text:
    No. 2881
    Second Circuit
    NUGENT v. McCURDY
    (June 28, 1927. Opinion and Decree.>

      (Syllabus by the Court.)

    1. Louisiana Digest — Office and Officer— Par. 52, 54.
    Agents of the State Conservation Commission employed to patrol the waters of the state and enforce the laws against illegal seining of fish are authorized under the law to seize but not to destroy seines of private individuals without an order of court.
    2. Louisiana Digest — Office and Officer— Par; 52, 54.
    or illegal mesh, is licensed or unThe question, whether a seine is of legal licensed, is one of fact to be determined by courts and .not by Conservation agents.
    3. Louisiana Digest — Office and Officers— Par. 49, 52, 54.
    Conservation agents can not usurp the functions of the courts and determine for themselves questions whether seines used in the waters of the state are of legal or illegal mesh, licensed or unlicensed.
    4. Louisiana Digest — Office and'Officer— Par. 56, 57; Offenses and Quasi Offenses — Par. 6.
    Any person, whether he be a private citizen or an officer, who takes upon himself, without judicial sanction, the right to destroy private property and to abate an alleged nuisance, does so at his peril, and if it appear that he erred in judgment, he will be answerable in damages.
    5. Louisiana Digest — Office and Officer— Par. 49, 57.
    Act 137 of 1924, which confers upon Conservation agents the right to seize illegal seines used to catch fish in the waters of the state, contemplates a trial and adjudication before such seines may be destroyed, and agents who destroy them without such trial and adjudication are liable to the owners for their value.
    Appeal from the Ninth Judicial District Court of Louisiana, Parish of Rapides. Hon. R. C. Culpepper, Judge.
    Action by Ernest T. Nugent against William O. McCurdy, et als.
    . There was judgment for plaintiff and defendants appealed.
    Judgment affirmed.
    ■ Hawthorn & Stafford, of Alexandria, attorneys for plaintiff, appellee.
    Cleaveland Dear, of Alexandria, attorney for defendants, appellants.
   ODOM, J.

Plaintiff owned a 600-foot seine which was destroyed by William O. McCurdy and A. B. Burns, agents of the Conservation Commission of Louisiana.

Plaintiff brought this suit to recover of the defendants the value of the property destroyed, plus damages resulting from the loss of the use of the seine.

Doctor V. K. Irion, Conservation Commissioner, was also joined as a party defendant. However, he has dropped out of the case, and the suit is not now being prosecuted against him. '

McCurdy and Burns admit that they destroyed a seine on the banks of Little River in Grant parish, but allege that at the time the seine was destroyed they did not know who owned it. However, the proof makes it perfectly clear that the seine destroyed by them was the property of this plaintiff.

The main defense is that a seine such as was destroyed by defendants was of the kind which the law prohibits and declares to be a public nuisance; that it was unicensed, had been used in closed or prohibited waters; and that under the law they had a right not only to seize but to destroy it.

The lower court found for plaintiff, givng him damages for the value of the seine and rejecting his other demands.

The defendants have appealed.

OPINION

The plaintiff was, at the time this controversy arose, and for a number of years prior thereto, engaged in commercial fishing and had always procured a license from the Department of Conservation for carrying on that business. He bought a new seine, 600 feet long, which, he swears, was of the kind which he and others in that locality had been using and which had been licensed and permitted by the Conservation Department of the state; which, he says, had a three-inch mesh. As' to the kind of seine purchased, the mesh, etc., his testimony is corroborated by J. E. Ray, who ordered the seine for him.

On August 15, 1925, Nugent, the plaintiff, made the usual application to the Department for permission to use a seine. The application is on a printed form furnished by the Department, and was made out, that is, the blanks filled in, by Mr. T. C. Lincecum, who is connected with the Department, and was signed by Nugent, the plaintiff. The application as made out by Lincecum and signed by Nugent specified that the seine might be used in “Little River above Thompson’s Ferry, Catahoula Lake, and all other permitted waters of the state”.

When the application was signed by Nugent it was delivered to Lincecum who forwarded it to the New Orleans office in order that a permit might be issued. When the application was inspected at New Orleans it was discovered that the words, “above Thompson’s Ferry”, had been written in whereas it should .have been written “below Thompson’s Ferry”, for the reason that under the rules of the Department the waters above Thompson’s Ferry on Catahoula Lake were closed or forbidden waters; whereupon someone in the office at New Orleans drew a mark through the word “above” and wrote above it the word “below”.

In the meantime Nugent, having observed that Lincecum, who represented the Department, had made out the application specifying that the seine might be used above Thompson’s Ferry in Catahoula jake, proceeded to use the seine in those waters, assuming, as he testified, that the Department had changed its rules, as it had a right to do, and intended to permit him to seine in those waters.

A similar permit had been granted to Mr. Gibson, another fisherman, who was at the same time seining above Thompson’s Ferry.

It would therefore seem that Nugent was in good faith in using his seine above Thompson’s Ferry, although he knew that theretofore the waters above the ferry were closed.

It may be well here to state that it was a custom, sanctioned by the Department, for those who made application for permits to seine to begin using the seine as soon as the application was made out and sent in before the final permit was issued; which accounts for the fact that Nugent began using the seine at once. Nugent later learned in some way that Lincecum had made an error which had been corrected in the New; Orleans office. He testified, and his testimony on that point is not disputed, that as soon as he learned that his application had been changed and that there was some doubt as to whether he would be permitted to seine above Thompson’s Ferry, he took his seine out of those waters and dragged it up on the hank and left it there to await developments.

McCurdy and Burns, the defendants, while patroling the waters, discovered the seine lying out on the bank. There were evidences that the seine had been used above Thompson’s Ferry and as there was no one in charge of it at the time they waited for someone to appear and claim it with a view of arresting and prosecuting the owner. They watched it for some two or three days. No one appearing to claim it and they not knowing to whom it belonged and therefore not able to make an arrest, seized and burned it where they found it.

As to their reasons for burning the seine, McCurdy says (page 14, evidence):

“Q. You burned it simply because you found it above Thompson’s Ferry on Little River?
“A. Because I found it above Thompson’s Ferry on Little River I burned it, and because of the fact that I had no means of transportation to bring it out; and for the further reason that there was no one in possession of it and I had no evidence as to whom it belonged, and there was no real reason why I should put myself to the trouble of bringing it out, as I had no case against anyone at the time for having that seine.”

In that connection he was asked if he knew that Gibson, another fisherman, was seining at the same time above the ferry under a permit, and he said that he did:

Previous to giving the above testimony he was asked (page 13, evidence):

“Q. Mr. McCurdy, I believe you allege in your answer that that seine was an illegal seine; do you still persist in saying that?
“A. Under the strict construction of the law, it was. The law requires that the mesh of a seine be three (3) inches, and this was only 2% inches.”

On page 48 of the evidence he was asked:

“Q. Then, as I understand it, you burned the seine up because you found it above Thompson’s Ferry instead of below.
“A. I burned it because I found it being operated above Thompson’s Ferry, and the physical evidence showed that it was being operated there. I had no evidence against any party, and I did not consider it worthwhile for me to go off and hire a truck to haul that seine out and put the state to that expense just in order to get an order from the court to destroy it, which would have been the final result in the end.
“Q. Now, suppose you had found this seine below Thompson’s Ferry, would you have burned it?
“A. I would not.”

From the foregoing testimony it is clear that the question whether the seine was of a legal or illegal mesh had nothing t,o do with defendants’ conduct in destroying it; therefore that question is eliminated from consideration.

Both McCurdy and Burns say they acted in good faith in destroying the seine. It is very probable that they thought no one would ever appear to claim the seine; but the testimony as a whole does not impress us that they thought they had a right to destroy it as they did. They knew that Nugent’s application, made out for him by an agent of the Department, had specified above Thompson’s Ferry and that he had used the seine before he was informed it had been changed; they knew that others had seined in the same waters under like conditions; they had never been instructed by Doctor Irion or anyone else to destroy property in this manner; they gave as their only reason for destroying the seine that it was too large to be transported in the Ford car which they were using and that they did not care to incur the expense of getting a truck to haul it; they said there was no necessity for doing so because the court would have ordered it destroyed, anyway.

On another occasion they found a seine in the same vicinity and did bring it but and held it for orders; but that was a 300-foot seine and was easily transported.

McCurdy says (page 44 of the evidence), that if he could have done so he would have brought the seine out.

These defendants knew that the law did not authorize them to destroy the seine, for in his testimony McCurdy mentions that he saw no use of bringing the seine in and having a court order to destroy it.

The conduct of McCurdy on another occasion indicates that he was disposed to use quite high-handed methods in the exercise of his authority, for he admits that on one occasion while patroling the waters he saw some persons on the river in a boat and that he beckoned them to come to the bank and that upon their refusal to do so he made several shots at them. However, he urged as an excuse that one of the parties reached his hand down in the boat.

Even if they had thought they were authorized in thus destroying seines while being used above Thompson’s Ferry, they were aware that persons were led to believe that they might seine in those waters and were in good faith in doing so.

Defendants rely upon authority conferred upon them under Section 18 of Act No. 137 of 1924. That section of the statute reads as follows:

“That all unlicensed or illegal seines, hoop-nets, or other devices set or used in or upon any of the waters or the shores thereof, or islands of the state, are hereby declared to be public nuisances and may be seized by the Department of Conservation through any of its officers, inspectors or agents.”

The authority of the agents and inspectors under this law is clearly limited to the right of seizure, and there is nowhere in the act any right or authority conferred for destroying illegal seines. We have examined similar acts preceding the Act of 1924 and find that in none of them are Conservation agents authorized to do more than seize illegal nets or nets which are being used in prohibited waters.

Defendants say that the results would have been the same if the net or seine had been carried out; that the court would have ordered it destroyed, anyway.

That may or may not be true. There is a serious question in this case whether this was an illegal seine. Plaintiff swears that it was not — defendants say that under strict construction of the law it was. But that was a question for the court to decide — not these defendants. No one has a right to usurp the functions of courts in such matters. Defendants had no right to take upon themselves the functions of judge and executioner. Besides that, they did not destroy the seine because it was illegal but because it was being used in what they deemed prohibited waters. On that point we think it very doubtful whether the court would have sustained a criminal charge against plaintiff for seining in prohibited waters, in view of the fact that his application to use the seine, made out by an agent of the Department, specifically stated that it was to be used above Thompson’s Perry.

Counsel for defendants argues that inasmuch as the act declares illegal seines to be a public nuisance they may be destroyed by officers; but the law which he cites does not authorize officers to destroy them — it provides that they may be seized — not destroyed. ' If the legislature had intended to. grant authority for summary destruction of such property by Conservation agents it could easily have expressed that authority.

Section 37 of Act No. 137 of 1924 (provides that all barrels, boxes, etc., of fish not labeled and shipped in a certain way “may be confiscated”, but with reference to seines the only authority given is to seize them.

In the case at bar there was a serious controversy as to whether this was an illegal seine and as to whether plaintiff had a right to use it above Thompson’s Perry. Those were questions which could legally be determined only by the court. Plaintiff was to say the least entitled to “a 'day in court”. The law hears before it condemns, and the proper tribunal to hear and condemn is the court.

The state of Michigan has a statute which authorizes the seizure of nets in unlawful use as does ours. The Supreme Court of that state in two cases, Neal vs. Morris, 96 N. W. 14, and Osborn vs. Circuit Judge, 72 N. W. 982, specifically held that the law contemplated a trial and adjudication before such nets were destroyed, and upheld a judgment against the game and fish warden for the value of nets destroyed by him without an order of court.

It is fundamental that officers such as these are liable for acts done in excess of their jurisdiction. The only exception is found in cases where the act done is purely ministerial and done in executing orders of superiors.

29 Cyc. 1441.

See “Fish and Game,” 19 Cyc. 1925, and authorities there cited under note 25.

In Beers vs. Board of Health, 35 Ann. 1132, the president of the Board of Health was held liable for acts “unauthorized, arbitrary and wrongful”.

See 24 A. L. R. 802.
“The authorities are generally agreed that whoever abates an alleged nuisance, and thus destroys or injures private property, or interferes with (private rights, whether he be a public officer or private person, unless he acts under the judgment or order of a court having jurisdiction, does it at his peril; and that when his act is challenged in the regular judicial tribunals it must appear that the thing abated was in fact a nuisance. If it appears that he erred in judgment, he will be answerable in damages, and if a breach of the peace is involved he may be liable criminally for the result.”

20 R. C. L, 491.

See Tissot vs. Great Sou. Tel. & Tel. Co., 39 La. Ann. 996, 3 South. 261.

Even if the seine in question was illegal and if for that reason a public nuisance, and if defendants had a right to abate the nuisance without an order of court, the nuisance should have been abated by seizure of the seine,' which is what the Taw says may be done.

The conduct of the defendants was without warrant in law, arbitrary, unreasonable and unjustifiable, and we think not in good faith.

The lower court held defendants liable for the value of the property destroyed and rejected plaintiff’s demands otherwise.

The judgment is affirmed.


source: Caselaw Access Project

author: ODOM, J.

license: Public Domain

text:
    No. 2961
    Second Circuit
    POWERS, JR., v. SMITH AND HANCHEY
    (June 28, 1927. Opinion and Decree.)

      (Syllabus by the Court)

    1.Louisiana Digest — Bills and Notes— Par. 184, 186.
    One who pays a negotiable instrument to the payee who is not then in possession of it, but who has previously transferred or pledged it in ' due course, pays at his peril and is not thereby relieved of his obligation to such holder in due course.
    2. Louisiana Digest — Bilis and Notes— Par. 184, 189.
    The facts in this case held to show that the. bank, to which the note was paid by the maker, was at the time the holder and owner of the note and that the debt was discharged.
    Appeal from the Eighth Judicial District Court of Louisiana, Parish of Caldwell. Hon. F. E. Jones, Judge.
    Action by J. T. Powers, Jr., against J.E. Smith and H. L. Hanchey.
    There was judgment for defendants and plaintiff appealed.
    Judgment affirmed.
    J. B. Thornhill, of Columbia; B. T. Dawkins, of Alexandria, attorneys for plaintiff, appellant.
    K. Hundley, of Alexandria, attorney for defendants, appellees.
   ODOM, J.

This is a suit on a promissory note for $350.00 made and signed by the defendant, Smith, payable to H. L. Hanchey, and by Hanchey endorsed in blank.

Plaintiff claims to be the holder and owner of the note and sues Smith and Hanchey for the amount thereof.

Smith’s defense is that he paid the note to Hanchey, the payee, before maturity, and Hanchey contends that plaintiff was not the holder and owner of the note when it was paid to him by Smith but, on the contrary, that it was pledged to the Guaranty Bank & Trust Company as collateral to secure a loan which said bank made to him and that when Smith paid the note to him he applied the proceeds to said loan.

The lower court rejected plaintiffs demand and he has appealed.

OPINION

.On June 2, 1923, the defendant, J. E. Smith, executed a promissory note for $350.00, made payable to the defendant, H. L. Hanchey, the note falling due on December 6, 1925. .

On September 25, 1925, before the maturity of the note, Smith paid Hanchey the full amount thereof.

In the meantime the note had gone out of Hanchey’s hands, but he promised Smith that he would get it and deliver it to him, but he failed to do so.

It is plaintiff’s contention that Hanchey pledged the note to him before its maturity -and before it was paid by Smith as collateral to secure certain loans and advances which he had made to Hanchey and that the note was not paid to him.

There, is no question of law involved. If, as a matter of fact, plaintiff was the pledgee of the note when Smith paid.Hanchey, Smith is not relieved of his obligation to plaintiff. One who pays a negotiable instrument to the payee who is not then in possession of it but who has previously transferred or pledged it in due course, pays at his peril and is not thereby relieved of his obligation to such holder in due course.

So the question before the court is one of fact, and is this: Was plaintiff the holder of the note , sued on at the time it was paid to Hanchey by Smith and at the time it fell due?

The District Judge held, and we think correctly, that he was not.

The testimony shows that the plaintiff, Powers, is and has been for many years Cashier of the Guaranty Bank & Trust Company. Hanchey was in the lumber and timber business and over a period of several years Powers advanced him money and took as security such collateral as Hanchey had and was willing to pledge.

In February, 1926, Hanchey gave Powers two notes, one for $1189.67 and one for $1915.86. We infer that these notes closed Hanchey’s account with Powers. Powers claims that the note sued on was held by him as collateral to these notes. He does not claim, however, that there was a new pledge of the note sued on at the time these notes were given him by Hanchey, but he says that he was in possession of the note long prior to that, his recollection being that, he first acquired it in 1924. He does not claim, however, that the note was in his hands during all the time from the date on which he first acquired it, but says it was “in my possession and out of my possession during the years we had these business transactions”.

The testimony shows that on August 17, 1925, Hanchey borrowed $1500.00 from the Guaranty Bank & Trust Company and gave his note for that amount to the bank. Hanchey says he pledged the Smith note to the bank as collateral to that note, and that when the Smith note was paid and when it fell due it was pledged not to plaintiff but to the bank, tie made the final payment to the bank on his $1500.00 note on February 5, 1926. He says that when he finally paid his debt to the bank he demanded the Smith note, which was then past due and paid, hut that plaintiff, who was cashier of the bank and received the payment refused to deliver it.

Our conclusion is that the note sued on was in fact in the hands of the bank, and not plaintiff, at the time it was paid, and,our opinion is not based entirely upon Hanchey’s testimony to that effect. Plaintiff says the note was in and out of his possession during this time. That it was in the possession of the bank when it was out of plaintiff’s possession is evident from the testimony of plaintiff himself. He was asked if he knew anything about the $1500.00 given by Hanchey to the bank and he said:

“I have some recollection of making Mr. Hanchey a loan and this note and one note a year prior to this was used as collateral.”

He was asked if the $1500.00 note was a bank transaction, and he said:

“I suppose this note with security was a bank transaction.”

He was asked:

“The Guaranty Bank & Trust Company had the Smith note payable to Mr. Hanchey as collateral to the note due by Mr. Hanchey to the bank?”

And he answered:

“At some time it did, but I don’t remember when it was.”

And, again, he was asked:

“Do you know what became of them (the Smith notes) when 'they were not in your possession?”

And he answered:

“One time they were used as collateral to the bank on a loan.”

Plaintiff’s testimony that the note was out of his possession a portion of the time after he says he first got it, and his testimony that it was at one time pledged to the bank as collateral, so corroborates Hanchey’s testimony that he pledged it to the bank as collateral to thé $1500.00 note, that we accept that fact as proved.

There is another point equally as strong against plaintiff. If he acquired the note after maturity, he took it subject to whatever equities may have existed between Smith, the maker, and Hanchey, the payee. It is not claimed that the bank transferred the note to plaintiff for value, but it is contended by plaintiff that Hanchey pledged it to him. If Hanchey pledged it to plaintiff, he pledged it after he paid his note to the bank, which was on February 5, 1926, for plaintiff was asked this question by the court:

“Q. You stated in your prior examination that in August, 1925, the Guaranty Bank had this note in its possession as collateral? Dq you know when you subsequently acquired that note?”

And he said:

“I got it when the bank note was paid.”
“Q. Do you know when the bank note was paid?
“A. No, sir.
“Q. Do you know how soon after that bank note was paid that you acquired it?
“A. I think immediately following’ it.”

The (proof is conclusive that the bank note was paid on February 5, 1926. At that time the Smith note was past due and paid and the bank, as pledgee, had received the proceeds.

Therefore, when the note was pledged to plaintiff, if it was, it was a dead piece of paper.

Counsel for plaintiff, in oral argument and in brief, stress the point that Hanchey was indebted to plaintiff over a period of years and that this was what he terms a continuous pledge, and that Smith’s payment of the note to Hanchey did not discharge the. obligation insofar as plaintiff is concerned.

That would be true if (plaintiff had held the note in pledge, continuously, which the proof shows he did not do. He released the pledge, if he ever had it, in pledge, and reacquired it after maturity and after it had been paid.

It is fair to state that there are some expressions in the testimony of both Hanchey and plaintiff, if taken alone, which support plaintiff’s theory of the case; but the testimony as a whole, and especially that referred to, amply supports the conclusion reached by the District Judge.


text:
    No. 2998
    Second Circuit
    SPENGLER v. DROUET
    (June 28, 1927. Opinion and Decree.)

      (jSyllabus by the Court)
    1.Louisiana Digest — Bills and Notes — Par. 184.
    Where a promissory note is placed in the hands of an attorney for collection by the holder, the payment thereof by the maker to such attorney discharges the debt.
    2. Louisiana Digest — Bills and Notes — Par. 183, 185.
    A negotiable instrument is discharged by payment in due course by or on behalf of the principal debtor.
    3. Louisiana Digest — Bills and Notes — Par. 140, 186.
    A promissory note, paid by the maker to the holder in due course or his agent, is thereafter a dead instrument, and its transfer by the holder after the payment gives the transferee no right of action against the maker, where such transferee had full knowledge of the facts.
    Appeal from the Ninth Judicial District Court of Louisiana, Parish of Rapides. Hon. R. C. Culpepper, Judge.
    Action by S. C. Spengler against Joe O. Drouet.
    There was judgment for defendant and plaintiff appealed.
    Judgment affirmed.
    Gus A. Voltz, of Alexandria, attorney for plaintiff, appellant.
    Frank B. Cappel, of Alexandria, attorney for defendant, appellee.
   ODOM, J.

This is an injunction suit to restrain the sale of an automobile under executory process on the ground that the debt had been paid.

J. O. Drouet, plaintiff in the injunction suit, defendant in the suit under executory process, purchased an automobile and as representing a portion of the price executed a promissory note secured by chattel mortgage on the car. The note went into the hands of the W. -H. Jones Investment Company, Inc. When the note fell due, Drouet having failed to pay same, the W. H. Jones Investment Company, Inc., placed it in the hands of its attorneys for collection and the attorneys made demand on Drouet for its payment. Drouet being without funds and apparently without credit, went to Spengler, defendant in the injunction suit, told him that he was about to lose his car on account of not being able to pay the balance due thereon, and appealed to him to assist him in raising funds with which to pay the note. Drouet informed Spengler that he. could borrow the money from the Louisiana Title & Mortgage Company provided he would endorse his note. Spengler agreed to endorse Drouet’s note for $200.00 and the two went to the office of the Louisiana Title & Mortgage Company where the loan was made to Drouet with Spengler’s endorsement. The Louisiana Title & Mortgage Company gave Drouet its cheek for the proceeds of the loan, the check being made payable to Drouet. Drouet immediately took the check to the attorneys who held the note for collection, endorsed the check and delivered it to them. The attorneys who at that time had possession of the note cashed the check and immediately remitted the proceeds to the W. H. Jones Investment Company, Inc., the owners of the note.

For. some reason the attorneys did not mark the note paid and did not deliver it to Drouet, the maker and obligor. Mr. Staples, one of the attorneys, testified that he handled the transaction personally, that it was customary for his firm to mark notes paid when collected by his firm, and that there was probably some reason for his failing to mark this note paid, but he does not recall what that reason was.

On the same day, but subsequent to the payment of the note by Drouet to the attorneys, Spengler went to the office of the attorneys and prevailed on Staples to deliver the note to him. Spengler then took the note to the office of the W. H. Jones Company, Inc., and had it endorse the same over to him. This was, however, two days after the note had been paid to the attorneys.

Spengler, alleging that he was the holder and owner of said note in due- course, brought suit against Drouet, the maker of the note, and had the automobile seized; whereupon Drouet brought this injunction suit, asking that the proceedings be restrained on the ground that the note had been paid in full. There was judgment in favor of the plaintiff in the injunction suit, perpetuating the temporary restraining order which the court had previously-issued. The defendant, Spengler, has appealed.

OPINION

The sole question at issue is whether or not the note sued on had ’been paid. The lower court held that it had, and we think correctly so. As already stated, the note fell due while in the hands of the W. H. Jones Investment Company, Inc., which concern placed it in'the hands of its attorneys • for collection. Drouet borrowed the money with which to pay the note and carried the money to the office of the attorneys who held the note for collection and delivered it to them. The fact that he did not have the note. surrendered to him, we-think, makes no difference. He was unquestionably entitled to the note when he paid it and could have maintained an action for its possession. None of the above facts are controverted by Spengler, defendant in injunction, but it is his contention that as a condition for his endorsement of Drouet’s note and to protect him against loss on account thereof, Drouet agreed to have the automobile note, then held by the W. H. Jones Investment Company, Inc., transferred to him, and that on the date the payment was made by Drouet to Staples, attorney, he went to Staples’ office and had Staples to deliver the note to him and that Staples told him to take the note to the W. H. Jones Investment Company, Inc., and have it transferred to him, which he did, and that he is therefore the holder of the note in due course. To corroborate his own testimony that Drouet agreed to have the note transferred to him, Spengler called as witnesses Mr. Cruse and Mr. Freeman, both of whom testified that Drouet told him that the note had been transferred to Spengler. Conceding that what Spengler says about the agreement which he had with Drouet is true, the outstanding fact is that the note was paid by Drouet, the maker and obligor, to the attorney for the W. H. Jones Investment Company, Inc. It is not disputed that the attorneys had authority to collect the note. Therefore, the note having been paid by Drouet under such circumstances, it does not matter what agreement Spengler may have had with Drouet.

Counsel for Spengler, in brief, says that his client is the holder of the note in due course, having acquired the same from the W. H. Jones Investment Company, Inc. It is true that the W. H. Jones Investment Company, Inc., delivered the note to Spengler, having endorsed it to him without recourse. That, however, was done two days after the note had been paid by • Drouet to the attorneys and after the W. H. Jones Investment Company, Inc., had received remittance therefor. Spengler, therefore, is not a holder in due course.

A holder of an instrument in due course is one who took the instrument before it was overdue, in good faith and for value, and without knowledge of any infirmity in the instrument.

Section 52, Act 64 of 1904. (Negotiable Instruments Law.)

Spengler paid the W. H. Jones Investment Company, Inc., nothing for the note, and he knew when he took it that it was overdue and that Drouet had paid it. We quote as follows from counsel’s brief:

“Mr. Spengler was the bona fide holder of the note from the Wade H. Jones Investment Company, whose claim, although satisfied, transferred the note to Spengler, which was in accordance with the agreement between the said Spengler and Drouet.”

The W. H. Jones Investment Company, Inc., was the holder in due course of the note. The note was overdue and its claim had been satisfied, not by payment made to it by Spengler but by payment made by Drouet, the maker and obligor.

The payment of a negotiable instrument to the holder in due -course discharges the instrument.

Section 119 of the Negotiable Instruments Law provides that:

“A negotiable instrument is discharged by payment in due course by or on behalf of the principal debtor.”

The owner of the note placed it in the hands of attorneys for collection after maturity. Drouet with his own funds paid the attorneys the full amount due. The obligation was fully satisfied and the note from that moment ceased to have any legal existence.

Counsel for Spengler cites numerous authorities in support of his contention that the W. H. Jones Investment Company, Inc., be'ing the holder in due course of the note in question, had a right to transfer it. The authorities would be in point if the note had been in fact transferred before payment, but the facts are that the transfer made by the W. H. Jones Investment Company, Inc., to Spengler, such as it was, was made after the note had been paid in full. Spengler had full knowledge of all the facts before he took the note.

Having reached the conclusion that the note was paid, it is not necessary to discuss the other points raised by counsel for Spengler.

The judgment appealed from is affirmed.


author: WEBB, J.

text:
    No. 3022
    Second Circuit
    SINGLETON v. WYATT LUMBER CO.
    (June 28, 1927. Opinion and Decree.)

      (Syllabus by the Editor.)

    1.Louisiana Digest — Master and Servant —Par. 154, 160 (h).
    In view of Section 21 and Section 8, Subsection 6, of the Workmen’s Compensation Act No. 20 of 1914, the refusal of the insurance company to .make payments unless the injured employee deliver them to his employer to be credited on an account of the indebtedness partly due prior to the accident which was not comprehended in the agreement of the parties constitutes a refusal to perform the obligation on the part of the insurance company and employer, and, therefore, a putting in default is unnecessary.
    2. Louisiana Digest — Master and Servant —Par. 160 (b).
    The provision in Section 8, Subsection 6, of the Workmen’s Compensation Act No. 20 of 1914 permitting voluntary payments tq be deducted with the consent of the court is a concession to the employer where such claims are advanced in proceedings under the statute, and, there being no provision for interest on such claims when so advanced, the court cannot allow judgment for interest thereon.
    3. Louisiana Digest — Master and Servant —Par. 160 (i), 160 (j), 160 (k); Attorneys — Par. 70.
    Where injured employee does not allege a contract with his attorneys for their fees, a written contract filed in evidence is sufficient to base judgment thereon.
    4. Louisiana Digest — Master and Servant —Par. 160 (j), 160 (k).
    It is too late for the defendant in a Workmen’s Compensation case under Act 20 of 1914 to object on appeal to the fees of the experts where such objection was not made before the trial court.
    (The recent amendment to Act 20 of 1914 is Act 85 of 1926. — Editor’s note.)
    Appeal from the Eleventh Judicial District Court of Louisiana, Parish of Sabine.
    Hon. Hal A. Burgess, Judge.

      Action by Paul Singleton against Wyatt Lumber Company.
    There' was judgment for plaintiff and defendant appealed.
    Judgment affirmed.
    Boone & Boone, of Many, attorneys for plaintiff, appellee.
    Ponder & Ponder, of Many, attorneys for defendant, appellant.
   WEBB, J.

Plaintiff, Paul Singleton, was injured on January 11, 1926, while performing services under employment with the defendant, ’Wyatt Lumber Company, and in this action, which was filed on October 26, 1926, plaintiff seeks to recover compensation under the Employers’ Liability Statute for permanent total disability to do work of any reasonable character.

The defense interposed was that the action was premature, it being alleged that plaintiff had been placed on compensation and had been paid same in an amount exceeding the amount due at the time of the suit, and further denied that plaintiff’s injuries had resulted in permanently totally disabling him to do work of any reasonable character.

On trial, the plea of prematurity was overruled, and judgment was rendered in favor of the plaintiff for compensation at the rate of eleven and 70-100 dollars per week for a period of not .exceeding four hundred weeks, subject to a credit of three hundred and sixty-two and 70-100 ■dollars to be deducted at the beginning of the period, and four hundred and fifty-one and 45-100 dollars to be deducted at the end of the period, the date of the maturity of the first installment being fixed on August 24, 1925, and all installments to bear five per'cent per annum interest from maturity.

The decree further fixed the ’ attorney’s fees at twenty per cent of the full amount of compensation fixed by the judgment, and further decreed that the defendant should pay all costs, as well as the fees of the experts, which were fixed at -:

The defendant alone appealed from the judgment, and it urges that the judgment was erroneous on the following grounds:

First: That the plea of prematurity should have been sustained.

Second: That in any event the judgment which allowed four hundred and fifty-one and 45-100 dollars should have allowed interest on such amount from the date of the decree.

Third: That the allowance of attorney’s fees was not warranted under the pleadings or evidence.

Fourth: That the court was without authority to fix the amount of the fees of the experts.

Considering these contentions and the evidence relative thereto in the order stated.

(1) The defendant contends that although the accident and injury occurred prior to the amendment of- the statute by Act No. 85 of 1926, Paragraph (b) of Subsection 1 of Section 18 of the amendatory statute which reads: .

“Unless in the verified complaint above referred to it is alleged (where the complaint is filed by the employee or his dependents) that the employee or the dependent is not being or has not been paid, and that the employer has refused to pay, the maximum per centum of wages to which petitioner is entitled under the provisions of this act, the presentation of filing of such complaint shall be premature and shall be dismissed; when such allegation is contained in such complaint and is denied, by the employer at the time fixed for the hearing thereunder by the court, if it he shown that such allegations are without reasonable cause or reasonable foundation in fact, said complaint shall be dismissed; and the question of whether or not such allegation of non-payment is justified under the facts shall be determined by the court before proceeding with the hearing of the other issues involved”; controls, and that the evidence shows that the allegation made by plaintiff that defendant had failed and refused to pay was made without reasonable cause or foundation.

While plaintiff urges that the amendatory statute cannot be given retroactive effect, we do not deem it necessary to pass upon that question, as we think it may be conceded that the paragraph quoted should be given retroactive effect, and yet we are of the opinion that the judgment overruling the plea of prematurity was correct under the evidence.

After plaintiff was injured there was some understanding between plaintiff and defendant as to which the representative of defendant says;

“The agreement was * * * that we furnish him supplies, house rent and money as he needed it and he was to pay it back out of compensation from the insurance that was received, apply it as compensation” ;

and while it does not appear on what date the agreement was made, we assume it was after the plaintiff had returned from the hospital (as the injuries received by: plaintiff were very serious and required immediate attention) and after the first payment for compensation was made, as the account filed in evidence shows the first advances to have been made in-February.

The account shows that defendant made advances of money, supplies, etc., to plaintiff from February to October, 1926, which, together with an item for $47.00, excess medical bill, and an item of $4.45 due defendant by plaintiff for an indebtedness incurred prior to the injury, amounted to $814.15; and it further appears the insurance company remitted its chocks for the amounts of weekly compensation due plaintiff until about August 24, 1926, which remittances were by check through' defendant who presented same to plaintiff who would endorse the checks and deliver them to defendant who would collect the checks and credit plaintiff’s account with the same.

For some reason which is not made clear by the evidence but which shows that there was some dispute between the insurance company, defendant and plaintiff, which counsel for defendant states was that plaintiff, desiring to obtain cash for the checks remitted by the insurance company refused to endorse them to defendant for credit on the account, the insurance company discontinued payment.

The defendant contends that the advances were made in payment of compensation and that the amount of the advances being in excess of the amount that was due for compensation at the date of the suit there was not any amount due; and, further, that if it should be said that the amounts advanced were not in payment of compensation the evidence fails to show that'any demand had been made for payment.

We are of the opinion that the agreement of the 'parties as stated by defendant’s representative when considered in connection with the fact of the insurance company making the remittances and of their application on the account, refutes the contention that the advances made were in payment of compensation; and we are also of the opinion that under the evidence it was unnecessary for plaintiff to make a formal demand for payment of compensation, conceding that the evidence does not show that a demand was made.

Prom the evidence and statement of counsel it appears the insurance company refused to make the payments unless the plaintiff would deliver same to_ defendant to be credited on the account, which account shows one item for indebtedness due prior to the accident and which was not comprehended in the agreement of the parties; and, besides, while it may be properly said that plaintiff should abide by his agreement, yet the agreement must be considered as made with reference to the statute, and as the statute expressly provides that the claim for compensation is not subject to seizure nor assignable (Section 21) and that deductions for advances may be made with the approval of the court (Section 8, Paragraph 6), the demand made by defendant was not warranted by the statute and the refusal to pay only oh compliance with such demand relieved plaintiff of a formal demand that Would have been vain and useless.

A putting in default would be a ceremony and unnecessary in the presence of an acknowledged inability or refusal to perform. (Allen, West & Bush vs. Steers, 39 La. Ann. 586, 2 South. 199.)

(2) The total amount of advances was $814.15 and the judgment which allowed a credit of $362.70 in effect only allowed the credits for the checks which had been collected by defendant to stand, and in allowing the credit for the balance of the account or $451.45 at the end of the period substantially followed the statute (Section 8, Paragraph 6), and the only contention of defendant is that interest should be allowed on the latter amount.

The statute does not undertake to relieve persons who may be injured of 'their obligations for advances made to them during the period of their disability, but it does undertake to provide that the amount to be paid shall be secured against its application to obligations of the person injured or speculation, and the provision permitting voluntary. payments to be. deducted with the consent of the court is a concession to the employer where such claims are advanced in proceedings under the statute; and there is no provision for interest qn such claims when so advanced, and the defendant has no cause to complain of the judgment which allowed deduction for the amount of the account. (Dulaney vs. Ferd. Brenner Lumber Co., 154 La. 155, 97 South. 349; Quave vs. Lott-Batson Lumber Co., 151 La. 1052, 92 South. 678.)

(3) While counsel fqr plaintiff did not allege that they had a contract for their fees, a written contract was filed in evidence, and the judgment is in accord with the contract and the statute, and defendant has no cause to complain of the decree in that respect.

(4) It is claimed that the judgment which fixed the fees of the experts was unwarranted. However, it does not appear that defendant made any objection to the judgment in that respect before the trial court and it is too late to object on appeal. (Walker vs. White Woods Product Co., 4 La. App. 403.)

The judgment is therefore affirmed.


text:
    No. 2962
    Second Circuit
    FIRST NATIONAL BANK OF ARCADIA v. LEWIS
    (May 13, 1927. Opinion and Decree.)
    (June 28, 1927. Rehearing Refused.)

      (Syllabus by the Court.)

    1. Louisiana Digest — Appeal—Par. 729.
    Where the question whether a wife joined her husband in an act of mortgage to waive the benefit of the homestead exemption is a material point, the case will be remanded to the District Court for further testimony on that point, where the District Judge in a written opinion says she did sign the act of waiver and the certified copy of the mortgage found in the record fails to show her signature.
    Appeal from the Third Judicial District Court of Louisiana, Parish of Lincoln. Hon. S. D. Pearce, Judge.
    Action by First National Bank of Arcadia against Israel Lewis, et al.
    There was judgment' for plaintiff and defendants appealed.
    Case remanded to the District Court for further evidence.
    E. L. Walker, of Ruston, attorney for plaintiff, appellee.
    J. W. Elder, of Farmerville, attorney for Colvin-T'atum Co., defendant, appellant.
    C. B. Roberts, of Ruston, attorney for G. W. Dye, defendant, appellant.
   ODOM, J.

The issues involved in this case are correctly stated by the District Judge as follows:

“The sole question involved in this case is that of ranking mortgages resting upon the same piece of property and held by different mortgage creditors.
“Plaintiff obtained judgment against defendant in this court on April 28, 1926, for the sum of three hundred and twenty-five dollars, with eight per cent per annum interest thereon from October 1, 1924, and ten per cent as attorney’s fees, upon defendant’s certain promissory note for that sum in principal and interest and attorney’s fees. This note was secured by mortgage on seventy acres of land situated in this parish and which was the homestead of defendant, and- so occupied by him at the time. The note was made payable to the order of the maker and was by him endorsed and transferred to the plaintiff herein. It was secured by a mortgage on seventy acres, as stated above, and note and mortgage passed before notary public and by him the note was duly paraphed and the mortgage duly recorded in the mortgage record of Lincoln parish. The wife of the mortgagor joined with him in the act of mortgage and they waived their homestead rights on the property mortgaged In favor of any holder of the said mortgage note, this waiver being embodied in the act of mortgage and recorded with the mortgage. Plaintiff’s said mortgage and homestead waiver was recognized in said judgment and the property mortgaged was ordered seized and sold to satisfy the judgment.
“Execution was issued upon said judgment and the property mortgaged was seized, advertised for sale and sold by the sheriff of Lincoln parish, and was purchased by E. B. Tatum for the price and sum of five hundred dollars cash. The sheriff, however, refused to pay over the proceeds of the said sale to plaintiff until ordered and directed by the court to do so on account of the fact that there were several ¡prior mortgages on record affecting the property sold, the priority of which he was unable to determine, and electing to have ‘the court first pass upon the matter and direct him how to proceed in distributing the proceeds of the sale of the land. And thereupon the plaintiff brought this proceeding against the sheriff and the several mortgage creditors concerned to compel the sheriff to pay over to plaintiff a sufficient sum out of the said proceeds to satisfy plaintiff’s judgment in' principal, interest, attorney’s fees and costs, by ¡preference and priority over all other claims against the property sold.”
“There are five mortgage claims of record affecting the land that are of anterior date to the claim of plaintiff, four of them in the form of judgments and one a tax subrogation; and the funds on hand are insufficient to pay any two of them, except one of the smaller judgments and the tax subrogation. These judgments rank, in priority of date of registry, in the mortgage records, as follow's;
“G. W. Dye vs. Israel Lewis, recorded October 15, 1915; Colvin-Tatum Co. vs. I. Lewis, recorded December 8, 1920; Bar-ham & Co. vs. I. Lewis, recorded February II, 1922; Tax Subrogation in favor of Barham & Co. for taxes of 1920, dated August 26, 1921, recorded August 31, 1921; E. B. & S. E. Tatum vs. Lewis, recorded November 14, 1922. Then follows plaintiff’s mortgage with homestead waiver recorded March 19, 1924. But two of the said mortgages carried homestead waivers, viz.: the Barham & Company mortgage and the mortgage in favor of plaintiff. The Barham & Company mortgage is a chattel mortgage, and was recorded in the chattel mortgage record of Lincoln parish, and plaintiff’s mortgage is a land mortgage and, as such, was duly recorded in the land mortgage record of Lincoln ¡parish.”

OPINION

■ It will be noted that the District Judge says:

“The wife of the mortgagor joined with him in the act of mortgage and they waived their homestead rights on the property mortgaged in favor of any holder of the said mortgage note, this waiver being embodied in the act of mortgage and recorded with the mortgage. Plaintiff’s said mortgage and homestead waiver was recognized in said judgment, and the property mortgaged was ordered seized and sold to pay the judgment.”

Whether the wife of Israel Lewis in fact joined her husband and waived with him her homestead rights is a vital issue, for if she failed to do so the other mortgages prime that of plaintiff, having been recorded ahead of it.

Counsel for appellant calls our attention to the fact that the copy of the mortgage attached to plaintiff’s petition and filed in evidence shows that the wife of Israel Lewis did not sign that document. The copy shows that Israel Lewis signed, but the clerk who made said copy made the following notation thereon:

“(Note: Wife did not sign.)”

The lower court rendered judgment in favor of plaintiff upon the assumption and theory that the wife signed the act. He says, in so many words, that she did sign. The court either had before it evidence that she signed it or was misled by the recitals in the body of the act to the effect that the wife joined her husband and waived the homestead. But there is no evidence before us that she signed the act. As our attention has been called to this point, we must set the judgment aside and remand the case to the lower court to take testimony on the particular point whether the wife of Israel Lewis did in fact make herself a party to the act of mortgage and sign the homestead waiver.

We are constrained to do this because the judge says she did sign, whereas the document offered does not bear her signature.

For the reasons assigned, it is ordered, adjudged and decreed that the judgment appealed from be set aside, and further ordered that the case be remanded to the District Court and reinstated on the docket for the purpose of taking testimony as to whether the wife of Israel Lewis signed the act of mortgage with her husband. All costs to await the final decree.


text:
    No. 3000
    Second Circuit
    RED RIVER CONSTRUCTION CO. v. PIERCE PET. CORP.
    (June 28, 1927. Opinion and Decree.)
    (July 25, 1927. Rehearing Refused.)

      (Syllabus by the Editor.)

    1. Louisiana Digest — .Roads', Bridges and Ferries — Par. 12, 13; Bonds — Par. 8. The bond authorized by Act 224 of 1918 for the faithful performance of work done by the contractor and subcontractors includes labor performed, material furnished in the construction, erection, alteration or repair of the road, but does not include gasoline furnished, sub-contractor for use in trucks which hauled gravel.
    2. Louisiana Digest — Privileges—Par. 2; Laws — Par. 95.
    Act 224 of 1918, being an act creating a privilege must be strictly construed.
    3. Louisiana Digest — Roads, Bridges and Ferries — Par. 12, 13; Privileges — Par. 2, 4.
    In view of Article 14 of the Civil Code which provides that the words of law are understood in their most usual signification, Act 224 of 1918, not specifically including a [privilege for material or supplies .furnished for use in machines used in the construction of a road, does not create a privilege for gasoline sold to a sub-contractor for use in trucks hauling gravel.
    Appeal from the Tenth Judicial District Court of Louisiana, Parish of Natchitoches. Hon. John F. Stephens, Judge.
    Action by Red River Construction Company against Pierce Petroleum Corporation.
    There was judgment for plaintiff and defendant appealed.
    Judgment affirmed.
    Cook & Cook, of Shreveport, attorneys for plaintiff, appellee.
    Barksdale, Bullock, Warren, Clark & Van Hook, of Shreveport, attorneys for defendant, appellant.
   WEBB, J.

The Louisiana Highway Commission and the Police Jury of Natchitoches parish entered into two contracts with the Red River Construction Company-under which the latter undertook to construct two certain portions of a highway in Natchitoches parish designated as projects Nos. “430A” and “429D'”, and at the time the contracts were signed the contractor furnished bonds with the Southern Surety Company as surety, binding .itself for the faithful performance of the contract, etc.

The contractor, Red River Construction Company, sublet to C. Nordstrom that portion of the work of hauling and spreading gravel on the roadway, and the subcontractor, in the course of his work, purchased from the Pierce Petroleum Corporation oils and gasoline which the latter claimed amounted to twelve hundred and seventy-seven and 52-100 dollars and which was used in automobile trucks, etc., used in hauling the gravel; and the subcontractor failing to pay, the Pierce Petroleum Corporation made an affidavit and filed same for registry with the recorder of mortgages for the parish of Natchitoches.

In the present action the iplaintiff, Red River Construction Company, alleging that it had completed its contracts and that the Highway Commission was indebted unto it in the sum of five thousand dollars which was withheld by reason of the registry of the affidavit above mentioned, seeks to have the same cancelled and erased from the record, and also to obtain judgment for damages against the Pierce Petroleum Corporation. ■

The grounds upon which the plaintiff bases .its right to have the cancellation made are that the oils and gasoline furnished were not incorporated in the work nor used therein and were not such materials for which the payment was protected under the law, and other grounds which are not urged here.

The defendant first filed a plea of estoppel (which does not appear to have been passed upon) and it then answered admitting the allegations of fact and asserting the validity of its claim, and that it should be paid out of the funds remaining due to the contractor and prayed for judgment in reconvention against the plaintiff and for an order authorizing the amount' of the judgment to be paid from the funds due to the contractor by the Commission.

On trial, judgment was rendered in favor of the plaintiff, ordering the cancellation of the registry of the affidavit, but rejecting plaintiff’s demand for damages, and from that judgment defendant appeals.

OPINION

The parties concede that the bonds which were given by the contractor were given under Act No. 224 of 1918 and. that the provisions of that act as to the obligation of the contractor and surety control. (State vs. Buie, 144 La. 42; Miller vs. Bonner, 163 La. —, 111 South. 776); and without discussion of the procedure provided by the statute, they apparently concede that the sole question presented is whether or not one who furnishes gasoline and oils to a subcontractor for use in motor trucks and tractors used by a subcontractor in hauling and spreading gravel on a roadway is protected under the provisions of the .statute requiring the contractor to give a bond for the faithful performance of the work “with an additional obligation for the payment by the contractor and by all subcontractors for all work 'done, labor performed or material furnished in the cnstruction, erection, alteration or repair of such road”, and that in event of its being held that such merchandise is comprehended within the meaning of the statute, that judgment could be rendered against the contractor; and we confine the opinion solely to the question conceded to be presented.

The defendant contends that the merchandise furnished being necessary in executing the work, that the language of the statute, if necessary, should be liberally construed so as to bring it within its protection, citing many cases from other states which indicate that the overwhelming weight of authority under the common law' is in favor of a liberal construction in favor of the furnisher of materials in an action on bonds' given by the contractor under statutes providing for such bonds in contracts for the execution of public works; but we have not the statutes which were considered in the cases cited before us and, conceding a liberal construction is the rule in other jurisdictions, such rule does not prevail in this state.

The statute, considered with relation to the public body having the work done, provides that under certain circumstances the public body shall be responsible for the debts of its contractors, and, considered with relation to the contractors, it ■undertakes to make them responsible for tlie ’ debts of their subcontractors, and from either point of view, considering the public body as any other person having the power to contract, the statute is in derogation of common right, and it has been the universal rule in this state to construe such statutes strictly.

However, we do not understand that a strict construction of the statute requires that a limited or restricted meaning should be given to the words, “material furnished in the construction, erection, alteration or repair of such road”, as that the material must be of such a nature as to constitute a part of the completed work and of the nature to warrant a privilege, as the statute does not create a privilege nor, considering the amount of the security required, that the words could be given such a comprehensive meaning as to secure all obligations incurred by the contractor or subcontractor, even though such obligations may be incidental to the work undertaken.

Counsel have not cited any decision by the Supreme Court of this state in which the meaning of the language quoted has been defined, when used in a statute or contract, but Article 14, C. C., declares that:

“The words of a law are generally to be understood in their most usual signification, without attending so much to the niceties of grammar rules as to the general and popular use of the words.”

And we are of the opinion that the usual signification of the language of the statute relates to those who furnish road material rather than material which may be used in placing the material on the road, and that defendant is not protected under the ■ statute.

We ’are of the opinion that this construction is especially authorized by subsequent legislation, Act No. 271 of 1926, Which amended Act No. 224 of 1918, and especially provided that in addition to the stipulations required in the bond of the contractor by the latter act the bond should also stipulate for the payment 'of “all material or supplies furnished for use in machines used in the construction, erection, alteration o.r repair of said building, road, work or improvement” (Interstate Wholesale Grocery Co., Inc., vs. Prutsman, 1 La. App. 781) in that the statute being subject to strict construction the subsequent inclusion of the claim set up by defendant must be considered as a legislative interpretation that the former statute did not protect such claims.

The judgment appealed from is therefore affirmed.


text:
    No. 2865
    Second Circuit
    AUTO ELECTRIC CO. v. WILKINSON
    (June 28, 1927. Opinion and Decree.)

      (Syllabus by the Editor.)

    1. Louisiana Digest — Obligations—Par. 9, 10.
    Work done on an automobile is authorized where the evidence shows that the owner visited the shop at intervals and saw the work being done.
    2. Louisiana Digest — Appeal—Par. 625, 630.
    The evidence, after being weighed, showing a slight overcharge made for labor and material in' repairing an automobile, thq judgment will reduce the amount to conform therewith.
    Appeal from the City Court of the City of Shreveport, Louisiana. Hon. David B. Samuel, Judge.
    . Action by Auto Electric Company against J. V. Wilkinson.
    There was judgment for plaintiff and defendant appe’aled.
    Judgment affirmed.
    Cook & Cook, of Shreveport, attorneys for plaintiff, appellee.
    Herndon & Herndon, of Shreveport, attorneys for defendant, appellant.
   WEBB, J.

In this action plaintiff alleged that it had repaired an automobile belonging to defendant at the latter’s request, and prayed for judgment for the amount of the bill, consisting of items for materials or parts furnished and labor, amounting to two hundred and eighty-three and 10-100 dollars, subject to a credit of twenty-five dollars.

The. defense interposed was that a part of the work had not been authorized, and, further, that the charges were unreasonable and that the work had been improperly executed.

On trial judgment was rendered in favor of plaintiff for one hundred and seventy ve dollars, with interest and costs, and after applying for a new trial, which was refused, defendant appealed, and on appeal the cause was remanded for a new trial which resulted in the former judgment being reinstated, from which defendant appeals.

Without going into detail, we find that defendant failed to establish the alleged facts upon which the motion for a new trial was ordered, or that the evidence offered materially changed the situation as presented on the original record.

Considering the defenses in their order:

First: That a part of the work was not authorized; there is, as to this, some conflict between the parties. The evidence, however, shows that the automobile was at the plaintiff’s shop for two or three months, during which time defendant visited plaintiff’s shop at intervals and saw the work which was being done, which he admits was more than he originally requested; and we cannot say that the trial court erred in holding the work to have been authorized.

Second: As to. the charges being unreasonable, the evidence related to the charges made for material, and for labor, and we think that with the exception of items amounting to seventeen dollars, the material charged was shown to have ■' een furnished and of the value claimed; but as to the charge for labor, we do not think the amount was established.

The plaintiff was operating a small business and the method of keeping account of the time employed on the car was for the mechanics to file a slip showing time employed for each day, which it is stated would be carried forward to the defendant’s account at the end of each day, when the slips would be destroyed, and the charge made is stated to have been for the aggregate shown by the slips; but there was not any attempt made to produce the memoranda which is said to have been made from the slips at the end of each day, and the testimony of plaintiff as to that charge we do not think established it with sufficient certainty. It is certain, however, that some labor was required to install the parts and do the work on the car, and that plaintiff is entitled to recover something on that account; and as the only evidence offered as to the time and amount which would have been required for such work is that of one of defendant’s witnesses, who fixes the amount at fifty-five and 50-100 dollars, we think that such amount should be allowed.

Third: The evidence as to the charge that the work was improperly done fails to show that the specific repairs made were improperly executed, and even though it should be said that the obligation of plaintiff extended beyond the execution of the specific repairs in a proper manner or to place the car in good condition, the evidence does not show it was not placed in such condition or that the subsequent repairs were necessary to correct work done by plaintiff.

We find that the plaintiff should recover judgment for the amount claimed for material, less seventeen dollars, and for work and labor in the sum of fifty-five 'and 50-100 dollars, or a total of one hundred and seventy-one and 60-100 dollars; and the judgment which allowed one hundred and seventy-fiye dollars is therefore amended so as to fix the amount of recovery at one hundred and seventy-one and 60-100 dollars, and, as thus amended, the judgment is affirmed; plaintiff to. pay the costs of the original appeal, and defendant to pay all other costs.


text:
    No. 2780
    Second Circuit
    EATMAN v. T. & P. R. R. CO.
    (June 28, 1927. Opinion and Decree.)

      (Syllabus by the Editor.)

    1. Louisiana Digest — Carriers of Passengers and Goods — Par. 125, 135.
    The provisions of Section 23 of the Uniform Bills of Lading Act No. 94 of 1912 and Article 2754 of the Civil Code do not limit the non-liability of the carrier to events stated therein but the carrier must show that the loss or damage to goods was occasioned by accidental or uncontrollable events. This includes that the carrier was free from fault.
    Appeal from' the Eleventh Judicial District Court of Louisiana, Parish of DeSoto. Hon. Hal. A. Burgess, Judge.
    Action by Hardee E. Eatman against Texas & Pacific Railway Company.
    There was judgment for plaintiff and defendant appealed.
    Judgment affirmed.
    Phelan W. Eatman, of Shreveport, attorney for plaintiff, appellee.
    Wise, Randolph, Rendall & Preyer, of Shreveport, and Parsons & Colvin, of Mansfield, attorneys 'for defendant, appellant.
   WEBB, J.

The defendant appeals from a judgment holding it liable for damages sustained by a carload lot of merchandise shipped oyer its line by Reuleaux & Company from New Orleans to Grand Cane, ■Louisiana, and a penalty of fifty dollars assessed against it for failure to make a timely adjustment of the claim as provided by Act No. 29 of 1908.

The sole ground urged here for the reversal of the judgment is that the trial court failed to. properly weigh the evidence offered in support of the defense that the car had, been improperly loaded by the consignor and that the damage arose from such improper loading; while plaintiff contends that the evidence offered in support of the defense was inadmissible, as the bill of lading did not show that the car had been loaded by the consignor and at any rate that the evidence fails to show the damages to have resulted from improper loading.

The bill of lading was in the usual form, to the shipper’s order with instructions to notify the plaintiff, and there was noted on the bill “signe'd for on connecting line switch ticket”, and on trial defendant introduced evidence, over plaintiff’s objection, showing that the car had been received by defendant from another carrier and that the notation referred to a ticket or receipt which had presumably been issued by the other carrier to the. consignor, and the testimony of the person issuing the ticket, who stated that the car had been loaded by J. J. Garvey & Company.

The objection made by plaintiff was based on the provisions of Section 23 of the Uniform Bills of Lading Act (Act No. 94 of 1912), which reads in part:

“The carrier may also by inserting in the bill the words, ‘shipper’s load and count,’ or other words of like purport, indicate that the goods were loaded by the shipper and the description of them made by him; and if such statement be true, the carrier shall not be liable for damages caused by the improper loading or by the non-receipt or by the misdescription of the goods described in the bill of lading.”

And that parole evidence was not admissible, etc.

While Article 2754, C. C., provides that:

“Carriers and watermen are liable for the loss or damage of the things intrusted to their care, unless they can prove that such loss or damage has been occasioned by accidental and uncontrollable events.”

The non-liability of the carrier is not confined to such events, and where the loading has been by the shipper the general rule is stated in Corpus Juris, Volume 10, page 121, No. 147, as follows:

“In general the loading and unloading of goods are under the carrier’s control, and he is responsible for any loss or injury incidental thereto. Nevertheless when the shipper assumes the responsibility of loading the car and fails to see that it is properly prepared for the transportation of the particular article which he is loading, he assumes responsibility for all defects in loading which are necessarily invisible to the agent of the carrier .who accepts the freight, or which he cannot discern by ordinary observation or such inspection as he can readily make, and if any loss or injury results from defective loading the carrier is not liable. * * * So the 'rule is broadly laid down in many decisions that when the shipper loads freight on a car for shipment the carrier who receives the car as loaded is not liable for damages which arise from the defects in the loading; that when the shipper assumes the duty of loading the cars for shipment, the carrier is not called on to see that the shipper has properly performed his duty in this regard. * * * However, this view has not met with universal acceiptance, and in a decision of the United States Supreme Court (Hannibal vs. St. J. R. R. Co., 12 Wall. 262, 20 Law Ed. 423), it was said: ‘The liability of the common carrier attaches when the property passes, with his assent, into his possession and is not affected by the car in which it is transported or the manner in which the car is loaded. The common carrier is regarded as an insurer of the property carried and upon him the duty rests to see that the packing and conveydnce are such as to secure its safety. The consequences of his neglect in these particulars cannot be transferred to the owner of the property.’ * * * ”

And if the evidence was not admissible, considering that the bill of lading stipulated against damages arising from the fault of the shipper, it must result from the effect of the statute which must be considered as limiting the defense made to thoste instances where the bill of lading has inserted therein the words, “shipper’s load and count”, or other words of like purport.

The bill of lading in the present instance appears to have been negotiable, and to have been so considered by the defendant, and we are of the opinion that the defense set up by it was not available to it, and that the objection made to the evidence should have been sustained', as we do not conceive that the notation “signed for on connecting line - switch ticket” was equivalent to the words, “shipper’s load and count”, which we are of the opinion must, under the statute, appear on the bill of lading in order that the carrier may avail itself of the defense that the damage resulted from the fault of the shipper in loading the car.

However, if the defense was available to defendant and the evidence admissible, it does not show that the car was loaded by Reuleaux &. Company, the shippers, but by J. J. Garvey & Company, with whom neither the shipper nor the plaintiff are shown to have had any connection; and further conceding that the car was loaded by the shipper, the evidence does not show that the manner in which the car was loaded was the proximate cause of the damage.

The barrels weighed about six hundred and fifty pounds each and were set upon their ends, and while the evidence indicates that they did not fill the car and that they should have been braced, it also shows that there was some timber or lumber in the car which might have been used for bracing, and it is not stated that the barrels were not braced.

The record does not contain any evidence as to the manner in which the shipment was handled by the defendant, and even though the barrels may have been braced and the car properly loaded, the strongest bracing would yield in some instances where the car was improperly handled; and we think that conceding that the car was loaded by the shipper and that it was not loaded as the witnesses for defendant would have suggested, that defendant could not escape liability for the damages sustained by the shipment in course of transit without [proof that the shipment was properly handled.

“According to the law and jurisprudence of this state, to be relieved from the liability the carrier must show that the loss or damage has been occasioned by accidental or uncontrollable events, and this involves the proposition that the carrier must prove it was free from fault.”

National Rice Milling Co. vs. N. O. & N. E. R. R. Co., 132 La. 615, 61 South. 708; also

Southern Cotton Oil Co. vs. N. O. & N. E. R. R. Co., 146 La. 541, 83 South. 821.

The judgment appealed from is affirmed.


text:
    No. 2869
    Second Circuit
    HARDIN v. HUCKABAY
    (June 28, 1927. Opinion and Decree.)
    (July 25, 1927. Rehearing Refused.)

      (Syllabus by the Court)

    1. Louisiana Digest — Burial Places — Par. 3.
    A public cemetery is not a nuisance per se and if the ground be arranged and ■drained and the burial of the dead be conducted in a proper manner, it will not be a nuisance, public or pi’ivate.
    2. Louisiana Digest — Buri.al Places — Par. 3, 5.
    As public cemeteries for the orderly and decent burial of the dead are necessary requirements for all populous communities, private convenience must yield to the convenience of the public in fixing sites for them, and courts should be particularly careful not to interfere ■ to prevent such establishments unless the mischief be undoubted and irrevocable.

      3. Louisiana Digest — Burial Places — Par. 3; Injunction — Par. 6, 8, 18, 35.
    If a cemetery be located near private residences and burial therein be conducted in an indecent or gruesome manner within sight of the inhabitants, or if the burial of the dead there will pollute the springs or wells of the inhabitants, or if the surrounding atmosphere will be corrupted with nauseous or noxious odors so as to endanger the health or interfere with the physical comfort of the inhabitants, it is a nuisance and courts will grant injunctive relief.
    4. Louisiana Digest — Burial Places — Par. 3.
    A public cemetery is not a nuisance and its establishment can not be prohibited because it depreciates the market value of the property in its neighborhood.
    5. Louisiana Digest — Burial Places — Par. 3, 5.
    Citizens wjio built their residences near to and within sight of an established public cemetery can not prohibit the enlargement of the old one when the only effect of the enlargement will be to establish tombs and monuments nearer to this property.
    Appealed from the First Judicial District Court of Louisiana, Parish of Caddo. Hon. J. H. Stephens, Judge.
    Action by J. R. Hardin, et al against H. H. Huckaby, et al.
    There was judgment for defendants and plaintiffs appealed.
    Judgment affirmed.
    Thigpen, Herold, Lee & Cousin, of Shreveport, attorneys for plaintiffs, appellants.
    John B. Files, of Shreveport, attorney for defendants, appellees.
   ODOM, J.

Plaintiffs own property and reside in the town of Vivian. They seek, by this suit, to restrain- the defendants from converting block 16 of that town into a cemetery and selling lots therein for burial purposes.

They allege, in substance, that the plot of ground which defendants are about to convert into a cemetery is located in the residential section of the town; that it was originally laid out and plotted for residential purposes; that upon the faith of said ground being laid out for such purposes they bought lots and built their residences in that vicinity; that they have dug wells upon their properties from which they use water, and that the burial of bodies in the proposed cemetery will pollute the waters of their wells; that the conversion of said property, which is in immediate proximity to their homes, into a cemetery will subject them and their families to the constant evidences and reminders of mortality; that they and their families will be confronted in their homes with funeral processions, views of coffins and actual interment of deceased persons, with mourners going to and coming out of the cemetery; that the effect of said views will be depressing to them, their wives and children, and that the psychological influence of these conditions will work irreparable injury to them, and that the establishment of the cemetery in that locality will cause their property to depreciate in value and thereby cause them material loss; and, finally, that the conversion . of said property into a cemetery is a wrongful use of said property and will work irreparable injury to them.

Defendants, in answer, admitted that they are about to convert said property into a cemetery, but deny generally the other allegations of plaintiffs’ petition; and they further allege that said property adjoins an old cemetery which was. established many years ago; that they are not establishing a new cemetery but merely enlarging the old one, in which there is but little more space, and that the enlargement of said cemetery is necessary for the public good, and that the mayor and board of aldermen of said town, by ordinance, approved the use of said property for cemetery purposes; and, finally, that a portion of said property is already in use as a burial ground.

The District Court rejected plaintiffs’ demands and they have appealed.

OPINION

Vivian is a town of about 2500 inhabitants. It was incorporated and platted many years ago. About the time it was incorporated there was established outside of and adjacent thereto, at the northwest corner, a cemetery which is now referred to as the old cemetery. The testimony shows that practically all the space in the old cemetery has been taken and that it has become necessary either to enlarge it or to establish a new one.

As far back as 1918 and especially in 1920 and 1921 the question of enlarging the old cemetery was agitated, the plan then suggested and discussed being to extend it down into the corporate limits of the town so as to include block 16 of the town, which block is in the northwest corner thereof and adjacent to the old cemetery. Nothing however, was done until 1926, when J. C. Smith, one of the defendants, was elected • mayor. He proposed enlargement of the old cemetery by adding or annexing thereto block 16 of the town. He proposed to H. H. Huckabay, the other 'defendant, that he, Huckabay, purchase said block 16 and hold the same as trustee, the plan being to purchase • the property, divide the same into burial plot.s and sell them, the proceeds of the sale to be used, first to pay the purchase price of the property, and the balance to be used in beautifying and improving the property and to erect a pavilion and small park on the south side thereof. Huckaby bought the property and Smith was to sell the lots. Neither Huckaby nor Smith was to receive any 'profit, but Smith, it seems, expected to be paid for his services in selling the lots. On September 17, 1926, the mayor ' and town council adopted an ordinance approving the use of said property as a public cemetery. Smith advertised the lots for sale, sold some twelve or fifteen of them, and was stopped by these proceedings.

It is well settled that a cemetery is not a nuisance per se, although one may be so located, used and operated as to become such. The use of ground for a public cemetery is not unlawful. Act No. 136 of 1898, providing for the creation and government of municipalities, specifically grants to such corporations the power to acquire and hold property within or without the corporate limits of the town for cemeteries.

Not only is the use of property for cemeteries lawful but it may be added that it is as much the duty of municipal corporations or the public, as the case may be, to provide suitable places for the repose of the dead as to provide for the health and comfort of the living.

In 5 Ruling Case Law 233, the editors state the* general rule of nuisance as applying to cemeteries as follows:

“As public cemeteries for the orderly and decent sepulture of the dead are necessary requirements for all populous communities, private convenience must yield to the convenience of -the public in fixing sites for them, and the courts should be particularly careful not to interfere to prevent such establishments unless the mischief be undoubted and irrevocable. The decided weight of authority may be said to be to the effect that a cemetery is not a nuisance per se * * * if the ground be arranged and drained and the burial of the dead be conducted in a proper manner, it will not be a nuisance, public or private.”

If, on the contrary, the cemetery be located near private residences and burial therein be conducted in an indecent or gruesome manner within sight of the inhabitants, or if the burial of the dead there will pollute the springs and wells of the inhabitants, or if the surrounding atmosphere will be corrupted with nauseous and noxious odors so as to endanger the health or interfere with the physical comfort of the inhabitants, it is a nuisance and courts will grant injunctive relief.

There is no suggestion that the proposed cemetery will be' operated otherwise than in an orderly and decent manner or that the burial of the dead there will be offensive to the physical senses. The testimony shows that it is the purpose of those who are promoting the enlargement of the cemetery to beautify the premises, to erect a small pavilion and park on the side next to plaintiffs’ residences, and to make the premises as attractive as possible.

Plaintiffs seek to have the court hold that the use of block 16 as a burial ground will, as to them, constitute a nuisance for three reasons, briefly stated as follows:

First, that the waters of, their wells will be polluted.

Second, that the value of their properties will be decreased; and

Third, that they and their families will be materially disturbed and depressed by the constantly recurring memorials of death, such as funeral processions and the sight of tombstones.

The first (point falls for lack of proof. The testimony shows that only two of the six plaintiffs use water out of wells on their premises, and while these wells are within a comparatively short distance, the nearest one being 220 feet from the line of the property proposed as a cemetery. There is no testimony whatever to show that the waters of their wells will become polluted. The testimony indicates that the wells are supplied with water from a sand stratum some thirty feet beneath the surface, and there is nothing to show that even though water should drain towards them from the graveyard it would not be purified by its drainage through the sand and become perfectly wholesome when it reaches the wells. The other plaintiffs use water from pipe-lines, and therefore have no ground of complaint on this point.

On the second point, that is, as to whether the value of their properties would be depreciated on account of the use of block 16 for cemetery purposes, the testimony is conflicting. Each and every one of the plaintiffs testified that they would suffer material loss on that account. On the contrary, there were as many, if not more, witnesses on the other side who testified that the -use of the property as proposed will not depreciate the price of plaintiffs’ properties in the least, and they point out the fact that there are residences just across the street or road from the old cemetery and that it has never been claimed that the presence of the old cemetery has caused the value of these properties to depreciate.

It is probably true that the witnesses called on the other side are partisan, and we have no doubt that their opinions are influenced at least to some extent by their interest in this suit. The testimony as a whole impresses us that it is probably true that plaintiffs could not at this time realize as much for their properties as they could some time ago, but we are not convinced that the depression in price has been brought about by the presence of the proposed cemetery. Vivian is what is generally termed a “boom town.” The discovery of oil in that vicinity caused it to grow rapidly, but the “boom” subsided, and there is testimony to the effect that not only has the price of property in that section taken a slump but the same is true in other parts.

We think plaintiffs’ injury in this respect is more fancied than real.

However, if it should be conceded that plaintiffs have suffered some damage on that account, it does not follow that they have a right of action on that ground.

The testimony shows that it is to the interest and convenience of the general public that this particular piece of ground be annexed to the old cemetery and be used for a burial ground and that the vast majority of the inhabitants of the town want it so annexed and used, and, as stated, the governing authorities of the town have approved, by ordinance, its use as such.

As already stated, it is not proposed to establish a new cemetery but merely to enlarge the old one by taking in this property. The old cemetery cannot be extended in any other direction, and it is thought by the governing authorities of the town and by a majority of the inhabitants thereof that the best interests of the public will be subserved by the enlargement of the old cemetery rather' than the establishment of a new one. Under such circumstances, the private rights of the citizens, insofar as property values are concerned, must yield to public convenience and necessity, the use of the property for a cemetery being lawful.

In the case of Dunn vs. Austin, 77 Texas 139, 11 S. W. 1125, and in Elliott vs. Ferguson, 37 Texas * * * 8.3 S. W. 86, it was specifically held that the mere fact that property is rendered less valuable by the proposed establishment of a cemetery near it, is not good ground for an injunction to restrain its use as such; and in Lambert vs. City of Norfolk, 108 Va. 259, 61 S. E. 776, it was held that a statute providing that the owners of adjacent property shall have a right of action when damage is done to property by the establishment of a cemetery, has reference to injuries to the corpus of the property or some right connected therewith, and that it does not give to the owner of adjacent property a right to recover because the cemetery renders his property less desirable or valuable.

See' 5 Ruling Case Law 237.

In City of New Orleans vs. The Wardens of the Church of St. Louis, 11 La. Ann. 244, the court held, to quote the syllabus:

“A cemetery is an indispensable part of every city, or town, and wherever situated, must be in the. neighborhood of private property. Such cemetery is not a nuisance because it depreciates the marketable value of the property in its neighborhood.”

In Rea vs. Tacoma Mausoleum Association, 103 Wash. 429, 174 Pac. 961, it was held that the erection within a few feet of a dwelling of a mausoleum for the burial of the dead cannot be enjoined, although its presence would seriously affect the value of the property, if there would be no fumes or drainage to affect the physical senses or health of those in the neighborhood.

See, to the same effect, the case of Hume vs. Laurel Hill Cemetery, 142 Fed. 552 (565), and Woodstock Burial Grounds Association vs. Haber, 35 Atl. 431.

Plaintiffs’ last and apparently most serious complaint is that the members of their families will be annoyed and depressed by the funeral processions and the constant recurring memorials of death.

Conceding that to be true, the enlargement of the cemetery, as now proposed, will not make conditions worse for them in that respect than they have been during all the years they have lived in their present residences.

The testimony shows that they live within sight of the entrance to the old cemetery, which has been used over a period of many years, and which had been established and used long before these plaintiffs purchased the lots on which they built their residences.

The testimony also shows that practically every funeral procession which passes into the old cemetery passes directly in front of their residences or in close proximity to and within sight thereof. The residences of five of the six plaintiffs front on Tennessee street, not towards the graveyard. That street leads west from the main portion of the town towards the cemetery. One of the churches of the city is on that street. Funeral processions proceed from the church out that street, passing directly in front of their homes, and if not on that street, on one only a block away and within sight. Whichever way they go, they enter the cemetery as now established in plain view. These conditions prevailed when and long before plaintiffs established themselves where they now live.

The testimony shows that the entrance to the cemetery, as extended, will be the same as the entrance to the old cemetery. The enlargement of the cemetery will, it is true, bring it nearer to plaintiffs’ homes, but the number of funeral processions, about which plaintiffs complain, will be no more numerous in the future than in the past.

• The enlargement of the cemetery as proposed at this time will not be any invasion of their rights and we fail to see that conditions for them will be made any worse, except that, as stated, the graveyard will be brought a little nearer to them. When they built their present residences they were confronted with the very conditions of which they now complain. For that reason, we think plaintiffs’ have no right to complain.

But as counsel have ■ so strenuously stressed the point that a cemetery is a nuisance even though there is nothing about it to injure the health of the inhabitants or offend their physical senses merely and solely because the presence of funeral processions and monuments of the dead sadden and depress them, we go further and state that we do not think that alone is sufficient ground for relief.

In order to become a nuisance, a cemetery must produce actual, physical discomfort or violate the sense of decency. Mere undesirableness by means of social or other prejudice is not sufficient. The law will not declare a thing a nuisance merely because it is unpleasant to the eye and a violation of good taste. The law guards and upholds the material rights of the citizens, but it cannot go further and suppress. the use of property for lawful and necessary purposes solely because such use offends the esthetic tastes of the individuals and may cause them unpleasant thoughts.

In support of these conclusions, we cite the following cases.

Rea vs. Tacoma Mausoleum Assn. 174 Pac. 961.

Hume vs. Laurel Hill Cemetery, 142 Fed. 552, et seq.

Belleview Cemetery Co. vs. McEvers, 50 South. 272.

Musgrove vs. Catholic Church, 10 La. Ann. 431.

Barnes vs. Hawthorn, 54 Me. 124.

Woodstock Burial Grounds Assn. vs. Haber, 68 Vt. 488, 35 Atl. 431.

Lambert vs. City of Norfolk, 108 Va. 259, 51 S. E. 776.

Ellison vs. Commissioners, etc., 58 N. C. 57; 75 Am. Dec. 430.

Counsel have cited but few decisions in support of their respective contentions, but we have made an independent investigation of the authorities and have read many decisions on the subject and have found. no decision in which injunctive relief was granted a property owner upon the sole ground of the mere presence of a cemetery or other place for the burial of the dead.

We have found many cases where the courts have suppressed the use of ground as- cemeteries, but those cases are uniformly based upon proof of offensive drainage or fumes. A superficial reading of some of the cases might lead to a different conclusion, but when critically examined it will be found that there was proof of the emission of offensive fumes or drainage affecting the health or physical senses of the inhabitants.

Counsel for plaintiffs cite the case of Osborn vs. City of Shereveport, 143 La. 932, 79 South 542, in which it was held that in the absence of any prohibitive ordinance an undertaker may be prevented from establishing his business among residences where such business has not theretofore been conducted.

That ease is easily distinguishable from the case at bar. The major question presented in that case was whether the city of Shreveport possessed the power and authority to prevent the location of establishments in certain sections of the city where nauseous and unwholesome businesses may be carried on and to restrict the same within certain limits, and the court maintained the city’s right to do so.

But it was also held that in the absence of a prohibitory ordinance an undertaker could be prohibited from establishing his business in residential sections where none such had been before. But the court was there considering an undertaking establishment and not a cemetery. There is a vast difference between the facts before the court in that case and those in the case at bar. In that case it was admitted by the witnesses called for the undertaker that—

“a swollen corpse, salvaged from the river, in midsummer, emits an unpleasant odor.”

The court speaks of a “stench” being emitted from such establishments, and says:

“The courts, we think, may safely take it for granted that, with rare exceptions, civilized human beings are in a greater or less degree made uncomfortable by foul odors, and by none more so than by those emitted from a badly decomposed human body.”
“It may be that bad cases are infrequent in plaintiff’s establishment, and that the stench emitted by them is ‘brought under control’ as rapidly as possible; but a single experience of air so laden would, as we imagine, more than satisfy the average individual for the period of his natural life, and 15 minutes woulij. be quite long enough for the experience.”

While it is true that the court, in commenting, said that to the incidents mentioned there is to be added the fact that the business is itself a gruesome one and mentioned the psychological influence of being confronted with “death, and its woeful trappings in the shape of hearses and other vehicles, carrying in and out of a neighboring building the mortal remains of some fellow being, is no more enlivening nor wholesome than would be the constant presence of the same corpse, or the immediate proximity of a grave yard.”

It is apparent, however, that the court’s decision was influenced by the fact that an undertaking establishment is a gruesome one and that at times a stench is emitted therefrom, even though such business is conducted in the most careful manner and under approved methods; and the same thought, we think, underlies all the decisions where courts have suppressed the use of property as grave yards.

In the case at bar, there is no suggestion that the grave yard will be offensive in the least to the physical senses.

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


text:
    No. 2767
    Second Circuit
    WALKER v. CURRIE
    (June 28, 1927. Opinion and Decree.)

      (Syllabus by the Court)
    1. Louisiana Digest — Appeal — Par. 493, 595.
    Where -the judgment of the lower court appears to be supported by testimony and the appellant does not appear in this court by brief or otherwise to point out errors therein, the judgment will be presumed to be correct, and in the absence of errors patent on the face of the record, the judgment will not be disturbed.
    Appealed from the Second Judicial District Court of Louisiana, Parish of Bienville. Hon. John S. Richardson, Judge.
    Action by Allen Walker against J. E. Currie, sheriff, et al.
    There was judgment for plaintiff and defendants appealed.
    Judgment affirmed.
    Wimberly & Wallace, of Minden, attorneys for plaintiff, appellee.
    Drew &' Drew, of Minden, attorneys for defendants, appellants.
   ODOM, J.

The sheriff of Bienville parish seized a lot of cotton under a writ of fi. fa. issued in the case of Crichton Company, Ltd., vs. Isaiah Miller, said property being seized presumably as the property of Isaiah Miller.

The plaintiff, Allen Walker, claimed the ownership of the cotton and enjoined the sale.

The testimony shows beyond question that the plaintiff owns the cotton in dispute. He leased land' from Jobie Miller on the share system, the agreement being that he should pay to the land owner one fourth of the cotton produced for the use of the land.

There is also some’ testimony that plaintiff, or some member of his family, leased, some land from Isaiah Miller on the same-terms, and that some of the- cotton seized', was produced on Isaiah Miller’s land. But. whether the cotton was produced on the.land of Isaiah Miller or Jobie Miller makes no difference, for it is clear that three-fourths of the cotton seized was the property of plaintiff and not that of the judgement debtor,, Isaiah Miller.

The lower court found and held that plaintiff was the owner of the cotton in dispute and enjoined its sale by the sheriff. His judgment is amply supported by the testimony.

Since the defendant lodged this appeal in this, court it has not appeared to argue the case orally nor has it • filed briefs in support of its contentions.

Where the findings of the lower court are sustained by the evidence and the appellant. has not appeared and pointed out any errors therein, the judgment will be presumed to be correct, and in the absence of errors patent on the face of the record the judgment will not be disturbed. Bynum vs. Lerber, 55 La. 760, 99 South 590.

The judgment is affirmed with costs.