text:
    No. 8263
    First Circuit Appeal
    KYLE MOTOR CAR CO., INC., v. FRANCOIS DANCAUSSE
    (May 5, 1925, Opinion and Decree)
    (June 30, 1925, Rehearing Refused)

      (Syllabus by the Editor.)

    1.Louisiana Digest — Sales—Par. 118, 119.
    Where one gives an order for a new automobile to be delivered, he is not bound to accept the car delivered to him if it is not satisfactory upon trial, especially if the car appears to have been used. .
    2. Louisiana Digest — Damages—Par. 48.
    Loss and damage to the party damaged must be minimized by reasonable efforts to that end. Therefore, one suing for the sales commission of an automobile which was not accepted by the purchaser should show what the automobile could have been sold for or was sold for, in order to minimize the loss and show what loss was sustained.
    3. Louisiana Digest — Pleading—Par. 114; Brokers — Par. 22.
    One who sues for a commission for the sale of an automobile must allege an agreement under which he is entitled to the commission.
    4. Louisiana Digest — Brokers—Par. 15.
    The sale of an automobile must be complete before the agent or broker can claim a commission.
    Appeal from the Nineteenth Judicial District, Parish of Iberia, Hon. James Simon, Judge.
    This is a suit to recover a commission on the sale of an automobile. The defense is that the automobile is not up to agreement.
    There was judgment for defendant and plaintiff appealed.
    James R. Parkerson, of New Orleans, attorney for plaintiff, appellant.
    Porteous R. Burke, of New Iberia, attorney for defendant, appellee.
   ELLIOTT, J.

Kyle Motor Car Company, Inc., plaintiff, claims of Francois Dancausse, defendant, five hundred and fifty dollars with interest on account of the loss of a commission on the sale of a Studebaker automobile which plaintiff alleges that it sold to defendant for the price and sum of $2100.00 pursuant to written order signed by defendant and which defendant refused to pay for. Alleges that defendant accepted the automobile but afterwards, the same night, he left it at plaintiff’s garage in the town of New Iberia and the next morning informed plaintiff that it was not up to the agreement entered into and refused to carry out the agreement.

Plaintiff’s cause of action as set forth in its petition, Article 7, is that by reason of defendant’s failure to carry out his agreement and accept the Studebaker car, deliver his old car and pay $1500.00 cash as agreed, that plaintiff has suffered the loss of the commission on said Studebaker car, which amounts to $550.00.

Defendant for answer admits that he signed an order for a Studebaker car for the price stated by 'plaintiff, but avers that it was to be a new car, 1924 model; that without such consideration he would not have given the order. That plaintiff’s representations -and warranties that it would be a new car constituted the consideration for the order and formed part of the transaction. He denied that the car tendered to him was new and alleges that when he discovered it was not new he declined to accept it and gave plaintiff notice accordingly; denies owing plaintiff and prays that its demand be rejected.

The district judge, without stating reasons, rejected plaintiff’s demand and the plaintiff has appealed.

OPINION

The petition, Article 4, alleges that defendant accepted the car and in Article 7 that he failed to accept.

Mr. Gaiennie, who represented plaintiff in the transaction with defendant, testified as alleged in its petition.

The defendant, Dancausse, testified that he did not accept the automobile; that his order had reference to a new car and that the one tendered him did not appear to be new but appeared to have been used, and that when tried on the road it made a rattling noise which a new car should not have made. He produced two witnesses who corroborated him that the tires appeared to have been used more than in a run from New Orleans to Franklin, that the top of the car did not appear to set right, and that the car when tried on the road made a rattling noise; but the testimony on the question leaves the matter in doubt.

Defendant testified without objection, transcript, pp. 40 and 41, that he did not in fact, the order signed by him notwithstanding, unconditionally agree to buy the automobile; that the agreement was, if after seeing the car, he did not like it, that he was not bound to take it. And • said that he saw and tried it, did not like it, and notified Kyle Motor Car Co. that he did not want it and would not take it. The order contains no such condition and Mr. Gaiennie says there was none. With the above defenses, another is urged from the record which must be taken into account.

The amount claimed from defendant is on account of the loss of a commission on the sale of an automobile, Studebaker make, amounting to $550.00. Fred Perkins, president of Capital City Auto Co. of New Orleans, and F. J. Gaiennie, vice-president, sales manager of Kyle Motor Car Co., both state that Kyle Motor Car Co. sent defendant’s order td Capital City Auto Co. to be filled. That Capital City Auto Co. filled it by selling and delivering the car to McCarroll Motor Car Co. of New O'rleans, with a branch office at Franklin, and that McCarroll Motor Car Co. delivered it to Kyle Motor Car Co.

Mr. Gaiennie testifies that McCarroll Motor Car Co. and Kyle Motor Car 'Co. are separate and distinct but closely affiliated corporations, Mr. McCarroll being the general manager ■ of both. The evidence shows that Kyle Motor Car Co. obtained the car and tendered it to defendant as above stated; plaintiff ■ claims that it was delivered, but that Mr. Dancausse returned it the same night to Kyle Motor Car Co. and that Kyle Motor Car Co. a couple of Weeks afterwards sent it hack to Franklin and left it with McCarroll Motor Car Co. and that McCarroll Motor Car Co. has had it ever since.

Mr. Gaiennie was asked who owned it and first said that it belonged to Kyle Motor Car Co., transcript -p. 31, but almost immediately afterwards, transcript pp. 32, 35, 36, said he did not know whether it was carried as an asset of Kyle Motor Car Co. or of McCarroll Motor Car Co., and that so far as he knew it had not been sold and that no effort had been made to sell it since its return by Mr. Dancausse. It is well established that • loss and damages must be. minimized by reasonable efforts to that end. Consequently it appears that even if plaintiff’s petition be true, averments Nos. 3, 5, 7, 8, the automobile should have been sold to the best advantage and the commission earned by plaintiff, if any, would ordinarily and in the absence of reasons preventing, be applicable against loss by the act of defendant, even supposing defendant to have wrongly refused to take the car.

Then again if, as the petition, Articles 3, 4, 5, 7, avers, plaintiff, pursuant to defendant’s order, procured and delivered to him an automobile as per order and defendant returned it that night and the next morning notified plaintiff that it was not up to the agreement and that he would not turn over his old car nor pay the balance of the purchase price, does not appear to justify a suit, the object of which appears to be to disregard defendant’s contention that the automobile was not up to the agreement and collect a commission from him anyhow; because to be entitled to a- commission implies that plaintiff must have acted in the transaction with defendant as an agent or broker. If so, an action on part of plaintiff looking to the collection of a commission from defendant, independent of the price of the ear and without reckoning with the other party who employed plaintiff, cannot be approved because in the absence of the other party and of any reckoning in regard to the price, $2100.00, we cannot safely determine that plaintiff is entitled to a commission .nor the amount thereof, even if satisfied that he had earned such. And, in connection with the above, we observe that plaintiff does not allege an agreement, see C. C., Art. 2991, nor show such by evidence on the subject of the commission claimed. And the claim is for a lump sum, but whether as an agreement to that effect, or as an arbitrary quantum meruit without reference to and independent of the balance of the price and of its principal, or the other party, if as broker, the record does not show. As a general rule a sale must be completed before an agent or broker effecting it can claim a commission for his service in the matter. We conclude upon the whole case that the judgment appealed from is correct and should therefore be affirmed.

It is therefore ordered, adjudged and decreed that the judgment appealed from herein be and the same is hereby affirmed; that the appellant pay the cost of both courts.


source: Caselaw Access Project

author: LECHE, J.

license: Public Domain

text:
    No.-
    First Circuit Appeal.
    WHITNEY-CENTRAL TRUST & SAVINGS BANK v. N. A. DAWSON
    (May 5, 1925, Opinion and Decree.)
    (June 30, 1925, Rehearing Refused.)

      (Syllabus by the Editor.)

    1. Louisiana Digest — Mortgages—Par. 7, 8, 13.
    Where a clause in a contract of mortgage reads as follows: “The note, and mortgage is executed for the purpose of securing said Surety Company against any loss that they might suffer on ae- ■ count of their liability as sureties after said liability which have been judicially determined or determined to the satisfaction of appearer N. A. Dawson.” The Surety Company can have no claim until its liability on the mortgage has been judicially determined or determined to the satisfaction of Mr. Dawson.
    Appeal from the Parish of Ascension, Hon. Sam A. LeBlane, Judge.
    This, is a suit in the nature of concursus over the amount left after the sale of property on a first mortgage.
    There was judgment denying the claim of the “National Surety Company”.
    On appeal this judgment was affirmed.
    C. C. Weber, of Donaldsonville, attorney for plaintiff, appellee.
    Walter Lemann, of Donaldsonville, attorney for defendant, appellant.
   LECHE, J.

This proceeding is in the nature of a concursus over a fund of $1138.89 on deposit in the registry of the court.

The plaintiff, a first mortgage creditor, of defendant, foreclosed, and after satisfaction of its mortgage, there was left over, this fund which is claimed both by the second and third mortgage creditors of defendant.

The National Surety Co. of New York holds a note of defendant for $50,000.00, secured by a second mortgage on the property seized and sold by plaintiff. The $50,-000.00 note was given as security to indemnify the National Surety Co. in case it should suffer any loss as surety for defendant in the execution of several road building contracts which defendant had undertaken in the State of Mississippi.

Chas. T. Wortham is the holder of a note of Dawson for $2500.00, secured by third mortgage on the same property.

It is not disputed that a mortgage may be given for an obligation which has not yet risen into existence and that when such obligation does arise, ■ it imparts to the mortgage a retrospective effect to the time of the contract, C. C. 3292, 3293.

The question in this case is whether the claim of the National Surety Co. represents such a loss as was contemplated by the parties, when Dawson agreed to mortgage his property to the Surety Co. to indemnify it against any loss as his surety upon the road contracts which he had undertaken in Mississippi. The claim of the Surety Co. is represented by an account for various expenses which it alleges to have incurred as a result of its suretyship, amounting to some $3751.93.

The clause in the contract of mortgage, upon which the Surety Co. relies is worded as follows:

“ * * * * the note and mortgage is executed for the purpose of securing said Surety Co. against any loss that they might suffer on account of their liability as sureties * * * after said liability shall have been judicially determined or DETERMINED TO THE SATISFACTION of appearer N. A. DAWSON. * * * ”

This clause in the contract is the law which the parties have agreed upon as determinative of their rights. But the evidence fails to show that the liability of the Surety Co. has ever been judicially determined or determined to the satisfaction of Dawson. Indeed, instead of any liability of the Surety Co. having been determined judicially to the satisfaction of Dawson, Dawson denies such liability and shows that the contracts were abrogated by the county authorities of Mississippi and the bonds cancelled.

In truth the Suerty Co. may have spent the amounts specified in its claim in this proceeding and may have done so with the consent of Dawson, and it may have the legal right to be reimbursed therefor by Dawson, but we express no opinion upon that question, and only refer to it for the purpose;of stating that if such claim is due by Dawson, it is not a claim arising out of a loss which has been determined judicially or to the satisfaction of Dawson, and therefore that it is not secured by mortgage.

The judgment - appealed from should be affirmed,' and

It is so ordered.


text:
    No.-
    First Circiut Appeal.
    RUSSELL FUSCIA ET AL. v. CENTRAL LIGHT & POWER CO., ET AL.
    (June 12, 1925, Opinion and Decree.)

      (Syllabus by the Editor.)

    1. Louisiana • Digest — Negligence—Par. 4, 12.
    A boy climbed a tree growing inside his parents’ premises to chase a flying squirrel. The limbs of the tree extended outside the parents’ premises. The boy fell bruising his hands on a high voltage power line which was wholly outside of his parents’ premises thus burning him. Held, there was no negligence of the owners of the high voltage line because the wires were wholly outside of the premises of the boy’s parents and the wires themselves did not constitute an attraction for children to play.
    (Civil Code, Art. 2315. Editor’s note.)
    Appeal from the Parish of Tangipahoa, Hon. Columbus Reid, Judge..
    This is a suit for personal injuries to a boy due to his coming in contact with a high voltage electric wire. There was judgment for plaintiffs for less than prayed for and plaintiffs appealed.
    Judgment reversed, refusing plaintiffs’ demands.
    A. W. Spiller, of Amite, attorney for plaintiff, appellant.
    Purser & Magruder, of Amite, attorneys for defendant, appellee.
   LECHE, J.

Plaintiffs sue for damages in the sum of four thousand, six hundred and fifty dollars, and from a judgment in their favor as natural tutors and against the Central Light and Power Company, in the sum of fifteen hundred dollars, defendant the Central Light and Power Company has appealed.

Plaintiff’s minor son had climbed up a pine tree for the purpose of capturing a flying squirrel, when by losing his foothold, he fell down from the tree and in his fall, brushed against a highly charged electric wire belonging to and operated by the Central Light and Power Company, the fall and the electric shock, either or both, causing him severe pain and injury.

The Central Light and Power Company is a public service corporation and owns, controls and operates a line of electric wires along the public highway from Pontchatoula, La., to Osyka, Miss. The plaintiffs and their minor son live on a farm near Hammond, fronting on the same highway.

“We further find the following facts:

Plaintiffs’ boy climbed up a tree growing inside his parents’ premises. These premises are enclosed by a barbed wire fence. The fence is tacked on to the tree and though the roots of the tree are inside the premises, limbs of the tree extend outside the fence. Some of these outside limbs had been trimmed and cut by the Power Company and the stumps of such limbs were used by the boy as steps in a ladder, to climb the tree. The wires were outside of plaintiffs’ premises, the lowest wire being about twenty-two (22) feet above the ground. There was no encroachment upon plaintiffs’' premises, the nearest wire being outside and some sixteen (16) inches from the tree. The wires were charged with and carried 22,000 volts of electricity and the boy had climbed to a height over and above the wires, estimated at four or five feet. The boy while at this height, missed his footing and fell brushing the wires with his hands in falling. He did not grasp the wire in his hand because the high voltage would have shocked him to death. The contact was merely a rapid brush sufficient to burn but not to kill. The line of wires was erected where the Power Company had a right to erect it and in the manner that such lines are usually erected due regard being had for the public safety.

These facts present no grounds for imputing negligence to the defendant Power Company.

Plaintiffs argue that even if the Power Company was not guilty of negligence, it should be held liable under the doctrine of the “turntable cases”, as placing an attractive nuisance within the reach of children. But unfortunately for plaintiffs, the attraction in this case was not the live wires, but something else, over which the Power Company had no control, viz: the flying squirrel.

We do not believe that the Power Company is liable for the injuries sustained by plaintiffs’ minor son and

It is therefore ordered that the judgment appealed from be avoided and reversed and that plaintiffs’ demand be refused at their costs.


text:
    No. -
    First Circuit Appeal
    JOHN McDONALD v. E. S. FIELDS, ET AL.
    (May 5, 1925, Opinion and Decree)

      (Syllabus by the Editor.)

      1. Louisiana Digest — Taxation—Par. 332, 358.
    A tax sale founded on a description in ' the advertisement and deed which correctly describes the property as to section, township, range and boundaries, but accidentally states Ward 5 when the property is situated in Ward 4, is sufficient description on which to sell the property, as these, details are ample to identify and locate it.
    2. Louisiana Digest — Taxation—Par. 281, 285.
    A tax sale of one’s property without previous notice of delinquency is absolutely void. Therefore, where one is a resident of Arkansas and notice of delinquency was .sent to a Louisiana address, the tax sale is absolutely void.
    3. Louisiana Digest — Taxation—Par. 390, 391.
    Where a judgment is given declaring a tax title void, the right is also given to the defendant to collect the amount paid the tax collector at the sale, and subsequent taxes paid by him on the property with 10% interest from dates of payments.
    . Appeal from the parish of St. Landry. Hon. B. H. Pavy, Judge.
    This is a suit to have a ■ tax title declared null and void.
    There was judgment for plaintiff and defendant appealed.
    Judgment amended and affirmed.
    M. C. Redmond, of Monroe, , and G. L. Dupree, of Opelousas, attorneys for plaintiff, appellee.
    Dubuisson, Perrault & Burleigh, of Opelousas, attorneys for defendant, appellant.
   LECHE, J.

Plaintiff sues to have set aside and declared null and void a tax sale of his property. The sale was made on August 5, 1922, for the delinquent taxes of the year 1921. The adjudication was made to Dunbar and Fields, and at the request of Dunbar, who stated that the purchase was for Fields, the deed was made out in the name of Fields.

This suit was filed April 28, 1924, more than one year after the sale, and -plaintiff bases his demand on the ' following grounds: 1. That the description in the advertisement and deed is faulty and not such as to identify the land. 2. That no notice of delinquency was served as required by law. 3. That the sale is null and void for the reason that the property was adjudicated at the tax sale to Archie Dunbar, who, at the time, was a member of the Parish Board of Equalization, and as such -prohibited from purchasing at tax sale under penalty of nullity.

The District Court rendered judgment in favor of plaintiff and defendants have appealed.

1. We do not- believe that plaintiff’s first ground of complaint is Well founded. It is true that the land is described as situated in Ward 5 when in reality it is situated in Ward 4, but the correctness of every other detail in the description, the section, township and range, and the boundaries, is not questioned, and these details are ample to identify and locate the property.

2. When the assessment of the property was made, plaintiff was domiciled in Helena, Arkansas, and was therefore a non-resident, but the assessment roll nevertheless recited that plaintiff’s postoffice was Washington, parish of St. Landry, in this state. It appears from the evidence that a notice was sent to plaintiff at that address, but it also appears that plaintiff was not in Washington, Louisiana, and was in Arkansas at the time. It is also true that plaintiff in his testimony, taken under commission, was not asked directly whether he had received notice of delinquency, but can it be presumed under these circumstances that he did receive notice, notwithstanding the fact that he alleges in his petition that he did not receive such notice? The presumption of correctness attaching to the recitals of a tax deed is unassailable when the period of three years has elapsed and the constitutional prescription is applicable to such deed, for in that event dual assessment and prepayment of the tax are the only grounds of nullity which may be urged. But we do not believe that such presumption can arise under the peculiar circumstances of this case. The tax collector could not deliver at Washington, Louisiana, a notice to a taxpayer who was, at the time, and who resided in Helena, Arkansas.

It is not disputed that a tax sale of one’s property without previous notice of delinquency is absolutely void. In the case of Adsit vs. Park, 144 La. 938, 81 South. 430, Chief Justice O’Niell, as the organ of the court, says that the sale of property for delinquent taxes is invalid if the tax collector has failed to comply with the requirements of law for giving notice to the tax debtor, and if, in consequence, the tax debtor did not have notice previous to the - sale. The tax debtor in this case was a non-resident, and it is not pretended that notice in the form and manner required by Section 51 of Act 170 of 1898 was given to him. For that reason we believe that the sale of plaintiff’s property on August 5, 1922, for nonpayment of taxes is null and void.

3.The third ground of complaint is the one upon which the judgment of the District Court is predicated, and we see no reason to disturb the trial judge’s findings upon that point, as, in our opinion, the second ground seems sufficient' to sustain his conclusions.

The judgment appealed from should, however, be amended by reserving to the defendants the right to recover from plaintiff the price paid to the tax collector at the sale as well as any subsequent taxes paid by them on said property, with ten per cent interest on such -sums from the time of payment, arid as thus amended said judgment is affirmed, costs of appeal to be paid by plaintiff and appellee.


text:
    No. -
    First Circuit Appeal
    THE CROWELL SPENCER LUMBER CO. v. HAMP LYNCH
    (May 5, 1925, Opinion and Decree)

      (Syllabus by the Editor.)

    1.- Louisiana Digest — Possession—Par. 12.
    A possessor in good faith is one who has just reason to believe himself master of the thing which he possesses though he be not so in fact.
    2. Louisiana Digest — Possession—Par. 14.
    A verbal promise of sale of real estate is not sufficient reason to make the possessor one in good faith. He is merely a possessor in bad faith.
    3. Louisiana Digest — possession—Par. 19.
    A possessor in bad faith has the right to remove the improvements which he has placed on the land.
    Appeal from the Parish of Vernon. Hon. Hal. A. Burgess, Judge.
    This is a petitory action to recover ownership of land.
    There was judgment for plaintiff and defendant appealed.
    Judgment affirmed.
    White, Holoman & White, of Alexandria, attorneys for plaintiff, appellee.
    S. I. Foster, of Leesville, attorney for defendant, appellant.
   LECHE, J.

This is a petitory action in which plaintiff seeks to recover the ownership of certain lands situated in the parish of Vernon. The defendant does not dispute the title of plaintiff, but he demands that plaintiff be condemned to pay him before being dispossessed; ’one thousand dollars for the value of improvements which he has placed upon land. Plaintiff does not wish or elect to retain these improvements. The case is then resolved into the single' issue whether defendant was a possessor in good faith.

Defendant claims that before erecting any building upon the land he had an interview with plaintiff’s manager and that' he was promised a sale of the property and was told to go ahead and build. He further claims, for that reason, that he is therefore a possessor in good faith.

This promise is absolutely denied by the agents and managers of plaintiff company and is not proved with certainty. Counsel for defendant, however, argues that it is highly improbable that defendant would have gone to the expense of putting up a building unless such promise had been made. But even conceding the reality of such a promise, we do not believe it would avail defendant.

A verbal promise of sale of an immovable is unenforceable. It is absolutely null in law. A possessor in, good faith is one who has just reason to believe himself master of the thing which he possesses, although he be not so in fact.

Defendant does not claim that he ever believed himself owner of the property and he advances no just reason upon which such a belief could rest. The verbal promise which he alleges could certainly furnish no such reason, for he is conclusively presumed to know that it had no legal validity. He was therefore in legal bad faith. Boagin vs. Schell, 136 La. 33, par. 2, 66 South. 387.

The judgment appealed from gives him the right to remove his improvements and that is as much as he is entitled to.

That judgment should be affirmed and it ,is so ordered.


author: REYNOLDS, J.

text:
    No. 2224
    Second Circuit Appeal
    W. L. MORRIS, ET AL., v. S. T. HANKINS, ET AL.
    (May 9, 1925, Opinion and Decree.)

      (Syllabus by the Editor.)

    1. Louisiana Digest — Parties—Par. 26.
    Where the object of a suit is different as to the defendants, it naturally follows that the different defendants will be called on to make each his individual defense; and to allow a single suit to be brought against such defendants would lead to delays, confusion and complications, and therefore should not receive judicial sanction.
    2. Louisiana Digest — Parties—Par. 11, 12.
    The law does not permit a party to be joined in a demand in which he has n<? interest.
    Appeal from the Sixth Judicial District Court of Louisiana, Parish of Ouachita. Hon. F. M. Odom, Judge.
    This is a suit asking for recovery of three separate tracts of land in the separate possession of three defendants ' and for timber cut from the land by two defendants.
    S. T. Hankins filed an exception of misjoinder, and later an exception of no cause of action. D. F. Dennis filed an exception of no cause of action. W. F. Wall, insofar as the record shows up to this time, has made no appearance.
    The exceptions of no cause of action were overruled. The exceptions of misjoinder were sustained.
    Plaintiffs appealed.
    The judgment of the lower court, insofar as it sustains the exception of misjoinder and dismisses the suit as to S. T. Hankins, is affirmed and insofar as it sustains the exception of misjoinder and dismisses the suit as to W. F. Wall and D. F. Dennis is reversed.
    Stubbs, Theus, Grisham & Thompson and R. L. Davis, of Monroe, attorneys for plaintiffs, appellants.
    A. L. Davenport, of Monroe, attorney for defendant, appellee.
   REYNOLDS, J.

This is a suit by W. L. Morris, and others against S. T. Hankins, W. F. Wall and D. F. Dennis, asking recovery of three separate tracts of land in the separate possession of the three defendants holding title from a common author; and also seeking to recover, from D. F. Dennis, $277.00, for the value of timber cut by him from the land he claims, and to recover from W. F. Wall, $48.00, for the value of timber cut by him from the land he claims.

S. T. Hankins filed an exception of misjoinder, and later an exception of no cause of action.

D. F. Dennis filed an exception of no cause of action.

W. F. Wall, insofar as the record shows up to this time has made no appearance.

The exceptions of no cause of action were tried and overruled. This ruling, in our opinion, was correct; for if all the allegations of plaintiff’s petition are true, they are entitled to recover judgment.

The exception of misjoinder was tried and sustained.

Plaintiffs have appealed.

The petition does not ask for a judgment in solido against the defendants and under its allegations plaintiffs arfe clearly not entitled to a judgment in solido against each of the defendants.

Plaintiffs ask for a different judgment against each of the defendants.

Where the object of a suit is different as to the different defendants, it naturally follows that the different defendants will be called on to make each his individual defense and to allow a single suit to be brought against such defendants would lead to delays, confusion and complications, and therefore should not receive judicial sanction.

S. M. Jones Co. vs. Hoffman, 114 La. 1004, 38 South. 763.

The law does not permit a party to be joined in a demand in which he has no. interest.

It is perfectly apparent in this suit that S. T. Hankins has no' interest in the. issue as to the quantity of timber D. F. Dennis cut from the land claimed by him or in the quantity of timber W. F. Wall cut from the land claimed by him.

Our Supreme Court held in S. Blum & Co. vs. Wyly, 111 La. 1092, 36 South. 202:

“The law does not permit separate creditors to join in an action against the debtor unless there be a joint interest in the thing demanded or a privity of contract. Where plaintiffs have no interest in each other’s claims against the defendant but have a common interest in annulling a sale, as a fraudulent simulation, the proper practice is for the creditors to sue separately on their claims and then join in the suit to annul.”

For a like reason it is not permissible pleading to join three defendants between whom there is no joint or solidary obligation in one suit. ■ The right of each defendant, as to good or bad faith, would depend on each defendant’s respective acts and knowledge, and each defendant’s liability for fruits and revenues and his claim for improvements would have to be determined separately as to each defendant.

For these reasons, it is ordered, adjudged and decreed that the judgment of the lower court, sustaining the exception of misjoinder as to S. T. -Hankins, be affirmed. The exception of misjoinder was only filed by S. T. Hankins an'd the court was without authority to give effect to that exception insofar as it affected the suit against D. F. Dennis and W. F. Wall it must be reversed.

It is therefore ordered, adjudged and decreed that the judgment of the lower court, insofar as it sustains the exception of misjoinder and dismisses the suit as to S. T. Hankins is hereby affirmed, and insofar as it sustains the exception of misjoinder and dismisses the suit as to W. F. Wall and D. F. Dennis is reversed.

The costs in this case to await the final decision in the case.

Odom, Judge, being recused, took no part in the decision.


author: CARVER, J.

text:
    No. 2309
    Second Circuit Appeal
    LONNIE W. THOMPSON v. LOUISIANA CENTRAL LUMBER COMPANY
    (May 9, 1925, Opinion and Decree.)
    (June 23, 1925, Rehearing Refused.)
    (October 6, 1925, Writ of Certiorari to Supreme Court Refused.)

      (Syllabus by the Editor.)

    1. Louisiana Digest — Master and Servant —Par. 160 (b).
    In view of the Workmen’s Compensation Act No. 20 of 1914, excess payments of more than allowed under the act for hospital and medical services made by defendant for the injured employee cannot be deducted from the compensation due to the employee without the latter’s consent.
    2. Louisiana Digest — Minors—Par. 4, 12.
    A minor injured in an accident and placed in a hospital by his employer cannot contract to pay for the hospital bills in excess of the amount allowed under the Workmen’s Compensation Act No. 20 of 1914.

      3. Louisiana Digest — Master and Servant —Par. 159, 159 (a).
    An injured employee whose injury eventually caused the amputation of his leg above the knee, upon being shown to be totally disabled will be allowed compensation under Workmen’s Compensation Act No. 20 of 1914, Par. 8, Subsection 1 (b) for full compensation during the disability, not exceding 400 weeks.
    (ON APPLICATION FOR A REHEARING)
    4. Louisiana Digest — Master and Servant —Par. 160 (j).
    The evidence clearly shows that plaintiff, the injured employee, did not contract to pay medical and hospital bills over the maximum allowed by the Workmen’s Compensation Act No. 20 of 1914.
    5. Louisiana Digest — Master and Servant— Par. 154.
    Section 3, Subsection 6 of the Workmen’s Compensation Act No. 20 of 1914 does not go to the extent of giving to minors the right to enter into a contract not expressly contemplated by the Workmen’s Compensation Act (Article 1782 of the Civil Code).
    Appeal from the Thirteenth Judicial District Court' of Louisiana, Parish of Caldwell. Hon. F. E. Jones, Judge.
    This is a suit brought by an injured employee for compensation under the Workmen’s Compensation Act for total disability due to the amputation of his leg above the knee.
    There was judgment for plaintiff and both plaintiff and defendant appealed.
    Judgment amended and affirmed.
    Julius T. Long, of Shreveport, attorney for plaintiff, appellant.
    Thornton, Gist & Ritchie, of Alexandria, attorneys for defendant, appellant.
   CARVER, J.

This is a suit under the workmen’s compensation act. Both parties appeal from a judgment awarding plaintiff $14.40 per week for 175 weeks and during disability, not exceeding 225 additional weeks, less $210.00 deducted from the first amounts due, and' less an additional $1151.00 to be paid by deducting the amount of compensation due at the time of the judgment and the balance by deducting 50% of the weekly compensation allowed until paid.

The proof shows that on October 23, 1923, the plaintiff then 19 years old, while working for defendant as a “swamper” clearing roads for its log wagons, accidently cut his left leg just above the knee. Defendant had him placed in the St. Francis Sanitarium at Monroe and his wound treated by Doctors Beetle and Ben-dell. They tried to save the leg, but it had become badly infected and on or about December 25, 1923; they amputated it just above the knee.

He remained at the Sanitarium until about January 29, 1924, when his uncle, John A. Moore, who had partially raised him and who stood to him as a parent, his father and mother both having died, when 'he was quite young, took him over the objection of defendant to Shreveport. Moore tried to place him in the Charity Hospital, but that institution refused to receive him because he was entitled to compensation from his employer.

Thereupon Moore telephoned to the office of defendant at Clark’s, Louisiana, he says he recived no satisfaction at this place, whereupon he called ■ up the head man of defendant at Pineville or Alexandria and was told to carry him to Schumpert Sanitarium, which was done. His condition on arrival there is described by Dr. Willis as follows:

"Yes, I first saw him on January 29, 1924. He came into the Sanitarium very emaciated, had bed sores over his back and both hips as big as saucers and the left leg was amputated above the knee. General condition very good.”

He further stated (page 14) that there Were three large sores about the size of a round s’aucer with the bone exposed in the center from both hips and the sacrum and back bone.

And further, ' (page 15) “He was so emaciated you could easily lift him with both hands”.

He remained in the Schumpert Sanitarium until September 19, 1924, when he was discharged.

Dr. Willis says (page 11):

“His condition on discharge was that the stump of his left leg was healed, his general condition was good. We considered him in good shape and expected him to make a good recovery in about three or four months, of course, with the loss of the leg.”
"Q. Had the toxins due to the infection entirely disappeared when he was discharged?
“A. Yes.”

He further gave it as his opinion that after three or four months from the time of discharge he would be all right, except for the loss of the leg.

While in the Schumpert Sanitarium his leg was reamputated near the hip;. Dr. Willis stating that this was necessary because the bone was protruding beyond the muscle and skin tissue.

On January 10, 1925, Doctors E. L. Sanderson, S. C. Barrow and O. C. Rigby gave testimony, they having examined him December 31, 1924. Dr. Barrow had taken x-ray pictures of his right knee joint and stated that it was affected with arthritis; that the cartilage had become partly absorbed; and there was inflamation of the parenthymatous membrane; all of which thought was caused by general infection of the system.

Dr. Rigby testified, page 22:

“On physical examination he looked somewhat emaciated and extremely weak. His pulse was one hundred and forty and his temperature was one hundred. His respiration was about twenty. The left leg is amputated at the junction of the middle upper third of the fema. The right leg shows some atrophy of the muscles of the knee joint with some contraction of the flexor muscles and tenons of the knee. The foot is bluish in color, and cold, due to poor circulation. The lungs, on examination with a stethescope, ' did not reveal any rels or anything that might lead you to suspect tuberculosis. The heart does not seem to be enlarged but is very rapid. His general appearance is that of a disease of infection of some kind in which it has gone all over the body, but must have been absorbed up. The x-ray which was taken of the knee joint shows chronic arthritis, with an absorbtion of the cartilage in the knee.”

He further testified, page 24:

“I think his knee will always be impaired, and it is probable that he otherwise may be impaired from the standpoint of his heart and lungs.”

He further testified page 25:

“I don’t believe he will ever be able to doi manual labor any more.”

Dr. Sanderson testified, page 30:

“Well, I am convinced that this man having gone through a long period of septic infection, that all the tissues in his body were infected and naturally the larger joints in your body suffer from general septic poisoning more so than the other parts. I don’t say that they suffer more, but their function is more impaired because of their greater importance. I think when this man got out of bed and began to walk that his knee joint had been so affected that the pressure necessary to carry the whole weight of his body, even if that knee were normal, was too great, and it produced a hypo-atrophy of the tissues around the joint, that is, there was some enlargement, nature trying to make it stronger with absorption of the cartilage that lined the joint. I think the absorption the x-ray shows took place after the man got up his weight bearing in the knee joint twice as much as the knee was accustomed to carrying and that the cartilage was diseased and they would not stand the bearing, and that cartilage was ahsorbed, leaving the bone practically without .any bearing.”

Further, on page 32:

“I think he is totally disabled and permanently disabled.”

At the time of the trial. Dr. Hines examined the plaintiff at defendant’s request but was not asked to testify.

While in the Schumpert Sanitarium plaintiff’s right leg had become crooked and an effort was made to straighten it by the use of a plaster of paris cast. This effort, though, was unsuccessful as the leg became crooked again soon after taking the cast off and at the time of trial was still crooked to the extent of about six inches.

Plaintiff testified that he had made efforts by the help of school children and others to straighten the leg but could not do it and could not bear his weight on it without crutches. He further said that he was subject to falling and that he had chills when he ate anything hard to digest. Also that while his normal weight was 172 pounds that he then weighed only a little over 100. And further, that he had been very much more emaciated but had gained in weight until about six weeks before the trial, which was on January 15, 1925, at which time he had ceased to gain.

The evidence satisfies us that plaintiff’s condition is one of total and permanent disability.

Plaintiff alleges and swears that his wages at the time of the accident were $3.50 a day and board.

Rosser, the contractor under defendant for whom plaintiff worked testified that it was $3.00 a day and board.

As to board, the proof shows that at the regular boarding house the charge is $1.00 a day. Rosser says, though, that he intended boarding plaintiff at his own residence and figured that the additional cost, besides the expense of his own family, would be only 50 or 60 cents a day. However, his family was absent at the time and he placed plaintiff at one Bill Jordan’s without making any arrangement as to the expenses for plaintiff’s board, but after the accident settled with him for 75 cents per day .

The District Judge figured the wages at $4.00 a day including board but wrote no opinion showing how he arrived at it, and counsel for plaintiff and defendant disagree as to how it was arrived at. Plaintiff’s counsel says that he figured $3.50 a day, plus 50 cents for board. Defendant’s counsel say he figured $3.00 a day plus $1.00 for board.

Besides the above testimony of plaintiff and Rosser, we quote the following:'

Rosser, page 132:

“Q. What was the usual and customary price paid for swamping?
“A. $2.75.
“Q. And the man board himself?
“A. Yes, sir.”

Plaintiff and Rosser both testify that formerly plaintiff had worked as swamper for Mr. Griggs and plaintiff admits (page 133) that he was getting from Griggs for the swamping job $2.75 He does not say whether he got board in addition or not. On being asked if $2.75 was the regular price for swamping, he answered, “No, sir, $3.50 is the regular price for contractors to pay”. *

Under this evidence we think that the proper amount to figure as plaintiff’s wages, besides the board, is $3.00 a day.

As to board, we think 75 cents a day, the amount paid Jordan, the proper amount to fix.

Plaintiff, though, was to receive seven days a week board which would be $5.25 a week. This divided by six, the number of days worked, would make 87-1/2 cents per day. So his entire wages would be $3.87-1/2 a day, or $23.25 per week. Sixty per cent of this would be $13.95 per week.

The main dispute in the case is over the allowance made by the District Judge of $1,151.00 excess expenses incurred* for hospital and medical bills over and above the $250.00 which the statute requires defendant to pay

C. B. Tyhite, cashier of defendant, testified that $1,401.00 was paid as follows:

March 28, 1924. Drs. . Beetle & Bendell .................................................... $200.00

March 15, 1924. Drs. Willis, Knighton, Garrett & Willis--------~~ 150.00'

June 1, 1924. St. Francis Sanitarium................................................... 302.50

Schumpert Sanitarium, as follows:

March 28, 1924 ................................ 182.50

May 2, 1924 ____________________________________ 177.50

November 15,1924 —.________________________ 388.50

Total____________________________ $1,401.00

Less statutory liability of defendant __________________________________________________________ 250.00

Leaving excess payment ________.... $1,151.00

As stated above, the District Judge allowed this excess.

These charges do not appear to us unreasonable. Plaintiff stayed in the St. Francis Sanitarium from October 27, 1923, to January 28, 1924, a little over three month. Drs. Beetle & Rendell treated him during this time and amputated his leg. He stayed in the Schumpert Sanitarium from January 29, 1924, to September 29, 1924, eight months Dr. Willis treated him during this time and reamputated his leg. Of course the Sanitarium services included medicines, surgical dressings, services of nurses, and also sustenance.

Anticipating that plaintiff would need excess medical and hospital services, the insurer of defendant undertook to make an arrangement with plaintiff and his uncle and also his cousin providing for such services be furnished and taken out of his compensation as advance payments thereon.

J. F. Bolton, an agent of the insurer, went to see plaintiff while he was at the St. Francis Sanitarium, on January 3, 1921, and says he explained to plaintiff and also to plaintiff’s CQUsin what was desired. He left with them a printed blank containing a request for such excess services if necessary and an agreement that they be charged as advance payments on the compensation. This printed blank came back to defendant by mail signed with plaintiff’s name and attested by W. S. Moore, his cousin, the date having been filed in January 5th. We are satisfied that defendant and its insurer believed this instrument to have been signed by Thompson himself, but we are satisfied it was not signed by him but his cousin, Moore. It is so testified by Moore, and besides the record contains considerable writing of plaintiff’s, including his signature which is materially different from the signature to this instrument. .

Moore further testifies that Bolton tried to explain about this paper to plaintiff but that he was unconscious, and that Bolton then tried to explain it to him, Moore, but that he did not know what he did explain.

The record contains receipts purporting to be signed by L. W. Thompson as follows:

January 30, 1924, for compensation 26 • October, 1923, to December, 1923, $75.60.

January 30, 1924, for compensation 8 December, 1923, to 21 December, 1923, $25.20

January 30, 1924, for compensation December 22, 1923, to January 19, 1924, $50.40.

January 30, 1924, for compensation 21st, January, 1924, to February 2, 1924, $25.20.

These are • signed L. W. Thompson, Quitman, Louisiana. It will be noted they all bear the same date. Also that this was the day after Thompson had been removed from St. Francis Sanitarium to Schumpert Sanitarium.

J. A. Moore; plaintiff’s uncle, lived at Quitman and these receipts are all attested by him.

Plaintiff testifies that he did not sign any of these receipts and we are satisfied that he did not.

Other receipts were filed as follows:

April 9, 1924, for compensation February 4, 1924, to March 1, 1924, $50.40

April 9,- 1924, for compensation March 3, 1924, to March 29, 1924, $50.40.

April 26, ■ 1924, for compensation March 31, 1924 to April 26, 1924, $50.40.

August 1, 1924, for compensation June 23, 1924, to July 21, 1924, $50.40.

These receipts were intended by defendant to show payments on account of the Sanitarium and medical bills as well as what was paid to plaintiff himself.

Plaintiff admits signing those covering 4th of February to 1st of March, 31st of March to 16th of April, and 23rd of June to 21st of July. He was not asked about the one from 3rd of March to 29th of March, but comparison of signatures convinces us that he signed this also.

Plaintiff testifies that he did not sign the printed blank as to excess medical and hospital services and that he never did understand it, or know what arrangement had been made about his compensation. Several letters written by him are in the record. These letters express thanks and appreciation for the kindness of defendant towards him but they also show, we think, he did not understand the arrangement about excess services. In one, of July 31, 1924, he says: “But please tell me why $50' is this receipt when I did not get the full amount”. On July 30, 1924, he wrote: “Will you also tell me how much insurance I am supposed to draw, what kind of arrangement did Moore make when he came down there. He has not told me anything I suppose he wants to tend to everything”.

We are satisfied that plaintiff’s uncle and nephew understood the substance of the agreement evidenced by the written instrument to which plaintiff’s cousin signed plaintiff’s name. We are satisfied also that though plaintiff did not know exactly what arrangement had been made about the excess services, yet he knew that some arrangement had been made and at the time had no objection to it, trusting to their having made a beneficial arrangement.

“All that man hath will he give for his life.”

We are satisfied, too, that defendant and his insurer believed in good faith that plaintiff had signed the printed instrument. We are also satisfied that defendant or its insurer for its account did make the expenditures claimed and that they did save plaintiff’s life.

For these reasons we regret that we cannot see any legal, way to allow these expenses. In our opinion plaintiff is responsible for them under article 2295, et seq. of the Civil Code under the head of “Quasi Contract”.

Article 2299 reads:

“Equity obliges the owner, whose business has been well managed, to comply with the engagements contracted by the manager, in his name; to indemnify the manager in all the personal engagements he has contracted and to reimburse him all useful and necessary expenses.”

Article 2300:

“All persons, such even as are incapable of consent, may, by the -quasi contract, resulting from the act of a third person, become, either the object or the subject of an obligation; because the use of reason, although necessary on the part of the person whose act forms the quasi contract, is not requisite in those by whom, or in whose favor, the obligations resulting from the act, are contracted.”

Plaintiff’s father and mother were dead, and his uncle admits (page 94) that he could not take care of him.

Whether the arrangement for medical and hospital treatment was made on request of the uncle and'nephew or by dewe are satisfied that these service! saved fendant or its insurer of their own volition, plaintiff’s life and that therefore he is responsible for the expense under Articles 2299 and 2300.

It was squarely held, though, by the Supreme Court in Delany vs. Ferd Brenner Lumber Co., 154 La. 156, 97 South. 349, and Quave vs. Lott-Batson Lumber Co., 151 La. 1052, 92 South. 678, that excess payments for hospital and medical services could not be deducted by the employer from the compensation due the employee without the latter’s consent.

We do not understand these decisions to hold that the employee is not responsible for these charges where they inure to his benefit. In either one of these cases are the circumstances mentioned, so as to show whether the expenditures were judicious and beneficial or not; but the decisions do squarely hold that without the employee’s consent the excess charges cannot be taken out of his compensation.

In this case we do not believe the plaintiff did consent and we are cited to no law by virtue of which his consent if it had been given, would have been valid he being a minor.

It is decreed that the judgment of the lower court be amended in the following respects:

First: By reducing the weekly compensation allowed to plaintiff from $14.40 per week to $13.95 per week.

Second: By disallowing the $1,151.00 allowed to defendant for excess medical and hospital services.

And as thus amended, said judgment is affirmed.

ON APPLICATION FOR REHEARING

Defendant, Louisiana Central . Lumber Company, in an application for rehearing, urges that the judgment herein rendered is incorrect:

1. In holding that the evidence did not show that plaintiff consented to the deduction of the excess medical and hospital bills from his compensation.

2. In holding that plaintiff was incapacitated to contract as to the excess medical and hospital bills because he was under the age of 21 years.

3. In holding that the letters of plaintiff did not indicate that he understood ancl agreed that the excess medical and hospital bills should come out of his compensation.

4. In holding that plaintiff was entitled to full compensation during disability, not exceeding 400 weeks.

OPINION.

On the first point in defendant’s application, that the evidence shows consent on the part of plaintiff that the excess medical and hospital bills over $250 should be paid out of his compensation.

Lonnie W. Thompson testified, page 8:

“Q. Now, were you entirely at yourself during the time you were at the Sanitarium, and if not, how were you?
“A. I. was unconscious, most of the time I was at the St. Francis Sanitarium.”

(Page 29):

“Q. Do you remember Mr. Bolton coming up there to see you about the first of January?
“A. I remember some man coming up there.
“Q. You remember him explaining to you that the company was only liable for medical and hospital expenses up to $250.00 and anything over that would be considered excess medical fees and would have to come out of your compensation, don’t you?
“A. I remember a man coming up there with some papers.
“Q. You remember him saying something to you about the papers having to be signed?
“A. No, sir.
“Q. You don’t remember anything about that?
“A. No, sir.”

John A. Moore testified, page 25:

“Q. At that time Mr. Bolton explained to you in the presence of your cousin, Lonnie W. Thompson, and to him that the company was only liable for $250.00 medical and hospital fees, and any more than that paid out would have to come out of your cousin’s compensation, didn’t he?
“A He tried to explain to my cousin but he was unconscious and then he tried to explain it to me, but I don’t know what he did explain.”

(Page 27):

“Q. You know that you were very anxious to save his life and you knew that he was very anxious to get well, didn’t you?
. “A. I don’t know that he knew because he was unconscious.
“Q. He wasn’t unconscious at the time Mr. Bolton was there, was he?
“A. Yes, sir.”

J. P. Bolton a witness for the Southern Casualty Company, the company carrying theo insurance in this case, testified, page 35:

"Q. Please state whether or not the plaintiff, Lonnie W. Thompson, was conscious at that time and took part in the conversation?
“A. As far as I could see he was — he talked to me.”

(Page 36):

“Q. The plaintiff was in a bad condition at that time?
“A. He looked thin and in very bad condition to me.”

It is to be observed that Mr Bolton does not say that Lonnie W. Thompson was conscious — he says — “so far as I could see he was — he talked to me”.

This testimony, we do not think, overcomes the positive testimony of Lonnie W. Thompson and John A. Moore that plaintiff was in a state of mind entirely beyond the ability to make a contract or waive any of his rights.

The testimony as a whole, we think, fully warrants the' holding of this court that plaintiff was in such a frame of body and mind as not to be in condition to contract and hence that in law he gave no consent it should have the right to withhold out of to the contract claimed by defendánt that the compensation due him under the workmen’s compensation act the amount of the medical and hospital bills in excess of $250.00.

Delanney vs. Ferd Brenner Lumber Co.

Quave vs. Lott-Batson Lumber Co., hold that hospital and medical bills cannot be deducted by the employer from the compensation due the employee without the latter’s consent.

II.

On the second ground of defendant’s application, that the court erred in holding that the plaintiff, as a minor, was incapacitated to give his consent that the excess medical and hospital bills should be paid out of his compensation, defendant calls our attention to subsection 6 of section 3 of the Workmen’s Compensation Act which provides that employees of the age of 18 years and upwards shall exercise the right of election or termination or waiver authorized by this section, and insists that it thereby conclusively appears that it was the intention of the legislature to provide that compensation due a minor over the age of eighteen years is to be paid to the minor and that the plaintiff, Lonnie W. Thompson, was fully capable of exercising any right or privilege and of making any agreement with reference to his compensation that an adult would have.

We cannot concur in this view.

Civil Code, 1782, provides:

“All persons have the capacity to contract except those whose incapacity is specially declared by law. These are persons of insane mind, those who are interdicted, minors and’ married women.”

Subsection 6 of Section 3 of the Workmen's Compensation Act cited by defendant, has extended the capacity of minors over the age of 18 years so that they may now elect whether they will come under the operation of the Workmen’s Compensation Act; but this section does not go to the extent of giving to minors the right to enter into a contract not expressly contemplated by the Workmen’s Compensation Act.

Counsel’s argument that if a mjnor is given the right to determine whether he will come under the operation of the Workmen’s Compensation Act he certainly, for the greater reason, has the right to contract with reference to his rights under that Act, is forceful; but the right of minors to contract is fixed by the general law and cannot be extended except by legislative enactment, and the Act relied on by counsel for defendant does not go to the extent of allowing a minor to contract as to rights that have already accrued to him under the Workmen’s Compensation law.

III.

On the third point in defendant’s application, that plaintiff’s letters indicated that he understood and consented that the excess medical and hospital bills were to come out of his compensation, we have carefully read plaintiff’s letters and in our opinion they indicate that plaintiff was homesick, tired of remaining in the hospital and was pleading for money; he practically said in each letter “Please send me a little money”.

To our mind, plaintiff’s letters indicate that he did not understand any of the arrangements under which he was being kept in the Sanitarium. He wrote in one of his letters: “What kind of an arrangement did Mr. Moore make while he was down there?”

From all the letters we think our original holding as to them was correct.

IV.

As to defendant’s fourth contention, that we. were in error in holding that at the date . of the trial plaintiff, was totally disabled to do work of any reasonable character and hence entitled to collect compensation during total disability, not to exceed 400 weeks.

Doctor J. C. Willis, Jr., testified on page . 2 of the testimony taken by R. T. Russ.

“Q. Doctor, have you had occasion to treat the plaintiff in this case,. Lonnie W. Thompson, and if so when and for what condition?
“A. Yes, I first saw him on January 29, 1924. He came into the Sanitarium very emaciated, had bed sores over his back and both hips as big. as saucers and the left leg was amputated above the knee. General condition very poor. He remained under our care, generally improved, slowly improved, very slowly and was operated on again in June, amputation of the stump of the left leg. Discharged September 19, 1924.”

Doctor O. C. Rigby testified, page 9:

“A. I would. I don’t belive he will ever be able to do manual labor any more.
“Q. You looked at that x-ray plate, did you?
“A ' Yes.
“Q. Do you agree .with.Doctor Barrow on what he says?
“A. I do.”

On cross examination he testified, page 9:

“Q. Doctor, considering that this man was in a state of emaciated condition for a period of twelve months and that up until some time in July or August, 1924, his life was almost despaired and that after that time he was, you might say, almost nothing but skin and "bones, wouldn’t that indicate there would be a considerable length of time after he was able to get up before he would regain the maximum amount of strength that you think he could gain and be a good long time, in other words before ' he would be able to use himself to any advantage?
“A. Yes, it would be a good long time. I don’t believe he will ever be able to use himself to any advantage. The fact that he has a pulse of 140 and a temperature of 100 goes to show that there is still some poison in his system.”

Doctor E. L. Sanderson, testified, page 15-16:

“Q. If it is shown that this patient had walked with two crutches under his arms and with the assistance of another man to help him up and down the little rises between here and the Merchants building, what would you say about his likelihood of getting better, knowing the condition as you do?
“A I think he is totally disabled and permanently disabled'.”
“A. My opinion is if he was able to walk out of the Sanitarium three or four months ago, that .so far' as his ability for getting around is concerned, it must have been as good then as it is now because it is about all he can do now to walk out of the Sanitarium.”

(Page 19):

“A. Well, his muscles and his general body tissues have improved, I think, quite rapidly. The thing that doesn’t repair is what is known as the parenchymatous tissue. That means that the parenchymatous tissue of the organs, the liver cells is destroyed by septicism, and never repairs. It is replaced by a sort of fibrous tissue, but the other tissue never repairs. The heart tissue that is destroyed by septic poisoning, the tissue is not repaired'. The cells of your spleen and different other organs of the body that control the body, these cells are called parenchymatous cells and they are destroyed during infection and they don’t repair. They are destroyed forever, and that is the part of the body I don’t think the man has any possible chance to ever repair, is the active organs of the body. So far as the other effect on his body he might get just as good as he ever was, and even his muscles, after long exercise, may develop, but the organs of his body are impaired for all time to come.”

Under the above evidence We are forced to our original conclusion that the plaintiff, at the time of the trial, was permanently, totally disabled to do work of any reasonable character.

For the above reasons the application for a rehearing is refused.


text:
    No. 1966
    Second Circuit Appeal
    TOM PAINICH v. JOE TURK ET AL
    (May 9, 1925, Opinion and Decree.)

      (Syllabus by the Editor.)
    1. Louisiana Digest — Appeal—Par. 625.
    The opinion of the trial judge on matters of fact, unless clearly erroneous, are not disturbed on appeal.
    Appeal from Fourth Judicial District Court of Louisiana, Parish of Union, Hon. F. X. Ransdell, Judge.
    This is a suit to collect money alleged loaned. There was also an attachment.
    There was judgment for plaintiff and defendant appealed.
    Judgment affirmed.
    H. G. Fields, of Farmerville, attorney for plaintiff, appellee.
    Elder & Digby, of Ruston, attorneys for defendant, appellant.
   CARVER, J.

Plaintiff sues Joe and Phillip Turk' for $200.00,' the amount of an alleged loan made to them by him. He also under appropriate averments, sued out a writ of attachment under which the sheriff seized certain staves belonging to the defendant, Joe Turk.

Phillip Turk denies being indebted to plaintiff and from a judgment in his favor plaintiff does not appeal.

The defence of Joe Turk is that he got the $200.00 from plaintiff not as a loan but as an advance payment on 35,000 staves which he alleges he agreed to sell and plaintiff to buy at the price of $145.00, per 1000.

Alleging plaintiff’s refusal to comply with the contract to buy the staves and his own subsequent sale of them at a loss of $25.00 per 1000, he reconvened for $875.00, his loss by reason of plaintff’s alleged breach of contract.

The plaintiff testified that in the year 1921 he loaned $200.00, the loan being made, as he thought, to both defendants whom he considered partners. He denies agreeing to buy any staves from defendant.

Joe Turk testifies (page 11) that plaintiff did agree to buy between thirty and thirty-five thousand staves at $145.00 per 1000.

Neither side is corroborated by any witness, but plaintiff introduced a postal card and a letter purporting to have been written by Joe Turk in the Slavonic language which the plaintiff translated as follows:

Postal card dated December 8, 1922, as follows:

“We not sell staves yet. When we sell them I give you $100.00, next hundred wait me for six months.”

The letter, dated December 12, 1922, he translated as follows:

“I get your letter and notes and send your notes back. Why you don’t makes notes as we were speaking? One of them for $100.00, another one for $100.00 for six months not both of them at one time. P am selling staves, can’t get a ear for loading. Yours truly, Joe Turk. If you want to talk with me on the telephone, come to Star Hotel at 1 o’clock, I ring you.”

Defendant denies writing or authorizing the postal card. He admits authorizing the writing of the letter. He states that- plaintiff’s translation of the letter is not correct, but when asked to translate -it himself said he was unable to do so, though he says it starts out “Dear Sir, You say I loan you some money”.

He further says (page 13):

“I wrote him what for he sent them two notes.”
“Q. Didn’t you say I am selling my staves?
“A. No, sir, I didn’t say nothing about that.
“Q. Right here on the 9th line of the letter at the end of the line are not those two words hundred dollars?
“A. Yes, sir.
“Q. Don’t you offer him there to pay $100.00 and give a note for the balance in six months?
“A. No, sir.
“Q. Doesn’t that mean six months?
“A. No, sir.
“Q. What does it mean?
“A. I can’t explain it.
“Q. Did you read in the letter anything about paying him $100.00 and in six months another $100.00?
“A. No, sir. In that letter I received one note for $100.00, and one for $100.00 and this note I sent it back to him, that is all there is in the letter I no sign the note.
"Q. And that is what those figures mean, you sent the note back?
“A. Yes, sir.
“Q. When Tom Painich was translating this stuff and when he said both in the card and in the letter that you were willing to sign the note for $100.00 and one in six months, do those letters say anything like that in Slavonic?
“A. No, sir. All this letter say I received two notes and send back to you, I didn’t sign it.
“Q. When he interpreted to the court 'that you had said that in Slavonic was there any such thing in the card or the letter?
“A. No, sir. The letter is like I told you.
“Q. I thought you said you couldn’t explain these letters to the court?
“A. I could explain to you like Mr. Elder.
“Q. But you only explained to Mr. Elder after he said that is what it means?
“A. I couldn’t explain, I couldn’t pronounce the words.
“Q. Will you please state what you mean when you tell Mr. Elder that you can’t tell him what a particular word is in the American language?
“A. I can’t tell exactly. Can tell him little, but can’t tell exactly.
“Q. You can give a general idea of what is in the letter? What the letter means?
“A. That is all that mean I received two notes.
“Q. Is it not a fact that you don’t wánt to tell all there is .in that letter?
“A. I told all what is in that letter, what is all I know.
“Q. That whole letter only says what you say then?
“A. Yes, sir.”

He further testifies, (page 8) that he had been in this country (meaning America) eleven years, coming from Alabama to Louisiana; that he only talked English in Alabama, and knew no language except English and Slavonic and had been to school four years in Slavonia.

The District Judge evidently believed that the $200.00 was a loan and not an advance payment on a purchase of staves, and we cannot* say he manifestly erred.

The record shows that the defendant, Joe Turk, at the time the attachment was sued out, had a lot of staves on the right-of-way ready to be shipped out and that he was going to ship them. It also shows that he borrowed money from a bank and it is admitted that he gave a chattel mortgage, though the admission does not state what the mortgage was on.

In view of the fact that defendant denied owing the debt sued on, we think this mortgage and his preparations for shipping the staves showed an intention to defraud plaintiff and that the attachment was justified. Code of Practice, 240. The District Judge so held, giving judgment in favor .of plaintiff for $200.00 with 'interest and . sustaining the attachment. This judgment being correct in our opinion, is affirmed.


text:
    No. 2021
    Second Circuit Appeal
    SHOEMAKER & JAMES v. H. L. CLEVELAND
    (May 9, 1925, Opinion and Decree)

      (Syllabus by the Editor.)

    1. Louisiana Digest — Appeal—Par. 625.
    The judgment of the trial judge on matters of fact being manifestly correct is affirmed.
    Appeal from Sixth Judicial District Court of Louisiana, Parish of Ouachita. Hon. Fred M. Odom, Judge.
    The plaintiffs sue for possession of an automobile owned by them, which they claim is being illegally detained.
    There was judgment for defendant and plaintiff appealed.
    Judgment affirmed.
    Sandel & Clark, of Monroe, attorneys for plaintiffs, appellants.
    David T. Garrett, of Monroe, attorney for defendant, appellee.
   CARVER, J.

The plaintiffs sue for possession of "an automobile owned by them which they claim is being illegally detained by the defendant.

.Under appropriate allegations, the automobile was seized under a writ of sequestration.

Defendant admits the ownership and detention, but claims a right of detention, to secure the payment .of a bill for repairs made on the car at the request of the plaintiffs.

Both sides claim damages; the plaintiffs, for the use of the car at $15.00 a day and also attorney’s fees, and the defendant, attorney’s fees for the alleged illegal issuance of' the writ of sequestration.

It is admitted that $25.00 is a proper attorney’s fee either for maintaining or dissolving the writ.

It is not disputed that the defendant did make the repairs, amounting to $95.01, an itemized bill of which was introduced in evidence.

The main dispute in the case is whether the defendant was authorized to make the repairs. Both plaintiffs testify that he was not but that they simply requested him to take the car to his garage and give them an estimate of what it would' cost to repair it, they intending to get estimates from other parties also. The defendant and his wife both testify that plaintiffs did authorize the making of the repairs.

Plaintiff’s theory is supported to some extent by F. C. and Lee Childers, who testify to having heard conversations between plaintiffs and defendant in which, they say, defendant admitted he was not authorized to make the repairs.

On the other hand, defendant’s theory is supported to some extent by one Tucker, who testifies that he informed Shoemaker that the car was ready, meaning that it had been repaired, and that Shoemaker’s reply was that he. would have to come by and get it.

The District Judge evidently gave more than usual consideration to the case, having written two opinions, one when the case was tried and another on an application for a rehearing. His conclusion was that the plaintiffs had authorized defendant to make the repairs, basing his decision not only on the testimony of the witnesses but also on the various circumstances, the main one being the fact that plaintiffs, although in daily need of the car, the use of which, they claim, was worth $15.00 a day to them, permitted it to stay at defendant’s garage from October. 29th to December 3rd without inviting estimates from any other mechanic. He rendered judgment ■ dismissing plaintiff’s suit and dissolved the writ of sequestration, giving -judgment to defendant for the repair bill with interest and also for $25.00 attorney’s fees for dissolving the writ of sequestration and also recoginzing defendant’s right of detention.

We have carefully examined the testimony and cannot say that he manifestly erred in his appreciation of it.

Neither side has filed a -brief. We gather from the opinion of the District Judge that plaintiffs contended that, inasmuch as no previous agreement was made as to the cost of the repairs, there was no contract. We agree with our brother of the lower court, though, in holding that this was not necessary. An authorization to put the car in condition implied authority to do, whatever was found necessary and to pay reasonable compensation • therefor. While there is some contention as to the necessity of some of the replaced parts and also as to the proper charges therefor, the evidence] satisfied the District Judge and also 'satisfied us that the various items composing the repair bill are reasonable and proper.

The judgment of the lower court is affirmed. . .


text:
    No. 2080
    Second Circuit Appeal
    WILLIAM J. BROWN v. SAM. D. DAWKINS ET AL.
    (May 9, 1925, Opinion and Decree)
    (See Brooks vs. Dawkins, p. 674, herein.)

      (Syllabus by the Editor.)
    1. Louisiana Digest — Malicious Prosecution — Par. 3.
    The fact that “B” was found in possession of some stolen articles, that it was not known that he had them all; that the physical facts showed that “B” had assistance in the burglary were not sufficient to show probable cause for causing an arrest of “A” merely because it was known that “A” had been on a freight excursion with “B.” The one responsible for the arrest is liable in damages.
    2. Louisiana Digest — False Arrest — Par. 5.
    A peace officer who was placed in possession of a warrant issued by a competent magistrate, commanding an arrest, had a right to presume that the warrant was based on proper affidavit which constituted probable cause.
    (Civil Code, Art. 2315, 2316. Editor’s note.)
    Appeal "from Fifth Judicial District Court of Louisiana, Parish of Jackson. Hon. R. W. Oglesby, Judge.
    This is a suit for damages for malicious prosecution and false imprisonment.
    There was judgment for defendants and plaintiff appealed.
    Judgment affirmed as to defendant Carson and reversed as to defendant Dawkins.
    Holstead & Thompson, of Ruston, attorneys for plaintiff, appellant.
    Dawkins & Dawkins, E. L. Walker, of Monroe, attorneys for defendants, appellees.
   CARVER, J.

Plaintiff on behalf of his minor son, Veldon Brown, sues S. D. Caw-kins and R. A. Carson for damages for •malicious prosecution and false imprisonment.

Carson having died pending the suit, his administratrix was made a party.

The defense is that defendants acted without malice and upon probable cause.

The proof shows that at about 8:30 P. M. on Sunday, April 9, 1922, about fifteen youths got on a freight train at Jonesboro and rode about two miles when they got off' and walked back to town, arriving there between 10 and 11 o’clock. Amongst these were Veldon Brown, Edward Brooks and Walter Phillips.

Some time during that night the drug store of Jones Brothers Drug Company, of which Dawkins was manager, was broken open and various articles, consisting mainly of candy, pocketknives, kodaks and watches, were stolen.

Entrance was obtained by climbing a telephone pole leading to the roof of a gallery and tearing loose a screen over the transom of a door or window.

From the physical appearances it was believed that more than one person was engaged in the burglary, but there is no suggestion as to- how many were so engaged.

Dawkins reported the matter to Deputy Sheriff Rentz, who began an investigation. He telephoned to .the sheriffs of Lincoln and Winn parishes. He learned, and reported to defendant, Dawkins, that Walter Phillips had been arrested at Ruston and that various articles corresponding to some of those stolen had been found in his possession, and also that he 'had sold or traded off a number of other articles so corresponding.

Rentz and one Hardy had obtained a list of. eight or nine boys supposed to have been amongst those • on the freight train excursion and Rentz told defendant Dawkins that if these boys were arrested some of them would probably get weak-kneed and tell about it, and that he believed some of them knew something about it.

Thereupon Dawkins went before a justice of the peace and procured a warrant for their arrest. The warrant charged them with breaking, entering and stealing from the store of the Jonesboro Drug Company, Inc. Dawkins says he did not make an affidavit, but there is no pretense that he did not initiate the prosecution by at least asking for the warrant.

The warrant was given to Carson, the town marshall of Jonesboro, who arrested Veldon Brown, Edward Brooks and others. He put them in jail, where they remained from two to four hours. Brown was bonded out by his father.

Dawkins went with Rentz to Ruston to see Phillips. He testified (page 43):

“Q. What did Rentz do when he got to Ruston?
“A. He went over to the courthouse and at first could not get in touch with the sheriff, and when we found him he told us where the stuff was and we went down and looked at the stuff and then went down to the jail just before train time and we brought the boy and the stuff on back with us.
“Q. Now what things did you find there in the custody of the sheriff that had been missing from the drug store?
“A. We found all the stuff that had been taken, and he admitted to the sheriff that evening where he could go and find the other stuff. He said that in the sheriff’s office or in the recorder’s office there was a bunch of jewelry that I had out in boxes and fountain pens and pocketknives and a kodak and fishing tackle of all kinds.”

In saying “we found all the stuff” we suppose he meant he found “most of the stuff.”

Phillips admitted that with him in the burglary were two other boys whose names he refused to give but said they were not any of the eight or nine against whom the warrant had been issued. Upon this the prosecution was dropped as to all the boys, except Phillips, those remaining unbonded being released without bond. Subsequently Phillips plead guilty. None of the others were indicted.

Previous to this burglary there had been several other burglaries and larcenies in the town, the things stolen showing that juveniles were probably the culprits. There was a curfew law prevailing in Jonesboro at the time of the burglary herein involved, prohibiting minors from being on the street after 10 o’clock P. M. Little, if any, obedience was paid to this law, according to the testimony oí the plaintiff, Brown. Edward Brooks had previously been found in company with a crowd of boys “shooting” dice at the store of one Gray and had been arrested, charged with breaking into a school house. The evidence does not show what became of this charge. There is ‘no pretense that Veldon Brown had ever been charged with any offense, though it is argued that in riding on the freight train and in being out after 10 o’clock P. M. he violated the law.

Our learned brother of the District Court rejected plaintiff’s demand, but not having furnished us with a written opinion we do not know the precise ground of his decision. Whatever it was, though, we are unable to agree with him in his conclusion.

In our opinion the case of Lange vs. Illinois Central R. R. Co., 107 La. 687, 31 South. 1003, correctly states the law of Louisiana on the subject of malicious prosecution. ' After citing Civil Code, 2315, 2316, obliging persons by whose fault, including negligence and imprudence, • injury was caused to others to repair it, and the article of the then Constitution similar to the one in our present Constitution securing the right of the people against unreasonable, searches and seizures and declaring that no warrant shall issue except upon probable cause supported by oath or affirmation, and also Article Y of the then Constitution declaring that all courts shall be open, and every person for injuries done to him in his rights, lands, goods, person or reputation shall have adequate remedies, which article is substantially repeated in our present Constitution, the court says:

“It is our bounden duty, while seeking to uphold and vindicate the laws of the state, to see that we do not sacrifice to those interests of the public the personal constitutional rights of the citizens. It will be seen that however flexible a definition may be given to the word malice, and howmuchsoever the General Assembly may require the presence of malice, in any particular act to be a necessary factor and condition precedent to a right of action, based upon that act as a fault, the absence of malice in a particular instance can never be invoked as a defense where the action is predicated upon injury done to person or reputation by a warrant issued upon the oath or affirmation of a party, but without the existence of probable cause. The existence of probable cause may protect a person even though he be acting from malice, but the converse of this proposition is not true. The absence of malice in a particular case where a warrant has been issued without probable cause may lessen the relief given to the plaintiff and exclude the infliction of ‘vindictive’ or exemplary damages upon the person making the charge, but it will not justify courts in refusing to grant compensatory damages. To those damages plaintiff is entitled by force of the Constitution itself.”

Under this statement of the law the crucial question is, did defendants have probable cause for believing that Brown was guilty of the charge for which he was arrested?

The learned counsel of the defendant Dawkins argues that he did have such probable cause from a consideration of the following facts, namely: That Phillips was found in possession of some of the missing articles; that it was not known that he had them all; that the physical facts showed that Phillips had assistance in the burglary; and that Dawkins had information of the fact that Brown had been with Phillips on the freight train excursion.

In our opinion these circumstances did not amount to probable cause. Dawkins made no effort to ascertain what time the boys got back from the excursion or what time Brown went home. His haste in causing the arrest before even waiting to see whether Phillips had all the stolen articles or not is defended by his counsel, who argues that he was afraid if any of these eight or nine boys had any of the stolen articles they might dispose of them and so destroy the evidence. We do not think this consideration a justification for his precipitate action. His including eight or nine boys in the charge goes far to support the theory of plaintiff’s counsel that in making it he did not really believe they were guilty — at least all of them — but was merely casting a drag-net in the hope that he might catch the guilty one.

In the Lange case the party making the charge against Lange acted with much more circumspection than did the defendant Dawkins in this case, and the circumstances pointing to the probable guilt of Lange were much stronger than those in this case. In the Lange case the proof showed that there had recently been many thefts from the railroad company of brasses from their cars. Several were found in Lange’s shop, amongst which were some bearing the name of the defendant railroad company which had itself some of those brasses. Lange’s shop was within a few hundred feet of the railroad company’s terminus and track. The plaintiff’s son delivered to the railroad company’s employee the particular brasses which were thought to have been stolen. Notwithstanding all these circumstances the court held that the employee of the railroad company acted without probable cause in swearing out an affidavit against Lange without giving him an opportunity to explain the situation.

In the case of Sharp vs. Great Sou. Lumber Co., 134 La. 110, 63 South. 757, and Pierson against the same company, 134 La. 117, 63 South. 759, the defendant’s employees had caused the arrest without a warrant of the two plaintiffs on a charge of malicious mischief in breaking electric light bulbs in defendant’s mill.

Sharp was denied recovery because the proof showed he had broken some of the bulbs; but in the Pierson case, although tlie proof showed that Pierson was with Sharp in the mill at the time of the breaking and that they went out of their way to pass through the mill, yet the Supreme Court reversed the lower court and gave Pierson damages because he himself had not taken part in the breaking.

In this case defendant’s counsel cites 26 Cyc. 24, as follows:

“In case of criminal prosecution probable cause means reasonable grounds for suspicion supported by circumstances sufficiently strong in themselves to warrant-a cautious man in the belief that the accused is guilty of the offense with, which he is. charged.”

We agree with this statement of- the law.

Just after this statement, Cyc. proceeds:

"It has also been defined as such conduct on the. part of the accused as may induce the court to infer that the prosecution was undertaken from public motives.”

This citation is supported only by two decisions, namely: Ulmer vs. Leland, 1 Me. 135, 10 Am. Dec. 48; Cecil vs. Clarke, 17 Md. 508.

We do not think that this statement expresses the Louisiana law on the subject.

Defendant’s counsel also cites:

Sundmaker vs. Gaudet, 113 La. 887, 37 South. 865.

O’Malley vs. Whittaker, 118 La. 904, 43 South. 545.

Bouette vs. Emmer, 43 La. Ann. 980, 9 South. 921.

Dunson vs. Baker, 144 La. 167, 80 South. 238.

Grant vs. Deuel, 3 Rob. 17.

Womack vs. Fendikar, 47 La. Ann. 36, 16 South. 645.

Lyons vs. Carroll, 107 La. 471, 31 South. 760.

Estrada vs. Kreeger, 147 La. 291, 84 South. 786.

Hynson vs. Green, 132 La. 707, 61 South. 763.

In the Sundmaker case the court found that the defendant had not initiated the prosecution, and, furthermore, that there was a great deal of probable cause to suppose the plaintiff guilty. Several cows had been stolen and one , of them was found the next day in plaintiff’s stable. The defendant’s employee was refused permission to see the animal and a negro told the sheriff that the plantiff and his son were implicated in the larceny.

In the O’Malley case, too, the Supreme Court seems to have considered that the arrest was made upon probable cause.

In the Bouette case the defendant, as mayor of a town, arrested and imprisoned the plaintiff for disorderly conduct committed in his presence.

In the Dunson case the defendant was mayor of the town of Vivian. Dunson broke a jail to release a party incarcerated therein. Defendant was told by a reliable party that he had seen Duncan break the lock on the jail door and liberate the prisoner. The court says:

“Dunson openly committed a breach of the peace and he was subject to arrest. Defendant knew these things. It was his duty to have Dunson arrested and he had him arrested. There was probable cause for the arrest of Dunson.”

The court further goes on to point out the difference between the right of a citizen. and the right of an officer to arrest for felony, saying:

“An officer who has reasonable ground to suspect that a felony has been committed may detain a party until inquiry may be made. Damages will not be allowed where the prosecuting officer acted in good faith and with probable cause.”

In- the Grant case, the circumstances showed probable cause for suspecting Grant of having stolen Deuel’s hogs. So much so that when he was tried for the larceny the jury entertained doubt as to his guilt.

In the Womack case, the plaintiff had bought goods from the defendant, including a barrel of syrup, the price of which was eight dollars. Some time afterwards he brought to the defendant a flask of syrup to see if defendant would take it back. Defendant did so, and returned the $8 to plaintiff who promised to return the syrup. Defendant gave plaintiff an order to deliver the syrup to one Tillman who had ordered some syrup from defendant.

The court says:

“He (meaning defendant) and witnesses summoned by him testified that there had been delays and failure on the part of the plaintiff to comply with the agreement to return the syrup; that he had refused to avail himself of the opportunity offered to him to deliver the syrup; and, finally, that he had threateningly sent away the one to whom it was to be delivered, so that he was afraid to go back.
“In September the defendant addressed a letter to the plaintiff in which he expressed surprise at defendant’s failure to deliver the syrup.”

The affidavit charged the plaintiff with having obtained, money under false pretenses.

‘Two juries had found for defendant. The court evidently agreed with their conclusion that the circumstances of the case were such as to amount to probable cause. Besides which, the court found the defendant had in good faith acted on the advice of counsel after full disclosure of the facts.

In the Hynson case the court held' that the defendant had probable cause in charging plaintiff with embezzlement of a coat intrusted to him for cleaning because the proof showed that he had reported that the coat had “walked off” and that it showed, further, that defendant’s wife, who made the affidavit, had been informed by a trustworthy person that the coat was being worn by plaintiff’s mistress.

In the Estrada case, the plaintiff’s suit was dismissed on an exception of no cause of action because his petition failed to allege that the prosecution was without probable cause.

In the Lyons case, the lower court dismissed the suit on an exception of no cause of action. The Supreme Court affirmed this judgment because the petition affirmatively showed that defendant did have probable cause. The petition alleged that a jewel had been stolen from one Carroll; that Carroll reported the theft to defendants who were police officers; that Carroll gave those ■ officers plaintiff’s name amongst others whom he suspected and charged with having committed the theft or being implicated in it and whom he wanted arrested and prosecuted; that on the evening after the theft defendant met plaintiff on the street and was walking along the street with him when they met Carroll, who told them plaintiff was one of the parties he thought implicated, whereupon plaintiff remonstrated with Carroll and declared his innocence, notwithstanding which Carroll said: “Never mind, I will fix you,” or words to that effect, and walked away. The court says, page 474:

“On this showing it cannot be said that the police officers acted without probable cause, and that they, under the circumstances, transcended the reasonable limits of their duty in taking the plaintiff into custody. They were called upon as officers of the law to perform a public duty, to-wit: ferret out and arrest parties thought to have committed an infraction of the criminal laws, and from what occurred, as narrated in the petition, we are unable to reach the conclusion that they did not have grounds for believing, for entertaining an honest and reasonable suspicion that the plaintiff was one of the guilty parties.”

What is probable cause cannot be made the subject of any hard and fast rule, and each case must turn on its own circumstances. We agree with the courts rendering the foregoing decisions that the circumstances respectively shown therein did amount to probable cause but in none of them was the ground of suspicion so meagre or the action of the prosecutor so hasty as in this case.

Defendant’s counsel says that Veldon Brown and E,dward Brooks were present and took part in a conversation in which Phillips outlined to the boys present how easy it was to break and enter a storehouse and enrich themselves by taking therefrom. Veldon Brown’s testimony (page 9) denies having heard any such conversation. Brooks was not asked the direct question whether he heard such conversation or not, but was asked what Phillips talked about and said he did not remember. We find in the record no proof whatever of such conversation having taken place whether in or out of the presence of the boys.

Our conclusion is that defendant, Dawkins, acted without probable cause and hence is liable for damages. We do not think his .conduct was malicious, though, and it is not shown that young Brown was injured in his reputation or socially or in any other way; but, of course, the arrest must have been a source of humiliation to him for which he is _ entitled to compensation. We think an award of $100.00 sufficient to satisfy the demands of justice.

We do not think Carson liable under the evidence. He was a peace officer and as such had the right under certain circumstances to arrest even without a warrant.

In 19 Cyc. 350, verbo False Imprisonment lays down the rule as follows:

“A peace officer is justified in an arrest made without warrant in cases of felony alike whether he acts on his own knowledge or upon sufficient information derived from others if it be shown that the person arrested was reasonably suspected of guilt. He may so be justified also where a felony has been actually or is being or is about to be committed and where, although not in fact committed, reasonable grounds for believing it was committed are shown.”

The text is supported by numerous decisions from various states.

In the same volume, page 351, the text reads:

. “Reasonable and probable cause for believing in the guilt of a person detained is essential to legal justification of arrest by an officer for a public offense without a warrant or by a private person and complete defense within the restrictions imposed by law. . Want of malice does not alone afford protection. On the other hand, malice is immaterial if probable cause and proper conduct appear.”

This text also is supported by numerous decisions.

We think Carson did have probable cause. He was placed in possession of a warrant issued by a competent magistrate commanding the arrest of young Brown. He had a right to presume that the warrant was based on proper affidavit. It is not shown that he knew upon what meager ground Dawkins had obtained the warrant. Under the authority of the Lyons case, supra, and the last citation from Cye., he would have been justified in making the arrest without a warrant. A fortiorari did he have the right to make it with a warrant. The fact that the warrant was not addressed to him but to the sheriff cannot make him liable. The sole ground on which liability could rest was want of probable cause and this, of course, is not dependent to any extent upon how the warrant was addressed.

The judgment of the lower court is reversed as to the defendant, S. D. Dawkins, and it is now decreed that plaintiff, William J. Brown, do recover, for the use and benefit of his minor son, Yeldon Brown, against Samuel D. Dawkins, judgment for the sum of one hundred dollars . with five . per cent per annum interest thereon from this date, and all costs of both courts; and that as to the defendant, Carson, the judgment of the lower court is affirmed.