text:
    No. 2177
    Second Circuit
    RYALL v. TODD, ET AL.
    (April 8, 1927. Opinion and Decree.)
    (May 13, 1927. Rehearing Refused.)
    (March 12, 1928. Affirmed by Supreme Court on Writ of Certiorari and Review.)

      (Syllabus by the Editor)

    1.Louisiana Digest — Taxation—Par. 283, 374.
    Where A purchases property from B who had acquired it through foreclosure of a mortgage via executiva, containing the pact de non alienando against C; A being the record owner, has a right to attack. a tax sale of the property in which he was not given notice of delinquency according to law.
    2. Louisiana Digest — Taxation—Par. 281, 285.
    Where the evidence shows that the property sold at tax sale was not assessed to the real owner in possession on the first day of the year, it is not necessary to inquire into whether legal notice of delinquency had been given, because, as to the owner in possession, the tax sale must have been irregular and illegal.
    3. Louisiana Digest — Taxation—Par. 374.
    The ownership of property illegally sold for taxes gives the right to contest a sale made for the enforcement of the payment of taxes.
    4. Louisiana Digest — Taxation—Par. 341, 377, 378.
    Where the owner of property is in actual physical possession under a title of record at the date of the tax sale, and had not been given due notice of delinquency, his possession continuing until suit is brought, the plea of prescription of three years is not applicable.
    Appeal from the Twelfth Judicial District Court of Louisiana, Parish of Sabine. Hon. J. H. Boone, Judge.
    Action by W. P. Ryall against Mrs. Lottie Todd, et al.
    There was judgment for- plaintiff and defendant appealed.
    Judgment affirmed.
    Ponder & Ponder, o,f Many, attorneys for plaintiff, appellee.
    Hardin & Hardin, of Leesville; Poster, Hall & Smith, of Shreveport, attorneys for defendants, appellants.
   WEBB, J.

The plaintiff, W. P. Ryall, alleging ownership and [possession of the NE% of SW% pf Section 27, Township 9 North, Range 13 West, in Sabine parish, Louisiana, under deed from W. E. Tatum of date December 22, 1917, filed for record January 28, 1918, who is alleged to have acquired title by mesne conveyances from the United States, filed this suit on October 31, 1923, against the representatives of J. E.- Todd, and W. O. Taylor, J. M. Foster, and S. E. McCarquodale, in which he allaged the facts above and that one J. A. Jackson had pretended to have acquired the title from Foster & Glassell Company, Limited, and had rendered the same for taxes and had deliberately refused to pay the taxes with the view of creating a fictitious tax title and that the property had been sold, at tax sale to J. E. Todd under the assessment made against J. A. Jackson for the year 1917 as per tax deed of date June, 15, 1918, recorded June 24, 1918, and that said sale had been made without notice to plaintiff who was at the time of the tax sale in actual, physical possession of the property under his title.

That J. E. Todd had transferred the property to W. C. Taylor, J. M. Foster and' S. E. McCarquodale, which transfer had been recorded on the conveyance records of Sabine parish and that the said tax deed was null and void and the recordation of same and transfers by the said Todd constituted a cloud upon plaintiff’s title, and he prays for judgment decreeing the tax sale and all subsequent transfers null and ordering the same erased from, the records.

The. defendants answered admitting the tax sale and deed to J. E. Todd, and otherwise denying plaintiff’s allegations, and alleging the validity of the tax title, and pleaded the prescription, of three years.

On trial, judgment was rendered against defendants, declaring the tax deed null and void, and ordering it erased from the record, and also declaring subsequent transfers null and void and ordering them erased from the record from which judgment the defendants appeal.

OPINION.

The evidence offered on behalf of the plaintiff was a deed from J. T. Webb to J. D. Woodward of date March 4, 1911, recorded March 7, 1911, under which the vendor retained a vendors’ lien and mortgage to secure a portion of the price and proceedings via executiva by W. E. Tatum, the holder of the mortgage, against J. D. Woodward, and sheriff’s deed thereunder to W. E. Tatum of date June 2, 1917, recorded June 5, 1917, and a deed by W. E. Tatum to plaintiff, W. P. Ryall, of date December 22, 1917, recorded January 28, 1918, and parol testimony showing that W. P. Ryall had possession of a part of the property at the time the deed was made to him by Tatum, and that Ryall planted and cultivated a portion of the property in 1918 and had remained in continuous possession o.f the property; that the property had been assessed to him and he had paid the taxes thereon from 1918 to the date of the suit.

Plaintiff also offered and filed in evidence a deed of the property from J. D. Woodward to J. E. Graham of date September 2, 1912, recorded November 6, 1912, and from Foster & Glassell Company, Limited, to J. A. Jackson of date February 12, 1917; recorded March 10, 1917, and also the tax deed from J. A. Jackson to J. E. Todd of date June 15, 1918, recorded June 24, 1918, which purports to have been for the taxes assessed against the property in the year 1917; and plaintiff also offered in evidence a petition and preliminary orders filed and obtained on June 25, 1915, in proceedings via executiva by Foster & Glassell Company, Limited, versus J. E. Graham against the property in contest, and a deed from J. E. Graham, by the sheriff, which purports to have been made under a seizure and sale under a writ of fieri facias of date September 11, 1915, recorded October 11, 1915; but said last named deed does not include the property in contest.

The defendant also offered the deed from J. D. Woodward to J. E. Graham and also the assessment rolls for the. year 1917 showing the assessment of the property in contest to J. A. Jackson and a transfer or deed of the property by J. E. Todd to W. C. Taylor, J. M. Foster and S. E. MeCorquodale (in the proportions of one-half to Taylor and one-fourth each to the other vendees) of date December 19, 1919, recorded December 23, 1919, and a deed from S. E. MeCorquodale to P. B. Meyer of his one-fourth interest, of date July 5, 1920, recorded on the same date.

The property involved in this controversy we assume is of little value and the parties appear to have considered only the most salient points, and we confine the opinion to the questions presented by counsel or questions necessarily connected with the questions presented.

The defendants contend that the judgment should be reversed on the following grounds.

First, that plaintiff is without right to question the validity of the tax title under which defendants claim.

Second, that the evidence fails to show that the tax title was invalid.

I.

The basis of this contention, which was not set up in the answer, is that the evidence . offered showing the proceedings via executiva by Foster & Glassell Company, Limited, of date June 25, 1915, against J. E. Graham, who had acquired the property from J. D. Woodward by deed on September 2, 1912, recorded November 6, 1912, and the deed by J. E. Graham, through the sheriff (proceeding under a writ of fi. fa.) of date September 11, 1915, recorded October 11, 1915, had divested the title of J. D. Woodward long prior to the proceedings via executiva taken by W. E. Tatum against J. D. Woodward under which the deed was made to Tatum by the sheriff of date June 2, 1917, recorded June 5, 1917, and that Tatum did not acquire any title through the sheriff’s sale from J. D. Woodward and that plaintiff, of course, did not acquire any title under the deed made by W. E. Tatum 'of date December 22, 1917, recorded January 28, 1918.

The evidence, however, does not show that any sale was made under the proceedings via executiva taken by Foster & Glassell Company, Limited, and the sale made by the sheriff purportedly acting under a writ of fieri facias does not include the property in contest, and hence on the face of the record such transactions did not divest J. E. Graham of title, and while the deed from J. D. Woodward to J. E. Graham, of date September 2, 1912, recorded November 12, 1912, did as between Woodward and Graham, divest the former of title, it did not affect the right of the holder of the notes secured by vendor’s lien and mortgage containing the pact de non alienando from proceeding directly against the property through J. D. Woodward. (Stevens vs. Pinneo, 26 La. Ann. 617; Bank vs. Miller, 44 La. Ann. 199, 10 South. 779; Dodds vs. Lanaux, 45 La. Ann. 287, 12 South. 345; Fontenot vs. LaFleur, 2 La. App. 602) and the sale by the sheriff under the proceedings via executiva instituted by W. E. Tatum against J. D. Woodward of date June 2, 1917, recorded June 5, 1917, divested Graham of any title which he acquired from Woodward, and W. P. Ryall, plaintiff, having acquired from Tatum certainly had the right, on the face of the record, to attack the tax title, being at the time of the tax sale the real, legal record owner and in possession.

II.

The plaintiff attacked the tax sale on the ground that he having been in possession of the property under a recorded title, that no notice was given to' him of the nonpayment of the, taxes and of the intention to sell prior to the tax sale, and defendants contend the evidence fails to show that notice was not given, and plaintiff while contending that under the evidence showing his title was not deraigned through Jackson (the person in whose name the property was assessed) and his statement that he did not know the taxes were due, or that the property had been offered and sold at tax sale until long after the date of the sale, cast the burden of proof on defendants to show notice, but if this be not true that the evidence showing that J. A. Jackson acquired by deed of date February 12, 1917, recorded March 10, 1917, the assessment of the property to Jackson for the year 1917 was irregular and plaintiff being the real owner in possesion under, a recorded title at the time of the tax sale, the sale under the assessment was as to him illegal, and finally, in event of neither of the positions being tenable, plaintiff asks that the cause be remanded to permit him to introduce additional testimony on the question of notice.

While there may be some doubt as to whether or not the evidence establishes that notice was not given to Ryall, and that the cause should be remanded for further evidence, we do not deem it necessary to consider either of these propositions as we are of the opinion that the evidence which shows that the property was not assessed to the owner of record on the 1st day of January, 1917, was, as to the plaintiff, the real owner in possession under a recorded title at the date of the tax sale irregular and illegal.

On the 1st day of January, 1917, J. E. Graham appeared as the owner of record and in the regular course of assessment the propei’ty should have been assessed to him for the year 1917 (Palfrey vs. Connely, 106 La. 699, 31 South. 148; Bunkie Brick Works vs. Police Jury, 113 La. 1062, 37 South. 970); and it not appearing that the title had passed out of J. E. Graham to Jackson we assume it will be conceded that the assessment of the property to Jackson who did not acquire title till February 12, 1917, recorded March 10, 1917, and which does not appear to have been derived through Graham, was, as to the latter, illegal, and if the assessment was illegal as to Graham we do not see any reason why it was not illegal as to Ryall, the plaintiff.

The ownership of the property gives the right to question the sale made to enforce the payment of taxes, and it appearing from the evidence submitted. that plaintiff was the owner at the time of the sale, he had the right to question any proceedings connected with the sale, and it appearing that J. A. Jackson was not the owner of record on the 1st day of January, 1917, the assessment made against him was, as to plaintiff, illegal.

The evidence shows that plaintiff was in actual physical possession under a title of record at the date of the tax sale, and that he has continued in possession, and the plea of prescription of three years is not applicable.

The judgment appealed from is therefore affirmed.


source: Caselaw Access Project

author: REYNOLDS, J.

license: Public Domain

text:
    No. 3133
    Second Circuit
    PATTERSON v. BAPTIST CHURCH
    (February 3, 1928. Opinion and Decree.)
    (March 14, 1928. Rehearing Refused.)

      (Syllabus by the Court)

    1. Louisiana Digest — Religion and Religious Corporations — Par. 5, 8.
    Pursuant to a resolution of an alleged board of trustees of an unincorporated religious society without by-laws, promissory notes were executed by one of their number in the name of the society in favor of another member of the alleged board in payment of an alleged loan of money by him to the society, and to secure their payment the soeie'ty’s house of worship was mortgaged:
    Held, that, in thg absence of evidence showing the board was duly elected and duly authorized to acknowledge the debt and execute the instruments, or that the members of the society had subsequently duly ratified their acts, the notes and mortgage were void.
    A. M. E. Church vs. Duro, 19 Ann. 702.
    Tabernacle Baptist Church vs. Green, 124 La. 171, 50 So. 1.
    Soller vs. Mouton, 3 Ann. 541.
    A. M. E. Church vs. New Orleans, 15 Ann. 441.
    2. Louisiana Digest — Religion and Religious Corporations — Par. 1, 8.
    In unincorporated religious society without by-laws can legally act only by reso- ■ lntions of a majority of its members.
    A. M. E. Church vs. Duro, 19 Ann. 702.
    Tabernacle Baptist Church vs Green, 124 La. 171, 50 So. 1.
    Soller vs. Mouton, 3 Ann. 541.
    A. M. E. Church vs. New Orleans, 15 Ann. 441.
    3. Louisiana Digest — Religion and Religious Organizations — Par. 5, 8.
    Authority to hypothecate must be express and special.
    Levasseur vs. Martin, 11 Ann. 684.
    4. Louisiana Digest — Prescription—Par. 96.
    An action to recover money loaned is barred by the prescription of three years.
    C. C. 3358.
    Sevin & Gourdain vs. Caillouet, 30 Ann. 528.
    Appeal from the Ninth Judicial District Court of Louisiana, Parish of Rapides. Hon. R. C. Culpepper, Judge.
    Action by Wash Patterson against Mount Zion Baptist Church.
    There was judgment for defendant and plaintiff appealed.
    Judgment affirmed.
    K. Hundley, Isaac Wahler, of Alexandria, attorneys for plaintiff, appellant.
    B. T. Dawkins, W. C. Roberts, of Alexandria, attorneys for defendant, appellee.
   STATEMENT OF THE CASE.

REYNOLDS, J.

Plaintiff, Wash Patterson, seeks a personal judgment against Mount Zion Baptist Church, an unincorporated religious society, on six promissory notes aggregating, exclusive of interest, $316.50, drawn payable to maker’s order and by the maker endorsed in blank, and for recognition of a conventional mortgage on the society’s house of worship given to secure payment of the notes.

The notes are signed and endorsed “Board of Trustees, Mount Zion Baptist Church, by E. M. Harris, Secretary-Treasurer,” and the mortgage also is signed “Mount Zion Baptist Church, by E. M. Harris, Secretary-Treasurer”.

The notes are alleged to represent money-loaned by plaintiff to defendant for the purpose of building and by defendant actually used in building the house of worship.

The notes and mortgage are alleged to have been executed and delivered by virtue of authority reading as follows, to-wit:

“MOUNT ZION BAPTIST CHURCH, ALEXANDRIA, LOUISIANA.
“At a regular meeting of the Board of Trustees, who have been duly elected and qualified, held at its domicile in the city of Alexandria, Louisiana, on the 12th day of November, 1921, the following members of the board were present:
“Wash Patterson, President; Mike Johnson, Vice-President; E. M. Harris, Secretary-Treasurer; Frank Allen, Robert Brown, and Joe Nash, represented by E. M. Harris.
“The fact of a cash advance made Mount Zion Baptist Church by Wash Patterson more than two and a half years ago was discussed, and the following resolution was offered by Frank Allen, to-wit:
“That this board recognizes the loan made by Wash Patterson to Mount Zion Baptist Church, and that E. M. Harris be and is hereby instructed to execute a mortgage on the church property in favor of Wash Patterson in the sum of three hundred sixteen and 50/100 ($316.50) dollars divided in six notes of fifty-two and 75/100 ($52.75) each, payable every six months from date and bearing eight percent interest from this date until paid, reimbursing him for the advance together with accrued interest.
“This motion was duly seconded by Robert Brown, and after being put to a vote was carried unanimously, and E. M. Harris was instructed to execute a mortgage as above.
“There being no further business, the board adjourned subject to call from the president.
“(Signed) E. M. HARRIS,
“Secretary-Treasurer.
“Approved:
“(Signed) WASH PATTERSON.”

In the alternative, plaintiff alleged that the debt sued for represents money loaned by him to defendant to build and was used in building its house of worship and that it having enured to defendant’s benefit defendant is estopped to question the validity of the notes and mortgage, and, that if these be invalid for want of authority in the persons acting as the board of trustees, plaintiff is entitled to a money judgment against defendant for the $316.50 with 8% per annum interest thereon from November 21, 1921.

Defendant excepted that the petition did not state a cause of action. The exception was overruled, and defendant, after reserving its rights under the exception, answered denying that it was indebted to plaintiff in any sum and alleged that the persons assuming to act as a board of trustees and who authorized the execution of the notes and mortgage had never been electd as such or authorized to execute the instruments and that the notes and mortgage were void. It denied that it was estopped to dispute the existence of the debt or the validty of the notes and mortgage, and pleaded the prescription of three years to the alleged debt.

On these issues the case was tried and there was judgment rejecting plaintiff’s demand and sustaining defendant’s plea of prescription and dismissing plaintiff’s suit. Plaintiff appealed.

OPINION.

Defendant is an unincorporated religious society without by-laws.

There is no evidence in the record that the persons assuming to act as its board of trustees had ever been elected as such by the members of the society or that the congregation had ever authorized them to acknowledge the debt and execute the notes and mortgage or had ratified their acts in doing so; and in the absence of such evidence their acts were unauthorized and the notes and mortgage void.

An unincorporated society can only legally act through a majority oí its members.

But plaintiff insists that inasmuch as the debt sued for enured to the benefit of defendant it is estopped to question the validity of the notes and mortgage. But defendant cannot be estopped to repudiate the unauthorized acts of persons assuming to act for it, except by the acts of a majority of its members.

In the alternative, plaintiff asks that if the notes and mortgage be held void he be given a personal judgment against defendant for the amount of the debt.

To this alternative demand defendant interposed the prescription of three years, which plea, in our opinion, is good.

We find no error in the judgment appealed from and accordingly it is affirmed.


author: WEBB, J.

text:
    No. 3128
    Second Circuit
    MASON v. COSTANZA
    (November 10, 1927. Opinion and Decree.)
    (December 21, 1927. Rehearing Refused.)
    (May 7, 1928. Reversed by Supreme Court on Writ of Certiorari and Review.)
    (See 117 So. 240.)

      (Syllabus dy the Editor)

    1.Louisiana Digest — Master and Servant —Par. 154, 160 b.
    Section 33 of the Workman’s Compensation Act No. 20 of 1914 as amended by Act 38 of 1918 governs relative to right of employee to demand payment of the full amount of the judgment on failure of employer to pay six successive payments. Section 8, subsection 7 of Act No. 20 of 1914 as amended by Act 85 of 1926 does not apply where judgment has previously been awarded because judgment acts as notice.
    2. Louisiana Digest — Master and Servant —Par. 154, 160 b, 160 e.
    Where evidence does not show that plaintiff did anything to lead defendant to believe plaintiff had waived the right to demand that the judgment he made executory or that the action of defendant was such as to prevent the judgment from being declared executory under Section 33 of Act 20 of 1914 as amended by Act/38 of 1918, the Workmen’s Compensation Act,, the judgment will be made executory under that act after failure of defendant to make six successive payments.
    3. Louisiana Digest — Master and Servant —Par. 154; Constitutions and Constitutional Law — Par. 138, 139.
    Section 33 of the Workmen’s Compensation Act No. 20 of 1914 as amended by Act 38 of 1918 is not unconstitutional under Section 2, Article 1 of the Constitution of Louisiana or the XlVth amendment of the Constitution of the United States because, under the wording of the provision the penalty is applicable in all cases where payments are not made at maturity.
    Appeal from the First Judicial District Court of Louisiana, Parish of Caddo. Hon. J. H. Stephens, Judge.
    Action by Dennis Mason against Joseph Costanza.
    There was judgment for plaintiff and defendant appealed.
    Judgment affirmed.
    Robert Roberts, Jr., C. F. Currier, of Shreveport, attorneys for plaintiff, appellee.
    Crain, Jackson & Johnson, of Shreveport, attorneys for defendant, appellant.

      ODOM, J. Dissents.
   WEBB, J.

Plaintiff obtained judgment against defendant under Act No. 20 of 1914, as amended, for compensation at the rate of ten and 40-100 dollars per week for a period not to exceed one hundred and fifty weeks, in which judgment the fee of counsel representing plaintiff was fixed at twenty percent, as provided by the amendment, Act No. 85 of 1926, and the judgment also provided that the cause could be reopened after the expiration of six months.

Soon after the rendition of the judgment, the installments which were due prior to the date of the judgment were paid to the attorneys representing plaintiff, and there being no further payments made plaintiff, after six successive installments had not been paid, filed a rule on defendant to show cause why the judgment should not be made executory for the full amount.

In answer to the rule, defendant admitted that six successive installments had not been paid, and alleged the failure to pay had not been through any fault of defendant but that he had been able, ready and willing at all times to pay and had so informed plaintiff and his counsel, and that he had requested plaintiff, whom he happened to meet on the street, to call at his place of business and receive the installments as they fell due and that he had sent a message to plaintiff on two occasions requesting him to call and receive the installments and that he would have paid the installments as they fell due had plaintiff or his attorneys made any request for payment of the same.

He further alleged that plaintiff’s condition had very materially improved and that plaintiff realizing same and that he would not be entitled to compensation after the expiration of six months had purposely refused to request payment of the installments as they came due with the view of having the judgment rendered executory for the full amount, and thus to deprive defendant of the right to reopen the case.

The rule was tried on the issues presented and defendant moved to reopen the case in order that defendant could show that his place of business was located on Marshall Street in the City of Shreveport where plaintiff had been employed for several months at the time he was injured and where he had been paid his wages during the time of his employment; and the cause being reopened, defendant pleaded that Section 33 of Act oN.'20 of 1914 as amended was unconstitutional and in violation of Section 2 of Article I of the Constitution of the State of Louisiana and of the XIV amendment to the Constitution of the United States, and the cause being again tried and submitted the rule was made peremptory and the judgment was made executory for the full amount, from which defendant appeals.

OPINION.

Section 33 of the statute, as amended by Act No. 38 of 1918, provides:

“That in the event the employer against whom there has been rendered a judgment of court awarding compensation in favor of any employee or his dependent shall become insolvent or fail to pay six successive installments as they become due, the installmnts not yet payable under said judgment shall immediately become due and exigible and the judgment shall become executory for the whole amount; provided that if the employee or his dependent is adequately protected by insurance and receives payments thereunder this right shall not accrue.”

And while defendant admits that six successive installments had not been paid, he urges that, under another provision of the statute, reading:

“Payments of compensation under this act, shall he paid as near as may be, at the times and places as wages were payable to the injured employee before the accident, but such payments may be made at last known address of employee, when employee is not living at place where wages were paid, a longer interval, not to exceed one month, may be substituted by agreement without the approval ’ of the court, but a longer interval than one month shall be approved by the court.”

(Subsection 7 of Section 8 of Act No. 85 of 1926.)

He was bound to pay only at the place where wages had been paid and that plaintiff having failed to make a demand or present himself for payment at such place he could not demand that the judgment be made executory for the full amount.

Defendant also contends that the provision of the statute (section 33) relied upon by the plaintiff provides for a forfeiture and that plaintiff had led defendant to believe that the forfeiture would not be incurred, and that under the statute providing that the court should not be bound by technical rules of procedure but should decide the issues presented equitably (paragraph 4, section 18) the forfeiture should not be declared unless it appears that the defendant had failed to pay after a demand had been made or that he was wilfully avoiding payment; and defendant further contends section 33 of.the statute is unconstitutional.

Considering the defences and the evidence relating thereto in the order named.

(1) The evidence shows that defendant had been receiving his wages at plaintiff’s place where he was employed at the time of the injury, and defendant contends plaintiff should have made a demand at that place for the payment of the installments as they fell due, and failing to make a demand at such place he could not demand that the judgment be made executory for the full amount thereof on the mere failure of the defendant to pay; this contention being made on the provisions of subsection 7 of section 8 hereinabove quoted.

The statute clearly provides for two methods of settlement under which the injured employee will receive compensation' — ■ one by the agreement of the parties, the other by the court.

The provisions of the statute (subsection 7 of section 8) relative to the compensation being paid as near as may be at the place where wages were payable, or at the last known address of the employee," is placed in that part of the statute where the set-, tlement is considered under the agreement of the parties; while the provision (section 33) relative to the right of the employee to demand the payment of the full amount of the judgment upon the failure of the' employer to pay six successive payments, is placd in that part of the statute where the settlement is made by the intervention of the court.

The judgment became executory for the amount of the installments as they fell due, and it must be conceded that ordinarily it is not necessary to make a demand for payment before issuing execution on a judgment, as the judgment itself gives notice of the amount due, and to construe the statute as requiring that the judgment creditor should make a demand for payment, would be to distinguish the right of the judgment creditor in compensation cases from the rights of other judgment creditors, which we do not think the statute warrants.

While it may be that the provisions of subsection 7 of section 8 of the statute require a demand for the payment of the compensation agreed upon before proceedings to bring suit, and obtain a judgment, a question which is not involved here, and as to which we do not express any opinion, we do not think that the provisions of that paragraph are applicable to the case where judgment has already been obtained, which was the only question raised and presented relative to the question of the necessity of a demand.

(2) While the evidence shows that plaintiff did not press the payment of the installments as they fell due, probably due to the hope that defendant would fail to make six successive payments and that he could have the advantage of the statute (section 33) declaring that the judgment should become executory on the happening of such condition, it does not appear that plaintiff actively did anything which could have caused the defendant to assume that he would not enforce the payment of the judgment in full on defendant’s failing to pay six successive installments; and while the defendant may have believed that by having expressed a willingness to pay and requesting the plaintiff to call at defendant’s place of business and get money when he needed it would prevent plaintiff from having the judgment declared executory, such belief was founded upon his own actions and not upon anything which was done or said by the plaintiff, as it is not proven that plaintiff promised to call at defendant’s place of business for the payments.

We do not think the plaintiff could be said to have waived his right to have the judgment declared executory by failing to have execution issued as the payments fell due, and the passiveness or inaction of the plaintiff in failing to demand the payments as they fell due is not easily distinguished from his. failure to press the payment by issuing execution.

Conceding, however, that the provision declaring the judgment executory for its full amount is in the nature of a penalty or forfeiture, rather than one to accelerate the payment,- and that it should be equitably construed, and although it may be that the plaintiff did not do or say anything which should have led the defendant to believe that the forfeiture would be waived, yet that the forfeiture should not be declared if it appeared that the defendant was in good faith, and desired to make the payments as they fell due but was somewhat in doubt as to the manner of proceeding in view of the plaintiff not demanding the payments as they fell due, the question of his good faith would be somewhat peculiarly within the province of the trial court, who had the opportunity to observe the defendant while on the witness stand, and we cannot say that the court erred, when it appears that defendant had made one payment to the attorneys representing plaintiff and the evidence does not show that the plaintiff had concealed himself or was absent, and that defendant had taken any action which could be said to approximate a tender of payment.

While it is true that after defendant had defaulted making six successive payments and the matter had been brought to the attention of his attorneys that they offered to pay the past due installments to the attorneys of the plaintiff and that on trial of the rule a tender and deposit of the amount due was made at that time, yet the offer of payment was made after defendant had defaulted in the payments and the withdrawal of the amount deposited was made after the judgment on the rule and we do not think such circumstances should be considered in determining the question as to the right of plaintiff to demand that the judgment should be made executory.

We are therefore of the opinion that the evidence does not show that plaintiff by his action did anything which should have led the defendant to ' believe plaintiff had waived the right to demand that the judgment be made executory or that the action of defendant was such as to prevent the judgment from being' declared executory.

(3) The attack upon the constitutionality of the statute (section 33) is based upon the provisions of Section 2, Article I of the Constitution and the XIV amendment of the Constitution of the United States; it being urged that the provision visits a penalty upon an employer irrespective of his solvency where he has not carried insurance for the protection of his employees while it exempts an employer who may be insolvent where he carries such insurance.

The defendant has not urged the plea made to the constitutionality of the provision further than to state his position, and under the words of the provision it could be said to be applicable in all cases where payments are not made at maturity by the employer or an insurance company representing the employer, and under that construction the question raised by the plea would not be presented; as the defendant having failed to pay the installments as they matured or the payments not having been made through someone obligated to defendant to pay, would be subject to the provisions of the statute.

The judgment appealed from is therefore affirmed.

ODOM, J., dissents.


text:
    No. 2474
    Second Circuit
    JETER v. LYON
    (May 22, 1928. Opinion and Decree.)

      (Syllabus by the Court)
    I. Louisiana Digest — Mechanics’ Privileges —Par. 2, 12.
    Act No. 139 of 1922, providing by section 2 for a lien for labor and materials in favor of persons having a claim against the undertaker, contractor, master mechanic, or contracting engineer, does not entitle one furnishing materials to a subcontractor to claim a lien, notwithstanding section 1 and part of section 2, requiring owner to exact a bond in favor of all subcontractors, journeymen, etc.
    Frank vs. Waters, 162 La. 255, 110 So. 413.
    Appeal from the First Judicial District Court of Louisiana, Parish of Caddo. Hon. J. H. Stephens, Judge.
    Action by John T. Jeter against J. W. Lyon, et al.
    There was judgment for plaintiff and defendants appealed.
    Judgment reversed and suit dismissed.
    James T. Jeter, of Shreveport, attorney for plaintiff, appellee.
    Pugh & Boatner; Byron A. Irwin, of Shreveport, attorneys for defendants, appellants.
   STATEMENT OF THE CASE. '

REYNOLDS, J.

Plaintiff sued J. W. Lyon, J. C. Whittington, and E. B. Bow-den in solido fo” $372.97 with interest thereon at' 5% per annum from April 15, 1924, as the price of certain building material alleged to have been sold to them by him.

By supplemental petition he alleged that the materials, the price of which are sued for, were used on property belonging to the defendant, J. W. Lyon, that no written contract and hond were recorded, and that plaintiff had given him written notice that the material was not paid for and that he would look to him for payment.

Judgment was rendered on default against the defendants Whittington and Bowden as prayed for.

The defendant, J. W. Lyon, answered, denying liability.

On these issues the case was tried and judgment was rendered in favor of the plaintiff, John T. Jeter, and against the defendant, J. W. Lyon, as prayed for.

The defendant, J. W. Lyon, has appealed.

OPINION.

The plaintiff, John T. Jeter, testified that the materials, the price of which is sued for, was sold to the defendant, E. B. Bowden, and that Bowden was a subcontractor under the defendant, J. C. Whittington, who had a contract with the defendant, J. W. Lyon, to paint his residence.

Act No. 139 of 1922, the law concerning builder’s privilege, in force at the time the materials were sold and the work done, does not entitle one furnishing materials to a subcontractor to claim a lien.

It was expressly so held in the case of Frank vs. Waters, 162 La. 255, 110 So. 413, and that case is decisive of this.

It is therefore ordered, adjudged and decreed that the judgment in favor of John T. Jeter and against J. W. Lyon appealed from be annulled, avoided and reversed, and that the demand of the plaintiff, John T. Jeter, as against the defendant, J. W. Lyon, be rejected and his suit dismissed at his cost.


text:
    No. 2928
    Second Circuit
    DUPUIS v. REYNAUD
    (February 3, 1928. Opinion and Decree.)

      (Syllabus by the Editor)

    1. Louisiana Digest — Taxation—Par. 343; Reconvention — Par. 10.
    Where the allegations in the defendant’s answer are specific as to the nature of the claim, a prayer for general relief is sufficient to allow the Court' to consider the answer as a reconventional demand, under Code of Prac- , tice, Art. 377, authorizing the annulment of a tax sale if there is sufficient evidence.
    2. Louisiana Digest — Taxation—Par. 340.
    The Constitution of 1921, Sec. 11, Art. X, does not require that a tender of taxes paid, shall be a condition precedent to the institution of an action to annul a tax sale.
    3. Louisiana Digest — Taxation—Par. 358.
    '“Two (2) acres from Sidney Barbin’’ sufficiently identifies the property purchased at tax sale where defendant did not own any other property in that parish.
    4. Louisiana Digest — Taxation—Par. 285.
    In view of Sec. 51 of Act 170 of 1898 where the records of the post office at the parish seat do not show that any registered notice was mailed to the record owner of the property, although it was their duty to keep such records and other evidence shows that notice was not received, is sufficient to overcome the presumption arising from the tax deed that registered notice of delinquency was sent.
    Appeal from the Twelfth Judicial District Court, Parish of Avoyelles. Hon. L. P. Gremillion, Judge.
    Action by Forest L. Dupuis against Lestan L. Reynaud.
    There was judgment for defendant and plaintiff appealed.
    Judgment affirmed.
    Bordelon & Norman, of Marksville, attorneys for plaintiff, appellant.
    Joffrion & Joffrion; Porterie Sc. Bordelon, of Marksville, attorneys for defendant, appellee.
   WEBB, J.

On May 3, 1924, plaintiff, Forest L. Dupuis, purchased at tax sale two acres of land situated in the Parish of Avoyelles, under an assessment made against defendant, Lestan L. Reynaud, of the Parish of Acadia, for the year 1923, and the tax deed was recorded on May 17, 1924.

On June 8, 1925, plaintiff filed suit against defendant to have the tax sale confirmed and to be placed in possession of the property, and in answer the defendant alleged that he had been in continuous possession of the property and had not been notified of the sale as required by law, and that the description of the property was insufficient, and that plaintiff did not acquire a valid title, and he prayed that plaintiff’s demands be rejected at his cost, and for all orders and decrees necessary, and for general and equitable, relief.

On trial judgment was rendered in favor of the defendant, annulling the tax sale, and decreeing defendant to be the owner of the property, and in favor of plaintiff against defendant for the amount of all taxes paid by plaintiff on the said property, with ten per cent per annum interest thereon from the date of payment, from which plaintiff appeals.

The plaintiff and appellant urges that the pleadings (which were not extended by the evidence) did not warrant the judgment, which is based upon two grounds.

First: That the plaintiff did not in the action brought by him place at issue the validity of the tax title, and defendant having failed to assert the invalidity of the tax title by reconventional demand, and to pray that the tax sale be annulled, and defendant having objected to any evidence to show the invalidity of the tax title, the Court was without authority to render the decree annulling the tax deed.

Second: That, in any event, the defendant having failed to tender the amount paid by plaintiff at the tax sale, together with interest and cost, the Court could not annul the tax sale until such sum had been paid.

The plaintiff also urges that the evidence . in support of the alleged defects in the tax sale, was insufficient to warrant the judgment.

(1) In this contention plaintiff apparently takes the position that it was essential that defendant should have, after alleging that the tax sale was invalid for want of notice, and by reason of the defective description of the property, specifically prayed for judgment in re-convention annulling the tax sale, and he apparently bases his contention on an expression in the cause of Fellman vs. Kay, 147 La. 954, 86 So. 406, in which the Court said:

“It is plain that, when the tax purchaser avails himself of this proceeding under Section 1 of the act, he does not place at issue the validity vel non of his tax title; he simply invites assault thereon; and it is equally clear that if no action to annul be brought within six months, the only judgment that the Court is authorized to render is one quieting and confirming the title by rendering a judgment against the former owner, forever barring and prohibiting him from assailing the tax deed, for the sole reason that he has not brought his action to annul within the six months allowed therefor.
“It is quite clear that this suit to annul can be brought by the tax debtor either by an independent suit in that court or some other court of competent jurisdiction, or can be brought by way of reconventional demand, in which whatever invalidities or nullities there be in the tax title can be set up and prayer made for the annulment of the tax deed.”

The decision cited as well as the decision in Scheen vs. Hain, 141 La. 606, 75 So. 427, and Duffy vs. Peneguy, 148 La. 421, 87 So. 25, announce the rule that in a proceeding to confirm a tax title, the defendant may in his answer attack the title, and in the present instance, the defendant alleged that he was in possession of the property at the time of the tax sale, and since, and that the tax sale was null and void for the reason that it had been made without notice as required by law, and that the description of the property was insufficient, and considering the pleadings from a technical point of view, as contended for by plaintiff, the sole question is whether or not the prayer for general relief, when considered with the allegations of nullity, should be considered as a reconventional demand.

The demand in reconvention may be made as an exception in the answer or by a separate suit (Art. 377, C. P.) and when made by exception, no citation or answer is required, and may even result from evidence introduced without objection (Kean vs. Brandon, 17 La. Ann. 37) and where the demand is set up in the answer, or by exception, to an action to confirm a tax title, and the allegations are specific as to the nature of the claim, and there is a prayer for general relief, we think it should be considered as a reconventional demand, as under such a prayer, the Court would be authorized to annul the tax sale. (See Leland vs. Rose, 11 La. Ann. 69; Lochte vs. Lefebre, 124 La. 244, 50 So. 26; Kinder vs. Scharff, 125 La. 594, 51 So. 654.)

(2) While the Constitution (Sec. 11, Art. X) provides that no judgment annulling a tax sale shall have effect until the price and all taxes and cost, with ten per cent per annum interest on the amount of the price and taxes paid, from the date of the respective payments, be previously paid to the purchaser, etc., it does not provide that a tender of such amount shall be a condition precedent to the institution of an action to annul a tax sale, and the constitutional provision does not appear to be subject to such construction. (See Gomez vs. Wilde, 135 La. 204, 65 So. 109.)

(3) The evidence in support of the alleged nullities relates to the description of the property and want of notice.

The assessment shows that the property was assessed against defendant as “2 acres from Sidney Barbin,” which appeared to have been made under the assessment of property in Ward 2 of Avoyelles Parish, and the deed from the tax collector describes the property as “Two (2) acres from Sidney Barbin,” and the evidence shows that defendant did not own any other property in the Parish of Avoyelles, and that he purchased the property from Sidney Barbin, and although the description might be said to be uncertain, we think it was such as would enable the property to be identified with certainty, by evidence which would be admissible for that purpose, which we think is sufficient. (Weber’s Heirs vs. Martinez, 125 La. 663, 51 So. 679; Board of Commissioners of Levee District vs. Concordia Land & Timber Co., 141 La. 247, 74 So. 291.

As to notice, the statute, Section 51, Act No. 170 of 1898, provides:

“That the tax collector or sheriff shall either deliver to each tax payer in person, or shall leave it at his residence or place of business in the Parish of Orleans, one of said notices (notice of delinquency as provided by Section 50) and a return or statement in writing of the mode of such service shall be made by the officer serving same and be filed in the office of the tax collector or sheriff, and shall be received by the courts as prima facie evidence of notice. In the country parishes, this notice shall be sent by registered mail. After the sheriff shall have completed the mailing of the notices herein required, he shall make out a proces verbal, stating the names of delinquents so notified, their post office address, brief description of the property, amount of taxes due, which proces verbal shall be by him signed officially in the presence of two witnesses and by him filed in the office of the clerk of court for record and preservation. Said proces verbal shall be received by the courts as evidence. The sheriff and tax collector shall be entitled to collect from said delinquent tax payer twenty-five cents as costs; no mileage to be charged for service of said notice_ and a like charge if property is adjudicated to the state.”

And defendant’s evidence, which was directed to showing that the notice provided for by the statute was not sent, and that he did not have notice, establishes that defendant did not receive any such notice, and that he did not have notice of the tax sale, and also tends to show that a registered notice was not mailed at the post office at Marks-ville, the parish seat of Avoyelles Parish; and defendant also offered to introduce depositions taken under commission of the employees of the post office at Crowley, Arcadia Parish, which place the assessment roll showed was the residence of defendant, tending to show that the notice had not been received at that post office, which depositions, however were admitted subject to plaintiff’s objection and were not considered by the trial court in reaching its conclusions, while the evidence offered by the plaintiff was the testimony of the employees of the sheriff’s office, who did not have any independent recollection of the matter, but who stated there appeared on the assessment roll under the assessment made against defendant a certain mark which indicated that the notice had been sent, and the plaintiff contends that in view of tax sales being prima facie valid, that the evidence offered failed to overcome the presumption of validity.

While it has been held that evidence similar to that given by the employees of the sheriff and tax collector was sufficient to prove a compliance with former statutes, we do not think the method employed complied with the present statute, and although there cannot be any doubt that proof of the notice having been actually sent or mailed could be made otherwise than by the proces verbal provided for by the statute, as where the officer sending the notice had knowledge of the notice having been sent, or the return receipt or notice is offered, yet we think that very little weight should be given to a notation made on the assessment roll, which does not show the date, time or manner by which the notice was given, and we are of the opinion that the question depends entirely upon whether or not the evidence offered by the defendant was sufficient to overcome the presumption that notice was sent as directed by the statute.

The fact that defendant did not receive any registered notice is merely a circumstance as relates to the question of whether or not the notice was sent, which, however, has • some weight, in view of the fact that the evidence does not indicate that the notice, if sent, was returned to the sheriff’s office, but the fact that the records of the post office at Marks-ville do not show that any registered notice was mailed at that office to the defendant, when the officers in charge testify that it was their duty to keep such records of registered matter, in itself tends to prove that such registered matter was not mailed at that post office, and considering this with the circumstances that defendant did not receive any such registered notice, we think it is sufficient to overcome the presumption arising from the tax deed that registered notice was sent.

We therefore, without considering the deposition of the officers in charge of the post office through which the record indicates the notices would have been received, find that the preponderance of the evidence shows that there was not any registered notice sent to defendant and the judgment appealed from is therefore affirmed.


text:
    No. 3097
    Second Circuit
    SMITH v. HEMPEN
    (February 9, 1928. Opinion and Decree.)
    (March 14, 1928. Rehearing Refused.)

      (¡syllabus by the Editor)
    1. Louisiana Digest — Sales—Par. 84, 86; Obligations — Par. 127, 128.
    In an action for restitution of property the party holding the property is not required to restore it until a chattel mortgage paid by him is first refunded. (Civil Code, Article 2229.)
    2. Louisiana Digest — Obligations»—Par. 134, 152; Sales — Par. 181; Damages— Par. 77.
    Where damages for loss of use of a car not for illegal conversion are claimed in a suit for restitution, unless plaintiff first tendered to the one in possession of the automobile the money expended by him to pay the chattel mortgage on it, he will not be entitled to damages by reason of his loss of employment.
    3. Louisiana Digest — Minors—Par. 3, 179, 191; Obligations — Par. 129.
    “The mere declaration of majority made by a minor is no obstacle to his restitution,” under Civil Code, Article 2224, and, therefore, defendant in a suit for restitution of a Ford automobile must show that the declaration of majority was fraudulently made by the minor with the purpose of getting possession of the Star automobile taken in trade.
    4. Louisiana Digest — Obligations — Par.-133.
    The. right to restitution is governed by Civil Code, Art. 2221 et seq., under which losses resulting directly from the invalidity of the contract cannot be considered.

      5. Louisiana Digest — Minors—Par. 12, 179. I
    Where a minor entered into a contract and | afterward sues for restitution of property under the contract; the law applicable is that governing his minority at the time the contract was made.
    6. Louisiana Digest — Minors—Par. 4, 179.
    One asking to recoup his losses resulting from a contract with a minor from the estate of the minor, must bring the obligation under one of the designated exceptions stated under Civil Code, Art. 1785, or show that his losses enured to the benefit of the minor’s estate. Civil Code, Art. 2229.
    Appeal from the Ninth Judicial District Court of Louisiana, Parish of Rapides. Hon. R. C. Culpepper, Judge.
    Action by A. Leonard Smith against J. H. Hempen.
    There was judgment for plaintiff and defendant appealed.
    Judgment affirmed.
    Peterman, Dear & Peterman, of Alexandria, attorneys for plaintiff, appellee.
    K. Hundley, of Alexandria, attorney for defendant, appellant.
   WEBB, J.

The plaintiff, A. L. Smith, of Grant Parish, who was a minor above the age of eighteen years but representing himself as a major, entered into a contract with defendant, J. H. Hempen, of Rapides parish, under which it was agreed that plaintiff, who was the owner of a Ford car on which there was a chattel mortgage of one hundred dollars, would deliver the Ford car to defendant, who would assume and pay the chattel mortgage, and defendant agreed to deliver to plaintiff a Star car and plaintiff in turn to give one note for four hundred eighty-eight and 76/100 dollars, payable in twelve monthly installments of forty and 73/100 dollars, secured by chattel mortgage on the Star car, and to give defendant four notes of twenty-five dollars each, to cover the payment" to be made on the chattel mortgage ■ on the Ford car.

On April 21, 1926, and in accordance with the agreement, plaintiff delivered the Ford car to defendant and gave the note of four hundred eighty-eight and 76/100 dollars, secured by chattel mortgage on the Star car, and also the four notes of twenty-five dollars each to cover the amount to be paid by defendant on the chattel mortgage against the Ford car, and defendant delivered the Star car to the plaintiff.

Following, on April 26, 1926, defendant paid the chattel mortgage on the Ford car and attempted to negotiate the note of four hundred eighty-eight- and 76/100 dollars, and was unable to do so, as the (person 'to whom the note was attempted to be negotiated ascertained that plaintiff was a minor, and on or about March 1, 1926, plaintiff having returned the Star car for minor adjustments to be made, defendant took up with him the question of minority, and failing to obtain the endorsement of plaintiff’s father, defendant would not permit plaintiff to remove the Star car.

Subsequently, on or about the 15th day of March, 1926, defendant sold the Star car for five hundred and fifty dollars, and in May defendant sold the Ford car for two hundred and forty dollars, and in October, 1926, plaintiff having been emancipated brought the present suit, which the parties apparently consider to be an action for restitution and for damages, and on trial judgment was rendered in favor of plaintiff in the sum of three hundred and twenty-five dollars, and ordering defendant to return the four notes of twenty-five dollars each, from which judgment defendant appeals.

The amount allowed is conceded to have been based upon the value of the Ford . car, as found by the court, and twenty-five dollars damages alleged to have been sustained by reason of the defendant’s refusal to return the Ford car to plaintiff, it being alleged he had been unable to . continue his work, being without a car to enable him to go to and from the place of employment, and defendant complains of the amount of the award, and the failure of the court to allow him to recover the amount of one hundred dollars paid by him to clear the Ford car of the chattel mortgage, as well as the failure to allow defendant one hundred and twenty-five dollars, damages to the Star car while in plaintiff’s possession.

Considering the cause as an action for restitution, we find that the evidence establishes the value of the Ford car to have been three hundred dollars, but we are of the opinion that defendant was not bound to deliver the Ford car to plaintiff until the amount of one hundred dollars, paid by defendant to release the Ford car from the mortgage, was refunded to him, as we find that such amount enured to the benefit of plaintiff (C. C. 2229; Lagay vs. Marston, 32 La. Ann. 170), and as the evidence does not show that such amount was tendered to defendant, and that the damage, if any, resulted from his failure to have the immediate possession of the Ford, rather than from the subsequent conversion, we do not think plaintiff is entitled to any damages by reason of his alleged loss of employment.

Relative to the claim for damages to the Star car while in the possession of plaintiff, the evidence does not show that it was damaged, and the claim appears to be based solely on the circumstance that the market price of an automobile is materially affected where it is repossessed by the seller, without regard to whether it has materially deteriorated in value, and the legal basis of the claim is that plaintiff had fraudulently represented that he was of majority, and that he could not claim restitution against obligations resulting from an offense or quasi offense (C. C. 1785; 2226).

“The mere declaration of majority made by a minor is no obstacle to his restitution,” ,

(C. C. 2224), and in order for the defendant to hold plaintiff for the damages claimed by reason of the declaration of majority, it was incumbent on him to show that the declaration was fraudulently made with the purpose of getting possession of the Star car.

Strictly speaking, the plaintiff obtained possession of the Star car under the agreement made with defendant, and while the agreement could have been disavowed by plaintiff, the evidence does not indicate that plaintiff had any purpose of obtaining possession of the Star car and then of disavowing the agreement and claiming restitution, and we do not think that the evidence establishes that the plaintiff was guilty of fraud (see Sirey, C. N., Arts. 1307, 1310, 1312; Hucc. vol. 8, No. 208), and the damage claimed resulting from the contract, rather than from any actual damage to the property while in the possession of plaintiff, we do not think defendant can recover for such damage.

While it may be inferred from defendant’s agreement that the right to claim for such damages is somewhat based upon the fact that the action for restitution was instituted by him after he became of majority or was emancipated, and that his rights should be governed by equitable principles, as would be the case with any other person of majority, and that he should not be permitted to recover without accounting for the injury sustained by plaintiff by reason of the contract; however, the right to restitution is governed by the Civil Code, Arts. 2221, et seq., under which losses resulting directly from the invalidity of the contract cannot he considered (Willet vs. Tessier, 15 La. 13), and considering the action as one of restitution, from which point of view, as stated, the cause was decided, and is apparently presented here, the fact of the action having been brought by the plaintiff after his majority does not affect the situation, as the rights sought to be exercised accrued during minority and should be governed by the law applicable at that time.

While the Civil Code holds the ¡parents to rather a strict accountability for the actions of their minor children, it also provides for the protection of the minor’s estate against obligations flowing or resulting from their actions, except in designated instances, where his necessities require him to act, or where he is guilty of an offense or quasi offense (C. C. 1785), and one asking to recoup his losses resulting from a contract with a minor, from the estate of the minor, must bring the obligation under one of the designated exceptions, or, as previously stated, show that his losses or funds or property received by the minor had enured to the benefit of his estate (C. C. 2229), and as the evidence does not place the obligation under one of the designated exceptions but shows that the loss claimed to have been sustained by defendant (depreciation in the market price of the Star car) resulted directly from the contract, to allow defendant to recoup such loss from the plaintiff’s estate would be to give effect to the contract.

The judgment appealed from failing to allow defendant to offset the amount of one hundred dollars paid by him to clear the Ford car of the chattel mortgage for that amount, and having allowed twenty-five dollars for damages, we find that it should be amended so as to allow a credit for the amount paid by defendant, and rejecting the demand for damages, thus reducing the amount of the judgment in favor of the plaintiff to two hundred dollars; and it is therefore ordered, adjudged and decreed that the judgment appealed from be amended as above, and as amended affirmed, plaintiff to pay cost of appeal.


text:
    No. 3131
    Second Circuit
    BROWN v. GOODPINE LUMBER COMPANY OF LOUISIANA, INC.
    (February 3, 1928. Opinion and Decree.)
    (March 14, 1928. Rehearing Refused.)
    (May 6, 1928. Writs of Certiorari and Review Denied by Supreme Court.

      (Syllabus by the Court)

    1. Louisiana Digest — Master and Servant —Par. 160 g; Citation and Appearance —Par. 6; Prescription — Par. 190, 192, 193.
    Where, in a suit seeking to hold the Good-pine Lumber Company of' Louisiana, Inc., a Louisiana corporation, liable to plaintiff under the Employers’ Liability Act, the defendant is described, both in the petition and citation, as the “Goodpine Lumber Company, Inc.,” service of the petition and citation on a person authorized to receive the same for the Goodpine Lumber Company of Louisiana, Inc., is sufficient to interrupt prescription in the action quo ad the latter.
    Blakeney vs. Easterwood, 3 La. App. 796.
    Babin vs. Lyons Lumber Co., 132 La. 873, 61 So. 855.
    Lemieux vs. Cousins, 154 La. 811, 98 So. 255.
    2. Louisiana Digest — Master and Servant —Par. 158, 160.
    Where two employees of a common employer while engaged in work for the master classified under the Employers’ Liability Act as hazardous quarrel with each other as to the manner in which each is performing his duties for the master, and fifteen or twenty minutes later one of them strikes and kills the other with a piece of iron pipe used in the employer’s work, the killing arises out of and in the course of the employment of the deceased and entitles his widow to compensation under the terms of the act.
    Ferguson vs. Cady-McFarland Gravel Co., 156 La. 871, 101 So. 248.
    Byas vs. Hotel Bentley, Inc., 157 La. 1030, 103 So. 303.
    Gilyard vs. O’Reilly, 4 La. App. 498.
    Appeal from the Eighth Judicial District Court of Louisiana, Parish of LaSalle. Hon. F. E. Jones, Judge.
    Action by Edna Brown against Goodpine Lumber Company of Louisiana, Inc.
    There was judgment for plaintiff and defendant appealed.
    Judgment affirmed.
    Harry Fuller, C. W. Flowers, of Jena, attorneys for plaintiff, appellee.
    White, Holloman & White, of Alexandria, attorneys for defendant, appellant.
   STATEMENT OF THE CASE.

REYNOLDS, J.

This is a suit by Edna Brown as the widow of Joseph Brown, deceased, to recover compensation from the Goodpine Lumber Company of Louisiana, Inc., under the Employers’ Liability Aot for the death of her husband alleged to have been by accident arising out of and in the course of his employment by that company.

The original petition and citation described defendant as the “Goodpine Lumber Company, Inc.” and were served on a person whose authority to receive service of such process for the Goodpine Lumber Company of Louisiana, Inc., is not questioned.

The defendant excepted that its name was Goodpine Lumber Company of Louisiana, Inc., and not “Goodpine Lumber Company, Inc.”

Whereupon plaintiff, by leave of court, filed an amended and supplemental petition correctly describing defendant and service and citation on this amended and supplemental petition were had on the GooGpine Lumber Company of Louisiana, Inc.

Thereupon defendant filed an exception of no cause of action and a plea of prescription of one year.

Before hearing on the plea or exception plaintiff was permitted by the court, over defendant’s objection, to file a second amended and supplemental petition.

To the second amended and supplemental petition defendant renewed its exception of no cause of action and plea of prescription.

The exception and plea were heard by the court and both overruled, and defendant, reserving the benefit of the exception and plea, answered admitting the employment of the deceased and that he was slain by a fellow servant of his but denying that the slaying arose out of its employment of the deceased within the meaning of the Workmen’s Compensation Act.

On these issues the case- was tried and there was judgment in favor of plaintiff and against defendant and defendant appealed.

OPINION.

Plaintiff’s husband was killed September 30, 1925, her suit was filed September 30, 1926, and service was had on October 1, 1926.

Defendant contends that the suit was not brought within the prescriptive period of one year, but cites no authority in support of that contention.

We think a- suit filed on September 30, 1926, on a cause of acton accruing on September . 30, 1925, is brought within one year.

C. C. 2058, 2061.

Defendant also contends that because the original petition and citation described it as “Goodpine Lumber Company, Inc.” they were insufficient to interrupt prescription as against Goodpine Lumber Company of Louisiana, Inc., its real name.

It is not shown or contended that the person on whom the petition and citation were served was not authorized to receive service of such process for the Goodpine Lumber Company of Louisiana, Inc., and we therefore think that under the authority of Blakeney vs. Easterwood; Babin vs. Lyons Lumber Co., and Lemieux vs. Cousins, supra, the service of the petition and citation interrupted prescription and that the first and second amended and supplemental petitions related back to the original and cured as of the date of its filing the misdescription of defendant therein.

But defendant also insists that even if the original proceedings were sufficient otherwise to interrupt prescription, yet prescription was not interrupted because the petition did not show a cause of action, in that it does not show that the killing was the result of the employment, or that the employment was the agency producing the killing, or that the employment was such that the risk to the deceased from which his death resulted was greater because of the employment than for a person not engaged in the employment.

The petition alleges, inter alia,

“* * * that the injuries resulting in the death of her said husband were received by the said Josh Brown while performing services for said company arising out of and incidental to his employment and in the course of his employer’s trade and business.”

We think these allegations sufficient to show that the petition was not deficient in the respect claimed by defendant.

Defendant’s exception and plea were therefore properly overruled.

There is no serious dispute about the material facts in the case. The evidence clearly shows that plaintiff’s husband and one Ernest Mackey were employees of the Goodpine Lumber Company of Louisiana, Inc., and both engaged in doing the same kind-of work — moving and shifting lumber and other manual labor at and about a sawmill owned and operated by defendant, and that on the day of the slaying of plaintiff’s husband by Ernest Mackey the two had engaged in a war of words over the manner in which each was doing the master’s work and about fifteen or twenty minutes after the quarrel Ernest Mackey picked up a piece of iron pipe that was used by them to “break off lumber with,” a tool needed and used by them in performing their work, and while plaintiff’s husband’s back was turned and while he was unaware of Mackey’s intention and without any provocation on the part of the deceased struck him on the head with the iron pipe and killed him.

These facts clearly entitled plaintiff to judgment, under the authority of Ferguson vs. Cady-McFarland Gravel Co.; Byas vs. Hotel Bentley, Inc., and Gilyard vs. O’Reilly, supra.

Defendant’s counsel in an able brief urge with much earnestness that the law as set forth in Ferguson vs. Cady-McFarland Gravel Co., is not sound and should not be followed.

Be that as it may, it is the decision of our Supreme Court and unquestionably binding on this court as are the decisions in Byas vs. Hotel Bentley, Inc., and Gilyard vs. O’Reilly.

Under the law and the evidence the judgment appealed from is correct and is affirmed.


text:
    No. 3002
    Second Circuit
    WHITMEYER v. LIBERTY INDUSTRIAL LIFE INSURANCE CO.
    (November 10, 1927. Opinion and Decree.)
    (December 21, 1927. Rehearing Refused.)
    (May 7, 1928. Affirmed by Supreme Court on Writ of Certiorari and Review.)

      (Syllabus by the Editor.)

    1. Louisiana Digest — Insurance—Par. 177. Under Act No. 227 of 1916 amending Act 52 of 1906 where no copy of any representations of insured were attached to the policy, alleged fraudulent representations as to age of insured cannot be proven.
    2. Louisiana Digest — Insurance—Par. 160.
    Beneficiary under life insurance policy cannot recover penalty nor attorney’s fees for failure of insurer to pay promptly.
    Apipeal from the First Judicial District Court, Parish of Caddo. Hon. E. P. Mills, Judge.
    Action by Carrie W. Whitmeyer against Liberty Industrial Life Insurance Company.
    There was judgment for defendant and plaintiff appealed.
    Judgment reversed.
    John G. Gibbs, of Shreveport, attorney for plaintiff, appellant.
    Robert P. Hunter, of Shreveport, attorney for defendant, appellee. .
   REYNOLDS, J.

The plaintiff, Carrie Whitmeyer, beneficiary under a policy issued by the defendant, Liberty Industrial Life Insurance Company, on the life of John Whitmeyer, brought, this action to recover judgment for the amount agreed to be paid under the policy on the death of the insured,, and ¡penalties, alleged to have been attorney’s fees incurred by plaintiff.

The defendant pleaded the policy was void under a general provision of the policy which declared that:

“The company’s established rates provide for coverage for lives aged from eleven to fifty next birthday, and no policy shall be valid unless the age of the insured at' the time of the issuance was comprised between the limits stated. Should, on account of misstatement of age, a policy have been issued on a life aged less than eleven years or more than fifty years next birthday, such policy shall be null and void and all premiums paid thereon shall be forfeited to the company.”

And, further, that the insured, at the date of the policy, was above the age of fifty years, and that in obtaining the policy or contract he had practiced a fraud uipon the rights of the company and violated one of the main considerations and warranties of the said contract, of which the company did not have any notice until after the death of the insured.

On trial evidence was admitted, over objection of the plaintiff, to establish that the insured was over the age of fifty years at the time the policy was issued and that he had represented himself to be under that age at the time the policy was written.

The statute (Act No. '227 of 1916, amending and re-enacting Act No. 52 of 1906) provides:

“That every policy of insurance issued or delivered within the state on or after the first day of January, nineteen hundred and seven, by any life insurance corporation doing business within the state, shall contain the entire contract between the parties and nothing shall be incorporated therein by reference to any constitution, by-laws, rules, application or other writing, unless the same are endorsed upon or attached to the policy when issued; and all statements purporting to have been made by the insured shall, in the absence of fraud, be deemed representations and not warranties, and no statement or statements not indorsed upon or attached to the policy tohen issued, shall he used in defence of a claim under the policy unless contained in a written application, and unless a copy of such statement or statements he endorsed or attached to the policy when written. Any ioaiver of this section shall he void.” (Italics ours.)

The (policy did not havo attached thereto any copy of a written application purporting to have been made by the insured or by anyone else although the policy declares that the age of the insured at next birthday would be forty-nine years; and the objection to the evidence tq show that the insured was above the age of fifty years was based upon the fact' that there was not attached to the policy any copy of a statement purporting to have been made by the insured.

We are of the opinion that the evidence was not admissible under the plain terms of the statute in order to show that the insured had made any fraudulent representations as to his age; as there was not any copy of a statement purporting to have been made by the insured attached to the policy, and in order to show the fraud or misrepresentation it was necessary first to prove the representations made, which could not be done in view of the fact that the representations could not be proven as there was not a copy of any representations attached to the policy. (Fisette vs. Mutual Life Ins. Co., 162 La. 619, 110 So. 880.) Even though fraud was charged, when it is apparent, as in the present instance, that the fraud charged (which, by the way, was not proven, as the evidence shows that the policy was written on application by the agent, and that the insured vas not even present) does not relate in any manner to representations which could have (prevented the insurer from attaching to the policy a copy of the representations which might have been made by the insured.

It is, however, apparently contended that in view of the fact that the policy contained the general provision herein-above quoted, relative to the age of persons on whom the company would accept a'risk, and the policy showing that it was written on the life of the insured at an age within the limits, that the evidence was properly admitted to show that the insured was above the age at which the company would accept the risk without regard to the question of fraud.

The general rule quoted is not alleged to be a limitation established by the constitution or by-laws of the company on the powers of its officers; neither is there any plea that the contract was ultra vires, and it appears that the powers of the officers were not limited by such cause, as, after stating the general policy of the company relative to accepting risks, it is declared that where a risk is accepted on a person without the limits, and where the policy was issued on the misrepresentation of age, the policy shall be null and void and the premiums paid shall be forfeited to the company; and from this point of view we think the statute quoted (Act No. 227 of 1916) is controlling, and the evidence was not admissible to invalidate the contract.

* The policy provides that if the insured shall die within twelve calendar months from the date of the policy, that one-half of the policy would be paid; and the evidence showing that the death of the insured occurred within that period, the beneficiary can recover only one-half of the face of the policy, or two hundred and fifty dollars; and as there is not any law fixing a penalty on the company for failure to pay promptly (Brown vs. Casualty Co., 161 La. 229, 108 So. 464), she cannot recover for attorney’s fees.

It is therefore ordered, adjudged and decreed tha,t the judgment appealed from be annulled, avoided and reversed, and that plaintiff, Carrie Whitmeyer, have and recover judgment against • defendant, Liberty Industrial Life Insurance Company, in the sum of two hundred and fifty dollars, with legal interest from judicial demand, and all costs of suit.


text:
    No. 2997
    Second Circuit
    PHELPS v. UNITED CARBON COMPANY
    (December 21, 1927. Opinion and Decree.)
    (March 14, 1928. Rehearing Refused.)
    (May 7, 1928. Writ of Certiorari and Review denied by Supreme Court.)

      (Syllabus by the Court)
    1. Louisiana Digest — Master and Servant —Par. 158.
    The intentional slaying of an employee by a co-employee on the master’s premises and while on duty from motives of jealousy or revenge growing out of alleged relations of the slain to the family of the slayer and in no way connected with or growing out of their employment by the common master is not compensable as an accident arising out of or in the course of the slain man’s employment within the contemplation of the employers’ liability law, Act No. 20 of 1914 as amended.
    Conoway vs. Marine Oil Co., Ltd., 162 La. 147, 110 So. 182; Myers vs. La. Ry. & Nav. Co., 140 La. 937, 74 So. 256; Pickett vs. Southern Carbon Co., No. 2984 on the docket of this court, this day decided.

      Appeal from the Fourth Judicial District Court, Parish of Ouachita. Hon. Percy Sandel, Judge.
    Action hy Mrs. Zonie B. Phelps against United Carbon Company.
    There was judgment for defendant and plaintiff appealed.
    Judgment affirmed.
    J. M. Munholland; John E. Johnson, of Monroe, attorneys for plaintiff, appellant.
    John C. Hollingsworth; McHenry, Montgomery, Lamkin & Lamkin, of Monroe, attorneys for defendant, appellee.
   STATEMENT OF THE CASE.

REYNOLDS, J.

This is a suit by Mrs. Zonie Blackwell Phelps individually and as natural tutrix of her minor children, Lang-ford Phelps and Thaddeus Phelps, issue of her marriage with Willie A. Phelps, deceased, to recover compensation from the United Carbon Co. under the Workmen’s Compensation Law (Act No. 20 of 1914 as amended) for the death of her husband, Willie A. Phelps.

She alleged that her husband was employed by defendant in the capacity of production 'foreman at a weekly salary of $36.16 — 2/2 and the use of a dwelling house without cost worth $5.00 per week, and—

“That at about the hour of seven o’clock A. M., on August 13th, 1926, while acting within the scope of his employment, he went to the bath room of the plant to put on his working clothes, which was necessary for the proper discharge of his duties, and which, during all the time of his employment he had been instructed and ordered to do by his employer, and that while in said bath house and acting in a perfectly lawful and peaceful way, he was unlawfully and maliciously assaulted by one Augusta Mc-Dougal, a co-employee, and was by the said Augusta McDougal, without provocation, or lawful cause whatsoever, intentionally shot and killed by the discharge of a pistol in the hands of and operated by the said Augusta McDougal.”

And, by amended petition, the plaintiff supplemented the foregoing paragraph with additional allegation—

"That the death of the said Willie A. Phelps resulted from and was caused by an accident arising o*t of and in the course of his employment with the said United Carbon Company.”

The defendant filed exceptions of no cause of action and lack of jurisdiction ratione materiae which, by consent, were referred to the merits, and thereupon it filed an answer denying liability and specially alleging that the slaying of Phelps by McDougal was intentional; that no business relations existed between them connected with defendant’s business making necessary the giving or taking of orders between Phelps and McDougal; that the slaying of Phelps by McDougal was not accidental but intentional and occurred while Phelps was intending to cause injury to McDougal or to himself by engaging in combat with McDougal about matters wholly disconnected 'with defendant’s business^ and the relations of Phelps and McDougal thereto; and that the enmity between Phelps and McDougal provoking the slaying of the former by the latter arose solely out of private matters between them and in no way connected with their relationship as employees of defendant.

Defendant further alleged that at the time of the death of Willie A. -Phelps plaintiff . and her minor children were not living with or being supported by him and that he was not contributing in whole or in part to their support.

On these issues the case was tried and there was judgment rejecting plaintiff’s demand and dismissing her suit and she appealed.

OPINION

The only question for our decision is, was the slaying of Willie A. Phelps by Augusta McDougal an accident arising out of his employment by defendant, within the contemplation of the employers’ liability law (Act No. 20 of 1914 as amended).

The evidence clearly establishes that the slaying was intentional and that it grew out of troubles engendered by alleged relations between the slain man and the family of the slayer.

One of plaintiff’s witnesses, W. H. Eldridge, testified (evidence, (pages 10 and 12).

“Q. Did Mr. McDougal make any statement to you on the night' before with reference to Mr. Phelps ?
“A. Yes, sir; he told me he was going to kill him if he did not go with him and straighten out some family affairs.
“Q. Are you positive that when Mr. McDougal spoke to you on the evening or night of the 12th, of August he told you positively that he was going to kill Phelps on account of family difficulties?
“A. Yes, sir.
“Q. You are positive that that was the statement made to you, family difficulty?
“A. Yes, sir; family affairs.
“Q. And when you say family difficul ties, with reference to what families are you referring?
“A. Well, the two families involved; Mr. McDougal’s and Mr. Phelps’ families."
Ben Whitfield, another of plaintiff’s witnesses, testified (evidence, pages 3, 8, 9).
“Q. During the time you were working there with and under Mr. McDougal, and particularly on the day before or the night before the killing, state whether or not he made any statement to. you in regard to Mr. Phelps.
“A. Well, yes, sir.
“Q. What did he say?
“A. He come to me about 3 o’clock that morning and told me Mr. Phelps was to meet him at a filling station down at Ruston, and he said he got there one minute to 11 o’clock and waited for him, and he didn’t come. Since he didn’t come, he said, he was going to kill him.
‘‘Q. Did he tell you when he was going to kill him?
“A. Well, yes, sir.
“Q. What, did he say?
“A. He said to-hight was my last night ■ — he had done his last day, I am going to kill him in the morning.
“Q. Now, when Mr. McDougal was doing that talking to you on the 12th of August, 1926, wherein he said that Mr. Phelps had agreed to meet him in Ruston on the 11th of August, 1926, and he didn’t, and therefore he, McDougal, was going to kill Mr. Phelps that day — that is the next day?
"A. Yes, sir.
“Q. Did he tell you why he was going to kill him?
“A. Yes, sir, he told me why he was going to kill him.
“Q. What did he tell you? Let’s have the statement.
“A. He told me he failed to meet him at the filling station nigh Ruston; he got there one minute of the time he was to meet, and he didn’t meet' him.
“Q. Did he tell you why he wanted to meet him there ?
“A. Yes, sir, he told me why. In part he said there- was some difficulty arriving between him and Mr. Phelps concerning of his family, and he wanted to meet him there and talk it over with him.
“Q. Now, didn’t he tell you it was because of some supposedly familiar relations between Mr. Phelps' and Mr. Mc-Dougal’s wife? Now think it over.
“A. Well, that’s what I learned. That’s what he told me at the time. He failed to meet there and talk over some matters that was to be settled.
* * *
“Q. Tell us as much as he did tell you. Tell us all as near as you remember it now.
“A. That’s what he told me. Come to me and squatted down, about 3 o’clock, and says: T am awfully sleepy. I haven’t slept any. I been mad. Mr. Phelps promised to meet me nigh Ruston at a filling station at 11 o’clock and I got there one minute of the time and stayed there until afternoon and he failed to come. He didn’t get there at all. I am going to kill him in the morning. I have made ■my last night and he has made his last day’.”

The testimony of these two witnesses as to what McDougal told them is undisputed.

Counsel for plaintiff contend that under these facts plaintiff is entitled to judgment and they cite in support of their contention the following cases:

Ward vs. Standard Lumber Co., 4 La. App. 89.

In re McNicol, 215 Mass. 397, 102 N. E. 697;

L. R. A. 1916A, 306.

Ferguson vs. Cady-McFarland Gravel Co., 156 La. 871, 101 So. 248.

Dyer vs. Rapides Lumber Co., 154 La. 1091, 98 So. 677.

Byas vs. Hotel Bentley, Inc., 157 La. 1030, 103 So. 303.

Myers vs. La. Ry. & Nav. Co., 140 La. 937, 74 So. 256.

Flowers vs. Williams-Rieves Lumber Co., 5 La. App. 49.

We have examined all of these cases and are of opinion that none of them supports plaintiff's contention. It would serve no useful purpose to review them here. Suffice to say that all of them can be differentiated from the instant case which, in our opinion, is controlled by Conaway vs. Marine Oil Co., 162 La. 147, 110 So. 181, also cited by plaintiff, and Pickett vs. Southern Carbon Company, No. 2984 on the docket of this court, not yet reported.

In the latter case the deceased employee was foreman of his employer’s gasoline plant at Spyker, Louisiana, and while at work in the usual course of his employment in the gasoline plant he was informed by another employee that one Frank Cox, not an employee, desired to see him; the deceased and Cox met on a wooden platform that leads from the warehouse to the railroad and after a few minutes’ conversation Cox drew a pistol from his pocket and shot and killed the deceased. And we held that the death was not an accident arising out of the deceased’s employment within the meaning of the compensation act.

We do not think that the hazard to Phelps from the enmity of McDougal was increased by the fact that the latter or both he and McDougal were employees of defendant; on the contrary, we are of opinion that it would have been entirely as great if Phelps or both he and McDougal had not' been employees of defendant.

This, apparently, was the view taken of the case by the trial court, and we do not think it erred.

The judgment appealed from is therefore affirmed.


text:
    No. 3071
    Second Circuit
    BOYETT v. URANIA LUMBER CO., LTD.
    (February 3, 1928. Opinion and Decree.)
    (March 14, 1928. Rehearing Refused.)
    (April 9, 1928. Writs of Certiorari and Review denied by Supreme Court.)

      (Syllabus by the Court)
    1. Louisiana Digest — Master and Servant —Par. 159, 160 j.
    As a general rule, six days constitutes a working week and will be adopted as such where it is not alleged and proved that a different rule existed.
    2. Louisiana Digest — Master and Servant —Par. 159.
    In arriving at the daily wage of one engaged in felling trees and sawing them into logs at a fixed price per thousand feet, board measure, no definite rule can be established, and each case must depend on its own particular facts and circumstances.
    Appeal from the Eighth Judicial District Court of Louisiana, Parish of LaSalle. Hon. F. E. Jones, Judge.
    Action by Mrs. George Boyett against Urania Lumber Company, Ltd.
    There was judgment for plaintiff and defendant appealed.
    Judgment affirmed.
    Vinson M. Mouser, attorney for plaintiff, appellee.
    Walmsley, Beard & O’Keefe, of New Orleans, and Theus, Grisham & Davis, of Monroe, attorneys for defendant, appellant.
   STATEMENT OF THE CASE.

REYNOLDS, J.

Plaintiff, Mrs. George Boyett, individually and as natural tutrix of her five minor childrén, issue of her marriage with George Boyett, sues the defendant, Urania Lumber Company, Limited, under the Workmen’s Compensation Law for compensation for the death of George Boyett which occurred by accident while performing duties arising out of and in the course of his employment by defendant. She alleged that her husband at the time of his death was earning $5.15 a day and she asks for compensation of $20.00 per week for 300 weeks, beginning January 17, 1927, with legal interest on each payment from the date of its maturity, for $250.00 medical and hospital expenses, $100.00 for burial expenses, and for $50.00 contingent burial expenses.

Defendant admitted liability but denied that it owed plaintiff as much as she claimed and alleged that her husband was only earning $14.50 a week and that it had duly tendered her 65% of this amount, or $9.46 per week, for 300 weeks, but that she had refused the tender.

And defendant denied that it was liable to plaintiff for the amounts claimed by her for medical and hospital expenses or burial expenses or contingent burial expenses.

On these issues the case was tried and there was judgment in favor of the plaintiff arid against defendant for $13.85 a week for 300 weeks, beginning January 17, 1927, with legal interest on each payment from its maturity until paid.

Defendant has appealed.

OPINION.'

The only dispute between plaintiff and defendant and the only question presented for our determination is as to the daily wage of plaintiff’s husband.

Our learned brother of the District Court, in a written opinion, said this on the subject:

“What was the average daily wage of the h,usband of the plaintiff at the time that he received the injuries that resulted in his death? The evidence shows that he worked six days during the month of January, 1927,' before his death, fourteen days in the month of December and eighteen days in the month of November, 1926. There is no evidence in the record to show how many days he worked in the months of September and October, 1926, but the evidence shows that for September, 1926, he earned $95.20 and for October, 1926, he earned $73.65. The court is of the opinion that there is nothing in the record to show how many days the deceased worked during these two months, and this earning should he disregarded in arriving at the average daily wage. He earned $80.60 in November and $46.75 in December, 1926, and $27.75 in January, 1927, not counting the sixty cents he made on the day of his injury; which shows that during the months of November and December, 1926, and January, 1927, the deceased worked thirty-eight days. Thus during the thirty-eight days that he worked he earned $134.10, which would give him an average daily wage, for the days he worked, of $3.55 per day which would be $21.30 per week. The widow is entitled to recover for herself and minor children 65% of this amount, which is $13.85 per week, for a period not to exceed three hundred weeks.”

The Workmen’s Compensation Law (section 8, subsection 2) declares that—

“For injury causing death within one year after the accident there shall be paid to the legal dependents of the employee * * * a weekly sum as hereinafter provided * *

And subsection 3 of the same section provides that—

“The term ‘wages’ as used in this act is defined to mean the daily rate of pay at which the services rendered by the injured employee is recompensed under the contract of hiring in force at the time of the injury * *

In our opinion the “daily rate of pay” means one-sixth of the average weekly earnings of the employee during a six-day week and that the “weekly sum” to which the employee or his dependents are entitled is the specified percentage of an amount equal to six times the “daily rate of pay” so arrived at.

Had the District Court taken $27.75, the earnings of deceased during the last six days before the accident, as his average weekly wage, and divided this amount by six, it would have yielded $4.62 as the “daily rate of pay;” but considering all the evidence, including the thirteen monthly pay envelopes in evidence and the fact that the average daily earnings of persons engaged in performing the work plaintiff’s husband was engaged in is $3.00, and considering, also, that one who works, as plaintiff’s husband did, by the piece, ordinarily works more hours in the day than do they who only work by the day, we cannot say that the amount fixed by the District Court as the “daily rate of pay” of plaintiff’s husband is incorrect.

Defendant’s counsel cite the cases of

Bell vs. Albert Hanson Lumber Co., 151 La. 824, 92 So. 350.

Dick vs. Gravel Logging Co., 152 La. 993, 95 So. 99.

Burt vs. Davis-Wood Lumber Co., 157 La. 111, 102 So. 87.

as holding that the daily rate of pay of an employee working by the piece must be ascertained by considering the average weekly earnings; but in none of the cited cases was the question of the manner of ascertaining the daily rate of pay in dispute and we do not understand any one of these cases as laying down an inflexible rule for determining the question. However, they do hold that in determining the daily wage of one engaged in felling trees and sawing logs at a fixed price per thousand feet the court should consider all the facts and circumstances in the case and render judgment accordingly. This we think was done by the District Court with fairness and equity to both plaintiff and defendant.

It is therefore ordered, adjudged and decreed that the judgment appealed from be affirmed.


text:
    No. 2844
    Second Circuit
    HUTCHINSON BROTHERS, INC., v. BLANCHARD
    (March 14, 1928. Opinion and Decree.)

      (Syllabus by the Editor)

    1. Louisiana Digest — Appeal—Par. 598.
    Where there is no evidence or statement of fact in the record to show the judgment overruling the motion to dismiss a writ of sequestration is incorrect, the appellate court ¡presumes the evidence offered sufficient to warrant the judgment.
    2. Louisiana Digest — Appeal—Par. 512; Costs and Fees — Par. 59.
    Where judgment bears 8% interest on promissory notes, the court will in its discretion grant damages at 5% for frivolous appeal under Art. 907 Code of Practice.
    • Appeal from the City Court of the City of Shreveport. Hon. David B. Samuel, Judge.
    Action by Hutchinson Brothers, Inc., against Frank A. Blanchard.
    There was judgment for plaintiff and defendant appealed.
    Judgment affirmed with damages for frivolous appeal.
    William H. Cook, of Shreveport, attorney for plaintiff, appellee.
    Frank A. Blanchard, of Shreveport, attorney for defendant, appellant.
   WEBB, J.

The defendant appeals from a judgment rendered against him for the balance alleged to be due on a promissory note bearing eight percent per annum interest', sustaining a conservatory writ issued, under which a piano was seized, and recognizing a vendor’s privilege on the property seized, and plaintiff filed an answer to the appeal more than three days before the cause was fixed for argument, praying that damages be assessed against appellant as for a frivolous appeal.

Th.e only appearance made by defendant in the trial court before judgment was a motion to dissolve the sequestration on the face of the pleadings, which was overruled; and the judgment appears to have been rendered on confirmation of a default, and defendant has not appeared here to urge his appeal.

The motion to dissolve the writ was correctly overruled, and in default of any note of evidence or statement of fact appearing in the record, we presume there was evidence offered sufficient to warrant the judgment (National Park Bank vs. Concordia Land & Timber Co., 154 La. 31, 97 South. 272), and the defendant having permitted the cause to go by default in the trial court and failing to appear in this court to urge any error in the decree or to support his appeal in any manner, we are of the opinion the appeal is frivolous and damages should be awarded.

In view o.f the fact that the judgment bears eight percent per annum interest, as stipulated in the note sued upon, the damages will be fixed at five percent rather than the maximum provided by law (Art. 907, C. P. Southern Hardwood & Woodstock Co. vs. Seven Eleven Auto Co., 1 La. App. 316; Hicks vs. Bell, 1 La. App. 563; Mossman vs. Lynch, Orl. App. Teiss. Dig. App. 20).

The judgment appealed from is therefore affirmed with five percent on the principal amount of the judgment as damages for frivolous appeal, and at defendant’s cost.


text:
    No. 2467
    Second Circuit
    LeGUIN v. MORRIS, ET AL.
    (March 14, 1928. Opinion and Decree.)

      (Syllabus by the Editor.)

    1. Louisiana Digest — Appeal—Par. 625, 636. “On appeal in cases involving only issues of fact, finding will not be disturbed unless manifest error is pointed out, and showing of conflicting evidence is not sufficient.”
    Appeal from the City Court of the City of Shreveport. Hon. David B. Samuel, Judge.
    Action by Felix G. LeGuin against E. G. Morris, et al.
    There was judgment for plaintiff and defendant appealed.
    Judgment affirmed.
    Cecil Morgan, of Shreveport, attorney for plaintiff, appellee.
    Pugh & Boatner, of Shreveport, attorneys for defendant, appellant.
   WEBB, J.

The defendant, E. G. Morris, appeals from a judgment rendered against him in the City Court of the City of Shreveport.

The issue presented involved only questions of fact, and the evidence is conflicting.

The appellant has not made any appearance here, and from our examination of the record we find evidence to support the judgment.

“On appeal in cases involving only issues of fact, finding will not be disturbed unless manifest error is pointed out, and showing of conflicting evidence is not sufficient.” Pisciotte vs. Indemnity Co., 164 La. —, 113 South. 840.

The judgment appealed from is affirmed.