ and ‘personal’ injuries shall include only injuries by violence to the physical structure of the body and such diseases or infections as naturally result therefrom.” The only possible deduction here is that by some sudden movement or jerk of his hand, deceased while engaged in tamping the dirt brought it in violent contact with the bump on the handle of the pounder or the nail that was coming out of it, thus causing an abrasion, bruise or slight cut in the skin of the thumb. This injury, though it might have been invisible or imperceptible to the senses, was certainly the result of some violence to the thumb. Dr. Kramer says, deceased had an abscess of the soft tissues of the thumb. The Act speaks of “violence to the physical structure of the body”; which is quoted by defendant. Tissues form a structural part of the human body, and as an abscess appeared in the tissues of the thumb, there must have unquestionably been some violence to the physical structure of the deceased. We do not think, however, that in the interpretation of the Act we should be restricted to such a narrow construction. If we did, its humane purpose would be destroyed, and which would be violative of the doctrine announced in 152 La. 994. The bruise, cut or abrasion permitted the poison to enter the blood stream of deceased, and caused the fatal infection as a “natural result therefrom”. This result brings the case under the terms used in Section 38, of the Compensation Act. It was held in L. R. A. 1916, p. 281, that an employee had the right to recover, under the Compensation Law, for blood poisoning which resulted from an abrasion of the skin; see also same volume, pages 292-93. Under our statutes the Same rule should apply.

In the course of the opinion in the case of Dyer vs. Rapides Lumber Company, 157 La. 1091, 98 South. 677, the court said: “The statute is essentially intended to provide insurance for the employee against all the risks ■ to which' he may be exposed by his employment.” The accident in question, aS we read the statute, is one of the risks intended to be covered by its provisions, and we therefore conclude that the judgment rendered in favor of plaintiff is correct.


text:
    No. 2315
    Second Circuit
    HILLIARD v. MERKEL CONSTRUCTION COMPANY, INC.
    (April 10, 1926. Opinion and Decree)

      (Syllabus by the Court.)

    1. Louisiana Digest — Master and Servant —Par. 160 (a).
    An injured employee, who is shown by the evidence to be not a first class risk for an operation, will not be required, as a condition precedent to the right to prosecute a suit for compensation under the Workmen’s Compensation Law, to submit to an operation for hernia.
    Bronson vs. Harris Ice Cream Co., 150 La. 455, 90 South. 759.
    Appeal from the First Judicial District Court of Louisiana, Parish of Caddo, Hon. E. P. Mills, Judge.
    Action by Milas Hilliard against Merkel Construction Company, Inc., for compensation under the Workmen’s Compensation Law, Act No. 20 of 1914. There was judgment suspending plaintiff’s rights to compensation until he submitted to an operation. Plaintiff appealed.
    Judgment reversed and case remanded.
    Vernis Morgan, Huey P. Long, of Shreveport, attorneys for plaintiff, appellant.
    Wilkinson, Lewis and Wilkinson, of Shreveport, attorneys for defendants, appellees.
   STATEMENT OP THE CASE

REYNOLDS, J.

Plaintiff sues to recover damages under the workmen’s compensation law of Louisiana. Defendant contends that plaintiff’s injury could be cured by a simple surgical operation, unattended by risk of life or health, which operation it tendered him at its own expense as an act of charity. Plaintiff refused to submit to the operation, claiming that it was not unattended with risk to his life.

The district court rendered judgment staying plaintiff’s right to further prosecute his suit and suspending his right to compensation until and unless he submitted to the operation tendered him by the defendant. The plaintiff appealed.

OPINION

The question to be decided in this case is whether plaintiff’s refusal to be operated on for hernia deprives him of the right to recover in this case any damages to which he may be entitled under the Workmen’s Compensation Law.

We know of no provision in the law that makes an injured employee’s right to recover compensation for injuries received in performing services arising out of and incidental to his employment in thé course of his employer’s trade, business or occupation dependent upon the employee’s Willingness to submit to an operation.

In Bronson vs. Harris Ice Cream Co., Ins., 150 La. 455, 90 South. 759; the- Supreme Court dealt with this question -and said:

«* * * section 28 of the act specified the conditions under which compensation shall not be allowed, and does not include among them the refusal to submit to an operation. The act in its section 36, provides further: ‘That no contract, rule, regulation or device whatsoever shall operate to relieve the employer, in whole or in part, from any liability created by this act except as herein provided.’
“To the legal action which the injured employee might have to recover full indemnification the’ act substitutes a right to partial indemnification, but Seeks to facilitate and insure as far as possible the recovery of this indemnity. To that end it takes away defences, simplifies procedure, and creates presumptions. That purpose would in a large measure be defeated if the door were opened for discussion as to whether the injured employee should or should not have recourse to an operation. This would be adding uncertainty where the law clearly desires that thdre should be none.”

This holding of the Supreme Court, it seems to us, closes the door on the right of the courts of Louisiana to require an injured employee to undergo an operation as a condition precedent to hiS right to recover compensation under the workmen’s compensation law.

The Supreme Court, in Bronson vs. Harris Ice Cream Co., Inc., 15 La. 455, 90 South, 759, supra, after deciding the law to be as above quoted from that decision, said:

“At the same time we must recognize that such a thing might be as an injury curable by an operation so simple and unattended by risk that plainly the’ real cause of the disability would be not 80 much the injury as the not making use of the easy remedy at hand.”

•!:We¡ find'some difficulty in entirely harmonizing ¡-.the tWo holdings.

• However, the evidence in this case does not convince us that the proposed operation Would'' be unattended with risk to plaintiff’s life or health.

Doctor Thomas Ragan, a conscientious, skilled and experienced surgeon of Shreveport, . made! '.an examination of plaintiff under orderi: óf ' court and reported, record page 12,.'.that—

“His .mental attitude was that of suspicion and’ fear. ' He left the sanitarium for fear that some operation might be done. Operated,izases in the ward accentuated this fear .with-him. He was ignorant, unreasoning, ,and-, distrusted, every one. He said that every member of his family that had had iin operation. had died. He insisted that ■ he had broken bones and would. be,, an. invalid for the balance of his life.. * * * His blood pressure was systolic 180, diastolic, 105; the heart was enlarged to .the left and his arteries were thickened •* *
“Doctor, what danger would there be in an operation for hernia?
“A. Well, with the ordinary man I would not consider it dangerous. I would not consider the danger was worth giving a thought to; but in his case, as I know his case, .he is not a first class risk; no question ajbout that; no surgeon would say that he was. But I would consider the risk in his case was negligible from an operating standpoint respecting the hernia.
1 “Q: Now, doctor, you have just stated on the stand, that this man is not a first class risk; now I will ask you to explain your interpretation of what is a first class risk for a man that is going to be operated on.
“A'. JYell, as far as that is concerned, we figure, .that in most cases any one can stand an operation in such cases, but ip hjs, casp the risk is negligible. ’
“Q. .-.The- chances are he would recover?
“A.’ Yes, sir.-’
. “Q. But at the same time you would not guarantee that he would not die?
“A. No, sir, not at all.”

Doctor A. P.’ Crain, another distinguished surgeon of Shreveport, testified, pages 68, 73 and 74: . ■

“Q. How serious an operation is it, doctor?
“A. Well, I never considered it serious —of course in the true sense of the word —Dr. Ragan answered that pretty well; answered it as good as I can. Of course you can’t absolutely, guarantee that a man will get well; no one would guarantee it; but I would not consider it serious; I would consider the risk negligible as far as life is concerned.
* * *
“Q. Would you say 180 systolic was normal?
“A. No, it is not.
“Q. Then 180 systolic is abnormal for a man of his age, 41?
“A. Yes, sir, for a man of his age it is too Jiigh.
“Q. Too high?
“A. Yes.
“Q. Would that not be considered in determining whether or not he is a good risk for an operation?
“A. Well, I would consider that, but of course I don’t think it would be dangerous unless he took a general ansesthetic.
“Q. Now would an abnormal blood pressure make him an intermediate risk or not?
“A. Well, just from looking at the man I would not consider him really a first class risk, yet I would not consider him a bad risk.”

Doctor J. C. Willis, Jr., another distinguished surgeon of Shreveport, testified, pages 17, 18, 19:

“Q. You would not class him as an extra bad risk?
“A. No, I would call him an intermediate risk.
■ “Q. Now, the plaintiff states that he is deathly afraid of undergoing an operation; now would that have any bearing upon the probability of his recovery?
“A. I think‘_so, and most surgeons think so when a patient has a premonition that they are not going to survive an operation, they are not good subjects for an operation.
* * *
“Q. Now, is the excessive blood pressure in this case cause you to say that he would not be a good risk for an operation?
“A. Well, that is one of the factors; as I said, I don’t think I would call him an extra good risk because the man says that he fears an operation, and those are never classed as good risks.
* * *
“Q. Doctor, you testified that this man was not such a bad risk; what kind of a risk did you class him?
“A. Well, I would call him an intermediate risk.”

Doctor R. A. Paine, another eminent physician, testified, page 35:

“Q. Would you recommend an operation where a man had a premonition that he was going to die on the operating table?
“A. Well, I would have special regard for a person who believed he was going to die on the operating table but he would have to give me some reason for it to respect it. I would of course hate to advise an operation on a person who thought he was going to die on the operating table.”

Under the law and the evidence in the case we do not think the court warranted in suspending plaintiff’s right to proceed with his suit for compensation until he undergoes the operation tendered him by defendant as an act of charity.

It is therefore ordered, adjudged and decreed that the judgment of the lower court be annulled, and this case is remanded to the trial court to be proceeded with according to law and the views herein expressed.


text:
    No. -
    First Circuit
    MACKEY v. FULLERTON NAVAL STORES COMPANY
    (December 22, 1925. Opinion and Decree)
    (March 2, 1926. Rehearing Refused)

      (Syllabus by the Editor.)

    1. Louisiana Digest—Master and Servant —Par. 156.
    One who is employed to drive pegs into trees in order to extract the. crude turpentine at a specified price per hundred pegs is an employee and not an independent contractor under the Workmen’s Compensation Act- No. 20 of 1914.
    2. Louisiana Digest—Master and .Servant —Par. 154.
    The Workmen’s Compensation Act No. 20 of 1914 should be given a liberal construction.
    3. Louisiana Digest—Master and ' Servant —Par. 156.
    Under Subsection 2 of Section 1 of the Workmen’s Compensation Act Nó. 20 of 1914, the words, “Sugar houses, sugar and other refineries” include turpentine refineries and operations connected therewith. ' ' "
    4. Louisiana Digest—Master and' Servant —Par. 157. '
    The extracting of the turpentine, from trees is a hazardous occuphtidn and consequently is covered by Subsection 3 of Section-1 of- the Workmen’s Compensation Act No. -20 of, £914. ,

      Appeal from Vernon parish. Hon. Hal A. Burgess, Judge.
    Suit by Washington George Mackey against Fullerton Naval Stores Company. There was judgment for defendant and plaintiff appealed.
    Judgment reversed.
    Fern M. Wood, of Leesville, attorney for plaintiff, appellant.
    Thompson and Ferguson, of Leesville, attorneys for defendant, appellee.
   MOUTON, J.

Plaintiff, in February, 1924, while driving, a peg in a tree, the peg flew out and knocked out his left eye. He could then see very little with his other eye, and as a consequence became almost totally blind. He was then in the employ of defendant company, and brings this, suit for compensation against defendant under the Employers’ Liability Act, for 60 per cent of his alleged daily wage of $3.00 for a period of 400 weeks.

His demand was rejected and he appeals.

The first contention urged by defendant is that plaintiff was an independent contractor,, and as such, can not recover under the provisions of the act.

Defendant company is engaged in the manufacture of rosin and turpentine. A wooden peg must be driven in each tree and' on this peg is hung a tin cup into which drips the crude turpentine. This crude, product is carried to. the refinery of the company where it is refined. Plaintiff was employed as a peg driver. • He, with other, peg drivers, worked in “gangs” oypr centuin portions of timber lands as were. pROt.fed op marked out by the company, The; foreman went through the woods about twice a day, and plaintiff says, frequently told him to drive these pegs more substantially and to make a good “crimp”. These pegs had to be driven by plaintiff in the way directed by the company and as required by the foreman. W. E. Woodsworth, superintendent of the woods operations for defendant, says the company could not discharge a peg driver if the pegs were driven by him in accordance with specifications. Evidently the company had the power to discharge if he did not. Plaintiff lived in one of the houses of defendant, and usually in the morning rode a truck of the company to go to his work. He was not a day laborer, but was paid thirty cents per hundred for driving these pegs, and had been in the employ of the defendant since 1923, as was testified to by the bookkeeper of the company. The facts of this case show that defendant company retained the power to direct the way in which the work had to be done by plaintiff over whom it exercised control through its foreman or superintendent, and had- the right to discharge him if he did not come up to the specified requirements. He was carried on the pay roll of the company, lived in one of its houses, and went daily to his work with a number of other laborers engaged in the same service. He was, under this state of facts, a servant within the workmen’s compensation statute, and was not an independent contractor. Burt vs. Davis-Wood Lumber Co., 157 La. 111, 102 South. 87.

The next contention of defendant is that plaintiff was not engaged in óne of the hazardous occupations enumerated in the Workmen’s Compensation Act.

Defendant in its answer admits, as it is by plaintiff alleged, that it was engaged in the manufacture of rosin and turpentine, and - operates a refinery. Subsection 2 of Act 20 of 1914, and which has not been changed by any subsequent legislation, refers to: “Every person performing services arising out of and incidental to his employment in the course of his employer’s trade, business or occupation in the following hazardous trades, businesses and occupations.” In Subsection A of the Act these various trades, businesses and occupations contemplated by the statute or enumerated or referred to. In these various enumerations or references this subsection includes: “Sugar houses, sugar and other refineries”. Turpentine refineries are not mentioned by name, but, we think, may well be comprised under the words, “and other refineries” used in the act, particularly, as subsection 3 of See. 1, provides that if there arise any hazardous trade, business or occupation or work other than those hereinabove enumerated, it shall come under the provisions of this act. An additional reason in support of this position is that the court in Dick vs. Gravel Co., 152 La. 993, in referring to this act said: “It is humane in its purpose, and its scope should be enlarged rather than restricted. Its provisions should be liberally construed so as to include all services that can be reasonably said to come within its terms.” Under this liberal construction of the statute, we are of the opinion that a turpentine refinery may be classed, equally with a sugar house or refinery, as a hazardous trade, business or occupation.

It must be noted that the act does not concern itself with the question as to whether or put the services in which the employee happens to be engaged at the time he recieves an injury, be “hazardous” or perilous. The vital question in a case of this character is as to whether the occupation, business or trade in which he is employed is “hazardous” or not. This is plainly indicated by the provisions of subsection 2 of tbe act. This is the view taken of the statute in Dewey vs. Lutcher-Moore Lbr. Co., 151 La. 672, 92 South. 273, where the court has this to say on the subject, viz:

“It is the occupation in which the person is employed to perform services, rather than his particular duties, that determines the application of the Act.”

Here, the evidence shows that plaintiff with many others, was employed to drive these pegs into the trees upon which the cups were fastened. The turpentine is gathered in these cups from the drippings of the trees. This crude product is sent to the refinery for manufacturing purposes. It is evident that the refinery of the defendant could not be operated without this crude turpentine, because out of this, after the manufacturing process is gone through, a certain article is put on the market. The gathering of the crude turpentine in which plaintiff was engaged, was simply the initial process of the system in which defendant company was engaged in operating its business. It is therefore plain that plaintiff, at the time of the accident, was performing services in the course of his “employer’s trade, business or occupation” and which brings his case directly under the provisions of subsection 2 of Act 20 of 1914, and the amendatory acts.

In the case of Durrett vs. Woods, 155 La. 533, 99 South. 430, the defendant company, which employed plaintiff, was engaged in the business of constructing, repairing, maintaining, demolishing and the removing of oil, gas wells and derricks. Plaintiff in that case had nothing to do with the erection, repair or demolition of these oil, gas wells or derricks. He was employed by defendant, merely as a teamster for the hauling of logs and timber for the construction or repair of the derricks. In referring to the duties of this teamster in the hauling by him of these logs and timber, the court says- in the above case:

“Therefore, the furnishing of same and the" placing of same upon the location for the-well was to all intent and purpose the initiation, the beginning and -.-a part of the construction and erection and- putting in operation of an oil well within the meaning of the statute.” ;

By parity of reasoning, here, likewise, the driving of these pegs in the trees constituted the initial step, the beginning of the system adopted by defendant for the operation of its refinery where the finished product was put out through its manufacturing process. In the case of Dyer vs. Rapides Lumber Co., where the employee while making a fire at night was killed in an isolated locality, the court said the accident arose in the course of his employment, and granted plaintiff compensation. In the course of the opinion in that case the court took occasion to say:

“The statute is essentially intended to provide insurance for the employee against all the risks to which he may be exposed by his employment.”

Counsel for defendant may say there are not necessarily any risks or hazards-attaching to the duty of driving pegs into trees in which plaintiff was engaged when he lost his eye. In the instant case however, there were actually some risks as plaintiff unquestionably suffered the injury of which he complains. Let us say that the particular-work in which he was employed involved ■ no hazards or risks as a general proposition, this could not, however, serve as a shield to defendant because as before stated, it (defendant)- employer of the plaintiff, was running- a turpentine-' refinery which, under- the terms of the act, comes within the- designation or classification ■ of- a hazardous business; trade or occupation.

To a great extent counsel for defendant relies on the case reported in the 151. La. 672, 92 South. 273. Dewey vs. Lufcher-Moore Lumber. Company. .In commenting on this case, counsel says:.

“The Supreme Court held that,.- although the employment in which the employee be engaged is hazardous, unless the employee is connected, in some -manner with the employment, hazardous, he can not recover.”

Here, for the reasons hereinabove stated, ir, was shown that plaintiff was connected with the employment in which the defendant was engaged as the services he w-as rendering were a necessary and indispensable part of the system under which defendant was operating its business as a manufacturer. In support of his contention that plaintiff had no connection with defendant’s employment counsel for defendant offers the following illustration:

“Let us suppose that the Standard Oil Company maintains a sales office in the City of New Orleans, where it is engaged only in the sale of its oil that is refined at Baton Rouge, and a stenographer in that office should drop ’a1 typewriter on her feet. Would the court hold, that because the employer was, engaged in the refining business in Baton Rouge’ it would be held for the damage to the stenographer?”

Clearly -not, because this stenographer which counsel has brought in to illustrate his position, could have no connection with the refining or manufacturing- of oil by the Standard Oil Compalny at Baton Bouge. A situation very -different -from the one presented here, in which it is shown that plaintiff was engaged in the production of the crude turpentine without which the plant of defendant could not have continued in operation. Plaintiff was employed to. perform services for the benefit of defendant which was engaged in a “hazardous” trade, business or occupation, and whether the particular duties assigned him were “hazardous” or not, he is entitled to recover under the compensation act. This we understood, to be virtually the ruling of the court in 151 La. 672, 92 South. 273, Dewey vs. Lutcher-Moore Lumber Company.

' Plaintiff, it is shown, had only one good eye when the accident occurred, and as a result thereof almost completely lost his sight, and therafter was unable to do work of any reasonable character.

He claims sixty per centum of a daily wage of $3.00 for 400 consecutive weeks. We find that he is entitled to 60 per cent on a daily wage of $1.50 for that period, his disability being total and permanent.

It is therefore ordered, adjudged and decreed that the judgment appealed from be avoided and reversed, and it is further ordered and decreed that plaintiff have judgment against defendant for sixty per centum of a daily wage of One Dollar and Fifty cents ($1.50) for a period of Four Hundred consecutive weeks, payable in Weekly installments of Five dollars and Forty cents (.$5.40) per week with legal interest per annum on all installments, from Saturday the 1st of March, 1924, and on all future installments from the date they become due, with all costs of court.


author: LECHE,' J.

text:
    No. -
    First Circuit
    WALSH v. FORSLUND
    (April 1, 1926. Opinion and Decree)

      (Syllabus by the Editor.)

    1. Louisiana Digest — Appeal—Par. 513; Injunctions — Par. 55'.
    In an injunction suit where there- is nothing left to enjoin at the time the case is: decided on appeal; a reversal of the judgment appealed from would, therefore, serve no useful purpose and the appeal must be dismissed.
    Appeal from the Parish of East Baton Bouge, Hon. Wm. Carruth Jones, Judge.
    Action by Mrs. Mary Evelina Walsh against Mrs. Eva Forslund. The defendant ruled the plaintiff into court to show why an interlocutory injunction should not issue to prohibit the execution of the writ of seizure and sale from a judgment refusing -to ;grant- an injunction.' The [defendant has ■ appealed.. : • ■
    Appeal dismissed.
    Cross and Moyse, of Baton Rouge, attorneys for plaintiff, appellee.
    Taylor, Porter, Loret and Brooks, of Baton Rouge, attorneys for defendant, appellant.
   LECHE,' J.

The questions involved in this case, the sequel to that of Mrs. Forslund vs. Mrs. Walsh decided by this court on March 2, 1926, are very similar to those passed upon in the latter case.

Mrs. Walsh who was the vendor of defendant, obtained on October 16, 1925, an order for executory process on a note of defendant for five hundred dollars, secured by ; vendor’s lien and mortgage on a lot of ground in the City of Baton Rouge. The property was seized and advertised for sale. On November 12, 1925, Mrs. Porslund ruled Mrs. Walsh into court to show cause why an interlocutory injunction should not issue, to prohibit the execution of the writ of seizure and sale on grounds substantially the same as those urged by her in her previous suit against Mrs. Walsh. In the previous suit .Mrs. Porslund had sought to set aside the conveyance by which she had acquired the lot of ground, for the reason that Mrs. Walsh did not own the' property at the time she conveyed' it to her, and for the further reason that the property was also affected with a minors’ mortgage when sold to her by Mrs. Walsh. To this rule Mrs. Walsh filed an exception of no cause of action and the proceeding being summary, she at the same time answered the rule. The rule was heard by the trial judge on November 19, and Mrs. Porslund’s application for injunction was denied on December 2, on the ground that her application for injunction did not show a cause or right of action.

On November 28, 1925, Mrs. Porslund paid in full the note in suit, interest thereon, and all costs of court. At the same time she made, in the letter addressed to the sheriff and containing the funds to cover the payment, the following reservation: “We make this payment under protest and solely to avoid collection of the claim by the sale of the property seized under the said writ of seizure and Salé, which sale has been fixed by you for tomorrow.”

On December 11, 1925, Mrs. Porslund took a devolutive appeal from the judgment refusing her application for injunction and that judgment is now before us for review.

In other words, the present appeal presents the question of the correctness of the trial judge’s ruling in refusing to grant Mrs. Porslund an injunction against the execution of the writ of seizure and sale obtained by Mrs. Walsh. We are asked by Mrs. Porslund, the appellant, to reverse the ruling of the trial judge and to decide that she is- entitled to the issuance of an injunction. On the other hand, it is shown by the record that Mrs. Porslund has paid the note, for the collection of which, the writ of seizure and sale was issued, that the writ was satisfied by the payment of the note, and that there is no further use or necessity for the issuance of the injunction. There is nothing left to enjoin.

The reservation made by her in her letter to the sheriff, cannot destroy the effect of the payment. State vs. Rombotis, 120 La. 162, 45 South. 43; Raines vs. Dunson, 143 La. 322, 78 South. 574. It is therefore obvious that the issue involved in the rule taken by Mrs. Porslund has become a moot question. As said by Chief Justice O’Niell in the case of Peoples Bank vs. Levy, 151 La. 585, 92 South. 124. “A revérsal of the judgment appealed from would therefore serve no useful purpose.”

We see no alternative to the dismissal of the appeal.

The present appeal is therefore dismissed at the cost of appellant.


author: ELLIOTT, J.

text:
    No. -
    First Circuit
    DOLESE v. ROUSSEAU
    (April 1, 1926. Opinion and Decree)
    (May 4, 1926. Rehearing Refused)

      (Syllabus by the Editor.)

    1. Louisiana Digest — Sales—Par. 218, 232.
    It is the „ duty of the vendor of an automobile to correct a short circuit in the lighting and ignition system which existed at the time the car was sold, but was not apparent or discoverable by the purchaser at that time.
    Appeal from the Parish of Ascension, Hon. Samuel LeBlanc, Judge.
    Action by Eugene D. Dolese against U. A. Rousseau and Company, Inc. There was judgment for plaintiff and defendant appealed.
    Judgment affirmed.
    Guión and Talbot, of New Orleans, attorneys for plaintiff, appellee.
    Howell, Wortham and Howell, of Donaldsonville, attorneys for defendant, appellant.
   ELLIOTT, J.

Eugene D. Dolese brought suit against U. A. Rousseau & Co., Inc., to rescind the sale and receive the sum of $946.00 paid by plaintiff to defendant for a Chevrolet sedan automobile, on the ground that the automobile did not give satisfactory service; due to defect in the equipment at the time he acquired it.

Defendant contends that there was nothing wrong with the automobile.

The evidence shows that the trouble was with the electric starting appliances. In three weeks after plaintiff bought the car the battery was exhausted. Plaintiff had it re-charged and it was soon exhausted again. He had it re-charged again, but it soon went down. He took the car back to defendant’s garage and defendant put in a new battery free of charge; but the same trouble continued. Defendant then put in new wiring, but the trouble persisted. Defendant then found a short circuit which he removed. This short circuit was caused by lack of oiling, but after this trouble was removed the battery still continued to go down, due to a short circuit.

After about eight months plaintiff became dissatisfied and. demanded his money back.

Clarence Landry seems to have no interest in the matter. He was the last person to examine plaintiff’s car. On page 17 of the note of testimony he was asked the following questions by the attorney for defendant:

By Mr. Wortham:

“Q. Do you remember the last time you worked on Mr. Dolese’s car?
“A. No sir. The last time he brought it there was, just before he filed the suit, and he asked me what I thought about it and I told him the short circuit was still there.”

The trouble was a chronic defect. It was hot apparent or discoverable by plaintiff,- but evidently existed at the time the car ■ was sold 1 to him. ■ It gave so much trouble that plaintiff’s discontent was justified.

Defendant contends that it was due to the neglect or fault of the plaintiff. That on one occasion plaintiff left the .lights burning, which discharged the battery. Another time, due to his failure to oil the mechanism of the self starter, a friction developed which caused a. circuit which discharged .the battery. But we are satisfied from the evidence that the trouble was with the wiring of the car, and existed from the beginning and still exists; notwithstanding all the matters found by defendant.

If the trouble was so small a matter as defendant contends, he should have found it and removed it. He had ample opportunity, b.ut a short circuit discharging the battery is still somewhere in the equipment.

Defendant contends that he sold the car as the agent of the manufacturer; and that the manufacturer warranted only certain things. But defendant did not call plaintiff’s attention to the character of the warranty, on which defendant contends.

" We think plaintiff has not received the service from 'the car that he was entitled to receive, due to a defect in the equipment at the time the car was sold to plaintiff.

The judgment appealed from .is correct.


text:
    No. -
    First Circuit
    PERKINS v. YAZOO AND MISSISSIPPI VALLEY RAILROAD COMPANY
    (April 1, 1926, Opinion and Decree)

      (Syllabus by the Editor)

    1. Louisiana Digest — Railroads—Par. 93.
    Where a fire was caused by sparks from a locomotive igniting sage grass and broom straw on the railroad right-of-way, which had been cut by the railroad company but not removed, the railway company' is negligent ' and liable for the resulting damage.
    Appeal from the Parish of West Feliciana, Hon. Chas. Kilbourne, Judge-
    Action by James G. Perkins against Yazoo and Mississippi Valley Railroad Company.
    There was judgment for plaintiff and defendant appealed.
    Judgment affirmed.
    E. S. Muse, of St. Francisville, attorney for plaintiff, appellee.
    Jas. H. Kilbourne, of St. Francisville, and H. H. Kilbourne, of Clinton, attorneys for defendant, appellant.
   MOUTON, J.

Plaintiff sues defendant company in damages for $1300.00 for the destruction of timber, canebrakes^ pastures and fencing on Ms plantation alleged to have been caused by fire set by one of defendant’s trains. . The judge below rendered judgment in accordance with the verdict of a jury for $1000.00 in favor of plaintilf, from which defendant appeals. In this court plaintiff asks for an increase in the judgment to $1800.00, the amount originally claimed.

The train ‘which is alleged to have caused the fire runs from Woodville, Miss., to Slaughter, La., each morning, and returns in the afternoon. It passes through what is known as Burrus Cut, which is situated between St. Erancisville and Slaughter. This Cut is deep and is bordered on each side by small hills as was described by the witnesses.

At the time of the fire, October 27, 1924, the land adjoining this Cut was covered by sage grass 'and broom straw which had grown to the height of some four or five feet. The sage grass and broom straw which had likewise grown in the Burrus Cut along defendant’s track had, at that time, been cut by defendant company, but had not been burned or removed. This fact is well established by a preponderance of the evidence.

The train claimed by plaintiff to have set the fire which spread from this Cut to his adjacent property passed through this Cut at about 10:55 in the forenoon of October 27, 1924, according to the testimony of ■ E. H. Stegar, ■ engineer of defendant company. Josh Haney, a witness for plaintiff, it is true, says he passed about 400 -yards from this Cut on his • way to Bayou Sara- at about 11 o’clock in the forenoon- of October 27, and that he' saw no fire in the Cut. It will be noticed that the train in question had passed through the Cut about the same ■ time or a few minutes before. If set by sparks emitted from the engine it had only started wnep Haney passed along there, and aue to the Mgh banks on each side of the Cut could not have been seen by Haney. Anotner witness for plaintiff, Henry Stewart, whose house was about a mile from the Cut, also says he did not see any fire then in the loienOon of October 27. bio doubt, his view was also obstructed by the hill or bank on the side of the Cut-, and' he could not therefore see any fire, although it could have been smouldering at that time. It is also true that Stegar, the engineer, says he did not see any lire in the Cut when he went through it on that morning, but this is explained by his statement that in running his train he could set fire without ever knowing it as he “would be ahead of it all the time.” In the afternoon of the same- day, about 2 o’clock, Haney, on his way back from Bayou Sara, saw fire in the Cut, and Stegar, the engineer, on reaching the Cut about the same time on his return trip from Slaughter says the fire had then spread from the Cut and was climbing to the top of the hill side. The engineer says he was furnished with another engine at Slaughter on the day of the fire. The reason was, he says, that the conductor said the “engine was throwing fire”. He says -he had changed engines three or four times the year before which occurred every time the conductor would “find a fire”. Asked,' point blank, whether he had caused the fire, the engineer answered: “I don’t think I did, but I may have, though.” It was shown besides that several fires had occurred along the track of the defendant company and in the vicinity of the fire in question. With such facts, and testimony ‘ of ■ that character, we have no hesitancy in concluding that if the engine was equipped with a spark arrester of a modern or improved type, the arrester was in bad condition, and was certainly not effective. This case is, therefore, not covered by the case in Meyer & Co. vs. V. S. & P. R. R. Co., 41 La. Ann. 639, 6 South. 218, in which it appeared that the engine was equipped with effective appliances to prevent the escape of fire, and where the court held that in such cases the proof is shifted on the plaintiff, “and the testimony must be very positive, strong and. convincing to establish the fact of negligence on the part of the company”. We have no doubt from the evidence that the engine threw fire or emitted sparks which fell along the track when it passed through Burrus Cut in the forenoon of tiie day in question. The sage grass and broom straw had been cut and were laying near the track. It must have been quite thick as it appears that it had a growth of about four or five feet. The rational inference is that this sage grass or broom straw was ignited by the passing train and that the fire smouldered there until about two in the evening, when it spread to the side of the track, climbing the hill side, and finally reaching out to the contiguous land of the plaintiff, inflicting the damage complained of.

. We find that the amount of 81000.00 allowed below is a fair and equitable estimate of the damages suffered which should not be either increased or reduced.


text:
    No. 727
    First Circuit
    SEGUIN, ET AL., v. SEGUIN, ET AL.
    (March 2, 1926. Opinion and Decree)

      (Syllabus by the Editor.)

    1. Louisiana Digest — Appeal—Par. 625.
    The finding of the trial court that an act of sale with the right of redemption which was not redeemed was not a simulation, but made in good faith being eminently correct is affirmed.
    2. Louisiana Digest — Appeal—Par. 625.
    The finding of the trial court that an act of sale was not superinduced by a misrepresentation and fraud and that there was a sufficient consideration, being eminently correct, is affirmed.
    3. Louisiana Digest — Appeal—Par. 568.
    Where there was not sufficient evidence to enable the district judge nor the Court of Appeal to determine just what property was contained in the estate of the deceased, the Court of Appeal will not give judgment upon the matter.
    Appeal from the Parish of West Baton Rouge, Hon. Wm. C. Carruth, Judge.
    Suit by Ulysses J. Seguin, et al,, against Araño Seguin, et al. There was judgment for defendants and plaintiffs appealed.
    Judgment affirmed.

      Benton and Benton and Lawrence W. Brooks, of Baton Rouge, attorneys for plaintiffs, appellants.
    Justin C. Daspit, of Baton Rouge, attorney for defendants, appellees.
   ELLIOTT, J.

Action to have an act in the form of a sale with the right of redemption, decreed to be a mortgage and another act, decreed to be null and void for want of consent on part of vendor; alternatively to have been obtained by fraud and misrepresentation and that no valid consideration was paid.

Augustin Seguin acquired from James W. Burbridge on January 24, 1877, a certain tract of land situated in the Parish of West Baton Rouge, containing eighteen arpents more or less, being lot No. two of the Burbridge subdivision, situated in the íear of the town of Sunnyside.

On June 9, 1893, Augustin Seguin executed an act in favor of Belizaire Lavinge for eight arpents more or less, part of the tract acquired by him from Bur-bridge as above said. The act from Augustin Seguin to Belizaire Lavigne is in authentic form and purports to be á sale for the price and sum. of $104.00 with the stipulation “The vendor, his heirs or assigns, shall have the right of purchasing back the property this day transferred, at any time before the first day of July, 1S96, by reimbursing the price paid with eight per cent interest thereon to the day of redemption as also, all taxes paid and other cost that the present purchaser may have incurred.”

On December 3, 1897, Belizaire Lavigne executed an act in favor of Araño Seguin calling for the same property. The act in favor of Araño Seguin is in authentic form and purports to be a sale by ' title duly warranted for the price and sum of $165.00.

On May 7, 1914, an act purports to have been executed by Augustin Seguin in favor of Araño Seguin, for another part of the tract which Augustin Seguin had acquired from Burbridge as above stated. The land called for by this act measures 241 feet front on the Texas & Pacific Railroad right-of-way by four arpents in depth and adjoins the tract called for by his act in favor of Belizaire Lavigne. This act is in authentic form and purports to be a sale for the price and sum of $400.00 cash.

On March 19, 1919, Augustin Seguin departed this life intestate, leaving Mrs. Seguin his widow in community and seven children, all born of their marriage his sole heirs.

Mrs. Olivia Seguin, his widow in community, and Ulysses, Effie, wife of T. F. Higginbotham, Teaulbert, Alcee, Aline, wife of Louis Altazin and Olivian, wife of Ernest Druhlet, six of his seven children brought this suit against Araño, the other son, the purpose and object of which is to have the two tracts of land claimed by Araño as above stated decreed to belong to the estate left by Augustin Seguin, deceased. Araño Seguin had sold the greater part of both tracts previous to the institution of the suit. His vendees were made parties defendant, but on exceptions of misjoinder filed by them, were dismissed from the case, leaving Araño as the only defendant before the court. The case was then tried on the merits against Araño; resulting in a judgment in his favor. The plaintiffs have appealed. The judgment dismissing the other original parties defendant was not appealed from and is therefore final.

Mrs. Olivia Seguin, widow of Augustin Seguin; and Mrs. Olivia Druhlet signed the contract with the attorneys authorizing this suit; but on cross-examination by defendant, they gave testimony of such character that they can not be regarded as plaintiffs, wanting judgment against Araño as prayed for in their petition, but it is very different with the other plaintiffs. They very firmly urge their demand, that the act from their father to Belizaire Lavigne decreed to have been, when executed, in fact a mortgage, securing a loan and to have the act from Belizaire Lavigne to Araño Seguin decreed to have been in fact, but a payment of the loan and to have, in that way operated to replace the ownership of the land in the community estate left by their father. Belizaire Lavigne is not a party to this suit, but Araño holds under him.

We can therefore deal with him as to that part of the two tracts which he still claims to own and can under the pleadings require him to account to plaintiffs for the proceeds of what he has sold, in case we find that he did not become the owner under the titles which he advances in his answer.

Under the law and jurisprudence of this state it is settled that a redemption sale for an inadequate price, when the vendor remains in possession will not be regarded as a redemption sale, but as a pignorative- or security contract and effect as such given to the act. At the time the act from Augustin Seguin to Belizaire Lavigne was passed Araño Seguin was between 16 and 17 years of age and he is the eldest of the living children. Araño, Ulysses and the other plaintiffs and two witnesses who testified in behalf of' the plaintiffs, thought the act was a mortgage.' The evidence indicates that Araño did not know' that the act was in the form of a redemption sale, until after the right of redemption had expired. The act from Belizaire to him was passed one year, four months and 24 days after that time. This fact of first belief on the part of Araño, the price named in the act from Augustin Seguin to Belizaire Lavigne, the fact that the amount named as the price in the act from Belizaire Lavigne to Araño Seguin corresponds closely to the sum named in the act from his father to Belizaire Lavigne as the price of redemption and the fact that plaintiffs’ cultivated part of the land called for by the act for several years immediately following the execution of the act, is urged by the plaintiffs as showing that the act from their father to Belizaire Lavigne was a mere security for a loan. The record also contains an act from Augustin Seguin to Jules Doiron dated April 10, 1879, showing that their father sold an arpent of the tract which he had acquired from Bur-bridge for $100.00 cash. Ulysses and his brother Teaulbert and two witnesses testify that the act from Augustin Seguin to Belizaire Lavigne was a mortgage and that Belizaire Lavigne never took possession of the property. These plaintiffs and witnesses were however too young at that time to have had any definite knowledge as to the intent and purpose of Augustin Seguin and Belizaire Lavigne in the matter of said act. At the very best, all that can be said about their testimony is that such was their opinion and belief and that formed in after years. Not one of them ever heard Belizaire Lavigne speak of it as a mortgage; save one of the witnesses, himself young at the time, says that on one occasion he heard Belizaire Lavigne refer to the matter saying that he had good security for what he had put out on it.

Plaintiffs’ testimony, that ■ the property was never delivered to Belizaire Lavigne is also no more than their opinion formed in after years.

The price which their father received for the arpent which he sold to Doiron in 1879 supports- their belief; but this arpent might have some special value, due to its situation. ■ It is said in the title whereby it was sold, that it fronts on a railroad.

The price named in the act from plaintiffs’ father to Belizaire Lavigne and that named in the act from Belizaire Lavigne to Araño Seguin, together with the above mentioned facts makes reasonable plaintiffs’ belief, that the act from their - father to Belizaire Lavigne was merely for the purpose of securing a loan in a time bf need; but their father’s course of conduct and that of Belizaire Lavigne and other facts and circumstances support the contentions of defendant. When Augustin Seguin bought the eighteen arpents more or less in January, 1877, he paid $750-00 for the tract. Whether there was a house on it or not at the time, the evidence does not show; but there was no house on that part covered by the act from their father to Belizaire Lavigne and same was the least valuable part of the original tract. At the time that act from their father to Belizaire Lavigne was passed, their father was sick, confined to his bed or practically so and unable to support his family. He remained a feeble invalid for the balance of his life, about 33 years; unable to work and hard pressed financially.

Following the execution of the act, his children cultivated part of the land for several years, but Maurice Lavigne also cultivated part and the evidence does not show whether Maurice Lavigne did so by the authority of their father or of his brother Belizaire Lavigne. Plaintiffs may have cultivated part of it by the sufferance of Belizaire Lavigne, without having been aware of if.

The implication which plaintiffs contend for as a result of this evidence, is offset by the construction which Belizaire Lavigne placed on the act as indicated by his unconditional and warranted title to Araño Seguin after the right to redeem had expired.

Mrs. Olivia Seguin, widow of Augustin Seguin was called by defendant for cross-examination and could • have testified for the plaintiff, but she was not asked if she knew anything about the intention of her husband in the act to Belizaire Lavigne. Under the terms of the act Augustin Seguin could have sold his right to redeem; therefore if the act was a mere security for a loan and the land worth appreciably more than the amount due, he might have sold his right, paid the .loan and saved the balance for his family. Augustin Seguin was mentally able to attend to business at the time Belizaire Lavigne executed the title in favor of Araño. If ' the act from him to Belizaire had merely secured a loan of the amount named in the act, Belizaire would not have likely sold the land as he did to Araño without consulting his father and nothing indicates that the father was consulted by either.

Araño lived with his father at the time and plaintfifs contend that their father was under his influence; but no reason appears why Belizaire Lavigne should have executed the act in favor of Araño without speaking to the father and ascertaining his wishes; if he had felt that he had any rights and if he held the title only as security for a loan, lie knew that Augustin Seguin did have rights in the property.

The act from Belizaire to Araño was passed more than eleven years before the father’s death. This suit was not filed until about six years after his death and more than thirty years after Augustin Seguin had executed the act.

The preponderance of the fact and circumstances indicates that the act from Augustin Seguin to Belizaire Lavigne was what it purports to be; a sale with the right of redemption. The property was not redeemed. Therefore Belizaire Lavigne had the right to sell or do with it as he pleased and plaintiffs have no interest in questioning his title to Araño.

C. P. Art. 15; Quaker Realty Co. vs. Labasse, 131 La. 997, 60 South. 661.

With reference to the act from Augustin to Araño Seguin, plaintiffs allege that their father did not sign nor consent to it and alternatively that Araño induced him to sign it by misrepresentation and fraud and that no actual consideration was paid for the property. That if a consideration appeared, it was less than one-third the value of the property and they pray in that contingency that the sale be set aside for lesion beyond moiety. Araño Seguin in answer to these allegations alleges that his father signed and consented to the act, that it is valid and based on sufficient consideration. In a supplemental answer he avers that the consideration was not cash, but a house built for his father during the year of 1913. That he furnished the materials and labor, and that his father executed the act in payment of the house.

This suit was not filed until about six years after the father’s death, consequently if Augustin Seguin consented to and signed the act, the prescription of four years pleaded by defendant against plaintiffs’ claim of lesion beyond moiety is good.

It is said in the act “the vendor not knowing how to write, makes his mark”. The act bears a mark, .purporting to be that of Augustin Seguin. It is admitted in the note of testimony that the above mentioned clause and the names of the witnesses are written in the body of the act with black ink, while the parties, witnesses and officer signed with purple ink.

The officer deputy clerk and recorder before whom the act was passed, had been dead for several years at the time of the trial. If he had been living, we presume that this difference in the ink used in writing the clause and names of the witnesses in the body of the act, and that used in signing it, would be satisfactorily explained.

Mrs. Augustin Seguin and Mrs. Olivia Druhlet, plaintiffs, and Arañó Seguin, dedefendant, testify that Augustin Seguin signed the act pursuant tp previous agreement. The evidence shows that Augustin Seguin knew how to write well enough to sign his name; but at the time, he could not see well and trembled badly. The evidence indicates that he was physically unable to write his name at the time the act was signed. The two witnesses Archie Hebert and Louis Altazin were. both living at the time of the trial. Archie Hebert was not called to testify on the subject and no satisfactory reason appears why it was not done. Louis Altazin testified that he did not see Augustin Seguin sign .the act; but that Augustin Seguin saw witnesses sign it. The widow, a sister .and defendant says he signed it. The preponderarme of the evidence on the subject establishes that he .consented to and signed the act, understanding what he did.

The evidence shows that the first house in which Augustin Seguin lived with his family was torn down; why, the evidence does not satisfactorily show.

This took place some 9 or 10 years previous to the father’s death. It is clear that a house for the family had to be provided. The evidence is to the effect that Araño secured a house for his father and mother and 2 or 3 of the youngest children and paid the rent for about three years. The father’s physical condition has been heretofore stated. Ulysses and the other sons helped, but Araño took the principal part in the family support. The mother, a sister Mrs. Druhlet, and Araño defendant, testify that the father and mother requested Araño to build them a house in which to live on his father’s land, the father promising to pay him by making him a title to part of his land. Araño built the house pursuant to this arrangement during the year 1913. The new house was built in the place where the old house had stood. Some eight or twelve months after it was built the father, while living in it with his family, executed the title in question for the purpose of paying Araño for building the house. The new house evidently cost $400.00 or more and was worth that sum and more. The father’s condition and the needs of the family considered, the arrangement was reasonable and proper.

We are satisfied from the evidence that at the time it was done the house and the land were fair equivalents for each other in the matter of value. The house is on a parcel of land which remained the property of the father and still belongs to..,his'estate. Plaintiffs’ charge of misrepresentation, fraud, want of consent, inadequate consideration, etc., is not • supported by. the evidence. Plaintiff’s • demand in regard to the act in question was properly refused. The plaintiffs have furnished us with a brief very carefully prepared and in , which numerous authorities are cited. The authorities would govern a case, coming within their spirit and contemplation; but they do not apply to the facts of the present case and it is not advisable to protract this opinion for the purpose of showing the difference between them and the case in hand.

The plaintiffs pray that the widow and heirs of Augustin Seguin be recognized and sent into possession of his estate. The two tracts of land claimed by Araño Seguin and involved in this case, do not form part of his estate.

The district judge rejected plaintiffs’ demand as to the two tracts of land claimed of Araño Seguin, described in plaintiffs’ petition; but did not act on plaintiffs’ demand as to the property left by Augustin Seguin at his death. The evidence was not sufficient to enable the .district judge, nor does it enable us to say what property was left by Augustin Seguin. For that reason we will not try to act on the matter .but will leave the question open for the determination of lower court contradictorily with the tax collector.

For the above reasons the judgment appealed from refusing and rejecting plaintiffs’ demands against Araño Seguin as to the two tracts of land .claimed by him is affirmed.

The right of Mrs. Olivia Seguin widow in community of Augustin Seguin and of tne other plaintiffs and of Araño Seguin to the estate left in the name of Augustin Seguin. is recognized and reserved to each without. prejudice; the property to.be ascertained by the district judge in due course. ... . ■

The plaintiffs and appellants to pay the cost in both courts.


text:
    No. -
    First Circuit
    BAY SHOE COMPANY, INC., v. S. J. NACOL
    (December 2, 1925. Opinion and Decree)
    (January 28, 1926. Rehearing Refused)

      (Syllabus by the Editor.)

    1. Louisiana Digest — Sales—Par. 229, 243, ■ 255.
    Where the evidence shows that eight months after the purchase of shoes ■ the defendant-intervenor wrote the plaintiff stating that he could not pay for the shoes, but did not state that the material and workmanship was bad and that the plaintiff had guaranteed the shoes, this evidence will tend .to show the shoes satisfactory.
    '2. Louisiana Digest — Indemnity—Par. 2/ 3.
    A written instrument of indemnity and guaranty by which the indemnitor holds the seller of shoes free and harmless from liability and loss on account of advances made or to be made to another, binds both the purchaser and the indemnitor in solido for the payment of the purchase price of merchandise ordered and delivered. It is not necessary that the seller accept the contract by signing it.
    Appeal from the Thirteenth Judicial District Court, Parish of St. Landry, Hon. E. H. Pavy, Judge.
    Suit by Bay Shoe Company, Inc., against S. J. Nacol. There was judgment for plaintiff against defendant and intervenor and defendant appealed.
    judgment affirmed.
    Sandoz and Sandoz, of Opelousas, attorneys for plaintiff, appellee.
    R. Lee Garland, of Opelousas, attorney for defendant, appellant.
   ELLIOTT, J.

Bay Shoe Company, Inc., claimed $800.00 with interest and attorney’s fees, of S. J. Nacol, based on a written obligation signed by him, annexed to its petition, bearing date February 25, 1924.

In this obligation it is stated that Wm. Nacol had applied to Bay Shoe Co., Inc., for credit, and that said company had agreed to sell and deliver goods and merchandise on credit to Wm. Nacol, provided he furnished good and solvent security. S. J. Nacol, signed this obligation, binding himself in solido with William Nacol, in order to secure said advances made and to be made in any amount not exceeding $800.00, on account of merchandise, as above stated.

The instrument is one of indemnity and guaranty in which plaintiff S. J. Nacol agrees to indemnify and hold Bay Shoe Co., Inc., free and harmless from liability, loss and expenses on account of advances made and to be made to Wm. Naeol as above stated, not exceeding $800.00.

The petition alleges the existence of indebtedness on the part of Wm. Nacol to Bay Shoe Co., Inc., on account of merchandise sold and delivered to him pursuant to said agreement, and as shown by an itemized account annexed to the petition in the sum of $793.95 with interest.

The account shows that it is for shoes sold and delivered by Bay Shoe Co., Inc., to Wm. Nacol. Wm. Nacol intervened, joining S. J. Nacol in resisting plaintiff’s demand, on the ground that the shoes were bought and 'received by him under guarantee and warrant against defective material and workmanship, and that the shoes were made of defective and rotten material, badly made, a large part of them being worthless and unsalable.

That he was compelled to take back a large number of the shoes that he had sold and return the price he had received for them, and to withdraw the balance from sale.

He claims credit for the shoes returned to plaintiff and for the price of those he had been compelled to return to purchasers; and prays that the sale be rescinded and annulled, and that plaintiff be compelled to take back the unsold shoes and given credit accordingly.

The defendant, S. J. Nacol,- denies indebtedness to plaintiff, and urges plaintiff never accepted the contract that he signed as above stated.

Bay Shoe Co., Inc., in answer to the intervention of Wm. Nacol, expressly avers that the shoes in question were known as job lots; were sold him “as is” and without guarantee or warranty against defective material and workmanship; that Wm. Nacol was personally present when the transaction was made, and saw the shoes he purchased, etc.

The district judge reviewed the case and stating reasons in writing, rendered judgment in favor of the plaintiff and against S. J. Nacol and intervenor, for the amount claimed by the plaintiff.

Wm. Nacol did not appeal. S. J. Nacol, defendant, appealed.

The plaintiff has filed with us a short brief in support of its demand; but the record contains no brief by defendant, and as Wm. Naeol did not appeal there is of course, no brief in support, of his demand.

On the trial of the case I. Kohlman, president of the Bay Shoe Co., Inc., testified that Wm. Nacol was not present when the shoes were bought, as alleged in his answer to intervention of Wm. Naeol; but that Joe Naeol, brother of Wm. Nacol was present, and bought the shoes for Wm. Naeol.

That the shoes were shipped to . Wm. Nacol at Port Arthur, Texas; that Joe Nacol, acting for Wm. Nacol, knowing the quality of the shoes, wanted them and bought them understanding^; stating that his brother, Wm. Naeol, wanted to get up a sale, and for the purpose, wanted all kinds of cheap shoes he had on hand; that the shoes were a lot of stuff that he had had on hand for quite a while and were the cheapest he had in his store; were sold “as are” without guarantee; that the purchaser was fully apprised of the quality of the shoes, and took the responsibility.

Some of the shoes were exhibited on the trial in order that the court might judge of the material and workmanship.

They were injured, and the witness, Kohlman, looking at them testified that they were good shoes and had been purposely injured. His testimony was not contradicted by defendant nor intervenor; but other witnesses, eleven in number, residing at Port Arthur, Texas, testified to the bad quality of the material and workmanship; and said the shoes were practically worthless. One or two witnesses testified on the trial to the same effect.

The witnesses said that the shoes, at least some of them, were marked “Magnolia Brand”. The record contains a circular concerning Magnolia Brand shoes which says: “They are well made of the best leather, by American Workmen”, in one of the grandest equipped factories in the world, etc. “Signed Manufacturers”.

We regret to find that the record contains no evidence on the part of defendant, S. J. Nacol and intervenor Wm. Naeol, contradicting the testimony of I. Kohlman.

The testimony of Joe Nacol was not taken and it is not claimed by defendant or intervenor, that it could not have been done; and no reason is given by the record as to why it was not done.

We find from the record that Wm. Nacol wrote plaintiff about eight months after the purchase of the shoes, that he could not pay for them, etc.; but in his letter dated October 14, 1924, he does not state that the material and workmanship was bad, and that plaintiff had guaranteed the shoes, as is alleged in the petition of the intervenor.

The testimony further satisfies us that Wm. Nacol signed, notes for the amount due on the shoes; sent the “notes to plaintiff, and that plaintiff refused to receive them on the ground that they were not secured; sending them to S. J. Nacol, with the request that he endorse them and return them to plaintiffs; but S'. J. Nacol did not return them.

It was not necessary for Bay Shoe Co., Inc., to sign the contract in .order to accept it, and the obligation being in solido, S. J. Naeol could sue on it, as was done.

The judgment appealed from appears to be correct.

Judgment to the extent of $793.95, affirmed; intervenor to pay cost of his interventions.

Defendant and appellant to pay the cost of the main demand in both courts. .