author: LECHE, J.

text:
    No. -^
    First Circuit
    MILLIKEN & FARWELL v. RIVET
    (May 3, 1927. Opinion and Decree.)
    (June 7, 1927. Rehearing Refused.)

      (Syllabus by the Editor.)

    1. Louisiana Digest — Homestead — Par. 1, 2.
    The right to homestead exemption is a matter of public policy and by Constitution of 1921 provides that no court or ministerial officer of this state shall ever have jurisdiction or authority to enforce any judgment, execution or decree against the property exempted as a homestead.
    2. Louisiana Digest — Homestead — Par. 3, 7, 11.
    A person engaged in farming is entitled to the homestead exemption even though he is only a tenant and does not own the land which he cultivates.
    3. Louisiana Digest — Homestead — Par. 13, 17.
    The corn and fodder forming a part of homestead exemption need not have been grown and raised on land owned by the debtor.
    Appeal from the Parish of Ascension. Hon. Sam A. LeBlanc, Judge.
    Action by Milliken & Farwell against Henry Rivet.
    There was judgment for defendant and plaintiffs appealed.
    Judgment affirmed.

      George R. Blum and Howell &' Wortham, of Donaldsonville, attorneys for plaintiff, appellants.
    Caleb C. Weber, of Donaldsonville, attorney for defendant, appellee.
   LECHE, J.

Henry Rivet, the defendant, was a, tenant, during the year 1925, on Milliken & Farwell’s St. Emma sugar plantation situated in the parish of Ascension. He owned live stock and agricultural implements which he used in planting and cultivating crops of sugar cane and corn on the land, forming part of that plantation, which he had leased for that purpose from the plaintiffs. In order to obtain advances in money and supplies from the plaintiffs, he mortgaged his live stock and agricultural implements as security for such advances. It is not disputed or contested that on a settlement with plaintiffs in January, 1926, he owed them a balance of eight hundred and seventy-nine and 14-100 dollars.

On January 26, 1926, plaintiffs obtained a writ of sequestration and under said writ, seized defendant’s live stock, all his agricultural implements and one lot of corn which had been grown and harvested by him during the year 1925. Plaintiffs further obtained a writ of attachment, by virtue of which they seized the same property that had been sequestered by them, and, in addition thereto, they further seized ' an automobile. Both of these writs were subsequently dissolved by separate judgments, and appeals were granted in favor of plaintiffs from both judgments. These appeals were made returnable to this court on May 5, 1926; they were perfected by furnishing bonds, but were never filed or prosecuted in this court. The property thus seized, however, remained on plaintiff’s plantation and was never restored to defendant.

Plaintiffs confirmed a default on their main demand and secured a personal judgment against defendant for $879.14, and they thereupon seized defendant’s live stock, his agricultural implements already under seizure by virtue of writs of sequestration and attachment, and advertised the same for sale. Thereupon defendant applied for a writ of injunction to arrest the seizure, on the ground that the property seized was exempt as homestead, under Section 1 of Article XI of the Constitution. The trial court maintained the injunction, and from a judgment recognizing the property as exempt from seizure, plaintiffs have appealed.

It is not questioned that defendant’s situation from the standpoint of his financial condition, and of his duty towards persons dependent upon him for support, legally entitled him to claim the benefit of the homestead law, but plaintiffs’ main contention in this court is that at the time of the present seizure under the writ of fieri facias defendant owned no*" land, was not a farmer, and was not on a farm within the intendment of the constitutional exemption.

The defendant in this case was not only the debtor but was also the tenant of the plaintiffs. Plaintiffs, by judicial process and by means of writs of sequestration and attachment, first wrested from defendant his live stock and agricultural implements, the instrumentalities which were necessary to enable him to pursue his ad-vocation as a farmer, and they then notified him to vacate their premises. In pursuance of that notice, he was compelled to move off their plantation, to pack up his worldly goods consisting of his household effects, and to seek a home elsewhere. After removing from the plantation, defendant, in order to earn a livelihood for himself and his dependents, sought work and became a laborer or a brick mason helper, and Such was his occupation when he made claim for his homestead exemption. It is therefore true that at the time the seizure was made under the writ of fieri facias, defendant was no longer a farmer nor was he on a farm with the necessary quantity of corn and fodder for the current year.

It seems to us that to hold that defendant, under these adverse circumstances over which he had no control, had lost his right to the. homestead exemption, would do ruthless violence to the spirit, if not to the letter of the constitutional provisions on that subject. In our earliest jurisprudence it was said that homestead exemptions were in violation of the principle that a debtor’s property' is the common pledge of his creditors and, therefore, should be strictly construed. But later jurisprudence is otherwise, and the right to the homestead exemption has become a matter qf public policy. Indeed the present Constitution provides that no court or ministerial officer of this state shall ever have jurisdiction or authority to enforce any judgment, execution or decree against the property exempted as a homestead.

The time at which one becomes entitled to claim a homestead is when the exempted property is seized or taken away from him, and the right to make the claim therefor may be asserted at any time before title to the property becomes vested in someone else. The right to the exemption must be gauged according to the situation of the claimant at the time of the seizure. A person engaged in farming is entitled to the exemption even though he is only a tenant and does not own the land which he cultivates. The corn and fodder forming part of the exemption need not have been grown and raised on land owned by the debtor. The following decisions are appropriate and sustain these elementary rules. Abramson, et al., vs. Larrabee, 134 La. 33, 64 South. 766; Cunningham vs. Steidman, 133 La. 45, 62 South. 346; Andrews, et al., vs. McCreary Lumber Co., 155 La. 730, 99 South. 579; Dejan vs. Lee, 124 La. 239, 50 South. 25; Rynella Mills, etc., vs. Segura, 128 La. 643, 55 South. 2.

There is no doubt that the plaintiffs acted in good faith and with a view of securing the payment of a debt really and justly due them, but the law, in pursuance of public policy, protects the unfortunate debtor who has other persons dependent upon him for support from thus being thrown into a condition of absolute want and abject misery.

We believe the trial judge has correctly applied the law under the facts of the ease, and his judgment is therefore affirmed.


source: Caselaw Access Project

author: MOUTON, J. ELLIOTT, J. LECHE, J.,

license: Public Domain

text:
    No. -
    First Circuit
    ANDERSON LUMBER CO. v. ROBINSON AND ROBINSON v. ANDERSON LUMBER CO.
    (January 7, 1927. Opinion and Decree.)
    (June 28, 1927. Opinion and Decree on Rehearing.)

      {Syllabus by the Editor.)

    1. Louisiana Digest — Appeal — Par. 625, 630.
    The finding of the trial court erroneously charging plaintiff for timber adjudged to the defendant, being clearly erroneous as to matters of fact, is reversed.
    2. Louisiana Digest — Evidence—Par. 351; Obligations — Par. 12.
    Where the preponderance of evidence and the surrounding circumstances clearly show that the scale of the lumber company was to be used as a measure, it must be considered the understanding of the contract between the lumber company and the hauler of timber.
    Appeal from Vernon Parish. Hon. Hal A. Burgess, Judge.
    Action by P. H. Anderson Lumber Company against J. F. Robinson and J. F. Robinson against D. H. Anderson Lumber Company, Inc.
    There was judgment for plaintiff, Robinson, and defendant appealed.
    Judgment amended and affirmed.
    Hardin, Hardin & Cavanaugh, of Lees-ville, attorneys for plaintiff, appellee.
    S. I. Foster, of Leesville, attorney for defendant, appellant.
    LECHE, J., dissents.
   MOUTON, J.

In the suit of Anderson Lumber Company vs. Robinson, the ownership of the timber was decreed to be in the Lumber Company, and the .sequestration issued therein was perpetuated. There are no complaints on appeal which would authorize the reversal or modification of the judgment rendered in that case.

We will, therefore, direct our attention in this opinion to the judgment rendered in the case of Robinson vs. Anderson Lumber Company in which plaintiff, Robinson, claims the sum of $935.90 against the Lumber Company for loading and hauling timber. ¡.

The court below found that plaintiff was entitled to recover the sum of $275.00 for the 110,000 feet of lumber which had been seized, by Bradshaw, and bonded by the defendant company. The admissions in the answer of defendant and the proof adduced fully sustain the finding of the court for this item. The evidence shows that an item of $100.00 was charged for timber to plaintiff which was decreed to belong to the company. The court denied plaintiff this item. This was erroneous as plaintiff can not be charged for timber adjudged to defendant. The main contention is in reference to the claim of plaintiff in his brief for hauling 91,800 feet of timber. Plaintiff contends that according to his scaling he is entitled to recover for the hauling of these 91,800 feet of timber. Tbe solution of this contention depends on tbe question as to whether the scaling of the plaintiff or defendant company should be accepted. The District Judge ‘accepted the scale of defendant and denied this item.

The evidence shows that at the time plaintiff was employed, several other men were also engaged in loading and hauling timber for defendant company. These parties, or most of them, testified that to measure the timber the scale of the company was taken as controlling. Several witnesses said that in but few instances the scale of the company was always accepted by those hauling for defendant and other mills.

It is not reasonable to believe that a mill engaging employees to haul timber for it would allow them to do the scaling without the right of revision, and to have their own scale accepted in making settlements with them. Plaintiff says, however, ■that in this instance the defendant agreed to accept the scale he would make in the woods. This is flatly denied by Wood, one of the scalers of the company, and also by the Andersons, owners of the mill. On this point the preponderance of the evidence is with the company.

Plaintiff, testifying in rebuttal, said he never said Anderson agreed to -pay him off by “my scale”; that he thought if there were a little difference between them “we would get together and settle it”. Such evidence as this makes it quite clear that plaintiff’s scale was not to control, and that the scale of the company was to prevail. The whole trend of the evidence supports this conclusion which we find to be based on proper considerations. The court accepted the scale of the comp'any, as hereinabove stated. We find that the evidence supports this finding, and that there is certainly no such error on this issue to justify a reversal.

The judgment should, however, be increased in ■ the sum of $100.00, and, as thus amended, affirmed.

It is therefore ordered and decreed that as thus amended the judgment be and is hereby affirmed.

ON REHEARING

ELLIOTT, J.

A rehearing was granted in these consolidated cases in order that we might further consider our first finding that J. F. Robinson, appellant, was entitled to a credit on item, “To stumpage T. J. Addison tract, $100.00”, charged against him by D. H. Anderson Lumber Company in their account, they having been recognized as the owner of the timber in question. The re-examination has confirmed us in our previous opinion that Robinson is entitled to credit for this amount as held in our former opinion and decree herein.

For this reason our former opinion and decree herein is now reinstated and made the final judgment of this court.

LECHE, J.,

dissents and believes that Robinson is only entitled to a credit of twenty-five dollars.


text:
    No. -
    First Circuit
    TAYLOR v. LOCKE MOORE & CO., LTD.
    (January 7, 1927. Opinion and Decree.)
    (March 8, 1927. Rehearing Refused.)
    (July 11, 1927. Amended by Decision of Supreme Court on Writ of Certiorari and Review.)

      (Syllabus by the Editor.)

    1. Louisiana Digest — Master and Servant —Par. 154, 160 (e),. 160 (i).
    Under Sections 18 and 39 of the Workmen’s Compensation Act No. 20 of 1914, the right to waive jurisdiction, ratione personae, as recognized in Article 93 in the Code of Practice, is not applicable to a complaint for compensation under the Workmen’s Compensation Act.
    2. Louisiana Digest — Master and Servant —Par. 154.
    A settlement in a Workmen’s Compensation case under Act 20 of 1914, approved by a court without jurisdiction in the matter, for a sum of less than that due plaintiff minus a discount of 8% is null and void.
    3. Louisiana Digest — Master and Servant —Par. 154, 160 (e).
    Under Section 8, Subsection 8, of the Workmen’s Compensation Act No. 20 of 1914, the penalty of twice the amount due for compensation where a settlement is made without the approval of the court and for less than a discount of 8% under the amount due will be granted where the court approving the illegal compromise did not have jurisdiction of the case, ratione personae.
    (ON APPLICATION FOR REHEARING)
    4.Louisiana Digest — Master and Servant —Par. 154; Constitutional Law and Constitutions — Par. 64.
    The penalty imposed by Section 8, Subsection 8, of Act 20 of 1914, the Workmen’s Compensation Act, constituted a vested right in the employee and could not constitutionally be taken away from him by a subsequent amendment, namely Act 85 of 1926.
    Appeal from the Parish of Calcasieu. Hon. Jerry Cline and Thos. Carter, Judges.
    Action by Ike Taylor against Locke Moore & Company, Ltd.
    There was judgment for plaintiff and defendant appealed.
    Judgment affirmed.
    Griffin T. Hawkins and Cline & Plauche, of Lake Charles, attorneys for plaintiff, appellee.
    Hardin, Hardin & Cavanaugh, of Lees-ville, attorneys for defendant, appellant.
   LECHE, J.

The plaintiff in this case sues for employee’s compensation, and for an additional amount equal thereto as penalty, and from a judgment granting his demand in full defendant has appealed.

Strange to say, the facts are not controverted, are practically admitted, and only questions of law are presented for decision.

The defendant corporation is domiciled in the parish of Calcasieu and is engaged in the business of manufacturing lumber. Plaintiff, who also resides in the parish of Calcasieu, was employed as a laborer in defendant’s sawmill, and while thus employed and in the course of his employment, was injured to such an extent as to disable him totally and permanently. He was earning at the time a weekly wage of twenty-four dollars. Shortly thereafter a settlement was entered into between plaintiff, who is an illiterate and ignorant negro acting for himself, and defendant, acting through an adjuster of a casualty insurance company, whereby plaintiff’s compensation was fixed at $12.68 per week, for seventy-two weeks, part of which had already been paid, and the balance, from April 18, 1925, for thirty-seven weeks, was lumped at the sum of four hundred and sixty-nine and 16-100 dollars. The agreement thus entered into was submitted to the. District Judge sitting for the. parish of Vernon and was approved by him on April 27, 1925.

Plaintiff attacks the validity of the or,der approved by the District Court for the parish of Vernon, contends that it is an absolute nullity, and that any agreement for compensation between plaintiff and defendant could only be approved, exclusively, by the District Court for the parish of Calcasieu, wherein both the plaintiff and defendant had their domiciles.

As a general rule in civil cases, parties litigant may waive the right to be sued at their own domicile and may consent to be sued elsewhere. C. P. Art. 93. Plaintiff, however, contends that such a waiver is not permissible in cases involving an employee’s compensation.

Section 18, Paragraph 1, of the Employers’ Liability Act, provides in detail the manner in. which a claim for compensation shall be made, and says that the complaint shall be presented to the judge of the court which would have jurisdiction in a civil case. This language presupposes that a claim for compensation is not an ordinary civil suit. Paragraph 4 of the same act says that in the trial of compensation cases the judge shall not be bound by the usual statutory rules of evidence or by any technical or formal rules of procedure other than those provided in the act itself. Section 39 defines the word “court” as used in the act as meaning the court which shall have jurisdiction over the employer in a civil case involving more than one 'hundred dollars.

It is evident that the lawmaker prescribing in most minute detail the manner in which a complaint for compensation shall be made, in exempting the trial of such complaint from the formal statutory rules applying to civil actions and in designating the forum in which such trial shall take place, intended to create a special proceeding cognizable only by the judge having jurisdiction over the employer. Such judge is vested with a discretion much greater than that usually to be exercised in ordinary civil proceedings, and his knowledge of the conditions prevailing in his community is one of the elements enabling him tq arbitrate complaints for compensation in a just, wise and impartial manner.

Statutes creating liability on the part of the employer towards his employee who becomes accidentally disabled have only become generally adopted in this country some fifteen or twenty years ago. Such statutes were an innovation effectively paralyzing most of the well-recognized rules of law theretofore applying to the relations of master and servant. They were at first, in many instances, held hy the' ‘courts to be invalid and unconstitutional as infringing upon the right of the citizen to enjoy liberty and contract. Amendatory legislation, however, has repealed the objectionable compulsory' feature inserted in many of them and they are now universally recognized as necessary in the interest of society. They are no longer considered as enacted solely as a gratuitous benefit for the individual workman, to be by him recovered at his option, but their purpose has become a matter of public interest. Considered then as a matter adopted for the public welfare, the Employers’ Liability Act should not be so construed as to permit the injured employee to., waive and disregard expressed provisions therein enacted to safeguard its object and purposes.

Our learned brother of the District Court held in a sound and logical written opinion that the order of approval signed by the district judge sitting for the parish of Vernon was null and void. We believe his finding is correct and that the right to waive jurisdiction, ratione personae, as recognized in Article 93 of the Code of Practice, is not applicable to a complaint for compensation under the Employers’ Liability Act.

The other question of law involved in this proceeding is plaintiff’s right under the facts herein recited, to recover the penalty fixed in Paragraph 8, Section 8, of the act. The pertinent provision of that paragraph is to the effect that if a lump sum settlement be made without the approval of the court or at a discount greater than 8 per cent, the employer becomes liable for compensation at twice the rates fixed in the act.

It must be observed that neither fraud, nor deception on the part of the employer, need be affirmatively shown as a prerequisite to obtain the penalty. Evidently the lawmaker assumes that a settlement. made in a lump sum without approval of the court or discounted at a greater rate than 8 per cent constitutes of itself an imposition or a deception on the part of the employer. The penalty is severe, but its severity is a matter within the control of the legislature and not of the court.

It appears from our understanding of the statute that the settlement in this case was made without the approval of the court, and it further appears from the admitted facts that the settlement was for a sum less than that due plaintiff, minus a discount of 8 per cent.

Why defendant resorted to the District Court sitting in and for the parish of Vernon for approval of its settlement, and why the basis of that settlement was fixed at $12.68 for 72 weeks, is unaccounted for and need not be discussed.

The learned trial judge gave plaintiff judgment as prayed for, and believing that such judgment is sustained by the facts in the case and the law applicable thereto we hereby affirm same.

ON APPLICATION FOR REHEARING

At the time defendant became liable to plaintiff for compensation, both the District Court and this court found, under the facts in the case, that" defendant, the employer, was liable for compensation at twice the rates fixed in the Employers’ Liability Act, under Paragraph 8 of Section 8 of that act. Since that time the law was amended by Paragraph 9 of Subsection J of Section 8 of Act 85, page 110, of 1926, by making the employér liable only for compensation at the rate of one and one-half times the rate fixed in the act.

This extra compensation was, no doubt, intended by the lawmaker, as damages in favor of the employee for failure of the employer to make prompt and adequate payment under the terms of the act. Such damages, although they might be called a penalty, became the property of the employee, constituted a vested right in the employee, and could not constitutionally be taken away from him by a subsequent amendment or repeal of the statute.

The other points urged by defendant in its application for rehearing have already received full consideration in the opinion of the court.

The application for rehearing is refused.


text:
    No. -
    First Circuit
    MATT v. TOWN OF EUNICE
    (May 3, 1927. Opinion and Decree.)
    (June 7, 1927. Rehearing Refused.)

      (Syllabus hy the Editor.)

    1. Louisiana Digest — Municipalities—Par. 48, 57.
    Where the preparation of the budget of a town council reduces the salary formerly given to the town marshal, this budget under Section 31 of Act 136 of 1898 must clearly show that it is the purpose of the mayor and aldermen to reduce the salary of the marshal, and where such is not clearly expressed in the budget his salary will remain as it was before.
    Appeal from the Parish qf St. Landry. Hon. B. H. Pavy, Judge.
    Action by Angelas C. Matt against the Town of Eunice.
    There was judgment for plaintiff and defendant appealed.
    Judgment amended and affirmed.
    R. Lee Garland and George K. Perrault, of Opelousas, attorneys for plaintiff, appellee.
    Peyton R. Sandoz, of Opelousas, attorney for defendant, appellant.
   LECHE, J.

Plaintiff sues for his salary as town marshal of the town of Eunice, from January 1, 1925, to July 7, 1925, at the rate of one hundred dollars per month and from a judgment granting his demand the town of Eunice has appealed.

Plaintiff was elected town marshal in the year 1919, and on May 2, 1919, his salary was fixed by the mayor and board of aldermen at seventy-five dollars per month. He was at the same time appointed by the said mayor and board of aldermen as street commissioner, the latter office to be filled by him in conjunction with his office as town marshal, and so to continue as long as deemed advisable by the mayor and board of aldermen. His salary as street commissioner was, at the time, fixed at twenty-five dollars per month. Plaintiff was re-elected in 1921 and in 1923, and his ■ term qf office expired on July 7, 1925.

In October, 1924, .at a meeting held by the mayor and board of aldermen, a budget was adopted for the calendar year 1925 and the following items appear therein: Pay of the town marshal $120.00. * * * Pay of street commissioner $900.00 * * *. Warrants were drawn after January, 1925, in favor of plaintiff as marshal, for his monthly salary, each in the sum of ten dollars, but plaintiff refused to accept the same.

The present suit was filed April 29, 1926, and therein) as before stated, plaintiff prays for judgment in the sum of six hundred and twenty-five dollars for his services as town marshal from January 1, 1925, to July 7, 1925. '

The town of Eunice was organized under Act 136, page 224, of 1898, commonly known as the Lawrason Act. Under the terms of that statute, the electors of the town elected' their mayor, their aldermen and a town marshal. ■ The office of street commissioner was filled by the mayor and board of aldermen, under sanction, however, of the same statute (Acts of 1908, page 466). Section 15 of the Act, paragraph 15, as amended by Act 114 of 1916) page 249, authorizes the mayor and board of aldermen to. fix the compensation of all officers and employees of the town. So that when the mayor and board of aider-men fixed the salary of the town marshal on May 2, 1919, there is no question of their right and authority to do so.

It seems that it was the custom of the mayor and board of aldermen to make an annual budget. That practice seems to be mandatory under the terms of Section 31 of the act, which provides that all expenditures of money for any purpose whatever shall be in pursuance of a specific appropriation made by order and in no other manner. Though we find no evidence to that effect, it seems to be conceded that a yearly budget was made and that the salary of plaintiff was therein recognized at the rate of $1200.00, until 1924, when the budget for 1925 was made, providing for the salary of the,town marshal at $120.00.

Defendant, assuming the position that the making of the budget constituted a fixing-of compensation under Paragraph 15 of Section 15 of the act, filed an exception of no cause of action to plaintiff’s demand. That exception was overruled by the trial judge and defendant most earnestly urges on this appeal that it should be maintained and plaintiff’s suit dismissed. Plaintiff, on the other hand, argues that the salary, as fixed in 1919, by resolution adopted by the mayor and board of aldermen, was the only fixing of plaintiff’s compensation, • that the resolution was never repealed and that such fixing could not be changed by simply reducing the appropriation in the budget adopted by the -mayor and board of aldermen for the year 1925.

The question of law then involved in passing upon • defendant’s exception of no cause of action is, which must prevail, the salary as fixed- in • the resolution adopted May 2, 1919, or the salary as fixed in the budget adopted in October, 1924. Both of these fixings were by the same authority, that in the budget however being later in the order of time. The Act of 1898 prescribes no particular form or manner to be pursued by tbe mayor and aldermen in fixing the compensation of tbe municipal officers. A budget, as we understand, is an estimate of tbe public revenues and expenses of a municipal government, wbicb, after being published and adopted, serves as a basis for the levy of taxes and licenses, and appropriates tbe revenues thus derived. Tbe making of tbe budget, in tbis instance, also serves as an appropriation bill or measure in compliance with Section 31 of tbe statute. In tbis case, the. budget or appropriation, made by tbe same authority that adopted tbe resolution on May 2, 1919, being later in date, seems to indicate an intention and a purpose, on tbe part of the mayor and aldermen to amend and alter tbe resolution so as to reduce tbe salary of tbe town marshal from seventy-five dollars to ten dollars per month, but, if that be so, such intention should have been clearly expressed.

In support of tbe contention of plaintiff that the budget did not amend or repeal tbe resolution of May 2, 1919, be cites tbe case of U. S. vs. Langston, 118 U. S. 389 (30th Law Edition 164). In that case Langston sued tbe government, in tbe court of claims, for bis salary as U. S. consul at Haiti, and bis claim, on appeal to tbe U. S. Supreme Court, was recognized as valid. At tbe time Langston en-. tered upon bis duties it had been provided by statute that tbe salary for that office be fixed at $7500.00 per annum. From tbe -creation of tbe office, tbe sum of $7500.00 bad been annually appropriated until tbe year 1883. Tbe appropriations for tbe years 1879 and 1880 contained tbe proviso that tbe sums thus appropriated “shall be in full for tbe annual salary”. Tbe appropriations for tbe years 1881 and 1882 did not contain tbis proviso, although each of these appropriations were for tbe sums of $7500.00. In tbe appropriation for 1883, tbe sum of $5000.00 only was appropriated for tbe services of tbe. consul at Haiti, and, like tbe appropriation bills of 1881 and 1882, was not conditioned with tbe proviso, contained in tbe bills of 1879 and 1880. Tbe court, reasoning from tbe fact that tbe statute provided a salary of $7500.00, and that tbe appropriation for 1883, did not contain tbe proviso in tbe appropriations of 1879 and 1880, “shall be in full for the annual salary”, held in effect that, in the absence of tbis provision, it was not clear that Congress intended to. diminish tbe salary of tbe consul at Haiti. “While tbe case is not. free from difficulty,” says the court, “tbe court is of tbe opinion that, according to tbe settled rules of interpretation, a statute- fixing- tbe annual salary of a ■ public officer at a named sum, without limitation as to time, should not be deemed abrogated or suspended by subsequent enactments which merely appropriated a less amount for tbe services of that officer for particular fiscal years, and wbicb contained no words that expressly or by clear implication, modified or repealed tbe previous law.” According to tbis authority, wbicb seems to be sound and logical, defendant’s exception of no cause . of action should be and it is hereby overruled.

On tbe merits of tbe case, plaintiff, as a witness, acknowledges that be only performed the duties of street commissioner for one year, 1919; be does not sue for salary as street commissioner for the year 1925, and tbe resolution upon which be depends, as fixing his compensation, fixes the same at nine hundred dollars per annum. The judgment appealed from must therefore be accordingly amended.

Eor these reasons it is ordered that the judgment of the District Court be amended by reducing the same to four hundred and sixty-seven and 50-100 dollars, and, as thus amended, that it be affirmed, plaintiff to pay costs of appeal.


author: ELLIOTT, J.

text:
    No. 2847
    First Circuit
    VIDRINE v. EVANGELINE GRAVEL CO.
    (May 3, 1927. Opinion and Decree.)
    (June 7, 1927. Rehearing Refused.)

      (Syllabus by the Editor.)

    1. Louisiana Digest — Negligence—Par. 39, 40.
    Evidence of contributory negligence, which was not pleaded by the defendant but which was received and become part of the record without objection is properly considered by the court where the objection to it came too late.
    2. Louisiana Digest — Master and Servant —Par. 60.
    Where an employee's family lived in the employer’s property, getting water at the well under the conditions provided, the obtaining of this water by the wife of the employee is an incident of her husband’s service and employment.
    3. Louisiana Digest — Negligence—Par. 3.
    Under Civil Code, Article 2317, we are responsible for the things which we have in our custody.
    4. Louisiana Digest — Negligence—Par. 1.
    Negligent ignorance of the condition of one’s property is equivalent to guilty knowledge. .
    5. Louisiana Digest — Negligence—Par. 1.
    To constitute contributory negligence’ there must be a want of ordinary care and a proximate connection between that and the injury.
    6. Louisiana Digest — ¡Negligence—Par. 20, 26.
    To defeat recovery on account of contributory negligence under the common law rule, the plaintiff’s negligence must have entered into and formed a part of the efficient cause of the injury. If it operated only remotely and was not proximately to cause the damage, the plaintiff is not barred of redress.
    7. Louisiana Digest — Master and Servant —Par. 65.
    The master must provide a safe place for a servant to work and this applies as well to the wife of the employee who resides on the premises of the employer.
    8. Louisiana Digest — Master and Servant —Par. 65.
    It is the duty of the employer to cover cog wheels used for pumping water at a well which serves the family of its employees, because not to do so would expose the families of the employees to abnormal, unusual or extraordinary risks which the servant and his family does not assume as being incidental to the work undertaken by him.

      9. Louisiana Digest — Master and Servant —Par. .105, 111.
    The employee’s wife does not assume the risk of being caught in revolving cog wheels and injured merely because she saw them in passing.
    10. Louisiana Digest — Damages—Par. 105.
    Where six inches of flesh was torn from one’s thigh by revolving cog wheels, the tear extending completely round her thigh, the injured person suffering agony and confined to the hospital for fifty days and the injury being permanent, $1700.00 will be considered sufficient quantum of damage.
    Appeal from the Thirteenth Judicial District Court, Parish of Evangeline. Hon. B. H. Pavy, Judge.
    Action by Mrs. Belle Henry Vidrine against Evangeline Gravel Company, Inc.
    There was judgment for defendant and plaintiff appealed.
    Judgment reversed.
    J. Hugo Dore, of Ville Platte, and John W. Lewis,- of Opelousas, attorneys for plaintiff, appellant.
    Hawthorn & Stafford, of Alexandria, attorneys for defendant, appellee.
   ELLIOTT, J.

Suit for damages on account of personal injuries received by being caught in cogwheel which was being operated without a cover.

This suit was before us on an exception of no cause of action, Mrs. Belle Henry Vidrine vs. Evangeline Gravel Co., Inc., Court of Appeal Reports, Vol. 4, p. 687, and was remanded for defendant’s answer.

The trial resulted in the rejection of plaintiff’s demand. The plaintiff appealed and the case is now before us on the merits.

For a statement of the case, according to the petition of the plaintiff, reference may be had to the opinion of this court on the exception. Plaintiff explains in her petition that the water from the pump was conducted, as it was pumped, outside of the pump house, by a (pipe, and was there caught in a bucket at the mouth of the pipe. That her husband was constantly at work on defendant’s dredge boat, and there was no one in her household except herself to get water when she needed it.

That on March 12, 1925, at about the hour of 2:30 P. M., needing water for household use, she went to the pump, using every precaution she knew, and started the pump. That it was then necessary for her to go around the cogwheels, which were then revolving, and go outside to get the water. That she carefully picked her way around the gears, but in some manner her outer garment was caught in the rapidly revolving wheels. That her right leg was drawn down in its teeth, grinding and rending her flesh to the bone, so that large pieces from the right thigh were torn and thrown against the walls of the pump house. That about six inches of the thigh was torn away between the hip and the knee joint, the tear extending completely around her thigh.

She claims, on account of her suffering, loss of time from her household duties and the love and affection of her husband and children and on account of permanent disfigurement of her limb, damages to the amount of $9000.00.

Defendant denies that it was under the obligation of furnishing water, to plaintiff’s family and that the well in question was put down and a pump installed for the purpose of providing water for the families of its employees, and alleges that there were other means of getting water, and that plaintiff could have obtained it without going to the well. It denies that it had knowledge that plaintiff or any other woman was entering the pump house and attempting to operate the pump, and alleges that its superintendent advised all the women folk in and about the premises at the time the pump was installed, not to enter the pump house under any conditions. It denies that it was necessary for any of the women to pump water, and alleges that it employed a man whose duty it was to operate the pump and that this man started the pump three or four times a day, and that he sometimes did so every two hours for the purpose of providing water.

That plaintiff’s action in going into the pump house and starting the pump was an act of negligence on her part. It denies that She was injured in trying to pass the gears on her way to the door, and alleges that she walked near a window in the pump house, about three feet from the gears, not for the purpose of going outside, but in order to talk to some women on the outside, and, while talking to them, she carelessly and negligently walked near the cogwheels, which were open and in plain view, and got her skirt caught in the wheel. That her action in getting too near the wheel was negligent and careless. That ample spa.ce and passageway existed for her to get out of the pump hohse without getting hurt. That if her skirt was caught it was because she did not hold it and pick her way close to the wall as she should have done.

Defendant denies that it was negligent; but alleges, in the alternative, that if it was, plaintiff was guilty of contributory negligence in unnecessarily attempting to pass said open gears in plain view, and that this was the cause of her injury. That the danger of passing the gears was apparent, and plaintiff, in doing so, assumed the risk and danger incident thereto.

Mrs. Monk and Mrs. Johnson, witnesses for plaintiff, testified on cross-examination, without objection from the plaintiff, that her children were with her in the pump house at the time she was injured.

The plaintiff resumed the stand, following them, and testified in chief that these ladies were mistaken on that subject. After plaintiff had closed and Mrs. Deville, witness for defendant had also testified on direct examination, that plaintiff’s children were with her in the pump house at the time she was injured, plaintiff then moved by her counsel to strike all the testimony on that subject out of the record, on the ground that it was apparent to the court that it was the purpose of the defendant to interpose, by testimony, a plea of contributory negligence on plaintiff’s part, in the way stated, and that it was not admissible because defendant did not set forth in its answer such a ground of defense.

The court sustained the motion and excluded the evidence. Defendant excepted and tendered the testimony of Miss McCormick as a further. witness that plaintiff’s children were with her in the pump house at the time she was injured.

Plaintiff objected to this evidence on the same ground that had been urged against that which had been excluded. The court sustained the objection. Defendant excepted and the court permitted the testimony of Miss McCormick to be taken down and annexed to a bill of exceptions. The bill is in the record with her testimony annexed; Defendant urges that the rulings were erroneous; that the evidence excluded, as well as that of Miss McCormick, was admissible. Contributory negligence is pleaded in defendant’s answer. Various acts alleged to have been such are specified, but the averments of the answer are broad enough to justify the introduction of the evidence, mentioned, without special reference thereto.

Plaintiff could not have excluded the testimony of Mrs. Monk and Mrs. Johnson on the subject, and leave her reply thereto; but supposing that such an act on plaintiff’s part, not to be contemplated by the answer, the ruling is still erroneous, for the reason that the motion and objection came too late. The evidence had been received and become part of the record, without objection. Bell vs. Globe Indemnity Co., 107 La. 725, 31 South. 994, and cases therein cited.

As the testimony of Miss McCormick on the subject should have been received, and as she was cross-examined on the subject by the plaintiff, we take it into account and give it, as well as that excluded, the same effect and consideration as if it had been received.

Defendant contends that there was other drinking water which plaintiff could have obtained without pumping it from the well. There is no force to this contention. The evidence shows that the water in Turkey Creek, as well as that in a nearby branch and gully, was not fit for drinking; neither was that kept at the well in a tank and barrel. Defendant recognized that fact by daily sending to the well for drinking water for its workmen employed at its gravel plant. The evidence shows that defendant erected a number of small houses near its gravel pit ip which the families of its employees might reside while engaged in its service. The facility was a convenience to the. employees who had families, and was at the same time an inducement to men with families to engage in the work.

Seven or eight of the houses were occupied by employees and their families at the time of the occurrence in question; not as tenants, but as a perquisite of their employment, without paying rent. It was in this way that plaintiff was residing in one of these houses with her children. Her husband was one of defendant’s employees, working at the plant. Defendant put down the well in question for the purpose of furnishing water for the families of its employees, residing in its quarters, and for the men working in its plant; installed in it a pump and provided machinery for operating the pump by electric power obtained from the gravel plant. There was no other drinking water available for its employees and their families living in its quarters, except this well. When the wives and children of its employees needed drinking water they had to get it at this well; and if need for water arose when the pump was not being operated by some of the men, and according to the evidence such was a frequent occurrence, they had to pump it themselves.

Defendant contends that the wo.men of its employees were notified not to use the pump. This allegation is shown to be untrue. The evidence is that no notice was given to any of the women that they were not to use the pump. ■ Under the circumstances in which plaintiff and her family lived in defendant’s quarters, getting water at the well in the way and under the conditions provided, was for her but an incident of her husband’s service and employment by defendant.

Mr. Ragsdale, president, and Mr. Miller, superintendent of the defendant corporation, and some other of its employees, testified that they were not aware that the women were in the habit of pumping water at the well. If they did not know that the pump house was left open and that the wives of its employees were going in and pumping water, they should have known it. It was a matter about which the officers and agents of the defendant cannot plead ignorance.

“We are responsible for the things which we have in our custody.” Civil Code, Art. 2317.

“Negligent ignorance of the condition of one’s property is equivalent to guilty knowledge.” Atkins vs. Bush, 141 La. 181, 74 South. 897; Lorenz vs. N. O., 114 La. 804, 38 South. 566; Tucker vs. R. R., 42 La. Ann. 114, 7 South. 124; Barnes vs. Beirne, 38 La. Ann. 280.

Mrs. Vidrine, Mrs. Campbell and Mrs. Monk had each learned how to start the pump and had been pumping water as they needed it for two or three weeks previous to plaintiff’s injury. The fact that their wives were pumping water when it was necessary to have it was pretty well known among the employees at the plant. The plaintiff had net been warned not to enter the pump house and start the pump. She had not been told about the danger of the cogwheels. The pump, machinery and power had been placed there by the defendant and left in the condition in which it was for the purpose of supplying water to the employees and their families.

The pump house was always left open, at least not locked; the situation invited their wives to go in and start the pump, if she knew how, and get water when she needed, if there was no one else present to pump it. She was therefore not guilty of negligence in pumping water.

Defendant urges that plaintiff took her children into the pump house, and that doing so was negligence on her part, as to prevent recovery. That they were in the passageway and interfered with her passage out, causing her to walk near the revolving cogwheels and her dress to be caught by the gearing.

Mrs. Monk, Mrs. Campbell, Mrs. Deville and Miss McCormick testify that plaintiff’s children were in the pump house at the time she was injured. The evidence shows that plaintiff reached the pump house ahead of them and started the pump before they arrived. They reached the place after she was caught and were on the outside, and their means of seeing inside is not clear. But Mrs. Monk hearing plaintiff scream' ran inside and had to climb over the pipe, over the children and pass by the plaintiff, fastened down in the cogwheels, in order to reach the switch and stop the machinery. She says in one place that the children appeared to he under the pipe; but they could have been just inside the door when plaintiff was caught, and, hearing her cries, were ahead of Mrs. Monk trying to get to her, but had been stopped by the pipe which was in between the cogwheels and the door.

Each of the witnesses mentioned made a circle on a diagram, offered in evidence, showing approximately as near as they could about where they each thought the children were at the time they saw them in the house. The circle which each made is indicated by their respective names identifying it, and each circle places the children at a different place. Mrs. Monk thought that when she ran into the house (note testimony, p. 116; transcript, p. 152); that the children were near the door; then she says, in another place, that she climbed over them at the pipe, but that she did not think they were near the gear; she did not think they were that far inside the house. None of them testified that the children were in between the cogwheels and the wall, not near enough to the cogwheels, at the time their mother was caught, to have caused her to come in contact with the wheels in trying to pass them on her way to the door. The mother would hardly have started outside of the pump house with them behind her, even if they had passed the cogwheels and were with her near the switch. She testifies that she left her children at the door when she went inside, and that she did not see them, and they were not with her at the time she was caught. That when she was caught and jerked down into the cogwheels she immediately screamed and commenced crying, upon which her children ran inside, caught hold of her and began pulling at her, screaming and crying themselves. Therefore, supposing plaintiff did leave them at the door when she entered the house, and that they came inside without her knowledge, the evidence indicates that they remained near the door until she was caught in the wheels. It does not appear from the evidence that their presence in the house was a contributory cause to the' accident.

“To constitute contributory negligence there must be a want of ordinary care and a (proximate connection between that and the injury.” Cline vs. Crescent City R. R., 43 La. Ann. 334, 9 South. 122.

“To defeat a recovery under the common law rule, the plaintiff’s negligence must have co-operated with the negligence of the defendant and produced the injury complained of. As is expressed, the plaintiff’s negligence must have entered into and formed a part of the efficient cause of the injury. If it operated only remotely and not proximately to cause the damage, the plaintiff is not barred of redress.”

R. C. L., Subject, Negligence, Vol. 20, Section 113, pp. 136 and 137.

Defendant contends that plaintiff did not hold her skirts as she passed the cogwheels and that her failure so to do caused her to be caught. The district judge held that she was guilty of contributory negligence on that account. In his opinion he says:

“If she had done as she says she did, caught her skirts and walked carefully around the gears of the electric pump, which she necessarily knew was dam gerous, this accident would not have happened. There was over 36 inches of space for her to pass and it was impossible for her to have become entangled in those gears, except through fault and negligence. That being the case, she is not entitled to recover.”

The plaintiff testifies that she did hold her skirts while passing and we think responsibility for what happened to her must be placed on defendant. Defendant knew that the cogwheels were uncovered. That fact is alleged in its answer and urged against plaintiff as an obvious danger which she must.be considered to have assumed. Defendant knew or should have known that the pump house was left open, or at least unlocked. Defendant should have kept the house locked. And certainly if not kept securely fastened, then a notice should have been posted there, that the place was dangerous when the pump was working and that women were not to undertake to work the pump. They should have been warned that the cogwheels were dangerous when in motion. As the pump house was left open and no notice given of the danger, then .defendant should have covered the cogwheels and made the pumping safe for the women. As the wives of its employees, living in its quarters, had a right to get water at the well, the method of getting it should have been made just as safe for them as the ©lace where their husbands worked was required to be made for them. It is a well-settled rule that the master must provide for the servant a safe place in which to work.

Powers vs. Sugar, 48 La. Ann. 488, 19 South. 455.

Johnson vs. Christie & Lowe, 117 La. 911, 42 South. 421.

Parrenin vs. Crescent Stock Yard & Slaughter House Co., 120 La. 75, 44 South. 990.

That is the general rule; there are excepted occupations, but these cogwheels, near which women were tacitly invited to get water, cannot be regarded as coming within the exceptional instances.

Rapidly revolving cogwheel are an insidious and dangerous thing when uncovered; even to men accustomed to machinery and using the greatest care. The danger for women in such uncovered machinery is greater than for men. These cogs were made to be covered. The evidence shows that there were covers lying on the floor of the pump house, but they had been left off at the time of, and had not been in position for a long time prior to, the occurrence in question.

It was defendant’s duty to. keep these cogwheels covered for the safety of those pumping at the well which it had provided for the purpose of furnishing them water. If the covers had been on, the plaintiff would not have been injured. All that was necessary for the safety of those pumping water was to have placed the covers in position. It could have been done in a moment. Servants do not assume risks that the master can so easily save them from, and the rule applies in this case to the wives of the employees pumping water at this pump.

A proposition ■ which has so frequently been enunciated by the courts as to have become axiomatic is that,’ prima facie, a servant does not assume any risk which may be avoided by the exercise of reasonable care on the master’s part. In other words, the abnormal, unusual or extraordinary risks, which the servant does not assume as being incidental to the work undertaken by him are those “which would not have existed if the master had fulfilled his contractual duties”.

Labat on Master and Servant, 2nd Ed., Vol. 3, Section 894, p. 2836.

R. C. L., Vol. 20, Subject Negligence, Section 101, pp. 117 to 120.

Collins vs. H. F. Lewis & Co., 111 La. 741, 35 South. 886.

Carter vs. Fred Dubach Lumber Co., 113 La. 239, 36 South. 952.

Burns vs. Ruddock-Orleans Co., 114 La. 247, 38 South. 157.

Roff vs. Summit Lumber Co., 119 La. 571, 44 South. 302.

Whitworth vs. South Arkansas Lumber Co., 121 La. 894, 46 South. 912.

Underwood vs. Gulf Refining Co., 128 La. 968, 55 South. 641.

LeBlanc vs. United Irrigation Rice Milling Co., 129 La. 196, 55 South. 761.

Defendant urges that plaintiff saw the revolving cogwheels and therefore assumed the - risk in passing them. We do not think the assumption follows. Plaintiff had no experience with machinery, nor adequate knowledge of the danger she was in.

. Defendant urges that plaintiff should have stopped the pump before leaving the switch, and that if she had done so the cogwheels would not have been turning as she passed them. To exact that of plaintiff would be to hold that it was her duty to remain at the switch and pump until the buckets of the others who had come to get water were filled. She was under no obligation to remain there and do that. When her bucket was full, as the pump was working and others had come to get water, it was a natural thing for her to leave it working so that the others could get their water without having to start it. Plaintiff may have desired to get her bucket of water and her children and go on home without waiting for the others. She knew that both Mrs. Monk and Mrs. Campbell could start and stop the (pump as well as she could, so it was not negligent for her to leave it working and go outside where her bucket was. She had to pass by the revolving wheels in order to do so. Plaintiff explains how it happened as follows:

“Q. Please describe to the court exactly what you did and what happened at the time you got hurt.
“A. I put my bucket down on the outside of the pump house and went in. I crawled over the pipe that comes from the well and goes through a hole in the outside, and threw the switch on, etc. I carefully walked out to see if the water was coming. (The ether ladies had not arrived at that time.) The pump would not prime, so I had to go back and turn off the switch and fix it. When I turned the switch the second time the other women were down there, and when I was going out to get my water my dress got caught in the cogwheel as I passed. I turned and held my clothes, but I did not get to the (pipe before the cogwheel had my clothes and pulled me to it.”

Nobody was looking at her at the time. Nobody saw her at the moment she was caught. She was the only person in the pump house at the time. Her explanations of how it happened is all that there is on the subject. We cannot look on plaintiff’s act, under the circumstances, as deserving to be classed as contributory negligence; but think defendant’s negligence in providing such a dangerous method for the wives of its employees to get water is the direct, proximate and responsible cause of plaintiff’s injury.

The judgment appealed from is contrary to the law and the evidence and must be annulled, avoided and set aside, and judgment rendered in favor of the plaintiff.

On the question of amount: We have considered a letter which the plaintiff wrote defendant on May 28, 1925. Her injury was terrible; the agony she suffered cannot be described. She was confined to the hospital for fifty days before she could return home. At the time of the trial, more than a year and a half since the occurrence had elapsed, but she still felt some painful effects. She has suffered a permanent injury to her limb.

The defendant acted promptly and very humanitarianly in sending her to the hospital, paying for medicine and other expenses while there, amounting' to about $600.00,. for which no claim has been presented so far as we know. This sum will be taken into account.

The plaintiff will be allowed, on account of all her damages and injuries claimed in her petition, the sum of $¿700.00, from which the $600.00 expended by defendant as above said will be deducted, leaving a balance due her of $1100.00.

The judgment appealed from is annulled, avoided and set aside, and judgment is now rendered in favor of the plaintiff, Belle Henry Yidrine, and against Evangeline Gravel Co., Inc., for $1700.00, less $600.00 already received, with legal interest on the balance due from judicial demand until paid.

The defendant and appellee to pay the cost in both courts.


text:
    No. 16,176
    First Circuit
    STANDARD MANUFACTURING CO. v. DUPUIS, ET ALS.
    (May 3, 1927. Opinion and Decree.)
    (June 7, 1927. Rehearing Refused.)

      (Syllabus by the Editor.)

    1. Louisiana Digest — Marriage—Par. 145, 172.
    In view of Articles 131, 1786 and 2334 of the Civil Code, a pleating machine purchased by the wife out of the use of which she made money is not a separate business, trade, occupation or industry.
    2. Louisiana Digest — Marriage—Par. 145, 172.
    In view of Articles 2402 and 2403 of the Civil Code, a debt contracted by the wife for the purchase of a pleating machine is a debt of the community.
    3. Louisiana Digest — Marriage—Par. 135, 172; Estoppel — Par. 46.
    Where the husband does not object to the wife’s purchase of a pleating machine which was used fqr the good of the community, his silence and inaction, under Article 1817 of the Civil Code, are circumstances showing his consent to the purchase for the community, of which the husband has administration.
    Appeal from the District Court, Parish of St. Mary. Hon. James D. Simon, Judge.
    Action by Standard Manufacturing Company against Frank C. Dupuis, et als.
    There was judgment for plaintiff and defendant appealed.
    Judgment affirmed.
    C. A. Blanchard, of Morgan City, attorney for plaintiff, appellee.
    Charles L. Wise, of Morgan City, attorney for defendant, appellant.
   ELLIOTT, J.

Suit to compel husband to pay notes signed by wife only, given by her as the purchase price of a pleating machine, on the. ground that it was a community debt, and the husband, as head of the community, liable for the payment of the same.

Mrs. Frank C. Dupuis, wife of Frank C. Dupuis, bought a pleating machine from Standard Mfg. Co., and signed and delivered to the plaintiff two notes representing the purchase price, signed “Mrs. Frank C. Dupuis”.

The notes were not paid at maturity and plaintiff brought suit qn them against Frank C. Dupuis and Mrs. Frank C. Dupuis, alleging that they were indebted in solido unto the plaintiff for the amount of the notes, with attorney’s fees as stipulated therein.

The plaintiff alleges that the notes were given in payment of the pleading machine, and that, upon information and belief, Mrs. Dupuis bought the machine as the agent of and for the benefit of the community, of which her husband was the head and master, and with his authority and approval. That it was therefore entitled to recover judgment against him for the amount due on the machine.

The defendants, both excepted, urging several exceptions, among them that there was a misjoinder of parties defendant. It is not necessary for us to act on any of the exceptions to rulings, except to. say. that the • exception of misjoinder was sustained, and plaintiff required to elect against which of them it would proceed. It elected to proceed against the husband.

The husband, for answer and defense, alleged that he. was not a party to. the notes, had no interest in the premises, and denied that he was indebted unto the plaintiff on said account. Denied that he knew the notes had been given in payment of said machine, and denied that the machinery had been bought by his wife as the agent of and for the benefit of their community, with his approval and# authority, and prayed for judgment rejecting plaintiff’s demand.

The district judge reviewed the case carefully and, for reasons stated in written opinion contained, in the record, rendered judgment in favor qf the plaintiff as prayed for.

Defendant appealed.

The defendant urges various defenses but the only real question is whether or not the notes sued on represent a community obligation. The legal community of acquets and gains existed between Hr. and Mrs. Dupuis at the time and they were living together.

Defendant cites us to the Civil Code, Article 2334 (Amd. Act. 186 of 1920). That part of the article which provides: “Separate property is * * * her earning when carrying on a business, tráde, occupation or industry separate from her husband.” The business, trade, occupation or industry referred to. must be carried on in the way provided for in Civil Code, Articles 131 and .1786. This case does not involve the wife’s earnings, and the evidence shows that Mrs. Dupuis did not carry on a business, trade, occupation or industry such as the law contemplates and provides for. She lived in the matrimonial domicile with her husband and children, pleated at home in connection with her household work. She earned very little by pleating, and that little was not kept separate from the earnings of her husband; but all the earnings of both were used for the benefit of the community. Her earnings in the way mentioned were no more separate property than what she might have been paid for any other kind of work done daily or occasionally as a help to the common end. It is not claimed by the husband, and there is no evidence at all that the pleating machine enured to the separate benefit of the wife. The small use she made of it, after buying it, and the application she made of all her earnings by pleating, indicates the nature of the obligation created by the purchase.

The obligation was created by the wife living under the regime of the community and comes within the following provisions of the law':'

“This partnership or community consists * * * of the produce of the reciprocal industry and labor of both husband and wife, and the estate which they may acquire during the marriage * * * by purchase or in any other similar way, although the purchase be only in the name of the two, and not of both, because in that case the period of time when the purchase is made is alone attended to, and not the person who made the purchase.” Civil Code, Art. 2402
“In the same manner, thé debts contracted during the marriage entered into the partnership or community of gains and must be acquitted out of the common fund.” Civil Code, Art. 2403.
“The husband is the head and master of the partnership or community of gains. He administers its effects, disposes of the revenue they produce,” etc.

According to these provisions of the Civil Code, this pleating machine was an acquisition of the community, with the result that the unpaid price of the same is a community debt of which the husband as head and master is liable. The fact that he did not sign the note which represents the purchase price, and that the wife did, cannot modify these legal provisions nor relieve him from his responsibility under the law.

Defendant contends and cites cases to the effect that a party who has not in some way signed a note is not liable on it. This is true, except in a case like the present, when a husband is liable, not on the note, but for it. The evidence shows that the husband assented to the purchase of this machine, and that he is just as liable on account of it as he would have been for a stove or any article of furniture which the wife might have bought in a similar way and placed in the house to be used for the good of the community. He saw this machine brought and set up in the house; it has been there for more than a year. He never objected to this being done; he is-therefore just as liable for it as if he had ordered it himself.

“Silence and inaction are also, under some circumstances, the means of showing assent that creates an obligation.” Civil Code, Art. 1817.

The case of Shepard vs. Schoemaker, 2nd Orl. App., p. 166, cited in plaintiff’s brief, appears to be very similar to the present. The report of the case in the Louisiana Digest does not show that the wife alone signed a note, and that suit was brought against her husband on the note to compel him to pay it; but it shows that the husband was sued and compelled to pay for a piano under circumstances almost exactly like the present suit, brought to compel the husband to pay for a pleating machine.

The judgment appealed from is correct.

Judgment affirmed; defendant and appellant to pay the cost in both courts.


text:
    No. 1408
    First Circuit
    WALKER v. L. R. & N. CO.
    (May 3, 1927. Opinion and Decree.)
    (June 7, 1927. Rehearing Refused.)

      (Syllabus by the Editor.)

    1. Louisiana Digest — Railroads—Par. 62. A railroad is negligent in slowly backing a string of box cars over a little used crossing without an alarm whistle, bell or other notice of its approach.
    2. Louisiana Digest — Railroads—Par. 63, 65; Automobiles — Par. 5.
    One who drives his automobile at night with his lights burning over a railroad crossing, which was further illuminated by incandescents lights, should have seen and heard a string of box cars backing towards him at the rate of five or six miles an hour; his negligence in not seeing or hearing the train constitutes the principal cause of the accident and contributory negligence barring his recovery for the resulting damage.
    Appeal from the Parish of East Baton Rouge. Hon. George K. Pavrot, Judge.
    Action by James I. Walker against Louisiana Railway & Navigation Company.
    There was judgment for plaintiff and plaintiff and defendant both appealed.
    Judgment reversed.
    R. P. Wlker and Pred G. Benton, of Baton Rouge, attorneys for plaintiff, appellant.
    Wise, Randolph, Rendal & Fréyer, of Shreveport, and Laycock, Borron & Lay-cock, of Baton Rouge, attorneys for defendant, appellant.
   ELLIOTT, J.

Suit to recover the value of an automobile destroyed by a train while being backed over a frequently used private crossing, also damages on account of personal injuries received in the collision, and other losses.

An automobile, sedan type, belonging to and .driven by James K. Walker, was destroyed by a train while being backed by Louisiana aRilway & Navigation Co., over a railroad crossing leading into tlie plant of the Standard Oil Co., through the suburb Dixie, on the night of December 4, 1926, at about 10:30 p. m.

The plaintiff was badly shaken up and some of his clothing ruined, but aside from a severe nervous shock he was not seriously injured.

It was a dark night but not cloudy. The. plaintiff, accompanied by three young ladies, one of whom was sitting with him on the front seat, the other two with a young man named Heath occupying the back seat, drove across defendant’s main and switch tracks, and entered the gate leading into the premises of the Standard Oil Co. Young Heath got out after getting about ten feet inside the gate, leaving plaintiff with the young ladies in the car. The plaintiff, so he says, turned around without stopping, drove out of the gate, starting back over the crossing by which he had entered, but just as he got on the crossing he was struck by a box car, being backed over the crossing at the end of the train. The automobile was rolled and crushed under the box car for a distance which some of the witnesses estimate at 100 feet. How it came to pass that plaintiff and. his companions were not all killed seems almost providential.

Plaintiff claims that the collision was due entirely to the fault and negligence of the defendant. That defendant was backing, its train in the night time over an unlighted and unguarded crossing, without any noise to give warning of its approach.

The defendant in its answer denies that it was negligent. It alleges that the collision was due to the negligence of the plaintiff. Alleges that the crossing was guarded by its brakeman with a lighted lantern in his hand. That the crossing was, moreover, lit up with electric lights in such a way that plaintiff should have seen and heeded the warning of its brakeman at the crossing, and should have seen and heeded the backing train, and not entered on the track. That plaintiffs negligence was the [proximate cause of the collision.

The District Judge rendered judgment in plaintiff’s favor for $773.20, the value of his automobile, but rejected his demand fo.r personal injuries and other losses.

The plaintiff and defendant both appealed.

The evidence shows that there was no light on the end of the box car which was being backed, nor alarm by whistle, bell or otherwise notice of its approach. The crossing was not a municipal street nor public highway; but it was used by a great many people in the employ of the Standard Oil Co. just before and after shifts. A shift was due to take place at 11 o’clock p. m., and the workmen were beginning to arrive at the time plaintiff came; therefore, all reasonable precaution should have been taken by the train crew at the. time stated.

Plaintiff brought young Heath to his work in the plant. At the time stated the crew should have had a light at the forward end of the backing box car; the bell should have been ringing and the whistle should have sounded notice of its approach at the crossing.

The Supreme Court in Ortalano vs. R. R,. 109 La. 902, 33 South. 9114, considered the care which should be exercised by a railroad at a private crossing used perhaps considerably less than the one in question; but we have concluded that the case does not depend on the neglect of the railroad company in the matter mentioned. The evidence shows that the plaintiff himself was heedless and negligent in not looking, stopping and listening, and in not seeing the train with box car leading being backed over a crossing not over 25 or 30 feet distant in his front under bright and glaring lights, under which he could and should have seen it for nearly 100 feet, before it came to the crossing.

The train was being backed slowly, the engineer says, five or six miles an hour. There was some difference of opinion about that, but all the witnesses agree that it’ was backing very slowly at the time.

The Standard Oil Co. not only maintained a watchman at the crossing day and night, but also erected and maintains over it at night two electric lights, each of 200-wat intensity. These lights are .at the top of poles, one standing about 18 and the o^bter about 20 feet above the ground. One of them qn the east, the other on the west side of the crossing. The one on the east is about 30 feet east of the main line and about 10 feet east of the switch track on which the train was backing. The other is about 30 feet west on the main line, both on’ the north side of but within a few feet of the crossing.

The Standard O'il Co. also maintains another 60-watt light on a booth occupied by the watchman. This light is about 60 feet west of the ’ crossing, just inside of the gate, and also reflects some light over the space in the vicinity of the crossing.

The plaintiff was one of the employees of the Standard Oil Co. and familiar with the crossing, the watch and light over it. The Standard Oil watchman usually remained near the gate. He attended to the gate, kept out those who had no right to enter, and at train times flagged the crossing.

These lights and a watchman are kept at the crossing by the Standard Oil Co. for the protection of its employees. The railroad company has nothing to do with the Standard Oil Co. watchman, nor with the lights maintained there; but it has the right to avail itself of the lights to the extent that the plaintiff was negligent in not having seen the train as it was being backed toward the crossing under the glare of the lights, and in not having observed defendant’s brakeman stationed there at the time.

Plaintiff contends that defendant did not have the crossing guarded. He says that he did not see the brakeman there, and several witnesses called by him also testify that they did not see him there at the time of the collision, but we think the preponderance of and the most dependable evidence shows that Joe Martin, defendant’s brakeman, not living at the time of the trial, was on the crossing at the time of the collision, with a lighted lantern in his hand.

Messrs. Callahan and Butler, employees of the Standard Oil Co., support defendant’s contention 'in this respect. According to the evidence, Brakeman Joe Martin stepped off the train at the crossing, as it came south over the main line, and walked to the switch crossing over which the train was to be backed, with a lighted lantern in his hand. Mr. Callahan says he was too excited by the collision about to take place to notice whether Joe Martin had a lighted lantern in his hand at the time the plaintiff was about to be struck; but he had noticed him there with a lighted lantern in his hand just a little while or a moment before the occurrence.

Butler did not see the brakeman on the crossing at the moment' of the collision, but he saw him get off the train as it pulled down going south over the main line, and walk toward the switch crossing only a few feet away, with a lighted lantern in his hand. In a fef minutes after seeing the brakeman walk toward it, he saw the backing box car and plaintiff’s automobile in the act of colliding in the middle of the crossing. He did not notice the brakeman any more after seeing him get off the train and walk toward the switch crossing; but Butler, seeing the collision, ran along by the side of the backing train which was rolling the automobile before it until it was stopped. When it stopped he was at the place where it stopped, and he then noticed that the brakeman was also there with a lighted lantern in his hand.

The conductor of the train testifies' that he saw Brakeman Martin on the crossing just before the collision, flagging traffic.

A brakeman named Lewis also testifies that he saw Brakeman Martin on the crossing with a lighted lantern in his hand, holding it out against traffic, and saw at the same time an automobile approaching. Another brakeman, Joe Nicks, testifies in effect to the same.

Several witnesses, testifying for the plaintiff, that they did not see the brakeman, does not negative this positive testimony on the part of those who did see him. A witness, whose testimony is quoted by the plaintiff, says he saw the collision at a distance of only a few feet away, and that he did not see Brakeman Martin there; also admits that he did not see plaintiff’s automobile nor the lights of same as it came toward the crossing; and explains that it was because, at that time, he was too far south of the road. Meaning south of or below the road leading to the crossing.

A sedan is a closed car and it is natural that a man looking suddenly at a closed automobile, full of people about to be crushed under a backing box car, cannot be expected to notice people on the outside standing by. Joe Martin had of coarse stepped aside just before the collision to keep from being run over; and if he stepped below or south of the crossing on the west side, the box car was in between him and the witness in question. »

Particularly is such evidence not overcome by the testimony of Messrs. Callahan and Butler. Not a witness called by either plaintiff or defendant claims to have seen the brakeman, Martin, at any place before the collision, except at the crossing; consequently we cannot hold that Brakeman Martin had absented himself from the crossing at the time of the collision.

Plaintiff claims that Mr. Callahan, the Standard Oil watchman, might have stopped him at the gate. Mr. Callahan was not in defendant’s employ; therefore defendant cannot .be blamed for his negligence in that respect, if any there was on his part. Mr. Callahan testifies that he was standing near the gate and that when plaintiff drove in and young Heath got out, he expected plaintiff to stop and speak to him; but plaintiff, instead of doing so, turned around and drove back toward the crossing. That he hollered at him, but that plaintiff kept on until he was struck. The plaintiff admits that he heard somebody holler, and says that as soon as he did he looked up and the backing train was right on him and struck him before he could get out of the way.

The evidence shows that his automobile was in the middle of the track at the time it was struck. As for not being stopped by Joe Martin, plaintiff crossed the track without stopping on his way to the gate. He says he did not see the brakeman, but the evidence shows that the brakeman was there with a lighted lantern in his hand at the time; and that he was also there as plaintiff approached it on his return, as he was not seen by anybody anywhere else. But as plaintiff approached on his return the train was also approaching* him on the crossing; if the brakeman had not stepped aside he would have been run over. The brakeman standing on or near the lighted crossing with a lighted lantern in his hand, holding it out against traffic, was a sufficient warning.

A “Stop Sign” was also posted at the crossing in plain view.

Plaintiff says he was driving not faster than eight or ten miles an hour; had his automobile under such control that he could have stopped at once if he had seen danger. That as he came out of the gate and started back toward the crossing, he glanced to the right and left up and, down the track, and listened, but did not see nor hear the train. His view in front was unobstructed. It was unobstructed north of the crossing for nearly 30 feet, at which distance the other end of the train, part of which had been stopped on the main line above the crossing, while the other half, with the engine having gone south of it, was being backed over the crossing on the switch track. Plaintiff’s view south was unobstructed for several hundred feet in the direction from which the train was being backed. The headlights on plaintiff’s automobile were burning as he drove toward the crossing and these lights further illuminated it as he came near, shedding considerable light, not only before him but on each side of him. He should have seen and could not help seeing and hearing the train, if he had looked south, and was also bound to hear it, because it was not over 50 or 60 feet away as he started back from the gate. And it was coming closer and closer to the crossing, and when he came to within ten or fifteen feet of the crossing the train was also only ten or fifteen feet distant from the same place. With the crossing lit up in the way stated, the railroad must have been visible for about 100 feet south of the crossing and nobody could have failed to see the backing train with a box car leading as it came north toward the crossing -and under the glare qf the reflecting lights, if he had looked to see if anything was approaching from that direction.

We conclude that plaintiff must be charged with seeing an object that he could not help but see, unless he had his eyes closed, and also with hearing that which he could not help hearing, if giving the slightest heed, and that he went on the crossing in the face of an apparent and obvious danger, taking the risk. Lincks vs. R. R., 143 La. 445, 78 South. 730, is similar in some respects, yet not controlling, because in that case a timely warning was not given; the warning came too late; therefore, the reason given for that decision does not apply. In Kraemer vs. R. R., 144 La. 57, 80 South. 198, the facts appear to be similar in some respects, yet the important facts aré very different and the reasons for the decision are not adapted to the facts and circumstances of the present case. Draiss vs. Payne, 158 La. 652 and 653, 104 South. 487, is also based on different facts and circumstances and is therefore not controlling. In that case a train was being backed in the night time over a frequently used crossing without any precaution or care taken to give notice qf the train’s approach. Here there was a brakeman on the crossing with a lighted lantern in his hand and the crossing was lit up in such a way that plaintiff could not help seeing the slow ' backing train in ample time to stop. The reasons which governed in the following cases are applicable:

Horlsch vs. R. R., 44 La. Ann. 280, pp. 285, 10 South. 628, et seq.

Tatum vs. R. R., 124 La. 922, 50 South. 796.

Cook vs. R. R., 130 La. 917, p. 918, 58 South. 767.

Perrin vs. R. R., 140 La. 818, p. 819, 74 South. 160.

Perrin vs. N. O. Terminal Co., 140 La. 818, p. 819, 74 South. 160.

Tucker vs. R. R., 141 La. 1096, 76 South. 212.

Nolan vs. R. R., 145 La. 483 and 484, 82 South. 590.

Young vs R. R., 153 La. 129 and 130, 95 South. 511.

Consolidated Co. vs. R. R., 155 La. 233 and 234, 99 South. 203.

Gibbins vs. N. O. Terminal Co., 159 La. 347 and 348, 105 South. 367.

The preponderance of the evidence shows that defendant was negligent, and that his negligence directly contributed to the collision and was the principal cause of the occurrence. He cannot recover on account of his own negligence.

The judgment appealed from is therefore erroneous and must be set aside.

The judgment appealed from herein is therefore annulled, avoided and set aside, and the demand of the plaintiff is rejected at his cost in both courts.


text:
    No. 6694
    First Circuit
    SHIELDS v. TOWN OF LEESVILLE
    (June 28, 1927. Opinion and Decree.)

      (Syllabus by the Editor.)

    1. Louisiana Digest — Office and Officer— —Par. 60; Parties — Par. 24.
    The right to office cannot be called in question in a suit in which the party-returned as elected to the office and who is in possession and exercising the duties of the office is not a party to the suit.
    Appeal from the District Court, Parish of Vernon. Hon. Hal A. Burgess, Judge.
    Action by Belmont L. Shields against the Town of Leesville.
    There was ’ judgment for respondent, Town of Leesville, and relator appealed.
    Judgment affirmed.
    Ferguson & Newman, of Leesville, attorneys for relator, appellant.
    A. B. Cavanaugh, of Leesville, attorney for respondent, Town of Leesville, appellee.
   ELLIOTT, J.

This case was argued and submitted together with a motion to dismiss, on the ground that appellee had not been cited. As citation was prayed for, the case was remanded in order that it might be served, if it had not been done. The record has been returned and shows service and as' no further objection appears we proceed to consider the appeal.

Belmont L. Shields brought a mandamus suit against the town of Leesville, the object of which was to compel the town to recognize him as its official printer with the Leesville Leader as its official journal. He alleges that he was selected as town printer in 1921 and continued in office from year to year until December, 1926, when the town council accepted a bid from the Star Press. That since then the town has been having its official business published in that paper. That the law provides that town councils must elect a printer at their first meeting in July. That the town council did not elect a printer at their first meeting in July; that therefore it cannot be regarded as having been done in December. That the bid of the Star Press received in December was therefore illegal, null and void and of no effect. That he therefore remained in office as town printer with the Leesville Leader • as its official journal; that the town having recognized him as its official printer in the past with the Leesville Leader as its official journal, that it was thereby estopped from denying his capacity and that of the Leesville Leader as official journal; that he is also a tax payer in the town and that the town has no _ right to expend money as it was» attempting to do for the purpose of paying another paper to do the town printing, such payment being contrary to the law and to its contract with the relator. He prays that the town be enjoined from paying the other paper for doing the town printing; that he be recognized as the town’s official printer and the town compelled to do so, with the Leesville Leader as official journal.

The town of Leesville appeared in response to the rule to show cause and for answer alleged the election of J. A. Laurant as the town’s official printer on December 15, 1926, and that he had designated the Star Press as the town’s official journal; that said election was valid; that Laurant not having been made a party to the suit, that the injunction prayed for could not issue. It denied that relator had ever been elected the town’s official printer. There was judgment in the lower court rejecting relator’s demand and he appealed. The trial judge assigned written reasons for his judgment, one of them being that the printer shown to have been elected as alleged by respondent had not been made a party to the suit. Relator’s averment that he was selected as the town’s official printer in 1921 is not sustained by the evidence. The evidence shows that he had been acting as the town’s official printer with the Leesville Leader as its official journal for five or six years, previous to the time mentioned and' was recognized by the town council as the town’s official printer with the Leesville Leader as its official journal and was paid as such; but the evidence does not show tha,t he was ever elected such. The law, Act 141 of 1912, Section 22, (Amd. Act 134 of 1920) provide: “That towns, annually at their first meeting in July, shall select a municipal printer,” etc. The record shows that at a meeting of the town council on December 15, 1926, they elected J. A. Laurant as the town’s official printer and that he designated the Star Press as the town’s official journal. Relator contends that as the town council did not elect a printer at their first meeting in July, that none can be regarded as having been elected in December. That the election in December at which Laurant was elected was illegal, null and void and of no effect. That relator having been theretofore the recognized official printer of the. town, as no election was held at the first meeting of the council in July, that he is entitled to continueed recognition as such, with the Leesville Leader as official journal. Relator”s suit is an attack on the validity of the election of a town printer under the law cited. The eligibility of Laurant and of the Star Press is not questioned. The law requires that the proceedings of the town councils must be published in a paper in the parish, if there be one. The effect of the election and the action of the town council in recognizing Laurant as the town’s official printer and the Star Press as the town’s official journal confers on him the color of right and title to the office in question and the status of de facto official town printer and the Star Press as de facto, official town journal until otherwise decreed. We can not pass on the validity of the council’s action on December 15, 1926, in this proceeding for the reason that J. A. Laurant, the party returned as having been elected the town’s official printer at that time is not a party to the suit. The right tq office cannot be called in question in a suit in which the party returned as elected to the office and who is in possession and exercising the duties of the office is not a party to the suit.

State vs. Gilbert, 10 La. Ann. 524.

Maihle vs. Fournet, 13 La. Ann. 607.

State vs. Lewis, 22 La. Ann. 33.

State vs. McFarland, 25 La. Ann. 547.

New Orleans Canal & Banking Co. vs. Tanner, 26 La. Ann. 524.

Guilbeau vs. Cormier, 32 La. Ann. 930,

State vs. Sadler, 51 La. Ann. 1397, 26 South. 390.

The judgment refusing the mandamus prayed for in this proceeding was correct.

Judgment affirmed. The appellant to pay the cost in both courts.


author: WEBB, J.

text:
    No. 2922
    Second Circuit
    DAVIS v. BLAUSCHILD
    (May 13, 1927. Opinion and Decree.)
    (June 28, 1927. Rehearing Refused.)

      (Syllabus by the Editor)
    1. Louisiana Digest — Builders and Buildings — Par. 14, 15. Obligations — Par. 164.
    Where the subcontractor’s work in installing a boiler is defective and he consents to work being done by another person called in by the architect, the subcontractor, through the servants, assisting in the work, his objections to deducting the amount paid the party called in to complete the job from the contract price of his bill comes too late after the completion of the work.
    2. Louisiana Digest — Builders and Buildings — Par. 18.
    The subcontractor is entitled to the value of extra work for which he was employed, but was not included in 'the contract price.
    Appeal from the Third Judicial District Court of Louisiana, Parish of Lincoln. Hon. C. B. Roberts, Special Judge.
    Action by C. C. Davis, et al, against Sam Blauschild, et al.
    There was judgment for plaintiffs and defendant appealed.
    .Judgment affirmed.
    Elder, Thompson & Digby, of Farmers-ville, attorneys for plaintiffs, appellees.
    E. L. Walker, Farmerville, attorney for defendant, appellant.
   WEBB, J.

Davis & Jimmerson, a partnership, entered in to a contract with the Ruston State Bank to construct a building for the latter, in accordance with plans and specifications prepared by Drago & King, architects. The contractors, Davis & Jimmerson, contracted with Sam Blauschild to .furnish material and do a part of the work called for by the specifications, for the sum of twenty-eight hundred dollars.

The subcontractor, Blauschild, had done some of the work for Which he had received the sum of twenty-two hundred dollars, when there was some complaint made by the architects, who were superintending the construction of the building, of the work of Blauschild, which resulted! in other persons being called in to take over some part of the work contracted to be done by Blauschild.

The work done by the persons who were called in by the architects consisted-of going over work on the heating plant, which had been done by Blauschild, and of doing other work in connection with the installation of the plant, for which a charge of eight hundred nineteen and 57-00 dollars was made, and the installation gutters and work on skylights at a cost of one hundred twenty-eight and 20-100 dollars, and purchase of materials-by the contractors for such work amounting to twenty and 53-100 dollars.

On completion of the building Blauschild, claiming that the contractors, Davis & Jimmerson were indebted to him for a balance of three hundred fifty dollars on the contract price, and of eighty-five and 60-100 dollars for- extras, filed a lien against the building, and the bank, owner of the building, retained the amount for which the lien was filed, or four hundred thirty-five and 50-100 dollars, out of the contract price.

And the contractors, Davis & Jimmerson, brought this suit against Blauschild and the Ruston State Bank to have the lien cancelled and for judgment ordering the bank to pay them the amount retained by it, and for judgment against Blauschild in the sum of three hundred sixty-eight and 30-100 dollars, with interest.

On trial judgment was rendered in favor of plaintiff, ordering the lien can-celled, and ordering the bank to pay plaintiff the amount retained by it, and against Blauschild, in the sum of one hundred fifty-three dollars, with interest, from which judgment Blauschild appeals.

The plaintiff contends that the payments made by it for the work done by persons employed by the architects in execution of work undertaken by Blauschild, amounting to nine hundred sixty-eight and 30-100 dollars, were properly charged to Blauschild, and that such amounts together with twenty-two hundred dollars paid Blauschild on the contract, being in excess of the contract price of twenty-eight hundred dollars, that Blauschild was overpaid and did not have any claim against the building and that the lien filed' should be cancelled, and that plaintiff should have judgment against Blauschild for the difference between the contract price and the amount paid, while Blauschild contends that the architect did not have the right to employ any one to do the work undertaken by him, and that he had, as a’ matter of compromise, agree with the contractor that he would allow two hundred fifty dollars for the work which had been done by persons employed by the architect, leaving a balance due on the contract price of three hundred fifty dollars, and that at the instance of the contractor, and by agreement with him, he had done extra work amounting to eighty-five and 50-100 dollars, making a total due of four hundred thirty-five and 50-100 dollars, for which amount he had filed the lien.

The contract between the owner and the contractor provided that the architect should be the judge of the manner in which the work was done, and that when the work had been improperly executed or when the contractor failed or refused to do the work undertaken, the work could be corrected or done at the expense of the contractor, and the contract provided and it is admitted that the stipulations of the contract between the owner and the contractor were applicable as between the contractor and subcontractor, and the contractor contends that Blauschild having done some of his work improperly and failed and refused to execute other work undertaken by him, the architect properly employed other persons to correct the work which had been improperly executed, and to do other work which Blauschild refused to do, and that the cost of same should be charged Blauschild.

Blauschild does not contend that such would not have been the case under the contract had the he improperly executed or failed to do work undertaken by him, but he contends that it was impossible for him to have properly installed the heating plant, in that the building had been constructed in such manner that the heating apparatus could not be installed without making changes in the building to provide for the boiler of the heating apparatus to be placed at a lower elevation, and that when the architect complained of his work, that he notified the architect of such condition, and that the architect refused to have the changes made, and that he consented to the architect employing someone else to do the work only on the condition that it could be done without providing for the boiler to be placed at a lower elevation, and that the work having been done by lowering the boiler that he was not responsible for the cost of the work, and Blauschild also contends the other work, the /cost of which the contractor had charged to him, amounting to one hundred twenty and 20-100 dollars, was for work which was not comprehended in his contract, and the charge of twenty and 53-100 dollars for materials is not shown to have been for materials used in the construction of work undertaken by him.

The judgment did not allow plaintiff to charge defendant with the full amounts claimed, and we are not informed as to which of the charges made against defendant were rejected, but we find that the charge of twenty and 53-100 dollars was not established, in that the evidence does not show what material was purchased, and whether or not it was used in the work undertaken by Blauschild, and we are also of the opinion that the charge of one hundred twenty and 53-100 dollars, with 'the exception of one item for twenty-five and 50-100 dollars, is not {proven to have been for work undertaken by defendant, which will be further considered hereafter.

The main contention of the parties relates to the charge for work on the heating plant, and we find that the work which , defendant had done on the plant is shown by the evidence to have been defective, and. the evidence does not show that when complaint was made by the architect there was any suggestion by defendant for changes in the building, and that the work could not be done without such changes being made.

The contract provides that the contractor shall check all measurements, etc., before commencing work, and in event of his failure to do so and notify the architect, he shall be responsible for the correctness of same thereafter, and the evidence showing that defendant had read the contract, before undertaking to install "the heating plant, it is contended it was his duty to have detected any error in the plans and having failed to do so, he could not complain. However, be that as it may, the evidence shows as stated that the work which defend- and had executed was defective without regard to any changes which were made as to the elevation of the boiler, and that defendant consented to the work being done by the person called in by the architect, defendant, through his servants, assisting in the work, and we are of the opinion that his objections coming after the completion of the work, were too late. (Garson Bros. vs. Wilson, 152 La. 536, 93 So. 783.) And we are of the opinion that the cost of the work, amounting to eight hundred nineteen and 57-100 dollars, being shown to have been a reasonable charge, was properly charged to defendant.

The evidence also shows that defendant knew that the item of twenty-five and 50-100 dollars on the bill of one hundred twenty-eight and 20-100 dollars, was being furnished by another, and we are of the opinion that item should be charged against defendant, making the total charge against defendant for work and materials, eight hundred forty-five and 57-100 dollars.

While defendant contends that there had been a compromise settlement of the claims made against him for two hundred fifty dollars, the evidence fails to show such settlement, however, we think that the evidence shows that he was employed to do some extra work, and that the bill of eighty-five and 50-100 dollars for that work is established, and defendant being also entitled to a credit of six hundred dollars on the contract price, or a total credit of six hundred eighty-five and 50-100 dollars, that the balance due plaintiff was one hundred fifty-nine and 57-100 dollars.

The judgment appealed from allowed only one hundred fifty-three dollars, and as there was not any answer to the appeal by plaintiff, the judgment cannot be reversed in favor of the plaintiff.

The judgment appealed from is affirmed.