author: JANVIER, J.

text:
    No. 13,965
    Orleans
    BOREY v. MANNO
    (March 7, 1932. Opinion and Decree.)

      Chas. I. Denechaud and Ernest J. Robin, of New Orleans, attorneys for plaintiff, appellee.
    Harry M. Mayo, Jr., of New Orleans, attorney for defendant, appellant.
   JANVIER, J.

Plaintiff is a retail florist. His delivery truck, while it was being driven by an authorized employee, sustained injury in a collision with a much larger truck owned and operated by defendant. He claims $135 damages, $99 of which he alleges was expended in repairing and repainting the truck, and the balance he avers was the cost of hiring, for six days, another truck to substitute for his own while the latter was being repaired and repainted.

Judgment was rendered in .the court below for the full amount prayed for, and defendant appeals.

Both trucks were proceeding on Banks street, which street has two driveways separated by a neutral ground. The truck of defendant was being driven near the right or sidewalk side of the driveway, and that of plaintiff proceeding in .the same direction near the neutral ground, the former being some twenty or thirty feet ahead of the latter.

On the question of negligence, the disputed point is whether defendant’s truck, .the driver of which intended turning to the left into Murat street, was driven suddenly across the path of the other truck, or whether the left turn was not executed until the truck had been first driven to the left alongside of the neutral ground and ahead of plaintiff’s truck.

Under the pertinent provisions of the city traffic ordinance, an automobile driver who is proceeding along the right-hand side of the road and who intends turning to the left must first cross to the left side before attempting to turn. . C. C. S., No. 7490, art. 1, sec. 4, par. (c).

That defendant did not do this is best evidenced by his own statement that on account of the size and length of his truck he found it necessary, in order to turn to his left, to remain near the right-hand curb, so that the radius of the arc, the perimeter of which he intended .to follow in making the turn, might be as long as possible. It may be that this, as he says, was. necessary, but, if so, then it was his duty to take all possible precaution before turning to make certain that any one else following might not be misled by his position on the far right of the road into believing that no left turn was contemplated. True enough, defendant testified that he took every such precaution by holding out his hand and by looking back to see that no other vehicle was following, but his testimony that he saw no such. vehicle shows clearly that his looking back either was a fiction of his imagination or was carelessly performed, since it is quite evident that plaintiff’s truck was following him only a few feet away and was visible and could have been seen by any one who really looked.

That defendant made the turn carelessly, in that his truck was driven by him suddenly across the path of plaintiff’s truck, seems certain, and it follows that unless, in spite of such carelessness, plaintiff’s driver could, by the exercise of proper precaution, have avoided the collision, then the responsibility for the loss by plaintiff must be placed at defendant’s door.

It is charged by defendant that out of his own mouth plaintiff’s driver convicted himself of negligence when he testified that he did not see defendant’s truck in the roadway ahead until he was about twenty or thirty feet from it. We find that plaintiff’s driver did so testify, and we cannot fail to hold that it is. negligence for an operator of one vehicle to overlook another in the roadway ahead of him until reaching a point so close to it as to render a stop by him impossible. But a reading of the testimony of plaintiff’s driver shows that a proper interpretation of his statement, referred to above, is not that he did not see the other truck, but that he gave it no consideration because it was. proceeding on the right-hand side of the road, while he was on the left, and because it was not in his path and would have been of no interest to him at all whether it was a whole square ahead of him or only a few feet away, had it not suddenly turned into his path. It was only when it was twenty or thirty feet away that it made this turn across the course in which he was driving, and it was then too late for him to stop. Plaintiff’s driver then was not guilty of contributory negligence.

We are asked, if we come to a consideration of the quantum, to bear in mind the fact that the repairs were not made immediately, and that plaintiff is rather confused as to just when the said work was performed. It is said that some two months or more elapsed between the date of the accident, and the time at which the repairs were made, and that during that time the truck may have sustained other injuries in other accidents. The evidence is convincing that no such other accidents occurred and that only damage caused in the particular accident was sued for.

The truck of plaintiff was comparatively new, and, since it was considerably scratched by the overhanging side of the other truck, it is not surprising that it required repainting and that plaintiff’s name and address, etc., on the side needed re-lettering. The 'nature of the business carried on by plaintiff and the requirements of the persons with whom he deals are such that a neat looking delivery truck is quite necessary. The amount expended does not seem to us excessive.

Since plaintiff needed a truck in his business, and since he has testified that he actually hired another while his own was not available' to him, he is entitled to recover the amount of such hire. See Blashfield’s Enc. of Automobile Law, vol. 2, p. 2004; 32 A. L. R. 706.

The judgment appealed from is affirmed.


source: Caselaw Access Project

license: Public Domain

text:
    No. 13,923
    Orleans
    COLONIAL COUNTRY CLUB v. RICHMOND
    (March 7, 1932. Opinion and Decree.)

      Rolf I. Seeberg, of New Orleans, attorney for plaintiff, appellee.
    J. C. McGee, of New Orleans, attorney for defendant, appellant.
   JANVIER, J.

Plaintiff is an incorporated golf and social club. Defendant was a member thereof.

This suit is for dues, war tax thereon and for locker rental.

Defendant contends that he resigned his membership in the club prior to January 1, 1930, which is the time from which it is now claimed by the club that membership dues and other fees are owing.

Plaintiff calls attention to section 7, paragraph 1, of the by-laws of the organization by which, in' accepting membership, defendant agreed that in his dealings with the club he would be governed and controlled, in which paragraph it is provided that, “No resignation shall be accepted * * * unless said resignation shall have been placed in the hands of the secretary prior to January 1” and contends that, since no resignation of defendant was received by the secretary of the club prior to January 1, 1930, the obligation to retain membership for another year cannot be escaped.

Defendant admits that he did not hand his resignation to the secretary and that he cannot state it was actually received by that official and that he did not mail it, but he says that he did' deliver a written resignation to a Mr. Scobel, “the golf professional” employed by the club, and that the said Scobel agreed to make proper delivery of the resignation. Scobel is no longer in the employ of the club and was not produced as a witness.

According tq defendant he did not know who was the secretary and he testified that on all of his visits to the clubhouse and to the golf course Mr. and Mrs. Scoble seemed to have complete charge and that all of his dealings with the club were had through Scobel. •

The countervailing proof shows that Scobel had no official connection with the club; that he had been employed only as golf professional and grounds keeper and that he had no authority whatever to attend to such matters as memberships, resignations and the relations between the members and the officials of the club.

Defendant’s counsel argues that he, defendant, was under no duty to find the secretary and to present to him the resignation; that since the clubhouse appeared to be the domicile of the club he was justified, in the absence of the secretary, in presenting his resignation to anyone apparently in charge since there was no other official present. In support of his theory he points to the decision of the Supreme Court in State ex rel. Hinyub et al. v. Parish Democratic Executive Committee for the Parish of Jefferson, 173 La. 857, 138 So. 862. In that case certain prospective candidates for political office desired to qualify as entries in a party primary. The time limit for qualification expired at midnight on a certain day and they were required to file their respective notices of intention before midnight on that last day. When they attempted to do so it was impossible to locate either of the officers with whom the notices should have been filed and the office at which the officers might have been expected to be found was closed. In this emergency the parties placed their notices, properly addressed, in the United States mail. The court held that in view of the fact that they were given until midnight and because they had done all that they could do to locate the proper officials, their action in mailing the notices was sufficient.

We cannot see that that decision is applicable to the facts here. Had defendant waited until the last day, as was his right, and had he then gone to the club in an effort tq locate the secretary, and had he then, after an unsuccessful effort, given his resignation to some person at the domicile, of the club and apparently in charge, then the facts might bring the matter under the doctrine announced in the Hinyub case. But, according to Richmond, he gave his resignation some nine months or so before the end of the year — a most unusual thing to do as the evidence shows— and he, instead of locating the secretary and handing it to him in person, and instead of bringing it to the office of the clubhouse, and instead of depositing it in the mails, a course which he had no doubt adopted in paying other bills and the course which he adopted the following year in protesting against being charged further dues, he handed it to an unauthorized person for delivery. He thus made that person his agent and if the agent failed in his duties he himself must suffer the consequences.

During the nine months or so which intervened between the time at which he claims he presented his resignation to Scobel and the end of that year he could, with little effort, have ascertained whether the resignation was properly on file with the secretary.

The law applicable is well settled in 11 C. J. 927 as follows:

“* * * To entitle a member to resign, so as to relieve himself from further liability as such, he must comply with such provisions as may be contained in the bylaws relating to resignation. Accordingly * * * if the resignation is not received by the officer of the club designated by the by-laws to receive it, its receipt by a clerk in the club’s office does not render it effective.”

That the by-laws and constitution form the law between the club and its members is well settled.

“* * * If a club adopts a constitution and by-laws they constitute a contract between the club and its members, binding on both * * * and every member of the club is presumed to be acquainted with its rules * * *” 11 Corpus Juris, 924.
“* * * It is also a rule of general application that one who has become a member of an incorporated social club will be deemed to have known and assented to the provisions of its charter and by-laws. * * *” 25 R. C. L. 50.

See, also, Anderson v. Amidon, 114 Minn. 202, 130 N. W. 1002, 34 L. R. A. (N. S.) 647, Ann. Cas. 1912B, 987; In re Haebler v. N. Y. Produce Exchange, 149 N. Y. 427, 44 N. E. 87; Seligman v. Friedlander, 138 App. Div. 784, 123 N. Y. S. 583.

The same situation as we find here confronted the court in Boston Club v. Potter, 212 Mass. 23, 98 N. E. 614, 615 Ann. Cas. 1913C, 397, and there the court said:

“The plaintiff’s right to recover depends upon whether the defendant was one of its members and was liable for dues on December 1, 1907. He had been such a member, but he claimed that he had resigned his membership on January 8, 1907, and that his resignation had taken effect on or before November 30 of that year.
“His letter of resignation, though seasonably delivered to some clerk or other officer or agent of the plaintiff, was not received by its secretary or passed upon by its executive committee. Therefore, it never took effect under article 7, sec. 6, of the. by-laws. Resignation, with a cessation of further liability for membership dues, was a privilege of the member, and to avail himself of it he must comply with the terms of the by-law creating the privilege. * * *
“It was of no consequence that the defendant’s resignation came to some agent of the plaintiff, such as a clerk at its office, if that resignation' did not reach the necessary officer. * * *”

Plaintiff sued for $175, made up as follows:

Dues from January 1, to December 31, 1930 .............................................................$100
Dues from January 1 to June 30, 1931 ... 50
War tax on the above dues_____________________ 15
Locker rent for year 1930_______________________ 10
Total due' club____________________________________________$175

The proof justified only a judgment for one year’s dues, $100; one year’s war tax, $10; and one year’s locker fee, $10. The judgment below was for $120, and we believe that amount to be correct.

The judgment appealed from is affirmed.


author: ELLIOTT, J.

text:
    No. 806
    First Circuit
    KNISPEL v. GULF STATES UTILITIES CO., INC.
    (June 16, 1931. Opinion and Decree.)
    (October 7, 1931. Rehearing Refused.)
    (November 30, 1931. Writs of Certiorari and Review Granted by Supreme Court.)
    (February 29, 1932. Judgment of Court of Appeal Set Aside and Judgment of District Court Reinstated.)

      Cline, Plauche & Girod, of Lake Charles, attorneys for plaintiff, appellee.
    Pujo, Bell & Hardin, of Lake Charles, and Thatcher, Browne, Porteous & Myers, of Shreveport, attorneys for defendant, appellant.
   ELLIOTT, J.

Fred Knispel, an employee of Gulf States Utilities Company, Inc., engaged in the work of a lineman, while removing a cross-arm from a pole which formed one of the supports of its high voltage transmission line, accidentally fell to the ground a distance of about 36 feet, receiving, so he alleges, injuries to his arm, abdomen, pelvis, and right eye, of such character as to produce in him a permanent total disability to do work of any reasonable character.

The accident happened on May 22, 1929. The plaintiff was earning at the time $62.50 per week.

He claims compensation at the rate of $20 per week for a period of 400 weeks, subject to credit for compensation received at the rate of $20 per week from the week beginning May 22, 1929, and ending July 19, 1930.

Defendant admits employment of the plaintiff, that he fell from a pole and was injured as a result of the fall, and the payment of compensation as alleged; but denies owing him any further compensation; alleges it has in fact overpaid him, and prays that his demand be rejected.

For written reasons assigned, there was judgment in the lower court in favor of the plaintiff for 400 weeks, as prayed for.

Defendant has appealed.

There is testimony in the record that plaintiff’s arm was fractured as a result of the fall and testimony to the contrary. Be that as it may, whatever injury there may have been to the arm it was overcome within a year afterwards, and plaintiff suffers no further injury on that account, except that which exists in his arm as a result of non-use, and for which he is himself responsible.

The injury to his pelvis resulting from the fall is a far more serious matter. According to plaintiff, he had not recovered from this injury at the time of the trial, approximately a year and a half since the fall.

At the time of the trial he professed to be weak and unable to walk a distance greater than a mile without pain on account of it. That he cannot walk up a flight of steps except with difficulty and claims to be unable to pick up any weight at all without it hurting him.

The evidence shows that he was confined in the sanitarium at Lake Charles about two months, due to his injuries; he then went home. At home he was confined a while to his. bed and he then got up and for a while used a wheel chair. After a short time he got so he could get about on crutches, was finally able to walk with a cane, and at last did away with the cane, but at the time of the trial, about 18 months from the time of the accident, he still claimed to be unable to do work of any reasonable character, manual labor being the kind referred to, that being the only kind he is qualified to do.

Dr. Holcombe, who treated plaintiff on account of his injuries, speaks of the injury to his pelvis as a multiple fracture and very serious. The plaintiff was under his care for several months. This physician examined plaintiff the day before the trial and gave it as his opinion that plain•tiff could not at that time do hard manual work without getting some pain from his pelvis. His testimony seemingly has reference, however, to the kind of work the plaintiff had formerly done and was doing at the time of his injury, such as climbing poles, adjusting wires — heavy work putting a strain on the region of the pelvis, because he subsequently enumerates several kinds, of work that he thought plaintiff could do, but excepted heavy lifting.

The opinion of the doctor is exemplified by the following question and answer:

“Q. Doctor, Mr. Knispel says he has been exercising by walking, at your suggestion and that if he walks a mile his legs and hips give out. Would that be a natural result of his. pelvis injury?
“A. Well, of course he may have some pain, Mr. Plauche; it is like all these cases in litigation; they have the personal equation so much that I don’t like to treat a man that is in litigation. When litigation is going on of course he is going to come up and complain. I try to get by on a lot of these cases in litigation. It is impossible to treat them until the litigation is over, you can’t get by with it.”

Subsequently speaking of the pelvis injury, this doctor says:

“I couldn’t get any better result from a fracture of the pelvis than this, man has.
“Q. Doctor, you first said it was probably permanent — do you mean it is probably permanent or actually permanent?
“A. Well, what I did say, I think this man is going to have some actual pain more or less all his life from a fractured pelvis. I have never seen any fractured pelvis in the amount this man has been fractured, and he will have pain in his pelvis from laborious work.”

Mrs. Knispel says that her husband complains, seems to suffer, and, in that way, corroborates him.

Dr. Hatch, chief of the department of diseases and injuries of bones and joints in the Touro Infirmary of New, Orleans, and who is no doubt an eminent authority, whose opinion should have great weight, had examined plaintiff on September 30, 1930, which was about a week before the trial. Speaking of the result of his examination he says:

“Patient localizes his pain at just above the right hip joint; he stands with a very slight list to the left. All spinal motions free and painless, except the slightest possible pain on right lateral bending. No pain on raising either extended leg. All motions of both hips, knees and ankles normal. No abdominal tenderness. There is a definite disalignment on the crest of the right ilium and this is a spot in which patient complains of soreness.”

The statement continues but we do not quote further.

Dr. Hatch says that he found no pelvis disability at the time, and gave it as his. opinion that plaintiff could resume normal labor as a lineman if he would try.

Dr. Gessner, professor of clinical surgery at Tulane University, and well qualified to express an opinion as to plaintiff’s condition resulting from the injury in question, had examined plaintiff on November 20, 1929, and again on September 30, 1930. Speaking of his, examination on the day last mentioned, he says:

“Q. Is there any present disability in so far as the pelvic injury is concerned?
“A. No.”

Further questioned, he says that plaintiff has so far recovered from his pelvic injury, that, in his opinion, he could follow his former employment of lineman, laborer, mechanic, artisan, or other such occupation as he may be mentally qualified to perform, but not at the start; that plaintiff must gradually build up his strength and endurance before he can do work of that kind.

“Q. Doctor, I understand that after a few weeks’ exercise he would t¡e physically able to put in a full day’s time — is that right?
“A. That is my opinion.’’

The doctor further says that plaintiff’s present condition of disability is the natural result of disease following his injuries; but just when recovery from the pelvic injury may be said to have, taken place, there is no certain time that we can fix on, but, from all the evidence on the subject, it seems to be established with reasonable certainty by a preponderance of the evidence that plaintiff’s pelvic injury has been overcome, and that he is now well, except some soreness upon lifting heavy weights or doing heavy work, due in turn to his failure, by proper application, to build himself up to endure that kind of work, and that such recovery took place within 100 weeks, counting from time of injury. That no reason exists, for disability on his part, as far as the arm and pelvic injuries are concerned, from doing ordinary manual labor of any kind by going about it carefully, building and strengthening himself up to the work. If it had not been for plaintiff’s eye trouble, we think he would have returned to his work within the time stated, possibly sooner.

We now come to the injury to plaintiff’s eyes. It is upon this, ground that the court mainly bases his judgment holding that plaintiff is entitled to compensation for a period of 400 weeks.

Plaintiff does not in .the language of the Employers’ Liability Act, No. 20 of 1914, sec. 8 (amended by Act No. 242 of 1928) subsection (d) claim “For the loss of an eye” or “For the loss of * * * both eyes.” He avers that he “suffered severe injuries to his eyes.”

■ The defendant concludes its answer with the averment that plaintiff “has completely recovered except for the possibility of a slight disability to one eye, which will not be permanent; respondent not admitting that there is any disability of the eye at the present time, said denial being based on the fact that it has not been able to examine plaintiff in some time,” etc.

The plaintiff testifies that, upon regaining consciousness after his fall, he discovered that he saw single objects as two, defined in medical dictionaries as diplopia. That he spoke of the matter to Dr. Holcombe, who referred this matter to Drs. lies and Moss. That at the time of testifying, a year and half since the accident, his eye condition had not improved.

That in walking he is forced to hold his head down in order to see where he is going; by covering his right eye he can see without lowering his head. But he complains that when he covers his right eye the strain placed on his left eye soon causes it to pain him.

Dr. Bahn, of New Orleans, furnished plaintiff with a covering for his right eye, the one out of which he sees double; but he testifies that this covering does not remedy the situation, etc. Plaintiff’s complaint and testimony on the subject is in complete variance with that of expert physicians who testify on the subject. It is well known to everybody that if you cover one eye, and there is nothing the matter with the other one, you can see out of it well enough to walk, read, write, or do any of the other things that men ordinarily do. Still we cannot see as well out of one eye as we can when we have the use of both eyes.

Dr. lies, who had plaintiff under observation on account of his eyes, since shortly after the accident until the day before the ■trial, which was approximately a year and half, says:

“Q. Now, Doctor, why does that affect his ability to see objects?.
“A. Well, he can see objects as good as he ever did, but he sees two. There is nothing wrong with his vision, each eye is normal.”

Dr. lies further says that he never could discover any loss of function in his left eye, mostly in his right eye. That his left eye is not impaired, and that plaintiff can see by covering his right eye; that by covering his right eye he can walk along the street in a normal position, using his left eye.

Dr. lies gave it as his opinion that the condition of plaintiff’s right eye is permanent.

Dr. Moss says:

“Q. Doctor, you agree with Dr. lies that the left eye is perfectly normal and if the right eye is covered he could see just as well as any one-eyed man would see?
“A. Yes.
“Q. And do the work which any one-eyed man could do?
“A. Yes.”

We now come to the testimony of Dr. Bahn of New Orleans. He is undoubtedly well qualified to express an opinion on the subject. He examined plaintiff twice; the first time was in November, 1929, which was about six months after the accident, the next time was September 30th and October 1st and 2d, 1930. He may be in the employment of the defendant, but that fact can hardly have influenced his statements of fact, and we believe his opinions are worthy of the highest regard. There is but little difference between Dr. Bahn and Drs. lies and Moss, except that Dr. Bahn gave it as his opinion that there is probability in plaintiff’s case that his eye trouble will improve in the future, whereas Drs. lies and Moss do not look for any improvement.

The prospect of improvement seems so uncertain to us that, for the purpose of our decision, we attach no weight to that hope;, still, as remarked by the judge a quo, the hope is to be kept in mind, because, certainly, if anything can be done in the future to relieve the situation it must be done.

The physician? say there is nothing the matter with plaintiff’s left eye; that the whole trouble is with his right eye. Dr. Bahn says that he provided plaintiff with pi'ismatic glasses at the time of his first examination, and gave it as his opinion that if plaintiff had used these glasses, improvement would have taken place. He expresses the opinion that, if plaintiff will use them in future, improvement will take place. Plaintiff testifies that he did use the glasses about six months, and that he can see better without them.

Dr. Holcombe, plaintiff’s witness, gives, it as his experience that plaintiffs involved in litigation of this kind will not improve until the litigation is over.

The three physicians all join in the statement that, if plaintiff’s right eye be covered, he can see out of his left eye as well as- any one-eyed man can. Dr. Bahn goes further, and says that he can do any kind of manual labor that can be done by any one-eyed man. And, of course, everybody knows that there are many things a one-eyed man can do very satisfactorily, but there are other things which they cannot do with safety nor accuracy. Dr. Bahn says there is, due to the injury, a loss of 20 per cent of the right eye.

We therefore find that plaintiff is not a total disability; he has not lost the sight of either eye, but, due to paralysis of one of the superior oblique muscles of the right eye, he suffers with diplopia, which impairs the use of both eyes to such an extent that he can do but little, trying to use both eyes. But the trouble can be remedied by the use of a dark prismatic glass for the right eye, as stated by Dr. Bahn, and by doing so plaintiff can do any manual labor which can be done in safety by a one-eyed man, not qualified to do other than manual labor. And to that end we hold that plaintiff must, under the circumstances, avail himself of contrivances necessary to enable him to remedy the diplopia and get the benefit of his uninjured eye, and his compensation must be fixed accordingly.

We find, due to plaintiff’s eye trouble, that his compensation must be fixed under the Employers’ Liability Act, sec. 8, subsection (d), par. 16 (amended by Act No. 242 of 1928) which provides as follows:

“In cases, not falling within any of the provisions already made * * * where the usefulness of a physical function is seriously, permanently impaired, the Court may allow such compensation as is reasonable and as is in proportion to the compensation hereinabove specifically provided in the cases of specific disability, not to exceed sixty-five per centum of wages during one hundred weeks.”

As plaintiff received the injury to his arm, pelvis, and eye at the same 'time in the same accident, we can only allow, under the law in question, but one compensating amount for all his injuries. We find that he is entitled to the full 100 weeks.

Por these reasons the judgment appealed from is amended so as to reduce the period of time during which compensation is allowed from 400 weeks to 100 weeks, the 100 weeks to be subject to credit for the weekly payments made at the rate of $20 per week from the week beginning May 22, 1929, and thence weekly until the week commencing July 19, 1930; and, as thus amended and corrected, the judgment appealed from is affirmed. Defendant and appellant to pay the cost in the lower court; appellee, the cost of appeal.


author: LeBLANC, J.

text:
    No. 891
    First Circuit
    HARTFORD FIRE INS. CO. v. LANDRENEAU ET AL. (WINDSOR SAVINGS BANK, Intervener)
    (March 8, 1932. Opinion and Decree.)

      Hawthorn, Stafford & Pitts, of Alexandria, attorneys for plaintiff, appellant.
    Modisette & Adams, of Jennings, attorneys for intervener, appellant.
    J. H. Dore, of Ville Platte, attorney for defendants, appellees.
   LeBLANC, J.

On October 24, 1923, Lucius Landreneau, Jr., executed an act of mortgage in favor of the American Investment Company of Oklahoma, covering certain property which he owned in the parish of Evangeline, to secure a note in the sum of $3,000. The act of mortgage contained the following stipulation which is copied verbatim:

“The said mortgágor bind____________________________ during the life of this mortgage to keep the buildings on said property insured against loss by fire and tornado to the amount of $________________________, and deliver the policies to said mortgagee, with clause thereto attached subrogating said insurance to said mortgagee or its assigns as collateral security for said notes.”

On January 28, 1924, Landreneau executed another mortgage upon the same property in favor of Peoples Bank & Trust Company to secure a note of $1,404.30.

After the execution of the last mortgage, the owner, Landreneau, erected a building used as a barn on the property, and on October 29, 1930, took out a .fire insurance policy in the Hartford Fire Insurance Company in the sum of $500, of which $400 was to cover the barn and $100 certain corn and hay stored therein.

This fire insurance policy contained a mortgage clause under which the loss, if any, became payable to “Evangeline Bank & Trust Company of Ville Platte, La., mortgagee, as interest may appear.” It should be mentioned here that the Evangeline Bank & Trust Company, had in the meantime acquired the mortgage and note of the Peoples Bank & Trust Company. It may properly be stated at this time also that the American Investment Company had likewise assigned its mortgage and note on the property to the Windsor Savings Bank of Windsor, Vermont.

On December 12, 1930, while the policy was in effect, the barn, with its contents, was totally ' destroyed by fire.

On March 17, 1931, the Hartford Fire Insurance Company appeared in court on a petition in which it alleged that the amount of loss had been fixed as between it and the assured, but that during the course of adjusting the loss, a claim had been set up by the American Investment Company under the covenant contained in the mortgage executed in its favor, and that because of the conflict of claimants which now existed, it desired tq deposit the amount to be paid under the policy in the registry of the court and have the various parties cited to appear and assert their respective claims to the fund. It prayed for an order decreeing a coneursus proceeding necessary; that the clerk of court receive and take into his custody the sum of $500 due under the policy and by it deposited with him, and that the policy be canceled, and that the claimants be cited to appear and assert their demands against the fund thus created. It also prayed for costs, together with attorney’s fees in the sum of $25.

On the same day that this petition was presented to him, the district judge signed an order commanding the clerk of court to take the insurance company’s draft for $500 in his custody, collect and deposit the proceeds in the registry of the court subject to further orders, all of which was promptly done.

In answer to the citations issued to them, Landreneau, Evangeline Bank & Trust Company and American Investment Company all appeared. The Windsor Savings Bank intervened as assignee of the American Investment Company. The only parties having a real interest in the contest, however, are Evangeline Bank & Trust Company, holder of the policy under the loss payable clause, and the Windsor Savings Bank claiming right to the proceeds under the covenant in the mortgage in favor of American Investment Company, its assignor. The answer of Landreneau and Evangeline Bank & Trust Company was joined and in it they pleaded in reconvention that as more than sixty days have elapsed since the property had been destroyed by fire and since the adjustment of the loss, the insurer, Hartford Fire Insurance Company, should be made to pay the statutory penalty of 25 per cent of the amount of the loss and attorney’s fees which they have contracted to pay in order to be represented in the proceeding, in the sum of $100. They pray for judgment against the insurer accordingly.

The appeal comes to us from a judgment in the district court which condemned the Hartford Fire Insurance Company in the full sum of $500 in favor of Lucius Landreneau, Jr., for the use and benefit of the Evangeline Bank & Trust Company, with legal interest from March 17, 1931, and in the further sum of 25 per cent statutory penalty and $50 as attorney’s fees. The claims of American Investment Company and Windsor Savings Bank were denied and rejected at their cost.

MOTION TO DISMISS

Appellees, Lucius Landreneau, Jr., and Evangeline Bank & Trust Company, have filed a motion to dismiss the appeal taken by Hartford Fire Insurance Company on the ground that it had failed to obtain an order of appeal from the judgment rendered against it and had filed the transcript of appeal in this court without first having obtained an order of appeal from the lower court either by motion in open court or by citation.

Referring to the extract from the minutes of court of date July 15, 1931, we find that “on motion of Modisette & Adams, attorneys for American Investment Co. and Intervenor Windsor Savings Bank and Hartford Fire Insurance Co., an appeal suspensive and devolutive is hereby granted to said defendants and made returnable to the Honorable First Circuit Court of Appeal, sitting at Opelousas, Louisiana, on September 12, 1931, upon their furnishing bond in the sum of $50.00 if devolutive and according to law if suspensive.” The mere reading of the entry, therefore, seems to dispose of the contention made that there was no order of appeal granted to the Hartford Fire Insurance Company. It is specifically designated by name, and the only suggestion or hint that the order is not proper and correct in every respect might arise from the fact that in referring to the capacity of the appellant as a party to this proceeding, it is said to be a defendant along with the other parties cast in the judgment and who were at the same time moving for an appeal. Aside from the fact that these appellees had filed a plea in reconvention against the Hartford Fire Insurance Company, in which naturally, that company became nominally a defendant in reconvention, and therefore technically may be said to have had its capacity properly designated, we think that the fact that having been mentioned by name in the motion for appeal, can leave no doubt of its intention to ask for an appeal and of the court’s purpose to grant it one. The motion to dismiss is therefore overruled.

ON THE MERITS

The first issue that is presented on the merits is the one regarding the effect that is to be given the insurance clause that appears in the mortgage to the American Investment Company of date October 24, 1923. This is the clause quoted word for word herein. Counsel’s contention that the Windsor Savings Bank, the present holder of that mortgage, is entitled to the proceeds of the insurance policy as the first mortgagee, seems to be predicated on the assumption that the covenant regarding insurance was one which had the effect of making any insurance policy taken on the buildings situated on the property, subject to the rights of the mortgage. In other words, the contention made appears to us to have to be based on the legal proposition that because of the stipulation in the mortgage, any contract of insurance entered into subsequent to it, was one which ran with the property, and consequently the Evangeline Bank & Trust Company, holder of the second mortgage, took its rights under the policy of insurance in this case subject to the rights of the American Investment Company under its mortgage. That, however, is not the law, as it is well established that an insurance contract is a personal contract and never runs with the property insured. Vance on Insurance, page 418, in discussing the rights of the mortgagor and mortgagee in the proceeds of insurance upon the property mortgaged, among other things, says:

“As heretofore shown, the contract of insurance is strictly a personal contract, and never runs with the property insured. Accordingly it follows that where the mortgagor independently insures his own interest in the mortgaged premises, without reference to any contract with the mortgagee, the proceeds of such insurance in case of destruction of the property belong solely to the mortgagor, freed from any lien or other claim by the mortgagee. This rule obtains even though there may be a stipulation in the mortgage contract providing that the mortgagee may insure and charge the premiums to the mortgagor, to be covered by the security, of the mortgage."

To the effect that an insurance policy is a personal contract between the insurer and the insured, “and not a contract which in any sense runs with the property,” see, also, 26 C. J., page 434, section 581.

Of course, it is urged here that we are construing a covenant in a mortgage under which the mortgagor bound himself to insure, but we do not think that the stipulation in that form could have the effect •of changing the nature of the insurance contract and transform it from a purely personal one to one which ran with the property. The most that the mortgagee is entitled to under such an agreement, as we read the authorities we can find on the subject, is an equitable lien upon the proceeds of the policy to the extent of his interest in the property. This lien he most probably could successfully assert against the proceeds of a policy payable directly to the mortgagor. But where, in a case like this, the policy contains a rider under which the loss, if any, is made payable to another party specifically designated by name, the rights of that party to the proceeds, even though he be the holder of a second mortgage, cannot, in our opinion, be defeated if those provisions of law making an insurance contract strictly a personal contract which in nq sense runs with the property, mean anything.

The judgment of the lower court therefore properly rejected the demands of the American Investment Company and of the Windsor Savings Bank.

We are of the opinion further, however, that the district judge erroneously imposed a penalty against the insurer for an alleged failure to have paid the loss within sixty days from the date of what is referred to by him as proof of demand. We are at a loss to understand how the district judge, granting that he would have been right in inflicting the penalty, could have assessed the same at 25 per cent of the total amount of the loss, as the statute which provides such penalty in the adjustment of fire insurance losses stipulates a penalty of only 12 per cent. See Act No. 168 of 1908. The trial judge may have had Act No. 59 of 1921 (Ex. Sess.) in mind in decreeing a 25 per cent penalty, but this statute, we find, applies to those insurance companies' engaged in the business of insuring automobiles, trucks, motor propelled vehicles and other properties against fire and theft. The policy on which the loss is to be recovered must be one in which the property was insured against loss by both fire and theft, which is not the nature of the policy in this case.

But, as already stated herein, we do not believe that the case is one which warranted the imposition of any penalty whatever, as the insurance company certainly did all that it could reasonably have been required to do under the circumstances set out in its petition to the court asking for this concursus proceeding. There were two claimants presenting their demands for the proceeds while the loss was being adjusted with the insured, and the company, considering that it was not in the position to determine which of the claimants was entitled to be paid, took advantage of the provisions of Act No.- 123 of 1922, appeared in court and asked to deposit the money which it held in its hands in the registry of the court. As a matter of fact, to this date, the money has not been paid to any one for the very reason that under the order of court granted on the insurance company’s application, it is being held on deposit, subject to the final orders and decrees, not only of the district court, but also of any appellate court.

To condemn the insurance company to pay a penalty under the circumstances of this case would seem like punishing a person for doing his duty according to what he conceived to be the law, and this before the eyes of the very court which punishes him and under its orders, as it were. Clearly, we do not believe it to be a case in which the penalty prescribed by Act No. 168 of 1908 should be exacted.

The judgment of the lower court is erroneous in another respect in that it decrees a monied judgment against the insurance company without taking into consideration the fund deposited in the registry of the court out of which such judgment is to be paid. We have no doubt but that it was intended under the decree of the court that that is what should be done. We feel, however, that the decree should so state, and in addition thereto that the insurance company is entitled to have its policy canceled and surrendered as prayed for. The amount demanded by it for attorney’s fees and costs incident to provoking this concursus under Act No. 123 of 1922, will be denied for lack of proof.

We deem it proper to recast the judgment, and for the reasons stated, it is therefore ordered, adjudged, and decreed that the judgment of the lower court be now set aside and annulled, and it is further ordered, adjudged, and decreed that there be judgment herein in favor of Evangeline Bank & Trust Company against the fund of $500 deposited in the registry of the court, being the proceeds of that certain insurance policy taken out by Lucius Landreneau, Jr., with the Hartford Fire Insurance Company, of date October 29, 1930, and it is further ordered that the clerk of court of the parish of Evangeline pay the said sum of $500 now in the registry of the court to the said Evangeline Bank & Trust Company, in full settlement of the loss payable under the said policy, and that the latter be canceled and surrendered to the Hartford Fire Insurance Company.

It is further ordered that the demands of Windsor Savings Bank and of American Investment Company be rejected and denied and that they pay all costs of this proceeding.


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    No. 932
    First Circuit
    BEMIS BROS. BAG CO., INC., v. FARMERS’ SUPPLY CO., INC.
    (March 8, 1932. Opinion and Decree.)

      Medlenka, Bruner & Chambers, of Crowley, attorneys for plaintiff, appellant.
    Nugier & Gordy, of Abbeville, attorneys for defendant, appellee.
   ELLIOTT, J.

Farmers’ Supply Company, Inc., signed an order with Bemis Bag Company, Inc., for 30,000 burlap bags cut plain Bemis, “quality 40 — 80 oz at $109.50 per M. Time of shipment August — September— 1930, F O' B New Orleans.” The order bears date October 2, 1929.

The plaintiff, alleging willingness and readiness to comply with the order on its part and refusal on the part of defendant, brought suit against the defendant and prays for judgment against it for $679.50, alleging loss on its part in said amount on said account.

Defendant denies that it is indebted to the plaintiff. It sets out in effect that, on or about October 2, 1929, one S. W. Brown, representing plaintiff, called at its place of business to sell respondent its bag requirements for the year 1930. That O. H. Deshotels, its representative, was busy at the time and had not had opportunity to ascertain the price of bags for future delivery.

That said Brown pressed upon its representative the purchase of 30,000 bags, upon the false and fraudulent assertion that his price of $109.50 per M was the best and lowest price at which bags could be bought or contracted for, and that unless its representative then signed an order, the price would advance in the next few days.

That its representative had no means or opportunity for knowing or detecting that the price quoted by said Brown and guaranteed by him to be the best and lowest price for bags for the ensuing year’s delivery was a false and fraudulent representation, made so as to induce him to sign the order attached to plaintiff’s petition, which order he signed and executed with the understanding and assurance that the price then quoted was the lowest and best price to be obtained on future deliveries of bags, and with the understanding and assertion that said order was conditional and subject to confirmation by Brown’s principal and that a future contract would be drawn up and executed according to prevailing custom before respondent would be held, and in which specifications and terms for shipment would be set out at length.

That in the afternoon of the same day, October 2, 1929, respondent was called upon by the representative of another company, who quoted respondent a much lower price on future delivery of bags. That respondent, under date of October 3, 1929, wrote plaintiff that its prices were too high. That plaintiff, in keeping with the false assertion and artifices practiced upon respondent by said Brown, in its reply, in order to induce respondent to execute the contract and carry out said purchase, sought to induce respondent to believe that bags had risen in price from $109.50 to $111 per M, well knowing that said assertion was false -and untrue.

The answer contains further averments along the same line, but the above is the gravamen of its complaint.

There was judgment rejecting plaintiff’s demand, and the plaintiff has appealed.

Plaintiff’s action is based on a written order signed by the defendant, which we find to be a sale for future delivery, compíete in every way as intended. It concludes by saying: “This contract expresses the entire agreement between the parties and any change hereafter must he in writing.”

Defendant has the burden of establishing that it executed the contract with the understanding and assertion that it was conditional, subject to confirmation by defendant, and that a future contract would be drawn up and executed according to prevailing custom before defendant would he held.

The evidence does not establish defendant’s averment on the subject, but shows, instead, that the representation made by ¡plaintiff’s agent, Brown, that the price stipulated in the order was low and would go up, was correct.

The manager of Chase Bag Company, a concern engaged in selling bags, testifies that on October 2, 1929, the date of the order in question, its price per M was $112.95.

It is shown by his testimony that prices, with some variation, continued to he above the price charged defendant and so continued for a week or more after the contract was signed, on one day standing at $113.75.

The manager of Fulton Bag Company, another concern engaged in selling bags, testified that on October 2, 1929, its prices were higher than that charged defendant and continued so for a week or more thereafter, on one day standing at $114.55.

These witnesses do not appear to have any interest in the present controversy and we accept their testimony as a refutation of defendant’s claim on the subject of price. Defendant’s manager testifies that a salesman of a company dealing in bags held out to him, the same day the order was signed, a price of $106 and $104.50. But no effort was made by the defendant to take the testimony of this salesman or the manager o.f the company he represented. According to the record, defendant’s charge of excessive price, at the time the order was signed, falls and is without support.

But prices did fall after the time mentioned. They declined until during the months of August and September, 1930, prices had dropped $22 per M or more, lower than that stipulated in the order in question.

Defendant contends that the contract signed was not completed, but was conditional and subject to confirmation on the part of the defendant before it would be bound.

In support of this contention, it shows that plaintiff, the next day after the contract was signed, wrote a letter to defendant stating that the sale made by its agent, Brown, was confirmed; inclosed the form of another agreement and asked plaintiff to sign same, to return the original and keep copy.

The document which plaintiff sent defendant in its letter of October 3d is contained in the record. It contains, after the words “August — September—” the following words, “In about equal portions monthly,” not contained in the signed order. There is no important difference between this form and the agreement signed.

It has also the following words not in the signed order, “Sight draft hill of lading attached.” The one signed is blank on the subject of terms; consequently this statement does not render it different, to an important extent, from the one signed.

Plaintiff’s manager, asked to explain why this confirmatory form of agreement was sent to defendant, says;

“We always confirm a salesman’s order by sending to the purchaser a confirmation of the order. However the signed order obtained by the salesmen is the contract and the confirmation we send out is merely a matter of routine. As we do in all cases, we sent such a confirmation to the Farmers Supply Co., Inc.”

It seems reasonable that the receipt of an order for delivery nearly a year ahead should be acknowledged so as to let the purchaser know that it had been received and would be carried out by the house which engaged to fill it.

The letters which the defendant wrote the plaintiff after receiving this confirmatory form, indicate that defendant looked on the contract of October 2, 1929, as complete and as needing no confirmation to make it binding on defendant. Letters of October 3 and 10, 1929, from defendant to plaintiff, amount to an admission that defendant had bound itself to take 30,000 bags from plaintiff. These two first letters complain, of the price charged, and urge a reduction on the ground that its representative had later on the same day been offered bags for $106 and even at $104.50; but there is nothing said indicating that defendant did not consider the order binding. The request for a reduction is the only matter urged in these first letters. It was no.t until August 16, 1930, that defendant, reiterating its former complaint, urging in addition that plaintiff’s agent had guaranteed that the prices charged were the lowest, etc., and stating reasons along the lines of his letters of October 3d and 10th, declares in a letter that it would not accept the shipment. We do not find any merit in defendant’s contention. The agreement of October 2', 1929, was binding.

“Agreements legally entered into have the effect of laws on those who have formed them. They can not be revoked, unless by mutual consent of the ¡parties, or for causes acknowledged by law. They must be performed with good faith.” Civil Code, art. 1901.

Defendant contends that the case of Jones v. Janes, 156 La. 715, 101 So. 116, supports its contention. The court held in the case cited that the contract sued on in that case amounted to no more than an offer on the part of the plaintiff, which had not been accepted by defendant. In the case presently in hand the contract sued on is complete, and the offer of the plaintiff was accepted by the defendant.

The judgment of the lower court rejecting plaintiff’s demand is contrary to the law and the evidence, and must therefore be reversed and judgment rendered in favor of the plaintiff.

We now turn to the amount which the plaintiff should recover. In the case Gallaspy v. Ingersoll & Co., 147 La. 102, page 110, 84 So. 510, 513, we quote fom the opinion of the court as follows:

“The measure of damage is the difference in the price of the goods sold according to contract and upon the last day upon which it could be delivered.” Citing authorities.

This precedent will be followed in the present case.

The evidence shows that plaintiff suffered, by defendant’s refusal to comply with its agreement, loss in the amount claimed in its petition.

For these reasons the judgment appealed from is annulled, avoided, and set aside, and it is now decreed that there be judgment in favor of the plaintiff, Bemis Bros. Bag Company, Inc., and against Farmers’ Supply Company, Inc., for $679.50 with legal interest thereon from October 1, 1930, until paid.

Defendant and appellee to pay the costs in both courts.


author: MOUTON, J.

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    No. 949
    First Circuit
    STATE EX REL. NAVO v. BAYNARD, AUDITOR, ET AL.
    (March 8, 1932. Opinion and Decree.)
    Reynolds, / Hamiter & Hendrick, of Shreveport, and Charles A. Holcombe, of Baton Rouge, attorneys for plaintiff, appellant.
    Percy Saint, attorney general; Michael M. Irwin, of New Orleans, and George M. Wallace, of Baton Rouge, attorneys for defendant, appellee.
   MOUTON, J.

Plaintiff alleges that on January 1, 1931, he received a written corn-mission from the state bureau of criminal identification which expired December 31, 1931, as appears by his commission attached to and made part of his petition.

His salary, he alleges, is fixed at $2,500 per annum, payable on his monthly warrant. He alleges that he received his salary for two months only from the date of the issuance of his commission; that is, for January and February, 1931.

At a salary of $2,500 per year, his monthly salary amounts to $208.33, as it is by him correctly alleged.

He alleges that he is entitled to this monthly salary from March 1, 1931, until he is dismissed from his office, as provided for in section 10, Act No. 99 of 1928.

He finally prays for a writ of mandamus to compel the state auditor to issue warrants for his salary at the rate of $208.33 per month, from March 1, 1931, “until he is legally removed.’’

Plaintiff’s suit was dismissed on an exception of no cause of action, from which he prosecutes this appeal.

There is no intimation whatsoever in his petition or in the case that he has been removed from office. On the contrary, his allegations are to the effect that he has not been removed, and until that event occurs, he alleges, he is entitled to his monthly warrants of $208.33, from March 1, 1931.

His term of office under his allegations and according to the commission attached to his petition expired December 31, 1931. His claim is therefore for this monthly salary for ten months, dating from March 1, 1931, to December 31, 1931.

At $208.33 per month for that period of time, the claim amounts to a total of $2,083.33. This is necessarily the amount involved in this case, which exceeds our jurisdiction.

It is therefore ordered and decreed that this case be transferred to the Supreme Court of this state under provisions of Act No. 19 of 1912, p. 25, within sixty days from the signing of this judgment.


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    No. 979
    First Circuit
    DANTONI v. MONTEBELLO (DEPAULA & DISTEFANO, Interveners)
    (March 8, 1932. Opinion and Decree.)
    Rownd & Warner, of Hammond, attorneys for plaintiff, appellant.
    Leon Ford, Jr., of Hammond, attorney for intervener, appellee.
   MOUTON, J.

Plaintiff, Dantoni, obtained a judgment for $264.31 against Montebello, defendant, in execution of which under a fi. fa. a strawberry crop of the latter was seized.

Depaula & Distefano, a partnership, intervened, claiming a balance of $207.75 against Montebello, with privilege on his crop' of the current year for advances in money and necessary supplies made to him for its production.

The trial judge recognized the privilege asserted by the intervener, holding it should be paid by preference over the privilege resulting from the seizure effected by Dantoni under his judgment, and rejecting his demand.

Plaintiff appeals.

The advances in money and supplies made to Montebello, intervener alleges, amounted to $1,447.92, on which it admits to have received $1,240.17 from Montebello, seized debtor, leaving the balance of $207.75 on which the privilege is claimed.

Promissory notes were made by defendant in favor of intervener for these advances in the following amounts: $292.16, $238.03, and $385.60.'

It is stated in these notes that they are given for money advanced to make the strawberry crop of 1930, 1931, which was seized.

Depaula, one of the members of the intervening partnership, testifies that cash was advanced on these notes to Montebello, defendant.

Defendant, when asked, as a witness, how much cash he got from intervener, says:

“I got so much. I don’t know myself. I know the books show. The statements show. over fourteen hundred dollars — that is for fertilizer and everything.”

After admitting that he owed intervener the balance claimed in this suit, defendant is asked:,

“Q. You actually owe that sum?
‘‘A. Yes.
“Q. That money was actually put into the crop?
“A. Yes.
“Q. And that is the identical crop under seizure?
“A. Yes, sir.”

In the case of Hewitt v. Williams, 47 La. Ann. 742, 17 So. 269, the court held that, where money is advanced to make a crop, the party advancing it is not required to prove its ultimate destination. This seems reasonable to us, otherwise the party furnishing the money would have to follow it' in the hands of the borrower to see that it’ be applied to the purchase of necessary, supplies.

Here, however, it seems that this condition was met as it was shown by defendant that the amount sued for had been put into the crop under seizure. It was therefore shown with legal certainty that the-sums advanced were used for the production of the strawberry crop.

Counsel for plaintiff, on the main demand, refers us to the case of Broussard-Labry, Inc., v. People’s Bank &. Trust Co., 5 La. App. 312, decided by this court. In that case reference is made to the Lochte Co. v. Lefebvre, 128 La. 109, 54 So. 578; Wallace v. Urquhart, 23 La. Ann. 469; Stafford v. Pearson & Williams, 26 La. Ann. 658. In all those cases the claim was based on necessary supplies furnished the farmer, and not for money advanced and shown to have been applied to the production of the crop, as appears herein. Hence, the ruling in those cases does not control the issue presented in the instant case, which, as we have shown, comes for proper solution under the doctrine announced in Hewitt v. Williams, 47 La. Ann. 742, 17 So. 269, above cited, and, particularly, when it is proved that the money advanced was used in the production of the crop on which the privilege is claimed.

Counsel for plaintiff brings to our notice the fact that nearly $900 of the amount advanced was applied to other purposes than to the planting, production and harvesting of the crop.

This proof can entitle plaintiff only to a deduction of that sum from the asserted claim of $1,447.92. The evidence is that $865 was so used, leaving a balance of $582.92 on the amount advanced by intervener whose claim is for a balance of $207.75, which defendant testifies was actually put into the crop produced for the current year. This proof establishes the privilege of intervener as hereinabove stated.

Counsel for plaintiff refer to the fact that only one of the notes attached to intervener’s petition was recorded.

Intervener is not claiming its privilege under the Act No. 66 qf 1874, amended by Act No. 93 of 1922.

The claim is made for money and supplies advanced for the making of a crop which the law does not require to be recorded. Purity Feed Mills Co. v. Moore (Bank of Acadia, intervener), 152 La. 393, 93 So. 196.

The court correctly gave precedence to the privilege of intervener against plaintiff’s claim.


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    No. 907
    First Circuit
    PLAUCHE, LOCKE SECURITIES, INC., v. B. BAZERQUE & SONS
    (February 8, 1932. Opinion and Decree.)

      Cline, Plauche & Girod, of Lake Charles, attorneys for plaintiff, appellant.
    Pugh & Buatt, of Crowley, attorneys, for defendant, appellee.
   ELLIOTT, J.

Plauche, Locke Securities, Inc., owners and holders of a note for $250, signed by B. Bazerque & Sons, alleging that the maker of the note was a commercial firm composed of Bertrand Bazerque, Sr., and Bertrand Bazerque, Jr., and others unknown to the petitioner, brought suit against the firm and Bertrand Bazerque, Sr., and Bertrand Bazerque, Jr., and prayed in interrogatories annexed to the petition that the defendants be required to give the names of the other members Of the firm and for judgment against them on the note. It developed from the answers of the parties sued that Bertrand Bazerque, Sr., was a baker engaged in the business of baking and selling bread, etc., doing business under the trade-name of B. Bazerque & Sons, but was the sole owner of the business and had no partner.

Bertrand Bazerque, Sr., admitted that the signature of the note bound him, but he denied that he owed the note. He alleges that, it represents the balance due on the purchase price of a truck, Dodge make, bought by him from the plaintiff. The note is payable to the order of the defendant, but was not indorsed. Defendant admits, however, in his answer that the plaintiff is the owner and the holder of the note. He sought to have the plaintiff compelled to produce the act of sale whereby he bought the truck, but the court did not order it done, and it was not produced and is not in the record. Defendant sets up in his answer that in buying the truck, he paid $50 cash and gave the note sued on for the balance payable in installments. That he paid the first installment of $25, but refused to pay any more for the reason that the note was without consideration, the truck for which it was given being worthless, and in his answer he tenders it back to the plaintiff. That during the time he sought to use it, he was forced to expend $108.68 for repairs and worn-out and broken parts. He prays that plaintiff’s demand be rejected and that he have judgment against it in reconvention for the $75 paid on the truck and the $108.68 expended for repairs and' parts as above stated.

There was judgment in the lower court rejecting the plaintiff’s demand and against the plaintiff in reconvention for $75, the amount paid on the truck, but pothing was allowed the defendant on account of repairs on the truck, parts, and mechanic bills. The plaintiff has appealed.

There is very little to be said in support of the consideration of the note sued on. The plaintiff contends that it ought to be paid, bqt the proof is that the truck for which it was given in part payment was worthless; therefore it would be unjust to require defendant to pay the note. The evidence shows that S. J. Hollier was the owner and possessor of the truck at the time defendant decided to buy it for the purpose of delivering bread and other products of his bakery at Crowley and adjacent territory of Kaplan and Abbeville. Mr. Hollier had bought it five or six months before from the plaintiff. Mr. Hollier’s business required the use of a truck, and he had used this one since buying it from the plaintiff. The price Mr. Hollier was to pay for it was not established, but in a question asked him it was stated to have been. $617.50. It was shown .that Hollier had made various payments to the plaintiff on the truck and was still owing $375 or $400 on account of same to the plaintiff at the time it was sold to the defendant. Mr. Hollier living in Crowley, and a neighbor to the defendant, learned that defendant needed an automobile truck for delivery purposes and told him he could buy this one by consulting the plaintiff. And in the course of a day or so, how it came about is not clear, plaintiff’s officer who lived at Lake Charles came to Crowley, got into communication with defendant, through Hollier, and in the space of about an hour after arriving, repossessed itself of the truck from Hollier, taking it back without passing any act of retrocession and in full settlement of the $375 or $400 which Hollier owed on it, and sold and delivered it to the defendant for $300, receiving $50 cash and the note sued on.

At the time Hollier bought it from plaintiff, it did not have in it the engine that was in it when new. The one in it then had 'been taken out and a newly worked over but secondhand engine had been installed in it. There is some conflict in the testimony as to what Mr. Hollier, who was the active agent in selling the truck to .the defendant, told him about it at the. time. Mr. Hollier admits, that he .told him that it was in -good condition, except that it had a slightly flat crank shaft. Defendant testifies that Mr. Hollier told him it was in good condition and had in it a new motor and said nothing about a flat crank shaft. Mr. Hollier says that he did not tell defendant that it had a new motor but a. newly worked over motor, but, even so, that was not correct, because it had been five or six months since the motor had been worked over and it had been in use ever since Hollier had acquired it. The. plaintiff was the real actual seller in contracting with defendant, yet Mr. Hollier contrived to bring about the sale and took an active part in effecting it. He, in effect, unloaded the truck from his own shoulders, getting himself fully discharged of his debt in amount $375 or $400 on account of it to the plaintiff, and, the plaintiff helping and assisting, the truck was transferred to the defendant at a price $75 or $100 less than the amount due on it at the time by Mr. Hollier.

The truck commenced to give defendant trouble almost immediately when put to, use delivering bread, etc. First one thing and then another got out of order, and the truck would stop in the road and the driver, would have to have it pulled in for repairs. It was not the fault of the driver, but was with the machinery of the truck. Defendant had automobile mechanics fix it, recondition it; put in new parts, etc., so it could be again started on the road, but it had ceased to be serviceable. With? in the short space of time of say 40 or 50 days after buying it, defendant had paid out . at different automobile repair shops the sum of $108.68. This amount of expenditure, for the purpose of making the truck give service, within such a short time after buying it, justified defendant in discarding it as was done and putting it out of his way as being worthless to him.

We are satisfied that it was unserviceable, due to its worn-out condition, at the time defendant bought it. ' As for the actual knowledge that plaintiff had concerning its condition at the time of the sale to the defendant there is .no direct proof, but various things indicate that plaintiff knew at the time that it was worthless. Eor instance, in repossessing the truck from Hollier, no act of retrocession was passed. Hollier was just discharged as debtor and the truck with its burden shifted to defendant. The note which defendant gave, and on which the plaintiff has sued, was secured by a chattel mortgage reserved on the truck, but plaintiff did not have the mortgage recorded. It is our conclusion that plaintiff knew that the truck at the time it was sold to defendant was, because of its condition, not capable of. any useful service and omitted to declare its vices to the defendant. Its vices at the time were not apparent to defendant, who was not well informed -as to such matters; the discovery at the time of the sale would have required the work of an expert automobile mechanic. The implied obligation of warranty which was incumbent on the plaintiff was considered in Crawford v. Abbott Automobile Co., 157 La. 59, 101 So. 871, and Jackson v. Breard Motor Co., 167 La. 857, 120 So. 478.

“The seller, who knows the vices of the thing he sells and omits to declare it, besides the restitution of the price and repayment of the expenses, is answerable to the buyer in damages.” Civ. Code, art. 2545.

The defendant likely got out of the truck during the time he sought to use it sufficient service to repay him for the gasoline and oil necessary in its operation, but nothing more.

The plaintiff contends that it cannot be compelled to return the purchase price, nor repay the expenses which the truck occasioned to the defendant, because defendant does not specifically pray for the rescission of the sale. Defendant does not specifically pray that the sale be rescinded, nor do we find the usual prayer for general relief; but he alleges, defects of the kind stated, the bad faith of the plaintiff, tenders the truck back to the plaintiff, and prays for judgment in reconvention for the return of the purchase price and the repayment of expenses up to the amount expended.

The evidence establishing these averments was introduced on the trial without objection; the evidence establishes defendant’s right to appropriate relief, and where evidence has been thus received, we can give it effect in the form of a judgment based thereon. The authorities cited in defendant’s brief support such right in the court.

Plaintiff cites us to the case Ledoux v. Armor, 4 Rob. 381. That case was based on a sale of rope, part of which was worthless; some had value, but was not the kind represented, while part was good rope. Defendant divested himself of all the rope and could not tender back that which had value and that which was good. We do not have that situation in hand.

Richardson v. Johnson, 1 La. Ann. 389, cited by plaintiff, was dismissed on an exception of no cause of action, based on the ground that plaintiff’s petition was not sufficient in law to grant the relief prayed for. We are not dealing with an exception of that kind, for in this case the evidence was received without objection. New Orleans & N. E. Railroad Co. v. Louisiana Construction & Imp. Co., 49 La. Ann. 49, 21 So. 171, and New Orleans Silica Brick Co. v. John Thatcher & Son, 160 La. 392, 107 So. 236, are also cited, but these were not rulings which prevent the rendition of the judgment which we find proper under the evidence in the present case.

The ruling of the lower court rejecting plaintiff’s demand and condemning it to pay back in reconvention the price received was correct, but in our appreciation the evidence is such that plaintiff should be required to reimburse the defendant for the expense he was put to on account of mechanics and for repairs and parts.

The plaintiff is entitled to have back the truck in the place and condition in which it is.

For these reasons the law and the evidence being in favor thereof, the judgment appealed from, to the extent that it rejects plaintiff’s demand and condemns it to pay to the defendant in reconvention the sum of $75, is correct and it is now affirmed; but it is erroneous and must be amended and corrected to the extent that defendant’s demand in reconvention for $108.68 on account of mechanic’s bills for repairs and parts on account of the truck were not allowed, and it is now ordered that the plaintiff Plauche, Locke Securities, Inc., pay to the defendant Bertrand Bazerque, Sr., in addition to the sum allowed in the lower court, the further sum of $108.68, with legal interest thereon from September 19, 1931, until paid, and as thus amended and corrected the judgment appealed from herein is affirmed.

Plaintiff-appellant to pay the cost in both courts.


author: TALIAFERRO, J.

text:
    No. 4033
    Second Circuit (Second Division)
    LORD v. DAVID (RELIANCE CO., INC., Intervener)
    (March 16, 1932. Opinion and Decree.)
    Pegues & Pegues, of Mansfield, attorneys for plaintiff, appellee.
    Fraser & Carroll, of Many, attorneys for defendant, appellant.
   TALIAFERRO, J.

This suit was instituted by J. T. Lord for himself and as assignee of A. Runnels, and Ollie Runnels, co-laborers, to recover certain amounts alleged to be due them, respectively, as wages for labor performed by them, while employed by defendant, in the drilling of two wells for oil and/or gas in the town of Zwolle, Sabine parish, in the months of June and July, 1930.

It is alleged that said claimants have a lien and privilege on said wells, rigs, machinery, appurtenances and appliances thereto attached, and on the leases on which said wells are situated, under Act No. 171 of 1928, to secure payment of the wages due them; and that said wells are about to be or have been discontinued and the rigs and other equipment about to be removed therefrom, and, if so, said lien and privilege will be lost. A writ of provisional seizure was prayed for and issued, under which the sheriff seized the leases whereon said two wells were located and the rigs, boilers, pipes, machinery, etc., thereto attached.

Defendant moved to dissolve the writ of provisional seizure as having unlawfully, wrongfully, and improvidently issued for the reason that the petition did not set forth or disclose any right, lien, or privilege which, under the law, entitles plaintiff to such writ. This motion was overruled by the court, and, with full reservation of his rights thereunder, defendant answered. He avers that he is not due plaintiff or his assignors any amount for labor on the Tom David-Nevels No. 1 well, as payment therefor has been made by him in full, but that he is due them for labor on the Tom David-Halliday well No. 1 the following amounts, viz.: J. T. Lord $120 for 24 days; A. Runnels $260 for 52 days, less a payment of $70; and Ollie Runnels $120 for 24 days. He avers that Tom David-Halliday well No. 1 was never completed and no oil, gas, or other minerals were discovered therein, and that plaintiff has no lien or privilege thereon for their wages. He prays that plaintiff take nothing by this suit save judgment for $380 he admits owing (should be $430), and that the writ of provisional seizure be dissolved with damages.

Before trial of the case the Reliance Company, Incorporated, appeared and filed an intervention and third opposition claiming to be the lawful owner and entitled to the possession of the drilling rig, together with all machinery, equipment, and furnishings thereof, seized herein; that at time of seizure said property was in the possession of Tom David, defendant, as lessee, under a written contract from intervener; that plaintiff and his assignors have no lien or privilege against said seized property, and prays, that said writ be dissolved and said property decreed to belong to intervener and possession of same restored to it free of the asserted lien and privilege under which the seizure was made.

Plaintiff’s answer to the petition of intervention and third opposition is a general denial coupled with a reaffirmance of his contentions set up in his petition.

L. D. Allison also intervened and claimed ownership of the boiler used in said drilling operations and appealed devolutively from an adverse judgment. This branch of the case is not now before us.

The lower court gave judgment for plaintiff for $430, with legal interest from July 7, 1930; sustained the writ of provisional seizure on the property seized thereunder, and dismissed the interventions and third oppositions. Separate judgments were signed; one covering issues in main suit and one on each of the interventions.

Intervener only has appealed.

We have before us only the controversy presented by the intervention and third opposition of the Reliance Company, Inc.

Plaintiff argues that the intervener has. failed to establish by satisfactory proof its ownership of the seized rig and appurtenances. The evidence on the point consists of the testimony of defendant and the written contract of lease to him by intervener dated May 19, 1930, expressing a consideration of $1,000, which was paid by assignment of an interest in the Halliday well. This testimony is not controverted by any on part of plaintiff and is sufficient, under these circumstances, to warrant judgment recognizing intervener’s ownership of the property.

The main question in the case is whether plaintiff is entitled to a lien and privilege against the property provisionally seized under Act No. 171 of 1928. It is conceded that neither of the wells at which plaintiff and his assignors labored, for which they claim wages herein, were producers of oil or gas. Each was a “dry hole.”

The question has been considered by us heretofore in the case of J. R. Wesson v. John Woodley, Inc., _ La. App. _, 139 So. 676, decided February 16, 1932. We interpreted Act No. 171 of 1928 in connection with the facts of that case, which are identical with those in the present case, and held that the lien or privilege created by that act did not attach to the rig, machinery, and equipment employed in drilling a well for oil and/or gas, but was intended to protect laborers on wells actually in operation — producers—in the payment- of their wages.

We have reaffirmed that interpretation of said act in the case of Rollie Creech v. Tom David, L. D. Allison, Intervener, 19 La. App. 301, 140 So. 265, this day decided by us.

For the reasons assigned in the above-mentioned cases, and herein, the judgment-appealed from is annulled, reversed, and set aside; the Reliance Company, Inc., intervener and third opponent, is hereby recognized as the owner of the property described in its petition and seized herein, and same is ordered restored to its possession, the writ of provisional seizure is dissolved in eo far as it affects said property. Costs of intervention to be paid by plaintiff.


author: DREW, J.

text:
    No. 4105
    Second Circuit
    THOMPSON v. KING MOTORS, INC., ET AL. (MISS ALVA BRASHER, Intervener)
    (March 16, 1932. Opinion and Decree.)

      B’. P. Thompson, Jr., of Alexandria, attorney for plaintiff, appellee.
    Polk & Robinson, of Alexandria, attorneys for defendants, appellants.
   DREW, J.

Plaintiff sued King Motors, Incorporated, and O. M. King on two notes for’ the sum of $936, each secured by chattel mortgages, on two automobiles, described in the chattel mortgages as follows: One Roosevelt sedan, serial No. 70— 7793, motor No. S-9865; and one Roosevelt sedan, serial No. 70 — 7749, motor No. S-&918.

He prayed for recognition of his chattel mortgages and that same be enforced by having said cars sold without appraisement and the proceeds applied to the amount of the judgment.

In the petition, the car with serial No. S-8918 was written S-8919.

There was no appearance made by defendant, and judgment was confirmed on default in favor of the plaintiff in the sum of $1,872, with 8 per cent interest from May 7, 1929, until paid, and 10 per cent attorney’s fees, subject to a credit of $640, with recognition of plaintiff’s special chattel mortgage upon one Roosevelt sedan, serial No. 70 — 7749, motor No. S-8919. The car was ordered sold without appraisement and the proceeds of the sale to be credited on the amount of the judgment.

A fieri facias was issued under said judgment and a Roosevelt sedan, serial No. 70— 7749, motor No. S-8918, was seized in the possession of Miss Alva Brasher and advertised for sale. Miss Brasher filed a third opposition, alleging that she was the owner of one Roosevelt sedan, color blue, motor No. S-8918, which she alleged she purchased from the King Motors, Incorporated, on or about May 1, 1929, trading in an old car, and paying the balance in cash; that the seizure of her car under fi. fa. was illegal, improper, and erroneous, and a sale under and by virtue of the seizure would be null, void, and of no effect, as being the seizure and sale of the property of a third person; and for the further reason that the judgment does not purport,to recognize a lien and privilege against her car, in that it is not described in the petition upon which judgment- was rendered, or in the judgment rendered or - in the writ of fieri facias, under which it was. seized. In the alternative, she alleged that the judgment secured by plaintiff is improper, illegal, and erroneous, for the reason that plaintiff in the petition upon which judgment was rendered did not claim a lien and privilege in excess of $936 against opponent’s car, and the judgment recognized a lien and privilege to the amount of $1,232 against said car; that the procuring and signing of said judgment constituted and is a fraud on the court and upon the rights of third opponent, and is null and void and of no' effect.

She alleged that, if the property be sold, then, in that event, she is entitled to have said sale decreed null and void and of no effect. She prayed to be decreed the owner of the car under seizure, free of any lien, privilege, or incumbrance resulting from the judgment under which plaintiff is proceeding, and that, in the event the car is sold by the sheriff under said judgment, the sale be decreed null and void and of no effect.

Defendant in third opposition filed a motion to strike out of third opponent’s petition all allegations attacking the validity of the judgment, for the reason that it constitutes a collateral attack upon the validity of the judgment. This motion was overruled by the lower court, and defendant in third opposition did not appeal or answer the appeal. Therefore the motion is not before us for determination.

He also filed an exception of vagueness, which was overruled, and is not before us for decision. He then answered, admitting that the motor number of said car was in the petition and judgment written S-8919, when it should have been S-8918, alleging same to have been caused by a typographical error, and that the judgment should be reformed to correct said error. He denied that the judgment he is attempting to execute recognized a lien on third opponent’s car, in excess of $936, and shows that the said car was sold under a mortgage certificate, which certificate stated the amount of his special chattel mortgage, and that the car was sold for $385.

He further alleged that his chattel mortgage was duly recorded before the car was purchased by third opponent, and therefore pleaded estoppel, alleging that third opponent, through an agent, purchased the car at sheriff’s sale, and has had same in her possession since the seizure of the car.

The lower court in a written opinion rejected the demands of third opponent, and she prosecuted this appeal.

The record clearly discloses that, at the time third opponent purchased the car that was seized in her possession, defendant in third opposition had a valid chattel mortgage containing the pact de non alienando on the car, duly recorded in accordance with the law, and that she therefore purchased the car subject to the chattel mortgage of $936. There is no doubt in the court’s mind that the car seized as third opponent’s was the identical car on which defendant in third opposition held a chattel mortgage. The chattel mortgage correctly recited the serial number and motor number of the car seized, and, although the judgment erroneously recited ■the wrong motor number, the serial number is the same as that of the seized car, and, we think, sufficient to identify it.

The evidence shows that no two cars have the same serial number or the same motor number, and either or both is sufficient to identify the car. We think the description in the judgment is sufficient to identify the car in third opponent’s possession as the car upon which a lien is recognized.

Another fact to corroborate this is that the ear was purchased from the same concern that had a short time previous executed a chattel mortgage in favor of defendant.

Third opponent could not seriously contend that it is necessary to give both serial and motor numbers to properly identify a car, when in her pleadings she has only given the motor number and studiously avoided giving the serial number of the car she claims to own.

The contention of third opponent that the judgment is, null and void, in that it recognizes a lien and privilege on her car for a greater sum than that stated in the chattel mortgage, is not well founded, unless she can show that she has been prejudiced thereby. The judgment is not a personal judgment against her, and, if the car sold for less, than the amount • of the chattel mortgage on the car, she has not been injured or prejudiced in any manner by said judgment. If the car was sold for a greater amount than the amount of the chattel mortgage, she has been- prejudiced and injured, and is entitled to relief.

The car was indebted unto defendant in the sum of $936 and no more, and it was incumbent upon third opponent to show that the car sold for more than $936, in order to show any injury to her. She is not concerned with the judgment, in so far as it affects the original defendants. She has failed to show any injury or wherein the judgment was in any manner prejudicial to her. She did not attempt to pay off the lien and privilege on the car by virtue of the chattel mortgage. If she had done so, and the defendant had refused to accept the amount of the chattel mortgage, she could have secured relief.

We find no error in the judgment of the lower court, and it is therefore affirmed, with all costs.

CULPEPPER, J„ recused, and takes no part.


author: CULPEPPER, J.

text:
    No. 4174
    Second Circuit (Second Division)
    CREECH v. DAVID (ALLISON, Intervener)
    (March 16, 1932. Opinion and Decree.)

      J. S. Pickett, of Many, and William C. Pegues, Jr., of Mansfield, attorneys for plaintiff, appellee.
    Eraser & Carroll, of Many, attorneys for defendant, appellant.
   CULPEPPER, J.

Plaintiff brought this action to recover on an alleged claim amounting to ?390, with' 5 per cent per annum interest from judicial demand, for labor performed by him and J. Y. Christian, his assignor, in the capacity of oil field workers for defendant during the period from October 10, 1930, to November 18, 1930, inclusive, in the alleged “drilling and operation of one certain oil and gas well known as Tom David Smith No. 1, situated in Section 27, Twp. 8, Range 10, Sabine Parish, Louisiana.”

Plaintiff alleges he has a lien and privilege on the well, rig, machinery, appurtenances and appliances thereto attached, and on the lease on which the well is. situated, for the amount of said claim; that he verily believes said rigs, machinery, etc., are about to be sold or removed; and that he is entitled to and desirous of a writ of provisional seizure, prays for a writ to issue and provisional seizure of the lease, rigs, boilers, pipes, machinery, and appurtenances and appliances attached to the said Tom David Smith No. 1 well, and for recognition and enforcement of plaintiff’s labor lien on said property to be provisionally seized.

Under the writ which was issued, there were seized, according to the sheriff’s returns, the “lease, rigs, boilers, pipes, machinery and appurtenances and appliances attached on the well named, together with all leases annexed thereto and drilled thereunder.”

Defendant answered, denying liability, and avers, that such labor as was performed by plaintiff was performed for and while in the employ of the David Oil & Gas Company, Inc.; denied plaintiff has “any lien, privilege or right under the law” to a provisional seizure of the property in question; avers ‘‘that whatever labor may have been performed by plaintiff and others was in the sinking of a well in an effort to discover and produce oil and gas and that said well never became an oil well.” It is further averred in the' answer “that all of the labor performed by plaintiff and others was for and in the service of the David Oil & Gas Company, Inc., and that for all the wages due, they accepted and had issued to them shares of the capital stock of the company.”

To the suit, L. D. Allison, filed an intervention and third opposition, claiming the ownership of the drilling rig, boilers, pipes, machinery, appurtenances and appliances which were provisionally seized; and alleges that plaintiff has no lien or privilege. on sqme; prays that the seizure be dissolved and intervener be decreed the owner, and possession restored to him of said property.

To. the intervention plaintiff in suit filed exception of no right or cause of action, same being embraced in answer to the intervention, and, further answering, makes general denial of the allegations contained in intervener’s petition.

Upon these pleadings the case was tried, resulting in a judgment for plaintiff as prayed for, rejecting the demands of the intervener, and decreeing plaintiff to have a lien and privilege upon “the lease, rigs, boilers, pipes, machinery and appurtenances and appliances attached to that certain oil and gas well known as Tom David Smith No. 1, * * * and under seizure herein,” ordered said property sold and the proceeds paid to plaintiff upon his claim by preference and priority over all other persons. In the judgment the exception of no cause of action filed by plaintiff against intervener was expressly sustained and the intervention dismissed.

From the judgment both defendant and intervener took orders of devolutive and suspensive appeals. Intervener only has perfected the appeal, taken by him. Defendant in suit, Tom David, not having perfected his appeal, renders the judgment final as to him in so far as the hearing before this court at this time is concerned, and the issues are narrowed down to the contest between the plaintiff and the intervener.

The testimony discloses that the labor for which recovery is sought was performed in the work of drilling of the well in question in search of oil and gas; that the enterprise was unsuccessful, resulting in what is known as a “dry hole,” which was abandoned.

It was admitted by all parties during the trial, and so entered in the record, that the drilling rig, machinery, etc., used in the work of drilling the well and which was seized, belonged to the intervener, L. D. Allison, who had leased it to defendant with which to do the drilling, the consideration for the use of which was the transfer to him of “certain oil and gas leases in the community.”

The question for determination^ therefore, is whether or not plaintiff in suit has a lien and privilege on the seized property to secure the payment of his claim.

Plaintiff relies upon Act No. 171 of 1928, the pertinent portions of which read as follows:

Section 1. “Be it enacted * * * That any person or persons who shall perform any labor or service in the operation of any oil or gas well or wells in this State shall have a lien and privilege on said oil or gas wells, rigs, and machinery, and appurtenances and appliances thereto attached for equipment and operation of the same, for the amount due for said labor or service.”

Section 3 of the act provides that any person having such lien and privilege as created in section 1 of the act shall have the right to provisionally seize the property under which same is created, and have same -sold for the payment of his claim.

Plaintiff’s counsel reasons thus:

“Therefore, if the well * * * was an ‘oil or gas. well’ within the meaning of this Act, plaintiff is entitled to the privilege which he alleged. In common 'parlance, when operations are begun to sink a well/ for the purpose of exploring for oil or gas, the well is known as an ‘oil well,’ or less often it is known as a ‘gas well.’ ”

Counsel further states, that “the Legislature most likely intended this law to cover just the situation revealed in this suit”; that “unscrupulous and impecunious operators have frequently employed labor for the purpose of drilling wells to explore for oil and gas”; that “it often happens that when these wells failed to produce oil or gas in paying quantities, the well was abandoned and the laborers had no way of securing pay for their services.”

It is well settled that liens and privileges do not exist unless expressly created by statute, and that they cannot be extended by implication or analogy, and that such statutes must be strictly construed.

This court had occasion to pass upon the identical point here raised in the case of J. R. Wesson v. John Woodley, Inc., _ La. App. _, 139 So. 676, decided February 16, 1932. The interpretation which we placed upon the Act No. 171 of 1928 was that, strictly construed, it does not create a lien or privilege upon the rigs, machinery, appurtenances, and appliances used in the work of drilling a well in search of oil or gas, in favor of a laborer engaged in such work, but the lien or privilege is confined to the work of operating an oil or gas well after same has been completed and becomes a producing well. The statute uses the language, “any service in the operation of any oil or gas well.” Certainly, “operating” a well cannot be construed to mean “drilling” a well. According to our view, an oil or gas well is not an oil or gas well until it has been drilled and produces oil or gas. If, when it is drilled to' a certain depth, no oil or gas is found and produced, but is abandoned as a dry hole, it cannot be said to be an oil or gas well.

Plaintiff’s counsel suggests .that the Legislature “most likely intended” the statute to cover operations in drilling as well as operating such wells. But we are not permitted to indulge in likelihoods, or probabilities as to the meaning of a statute that must be construed strictly as written. We must reason that the Legislature would have used the words “drilling and operating” if it had intended the act .to cover drilling. Act No. 172 of 1928, which creates a lien upon oil wells to secure wages, of laborers engaged in drilling and operating oil or gas wells, used the language, “drilling and operating oil or gas wells.” So we find in this act the very thing we do not find in Act No. 171 of 1928, viz., the word “drilling,” which is the word which counsel would have the court to read into the act. Since the Legislature has seen fit to read into one of the acts, this word, and left it out in the other, we may reasonably infer that the lawmakers had an object in thus leaving the ■frord out. Or, if it was an oversight, still we are not at liberty to supply it.

The district court, we think, erred in recognizing plaintiff as having a lien upon the property seized. Since we have concluded thus, it is clear that the court was also in error in sustaining .the exception of no cause of action filed by plaintiff against the intervener. The exception should have been overruled.

For the foregoing reasons, the judgment appealed from is amended by decreeing that no lien or privilege exists in favor of plaintiff upon the property seized, and further decreeing that the writ of provisional seizure sued out be now dissolved and set aside, and the property delivered into the possession of intervener, L. D. Allison, as prayed for by him; and that, as thus amended, the judgment is affirmed.

It is- further decreed that plaintiff in suit, Rollie Creech, pay costs of appeal.