author: ODOM, J. REYNOLDS, J.

text:
    No. 2027.
    Second Circuit Appeal.
    GEORGE C. VAUGHAN & SONS, INC., v. JONAS BODLEY.
    (Feb. 3, 1925, Opinion and Decree.)
    (March 2, 1925, Rehearing Refused.)

      (Syllabus by the Editor.)

    1. Louisiana Digest — Mechanic’s Privileges —r-Par. 21, 23.
    Where the furnisher of materials complies with the provisions of Act No. 262 of 1916 by recording lien and serving same on the owner, his claim is governed by the provisions of that Act and the prescription of one year as prescribed by Act No. 229 of 1916 does not apply.
    2. Louisiana Digest — Estoppel—Par. 3.
    The furnisher of material of a building having obtained a judgment against the contractor, is not estopped from suing the owner even though no reservation of that right was made in the judgment obtained against the contractor.
    Appeal from Thirteenth Judicial District Court of Louisiana, for the Parish of Rapides. Hon. Leven L. Hooe, Judge.
    This is a suit by the furnisher of- materials against the owner of building for recognition of lien and for collecting amount due for materials furnished.
    Provosty & West, of Alexandria, attorneys for plaintiff, appellant.
    Lamar Polk, of Alexandria, attorney for defendant, appellee.
   ODOM, J.

The . defendant, Jonas Bodley, employed James Hodge, a local building contractor, to construct a. small residence in the • city of Alexandria at a price exceeding $500.00.

This contract is in writing, but was never recorded.

Jonas Bodley, the owner, did not require bond of the. contractor, Hodge.

The plaintiff in this case sold to James Hodge, the contractor, a lot of building material. Plaintiff alleges that there is still due him the sum of $346.24 on this material bill, for which amount he is now suing Bodley, the owner of the house.

ON THE MERITS.

It seems that the contractor, Hodge, had two contracts on at the same time; the Bodley job and what was referred to as the Coleman job. The plaintiff was sending out lumber to Hodge, some for the Bodley and some for the Coleman job. When lumber was ordered it was usually ordered so as to designate the job it was intended for. It was all charged to Hodge, the contractor, but the account showed which job the material was intended for.

The testimony shows that the defendant, Bodley, went with the contractor, Hodge, to the office of the plaintiff before the work ivas begun for the purpose of buying building material. Arrangements were made and the material furnished and charged to Hodge, the contractor, the charges on the books being so made as to designate that , the material was for the Bodley house. While some confusion arose over whether certain lumber was intended for and actually used in the construction of the Bodley house, the testimony satisfies us that there was material used in the construction of the Bodley house amounting to $286.34, which has not been paid for. Plaintiff sues for $346.34, and files an account showing that much due. But, according to the testimony of Hodge, there is an error of $60.00 on account of the fact that some lumber was charged to .the Bodley job which should have been charged to the- Coleman job. So that there is due on the account sued on only $286.34, instead of $.346.34. This bill has not been. paid and, therefore, if as a -matter of law, Bodley is bound for any amount it is in the sum’ of $286.34.

STATEMENT OF' FACTS.'

The pertinent facts in " this case are ' as follows. Jonas Bodley, owner of a lot in Alexandria, employed James Hodge, a contractor, to erect a residence thereon at a price which exceeds $500.00; the .contract was reduced to writing and signed by the owner and the contractor under private signature, but was not recorded in the office of the Recorder of Mortgages of the Parish of Rapides, wherein the property is situated; the owner did not require of the contractor a bond with, surety; the plaintiff furnished to the contractor building material which was used in the construction of the building amounting to $286.34, for which it has not been paid; the building was completed' by the contractor and accepted by the owner about the 19th day of April, 1920, when the owner went into possession thereof; the owner has never registered in the' parish where the property is situated notice of his acceptance of the work; the owner has paid the contractor the full amount of the contract price for the building of the house, but the contractor has not paid for the material; the plaintiff, furnisher of material, on July 1, 1920, had filed and recorded in the mortgage records of the Parish of Rapides a sworn statement of his account; another sworn statement of said account was filed and recorded on October 31, 1922, and the defendant; Bodley, was duly served with copies of these sworn statements; the two sworn statements, one filed in July, 1920, and the other in October, 1922, are alike, except that the affidavits were made by different persons connected with plaintiff’s firm.

This suit was filed November 9, 1922.

Under the above statement of facts is Bodley, the owner of the house, now bound for the unpaid balance for material used in the construction of the house?

OPINION.

The real defense to the suit is that the action against the owner, Bodley, is barred by prescription. He also pleads estoppel, which plea will he discussed later in this opinion.

Counsel for defendant in brief says: “This contract, having been entered into and the material furnished between December, 1919, and May, 1920, the contract and the lien which the plaintiff herein seeks to assert must be governed by the provisions of Act. 229 of 1916 by reason of the fact that this contract as entered into was not recorded, no bond was furnished and the provisions of Act 262 of 1916 were in no manner complied with.”

And counsel for plaintiff, appellant, in their brief state:

“The serious point in the case is whether Act 229 of 1916 or Act 262 of 1916 should apply to the present litigation. If Act 229 applies, the defendant is entitled to judgment. If Act 262, plaintiff is entitled to judgment.”

It is clear from the above quotations from their briefs that counsel on both sides agree on what is the issue for the court to determine.

Act 229 of 1916 among other things provides in section 6 “that any privilege provided for by this act may be enforced by a civil action in any court of competent jurisdiction in the parish in which the land is situated and such right of action shall prescribe within one year from the date of recordation of the privilege in the office of the Recorder of Mortgages unless renewed in accordance with law”.

Plaintiff’s privilege was recorded in the office of the Recorder of Mortgages on the first day of June, 1920. • Insofar as the defendant, Bodley, is concerned, nothing further was done until November 7, 1922, more than two years thereafter, when plaintiff again had his privilege recorded in the mortgage records.

This suit was filed November 9, 1922.

Therefore, plaintiff did not enforce its privilege within one year after it was recorded, nor did it renew the same within that time. Therefore, if the provisions of Act 229 govern, plantiff’s action is barred.

Act 262 of 1916 in section 1 provides that all persons who have claims against a contractor shall after the date of the completion of the work file a sworn statement thereof with the owner and record a statement thereof in the office of the Recorder of Mortgages for the parish in which said work has been done within forty-five days after the register “registry” of notice with the Recorder of Mortgages of the parish where the work is done by the owner of his acceptance of the work, until which time the delay to file privileges will not run.

Defendant, Bodley, the owner of the work, accepted the work about April 19, 1920, and went into possession thereof. But he has never registered notice with the Recorder • of Mortgages of his acceptance of the work. According to the plain provisions of this act, the delay for filing privileges does not begin to run until the filing of such notice. So that if Act 262 of 1916 governs prescription has not yet begun to run.

Counsel for defendant, appellee, contends in' brief that Act 229 must govern “by reason of the fact that this contract as entered into was not recorded, no bond was furnished and the provisions of Act 262 of 1916 were in no manner complied with” and he cites Musey vs. Prater, 147 La. 71, 84 South. 498. In our view, counsel is in error as to the law. The decision which he cites is against him. Act 226 of 1916 by its specific terms “is to require owners to secure bond with solvent and sufficient surety of the undertaker, contractor, master mechanic or engineer for the protection of all parties interested in the contract and as their interest may appear” ^and “if the owner fails to secure bond or if he fails to have the same recorded in the office of the Recorder of Mortgages * * * the owner shall be in default and shall be liable' to the same ¡extent as the surety would have been, and all * * * furnishers of material shall •have a first privilege on said building or improvements and ground to secure the ¡amounts due them when their claims are recorded as herein provided”.

This act applies to contracts of more than $500.00. It imposes upon the owner the . duty of having the contract reduced to writing and recorded and to require bond. The recording of the contract is for the benefit of the laborers and those who furnish 'material. The act provides that such recordation shall create a lien and privilege on the building and grounds in favor of the said laborers and furnishers of material, and all others interested in the contract.

And it is provided that the condition of the bond shall be “the true and faithful performance of the contract and the payment of all * * * furnishers of material, the said bond to be in favor of the owner * * * and furnishers of material as their interests may appear”.

And the act provides that if the owner complies with its provisions by requiring bond, etc., and complies with all other duties imposed upon him, he may escape liability on account of the claims of all laborers, sub-contractors, furnishers of ma-' terial, etc., in case the contractor defaults. In case of such default by the contractor the surety on the bond steps in the shoes of the owner; he assumes all liability, and the owner may have all liens and privileges inscribed against his property erased.

So that while the act imposes upon the owner the burden of protecting material men and others who may be interested in the contract, it also grants him relief from their claims in case the contractor defaults. But his relief is dependent entirely upon his compliance with the duties imposed upon him by the statute. By the specific terms of the statute, .if he fails to secure bond all furnishers of material shall have a first privilege on the said .building or improvements and ground to secure the amount due them when their claims are recorded as herein provided.

If the laborers, furnishers of material and others interested in the contract comply with that portion of the statute which imposes upon them certain duties in order to take advantage of its provisions and the benefits afforded them by it and the owner fails to discharge the burden laid upon him to protect not only such laborers and material men but himself, there is no way as we see it for him to escape the penalties exacted of him by the statute.

Counsel has cited and apparently relies on the case of Musey vs. Prater, 147 La. 71, 84 South. 498. In that case as in this one the contract was for more than $500.00 and there as here the. owner failed to record his contract and there was no bond executed in favor of laborers and material men as the act provides; and there as here the owner failed to do those things which Act 262 provides that he shall do, and the court held: “For the reason that none of these things were done by the owner, we are of the opinion that he cannot claim the benefits of the provisions of Act No. 262, which was adopted for his protection, as well as for the protection of contractors, etc.”

In that case the owner had in his hands when the building was completed a certain amount due by him on the contract. In order to hav his property freed from all claims of material men, etc., he deposited the amount in court and cited the contractor the surety on the bond and all laborers, material men, etc., to show cause if-any they had why the said ^deposit should not' be adjudged to be the total amount due by him, and he asked that said amount be paid over to whoever might be ehtitled to it and that his property be released from all claims. As between himself 'and' the contractor and the surety on "the bond, which was in proper form, there was no dispute, but when the material men came into court and asserted their 'claims, which amounted to more than the amount he had deposited in court, he tried to ■ defeat their claims by invoking, in his behalf, that provision of Act 262 to the effect that in order for the laborers or furnishers of material to obtain a lien upon • the property they must not only have a sworn statement of their - claims recorded, but must also file the same with the owner. The material men in that case had not filed their statements with the owner. The court held: That having failed to. comply with the provisions of the statute, he was in no position to invoke its benefits.

In the Musey case the court did say: “We are of the opinion that Act 229 refers to all building contracts, regardless of amount, whether verbal or in writing, where no bond, or a defective bond, is given by the contractor, and the contract and bond are not recorded in the manner provided for in Act 262.”

Counsel for defendant construes that to mean that in case the owner does not require, the contract to be reduced to writing and does not require bond, etc., as provided.in Act 262, the laborers, material men and. others cannot invoke the penalties exacted of the owner under that act. If that interpretation of the decision be correct, .then the court held, in effect, that Act 229 repealed at least a portion of Act. .262, for Act 262 specifically provides that in case the owner, where the contract exceeds. $500.00, fails to obtain bond, etc., he shall be in default and the laborers, material men, e.tc., shall have a first lien and privilege on his. property. But we know that the court did not intend to hold and did not hold that Act 229 repealed any part of Act 262, for in that case the court said: “These two acts are on kindred subjects and they must be construed together, remembering that Act 229 ‘shall not be construed to repeal or affect the operation of Act 167 of 1912, as amended 'by an act adopted at this session of the General Assembly’. Act. No. 262.

Our understanding of the court’s holding is that the provisions of Act 229 apply in all cases regardless of the amount where the contract is not in writing, etc., but we do not understand that the court meant to hold that in cases where the contract is for more than $500.00 and no bond, etc., is given, the claimants are thrown entirely upon the provisions of Act 229, and cannot invoke in their behalf the provisions of Act 262, which are in their favor. The saying that the provisions of Act 229 are applicable in such cases is by no means equivalent to saying that if its provisions are applicable then all the provisions of Act 262 are excluded. Such, in effect, would be to read out of Act 262 that part of it which provides that the owner and his property shall become liable in case he failed to comply with its provisions with reference to the contract, the bond, etc.

Act 262 protects both the owner on the one hand and the laborers and furnishers of material on the other, against defaulting contractors. However, in order to reap the benefits of the act, there is a duty imposed upon the owner and upon those who furnish material. If the owner fails to comply with the act, he cannot, in order to escape liability, invoke in his behalf the provisions thereof which are advantageous to him. But we can see no reason why a furnisher of material who has complied with all the requisites of the act should not he permitted to avail himself of its provisions in so far as they benefit him. The owner who is in default cannot drive those who are interested in the contract to take refuge under whichever act is more beneficial to himself. That, in effect, is what the owner is trying to do here. He is in default. He failed to record the contract, failed to require bond, failed to register notice of his acceptance of the work. On the contrary, the furnisher of material recorded its lien and served the same on the owner. Plaintiff has done precisely what the law says it should do, but it did not prosecute its claim within one year of the date on which it was recorded as is required in Act 229, but which is not required in Act 262. Therefore, defendant seeks to force plaintiff to take refuge under Act 229. This, in our opinion, he cannot do.

Our attention is called to the fact that the defendant has paid the contractor the full amount of the contract price, and it is suggested that it would be a hardship on him, under the circumstances, to have to pay for the material. Our comment on this point is that if the defendant had taken advantage of the laws that are made for his protection 'he would not have to pay for this material. On June 1, 1920, according to paragraph 6 of defendant’s answer, plaintiff filed and recorded in the office of the Recorder of Mortgages of Rapides parish a sworn statement of this account and served, on or about the same date, a copy thereof on him. According to his own testimony, he had in his hands on that date practically if not quite enough funds due the contractor to take care of this bill. After receiving this notice and after his property was thus burdened with a lien, he paid the balance due on the contract to Hodge, the contractor. He could have held up this payment until Hodge paid for the material.

ON THE PLEA OF ESTOPPEL.

On December 7, 1921, the plaintiff brought suit against James Hodge, the .contractor, to recover the amount of this claim. It did not make Bodley, the owner, a party defendant but reserved its rights to proceed against him. Judgment by default was rendered against Hodge on January 3, 1922. The judgment does not reserve to plaintiff its right to pursue the owner.

Counsel cite no law in support of this plea. On the subject he says in brief: “I do not feel that there is any necessity to argue this question to any great length but simply to present to the court what I consider to be an equitable question of estoppel.”

We know of no law and no reason why plaintiff should not be permitted to pursue the defendant now, even though he has obtained judgment against the contractor.

There was judgment in the lower court rejecting plaintiff’s demands.

For the reasons assigned, it is ordered, adjudged and decreed that the judgment appealed from be reversed and avoided, and it is now, therefore, ordered, adjudged and decreed that there be judgment in favor of plaintiff, George C. Vaughan & Sons, Inc., and against defendant, Jonas Bodley, in the sum of two hundred eighty-six and 34-100 dollars, with legal interest thereon from judicial demand until paid, with recognition of plaintiff’s lien and privilege, as provided by law, upon the following described property belonging to defendant, to wit: “A certain piece or parcel of land, being lot 13 of block 32, fronting 50 feet on Mill street, thence back between parallel lines the distance of 150 feet to other property in the rear and located in the South Alexandria Land Company Addition to the city of Alexandria, Louisiana; tcigether with all the improvements thereon, rights, ways and privileges thereto appertaining.

The defendant to pay all costs.

ON APPLICATION FOR REHEARING.

REYNOLDS, J.

Defendant asks for a rehearing, and especially emphasizes three grounds as reasons why we should grant the same, to wit:

1. Was the plaintiff’s lein filed within the prescribed limits so as to' enable him to benefit by the statutes covering matters of this character?

2. Was not the plaintiff’s right of action prescribed by his failure to renew or sue upon his first lien filed in May, 1920?

3. Has the plaintiff proved the facts necessary to sustain his lien?

As to inquiry No. 1, we held in our decision that plaintiff had a right to proceed under Act 262 of 1916; and under the provisions of said act the prescription therein referred to, insofar as it applies to the owner, contracting for work to be done, does not begin to run against the claims of the furnisher of supplies until the owner files notice with the Recorder of Mortgages of his acceptance of the work.

As to question No. 2, the prescription of one year applies to the privilege provided by Act 229 of 1916 but does not apply to the privilege provided by Act 262 of 1916.

As to question No. 3, we have reread the record and find this evidence on page 21:

“By the court:
“Q. Are the items named in that statement correct and the material used in this building less items as appearing and amounting to sixty ($60.00) dollars that should have been charged to ■■ this- Coleman job ?
“A. Yes, sir.”

From this testimony of James Hodge, the party to whom the material was sold, and the other testimony in the record; we think the amount for which we allowed judgment fully proved.

Rehearing refused.


source: Caselaw Access Project

license: Public Domain

text:
    No. 2284.
    Second Circuit Appeal.
    THOMAS FRANK MILLER v. CONTINENTAL FLAT GLASS COMPANY.
    (Feb. 3, 1925, Opinion and Decree.)
    (March 2, 1925, Rehearing Denied.)

      (Syllabus by the Editor.)

    1. Louisiana Digest — Appeal—Par. 625.
    In a Workman’s Compensation case the opinion of the trial judge as to the extent of the injury, not being manifestly erroneous, is affirmed.
    (Act No. 20 of 1914. Editor’s note.)
    Appeal from First Judicial District Court of Louisiana, Parish- of Caddo, Hon. T. F. Bell, Judge.
    REYNOLDS, J.
    Action for damages under the workmen’s compensation law for $12.50 per week for four hundred weeks. Defendant denied liability alleging that plaintiff’s present condition Was due to his willful failure to use his hand as directed by the doctors. There was judgment, for the plaintiff for $12.50 per week for two hundred weeks. Defendant appealed.
    Affirmed.
    Julius T. Long,, of Shreveport, attorney for plaintiff and appellee.
    Barnette & Roberts, of Shreveport, attorneys for defendant and appellant.
   OPINION.

In this case plaintiff sues for compensation at the' rate of $12.50, per Week for four hundred weeks. Defendant admitted that plaintiff was in its employ and ‘ that ' he received, while engaged in his work, á slight injury; but denied liability on the ground that the defendant willfully . failed to take the treatment and úse his hand as directed by the doctors. There was judgment in the lower court for $12.50 per week for two hundred weeks beginning March 17, 1924, less $231.40.

Defendant’s contention that plaintiff wilfully refused to take treatment is not well founded, for while plaintiff was living in Shreveport at the time of the accident he was compelled to move to the home ‘of his wife’s people, who lived in the country. (See evidence of plaintiff), and plaintiff’s witness, R. G. Church, Jr., says (Tr. 39):

Q. Well, what did you say to him about further payment of compensation?
A. I told him if he would take the treatment of Doctor Otts that compensation would be paid every week, then the question was brought up of paying his railroad fare from in the country, here and his board while here, which I refused, the man was injured here, his home was here when he was hurt,, and it was not up to us to let him live anywhere he wanted to and us pay for his coming in for treatment and his board while here.

Under this condition, plaintiff’s failure to take treatment from Doctor Otts was not a willful refusal to do so.

The. real question presented to this court , is as to the extent of his injury. This question was gone into fully in the lower court. Plaintiff was submitted to a thorough cross-examination by learned, and skillful attorneys and to numerous physical tests in the presence of the trial judge. He was taken into the judge’s office and his hand and arm examined by a number of doctors. (Tr. 17.)

After witnessing the various physical tests and hearing the testimony of all the doctors' examined in the presence of the court,- the District Judge gave judgment in favor- of plaintiff for $12.50 per week ;for. two hundred weeks, thereby, in our opinion in effect holding that the plaintiff had suffered the loss of the use of his arm. This finding we think is supported by the testimony of Doctor G. A. Caldwell (Tr. 50) where he says:

“I do not think so, with the paralysis of the arm that he has, I do not think anything else could account for it” and (Tr. 54) where he testifies as follows: .
Q. Was it your opinion that the muscles are impaired in the entire forearm?
A. Yes, sir.
Q. In what way?
A. They are paralysed.
Q. Paralysed?
A. Yes, sir.

Under the entire evidence of the case we think that the finding of the trial judge is fully sustained.

The judgment appealed from is therefore affirmed at defendant’s cost.


author: CLAIBORNE, J.

text:
    No. 9240.
    Orleans Appeal.
    STATE EX REL. MRS. SYLVIA SHERMAN, WIDOW N. D. BANGS, v. LA SALLE REALTY CO. ET AL.,
    (February 16, 1925, Opinion and Decree.)
    (March 16, 1925, Rehearing Refused.)
    (April 29, 1925, Decree Supreme Court Writ of Certiorari and Review Refused.)

      (Syllabus by the Oourt.)

    1. Louisiana Digest, Mandamus — Par. 23; Sales — Par. 330; Taxation — Par. 318, 320.
    .Mandamus is the proper proceeding to cancel the inscription of a tax sale rescinded by redemption.
    2. Louisana Digest, Taxation — Par. 314, 319; Sales — Par. 91.
    The redemption of a tax sale should be made by authentic -act if the party redeeming it requires it.
    3. Louisiana Digest, Taxation — Par. 314, 319; Sales — Par. 91.
    The party redeeming a tax sale has the right to select the notary when he requires añ authentic ..act.

      Appeal from Civil District Court, Hon. Porter Parker, Judge.
    Relator prays for a mandamus ordering ' the defendants to erase the registry of a ' tax sale. Mandamus was made peremptory ' and defendant has appealed. .
    Judgment affirmed.
    Prowell & McBride, attorneys for plaintif and appellee.
    John R. Loomis, Theo. Cotonio, attorneys for defendant and appellant.
   CLAIBORNE, J.

Relator prays for a mandamus ordering the defendant to erase the registry of a tax sale.

She alleges that she is the owner of the property described in her petition, by a title which she exhibits; that the City of New Orleans sold said property for the taxes of 1921 to the defendant company by Act of P. D. Olivier, Notary, registered in the .Conveyance Office in Book 350, p. 432; that on April 16, 1923, she paid the defendant $322.04 for the redemption of said property; that she has presented to the defendant a notarial Act of redemption which it refused to sign; that in consequence of said refusal she is unable to have can-celled from the books of the Conveyance Office the inscription of said sale. She prays for a mandamus commanding the defendant and the Register of Conveyance to cancel the inscription of said tax sale.

m answer to this simple petition the defendant filed a five-page closely written typewritten return containing twenty-nine reasons why the relief asked by relator should not be granted. It admits the tax sale to it, the payment of the redemption money, but alleges that it delivered to the relator a receipt for the money and an authorization to the Register of Conveyance to cancel the inscription, and that the law does not require it to furnish a notarial Act or authentic evidence of the redemption; that the relator presented to it an Act of redemption' which it declined to sign for the reason that it _ contained extraneous matter.

The mandamus was made peremptory and defendant has appealed.

In the case of State ex rel. Busha vs. Register, 113 La. 93, 36 South. 900, the court decided that mandamus was the proper proceeding to cancel the inscription of a tax sale after it had been rescinded by a redemption.

The court also decided that “for the purpose of perpetuating the evidence of payment and the fact of redemption the payment should be made, by notarial act.” Botto vs. Berges, 47 La. Ann. 959, 17 South. 428.

We think this is good law and according to common practice. The Register of Conveyances testifies that redemptions of tax sales are usually made by authentic Acts.

If the defendant refused to sign the Act of redemption prepared by the plaintiff for reasons stated by him, it does not appear that he offered to sign the Act provided the objectionable parts were eliminated. Its attorney testifies that the cost of the Act of redemption was included in the statement he sent to the plaintiff, fixing the amount of redemption. “In cases where parties refuse to have the Act of redemption passed before me as Notary, we then issue this form. That is the invariable rule”. This testimony shows that the attorney for the defendant himself contemplated an authentic Act for the redemption.

In the absence of agreement to the contrary a purchaser is entitled to select the notary to pass the Act of sale, because, he pays him. C. C. 2466. For the same reason, a party redeeming a tax sale has the right to select the notary when he-requires an authentic act. Botto vs. Berges, 47 La. Ann. 959, 17 South. 428.

The judgment appealed from meets our approval' and we therefore affirm it.


author: WESTERFIELD, J.

text:
    No. 9299.
    Orleans Appeal.
    ADELE FREEMAN v. NEW ORLEANS PUBLIC SERVICE INC., Appellant.
    (February 16, 1925, Opinion and Decree.)

      (Syllabus by the Court.)

    1. Louisiana Digest — Carriers of Pas sengers and Goods — Par. 38.
    A street railway company which permits passengers to disembark or orders them to do so at a point other than the usual stopping place where the distance from the car step to the ground is some four or five inches greater than at the usual stopping place is not guilty of negligence in this regard when the evidence shows the landing place to be level ground and otherwise reasonably safe,
    (Civil Code, Art. 2315. Editor’s note.)
    Appeal from Civil District Court, Parish of Orleans, Hon. Wm. H. Byrnes, Jr., Judge.
    This is a damage suit for personal injuries.
    Judgment for plaintiff. Defendant appealed.
    Judgment reversed.
    Geo.- J. Untereiner, attorney for plaintiff and appellee.
    Dart, Kernan & Dart, attorneys for defendant and appellant.
   WESTERFIELD, J.

The plaintiff fell and was injured in stepping from a street car operated by the defendant company. She sues for damages.

It is alleged that on March 25, 1922, plaintiff was a passenger on a South Claiborne car and that when the car approached its terminus at Carrollton Ave. and' S. Claiborne Street, it stopped some distance from the usual stopping place where passengers are accustomed to alight and plaintiff and other passengers were ordered by the conductor to get off the car; that the place where plaintiff was compelled to alight was not prepared for passengers and the step of the car was unusually high from the ground and this circumstance caused her -to fall, with the result that she was injured In the manner set out in the petition. -The defendant denied all charges of negligence and imputed plaintiff’s injuries to her own carelessness.

There Was judgment below in plaintiff’s favor for Six Hundred Dollars and defendant has appealed.

The facts as shown by the record are as follows:

At the time of the accident the car in which plaintiff was a passenger was stopped about 120 feet from the terminus because of the fact that there was another ear ahead of it at the end of the line about to be switched over to. the return track.

When the car stopped the conductor announced that it had reached its destination and ordered the passengers to disembark. This is disputed by the conductor but established by a great preponderance of the evidence. The passengers filed out the front end of the car and stepped off, all escaping injury except plaintiff. The bottom step of the car was some four or five inches higher from the ground than the step would have been if the car had discharged its passengers at the usual stopping place at the end of the line but the ground itself was level. Counsel for plaintiff strenuously argued to the contrary and stated that four witnesses had testified to the effect that the cross ties upon which the tracks were laid were elevated some four or five inches above the ground level but upon examination of the record we find that the plaintiff herself is the only witness to so testify and that several other witnesses offered by plaintiff were not questioned in this Regard. On the other hand two of defendant’s' witnesses positively state that the ground was level with the cross ties, the spaces between the cross ties being filled with cinders.

It was drizzling rain at the time and dark but the headlight of the car in the switch illumined the ground to some extent and the lights in the car from which plaintiff alighted were burning.

Under the circumstances of this case did the defendant carrier fail in its duty to provide a safe landing place for its passenger, the plaintiff, is the question we are called upon to decide.

It was not .the usual landing place and a longer step was necessary in order to alight from the car, but neither circumstance constitutes negligence on defendant’s part. In Clogher vs. N. O. Railway & Light Co., 143 La. 85, 78 South. 247, the Supreme Court said:

“Were plaintiff to succeed the doctrine of the case would have to be that, for a street car company to stop its car either short of, or beyond, the regular place is negligence, unless the footing of the place where the car is stopped happens to be precisely similar to that at the regular stopping place. The practical operation of such a rule would be to necessitate the marking of the space constituting the regular stopping place, and to preclude the stopping elsewhere, unless the car company choose voluntarily to incur the risk of a lawsuit. A tardy signal for stopping would have to pass unheeded, with the consequence that many a passenger would be carried beyond his station. On days of rain and slippery tracks the car would have to approach a stopping place gingerly, with bated breath, as it were, lest it be not precise in making the stop. Perhaps such a rule would suit the car company, but certainly not the traveling public.
* * * * * *
“At the place where the car stopped the step of the car was 15% or 16 inches above the roadway accordingly as the stop was made 15 or 20 feet from the regular stopping place;' and hence all plaintiff would have had' tó do would have been to extend her foot seven inches out and step down 15% or 16 inches while holding on to a handle bar. We think such a place was reasonably safe.”

It is true that in the case at bar the plaintiff alighted after dark, whereas in the Clogher case it was daylight and that it was raining. It is also true that the plaintiff in the Clogher ease voluntarily left the car, while in this case plaintiff was ordered or requested to get out; but we are satisfied that there was enough artificial light to enable plaintiff to see what she was doing and the rain did not affect the situation since there is no claim that landing place was wet and slippery or that plaintiff slipped upon alighting from the car. It makes no difference whether a passenger voluntarily alights or is requested by the conductor to do so, for the obligation of the carrier is to provide a safe landing in either case. Of course, no reference is made to passengers jumping from moving cars or alighting when warned by the conductor of the danger in doing so.

We cannot distinguish this case in principle from the case of Clogher vs. N. O. Ry. & Light Co., heretofore referred to.

For the reasons assigned the judgment appealed from is reversed and it is now ordered that there be judgment in favor of defendant dismissing plaintiff’s demand with costs.


author: BELL, J.

text:
    No. 9351.
    Orleans Appeal.
    ELLA LONG OWENS v. SOUTH NEW ORLEANS LIGHT & TRACTION CO.
    (February 16, 1925, Opinion and Decree.)

      (Syllabus by the Court.)

    1. Louisiana Digest — Carriers of Passengers and Goods — Par. 41.
    In an action for damages for physical injuries alleged to have been caused by an unexpected movement of a passenger car while plaintiff was riding thereon, an exception of no cause of action will be maintained on appeal, where the petition does not set forth that plaintiff was a passenger or an employee or a licensee when injured on defendant’s car.

      {Additional Syllabus by the .Editor.)

    2. Louisiana Digest — Appeal—Par. 197.
    The court below decides a case on whatever point it deems material. It is the duty of the Appellate Court to revise' ■ its judgment, not the grounds on which it was rendered.
    Appeal from the Twenty-eighth Judicial District Court for the Parish of Jefferson, .Hon. Prentice E. Edrington, Judge.
    This is a damage suit for personal in juries. An exception of no cause of action was sustained and plaintiff appealed.
    Judgment affirmed.
    L. H. Gosserand, attorney for plaintiff and appellant.
    McCaleb & MeCaleb, attorneys for defendant and appellee.
   BELL, J.

The exact, material allegations of plaintiff’s petition are as follows:

“2.
“That at nine forty-five p. m., on the first day of March, 1921, your petitioner boarded car No. 1 operated by the South New Orleans Light & Traction Company, which ear was on its north-bound trip on its way to Gretna.
“3.
“Now your petitioner avers that at the Texas & Pacific crossing at the junction of Adams and Anson Streets in the Town of McDonoghville, while she was alighting from the said car, and while in the act of placing her foot upon the step of the car, the said car was started by the company’s agents in charge, and your petitioner, Ella Long Owens,, was violently thrown against the back portion of the said car.
"4.
“Now your petitioner further avers that the violent jolt which your petitioner received in being tossed against the grab-iron and the rear portion of the back platform caused internal injuries to her of ¡a permanent nature.
“5.
“Your petition further represents that at the time of the said accident, she was in a state of pregnancy, and that her' said injuries resulted in the premature birth of' her child.
“6.
“Your petitioner now avers that the said accident was the result of gross negligence and wanton recklessness on the part of the conductor and motorman in charge of the company’s car in starting the said car before your petitioner had safely alighted therefrom.
“7.
“Your petitioner further avers that the said Ella Long Owens,, petitioner herein, was confined to her bed and to her room for a period of two months, during which time .she suffered from contusions of the back, violent pains, and a nervous shock from which she has never fully recovered.
“8 and 9 (quantum of damages).
* * * *
“10.
“Petitioner further represents that the accident, which caused her injury and suffering, was due entirely to the carelessness and-gross negligence of defendant’s agents, and that your petitioners did not in any wise, by fault or carelessness, contribute thereto.”

The defendant filed exceptions to the foregoing petition on the grounds that the allegations in said petition were vague, uncertain and indefinite, and that the petition stated no right or cause of action.

After special hearing on the foregoing exceptions, held in the trial court, the said exceptions were overruled, and defendant, answering the plaintiff’s petition, specially reserving all benefits under the exceptions formerly pleaded, denied each paragraphical allegation in plaintiff’s petition.

Our appreciation of the law of this case as applied to the peremptory exception of no cause of action, renders unnecessary any consideration by this court of the evidence adduced at the trial upon the merits. It may be-here noted, however, that examination óf the entire record before us does not disclose any allegations or any proof of the relations actually existing between plaintiff" and defendant at the time of the accident. None of the evidence adduced at the trial of this case upon its merits discloses that defendant was either a passenger, employee or licensee, or that she was invited to' ride on the car or had a right to be thereon when injured, nor is there any proof that she was not a trespasser. There is also no proof which would show that even though a trespasser, she was wilfully or wantonly injured by the defendant.

The trial judge has given no reasons for overruling the exceptions herein pleaded, but we find in the record the following reasons for the judgment which dismissed plaintiff’s suit on the merits and after trial, to-wit:

“Plaintiff having failed to allege and prove the relationship of passenger and carrier between herself and the defendant company; and considering the jurisprudence of this State as enunciated in Mills vs. St. Tammany & N. O. Rail & Ferry Co., 139 La. 285, 71 South. 511; Lynch vs. American Brewing Co., 127 La. 848, 54 South. 123; Morris vs. Great Southern Lumber Co., 132 La. 306, 61 South. 383; it is ordered, adjudged and decreed that there be judgment in favor of defendant and against plaintiff, dismissing plaintiff’s demand with costs.”

We have not been referred to, nor have we been able to find, any authorities more applicable to the ease at bar than is that of Mills vs. St. Tammany & N. O. Ry. & Ferry Co., above cited.

We are of the opinion that the present suit should have been dismissed upon the exception of no cause of action, which we now maintain.

It was held in Kenner vs. His Creditors, 3 N. S. 51, and approved in State vs. Cannbn, 44 La. Ann. 738, 11 South. 86.

“The'court below decides a case on whatever point it deems material. It is our, duty to revise its judgment, not the grounds bn which it was rendered.”

Without passing upon the merits of this case as tried in the Court below,

It is ordered, adjudged and decreed that the judgment appealed from be reversed and set aside and it is now ordered that the exception of no cause of action be maintained and that this suit be dismissed at plaintiff’s costs in both courts.


text:
    No. 9458.
    Orleans Appeal.
    WM. SHIELDS ET AL. v. MRS. VIRGINIA ANDERSON MICHEL ET AL., Appellants.
    (February 16, 1925, Opinion and Decree.)
    (March 2, 1925, Rehearing Refused.)

      (Syllabus by the Court.)

    (I. Louisiana Digest, Prescription — Par. 188.
    In a suit for a partition and for an accounting, the demand for an accounting will not be prescribed by five years, • when, within the five years, the demand for partition has been prosecuted to • judgment.
    (Act No. 107 of 1898, Editor’s note).
    2. Louisiana Digest, Taxation — Par. 404.
    The acceptance of the community by the surviving spouse, is not equivalent to the acceptance of the Succession of the deceased and does not bind the survivor to the payment of the debts of the deceased spouse.
    3. Louisiana Digest, Successions — Par. 53.
    Heirs may recover money the property of a deceased in the hands of a third per- ■ son whenever they can identify it.
    Appeal from Civil District Court, Hon. E. K. Skinner, Judge.
    Plaintiffs sued the defendants for a partition and for an accounting. Judgment for plaintiffs against defendant, John Michel: The defendant, John Michel, appealed.
    Judgment amended and affirmed.

      John J. Wingrave, attorney for plaintiff and appellant.
    A. G-. Williams, I. F. Williams, attorneys for defendant and appellee.
   CLAIBORNE, J.

Plaintiffs sued the defendants for a partition and for an accounting.

Widow Kennedy acquired as surviving widow in community the ownership o’f one-half and the usufruct of the other half of the property No. 1226 Frenchmen Street.

By an Act under private signature dated February 21, 1908, Widow Kennedy sold to M. Virginia Anderson, her granddaughter and defendant herein, all her rights in said property.

The property became therefore the separate paraphernal property of the latter.

On February 29, 1908, Virginia Anderson married John Michel.

On May 25, 1909, her grandmother, Widow Kennedy, died, but Virginia Anderson Michel continued to occupy the property No. 1226 Frenchmen Street. 'She insured the property in her own name for the term of three years commencing April 14, 1914, for $1,000.

On June 12, 1914, the property was destroyed by fire, and Virginia Anderson Michel collected $800 on the policy.

On May 4, 1917, the plaintiffs instituted the present suit. They alleged that they were the descendants and heirs of William Kennedy and owners in common of the property No. 1226 Frenchmen Street; that Virginia Anderson Michel was heir for l-60th of said property and owner for 30-60ths; that said property was insured; that it was destroyed by fire and that Virginia Anderson Michel collected the insurance. They prayed for a partition of the property and for their share in the insurance money.

Virginia Anderson Michel answered claiming to be the sole owner of the property 1226 Frenchmen Street; that she had insured the property; that it was destroyed by fire, “and that the loss was adjusted at the sum of Eight Hundred Dollars which this respondent collected as owner.”

On January 25, 1919, Virginia Anderson Michel d?ed intestate.

She left neither ascendants nor descendants. Her husband opened her succession. He alleged that all the property she left was community and he prayed to be recognized as her surviving spouse in community and as such entitled to all the property left by her. A judgment was rendered accordingly on February 5, 1919, putting him in possession of the property No. 1226 Frenchmen Street and of a certain sum of $790 on deposit in the City Bank and Trust Co. in the name of Mary Virginia Anderson Michel.

On June 22, 1920, the plaintiffs .proceeded to 'obtain a judgment of partition of the property 1226 Frenchmen Street, “and that all other matters be deferred' for later decision and settlement”.

On July 3, 1923, John Michel, surviving husband of Mary Virginia Anderson was made a party defendant.

He pleaded the prescription of five years under Act 107 of 1898.

The trial judge was of the opinion, and we agree with him, that the prosecution of that part of the demand concerning the partition on June 22, 1920, with the reservation of “other matters” for later decision and settlement constituted such steps in the contemplation of the act as negatived the presumption of abandonment of the demand.

For answer, John Michel alleged “that the property sought to be partitioned and accounted for was the separate and paraphernal property of” his wife, and that all the other property left by her was part of the community existing between them.

The trial judge gave the following reasons for judgment:

“The evidence shows the deposit in bank of that sum ($790) by the wife as the settlement by the insurance company of its liability under the policy. The evidence, which is not contradicted, satisfies me that it is the identical money resulting from the paraphernal property, and that plaintiffs are entitled to judgment therefor.”

Accordingly there was judgment in favor of the plaintiffs and against the defendant, John Michel, for $790 with legal interest from November 1, 1914, till paid.

Prom this judgment John Michel' has appealed.

John Michel cannot be made liable as •an heir of his wife. A surviving partner in community does not acquire an interest in community property as an heir, under Civil Code 915, 916, 2400, Succession Marsal, 118 La. 212; 42 South. 778.

Nor under C. C. 988, 1013.

He accepted only the community of acquets and gains. He alleged and believed that all the property left by his wife was community and took possession of the same under that belief.

The only question therefore for solution as stated by plaintiffs’ counsel in his brief, is whether John Michel should account for the insurance money collected by her and found in her Succession.

There is no doubt that the insurance was upon the separate property of Virginia Anderson Michel, and that the amount collected on the policy was separate property to which Michel had no right. But the question arises, was that money found in Virginia Anderson Michel’s succession?

The fire occurred in 1914. In January, 1919, Virginia died. There was deposited to her credit at that time in the City Bank $700. There is nothing to show at what time Virginia deposited that amount, nor whether it was deposited at one time, nor upon several occasions. The bank pass book was in Virginia’s possession during her lifetime, and after her death in the possesison of John Michel. In his answer, sworn to by him, he avers:

“Defendant further avers that during the life of Jane Trelford Kennedy, between 1900 and 1909, Virginia Anderson, grandchild of Jane Trelford Kennedy, and wife of defendant, worked out, took in sewing during the evening and night in order to earn sufficient funds to provide and supr port the aged Jane Trelford Kennedy and etc.”

There is no evidence that her financial condition improved after Widow Kennedy’s death, nor that Michel assisted her in making deposits in bank. If he did, that knowledge rested peculiarly within him and he has not shown it. Bastrop State Bank vs. Levy, 106 La. 591; 31 South. 164. In the absence of any other source, the' conclusion is irresistible that this sum of $700 was the proceeds of the policy of insurance. But it is only $700 and not $790 as decided by the trial judge. Heirs may recover money the property of the deceased in the hands of a third person whenever they can identify it. 104 U. S. 68; Succession of Boisblanc, 32 La. Ann. 109; Young vs. Teutonia Bank and Trust Co., 134 La. 879; 64 South. 806; Stetson, Avery & Co., vs. Gurney, 17 La. 162; Beatty vs. McCleod, 11 La. Ann. 76; Bruning vs. New Orleans Canal and Banking Co., 12 La. Ann. 541; Fitzpatrick vs. Letten, 123 La. 749; 49 South. 494; 2 C. J. 881, S. 566; Young vs. Teutonia Bank, and Trust Co., 135 La. 65; 64 South. 983. Michel owes interest only from the date he was put in possession of the money, February 5, 1919.

It is therefore ordered that the judgment appealed from be reduced from Seven Hundred and Ninety Dollars to Seven Hundred Dollars with five per cent, per annum interest from February 5, 1919, till paid; the costs of appeal to be paid by the plaintiffs and the costs of the District Court to be paid by the defendant, John Michel, and as-thus amended that the judgment be af-. firmed.


text:
    No. 9653.
    Orleans Appeal.
    JOHN C. CLAVERIE v. WILLIAM A. LORENZ ET AL.
    (February 16, 1925, Opinion and Decree.)

      (Syllabus by the Court.)

    1. Louisiana Digest — Damages—Par. 12, 13 14, 15.
    Punitive or exemplary damages. are not recoverable under the jurisprudence of this State.
    (Civil Code, Art. 2315. Editor’s note.)
    Trench'ard vs. Central Laundry Co., 154 La. 1003, 98 South. 558; and Mundy vs. Phillips et al., 157 La. 445, 102 South,. 519.
    2. Louisiana Digest — Courts—Par. 119.
    Where-^-as against defendants charged with illegal removal and detention of property, an action ex clelieto, coupled with sequestration proceedings, is filed in the Civil District Court, is brought by one of the members of a partnership, in his own name and for recovery on his own behalf of punitory damages, and also for sequestration and recovery on his own behalf of property declared in the petition to be that of the partnership and valued at $338.85, and se- . questration of certain other property claimed as his own, but valued only at $36.55 — exceptions of no cause of action and of want of jurisdiction ratione materiae, are properly maintained.
    Appeal from. Civil District Court for the Parish of Orleans, Division “E”, Hon. Wynne G.' Rogers, Judge.
    This is a sequestration suit to recover punitory damages for unlawful entry and removal of goods. Exceptions of no cause of action and want of jurisdiction - were sustained and .plaintiff appealed. '' >
    Judgment affirmed.
    J. B. Rosser, attorney for plaintiff and appellant.
    J. D. Dresner, attorney for defendant and appellee.
   BELL, J.

Plaintiff sues defendants herein for punitory damages which he claims to have suffered because of the unlawful entry of defendants upon his property and-because of the removal of them of certain movables, consisting of property belonging to a partnership of which the plaintiff and one of the defendants are members, which' property is valued at $338.55, and because of the removal of other property belonging only to plaintiff, and valued by him at the sum of $36.55. The suit is coupled with sequestration proceedings, the plaintiff praying therein that both the partnership property and his own property be seized and ultimately, by judgment of court, returned to him only. Paragraph 6 of plaintiff’s petition reads as follows:

“That petitioner is entitled to punitory damages from the said William A. Lorenz and said William Lorenz, as joint tort feasors, in solido, for their illegal act in breaking into, entering and trespassing upon and taking from petitioner’s said premises his said property, as well as the property of the said firm, of which he was legally in possession, in the sum of $5,000.00.” •

The prayer of the petition is for damages in the sum of $5,000.00 and for a writ of sequestration, directed according to law, sequestering the movable property described in the petition, and for the perpetuation of the writ of sequestration, and for the restoring to plaintiff of all of said described movable property, and for all costs, and general and equitable relief.

The defendants have excepted to the petition on the ground that same discloses no cause of action, that the court is without urisdiction of the subject matter, that there is a misjoinder of parties and of causes of action, and that the court is without jurisdiction ratione ntateriae.

After due trial of the exceptions herein filed, the trial court rendered the following judgment:

.“For the reasons orally assigned, the court, considering that the law and evidence justifies this judgment,
“It is ordered, adjudged and decreed that the exceptions of no cause of action herein filed by defendants, William A. Lo, renz, Sr., and William A. Lorenz, Jr., to plaintiff's claim for the return of partnership property valued at $338.85 be maintained, and also the exception of want of jurisdiction ratione materiae to the claim for the return of the property valued at $36.55, belonging to petitioner, and, accordingly, the demand of the plaintiff, John C. Claverie, be dismissed at his costs.”

The claim of plaintiff in these proceedings for recovery of punitory damages is properly met by the- exception of no cause of action, herein filed. It has been the jurisprudence of this State since the ruling in Vincent et ux. vs. Morgan’s L. & T. R. R. & S. S. Co., 140 La. 1027, 74 South. 541; (March 12, 1917), that punitory damages in a civil action cannot be recovered. Later decisions to this effect are found in Vincent vs. Morgan’s Louisiana & T. R. & S. S. Co., 140 La. 1038, 74 South. 541; Dunson vs. Baker, 144 La. 167, 80 South. 238; Brian vs. Harper, 144 La. 585, 80 South. 885; Mente & Co. vs. Kaplan, 146 La. 678. The most recent pronouncement of this doctrine is found in the case of Janssen Catering Co. vs. Abadie, 157 La. 357, 102 South. 428. (See also Metcalf vs. Bardier, 7943 Orl. App.; writ denied April 5, 1921.)

The plaintiff has obtained in his own name writs of sequestration of property which he alleges to be that of a partnership of which he is a member. If the defendants, as alleged in the petition, have seized property belonging to the partnership, only the partnership or its members in behalf of the partnership, could have instituted these sequestration proceedings.

The relief herein sought by plaintiff through writs of sequestration, the issuance of which are invoked for the protection of his own property, which he declares to be valued only in the amount of $36.55, cannot be granted him in the Civil District Court, the amount involved being less than he jurisdictional amount of that court. The exception, therefore, of want of jurisdiction ratione materiae has been properly maintained.

We find no error in the judgment of the District Court and same should be affirmed.

It is, therefore, ordered that the judgment appealed from herein be and the same is hereby affirmed, at plaintiff’s costs in both courts.


text:
    No. 9698.
    Orleans Appeal.
    UNITED MOTOR CAR CO., INC., v. EDWARD T. DRUMM, Appellant.
    (February 16, 1925; Opinion and Decree.)
    (Rehearing Granted.)

      (Syllabus by the Court.)

    1. Louisiana Digest — Executory Process — Par. 56..
    Where an order of seizure and sale is enjoined upon one of the grounds mentioned in C. P. 739, other causes for injunction may be cumulated but only such grounds will be considered as are mentioned in C. P. 739, unless bond is furnished by plaintiff in injunction, because an injunction restraining executory process can only issue without bond for one of the reasons mentioned in the article referred to.
    Appeal from Civil District Court for the Parish of Orleans, Hon. Percy Saint, Judge presiding.
    This is an injunction suit enjoining ex-ecutory process. The injunction was dissolved with attorney’s fees as damages.
    Mandamus is issued herein commanding respondent judge to grant relator a sus pensive appeal.
    M. R. DeReyna, Carbajal & Gaudin, attorneys for plaintiff and appellee.
    Puneky & Barrios, attorneys for defendant and appellant.
   WESTERFIELD, J.

Edward T. Drumm, whom we shall hereafter call plaintiff, appeals from a judgment dissolving an injunction obtained by him without bond under Art. 739 C. P., restraining executory process sued out by the United Motor Car Co., Inc., which we shall hereafter call defendant.

The grounds upon which the injunction was applied for were that the notes sued on were obtained by fraud; that “the chattel mortgage was not executed in conformity with law because there is a want of authentic evidence, especially as relates to the signatures of the subscribing witnesses thereto^ affixed” and that the mortgage notes failed of consideration.

On the trial of the rule, to dissolve the allegation of fraud whs not sustained by the evidence.

Counsel for defendant insists that no other ground urged by plaintiff can be considered for the reason that fraud in obtaining the mortgage is the only cause referred to by plaintiff which is mentioned in C. P. 739 and that an order of seizure and sale can only be restrained for one of the reasons given in the said Article of the Code. He cites Dupre vs. Anderson, 45 La. Ann. 1134, 13 South. 743. This case clearly sustains counsel’s contention, but it has been expressly overruled by the case of Taft vs. Donnes, 105 La. 699, 30 South. 112; also cited by defendant’s counsel. However, Taft vs. Donnes, in deciding that an order of seizure and sale might be arrested upon grounds other than those enumerated in C. P. 739, also held that where other cause for injunction are coupled with one or more of the causes mentioned- in that article, bond must be given by plaintiff in injunction, before such -other causes can be- considered, since it is only for the- reasons mentioned in that article that injunctions restraining executory process can issue without bond-:

“In Calhoun vs. Mechanics and Traders Bank, 30 La. Ann. 785, Egan, J., in a concurring opinion, said: ‘The enumeration of causes for injunction in the article’ (referring to Art. 739 C. P.) ‘refers, however, only to the injunction without bond, provided for in the preceding Article 438’, (738 being intended) ‘and by no means narrows or restricts the general provisions of the law authorizing any injunction for any legal cause under that head in the Code of Practice’.”
“In Berens vs. Executor of Boutte, 31 La. Ann. 113, Manning, C. J., referring to the grounds for injunction as provided in said Article 739, used this language, to-wit: ‘If the debtor seeks to arrest the sale of his property for one or more of the specified reasons, upon alleging which, under oath, the judge will not require security,, he must .confine himself to those reasons if he wishes to avail himself of that privilege. If he prefers to strengthen his claim to relief by adding other reasons, there can be no objection to this cumulation of grounds for injunction, but he must give 'bond and surety as required under other provisions of the law regulating the issuing .of those writs.’ And the doctrine as enunciated and recognized in the cases thus 'cited, has been accepted and acted on in the following, and, probably, many other cases. Barrow vs. Cazeaux, 5 La. 75; Greenwall vs. Roberts, 7 La. 65; Jenkins vs. Felton, 9 R. 200; Chambliss vs. Atchison, 2 La. Ann. 491; Brooks vs. Walker, 3 La. Ann. 150; State ex rel. Gay vs. Judge, 27 La. Ann. 213; Walker vs. Cucullu, 15 La. Ann. 689; Cughliehmi vs. Geismar, 46 La. Ann. 280, 14 South. 501; and Same vs. Same, 47 La. Ann. 147, 16 South. 742.”

In the case before us, no bond was given by plaintiff and w'e find no evidence to sustain the injunction upon the ground of fraud. The other grounds urged cannot be considered, consequently, the judgment appealed from must 'be'' and it is affirmed.


text:
    No. 9691.
    Orleans Appeal.
    WILKIN HALE STATE BANK, Appellant, v. A. S. TUCKER, ET AL.
    (February 16, 1925, Opinion and Decree.)
    (March 16, 1925, Rehearing Refused.)

      (Syllabus by the Court.)

    1. Louisiana Digest, Appeal — Par. 736.
    When by judgment of'the Supreme Court a case is remanded to the District Court for trial of specified issues, no other issues can be examined by the District Court.
    2. Louisiana Digest, Executors and Administrators — Par. 395.
    The liquidator of a corporation in another State has authority to receive payment of a note due by a resident of this State.
    3. Louisiana Digest, Corporations — Par. 300; Executors and Administrators— Par 394.
    In the absence of. creditors in this State the courts of this State may recognize the right of a liquidator appointed in another State to sue in the courts of this State for the payment of a note due to the insolvent.
    Appeal from Civil District Court, Hon. Sam LeBlanc, Judge.
    This is a suit to collect promissory notes.
    Judgment for ' defendant. Plaintiff • appealed.
    Judgment reversed.
    Merrick & Schwarz, Morris B. Redmond, attorneys for plaintiff and appellant.
    Miller, Miller & Fletchinger, attorneys for defendant and appellee.
   CLAIBORNE, J.

The odyssey of this protracted litigation, if not edifying, is instructive. The narration of it is as follows : ,

On February 24, 1917, the defendants, A. S. Tucker and Joseph St. Mary, made three promissory notes of $500 each, dated Oklahoma City, payable on August 24, September 24, and October 24, 1917; with ten per cent per annum interest from maturity till paid, according to the laws of the State of Oklahoma, and $25 for attorney’s fees on each of said notes, all payable to the order of Pruiett, Day, and Sniggs, of Oklahoma.

The notes were endorsed “Pay to the order of Wilkins Hale State Bank”, signed “Pruiett’ Day, and Sniggs by Norman Pruiett”.

The plaintiff acquired said notes as col-laterals from Norman Pruiett before their maturity. The notes were not paid at maturity. •

On April 1, 1918, the plaintiff filed suit against the makers of said notes, defendants herein, in the Civil District Court for the Parish of Orleans.

The defendant, St. Mary, admitted signing the notes but denied any liability for the follownig reasons:

He averred that all of said three notes had originally been delivered to Pruiett, Day, and Sniggs, a firm of lawyers at Oklahoma City, under the following circumstances: The defendant, St. Mary’s, brother had been charged in said State with an infraction of the criminal laws of the State; that A. S. Tucker, authorized by .the defendant, St. Mary., made a contract with said lawyers to render all legal services necessary in the defense of the accused in all the courts and to defray all the expenses of said defense, and that Pruiett was to give his personal attention to the case; that the consideration of said contract was $2,500, whereof $1,000 were paid by sight draft, and the remainder in the three notes hereinabove described; that several days prior to the trial 'of the case defendant was requested to make advances in money said by Pruiett to be necessary to be used in the defense of the ease; that he advanced $600, and later, on June 6, 1917, made a further advance of $935.55, aggregating $1,535.00; that defendant did not require the production of the notes for the purpose or having a proper credit indorsed thereon and which he had thus overpaid to the extent of $35; that the negotiation of said notes, if really made, was a fraud upon the defendant inasmuch as said notes had heen paid; that therefore defendant specially denies “that plaintiff is a holder in due course of said notes”. Defendant prayed for trial by jury.

The defendant, Tucker, admitted that he signed the notes sued on, but denied any liability thereon, and adopted in his own behalf the special defenses urged by his co-defendant, Joseph St. Mary; and he also prayed for trial hy jury.

The plaintiff issued a commission to take the testimony of the three attorneys, Pruiett, Day, and Sniggs, and of R. H. Wilkin and John M. Hale, Vice-Presidents of plaintiff bank, and J. E. Thurmond. The commission was executed, returned, and filed in the record, but for some reason the interrogatories and answers of Pruiett, Day, and Sniggs were not offered in evidence.

The plaintiff offered in evidence the three notes sued on, and they were introduced and filed in evidence over defendant’s objection “that there is no evidence to prove the endorsement of the payee on the notes.”

There was a verdict and judgment in favor of plaintiff bank and against the two defendants in solido on February 2, 1920.

After an ineffectual application for a new trial both defendants appealed to this court.

Their defense was: 1st, that there was no proof of the indorsement of the three notes by the payees, Pruiett, Day, and Sniggs; 2nd, that the three notes were pledged by Pruiett to secure his individual indebtedness to the plaintiff which he had no right to do; and 3rd, that there was no proof of his authority to act as he had done.

On November 22, 1920, this court affirmed the judgment under No. 7872.

This court held that it could take cognizance of the interrogatories and answers of the three attorneys, although not specifically offered in evidence, and that their testimony established that Pruiett had endorsed the three notes and pledged them with their knowledge, consent, and approval.

From this judgment the defendants obtained a writ of review from the Supreme Court.

On April 4, 1921, the Supreme Court decided that the Court of Appeal erred in considering the depositions which had not been offered in evidence, and reversed its judgment and remanded the case to the Court of Appeal. Wilkin-Hale State Bank vs. Tucker, 148 La. 980; 88 South. 239.

On October 31, 1921, this court came to the conclusion that the plaintiff had come in good faith in possession of the three notes sued on, on klarch 12, 1917, before their maturity, as a pledge by Pruiett to secure a personal loan to himself, and that no subsequent payments made by the defendants to Pruiett, Day, and Sniggs could affect plaintiff’s rights. But inasmuch as the Supreme Court had reversed the judgment upon the ground that the evidence upon which this court had acted had not been offered in evidence and should not have been considered, this court “remanded the case to the court below for- a new trial to receive evidence to show the authority of Pruiett. From this decision a rehearing was granted.

On February 26, 1923, this court decided that the signature of Pruiett made proof of itself and did not require any evidence and again affirmed the judgment of the District Court. A new trial was refused.

The defendants took this' judgment again to the Supreme Court by writ of error.

By a decree rendered April 17, 1922, the Supreme Court reversed the Court of Appeal and rendered judgment rejecting plaintiff’s demand.

On a rehearing the Supreme Court remanded the case to the Civil District Court to receive evidence on the question whether Moman Prueitt had authority to indorse and negotiate the notes in his firm’s .name, and for a new trial on that issue. WilkinHale State Bank vs. Tucker, 153 La. 47; 95 South. 396.

The case was tried a second time before the District Court and a jury on April 10, 1924, and a verdict and judgment were rendered against the plaintiff. It has appealed, and the case is now before us for the fourth time.

On May 7, 1923, Joe H.‘Strain, styling himself Bank Commissioner for the State of Oklahoma, by motion, represented to the court that the plaintiff bank was in liquidation and that in his official capacity he had taken possession of the books and assets of the bank, and asked to be made a party plaintiff in the suit. He annexed to his motion a certificate of the Governor of Oklahoma that he (Strain) was such Bank Commissioner. In answer to interrogatories Pruiett, Day, and Sniggs also state that the plaintiff bank is in liquidation and they recite Sec. 4167 of the Revised Statutes of Oklahoma giving the Commissioner authority to collect the assets of the bank.

The defendants objected to this answer on the ground that to the extent the witness assumes to show that the Wilkin Hale State Bank is in course of liquidation through a Bank Commissioner of Oklahoma, his statement is hearsay and is not the best evidence, in- fact, is no evidence at all. Upon this objection the court entered the following order; “The objection is sustained inasmuch as the court considers that there is no proper showing made by Joseph H. Strain, who appeared in this case as one of the parties plaintiff, and the court, therefore, -of its own motion, revokes and rescinds the order heretofore granted making him a party and will now order the case to proceed to trial with the original plaintiff.”

Without passing upon the correctness of this order we shall merely say that it does not affect the validity of the judgment which was rendered in the case. If there is no proof that the plaintiff bank has gone in liquidation and if the bank has not failed, then the bank retains its standing in court. If, on the other hand, the bank is in liquidation the proof is of record that the Bank Examiner is the proper person to administer its affairs, and that Strain is such Examiner. No ruling in the case could destroy the fact that Strain made himself a party plaintiff.

The objection to the right of the Bank Commissioner to collect the assets of the bank in this State are answered by the following cases: Gravillon vs. Richard’s Ex’r, 13 La. 298; Mourain vs. Poydras, 6 La. Ann. 151; Succession of Cordeviolle, 24 La. Ann. 319; Succession of Gaines, 46 La. Ann. 252; 14 South. 602; Thorman vs. Broderick, 52 La. Ann. 1298; 27 South. 735.

For the purposes of the last trial the plaintiff issued a commission to take anew the testimony of Prueitt, Day, and Sniggs, concerning the endorsement and pledge of the three notes in suit. They all testify that Prueitt was authorized to make the endorsement and pledge. Their testimony on this last occasion fully corroborates .their testimony previously given, and meets the purpose for which the. Supreme Court remanded the case: “To receive evidence on the question whether Norman Prueitt had authority to endorse and negotiate the notes in his firm’s name’,’ and fully establishes that authority.

These were the only questions to be investigated under the last judgment of the Supreme Court of April 19. Burbank vs. Harris, 30 La. Ann. 487; Boisse vs. Dickson, 32 La. Ann. 1150.

It is therefore ordered that the verdict and judgment appealed from be avoided and set aside and it is now ordered that there be judgment condemning the defendants, A. S. Tucker and Joseph St. Mary in solido to pay to the plaintiff, the Wilkin Hale State Bank, Joe H. Strain, Bank Commissioner, the sum of Fifteen Hundred Dollars with ten per cent per annum interest on Five Hundred Dollars from August 24, 1917; on Five Hundred Dollars from September 24, 1917, and on Five Hundred Dollars from October 24, 1917, until paid, and Seventy-five Dollars attorney’s fees and all costs of this suit.


text:
    No. 9692.
    Orleans Appeal.
    ADAM LUTZ v. TOYE BROS. AUTO & TAXICAB COMPANY, INC.
    (February 16, 1925, Opinion and Decree.)

      (Syllabus by the Court.)

    1. Louisiana Digest — Appeal—Par. 625, 636 637.
    In a judgment for damages in favor of plaintiff in a physical injury suit, wherfe the defendant admits the accident, and when the evidence on material issues as to the nature of the injury is conflicting, and where the quan- ■ turn of damages is uncertain, an appellate court is not prepared to hold that the judgment is'clearly wrong and will affirm the findings of the trial court as to the nature of the injury and quantum allowed.
    (Civil Code, Art. 2315. Editor’s note.
    McDonald vs. Texas & P. Ry. Co., 141 La. 732, 75 South. 663.
    • Appeal from the Twenty-eighth Judicial District Court, Parish of Jefferson, Hon. Prentice E. Edriñgton, Judge.
    This is a damage suit for physical injuries.
    There was judgment for plaintiff and defendant appealed.
    Judgment affirmed.
    F. A. Middleton, C. J. Larkin, Jr., attorneys for plaintiff and appellee.
    J. E. Fleury, Leslie Beard, attorneys for defendant and appellant.
   BELL, J.

Plaintiff sues the defendant for $5,000.00 damages for physical injuries sustained by him as a result of the defendant’s taxicab having run into him while he was standing on a roadway at the Jefferson Race Track in the City of New Orleans.

It is alleged in the petition that as a re-suit of the accident, plaintiff was struck in the back, right side, and leg, and suffered one complete inguinal hernia on the left side, also contusions of back, right leg and ankle, and other injuries about and near the place of the hernia; that he was taken to the Hotel Dieu, where he was operated on for the hernia, and remained in that institution for a period of twelve days; that, after leaving the- hospital, he was confined to his room for an additional fifteen days, and that as a further result of the accident, he is unable to perform manual labor, his only means of livelihood, and that he will suffer pain and inconvenience and loss of strength all of his life because of the injuries inflicted upon him. He itemized his damages as follows:

For medical services..........................$ 500.00
For medicines ______________________________________ 25.00
For board and lodging, including ambulance service, at Hotel Dieu 60.25
For loss of time from his work, for a period of six months.................... 600.00
For mental pain and anguish, and physical suffering ______ 3,824.75
Total ...........................................$5,000.00

It is further alleged that plaintiff was required in his employment as a director of traffic at. the race track, to assist in directing the movement of automobiles to and from the main entrance gate of the race track; that, in the performance of this duty, he was required to move about the main public road leading to said entrance gate, and was so engaged at the time of the accident, when suddenly and without warning, the defendant’s taxicab rushed out of the parking space assigned for taxicabs and ran into petitioner, striking him in the 'back, right side and leg; that the operator of defendant’s taxicab well knew that petitioner was ' employed to direct traffic and that his business required him to be- at the place that he was, and that the said employee or chauffeur driving said taxicab, knowingly and wantonly and intentionally ran into and injured plaintiff.

Defendant answers by admitting that the accident occurred at the time and place alleged, but denies generally other allegations of plaintiff’s petition, and particularly denies that, plaintiff received the injuries complained of or that he has suffered from the accident the results enumerated. It is further denied in the answer that the accident occurred in the manner alleged or that it Was due to the defendant’s fault or negligence. The answer concludes with the special plea of Contributory negligence charged against the plaintiff.

It appears from the evidence that there were four eye witnesses to the accident, the chauffeur of the taxicab and three other witnesses, employees engaged in service somewhat similar to the plaintiff. By a preponderance of evidence it is well proven that the accident occurred substantially as alleged in the petition, and as established by the record; that on the date of the accident, immediately after the races at the Jefferson Track had terminated, plaintiff, in the performance of his duty, was standing-near the covered shed of the I. C. Railroad, between it and the grandstand of the Jefferson Track, some distance away; that the parking space for taxicabs was to the left of the I. C. Railroad covered way, and that just before the accident plaintiff had his back to defendant’s taxicab, watching the traffic going at right angles to the aforesaid shed; that, while in this position, the taxicab in question moved out of its parking space suddenly, and while the plaintiff, with his back to said cab, was some 8 to 12 feet from it. This distance is admitted by the chauffeur of the taxicab, and the plaintiff alleges that ‘he had not signalled to any of the taxicabs to go forward. The chauffeur denies that he received any signal from Lutz to stop or stand in the parking place; but he does not undertake to say that any signal had been given to him to start, nor does he establish any ■ reason for having moved, other than his attempt to get the passengers out of the race track grounds as fast as possible. There is no doubt, however, that the car was not going at a rapid, rate of speed, nor had it moved for any great distance, but the fact remains that it bore down upon plaintiff while plaintiff’s back was turned to the car, and that it struck plaintiff in the back, knocking him over the bumper of the taxicab and against the radiator thereof. There is conflicting evidence as to whether the taxicab came to an immediate stop. The - chauffeur states that he checked his car within six inches. Another witness says that the plaintiff was carried some fifteen feet after he was struck. The evidence shows that the chauffeur of defendant’s car was entirely familiar with the method in which traffic was handled at the track, having been in the service of the company for many months, and particularly doing service at that locality. We can find no éxtenuating circumstances which would relieve the defendant from liability for the palpable negligence shown in this case. We are also convinced that the plaintiff was in no m.anner guilty of negligence, but was performing his duties in the manner and at the place where he had a right to be. It is proper to also hold that the mere fact that plaintiff’s back was to the taxicab in question, should have caused the driver thereof to be particularly cautious in attempting to move out of a space, against which the traffic director had at the moment turned his back.

There remains, therefore, but two questions to be determined: First, the extent of the damage, and, second, the reasonableness of the quantum of damages allowed by the trial court.

We find that all of the physical injuries sustained by plaintiff are positively proven, except as to the most serious injury which plaintiff alleges he sustained, in the nature of an inguinal hernia on the left side. It is definitely established that the hernia existed after the accident, and that the operation performed upon the plaintiff after the accident was confined to the correction of this trouble. The first doctor attending the plaintiff is shown to have given him relief in regard to the contusions on his legs and back, and that shortly after plaintiff was in the hospital he suffered such intense pain and swelling in the left testicle and in the dorsal region, that he requested other doctors and surgeons to be called in. Dr. King, who appears to have performed the operation for the hernia, says that it' was but a plain case of hernit, and he, as well as Dr. Odom, the first physician who attended plaintiff, and also Dr. Gessner, called as an expert on behalf of defendant, agree that it is not improbable that the accident could have caused the injury. None of these physicians or surgeons will state positively, however, that the hernia was not fully developed to the point of necessity for operation as a result of the accident. Dr. Gessner is of the opinion that it is impossible that a blow would be the cause of the hernia, and stated further, as his opinion, that it is possible that the hernia was almost protruding and that the blow was the finishing touch to bring it out where it could be seen. He states that a hernia is usually of slow formation, and that no one strain will produce it, explaining that other internal developments must occur before the hernia or rupture itself is produced. Dr. Odom, the first physician attending the plaintiff, testifies that from symptoms and the examination made, it is his opinion that the development of the hernia was caused by the blow received in the accident; that he, as the'family physician, had seen plaintiff several times prior to the accident, and is of the belief that if the hernia was developed on those occasions, that plaintiff would have known of its presence. We quote in part from Dr. King’s testimony;

“Q. How would you account for that hernia appearing simultaneously with the accident, or immediately, two days thereafter, in the absence of any previous trouble?
“A. Just as I told you a minute ago. If the hernia sac was part of the way through that canal — that canal is about two inches long. If the sac was part of the way through, then that type of injury, or an injury of that type, could finish the job, so to speak.
“Q. There might be a weakness there that might last a year?
“A. Certainly.
“Q. And an accident of this kind would bring the hernia to what you might call a head?
“A. Yes.
“Q. Isn’t that true?
“A. That could be done.
“Q. Let me ask you this. If you found that condition, the condition which I have just explained to you, that a man was theretobefore, apparently, as far as you know, perfectly healthy, and he was injured in that manner, taken to his home and put to bed, and in two days a hernia appeared to such an extent as to require an operation, what would your diagnosis as to how that hernia had occurred at that particular time?
“A. I don’t know that I could come to a respectable opinion of that at all, and no one would, not in that kind of a case. No one would know whether there was a partial hernia existing beforehand or not. If the patient didn’t know it, and the physician didn’t know it, the man operating on him at the time had no way of telling.”

The trial judge, in his written reasons, discussing the expert testimony in regard to the inguinal hernia — and we are of opinion, from our examination of the particular evidence on this subject, that his conclusions are, in substance, correct — says:

“The physicians agree that a hernia of the character shown to have been suffered by Lutz would not be produced by the blow inflicted upon Lutz in this accident or a-strain such as he suffered in recovering his poise. However, all agree that if the plaintiff was suffering from a weakness in this particular portion of his body, that the blow or strain suffered by him could have produced the condition of hernia which developed upon him two days after the accident and which condition necessitated the operation. The operation, therefore, was necessitated by the aggravated condition of the hernia caused by the accident.”

The amount of damages allowed by the trial judge Was $1,975.25, calculated as follows:

For pain and suffering endured by the plaintiff _____1________-_______________________$1,200.00
Doctors A. C. King and M. M. Odom ____________________________________________________ 250.00
Medicines _______________________________________________ 25.00
Board and lodging, including ambulance service at Hotel Dieu__________ 50.25
Loss of time for six months______________ 450.00
Total ____________________________________________$1,975.25

There is no evidence contradicting the proof found in the record as to the doctors’ fees, medicine and hospital expenses. The trial judge has estimated from the confusing but uncontracted testimony of plaintiff as to his earning capacity during the period he was incapacitated. We find: that the trial court was correct in approximating the earning capacity of plaintiff at $150.00 per month, and in fixing the period of disability at three months. It is not unreasonable to award the plaintiff damages for injuries and pain in the sum of $1,200.00. In the instant case, we are inclined to follow the doctrine expressed in the case of McDonald vs. Texas & P. Ry. Co., 141 La. 732, 75 South. 663, Wherein, the Supreme Court held:

“As we are not prepared to hold that the judgment is clearly wrong in this case, where the evidence is conflicting throughout and the credibility of the witnesses is involved and the quantum of damages is uncertain, the judgment appealéd from must be affirmed.”

In the instant case the evidence of the expert witnesses is somewhat conflicting. The fact of the accident itself has been admitted by the defendant, and we are not prepared to say nor will we hold that the quantum of damages allowed by the trial judge is unreasonable.

We think that the judgment appealed from is correct.

It is, therefore, ordered, adjudged .and decreed that the judgment appealed from herein be affirmed at defendant’s costs in both courts.


text:
    No. 9814.
    Orleans Appeal.
    SHURLEY L. BUTLER, Appellant, v. THE MARYLAND CASUALTY CO. ET AL.
    (February 16, 1925, Opinion and Decree.)
    (March 16, 1925, Rehearing Refused.)
    (May 26, 1925, Decree Supreme Court. Writ of Certiorari and Review Refused.)

      (Syllabus by the Court.)

    1. Louisiana Digest — Master and Servan —Par. 159 (a).
    The provisions of sub-sections (d) and (e) of the compensation law have reference to injuries to workmen without regard to the effect of such injuries upon their earning capacity, whereas sub-section (<?) of the act refers to injuries which affect the employee’s ability to work. Consequently, a permanent injury to the right- hand of a mechanic causing partial disability is compensated under sub-section (c) and not (d) or (e) of Section 8 of the' Employers’ Liability Law.
    (Act No. 20 of 1914, page 44, as amended by Act 43 of 1922.) Recent amendment is Act 216 of 1924. Editor’s note.)
    Appeal from the Civil District Court for the Parish of Orleans, Hon. Mark M. Boatner, Judge.
    This is an action under the Employers Liability Act No. 20 of 1914.
    There was judgment for plaintiff and plaintiff has appealed.
    Judgment amended and affirmed.
    Habana & Coleman, attorneys for plaintiff and appellant.
    P. M. Milner, attorney for defendant and appellee.
   WESTERFIELD, J.

Plaintiff claims compensation at the rate of $18.00 per week during disability to the extent of 300 weeks under sub-section (c> of Section 8 of Act 20 of 1914 as amended, known as the Employers’ Liability Act.

Defendants admit plaintiff’s claim for compensation upon the basis of $18.00 per Week, but contend that - he is entitled to but one hundred weeks’ pay under the provisions of sub-section (e) of Section 8 of the law as amended by Act 43 of 1922.

There was judgment for plaintiff for $18.00 per week for 150 weeks and plaintiff has appealed. Defendant answering the appeal repeats his prayer for a reduction to 100 weeks.

The section of the compensation law, upon which plaintiff relies, Sub-section (c) of Section 8, covers injuries which produce partial disability to do work of any reasonable character. Sub-section (d) of Section 8 as amended, fixes the compensation of injured employees without reference to the effect of the injury upon their ’ ability to work thus: For the loss of thumb, 60 per cent of wages during fifty weeks; a finger, thirty weeks; a toe, ten weeks; a hand, one hundred and thirty weeks; an arm,.two hundred Weeks, etc. This Sub-section concludes with the clause “The total loss of the use of a member shall be equivalent to the amputation of the member”.

Sub-section '(e) of Section 8 of the Act' as amended by Act 43 of 1922, the one relied upon by defendant, provides as follows :

(e) In cases not falling within any of the provisions already made, where the employee is seriously permanently disfigured about the face or head, or where the usefulness of a member of any physical function is seriously permanently impaired, the Court may allow such compensation as is reasonable in proportion to the compensation hereinabove specifically provided in the cases of specific disability above named, not to exceed sixty per „ centum of wages during one hundred weeks.”

Plaintiff Was injured in the right hand while pursuing his occupation as a mechanic in which he had been engaged for twenty-one years. His hand was crushed by the collapse of a jack supporting a heavy piece of machinery causing deformity of the hand, stiffness of the finger joints and “neuroma” of middle finger, with the result that he was unable to close fingers, clasp objects or hold hammers or other tools in his hand. His injuries were permanent and such as to partially disqualify him for work of any reasonable character.

Should plaintiff be compensated under Sub-section (c) of Section 8 as he claims, or Sub-section (d) where the court below placed him, or' under Sub-section (e) where defendants claim he should be, is the question to be decided.

Sub-section (d) it will be remembered, contained the clause we have quoted, declaring that the total loss of the use of a member shall be equivalent to amputation and our learned brother below thought this sub-section applicable and awarded plaintiff 150 weeks, the compensation fixed therein for the loss of a hand. But we think he erred. In the first place the plaintiff in this case did not suffer the total loss of the use of his hand but only a partial loss of use. In the second place, the sub-section awarding compensation for the loss of a hand, foot, etc., is for a definite period and has nothing to do with the earning capacity of the employee. It is quite possible that an injured employee’s earning capacity may increase, yet if his injury consists of the loss of a member, his compensation is not affected. It is also possible that an employee may receive far less compensation under Sub-section (c) than under either (d) or (e) for under (c) his compensation is only to be paid during disability.

Sub-section (e) which, as it appears in the Act of 1922, is a repetition of the provision as it appeared in a previous amendatory act (Act 243 of 1916) was intended to provide for employees whose injuries were not provided for in the other sub-divisions of Section 8 of the Act. It is not destructive of any of the other provisions of the Section as counsel contends, but is supplementary thereto.

In Mack vs. Legeai, 144 La. 1018, 81 South. 694, the Supreme Court in referring to this provision, then a part of a former act, said:

“The four subsections, (a), (b), (c), and (d), therefore, made provision for each and every class of physical disability to work. The statute, however, made no provision for an injury that did not produce disability to work. That was recognized in the case of Effie Boyer vs. Crescent Paper Box Factory, 143 La. 367, 78 South. 596, where the plaintiff had suffered the loss of her scalp. And probably' it was the. notoriety of her case that brought about the amendment of the law, so as to provide compensation for an injury producing a serious permanent disfigurement of the face or head, or a serious and permanent impairment of. the usefulness of any member or physical function, without regard for disability to work.
Defendant contends, and the District Court had held, that the expression in the new paragraph of Section 8, “in cases not falling within any of the provisions already made,’ refers to and excludes only the spe-. cial provisions for the injuries specifically described in that sub-section. Plaintiff contends, and we think correctly, that the idea was to make a general provision for compensation to be allowed for serious permanent injury, ‘in cases not falling within any of the provisions already made’ in that or any other Sub-section of Section 8.”

Counsel for defendants is under the impression that Sub-section (e) of Section 8 has. not been passed on by the Supreme Court. In this he is in error as appears from the foregoing. Counsel’s error is no doubt due to the fact that the clause now forming Sub-section (e) of Section 8 of the Act as amended by Act 43 of 1922 was formerly placed in Sub-section (d) by the amendment of 1916. The only issue presented here which has not been passed on by the Supreme Court is that presented by the clause, “the permanent total loss of the use of a member is equivalent to the amputation of a, member,” added to the compensation law by the Act of 1922. This is now placed in Sub-section (e) and this section plainly relates the injuries without regard to the loss of earning power as has been held in the Legeai case. Moreover, in this case there was not a total loss of the use of a member. The plaintiff’s hand, though injured in a manner to affect his earning capacity is not totally useless as counsel himself demonstrated and argued.

There is some testimony in the record concerning the advisability of plaintiff undergoing an operation, but nothing in the pleadings which suggests this defense, consequently, we must ignore the evidence.. Some payments were made plaintiff by defendants and a credit has been allowed by the judgment, therefore, concerning the amount of which there is no dispute. .

Prom what has been said it follows that plaintiff’s injuries must be classified as falling within the terms of Sub-section (c) of Section 8 of Act 20 of 1914, as amended and that he is entitled to compensation for the period of his disability, not, however, beyond 300 weeks.

Por the. reasons assigned, the judgment appealed from is amended- so as to award plaintiff compensation at the rate of $18.00 per week during disability, not, however, beyond 300 weeks, and as thus amended, it is affirmed.