text:
    No. 13,687
    Orleans
    JARY v. SUTTON
    (May 25, 1931. Opinion and Decree.)
    Gerald Netter, of New Orleans, attorney for plaintiff, appellant.
    A. D. Danziger and P. H. Stern, of New Orleans, attorneys for defendant, appellee.
   HIGGINS, J.

Plaintiff claims damages for personal injuries said to have resulted from an assault' by the defendant, who seized a hat box out of her hand, shoved her, and bent the third finger of her right hand backward, injuring and spraining it.

Defendant admitted the altercation, but denied liability, averring that plaintiff raised a hat pedestal with which she threatened to strike him and that, in order to protect himself, he seized it and took it from her.

There was judgment in favor of the defendant dismissing the suit and plaintiff has appealed.

Plaintiff, an unmarried woman of forty years of age and weighing 163 pounds, was in charge of the millinery department of her employer in a building where the defendant also conducted his business of selling women’s apparel.

It appears that the party from whom the plaintiff’s employer had sub-leased a portion of the building had gone into bankruptcy and that the defendant claimed to have acquired the lease through the bankruptcy proceedings. The plaintiff’s employer owed several hundred dollars in rent and on the day in question the plaintiff received a telegram instructing her to move out of the building into another place. She showed the telegram to the defendant, who told her that she could not move because he had a lessor’s lien and privilege on the merchandise in her millinery department for the unpaid rent. She insisted on carrying out her employer’s instructions and defendant then telephoned an attorney, who advised and instructed him not to permit her to take the merchandise out. Both parties were determined to carry out their individual instructions. As fast as the plaintiff would take the hats from the shelf and place them in the box defendant would take^ them out. of the box and place them back on- the shelf. As a result of this an altercation arose.

Plaintiff and her witnesses testify that she ordered the defendant to leave her department, as he had- nothing to do with her business; that he refused to do so and, in attempting to grab and* wrest one of the hat boxes from her hands, shoved her- and caught her right third finger and bent it back, severely spraining it.

The version qf the defendant' and his witnesses is that when he attempted to place the hats back on the shelves the plaintiff grabbed a hat pedestal about three or four feet long and threatened to strike him; that defendant, believing he was about to be struck, grabbed the pedestal and wrested it from her grasp.

The evidence of both sides is in accord to the effect that then a conference was arranged between the attorneys for both parties, in which the question of whether the merchandise should be remo/ed was adjusted.

The evidence is hopelessly in conflict and irreconcilable on the issue of justification, or self-defense, plaintiff and her witnesses asserting that she did not raise the pedestal in a threatening attitude and defendant and his witnesses stating that she did.

The case involves only a question of fact. We find nothing in the record that would justify us in saying that the judgment of our learned brother below is erroneous. In instances of this kind we have repeatedly held that where only issues of fact are involved the appellate court will affirm the judgment, unless it is clearly and manifestly erroneous. In the case of Shnaider v. Graffagnini, 154 La. 363, 97 So. 491, the Supreme Court of this state said:

“The conclusions of the trial judge with respect to the credibility of the witnesses and the weight to be given their testimony are entitled to great weight.”

For the reasons assigned the judgment appealed from is affirmed.


source: Caselaw Access Project

author: MOUTON, J.

license: Public Domain

text:
    No. 756
    First Circuit
    HEADLEY v. COMMERCIAL STANDARD INS. CO. OF DALLAS, TEXAS
    (May 5, 1931. Opinion and Decree.)
    (June 16, 1931. Rehearing Refused.)
    (July 17, 1931. Writs of Certiorari and Review Refused by Supreme Court.)
    Bascom D. Talley, of Bogalusa, attorney for plaintiff, appellee.
    St. Clair Adams, Jr., of New Orleans, attorney for defendant, appellant.
   MOUTON, J.

In January, 1929, defendant company insured a Buick auto belonging to plaintiff, for the value of $800 under the terms of the policy.

The auto was destroyed by fire in November, 1930.

Judgment was rendered in favor of plaintiff for the insured value of the auto and attorney’s fees, from which defendant prosecutes this appeal.

Under letter K on the reverse side of the policy, we find the following:

“Appraisal. Payment of Loss.
"In the event of disagreement as to the amount of loss or damage * * * the same shall be determined by two appraisers,. the assured and the company each selecting one, and the two so chosen shall , select a competent and disinterested umpire; the appraisers shall then together estimate and appraise the loss, stating separately the sound value and damage, and failing to agree, shall submit their differences to the umpire; the award in writing of any two shall determine the amount of such loss or damage,” etc.

A correct solution of the case depends upon a proper application of the foregoing condition of the policy above reproduced.

Under an agreement between plaintiff and defendant company, Fred Leblanc »was appointed appraiser for plaintiff, and Fred Oster, appraiser for defendant. The two appraisers disagreed in their estimate of the amount of loss and appointed L. C. Gleny, as umpire.

Fred Oster, defendant’s appraiser, and Gleny, the umpire, signed an award fixing the damage for the loss of the auto at $350.

This estimate is attacked by plaintiff, who claims that he should recover $800, which he alleges was the true value-of his auto when it was destroyed. He alleges that he was led by misrepresentations of defendant company to submit the estimate of the loss to arbitration, that the appraiser of defendant was biased, also the umpire, both in favor of defendant, and that the appraisal was fraudulent. Among these various allegations, plaintiff avers that Oster, the insurance agent, “proceeded to New Orleans and in some kind of way unknown to your petitioner and unknown to and unconsulted by Fred Leblanc, selected the third party and they got their heads together as arbitrators, fixing a price, your petitioner is informed, of three hundred and fifty dollars ($350.00).”

On these allegations, the others unnecessary to mention, plaintiff prays for the avoidance of this alleged fraudulent appraisement, and for judgment for $800, face value of the policy, with attorney’s fees.

In its answer defendant alleges that L. C. Gleny, the umpire, was appointed to settle the matters of difference which might exist between the appraisers, and had, after examination of the auto, fixed its sound value and loss at $350, for which an award had beer, signed by him and Fred Oster, annexing to the answer the agreement for submission to appraisers, selection of umpire, his qualification, and the award.

In referring to the appointment of Fred Leblanc and Fred Oster, appraisers, it is stated in the appointment of Gleny, as third appraiser or umpire, that he is to act to settle matters of difference that exist between the appraisers.

In qualifying as umpire, Gleny declares that he will act with strict impartiality in all matters of difference only that shall be submitted to him in connection with this appointment. The annexed documents showing the foregoing declarations are part of the answer, and must be considered therewith.

We have referred to the foregoing allegations of plaintiff’s petition, the averments of defendant’s answer, and the documents attached thereto because of the contention by counsel for defendant in his brief that plaintiff had shifted his position from one of fraud made in his petition to the contention that the award of the appraisers was invalid because Gleny, the umpire, did not confer with Leblanc, plaintiff’s appraiser, before rendering the award.

The record shows that testimony was introduced without objection by plaintiff showing that Gleny had, before signing the award, conferred with Oster, and not, at all, with Leblanc. Counsel says, that this evidence was admissible under the allegations of fraud and misrepresentation made by plaintiff, and cannot be considered for the determination of the question submitted under the plea of enlargement of the pleadings, because it would permit the creating of a new issue.

In. the case of Sylvestre v. St. Landry Parish School Board, 164 La. 204, 113 So. 818, cited by counsel, the court held when the evidence is admissible under the pleadings it cannot be given the effect of injecting a new issue in'the case.

In the appointment of Gleny, it is said he is to act as third appraiser or umpire to settle matters of difference existing between the two other appraisers; and, in the oath taken by him as umpire, he obligates himself to act with strict impartiality in all matters of difference only that shall be submitted to him in connection with his appointment.

It is hard to conceive how he could pass with strict impartiality on the difference that might exist between the other appraisers in reference to the damage or loss involved, without having a conference or consultation with them on the subject.

The duties of the umpire, it seems to us, as declared in his appointment and his oath, necessarily implied the requirement of a conference, and were sufficient, being annexed to the answer, to permit the introduction of evidence on that subject, though not specifically alleged in plaintiff’s petition, and did not have the effect of creating a new issue.

In addition to the reasons above given to show that the proof of a lack of conference with the umpire was permissible under the pleadings and annexed document, we now refer to that part of plaintiff’s petition, above quoted, which is as follows:

That Oster, insurance appraiser for defendant, “proceeded to New Orleans and in some kind or way, unknown to your petitioner and unknown to and unconsulted by Fred Leblanc, selected the third party and they got their heads together as arbitrators, fixing a price, your petitioner is informed, of three hundred and fifty dollars ($350.00).”

That portion of that paragraph which says that this third party was selected without the knowledge of Fred Leblanc is not supported by the record, as it was shown that Leblanc consented to the appointment of Gleny as umpire, at the request of Oster, appraiser for defendant. Although that portion of the paragraph to which we have referred be lopped off, still we find that it is therein alleged “that unknown to and unconsulted” by Fred Leblanc, Oster and Gleny, the umpire, got their heads together and fixed an estimate of $350 on the auto. That allegation is to- the effect that there had been no meeting or conference between the umpire and Leblanc, plaintiff’3 appraiser. Proof of that fact created no new issue in the case. The allegation that this value was so fixed, without any consultation with Fred Leblanc, is fully sustained by the evidence. The proof is that Gleny fixed that estimate with Oster in his office in New Orleans, never saw the auto or its remnants, and had no conference or communication whatsoever with Leblanc on the subject. His estimate was based exclusively on the report made to him by Oster, although Leblanc was perfectly willing to act.

Cooley, Briefs on the Law of Insurance, vol. 4, p. 3644, says on the question involved herein, as follows:

“But when the umpire has been appointed, and there has been a disagreement, an award reached by the umpire and one of the appraisers, without conference with the other appraiser, is invalid. Such conduct results practically in depriving one • of the parties of any representation in the appraisal proceedings, which become, therefore, of no effect as to him.”

The evidence shows, for the reasons given, that plaintiff was totally deprived of representation in the appraisement, and which, it must be held, can have no effect in so far as he is concerned.

In the case of Caledoman Ins. Co. of Scotland v. Traub et al., 35 Alt. p. 13, in passing on a case in which a similar contest, with slight variations, was presented for decision, the court, in considering the duties devolving on an umpire, said:

“The substantial requirement was that he should decide the difference of judgment between the appraisers.”

Obviously, according to the stipulations of the policy under letter K, hereinabove referred to, such was the palpable duty of the umpire herein, or else we are unable to see what his functions could have been.

Clearly, as was said by the district judge, the award thus made by Gleny and Oster was a “one-sided affair,” and could not be maintained in law or equity.

It does not follow, however, that the defendant should be deprived.of the exercise of its right to a proper arbitration under the arbitration clause in the policy, and we believe that justice would be better served by remanding the case to the lower court for the purpose of affording to both parties the right to submit their differences to arbitration. a

For the foregoing reasons, it' is therefore ordered that the judgment of the district court be, and the same is hereby, reversed, avoided, and set aside, and it is now ordered that this case be remanded to the said court in order that the parties may avail themselves of the arbitration clause in the policy of insurance if they see proper, the appraisement in that event to be made in the manner and form provided under the terms qf the arbitration clause, and according to law; appellee to pay the costs of appeal, those of the lower court to abide the final decision of the case.


author: ELLIOTT, J.

text:
    No. 781
    First Circuit
    MILNER v. LOUISIANA HIGHWAY COMMISSION ET AL.
    (May 5, 1931. Opinion and Decree.)
    (June 16, 1931. Rehearing Refused.)
    (July 17, 1931. Writs of Certiorari and Review Refused by Supreme Court.)
    Fred G. Benton, of Baton Rouge, attorney for plaintiff, appellant.
    L. L. Morgan, of Covington, attorney for Louisiana Highway Commission, defendant, appellee.
    Charles A. Holcombe, of Baton Rouge, attorney for Union Indemnity Company, defendant, appellee.
   ELLIOTT, J.

Mrs. Kate Milner, widow of'Benjamin B. Milner, claims of Louisiana Highway Commission and Union Indemnity Company the sum of $6,000, payable in SQO weekly installments of $20 each, and the further sum of $100 on account of the burial expenses of her husband. Her claim is for the common benefit of herself and Aurelius E. Milner, her minor son, and is based on the Employers’ Liability Act of this state.

She alleges that Benjamin B. Milner, her husband, was an employee of the Louisiana highway commission, his duty being to inspect timber and materials to be used by the commission in the construction of roads and bridges in this state.

That he entered the ferry at Natchez, Miss., occupying an automobile belonging to the Louisiana highway commission, for the purpose of crossing the Mississippi river, on his way to Monroe, La., in connection with the duties of his employment and was, without fault on his part and through the failure of his automobile brakes to work, accidentally precipitated into the Mississipi river and drowned.

That Unipn Indemnity Company of New Orleans has insured the Louisiana highway commission against compensation for which it is liable.

That said Union Indemnity Company is therefore obligated to pay the amount due her and her son on account of the death of her husband.

That Aurelius E. Milner, her son, born of her marriage with said Milner, was dependent on his father for support and is now, due to his father’s death, dependent on her.

That her husband was earning and being paid a weekly wage of $43.75, at the time of his death.

That she is therefore entitled to compensation in amounts and payable as stated, and to recover on account of the burial expenses of her husband in the sum claimed.

The highway commission and the Union Indemnity Company answered, each admitting in their answers most of the allegations in the petition of the plaintiff. But they each deny that her husband, said Benjamin B. Milner, met his death while acting within the scope of his employment. They allege that he was on a leave of absence at the time, which had been granted him by his employer. That he was not at the time of his death performing any duties connected with his employment. That defendants are not liable for compensation on that account.

From a judgment rejecting plaintiff’s demand, plaintiff has appealed.

The evidence shows that plaintiff’s husband was employed by Louisiana highway commission as inspector of timber and materials used by the commission in constructing roads and bridges in this state.

His wages were $175 per month. In the performance of his duties he went from place to place in and outside this state as ordered and directed by the officers in said highway commission. For the purpose of going from place to place on his inspection trips he was furnished by the commission with an automobile and all his expenses were paid. His entire time belonging to his employer. His family lived at Monroe, La., and his home was there with his family. When not engaged in inspecting work for his employer, he stayed at home.

While doing inspection work in conformity with his employment at Jackson, Miss., on March 3, 1930, he wrote, to the Louisiana highway commission at Baton Rouge, La., from which we excerpt as follows:

“Wish to advise or. ask, if consistent and if I can finish here, to leave Friday, you let me go home for week end.”

After further stating that he had left his car at Hazelhurst to he repaired, he says:

“I’ll go to Hazelhurst hy train from here, get car and go any place, of course, but if O K to go home by way of Natchez.”

He received while at Jackson, Miss., the requested permission by telegram dated March 6, 1931, as follows:

“Satisfactory to go to Monroe when through at Jackson. Advise when you leave.”

He received and acknowledged this wire the same day it was sent him, writing the Louisiana highway commission at Baton Rouge:

“I have your wire of this date. Thanks. I will complete here Friday evening late and figure to go by bus, leaving here 8:30 P M Friday night to Hazelhurst where I left my car. Then Saturday 8 A M in my car via Natchez Miss to Monroe La.— home.”

But on March 7, 1930, he again .wrote from Jackson, Miss., to the Louisiana highway commission at Baton Rouge, saying: “Since writing you Saturday P. M. 6th, I now see I’ll do well to finish by Sunday A. M., 8th, then .eave, as I wrote you, for Monroe.”

He evidently left Jackson at about 12 o’clock Saturday, went to Hazelhurst and got his ear, and started on his trip to Monroe via Natchez. But car trouble stop1 ped him on the road Saturday night and he did not reach Natchez until Sunday morning about 9 o’clock a. m. In a short time after reaching Natchez, he recommenced his trip to Monroe which required him to enter the ferry there for the purpose of crossing the Mississippi river. He started his car for the purpose of going into the ferry, with the result that his car and himself were accidentally precipitated into the river and he was drowned.

So the question is: Was plaintiff’s husband, in going from Jackson, Miss., to Monroe, La., in pursuance of his request for permission to “go‘ home for week end” and the consent of the Louisiana commission that he might do so, engaged in performing “service arising out of and incidental to his employment in the course of his employer’s trade, business or occupation,” within the sense and meaning of the Employers’ Liability Act of this state? Act No. 20 of 1914, as amended by Act No. 85 of 1926.

He was at the time driving the automobile furnished him by the Louisiana highway commission for the purpose of going from point to point in doing the inspection work which he was employed to do. But in using it to go home, his use was that of a licensee. He had no right .to go home for the week-end, except by the leave of the Louisiana highway commission. In going home, he was traveling on the time of the commission, with the commission’s consent previously obtained. In using the automobile for the purpose of going to Monroe, however, it was not being used for the purpose of making an inspection. In going home for the weekend,- the trip was not for tne performance of any service jirising out of and incidental to his inspection work, but in order to visit his family — his private affair. The fact that he was being paid by the month, . and that while making the trip and spending the week-end, his wage was going on, did not make the trip the performance of service arising out of and incidental to his employment.

His death occurred in the course of his employment, but it was during a trip undertaken for the gratification of his own personal desire, and not in the performance of service arising out of and incidental to his employment.

The judgment appealed from is correct. Judgment affirmed.

Plaintiff and appellant to pay the cost in both courts.


text:
    No. 817
    First Circuit
    WIGGINS v. TEXAS & NEW ORLEANS R. R. CO.
    (June 1, 1931. Opinion and Decree.)
    J. R. Parkerson and Wilbur Kramer, of Franklin, attorneys for plaintiff, appellant.
    Brumby & Bauer, of Franklin, attorneys for defendant, appellee.
   MOUTON, J.

Judgment, in this case, was rendered against plaintiff April 24, 1930.

A devolutive appeal was granted plaintiff returnable to this court on June 23, 1930.

The record was filed in this court February 28, 1931, more than six months after the return day for the appeal had expired.

On the ground that the record was filed too late, defendant moves to dismiss the appeal.

Appellant contends that he should not be denied his right of appeal because the clerk of court has failed to file the record in time.

The main reliance of appellant in support of that contention is based on the decision in Stockbridge v. Martin, 162 La. 601, 110 So. 828.

In. that case, which came up from the Court of Appeal, Second circuit, the Supreme Court, in overruling the motion to dismiss, referred to the rule in that circuit, which made it the duty of the clerk of the district court to file the record in the Court of Appeal on or before the return day.

Under the rule of this court on that subject, it is incumbent on the appellant and not on the clerk to have the record filed within the time fixed for the return day of the appeal as it is required in the Supreme Court by articles 587, 588, 883, Code Prac.

.Const. 1921, art. 7, sec. 27, says:

“The rules of practice regulating appeals to and proceedings in the Supreme Court shall apply to appeals and proceedings in the Court of Appeal, so far as they may be applicable.”

We find that the rule which requires the appellant to have the transcript filed in the Supreme Court on the return day applies to the filing of the original records in this court.

After the appellant has made the required deposit of costs for his appeal, he has the right to have the record filed by the clerk of the district court in this court on the return day of the appeal. In case of the inability of the clerk to make the filing in time, he may obtain an extension of the delay by proper application.

The record having been filed too late in this case, the motion must prevail, and the appeal is therefore dismissed, at appellant’s cost.


text:
    No. 780
    First Circuit
    BARON v. GUIDRY
    (May 5, 1931. Opinion and Decree.)
    (June 16, 1931. Rehearing Refused.)

      Fred G. Benton, of Baton Rouge, attorney for plaintiff, appellant.
    Roland C. Kizer, of Baton Rouge, attorney for defendant, appellee.
   MOUTON, J.

Plaintiff advanced clothes, merchandise, and small sums of money to defendant in 1925 and 1926 while a minor and a student at the Louisiana St.ate University. He brings this suit against defendant for the sum of $110.

On June 1, 1926, during the minority of defendant, F. L. Guidry, his father and resident of Vermilion • parish, executed a promissory note in favor of plaintiff for the account sued upon against defendant, now emancipated by marriage contracted in January, 1927.

It is also shown by the record that plaintiff obtained a judgment on this note against F. L. Guidry in the district court of Vermilion which had been given for the advances, made to defendant herein.

Civil Code, article 227, says that by the very act of marriage fathers and mothers contract together the obligation of supporting, maintaining, and educating their children. Obviously, as it is admitted in the • brief of counsel for plaintiff, the debt contracted which was for the support, maintenance, and education of defendant was a personal obligation of F. L. Guidry, his father. Not only was it his personal debt when the obligation was incurred during the minority of his son, the defendant, but, by the execution of the promissory note for it by the father, he acknowledged it as being his individual obligation, and as such was it construed by plaintiff, who brought his. suit in Vermilion against F. L. Guidry in March, 1927, after his son had been liberated from the legal handicaps of minority by the effects of his marriage.

Verbal proof, showing .that defendant had made a payment of $10 on the account, and had promised to pay the balance, was received in evidence without any objection having been made to its admissibility.

Act No. 208 of 1858 prohibits the introduction of parol evidence to prove a promise to pay the debt of another.

In the case of George Merz v. Labuzan & Carter, 23 La. Ann. 747, the court said the reception of such evidence for that purpose was in contravention of a prohibitory law, was therefore null, and could not be considered, although admitted by the court without objection.

In Levy & Dieter, in Liquidation, v. Du Bois & Foley, 24 La. Ann. 398, the court held that such, evidence received without objection would be disregarded on appeal.

C. C. article 2278, under which the foregoing ruling is based, was amended by Act No. 121 of 1886, p. 219, but the amendment of that article contains the same provisions prohibiting the admission of parol evidence to prove the promise to pay the debt of a third person as is found in the Act of 1858 on which the decisions above cited grounded the rule therein announced.

In the more recent case of Guillot v. Guillot, 141 La. 81, 74 So. 702, the court said that a verbal promise to pay the debt of a third person can have no legal effect.

Applying the' doctrine so well recognized in the decisions above referred to, we must conclude that the verbal proof, which was. admitted to show that defendant had promised to pay the personal debt of his father, was illegally' admitted, can have no legal effect, and cannot be considered by this court on appeal.

Reference is made to article 1785, Civil Code. A contract or quasi contract by a minor is declared valid under the provisions of that article when the minor has no tutor or one who neglects to provide him with the necessaries for his support or education. That article has no application here, as the parents of the minor were living and the father, by making his note in recognition of his individual liability, can certainly not be represented as having refused to supply his minor child with these necessaries of life.

Counsel for plaintiff says novation was not pleaded, and that none existed. In this we fully agree with him. The only novation that could have taken place under the facts would have been by the substitution of defendant as a new debtor for his father, the old one. C. C. art. 2189.

The record is, however, barren of any such agreement, and besides there is no evidence to show that the father, the debt- or, was ever discharged expressly from his obligation, an essential requisite in such cases to effect a novation. C. C. art. 2192.

Counsel for plaintiff says that defendant is personally liable, because since his emancipation, by promising to pay the debt,' he has ratified it.

C. C. art. 1785, says that a contract made by an incapacitated minor may be rendered valid by his ratification, either express or implied.

In this case the .evidence shows that the defendant, a minor at .that time, bought the goods which were necessary for his support and maintenance. C. C. art. 227, says that by the very act of marrying, the father and mother contract together ■the obligation of supporting and maintaining their children. ' The obligation to pay for these goods devolved upon the father of defendant, as the result of a contract flowing from his marriage under the provisions of article 227, C. C.

As a matter of fact it was ° so accepted by ¡plaintiff when he took the promissory note of the father, and by subsequently obtaining a judgment thereon, as. herein-above stated., It is therefore plain that the contract or debt for the price of these advances was not that of the defendant. It was that of his father. If it had been defendant’s contract, his promise to pay the debt after his. emancipation would have constituted a ratification, whether express or implied. The promise to pay made by defendant was not in reference to his debt or contract, and was not therefore a ratification. It was simply a promise to pay the personal debt of his- father, a third party, and which for the reasons heretofore stated had no legal effect and cannot be considered on this appeal.

The demand of the plaintiff was rejected, and we find, correctly.


author: LeBLANC, J.

text:
    No. 812
    First Circuit
    BROWN v. BROWN ET AL.
    (June 16, 1931. Opinion and Decree.)
    C. Y. Pattison, of Lake Charles, attorney for plaintiff, appellant.
    Moss & tíiess, of Lake Charles, attorneys for defendants, appellees.
   LeBLANC, J.

Arthur Brown, 'the plaintiff, was employed by Newton Brown, his father, who is one of the defendants herein, to work as a laborer on a rice farm in Calcasieu parish. The farm belonged to Seaman A. Mayo, the other defendant, who had leased it to Newton Brown in consideration of a one-fifth interest in the crop.

Plaintiff’s suit is for wages for forty-eight days at $1.50 per day and seventy-two days at $3 making a total of $288.

He alleges that the forty-eight days, were included in that period of time between February 17 and August 15, 1930, and the seventy-two days between August 15 and November 14, 1930. The increase in wages came during the latter part, or the harvest season, and as he explains in his testimony, was. due to the fact that he was then employed in “running the machines — the separator, and tractor and thresher.” He claims that he never was paid anything at all and that he is entitled to the full amount he prays judgment for with legal interest from judicial demand.

The defendant Newton Brown made no appearance in defense of the suit. Mayo answered, denying any indebtedness, and alleging that all labor incurred in the making and harvesting of the crop had been paid. He further averred in his answer that when this suit was filed, he requested his co-defendant Brown to join him in defending it, but that he refused to do so; and, so believing, he alleges that the jjlaintiff has been paid all wages due him and that he and his father are in collusion in this proceeding. He asks that plaintiff’s demand as against Brown be rejected as well as against him, for the reason that Brown is now insolvent, and as he has indorsed some of his notes, a judgment against either of them will have the same effect as to both.

Following the taking of the testimony, we find the following statement in the note of evidence as emanating from the trial court:-

“Gentlemen, I believe those two men ■tried to impose on their counsel, and tried to impose on the Court. I don’t believe a word either of them says, and I believe Mr. Mayo has paid this man for all the work he did on the farm, and his claim is rejected.”

In the written judgment signed by him, the district judge states that he is “of the opinion that the defendant (here he evidently meant to say plaintiff) and his father, Newton Brown, entered into a conspiracy to deprive S. A. Mayo of a part of his. rice and that they committed perjury in furtherance of their conspiracy.”

Prom that judgment against him, the plaintiff has appealed, but we note that his counsel makes no appearance on his behalf. Under circumstances such as we have them here, there is even a stronger presumption .than the ordinary one of the correctness of the judgment.

The trial judge may appear a bit severe in his condemnation of the testimony of the plaintiff and his father,' but, after having carefully gone over the record, we do not know but that was the proper thing for him to do and that they deserved the rebuke which he administered to them. The father especially, bent only on bolstering up a fictitious claim in favor of his son, appears in a most unfavorable light as. a defendant and witness in .a court of justice. He seemed even to have finally exasperated plaintiff’s counsel, as we find the latter, at one time, taking him to task for “testifying to three or four different states of affairs” when they are on the same subject.

It would serve no useful purpose to go into a lengthy discussion of the testimony. Suffice it to say that it seems almost incredible that a laboring man, with apparently no other means of support, would have worked for .seventy-two days without-seeing to it that he was paid at least some of his wages, or that they would be secured to him in some way. The father’s testimony in trying to maintain the claim is so vacillating as to be unworthy of serious consideration. He states that his son was not paid because whenever he asked Mayo for his money, the latter would tell him that money was short. When asked to fix any definite time when he was told that by Mayo, he at first says it was in October and then changes that to March or April. He admits that he was getting money to pay off everybody else, and when asked why he didn’t pay his son with some of it, answers:

“He could kind of live and do without it, and the money being short, I held him out.”

Defendant Mayo, on .the other hand, swears that he never refused Newton Brown money to pay -the laborers, and he is. positive that Arthur Brown’s name appeared on the pay rolls.

We have but little hesitancy in accepting the trial judge’s appraisal of the entire case and in approving, ¡is correct, his judgment rejecting plaintiff’s demand as against both defendants.


text:
    No. 793
    First Circuit
    THORNTON v. BEESON
    (June 16, 1931. Opinion and Decree.)
    S. I. Foster, of Leesville, attorney for plaintiff, appellant.
    Thompson & i erguson, of Leesville, attorneys for defendant, appellee.
   ELLIOTT, J.

William A. Thornton claims of John J. Beeson the sum of $1,-350, with interest and attorney’s fees, thereon, as the balance due on the purchase price of the S. E. % of S. E. % of section 25, T. 1 S., R. 6 E., containing 40 acres of land situated in the parish of Vernon, sold by Thornton to Beeson.

He alleges +hat said sale was for .the price of $1,600, of which $200 was paid in cash at the time, $50 at a subsequent time; the balance, to-,ñt, $1,350, was paid in notes, as to which there has been a failure of consideration.

That the statement in the act of sale, that the $1,600 was paid in cash, is erroneous and incorrect.

He avers that $1,400 of the purchase price was paid with 28 notes signed by Amy Hoglan and C. F. Hoglan, her husband, for $50 each, drawn payable to J. J. Beeson and purporting to be secured by the first mortgage on lot 9, block 4, of the town of Pitkin, La. That one of the notes was paid, leaving $1,350 of the price unpaid.

That said notes in the First State Bank & Trust Co. of Pitkin, at .the time of the sale were produced by Beeson, placed in an envelope, without indorsement, petitioner’s, name written on the envelope; the officer of the bank told that they belonged to plaintiff and to credit the payment of same to him; that he accepted the notes believing them to be good bona fide mortgage notes; that said notes, not being paid, said Beeson, proposing to force the collection for the account of petitioner, took them from the bank, and, posing as the owner, foreclosed the mortgage securing same, bought in the property in his own name for $200, but refuses to pay petitioner tbe balance due on account of said land.

He álleges that the notes were worthless. That the property securing same was at the time of the sale and is, at the present time, covered by mortgages, priming the mortgage which secured the notes in question.

That the makers, of the notes were insolvent at the time of the sale and are so at the present time.

Alleging the existence in his favor of a vendor’s privilege on the land, and that defendant would sell or mortgage same priding the trial, he caused a writ of sequestration to issue, under which the 40 acres of land was seized and taken into custody by the sheriff.

His prayer is for judgment against Bee-son for $1,350, with interest and attorney’s, fees thereon. That a vendor’s privilege be recognized as existing in his favor on said. land, that his seizure be maintained, and the property ordered sold and the proceeds applied to the payment of the amount due him, with the preference due to his privilege; and for general relief in the premises.

The defendant Beeson, after bonding the property, set forth as an exception of no cause or right of action, that no parol evidence was admissible to show any other consideration than as stated in the deed; that the petition does not allege that the notes given as a consideration of the sale, and not indorsed by defendant, had been guaranteed by the plaintiff; that it does not appear from the petition that plaintiff made effort to collect the notes, and it is not alleged that they cannot be collected;, that recorded mortgage must be supposed to have been known to plaintiff at the time, etc.

The exception was overruled, and defendant then answered at length.

A number of plaintiff’s averments are admitted, others partly admitted. The answer sets- out that the act whereby the 40 acres of land was sold to defendant, in stating that the price was $1,600 cash, is the language and statement which they purposely and understandingly wrote into the act; that no error exists; that the statement expresses their agreement on the subject correctly; that pursuant to their agreement he paid $1,400 of the price by transferring and delivering to the plaintiff 28 notes, each for $50, payable to the order of John J. Beeson, executed and signed by Mrs. Amy Hogland, who was plaintiff’s daughter, and C. F. Hogland, her husband; that pursuant to their agreement the notes were not indorsed by him; that they were good and valid; that the mortgage granted on the property in the town of Pitkin for the purpose of securing them was the first mortgage on said property; that said notes, not being paid and as he himself held at the time 13 of the same series of notes of the same date, each -for an amount same as the plaintiff’s, all executed at the same time by Mrs. Hogland and her husband, and secured by the same mortgage, acting and proceeding at the request of the plaintiff, he foreclosed on all the notes in his own name in the samé suit, and bought in the property for $200, incurring expenses amounting to $204.90.

His answer contains further statements and explanations not necessary to mention in the present case, but according to which he does not owe the plaintiff the sum claimed.

He denies owing the plaintiff anything, prays that his demand be rejected, and for general relief in the premises.

There was judgment in favor of the plaintiff and against the defendant for $150, with interest, subject to a credit of $204.90, reserving to plaintiff the right to thereafter sue Mrs. Amy Hogland and J. J. Beeson, defendant, on the 27 notes given him in part payment of the 40 acres of land, and to claim vendor’s privilege thereon, if any exists in his favor under the law. The sequestration was. dissolved and defendant condemned to pay the cost. The plaintiff has appealed.

The defendant urges that his exception of no right or cause of 'action should have been sustained.

Taking the petition of the plaintiff to be ■ true, the gravamen of his complaint is that the notes transferred to him were, worthless, which, if true, rendered the sale without consideration to the extent that the notes constituted the price. Such a fact, if true, was susceptible of proof by parol evidence.

The exception was properly overruled; but the evidence received on the trial does not satisfactorily establish that the notes were worthless, nor that Mrs. Amy Hogland and C. F. Hogland are insolvent. It may be true, but the evidence leaves the matter in doubt.

The evidence shows that there were originally 40 of these notes, but about 4 of them have been paid. They formed the price of the 40 acres of land, to the extent of $1,400. They were transferred and delivered to plaintiff pursuant to the agreement of the parties, without being indorsed by Beeson. It is further satisfactorily established that Beeson took them out of the bank under agreement with the,, plaintiff and foreclosed on them, together with those held by himself, as though he was the owner of all the notes, and, no one else bidding, he bid in the property for $200.

As for plaintiff’s averment that lot 9 in block 4 of the town of Pitkin was covered by mortgages against Mi;s. Amy Hogland at the time of the) sale, priming the mortgage which was granted to secure the notes in question, he is mistaken. The mortgage certificate, under which .the sale was made, shows that the mortgage which secured :the notes was the first mortgage on the property.

As. for the value of the mortgaged property, the evidence shows that the notes were executed by Mrs. Hogland and her husband for the purpose of paying for a building erected on the lot, which cost $2,000. • Notes, in number 36, and in amount $1,800, were unpaid at the time of the' foreclosure. The notes in question would no doubt have been paid, but subsequent mortgages would then have come in ,for payment. and the property would have been taken to pay subsequent mortgages,

When the trial commenced the defendant tendered to the plaintiff in open court as alternative propositions 27/40 of the, $200 paid at the sheriff’s sale, or 27/40 interest in the lot 9 of block 4 in the town of Pit-kin, La., purchased at the sheriff's sale. Plaintiff refused the tender, giving, as reason, that the consideration passing from Beeson for the payment of the land had failed without any contract, act, estoppel, or agreement releasing Beeson from •the price of the land sold him.

The plaintiff and defendant, in their respective briefs, entered into a discussion of the law on the subject of notes and as to the rights of parties when notes payable to order have been transferred without indorsement. The situation resulting from the pleadings and the evidence does not call for determination of questions of that kind. We are satisfied that plaintiff is the owner' and the holder of the 28 notes; his right and title thereto is not questioned.

Under the pleadings and showing made, the dissolution of the sale of the 40 acres of land, based on the grounds provided by the Civil Code, arts. 2561 and 2562, cannot be considered in this suit.

As for the tender which the defendant made to the plaintiff, the interest in lot 9 of block 4 of the town of Pitkin tendered, was not said to be free of liens, privileges, and mortgages which might incumber the property since defendant’s purchase.

Then again, the 28 notes transferred and delivered were delivered and received as worth the amounts called for on their face, but, under the tender made, the notes held by defendant would have competed with those held by the plaintiff in such a way, that if the property was not in fact worth an amount equal to all the notes held by plaintiff and defendant, with cost and expenses in addition, then plaintiff’s notes would not receive the value called for on their face, but would be depreciated to the advantage and benefit of the defendant.

The judgment appealed from in favor of the plaintiff and against the defendant for $150, and in favor of the defendant and against the plaintiff for $204.90, does not appear to accomplish justice.

The plaintiff did not acquire any interest in the property sold by the sheriff and ■ purchased by the defendant. Such being the situation, no reason appears to support this part of the judgment. But we agree with the lower court that the plaintiff Thornton should be reserved the right, without prejudice, to proceed by suit against Mrs. Amy Hogland and C. F. Hog-land to compel them to pay the unpaid notes he holds, and in case the full amount due plaintiff cannot for any reason be recovered by suit and execution against them or either of them, that he then have the right to proceed against J. J. Beeson to compel him to make them good to the amount for which they were received in payment for said 40 acres of land, and he should have the further and additional right, in the event stated to proceed against John J. Beeson for the dissolution of the sale of the 40 acres of land in question under the law Civil Code, arts. 2561 and 2562, and to exercise all of the conservatory rights to which as such he may be entitled under the law.

Finding that the judgment appealed from should be in part reversed, in part amended, and in some respect affirmed, we will annul the judgment and write one in the way we have concluded it should be rendered in the present situation.

For these reasons, that judgment appealed from is annulled, avoided, and set aside, and it is now ordered, adjudged, and decreed that the demand of William A. Thornton against John J. Beeson, in the present case, be refused as in case of non-suit and without prejudice to the right of the plaintiff Thornton to proceed by suit against Mrs. Amy Hogland and C. F. Hogland, her husband, to compel them or either of them to pay the notes which they executed on June 14, 1928, payable to the order of J. J. Beeson, and which the said Thornton received from said Beeson, without being indorsed by him. And if for any reason payment cannot be compelled in full from them or either of them, that said Thornton have the right to proceed by suit against said Beeson to compel him to make good the amount for which said notes were received in payment for said 40 acres of land described in the petition, and also the additional and further right to proceed against said Beeson under the law Civil Code, arts. 2561 and 2562 for the dissolution of the sale of said 40 acres of land, and to claim and to exercise all of the conservatory rights to which he may be entitled under the law for the protection of the sum due him on said account.

It is further ordered that the plaintiff in this suit pay one-half of the cost of the lower court and half the cost of appeal, and that the other half in both courts be paid by the defendant.


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    No. 826
    First Circuit
    CAILLOUET & CAILLOUET ET AL. v. BOUVIER
    (June 16, 1931. Opinion and Decree.)
    Caillouet & Caillouet, of Houma, and Howell & Deramee, of Thibodaux,' and Francis L. Knobloch, of Thibodaux, attorneys for plaintiffs, appellees.
    Harvey Peltier,- of Thibodaux, attorney for defendant, appellant.
   ELLIOTT, J.

Louis Bouvier is one of the defendants in two petitory actions brought by the heirs of Joseph Cherami and Gertrude Michel, his wife, to recover from them each portions of a large tract of land now subdivided into sections confirmed to Joseph Cherami by the government of the United States, based on a Spanish grant. One suit is entitled Mrs. Antoinette Cherami, wife of Vallery Breaux et al. v. William Cantrelle et al., No. 6119 on the docket of the district court.

The other is entitled Mrs. Antoinette Cherami, wife of Vallery Breaux et al. v. Ernest Guidry et al., No. 6120 on the docket of the district court. The defendants in both suits, seventy-five in number, met and joined together in forming a defense committee to employ attorneys to represent them in the suit brought against them. The defendant Bouvier entered into the agreement as one of the defendants in appointing 'the committee, and the committee employed the plaintiffs for the purpose stated. The plaintiff attorneys claim of the defendant Bouvier $471.57 as due them by him under the agreement entered into, fixing the sum they were to receive for their services as attorneys- for defendants in the ease.

The lower court decided in favor of the plaintiffs. Defendant has appealed.

The defendant claims that he is not liable for the amount claimed of him. He sets up in his answer the following defense:

“Your respondent shows that at the .time' he signed the power of attorney he did not own any land in the sections and townships involved in the litigation and that it was also understood by the attorneys at the time of their employment that your respondent did not have any land in the sections, township and ranges, involved in the litigation in said suits.”

In another place he says:

“It was well understood that your respondent would only pay a fee to have the suit dismissed and that the fee to bq paid by him for said services would not be similar to the fees paid by the other defendants, who would have to fight the case on its merits.”

And in another:

“But your respondent shows that the suit insofar as your respondent was concerned, was dismissed by plaintiffs when it became known that they had inadvertently included your respondent as a defendant in the litigation, when in truth and in fact your respondent did not even own land in the sections involved at the time the suit was filed.”

The defendant Bouvier urges as an exception against plaintiffs’ petition that it sets out no cause of action, and urges It in his brief, but the minutes of the lower court do not show that it was ruled on by the lower court. The exception not having been ruled on in the lower court, .there is no ruling to review, and we cannot consider the matter.

As for the defenses urged in the answer, the record shows that neither Bouvier nor the plaintiff attorneys had knowledge, at the time of the employment, that the land called for by the title of the defendant Bouvier. was not included in the sections claimed by the Cherami heirs. The evidence shows that it was believed that it was part of the land called for by those sections, and that it was not until after Bouvier’s title had been examined that it was discovered that it was not part of any of the sections claimed by the plaintiffs. As for the defense that the plaintiffs in the suit had inadvertently included Bouvier’s land in their claim, the evidence shows that Bouvier was alleged by the plaintiffs to be in the wrongful possession of “approximately 300 arpents of land, bounded below by the lands in the possession of Louis Barrios and above, by the lands in the unlawful possession of Eitenne Daviet and W. H. Ragan, and fronting on the left descending bank of Bayou Lafourche.”

Everything indicates that Bouvier’s land was purposely and intentionally claimed by the plaintiffs. But after full investigation of the Cherami grant and confirmation and the title of Bouvier, the plaintiffs discovered that his land was not embraced within the limits of the land confirmed to Cherami, and so alleged in defendant’s answer. The case was tried on that issue and after the trial was completed the Cherami heirs were convinced that Bouvier’s land was not part of the grants, of land claimed in their petition, and voluntarily dismissed their suit against him.

Bouvier’s further defense, that under the agreement he was not to pay in the same proportion and on the same percentage basis as the other defendants, is not supported by the evidence. The evidence shows that the sum claimed of him is the amount which he properly owes under the agreement.

The extremely painstaking and ably conducted research work of the plaintiffs successfully defended Bouvier.

The judgment in favor of the plaintiffs is correct.

Judgment affirmed. Defendant to pay the cost in both courts.


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    No. 809
    First Circuit
    BAILEY v. GULF REFINING CO. OF LA.
    (June 16, 1931. Opinion and Decree.)
    Griffin T. Hawkins, of Lake Charles, attorney for plaintiff, appellant.
    J. S. Atkinson, of Shreveport, and McCoy, Moss. & King, of Lake Charles, attorneys for defendant, appellee.
   ELLIOTT, J.

Forest E. Bailey alleges that while employed by Gulf Refining Company of Louisiana in its production department, and while in the act of holding secure the tongs while a fellow employee was driving a steel casing key into the tongs with a hammer, a small piece of steel flew from the key and hit him in his right eye. The accident occurred August 9, 1925.

That he was sent by Gulf Refining Company of Louisiana to Dr. Foreman, who, within two or three hours from the time of the accident, succeeded, in extracting the steel from the ball of his eye and gave him treatment on said account.

That his eye was inflamed for 2 or 3 weeks after the accident before it cleared up. That continually from the date of the injury the vision of his eye commenced to blur, and his sight was. not normal, gradually growing worse and worse until on or about December 15, 1928, when he became totally blind as a result of traumatic cataract in said eye, caused by said injury.

He alleges knowledge of the accident on the part of the Gulf Refining, Company of Louisiana and notice of his loss. Alleges in the alternative and in the event that the court holds, that the cataract was not traumatic, but complicated, then in that event that the injury to his eye activated the permanent disease in his eye, causing a complicated cátaract to form in his eye, the blow causing the cataract to form in his eye, even though there was no existing disease of the eyeball.

There was judgment for defendant, and plaintiff appealed.

Judgment affirmed.

He claims of the defendant weekly compensation at the rate of $20 per week for a period of 100 weeks.

Plaintiff’s, suit was filed August 15, 1929.

Defendant admits the employment, but denies the alleged injury; denies -that it sent plaintiff to Dr. Foreman; that it received from the plaintiff notice of any injury sustained .by him within 6 months from the date of the alleged injury, as required by the Employers’ Liability Act, No. 20 of 1914, secs. 11, 13 and 14, and pleads said failure to give notice as a bar to plaintiff’s suit. It further alleges, that •the alleged cause of action having arisen more than one year prior to the institution of the suit, plaintiff’s suit is barred by the prescription of one year. It therefore pleads the prescription of one year provided by section 31 of said act in bar of plaintiff’s, suit.

For written reasons there was judgment rejecting plaintiff’s demand. The. plaintiff has appealed.

As far as the want of service on defendant of notice of the injury, the evidénce shows that plaintiff, working in the night shift, was struck in the right eye in the way alleged in his petition about 4 o’clock a. m. on August 9, 19.25. Mr. Lamb, foreman in the employ of defendant, in charge of the gang of. which plaintiff was a member, claims that he .could not remember the incident, if it took place. He admits that it was his duty, to give notice to defendant of injury to any of the crew working under him, but he could not remember giving notice of any injury to the plaintiff. The injury to the plaintiff was testified to positively by Francis Humble, a member of .the crew. The fact is indirectly corroborated by plaintiff’s wife and by Dr. Foreman, the physician in the employment of defendant at the time, who admits that on or about the time mentioned he received a call from the plaintiff and removed some foreign particle from his eye;

There is- no contention now that plaintiff was not injured as he alleges.

The law on the subject, Act No. 20 of 1914, sec. 11, as amended by Act No. 247 of 1920, provides;

‘•'Want of notice or delay in giving notice shall not be a bar to proceedings under this act if it be shown that the employer, ®r his agent or representative, had knowledge of the accident, or that the employer has not been prejudiced by such delay or want of notice.’’

We regard it as. more than probable that Mr. Lamb, defendant’s agent, had knowledge of the accident. Dr. Foreman had knowledge received from plaintiff. But suppose the knowledge received by Dr. Foreman not sufficient, it is not claimed that defendant has' been prejudiced by delay in getting notice nor by the want of notice. The defense based on want of notice is not sustained.

As for the prescription of one year pleaded as a bar to the action, it is uncertain when plaintiff became aware of the loss of his eye. It is not satisfactorily established ■that he knew it a year previous to the filing of this suit. We therefore do not base our judgment on the question of prescription.

Our conclusion is that the evidence does not • satisfactorily show that the cataract which caused plaintiff’s blindness in his right eye directly or indirectly grew out of the injury received August 9, 1929.

The plaintiff testifies th.at upon being struck in the eye, which was near daylight, he immediately went home. His wife bathed his eye and then drove him in an automobile to see Dr. Foreman who removed from his eye a particle of steel about the size of a pinhead and administered treatment. That he returned to his work and worked the night following his injury and continued to do so for month after month thereafter, though his eye continued to hurt him.

Dr. Foreman, testifying on the subject, remembered that he looked on the injury as not serious. • Dr. Foreman was not a specialist in eye diseases. Plaintiff alleges that his eye cleared up in 2 or 3 weeks after the injury.

Plaintiff did not apply for any further medical treatment to his eye until September, 1926, more than a year afterwards, when he applied to Dr. Brooks for treatment to his eye.

Dr. Brooks, testifying on the subject, could only state from a prescription that he had given plaintiff, a wash for his eye. His testimony indicates that he could not have considered the eye trouble serious.

There is no further evidence showing that plaintiff had trouble with his eye, but in March, 1928, about 18 months after the accident in question, Dr. Cherry, in the employment of defendant, was making an examination of its employees, and upon examining plaintiff’s eye discovered that he was nearly blind in his right eye as a result of a cataract, and recommended that plaintiff consult Dr. lies, an eye specialist at Lake Charles. Plaintiff testifies that he did so, but he says he was not blind at that time, and we can find nothing in the evidence concerning what Dr. lies found at this time.

Dr. lies, appointed by the court to examine plaintiff’s eye, testified that he had examined it twice recently. In saying that he had examined it twice recently he evidently did not refer to an examination made in March, 1928, pursuant to suggestion of Dr. Cherry, but to examinations made just previous' to the trial in October, 1929. His testimony is very full, and, having been appointed by the court at the request of both parties, his evidence may be considered as not influenced by employment.

Dr. lies gave it as his opinion that plaintiff’s sight in his right eye was totally lost as a result of cataract caused by trauma, but that' the cataract did not result from the injury inflicted by the small particle of steel which Dr. Foreman removed from plaintiff’s eye. in August, 1925. He gave it as his opinion that the injury then received was- not sufficient injury to produce a cataract. Just when the cataract commenced to form in plaintiff’s eye is not shown, but the eyesight was entirely gone at the time of the trial in October, 1928. According to Dr. Cherry, it was impaired, but not entirely gone in March, 1928.

Plaintiff testifies that he did not know the sight of his right eye was gone until he tried to shoot a rifle in December, 1928. Plaintiff’s wife testifies on this subject:

“Q. Mrs. Bailey, when did you find out for the first time that his eye was hurt? (Evidently means out.)
“A. In December.
“Q. -What December?
“A. This last December.
“Q. How did you find it out?
“A. He went to shoot some little mice and when he put the gun up to shoot the mice, why. he could not see the sight of the gun.
“Q. Did he use the rifle some time pre- ■ vious to that, Mrs. Bailey?
“A. Yes, sir. He had used it several times.”

Dr. Lapat, specialist in .eye injuries, in the employ of defendant, examined plaintiff in June, 1929, and gave his testimony at length on the trial of the case. He gave it as his opinion that the cataract which had caused the loss of the , sight of plaintiff’s right eye had not been caused by trauma, but agreed with Dr. lies that an injury such as plaintiff is shown to have received in August, 1925, could not in his opinion cause a traumatic cataract, because the injury was not sufficient. He attributes the cataract to other causes.

Dr. Loomis, an eye specialist of long experience, called by plaintiff, gave testimony more favorable to plaintiff than either Dr. lies or Dr. Lapat had done, but, taking his testimony as a whole, the injury of August, 1925, cannot be said with reasonable certainty to be the cause of the cataract. In one part of his testimony he speaks of the injury as the probable cause, but later he speaks of it as only a. possible cause. We quote him as follows-:

“Q. Could he have received such an injury as he states that he did receive in his testimony, which could have caused the cataract that he is suffering from?
“A. I think so.
“Q. Now, could that injury have been received in August, 1925, and have only caused complete .loss of sight in this eye in December, 1928?
“A. I think that is possible, all right; from the history, I would say it was probable.
“Q. From the history?
“A. Yes, sir. Sometimes they develop very slowly. The average time of maturing cataract is from one. to three years, but I have known some of them much longer than that.”

In a later part of his testimony he says:

“Q. Well. doctor, do you thing it prob able that a man just receiving a slight wound that never stopped him from work, a piece of steel no larger than a pin head, if it was going to cause a cataract he would not feel it in less than three years?
“A. I have seen eases like that. I have seen cases like his that develop very slowly, just come on with a little bit of trouble and afterwards find there was a cataract developed.
“Q. Is there a continuous inflammation then?
“A. There might at times be a little bit, and sometimes it might not bother him at all to amount to anything.
“Q. Then it could not develop into cataract?
“A. Yes, it could.
“Q. You think it could?
“A. Yes, it could.
“Q. Well doctor, do you think it is probable or only possible that it would develop?
“A. Well, I would say that it is possible.
“Q. But not probable?
“A. No, because in many of these cases they get all right.
“Q. Now doctor, isn’t' it a fact that a traumatic cataract usually develops a soreness and an infection within a very short time after the traumatism?
“A. Most of them do.” .....

Dr. Lapat says there was nothing in plaintiff’s eye at the time he examined it, consequently Dr. Foreman must have gotten out of the eye all that got into it in the way stated.

The Employers’ Liability Act, No. 20 of 1914, sec. 18, subd. 4 (amended by Act No. 85 of 1926) says:

«* * * All findings of the fact must be based upon competent evidence, and all compensation payments provided for in this act, shall mean and be defined to be for injuries and only such injuries as are proven by competent evidence, of which there are or have been objective conditions or symptoms- proven, not within the physical or mental control of the injured employee himself.”

Section 38 (amended by Act No. 38 of 1918) provides as follows:

“ * * * The terms ‘Injury’ and ‘Personal Injuries’ shall include only injuries by violence to the physical structure of the body and such diseases, or infections as naturally result therefrom. “The said terms shall in no case be construed to include any other form of disease or derangement, howsoever caused or contracted.’’

• According to the preponderance of most plausible and persuasive evidence, it is not shown with reasonable certainty that the cataract which formed on plaintiff’s eye grew out of or was activated into existence as a result of injury to plaintiff’s eye caused by the particle of steel which ■struck him in August, 1925. Such was the conclusion of the district judge. In giving his reasons for judgment, he speaks of the cataract as being only a possible result of the injury mentioned.

We agree with the lower court that the facts and circumstances are not sufficiently strong to justify holding that the cataract which has caused the loss of plaintiff’s eye grew out of or was influenced into activity as the result of injury to plaintiff’s eye, due to having been struck in the eye by a small piece of steel on August 9, 1925.

The judgment appealed from is in our opinion correct. The defendant and the appellee have answered the appeal for the purpose of having this court fix a fee in favor of Dr. lies, which, it is alleged in the answer, the lower court omitted to do.

The judgment appealed from condemns the plaintiff to pay the cost. The judge a quo has power upon the return of the case to fix and tax the fee. It is not a matter upon which we should act, in the way brought before us.

Judgment affirmed. Appellant to pay the cost in both courts.


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    No. 796
    First Circuit
    PERKINS v. WHITE GRANDIN LBR. CO.
    (June 16, 1931. Opinion and Decree.)
    S. I. Poster, of Leesville, attorney for plaintiff, appellant.
    Thornton, Gist & Richey, of Alexandria, attorneys for defendant, appellee.
   ELLIOTT, J.

Jodie W. Perkins, employed by White Grandin Lumber Company, while unloading lumber from what he calls a dry chain and stacking it on a vehicle used for moving lumber and which the plaintiff calls a buggy, was in some way, not made clear by the testimony, struck and knocked down by the buggy. The plaintiff alleges that he was seriously and permanently injured as a result of the blow, and has brought suit for compensation against White Grandin Lumber Company, claiming $8.77 per week for a term of 400 weeks.

The defense may be summed up in the following denial:

“Respondent avers that petitioner herein is not disabled from performing reasonable manual labor and that if the said plaintiff is at the present time suffering from any injury or disability of any nature whatsoever, same is not due to any accidental injury arising out of and in the course of his employment with your respondent company.”

Plaintiff’s demand was rejected in the lower court, and he has appealed.

The evidence shows that plaintiff was knocked down by a buggy, one of the appliances used by defendant, while performing the work in which he was employed by defendant. That a friend and fellow employee, Harliss Oakes, raised him from the ground into a sitting posture. He remained in that position for a few minutes, then got up, and walked unassisted to consult a physician, Dr. Kornbeeker, in the employ of defendant, whose office was near by. He testifies that the physician examined him, gave him a phial of medicine, which he took to be liniment, and told him to go home and lay down flat on his back and stay there. That he did so, remaining in bed for several days. That in a few hours after his injury he noticed a swelling which physicians, on the trial, described as a varicocele. That since the injury he has constantly suffered pain and disability as a result of said blow. He claims that the blow so received caused said varicocele, producing -in him a per-' manent total disability to do work of any reasonable' character.-

Two physicians without interest in the matter examined plaintiff and testified, giving it as their opinion that plaintiff is unable to do any manual work of a reasonable character and regarded his disability as permanent. They also gave it as their opinion, based on the theory that plaintiff had no varicocele previous to the blow, that his present condition is a result of the blow.

Dr. Kornbeeker, who was consulted by plaintiff immediately following the blow, testifies that he found, on his examination of the plaintiff, contusions, one on the thigh and another on the abdomen, but not near the varicocele in question, which is in the veins of the scrotum. That the contusions he saw could not in his opinion have produced the varicocele with which plaintiff suffered. He regarded the contusions as unimportant and that plaintiff has fully recovered and could perform reasonable manual labor. In looking at the contusion at the time he examined plaintiff almost immediately following the injury he did not discover the varicocele. In this connection we notice that plaintiff went home after leaving the office of Dr. Kornbeeker and never returned. He never sent for him to come to see him, but he says that his wife went to Dr. Kornbeeker and got more medicine.

“Q. Did Dr. Kornbecker ever come to see you after you went home?
“A. No, sir. Hs should have, but he didn’t.”

It seems to us that if he had been suffer-, ing in a way he claims to have been, following the blow, he' would have consulted some physician if» he did not wish to be treated by Dr. Kornbecker; but nothing indicates that.he did so. Two other physicians, one of whom we assume from the evidence was in the employ of the insurance company which has the defendant insured against loss in matters of this kind, the other, not at the time of testifying, but formerly, employed in industrial practice, examined plaintiff and gave it as their opinion that the varicocele, with which plaintiff suffers, is a disease which was not brought about nor produced in the plaintiff as the result of the blow which he received. They further gave it as their opinion that plaintiff can perform reasonable manual labor, corroborating in every respect the testimony of Dr. Kornbecker.

After consideration of all the testimony on the subject and taking the facts and circumstances into account, we find that the plaintiff has not established with reasonable certainty that the varicocele with which he suffers .was caused, produced,, or activated into its. present condition as a result of the blow received in defendant’s service.

The judgment rejecting his demand was correct.


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    No. 795
    First Circuit
    GRANDMOUGIN v. GREEN
    (June 16, 1931. Opinion and Decree.)

      E. L. Stewart, of DeRidder, attorney for plaintiff, appellee.
    Ferguson & Newman, of Leesville, attorneys for defendant, appellant.
   ON MOTION TO DISMISS

LeBLANC, J.

The lower court granted an order of appeal to the appellant for both the suspensive and devolutive appeals, fixing the bond for a suspensive appeal in an amount according to law, and for the devolutive appeal, in the sum of $100.

The order was signed on January 12, 1931, and on January 28, 1931, the appellant furnished an appeal bond in the sum of $100, for what is referred to in the bond itself as a suspensive appeal.

The motion to dismiss is based on the ground, first, that the bond was furnished more than ten days after the signing of the order, and consequently too late for a suspensive appeal, and, secondly, that the amount of bond furnished is too. small for a suspensive appeal.

Whenever a motion to dismiss an appeal is presented, there is always to be considered, first, the regard with which the law favors an appeal. It has been directly held in the case of Mestier v. Chevalier Pavement Co., 103 La. 562, 32 So. 520, that, where the appellant furnishes an appeal bond for the amount fixed by the court, the appeal will be maintained as devolutive, even though the bond be too small for a suspensive appeal.

Here it is true that in the -bond itself the appeal is designated as suspensive, but we do not think that, because of such an erroneous declaration when the bond seems to be valid in every other respect, and the amount is sufficient to support a devolutive appeal, the appellant should be denied his right of appeal with which, as already stated, the law favors him.

The motion is therefore denied.

ON THE MERITS

The issue in the case «grows out of a misunderstanding between the plaintiff and the defendant as to the real meaning and intention of a verbal contract between them relative to the cutting, hauling, and sawing into lumber of certain timber belonging to the defendant by the plaintiff.

Plaintiff alleges that under the contract he was to cut, haul, and saw into lumber, for the defendant from his land in Vernon parish, certain logs, and do all the work in connection therewith, for the price of $15 per thousand feet of lumber thus sawed, and that the contract also contemplated that he was to make cross-ties which would belong to him upon paying defendant' a stumpage value for the cross-tie timber of 15 cents for No. 2 ties and 5 cents for No. 3 ties. He claims that, after having given defendant credit for all the cross-ties he received, there is still due him the sum of $160.60, for which amount he prays for judgment. Claiming the privilege which he avers the law accords him on the lumber manufactured by him, he obtained an order of provisional seizure under which the sheriff holds approximately 15,145 feet of lumber.

The defendant admits the general nature of the agreement for the sawing of the logs into lumber, and that the price fixed between them was $15 per thousand feet, but he contends that the cross-ties, at the prices stated in the petition, were to pay for the cutting of the timber and the sawing of the logs into lumber. In other words, the agreement was that he (defendant) would not have to put out any money, the plaintiff obtaining his whole payment out of the cross-ties he was to receive.

It appears from the evidence that the defendant relies equally as much on the other defense he makes that the lumber was not properly manufactured and is not marketable, and that the plaintiff did not cut the timber clean, leaving logs in the woods, thus causing defendant damage in the sum of $100. He also claims that the plaintiff owes him the sum of $18.72 for money advanced to laborers, and demands the sum of $50 as attorney’s fees for obtaining the dissolution of the writ of provisional seizure. His full demand which he presents in reconvention is for the sum of $168.72.

The parties were alone when the contract was entered into, and, as they differ so widely with regard to the very important part regarding the consideration plaintiff was to receive, it is necessary to look to the surrounding facts and circumstances which may favor one side or the other in order to reach a definite conclusion.

The district judge evidently was of the opinion that the circumstances which presented themselves corroborated the testimony of the plaintiff as he rendered judgment in his favor for the full amount of his claim. The defendant has made no appearance before this court, and that alone, as is usually held, creates a strong presumption in favor of the correctness of the judgment.

The testimony discloses that the plaintiff owned a small portable sawmill, which, as we understand, was more of a cross-tie mill than one to manufacture lumber with. It was operated by a Fordson tractor engine. He was cutting and sawing ..logs into lumber for one of the defendant’s neighbors, Mr. John Lance, and it was on seeing plaintiff do this work that the defendant asked him to saw some of his timber, and this resulted in the agreement that was entered into between them. The defendant obviously then was aware of the capacity of the mill, and could judge for himself as to the quality and grade of the lumber manufactured by it, Mr. Lance testifies that the defendant’s lumber was manufactured in just about the same manner as his was. Besides, the defendant was the one who superintended the cutting of the logs, designating what length they were to be cut, etc., and he himself hauled the lumber away from the mill after it had been sawed. Certainly he must have known of its quality, grade, and dimensions, and yet he never complained about it at all to the plaintiff. It is shown, moreover, that it was sawed in the grades and dimensions such as small mills of its kind .are capable of turning out, and that the man engaged by the plaintiff as sawyer was competent. We believe, with such evidence before us, that the defense that the logs were not properly manufactured into lumber is not borne out by the record and cannot be sustained.

We are of the opinion that defendant’s other contention that the agreement of plaintiff was that he was to receive his payment out of the cross-ties he was to make is equally refuted by the facts in the case.

In connection with this defense, we again refer to the fact that it was the defendant who directed the cutting of the logs in the woods. To make cross-ties, the logs would have to be cut in different lengths than those used to manufacture into lumber, and yet his instructions as to the lengths in which the logs had to be cut indicated that most ol the timber was to be sawed into lumber and not cross-ties. Besides, one of defendant’s own witnesses testifies that on one occasion defendant told him that he feared plaintiff would cut more lumber than he did ties, and remarked further: “If he does I’m up against it, I can’t pay for it.” In view of the fact that he directed the cutting of the timber, and was therefore in a position to have the plaintiff saw either lumber or cross-ties as he wanted to, it is reasonable to assume that the fear he said he had was ungrounded, as he could have ordered the cutting of sufficient timber to make enough cross-ties with which plaintiff would have been paid in full. Plaintiff testifies that he would have preferred to manufacture the cross-ties, as that would have been more profitable to him.

Finally, on this defense, the evidence reveals that, when plaintiff made a demand for his payment of $15 per thousand feet for the manufactured lumber, the defendant did not raise any question about the contract, merely saying he could not pay it. He offered some form of settlement to the plaintiff, which involved turning over some property to him at a certain price from which the amount claimed would have been deducted. Had the defendant been correct in his understanding of the agreement, it strikes us he certainly would have protested at that time and not made the offer of settlement which he did.

The claim in reconvention which the defendant makes for the trees he alleges plaintiff left in the woods is not supported by the testimony. The trees, numbering 85, are all standing just as they were, and have not depreciated in value to any amount which we are able to determine.

The other demands in reconvention for money advanced to labor are conceded by plaintiff, but do not seem to change the result as far as the amount he demands is concerned. He seems to have made an error in calculation in his petition in allowing credits of $74.47. We gather from the figures as we view them that the items of advances were included in these credits.

We are unable to detect any error in the judgment of the lower court which allowed the plaintiff the amount of his claim in full, and it is therefore affirmed.


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    No. 813
    First Circuit
    HARRIS v. LONG, BELL LUMBER CO.
    (June 16, 1931. Opinion and Decree.)

      Cline, Plauche & Girod, of Lake Charles, attorneys for plaintiff, appellee.
    Thornton, Gist & Richey, of Alexandria, attorneys for defendant, appellant.
   ELLIOTT, J.

Walter Harris, employed by Long, Bell Lumber Company as section foreman, claims that on September 3, 1929, while performing services arising out of and incidental to his employment, some foreign body accidentally got into his right eye, causing him the loss of his eye. He claims compensation of the defendant on said account at the rate of $13.65 per week for a period of 100 weeks.

Employment and the payment of compensation for a period of 2 weeks and 4 days on- account of plaintiff’s claim of injury •to his eye is admitted, but liability for the compensation claimed in the petition is denied.

An averment of prematurity in the petition, not acted on in the lower court nor urged in plaintiff’s brief, is looked on as abandoned.

There was judgment in favor of plaintiff as prayed for.

Defendant has appealed.

The loss of plaintiff’s right eye is conceded, but defendant contends that the preponderance of the evidence on the subject shows that it was not lost as a result of accidental injury received in its service, but as a result of a disease existing in plaintiff’s system long before the time of the alleged injury -to his eye.

The plaintiff testifies that, when he threw the switch on defendant’s railroad at the camp called Guppies, which was on or about September 2 or 3, 1929, and around 10 or 11 a. m., something hit him in his right eye; that he -threw his hand over his eye, got on a flat car, went into the quarters, and asked the boys to come and see what was in his eye; that, his eye paining him, he went that evening to see Dr. Kidd, who gave him an eye wash which he used for 4 or 5 days; that he did not stop work, but, his eye growing worse, he went back to see Dr. Kidd, who sent him to Dr. lies, an eye specialist, who treated him for a month or more; that while being treated by Dr. lies he lost the sight of his eye.

The fact that plaintiff complained on- or about September 2 or 3, 1929,'while working for defendant, about getting something in his eye, is corroborated by other employees, and we have no reason for doubting that such a complaint was made and that actual injury was received in the way alleged.

I. T. Jines, plaintiff’s, foreman, testified that plaintiff had been working for defendant on its railroad as section foreman for 7 or 8 years or more; that during or about 1920 plaintiff excused himself for not having lined up a track correctly by saying that he had a bad eye and was sick. Mr. Jines remembered when plaintiff got his last injury. He says that prior thereto plaintiff’s, work as section foreman under his supervision was satisfactory; that it required a good vision to be able to properly line up a track; that it cannot be done properly with one eye; and that a man with one eye cannot properly drive a spike.

The evidence shows that the work of section foreman requires the use of1 two good eyes; that plaintiff did not complain about his eye previous to the time mentioned, but after the accident mentioned he complained and was unable to satisfactorily do the work he had formerly done because of impaired vision.

The evidence shows that plaintiff, some 7 or 8 years before, received injury over his left eye leaving a scar. We take it that this is the injury which Mr. Jines had in mind in speaking of plaintiff’s complaint about his eye in 1920.

The evidence shows that at the time plaintiff alleges he received his present injury he had for some 7 or 8 years before satisfactorily performed the work of a section foreman; that the work required the use of good vision in both eyes and no complaint existed on -that subject, but after the injury he was unable to see well enough, after a few days, to satisfactorily perform the work which he had for0 years formerly done with satisfaction. This showing tends to strongly corroborate the plaintiff in his claim to accidental injury resulting in the loss of his eye, as alleged in his petition. Dr. Kidd, who first treated plaintiff, was not called as a witness; the failure to do so is not explained. Defendant contends, however, that the evidence does not show with reasonable certainty the loss of plaintiff’s eye as the result of the alleged accident, but that the loss is rather .to be attributed to disease lurking in plaintiff’s system which insidiously destroyed his eye.

This, theory depends on the testimony of two physicians who claimed to have found conditions in the eye, the sight of which was destroyed, which were more likely produced by disease of the kind they described than of a trauma in the eye, admitting, however, that usual and customary tests made to discover the disease, which tests appear to be about 75 per cent efficient, failed to disclose the presence of the disi ease, upon the existence of which their theory depends for a supporting ground.

Defendant takes the position in its brief that a conflict exists between the testimony of one of the physicians who testified for •the plaintiff and that of one who testified for the defense, in that one noted a scar on one side of the eye in which the sight was lost, while the other noted a scar on the opposite side. But we do not consider the matter important; there might be in fact a scar on each side. Then again we notice that the physician relied on by the defendant, speaking of an ulcer which he found in the cornea of the eye in question, says in one part of his testimony that it was on the temporal side, but after-wards says it was on the nasal side. We are satisfied that the expression was a mere inadvertence on the part of. the physician, perhaps a stenographical mistake. Either way, the matter is not important.

"To accept the diagnosis advanced by the two physicians, called by defendant as the cause of the loss of sight in plaintiff’s right eye will require us to conclude that the disease which they name, lying dormant in plaintiff’s system, suddenly made a virulent attack on plaintiff’s right eye, and after destroying the sight it then subsided about as fast as it had attacked, leaving plaintiff in all other respects in a condition of apparent normalcy and although recently virulent, it left no evidence of its existence behind.

Such a conclusion is not easy to arrive at, but, suppose such a conclusion to be the most probable, it then seems that we must rationally conclude that such a virulent attack, after so many years of dormancy, was most likely brought about by some accidental hurt of great force; otherwise it would have remained in a state of quiescence.

Four physicians, without apparent connection of any kind which could influence their conclusion, gave it as their opinion that the loss of the sight of plaintiff’s eye was not due to disease lurking in his system, that plaintiff has no such disease, but was due to trauma, thus supporting plaintiff’s contention that something got into his eye, as alleged in his petition.

The evidence in our opinion supports the cause of the plaintiff and justifies recovery.

The judgment of the lower court is cor-v rect, except in regard to the rate of interest allowed. In the lower court the plaintiff was allowed 8 per cent per annum interest on the installments due. Only 5 per cent should have been allowed.

For these reasons the judgment appealed from is now amended so as to allow 5 per cent per annum interest on the installments due, instead of 8 per cent as allowed in the lower court. As thus amended, the judgment appealed from is affirmed; defendant-appellant to pay the cost in the lower court, plaintiff-appellee the cost of appeal.


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    No. 829
    First Circuit
    DAIGLE v. PRICE
    (June 16, 1931. Opinion and Decree.)

      {No SyVtobas)
    Francis L. Knobloch, of Thibodaux, attorney for plaintiffs, appellees.
    Harvey Peltier, of Thibodaux, attorney for defendant, appellant.
   LeBLANC, J.

This case presents exactly the same issues as those in the case of Albert Daigle v. Mrs. Andrew Price, 135 So. 263, in which an opinion was this day rendered by the court, the only difference being in the amount claimed. The demand in this case is for the sum of $621.67. The cases, were consolidated in the lower court for the purpose of trial and the same evidence to be applied in each. Judgment as in the other ease was awarded in favor of plaintiffs for the full amount of their claim and the defendant appealed.

For the reasons assigned in the case of Albert Daigle v. Mrs. Price, the judgment in this case is also affirmed.


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    Nos. 786-787
    First Circuit
    AVOYELLES WHOLESALE GROCERY CO. v. VILLE PLATTE SAWMILL CO., INC., ET AL., and JOHNSON v. VILLE PLATTE LUMBER CO., LTD.
    (June 16, 1931. Opinion and Decree.)
    O. E. Guillory and E. H. Guillory, of Ville Platte, attorneys for plaintiffs, ap-. pellees.
    J. H. Dore, of Ville Platte, attorney for defendants, appellants.
   MOUTON, J.

The defendant in these two cases, consolidated for trial, appears under different titles, but is the same defendant in which were rendered separate judgments, against the defendant corporation and the other co-defendants from which defendants appeal.

In the case of Avoyelles Wholesale Grocery Company the demand is for $249.73, for oats and hay alleged to have been sold to defendant corporation domiciled in Ville Platte, La.

It is alleged by plaintiff, in the Avoyelles Grocery case, that the goods were sold to the corporation on the written orders of P. M. Reed, its treasurer, and that at the time this debt was incurred, the defendant corporation had not filed for record in the office of the recorder of mortgages, its articles of incorporation or a multiple original thereof, as required by section 9 of Act 250 of 1928, page 409.

The suit is brought, jointly and severally, against the corporation, its president, Armand Coreille, J. E. Ortego, secretary P. M. Reed, treasurer, J. Gilbert Soileau, manager, all residents of Ville Platte, and Joseph Albert Hebert, vice-president, of Opelousas, residing outside the parish of Evangeline where the suit was brought.

The record shows that the charter of defendánt corporation had not been filed for registry when the goods were sold by the Avoyelles Grocery Company. Plaintiff therefore avers that defendant corporation having begun the transaction of business prior to the recordation of its articles of incorporation, and as none of the officers and directors above named dissented therefrom, they are responsibll jointly and severally with the corporation for the debt thus incurred. Section 9 of said Act so provides.

In the Avoyelles Grocery Company’s petition, it is alleged that the goods were sold on the written orders of P. M. Reed, treasurer, as above stated. Objection was made by counsel for defendant to verbal testimony offered to establish the claim. The proof of such a claim was not essentially dependent on written evidence, and the objection was rather technical. It was, however, shown that several items had been sold on the written orders of Reed. Counsel for defendant contends that they were signed by Reed, individually, and not in his capacity of treasurer. Several of these orders were to be charged to the mill, and no doubt were bought for defendant corporation.

In reference to the foregoing contentions of counsel, it is appropriate to refer to the answer of defendant corporation which, we think, clarifies the situation. In the answer defendant' alleges that the “said plaintiff contracted with the defendant, Ville Platte Sawmill Company, or Ville Platte Lumber Company, Inc., as a going concern, acknowledging the said company as a Louisiana corporation, etc.” On this allegation defendant based its plea of estoppel claiming that it could not contest the legality of the corporation — a plea not now urged.

If plaintiff contracted with defendant corporation, as defendants allege, it was for the sale of the oat's and hay for the payment of which the suit was brought. This transaction created a debt on the part of the corporation, and unquestionably prior to .the registry of its charter. The contract for the sale of the goods to which defendants refer in their answer makes no allusion to written orders or "verbal agreements, and had the effect of opening the door to testimonial proof to show that the sale of the goods was made to defendant corporation.

In the record in the case of Johnson against defendant corporation, consolidated for trial with the Avoyelles Company suit, it is shown that P. M. Reed gave a check to Johnson for logs bought for the defendant corporation, and which is signed by Reed as treasurer for the Ville Platte Lumber Company. If plaintiff contracted with defendant corporation, as it is alleged in the answer, it was undoubtedly through Reed, its treasurer. Such being the situation, it will not do to say that Reed signed the orders or incurred the debt individually, as contended for by ■ defendant's counsel.

In the case of Johnson against defendants, the question of written orders does not arise as the sale of the logs was made verbally. Soileau, a member of the board of directors, selected the logs which were sold by Johnson to the company, for which Reed, as treasurer, was to give a check. The logs were delivered to the mill and so were the goods by the Avoyelles Company. The fact is that there is no contention that they were not. Defendant is legally bound to both plaintiffs for the goods bought.

Reed, who was sued as a co-defendant, died before the judgment was rendered below. The court in both cases said that while the trial of the two suits was still open it had been suggested to it that Reed had died December 20, 1930. The court therefore rendered judgment in the two cases against the corporation and ■ all the defendants, except Reed, the court reserving the rights of the plaintiffs against, ■the latter’s estate.

Counsel for defendant says that judgment not having been rendered against Reed is equivalent to an abandonment of the suit against the widow of Reed and his heirs who should have been made parties co-defendants.

The reservation by the court of the rights of plaintiffs against the estate of Reed would be sufficient if such a reservation were required. This was, however, unnecessary to accomplish that purpose, as plaintiffs could have brought suit against any of the debtors bound in solido without losing their rights to sue the others. C. C. arts. 2094, 2095.

Another contention is that Joseph Albert Hebert is a resident of St. Landry parish, and is not domiciled in Ville Platte, Evangeline parish, where the other co-defendants reside, and consequently he could not be sued there.

Section 9 of Act 250 of 1928, when the directors or officers of a corporation incur debt before its charter is filed for ■ record, provides for their liability, jointly and severally, with the corporation.

If their liability is joint, they can be sued at the domicile of any of the obligors under, article 165, C. P. If liable in solido, the same rule applies under Act 71 of 1914, amending article 165, C. P. Here, the obligation contracted by defendant corporation was for the purchase of oats, hay, and logs. Obviously, the obligation sprung from a conventional agreement, it was certainly not the result of a tort, and ■the defendant Joseph A. Hebert could be sued at the domicile of. his co-defendants where the suit was brought. King v. Wm. J. Burns International Detective Agency, 151 La. 211, 91 So. 681.

We find no merits in this contention nor on those urged against recovery on the merits.

The demand in damages asked by appellee for a frivolous appeal is denied.