text:
    No. 2743
    Second Circuit
    WEISMAN INSURANCE AGENCY v. BASS
    (April 10, 1930. Opinion and Decree.)

      C. B. Prothro, of Shreveport, attorney for plaintiff, appellee.
    Cook & Cook and C. D. Egan, of Shreveport, attorneys for defendant, appellant.
   DREW, J.

Plaintiff alleges that it is the agent for a number of insurance companies, and that during the years 1920, 1921, and 1922 it wrote and issued to O. J. Bass a number of insurance policies covering loss or damage by fire and tornado, automobile liability, fire and theft, and workmen’s compensation insurance. That the said defendant owes a balance of $267.78 on premiums due on said policies, attaching an itemized statement to the petition. It also claims $25 premium due for contractor’s bond furnished by plaintiff in the erection of a building for A. F. Yickey. It' further alleges that the amount of said premiums was charged to plaintiff by the insurance companies, and that it has paid same. |

Defendant filed a prayer for oyer of the policies issued or certified copies of same. Answer to said prayer was as follows:

“Now into court comes the plaintiff in the above numbered and entitled cause and for answer to the defendant’s prayer for oyer files herewith the insurance policies sued on herein bearing numbers 2525084, and 2525088, New Brunswick Fire Insurance Company, and number 5818 Sterling Fire Insurance Company. Wherefore plaintiff prays that the prayer be discharged and defendant ordered to answer the petition within ten days from the date. For general relief.”

On the bottom of the answer is an unsigned order discharging the defendant from rule, and ordering defendant to answer. A copy of the minutes is not in the record, and we have no way of knowing whether the prayer for oyer was held satisfied or not. Defendant did answer, and we presume he did so under order of court holding the plaintiff discharged under the prayer for oyer.

Defendant then filed an exception of vagueness, and there is nothing in the record to indicate that it was ever passed on by the lower court.

Defendant answered, pleading a general denial to most of the petition, admitting, however, that he carried workmen’s compensation insurance, but avers that his payments to plaintiff, proper credits being allowed and proper adjustments had, are more than sufficient to pay the premiums on such policies.

He admits having carried an automobile fire policy in the amount of $2,000 on one automobile and an automobile liability policy No. 157920 Georgia Casualty, on his own automobile. All other allegations are denied.

. The case went to trial on these issues, and at the beginning of the trial defendant objected to the testimony of the account for the reason that plaintiff did not allege that it. was subrogated to'the rights of the insurance companies who issued the policies; and further objected to parole proof of the insurance policies for the reason that the policies were the best evidence.

This objection was overruled and the evidence admitted, and the objection and ruling was made general to all testimony.

Later in the trial of the case the .trial judge ruled that the insurance policies were the best evidence, and allowed the plaintiff to. introduce in evidence what it called office copies of the policies, and, on this evidence, rendered judgment in favor of plaintiff.

Defendant appealed from the judgment, and strenuously urges in this court the objections that were overruled in the court below.

The ruling of the court on the first objection, for the reason plaintiff had not alleged itself subrogated to' the rights of the insurance companies, was correct. Plaintiff alleged that the amount of said premiums was charged against it by the insurance companies, and that it had paid said amount to the insurance companies.

“A broker who has become liable for the premium on a policy may recover the amount thereof from the insured though he has not (paid the insurer.” And he may sue in his own name. 14 R. C. L. '878; 33 Corpus Juris 67. Waters v. Wandless (Tex. Civ. App.). 35 S. W. 184; Cobb., v. .Keith, 110 Ala: 614, ‘18 So. 325; Lamb 'v. Connor, 84 Wash. 121, 146 P. 174; Harrison v. Birrell, 58- Or. 410, ■ 115 P. 141, 144.

The second objection, which was made to the introduction of secondary evidence, for the reason that the policies of insurance'were the best evidence, wé think was well taken, and should...imve been sustained.

The plaintiff • did not serve notice on the defendant, by rule or -otherwise, to produce the original insurance policies, nor did it attempt to account for said policies. It contented itself with offering what it called office copies of the policies which, in fact, were not copies of the policies, being copies only in part. However, such copies as they were might have been admissible had it been shown that they were the only evidence possible to produce to show that the policies were issued and to whom. This was not done, and the evidence thereunder was inadmissible. Payne v. Crawford, 102 Ala. 387, 14 So. 854; Hanover Fire Ins. Go. v. Lewis, 23 Fla. 193, 1 So. 863; Mrs. Betty Franklin v. First Baptist Church, 2 La. App. 698.

/‘Secondary evidence of the contents of written papers is admissible where the originals themselves cannot be produced, after an effort made to do so.” 10 R. C. L. 911; Coons v. Reniek, 11 Tex. 134, 60 Am. Dec. 230.
“If a document is in possession of the' adverse party, he must be notified, as a rule, to produce it before secondary evidence of its contents may be resorted to. So if a (party assert for the first time at the trial that a certain written instrument exists and is in possession of the opposite party, the former is not allowed to prove its contents by secondary evidence, with- : out having given notice to produce it.” 10 R. C. L. 920.
“Where a party desires to "introduce ' proof of tbe contents of a letter in the possession of the adverse party, the proper practice is to serve notice on the adverse party to produce the letter;, in the. Qvent - of his failure to do so, other evidence '■ of the contents of the letter is' not ad- , missible.” 10 R. C. L. 906.
“Naturally the hest evidence of the conditions of a written instrument consists in the actual production of the instrument itself, and the general rule is that secondary evidence of its contents cannot be admitted until the non-production of the original has been satisfactorily accounted for.” 10 R. C. L. 903; 17 Cyc. 556; Home Ins. Co. v. North Little Rock Ice Co., 86 Ark. 538, 111 S. W. 994, 23 L. R. A. (N. S.) 1201.
“Oral evidence cannot be giyen of the contents of a paper in the hands of an adversary, without notice to him to produce it on the trial.” Erwin v. Porter, 6 Mart. (N. S.) 16; Gardere v. Fisk, 6 Mart. (N. S.) 388.

Plaintiff relies on the fact that defendant filed a prayer for oyer of the insurance policies or copies thereof, and he was furnished copies, that he received what he asked for and should be. satisfied.

Defendant in his prayer for oyer sets out that he is unable to answer the petition until his prayer is answered. The ¡prayer for oyer was to secure information on which to predicate an answer, and in no way deprived him of his right to object to inadmissible evidence on the trial of the case.

Plaintiff was bound to have used the proper means to secure the insurance policies, whether in the hands of defendant or some third person, before secondary evidence would be admissible. He failed to use the means provided by law.

Plaintiff made out his case in the lower court by this evidence which was inadmissible, and the judgment of the lower court will have to be reversed and the demands of the plaintiff rejected as of non-suit.

It is therefore ordered, adjudged, and decreed that the judgment of the lower court be reversed, and the demands of the plaintiff are hereby rejected as of non-suit.

Costs to be paid by plaintiff and appellee.


source: Caselaw Access Project

author: ODOM, J.

license: Public Domain

text:
    No. 3829
    Second Circuit
    W. F. TAYLOR CO., INC., v. CAMPISI ET AL.
    (June 2, 1930. Opinion and Decree.)
    (July 5, 1930. Rehearing Refused.)

      Chandler & Chandler, Wise, Randolph, Rendall & Freyer, of Shreveport, attorneys for plaintiff, appellant.
    Thos. W. Robertson, of Shreveport, attorney for defendants, appellees.
   ODOM, J.

On March 20, 1929, Y. L. Campisi executed a promissory note payable to himself for $1,500, due six months after date, and secured by mortgage on real property. This note fell into the hands of the plaintiff, W. F. Taylor Company, Inc. It was not paid when due and on December 6, 1929, Taylor Company filed suit to collect it.

W. F. Taylor Company alleged that Campisi, the maker of the note, had mortgaged, assigned, or disposed of, or was about to dispose of, his property, rights, ■ and credits, or some part thereof, with the intent to defraud his creditors, or give an unfair preference to some of them, and prayed that the debtor’s property be attached. A writ of attachment was issued by virtue of which the sheriff seized a certain money judgment rendered by the dis-. trict court of Bossier parish in favor of one Sam Pedro for approximately $12,000, it being contended by plaintiff that said judgment was the property of its debtor, Campisi, ana not the property of Pedro. The defendant, Campisi, admits that he owes plaintiff the amount represented by the note, but moved to dissolve the attachment on the ground that the allegations of plaintiff’s petition to the effect that he had mortgaged or disposed of his property with fraudulent intent were untrue and without foundation, and that he was not in fact the owner of the judgment attached and had no interest therein. The lower court rendered judgment for plaintiff for the amount claimed, but dissolved the attachment with damages. Plaintiff appealed from that portion of the judgment dissolving the attachment.

Plaintiff alleged, and tried to prove, that its debtor, Campisi, in collusion with two of his Italian friends, Angelo Ladato and Sam Pedro, had, while “in failing circumstances,” disposed of certain property with intent to defraud his creditors. The transactions between Campisi, Ladato, and Pedro, which are relied upon to show that Campisi, plaintiff’s debtor, was guilty of making the disposition of his property to defraud his creditors are somewhat involved and are, in sum and substance, as follows:

Campisi owned certain property in Shreveport known as the “Hotchkiss property” and Angelo Ladato owned about nineteen acres of land in Bossier parish. On December 3, 1928, the two entered into ■a contract by which Campisi agreed to sell the Hotchkiss property to Ladato for $8,-000,,;and Ladato agreed to sell his Bossier parish property to Campisi for $10,700. This contract was reduced to writing and recorded. It is conceded by all parties that this was an agreement to exchange properties. It is also agreed that it was understood that when the exchange was made, Campisi would owe Ladato the difference between $8,000 and $10,700. Sam Pedro, the third man, had nothing to do with the transaction between Campisi and Ladato. But Campisi owed Sam Pedro approximately $3,000 which Campisi wanted to pay, but could not because he had no money. As between Campisi and Pedro, it was agreed that instead of Ladato transferring the Bossier parish property to Campisi, it should be transferred to Pedro instead in order that Campisi might liquidate his indebtedness to Pedro. Accordingly, on January 26, 1929, Ladato, at the request of Campisi, sold his Bossier parish property to Pedro, the notarial act of transfer-- reciting ■ a. consideration of $10,700; paid as follows: $2,935.21, paid in cash, the assumption of vendor’s lien notes against the property amounting to $4,285, and Pedro gave his note for the balance, amounting to something over $3,000.

On the same day, Campisi sold to Ladato by notarial act the Hotchkiss property mentioned in the contract for $8,000, paid as follows: $3,000 cash, and the assumption of certain mortgage notes for $5,000. So that the - contract to . sell or ■ exchange between Campisi and Ladato was carried out; as contemplated, except that Ladato sold to Pedro instead of to Campisi.’ As already stated, there was a difference of approximately - $3,000 in the value- of-the Hotchkiss property and the Bossier parish property, so that when the contract was carried out, Campisi owed Ladato approximately $3,000, representing this difference. This amount was not paid by- Campisi per: sonally but was paid to Ladato by Sam Pedro, the amount paid Ladato being a part of the purchase price of the Bossier parish property. The testimony clearly shows that Pedro paid Ladato this amount. There is no question but that Ladato received for his Bossier parish property the consideration which he asked, which was made up by the transfer to him by Campisi of the Hotchkiss property, valued at $8,000, and the balance paid by Pedro. It made no difference with Ladato whether he sold direct to Campisi or to another. All he wanted was the value of his Bossier parish property, which he obtained.' If. Ladato had sold his Bossier parish .property direct to Campisi, as he originally ■ agreed to do, Campisi would have owed him approximately $3,000 as the difference in values, but Campisi substituted Pedro for 'himself, and Pedro paid the difference.

As already stated, the deed from Ladato to Pedro conveying the Bossier parish property recited that ‘ the total consideration of $10,700 was paid by the assumption of certain mortgage notes against it, the payment of $3,000 in cash and a note of Pedro’s for something over $3,000. But it is conceded that the cash mentioned as having been paid was not in fací' paid, but instead, Pedro canceled the debt which Campisi admittedly owed him of that amount. Pedro, therefore, paid every dollar of the consideration recited in the deed to him.

Referring now to plaintiff’s petition, it is alleged, as a basis and ground for judgment, that the “instrument above referred to, executed by Angelo Ladato (Lodotto) to Sam Pedro, was so executed by Ladato (Lodotto) at the 'request of V. L. Campisi and for the use and benefit of said Campisi; that the instrument was executed by Ladato (Lodotto) in fulfillment of his obligations under the agreement described in Article 4 of this petition; that Sam Pedro was not the real purchaser of said property but acquired it for the account of Y. L. Campisi and took title in his (Pedro’s) name for the purpose of shielding said property from seizure by creditors of Y. L. Campisi; that at the time said transaction occurred V. L. Campisi was in failing circumstances and said property was taken in the name of Sam Pedro as a result of a conspiracy between Sam Pedro and V. L. Campisi t and to operate as a mask in order to defeat the claims and in fraud of the rights of said Campisi’s creditors.’’

On the merits, the district judge held and we fully concur in his views, that the testimony adduced fails to support these allegations. It is true that Ladato sold to Pedro at the request of Campisi. But there is nothing to support the contention that it was intended that Pedro should take the property in his name to be held for Campisi, and nothing to show that Campisi by this transaction was attempting to shield his property from the pursuit of his creditors. Under paragraph 4, article 240 of the Code of Practice, a creditor may attach the property of his debtor when he has disposed of it, or is about to do so, with intent to defraud his creditors or give an unfair preference to some of them. An attachment under this paragraph necessarily falls when no bad faith or fraudulent intent exists. The record fails to disclose that Campisi was guilty of any bad faith or frauuulent intent. There are no other transactions proved or referred to indicating such intent. Campisi testified that he used every dollar he could get to pay his creditors and that he had never at any time preferred one to another, and his testimony was unchallenged. Therefore, plaintiff has nothing whatsoever to support its charge of fraudulent intent and bad faith except the transaction above detailed, and that transaction, considered in connection with all the testimony, does not disclose fraudulent intent. It is not shown that Campisi was insolvent in January when this transaction took place. Later in the year, there were four suits filed against him, and he at once paid the debts. Still later, other creditors obtained judgments against him, the amounts of which are not shown. Whether he owned other property at the time is not shown, and no attempt was made to prove that the plaintiff could not have realized the full amount of its note from a sale of the property which was mortgaged to secure it.

Counsel for appellant in their brief (page 17) say:

“Our contention is that this transaction as between these two was a simulation as a sale. In other words, although this transaction appeared to be a sale it was not one in fact.”

There is no merit in this contention. The property was transferred by Ladato to Pedro by notarial act for a consideration of $10,700, all of which was paid by Pedro's assumption of a vendor’s mortgage against the property amounting to $4,285, his paying to Ladato about $3,000 and his canceling a debt against Campisi for the balance. The sale was therefore no sham, no mere fiction, no simulation. It was a real transaction. The suggestion that tne property was put in Pedro’s name to be held for Campisi is supported neither by the facts nor by reason. Just what advantage Campisi could have obtained by having Pedro take the property in his name is not explained. It is not contended that the property was worth more than Pedro paid for it. Assuming that it was intended that Pedro should hold it for Campisi, what could he gain? The mortgages against it had to be paid, Ladato- had to be paid, and Campisi had to pay Pedro what he owed him. The aggregate of these amounts was the full value of the property. If Pedro paid the amount of the mortgage against the property and paid Ladato, certainly Campisi would be indebted to him for these amounts- and still be indebted to Pedro for the personal debt which Campisi owed him.

Counsel further say in brief that in any event it must be held that this was a giving in payment. We think it may be so considered, at least to the extent of the amount that Campisi owed Pedro. But that does not help plaintiff’s cause. A giving in payment is a real contract and vests title in the creditor who takes possession. It cannot be disregarded by other creditors. Contracts which are real may be avoided by revocatory action, but not otherwise. Johnson v. Kingsland & Ferguson Mfg. Co., 38 La. Ann. 248; Succession of Anger, 38 La. Ann. 492; Majors v. Dennis, 35 La. Ann. 336; Redwitz v. Waggaman, 33 La. Ann. 26; Bevens v. Weill, 30 La. Ann. 185; Theurer v. McG-ibbon, 28 La. Ann. 29. Plaintiff has not sought to set aside the transaction by revocatory action.

Counsel complain that the fee allowed the attorney for the attached debtor is excessive. All of the services rendered by the attorney were under the eye of the court and the witnesses called testified that his services were worth approximately $500. The court allowed him $400. As the fee allowed does not seem to us excessive, we shall not disturb the judgment of the district court in that respect.

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


author:
ELLIOTT, J. ELLIOTT, J.
      LeBLANC, J.

text:
    Nos. 583-660
    First Circuit
    DAVIS ET AL. v. LINDSAY FURNITURE CO. ET AL.
    (March 5, 1930. Opinion and Decree.)
    (April 14, 1930. Rehearing Granted.)
    (June 30, 1930. Opinion and Decree on Rehearing.)
    (October 7, 1930. Writ of Certiorari and Review Refused by Supreme Court.)

      C. A. Battle, of Baton Rouge, attorney for plaintiffs, appellants.
    Breazeale & Sachse, of Baton Rouge, and R. F. Walker, of Baton Rouge, attorneys for defendants, appellees.
   ELLIOTT, J.

John F. Davis and Mae-dell Davis, his wife, claim of Lindsay Furniture Company, a commercial partnership and firm, and J. B. Lindsay and J. K. Lindsay in solido, alleged by plaintiff to be members composing said firm, $1,057.25 in damages. Their petition alleges that on Tuesday evening, June 11, 1929, one N. B. Lindsay, agent and representative of defendants, acting within the scope of his employment, came to their house for the purpose of collecting a bill due Lindsay Furniture Company, on account of some window shades; that plaintiffs were both absent at the time he entered, but plaintiff Maedell Davis arrived while he was in the house and found him in the act of jerking the shades down from the windows,, injuring some of them beyond repair; that she protested against his actions, upon which he assaulted her with a stick which broke while he was striking at her; that, after violently striking her over the head with the remaining portion held in his hand, he finally struck her in the face with his fist, knocking her across the bed, where he beat her in the face and on the neck until she was bruised and bleeding, using at the same time the vilest sort of language, etc.

The petition further alleges that Maedell Davis did not commit any offense against defendant nor their agent,, and that the assault which he committed on her was in no manner provoked; that the occurrence was due entirely to the fault of the said N. B. Lindsay, defendant’s agent, while acting within the scope of his employment. The petitioners allege other acts of violence and wrong conduct on the part of defendant’s agent, but further recapitulation of such matters is not necessary for the purposes of the present appeal.

Lindsay Furniture Company and J. B. and J. K. Lindsay, 'appeared by answer filed July 2, 1929, and put at issue every important fact alleged by plaintiffs. They admit that their agent, N. B. Lindsay, went to the house of the petitioners at the time stated for the purpose of collecting a balance due them by the plaintiffs for window shades, but aver on their part that it was under a promise on part of • the plaintiffs that they would be at home at the time, and either pay him the balance due on the shades, or surrender them back to the defendant; that petitioner Maedell Davis had concealed herself in the house in order to avoid meeting their agent on his 'arrival, pursuant to said agreement; that their agent, not finding either of the petitioners ready to pay the balance due on said account, as promised, commenced to carry out the other part of the agreement (that is, to take possession of the window shades), when the said Maedell Davis rushed into the room with a broom or mop and assaulted him therewith; that their agent did nothing more than defend himself from her assault. ■

Defendants, further answering, adopt and justify the act of their agent in taking-down the shades and in defending himself from plaintiff’s assault. They pray that the demand of the plaintiffs be rejected and that their suit be dismissed, because of the facts alleged in their answer.

On July 29, 1929, defendant filed an exception of no right or cause of action, which was sustained by the court and the suit dismissed. It is from this judgment that the plaintiffs have appealed. The ruling sustaining the exception and dismissing the suit was erroneous.

The petition of the plaintiffs, and the answering averments, adoption and justification by defendants of the acts of their agent, of which plaintiffs had complained, are equivalent to saying that he was acting within the course of his authority and employment by defendants.

The facts alleged by defendant are considered as denied by the plaintiff. Code Prae. art. 329.

. The petition and answer states a cause of action.

The exception should have been overruled and the case set down for trial on the merits.

Defendants, arguing in their brief, cite authorities and contend that the exception was properly sustained. They overlook the situation created by the answer, and do not take it into account.

For these reasons the judgment appealed from is annulled, avoided, and set aside. The exception of no cause or right of action is overruled, and the case remanded to the lower court to be proceeded with on the answer filed, as the law directs.

LECHE, J., not participating.

ON REHEARING

ELLIOTT, J.

A rehearing was granted upon the petition of the defendants in order that we might re-examine their contention, that their answer, which had been filed in this case and had supplied the deficiencies of the petition, was' not to be considered in ruling on their exception of no cause of action filed nearly a month after-wards.

The exceptions in question allege that the petition sets forth no cause or right of action against defendants. We assume that the exception, to the extent that it is contended that the petition sets forth' no right of action, is not to be taken, seriously, that the real exception is that the petition sets forth no cause of action. There is no ground for urging that the petition sets forth no right of action.

Defendants also claim in their petition for rehearing that their answer of July 2, 1929, is that of J. B. Lindsay and J. K. Lindsay and not that of Lindsay Furniture Company.

The petition and the answer show that Lindsay Furniture Company is a commercial partnership composed of J. B. Lindsay and J. K. Lindsay, and that J. B. Lindsay and J. K. Lindsay constitute the firm.

The answer says:

“In the above numbered and entitled suit, through their undersigned counsel, now comes into court J. B. Lindsay and J. K. Lindsay, composing the Lindsay Furniture Co., made defendants in the above suit and answer plaintiff’s petition as follows.”

We will' not undertake to quote the answer but it appears to us from the terms used that the answer was intended to be that of Lindsay Furniture Company as well as that of J. B. Lindsay and J. K. Lindsay. In acting on the appeal, we took the answer to be that of all the defendants, and we consider that wc made no mistake in doing so. Considering the answer again we take it to be the answer of all the defendants and proceed to consider its effect as such in the case.

Plaintiff’s averment that “one M. B. Lindsay, agent and representative of defendants herein and acting within the scope of his employment,” is but the conclusion of the pleader, and it does not sufficiently appear from the petition, taken as a whole, that M. B. Lindsay, in doing what he is alleged to have done, was acting for the defendants, in the exercise of the functions in which he was employed. If defendants’ answer be left out of view, then their exceptions would be well pleaded.

But defendants’ answer filed July 2, 1929, having supplied the deficiencies of the petition, taken in connection with the petition, a cause of action is stated based on the actions of defendants’ agent, and issue joined as to plaintiff’s right to recover damages on account of same, there remained no ground for their exception of no cause pf action filed July 29, 1929, nearly a month later. An answer, when filed, becomes part of the pleadings. It stands under the Code of Practice and Act No. 27 of 1926 (The Pleading Act) on a footing of equal solemnity with the petition. It is seemingly incongruous to hold that although the petition failed to set forth a cause of action against the defendants, the defendants, having appeared and answering the petition, supplied the cause of action and joined issue with the plaintiffs as to their right to recover damages of them on account of same, that the cause of action thus appearing is not to be regarded in acting on an exception of no cause of action filed by defendants nearly a month afterwards. For us to look away from the petition and the answer and the issue thus formed, for the purpose of ruling on an exception subsequently filed, would be to permit defendants to undo what they have previously done, take back what they have previously solemnly admitted, and contravene the law which provides:

“The Judicial Confession is the declara tion which the party, or his special attorney in fact, makes in a judicial proceeding.
“It amounts to full proof against him who has made it.
“It can not be divided against him.
“It can not be revoked, unless it be proved to have been made' through an error in fact.
“It can not be revoked on a pretense of an error in law.” (Civ. Code, art. 2291).

It has been long established that a party will not be permitted to deny what he has solemnly acknowledged in a judicial proceeding, nor to shift his position at will, to a contradictory one, in relation to the subject-matter of the litigation, in order to frustrate and defeat the action of the law upon it. Denton v. Erwin (Johnson, Intervener), 5 La. Ann. 18; Devall v. Succession of Watterson, 18 La. Ann. 136.

It has also been well established that, if a cause of action be established on the trial of a case by evidence received without objection, the cause, thus shown, will be acted on by the court just as if it had been formally pleaded.

The latest ease that we find on that subject is Bell v. Globe Lumber Co., 107 La. 725, 31 So. 994, in which the court said (we quote from the syllabus):

“Where, however, in such a case, the exception of ‘no cause of action’ is referred to the merits by the court, and upon the trial on the merits the defendant, without objection, permits evidence to be introduced tending to establish facts which, if alleged, would have disclosed a cause of action, he allows the ground upon which his exception is based to be taken from under it, and thereby, in effect, allows the petition to be amended, and its defects cured.”

If a cause of action thus supplied by evidence received without objection must be acted on in the decision of the case, it will be difficult to argue that one supplied by an answer can be subsequently taken out of the case at the will of the defendants.

A situation almost exactly like that which exists in the present case is found in St. Paul v. Louisiana Cypress Co., 116 La. 585, 40 So. 906. The court said at page 590 of St. Paul et al. v. La. Cypress Lbr. Co., Ltd., 116 L. 590, 40 So. 908:

“But defendants did not stand exclusively upon their rights as defendant, and upon a denial of plaintiffs’ right to recover; they went further; they pleaded over and reconvened, asking to he recognized as owners of the land and of the trees taken therefrom. They, to the extent that they reconvened, as~ before mentioned, became plaintiffs in a petitory action, and thereby opened the door to plaintiffs, to prove up their title to the land.
“They, plaintiffs, had the right to defend themselves and introduce evidence to prove that defendant was not the owner.
“The exception of no cause of action cannot modify or change the nature of defendant’s answer previously filed, or nullify its effects. Despite the exception of no cause of action, the reconventional demand remains. Plaintiffs and defendants had made up the issues for the trial. They could not be changed by the defendant by filing the exceptions before mentioned.”

In Atkins v. Dixie Fair Co., 135 La. 622, 624, 65 So. 762, 763, the court almost repeats the language used in the former case, saying:

“The exception of no cause of action, filed by defendant and appellant, should have been disposed of by .the trial judge, although it was filed after the answer was filed, in which answer, defendant admitted and alleged matters which supplied deficiencies in the petition so as to present a cause of action. An exception of no cause of action cannot modify or change the nature of defendant’s answer previously filed, or nullify its effects. Plaintiffs and defendant made up the issues of the case in their pleadings, which could not be changed by an exception subsequently filed.”

We find cases, and defendants have cited us to some in which the statement is made, that an answer is not to be regarded when ruling on an exception of no cause of action, but we claim that a distinction is to be made between answers which have supplied a cause of action and those that have not. It follows, of course, if the answer does not supply a cause of action, then there is ground for the exception of no cause of action, and the same may be subsequently urged.

In Picard Construction Co. v. Board of Commissioners, 161 La. 1002, 1010, 109 So. 816, 819, the court said:

“In other words, this court passes upon the exception as of the time, and in the condition in which the case was when the exception was filed, and, since an exception of no cause of action is always triable exclusively upon the face of the petition, it follows that the answer and reconventional demand are no part of the case when the exception is passed upon.”

The statement about the effect of the answer, when acting on the exception, is broadly made, but after all it does not appear from the report that an answer previously filed in the case had supplied a cause of action, which the court did not regard when acting on the exception of no cause of action, subsequently filed; therefore the difference which we have mentioned apparently exists between the case and the one which we have in hand.

In State v. American Ry. Express Co.. 159 La. 1001, 1005, 1006, 106 So. 544, 545, the court said:

“And it is well settled that an exception of no cause of action must be disposed of on the face of the petition, irrespective of the averments of the answer” — citing authorities which we will examine.

A rehearing was granted and on the rehearing, at pages 1009 and 1010 of 159 La., 106 So. 547, the first opinion using the language above quoted was set aside and a different one rendered, in the course of which the court said:

“Every answer which is not a confession of judgment puts at issue the law on which plaintiff must recover; if there be no law warranting a recovery, necessarily there can be no recovery.’’

The report of the case does not show that the answer was filed first and had supplied a cause of action which the petition had not alleged, and that this cause of action so supplied was not regarded by the court in acting on the exception.

In Lewy v. Wilkinson, 135 La. 105, 64 So. 1003, the court went no further than to hold that an exception of no cause of action ought to be disposed of on the face of the petition alone and not referred to the merits. There was an exception of no cause of action urged, but the court did not act on it at once.

In State v. City of New Orleans, 130 La. 196, 57 So. 798, 800, the answer alleged a number of defenses seriatim, among them that of' no 'cause of action.

The court acting on the appeal said:

“The case was tried on the exception. That of no cause of action was sustained. * * * The exception of no cause of action has to be disposed of on the face of the petition, irrespective of the allegations of the answer.”

The statement that the -exception of no cause of action has to be disposed of on the face of the petition irrespective of the answer is broadly stated, but the action of the lower court in sustaining the exception was reversed on the appeal and the case remanded for trial on the merits. We are not clear whether the case is an authority for or against the contentions of the defendant in the present case.

In Lamorere v. Cox, 32 La. Ann. 1045, the court said (we quote from the syllabus) :

‘‘When plaintiff’s petition states that a certain document is thereto annexed and made part thereof, and in point of fact, the document has not been annexed to the petition or filed, on defendant’s exception to the cause of action or sufficiency of the petition, the document should not be considered as forming part of the latter.”

In Nalle v. Baird, 30 La. Ann. 1148, the court said (we quote from the syllabus):

‘‘On the trial of the exception of no cause of action, the Court can consider only the allegations of the petition, and the exhibits referred to, and made part thereof.”

The above are the cases cited in the first opinion in State v. American Ry. Exp. Co., 159 La. 1001, 106 So. 544, which on rehearing was set aside. We do not believe that the situation on which the court acted in the cases is governing as to the situation in the present case, and should be looked on as contrary to the cases in St. Paul v. Louisiana Cypress Co., 116 La. 585, 40 So. 906, and Atkins v. Dixie Fair Co., 135 La. 622, 65 So. 762.

In Jackson v. Young, 6 La. App. 854, the authority is against defendant’s contention, as the court in that case followed the authority of Bell v. Globe Lumber Co., 107 La. 725, 31 So. 994.

The question having been reconsidered, and our opinion being unchanged, our former opinion and decree herein is now reinstated and made final.

LeBLANC, J.

(dissenting). The majority opinion concedes that the petition, considered alone, does not disclose a cause of action, but it holds that certain admissions and allegations of fact of the answer, which was filed prior to the filing of the exception, had the effect of infusing a cause of action which otherwise was not shown to exist.

In the case of State ex rel. Barthe v. City of New Orleans, 130 La. 196, 57 So. 798, the Supreme Court decided that: ,

“The exception of no cause of action has to be disposed of on the face of the petition, irrespective of the allegations of the answer.”

And later, to the same effect in the case of State v. American Railway Express Co., 159 La. 1001, 106 So. 544; again, in Picard Construction Co. v. Board, 161 La, 1002, 109 So. 816, 819, it was held that:

“Since an exception of no cause of action is always triable exclusively upon the face of the petition, it follows that the answer and reeonventional demand are no part of the case when the exception is passed upon.’!

As I construe the language in these cases, I do not think we can consider the allegations of the answer filed in the case before us without a consideration of which there is no cause of action disclosed.

For the foregoing reasons, I respectfully dissent.


author: LeBLANC, J.

text:
    No. 619
    First Circuit
    IBERVILLE LAND CO. v. THE TEXAS CO. IBERVILLE LAND CO. v. SHERBURNE (THE TEXAS CO., Garnishee)
    (May 6, 1930. Opinion and Decree.)
    (June 9, 1930. Rehearing Refused.)
    (October 7, 1930. Writs of Certiorari and Review Refused by Supreme Court.)

      Bria'n & Brian, of New Orleans, attorneys for plaintiff, appellant.
    Borah, Himel & Bloch, of New Orleans, attorneys for defendant, appellee.
   LeBLANC, J.

On August 22, 1919, the plaintiff executed a deed, which is referred to in the petition in this case as a sale of:

“All of the oil, gas, sulphur, salt and all other minerals or things of any character whatsoever in, under and beneath 21,653.97 acres of land, located in the Parishes of Iberville and St. Martin, State of Louisi-' ana, and also all of the subsoil on subjacent land lying or extending from and below a plane running parallel with the surface of said land and at a depth of 500 feet, measuring from said surface. * * * ”

The following clause regarding the payment of taxes is incorporated in the so-called act of sale:

“The taxes on the herebefore described land are paid up to January 1, 1919, and it is understood and agreed that so long as the value of the estate rights and interest of the Texas Company are included for the purpose of taxation, assessment and public charges, with the estate interest and rights of the Iberville Land Company, said The Texas Company shall pay when due and before delinquent, one fourth (%) of such taxes and assessments. * * * ”

On May 18, 1923, the Iberville Land Company sold the surface land above the 500 feet plane to Henry N. Sherburne on terms of credit, and subrogated him to its right to collect one-fourth of the taxes from the Texas Company under the stipulation in its deed to that company of August 22, 1919. Sherburne defaulted in his payments, and the Iberville Land Company obtained judgment against him. He had paid all the taxes on the property for the years 1924 and 1925. Claiming that the Texas Company owed him one-fourth of the amount he had paid, the Iberville Land Company instituted garnishment proceedings against that company under a writ of fi. fa. issued against Sherburne.

As the decision in the garnishment case depended on the result of the trial of the direct action against the Texas Company, and both involved the interpretation of the tax clause already quoted, the cases were consolidated for trial and appeal.

The judgment in the lower court was in favor of the defendant, and the plaintiff has appealed.

It seems apparent that in the purported sale to the Texas Company there was an attempt made to create two separate estates out of the same property by dividing the property conveyed into two horizontal planes, and the Texas Company apparently bought all the subsoil below an imaginary plane 500 feet below the surface, and the Iberville Company retained everything above that depth. The parties to the deed were doubtless strangely controlled in their efforts to divide the property in such manner by certain language used by the Supreme Court in the case of De Moss v. Sample, 143 La. 243, 78 So. 482, which would indicate that such a division were possible. But whatever that language may or may not have meant is of no moment now, as in a later decision, Frost-Johnson Lumber Co. v. Sailing’s Heirs, 150 La. 756, at page 856, 91 So. 207, 242, we read:

“When the original opinion was handed down by Mr. Justice O’Niéll on January 5, 1920, this court then held for the ninth time that oil and gas in place are not subject to absolute ownership as specific things apart from the soil of which they form part, and that a grant or reservation of such oil and gas carried only the right to extract such minerals from the soil. * * * It is said that this court has held .otherwise in De Moss v. Sample, 143 La. 243, 78 So. 482, and Calhoun v. Ardis, 144 La. 311, 80 So. 548. But we do not find it so; for an opinion is authority only in so far as the ratio dicendi is necessary for a decision of the precise issue involved in the case.”

Later, in another case, Wemple v. Nabors Oil Co., 154 La. page 483, 97 So. 666, 667, the court said:

“The matter, therefore, resolves itself into this, whether in Louisiana there can be a corporeal mineral estate in lands.
“It is quite certain that nowhere does our statutory law provide for such an estate; and it is equally certain that never in our jurisprudence has any such estate been recognized, unless in the purely obiter expressions to be found in De Moss v. Sample, 143 La. 243, 78 So. 482, and Calhoun v. Ardis, 144 La. 311, 80 So. 548 (as to which see Frost-Johnson Lumber Co. v. Sailing’s Heirs. On rehearing, 150 La. 756, 91 So. 207).
“On the contrary, our civil law, coming to us through Roman, Spanish, and French sources, recognizes Dut two kinds of estates in lands, the one corporeal and termed ownership, being the dominion over the soil and all that lies directly above and below it (C. C. art. 505); and the other incorporeal and termed servitude (including usufruct) being a charge imposed upon land for the utility of other lands or persons (C. C. arts. 533, 646, 647).
“And accordingly this court has always resisted every attempt to introduce into this state any system of land tenures and estates in lands inconsistent with these simple but fundamental principles.”

This is sufficient authority, we think, for us to hold that in their effort, no doubt well intended, to create by their agreement two different land tenures or estates out of the same property, the parties were attempting to do a thing that was a legal impossibility. The purported sale of the subsoil therefore was nothing more than the ordinary oil or mineral lease with all the rights of servitude which generally accompany it.

Under the method of assessment prevailing in 1919, when the contract between the parties in this litigation Was entered into, the mineral value of land was added to its agricultural value and the whole was assessed as land. See Palmer Co. v. Police Jury, 142 La. 1080, 78 So. 122. Obviously, in considering and inserting the clause relating to the payment of taxes in their agreement, the parties had that kind’ of - assessment in mind and adopted it as the basis on which each would pay his just proportion of the taxes.

As long as that method of assessment of mineral rights, recognized as it has been by the Supreme Court, prevailed, or, in other words, as long as the value of the estate rights and interests of the Texas Company (which were the mineral rights) were assessed in globo with the value of the estate rights of the Iberville Land Company (the land itself), the Texas Company was bounded by the tax clause and had to pay its one-fourth of the taxes. This it did until 1924, although the payment of its proportion in 1922 and 1923 was under misapprehension and in ignorance of the fact that the Constitution of 1921 had changed the form of assessing minerals and mineral rights and leases. Under the new method, taxes were to be levied “on natural resources severed from the soil or water” and “no further or additional tax or license shall he levied or imposed upon oil or gas leases or rights, nor shall any additional value be added to the assessment of land, by reason * * * of oil or gas therein or their production therefrom.” Section 21, article 10, Constitution of 1921.

In carrying out this provision of the Constitution the Legislature enacted Act No. 140 of 1922, which imposes a severance tax of 3^ per cent on the gross market value of the total production of oil and gas severed from the soil or water. The imposition of such tax was clearly intended as a substitute for the taxes that were formerly collected additionally on lands that were producing oil or gas, or in which oil or gas rights had been leased.

In the case of Bódcaw Lumber Co. of Louisiana, Incorporated, v. Cox et al., 159 La. 810, 106 So. 313, 314, the plaintiff was endeavoring to maintain his title to the oil, gas, and mineral rights which he had reserved in the sale of his property to another party. The property was subsequently sold for taxes, and, disregarding the reservation of the mineral rights, the adjudieatee at tax sale executed a gas and oil lease on the land to another party. The Supreme Court recognized the plaintiff’s ownership under his reservation of the mineral rights, unaffected by the tax sale, saying, relative to the assessment, that:

“There was no assessment of the mineral rights either with or separate from the land, and there could not have been, in view of section 21, article 10, Constitution of 1921, and in view of the ruling in Shaw v. Watson, 151 La. 903, 92 So. 375.”

Under the clear prohibition in the Constitution against adding to the assessment of the land, any additional value because of the presence of oil or gas therein or their production therefrom, and under the ruling of the Supreme Court in the last case cited that there can be no assessment of mineral rights either with or separate from the land, it is manifest that the “value of the estate,-' rights and interests of the Texas Company” can no longer be “included for the purpose of taxation, assessment and public charges with the estate interests and rights of the Iberville Land Company,” and consequently the Texas Company has no further liability in the matter of the payment of taxes under the stipulation contained in its contract with the Iberville Land Company.

The judgment in each case is affirmed.


author: MOUTON, J.

text:
    No. 642
    First Circuit
    WEST v. INDUSTRIAL LUMBER CO.
    (June 9, 1930. Opinion and Decree.)
    (June 30, 1930. Rehearing .Refused.)'
    (August 7, 1930. Writ of Certiorari and Review Refused by Supreme Court.)

      Julius T. Long, of Shreveport, attorney for plaintiff, appellant.
    Thornton, Gist & Richey, of Alexandria, attorneys 'for defendant, appellee.
   MOUTON, J.

Plaintiff alleges that on March 21, 1929, while in the employ of defendant company, he was struck by a knot or other object just above the left eye, severing the skin, causing considerable concussion to his brain, injury to his nerves and head, which, in consequence of said blow, has resulted in a serious and permanent injury and impairment of his brain, nerves, and left eye, to such an extent that he has since not been able to do work of any reasonable character, and will continue to be so incapacitated in the future, and that he has lost sight in his left eye for all practical purposes.

He further alleges that on July 5, 1922, during his employment at that time with defendant company, while the company was engaged in dynamiting a stump on its premises, in connection with its business, an explosion occurred which blew him down, burning his face, eyes, and head; seriously and permanently injuring both eyes and his brain, which necessitated the removal of his right eye, causing him to lose about four months of work; that he returned to his work after the explosion, continued therein at the same wages, at the same position, having slight pains, peculiar feelings in his left eye, brain, and head, but not sufficient to prevent him from working; that during that time he knew of no serious injury to his nerves, left eye, or brain, and that physicians, after examining him, said there were no serious or permanent injuries to his brain, eye, or nerves, other than to the eye removed.

He further alleges that the blow he received in March, 1929, acting on his previous injured and weakened condition, above described, either caused or materially aided in producing his present and future disabilities and impairments of which he complains.

In the alternative he avers that if the court hold that the blow of March 21, 1929, did not cause or materially aid in bringing about his present troubles and disabilities, then he avers that they were produced by the dynamite explosion of 1922. As he avers that he was paid compensation by defendant company for the loss of his right eye in 1922, we shall not comment on the cause of its loss, except in so far as it may have caused or materially aided to produce his alleged present disabilities and impairments.

PRESCRIPTION

We shall at the outset consider the plea of prescription of one year filed by defendant under section 31, Act No. 20, of 1914, as to the injury for the accident alleged to have occurred in 1922.

In Guderian v. Sterling Sugar & Ry. Co., 151 La. 59, 91 So. 546, decided in 1922, the court held that the prescription b'egan to run from the time plaintiff became aware of the injury, and not from the actual date of the injury.

Section 31, Act No. 20 of 1914, as amended by Act No. 85 of 1926, reads that the action of the employee is barred, unless brought within one year, not from the injury or death as was provided in section 31 of act of 1914, but from the date of the “accident” or death of the employee.

On account of this substitution of the word “accident” in this statute for the previous word “injury” used in the prior law, the district judge held that prescription began to run from the date of the accident and not from the time knowledge of the injury was possessed by the employee, as was held in Guderian v. Sterling Sugar & Ry. Co., 151 La. 59, 91 So. 546.

Viewing the question in that light, the court held that any action plaintiff had, arising out of the accident of 1922, was prescribed. The word “accident” used in the act of 1926, as we read section 31 of that statute, has certainly no reference to the death of the employee, and unquestionably refers to any “injury” the em-’ ployee might suffer. We do not think that any other interpretation would be consonant with the provisions of the statute, and would, if applied, be destructive of the liberal construction which our courts have given to the provisions of that statute and in favor of the employee.

The ruling of the lower court maintaining the plea of prescription is therefore overruled, and we shall therefore take into account any right of action that may exist in favor of plaintiff, growing out of the accident which he alleges occurred in 1922.

MERITS

We will now pass on to a discussion of the merits of the case in, however, a reverse order to the one presented in the petition.

Firstly, as to whether the injuries complained of were caused by the effects on plaintiff of the dynamite explosion which occurred in July, 1922; and, whether, if not caused solely by that, if it had the effect of leaving the nerves or brain of plaintiff in such a weakened condition that it was aggravated by the blow on his left eye in March, 1929, which materially aided in bringing on his alleged present disabilities and impairments.

Secondly, if the foregoing is not shown, whether the blow he received on his left eye on March 21, 1929, has, independently of the effects of the explosion, caused the aforesaid troiibles and injuries.

Plaintiff says that July 5, 1922, while walking along the place where the company was using dynamite to blow up a stump, that he was blown about fourteen feet by the force of the explosion, where he was picked up and carried to the hospital at Elizabeth. He remained there two or three days, as appears from the record, and was taken to Alexandria where his right eye was removed by Dr. Gandy of that city. He says he did not know what was going on when he got the first time to the hospital; that when he got on the train at Oakdale to go to Alexandria, part of the time he knew what he was doing, and part of the time he did not. He says, subsequently, in his testimony, that the only time he was unconscious was during his trip to Alexandria.

Mrs. West, plaintiff’s wife, ,went to the Elizabeth Hospital the morning after the accident, and says at that time he was conscious.

Dr. Mangham, who was in charge of the JDlizabeth Hospital for the defendant company, says he was at that hospital when plaintiff was brought in. He was with.him also when Dr. Gandy removed his eye at the Baptist Hospital in Alexandria, and that plaintiff never was at any time in an unconscious condition, before taking ether for .the operation.

Dr. Gandy, who removed the ball of his right eye, says that plaintiff really felt that he was unconscious and that perhaps he had been before he saw him, but that he was not unconscious when he went on the operating table and iñ fact, not at all.

Under the testimony of these witnesses it must therefore be held that the proof does not show that plaintiff was in a state of unconsciousness from the effects of the dynamite explosion in 1922. We have dwelt upon this subject as unconsciousness usually follows a concussion of the brain, and partibularly where there is a contusion of the brain, which, from the evidence of some of the physicians in the case, becomes a factor of serious consideration in properly solving the issues herein.

Dr. Mangham, who examined plaintiff at the Elizabeth Hospital soon after the injury of 1922, says at that time he did not show any 'symptoms of concussion of contusion of the brain.

Dr. Gandy, who removed his eye, says, while removing it, he showed no symptoms whatever of any brain injury.

An X-ray picture was taken by Dr. Myers in September, 1929, of plaintiff’s head, and no injury to the skull or bony parts next to the right eye was'found, where had occurred the injury received by him in 1922.

It seems to us that if the force of the explosion was of sufficient violence to cause a contusion of the brain, that the X-ray picture would have revealed some marks, however slight on, at least, the bony structure around the orbit of the right eye. The negative result obtained from that picture, when taken, in connection with the testimony on this subject, sustains the evidence- of Dr. Mangham that no contusion resulted from the dynamite explosion, and of Dr. Gandy that there were no symptoms of any brain injury when plaintiff’s eye was removed.

Dr. Cassidy, a prominent physician, plaintiff’s witness, examined him in August, 1929, and, from the history of the case given him by plaintiff, and hypothetical Questions propounded to him by counsel for plaintiff, concluded that he had suffered a contusion of the brain in the accidental explosion of the dynamite in 1922.

' Dr. Sanderson, basing himself on these hypothetical inquiries, arrived at a similar conclusion in reference to the effects of that explosion.

The conclusions of Drs. Cassidy and Sanderson grounded, as they were, on an examination and hypothetical questions long after the accident of 1922, should not, we think, prevail over the examination of Dr. Mangham made immediately after the explosion-over six years before Drs. Cassidy’s and Sanderson’s examinations, and who found neither concussion nor contusion of the brain, and of that of Dr. Gandy who says no. brain injury’ was revealed during the operation for the removal of plaintiff’s eye.

The effects of a concussion of the brain are not. so serious as áre those resulting from a contusion, and from which, as Dr, Cassidy explains, a person may recover in a few minutes or hours. In the case of a contusion, he says, the tissues of the brain are broken or so disassociated that they do not always heal back in normal relationship. As the result of a contusion, which he concluded plaintiff had suffered in 1922, he says that a man may resume his work with a feeling his thought processes are interrupted, and he does not think quickly and accurately as before; has headaches frequently, suffers lapses • of memory, his disposition is somewhat changed, he is irritable, rendering him less efficient, which also disturbs his disposition. Outside of a pain in the back part of his head which plaintiff says he suffered after the explosion, and which he says was “not enough to complain about,” there is nothing to indicate that he was affected with any of the drawbacks or handicaps which Dr. Cassidy says usually follow a contusion of the brain. The fact is that he resumed his same work with defendant company, and continued in its service without complaint on either side, for over six years, and stopped only some time after he was injured in March, 1929.

We must therefore conclude that plaintiff suffered no contusion of the brain in 1922, which could have been the cause of his alleged disabilities or impairments, and, as he could have no dormant trouble resulting from a contusion or' concussion which ,had never happened, the blow he received in 1929 could not have activated or aggravated a diseased condition that did not exist, so as to bring the case under the operation of the doctrine announced in the case of Behan v. Honor Co., 143 La. 348, 78 So. 589, L. R. A. 1918F, 862, and approved in many subsequent decisions.

We now pass to the consideration of the results of the blow he received in March, 1929, from which plaintiff alleges he suffered a considerable concussion of the brain, injury to his head and nerves to which he, as a result, ascribes his alleged serious and permanent impairment to his left eye, nerves, and brain.

The day after the accident in March, 1929, plaintiff was examined by Dr. Mangham. The doctor says he had a slight abrasion over his left eyebrow and that he had no serious injury, and showed no symptoms of a concussion or contusion of the brain. As the doctor could see nothing the matter with plaintiff, he sent him to Dr. Gandy, an eye specialist, of Alexandria.

Dr. Gandy found a slight contusion to the eyebrow, no injury to the eyeball, which the doctor says is now perfectly normal.

It is nowhere indicated in his testimony that plaintiff had suffered any injury whatsoever to the brain resulting from any concussion of that organ. The left eye of the plaintiff was also examined in September, 1929, by Dr. Peters, an eye specialist, to whom plaintiff had gone for consultation of his own accord. After a thorough inspection of the eye, the doctor discovered a comparatively small refractory error, but says that the optic nerve was normal which was evidenced by test of color perception, and other recognized tests. He says he had a refractory error calling for eyeglasses.

He was also examined by Dr. Simmons, a practitioner of thirty-six years experience, some time in October, 1929, subsequent to plaintiff’s second injury. This doctor says plaintiff appeared to him to be in his natural state of mind and composure, and found nothing indicating mental abnormality.

The evidence of these physicians shows that plaintiff suffered no concussion of the brain by the effects of the injury he received in 1929, and none of the results to his nerves, left eye, or brain, as by him ' alleged.

As our guide for that conclusion, we must, to a large extent, accept the result of the examinations made by these medical experts or else we might fall into the ready omniscience of the uninformed.

Plaintiff was also examined by Dr. May, a specialist of many years experience in nervous and mental diseases. He made the examination at the time the case was tried, and found no abnormal neurological manifestations and no indication of any brain injury. He did not discover any hysteria or epilepsy. He says he thinks that his second injury had the effect of merely frightening or upsetting plaintiff, as there was no physical evidence of any bodily disturbance or of his logical thinking, that he had a fear reaction that came from his recent injury and which caused the symptoms, such as headaches, throwing up, dizziness, which were referred by plaintiff, his wife, and relatives, as spells with which they say he is suffering. He thought that for the present plaintiff should not do work associated with any danger, but stated that the condition which resulted from these fear reactions, he did not think, were permanent. Hé said those in that condition are inclined unconsciously to exaggeration.

We find, from the foregoing consideration of the case, that plaintiff has failed to show the “permanent disabilities and impairments,” upon which his action is grounded, with that legal certainty the law requires, and that his demand was properly rejected.


author: LeBLANC, J. ELLIOTT, J.

text:
    No. 653
    First Circuit
    STATE OF LOUISIANA EX REL. TRUXILLO v. GILBERT ET AL.
    (May 6, 1930. Opinion and Decree.)
    (June 9, 1930. Rehearing Refused.)
    Chas. T. Wortham, of Donaldsonville, attorney for applicant.
    George R. Blum and C. C. Webei, of Donaldsonville, and Philip H. Gilbert, judge of the Twenty-third Judicial District in person, attorneys for respondent.
   LeBLANC, J.

On March 17, 1930, Caleb C. Weber, applied to and obtained from the district judge an order of executoryprocess on a mortgage note of $700 made and indorsed in blank by Harvey J. Truxillo.

He alleged himself to be the holder and owner thereof for a valuable consideration and before maturity. Three days after the order was issued, Truxillo, through his counsel, obtained from the court a temporary restraining order with a rule nisi directed against Weber, and ordering him to show cause in open court on March 29, 1930, at 10 o’clock a. m. why a preliminary writ of injunction should not issue, without bond, to prevent the sale of his property Under the order of executory process which had issued.

The petition of Truxillo for a temporary restraining order and rule nisi alleged, in substance, - that the note sued on had been executed anil given by him to Weber to secure a surety company against loss for having signed his bond in some previous litigation in which Weber had represented him. That the suit in which the bond had been executed had been dismissed, consequently all liability on the bond had come to an end, and the purpose for which the note was given having been served, it had become extinguished and should have been returned to him by Weber, who, instead had, without warrant or right in law, appropriated it to himself.

The rule was tried on the date it had been made returnable, and, after hearing considerable evidence, the district "judge refused to grant the preliminary injunction. The temporary restraining order by its own terms expired the same day.

Olí'April 4, Í930, Truxillo applied to this court for a writ of mandamus to compel the district judge to grant the injunction pendente lite which he had prayed for in his petition of opposition to the executory process. An order was issued directing the district judge to show cause in this court on April 14, 1930, why the mandamus should not issue, and also staying all proceedings pending the hearing of the application.

In his answer to the rule, the respondent judge details at considerable length all the proceedings in the case, reviews the evidence, and then justifies his action in refusing the injunction after being convinced that the applicant had not supported his allegations with proper' proof, and believing that he was following the established rules of practice and procedure in this state, especially since the enactment of Act No. 29 of 1924, known as the Injunction Law.

Most of the argument on both sides is devoted to a discussion of the effect of the Injunction Law in cases where the injunction is asked for in sales under executory process under article 739 of the Code of Practice. In such cases of course, under the former practice, the injunction issued as a matter of right, and without bond. Much is said also about how far the district judge should go in hearing and passing on the evidence in the trial of a rule nisi under the act, and the effect to be given to his judgment when refusing the injunction. The discussion is interesting and instructive, and might be of great benefit in settling a rather perplexing question which frequently confronts the appellate court in these cases. The condition we referred to is the one brought about, as stated by the Supreme Court, in the case of First National Bank v. Hebert, 182 La. 703, 111 So. 66, 69, “because of the circuitous and anomalous practice that is required by the Act 29 of 1924” which allows evidence to be introduced on the trial of a rule to show cause why a preliminary injunction should not issue, and amounts virtually to a trial and disposition of the case on its merits “although, ostensibly, all that was tried or decided was the rule to show cause why the preliminary injunction should not issue.’’ However, interesting and illuminating though it may be, the discussion does not serve much purpose before this .court, at this time, if we are to follow the ruling made in the case of Wall et al. v. Tangipahoa School Board, 9 La. App. 178, 119 So. 371. By reference to that case it will be observed that the same condition prevailed as exists in this case. Although, on a different cause of action, a rule nisi for a preliminary injunction had been tried and the district judge had refused to grant it. Application was made to this court for writs of certiorari and prohibition, and for a mandamus to force the district judge to issue the injunction. Applying the ruling made by the Supreme Court in the case of T. Hofman-Olsen, Inc., v. Northern Lumber Mfg. Co., 1G0 La. 830, 107 So. 593, 596, that if any relief was to be given in cases of this kind it had to be given under its supervisory jurisdiction, we denied the application, as this court has no supervisory jurisdiction. Our right to issue writs of prohibition, certiorari, and mandamus is limited. It is only in aid of our appellate jurisdiction that we have the power to issue them. Riccobono v. Kearney, 164 La. 844, 114 So. 707. ' In this case, as in the Wall v. School Board ease, supra, the applicant has precluded his rights to a suspensive appeal by alleging in his application that no suspensive appeal lies from an order refusing to grant an injunction. As a matter of fact the injunction act, Act No. 29 of 1924, under which he proceeded denies him that appeal. As for a devolutive appeal, the same can be said of it here, as was said by the Supreme Court in the Hofman-Olsen, Inc., v. Lumber Co. case, supra:

“It is obvious that it would not afford adequate relief.”

It is apparent therefore that there will be no appeal, and, in the absence of any, we are without right to entertain the application for the writs.

As we cannot grant the relief demanded, the application for the writ is denied, and the order heretofore granted on April 4, 1930, staying all proceedings in this matter, is hereby recalled.

ELLIOTT, J.

(dissenting). The opinion of the majority of the court states the facts necessary to the understanding of the situation, except that it ought to appear that Weber, in response to the rule nisi, put at issue all the averments in the petition for injunction, averred ownership of the note in himself, with right to enforce payment, etc.

On the trial of the rule, Truxillo, as a witness in his own behalf, testified to the facts alleged in his petition for injunction and offered some further evidence» and Weber, as a witness in his own behalf, testified in support of his contentions and offered some further evidence.

Taking the testimony of Truxillo to be true, he showed preliminarily a prima facie right to the injunction prayed for, and that is all that the law intends on the trial of a rule under the Act No. 29 of 1924, when the prayer is for an injunction, under Code Practice, art. 740 et seq., without bond.

The respondent judge refused to grant the preliminary injunction provided for by Act No. 29 of 1924, holding that:

“The evidence does not support the allegations of the petition for injunction, that no case has been presented for the issuanee óf said injunction and the law and the evidence being in favor of the plaintiff in the foreclosure proceedings and against the defendant, it ■ is therefore ordered adjudged and decreed that the application for an injunction herein be and the same is hereby denied,” etc.

Truxillo moved for, and was granted, a devolutive appeal to this court. The record does not show any appeal bond, but the bond may yet be filed. Truxillo then petitioned this court for writs of mandamus and certiorari.

As the law does not allow a suspensive appeal from the judgment, and as the devolutive appeal would not serve to save the situation, his averment of irreparable injury is established, because unless the sale of his property is stayed until the merits of the controversy between him and Weber can be heard, the sheriff will sell the property, deprive him of his possession and title, and pay the proceeds of same over to Weber, although the allegations in the petition for injunction may be true.

The appellate jurisdiction of this court is apparent, and Truxillo has a constitutional right to invoke it and claim his right and petition the aid of the court in order to render it an available remedy. There is no other adequate remedy, consequently it is the duty of this court to do whatever is necessary to render an appeal to this court on his part an adequate remedy.

The issues of fact, brought forward by the petition for injunction and the answer thereto, involve the merits of the controversy between Weber and Truxillo.

The Code Practice, arts. 739-743 et seq., contemplate that an injunction granted without bond shall not be finally refused, except after trial on the merits.

But the respondent judge has, by his action on the rule holding ‘-'that the evidence does not support the allegations of the petition for injunction, that no case has been presented for the issuance of said injunction and that the law and the evidence is in favor of the plaintiff in the foreclosure proceedings and against the defendant” and from which there is no suspensive appeal, and a devolutive appeal will not preserve the status quo, practically taken these articles out of the law because he has not given them any effect. The trial on the merits which they provided for cannot be reached in this case because Truxillo has been defeated in advance and without having been heard on the merits. His right to an appeal has also been defeated, without his fault, because of the action of this court in holding that it will not issue an order necessary to make an appeal on the merits an effective remedy. I do not see any force in the contention that this court has not the power to issue the writs prayed for when necessary to enable a litigant to conserve his rights, until same can be tried on the merits in the lower court and then heard on appeal in this court.

The Supreme, as well as other courts, possess the powers which are necessary for the exercise of the jurisdiction given to it by law, in all cases not expressly provided for by the present Code. Code Practice, arts. 877 and 130. The Supreme Court has often decided that this court, in cases appealable to it, has power and authority to do what is necessary in order to effectively exercise the jurisdiction conferred on it by the Constitution. State ex rel. Sample v. Judge, 43 La. Ann. 936, 9 So. 899; Troegel v. Judge, 46 La. Ann. 421, 15 So. 410; Bank of Houma v. Citizens’ Ice & Mfg. Co., 129 La. 270, 55 So. 879; Heintz v. Hold, 132 La. 859, 61 So. 850; St. Tammany Lumber Mfg. Co. v. Stewart’s Creditors, 134 La. 374, 64 So. 145; Day et al. v. Helena Lumber Co., 142 La. 410, 76 So. 820; Paul v. Tabony, 157 La. 400, 102.So. 503.

The case last cited seems to decide the very question being discussed. And since the enactment of Act No. 29 of 1924, the Supreme Court has had occasion, in a number of instances, to act just as we are called on to act, in aid of its appellate jurisdiction, by compelling the lower court to grant a preliminary injunction preserving the status quo, when it had improperly refused to do so on a preliminary hearing. Marcy v. Mandich, 158 La. 15, 103 So. 389; T. Hofman-Olsen, Inc., v. Northern Lumber Mfg. Co., 160 La. 839, 107 So. 593; Wachsen v. Commission Council of Lake Charles, 162 La. 823, 111 So. 177; First National Bank of Abbeville v. Hebert, 163 La. 378, 111 So. 792; Blanchard v. Haber, 163 La. 627, 112 So. 509, and others.

The case Wall v. School Board of the Parish of Tangipahoa, 9 La. App. 178, 119 So. 371, may be explained, as it appears that the petition prayed this court to set aside and supervise certain proceedings of the school board but not in aid of an appeal to this court, whereas in the case now before us, the purpose is to conserve rights, so that the law and the facts on the merits of a controversy may be effectively appealed to this court.

The» Act No. 29 of 1924 takes the provisions of the Code Practice on the subject of executory process into account and makes no change in the procedure, except to require a prima facie preliminary contradictory showing.

I think the writs of mandamus and certiorari prayed for' should be issued in the case before us, that the preliminary injunction prayed for should be ordered granted, and I dissent from the action of the majority of the court in ruling otherwise.


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

text:
    Nos. 564 and 637
    First Circuit
    LAKE CHARLES FEED CO., INC., v. SABATIER
    (December 30, 1929. Opinion and Decree.)
    (June 30, 1930. Rehearing Refused.)
    (August 7, 1930. Writs of Certiorari and Review Refused by Supreme Court.)

      McCoy, Moss & King, of Lake Charles, attorneys for plaintiff, appellant.
    Chappuis & Chappuis, of Crowley, attorneys for defendant, appellee.
   LECHE, J.

The pertinent facts in this case are not disputed and the main controversy, depends for solution on a question of law.

The defendant sent his cheek for $825 to the plaintiff to pay a claim for merchandise. The check was dated January 15, 1926, and was drawn in favor of plaintiff on the Iota Branch of Crowley Trust & Savings Bank. It was deposited by plaintiff in the Calcasieu National Bank of Southwestern Louisiana on January 18, 1926. On the same day, the Calcasieu Bank forwarded the check to its correspondent in New Orleans, the Canal Commercial & Savings Bank, for collection. On January 20, 1926,' the Iota Branch of the Crowley Trust & Savings Bank forwarded to the Canal Commercial Bank of New Orleans its own cheek, in payment of that drawn upon it by defendant, but, before the check drawn by the Iota Bank could be collected, the Iota Bank was closed by the commissioner of state banks and the latter check was never paid.

The Canal Commercial Bank charged back the amount of the check to the Calcasieu National Bank, and that bank charged back the amount to plaintiff. The question in the case is: Who must suffer the loss of the amount called for in defendant’s check? Must the plaintiff, or must the defendant, lose it, if loss there should be? In reciting the movements of defendant’s check, the dates are given, and, from the check itself, it appears that it was issued in Iota, forwarded to Lake Charles, thence to New Orleans, and back to Iota, so that no question of negligence from delay in presenting the check is raised by, the pleadings or in argument, and it is not disputed that the check was presented and sought to be collected in due and ordinary course of business.

The original check is on file in the record, and, while it appears to be stamped “paid,” there is no question that this stamping was done by the Iota Bank itself, and not by plaintiff or its collecting agents, for in point of fact, notwithstanding the stamped mark, plaintiff never received the amount called for by said check.

Although the evidence does not expressly so disclose, it is assumed, and not questioned, that the credit given to plaintiff by the Calcasieu National Bank, and that given by the Canal Commercial Bank of' New Orleans to the Calcasieu National Bank, were conditioned with the proviso “that the amount called for by defendant’s check on the Iota Bank be paid.” In other words, there is nothing to justify the inference that the transfers of the check by plaintiff to the Calcasieu National Bank, and by that bank to the Canal Commercial Bank of New Orleans, were sales or were transfers of the ownership of the check. These transfers were merely in aid of, and for the purpose of facilitating, collection. The fact that the amount called for by the check was charged back shows unmistakably the intention of the parties.

Nor is it contended that plaintiff accepted defendant’s check otherwise than with the implied condition that it would only be considered a payment when actually paid by the drawee bank. There is no doubt that, by accepting defendant’s check, plaintiff did not novate its claim, which might, for aught we know, have been secured by some privilege which the law may have vested in favor of plaintiff as a furnisher of supplies.

The question, then, in its final analysis, is whether the check or bank exchange, issued by the Iota Bank, constituted a payment notwithstanding the fact that such check or bank exchange was not paid. There is no express agreement shown in the evidence to that effect, and to hold to the affirmative of that proposition seems inequitable and illogical. No statute law or jurisprudence is pointed out to sustain such a conclusion.

A somewhat similar question was presented to this court in the case of Holmes & Barnes v. Shawnee Milling Co., 5 La. App. 392 (see concurring opinion of Leche, J.). In the case of Haas et al. v. Opelousas-St. Landry Bank & Trust Co., 9 La. App. 166, although the identical question is not presented, this court held in effect that a check, in the absence of an express agreement to the contrary, does not constitute a payment until its proceeds are actually received and placed under the control and in the custody of the collecting bank. The money represented by the check or bank exchange of the Iota Bank never was received, and never reached the custody of the collecting banks, nor of the plaintiff in this case. There was, therefore, no payment.

This suit is upon an open account, which is not contested, save to the extent that defendant claims a credit of $825, Which he claims to have paid by his check on the Iota Branch of the Crowley Trust & Savings Bank, the basis of the real controversy in the case.

There is another defense made by plaintiff to the credit or compensation claimed by defendant, but it is unnecessary to pass thereon.

For these reasons, the judgment of the district court is avoided and reversed, and it is ordered that plaintiff recover of defendant the sum of $1005.70, with legal interest thereon from judicial demand, together with all costs of this suit, as prayed for.

ON REHEARING

ELLIOTT, J.

J. A. Sabatier, defendantappellee, applied for a rehearing herein, urging that this court erred in holding that the check for $825 drawn by him on Iota Branch of Crowley Trust & Savings Bank in favor of the plaintiff had not been paid, and that he was not entitled to credit for same against the account sued on.

The rehearing was granted and we have considered his argument on the subject again.

The re-consideration has not changed our former views on the question. We are convinced that our former opinion and decree herein was correct.

For these reasons our former Opinion and decree herein is now reinstated as' the opinion and decree of this court and made final.

MOUTON, J.

(dissenting). It is shown when the check for $825 was paid by the bank, that it was charged up to defendant’s checking account. A check is not an assignment of the fund drawn against, but it becomes an assignment when it is accepted or paid by the drawee bank. In such a case the funds to the amount drawn against are withdrawn from the control of the drawer, and to that extent are as effectually diminished as if the money had been actually handed over to the payee. Instead of taking the money for the check plaintiff accepted the bank’s draft or exchange which evidently was based on the amount which had been withdrawn from defendant’s control. Plaintiff might have claimed that the bank was responsible on this draft or exchange but it cannot recoup itself against defendant for the amount claimed which he paid.

I therefore respectfully dissent.


text:
    No. 3082
    Second Circuit
    LINDSEY WAGON CO. v. LOUISIANA & ARKANSAS RY. CO.
    (July 5, 1930. Opinion and Decree.)
    (July 31, 1930. Rehearing Refused.)
    Poster, Hall & Smith, of Shreveport, attorneys for plaintiff, appellant.
    White, Holloman & White, of Alexandria, attorneys for defendant, appellee.
   ODOM, J.

The plaintiff shipped a wagon, valued at $230, to A. E. Morgan Lumber Company, over defendant’s line of railroad, and paid' the freight charges, amounting to $16.45. The wagon was never delivered to the consignee, and this suit is by the shipper against the carrier to recover the value of the wagon, plus the freight charges paid. Plaintiff’s demands were rejected by the district court, and it appealed.

Appellee filed a motion in this court to dismiss the appeal on the ground that the transcript was not lodged in this court in time. As we think the judgment should be affirmed, we shall not notice the motion to dismiss.

The plaintiff sold a wagon to A. E. Morgan Lumber Company, said to be located at Coldwater “Spur,” Tex., and shipped it by freight over defendant’s line of railroad. Mr. Gibbs, who seems to have had charge of plaintiff’s office in Shreveport, made out a bill of lading designating the Texas & Pacific Railway Company as the carrier, A.' E. Morgan Lumber Company, as the consignee, and Coldwater Spur, La., as the destination.

The wagon and the hill of lading were carried to the local shipping station of the Texas & Pacific by the Caddo Transfer & Warehouse Company, as the agent of the shipper. When the freight and bill of lading were delivered to the agent of the Texas & Pacific, the shipment was refused on the ground that there was no station on that line of railroad by that name. He suggested, however, that the freight be carried to the Louisiana & Arkansas Railroad, which was done by the transfer company.

On looking over the bill of lading made out by the shipper, the agent of the Louisiana & Arkansas discovered that the carrier designated was the Texas & Pacific but that the name of that company had been scratched out or erased which he understood to mean that the shipment had^ been refused by that road. He then consulted what is referred to as a shipping guide, approved by the Interstate Commerce Commission and used by all railroads, and found that the Texas & Pacific had no shipping station named Coldwater Spur, but that there was a shipping point, named Coldwater, on the line of the Louisiana & Arkansas located in Louisiana. He says that he knew the station called Coldwater on the Louisiana & Arkansas was not what is called an open station, where an agent is maintained, but was a prepay station on a spur track, and he in ferred that the shipper intended that the freight be delivered there, and accepted the shipment.

The transfer man who carried the wagon and the bill of lading to the Louisiana & Arkansas gave the agent no information as to the destination of' the freight, and the agent made no inquiries, but got his information as to the place of delivery from the freight bill made out by the shipper, and, as stated, the destination therein indicated was Coldwater Spur, La. The freight was carried to Coldwater, La., and there unloaded on the spur track. There was no one there to receive it and it was left unattended. How long it remained there or what became of it, no one seems to know, but it is admitted that the consignee did not get ■ it. Mr. Gibbs, who made out the bill of lading for the shipper, says he intended to ship the goods to Coldwater Spur, Tex., but that by inadvertence and error he wrote the word “Louisiana” instead of the word “Texas.” He says further that there was at the time a shipping station on the line of the Texas & Pacific, named “Coldwater Spur,” in Texas. But he was in error on that point. The post office address of the consignee may have been Coldwater Spur, Tex., but there was no such shipping point on either line of railroad at that time, either in Louisiana or Texas.

In a later edition of the shipping guide gotten out in March after this shipment was made in December, there was designated on the Texas & Pacific line a station by that name in Texas, and it appears that the plaintiff later consigned other freight to the A. E. .Morgan Lumber Company, at that iplace.

The burden of plaintiff’s complaint against the carrier in this case is that the shipper made an error in directing the shipment, which error was or should have been obvious to the carrier’s agent who should have, before accepting the goods, communicated with the shipper in order to get more definite instructions as to the place of delivery, and that the agent’s failure to do so renders the carrier liable. It is unquestionably true that, where shipping instructions are not clear, or where there is an obvious error in the directions given by' the shipper -as to the destination* of the freight, it is the duty of the carrier or its agent to hold the goods, except in cases of emergency, and ask further instructions from the shipper, and that its failure to ask further instructions and more specific directions in such cases is a breach of duty which may render it liable in case of loss on account of such misdirection.

The. rule is stated as follows in 10 Corpus Juris, p. 120, under the general heading, Carriers, subheading, Misdirection:

“(Sec. 146) (4) Misdirection. If the loss of the goods, or the delay or injury, due to the inherent nature of the goods, resulting from the delay, is due to improper marking or direction as to their destinar tion, the carrier is not liable. Furthermore the consequence.of defective marking will be charged to the shipper, although the direction of the package may have been written out by the carrier’s agent, where, in so doing, he acted under the direction of the shipper. Nevertheless, where shipping instructions are not clear, it is the carrier’s duty, unless an emergency arises, to hold the goods and ask for instructions from the shipper. And in order to exempt the carrier from liability, the loss must have resulted from the negligent misdirection of the shipper alone, unaided by a breach of duty on the part of the carrier or its agent; and if the carrier itself has been guilty of some negligent act or omission without which, notwithstanding the fault of the shipper, the loss would not have occurred, it will be liable. And it has been held that a carrier is liable for loss of goods notwithstanding misdirection, where it was not misled by such misdirection; where the carrier undertakes the duty of transportation, knowing that the goods were consigned to a point that had no existence in fact; where, by the exercise of ordinary diligence, the carrier could have ascertained the proper direction; or where it in fact knew the proper direction. * *• *”

The question, therefore, is whether there was an obvious error in the shipping directions given by the shipper or an obvious misdirection of 'the freight such as to put the agent of the carrier on notice, and whether, under the facts here presented, it • was the agent’s duty to hold the goods and make further inquiry. We do not think so. The carrier was directed by the shipper in the bill of lading made out by it to deliver the goods to the consignee at Coldwater Spur, La. The carrier had no station on its line named “Coldwater Spur,” but did have one named “Cold-water” in Louisiana, and it was a blind, prepay station, where all freight consigned to that place was unloaded on a spur track. We think the conclusion reached by the carrier’s agent that the shipper intended that this freight be delivered at Coldwater, La., was reasonable. He knew that the shipment had first been tendered to the Texas & Pacific and refused, and, on investigation, he found that the Texas & Pacific had no station on its line named “Coldwater,” or “Coldwater Spur,” and he concluded that the shipment was then tendered to the Louisiana & Arkansas because it did have a station named “Cold-water.” Mr. Gibbs testified that there was a “Coldwater Spur” on the Texas & Pacific in Texas, and counsel argue that the agent of the Louisiana & Arkansas should have known that, or could have ascertained the fact by investigating, and that his knowledge of that fact and his seeing that the freight was consigned to “Coldwater Spur, La.,” when there was no such station in Louisiana, but one of that name in Texas, were sufficient to put him on notice that there was or might have been an error in the shipping directions. Counsel’s point, might be well taken if there had been in fact a station named “Cold-water Spur” on either line of railroad, either in Louisiana or Texas. But there was not. There was not a “Coldwater” or “Coldwater. Spur” on the Texas & Pacific either in Louisiana or Texas. The only place called “Coldwater” was on the Louisiana & Arkansas line, and that was in Louisiana, and that was in fact, although not so designated in the shipper’s guide, a “spur” station. The shipper directed that the freight be delivered in Louisiana, and, under the circumstances, we think the carrier was guilty of no fault in this respect.

In support of this contention, counsel cite the case of Williams-Richardson Co., Ltd., v. New Orleans & N. E. Ry. Co., 165 La. 33, 115 So. 358, 359, where the court said:

“* * * wtien it becomes obvious to ■ the carrier or its agent that a mistake has been made in directing a shipment, both good faith and reasonable prudence dictate that the shipment shall be held and inquiry made of the consignor for more complete and definite instructions. In such cases, it is not for the carrier or its agent to venture a guess as to what destination or what consignee the shipper intended and then to forward or to deliver the shipment according to said guess.”

This holding is in exact accord with the text quoted above from Corpus Juris. But the facts in the Williams-Richardson case, supra, are altogether different from those in the case at bar. There the goods were consigned by the shipper to W. H, McGee & Co. at Prentiss, Miss., whereas Purvis, Miss., was intended. There were both a Prentiss and a Purvis in Mississippi. The goods were forwarded to Prentiss. There was no firm styled “W. H. McGee & Company” at Prentiss, but there was one there styled “J. T. McGee & Company,” which firm, to the knowledge of the agent, had received previous shipments from the same shipper and he had never heard of W. H. McGee & Co. He assumed or “guessed” that the shipper had made an error in the initials and delivered the shipment to J. T. McGee & Co. The Court held that the goods were plainly addressed to W. H. McGee & Co., and, as there was no such firm as that at Prentiss, the agent at the point of delivery should not have guessed or assumed that the shipper had erred in the initials of the firm and delivered the “shipment according to said guess.”

There is a manifest distinction between that case and the one at bar.

It is further contended that the carrier in this case was at fault in unloading the shipment without there being present any one to receive it. We find no merit in this contention. The shipper knew that the shipment was to be delivered at a non-agency station. It prepaid the freight for that reason. The bill of lading contains the following provision:

“(f) Property destined to or taken from a station, wharf or landing at which there is no regular appointed freight agent, shall be entirely at risk of owner after unloaded from cars or vessels or until loaded into cars or vessels, and except in case' of carrier’s negligence, when received from or delivered to such staions, wharves or landings shall be at owner’s risk until the cars are attached to and after they are detached from locomotive or train or until loaded into and after unloaded from vessels.”

The judgment appealed from is affirmed, with costs in both courts.