text:
    No. 683
    First Circuit
    COLLINS v. MAGEE
    (October 8, 1930. Opinion and Decree.)
    (December 1, 1930. Rehearing Refused.)
    Benj. W. Miller, of Bogalusa, attorney for plaintiff, appellant.
    Brock & Carter, of Franklinton, attorneys for defendant, appellee.
   ELLIOTT, J.

Elinore W. Collins, doing business under the name of Federal Finance Association, is the plaintiff in this suit against E. L. Magee. The suit is on a note for $100, with interest, and 15 per cent attorney’s fees, signed by E. L. Magee and Dallas O. Magee in solido, made payable to the order of the Brodie-Burnham Company at Chicago, 111., and by its indorsement made payable without recourse to the order of Federal Finance Association.

The plaintiff alleges that she is the owner and the holdei of the note in the usual course of business before maturity for valuable consideration without notice that same had been previously dishonored, if such was the case.

The defendant denies plaintiff’s alleged ownership. He admits that she holds it, but denies that she is the owner thereof, and alleges that it is yet held by the Bro-die-Burnham Company, to whom it was made payable. That the agent of the Bro-die-Burnham Company acquired it from him by fraud and misrepresentation, its said agent representing to him that what he was signing was merely an agreement authorizing his minor son, Dallas Magee, to sign a contract.

That he did not know that he had signed a note or obligated himself to pay any sum whatever until demand was made. That there was no consideration for the note; that its transfer to plaintiff was a mere collection scheme, the plaintiff well knowing when she accepted it for collection, that there was no consideration for the same.

E. L. Magee, defendant, relating what was said to him and explaining how he came to sign the note, abbreviated to substance and effect when such can be done without changing the meaning, says; “I was sick in the bed. A young man came into the room with my boy Dallas. The man told me that there were two scholarships to be let by the Franklinton school; that this boy of mine wanted the course, or he wanted him to have it. I told him that I was sick and didn’t want to discuss it with him. He said it was an urgent matter and had to be attended to at the time if they got this course of study, of some kind. He kept insisting. I said I wanted to discuss it with my son, T. J. Magee, attorney at Mansfield, and if he said it was all right I would go into it; if not, I didn’t want to fool with it. He said he had visited Mansfield and called on my son, T. J. Magee; that the young man in the office was now working with him. I said, I know it. He said that T. J. Magee gave his approval of Dallas taking the course; that he was taking it himself. That caused me to feel favorable to it. I found out later there was nothing to that; that it was not true at all. He said that $30.00 would, cover the cost of the course; that I would have to sign a permit of release, as my son was a minor. That me or my wife could sign the release; that it would be very little trouble to me if I or my wife signed it and gave him a check or cash for $30.00 for the course.

“That he did not realize that he was signing a note, but.thought he was signing an agreement to release the boy as a minor. That when written to and told that he had signed a note, he wrote back and said he did not; that he had paid it by check. That at the time of signing the note he also paid the party $30 cash or gave him a check for that amount.”

James T. Magee, defendant’s brother, and C. C. Simmons say they were in the room with defendant at the time and heard the conversation between him and the party who secured his signature to the note, and they both corroborate him as to what was said. They say that they raised defendant up in the bed so he could sign his name to what was said to be a minor’s release.

It was admitted in the note of testimony that, if T. J. Magee was present, he would swear that he is the son of E. L. Magee, the defendant. That he is a practicing attorney at Mansfield, DeSoto parish, La. That no representative of the Brodie-Bumham Company or the Federal Finance Association or Elinore W. Collins has ever called on him, or that he had ever given his indorsement of any course, correspondence course, or any business carried on by them or either of them. That the first he ever heard of them or of their course or of any indorsement or any notice that he ever had of any transaction with them was when his father, E. L. Magee, told him what the agent of this company or correspondence school said, or the statement made by the agent of their school or company.

The testimony of the agent, who secured defendant’s signature to the note was not taken, his name not mentioned, his whereabouts not disclosed. A name written at the top of the note may be that of the party; it cannot be made out with certainty, the evidence does not throw any light on that matter.

The failure to take the testimony of the party who obtained the note is not explained. The statement of the agent that T. J. Magee had approved of the course for Dallas and was taking it himself was calculated to deceive the father, E. L. Magee, as to the merit of the course, and did influence him, and, according to the uncontradicted testimony of T. J. Magee, the statements of the agent on that subject were untrue.

Then again it appears from the uncontradicted testimony of E. L. Magee, James T. Magee and C. C. Simmons that the Bro-die-Burnham Company agent held out the paper sued on to defendant, not as a note, but as a permit, release, or authorization for his son Dallas to avail himself of a scholarship offered in some correspondence school, and that defendant signed it, supposing it to be such.

We therefore find that the above facts to which they have’ testified have been proved, and that the note in question was obtained from defendant, by the agent of the Brodie-Burnham Company by fraud, within the sense and meaning of the law on that subject. Civ. Code, art. 1847, Nos. 1, 2, 3, 4, 5, 6, 7, 8, 9. It follows from this finding that, the title of the Brodie-Burnham Company to the note sued on was defective.

It additionally appears that no consideration in reality existed for the note. According to E. H. Lyberg, secretary, treasurer, cashier of the Brodie-Burnham. Company, the Brodie-Burnham Company received from E. L. Magee an order for a course of study, accepted his contract for the course and this note as payment for the same. According to the witness, the course was in the American Extension University of Los Angeles, Cal. The course, he says, is available to defendant any time he will accept it, as it is held subject to his order. The Brodie-Burnham Company, he says, has paid for the books and study material, and the university is ready to render its service at any time it is asked for. But, as against this, no order for, nor contract between, the Brodie-Burnham Company and defendant was offered in evidence indicating that defendant was entitled to such a course; no showing is made that there is an established and recognized institution of learning of that name located at Los Angeles; nothing, outside of the statements of the witness indicating that the Brodie-Burnham Company, a corporation domiciled in Chicago, has authority to so contract for a correspondence school in California. It is a rule of evidence that:

“Where the subject matter of a negative averment lies peculiarly within the knowledge of the other party, the averment is taken as true, unless disproved by that party.” Greenleaf, vol. I, Subject, Burden of Proof, sec. 79.

If a course in an established and accredited correspondence • school supported the note, the fact was peculiarly within the knowledge of the plaintiff and the evidence to show it accessible to her. Therefore the absence of the order which Mr. Lyberg says was given for one, the contract which he says was entered into in regard to same, and the- charter of the institution which was to do the teaching, negatives the reality of the course.

Section 55 of the Negotiable Instrument Act (Act No. 64 of 1904) provides that:

“The title of the person who negotiates an instrument is defective within the meaning of this act when he obtained the instrument, or any signature thereto by fraud, duress, or force and fear, or other unlawful means, or for an illegal consideration.”

Sections 24 and 25 provide that:

“Every negotiable instrument is deemed prima facie to have been issued for a valuable consideration.”
“Value is any consideration sufficient to support a simple contract.”

Section 59 of the act provides that:

“When it is shown that the title of any person who has negotiated the instrument was defective, the burden is on the holder to prove that- he * * * acquired the title as holder in due course.” Appalachian Corporation v. Ayo, 145 La. 201, 82 So. 89; Parks v. Hughes, 145 La. 221, 82 So. 202; Steeg v. Codifer, 157 La. 298 and 299, 102 So. 407.

The testimony of the plaintiff taken by commission in Chicago helps to support a conclusion adverse to her claim as owner and holder in due course. She claims to be doing business in the city of Chicago, under the trade-name of Federal Finance Association. That, acting under her trade-name, she purchases notes and accounts from various parties at a discount and collects them. That she has two regular clients, the Eastern Funding Company and the Brodie-Burnham Company. That her clients merely advise her that they have notes for sale, and, after investigating the maker, she purchases them. That she purchased the note in question from the Bro-die-Burnham Company, receiving it through the mail. That the Brodie-Burnham Company sent her several notes at the same time she received the note in question. That she sent them a check for the aggregate amount, less a discount of 33^á Per cent. That her place of business is about 8 miles distant from that of the Brodie-Burnham Company. That she purchased the note on March 9, 1926. Asked to produce the check showing payment, she stated that it was over three years old and that she did not have it in her files.

The note shows on its face that it was signed at Franklinton, La., on March 2, 1926, and shows on its back that the Brodie-Burnham Company on March 9, 1926, indorsed it, without recourse to the plaintiff. It was presumably mailed at Franklinton for transmission to Chicago by the usual train service which is indirect and results, we assume, in some delay. The position of the plaintiff, that this note, after having been received by the agent of the Brodie-Burnham Company at Franklinton, was transmitted to the Brodie-Burnham Company at Chicago, its receipt notified to her, and that she then investigated the maker and notified the Brodie-Burnham Company of her willingness to buy and negotiate the price before its indorsement to her, borders closely on the impossible. It is not claimed that defendant is a business man, whose financial ' standing may be learned from the mercantile agencies. Plaintiff could have sent a telegram to Franklinton and received a reply, but such celerity of negotiation concerning such a small note is so unusual that, if it had been done, it would have tended to negative the idea of an acquisition in due course. It is not claimed that plaintiff made any inquiry at Franklinton concerning defendant. If it had been done, it could, and no doubt would, have been shown on the trial. We are satisfied that none was made; that the Brodie-Burnham Company, upon receipt of the note, immediately indorsed it and mailed it to the plaintiff. She says that she received it by mail. Plaintiff could not, working in the ordinary way, after having been advised by the Brodie-Burnham Company that it had this note for sale, have investigated the maker at Franklinton in such a way as to accomplish the purpose for which such investigations are made, previous to the indorsement to her. No reason for such hurry existed that we can perceive from the record, except that the Brodie-Burnham Company, apprehensive that it could not enforce payment by suit in its own name, proceeded without delay to indorse and mail it to the plaintiff, pursuant to a previous understanding with her whereby she was put forward as holder, before the. first installment of the note became due, for the purpose of giving her the apparent position of a holder in due course.

Section 56 of the Negotiable Instrument Act provides:

"To constitute notice of an infirmity in the instrument or defect in the title of the person negotiating the same, the person to whom it is negotiated must have had actual knowledge of the infirmity or defect, or knowledge of such facts that his action in taking the instrument amounted to bad faith.”

In Lanfear v. Blossman, 1 La. Ann. 148, the court, at page 156, 45 Am. Dec. 76, quotes from Story on Bills of Exchange, sec. 194, as follows:

“What circumstances will amount to actual or constructive notice of any defect or infirmity in the title to the bill, so as to let it in as a bar or defense against a holder for value, has been a matter of much discussion and of no small diversity of judicial opinion. It is agreed on all sides that express notice is not indispensable, but it will be sufficient if the circumstances are of such a strong and pointed character as necessarily to cast a shade on the transaction, and to put the holder on enquiry.”

In La. State Bank v. Orleans Navigation Co., 3 La. Ann. 294, the court said:

"Express notice is not necessary to charge the holder with what the law considers to be notice of any defect or infirmity in a note or bill, so as to let in a defense against a holder for value; it is sufficient, if the attending circumstances are of such a positive and pointed character as to cast a shade on the transaction, and to put the holder on enquiry.”

In Hays v. Lapeyre & McCaleb, 48 La. Ann. 749, the court says, at page 753, 19 So. 821, 823, 35 L. R. A. 647:

"Direct and express notice is not always indispensable, to take notes out of the rule of commercial law and cut off the equities.
“When the circumstances are such as to bring a particular case under the operation of that rule, the maker of the note is legally entitled to insist upon its application regardless of the question of actual knowledge on the part of the purchaser of the note.”

We qiuote from Ruling Case Law, vol. 3, Subject, Bills and Notes, sec, 239, as follows:

"It has been said that good faith means payment of value for the instrument, but the payment of a valuable consideration is not alone sufficient to establish good faith. Nor does the additional fact of acquisition before maturity establish a case of bona fides. It should appear also that the facts and circumstances attending the transfer were not such as to charge the transferee with notice of a defect or infirmity in the paper” — citing, as authority, Vairin v. Hobson, 8 La. 50, 28 Am. Dec. 125.

The proper appreciation of what the plaintiff and Mr. Lyberg says about her method of acquiring notes from the Brodie-Burnham Company negatives the statement of the witness that she is not employed by or connected in any way with that company. The facts and circumstances further indicate that her claim of ownership herein is not based on a negotiation and purchase at a discount of 33y3 per cent; but that the note sued on is in her hands pursuant to some arrangement entered into between her and the Brodie-Burnham Company before the Brodie-Burnham agent obtained the note from defendant and whereby notes obtained by the Brodie-Burnham Company are forthwith sent to her, the purpose and object of which is to cut off equitable defenses which the makers might urge against the Brodie-Burnham Company. We are satisfied that plaintiff was fully cognizant of the purpose and object of the present indorsement at the time she received the note. Such having been the case, the negligence of the defendant in signing a paper without having read it, and for which no consideration existed, can not avail the plaintiff. She can no more recover on the note than the Brodie-Burnham Company could. The Brodie-Burnham Company could not compel payment, consequently the plaintiff, having no greater right than it had, cannot compel payment to her.

The lower court rejected plaintiff’s demand, giving reasons, from which we excerpt the following:

“The answers of the plaintiff to the interrogatories propounded to her are not satisfactory as to her ownership. The court does not believe that this woman, or the company which she professes to represent, are the owners in good faith of this note, but from all appearances, that it is a collusive scheme between the Federal Finance Association, Elinore W. Collins and this Correspondence School to perpetrate a fraud. — The note was obtained absolutely by misrepresentation and fraud was perpetrated,” etc.

The defective title of the Brodie-Burnham Company placed the burden of proof upon the plaintiff to show that she was a holder in due course. We find that she has not proved it. The judgment appealed from is correct.

Plaintiff-appellant to pay the cost in both courts.


source: Caselaw Access Project

author: ELLIOTT, J.

license: Public Domain

text:
    No. 641
    First Circuit
    JAMES v. HILLYER-DEUTSCH-EDWARDS, INC.
    (October 8, 1930. Opinion and Decree.)
    (December 1, 1930. Rehearing Refused.)
    (January 5, 1931. Writ of Certiorari and Review Refused by Supreme Court.)

      Pern M. Wood, of Leesville, attorney for plaintiff, appellee.
    | Thornton, Gist & Richey, of Alexandria, attorneys for defendant, appellant.
   ELLIOTT, J.

Charley James, alleging employment by Hillyer-Deutsch-Edwards, Inc., as a tie hauler, and permanent injury, sustained while engaged in his work, producing in him a total disability, claims of them 65 per cent of an alleged daily wage of $8 per day, as compensation for a period of 400 weeks, and $250 in addition for medical services and medicine.

Defendant denies the alleged indebtedness and that plaintiff was in its employment at the time of his alleged injury. Alleges that plaintiff in doing the work set out in his petition was an independent contractor. Denies that plaintiff was earning $8 per day, and alleges that his earnings were less than $1 per day, if he actually made any profit whatever out of his transaction.

The lower court, giving written reasons, held in favor of the plaintiff and condemned the defendant to pay him compensation at the rate of 65 per cent of a weekly wage estimated to have been $15.66 for a period of 400 weeks and to pay him $50 in addition for medical attention and medicine.

Defendant has appealed.

The fact that plaintiff sustained a hernia in the inguinal region, but which came out above the external ring, is not questioned by evidence. There is no ground for serious contention that it was not received in the manner alleged by the plaintiff. The fact is supported by his own evidence and by corroborating facts and circumstances of such character that, in the absence of any evidence to the contrary, we look on the fact as established.

An important question controverted is ■whether plaintiff in doing the work, which it is admitted he was doing, was an independent contractor, or working in the service of the defendant.

Plaintiff was engaged in hauling cross-ties belonging to defendant. He first hauled from a locality designated to him by Dan Johnson, an employee of defendant, but the one from which he was hauling at the time of his injury had been designated to him by George White. Defendant contends that George White was an independent contractor, but we are satisfied from the evidence that George White and Dan Johnson were both agents and employees of defendant, whose work was to superintend the manufacture and hauling of cross-ties, cut from defendant’s land. For the purpose of his work, the plaintiff furnished his own truck, labor, gasoline, and oil, kept his truck in repair, drove it, loaded the ties in the woods where they had been manufactured by defendant’s cutters, unloaded and stacked them on the Santa Fe Railroad at places which at the time of his injury had been designated to him by defendant’s agent George White, receiving for his work 15 cents per tie.

Act No. 20 of 1914, sec. S (amended by Act No. 85 of 1926, sec. 3, subsec. 8), reads as follows:

“A person rendering service for another in any of the trades, businesses or occupations covered by this act (other than as an independent contractor, whicn is expressly excluded hereunder) is presumed to be an employee under this Act. The term ‘independent contractor’ shall be considered to mean, for the purpose of this act, any person who renders service, other than manual labor, for a specified recompense for a specified result either as a unit or a whole, under the control of his principal as to results of his work only, and not as to the means by which such result is accomplished.”

This enactment did nothing more than give a legislative fiat to the existing law and jurisprudence as to who were independent contractors. If the manner, of doing the work was subject to the control of the party for whom it was. being done, the party doing it was working as an employee of the party having the work done. The right to control the manner of doing the work has always been regarded as indicating work done in the employment of another.

The Civil Code, art. 2756, says:

“To work by the job, is to undertake ’* * * a work for a certain stipulated price.”

To work by the job is to do the whole thing, which is to be done, and the means by which it is to be accomplished is the business of the party who undertakes the job. Thus, in Peyton v. Richards, 11 La. Ann. 62, the court, referring to a man named Thompson, said of his undertaking:

“He engaged to do a certain job for defendant, for which defendant engaged to pay him when completed. But in doing the job, the defendant had no control or superintendence over Thompson.”

An authoritative case is that of Faren v. Sellers, 39 La. Ann. 1011, 3 So. 363, 366, 4 Am. St. Rep. 256. We quote from the opinion as follows:

“Both parties quote and accept the exposition of the doctrine of independent contractor, given by Mr. Wood in his work on Master and Servant, viz.:
“ ‘When a person lets out work to another to be done by him, such person to furnish the labor, and the contractee reserving no control over the work or workman, the relation of contractor and contractee exists, and not that of master and servant, and the contractee is not liable for the negligence or improper execution of the work by the contractor.’ ”

This, says the court, “is a sound and conservative principle, but the element essential to the discharge of the contractee from responsibility is that he shall not reserve control over the work. This does not mean that he may not reserve a certain kind of power of direction as to the things to be done, provided the method and instruments of doing the thing are left under the exclusive control of the contractor.”

The principal test is, says Mr. Wood:

“Who has the general control over the work? Who has the right to direct what shall be done and how to- do it? And if* the person employed reserves this power to himself, his relation to his employer is independent and he is a contractor; but if it is reserved to the employer or his agents the relation is that of master and servant.”

Another case is that of Robideaux v. Hebert, 118 La. 1089, page 1095, 43 So. 887, 888, 12 L. R. A. (N. S.) 632, in which the court said:

“It is clear from the evidence that the defendant Hebert contracted with the railroad company, to do and deliver certain specific work, and that the manner of its doing, including the employment, payment, and control of the labor, was left entirely to him. He was, therefore, an independent contractor, for whose acts in the performance of a lawful contract his employer is not liable, since the doctrine of respond-eat superior has no application where the employee represents the employer only as to the lawful purpose of the contract, but does not represent him in the means by which that purpose is to be accomplished, and the assertion of liability is based on something done or omitted in the use of such means” — citing authorities.

The opinion shows that Hebert undertook a work by the' job, the filling of the low ground approach of the railroad to the Sabine river. He was given the whole thing to be done. The manner of doing it was entirely his affair, although the railroad company, for whom it was being done, furnished him with locomotives, cars and other mechanical equipment to assist him in making the fill.

In Clark v. Tall Timber Lumber Co., 140 La. 380, 73 So. 239, Mr. Tannehill had a contract for making and delivering ties, but the lumber company had no authority over the work, except that the ties had to be made according to certain specifications.

In Ryland v. Harve M. Wheeler Lumber Co., 146 La. 787, 84 So. 55, the court found from the facts established on the trial that the defendant was an independent contractor.

In Johnson v. Vincennes Bridge Co., 9 La. App. 173, 119 So. 539, 540, and Id., 167 La. 107, 118 So. 820, Johnson had undertaken the contract of unloading certain cars of steel, for the Vincennes Bridge Company, and placing the steel at a designated place on the bank of West Pearl river, at a price of so much per ton, furnishing, for the purpose of the work, his own truck, labor, gasoline, and oil. The contract showed that the manner of doing the work was entirely the affair of Johnson. In acting on the case, the court, differentiating it from that of Burt v. Davis-Wood Lumber Co., 157 La. 111, 102 So. 87, and referring to the work in which Burt had been engaged at the time of his injury, quoted from the latter case as follows:

“There was obviously no piece work to be performed, there was no particular job to be executed, there was no specified pile, stack, or quantity of lumber to be hauled, but only such as was pointed out and when pointed out by the employer.”

Then returning to Johnson’s undertaking the court used this language:

“In the instant case there was a specific pile, stack, or quantity of steel to be carried, there was a particular job to be executed, and obviously a piece of work to be performed.”

The same subject was considered in Moffet v. Koch, 106 La. 371, 31 So. 40, and Bell v. Albert Hanson Lumber Co., 151 La. 824, 92 So. 350, and in each of which the test was as in Faren v. Sellers and Burt v. Davis-Wood Lumber Co. See, also, Ruling Case Law, vol. 18, Subject, Master and Servant, sec. 243, p. 782, and Workmen’s Compensation Law by Schneider, vol. 1, sec. 37, p. 158 et seq. This last author, commenting, as was done in Bell v. Albert Hanson Lumber Co., on the difficulty of differentiating between cases on the subject, has this to say:

“It would however appear safe to say that one indispensable element of his character as an independent contractor is that he must have contracted to do a specific work and have the right to control the mode and manner of doing it.”.

In the present case, the cross-ties belonged to defendant. The defendant kept a physician in its employ for the purpose of treating its employees who might be injured in its service. When plaintiff was injured, its agent requested him to consult for treatment the physician in defendant’s employment, and the plaintiff, acting on the request, applied to this physician and was by him treated for his injury. Plaintiff was offered by defendant, through its agent, compensation on account of his hernia, during the period of his disability, if he would undergo an operation. Defendant paid plaintiff weekly, on account of his work, by check, less any sum that had been advanced to him on his work during the week by White, charging and deducting from his check at the same time a certain sum, used in paying the physician employed as above stated. The plaintiff testified that there was, in addition, a further deduction from his check each week, a sum which went toward paying the premium on compensation insurance carried by defendant as protection against damages which it might be compelled to pay employees on account of injuries sustained in its service. Several tie cutters say thai they helped each week to pay for this insurance. White and another agent of defendant, testified that defendant did not deduct anything from plaintiff’s check on account of, its compensation insurance, but they admit that, as to the men working under White, plaintiff being among the number, defendant deducted each week from White’s check a sum on said account. Therefore, suppose it was done, as claimed by White, the purpose of which was to evade a law on the subject, it still appears that plaintiff was made to share the burden of said insurance as one of defendant’s employees. When plaintiff was injured he sent his minor son to continue his work. His son hauled several days and received a pay check from defendant with the customary deductions. White, learning that his son was not 18 years of age, acting on the direction of defendant’s higher agents, discharged him, without consulting plaintiff, the reason being that defendant did not employ parties under 18 years of age. This discharge, exercised by defendant against the plaintiff, in regard to the work which the plaintiff was performing through his son, could not be justified, except that plaintiff was doing the work as an employee of the defendant. The testimony of Dan Johnson, who worked for defendant at the same time that White did, doing the same kind of work, i. e., superintending the getting out and hauling cross-ties, justifies the inference that hauling the ties and stacking them on the railroad was just as much a part of defendant’s work as getting them out, and that, from the time the tree was cut, until the ties were stacked on the railroad, every part of the work w;as subject to its authority and control. The principle involved in this case is the same that was found to exist in Holmes v. Tenn. Coal, Iron & Ry. Co., 49 La. Ann. 1465, 22 So. 403; Moffet v. Koch, 106 La. 371, 31 So. 40; Bell v. Albert Hanson Lumber Co., 151 La. 824, 92 So. 350; Dick v. Gravel Logging Co., 152 La. 993, 95 So. 99; Burt v. Davis-Wood Lumber Co., 157 La. 111, 102 So. 87; and Morgan v. Nelms, 5 La. App. 414. The lower court properly held that plaintiff was not an independent contractor, but was engaged at the time of his injury in the service and employment of the defendant.

Defendant contends that the hernia which plaintiff sustained is not of the kind contemplated by the law, and that it does not incapacitate him from doing reasonable manual labor. Dr. Cather, physician in the employment of the defendant, says:

“I do not think he can do manual labor; he could work with a truss; it is not as dangerous as an inguinal hernia.”

It is our understanding, from the evidence as a whole, that plaintiff cannot, in his present conditon, do any kind of manual labor, such as heavy lifting, straining, or other work, which requires important physical effort on the part of his abdominal muscles, even though supported by a truss.

Plaintiff is a small farmer with a family to support. He presumably engaged in the work of hauling ties for the necessary support of himself and family, adding his earnings in that way to the amount of his crop. No farmer can do his own work, except by engaging in manual labor, because such work is required in keeping up and cultivating a farm and in harvesting the crop. As for driving a motor truck, loading, unloading, and stacking cross-ties, it is the heaviest kind of manual labor. The evidence does not indicate that plaintiff is qualified by education or training to do any kind of work, except that of farming and such as he was doing for defendant and as a result of which he received his injury. As for all work of that character, therefore, any work of a reasonable character, which the plaintiff appears to be capable of doing, the hernia has produced in him a permanent total disability within the sense and meaning of the law, Act No. 20 of 1914, sec. 8, subsec. 1(b) (amended by Act No. 242 of 1928), and as was held by the lower court.

It has been settled by repeated decisions that plaintiff is not required to undergo an operation, in order to entitle him to compensation. Nothing at this time indicates that his injury will be overcome, unless he does submit'to an operation and the same accomplishes a cure. A termination of his right to compensation cannot, therefore, be anticipated, except at the end of 400 weeks, the period of time during which the law provides compensation for an injury which has produced a permanent total disability to do work of any reasonable character. The holding of the lower court is correct in that respect.

The defendant contends however that, as plaintiff’s service was paid by the number of ties hauled and stacked on the railroad at 15 cents per tie, his recompense must be regarded as the profit, if any, that he made by his hauling, using his own truck, furnishing his own gasoline and oil, and that, as the evidence does not show that he made any profit, he is not entitled to any compensation; and, if any, that it should not exceed $3 per week, the minimum fixed by law.

The law, Act No. 20 of 1914, sec. 8, sub-sec. 3 (amended by Act No. 242 of 1928), provides:

“The term ‘wages’ as used in this act is defined to mean the daily rate of pay at which the service rendered by the injured employee is recompensed under the contract of hiring in force at the time of the injury, and anything herein contained to the contrary notwithstanding, the maximum compensation to be paid under this act, shall be twenty dollars per week and the minimum compensation shall be three dollars per week; provided that if at the time of the injury the employee was receiving wages at the rate of three dollars per week or less per week, then compensation shall be full wages.”

Subsection (7) of the same section provides that:

“Payments of compensation under this act, shall he paid as near as may be, at the times and places as wages were payable to the injured employee before the accident. * * * ”

Previous to this enactment, the Supreme Court had said in Dick v. Gravel Logging Co., 152 La. 993, 95 So. 99, 101, in which the plaintiff was engaged in cutting saw logs at so much per thousand feet:

“We cannot agree with the argument that in order to bring the employment of the deceased within the terms of the Workmen’s Compensation Act, it must be shown that he received ‘wages,’ meaning ‘a daily rate of pay’ under the contract in force at the time of the hiring.”

And in Burt v. Davis-Wood Lumber Co., 157 La. 111, 102 So. 87, Burt was engaged in hauling lumber from defendant’s mill to a designated place on the railroad at so much per thousand feet. Burt had furnished his own team, drove it himself, loaded and unloaded his wagon, paid for the feed of his team, and kept his wagon in repair. The amount to which Burt was entitled on account of his work was one of the disputed questions in the case. The amount of his daily and weekly earnings was uncertain. The court held that Burt was a mere laborer, driving his own team, loading and unloading his own wagon, and that his wages could in no legal sense be regard as a profit on his investment in the team and wagon. The court further said:

“An examination of the evidence on the question of the amount of the average weekly wages has not enabled us to say, that the district judge committed error in finding the amount at $15.00 per week: The evidence certainly would not have justified fixing any less sum. It was within the power of the defendant to show the amount paid to Burt for his services in hauling and the average weekly earnings. However we think the amount allowed is not in excess of the average weekly wages, independent of any sum that might be allotted for the team and wagon.”

Therefore, the fact that the plaintiff Charley James was being paid for his work by contract at 15 cents per tie is no reason why he is not entitled to compensation, and, as he was being paid weekly, the amount of his weekly hauling must be ascertained as near as can be, and his earning calculated thereon at 15 cents per tie.

The evidence shows that the defendant paid the plaintiff for the week ending April 6th, $7.10; for the week ending April 16th, $9.85; for the week ending April 24th, $4.55; for the week ending May 14th, $35.50; for the week ending May 28th, $21.30 — total $78.30. The court divided this total by five, the number of weeks during which plaintiff had hauled, and in that way found $15.66, on which he acted in fixing plaintiff’s average weekly earnings, and based his compensation accordingly.

The evidence indicates that advances were made to the plaintiff during the time in question, but the amounts advanced were not shown. Therefore these sums remaining due and paid, as above stated, afford no actual information as to the net or gross amounts the plaintiff had weekly earned by his hauling.

The case Burt v. Davis-Wood Lumber Co., 157 La. 111, 102 So. 87, was decided in 1924. Since then Act No. 20 of 1914, sec. 18, subsec. 4 (amended by Act No. 85 of 1926), has provided that:

“All findings of the fact must be based upon competent evidence.”

This provision is not modified by the further provision that:

“The Judge shall decide the merits of the controversy as equitably, summarily and simply as may be.”

The court therefore erred in taking the total of said sums paid as above stated as the base amount, upon which to compute the compensation to which the plaintiff was entitled.

Defendant’s suggestion that, as the evidence does not indicate that plaintiff made any profit as a result of his hauling, he is not entitled to any compensation, and, if any, to only the minimum allowed by law, cannot be accepted, because the payments made indicate that he earned each week a sum in excess of the minimum allowed by the law.

The court allowed plaintiff $50 on account of expenditures for medical attention and medicine. Defendant contends that, as plaintiff was tendered and received the services of its physician, this sum cannot be justly charged against it. Plaintiff did consult defendant’s physician and accepted some treatment from him. But defendant’s physician resided at quite a distance from the plaintiff, and it was therefore not convenient for plaintiff to visit him. The allowance was made under Act No. 20 of 1914, sec. 8, subsec. 5 (amended by Act No. 242 of 1928). An employee is not bound, in spite of inconveniences and greater expense, to go to the physician employed by his employer for treatment and medicine, else bear himself the expense of his injury under the law as it now stands. The ruling of the lower court on this subject was not erroneous under the circumstances, and will not be disturbed.

The case will be remanded and reopened for the purpose of receiving evidence showing the amount of plaintiff’s net and gross weekly earnings under his contract with the defendant, as near as can be ascertained, during the five weeks that he hauled.

The judgment appealed from is therefore, and for these reasons, annulled, avoided, and set aside, and the case remanded to the lower court. It is further ordered that the case be reopened and evidence received for the purpose of showing, as near as can be done, the number of cross-ties hauled by plaintiff and stacked on the railroad, under his contract with defendant during each of the five weeks that he was engaged in hauling; the amounts advanced plaintiff by defendant, on account of his work, during the same time; the amounts expended by plaintiff for gasoline, motor oil, etc., used for the purpose of operating his truck while so engaged; also, the sums, if any, which, the plaintiff spent for the repair of his motor truck, due to its use in said work; and any further evidence which the lower court may deem to be helpful for the purpose of fixing a fair and equitable weekly average of plaintiff’s earnings under his said contract, said average to be used in computing the 65 per cent of wages to which the plaintiff is entitled during the period of his disability, not, however, beyond 400 weeks.

The mention by this court of certain expenses concerning which evidence is to be received is not to be taken as indicating any conclusion on the part of this court that such expenses should, or should not, be considered in fixing a proper weekly average of plaintiff’s earnings upon which to compute the compensation to which he is entitled, the purpose of the court being to open the case for such evidence, leaving the result and effect thereof entirely for such action as the court may consider proper in regard thereto. After hearing the evidence on this remand, the lower court is to render such judgment on the question of the amount of compensation to which the plaintiff is entitled, as he finds should be rendered under the law and the evidence on the subject. The judgment to otherwise conform to this opinion and decree herein to the extent that the judgment appealed from has been affirmed.

The cost in the lower court to be paid by defendant-appellant.

The cost of this appeal to be paid by plaintiff-appellee.


author: LeBLANC, J. ELLIOTT, J.

text:
    No. 667
    First Circuit
    DOBROWOLSKI v. HENDERSON
    (October 8, 1930. Opinion and Decree.)
    (December 1, 1930. Rehearing Refused.)

      C. A. Battle, of Baton Rouge, attorney for plaintiff, appellant.
    D. J.' Sanchez, of Baton Rouge, attorney for defendant, appellee.
   LeBLANC, J.

This is a damage suit in which the plaintiff, an elderly lady, 70 years old, seeks to recover for personal injuries sustained by her when she was struck by the defendant’s automobile which he was driving through the business section on North Boulevard, in the city of Baton Rouge. The accident happened on the morning of May 13, 1929.

She alleges that she was standing out one or two feet from the sidewalk on the south side of North Boulevard street, when an automobile belonging to and being driven by the defendant, Joseph T. Henderson, with some tent poles fastened to the rear end and sticking out two or three feet beyond the sides, came by so close to where she was standing that the end of the poles struck her as the car passed, and knocked her down, injuring her to the extent that she will be a cripple for life. She alleges that the said poles carried no flag or sign to call attention to them, and were not otherwise noticeable to any one hy whom said car might be passing. She charges the defendant with negligence in driving his car carelessly and recklessly near the sidewalk where she was standing, knowing that the said poles were so attached to his car as to create a situation of danger. She claims of the defendant damages in the sum of $586.26 for expenses and the additional sum of $500 for pain and suffering and for her injuries, making a total of $1,086.26.

The defendant denies all charges of negligence and pleads contributory negligence on the part of the plaintiff in the following particulars: That she was attempting to cross the street at a point 25 to 30 feet from the intersection; that she suddenly appeared on the street from between two automobiles which were parked alongside of the curb into the path of the automobile traffic on the street; and that she was not observing the proper lookout for approaching cars.

The district judge found in favor of the defendant and dismissed the plaintiff’s suit. From his judgment, she has appealed.

North Boulevard street is one of the busy streets of the city of Baton Rouge. At the vicinity where this accident occurred, the intersecting streets do not run all the way across, but run into North Boulevard at intervening corners, one on the south side and the next on the north. Mrs. Dobrowolski had been to Brown’s store, which is situated in the center of the block on the south side of North Boulevard, at a distance of approximately 35 or 40 feet from the point where North Twelfth street intersects it on the north side. The defendant was driving his automobile on North Boulevard, going in the direction from west to east.

The evidence discloses that the defendant is a member of the religious sect known as the Church of the Nazarene. He, with two ministers of his faith, were on their way to a place called Istrouma, where they were to conduct a religious meeting. They carried a large tent to be used for that purpose, with them. The tent proper, that is, the canvas top and walls, were loaded in the car; part also being laid over and across the hood or front part of the automobile. The poles were tied in two bundles of about 12 poles to each bundle and they were securely fastened to the rear end of the car. These poles were 88 inches long and were arranged so as to make the projection on either side of the car as equal as possible. The car measured 66 inches in width, so we judge that they projected about 11 inches on each side.

We find a provision in the law regulating the operation of motor vehicles on the public highways to the effect that no passenger vehicle can carry any load extending beyond the line of the fender on the left side, nor more than six inches beyond the line of the fender on the right side. This provision is to be found in subsection (e) of section 38 of Act No. 296 of 1928. It would appear therefore that there was a violation of that section of the statute by the defendant, which the plaintiff, however, did not plead. Giving due consideration to its provisions, nevertheless, the only result of defendant’s violation, as far as this case is concerned, was to create a presumption of negligence on his part, which, like all other presumptions in law, was subject to rebuttal by competent and proper proof. If it can be shown, by satisfactory and convincing proof, that the protruding object was not the cause of the accident, as was done in this case, the one charged with negligence in that particular should be discharged.

Plaintiff is the only witness who swears that she was struck by the poles attached to the defendant’s car. As a matter of fact, from her own testimony on this point, we might infer that she is not so sure herself what it was that struck her. A witness by the name of Joseph H. Bowden, a minister of the Methodist Episcopal Church, South, testifies in her behalf, but admits that he did not see the actual blow which struck her. His conclusion that she was hit by the projecting poles is drawn from mere conjecturing on his part.

As against the character of proof offered by the plaintiff, we find the positive testimony of the defendant and of Rev. Le June and Rev. Watson, the two preachers who occupied the ,front seat of his car with him, that she was struck by the right front fender of the automobile as she emerged from between two cars parked along the sidewalk curb, and found herself suddenly in front of them. The physical facts would also seem to favor the defendant’s and his witnesses’ contention that she was struck by the front fender. According to the testimony of Rev. Bowden, she is a lady approximately five feet, six inches tall, and from our observation of the height of the front fender of a Chevrolet automobile of the model such as the defendant was driving, from the ground, she would have been struck just about at the hip, the very part that was injured. If the poles were fastened across the rear bumper of the car, as the evidence indicates they were, it seems as though she would have been struck lower than her hip. Mr. Bowden testifies that the poles were tied over and across the back fenders. Considering the curved formation of these fenders, it is difficult to understand how they could have been securely fastened over them, but granting they were, it would then appear that they were a bit high to have struck her on the hip.

After considering all the evidence and surrounding circumstances on this point, we find that not only has the plaintiff failed to carry the burden of proof which the law imposed on her, but that the weight of the testimony seems to be with the defendant.

It is equally as certain to us that she has not shown the defendant guilty of any reckless or careless driving.

The attempt made to show that, because the tents were piled on the hood of the automobile, the driver was not in a position to see ahead of him, is met by the testimony of the defendant and that of the two ministers with him, who say that their vision was not a bit obscured for the reason that che bundle did not extend more than six inches above the surface of the hood itself.

According to their testimony, also, defendant was driving about ten feet from the curb on the south side of the street, which we' believe made all necessary allowances for the cars that were parked along the curb on that side.

With regard to the rate of speed at which the defendant was going, the only direct testimony comes from him and his two witnesses, and the maximum stated by any is 15 miles per hour. Rev. Bowden surmises a far greater speed which he judges from the distance it took the defendant to bring his car to a full stop after he had struck the plaintiff. There is a difference of 50 per cent or more between his estimate of what that distance was and what the defendant and his witnesses say it was, so there is certainly nothing certain to guide us in that respect. Moreover, we find no good reason why we should accept his evidence on the question of the speed of the car, which,, after all, is merely conjecture on his part, as against the positive ' proof of the other three witnesses.

A rate of speed of 15 miles per hour, even in congested traffic, will not be considered careless and reckless driving. At such speed, an automobile can be kept under control and handled to meet almost any reasonable emergency.

These are some of the considerations which strengthen our impression that the unfortunate victim of this accident is the one who created the perilous situation in which she found herself and was injured. She almost admitted as much after it happened. Not only did she suddenly appear on the street, directly in front of defendant’s car, from between two automobiles parked along the curb, but the evidence also shows that in leaving she attempted to cross the street immediately in front of Brown’s store, a distance of approximately 35 or 40 feet from the street intersection. And this, too, at a time in the morning when the traffic on the street was already • heavy.

In so doing, she doubtless contributed by her own negligence to the accident and her injuries which- resulted therefrom. For this, of course, she would be denied recovery even though it had been shown that the defendant was at fault in any way.

We find that the judgment of the lower court is correct, and it is hereby affirmed.

ELLIOTT, J.

(dissenting). I cannot agree that the judgment appealed from should be affirmed. My conviction is that there should be judgment in favor of the plaintiff.

Defendant’s companions were moved by a feeling quite natural, as strong as could have existed in the defendant, to excuse the driving .and were naturally unwilling to concede that the ends of the tent poles they were carrying, sticking out beyond the side of the car further than the law permits, injured the plaintiff. They declare that plaintiff stepped out in front of their car, from between cars, parked close together, and that she was so close to their car at the time that she could not be and was not seen in time to avoid striking her. These declarations, when examined, are but such. The further testimony of the same witnesses justifies the conclusion that plaintiff did not come into the street from between any cars, and if defendant had been driving with his car under control as he should have been when passing parked cars and looking carefully ahead, he would have been bound to have seen the plaintiff in time tq have swerved and missed her.

They say that the ends of the tent poles did not strike plaintiff; that she was only brushed by the right front fender of their car as it passed her. These affirmative assertions are struck down by their own testimony that they could not see the ends of the poles from where they were sitting. One of them says he looked back but admits that he could not see the poles. As they could not see the poles, it is impossible for them to know whether they struck the plaintiff or not. Plaintiff was in a position to see what struck her. She says that she was struck and injured by something on the car as it passed her, and it could not have been anything else except the ends of the poles. Then there is some corroborating testimony which tends to support the plaintiff and nothing that should be regarded as convincing to the contrary.

Defendant and his companions speak of the position of the poles. They do not claim to have examined the poles after the accident, nor at any time after starting on the trip. Mr. Bowden did so, he says, and found the ends of the poles sticking out on the right side of the car from 2 to 2% feet beyond the side.

There were 24 poles, and Mr. Bowden says the the pile was as high as the fender. He is the only witness who claims to have looked at the poles after the accident.

Plaintiff testifies as follows:-

“Q. You stated that you were about two or three feet into the street when you were struck?
“A. Yes. I saw the car coming fast and I stepped aside; stepped nearer to the side walk.
“Q. When did you first see the car coming, before you got out into the street or after?
“A. I was in the street already when I saw the car coming. I saw the car coming fast and I stepped aside. I thought the car would pass me, but something was on the car that struck me.
“Q. Don’t you remember that there were a number of cars parked along the curbing on the south side of North Boulevard in that vicinity on that morning?
“A. I never noticed how many cars were around me.
“Q. Weren’t there a number of cars parked along the curbing on the south side of North Boulevard?
“A. I could not tell you that; I never noticed. When I am going, I look ahead of me; I don’t look up and down the street. I just look to see where I am walking to keep out of danger. I don’t go out there and stand up there and look in every direction to see if I see something coming. I got out there and I saw this car coming and I stepped aside.
“Q. Do you recall if there were cars parked on the south side of North Boulevard near the vicinity where you left the curb to cross the street?
“A. I can’t say that.
“Q. Isn’t it a fact that you came from between two cars into the street?
“A. No, I never was near a car until that car struck me.
"Q. I am not talking about any cars moving, I am talking about cars parked along the south side of North Boulevard near Brown’s store?
“A. I can’t tell you anything like that.
“Q. But you still say that you were only two or three feet from the north curbing when you were struck, and that you did not come from between two parked automobiles out into the street?
“A. No. If there were any there, I don’t know. I didn’t see them and I never went between them.”

Joseph H. Bowden, standing near the south side intersection of Twelfth street and about 40 or 50 feet east of the place where plaintiff was struck, did not see the accident, but heard,the impact and looked around just as defendant’s car stopped a little beyond him, and saw the men get out, run back, and pick plaintiff up. 1-Ie says that after plaintiff was struck her feet must have been about six and her head about four feet from the sidewalk. That there were cars parked on the south side of North Boulevard at the time, but they were not close together. That there was not a single car between him and where she was lying, and he could plainly see her body lying in the street, from where he was standing. That there were some cars parked beyond where she was lying, hut he did not know how close they were together. That it was impossible for plaintiff to have walked out between two cars; meaning, I take it, that there were no cars at the place between which to walk.

Joseph T. Henderson, defendant, owner and driver of the car, says that Messrs. Watson and Le June were both seated with him on the front seat of his car. That on the morning of the accident there were cars parked on the south side of North Boulevard back west from where plaintiff started; that he was driving something like eight or ten feet from the curb, far enough to miss the cars parked along the curbing; that he didn’t see plaintiff until just as the car struck her. That the cars parked along the side of the curbing kept him from seeing her any sooner. He was right by her, when he first saw her and could not avoid striking her.

“Q. It has been testified that Mrs. Dobrowolski was about 5% feet (meaning in height). Would that bundle have prevented you from seeing her in any way?
“A. No, sir. I saw her. I could see her when she stepped in front of the car. It was because the other cars were parked there. I was driving by the side of these cars that were parked there; she stepped out from behind the car in front of my car. I don’t know which way the cars might have been parked, east or west, but anyway she came out. The best I remember there was a car opposite there and she came out from between the cars. There was a line of cars on this side.
“Q. Were they pretty close together?
“A. Ordinarily close together.
“Q. How wide was that space through which Mrs. Dobrowolski came?
“A. There was a car opposite from where she came out; I don’t know what the distance was. I suppose it was something like 8 or 10 feet. There was a space in between the cars where she came out of something like 8 or 10 feet. I don’t think there was room enough for a car to have pulled out. There were 4 or 5 cars on this side of where she came into the street, between me, tlie way I was traveling, and where she came into the street.
“Q. Could you see through the glasses of an ordinary car, if anybody was coming?
“A. No.. They were parked up together. I was lined up by the side of them; driving about two feet of the line of cars. There were cars passing me and meeting me going to town. I was holding my side of the road. The cars were parked along there; so I was driving about 2 feet, about as close as I could drive reasonably, without interfering with the parked cars.”

Mr. Le June says that there were cars parked on the south side of North Boulevard. “That plaintiff came out from behind one of the cars that was parked, between two cars, somewhat from behind one of the cars. As we came to the car, she came from behind one of the cars. The first time I saw her was when she came from behind the car, rushing as though she wanted to cross the street, and she came nearly directly in front of the car.” That she was not more than two feet or something like that when he first saw her, and that she was coming from behind the car and just rushed out. He estimates that defendant was driving at about 15 miles an hour; that the tent poles were extending out on either side of the car a foot or something like that, and that Mrs. Dobrowolski was out about 10 or 12 feet from the curbing at the time she was struck.

Mr. Watson says he was in the car with Mr. Henderson. Asked to state' the circumstances under which the accident happened, he said:

“Yes. We were driving along a street in a business section and this old lady stepped out just ahead of us. There were cars parked along there and she stepped out just head of us as we were driving. She saw it. She would have been killed, I think, because there was no way for us to stop, as close as we were; and she saw it, and she stopped and turned and was barely hit. She stepped back. What I mean by saying, barely hit, is, that the car did not hit her full; it would have hit her full, but by her stepping back, that is the thing that saved her.”

That when she stepped out from behind the cars, he estimated that she was probably 15 or 20 feet from the curbing, but admitted that he could not well estimate the distance; that cars parked along the side of the street prevented them from seeing plaintiff any sooner. That they could not see her until she came from behind the car. When she came from behind the car she was in front of our car; that is, perhaps within a step.

“Q. I believe you stated just now that she saw the car and stepped back?
“A. Yes.
“Q. How far was the car from her, in .your estimation, when she saw the car? You were looking directly at her?
“A. Yes. I would guess from 10 to 12 feet from her. I would not state that exactly, of course, but that would be my estimate.”

He estimated that defendant was driving about 12 miles an hour at the time.

According to plaintiff, she must have been in open, plain view of defendant when she stepped out two or three feet (likely meaning two or three steps) from the sidewalk for the purpose of crossing the street, and seeing defendant’s car coming, stepped back thinking it would pass her. She didn’t notice any parked cars near where she was standing and didn’t come out' between any. Her testimony on the subject is supported by that of Mr. Bowden, according to whom there were no parked cars; between the place where he was standing, some 30 or 40 feet past, and the place where she fell, he could plainly see her lying on the street.

According to defendant the plaintiff did not come out from between cars parked close together.

“Q. How wide was that space through which Mrs. Dobrowolski came?
“A. There was a car opposite from where she came out; I don’t know what the distance was. I suppose it was something like eight or ten feet. There was a space in between the cars where she came out, something like eight or ten feet. I don’t think there was room enough for a car to have pulled out. There were four or five cars on this side of where she came into the street, between me, the way I was traveling and where she came into the street.”

Defendant, in saying that there were cars “on this side of her,” has reference to the west side, the direction from which he was coming. He had previously stated that there were cars parked west of where she came out, hut does not say how close they were to the place.

Coming out of a space eight or ten feet wide is not like coming out from between cars parked close together. Mr. Watson practically says the same:

“Q. I believe you stated just now that she saw the car and stepped back?
“A. Yes.
“Q. How far was the car from her, in your estimation, when she saw the car? You were looking directly at her?
“A. Yes. I would guess from ten to twelve feet from her. I would not state that exactly, of course, but that would be my estimate.”

A circumstance which indicates that plaintiff was not standing close to parked cars is that if defendant had been driving 12 or 15 miles an hour within two feet of cars parked close together and had brushed plaintiff with his right front fender in passing her, with such force as to cause her to fall to the ground, the effect of the brushing blow would have likely forced her southward and down under the ends of the parked cars; but there is nothing indicating that anything of that kind took place.

Taking the statements and the facts and circumstances which seem to guide to the proper conclusion, the conviction is created that if defendant had been looking ahead in the direction he was going, and driving with ordinary care and not faster than is claimed, he could and would have seen the plaintiff standing out on the side of the street ahead of him, in time to have easily swerved his car to the left sufficiently to have missed her entirely, and that he would have missed her if it had not been for the projecting ends of the tent poles which he carried, sticking out from the right side of the rear end of his car, which caught her as they passed.

The plaintiff alleges and testifies that defendant’s car did not strike her; that she was struck by the projecting ends of tent poles, as defendant passed her, which he knew were attached to the rear end of his automobile. That something on the car struck her and knocked her over. In another place she says: “I was in the street already when I saw the car coming. I saw the car coming fast and I stepped aside; I thought the car would pass me, but something was on the car that struck me.” That the thing that struck her was hanging on the outside:

“Q. The car itself didn’t strike you?
“A. No; it was the pole or something, I think they told me it was the tent that struck me; but it was something like a pole that struck me. It stunned me; I can’t remember just what happened. It seemed it was something like a ladder.”

Testifying in rebuttal, she said: “The side struck me; nothing in the front or back. It was something like a ladder.”

Plaintiff is again supported by Mr. Bow-den. He says that after plaintiff was struck, the car stopped and he looked it over carefully while defendant and the two men with him were taking her to the residence of her son. That it had on it a tent which rested on the fenders and also on the hood, in such a way that it was 12 or 18 inches higher than the hood.

That there were tent poles on the rear end perpendicular to the car, extending out on the right side at least 2 y2 feet. That he didn’t know as to the left side, as he didn’t go around tq that side of the car. That he didn’t go behind the car, but that the tent poles were tied in a bundle and were above the back fender, high enough to strike about the hip. That the car went 60 or 70 feet after striking plaintiff.

Defendant said as a witness that he had tent poles across the rear end of his car; that a bundle was lying across the bumper. He says they were tied there with a wire; that the poles were about 7 feet and 4 inches long. That he divided their length as equally as he could in placing them on his car. That his car was 6% feet wide. That the ends of the poles extended out about 11 or 12 inches on each side.

As for the tent, he says that it was being carried across his front fenders and on his running board, and extended over the hood. That it was about level with his hood and did not obstruct his front view, as claimed by Mr. Bowden, except, say, a foot and a half or two feet from the ground.

That plaintiff was struck by his right front fender, not a hard blow — just brushed her like. That she fell on all fours. That his car went 25 or 30 feet after striking her. That she told them, when they went back to help her up, that it could not be helped, etc. That she saw the car pass just ahead of him, and was looking ahead of her and not to her left, the direction from which he was coming, etc. That when they reached the residence of her son, she was asked by her daughter-in-law who was to blame, and she said: “Neither of us; it could not be helped. He could not help it, and I could not help it. I did not see his car, and he did not see me until it was too late.”

Mr. Le June also says that plaintiff was struck by defendant’s right front fender, the edge of it brushing her, and she fell on her hands. That the tent on the hood extended two or three iaehes above the hood, but did not obstruct the view. That there were two bundles of tent poles, 12 in each bundle, 24 in all. That the poles were evenly arranged, tied on tightly, the bundles resting on the back fender. That when they reached their destination, none of them had slipped out of the bundles. He corroborated defendant as to plaintiff’s statements after reaching the residence of her son.

Mr. Le June testified that Mr. Henderson was driving, Mr. Watson was on the front seat next to him, and that he (Le June) was next to Watson. Mr. Watson says that plaintiff was struck by defendant’s right front fender; the car hardly hit her, just brushed her. That it had passed her a distance which he estimated at .40 or 50 feet before she fell. That he was looking back and saw her fall. That Mr. Henderson was driving at about 12 miles an hour and went 40 or 50 feet after striking her. With reference to the tent poles, he testified that he had himself bound and fastened them across the back end of the car, but that the ends might have been sticking cut about the length of a finger. That he was sitting on the right-hand side of the front seat:

“Q. Could you see from where you were sitting, the poles in the back?
“A. No, sir.
“Q. Could you swear that those poles ' did not hit her after she was brushed by the front of the car?
“A. Yes, because she was stepping back when it brushed her, and I was looking. I continued to watch; there was nothing struck her after the first brush.
“Q. You say you could not see those poles?
“A. No; but if they had been sticking out there where she was I would have seen them. If they had been sticking out 2% feet, as the gentleman testified, it would have been no trouble to have seen them. I could have turned my head and seen the poles.”

Dr. Carroll Allen treated plaintiff for her injuries, describing them as, “Multiple contusions of pelvis and upper part of lower extremities, with fracture of acetabulum.”

Plaintiff’s injuries might possibly, I suppose, have been caused by a brushing blow of the fender as it passed her; but there was but one blow, and the character of the injury received would be just such as would seem to have been the natural result of a blow from the projecting ends of the tent poles. If the blow received had .been from the fender, there would probably have been marks and dents on the fender. But there is nothing in the evidence about any signs of that kind.

Defendant and the two parties with him all say that plaintiff’s hip did not go to the ground, consequently her injuries could only have been accomplished by a hard blow from a hard substance applied directly to the parts injured. And it is my conclusion that plaintiff must have been standing at the time, in front of the object which struck her.

Defendant says that when the tent poles were placed on the car, the ends projected out 11 or 12 inches beyond the sides of the car; but he does not claim to have examined the position of the poles after the accident.

Neither does Mr. Le June nor Mr. Watson claim to have examined the position of the poles after the accident; therefore none of them were in position to contradict the statements of Mr. Bowden, who says that he looked at the right-hand side of the ear while defendant and the parties with him were gone with plaintiff to the residence of her son, and that the ends of the poles were sticking out on the right-hand side about 2% feet beyond the side of the car. I am satisfied that his statement is true.

Mr. Watson, sitting on the front seat in between Messrs. Henderson and Le June, could not and did not see the poles at the time plaintiff was struck; yet he, as well as Mr. Henderson and Le June, all put forward declarations that plaintiff was not hit by the projecting ends of the poles. Mr. Watson says he was looking back, but his explanation does not explain. Their declaration does not take into account the fact that Mr. Henderson, driving and seated on the left-hand side of the front end of the car, Mr. Watson sitting by him, had the body of the car in between them, and the ends of the poles. Mr. Le June, sitting on the right-hand side of the front seat, does not claim to have looked back. Mr. Watson’s memory at the time of the trial, some eight months after the accident, did not enable him to remember for sure that Mr. Le June was with Mr. Henderson and himself in the car.

Their statements that the poles did not strike plaintiff is therefore but an opinion given, which under the circumstances I decline to accept as lessening the weight of the testimony of the plaintiff, that she was not struck by the car; but by something ¡projecting out of it, and which I am satisfied was the tent poles carried by the defendant.

Defendant was driving a passenger vehicle, and the law provides that:

“No passenger vehicle shall carry any load extending beyond the line of the fender on the left side of such vehicle nor extending more than six inches beyond the line of the fender on the right side thereof.” Act No. 296 of 1928, sec. 38, subsec. (e).

The projecting ends of these tent poles at the rear end of defendant’s automobile was a potential danger, hardly noticeable by any one toward whom the car was approaching. It may be that when first placed on his car, the ends did not project out on the right-hand side more than 11 or 12 inches; but even that projection was greater than the law permits, and constituted a danger to people in the street. But I am satisfied that the poles, as a result of defendant’s neglect and want of care, were extending out on the right-hand side of the car at the time plaintiff was injured, about the distance stated by Mr. Bowden.

Plaintiff was not negligent for attempting to cross the street on foot at the place where she started to cross it, nor in any other way, that I can see.

And even if defendant did not see plaintiff in time to completely avoid her, he was at fault and responsible for her injuries, because he could and would have seen her had he been looking ahead in the exercise of ordinary care for people on foot in the street ahead of him in the direction he was driving. Hearn v. R. R. Co., 34 La. Ann. 160; Gallaher v. R. R. Co., 37 La. Ann. 288; Barnes v. R. R. Co., 47 La. Ann. 1219, 17 So. 782, 49 Am. St. Rep. 400; Tyer v. R. R. Co., 143 La. 178, 78 So. 438; Norwood v. Bahm, 14 La. App. 261, 127 So. 475.

And it is my further conclusion that plaintiff received her injuries by being struck and knocked down by the projecting ends of tent poles carried by defendant on his automobile, as she stood on the street, after she had stepped back out of the pathway of the car, except for the projecting ends of the poles carried on the rear end of the same.

With reference to the extenuating and excusing statements made by the plaintiff in response to questions asked her by her daughter-in-law, as to how she came to get hurt, when carried into her son’s residence, a short distance from the scene of the accident in the presence of the defendant and the two friends with him at the time, plaintiff testifies that she did not remember making the statements imputed to her, and considering her age, physical and mental condition which must have been at the time, her statement seems reasonable to me.

Suppose her to have made the statements which she is said to have made, her condition at the time must be taken into account. There is nothing said about her condition at the time, but it would be unreasonable to suppose that she was otherwise than in a state of mental confusion and unable to say who was at fault or to place the responsibility on defendant or on herself. It seems to me that about all that should be concluded from what she is claimed to have said is that she did not blame the defendant any more than herself and bore him no ill will, but would excuse him from all blame in the matter. That, however, did not give, defendant a release from legal responsibility if he was in fact responsible.

Her answers on the trial seem to me to have the impulse of truth, and the same together with the testimony of the defendant and the parties with him and the other testimony in the case satisfies me that the defendant is legally responsible and should be required to make the proper amends as far as he reasonably can. I think the judgment should be reversed, and that there should be judgment in fa-" vor of the plaintiff for a reasonable amount, making good the damages she has sustained and expenses to which she has been placed as well as can be done.

For the foregoing reasons I respectfully dissent.


author: PER CURIAM.

text:
    No. 699
    First Circuit
    HYDE v. NELSON BROS.
    (October 8, 1930. Opinion and Decree.)
    (December 1, 1930. Rehearing Refused.)
    S. S. Reid, of Amite, attorney for plaintiff, appellee.
    B. B. Purser, ,of Amite, and Eraste Vidrine, of New Orleans, attorneys for defendant, appellant.
   PER CURIAM.

In this case for the reasons assigned in the case of Dewey D. Stafford v. Nelson Brothers, page 51 herein, 130 So. 234, the judgment appealed from is hereby affirmed with costs.


author: LeBLANC, J.

text:
    No. 698
    First Circuit
    BAUDINE v. TECHE TRANSFER CO., INC.
    (October 8, 1930. Opinion and Decree.)
    (December 1, 1930. Rehearing Refused.)

      Lloyd A. Ray, of New Orleans, and Victor E. Planche, of Covington, attorneys for plaintiff, appellee.
    Miller & Heintz, of Covington, attorneys for defendant, appellant.
   LeBLANC, J.

This is an appeal from a judgment in the district court in favor of plaintiff, Eyrie W. Baudine, and which condemns the defendant, Teche Transfer Co., Inc., to pay him damages in the sum of $250 with legal intere&c from judicial demand.

Plaintiff, the appellee, has answered the appeal, asking for an increase in the amount of the judgment to the sum of $313.50, with interest, that being the amount originally prayed for.

The damages claimed resulted from a collision between the plaintiff’s Nash sedan automobile and one of the defendant’s passenger busses which occurred on the Old Spanish Trail between New Orleans and Bay St. Louis, Miss., at about 9:30 o’clock at night, on August 17, 1929. The immediate locality of the accident was at a bridge approximately five miles north of the town of Slidell, La. The direct charge of negligence made against the driver of the bus is, that he was driving at a reckless and illegal rate of speed and not having the bus under proper control while approaching a narrow bridge which plaintiff had just crossed over.

The defense is a denial of any negligence on the part of the bus driver and the same charge of negligence on the part of the plaintiff. Defendant,' in reconvention, seeks to recover judgment against plaintiff in the sum of $217.

Fortunately, it appears to have been an accident in which there were no personal injuries, as the only damages asked for on either side consist of repairs to the automobiles.

The plaintiff was driving north towards Bay St. Louis, Miss., and the bus was on its way to New Orleans, La., making one of its regular trips from Mobile, Ala., to that city. The bridge where the two cars met is rather narrow. There is no exact measurement given as to its width, but we conclude from the evidence that it is with difficulty that two automobiles can pass over it at the same time. The situation is such as to require careful driving on the part of the drivers of the two cars which reach it simultaneously. The right-of-way is generally conceded to the car first entering upon a bridge, unless, of course, the driver speeds up to “beat the other one to it” or is otherwise reckless in the handling of his car. The question as to which was the first car to enter upon the bridge in this case, then, plays an important part in determining the culpability of either driver.

The plaintiff, relating how the accident occurred, states that he was about five miles from Slidell, “and on crossing this concrete bridge the transfer came along, and just as he was off the bridge this bus ran into and hit the back of his car and turned him over.” Later on, when asked where his car was, with reference to the concrete bridge, at the time of the accident, he places it “about 12 or 14 feet this side of the bridge.” By this side, he means the north side, or that * toward Bay St. Louis. Two young ladies, one of them 12 years old, who were riding in his car with him, both testify that he was about three-quarters over the bridge at the moment of the collision. There is evidently some discrepancy between plaintiff and his witnesses on this point and other evidence relative to the position of the car after the accident, makes plaintiff’s estimate of the exact point of contact highly improbable. The driver of the bus, Lee Boudreaux, (places the point of collision on the south, or Slidell end of the bridge. In fact, he says that he “was practically off the bridge when the plaintiff came on it.” The testimony of these, the only eye-witnesses to the accident who testified in the case, is so patently conflicting that it would be futile to attempt to reconcile it. Under such circumstances, usually, an appellate court is strongly influenced by the findings of the trial judge, unless they appear to be manifestly erroneous. They do not appear to be so in this case.

One of the witnesses, C. C. Provata, was placed on the stand by both sides. His testimony, impresses us as being fair and very reasonable. He is an automobile mechanic who lives at Slidell and apparently answered a call from the (plaintiff to help him out of his trouble. He reached the scene of the accident about 40 minutes after it happened. He found plaintiff’s automobile on the right-hand side of the road headed in the direction of Bay St. Louis, from eight to ten feet away from the bridge. lie evidently means that it was on the north, or Bay St. Louis side of the bridge, because, in speaking of the location of the bus after the accident, he says it was “maybe eight feet” from the Slidell, or south side.

If the impact between the cars occurred on the Slidell or south end, it seems hardly probable that the Nash sedan would have continued clear across the bridge considering that it was going at a moderate rate of speed only, and considering also the size and weight of the bus with which it had come in contact. The photographs offered in evidence demonstrate that it received a very severe blow on the left rear end, hard enough, it would seem, to have thrown it against the railing of the bridge on its right-hand side. The bus, on the other hand, was traveling at the rate of 30 or 35 miles an hour, and had sufficient momentum to carry it across the bridge. Considering its size and weight as compared to that of the automobile, it is more improbable that it would have been thrown against the railing of the bridge on its left-hand side. These are physical facts which tend to corroborate thq testimony of the two young ladies who were in plaintiff’s car to the effect that they were three-quarters over or across the bridge when the .impact took place. The defendant placed its master mechanic, A. C. Fournet, on the witness stand with the primary purpose, as it would seem, of showing that he discovered a puddle or wet spot on the gravel on the Slidell, or south end of the bridge, which he says smelled gasoline. He surmises, of course, that this was gasoline which leaked from the tank of plaintiff’s automobile, which the evidence disclosed had been punctured. This witness had to go all the way from New Orleans and did not reach the spot of the accident until two hours after it happened. Considering the lapse of time that intervened and the fact that his testimony is merely an inference drawn by him from certain circumstances which he mentions, we are not disposed to accept it against the stronger physical facts referred to before.

The headlights on both the cars were burning and there was no obstruction, as far as the evidence shows, to prevent a full view in front of each driver. If the driver of the Nash automobile was the first to enter upon the bridge and was almost across it, evidently it was the speed of the oncoming bus and the inability of the driver to bring it to a stop or slow it down sufficiently to permit the Nash car to get clear across which caused the accident, and for this, we must, as did the trial judge, hold him negligent. His negligence, of course, is that of his employer, the defendant, who is liable for the damages which resulted.

We do not know on what theory the district judge awarded the plaintiff the sum of $250. The obligation of the tortfeasor is to repair the damage caused by his fault or negligence. The damage in this case is to the plaintiff’s automobile which, according to the uncontradicted testimony of a mechanic of ten years’ experience, it will cost $313.50 . to repair. He furnished a detailed list of all parts required and what the necessary labor cost would be and not one of these items is disputed. Under the law, “he is entitled to have his car made as good as it was before the accident.” That is the measure of his damage. Croft v. Southern Hardwood Lbr. Co. et al., 7 La. App. 274. The fact that the repairs had not been made and the money for same actually paid, offers no reason why the defendant should not pay for the damage. Hays v. Brantley, 13 La. App. 219, 127 So. 5.

We think this case presents a situation where the appellee is clearly entitled to the increase in the amount of the judgment he asks for.

It is therefore ordered, adjudged and decreed that the judgment appealed from be amended by increasing the amount therein allowed from the sum of $250 to the sum of $313.50, and that as thus amended, "it be affirmed.


text:
    No. 628
    First Circuit
    BIHM v. PLANTERS TRUST & SAVINGS BANK ET AL.
    (October 8, 1930. Opinion and Decree.)
    (December 1, 1930. Rehearing Refused.)
    W. C. Perrault, of Opelousas, attorney for plaintiff, appellant.
    R. Lee Garland and L. B. Sandoz, of Opelousas, attorneys for defendant, appellee.
   LeBLANC, J.

This is a suit for the illegal conversion of the proceeds of a check for the sum of $429.72, which the plaintiff alleges he left with the president of the Planters Trust & Savings Bank, for collection. He avers that the proceeds were applied, over his ¡protest, to the partial payment of a rent note of $1,000 drawn by one F. M. Griffin, which was held by the liquidation of the Planters Bank & Trust Company. The latter bank had failed and its assets were taken over by the Planters Trust & Savings Bank. To secure a large note taken in the settlement, some of the assets were mortgaged, and among these was the rent note referred to. Because of this joint pecuniary interest of the two banks, plaintiff avers that he is entitled to a judgment, in solido, against them both for the full amount of his illegally appropriated check, and he so prays in his petition.

The defendants deny any improper conversion of the funds derived from the check, and aver specifically that the way in which the transaction was handled was with the full knowledge and consent of all parties interested, including the plaintiff, and it was because of this consent and turning over of this check as well as one. from Griffin, and the payment of an additional amount by another party to make up the total amount of the note, that the liquidators of the Planters Bank & Trust Company released from seizure a crop of rice which had been sequestered to enforce the payment of the rent note. This conduct on the part of the plaintiff and his associates, was urged as an estoppel in bar to any of the rights claimed by the plaintiff.

The lower court held that the president of the Planters Trust & Savings Bank, in accepting the checks tendered to him, acted merely in an accommodating capacity, and his bank had incurred no liability whatever in the transaction. It also sustained the plea of estoppel on behalf of the liquidators of the Planters Bank & Trust Company. Judgment was rendered dismissing plaintiff s suit and he has appealed.

From the record we learn that on November 3, 1926, one J. B. Brock leased to F. M. Griffin, a tract of land of 230 arpents situated in the Prarie Basse neighborhood in the parish of St. Landry, for the term of three years. The consideration was the sum of $1,000 to be paid annually before the first of November of each of the years 1927, 1928 and 1929. To represent the rental price, the lessee executed three notes of $1,000 each, payable November 1st of each of the three years mentioned. These notes were paraphed by the notary in conformity with the authentic act of leas'e which was duly recorded in the conveyance records of the parish of St. Landry. The evidence shows that the first two notes were taken up at maturity and that the last one was held by the Planters Bank & Trust Company as collateral security on an obligation due by Brock to that bank. In April, 1929, the affairs of that bank were taken in charge by the state bank examiner and three liquidators were appointed to wind up its business. As already stated, the rent note herein referred to was among the assets mortgaged to the Planters Trust & Savings Bank in the settlement made between the two institutions.

On February 1, 1929, F. M. Griffin had subleased to B. C. Bihm, the plaintiff in this suit, 100 acres of the land which he had leased from Brock. These two parties entered into a formal agreement prepared for them by Mr. L. Austin Fontenot, attorney and notary residing at Opelousas, under the terms of which Griffin was to furnish the land, water, seed-rice, gasoline, oil, etc., and make some of the advances in money to pay labor, in order to operate the farm in making a rice crop. In fact, he was to do almost everything necessary except furnish the machinery required and some labor, for a half interest in the crop. In the face of such a complete understanding and agreement, prepared as it was by an experienced attorney, and of the fact that the original lease from Brock to Griffin was recorded in the conveyance office of the parish, it is difficult to believe that Bihm did not know, as he now pretends he did not, of the existence of the $1,000 rent note.

Griffin defaulted on his part of the contract with Bihm and it became necessary for the latter to secure advances somewhere else. He applied to the Planters Trust & Savings Bank, but was not successful. The president of the bank, Mr. Larcade, suggested, however, that he apply to the Rice Growers Credit Corporation at Crowley, La., which he did, and through Mr. C. E. Carnes, the vice-president' of that institution, he obtained a loan of $600. It was necessary, however, for him to execute a crop lien and pledge and in addition that he have Griffin give a chattel mortgage on some stock and cattle owned by him. Mr. Carnes, moreover, would make it appear from his testimony, that the loan was also predicated on a waiver by the liquidators of the Planters Bank & Trust Company of the rent note. He says that Mr. Larcade had given him to .understand that the note had been waived. Mr. Larcade, however, testifies that he told Mr. Carnes in a telephone conversation that he thought the liquidators would agree to the waiver, but that when he mentioned the matter to them, they refused and he thereupon so notified Mr. Carnes. Inasmuch as Mr. Larcade had no authority to bind the liquidators, as far as we view the record, and, as there appears no formal waiver in the act of pledge and chattel mortgage, or otherwise, Mr. Larcade’s testimony on this point is the more convincing and we accept it as stating what is the fact concerning this important question in the case.

After having obtained the advances, Bihm went to work and made a rather poor crop on the property. When the harvest came, the liquidators of the Planters Bank & Trust Company learned that he was shipping the crop and a provisional seizure was effected at once. Some of the rice was in transit and part of it had already reached Lake Charles where it was to be milled. After the seizure, Griffin and Bihm, who, under their agreement, owned each one-half of the crop, went to Crowley to obtain a settlement from Mr. Carnes through whom it had been sold. He rendered a statement which showed that there was a balance due Bihm of $429.72 and Griffin of $183.06. He issued two checks, one for each, for the respective amounts due, but he also made the Planters Trust & Savings Bank a joint payee on each check. Bihm says that he protested at having his check drawn in that way, as he claimed he was not indebted to the bank in any way, but Carnes nevertheless insisted that they remain as they were.

It is important to note that at this time the rice was under seizure in Lake Charles and that the mill had refused to honor the draft which had been drawn against it. Carnes, Griffin and Bihm were therefore very much interested in obtaining its release, and it is but natural that they should have gone to the Planters Trust & Savings Bank, joint payee of the two checks, in an effort to straighten out the whole matter. They interviewed the president, Mr. Larcade, who proffered his services strictly as an accommodation for all parties concerned, and made it plain to them that his bank was not to entail any liability by reason of the seizure which had been made of the rice crop. In this he is corroborated by Mr. Carnes, and his testimony is undisputed by anyone else. We agree with the district judge, therefore, on this 3v<-dence and in view of what followed, that there is nothing in the recora to show any liability on the part of the Planters Trust & Savings Bank.

Mr. Lareade testifies that at the interview referred to, both Griffin and Bihm offered their checks in settlement in full of the rent note of $1,000, and he agreed to make that offer for them to the liquidators of the Planters Bank & Trust Company. In the event this offer was not accepted, he says, it was agreed that Griffin would put up $150 additional and Carnes would pay the balance to make up the full amount of the rent note and the seizure would then be lifted. It was on this distinct agreement, he says, that the two checks were endorsed and left with him. The disputed point in his testimony is to the effect that Bihm protested at such use being made of his check and insists in saying that he left it for collection only. He also states that he left it at the suggestion of Carnes. It seems a bit singular, however, that if that was the only motive plaintiff had in leaving his check with Lareade, he would have endorsed it without any restriction or qualification, and this especially in view of the fact that it was not endorsed by the bank to which it was made jointly payable. It is significant also, that on the following morning, on being informed by Lareade that the liquidators insisted on the full amount of 'the note being paid, Carnes, who had suggested to Bihm that he endorse and leave his check with Lareade, gave his draft for the full amount of the difference between the amount of the two checks and the full amount of the note, not waiting for Griffin to put up the extra' $150 he was to pay under the agreement. If Carnes knew, as he wishes to be understood, that Bihm wanted cash for his check, it is hard to understand why, in making up the amount to cover the note, he should have included the proceeds from that very check. Such a course leads us to believe that this was all done in accordance with the understanding between them as testified to by Mr. Lareade. These parties, including Griffin, who, strange to say, did not testify in the case, were anxious to obtain the release of this rice from seizure in order to collect the draft standing against it. They knew this could not be done without settlement of this rent note which they all knew was held by the bank. Their actions in the light of this knowledge and of the exact situation, support Mr. Larcade’s version of the way in which the matter was settled. It was on the strength of that settlement, and because of it, that the hank agreed to and ordered the release of the seizure of the rice. Under such situation the plaintiff is estopped from urging the claim he now presents against the liquidators of the Planters Bank & Trust Company.

The lower court correctly rejected his demand and its judgment is affirmed.