text:
    No. 3026
    Second Circuit
    BURSON v. OHIO OIL CO.
    (June 28, 1927. Opinion and Decree.)
    (July 26, 1927. Rehearing Refused.)
    (July 28. Writs of Certiorari and Review Applied for.)

      (Syllabus by the Editor.)

    1. Louisiana Digest — Master and Servant —Par. 154.
    A law which is not substantive but purely remedial, such as Section 18 of the Workmen’s Compensation Act, as amended by Act 85 of 1926, is the law in force at the time the. suit is filed and controls as to the jurisdiction, even though the injury occurred prior to the time that it went into effect.
    2. Louisiana Digest — Corporations — Par. 209.
    Under Section 2 (d) of Act No. 267 of 1914, the only cases where the plaintiff may sue a corporation in the parish where the cause arose regardless of domicile of the corporation are actions resulting from a trespass or an offense or quási offense.
    3. Louisiana Digest — Master and Servant —Par. 153, 154.
    In view of Section 34 of Act 20 of 1914, an action under the Workmen’s Compensation Act is neither an action for trespass, offense, or quasi offense, but is separate action from that under Article 2315 of the Civil Code.
    Appeal from the Twenty-sixth Judicial District Court of Louisiana, Parish of Webster. Hon. H. C. Drew, Judge.

      Action by James T. Burson against Ohio Oil Company.
    There was judgment for defendant and plaintiff appealed.
    Judgment affirmed.
    Thomas W. Robertson, of Shreveport, attorney for plaintiff, appellant.
    R. L. Benoit, of Shreveport, attorney for defendant, appellee.
   ODOM, J.

This is a suit under the Workmen’s Compensation Law.

Plaintiff alleges that the defendant is a foreign corporation having its domicile in the state of Ohio but maintaining an office for the transaction of its business in the city of ShreVeport, Caddo parish.

He further alleges that the defendant is engaged in drilling oil and gas wells in the parish of Webster, where he was employed by it to work on a drilling rig, and that on January 31, 1926, he was injured while at work in Webster parish. And he brought this suit in that parish.

The defendant, in limine, filed an exception to the jurisdiction of the court ratione personae, and asked that testimony be taken in support of the exception.

The testimony taken on the trial of the exception shows that defendant is a foreign corporation, doing business in several parishes of the state, Webster being one of them, but maintaining only one office in the state from which all qf its business is transacted, that being in the city of Shreveport, Caddo parish.

The lower court sustained the exception to its jurisdiction, from which judgment plaintiff prosecutes this appeal.

OPINION

Plaintiff was injured while at work in the parish of Webster on January 31, 1926. At the time he was injured, the law fixing the venue of suits of this character was Act No. 234 of 1920. That act provided that the injured employee might, at his option, present his complaint—

“to the judge of the District Court of the parish in which the injury was done or the accident occurred * * * or to any court at the domicile of the defendants having jurisdiction of the amount in dispute.”

Under the plain provisions of that act the injured employee could bring his suit in the parish where he was injured. But that law is no longer in effect, having been repealed by Act No. 85 of 1926. The latter act does not confer upon an injured employee the right to bring his suit in the parish where the injury occurred, but by Section 14, which amends and reenacts the old law, it is provided that he must present his complaint—

“to the judge of the District Court which would have jurisdiction in a civil case * * * or to any court at the domicile or at the principal place of business of the defendant, having jurisdiction of the amount in dispute, at the option of the plaintiff.”

If plaintiff had brought his suit prior to the date on which the new law took effect, the question of venue would probably not have been raised; but he filed his suit on January 28, 1927, long after the new law took effect.

Counsel for plaintiff argues that the law in effect at the time the cause of action arose is controlling on the point. We do not think so.

It is unquestionably true that, insofar as plaintiff’s rights of recovery against the defendant are concerned, they were fixed on the date the cause of action arose and are governed by the law in force at that time; but his remedy and the proceedings to enforce those rights are governed by the law in effect at the time the suit was brought.

By reference to Act No. 20 of 1914, the original Workman’s Compensation Law, and all the amendments thereof, including the last one, No. 85 of 1926, Section 18 relates exclusively to proceedings under the act. It establishes the remedies but not the rights of the parties. It fixes the venue of suits under the act and with marked particularity prescribes the legal procedure for the enforcement of the right of the litigants. That section of the act is not substantive but purely remedial, and the law in force at the time this suit was filed controls as to jurisdiction.

This view, we think, is supported by an unbroken line of decisions from the case of Todd vs. Landry, 5 Mar. (O. S.) 459, down to and including the case of Cassard vs. Tracy, 52 La. Ann. 835, 27 South. 368.

It is needless to here cite all the decisions, as they are collated in Cassard vs. Tracy, supra, especially at page 856.

We cite, further, Devine’s Case, 129 N. E. 414, and the authorities therein cited.

Counsel for plaintiff argues further that conceding that the act of 1926 does control, the suit was properly brought in the parish of Webster because said act, Section 18, provides that the complaint shall be presented—

“to the judge of the District Court which would have jurisdiction in a civil case,” and that under Section 25 (d) of Act No. 267 of 1914, a suit against a corporation may be brought either in the parish where the cause of action arose or at the domicile of the corporation.

Paragraph (d), Section 25, of Act No. 267 of 1914 reads as follows:

“Where the corporation is engaged in business in more than one parish, the venue of the suit shall, at the option of the plaintiff, be in the parish where the cause of action arose, or at the domicile of the corporation if the cause of action results from, a trespass or an offense or quasi offense; but if the cause of action results from any other cause the venue of the action shall be in the parish where is or was located the particular office which had supervision of the transaction from which the cause of action arose or at the domicile of the corporation at the option of the plaintiff.”

See, also, Act No. 179 of 1918, page 334.

It is perfectly clear that it is only in cases where the “cause of action results from a trespass or an offense or quasi offense that the action may be brought where the cause of -action arose.”

Plaintiff’s cause of action results neither from a trespass, an offense or a quasi offense. 5 La. App. 621, 143 La. 956; Legendre vs. Barker, 5 La. App. 621; Phipps vs. Guy Drilling Co., 143 La. 956, 79 South. 549.

“Trespass” in a legal sense means “any misfeasance, transgression or offense which damages- another’s person, health, reputation or property, and as used in some statutes is equivalent to ‘tort’.”

38 Cyc. 994.

An offense in a legal sense means a transgression of the law. Quasi offenses under our law are those which cause injury to another but proceed only from error, neglect or imprudence.

Edwards vs. Turner, 6 Rob. 382.

Actions for trespass, offenses and quasi offenses are those specifically provided for under Article 2315 of the Civil Code.

But counsel argues that the Workmen's Compensation Law is “merely supplementary to and complementary to Article 2315 of the Civil Code”.

Counsel is in error. Section 34 of Act No. 20 of 1914, the Workmen’s Compensation Act, as amended by Act No. 38 of 1918, reads as follows:

“That the rights and remedies herein granted tp an employee or his dependent on account of a personal injury for which he is entitled to compensation und.er this act shall be exclusive of all other rights and remedies of such employee, his personal representatives, dependents, relations, or otherwise, on account of such injury.”

In Bronson vs. Harris Ice Cream Co., 150 La. 455, 90 South. 759, the court said:

“To the legal action which the injured employee might have to recover full indemnification (under Article 2315 of the Civil Code) the act (Workmen’s Compensation Law) substitutes a right to partial indemnification *

(Words in parenthese ours.)

Insofar as an injured employee’s rights to recover, from his employer are concerned, Article 2315 of the Civil Code is set aside if the employee and employer elect to come under the act. Another and a completely different right of action is substituted by the act. Not only does the act substitute a different right of action, but plaintiff’s “remedies” are different and are exclusive.

In his Corpus Juris Treatise on “Workmen’s Compensation Acts” Mr. Donald J. Kiser says, page 7, in speaking of the obligations arising under the act:

“The trend of authority is toward regarding the obligation as contractual, although it has been said that critically considered it is more properly placed in a class by itself.”

And he cites the case of American Radiator Co. vs. Rogge, 86 N. J. L., 436, 437, where it was said:

“The liability is indeed contractual in character by force of the very terms of the statute, but it is not the result of an express agreement between the parties; it is an agreement implied by the law of a class now coming to be called in the more modern nomenclature of the books ‘quasi contracts’.”

Lastly, counsel for plaintiff contends that defendant has waived its right to plead to the jurisdiction of the court by appearing in court for another purpose, that is: to ask further time to file answer.

Defendant’s first and only appearance in court was by way of exception to the jurisdiction. Counsel vdid, however, in said exception, ask that in case the court should overrule the same, he be given further time in which to answer. The exception to the jurisdiction was specifically plead and a request to take testimony on the plea was made. The reguest for further time in which to answer was made only in the alternative in case the exception should be overruled. We do not think the defendant, under such circumstances, waived its plea to the jurisdiction.

The judgment appealed from is affirmed with costs.

Note: Since the above opinion was written, we have discovered that Paragraph 1 qf Section 18 qf Act No. 234 of 1920 is in conflict, as to venue, with Act No. 247 of 1920. It is not necessary to discuss the conflict, as we hold that neither act applies to this case.


source: Caselaw Access Project

author: WESTERFIELD, J. PER CURIAM:

license: Public Domain

text:
    No. 10,189
    Orleans
    COCKRELL v. CHECKER CAB CO.
    (May 9, 1927. Opinion and Decree.)
    (June 6, 1927. Rehearing Refused.)
    (June 20, 1927. Second Application for Rehearing Refused.)

      (Syllabus by the Court)
    1. Louisiana Digest — Damages—Par. 37.
    Only such damages as may be reasonably contemplated as the result of a negligent act can be awarded. Remote and consequential damages will not be allowed.
    2. Louisiana Digest — Damages—Par. 38.
    Lost profits from a street paving contract will not be awarded plaintiff in a suit [ for damages for an injury caused by the negligent operation of a taxicab by a servant of defendant, on the ground that the injury incapacitated plaintiff thus preventing his ipersanal presence the job and necessitating his supervision over the telephone.
    Appeal from Civil District Court for the Parish of Orleans, Division “B.” Hon. M. M. Boatner, Judge.
    Action by Francis M. Cockrell against Checker Cab Company.
    There was judgment for plaintiff and defendant appealed.
    Judgment affirmed.
    P. L. Fourchy, oi¡ New Orleans, attorney for plaintiff, appellee.
    Spencer, Gidiere, Phelps, Dunbar and E. E. Tablot, of New Orleans, attorneys for defendant, appellant.
   WESTERFIELD, J.

Plaintiff, while a passenger in a taxicab belonging to and operated by defendant, was injured because of the negligence of the chauffeur in running off the road, into and across a ditch, causing plaintiff to be considerably shaken up and injuring his knee. Defendant’s liability is not seriously questioned. The only real issue is the quantum. The court, a qua, allowed $1375.00, which defendant insists is excessive. Plaintiff itemizes his damages as follows:

“Damages for physical suffering....$1000,00 “Damages in connection with paving
'job, McComb, Miss. ________________________ 752.69'
“Expenses and disbursements__________ 125.00
“Loss of time ________________________________________ 500.00'
Total ..................................................$2377.69'

The item of damages described as “in connection with paving job, McComb;, Miss.”, refers to an alleged loss plaintiff claims to have suffered i by reason of his having to absent himself from McComb, Miss., where he was compelled to execute a contract, for street paving, by telephone supervision, being confined to his residence in New Orleans, suffering with his injuries, resulting from the accident.

Whatever' damage plaintiff may have suffered on this account can not be allowed, because remote and inconsequential. Dwyer Bros. vs. Administrators, 47 La. Ann. 1235, 17 South. 796, and authorities there cited. See also Corpus Juris, Verbo Damages, Vol. 17, p. 751.

Plaintiff’s injuries are described as a -sprained knee with contusions followed ■by synovitis. He was incapacitated for two weeks, during which time he suffered, acutely at first, from pains in his knee and leg. He has proven the expense claimed in tha sum of $125.00. We are of opinion that the judgment should be reduced to $1000.00.

It is therefore ordered that the judgment appealed from be amended by reducing the sum awarded plaintiff to the sum of $1000.00, and as thus amended it is affirmed.

ON APPLICATION FOR REHEARING

The judgment is reduced from one thousand dollars to seven hundred and fifty dollars, and as thus amended the rehearing is refused.

PER CURIAM:

The judgment in this case was rendered on May 9, 1927, an application for rehearing was filed by defendant May 23, 1927, and refused with amendment of judgment on June 16, 1927; this application on plaintiff’s behalf was filed June 18, 1927, beyond the fifteenth calendar day after the rendition of the judgment. Under Act 16 of 1910, p. 28, this application comes too late.


author: WESTERFIELD, J.

text:
    No. 10,928
    Orleans
    STEWART v. SCOTT
    (July 14, 1927. Opinion and Decree.)

      (Syllabus by the Court)

    1. Louisiana Digest — Sales—Par. 218.
    Where a vendor is advised, by the vendee, of the particular purpose for which the article sold is bought, the vendor impliedly warrants the thing sold as fit for the use intended.
    Appeal "from First City Court, Division “C”. Hon. Wm. Y.- Seeber, Judge.
    Action by Samuel B. Stewart against Natalie Scott.
    There was judgment for defendant and plaintiff appealed.
    Judgment affirmed.
    Louis E. Jung, of New Orleans, attorney for plaintiff, appellant.

      R. B. Montgomery, of New Orleans, attorney for defendant, appellee.
   WESTERFIELD, J.

This is a suit for $180.00, the purchase price of a “Heatrola”. Defendant avers that there was a failure of warranty. From a judgment for defendant plaintiff appeals. -

The record discloses that defendant was attracted to plaintiff’s “heatrola” by a newspaper advertisement; that she communicated with plaintiff, who sent a representative to her home; that defendant explained to the representative that she desired to place the “heatrola” in her living room; that defendant was informed by the representative that it could not be placed in the living room but could be installed in the dining room; that defendant expressed apprehension concerning the probability of scorching the dining room furniture but, upon being reassured, consented to have the “heatrola” put in the dining room. A contract was entered into whereby plaintiff -supplied and installed the “heatrola”. A short while after the installation defendant’s furniture was scorched and a fire occurred in the chimney to which the “heatrola” had been attached.

It is plaintiff’s contention that the fire was caused by a defect in the chimney, for which it can not be held responsible, and, as to scorching the furniture, the heatrola had nothing to do with it. How could plaintiff know that the flue was defective, counsel asks. We answer that plaintiff could have determined whether the flue was good or bad before attaching this heater. If he could not have done so, except at prohibitive expense, he should have advised defendant, before she bought this heater, of that fact. But he can not escape responsibility, after inducing defendant to believe that the dining room chimney was suitable for use in connection with this heater. Defendant knew less about the chimney than plaintiff. She wanted the heatrola put in the living room but yielded to plaintiff’s advice to put it in the dining room, upon the assumption that the flue in the dining room was good enough. Plaintiff was under contract to install the heater. He should have satisfied himself as to conditions before undertaking this obligation. The fact that the heatrola itself functioned properly is immaterial, if it would not do so under the conditions which defendant informed plaintiff she intended to use it. If defendant had ordered a heatrola from plaintiff and instructed him to attach it to the dining room chimney, there would be some basis for plaintiff’s contention. What' defendant did was to acquaint plaintiff with her wishes, and, relying upon his assurances, contracted with him to install his heatrola in the dining room, by attaching it to the dining room chimney, which plaintiff, impliedly at least, warranted would be a proper connection. Where a vendor is informed of the particular purpose for which the vendee buys, he will be held to an implied warranty that the article sold is fit for the use intended. The doctrine of caveat emptor has never been recognized in 'Louisiana.


text:
    No. 10,804
    Orleans
    UNITED FLOUR CO. v. VITALE
    (May 9, 1927. Opinion and Decree.)
    (May 23, 1927. Rehearing Refused.)

      (Syllabus by the Court)
    1. Louisiana Digest — Sales—Par. 120, 121.
    A buyer, who agrees to purchase 100 barrels of flour “as needed within ninety days”, and furnish the seller “not less than fourteen days prior to the expiration of the contract period such specifications and instruction as will permit the seller to ship” is in default if he fails to give shipping instructions within fourteen days of the expiration of the ninety days, after having been repeatedly urged, in writing, by the seller to give the shipping instructions.
    Appeal from First City Court, Section “C”. Hon. Wm. V. Seeber, Judge.
    Action by United Flour Company against Leo or Louis Vitale.
    There was judgment for defendant and plaintiff appealed.
    Judgment reversed.
    Woodville & Woodville, of New Orleans, attorneys for plaintiff, appellant.
    J. J. Landry, of New Orleans, attorney for defendant, appellee.
   WESTERFIELD, J.

This is an appeal from a judgment maintaining an exception of no cause of action.

The petition alleges that plaintiff sold 100 barrels of flour to be delivered to defendant “as needed within ninety days”; that 35 barrels were accepted by defendant and 65 barrels remained on hand; that repeated efforts, by letters, were made to obtain shipping directions without success and that, filially, the flour was sold and the difference between the price realized and the selling price is the amount demanded here.

The argument is that the flour was sold in eighty-six days, instead of ninety, and that defendant could not be in default until the expiration of the ninety days mentioned in the contract. But the contract which is attached to the petition, contains the following clause:

“That upon the failure on the part of the buyer to furnish shipping instructions when due, or upon his failure to perform any other obligation under this contract, the seller may, upon notice to the buyer, by telegram or letter addressed to the buyer’s last known place of business, exercise the following options (a), (b) or (c).”

Option (b) authorizes the sale by plaintiff for the purpose of fixing the damages due for breach of contract as 'set forth in plaintiff’s petition.

Another clause in the contract provides that the buyer “shall furnish to the seller not less than fourteen days prior to the expiration of the contract period such specifications and instructions as will permit the seller to ship”.

The contract is dated March 31, 1926. It is alleged that plaintiff called for shipping instructions by letters dated May 20, June 1 and June 9, and June 14, and the flour, it is alleged, was not sold until June 25, no answer having been received to any of the letters.

It was clearly the duty of defendant to give plaintiff shipping instructions within fourteen days of the expiration of the contract period under the contract, and his failure to do so justified plaintiff in selling the flour.

We are of opinion that the petition states a cause of action.

The judgment appealed from is reversed and the exception of no cause of action overruled and the case remanded for further proceedings.


text:
    No. 10,869
    Orleans
    RADIO SHOPPE v. BERNARD
    (July 14, 1927. Opinion and Decree.)

      (Syllabus by the Court)

    1. Louisiana Digest — Sales—Par. 151, 152, 218.
    When the plaintiff sells to the defendant a radio on the condition that it will receive out-of-town stations, and the radio delivered fails to meet that condition, the plaintiff cannot recover judgment for the price of the radio.
    Appeal from First City Court, Division “A”. Hon. W. A. Bahns, Judge.
    Action by Radio Shoppe against Michel Bernard.
    There was judgment for defendant and plaintiff appealed.
    Judgment affirmed.
    Walmsley, Beard & O’Keefe, of New Orleans, attorneys for. plaintiff, appellant.
    B. Cunn,iffe, Wm. ¡J. O’Hara, of New Orleans, attorneys for defendant, appellee.
   WESTERFIELD, J.

This is a suit for the unpaid purchase price of a radio, known as “Radiola No. 20”. Defendant reconvenes, claiming $41.00, the cash payment. There was judgment for defendant OJi the original demand and on the reconventional demand as well.

This case can not be distinguished in principle from Diamond Music Co. vs. Arthur Lamazou, No. 10920 (not yet reported). In that case, as in this, the radio failed to get out-of-town stations. We denied recovery there, as must be done here, because plaintiff failed to meet the conditions of his agreement, and the moving consideration for the purchase of the radio.

The judgment appealed from must be affirmed.


author: WEBB, J. ODOM, J.

text:
    No. 2959
    Second Circuit
    MAY v. LOUISIANA CENTRAL LUMBER COMPANY
    (May 13, 1927. Opinion and Decree.)
    (June 28, 1927. Rehearing Refused.)

      (Syllabus by the Editor)

    1. Louisiana Digest — Master and Servant —Par. 158.
    Where an employee, using the conveyance of his employer in returning from his work to his home with the knowledge of the employees of the defendant in charge of the train, is injured while alighting from the train; the agreement of the employer to furnish the conveyance is implied from the action of the parties and the injury arose in the course and out of the employment under the Workmen’s Compensation Act No. 20 of 1914.
    2. Louisiana Digest — Master and Servant —Par. 160 (a).
    An employee who jumps from a moving train while in the course of his employment with the knowledge of and without protest from the trainmen, although grossly negligent, his act cannot be deemed equivalent to deliberate failure to use the guard furnished for his protection, within the meaning of the Workmen’s Compensation Act No. 20 of 1914.
    3. Louisiana Digest — Appeal—Par. 625; Master and Servant — Par. 160 (I).
    The trial court, having the advantage of seeing the injured employee, noting the extent of the disability, and hearing the testimony of the physicians, its judgment on matters of fact being clearly correct will be affirmed.
    (The recent amendment to Act 20 of 1914 is Act 85 of 1926. — Editor’s 'Note.)
    Appeal from the Eighth Judicial District Court of Louisiana, Parish of Caldwell. Hon. F. E. Jones, Judge.
    Action by Marvin J. May against Louisiana Central Lumber Company, et al.
    There was judgment for plaintiff and defendants appealed.
    Judgment affirmed.
    Julius T. Long, A. Leonard Allen, of —--, attorneys for plaintiff, appellee.
    Thornton, Gist & Richey, of- Alexandria, attorneys for defendants, appellant.
    Odom, J. concurs.
   WEBB, J.

This action arises under the Employers’ Liability Law (Act 20 of 1914 and amendments), and the plaintiff alleges that while in the course of his employment and in an accident arising out of his employment,’ he received injuries resulting in permanently totally disabling him to do any work of a reasonable character, and that he is entitled to receive compensation for the period of his disability not exceeding four hundred weeks, subject to a credit of two hundred and twenty-five dollars, compensation paid from the date of the accident on April 8, 1926, to September 1, 1926.

The defendant denies liability, and while admitting that compensation was paid following the accident, it alleges that the payments were made in error, induced by the false representations of the plaintiff as to the manner in which he was injured, and it alleges that plaintiff was not injured while in the course of his employment or in an accident arising out of the same, and that the accident was due solely to the failure of the plaintiff to use an adequate protection against accident provided for him and further, in the alternative, in the event that it should be held that defendant was liable, that it had paid plaintiff full compensation for the time he was disabled and in event it should be held it was not liable, or that the accident did not arise in the course of and out of the employment, defendant further prayed that it have judgment against plaintiff for the amount which had been paid.

On trial it was held that the accident had arisen in the course and out of plaintiff’s employment and had resulted in partially disabling him to do work of a reasonable character, and judgment was rendered in favor of plaintiff on that basis, less the period of time for which compensation was paid, from which defendants appeal, and plaintiff has answered the appeal, praying that the amount of the weekly payment be increased.

OPINION

The defendant, Louisiana Central Lumber Company, operates a saw mill and pulp mill, and its co-defendant, L. S. Waldrop, had contracted to cut the lumber company’s timber to be used in its mill, and plaintiff was one of the laborers employed by Waldrop to cut the timber.

The lumber company operated a railroad (we presume for the purpose of hauling the timber to' its mill) and the evidence shows that for the convenience of persons who were engaged in cutting the timber coaches or cabooses were hauled by the train in which the workmen engaged by it were permitted to ride to and from their work.

The plaintiff lived within an approximate distance of three-quarters of a mile from defendant’s railroad and an approximate distance of a mile and a half from the place where he worked, which was about three-quarters of a mile from the terminus of defendant’s road where its train stopped, and plaintiff could reach his home from his work either by walking directly to his home or by going to the point where the train stopped, and boarding the train, and thence ride for a short distance, and thence walk to his home, but whether he walked directly from his work to his home or to the railroad and by train to the nearest point to his home, the distance which he would have to walk would be approximately the same, and the evidence shows that plaintiff did not usually use the train but walked directly home from his work, but it is shown that sometimes he would take the train and that the employees of defendant in charge of the train knew that plaintiff sometimes rode on the train in going to and from his work.

On the day prior to the accident, plaintiff had left an axe at some place between the point where he usually left the train when using that route, and his home, and on the day of the accident he quit work about three o’clock in the afternoon and went to the railroad with the intention of using that route in returning home, and of getting his axe on the way from the railroad to his home, and after arriving at the railroad he' waited for an hour or two until the train was ready to start when he -boarded it, and when the train, which was running at a speed of between twelve and fifteen miles per hour reached the point where plaintiff wished to get off he attempted to alight from the moving train and in doing so he slipped or fell in such manner as to seriously injure his left arm and right foot,

He was attended by a physician in the employ of the lumber company, who reported the accident and on the report the company through an insurance agency paid plaintiff compensation for the period from April 26, 1926, the date of the accident, to August 31, 1926.

The evidence does not show with certainty why the defendant ceased making the payments although it indicates there were two reasons, in that it appears that the physician who represented the lumber company and who treated the plaintiff having advised the lumber company that plaintiff was able to resume work, and plaintiff refusing to do so he was referred to the insurance agency through whom the payments had been made which had investigated the accident and had concluded that it had not arisen in the course and out of the employment, and so informed plaintiff, but agreed to make the last payment in full settlement and it was accepted on that condition by plaintiff.

However, on September 3, 1926, plaintiff filed the present suit and at the trial on January 7, 1927, it appeared that plaintiff had not regained the full use of his arm in that he could not entirely straighten it and the radiographs taken of his foot showed a fracture of the heel which had resulted from the accident could still be detected and plaintiff testified that he was unable to do any work of a reasonable character while the physicians who testified differed in their opinions as to whether the plaintiff’s condition should or should not cause any disability.

The questions which the parties urge here are, on behalf of defendants, that the evidence shows that the accident did not arise in the course and out of the employment and that defendants are not liable, and, in the alternative, that the disability which resulted from the accident had ceased at the time of the last payment; while plaintiff, having objected to the introduction of any evidence tending to show that the accident did not arise in the course and out of the employment on the grounds that defendants were estopped by having made the payments to deny liability, also urges that the evidence shows that the accident did arise in the course and out of the employment and that the amount fixed by the trial court for the weekly payments should be increased.

While defendant alleged that compensation had been paid in error induced by the fraudulent representations of plaintiff, the evidence fails to show that plaintiff made any false representations of fact, but conceding that defendants would have the right to show that the accident did not arise out of the employment after having made payments for compensation, although such payments were not made in error, we are of the opinion that the evidence shows that the accident arose in the course and out of the employment and we do not deem it necessary to pass on the plea of estoppel.

The defendants contend that the evidence shows that plaintiff was a mere licensee on its train, and, further, that the accident resulted from plaintiff’s deliberately exposing himself to injury in attempting to leave the train while it was in motion.

Where an employee, while riding to or from his work in a conveyance under the control of and furnished by the employer as an incident of the employment is injured, it is generally held that the injury arose in the course and out of the employment. (In re: Donovan, 217 Mass. 76; 104 N. E. 431; also Bass vs. Shreveport-Eldorado Pipe Line Co. 4 La. App. 109); and we assume that it will be conceded that where there is not an express agreement that the conveyance was so furnished the agreement may be implied from the action of the parties.

In the present instance, the evidence shows that the conveyance was under the control of the employer, that it was furnished for the convenience of the employees, and although it does not appear that the use of the conveyance by the plaintiff would be of any special convenience to him under ordinary circumstances, it shows that he had used the conveyance in returning from his work to his home with the knowledge of the employees of defendant in charge of the train, and that on the occasion of the accident he was using the conveyance for the purpose of returning home, and we are of the opinion that the conveyance was furnished to plaintiff as an incident of his employment and that the mere fact it may have been just as convenient for plaintiff to have used other means of returning to his home or that the reason of the plaintiff’s using the conveyance in returning home from work on the occasion was in order to get his axe on his way from- the train to his home, does not affect the situation, and that the accident having occurred while plaintiff was on the train it may be fairly said that the accident arose in the course and out of the employment and that he was entitled to recover compensation, unless it be that by attempting to leave the train while it was in motion he forfeited his right to recover.

Defendants plead that plaintiff, in attempting to leave the train while it was in motion, had deliberately failed to use an adequate guard furnished for his protection; but this defense does not appear to be urged here, and as the evidence shows that the employees had been accustomed to leaving the train while it was in motion with the knowledge of and without protest from the trainmen, one of whom testified that he did not consider plaintiff’s action as dangerous, we do not think it could be said that the action of plaintiff, although grossly negligent, can be deemed to have been equivalent to deliberate failure to use a guard furnished for his protection, within the meaning of the statute.

As to the contention of plaintiff that the amount of the weekly payments should be increased, the evidence shows conclusively that plaintiff was only partially disabled to do work of any reasonable character, and while it does not show that plaintiff was able to earn any specific amount, the trial court had the advantage of seeing the plaintiff and noting the extent of the apparent disability with which he suffered, and under the testimony of the physicians, the weight of which shows that plaintiff will not suffer the loss of any physical function, we think the court was authorized to estimate and fix the earning capacity of plaintiff, and being of the opinion that the estimate made was not too great, we shall not disturb the judgment and it is affirmed.

ODOM, J.

I concur in the decree.

Defendant voluntarily paid plaintiff weekly compensation for nearly five months. These payments are in the nature of admissions of liability under the Act. After voluntarily making approximately twenty-five payments, defendant cannot be heard to deny liability.


author: WEBB, J.

text:
    No. 2757
    Second Circuit
    HAMMONS v. EDWARDS
    (April 8, 1927. Opinion and Decree.)
    (May 13, 1927. Rehearing Refused.)
    . (July 12, 1927. Writ of Certiorari and Review Denied by Supreme Court.)

      (Syllabus by the Editor.)

    1. Louisiana Digest — Master and Servant —Par. 160.
    Under the Workmen’s Compensation Act No. 20 of 1914 and amendments, where the deceased employee had not severed his connection with the family circle and his financial relation towards his parents were practically the same after his majority as before, contributing his support to some extent to his parents, it is sufficient to class his parents as dependents under the act.
    2. Louisiana Digest — Master and Servant —Par. 160 (j), 160 (I).
    Where an employee was struck on the head which caused him pain but did not prevent him from continuing his work during the day, five days thereafter becoming very ill, dying later from spinal meningitis, the testimony of the physicians being that the wound might have caused the disease to assert itself, the evidence indicating that further evidence might clarify the situation, case will be remanded for further trial.
    Appeal from the Eighth Judicial District Court of Louisiana, Parish. of Winn. Hon. F. E. Jones, Judge.
    Action by Columbus J. Hammons and wife against Kinman & Edwards.
    There was judgment for plaintiffs and defendants appealed.
    Judgment reversed and case remanded for further trial.
    Julius T. Long, of Shreveport; A. Leonard Allen, of Winnfield, attorneys for plaintiffs, appellees.
    T'hornton, Gist & Richey, of Alexandria, attorneys for defendants, appellants.
   WEBB, J.

Roy A. Hammons, a young man, about twenty-two years of age, while in the employ of defendants, .Kinman & Edwards, who were operating a sawmill, struck his head against a rafter and about five days thereafter he became ill and his illness reached an alarming stage on the second day when he was taken to the State Hospital at Shreveport where he died after about twelve days.

This action was brought by the parents of the deceased to recover compensation under Act 20 of 1914, the Employers’ Liability Law, and defendants appeal from a .judgment rendered against them for compensation at the rate of sixty-five per cent of the weekly wages of decedent for a period of not exceeding three hundred weeks.

It is urged that the judgment was erroneous and should be reversed on the following grounds:

First, that the evidence does not establish that the plaintiffs were dependent upon their son within the meaning of the' statute.

Second, that the evidence does not establish that death resulted from the accident.

Considering these contentions in their order.

I.

The plaintiffs own a small farm of one hundred and twenty acres, of which thirty or forty have been cleared, where they have lived for about twenty years and reared a family of six boys, all of whom were of age at the time of the death of Roy, with the exception of two, only one of whom, however, appears to be of any assistance to plaintiffs who are, respectively, fifty-seven and fifty-four years of age.

While the evidence does not show with certainty the revenues of plaintiffs, we gather that their financial circumstances while never having reached the stage where* they did not have the necessities has always been iprecarious, although they had the. assistance of their children during the years of their minority, and. that with their advancing years and their children becoming of age and leaving home, the situation has not improved.

It is shown, however, that after the majority of Roy Hammons, the deceased, he cultivated a crop on the home property and gave to his parents a larger portion ■ of the crop, and that he had also, made some contribution to one of his minor brothers and to his father, and that he had continued to reside with his parents and had contributed fifty cents a day to the family.

The deceased earned a small amount and, while the contributions made by him were small, yet it is clear that he had not severed his connection with the family circle and that his financial relations toward his parents were practically the same after his majority as before, and we think that the deceased is thus shown to have contributed to some extent to the support of plaintiffs. (Gregory vs. Standard Oil Co., 151 La. 228, 91 South. 717; Hamilton vs. Texas Company, 151 La. 692, 92 South. 301; Couthorn vs. Cypress Tank Co., 1 La. Apip. 100; Nelson vs. Henderson Iron Works, 1 La. App. 332.)

II.

Relative to the connection between the death of Roy Hammons and the accident, the evidence shows that the young man died with an infectious type of spinal meningitis, and it is contended, that the wound received from the accident was a contributing cause to the development of the disease; that is, that there was present in decedent’s body at the time of the accident germs of the disease and that the wound received had in some manner affected him so as to permit the development of the disease.

While the evidence indicates that the germ of the disease is transmitted through the air and that even though one may receive the germs of the disease that infection or multiplication of the germs does not necessarily take place, but it does not show in what manner the infection takes place qr the disease asserts itself.

The evidence shows that the decedent, while carrying a small piece of lumber, struck the right side of his head against a rafter causing a contusion about three-quarters of an inch long, and that decedent put something on the wound, and while the physicians who treated decedent all concur in the opinion that decedent had an infectious type of sipinal meningitis, there was a difference in their opinion as to whether the wound contributed to the disease or rather the probabilities of such, having been the case, but the evidence not showing in what manner the disease asserts itself or what causes the germs to multiply or remain dormant, it is difficult to determine the exact degree of difference between their opinions. •

All of the physicians, however, apparently agree that where the germ is present in the system the infection may be set up or the disease assert itself from the effect of a wound _ or blow on the head, and that thq more severe the wound the more probable that the infection could he attributed to the wound; but it is not clear from the evidence whether the infection o.r onset of the disease would follow from the general weakened physical condition or loss of vitality of the subject (which we assume would generally be in proportion tq the severity of the wound) or from the’ injury to the tissues of the head, which without the presence of the germs would or would not cause serious discomfort to the subject, dependent upon the seriousness of the wound.

However, we think that the trend of the testimony given by the physicians was that the infection might be set up following the impairment of the tissues and that the probabilities would increase with the severity and possibly the extent of impairment; but the evidence does not show any other impairment of the tissues than indicated by the contusion, and it is not claimed that the contusion indicated a serious impairment, and while the physicians called by plaintiff were inclined to the view that there must have been other impairment than indicated by the contusion, however the x-ray examinations did not show any other impairment, and the only other indication that the wound was of a more serious nature than indicated is the evidence of one of the sons of plaintiffs that decedent complained of his head continually. However, it is admitted that the accident occurred in the morning on the 9th of December and that decedent continued to work the balance of the day and through Thursday and Friday and until the mill shut down at noon on Saturday, and it is not shown that he made any complaint while at work until Saturday morning when he complained of a headache.

Conceding that the germ of the disease was present at the time of the accident (which conclusion seems to have been reached by the ¡physicians from the fact that the type of the disease was infectious and that there were not any cases of the disease in the community) and that the infection could be set up by an impairment of the tissues of the head, and considering that the impairment of the tissues is not shown to have been serious, we think that the utmost limit which could be given to the testimony of the physicians is that the wound might have caused the disease to assert itself.

We do not think that under such proof the plaintiffs are entitled to recover.

In Haddad vs. Commercial Motor Truck Co., 150 La. 327, 90 South. 666, the court said:

“In a proceeding under the Workmen’s Compensation Act to obtain compensation for the death of a servant, it is not enough to show that death was probably the result of an accident, but that such was the case must be made out to a legal certainty.”

And the opinion in Hicks vs. Meriden Lumber Co., 152 La. 975, 94 South. 903, is to the same effect.

We think that the. present case is distinguishable from Behan vs. Honor Co., 143 La. 348, 78 South. 589, and Fox vs. United Chemical Co., 147 La. 865, 86 South. 311, cited by plaintiffs, in that in those cases the injury received produced immediate disability, which was continuous, and the disease resulting from latent germs became active during the continuance of the disability, and the conclusion follows, in default of evidence to the contrary, that the accident' had contributed to the disease, or had caused the germs to become active, while in the present instance the wound did not appear serious and there was not any immediate disability and the evidence which shows that the disease might have been set up by the wound, we think, leads to a very different conclusion than if .disability had immediately followed the accident and the disease had set in during the period of disability.

The probability of the disease having been set up or contributed to by the wound to be the basis of a judgment should be such strong probability that excludes other probabilities, as in the cases cited, or the evidence should at least show that the wound was of a serious character where it appears that the only reason assigned for connecting the wound with the flare up of the disease is that wounds sustained in a certain locality or by certain tissues might cause the disease to ’’are up, the probabilities increasing with the severity of tbe wound.

The evidence indicates, however, that further evidence can be offered showing the connection between the wound and the disease or at least clarifying or explaining the testimony offered, and we think the cause should be remanded for further trial.

It is therefore ordered, adjudged and decreed that the judgment appealed from be annulled, avoided and set aside, and the case be remanded for further trial, all costs to await trial.


text:
    No. 2173
    Second Circuit
    LANCASTER AND WALLACE, RECEIVERS OF T. & P. RY. CO., v. LOYD
    (April 8, 1927. Opinion and Decree.)
    (May 13, 1927. Rehearing Refused.)
    (July 12, 1927. Writ of Certiorari and Review Denied by Supreme Court.)

      {Syllabus by the Editor.)

    1. Louisiana Digest — Obligations—Par. 99, 118, 119.
    A stipulation in a contract whereby a railroad company is granted a right-of-way in consideration of a depot being placed on the property, if the stipulation was legal, the condition was resolutory and the transferrer had a right to have the transfer annulled after the transferee failed to comply with the condition.
    2. Louisiana Digest — Obligations—Par. 135, 181.
    The burden of proof is on the transferrer in a contract containing a resolutory condition to show that the transferee failed to comply with the conditions.
    3. Louisiana Digest — Obligations—Par. 90, 135.
    Where the evidence clearly shows that a railroad complied with its contract by building a station on the property granted to it, operated its trains, stopping at the station on being flagged for a period of twenty'years, it clearly shows that the railroad, the transferee, had complied with its obligation to place and operate a station on premises in consideration of the grant of land for right of way.
    4. Louisiana Digest — Obligations—Par. 52, 71.
    Where the evidence shows that the grant- ^ ing of a railroad right-of-way was made in consideration of the placing a depot on the property and that thereafter the railroad company and the grantor joined in subdividing the .■property and selling lots, the transactions have a tendency to cause the company to deviate from its duty to the public in locating its stations and, therefore, the transaction is invalid.
    Appeal from the First Judicial District Court of Louisiana, Parish of Caddo. Hon. E. P. Mills, Judge.
    Action by J. L. Lancaster and Charles L. Wallace as Receivers of the Texas & Pacific Railway Company against Will R. Loyd.
    There was, judgment for defendant and plaintiff appealed.
    Judgment affirmed.
    Wise, Randolph, Rendall & Freyer, of Shreveport, attorneys for plaintiff, appellant.
    Foster, Hall & Smith, of Shreveport, attorneys for defendant, appellant.
   WEBB, J.

This is a petitory action in which the plaintiff, Receivers of the Texas & Pacific Railway Company, seek to obtain judgment against W. R. Loyd, recognizing them as the owners and placing them in possession of an undivided one-half interest in Lots 14, 15 and 16 of Block 15 of Hosston in the parish of Caddo.

The parties deraign their titles from a common author, J. M. Hoss, and the title exhibited by plaintiffs consists of a transfer by J. M. Hoss to the Texarkana, Shreveport and Natchez Railway Company of date December 8, 1898, recorded on the conveyance records of date March 27, 1899, and a transfer by the Texarkana, Shreveport and Natchez Railway Company to the Texas & Pacific Railway Company of date February 9, 1901, recorded on the same date, and the order of the United States court appointing plaintiffs receivers; while the title exhibited by defendant consists of a transfer from the heirs of J. M. Hoss of date April 2, 1913, recorded on June 23, 1913, and defendant called his vendors in warranty.

The transfer by J. M. Hoss to the Texarkana, Shreveport and Natchez Railway Company includes a strip of land for the right-of-way and also an undivided one-half interest in a certain tract of land which includes the property in dispute, and as to the latter tract the act of conveyance stipulates that the conveyanee is made “with the understanding that a station and depot is to be placed on said land hy said railroad company, and in the event of the failure of said company to do this within one year from this date, this land is to revert to- the vendor without any cost or payment of money by him to said railroad company”; and the defendant and warrantors attack the transfer on the grqund that the stipulation is in conflict with and against public policy and that the transfer was null and void; and, in the alternative, that the transferee had not complied with the stipulation.

The plaintiff pleaded that defendants were estopped to contest the validity of the transfer, which plea was referred to the merits; and the evidence which might tend to support the plea was offered in connection with the evidence on the merits; and the plaintiffs appeal from a judgment rejecting their demands.

OPINION

The attack made upon plaintiff’s title is twofold, one relating to the want or failure of consideration, and the other to the legality of the consideration; it being contended, as to the first, that the stipulation was a suspensive condition and that the title did not pass, and, in the alternative, that it was a resolutory condition and that plaintiff, or its ancestor in title, had not complied with the condition.

Counsel do not appear, however, to press the contention that the stipulation was a suspensive condition, and conceding the legality of the stipulation, we think that the title passed and that the stipulation, if a condition, was resolutory, and that the right of the transferrer was to have the transfer annulled if the transferee failed to comply with the condition (Gayden vs. Louisville, etc., R. R. Co., 39 La. Ann. 274 18 South. 792), and in such case the transferrer would bear the burden qf proof.

The transfer was made more than twenty years prior to the date of the suit, and while the evidence offered does not fix the exact time when the road was completed to Hosston, or when a building was erected by the company on the property where the train operated by it stopped on being flagged, and that the building was used as a depot or for the storage of freight, and it is not shown the service rendered was inadequate to conditions existing at that time; and it further appears that after the period of time as stipulated for the location of the depot, that the grantor’s representatives had joined with the grantee in subdividing the property and in making several transfers of lots in the subdivision, and we cannot say that the evidence shows that the grantee failed to comply with the stipulation, and on this point the defendants’ attack fails.

As to the legality of the stipulation, the defendants base their contention on the decisions in Heirs of Burney vs. Ludeling, 47 La. Ann. 73, in which he court said:

“A railroad company is a quasi public agent, and it is its duty independent of any agreement to secure an advantage to the corporation,* to establish its stations at points most convenient for the public interests. An agreement, therefore, by the corporation for a part of the land to establish its depots and hotels at particular points is illegal.”

And upon the opinion in Louisiana Ry. & Nav. Co. vs. Railroad Commission, 121 La. 858, 46 South. 884, where the court, with, reference to agreements by the corporation for an interest in lands in consideration qf the location of a station in the vicinity, cited People vs. Chicago, 130 Ill. 175, 22 N. E. 837, in which case it was said “that contracts binding the power to locate depots are against public policy”.

The plaintiffs contend, however, that the expression used by the court in the former case was obiter dicta, in that it appeared that the transaction considered in that case was made by and for the benefit of the directors, and that in the latter the validity of the transaction was not at issue, and it is urged that neither of the cases cited control the present case, ■ and that the weight of authority is that when the transaction is by the corporation and accrues directly to its benefit, it is not per se invalid but its validity is dependent upon whether the interest of the public has been prejudiced; citing Elliott, Vol. 2, Secs. 382 and 386; Atlanta, etc., Ry. Co. vs. Crump, 130 Ga. 1, 60 S. E. 170; also Woodstock Iron Co. vs. Richmond & Danville R. R. Co., 129 U. S. 643, 32 Law Ed. 819.

Hence plaintiffs contend that defendants were bound to show that the public interest had been prejudiced by the location of a depot at Hosston, or, if the burden of proof was on plaintiffs, that it was discharged by the evidence? which showed that the railroad company had located other stations at short distances apart in that locality.

While there is a distinction made as to the validity of transactions for the location of stations by the company, it is conceded that where the directors of the company have stipulated for the location of stations in consideration for the benefit to them individually, that the transaction is invalid per se; and while the authorities cited by plaintiffs state that the situation is different when the benefit inures directly to the company, yet it is not stated that in all cases where the benefit inures directly to the company that there is a presumption of validity.

The reason upon which such transactions, whqre the benefit accrues to the directors, is declared to be invalid is that, the law will not give its sanction to any agreement having a tendency to cause the directors to deviate from their duty to the public to have the stations located at places most convenient (Woodstock Iron Co. vs. Richmond & Danville R. R. Co., 129 U. S. 643); and while such reason would not be applicable where the benefit accrued directly to the company and the right or property acquired was necessary or convenient for the company’s use in the transaction of its business, yet where the stipulation for the location of a station is made in consideration of an interest in property, which the stipulation and thq evidence shows was not to be acquired for the purposes of the company’s business but for the purpose of being subdivided and sold, we think such transactions may be properly said to have a tendency to cause the company to deviate from its duty to the public in locating its stations, and the law will not sanction such transactions.

It is conceded there are decisions from other states in which it has been held that such a transaction as is presented here is per se invalid, and that the expression used by the court in Heirs of Burney ys. Ludeling, supra, are sufficiently comprehensive to cover the present case; and while it is possible tq distinguish the facts in that case from the present, the expression was deliberately used, and we think it is supported by reason, and that .the ruling in that case is applicable to the present.

The judgment appealed from is therefore affirmed.


author: REYNOLDS, J.

text:
    No. 2908
    Second Circuit
    WILSON v. WYATT LBR. CO.
    (June 28, 1927. Opinion and Decree.)
    (July 14, 1927. Application for Rehearing.)

      (Syllabus by the Court)

    1. Louisiana Digest — Appeal—Par. 625.
    The findings of fact of a trial court will not be disturbed unless manifestly erroneous.
    Kouebbe vs. Sheridan, 4 La. App. 571.
    Appeal from the Eleventh Judicial District Court of Louisiana, Parish of Sabine. Hon. Hal A. Burgess, Judge.
    Action by James A. Wilson against Wyatt Lumber Company.
    There was judgment for defendant and plaintiff appealed.
    Judgment affirmed.
    Boone & Boone, of Many, attorneys for plaintiff, appellant.
    Ponder & Ponder, of Many, attorneys for defendant, appellee.
   REYNOLDS, J.

This is a suit under the Workmen’s Compensation Law (Act 20 of 1914 and amendments, including Act 216 of 1924).

Plaintiff seeks to recover compensation of $9.75 a week for three hundred weeks, beginning August 24, 1924, with legal interest on each installment from its maturity until paid, less compensation already paid him up to November 15, 1925.

He alleges that on August 24, 1925, while performing services arising out of and in the course of his employment by defendant he accidentally fell across a rail on a skidway and so bruised and injured his back as to totally disable him to do. work of any reasonable character.

He alleges that he was earning $2.50 a day and that he is entitled to recover 65% of this amount during his disability not exceeding three hundred weeks.

Defendant denied liability, alleged that it had paid plaintiff compensation at the rate of $9.75 a week from the date of his injury to December 6, 1925, amounting, in all, to $146.25, and that on that date he had fully recovered from his injury and for that reason it ceased then to pay him compensation.

On these issues the case was tried and there was judgment rejecting plaintiff’s demands and dismissing his suit, and he has appealed.

OPINION

The only question for decision in this case is one of fact, namely: whether at the time defendant ceased to pay plaintiff compensation the latter had fully recovered from his injury and was again able to do work of a reasonable character.

Plaintiff testified (pages 3-18):

“Q. What is your condition now, with reference to your back, is it so that you can bend it about?
“A. No, sir; I can’t do any work that is any strain on it or pull on my back.
“Q. Can’t pick cotton?
“A. For one or two hours at a time, but not much.
¥ $ * *
“Q. Did you pull corn?
“A. Yes, sir.
“Q. Did you hoe?
“A. Yes, sir.
“Q. You say you never did go back to work for the Wyatt Lumber Company?
“A. No, sir.
“Q. Did you ask them for work?
“A. No, sir; I wasn’t able to go back to work.
“Q. You did not turn a somersault?
“A. I fell off the log; the cant hook slipped off and I fell.
“Q. And you fell back?
“A. Yes, sir.
“Q. Well, what was the first pain?
“A. In my back.
“Q. What part?
“A. Small of my back.
“Q. What did you do the next day?
“A. Tried to work at the mill.
“Q. Did you work?
“A. A little.
“Q. How long did you stay there?
“A. Until quitting time; five o’clock.
‘Q. And during that time you worked as much as you could?
“A. Yes, sir.
* * * *
“Q. And during that time you worked and had an x-ray made?
“A. Yes, sir.
* * * *
“Q. After that injury did you pass some blood?
“A. Yes, sir.
“Q. How long?
“A. About seven or eight days.
“Q. You say your urine was bloody?
“A. Not all blood, but blood stains through it.
“Q. When did that occur?
“A. After I got the injury, for about seven or eight days.
“Q. Haven’t you had any of that since seven or eight days after the injury?
“A. No.
* * * *
“Q. Did the doctor at Shreveport ex-
amine it?
“A. Yes, sir.
“Q. Do you know what his report on that was?
“A. No, sir.
“Q. Isn’t it a fact that when he examined you on October 21, 1925, he found it all right? Wasn’t it all right?
“A. I suppose it was.”
As against this testimony of the plaintiff Doctor J. E. Johnson testified
(page 21):
“Q. Did you examine his back?
“A. Yes, sir.
“Q. What did you find?
“A. Might have been slightly swollen and no discolor on It.
“Q. No bruises or discoloration?
“A. Not that I could find.
“Q. When was it that you sent him to the sanitarium where Doctor Younger was?
“A. A week or two after the 24th.
“Q. Did Doctor Younger examine his urine?
“A. Yes, sir.
“Q. What did he find?
“A. Found it normal.
“Q. Any blood or trace of blood?
“A. No, sir.
“Q. Did Doctor Younger make the examination and make an x-ray at that time?
“A. Yes, sir.
“Q. You got the picture that day. Did it show any internal injury?
“A. I didn’t see anything at all.
“Q. You saw the urine and it was normal?
“A. Yes, sir.
•“Q. It must have been some time in
September then?
“A. Last of August or first of September.
“Q. You were present when he was examined today?
“A. Yes, sir.
“Q. You find anything the matter with him?
“A. No, sir.
“Q. In your opinion of the examination of this plaintiff, did you see anything to cause him to complain?
“A. No.
“Q. Do you believe he had pain?
“A. Just feigning.
“Q. You examined him 'and you think he feigned to pain?
“A. Yes, sir.
“Q. Doctor, you examined the plaintiff today?
“A. Yes, sir.
“Q. Is his physical condition such that he can do about as much work as he ever could?
“A. I think so.
“Q. As much as he could before?
“A. Yes, sir.
“Q. Just as able as before he was hurt?
“A. Yes, sir.”
Doctor W. B. Hewitt testified (pages 35-41) :
“Q. Did he present any outward account of an old injury?
"A. No, sir.'
“Q. Apparently from the outside he is a well man?
“A. Yes, sir.
“Q. Did you make a pretty thorough examination of him this morning?
“A. Yes, -sir.
“Q. Who was with you?
“A. Doctor Perkins, Doctor Johnson and myself.
“Q. Did you find anything the matter with his kidneys or back or across his hips? ■
“A. My examination showed him absolutely normal. He complained of pain on examination but I failed to find any cause.
“Q. Your opinion is that he feigned pain?
“A. He is complaining of more pain than he has.
“Q. Did you find any swelling in your examination of the back?
“A. No evidence at all. He complained of pain on the point where you have appendicitis.
“Q.' From front or back?
“A. From the front; he complained of pain, but his expression did not indicate real pain.
“Q. From your examination as a physician, do you believe he had pain where he claimed he had it?
“A. Not anything like the amount he claimed he had; no, sir.
“Q. Well, now, do you think, as a surgeon, that from the examination you made of him, that he has any permanent injury to his back now?
“A. Not now; taking into consideration the report on the urine examination and taking into consideration the other examinations, if he was suffering from anything we certainly would find some evidence.
“Q. And you didn’t find it?
“A. No, sir.
“Q. You noticed when the doctor first pressed on his back, you noticed his facial expression at the time?
“A. I noticed him very close. Where there is pain, he is not going to hold that straight; from his expression and the muscles, I don’t believe he had the pain he complained of.
“Q. You don’t know anything about his ability to do hard work?
“A. I think the man is perfectly able to work.
“Q. To do the work he formerly did?
“A. I think so.”
By Mr. Ponder, defendant’s attorney:
“I ask to have the plaintiff’s urine examined.”

By the court:

“All right; the doctors will make the examination.”
“Q. Doctor, from your experience and the examination of the plaintiff, is he well enough now to do as much work as he ever could?
“A. I consider him able to work, yes, sir.”

.Doctor Perkins testified (pages 41-43):

“Q. Did you examine the plaintiff in this case this morning?
“A. Yes, sir.
“Q. His back and stomach?
“A. A pretty thorough examination.
“Q. Did you find anything wrong?
“A. No, sir.
“Q. Who was with you when you examined him?
“A. Dr. Hewitt and Dr. Johnson and myself.
“Q. What’s his physical condition, in your opinion, after examining him?
“A. Condition very good; he complained of pain.
“Q. Do you think there was pain there?
“A. I do not think so; I failed to find a cause for it; no. cause to produce such.
“Q. What condition did you find his back?
“A. Normal; perfect.
“Q. What the condition of the body?
“A. Normal in every respect.
* % * ❖
“Q. His present condition, is he able to do work now?
“A. Yes, sir; I would suppose he was; that’s my opinion that he was.
“Q. Since the adjournment of the court for supper, have you and the other doctors examined the urine of the plaintiff in this case?
“A. Yes, sir.
“Q. Who was present when the examination was made?
“A. Doctor Younger, Doctor Johnson, Doctor Pharis and myself.
“Q. What test did you make?
“A. For albumen and sugar.
“Q. What condition did you find it in?
“A. Normal.”

Doctor Johnson was recalled and asked if he had heard the testimony of Doctor Perkins regarding the examination of plaintiff’s urine and if he concurred in Doctor Perkins’ statement as to the result of the analysis, and he answered that he had heard Doctor Perkins’ testimony and that he concurred in his opinion of the analysis.

Doctor J. K. Pharis testified (pagea 44-46):

“Q. Doctor, since adjournment of court, only a short while ago, did you and Doctor Younger and Doctor Johnson make an examination of the urine of plaintiff?
“A. Yes, sir.
“Q. What condition did you find?
“A. Normal.
“Q. Have you examined him recently?
“A. I looked over him this morning.
“Q. What condition did you find him in?
“A. As far as I could tell, he is all right; he said he had a tender place there.
“Q. You did not find anything wrong or anything of that kind?
“A. No, sir.”

Doctor T. B. Younger testified (pages 28-46):

“Q. After taking the x-ray, state to the court whether or not it showed that plaintiff was seriously injured?
“A. Nothing abnormal in the x-ray; nothing at all; the general contour of the back was normal every way; bones in perfect relation; no slipping or sliding nor indication of crack or what not; and at that time he complained of his hip joints and I used a plate 14 by 17 inches in making the x-ray and we found them in perfect condition and in place and nothing wrong with the urine.
“Q. Was -there any trace of blood in the urine?
“A. Absolutely none.
“Q. The urine showed healthy kidneys? ■ “A. Healthy urine.
* * * *
“Q. Then when you examined his urine about two weeks after he said he received his injury, you found the urine normal?
“A. We did; four of us.
“Q. No trace of blood ’or pus or albumen?
“A. I did not.
* * * *
, “Q. Doctor, were you present when the examination of plaintiff’s urine was made?
“A. Yes, sir.
“Q. What condition was it in?
“A. Normal.”

The trial court gave credence to the testimony ^ of the five physicians and, according to their testimony, plaintiff was then as well able to do work of a reasonable character as he had ever been

.And the trial -court refused to accept the testimony of the plaintiff as to his physical condition.

We are unable to find any error in the conclusions of the district judge.

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


author: JONES, J.

text:
    No. 10,515
    Orleans
    BARDT v. CHAMPON
    (July 5, 1927. Opinion and Decree.)

      (Syllabus by the Court)

    1. Louisiana Digest — Automobiles—Par. 6a.
    Mere ownership of an automobile does not make one legally liable for the damage it causes while being operated by another, who is not an agent or employee of the owner.
    2. Louisiana Digest — Automobiles—Par. 6a. — Master and Servant — Par. 164, 166. —Mandate—Par. 80.
    To make the owner legally liable for the damage occasioned by the negligent operation of his automobile, it must be shown that, at the time of the accident, it was operated by either the owner himself, or by his ag^nt or employee, acting within the scope of the agency .or employment.
    Appeal from Civil District Court, Division “B”. Hon. M. M. Boatner, Judge.
    Action by Mrs. Frederick W. Bardt against George M. Champon.
    There was judgment for plaintiff and defendant appealed.
    Judgment amended and suit dismissed.
    Geo. Piazza, of New Orleans, attorney for plaintiff, appellee.
    Gordon Boswell, of New Orleans, attorney for defendant, appellant.
   OPINION

JONES, J.

Plaintiffs, husband and-wife, sued defendant for twenty-three thousand ($23,000.00) dollars, composed of twenty-thousand five hundred ($20,500.00) dollars for the physical injuries, pain and suffering she sustained, and twenty-five hundred ($2500.00) dollars for the “discomfort, inconvenience and mental anguish” he suffered, because she was run down on January 17th, 1924, by defendant’s automobile.

Defendant’s exception of no cause of action as to the husband’s demand was properly maintained.

See Kaufman vs. Clark, 141 La. 316, 75 South. 65.

Brinkman vs. St. Landry Cotton Oil Co., 118 La. 835, 43 South. 458.

Black vs. Carrollton R. R. Co., 10 La. Ann. 33.

Plaintiff alleges “that defendant’s automobile, at the. time of the accident, was in charge of his agent or employee, who was then and there acting under the instructions of defendant herein and within the usual scope of his employment”.

Defendant’s herein answer is a general denial supplemented as follows:

“Further answering the petition, respondent says that if petitioner, Mrs. Frederick W. Bardt, sustained any injuries at the time and place alleged in the petition, the same were not caused by nor did they result from the negligence or carelessness of respondent, his agent, employee, chauffeur, or anyone over whom respondent had or exercised any degree of control or supervision.
“Moreover, respondent is informed, and on said information avers, that on the occasion complained of his automobile was being used and operated by a person who had appropriated it to his own use, without the knowledge or consent of respondent.”

On the issues thus joined, the case was tried before Judge Boatner and a jury, who rendered a verdict of non-suit. Plaintiff’s motion for a new trial was argued, submitted and refused. Defendant has appealed suspensively from the verdict and judgment, and plaintiff has answered the appeal.

The record establishes that defendant’s only connection with the accident was his bare ownership of the automobile, which fact was admitted in his answer.

The testimony of plaintiff and her several witnesses not only failed to show that the driver was an agent or employee of defendant, but affirmatively established that there was no relationship whatever between owner and driver.

The testimony of defendant and his witness shows that the car had heen taken without defendant’s permission or knowledge.

“To hold the owner liable for the damage done by an automobile in motion, it must be shown that it was operated at the time of the damage by the owner himself, or by someone under his control, or by his employee acting within the scope of his employment and for the benefit of the owner.”

Smith vs. Rosengarten, No. 9265 Orl. App.

Glass vs. Wise & McAlpin, 155 La. 477, 99 South. 409.

“The owner is not liable for injuries done by the driving of his vehicle without his knowledge and consent.” (Atkins vs. Points, 148 La. 958, 88 South. 231.)

For above reasons, the judgment is amended and it is now ordered, adjudged and decreed that plaintiff’s suit be dismissed at her cost.


author: CLAIBORNE, J.

text:
    No. 10,920
    Orleans
    DIAMOND MUSIC CO., Appellant v. LAMAZOU
    (June 6, 1927. Opinion and Decree.)
    (June 20, 1927. Rehearing Refused.)

      (Syllabus by the Court)
    1. Louisiana Digest — Sales—Par. 151, 152, 218.
    When the plaintiff sells to the defendant a radio on the condition that it will receive out of town stations, and the radio delivered fails to meet that condition, the plaintiff cannot recover judgment for the price of the radio.
    Appeal from First City Court. Hon. Val J. Stentz, Judge.
    Action by the Diamond Music Company, Inc., against Arthur Lamazou.
    There was judgment for defendant dismissing suit as of non-suit and plaintiff appealed.
    Judgment amended dismissing suit and affirmed.
    John E. Jackson, Baldwin J. Allen, of New Orleans, attorneys for plaintiff, appellant.
    Jos. Rosenberg, of New Orleans, attorney for • defendant, appellee.
   CLAIBORNE, J.

This is a suit for the price of a radio set.

The plaintiff alleged that on May 22nd, 1925, it sold to defendant a radio set; that on November 25th, 1925, the plaintiff sued the defendant for $173, being the balance due on the purchase price; that an agreement was entered into between the plaintiff and the defendant by which plaintiff agreed to give the defendant a new machine, Lamazou agreeing to pay the balance, $173, as soon as the plaintiff carried out his portion of the contract; that in accordance with said agreement the plaintiff delivered to the defendant a new radio, but that the defendant has failed to pay the $173.

The defendant pleaded that this suit was incompatible with the first suit on the original contract, and he pleaded estoppel. He also pleaded that the radio was warranted to receive out of town stations and that, due to inherent defects, the second radio likewise failed to receive out of town ' station. For this reason the defendant tendered back the radio and prayed for judgment dismissing this suit and condemning then plaintiff to return to him the $60 paid by him on account of the first radio.

There was judgment in favor of the defendant dismissing plaintiffs’ demand as in case of non-suit.

The plaintiff has appealed. In this court the defendant has prayed “that the judgment of the lower court be amended by dismissing the suit of plaintiff at its costs and as thus amended that the same be affirmed”.

The two questions are whether the plaintiff warranted the radio to receive out of town stations, and whether the radios received them.

It was admitted upon the trial of the case that after the filing of the first suit for the price of the radio originally bought and delivered to the defendant “it was agreed that petitioner would place the radio then in defendant’s hands in condition so as to 'receive out of town stations or give defendant a new machine capable of out of town receptions; when either of these conditions had been fulfilled defendant would pay the balance of $173.00 due on his account, as his part of said agreement”.

. The testimony proves that the plaintiff delivered to the defendant a new machine on December 28th, 1925.

The price of the first machine was $230, upon which the defendant paid $57 cash.

The defendant testified that the machine worked about one week, and after that time failed to function. He is corroborated in that statement by three witnesses: Joseph S. Cazanbon, J. A. Vial and John E. Verges, the first, the superintendent of the Burke Electric Works, and a radio expert.

It is not proven that the machine did not work owing to any fault of the defendant. Clifford Antullovitch, a witness for the plaintiff, testified that both defendant’s “A and B batteries were in a rundown condition”. But there is nothing to qualify him as an expert. Cazabon, on the other hand, swears: “I made a test of the batteries and found he had new A and B batteries and they were in A-l condition.”

There is absolutely no evidence to contradict Cazabon and his three witnesses nor to explain why the machine did not work. The plaintiff made no attempt to make it work after defendant refused to pay.

We are therefore of the opinion that the plaintiff failed to fulfill the conditions of their agreement or their warranties under the law.

Diamond Music Co. vs. Lamazou, No. 10,569, Ct. App.; American Paint Wks. vs. Metairie Ridge Nursery Co., 1 La. App. 396.

The judgment is amended by dismissing plaintiff’s suit at its cost, and as thus amended that the same be affirmed.


text:
    No. 9800
    Orleans
    GUARANTY PLAN CORP. v. MECHANICS AND TRADERS, INC.
    (May 23, 1927. Opinion and Decree.)
    (June 20, 1927. Rehearing Refused.)

      (Syllabus by the Court)

    1. Louisiana Digest — Obligations—Par. 76, 78, 87.
    The true sense of the words of a contract is ascertained by the construction put upon them by the parties to the contract.
    2. Louisiana Digest — Insurance—Par. 42, 46, 79, 121.
    An insurance by a Guaranty Plan Company upon a car to protect its interest in the car, and another by the owner of the car upon the same car to protect his interest as owner do not constitute other insurance.
    3. Louisiana Digest — Insurance—Par. 84, 121.
    An insurance upon an auto to be used by the insured in his business of cleaning and dyeing is not vitiated by the insured using the auto to attend a moving picture show with his wife on a Sunday afternoon.
    4. Louisiana Digest — Insurance—Par. 135.
    The policy issued to the plaintiff covered the actual cash value of the car at the time of its loss and not the full amount of the debt due by the purchaser at the time of loss.
    Appeal from Civil District Court. Hon. E. K. Skinner, Judge.
    Action by Guaranty Plan Corporation against Mechanics and Traders Insurance Company.
    There was judgment for defendant and plaintiff appealed.
    Judgment amended and case remanded.
    Spencer, Gidiere, Phelps & Dunbar, of New Orleans, attorneys for plaintiff, appellant.
    Legier, McEnery & Waguespack, of New Orleans, attorneys for defendant, appellee.
   CLAIBORNE, J.

This is a suit on an automobile insurance policy.

Plaintiff alleged that it is in the business of financing the purchaser of automobiles; that it lends the money needed by the purchaser to pay the price of the car, and has the purchaser to sign a note to represent the amount of money loaned and to secure the payment of the note by a chattel mortgage, and then takes possession of the note; that, as a further security, it takes out an insurance against fire, and theft, and transportation; that it took out a blanket policy with the defendant which became effective on October 23rd, 1922, and was to terminate one year thereafter; that each time an automobile was financed -through the defendant the plaintiff would make a report to the defendant which would issue a certificate identified with the. blanket policy which would be governed by the blanket policy; that on November 27th, 1922, plaintiff financed the purchase of a Ford for Clarence H. Tate, for which the defendant issued its certificate No. 3173 to the amount of $360; that on May 13th, 1923, while this Ford was parked on the upper side of Canal Street, plaintiff is informed it was stolen, and notwithstanding diligent efforts was not recovered; that plaintiff notified the defendant of this loss and claimed of it the balance due on said note, being $256.10, which the defendant refused to pay.

By a supplemental petition Tate made himself a party plaintiff to this suit. Claiming $103.90 representing the difference between the amount • of the auto certificate, $360, and the equity of the plaintiff in said certificate, $256.10.

“ These petitions were followed by supplemental petitions, and by supplemental answers.

There was judgment in favor of plaintiff, the Guarantee Corporation, for $256.10, and against Tate rejecting his demand.

Defendant alone has appealed.

Upon the argument of the case in this court the defenses were limited to four, viz.:

1st. The policy contained the following provision:

“It'is warranted by the assured that all cars insured hereunder shall be equipped with a locking device of malte approved by the Underwriters Laboratories of Chicago, Illinois,” and it is admitted that the Ford assured in this case was not so provided.

The answer to this defense is that by the word “cars” was meant a “passenger car” or automobile, and not a truck. This construction is justified by the interpretation put upon the word by the defendant itself. C. C. 1948, 1956.

I. A. Dawson, secretary of the plaintiff company, testified that it financed with the defendant forty or fifty trucks not supplied with locking devices; that Mr. Carey, the defendant’s agent, told him, in discussing this clause, that a “truck” was not considered a “car”. He insured with the defendant under the open policy insurance in this case “around 600 (cars) and 75 to 150 were trucks, none of which were equipped with locks”.

C. Nungesser, special agent of the defendant, says that it is “very rarely that a truck is equipped with a locking device”; as a rule they are not equipped with locks. A car with the lock pays a lower premium than one without it. In this case the truck paid the usual premium of a car without 'a lock.

2nd. The second ground of defense is that there was a double insurance on the truck.

It is based upon the following clause of the policy:

“No recovery shall be had under this policy if at the time a loss occurs there be any other insurance covering such loss which would attach if this insurance had not been elected.”

The fact is that Tate himself, in order to protect his interest in the truck as owner effected an insurance in his own name in the Hartford Insurance Company. It was not in the name of the plaintiff, nor was it aware of Tate’s action. Tate’s action cannot destroy plaintiff’s rights. In Clifton Cannon vs. Home Ins. Co., 49 La. Ann. 1367, 22 South. 387, the court said:

“That to constitute other insurance avoiding previous policy the additional' insurance must be upon the same subject, risk, and interest, effected by the same insured or for his benefit, or with his knowledge, or consent; the interests covered by the policies must also be identical.” Williams vs. Crescent Mutual Ins. Co., 115 La. Ann. 651.

3rd. That the policy was avoided for breach of warranty as to use of truck.

Plaintiff’s application states:

(6) “Insured’s occupation or business is cleaning and dyeing.”
(10) “The uses to which the automobile described are and will be put are ‘business’.”

The testimony of Tate is that on Sunday evening of May 13th at about 3:30 he and his wife got into the truck and went to the Globe Theatre on Canal Street, between St. Charles and Camp Streets; they remained in the theatre about an hour and a half; and when they came out of the theatre the truck was gone.

We do not think that such a casual use of the truck constituted a violation of the warranty of the use to which the truck could be put. What was meant was the habitual and continual use.

Huddy on Autos, Sec. 811, note 23; 19 Cyc. 736, Sec. 9.

4th. The last contention is that the policy covers not the amount due upon the truck but only the value of the truck at the moment of its loss, and that there is no proof of that value in the record.

Upon the trial of the case the plaintiff offered in evidence Document 10 or 11, dated May 13th, 1927, being a report made by Tate to the Superintendent of Police of the loss of the truck, in which the value of the truck is stated to be $450. The report contains many other statements. It was offered merely to show that a report had been made and not to prove the other statements by which the defendant is not bound.

The policy contains the following condition:

“This company shall not be liable beyond the actual cash value of the property at the time any loss or damage occurs and shall in no event exceed what it would then cost to replace the automobile.”

Under the authority of Automobile Finance Co. vs. Globe Indemnity Co., 161 La. 303, 105 South. 545; Automobile Finance & Securities Co. vs. Globe Ind. Co., 4 La. App. 184, we must determine the liability of the defendant not upon the full amount of the debt due by the purchaser but upon the actual cash value of the truck at the time the loss occurred. Gernier vs. Springfield Fire & Marine Ins. Co., 109 La. 341, 33 South. 361.

It is therefore ordered that the judgment herein be amended by restricting the amount thereof to the actual cash value of the truck at the time its loss occurred and as thus amended that it be affirmed, and for the purpose of ascertaining' the amount of the cash value this case l/e remanded to the District Court, costs of appeal to be paid by plaintiff.

Judgment amended and case remanded.


text:
    No. 10,424
    Orleans
    PERRES v. MUNSCH AND ARNOUDIN
    (April 11, 1927. Opinion and Decree.)

      (Syllabus by the Court)
    1. Louisiana Digest — Sheriffs and Constat bles — Par. 35, 36. — Offenses and Quasi-Offenses — Par. 10.
    Where constable and his deputy in an ejection proceeding under Act 49 of 1918, without obtaining a warrant and without waiting twenty-four hours, proceed to place plaintiff’s furniture and clothes in the street, they are both liable as joint tort feasors for the illegal act.
    Appeal from the Twenty-fourth Judicial District Court, Parish of Jefferson. Hon. L. Robert Rivarde, Judge.
    Action by Mrs. Augustin Perres, widow of Lucien Agulard, against David P. Munsch and Andre Arnoudin.
    There was judgment for defendants and plaintiff appealed.
    Judgment reversed.
    A. H. Thalheim, of New Orleans, attorney for plaintiff, appellant.
    C. A. Buchler, of New Orleans, for David P. Miunsch; J. K. Gaudet, of New Orleans, for Andre, attorneys for defendants, appellees.
   JONES, J.

This suit was brought by plaintiff in forma pauperis to recover damage's against the two defendants, Munsch and Arnoudin, jointly and solidarily, in the sum of two thousand ($2000.00) dollars.

Petitioner alleges that “on the 18th day of September, 1924, between the hours of 10 o’clock A. M. and 3 o’clock P. M., the said D. P. Munsch, plaintiff ,in ejection suit, in the justice of the peace court, accompanied by Andre Arnoudin, the constable of the second justice of the peace court, entered into the leased premises of plaintiff, and, without warrant of law and against the protest of plaintiff, carried all of the furniture, clothing, household goods, cooking utensils, etc., belonging to plaintiff and to her daughter, the wife of Pierre Pertuit, who, with her husband, Pierre Pertuit, lived with plaintiff in said premises, threw same into the public street and compelled plaintiff and her daughter, Loda, wife of Pierre Pertuit, then in a noticeable pregnant state, to get out of said premises; that all of the contents of the house were destroyed by being thrown upon the open street; where they remained, and that they were valued at eight hundred twenty and 65-100 ($820.65) dollars; that she further suffered damages for her pain, suffering, humiliation, shock, medicine and physician in the sum of one thousand, one hundred seventy-nine and 35-100 ($1179.35) dollars.

Defendant, Arnoudin, answers by alleging that on September 2, 1924, he served notice to vacate on plaintiff.

That she paid no attention to notice; that on September 15, 1924, he served a rule to show cause why she should not be ejected, wherein she was ordered to show cause on September 18, 1924, at 10 A. M., why she should not remove from the premises or be forcibly ejected.

That the said rule as tried on the said date and judgment rendered thereon by •the second justice of the peace commanding Arnoudin, as constable of said court, to forcibly eject plaintiff in the event she refused to comply with the terms of said judgment; that she persisted in her refusal to relinquish possession of the premises, and she was ejected in accordance with terms of judgment.

Defendant Munch first filed an exception of no cause of action and then answered, admitting the ejection of plaintiff, hut denying illegality thereof and specially averring that he had been sworn in as a deputy constable to aid in removing the furniture and that plaintiff, who had been offered a place for the storage of her furniture, deliberately allowed it to remain in the street. Both defendants denied all indebtedness.

There was judgment for defendant and plaintiff has appealed.

The sole question before this court is the legality of the ejection and the amount of damages.

• The evidence shows that the premises occupied by the plaintiff were originally owned by William Duiriend and were sold to the defendant, David P. Munsch, some time in the latter part of July, 1924; that plaintiff had not paid the rent at the rate of five dollars per month, and on September 2, 1924, she was served with a notice by the constable to vacate the premises within ten days; that she failed to vacate the premises in accordance with the said notice, and on September 15, 1924, she was served in person with a rule to show cause why she should not be ejected from the premises occupied by her, which rule was made returnable on September 18, 1924; that a judgment was • rendered by the justice of the peace ordering the plaintiff to vacate the premises occupied by her.

Although the record contains this judgment, signed by the justice of the peace and dated September 18th, it also contains a bill of exception to the ruling of the trial judge in refusing to admit in evidence a document signed by the same official and dated the same day. This document certifies that neither party had appeared in the court at the appointed hour and that the rule had been continued indefinitely to be fixed on motion.

The constable, upon arriving at the home of plaintiff, about eleven-thirty A. M., on September 18th, proceeded to appoint Munsch as a deputy constable to assist him in executing the order of court, and swore him for that purpose.

Munsch swears he offered plaintiff the, opportunity of storing his furniture and a truck to haul it, but she refused to accept this offer and told the constable to do what he wanted with the furniture.

The evidence further shows that at the time the furniture was being removed from the house the plaintiff asked her neighbor, William Dufriend, to take care of some pictures that were in the house, which he readily agreed to do, and at the same time he offered the plaintiff the privilege to place her furniture in his garage, which was about seventy-five (75) feet away, but that she refused to accept this offer.

Mrs. “William Flux, a witness for the defendant, testified that she, two days after the ejection, offered plaintiff a place to store a part of her furniture and that the plaintiff absolutely refused to accept her offer.

The son-in-law testified that the item listed as “family clothes, $315.00,” included the clothes of himself and that of his wife, which is valued at $150.00, and also that the shotgun, valued at $22.50, and the cash, $2.00, were likewise his property. He further testified .that the item listed as kitchenware, $100.00, in fact, included the - items of aluminum ware, pots, cups and dishes that were separately itemized.

There was no evidence submitted on the allegations that the plaintiff had suffered any injury due to shock and for medicine and physician.

As a matter of .fact, the plaintiff herself testified that she did not have a physician to treat her until two weeks after the furniture had been removed, and the certificate of Dr. Gelbke, filed in the record, shows that she was treated for grippe and functional heart trouble, which latter illness the plaintiff testified she was suffering with long before the incident complained of in this case.

Plaintiff denies that she ever heard any offers of storage and avers that she can neither read nor write, and that she was told that the law had charge and she, therefore, did not disturb anything.

Pretermitting the question as to admissibility in evidence of the certificate of the justice of the peace, the record shows nowhere any writ or warrant as legal justification for the act of the constable and his deputy, Munsch, in this proceeding to execute the judgment twenty-four hours earlier than the law provides. In his argument, but not in his brief, the constable’s attorney seeks to justify the absence of this essential document by asserting that the justice of the peace was not required to keep any written records of his actions and that the constable was therefore justified in acting on his oral instructions.

But Act 49 of 1918, under which the ejectment proceeding was brought, provides in part as follows:

“If a tenant does not comply with the judgment within twenty-four hours after the rendition of said judgment, it shall be the duty of said justice or judge, who rendered the judgment, to issue forthwith his warrant directed to the constable, marshal or sheriff of his court, commanding him forthwith to deliver to the lessor full possession of the leased premises.”

In Doullut vs. Rush, 142 La. 452, 77 South. 110, Chief Justice Monroe, the organ of the Supreme Court, says, in holding that the ordinary appeal bond was insufficient under the statute, that the above quoted act provides a special remedy for a speeial case and must he strictly followed.

In the old case of Thayer vs. Littlejohn, 1st Rob. 140, it was well said by our Supreme Court:

“Where a landlord, instead of resorting to the means provided by law for obtaining possession of his premises, takes upon himself, without authority, to rcmove the property of his tenant he will be liable in damages.”

This wise and salutary doctrine has been repeatedly and consistently upheld by this court and the Supreme Court, in the following cases:

See Washington vs. Singer Sewing Machine Co., 16 C. of A. 270;

Greenlee vs. Singer Sewing Machine Co., 10 C. of A. 271;

Lalonier vs. Werlein Co., XIII C. of A. 236, 2 C. of A. 269;

Edwards vs. Ricks, 30 La. Ann. 926;

Boniel vs. Black, 44 La. Ann. 514, 10 South. 869;

Parker vs. McGlin, 52 La. Ann. 1514, 27 South. 946;

Van Wien vs. Flynn, 34 La. Ann. 1158;

Jones vs. Pereira, 13 La. Ann. 102.

The act of the constable and his deputy being clearly illegal, the plaintiff is entitled to a solidary judgment against both defendants for damages.

As the value of the furniture and clothing removed from the premises is not clearly proved and as there was no proof that plaintiff had suffered any injury from shock and as the record shows that plaintiff did not minimize her damages, we think a judgment against both defendants in solido for three hundred ($300.00) dollars will do substantial justice.

For above reasons it is now ordered, adjudged and decreed that the judgment of the trial court be reversed and that there be judgment in favor of Mrs. Augustine Perrez, widow of Lucien Agulard and against defendants, D. P. Munsch and Andrew Arnoudin, jointly and in solido, in the sum of three hundred ($300.00) dollars, with legal interest from judicial demand and costs of both courts.