author: WEBB, J.

text:
    No. 3299
    Second Circuit
    LITTLE v. CROW-EDWARDS LUMBER COMPANY
    (December 19, 1928. Opinion and Decree.)
    H. G. Fields of Farmerville, attorney for plaintiff, appellee.
    B. K. Watson, of Marion, attorney for defendant, appellant.
   WEBB, J.

Plaintiff, C. L. Little, father of Denny Little, deceased, brought this action against defendant, Crow-Edwards Lumber Company, to recover compensation under the Employers’ Liability Law (Act No. 20 of 1914 as amended) for the death of his son, which resulted from an injury received by him while in the course of and arising out of his employment with defendant.

The cause was formerly before this court (Little vs. Crow-Edwards Lumber Company, 7 La. App. 304), and under the evidence presented at that time we found that the plaintiff was partially actually dependent upon the earnings of the deceased, which, at the time of the injury, was eighteen dollars per week, but being unable to determine the amount which decedent had contributed to plaintiff’s support during the year prior to his death, which occurred on August 6, 1926, the case was remanded for a new trial, and it is again presented on an appeal taken by defendant from a judgment rendered against it in favor of plaintiff for compensation at the rate of thirty-two and one-half per cent of eighteen dollars, or five and 85-100 dollars, per week, payments to begin as of August 6, 1926, and continue for a period not exceeding three hundred weeks, with legal interest on all past due payments.

The statute provides that:

“If the employee leaves legal dependents only partially actually dependent upon his earnings for support at. the • time of the accident and death, the weekly compensation to be paid as aforesaid shall be equal to the same proportion of the weekly payments for the benefit of persons wholly dependent as the amount contributed by the employee to such partial dependents in the year prior to his death bears to the earnings of the deceased at the time of the accident.”

And that the weekly payments to be made to the father who is actually and wholly dependent upon the deceased shall be thirty-two and one-half per centum of the wages of deceased at the time of the accident and death.

In our former opinion we held the evidence established that plaintiff was only partially dependent upon the earnings of the deceased, that his weekly wage was eighteen dollars per week, and that the amount of the weekly compensation to be paid plaintiff should be determined by reference to the formula, that is, the question (weekly compensation to be paid to the partial dependent father) is to the amount which would have been received by the father had he been wholly dependent upon deceased (or S2% per cent of the weekly wages of deceased at the time of the injury as the average weekly contribution made by the deceased to plaintiff’s support during the year prior to the accident and death is to the amount of the weekly wages of deceased at the time of the accident (see Aetna Life Ins. Co. vs. Smith et al., 29 Ga. App. 628, 116 S. E. 322), and considering the evidence with reference to the factors to be used in the formula, we find that the evidence establishes that deceased was earning eighteen dollars per week, that plaintiff was only partially dependent, and that decedent had contributed to his support during the year prior to the accident the sum of two hundred fifty dollars.

There is not any complaint of the finding that the deceased was earning eighteen dollars per week at the time of the accident, and summarizing the evidence as to dependency and the extent of dependency, it shows that the plaintiff was a farmer living with his family (consisting of his wife, stepmother of deceased, and seven minor children) on a tract of one hundred sixty acres of land, which was cultivated by plaintiff and his family, from which ¡plaintiff obtained comparatively considerable revenue, but not more than enough to furnish himself and family with the bare necessities of life; that the plaintiff was not in good health, that the farm was mortgaged, that he did not own any other property, and that he received some contributions from other of his major children besides deceased, which establishes, we think, dependency (Hamilton vs. The Texas Co., 151 La. 692, 92 So. 301; Cawthorn vs. Cypress Tank Co., 1 La. App. 100; Nelson vs. Henderson I. W. & Supply Co., 1 La. App. 232; Rome vs. Mexican Petroleum Corp., 3 La. App. 523), but considering that the revenue received by the plaintiff from his farm and contributions made by his other major children was greatly in excess of the contributions made by the deceased, ¡plaintiff’s dependency upon the wages of the deceased for support was only partial (Buhner vs. Bowman, 81 Ind. App. 395, 143 N. E. 366; Ex Parte Sloss-Sheffield Steel Co., 212 Ala. 3, 101 So. 688).

The evidence as to the amount contributed by deceased to plaintiff, during the year prior to his death, is somewhat indefinite, in that the value of one of the items, the services contributed by the deceased in. assisting in the cultivation of the farm for a period of something more than three months, is not shown, but plaintiff testified that decedent had made contributions in money amounting to one hundred seventy-three dollars, and that the total amount of the contributions was twenty to twenty-five dollars, per month, and placing a minimum value on the services established in cultivating the farm, 'authorizes the total contributions to be fixed at the lowest estimate of twenty dollars per month, or two hundred forty dollars per year, or the average weekly contribution at four and 69-100 dollars.

Accepting as the factors in the formula proposed, eighteen dollars, the weekly wage received by the deceased, and 32y2 per cent of that sum as the amount which plaintiff would have been entitled to receive had he been wholly dependent upon deceased, and four and 69-100 dollars as the average weekly contribution made by the deceased to plaintiff during the year prior to the accident, the formula would be (?) 5.85 :: 4.69 : 18, and its solution would give the amount of the weekly compensation to be paid to the plaintiff as one and 52-100 dollars.

The amount which plaintiff would thus receive would be small, but it is not suggested that the provision of the statute for ascertaining the weekly compensation to be paid to those who are partially dependent is not susceptible of application, and although the formula stated does not follow the provisions of the statute in taking as one of the factors, to determine the weekly compensation to be paid, the average weekly contributions to plaintiff by decedent during the year prior to the accident, rather than the total amount of the contributions during the year, we think that a deviation is authorized, in order to give effect to the statute, as it is clear that the legislature could not have intended that the partial dependents of the deceased should receive more than those who may have been wholly dependent.

It is therefore ordered that the judgment appealed from be amended so as to fix the amount of the weekly payments to be made to the plaintiff at one and 52-100 dollars, and that as amended the judgment be affirmed; plaintiff to pay the cost of the appeal, and all other costs to be paid by defendant.


source: Caselaw Access Project

author: REYNOLDS, J.

license: Public Domain

text:
    No. 3397
    Second Circuit
    BONNETTE v. FLOURNOY
    (January 12, 1929. Opinion and Decree.)

      Bordelon and Norman, of Marksville, attorneys for plaintiff, appellee.
    J. C. Cappel, of Alexandria, attorney for defendant, appellant.
   STATEMENT OF THE CASÉ.

REYNOLDS, J.

Plaintiff, Simon Bonnette, for and on behalf of his minor daughter, Louise Bonnette, sued defendant, Dave Flournoy, for judgment for $8,000.00, for injuries received by her in an accident alleged to have been caused by defendant’s negligence.

Defendant excepted that the petition incorrectly spelled plaintiff’s name “Bonette”, whereupon, by amended petition, service of which was accepted by defendant, it was corrected to “Bonnette”, and the exception overruled.

There upon defendant answered, denying negligence and alleging that the accident and injury to plaintiff’s daughter was caused solely by negligent driving of the automobile in which she was riding by its operator.

Pendente lite plaintiff’s daughter was married, and she applied for and was granted authority by the court to be substituted as plaintiff instead of her father and to continue the prosecution of the suit.

On these issues the case was tried and there was judgment in favor of the plaintiff and against the defendant for $1500.00. and defendant appealed.

OPINION.

ON THE EXCEPTION.

Defendant insists that his exception to the petition on the ground that plaintiff’s name was incorrectly spelled should have been sustained. The incorrect spelling “Bonette” and the correct spelling “Bonnette” were idem sonans and an error that could have been corrected as it was immediately without prejudice to defendant. There was no error in overruling defendant’s exception.

ON THE RIGHT OF PLAINTIFF’S DAUGHTER, ON BECOMING MARRIED, TO BE SUBSTITUTED AS PLAINTIFF AND PROSECUTE THE SUIT.

At the time the suit was filed plaintiff’s daughter was a minor and unmarried. Pendente lite she was married: The marriage emancipated her (Civil Code, Article 379), and she at once became qualified and entitled to prosecute the suit to conclusion without the aid of her father (Turner vs. Standard Oil Co., 1 La. App. 665). On application to the court she was substituted as plaintiff instead of her father. Defendant complains of this order. We find no error in the ruling.

ON THE MERITS.

Plaintiff, Louise Bonnette, was riding in an automobile, being driven on a public highway by Louis Baillio, and approached an automobile ahead, being driven in the same- direction, by defendant Dave Flournoy.- Desiring to pass defendant, Baillio gave the usual signal and it was acknowledged by defendant who- drove his car to his right and left spaee for Baillio’s car to pass to defendant’s left. Thereupon Baillio accelerated the speed of-his car and when it was about to pass defendant’s car defendant swerved his car t'o the left, for’ the purpose of entering a private road on the left and leading from the public ' road, thereby putting it immediately in front of Baillio’s car and rendering collision between the two cars unavoidable if Baillio’s car continued to move straight forward. Thereupon Baillio, in order to avoid a collision, was constrained to drive his car off of the road and into the side ditch and thereby plaintiff Louise Bonnette was seriously injured. When defendant turned his car to the left and attempted to drive into the private road he did so unexpectedly to Baillio and without any warning of his purpose.

We think this act on the part of defendant was negligence and the proximate cause of the accident and ■ injury. Our learned brother of the District Court also so thought and held and his conclusion was correct.

Our learned brother of the District Court after carefully considering the amount and value of the medical expense plaintiff was put to in consequence of her injuries and the amount of pain and suffering she endured and the fact that by reason of an injury to the ankle of her left foot she will limp permanently awarded her $1500.00 damages. The authorities cited by him in support of the award convince us that the amount is not inconsistent with the awards in similar cases.

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


author: ODOM, J.

text:
    No. 3050
    Second Circuit
    LYONS v. FORD
    (November 8, 1928. Opinion and Decree.)

      M. T. Monsour, of Shreveport, counsel for plaintiff, appellee.
    Harry V. Booth, of Shreveport, counsel for defendant, appellant.
   ON REHEARING.

ODOM, J.

The plaintiff brought suit in the City Court of the City of Shreveport to recover of the defendant the sum of $129.65 for alleged damage to his automobile, caused by a collision between his car and that of defendant’s, which was being operated by an agent and employee of the defendant’s, plaintiff alleging that the damage to his automobile was due solely to the negligence and fault of the driver of defendant’s car.

The defendant, while duly and legally cited, made no appearance in the City Court, and judgment was rendered against him by default, as prayed for, the judgment containing the usual recital, “and the law and evidence being in favor thereof.”

Subsequent to the rendition of this judgment, the defendant appeared in the City Court through counsel and asked for an appeal devolutive and suspensive to this Court, which was granted and perfected. The record does not contain a note of the evidence adduced on the trial nor a statement of the facts by the trial judge.

Counsel for plaintiff, appellee, filed in this Court a motion to dismiss the appeal on the above ground.

It is well settled that where the record contains no note of the evidence and no statement of the facts by the trial judge, the appeal must be dismissed. See La. Digest, Vol. 1, page 487, Section 430.

When the case was called in this Court originally, the Court received the impression that it was agreed between counsel for plaintiff and counsel for defendant that it be remanded to the lower court for the purpose of completing the record, and we, therefore, ordered the ease remanded in accordance with what we understood to be the said agreement. On application for rehearing, counsel for plaintiff, appellee, stated that the Court was in error in its statement that ■ it was agreed that the case should be remanded, and, as there was no written stipulation in the record to that effect, the Court granted the rehearing asked for in order to hear counsel on both sides on that point.

Counsel for plaintiff, appellee, reiterated that there was no such agreement. Counsel for defendant, appellant, has made no appearance in this Court by brief or otherwise and we now assume that we were probably mistaken as "to there being such an agreement to remand.

There being no statement of the facts by the trial judge and no note of evidence attached to the record, there are no means by which this Court may determine the correctness of the judgment rendered, and, counsel for plaintiff, appellee, insisting upon their motion to dismiss the appeal, the same is accordingly dismissed.

Counsel for plaintiff, appellee, asked that the defendant be taxed ten (10) per centum for frivolous appeal, but we have no disposition to do so, under the circumstances in this case.


text:
    No. 3055
    Second Circuit
    GENERAL MOTORS ACCEPTANCE CORP. v. SNEED ET AL. GENERAL MOTORS ACCEPTANCE CORP. v. RICHARDS ET AL. GENERAL MOTORS ACCEPTANCE CORP. v. DOTY ET AL. GENERAL MOTORS ACCEPTANCE CORP. v. LESTER ET AL. GENERAL MOTORS ACCEPTANCE CORP. v. WILLIAMSON ET AL. GENERAL MOTORS ACCEPTANCE CORP. v. WASHINGTON ET AL. GENERAL MOTORS ACCEPTANCE CORP. v. PETERSON ET AL. GENERAL MOTORS ACCEPTANCE CORP. v. GOODWIN ET AL. GENERAL MOTORS ACCEPTANCE CORP. v. ALBRIGHT ET AL.
    No. 3166-A
    No. 3166-B
    No. 3166-C
    No. 3166-D
    No. 3166-E
    No. 3166-F
    No. 3166-G
    No. 3166-H
    (March 14, 1928. Opinion and Decree.)
    (June 28, 1928. Rehearing Refused.)
    (January 29, 1929. Judgment of Court of Appeal amended by Supreme Court.)
    L. K. Watkins, of Minden, attorney for plaintiff, appellant.
    L. K. Watkins and A. S. Drew, of Min-den, attorneys for defendants, appellees.
   STATEMENT OF THE CASE.

REYNOLDS, J.

In each of these nine cases plaintiff, General Motors Acceptance Corporation, seeks judgment against defendant J. L. Longino and his co-defendants, in solido, on a promissory note, and for the foreclosure of a -mortgage on an automobile, given by one of them in each case, to secure the payment of the note, and, on making affidavit and giving bond in each case, as required by law, it obtained the issuance in each case of a writ of sequestration for the mortgaged automobile and a writ of attachment against the property of the defendant J. L. Longino.

Under the writs of sequestration, the sheriff seized the automobile in each case, and under the writs of attachment, he seized, in each case, all of the property of the defendant J. L. Longino.

In each case, all of the defendants answered, denying liability, and denying the existence of the ground's alleged by plaintiff to procure the issuance of the writs, and moved to dissolve the writs of sequestration as having been improvidently issued, and defendant J. L. Longino moved to dissolve the writs of attachment as having been illegally issued and reconvened against plaintiff .for damages in the sum of $65,000.00, as for illegal attachment, itemized as follows: humiliation, mortification and loss of social standing, $20,-000.00; injury to credit and financial standing, $10,000.00; loss of use of money while under seizure, $10,000.00; loss of anticipated profits on farming operations for the year, 1927 by reason of land, work-stock and farming implements being seized, $5,000.00; •loss of profit on a sale of land in course being closed and prevented by seizure of the land, $5,000.00; and fees of attorneys employed to procure the dissolution of the writs, $1,500.00.

For the purposes of trial of the motions to dissolve the writs, all nine cases were consolidated, and a trial was had and judgment rendered overruling the motion to dissolve the writs of sequestration and sustaining them, and dissolving the writs of attachment and awarding defendant,. J. L. Longino, judgment against plaintiff, General Motors Acceptance Corporation, on his re-conventional demand, in the sum of $1,-500.00, as for illegal attachment,'the damages being itemized as follows: for humiliation, mortification and loss of social standing, $100.00; for injury to credit and financial standing, $500.00; for loss of profits on ‘farming operations for the year 1927, $250.00; for loss of profits on sale of land, $250.00; and for attorney’s fees, $400.00.

. Plaintiff,-General Motors Acceptance Corporation, appealed, and defendant J. L. Longino has answered the appeal, praying that the judgment appealed from be amended by dissolving the writs of sequestration and increasing the damages awarded him to $65,000:00.

■ OPINION.

Defendant, J. L. Longino, based his motions to dissolve the writs of attachment on five grounds, namely:

1. That the writs issued prematurely.

2. That the affidavits and bonds were insufficient.

3. That the debts sued on were- not certain or definitely fixed.

4. That the debts sued on had been extinguished by confusion, or, in the alternative, they were secured by mortgage.

5. That the allegations of plaintiff’s petitions to procure the issuance of ' the writs were false and untrue.

It will not be necessary for us to consider the first four grounds as we find the fifth ground amply sustained by the evidence.

The learned judge ad hoc in the trial court rendered a carefully prepared- and well considered written opinion, holding that there existed “no basis for the issuance of the writs of attachment”, and after carefully reading the records' we have reached the same conclusion.

On October 6, 1926, judgment was rendered against defendant, J. L. Longino, and in favor of his mother, Mrs. C. W. Longino, on his confession, in the sum of $10,000.00, with 8% per annum interest thereon from September 1, 1926, until paid, and 10% additional, on the amount of principal and interest, as attorney’s fees.

; This act of defendant, J. -L. Longino, is principally relied on by plaintiff as justifying the issuance of the writs of attachment. It does not justify them. The suits were not instituted by plaintiff until February 26, 1927, almost five months after the date of the judgment by confession. The act complained of happened too long before the writs were issued to support them.

“What a person did five months ago is not an index of what he is now • about to do; therefore a paper title from a husband to his wife of a portion of his real estate recorded practically five months before the issuance of the writ of attachment does not furnish ground for issuance of the writ, for the reason that it is too remote to show a present intention * * * An attachment must be based on what a person . has presently actually done or is presently about to do.”

Bird vs. Dawkins, 6 La. App. 244.

Another act of defendant, J. L. Longino, relied on by plaintiff as justifying.the issuance of the writs of attachment, is a conversation had by him with plaintiff’s counsel wherein he is said to have declared that his check for as little as $5.00 would not be cashed by the bank, and that if plaintiff sued him he would file a petition in bankruptcy. »

Insolvency of a debtor is not ground for attachment; neither would the filing by him of a petition in bankruptcy be ground for attachment.

The evidence satisfies us that the defendant, J. L. Longino, was honestly endeavoring to pay his debts and not seeking to defraud his creditors, and we think he would have succeeded in paying his debts had it not been for the harsh writ of attachment, harshly applied in this case, though without malice.

The trial court sustained the issuance of the writs of sequestration on the authority of the case of Ralston vs. British A. & M. Co., 38 Ann. 593, but it is not an authority here. There the court refused to dissolve the writ because the property did not belong to the mover but to her husband and therefore she was without interest to sustain the motion to dissolve. Here, the property sequestered was in the possession of the plaintiff and defendants were not about to mortgage, part with, conceal or dispose of the automobiles and they were without power to do so had they so desired. The other defendants have not appealed from the judgment refusing to dissolve the writs of sequestration nor have they answered the plaintiff’s appeal but defendant J. L. Longino has answered the plaintiff’s appeal and asked that the writs be dissolved and as he was made a party defendant to the writs he is entitled to have them dissolved insofar as he is concerned at plaintiff’s cost.

This brings us to the question of the amount of damages awarded on dissolution of the writs.

The allowance of $100.00 for humiliation, mortification and injury to social standing, is justified by the cases of Byrne vs. Gardner, 33 La. Ann. 6, and Hathaway vs. Winn, 4 La. App. 588. The amount allowed on this score seems to us small, but the authorities hold that-much deference should be shown to the judgment of the trial court in such matters, and we shall not disturb this item of award.

The court allowed $500.00 for injury to credit and financial standing, $250.00 for loss of profits on farming operations, and $250.00 for loss of profits on the sale of land. The trial court carefully analyzed the evidence as to each of these items and so have we, and we find no sufficient reason for altering his award.

The remaining item of damage claimed is attorney’s fees. The claim is for $1500.00 for services rendered in obtaining the dissolution of the writs in the nine cases. Several attorneys rendered services to defendant J. L. Longino in that connection. We think the award of $400.00 insufficient.

W. D. Stewart, a practicing attorney at the Minden bar, testified that a fee of from $100.00 to $150.00 in each of the nine cases would be just. Mr. Stewart was plaintiff’s witness, and defendant is probably entitled to the lowest estimate fixed by him as a reasonable attorney’s fee.

For the reasons assigned, it is therefore ordered, adjudged and decreed that the judgment appealed from be amended, and that the writs of sequestration in all nine cases be dissolved, quo ad defendant J. L. Longino, and that the allowance for attorney’s fees be increased from four hundred dollars to nine hundred dollars, and that as thus amended the judgment appealed from be affirmed.


text:
    No. 3182
    Second Circuit
    LONE STAR GAS CO. v. WINNFIELD BOTTLING WORKS
    (January 21, 1929. Opinion and Decree.)
    John J. Peters, Jr., of Winnfield, attorney for plaintiff, appellee.
    Dickson and Denny, of Shreveport, attorneys for defendant, appellant.
   WEBB, J.

This is an action on open account for merchandise alleged to have been sold by plaintiff to defendant, and on trial judgment was rendered in favor of plaintiff for the amount claimed, less a portion of the account, which the evidence established was due at the time defendant had been adjudged a bankrupt, in which proceeding he had received a final discharge and less certain charges for merchandise which the evidence tended to show had been delivered to an employee of defendant, and defendant alone appeals from the judgment.

The defendant pleaded the discharge in bankruptcy, and denied any other indebtedness, alleging that he did not owe anything to plaintiff, having paid all that he owed, and it is urged that the evidence does not show that the items of the account were proven, and that the court must have considered that defendant had pleaded payment and accepted same as an admission of the correctness of the charges made.

The judgment does not show that the court considered that plaintiff had pleaded payment or that he had by his pleadings admitted that the debt once existed, which is the usual effect given to a plea of payment (Durnford vs. Ayme, 3 M. (N. S.) 270; Jones vs. Bishop, 12 La. Ann. 397; Gails vs. Schooner Osceola, 14 La. Ann. 54; Reiners vs. St. Ceran, 23 La. Ann. 384; Landry vs. Delas, 25 La. Ann. 181); however, defendant offered evidence to show payment, and as such evidence was not admissible under the general denial (Gleises vs. Faurie, 6 La. Ann. 455; Landry vs. Baugnon, 17 La. Ann. 84, 36 Am. Dec. 606; Byrne vs. Bank, 31 La. Ann. 81; Woods vs. Heirs of Nicholls, 33 La. Ann. 744), it must be that the parties assumed defendant had pleaded payment, but if not, the evidence having established that the charges had been made from original sales slips, and that defendant had not denied the correctness of the account, his ineffectual attempt to show payment relieved plaintiff of the necessity of showing that each item charged had been delivered, and the bookkeeper of plaintiff having testified that defendant admitted the correctness of the account, the evidence was sufficient to warrant the judgment (Horton vs. Haralson, 130 La. 100, 57 So. 643), and it is affirmed.


text:
    No. 3197
    Second Circuit
    HENDERSON v. THE LOUISIANA POWER CO.
    (June 28, 1928. Opinion and Decree.)
    (November 8, 1928. Rehearing Refused.)
    (November 26, 1928. Judgment affirmed by Supreme Court.)
    George Wesley Smith, of Rayville, attorney for plaintiffs, appellants.
    Theus, Grisham and Davis, of Monroe, attorneys for defendant, appellee.
   WEBB, J.

Samuel Henderson, while employed by the Louisiana Power Company, sustained an injury on Friday morning, May 29, 1925, in an accident arising in the course and out of his employment, and after the wound had been treated he went to his home, and in the afternoon, about eight hours after the "injury, he developed fever, which continued until his death, on Wednesday, June 3, 1925.

The parents of deceased instituted this action to recover compensation for. the death of their son, under the Employers’ Liability Law (Act No. 20 of 1914), it being alleged that his death resulted from the injury, and were met by the defense that their son had died with a disease, pneumonia, and that the injury had not caused or contributed to his death; and plaintiffs appeal from a judgment rejecting their demands.

The evidence established that while decedent was engaged in clearing a right of way, a tree fell upon the handle of an axe (which weighed about four pounds) which was lying on the ground, causing the axe to be .thrown upward, the blade striking decedent on the forehead, above the right eye, penetrating the skin and almost through the outer table of the skull; that decedent was shocked, and staggered from the blow, but was caught by one of his fellow workmen, and after the blood from the wound had been suppressed he was placed in an automobile, where he rode on. the front seat with the driver, and was carried to a physician by whom the wound was treated, and from thence he was carried to his home, where he was confined until his death, as above stated".

The evidence shows that decedent was a strong, vigorous young man, and had been going about the laborious work in which he was engaged without any complaint, and, as stated, he was disabled by the blow received and had to quit work and go to his home, and in a short time, a few hours thereafter, he became seriously ill, which continued until his death.

The parties concede that deceased had pneumonia • at the time of his death and that the disease, pneumonia, had progressed to such stage as to cause death, although the physicians called by plaintiffs were of the opinion there were other complications, as that the blow had caused an injury from which inflammation had set in, or that the wound had become infected and caused inflammation or traumatic meningitis; but the evidence shows that the wound was not infected, and the majority of the experts called were of the opinion that the. blow had not caused inflammation to set in or traumatic meningitis. One of them, Dr. Gessner, being advised of the character of the wound and requested to give his opinion as to whether or not it could have caused inflammation to set in, said:

“It would not. The danger in such an injury — I mean an injury of that sort from an axe — would be the danger of going entirely • through the cranium bone and causing meningitis. As the axe did not go through into the cranial cavity, this danger was not present.”

And in so far as the expert testimony went we think it established that pneumonia had caused death, and there were not any other complications; however, all of the physicians agreed the fever which developed in the afternoon following the injury, was the result of the blow, and the evidence establishes that the illness continued until death, and considering this fact with the facts first above stated, the presumption is that the injury caused the illness or aroused the disease resulting in death, and defendant is liable: (Behan vs. John B. Honor Co., 143 La. 348, 78 So. 589, L. R. A. 1918F, 862; Fox vs. Chemical Co., 147 La. 865, 86 So. 311; Johnson vs. Vernon Parish Lumber Co., 151 La. 664, 92 So. 219; Donahoe vs. Scharfenstein, 154 La. 815, 98 So. 256).

Had deceased recovered, it would hardly have been contended that defendant was not liable for the disability, although it may-have been prolonged by the disease, pneumonia, as the compensation cases, where the injury results in disability which is continuous, the law does not attempt to distinguish between that caused by the injury and that which may be more particularly attributed to disease (Caldwell vs. City of Shreveport, 150 La. 465, 90 So. 763), and while there may be some distinction drawn between cases where the claim is for disability and where the claim is for death as the result of the injury, we are of the opinion that the evidence establishes that the disease which was developed during the period of disability and illness ' therefrom could not have been aroused or contributed to by the injury or illness naturally resulting therefrom, and that the evidence in the present case does not establish such facts.

The decedent was receiving a wage of two and 50-100 dollars per day, or fifteen dollars per week, and plaintiffs are entitled under the statute to receive sixty-five per cent of that amount for a period not to exceed three hundred weeks, and it is therefore ordered that the judgment appealed from be reversed and avoided and that plaintiffs, Ollie Henderson and Nancy Henderson have and recover judgment against defendant Louisiana Power Company for compensation at the rate of nine and 75-100 dollars per week for a (period of not exceeding three hundred weeks, payments beginning on the 10th day of November, 1925, and weekly thereafter, each payment bearing legal interest from the date of maturity, and all costs of suit.


text:
    No. 3205
    Second Circuit
    MILLER v. MO. PAC. R. R. CO. ET AL.
    (November 8, 1928. Opinion and Decree.)
    (November 24, 1928. Rehearing Refused.)
    (January 28, 1929. Writ of Certiorari and Review Refused by Supreme Court.)
    Overton & Hunter, of Alexandria, attorneys for plaintiff, appellee.
    Henry Bernstein, of Monroe, Hawthorn & Stafford, of Alexandria, Hudson, Potts, Bernstein & Sholars, of Monroe, and Peter-man, Dear and Peterman, of Alexandria, and Spencer, Gidiere, Phelps and Dunbar, of New Orleans, attorneys for defendants, appellants.
   ODOM, J.

The plaintiff in this suit asks judgment for $35,000.00 against the Missouri Pacific Railroad Company and the Texas & Pacific Railway Company in solido for personal injuries which he received while at work as Engine Foreman for the Texas & Pacific Railway Company on March 22, 1925.

He alleges that while at work in charge of a switch engine belonging to the Texas & Pacific Railway Company, in the switch yards at Alexandria, Louisiana, he was struck and run over by a Missouri Pacific switch engine and seriously and permanently injured; and that he himself was guilty of no fault or negligence, but that the accident and injury were brought on solely through the fault and negligence of the defendant railroad .companies.

The switch yards at Alexandria, where the accident occurred, are owned, it seems, by the Texas & Pacific Company, but, under an arrangement between the two companies, they were used and operated jointly and, it is conceded, that if there is liability on the part of either company, they are both liable. It is agreed that as both roads were engaged in interstate commerce at the time of the accident, the provisions of the Federal Employers’ Liability Act (45 U. S. C. A., Pars. 51-59) are applicable.

In addition to the main line of the Texas & Pacific Railway Company, which runs through the yards a.t Alexandria, there are numerous switch tracks and among them one known as “Texas & Pacific No. 2”, which runs parallel with the main line and, approximately ten feet from it. On the morning of the accident, plaintiff was ordered by the' Yard Foreman to switch three cars from the main line to a switch track called “Short No. 1”, which branches off from the main line at a point about 400 feet south of the south edge of Murray Street and on the opposite side from “T. & P. No. 2.” Plaintiff picked up the three cars, which he was ordered to switch over to “Short No. 1,” in the yards north of Murray Street, which crosses the main line and switch track at right angles, and proceeded south across Murray Street on the main line, riding on the front end of the engine. At the same time, the switch engine belonging to the Missouri Pacific was following in the same direction on “T. & P. No. 2”. At some point, the exact location of which is in dispute, between Murray Street and where “Short No. 1” branches off from the main line, plaintiff stepped from his engine, which was running about eight miles per hour, to the ground in the space between the main line, on which his engine was running, and “T. & P. No. 2,” on which the Missouri Pacific engine was running. When he stepped to the ground, he stumbled ‘ and fell over towards “T. & P. No. 2” track and was hit by the end of the pilot beam of the Missouri Pacific engine, knocked over on the track in front of the engine and was run over.

Plaintiff alleged and testified that he was caused to stumble by the presence of loose, washed gravel on the surface of the pathway between the two tracks, which gravel had been negligently allowed to accumulate in said spaces by the defendant companies.

Counsel for plaintiff in brief says:

“The main, if not the only, issue in-i olved is whether or not defendants were guilty of any actionable negligence in the cperation of the Missouri Pacific engipe and in allowing the gravel to accumulate at the point where Miller alighted from his engine.”

It will thus be seen that, according to the view of plaintiff’s counsel, this case hinges on the question of negligence. Accepting plaintiff’s theory of the case, we shall consider it from that standpoint.

It is needless to recount all the points of negligence which plaintiff in his petition charged against these defendants, as all of them have either been abandoned or not pressed before this Court, except two, which are as follows:

First: that the defendant companies were negligent in allowing loose gravel to accumulate between the tracks and in the paths where workmen alighted from moving engines and cars in the switch yards; and

Second: that the defendant, Missouri Pacific Railroad Company, was negligent in running its engine at an excessive rate of speed, and that the members of its crew were careless — paying no attention to their duties.

In addition to these points of negligence charged against the defendant companies, plaintiff invokes the last clear chance doctrine, contending that, if the crew in charge of the Missouri Pacific engine had been keeping the proper lookout ahead and had used proper precautions otherwise, they could and would have seen plaintiff in peril on the track and could have stopped the engine in time to avert the accident.

The defense of the defendant companies is, mainly, that they were guilty of no negligence whatever, either in respect to the loose gravel or the operation of the Missouri Pacific engine. They also set up the defense of assumed risk, the Missouri Pacific especially denying that it had the last clear chance to avoid the accident.

The first point of negligence upon which plaintiff relies is that the defendant companies had permitted loose gravel to acmulate in the space between the two tracks to such an extent that its presence constituted a hazard to those in charge of switching operations in the yards, it being customary for the men to jump on and off moving engines and cars, the theory being that the presence of gravel on the surface of the ground rendered one’s foothold thereon less secure.

The facts are that the defendant companies had used loose, washed gravel to ballast the tracks, both main line and switch tracks in the yards. The tracks are slightly elevated above the surface of the ground so that the footpath, or space between them, is lower than the shoulders of the track. The gravel was piled up on the shoulders of said tracks and probably between the rails. It was not intended •that any should remain in the space between the tracks, but some of it found its way there, in the ordinary and usual use of the yards by the employees. Counsel for plaintiff correctly state in brief that' “the gravel where Miller alighted was loose gravel which had been knocked off the shoulders of the tracks into the path and had not been cleaned up.”

In the switch yards, where plaintiff was hurt, those who did the switching were constantly jumping on and off moving engines and cars, and, in doing so, stepped on the loose gravel and kicked or knocked some of it from the shoulders of the track down into the footpath. The gravel, which plaintiff says was in the footpath and which is claimed to have constituted a hazard, and which plaintiff says caused him to stumble and fall, was not dumped into the pathway and allowed to remain. It was scattered over the pathway as a mere incident to the ordinary use of the yards by the employees. It is not charged er contended that it was negligence on the part of the defendants to ballast the tracks with loose gravel. The particular charge of negligence is that defendants allowed this gravel to accumulate and remain in the footpath. .

We are not convinced that the loose gravel on the surface of the ground where plaintiff alighted from his moving engine was necessarily a hazard. It is no doubt true, however, that if the surface of the ground was covered to any considerable depth with loose gravel, one’s foothold on the ground, when stepping from a moving train, would be rendered less secure. But we are not convinced that there was enough gravel on the surface where Miller fell to make any material difference. Miller testified that the ground was covered to “a depth of five or six inches,” and his testimony on that point is corroborated by two of his witnesses. But the two witnesses had no personal knowledge of the place where Miller alighted from his engine and was hurt. They were taken to the scene by Miller, after he had partially recovered, and were shown the place by him. At the point where Miller says he got off his engine, the ground was covered with gravel to a considerable depth, as he and his witnesses say it was. But we are not convinced that Miller was hurt at that place. He says he stepped off his engine at the “cross-over” track, between the main line and “T. & P. No. 2,” at a point about 100 feet from the south edge of Murray Street. At that point, there was an abundance of loose gravel on the ground which had been intentionally placed there and allowed to remain. Farther on south, there was no gravel placed between the tracks, and all that was found there was such as had been kicked or knocked off the shoulders of the track. Our conclusion is that Miller did not step off his engine at the place designated by him, but at a point considerably farther south, as will be discussed later.

Without going into detail, our conclusion, from a reading of all the testimony, is that the plaintiff stepped from his engine and was hit by the Missouri Pacific switch engine at a place where there was very little gravel on the ground- — not enough to constitute a hazard for the employees. It may be said in this connection that no one had ever considered that such gravel as was knocked off the shoulders of the tracks down into the footpath made it dangerous for the employees to step off moving engines and cars. The plaintiff, as well as other employees who had worked in these yards for years, who saw the gravel there every day and knew the conditions perfectly, had continued the practice of jumping on and off moving engines and had apparently paid no attention to the gravel— at least they registered no complaint. The condition of the yards at the time Miller was hurt was not unusual. It was in the same condition that it had been ever since the gravel was first used.

We do not think it was shown that the defendant companies were negligent in permitting gravel to accumulate in these pathways. The testimony shows that the companies maintained a yard crew whose duty it was to go over the yards daily and clean them of rubbish and to throw the gravel from the spaces between the tracks back on the shoulders, and this duty was punctually performed. It can hardly be said that it was the duty of the companies to have someone go through the yards at every hour during the day and pick up the loose gravel from these pathways, as it was thrown there by the employees who used the yards; in view of the fact that the presence of a small amount of gravel itself does not constitute a hazard like the presence of cobblestones, clinkers or old cross ties. In view of all the circumstances, our conclusion is that the defendant companies used due care in providing their employees a reasonably safe place to work, and that was all they were required to do.

Counsel for plaintiff have cited several cases from other jurisdictions in support of their contention that it was negligence for these defendants to allow gravel to be on their yards. But a reading of the cited cases will disclose that the distinction between them and the case at bar is marked and manifest. As already stated, the plaintiff in the case at bar was thoroughly familiar with conditions in the yards. He knew that the gravel was there, he helped put it there and saw it there every day, according to his own testimony. If it be said that the presence of the gravel was a hazard, it must be admitted that it was not an unusual hazard.

In Fish vs. Illinois Central Railroad Company, 96 Iowa 702, 65 N. W. 995, cited by counsel for plaintiff, the negligence relied upon was that the defendant company permitted cobblestones “to accumulate and remain on the tracks in the yards.” The deceased stumbled over one in the middle of the night and was killed. The condition of the yard was generally good and the presence of the stones an exception and he would, not be presumed to know as he came into the yard in the dark of the night that stones had fallen in any particular place.

In the case of Renn vs. Seaboard Airline Railway, 170 N. C. 128, 86 S. E. 964, the plaintiff slipped and fell on ice formed by an overflow from a water tank and which was covered with snow. The particular act of negligence was alleged to be “that defendant negligently permitted and allowed the said ice to be and remain on the ground * * * and become covered and hidden by snow.” The testimony showed that the pumper was negligent in allowing the pump to continue to run and overflow and that the ice formed from the waste water. The ice was permitted to remain and was covered with snow so that the plaintiff could not see it. The defense of assumption of risk was involved and the Court said:

“If the evidence of plaintiff was true, the condition of the place where the plaintiff was injured was not normal, but was unusual, and the plaintiff could not discover it by the exercise of ordinary care.”

In the case of So. Ry. Co. vs. Puckett, 16 Ga. App. 551, 85, S. E. 809, the plaintiff stumbled over three large clinkers in the yards, and the particular acts of negligence charged against the defendant were: first, that three large clinkers were on the roadbed; second, that two old cross ties overgrown with grass were lying alongside and near the track; and third, that grass had grown upon the roadbed. The injured employee stumbled over the clinkers, which started him falling, and, in stumbling, he struck his foot against the two old cross ties overgrown with grass, which were on the roadbed near the track. In that case, the Court said it was for the jury to determine whether the injury was caused by the clinkers or the cross ties and the grass which overgrew them.

In the case of Lee vs. Central Railroad, 86 Ga. 231, 12 S. E. 307, the Supreme Court of Georgia held “that the presence of one large dinker of unusual size upon which the brakeman stumbled and was hurt as he stepped from a moving engine in the yards, will not render the company liable for the injury which the brakeman sustained.”

In the So. Ry. vs. Puckett case, supra, the Court, in discussing the Lee case, said: “We are not disposed to extend the ruling of the Lee case, supra, so as to hold that as a matter of law the presence of - three or more large clinkers near the track in a railroad yard is not negligence on the part of the railroad company,” and expressed the view that it was for the jufy to determine that question. But there were other questions 'of negligence involved in the Puckett case, for the Court said: “We think also it was for the jury to say whether or not the presence of the cross ties, over which plaintiff fell,- and the presence of the grass on the roadbed of the defendant company, constituted negligence.”

All of the above cases were cited by counsel for plaintiff. In each of the cases the hazard mentioned was an unusual one, and, in some of them, the injured employee had no opportunity to discover them. In the instant casé, the presence of the gravel on the yards, if it constituted a hazard at all, was an ordinary one which plaintiff not only had an opportunity to observe, but one with which he was thoroughly familiar, according to his own testimony. He stepped from his train, going north at a speed of seven or eight miles per hour, in broad daylight.

The other point of negligence stressed in the case at bar is that the Missouri Pacific was negligent in operating its switch engine at an excessive rate of speed. We would feel inclined to pass this point without going into details, content with the statement that the testimony does not show that the Missouri Pacific engine was exceeding the speed limit of eight miles.an hour, but for the fact that counsel for plaintiff, both in oral 'argument and in brief, have so earnestly stressed it.

Mike Edmunds, who was in charge of the Texas & Pacific engine from which plaintiff jumped and who saw the accident; Malakowski, a switchman who was riding on the front end of the Missouri Pacific engine, who also saw the accident; Wilder, the engineer in charge of the Missouri Pacific engine; and J. E. Webster, a switch-man on the Missouri Pacific engine — all say that the engine was not running over eight miles an hour. These witnesses were at the scene of the accident, three on the Missouri Pacific engine and one on the Texas & Pacific. Mr. Neal, the flagman stationed at the Jackson Street crossing, says he saw the Missouri Pacific engine pass and was asked how fast it was going and said:

“About an average, sometimes they run a little faster than at other times, it depends on the hurry they are in.”

As against this testimony, we have that of Lovel DeSoto, who said that the Missouri Pacific engine was going about 22 miles an hour. DeSoto was in the watchtower at Jackson Street, which is about a block and a half from the point where the accident took place. He says that he took note of the speed of the engine when it passed his station and that he continued to watch its movements down the track until the moment of the accident, notwithstanding it was his duty to watch and guard the Jackson Street crossing. Even if DeSoto correctly estimated the speed of the engine when it passed him, we think it improbable that he could have correctly estimated it at the time plaintiff was struck. Then too, in view of other portions of DeSoto’s testimony, we are inclined to think he was not observing as closely as he says he was. He says, for instance, that he saw the accident and described it in detail; says he saw the plaintiff when he alighted from his engine and saw the pilot beam of the Missouri Pacific engine hit him on the hip and knock him in front of the engine and, further, that when plaintiff alighted from his engine, it was standing still. On this latter point, he contradicted the testimony, not only of Miller, the plaintiff, but of every other witness who testified on that point, Miller and all the others saying that the Texas & Pacific engine was moving at about 8 miles an hour when plaintiff jumped off.

These are the only witnesses who testified directly on this point. We, therefore, find four witnesses, who were at the point where the accident happened, all testifying that the Missouri Pacific engine was not exceeding 8 miles per hour, one who says it was going at an .average rate of speed, and one, DeSoto, who says it was going at 22 miles. These who were at the scene and in charge of the engines were in a position to know, if anyone did, the speed of the engines, and we see no reason to discredit their testimony. We cannot disregard it and accept the testimony of De Soto who was not, we think, in position to know.

The plaintiff says that he was dragged under the engine for a distance of 200 f.eet, and counsel for plaintiff contend that this shows that the engine was moving rapidly, otherwise, it could have, been stopped in a less distance.

■ There are three witnesses who swore that plaintiff was dragged 200 feet — the plaintiff, Hudson and DeSoto. Plaintiff could not know how far he was dragged, except by measuring the distance from the point' where he says he was struck to the place where the engine stopped, and, if he bé incorrect as to the point where he was struck — and we think he is, he is also mistaken as to how far he was dragged.

' Hudson was in his automobile going east on Lee Street, which crosses the railroad tracks at about right angles one block south of Washington' Street. He says that when he reached the railroad crossing, he stopped just a moment and looked both ways, and that when he looked north, in the direction from which the engine was coming, he saw a man under the engine being dragged. He says the engine stopped about 60 feet north of Washington Street, or a distance of more than 400 feet (including the width of the streets) from where he was, so that, if plaintiff was dragged 200 feet, he must have been hit rhore than 600 feet from where Hudson was sitting in his car. If he stopped for only a moment, as he says he did, we do not think he was in a position to correctly estimate the distance which plaintiff was dragged. The same may be said of the testimony of DeSoto who was at the Jackson Street crossing, much farther away.

'As against the testimony of these witnesses, there is that of Edmunds, Malakowski, Wilder, Hoffman and Hymes, each of whom was on one or the other of the engines, who swore positively that the engine was stopped within a distance not exceeding 40 feet from the point where it was when plaintiff fell under it. All of the testimony shows that Malakowski was riding on ■ the front end of the Missouri Pacific engine and saw the accident, and that the moment he saw the plaintiff fall under the engine, he jumped off and exclaimed to Wilder, who was in charge of the engine —“We have.run over Zack.” Miller himself heard this exclamation. Wilder at once shut off the steam and applied the brakes. Miller, says he heard t’he brakes .go on. The brakes were in good condition and the engine was stopped as soon as possible, and the testimony shows that if it had been going 20 miles per hour, it could have been stopped within 60 feet, and, at a speed of 10 miles, in less than 40 feet. Wilder says he did all he could to stop the engine and we have no doubt that he did. Human instinct would impel him to stop -.the engine as quickly as possible when he knew that there was beneath it a fellow laborer liable to be ground into pulp.

Another circumstance which should be considered in this connection is that the Texas & Pacific engine, from which plaintiff alighted, was stopped by Edmunds within about the same distance as the Missouri Pacific was stopped. Edmund’s engine was admittedly running 7 or 8 miles an hour, and slightly in advance of the other. Edmunds saw the accident and applied his brakes and stopped about 40 feet from Washington Street; and the Missouri Pacific engine stopped within approximately 60 to 65 feet from that street.

But counsel say that the Missouri Pacific engine was, at least, 125 feet behind the Texas & Pacific when plaintiff stepped to the ground, which supports the theory that he was dragged so far, and also the theory that the crew in charge of the Missouri Pacific engine had the last clear chance to avert the accident. But Miller’s own testimony sets both points at rest adversely to his contentions.

Miller says that he was riding on the running board of his engine near the front end on the side next to the track on which the other engine was running; that he stepped to the ground, lost his balance, and took two or three steps diagonally across towards the other track, when he was hit on the hip by the end of the pilot beam of the Missouri Pacific engine. The pilot beam of the engine extends over the track about eighteen inches, and the board from which plaintiff alighted extends over the track about the same distance, so that the space between the point where Miller was standing and the pilot beam of the other engine, is approximately seven feet wide. Miller says he took only two or three steps before he was struck. It follows therefore, necessarily, that he was hit almost instantly after stepping to the ground, and that the engine which struck him was almost upon him when he stepped off. It could not have run any appreciable distance before striking him. Miller says if the engine had not been going so fast, he could have gotten up after he fell to the ground and gotten out of the way. But he did not stumble and fall over on the track in front of the engine — he says he was hit by the end of the pilot beam and knocked over in front of the engine. It is perfectly evident, we think, that the Missouri Pacific crew could not have seen him in time to avert the accident, and they could not have anticipated that he would get off where he did.

Reverting to the question as to where the plaintiff alighted from his engine, we think he did not get off at the “cross-over” track, but farther south. This point is material because on or near the “crossover” there was considerable gravel all over the ground, whereas farther south there was but little, such as had been scattered as an incident to the use of the ground during the preceding 24-hour period. As has already been stated, the Missouri Pacific engine was stopped at a point'about 60 feet from the Washington Street crossing. It ran, we think, not exceeding 50 or 60 feet after the pilot beam struck the plaintiff. He was hit within a few feet, say, two or three steps from where he alighted. Adding these distances, locates the point where he got off at approximately 125 or 135 feet — not over 150 feet, from the line of Washington Street.

The testimony of the witnesses on both sides is conflicting on this point. However, none of them who was in a position to know attempted to locate the point definitely, going no further than to say that it was nearer Washington Street than Murray Street. Plaintiff’s witnesses, Ethridge and Gernaught, made measurements showing that the place was at the “cross-over,” nearer Murray Street. But they did not witness the accident, and only had the point shown them by plaintiff sometime after the accident.

We have stated that we think the defendant companies used reasonable diligence in clearing the yards of loose gravel and that, under the circumstances, it was not their duty to go over the yards more often than they did for that purpose, and, further, that we are not convinced that the presence of the amount of gravel where plaintiff alighted from his engine was necessarily a hazard. However, if it be said that the gravel was a hazard and that, as a matter of law, defendants were negligent in allowing it to be there under the circumstances, there is then involved the defense of assumed risk, which is especially pleaded and stressed by the defendants. Their brief on that point is exhaustive.

Counsel for plaintiff, in a supplemental brief just filed, state:

“As we view the defense of this case, it rests entirely upon the contention that Miller assumed the risk of .the hazards contributing to his injury.”

And then state:

“He (plaintiff) can not be said to have impliedly agreed to run the risk of any unusual or extraordinary hazards unless he has full and complete knowledge of them and appreciates their danger at a time and under such circumstances that there is a freedom of choice as to remaining in the employment.”

They further state that the conditions in the yards on the morning plaintiff was hurt were unusual and that—

“We have assumed in this argument that Miller had no previous knowledge of the fact that there was gravel in the path at the point where he alighted, or at any other point .in the yards where a path was maintained. We know this to be a fact, and the record establishes it as a fact beyond any doubt.”

As to Miller’s knowledge of conditions on the day he was injured, counsel call our attention to his testimony, found on page 88 of the record, as follows:

“Q. Do you recall whether the path continued from where it started between the tracks on down to Washington Street?
“A. Yes, sir, it did, it was that day before; I did not know the condition of the tracks that day but that there had been a path from there on down to Washington Street before that.”

We cannot accept this one statement that he did not know the conditions on that day in view of his other direct and unequivocal statement to the contrary. We quote from his testimony, beginning on page 37 of the record, as follows:

“Q. Your testimony is that in frequently going past this locality where you were injured on the 22d day of May, 1925, you saw that there was loose gravel, washed gravel, between the two tracks?
“A. Yes, sir.
“Q. You had been seeing it there for some time?
“A. Yes, sir.
“Q. You knew it was there on the morning you were injured?
“A. Yes, sir.
“Q. You knew that it was at that very point when you stepped off of your engine, did you?
“A. Yes, sir.
“Q. Did I understand you to say that the gravel at this .place was heaped up or piled up between the tracks?
“A. No, sir.
“Q. Spread out?
“A. Spread out between the tracks.
“Q. Was it spread — at what distance was it spread between the tracks?
“A. The entire distance between the tracks.”

As to whether plaintiff knew and appreciated that the presence of the gravel was a hazard and might cause him to stumble, we quote his testimony found on page 45 of the record, as follows:

“Q. Didn’t you know that when you stepped off into loose washed gravel, you would have to stumble and fall?
“A. Every time you step off you don’t stumble.
. “Q. Didn’t you know you are apt to stumble and fall?
“A. I won’t say that.
“Q. Didn’t you know that you might stumble and fall?
“A. Yes, sir.”

And the following from page 55 of the record:

“Q. And if you had not stepped off into the loose gravel that you saw there, you would not have stumbled?
“A. No, sir.
“Q. And you did know when you stepped off that you might stumble, didn’t you?
“A. I knew that I was just as apt to stumble there as I would farther down the ground, I was liable to stumble anywhere that there was loose gravel, that’s reasonble.”

Therefore, these points are definitely established by the testimony of Miller himself, first, that Miller knew that there was gravel on the yards at the point where he alighted, as well as all over the yards; that he had helped put it there; that it was at the identical point where he alighted on the morning he was hurt; and second, that he knew and appreciated the danger of stepping off into the loose gravel..

Miller was an experienced man who had been employed as Switch Engine Foreman to work in these yards for many years; he had been in the railroad service for about 26 years; he knew every detail in connection with the switching of engines and cars in the yards and as to how they were kept up; he knew that there were many switch tracks running through these yards and that there were some thirteen. engines constantly traversing these tracks; and he knew that one might be expected at any point, on any of the tracks, at any time. Yet, he did not hesitate to continue his employment under the conditions as he knew them to exist, and, so far as the record discloses, registered no complaint.

This accident happened in broad daylight, at a place in the yards where there was nothing on the ground, except what was usually there — there were no stones larger than the usual over which he stumbled.

It is needless to refer to all the cases cited by counsel in their briefs. Both sides have cited and quoted from the case of Cincinnati, N. O. & T. P. Ry. Co. vs. Thompson, (C. C. A.) 236 Fed. page 1, decided in 1916. In an exhaustive opinion which the Court cited the leading cases in point, it held the law to be (quoting the syllabus):

“1. For a servant to assume the risk, it must appear that he had knowledge of the defective condition out of which the risk arose, and appreciated the danger arising .therefrom.
“2. An employee assumes risks attributable to his employer’s negligence where they are plainly observable, though he did not know of them.”

On the merits of the case before the Court, it held:

“That a brakeman injured when he stepped on a large piece of slag in alighting from a moving train, knew that there were smaller pieces of slag on the roadbed, does not as a matter of law establish that he assumed the risk of injury from the presence of such larger pieces, for the danger from them must be deemed substantially greater than the danger from the smaller ones.”

In the cited case, a judgment in favor of the plaintiff was sustained because the testimony showed that whereas he was aware of the presence of the smaller pieces of slag scattered over the ground, yet he was not aware of 'the presence of the larger pieces over which he stumbled, the Court holding that his knowledge of the presence of the smaller pieces did not imply a knowledge of the presence of the larger pieces. In the case at bar, there were no large or unusual rocks on the ground — • the plaintiff having stumbled over gravel, which he knew was there.

There was judgment in the lower court in favor of plaintiff, which judgment we think is manifestly erroneous; and it is accordingly reversed and plaintiff’s demands are rejected, at his costs.


text:
    No. 3286
    Second Circuit
    GENERAL EXCHANGE INSURANCE CORPORATION ET AL. v. MORROW
    (November 8, 1928. Opinion and Decree.)
    (December 19, 1928. Rehearing Refused.)
    Melvin F. Johnson, of Shreveport,' attorney for plaintiff, appellant.
    Barksdale, Bullock, Warren, Clark and Van Hook, of Shreveport, attorneys for defendant, appellee.
   WEBB, J.

In this action, plaintiffs, General Exchange Insurance Corporation and William F. Farmer, seek to recover judgment against defendant, J. R. Morrow, for the value of a Pontiac automobile owned by Farmer, which was destroyed by fire following a collision with an automobile owned by defendant.

The insurance company carried a policy protecting the Pontiac automobile against fire, under which an adjustment was made and the insured, Farmer, subrogated the insurance company to his rights against Morrow for the amount received; and, in this action, thé insurance company claims the amount paid by it to Farmer, and Farmer, the difference between such amount and the alleged value of the automobile.

The collision occurred at the intersection of Gladstone Boulevard and Creswell Street, in the city of Shreveport, which streets intersect at right angles; the automobile owned and being driven by defendant approached and entered the intersection from the west, along Gladstone Boulevard,. while that owned and being driven by plaintiff approached and entered the intersection from the south, along Creswell Street, and following, and as a result of the collision, the Pontiac automobile was overturned, and gasoline escaping therefrom was ignited and the car was destroyed.

Plaintiffs allege that the collision and fire were due to the fault and negligence of defendant, in that the automobile being driven by Farmer, plaintiff, reached the intersection first and had proceeded almost across the intersection when it was struck by the automobile driven by defendant, who was driving at an excessive rate of speed on the wrong side of the roadway and not maintaining a lookout, which was denied by defendant who alleged that the collision was due to the fault and negligence of Farmer in driving at an excessive rate of speed without caution; and defendant also pleaded, in the alternative, contributory negligence.

On trial, evidence was offered tending to show that thé fire resulted from an intervening cause, or the negligence of a third person in striking a match, causing the gasoline which had escaped from the overturned car to become ignited, and, while the Court did not render a written opinion and we are not informed as to the ground on which the judgment was based, whether upon plaintiff’s failure to establish negligence on the part of defendant, or if contributory negligence was established on the part of plaintiff, Farmer, -or that the destruction of the automobile was due to an intervening cause, the plaintiff urges that the evidence which was admitted tending to show an intervening cause was inadmissible and should not be considered, and, further, that the judgment was not warranted on either ground under the evidence.

The testimony of the respective drivers of the cars was greatly at variance, each claimed to have reached the intersection first, the defendant stating that at such time the plaintiff’s car was at such distance from the intersection as that he should have had a wide margin of safety in crossing the intersection if the speed of the respective cars was anything like his estimate; while, if the plaintiff’s estimate of the speed of the car was correct, he should have realized that in attempting to cross the intersection, he was placing his car in certain danger, as he said he attempted to negotiate the crossing at a speed of ten miles per hour, in front of defendant’s car which was at that time thirty or forty feet from the intersection and advancing at a speed of 35 or 40 miles per hour.

"While it is true that, generally sipeaking, the driver, who approaches an intersection with his car under control, first arriving at the intersection, has the right of way over a vehicle approaching from another intersecting street. Nevertheless, if the situation presented at that time is such that the danger of collision with the approaching vehicle from an intersecting street is or should be apparent, he will be held negligent in attempting to cross the intersection and cannot recover, even though the, driver of the other vehicle was negligent. And conceding that the preponderance of the evidence shows that plaintiff reached the intersection first, and that defendant was guilty of negligence in approaching the intersection without having his car under control yet, under .plaintiff’s statement, he was guilty of contributory negligence and it is unnecessary to consider either the admissibility or the effect of the evidence offered by defendant tending to show that the destruction by fire of plaintiff’s automobile was due to an intervening cs>use.

The judgment appealed from is affirmed.


text:
    No. 3305
    Second Circuit
    D. R. SARTOR SONS & CO., INC., v. BROWN
    (December 19, 1928. Opinion and Decree.)
    Shotwell and Brown, of Monroe, and C. J. Ellis, Jr., of Rayville,. attorneys for plaintiff, appellant.
    George Wesley Smith, of Rayville, and Theus, Grisham and Davis, of Monroe, attorneys for defendant, appellee,
   WEBB, J.

D. R. Sartor Sons & Company, Inc., holding a note drawn by Ann Brown, of date March 16, 1926, for seven hundred fifty dollars, with eight per cent per annum interest, and stipulating for ten per cent per annum attorney’s fees, payable to the order of the drawer on December 1, 1926, and by her endorsed in. blank, which was secured by a mortgage of same date on certain lands in Richland Parish, Louisiana, proceeded to foreclose via executiva for the amount of the note, interest and attorney’s fees, less a credit of $294.00.

The land, having been seized^ and advertised -for sale, H. C. Watson and J. S. Belcher presented a petition to the Court, before whom the proceedings were had, alleging that they were the owners of mineral rights in the lands, having acquired same by mesne conveyances from Ann Brown under conveyance of date subsequent to the act of mortgage under which the foreclosure proceedings were had, and ¡prayed for and obtained an order from the Court directing the Sheriff to have the mineral rights appraised separately and the land to be first offered exclusive of the mineral rights and, in event of a bid for the land thus offered, being of an amount sufficient to' satisfy the writ, for the mineral rights to be withheld from sale.

The Sheriff proceeded to have the property appraised as ordered and offered the land exclusive of the mineral rights, to which D. R. Sartor Sons & Company, plaintiff in execution, objected, announcing that the land was to be sold without reservations, and following, bid $1200.00, which being the highest bid, the property was adjudicated to it, D. R. Sartor Sons & Company, but the Sheriff, refusing to make the transfer without reservation of the mineral rights, D. R. Sartor Sons & Company filed a rule on the Sheriff to show cause why the land should not be transferred without reservation of the mineral rights, to which the Sheriff excepted that the rule failed to state a cause of action, which .being submitted was sustained, and judgment rendered discharging the rule, from which. D. R. Sartor Sons & Company appeal.

The law does not prohibit the sale of lands subject to the rights of persons who may have acquired mineral rights thereon, and the Court issuing the order for the land to be offered and sold by the Sheriff without the mineral rights, had jurisdiction, and the offering having been made in accordance with the order, it does not appear that the Sheriff would have the authority to include in the transfer property which was not offered, and apparently plaintiff in the rule concedes as much, but contends that in view of the fact that Ann Brown, the mortgagor and defendant in execution, had intervened in the rule asking that the Sheriff be ordered to comply therewith, changed the situation, in that she was the only one interested.

However, the forced sale of property must be made in strict accord with the formalities of law (Lawrence vs. Young, 1 La. Ann. 297), and the order of the Court that the land be offered without the mineral rights, until áet aside, was binding, at Ifeast as to the Sheriff, and the Sheriff, having offered the land without the mineral rights, the adjudication could be considered as covering only the property offered, and neither the defendant in execution nor the person to whom the adjudication was made, D. R. Sartor Sons & Company, could force the Sheriff to include in the act of transfer any other property than was offered.

It is therefore ordered that the judgment appealed from be affirmed.


text:
    No. 3404
    Second Circuit
    CHILDERS v. POLICE JURY OF THE PARISH OF OUACHITA, LA., ET AL.
    (December 19, 1928. Opinion and Decree.)
    Hudson, Potts,. Bernstein and Sholars, of Monroe, attorneys for plaintiff, appellant.
    David I. Garret, dist: attorney; J. B. Thornhill, Robert Layton; Dawkins and Dawkins, of Monroe, attorneys for defendants, appellees.
   WEBB, J.

The plaintiff, J. H. Chil.ders, instituted this action against the Police Jury of Ouachita Parish to recover an amount alleged to be due his agent, W. L. Childers, under a contract entered into by the said agent with the Police Jury for the construction of a public road in the Parish of Ouachita.

Plaintiff alleged that the contract had been completed," and that he was the principal of W. L. Childers, and prayed for service on W. L. Childers, as well as the Police Jury.

Defendant, the Police Jury, excepted that the petition failed to state a right or cause of action^ which being referred to the merits, it then answered admitting that the contract had been made and completed and that a certain amount was due thereunder, which .was deposited in the registry of the Court, and W. L. Childers, having answered, admitting plaintiff’s allegations, and issue having been joined on interventions filed by other parties claiming to be creditors of W. L. Childers, the case was called for trial, and, after some evidence had been introduced, the exception filed by the Police Jury was sustained and judgment rendered dismissing plaintiff’s suit, from which he appeals.

The contract entered into by and between the Police Jury and W. L. Childers, which was attached to and made a part of the petition, does not contain any reference to the plaintiff, J. H. Childers, and it shows that the work was undertaken on a unit cost basis, or at a fixed rate per measure for excavation, fills, etc., of which an estimate of the price was made, being, in the aggregate, the sum claimed by J. H. Childers to be due, and the basis of the exception of no right of action was that J. H. Childers, the alleged undisclosed principal, was not on the face of the contract a privy thereto, and the basis of the exception of no cause of action was that, as the contract did not call for a fixed price, and that 'the amount due therein was dependent upon the quantity of work done, it was essential to a cause of action that plaintiff should have alleged the quantity of work done and the price of same.

Considering the question of the right of plaintiff, as' the alleged undisclosed principal, to enforce the contract, it is conceded that in jurisdictions where the common law prevails, an undisclosed principal may, as a rule, sue or be sued on contracts made by his agent. (Ford vs. Williams, 21 How., 62 U. S. 287, 16 L. Ed. 36; Powell vs. Wade, 109 Ala. 95, 19 So. 500, 55 Am. St. Rep. 915; A. L. R. vol. 55, p. 913 and note; C. J. vol. 2, p. 873, et seq.; R. C. L. Vol. 21, page 897 et seq.) And, while it is admitted that the undisclosed principal may be sued in this State (Valmont Service Station vs. Avegno, 3 La. App. 335; also Williams vs. Winchester, 7 M. (N. S.) 22; Ballister vs. Hamilton, 3 La. Ann. 401; Carlisle vs. Steamer Eudora, 5 La. Ann. 15; Drew vs. Coffall, 116 La. 990, 41 So. 233), it is contended that the converse of the rule,, that is that an undisclosed principal may sue on such a contract does not prevail here, the contention being apparently based on the sole ground that there is not any privity of contract between the undisclosed principal and the eo;contractant of the agent.

We do not understand, however, that the rule under which an undisclosed principal may sue or be sued upon a contract made by his agent for his benefit considers so much the strict form of the contract as the equitable rights of the principal, as against his agent, and that a direct action by an undisclosed principal is permitted whenever the person contracting with the agent may not be injured.

Considering the right of the plaintiff solely from the standpoint of the rights of the Police Jury, concededly the undisclosed principal, plaintiff herein, suing upon the contract made hy his agent, stands in the same position as the agent would have occupied had the suit been brought in his name, and the agent being made a party to the action, any judgment rendered in favor of the principal would afford full protection against any claim by the agent; and it is thus apparent that the Police Jury could not be prejudiced in any manner by permitting the undisclosed principal to sue for the amount which may be due under the contract made by the agent for his benefit, and we are of the opinion that the exception of no right of action should have been overruled.

The exception of no cause of action, as stated, was based upon the theory that, as the contract did not call for a fixed price, but that the price was dependent upon the quantity of work, it was essential that plaintiff should have alleged what work had been done and the price.

There was, however, attached to the contract an estimate of the work undertaken, on which the contractor based his bid, and the aggregate amount to be paid for the work, based upon the estimate was the amount claimed to be due by the plaintiff, and we are of the opinion that plaintiff could under his pleading introduce evidence to show that the work called for under the estimate had been done, and that the same was due and unpaid, and therefore, that the exception of no cause of action should have been overruled.

It is therefore ordered that the judgment appealed from be annulled and avoided, and that the exception of no right and no cause of action be overruled; and, that the case be remanded for trial.


author: JANVIER, J.

text:
    No. 11,577
    Orleans
    BLANCHARD v. GREATER JEFFERSON REALTY CO.
    (March 18, 1929. Opinion and Decree.)
    P. R. Livaudais and William Boizelle, of New Orleans, attorneys for plaintiff, appellee.

      Julius H. Wiener and Sidney G. Roos, of New Orleans, attorneys for defendant, appellant.
   JANVIER, J.

On May 5, 1927, plaintiff signed a document reading as follows:

FRANK JORDANO
Exclusive Sales Agent Greater Jefferson Sub-Division AGREEMENT:
New Orleans, La., May 5th, 1927.
I have this day purchased from Frank Jordano, Agent, Lots 43 & 44, Block “A.” For the sum of Eight Hundred eight and No/100 Dollars and have paid on account of said purchase this day the sum of one hundred, ten and No /100 Dollars being 121/%% of the purchase ¡price; balance of Seven hundred ten & No/100 Dollars I agree to pay in monthly installments of $18.00 Dollars per month. $110.00 due June 5/27.
I have this day received a receipt from FRANK JORDANO, Exclusive Sales Agent, for payment made by me of $-------------------.
(Sd.) J. C. Blanchard, Purchaser Arabi, La. Address
Witness:
(Sd.) M. R. Tucker.

It is not disputed that it was agreed that when Blanchard made the payment of $110.00, which was due on June 5, 1927, he was to be given a bond for deed. He made the said payment, but did not receive his bond for deed.

There is printed at the bottom of the document, dated May 5, 1927, to which we have referred, a provision reading as follows:

“This contract is not valid until accepted by the Greater Jefferson Realty Co. Inc.”

Plaintiff was never advised that the said company had accepted the offer made by him, nor was he ever given a copy of the document showing such acceptance. The document of May 5, 1927, then, was no more than an offer made by plaintiff from which he could withdraw at any time before its acceptance. Defendant offered no proof to show that the offer of plaintiff was accepted prior to withdrawal by plaintiff.

C. C. 1800 provides:

“The contract consisting of a proposition and the conse'nt to it, the agreement is incomplete until the acceptance of the person to whom it is proposed. If he, who proposes, should before that consent is given, change his intention on the subject, the concurrence of the two wills is wanting, and there is no contract.”

As the Supreme Court said in Miller vs. Douville and Gallagher, 45 La. Ann. 214, 12 So. 132:

“The article of the Civil Code on the subject conveys but one meaning — if the promisor before consent changes his intention,- the concurrence of the two wills is wanting, and there is no contract.” Art. 1800.
“We construe these authorities in 'their application to a written offer to sell real estate in which no term is stated.”
“No other question on the point now under discussion arises for our decision, such as the right vel non to withdraw the offer when time has been given or after its acceptance.”
"As to the offer without term, until there is acceptance ‘the negotiations of the parties amount to nothing more than proposals and counter-proposals.’ 111 Am. and Eng. Encyc. p. 852."

Plaintiff’s many attempts to secure a bond for deed show that he was justified, if any justification were necessary, in desiring to withdraw his offer. In fact, no bond for deed was tendered him until after he had, in writing, notified Jordano, agent for defendant, that he wanted his deposit returned.

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


text:
    No. 3447
    Second Circuit
    UNION SECURITIES CO. v. NEAL, WATTS, THIRD OPPONENT
    (December 19, 1928. Opinion and Decree.)
    McHenry, Montgomery, Lamkin & Lam-kin, of Monroe, attorneys for plaintiff, appellee.
    Matthew C. Redmond, of Monroe, attorney for defendant, appellant.
   ODOM, J.

The controversy in this case is between the Union Securities Company, the seizing creditor, and the lessor, Frank J. Watts, over the proceeds of a sale of certain personal property seized by the Sheriff under a writ of fieri facias, said property having been seized in the leased premises.

The seizing creditor obtained a judgment against P. Neal, proprietor of the P. Neal Meat Market, for the sum of $835.00, due on the purchase price of an ice box called a “Friedrich Freezer.” After the judgment became final, the plaintiff obtained a writ of fieri facias, under which the Sheriff seized the said freezer which was then situated in a building owned by Watts, intervenor. Immediately after the seizure the Sheriff removed the freezer from the leased premises and stored it in some other building. This was done on July 28, 1927. Eight days later, or on the 5th day of August, 1927, the lessor intervened in the suit, setting up his claim for rent and asked for an order of provisional seizure, and that the proceeds of the sale of the property be held by the Sheriff until the further orders of the Court.

The defense which the plaintiff, seizing creditor, makes to the lessor’s opposition, claiming the pro'ceeds of the sale, is:

1. That the lessor’s lien and privilege were lost by the removal of the property from the leased premises after the expiration of fifteen days from the date of its removal; and

2. That the seizing creditor had a chattel mortgage - on the property seized for the payment of its claim, which chattel mortgage primed lessor’s • claim.

There was judgment in the District Court rejecting intervenor’s demands, from which judgment he has appealed.

OPINION

The judgment itself does not show, and we- are not informed as to the grounds upon which the District Court rejected the landlord’s claim. Whether it was because his privilege had been lost on account of the removal of the ¡property seized from the leased premises, or whether because the Court recognized the seizing creditor’s chattel mortgage on the property and held that it primed the lessor’s lien. Our conclusion is that .the judgment appealed from is erroneous in either event.

No citation of authority is necessary on the point that. the lessor who permits the property of his lessee to be taken out of the leased premises and remain pff the premises for more than fifteen days, loses his privilege thereon. On the trial of the case on its merits, it was alleged by the landlord, and admitted by the seizing creditor, that the property of the lessee was seized by the Sheriff under a writ of fieri facias on July 28th, and was immediately removed by him from the leased premises; and, while it is shown by the pleadings that the landlord filed third opposition, claiming the proceeds of the sale, on August 5th, eight days later, it was not proved that the landlord had said property seized by the Sheriff under a writ of provisional seizure, and it is contended by plaintiff, the seizing creditor, that inasmuch as no seizure of the property was shown, the landlord has lost his privilege. To this proposition, .we cannot accede. Under the circumstances of this case, actual seizure of the property by ■ third opponent was not ne'cessary to preserve his privelege -as lessor. When the lessor filed- his opposition claiming the proceeds of the sale, the property on which his privilege rested was already in the hands of the Sheriff, and another seizure thereof was unnecessary.

In the case of City of N. O. vs. Vaught, McLin, Intervenor, 12 La. Ann. 339, the property of the defendant was seized under fieri facias. More than fifteen days thereafter, the lessor intervened and claimed the lessor’s right and privilege on the movables. The Court held that this was the proper proceeding by intervention and third opposition without seizure of the effects already under seizure and that the lessor was entitled to. be paid the full amount of his rent out of the proceeds of the sale .under fieri facias. To the same effect, is the holding in the case of Robinson vs. Staples, 5 La. Ann. 712. Ip the latter case, Judge Slidell, the organ of the court, discussing the question as to whether provisional seizure was necessary under the Constitution, said:

“It is not, therefore, well argued by plaintiff’s counsel that the lessors cannot have their privilege in this case because 'they did not make a provisional seizure under the Statute. The proceeding was unnecessary, the property being already in custodiam legis.”

To the same effect is the case of Conrad vs. Patzelt, Jackson, Intervenor, 29 La. Ann. 465. In the Conrad case, the Court gave as a reason for the rule that:

“The law having laid hold on the property for the purposes of the suit, will not permit the ends of justice and the rights of those who have invoked its aid to be thwarted or defeated by transfers or changes or divestiture of title pendente lite.”

See also Robb vs. Wagner, 5 La. Ann. 111; Hill & Co. vs. Bourcier and Pond, 29 La. Ann. 841 (844); Carroll vs. Bancker, 43 La. Ann. 1078 (1091), 1194, 10 So. 187.

The courts have uniformly held that there is no necessity for a second seizure of the property where the same is already in the hands of the Sheriff under a prior legal seizure. The intervenor in this case could not have arrested the sale of the property under the fieri facias, nor could he have prevented the removal thereof by the Sheriff. Case vs. Kloppenberg, 27 La. Ann. 482. He could not have enjoined the sale. Pickens vs. Webster, et al., 31 La. Ann. 870.

And it has already been held that a Sheriff has no right to remove property from leased premises without paying the rent. Robb vs. Wagner, 5 La. Ann. 111; Arick vs. Walsh and Boisseau, et al., 23 La. Ann. 605; Cooper vs. Cappel, et al., 29 La. Ann. 213; Trager Company vs. Cavaroc Company, Limited, 123 La. 319, 48 So. 949.

Our holding, therefore, is that no actual seizure of the property was necessary by the landlord, and that, having intervened and claimed the proceeds of the sale prior to the expiration of the fifteen days from the date on which the property was removed from the leased premises by the Sheriff, and having obtained an order directing the Sheriff to hold the proceeds of the sale, he has done all that was necessary and his lien is preserved.

On the second point urged by the seizing creditor — that is, that it had a chattel mortgage on the property seized, our conclusion is that the document on which it relies as a chattel mortgage is not effective against third persons, because it was not executed in notarial form.

Section 2, Act 198 of 1918, the Chattel Mortgage Law, provides:

“In order to affect third persons without notice, said instrument must be passed by notarial act and the original or a certified copy thereof shall be recorded in the office of the Recorder of Mortgages in the Parish ■ where the property shall then be situated * * *

The document relied upon does not purport on its face to be a notarial act. It is signed by P. Neal, and is not signed by any witnesses or notary.. But, following the signature of Neal, we find the following certificate:

“LOUISIANA CERTIFICATE OF ACKNOWLEDGMENT FOR INDIVIDUAL OR PARTNERSHIP.
“United States of America,
“State of Louisiana,
“Parish of Ouachita,
“Before me, the undersigned authority, this day personally came and appeared P. Neal, Prop. P. Neal Meat Market, to me personally known, who signed the foregoing document before me and in the presence of the two subscribing legal witnesses and acknowledged to me in the presence of said witnesses that he had signed the above and foregoing as his voluntary act and deed, and for the uses and purposes therein set forth.
“In faith whereof I have hereunto set my hand and seal of office this 30th day of March, A. D., 1926, at Monroe, Louisiana.
LAURA LUZENBERG, Notary Public.
(Style of Officer)”
“WITNESSES:
Irvin Hodge.
L. H. Davis.”

In the case of Baker vs. Baker (Bank of Delhi, Intervenor), 125 La. 969, 52 So. 115, the court held that a notarial act, in order to conform to the reguirements of the law, must be signed by the parties, the notary and two witnesses, and the Court held:

“The proposition that a notary by a mere certificate can convert an act under private signature into a' notarial act is clearly untenable.”

To the same effect is the holding in the case of West Louisiana Bank vs. Dawson, 154 La. 830, 98 So. 263.

Counsel for the seizing creditor contend that the act here in controversy is distinguishable from that considered by the Court in the case of Baker vs. Baker, supra, in that in the Baker case, Mrs. Baker appeared before the notary and acknowledged, in the presence of two subscribing witnesses, that she had signed the document, whereas in the case at bar, the notary certified that P. Neal signed the document before him and in the presence of two subscribing witnesses, but the certificate of the notary cannot convert a private instrument into a notarial act. The document itself is not signed by the witnesses, nor is it signed by the notary himself. Two witnesses, Hodge and Davis, did attest the certificate of the notary, but P. Neal did not sign the certificate.

A notarial act is one which makes full proof of itself. We hold that the alleged chattel mortgage is not one which has effect against third parties without notice, in that it is not clothed with the formalities prescribed by law.

The third opponent made proof that at the time the property was seized, the judgment debtor owed rent at $37.50 per month, for seven months, amounting to $262.50, but that he was entitled to credit thereon for $53.42, leaving a balance due of $209.08. The landlord is entitled to be paid that amount out of the proceeds of the sale of the property by preference and priority over the claim of the seizing creditor.

For the reasons assigned, it is .therefore ordered, adjudged and decreed that the judgment appealed from be reversed; and it is now ordered and decreed that the lessor’s claim for rent, amounting to $209.08, be recognized, and that the Sheriff pay to him that sum by preference and priority over the claim of the seizing creditor; and that all costs of the opposition and of the appeal be paid by the seizing creditor.