author: HIGGINS, J. JANVIER, J.

text:
    No. 11,327
    Orleans
    PLICK v. TOYE BROS. AUTO & TAXICAB CO., INC.
    (March 10, 1930. Opinion and Decree.)
    (May 5, 1930. Rehearing Refused.)
    (July 2, 1930. Writ of Certiorari and Review Refused by Supreme Court.)

      See 11 La. App. 106.
    Normann, Breckwoldt & Schwartz, of New Orleans, attorneys for plaintiffs, appellants.
    John P. Sullivan and David Sessler, of New Orleans, attorneys for defendant, appellee.
   HIGGINS, J.

This is a suit for compensation by the parents of Prank Alexander Adams, alleged to be due as a result of the death of their son in the course and scope of his employment with the defendant corporation, under the provisions of Act 20 of 1914, as partially amended by Act 85 of 1926, and known as the Employers’ Liability Act of this state. The defendant denied liability on the several grounds hereinafter set forth. There was judgment in favor of defendant dismissing plaintiffs’ suit, and plaintiffs have appealed.

The petition alleges that plaintiffs are the mother and father of the deceased, who was killed on December 23, 1926, while acting in the course and scope of his employment as a taxicab driver for the defendant corporation, which is engaged in the taxicab business in the city of New Orleans, a hazardous occupation; that his death resulted from an intersectional collision at the corner of Peniston and Carondelet streets, this city, between the taxicab which the deceased was driving and a truck owned by Tusa Bros.; that they were dependent upon their son for support, who had never married and left no children, and received support regularly from him; that they are entitled to compensation for three hundred weeks on a basis of 65 per cent, of an average of $25 per week, or $16.25 per week, making a total of $4,875, and also funeral expenses incurred in the sum of $150.

Defendant filed an exception of no cause or right of action, which was overruled. Defendant then answered, denying liability, and setting up the following defenses:

(1) That the Employers’ Liability Act, Act No. 20 of 1914, as amended in part by Act 85 of 1926, was not applicable to the present case, as paragraph 6 of section 3 of the amending act provides “that this act shall not apply to employees of less than the minimum age prescribed by law for the employment of minors in the trades, businesses or occupations specified in paragraph 2 of Section 1, or that may be determined to be hazardous under the operation of paragraph 3 of Section 1”; that Ordinance No. 7475, Commission Council Series of the City of New Orleans, provides “that no person shall be entitled to such certificate to act as chauffeur or driver of a motor vehicle of any kind operated for a fee, charge, profit, or reward, unless he be at least twenty-one years of age”; that therefore, as the law prohibited the decedent from acting as a chauffeur because he was not twenty-one years of age, the case is expressly excluded from the provisions of the Compensation Law.

(2) That the alleged accident did not occur in the course and scope of the employment of the deceased, because at the time of -his death he was on a journey of his own and business for himself, and collected fares with the intention of converting them to his own use, and therefore was not acting in the course and scope of his employment.

(3) That the deceased at the time of his death was deliberately violating two provisions of the traffic ordinance of the city of New Orleans regulating safety of life and limb, first, in driving at a rate of speed in excess of 35 miles an hour, and, second, in ignoring the traffic sign “Stop” which was painted on the pavement in the center of Peniston street about twenty feet from the intersection of Carondelet where the accident occurred.

(4) That the deceased deliberately failed to use an adequate guard and protection against accident provided by the defendant, as he failed to use either the foot or emergency brakes of the taxicab, which were in good order.

(5) That the deceased’s deliberate act in driving the automobile at an excessive rate of speed of thirty-five miles an hour, in violation of the city traffic ordinance, and his deliberate failure to stop in obedience to the traffic signal in Peniston street, amounted to wilfully injuring himself, and therefore the petitioners were not entitled to recover under the express provisions of the Employers’ Liability Act.

(6) That the Compensation Act is not applicable, as the deceased violated Act 138 of 1926, in failing to pull the flag on the meter of the taxicab.

(7) That the deceased did not come under the provisions of the Compensation Act, as he was not receiving a salary, but was working on a commission basis, and therefore it was a contract of bailment and not employment.

(8) That deceased was employed by defendant on December 17, 1926, on his false representations that he was a white man, age twenty-one years, and held a chauffeur’s badge issued by the city of New Orleans for the year 1926; that it was only after his death that defendant learned the deceased was a negro, age twenty years, and was using a chauffeur’s badge for the year 1926, which belonged to a third party; that deceased represented himself as “Prank Alexander,” whereas his correct name was “Prank Alexander Adams”; that defendant is engaged in operating a general automobile and taxicab business in New Orleans, and at no time ever employed colored men for the purpose of driving its taxicabs, which rule of the company was generally and publicly known; that the company also had a rule never to employ any chauffeur under the age of twenty-one years; that defendant’s rule not to employ chauffeurs under this age without a chauffeur’s badge of the city of New Orleans and colored men was well known to the deceased and that his false representations were made for the purpose of securing employment; that defendant,relying upon the false representations of the deceased, employed him, but would not have done so had the true facts been known; that the contract of employment was therefore null and void because of the fraudulent misrepresentations, and hence plaintiffs are not entitled to the benefits of the Employers’ Liability Act.

(9) Defendant further urged as a defense that the parents were not dependent upon the deceased for support, and, in the alternative, that they were only ¡partially dependent, and further, in the alternative, that the evidence is not sufficient to permit the court to fix the amount of compensation for such partial dependence.

The exception of no cause or right of action is based upon the ground that the decedent’s employment as a chauffeur of a taxicab is not a hazardous occupation. The Supreme Court of this state, in the case of Haddad vs. Commercial Motor Truck Co., 146 La. 899, 84 So. 197,. 9 A.L.R. 1380; Id., 150 La. 327, 90 So. 666, said:

“We think we may take cognizance of the fact that motortrucks are operated or propelled by gasoline engines or motors, which by the use of gasoline produce their own energy or motive power. The driving of such motortrucks necessarily involves the operation of such engines. * * * Would the driver of a motorbus fqr the transportation of freight and passengers be engaged in the operation of an engine or machinery? We think so. Not only does the operation of a motortruck involve the operation of an engine (gasoline), but also the operation of machinery, in its broader sense, as defined by the authority above cited. It involves the operation of the gasoline engine, as a part of the machinery of the truck, which in the ordinary, common, and everyday use of the word is a ‘machine.’
“We therefore think that the exception of no cause of action should be overruled.”

See, also, Powell vs. Spencer Bros., 5 La. App. 219, and Hicks vs. Parish of Union, 6 La. App. 546.

In view of the fact that the deceased was driving a public taxicab in a large city, wher.e traffic is congested and danger imminent, the nature of the employment might be considered hazardous. However, we believe the above case to be controlling on the issue raised by the exception of no cause of action, which was therefore properly overruled.

We shall now discuss the defenses in the order in which they have been hereinbe-. fore outlined:

(1) When this case was originally heard in this court, the judgment of the district court was sustained on the ground that the Compensation Act did not apply, as the evidence showed that deceased was less than the minimum age prescribed by the ordinance of the city of New Orleans for the employment of chauffeurs. See Plick, wife of Adams, and Adams, vs. Toye Bros. Auto & Taxi Cab Co., 11 La. App. 106, 120 So. 721, decided February 25, 1929. However, the Supreme Court granted a writ of certiorari and reversed the judgment of this court on the ground that the language “minimum age prescribed by law” referred to an act of the Legislature, or state law, and not a municipal ordinance, and, as there was not any state law forbidding a minor to act as a chauffeur in this state, the Compensation Law was applicable. See Pl'ck, wife of Adams, and Adams, vs. Tusa, 169 La. 44, 124 So. 140. The case was then remanded to this court in order that the other issues presented might be determined.

(2) Under the defense that the deceased was not acting within the scope of his employment, the defendant undertook to show that, on the day of the accident, the inspector for the defendant company was unable to locate the deceased at the place he was directed to be stationed; that about noon he was seen to have persons in the cab with him; that at the time of the accident, at 4:30 p. m., the meter of the cab showed that it had gone 22.2 miles, but that there were no fares registered; that at the time the coroner examined the body of the deceased there was found in his pockets the sum of $7.82 in cash, and that, when he left home on the morning of the accident, he only had 35 cents in his pocket. Defendant therefore contends that the deceased was acting without the scope of his employment, because he intended to embezzle the money collected as fares, and that the Compensation Act is not applicable.

Plaintiffs’ evidence shows that deceased was a young man of good reputation, industrious, and reliable. This evidence is corroborated by the defendant’s evidence to the effect that the deceased had been employed from the 17th to the 23rd of December, and had made correct • returns of fares each day, in accordance with the checking of his meter, and there was no suspicion while in the employment of the defendant that he had been dishonest.

Conceding that the deceased was not acting within the scope of his employment in the forenoon or afternoon — and the record fails to convince us of this fact — if at the time he was killed he was going upon the company’s business, he would be acting within the scope and course of his employment, and therefore come within the provisions of the Compensation Law. There is no positive evidence to show that, at the time of the accident, the deceased was going upon or returning from an errand, journey, or business of his own. The burden of proof was upon the defendant to prove this special defense, and it has failed to do so. On the other hand, the record does show that the deceased was killed while driving the taxicab of defendant as its employee.

Conceding also, that Adams was a dishonest employee — and the record falls far short of establishing that fact — he would still come under the Compensation Law because of his status as an employee at the time he was killed.

(3) The contention that the deceased did not come within the provisions of the Compensation Act, because he was violating the traffic ordinances of the city of New' Orleans in operating the taxicab at an excessive rate of speed and in failing to stop, is without merit. Section 36 of Act 20 of 1914 reads as follows:

“That no contract, rule, regulation or device whatsoever shall operate to relieve the employer, in whole or in part, from any liability created by this act except as herein provided.”

Section 28 of the act reads as follows:

"* * * That no compensation shall be allowed for an injury caused (1) by the injured employee’s wilful intention to injure himself or to injure another, or (2) by the injured employee’s intoxication at the time of the injury, or (3) by the injured employee’s deliberate failure to use an adequate guard or protection against accident provided for him, or (4) by the employee’s deliberate breach of statutory regulations affecting safety of life or limb.”

The only relevant part of section 28 is the language to the effect that the compensation will not be allowed for an injury caused “by the employee’s deliberate breach of statutory regulations affecting safety of life or limb.” The Supreme Court, in its recent decision in this case, cited supra, held that the language in the compensation statute, “minimum age prescribed by law,” referred to a legislative or state act, and not a municipal ordinance. The same reasoning is applicable here, and more so, because of the words “statutory regulations.” The word “law” is more general than the word “statutory.” “Statutory” could only mean, in view of the recent decision of the Supreme Court, a state law or statute.

(4)The evidence does not sustain the defense that the deceased failed to use an adequate guard or protection against accident in not using the emergency or foot brakes, which were in good order. The record convinces us that the accident was the result of carelessness and recklessness on the part of the drivers of both vehicles. The deceased either believed that he had time to cross the intersection before the truck would reach him, or did not see the approaching truck due to the obstruction of another vehicle between himself and the truck, and some palm trees on the sidewalk, and therefore did not attempt to put on his brakes. The deceased’s failure to apply the foot or emergency brake under the circumstances was not a deliberate failure to use an adequate guard or protection within the meaning of section 28 of Act 20 of 1914.

(5) We do not find that the evidence supports the defendant’s contention that the actions of the deceased amounted to willfully injuring himself in driving the taxicab at an excessive rate of speed and failing to stop, in violation of the traffic ordinance of the city of New Orleans, within the provisions of section 28 of Act 20 of 1914. This defense is equivalent to saying that recovery is barred by negligence and carelessness, which are expressly excluded as a defense under the act. The evidence clearly shows that the accident was the result of the mutual negligence of both drivers. Plick et al. vs. Tusa et al. (La. App.) 124 So. 678.

(6) Defendant also contended that this case does not fall within the provisions of the Compensation Act because the deceased failed to pull the flag of the meter, as required by Act 138 of 1926. This act makes it a misdemeanor for a chauffeur to fail to pull the flag attached to the meter, so as to constantly show the passenger the exact charges registering on the meter. The violation of this act would not affect the status of the deceased as an employee. The act is obviously not a statutory regulation affecting the safety of life or limb, as provided in section 28 of Act 20 of 1914. We find the contention untenable.

(7) Defendant also contended that the case does not come within the provisions of the Compensation Law, because the deceased was working for a commission and not a salary. In the case of Jones vs. Landry, 10 La. App. 740, 122 So. 913, this court held that, where an employee was doing piecework and not working for regular wages, the Compensation Law was applicable. In principle we cannot distinguish these two cases, and therefore find that the Compensation Law applies.

(8) The defense that fraud vitiated the contract of employment and rendered it null and void, and that therefore deceased was never an employee, presents a serious and difficult legal question. It must be constantly borne in mind that the Supreme Court of this state has repeatedly held that a liberal construction should be placed upon the provisions of the Employer’s Liability Act in favor of the employee and dependents.

“Employers’ Liability Act will be liberally construed in favor of employee and dependents.” Jones vs. Powell Lumber Co., 156 La. 767, 101 So. 135.
“The workmen’s compensation statutes being intended to take the burden of the waste of life and limb off the shoulders of working men and to place it upon those of their employers, to give such effect to the statutes they should be liberally interpreted." Dyer vs. Rapides Lumber Co., 154 La. 1091, 98 So. 677.

And it was stated in Byas vs. Hotel Bentley, 157 La. 1032, 103 So. 303, 304:

“The Court of Appeal has given the statute a narrow and technical, rather than the liberal, construction intended and contemplated by the lawmaker, and as expressed in numerous decisions of this court.”
“A liberal interpretation should be given by the court to the Workmen’s Compensation Law * * * in favor of those intended to be benefited thereby.” Grant vs. Louisiana Sawmill Co., 6 La. App. 673.

See, also, Mackey vs. Fullerton Naval Stores Co., 4 La. App. 43; Watkins vs. Roach, 4 La. App. 259.

At the time the deceased was employed, there was a strike by the chauffeurs in the employment of the defendant. The defendant, in employing chauffeurs to replace those who had gone on a strike, was not as exacting in its requirements as to the qualifications of chauffeurs as it had been in normal times. It is doubtful if the conduct of the deceased in giving only a part of his name and representing himself as twenty-one years of age, white, and that he was a regularly licensed chauffeur of the city of New Orleans, amounted to fraud, because defendant did not rely upon these representations in employing deceased, but upon the fact that he successfully stood the tests of defendant’s “drivers’ school.”

It further appears that defendant provided transportation for the deceased to and from his work during the first few days of his employment. It was apparent to those who brought the deceased to and from his home that he lived in a negro neighborhood with negro people. Defendant’s employing officer admits he noticed deceased’s swarthy complexion. All the false statements made by deceased could have been easily discovered by the slightest investigation qn the part of defendant. The misrepresentations were not responsible for the accident, and therefore defendant has not suffered any damage or disadvantage as a result of any of the alleged false statements made by deceased. In any event, and conceding that the deceased was guilty of fraud, the contract of employment was not null and void, but only voidable, at the option of the employer. Fraud renders a contract voidable at the option of the party deceived, but not null and void. Article 1881, R. C. C., reads as follows:

“Engagements made through error, violence, fraud or menace, are not absolutely null, but are voidable by the parties, who have contracted under the influence of such error, fraud, violence or menace, or by the representatives of such parties.”

Article 1882, R. C. C., reads as follows:

“They may be avoided either by exception to suits brought on such contracts, or by an action brought for that purpose.”

See, also, article 1847, R. C. C.

In the case of Kenny vs. Union Ry., 166 App. Div. 497, 152 N. Y. S. 117, 8 N. C. C. A. 986, the Supreme Court of New York said:

“A street railway conductor sustained accidental injuries resulting in his death. His widow claimed compensation under the Workmen’s Compensation Act * * * and an award was made in her favor. The railway company contested its liability on the ground that the relation of employer and employee did not exist between the company and the deceased at the time of the accident, because of the fact decedent had obtained employment under a false and fraudulent statement” in violation of a penal statute of the State of New York.

In the course of its opinion, the court held:

“That the deceased was an employee within the provisions of the act, the operation of an electric street railway being a hazardous employment, and the enforcement of the act was not dependent upon the validity of the contract of employment.
“While the relation of employer and employee as defined by the workmen’s compensation act must have existed at the time of the injury, it matters not whether the employment was under a valid contract as to both parties or under a contract voidable at the election of the employer.
“The workmen’s compensation act is not dependent for its enforcement upon the validity of the contract of employment, the plain purpose of the act being to provide compensation for accidental injuries to employees within the provisions specified in the act.”

In the case of Hart vs. N. Y. C. & H. R. R., 205 N. Y. 317, 98 N. E. 493, the defendant urged the same defense as is urged in the instant case:

“It was contended (in this case) the deceased misrepresented his age at the time he contracted with the defendant for his employment. The appellant proposed to show that, in the written application made by him, he falsely misrepresented that he was 21 years of age, and having obtained his position by false misrepresentation— that his rights were only those of a licensee.”

The Supreme Court of New York, in the course of its opinion, held:

“The trial court committed no error in excluding the evidence, as constituting no defense. The misrepresentation of the deceased affected the contract of employment in the sense it made it voidable, but did not affect the relation of master and servant. * * * Notwithstanding the deceased by his misrepresentation evaded the rule of the defendant forbidding the employment of minors, he was actually in its sevice, and, therefore, entitled to the protection of an employee accorded by law.”

Our Supreme Court, in the very recent case of Byas vs. Hotel Bentley, 157 La. 1033, 103 So. 303, took cognizance of the fact that the “New York compensation statute is similar to the Louisiana law,” and, in arriving at a decision in that case cited with approval a decision of the Court of Appeals of the state of New York.

In the case of Galveston, H. & S. Ry. Co. vs. Harris, 48 Tex. Civ. App. 434, 107 S. W. 108, it was held that the fact that a hrakeman falsely stated, in securing his position, that he had never had any litigation with the railroad company, while a ground for rescission of his contract, did not render such contract absolutely void, or terminate the relation of master and servant existing at the time of the injury.

In the case of Lupher vs. Atchison, T. & S. F. R. Co., 81 Kan. 585, 106 P. 284, 25 L. R. A. (N. S.) 707, the Supreme Court of Kansas held (syllabus):

“The fact that a brakeman obtained his position by falsely stating that he was of full age when he was in fact but eighteen years old, a rulé of the company forbidding the employment of minors in that capacity does not relieve the company from its obligation to exercise the same care for his protection that is due to any other employee, or disentitle him to recover for an injury due to the want of such care, and not occasioned by his minority or immaturity.”

The court said:

“® * * Putting it as strongly as counsel for the company can put it, that he falsely represented his age to the company, * * * we still think that, while he was in the actual service of the railroad company, he was entitled to the protection of an employee. The fact that he had misrepresented his age, and the further fact that he was a minor, did not make the contract for service void, but voidable. The railroad company, having been deceived, on the other hand, could terminate it whenever it discovered the deception but, until one party or the other put an end to the relations, the contract continued to exist.”

In the case of Payne, Agent, vs. Daugherty (C. C. A.) 283 F. 353, the plaintiff sued the defendant to recover damages for personal injuries alleged ,to have been sustained while he was employed as a switch-man by falling because of a defective hand hold on the ladder of a car moving in interstate commerce from the railroad yards at Allison, Neb. Defendant denied liability, alleging that plaintiff obtained his position by fraudulently misrepresenting his former employment and concealing prior injuries and physical condition, that he was a victim of epilepsy, to which the fall was attributed in whole or in part. The court held (syllabus):

“In an action under the federal Employers’ Liability Law (Comp. St. secs. 8657-8665 (45 USCA secs. 51-59)), based on fault under the Safety Appliance Acts (Comp. St. secs. 8605-8615 (45 USCA secs. 1-10)) the defense that plaintiff procured his employment by fraudulent misrepresentations as to his former employment and prior injuries is not available, in view of the terms of sections 1 and 5 of the former act.”

The court said:

“That is far different from permitting a retroactive dissolution of the relation of master and servant, by virtue of the contract, which, even if voidable, was, while it subsisted, attended with the duty, required by law, for the safety of the latter. Cases are cited involving different facts, but of contrary import in principle. We regard the decisions such as Lupher v. Atchison, T. & S. F. Ry. Co., 81 Kan. 585, 106 P. 284, 25 L. R. A. (N. S.) 707, as declaring the sound and just rule, namely, that there is liability to the employee, notwithstanding the inducement to the contract.”

The weight of this decision, which was rendered during October, 1922, is doubtful, in view of the holding by the United States Supreme Court in the case of Minneapolis, St. P. & S. S. M. Ry. Co. v. Rock, 279 U. S. 410, 49 S. Ct. 363, 73 L. Ed. 766, decided in 1929, and hereinafter discussed.

The following authorities hold that, where employment is secured by misrepresentation and fraud which is not the cause of the injury, the contract is voidable and not void, and therefore the relation of employer and employee exists, and the Compensation Law is applicable: St. Louis & S. F. R. Co. vs. Brantley, 168 Ala. 579, 53 So. 305; Matlock vs. Williamsville, G. & S. T. L. R. Co., 198 Mo. 495, 95 S. W. 849, 115 Am. St. Rep. 481; McDermott vs. Iowa Falls & S. C. Ry. Co. (Iowa) 47 N. W. 1037; L. S. & M. S. Ry. Co. vs. Baldwin, 19 Ohio Cir. Ct. R. 338; Kirkham vs. Wheeler-Osgood Co., 39 Wash. 415, 81 P. 869, 4 Ann. Cas. 532; Stafford vs. B. & O. R. R. Co., 262 F. 807 (D. C. W. Va.). See, also, an interesting article on this subject in Tulane Law Review, volume IV, No. 1, issued December, 1929, p. 131. The above-cited cases seem to be the weight of authority.

The Supreme Court of the United States in the case of Cudahy Packing Co. of Nebr. vs. Mary Ann Parramore, 263 U. S. 418, 44 S. Ct. 153, 154, 68 L. Ed. 366, 30 A. L. R. 532, refers to workmen’s compensation as a “status”; the court saying:

“Workmen’s Compensation legislation rests upon the idea of status, not upon that of implied contract; that is, upon the conception that the injured workman is entitled to compensation for an injury sustained in the service of an industry to whose operations he contributes his work as the owner contributes his capital — th® one for the sake of the wages and the other for the sake of the profits.
“The liability is based, not upon any act or omission of the employer, but upon the existence of the relationship which the employee bears to the employment because of and in the course of which he has been injured.
“And this is not to impose liability upon one person for an injury sustained by another with which the former has no connection; but it is to say that it is enough if there be a casual connection between the injury and the business in which he employs the iatter — a connection substantially contributory though it need not be the sole or proximate cause.”

The Supreme Court of Louisiana, in another recent case, Clark vs. Alexandria Cooperage Co., 157 La. 138, 102 So. 96, 97, stated:

“It is our conception of the law that in the application of the Employers’ Liability Act the rule is that all technical defenses are abrogated. We recognize that there are exceptions to this rule, but it must be an extreme case to bring it within the exceptions. Lemieux v. Cousins, 154 La. 811, 98 So. 255; Dyer v. Rapides Lumber Co., 154 La. 1091, 98 So. 677; Dick v. Gravel Logging Co., 152 La. 994, 95 So. 99; Philps v. Guy Drilling Co., 143 La. 951, 79 So. 549. * * *
“In cases coming under the Employers’ Liability Act, the court is not • bound by any technical or formal rules of procedure, except as is provided in the act itself.”

A review of decisions with respect to injuries arising out of and in the course of' an employee’s employment is contained in the case of Dyer vs. Rapides Lumber Co., 154 La. 1091, 98 So. 677, 678, in which the court stated:

“We think the Court of Appeal has placed too narrow a construction on the terms of the statute requiring that the accident should arise out of the employment. In the leading case on that subject in this jurisdiction, Myers v. L. R. & N. Co., 140 La. 937, 74 So. 256, Mr. Justice Provosty made a careful review of' many cases dealing with the question what accidents might be said to arise out of the employment, most of which are collected in the exhaustive note in L. R. A. 1916A, p. 41 etc., from which he deduced, the rule mentioned by the Court of Appeal, to-wit:
“ ‘The test to determine whether injuries to a workman arise out of his employment is not whether the cause of the injury, that is, the agency producing it, was something peculiar to the line of employment, but whether the 'nature of the employment was such that the risk from which the injury resulted was greater for the workman than for a person not engaged in the employment.’ ”

And the court further stated:

“And it is a mistake to suppose, as some might, that the Workmen’s Compensation Act is a statute intended merely to abolish all the usual defenses to actions by employees against their employers under former laws. On the contrary, the statute is essentially intended to provide insurance for the employee against all the risks to which he may be exposed by his employment.”

We will now discuss the authorities that appear to be in conflict with the above authorities.

In the case of Minneapolis, St. Paul & S. S. M. Ry. Co. vs. Rock, 279 U. S. 410, 49 S. Ct. 363, 365, 73 L. Ed. 766, the respondent, Joe Rock, made application with the defendant for employment as a switch-man. He was referred to the company’s physician for physical examination and his application was rejected, because of his physical condition in having been operated upon for appendicitis and ulcers of the stomach and at the time suffering from rupture. A few days later he made another application in the name of John Rock, and had one Leonard to impersonate him in taking the physical examination. The physician found Leonard’s condition satisfactory, and reported favorably upon the application. Petitioner employed Joe Rock based upon the fraudulent application, but the fraud was not discovered until December 24, 1924, the date that the respondent was injured. The court held:

“Respondent’s position as employee is essential to his right to recover under the act. He in fact performed the work of a switchman for petitioner, but he was not of right its employee, within the meaning of the act. He obtained and held his place through fraudulent means. While his physical condition was not a cause of his injuries, it did have direct relation to the propriety of admitting him to such employment. It was at all times his duty to disclose his identity and physical condition to petitioner. His failure so to do was a continuing wrong in the nature of a cheat. The misrepresentation and injury may not be regarded as unrelated contemporary facts. As a result of his concealment his status was at all times wrongful, a fraud upon the petitioner, and a peril to its patrons and its other employees. Right to recover may not justly or reasonably be rested on a foundation so abhorrent to public policy. N. Y. C. R. Co. v. Lockwood, 17 Wall. 357, 21 L. Ed. 627; Great Northern Ry. Co. v. Wiles, 240 U. S. 444, 448, 36 S. Ct. 406, 60 L. Ed. 732; Stafford v. Baltimore & Ohio R. R. Co. (D. C.) 262 F. 807.
“We need not consider any other question.
“Judgment reversed.”

See, also, Norfolk & W. R. Co. vs. Bondurant, 107 Va. 515, 59 S. E. 1091, 15 L. R. A. (N. S.) 443, 122 Am. St. Rep. 867; Fitzmaurice vs. N. Y., N. H. & H. R. Co., 192 Mass. 159, 78 N. E. 418, 6 L. R. A. (N S.) 1146, 116 Am. St. Rep. 236, 7 Ann. Cas. 586.

The Rock case just quoted from is unquestionably pertinent to the issues raised here, and in principle is difficult to distinguish from the New York and other cases cited, supra, where it was held that the contract of employment was voidable and not void, and that the Compensation Act applied. However, the case may be distinguished from the New York and other cases cited supra on the following grounds:

First. The court in the Rock case was dealing with the Federal Employers’ Liability Act, which applies to employees engaged in interstate commerce.

Second. The respondent there was employed by a railway company engaged in interstate commerce, which is subject to federal legislation, i. e., Employers’ Liability Act and Safety Appliance Act, designed for the protection of interstate commerce as well as those employed therein and the safety of those using railroads as passengers; the carrier being held to a high degree of care for the protection and safe carriage of merchandise and passengers. Under the law and regulations of the Interstate Commerce Commission, a common carrier cannot stipulate that it will not be liable where its employees are negligent in respect to duties essential to their public calling. The railroad company’s rule required a physical examination as a condition precedent to the employment of its employees for the very purpose of carrying out the public policy announced by the acts of Congress and the regulations of the Interstate Commerce Commission. The fraud practiced by the respondent was in the very teeth of these laws and regulations.

Third. Rock substituted for his own physical body, which had been rejected, the body of Leonard, which was accepted as physically fit by the physician for the company, and thus, by this deception, imposed the services of a physically unfit man upon the company in tbe place of the physically fit man it had accepted. In the case before us defendant got the very person it intended to employ.

Fourth. In the instant case the parents of deceased are asking for compensation, and in the Rock case the injured employee was seeking relief.

Now, assuming that the cases are in conflict, we prefer to follow the line of cases holding that the contract of employment is voidable — not void — at the option •of the employer, and that the Compensation Law is applicable. This is in keeping with the law of this state on the question of fraud in reference to contracts; i. e., they are voidable and not null and void. Articles 1847, 1881, 1882, R. C. C. The New York Compensation Law is similar to ours. The problem of safely handling interstate commerce and the abuses which required federal legislation to correct them do not obtain here.

The Supreme Court of the United States does not discuss the question of fraud rendering a contract only voidable, or the authorities to that effect, and its decision is not a liberal interpretation of Compensation Law, but a strict one. The weight of authority is to the effect that the contract of employment is voidable — not void — -and that the Compensation Law is applicable.

In the light of the foregoing authorities, the defense that fraud and misrepresentation vitiated and rendered the contract of employment null and void, so as to defeat the dependent’s rights under the compensation act, is not well founded. We hold that the contract of employment was voidable at the option of the employer, and therefore the Compensation Law is applicable here.

(9) As to the question of dependency, we find the evidence shows that plaintiffs, the parents of the deceased, were partially dependent upon him for support. It appears that the plaintiffs are the parents of a large family; that the father suffers from a chronic sickness, and works as a redcap at the Union Station for small wages and tips; that the mother had taken in sewing about a year before the son’s death, but, due to failing eyesight, had to discontinue. There is evidence in the record to show that deceased earned $3.25 to $3.50 per day, according to the work that he was doing. The defendant’s evidence establishes the fact that the deceased earned $18.82, based upon a commission of 30 per cent, of the fares he collected, less the gasoline bill, from the period December 17 through December 22, 1926. It further appears that deceased contributed eight, ten, twelve, fourteen, eighteen, or twenty dollars a week during the two years preceding his death, according to the employment and wages that he received. The evidence convinces us that the deceased earned an average of $18 per week during the year preceding his death, and contributed $12 per week during the course of that year to the support of his parents, who were partially dependent upon him for support. If they were wholly dependent upon him for support, they would be entitled to 65 per cent, of $18 or $11.70 per week. However, since they were only partially dependent upon him for support, 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.” See subparagraph 2 of paragraph 18 of section 8 of Act 85 of 1926. Therefore plaintiffs, as partial dependents, would be entitled to two-thirds of $11.70, or $7.80 compensation per week for - a period of three hundred weeks. Deceased having been killed on December 23, 1926, the first installment of compensation should have been paid on December 30, 1926, the first week not being counted.

It is therefore ordered, adjudged, and decreed that the judgment of the district court be and it is annulled, avoided, and reversed, and it is now ordered that there be judgment herein in favor of Mrs. Cecelia Plick, wife of Prank A. Adams, and Prank A. Adams, plaintiffs herein, and against Toye Bros. Auto & Taxicab Company, Inc., defendant- herein, in the sum of $7.80 per week, for three hundred weeks, beginning December 30, 1926, with interest upon each installment thereof from its due date at the rate of 5 per cent, per annum, until paid, and also the sum of $150 for funeral expenses; appellee to pay all costs.

JANVIER, J.

(dissenting). I understand from the majority opinion that my associates feel that the decision of the Supreme Court of the United States in Minneapolis, St. P. & S. S. M. Ry. Co. vs. Rock, 279 U. S. 410, 49 S. Ct. 363, 365, 73 L. Ed. 766, and the opinion in Kenny vs. Union Ry. Co., 166 App. Div. 497, 152 N. Y. S. 117, cannot be reconciled, and in this I agree with them. But I cannot agree that the reasoning which led to the decision in the New York case is more sound than that advanced by Mr. Justice Pierce Butler of the Supreme Court of the United States in the Rock case.

In order to recover under the Workmen’s Compensation Laws of Louisiana (Act No. 20 of 1914, as amended) the claimant must show that there was an employment. There must be an employer and an employee, otherwise the Compensation Laws are not applicable.

As the Supreme Court of the United States said in the Rock case, supra, “respondent’s position as employee is essential to his right to recover under the act.”

It has been held several times in this state that recovery in compensation is not based on tort liability, but on contractual obligation. Legendre vs. Barker, 5 La. App. 619; Burson vs. Ohio Oil Co., 6 La. App. 739. There can be no contractual obligation unless there is a contract, either written or verbal. There can be no contract where one of the parties procures from the other, through fraud, a consent which, except for the fraud could not possibly have been obtained.

Here the so-called “employer” would not have engaged the so-called “employee” if there had not been fraudulent deception in all four of the following particulars: (1) As to race or color of Adams, the employee; (2) as to his age; (3) as to his possession of a chauffeur’s badge or license; (4) as to his name.

In the Rock case the employee substituted a certificate of physical examination of another person; here the employee substituted a chauffeur’s badge or license of another person. I cannot follow my associates in their reasoning that there is a distinction on this point.

It will not do to say that the defendant did not rely on that badge or certificate and made an examination of its own. It must be conceded that the city ordinance and the defendant’s rule requiring that a badge or certificate be produced, were adopted for some good purpose. We cannot assume that an employer of labor, having adopted apparently reasonable regulations, has done so for other than good, sound business reasons. It is fair to assume that, when Adams appeared and stated that he was licensed by the city of New Orleans as a chauffeur, defendant relied to some extent on his declaration in this regard and on his production of a chauffeur’s badge. In the decision in the Rock case the Supreme Court of the United States stated that it was of no importance that the accident did not result from -the fraudulent deception. The same reasoning applies here, except that here, as we have already held in Plick, Wife of Adams, et al. vs. Anthony Tusa et al., 11 La. App. 106, 124 So. 678, the negligence of Adams himself contributed to the accident, and thus the cause cannot be said to be dissociated from the fraud; that is, Adams fraudulently persuaded defendant that he was a careful chauffeur, and he did this by producing a chauffeur’s badge, whereas, in fact, the cause of the accident was his own carelessness. In my opinion the facts. in this case bring it squarely within the doctrine announced by the Supreme Court of the United States in the Rock case, wherein we find the following:

“Respondent’s position as employee is essential to his right to recover under the act. He in fact performed the work of a switchman for petitioner, but he was not of right its employe, within the meaning of the act. He obtained and held his place through fraudulent means. While his physical condition was not a cause of his injuries, it did have direct relation to the propriety of admitting him to such employment. It was at all times his duty to disclose his identity and physical condition to petitioner. His failure so to do was a continuing wrong in the nature of a cheat. The misrepresentation and injury may not be regarded as unrelated contemporary facts. As a result of his concealment his status was at all times wrongful, a fraud upon the petitioner, and a peril to its patrons and its other employees.’ Right to recover may not justly or reasonably be rested on a foundation so abhorrent to public policy.”

The majority opinion cites several cases as authority for the proposition that fraud in obtaining employment does not prevent recovery by the employee as such.

In practically all of these cases the only fraudulent misrepresentation was with regard to the age of the applicant for the position. It is evident that, in all such cases, the applicant was apparently at least twenty-one years old, for otherwise the misrepresentation could not have been relied on. It is also clear that a mis-statement as to age in such a case is of no material importance.

I quite agree with Mr. Justice Sayre in the statement made by him in St. Louis & S. F. R. Co. vs. Brantley, 168 Ala. 579, 53 So. 305, 306:

“I would not, however, be understood as declaring that every misrepresentation made by one applying to an employer for employment so vitiates the ensuing contract as to deprive the employee of the benefit of the statute. To have that effect the misrepresentation must be material to the contract, must be made with the intent to defraud, and must deceive.”

It strikes me that the misrepresentations made in, the case we are now considering were material, were made with the intent to defraud, and did deceive. The defendant had no intention at any time of employing a negro. It no doubt realized that the employment of negroes would create disturbances and disputes with the other employees. If such disturbances or disputes had resulted in violence, then respondent would have been liable, for, under the doctrine announced by our Supreme Court in Ferguson vs. Cady-McFarland Gravel Co., 156 La. 871, 101 So. 248, 249, a master is liable in compensation to an employee injured by a fellow employee as the result of a personal grudge. On this point the court said:

“An employee, like the decedent, who may have an enemy among his fellow employees in the same gang in which he is required to work, necessarily comes in contact with such enemy throughout- all hours of the day, and is constantly exposed to assault and bodily harm. He therefore incurs greater risk necessitated by his employment than a person ordinarily would be subjected to outside of such employment.”

Furthermore, how can it be said that the misrepresentation as to the ownership of a chauffeur’s badge was of no material importance. The employer had an absolute right to rely on the fact that such a badge meant that the employee was certified by the city to be a competent chauffeur.

The misrepresentation as to the name was also of material importance, because it was made for the purpose of preventing the employer from discovering the fact that the applicant was a negro. The applicant knew, and his parents knew, that if his correct name was given, and if his residence was given, there would be grave danger of the employer discovering that he was colored' and not white.

I shall briefly refer to the cases cited in the majority opinion in an endeavor to show that in each of them the misrepresentation was in regard to matters of small importance.

In Hart vs. N. Y. C. & H. R. R., 205 N. Y. 317, 98 N. E. 493, the only misrepresentation was as to age. A boy apparently of mature age stated that he was over twenty-one, and thus obtained employment in violation of a rule of the company.

In Galveston, H. & S. Ry. Co. vs. Harris, 48 Tex. Civ. App. 434, 107 S. W. 108, the applicant stated that he had never had litigation against a railroad company. This statement was untrue, and violated a rule of the company that it would not employ any one who had had previous litigation against a railroad. Surely such a misrepresentation was not material.

In Lupher vs. Atchison, T. & S. F. R. Co., 81 Kan. 585, 106 P. 284, 25 L. R. A. (N. S.) 707, the misrepresentation was solely as to age.

In St. Louis & S. F. R. Co. vs. Brantley, 168 Ala. 579, 53 So. 305, the misrepresentation was solely as to age, but the case was remanded on other points. The majority of the court stated that the misrepresentation would not deprive the claimant of the right to recover, “unless the immaturity immediately contributed to the injury.” The immaturity referred to was lack of age on the part of the claimant.

In McDermott vs. Iowa Falls & S. C. Ry. Co. (Iowa) 47 N. W. 1037, the court held that the jury should consider whether the misrepresentation as to age was material.

In Matlock vs. Williamsville, G. & St. L. R. Co., 198 Mo. 495, 95 S. W. 849, 115 Am. St. Rep. 481, the misrepresentation was solely as to age, but I do not consider this case at all in point, because the court held that the situation was such that, regardless of the employment or of the age, the negligence shown would have rendered the defendant liable.

My associates in the majority opinion cite Stafford vs. B. & O. R. R. Co., 262 F. 807, 811 (D. C. W. Va.). As I read this decision, it is squarely in line with the decision of the Supreme Court of the United States in the Rock case, supra, but, if I am mistaken in my interpretation of it, then, as the facts involved are identical with those discussed in the Rock case, it is overruled by the decision of the Supreme Court of the United States.

In Payne, Agent, vs. Daugherty (C. C. A.) 283 F. 353, I find that the misrepresentation was merely as to the physical condition of the applicant, and I think that this case is also distinguishable on the ground that, although it was brought under the Employers’ Liability Act, the court stated that it really resulted from a violation of the Safety Appliance Act. Furthermore, it seems to me to be directly in conflict with the doctrine announced in the Eock case.

It is said that a contract procured by fraud is merely voidable and not void “ab initio.” There is 'no doubt that this statement is correct as a general proposition, but, as applied to this case, it overlooks the essential fact that the right to annul a contract because of facts not known is in fact no right at all until discovery of the facts. Conceding that the defendant could have annulled the contract on showing the true facts, it so happens in this case that it did not know them, and its lack of knowledge resulted solely from the fraud. It did not know the true facts until after the accident, which terminated the contract and which brought into existence the right now sued on, if that right exists at all. Of course, if the defendant had discovered the deception, and had, after such discovery, retained the employee, an entirely different case would have been presented. The words in bold type in the following quotation from the syllabus of the Rock case are, on this point significant:

“One who obtains a job as switchman by fraudulently evading the company’s rule for physical examination, and who is injured in the course of his employment while the company remains unaware of the deception, is not of right an employee. * * *"

I am not prepared to say that any fraud would, in my judgment, be sufficient to annul a contract of employment and to render inapplicable to such a contract the Workmen's Compensation Laws of this state, but I believe that here, where we have four distinct fraudulent acts, and where it is conceded that the employment would not have come into existence but for the deception in all four particulars, it would he monstrous to allow a recovery which, as I have already stated, can only result from a contract of employment, where that contract of employment was brought into existence solely and entirely as a result of a deception, a fraud, and a cheat.'Then, too, I cannot lose sight of the fact that it is not the minor employee who is now before us seeking recovery, hut that the parents are the plaintiffs, and that they, in a large measure, assisted in the perpetration of the fraud. As I read the record, it was the mother, one of the plaintiffs now before us, who, in effect, stole from the clothing of another chauffeur the badge' which her son used, and thus we find that the parents, plaintiffs now before us, are seeking to benefit as the result of their own fraud and deception. The evidence given by Mrs. Adams shows beyond peradventure that she was not ignorant of the deception. She seems to be a woman of remarkable intelligence and with keen appreciation of the legal effect of the various facts connected with the deception practiced.

The danger which would result from the violation of the reasonable rules of defendant cannot be lost sight of. The general public is interested as well as the patrons of defendant company, and, for this reason, public policy requires that -contracts of this kind be not induced by fraud and that reasonable rules and regulations he not set at naught hy fraudulent misrepresentations such as were made in this case. As was said in Stafford vs. B. & O. R. R. Co., supra:

“The force of the moral side of the .question bears strongly, too, in the same direction. Railroad brakemen fill very responsible places in railroad operation. Not only the corporation, but the public also, are vitally interested in his physical and other ability to protect both lives and property from destruction.”

But I do not flatter myself that I can state the proposition that employment secured through fraud is no employment at all more succinctly, nor more forcibly than has been done by the Supreme Court of the United States in the Rock case, to which I have referred, and I rest my view squarely on that opinion.

I, therefore, respectfully dissent.


source: Caselaw Access Project

author: ODOM, J.

license: Public Domain

text:
    No. 3617
    Second Circuit
    AMERICAN NAT’L INS. CO. v. CASLEY ET AL. (WILSON & ABRAMSON, Interveners and Third Opponents)
    (June 2, 1930. Opinion and Decree.)

      Thatcher, Browne, Porteous & Myers, of Shreveport, attorneys for plaintiff, appellee.
    Wilson & Abramson, of Shreveport, attorneys for interveners, appellees.
    Foster, Hall, Barret & Smith and Philip H. Mecom, of Shreveport, attorneys for defendants, appellants.
   ODOM, J.

On June 11, 1928, plaintiff issued a policy of insurance on the life of Joe Casley, with Alice Casley, designated as his wife, as beneficiary. Joe Casley died on January 7, 1929, and proofs of death were promptly made. But, before payment was made by the insurance company, it was notified that Alice Casley had entered into a written agreement and contract with Shepherd Hays, Emanuel Hays, and Isom Hays, brothers or half-brothers of the deceased, Joe Casley, under which Alice (Jasley, the name beneficiary under the policy, was to receive only one-half the proceeds of the policy and the Hays heirs were to receive the other one-half. There being several claimants to the proceeds of the policy then in the hands of the insurance company, it came into court, cited the respective claimants and asked that it be permitted to deposit the amount in the registry of the court and be relieved of further liability, under the provisions of Act 123 of 1922. The court so ordered and the amount was deposited.

Emanuel Hays, Isom Hays, and Shepherd Hays then came into court and set up that they were entitled to one-half the amount deposited by virtue of an agreement entered into with Alice Casley, which agreement is in writing, and reads as follows:

“This agreement witnesseth:
“That whereas, Alice Casley, wife of Joe Casley, deceased and Emanuel Hays, uncle, together with his half brothers, Shepherd Hays and Isom Hays, are joint claimants to the estates of Joe Casley, Martha King and Julia Levinson;
“Now it is therefore agreed, that all sums, monies, properties, rights and credits of whatsoever nature belonging to any or all of these estates are to be divided into the following proportions:
“Alice Casley to receive one-half (1/2) of all sums, properties, monies, rights and credits of whatsoever nature belonging to any and all of these estates, recovered from these estates, and the other one-half (1/2) to go to Emanuel Hays, Shepherd Hays and Isom Hays.
“It is understood that the above is to include all insurance policies on the lives of Joe Casley, Martha King and Julia Levinson, irrespective of who the beneficiary is m such policies (with the exception of two policies in favor of Alice Casley on the life of Joe Casley, deceased, with the Southern Life & Accident Company, the amounts not to exceed Two Hundred & No /100 ($200.00) Dollars, the proceeds of which policies are hereby relinquished unto Alice Casley).
“The purpose of this agreement is to effect a complete compromise and settlement between the parties hereto in reference to the proceeds of the three named estates and the signatures of the respective parties bind them to this agreement and it is their guarantee of complete satisfaction of' all claims arising out of this matter. It being understood that the parties hereto will give each other mutual support in attempting to recover the proceeds of said estates.”

Alice Casley also came into court and admitted that she made the agreement and contract evidenced by the said instrument but denied that she was bound by it for the reason that she entered into and signed the contract through error of fact; that said parties had through 'false and fraudulent representations led her to believe that her marriage to Joe Casley was null and void; that instead of being his wife, she was in fact and in law his concubine, and that she was entitled to no more than 10 per cent, of said amount; but that she had later learned that her marriage to Joe Casley was valid and she was entitled to the whole amount of the proceeds of the policy which was made payable to her as his wife.

Wilson & Abramson, attorneys, intervened, asserting the legality and binding effect of the said contract and claimed one-fourth the amount on deposit or one-half the amount due the Hays as a fee for representing them in the settlement. The Hays denied that they were due the attorneys anything.

The court, after hearing the case on its merits, upheld the contract, awarded one-half the amount on deposit to Alice Casley and the other half to the Hays, but ordered them to pay one-half of their share to the attorneys. Alice Casley appealed and perfected her appeal by making bond. The Hays appealed from the judgment recognizing the attorneys’ right to one-half the amount coming to them, but their appeal was not perfected.

The only question, therefore, before the court is whether Alice Casley is bound by the above quoted contract. The law applicable is concisely stated in the syllabus to the case of Calhoun vs. Teal, 106 La. 47, 30 So. 288, which reads as follows:

“Where there exists error of fact, proceeding either from ignorance of that which really exists, or from a mistaken belief in the existence of that which has none, and this error was the principal cause of, and bore upon the motive for, yielding consent to a certain business agreement, relief against it may be had.”

Alice Casley alleged and now contends that the Hays led her to believe that her marriage to Joe Casley was null and void and that she was advised by attorneys that if the marriage was in fact void, she was entitled to only 10 per cent, of the amount of the insurance policy, and that, laboring under the belief that her marriage was null, which was not true, and that this error was the (principal cause and motive for making the contract. Our conclusion is, and' we hold, that she failed to make out her case.

In making the contract, she was represented by her attorney, Mr. George T. Naff, who advised her to sign it.

The policy on the life of Joe Casley issued by the plaintiff insurance company is dated June 11, 1928, and is made payable to Alice Casley, his wife. As a matter of fact, she was not his wife at that time, for they were not married until August 17, 1928, as shown by the marriage certificate. In 1912 Alice Casley married a man by the name of Jasper Warren. They lived together until 1920, when Warren left the state and Alice heard no more from him. Jasper Warren died on August 6, 1928, eleven days before Joe Casley and Alice were married. In the meantime, in the year 1925, Alice married a man named Brady, from whom she was not divorced at the time she married Joe Casley. At the time she married Brady, her first husband was living and there had been no divorce between them. It is stated by counsel in brief that Alice obtained a divorce from her second husband, Brady, in December, 1928, after she was married to Joe Casley in August of that year.

Joe Casley left a last will and testament bequeathing to his wife, Alice, all of his property. This will was probated and Alice was put in possession of all of his property. Joe Casley was a full brother of one of the Hays and a half brother of the other two, and the four were heirs to Martha King and Julia Levinson, each of whom had died, and it seems that their successions had been opened and were in process of administration. Joe Casley having instituted Alice his sole heir, she became interested in the successions of Martha King and Julia Levinson. After the will was probated, there was some question raised as to the capacity of Joe Casley to dispose of his property by last will. It appears also that at the time Joe Casley and Alice were married, Alice knew nothing of the whereabouts of her first husband, Jasper Warren, and that she knew nothing of his death until after the contract was entered into. Therefore, the following questions were presented for the serious consideration of Mr. Naff, who represented Alice in making the contract:

(1) There was serious doubt as to whether the marriage between Joe Casley and Alice was legal;

(2) There was serious doubt as to whether the last will and testament made by Joe Casley was valid; and

(3) There was serious question as to whether Joe Casley was a legitimate heir of either Martha King or Julia Levinson, so that if the will had been valid, it was questionable whether Alice could share in those successions.

These matters were all suggested and considered and litigation was threatened. Mr. Naff reached the conclusion and so advised his client that, in view of all these conflicting contentions, it was advisable that Alice compromise by accepting one-half of the successions of Martha King and Julia Levinson, and one-half the proceeds of the insurance policies. It seems clear, therefore, and that was the view of Mr. Naff, that this agreement was a compromise settlement between the parties. If the contention of the Hays was correct that the marriage was not legal; that the will was not valid and in any event, that Joe Casley was not a legitimate child, then Alice would be a heavy loser, for she could get no more than 10 per cent, of the proceeds of the policies and could not share in the successions. On the contrary, however, by making the settlement which she did, she was made sure of getting 50 per cent, not only of the proceeds of the policy, but of the successions as well. It is suggested by counsel for appellant that said successions were insolvent; however, the record contains no proof that they were. Counsel offered in evidence the record in the case of Succession of Martha King, but that record is not attached to this suit.

In view of all the circumstances, it cannot be said, we think, that the alleged error into which Alice was led with reference to the validity of her marriage was the principal cause or motive which induced her to make the contract. We view the contract as a compromise settlement between the parties and we think article 1831 of the Civil Code controls. That article reads as follows:

“But if the compromise be of all differences generally, and there were other subjects of dispute, besides that in which the error existed, of sufficient importance to raise a presumption that, even if the error had been discovered,' the compromisé would still have been made, then such error shall not invalidate the contract.”

The judgment appealed from is correct and is accordingly affirmed, with all costs.


text:
    No. 3811
    Second Circuit
    SHIELDS v. SUCCESSION OF HODGE

      (June 2, 1930. Opinion and Decree.)
    McHenry, Montgomery, Lamkin & Lam-kin, of Monroe, attorneys for plaintiff, appellee.
    Theus, Grisham, Davis & Leigh, of Monroe, attorneys for defendant, appellant.
   ODOM, J.

On May 4, 1929, between 8 and 9 o’clock p. m., plaintiff was driving her Ford coupe north on Fourth street in the city of West Monroe. At the same time, Wesley Hodge, Jr., the fifteen-year-old son of Dr. Hodge, was driving a Ford roadster west on Mill street. (The two streets intersect at right angles.) The two cars collided at the intersection. Plaintiff was injured and her companion in the car, Mrs. Bynum, was instantly killed. Plaintiff sued Dr. Hodge for damages. Dr. Hodge died before issue joined, and his widow qualified as administratrix of his succession, -and the suit was prosecuted against the succession. Plaintiff alleged that the collision was due solely to the gross fault and negligence of young Hodge, driver of the Ford roadster.

The defense is contributory negligence. The trial in the district court resulted in a judgment for plaintiff in the sum of $5,231, from which defendant appealed. Plaintiff moved to amend the judgment by increasing the amount.

The record in the case is quite voluminous, but, in the last analysis, the issues are determined by the physical facts and the testimony of the only witnesses present when the collision took place, to-wit, the plaintiff, who was driving her ear, young Hodge, who was driving the roadster, and his companion in the car, Coates. Mrs. Bynum, who was in the car with plaintiff, was killed. Other persons who were near the scene heard, but did not see, the collision.

Neither Fourth nor Mill is a right of way street under ordinance or regulation of the city, nor were there warning or stop signs on either. Each is a prominent street and about the same width. The rights and obligations of these motorists at the intersection were therefore equal and mutual. It was the duty of each driver to proceed cautiously and to keep his car under control. This is conceded, but plaintiff, on the one hand, contends she was prudent and cautious and that young Hodge was grossly negligent, lost control of his car, and ran against her after she had entered the intersection; while, on the other hand, defendant contends that the accident was due to the joint negligence of the two.

That young Hodge was- driving his car at an unlawful, excessive, and reckless rate of speed, and that, due to his excessive rate of speed, he lost control of it completely, is proved beyond question. He testified that he was running west on Mill street at about thirty-five miles an hour when he first saw plaintiff’s car at the intersection, and his companion, Coates, said that he was running about thirty-five or forty miles an hour. We doubt if either knows how fast the car was running. Young Hodge was asked:

“Q. You don’t know how fast you were going except what you think about it?
“A. Just averaged it, just cut it open like that all the time everywhere I am going.”

In other words, to use the language of the street, he “had it wide open.” On his way to the intersection of Fourth and Mill streets, Hodge drove north on Cypress street at fifty-five to sixty miles an hour, according to Coates, and, according to Simpson, made a left turn into Mill street at about twenty miles, and that he appeared to speed up after turning into Mill. When he turned into Mill street, he was two blocks from Fourth street, and went across Third, which is between Cypress and Fourth, without stopping. He therefore had ample time in which to gain full speed. The physical facts clearly indicate that he was going at a high rate of speed when he first saw plaintiff’s car enter the intersection. He says he applied his brakes the moment he saw the other car, or rather its lights, at the intersection. The brakes took effect, as shown by the fact that the wheels, or some of them skidded sixty-six feet by actual measurement. The application of the brakes retarded the speed some, of course, yet his car struck plaintiff’s with such terrific force that plaintiff’s car was knocked, not pushed or shoved, a distance of thirty-three feet over against a light pole at the northwest corner of the intersection and Mrs. Bynum was thrown fifty-eight feet west on Mill street. Coates and others say that the Hodge car hit the other one twice, the second time after it turned around and landed against the light ¡pole.

That plaintiff’s car reached the intersection first is likewise well established. The collision took place at or near the manhole which is three feet eight inches north and three feet five inches east of the center of the intersection. The front end of the Hodge car ran against the right side of plaintiff’s near the rear end. This indicates that plaintiff’s car had, when struck, passed the center of the intersection by approximately its length. Both Hodge and Coates, his companion, say that plaintiff’s car reached the intersection first. Coates was asked (page 144 of the record):

“Q. Who got to that intersection first, you or her?
“A. Mrs. Shields did.
“Q. She was there first?
“A. Yes, sir, she was there first.”

Hodge gave the following testimony at page 328 of the record:

“Q. Where was Mrs. Shields’ car with reference to the right or upper line of Mill Street when you first saw it?
“A. She was coming down about the center of the street I think.
“Q. Then when you first saw Mrs. Shields’ car, it was in the center of Mill Street?
“A. From the lights it looked in the center.
“Q. Where was the bumper of her car then, -in Mill Street?
“A. Yes, sir.
“Q. And that was the time when you applied your brakes?
“A. I applied my brakes just time I saw the lights flicker.”

According to this testimony of Hodge, plaintiff’s car was well within the intersection when he saw it, at which time he was more than sixty-six feet from it. It may be that this witness was somewhat confused when he gave the last-quoted testimony, for he was later asked:

“Q. What part of Mrs. Shields’ car was in Mill Street when you applied your brakes ?
“A. I don’t believe she got quite to the intersection of Mill Street.
“Q. How far was she from the intersection?
“A. She must have been a pretty good ways.”

This indicates that he did not know. But his testimony as a whole warrants the holding that he thought plaintiff’s car was either in the intersection or very near to it when he first saw it — at any rate, much nearer to it than he was.

Plaintiff testified that, before reaching the intersection, she blew her horn, stopped, looked, did not see the Hodge car, then proceeded slowly, her car being in low gear when hit. Her testimony that she gave the horn signal is corroborated by that of Mrs. Julian Cobb, who lived at the second door on Fourth street from the intersection. She said she heard the horn signal and recognized it as plaintiff’s, as it had a peculiar sound with which she was very familiar, and that she heard the crash immediately. Hodge admitted that he sounded no alarm before reaching the crossing. The testimony of plaintiff and of Mrs. Cobb that the horn signal was given, and of plaintiff that she stopped, looked, and proceeded slowly, is not contradicted, except by that of Hodge and Coates, who say they do not think she stopped, and who estimated her speed at approximately twenty miles an hour at the moment of the collision. They both stated that they could not be positive as to her speed, nor could they say definitely that she did not stop, as they saw nothing except her lights as they shone on the street. The Hodge car, as already stated, was proceeding at high speed, and must have been a considerable distance away when plaintiff reached the crossing and looked, which accounts for the fact that she did not see it.

As there was no municipal ordinance or regulation giving cars on either of these intersecting streets the right of way, the plaintiff, having reached and entered the intersection first, had the right of way and was entitled to proceed. Such has been the uniform holding of the Courts of Appeal in this state. Johnston vs. Worley, 3 La. App. 675; Borrello vs. Rohrer, 4 La. App. 510; Smyth vs. Hill Stores, Inc., 8 La. App. 246; Marshall vs. Freeman, 10 La. App. 12, 120 So. 414.

In the 10th La. App. case cited supra, and in others, the Orleans Court held that the one entering the intersection first had the right to proceed, even though the car on another street had the right of way.

The rule is stated as follows in a case note found in 21 A. L. R. page 974:

“In the absence of a statute or ordinance regulating the matter, it is a general rule that the vehicle entering an intersection of streets first is entitled to the right of way, and it is the duty of the driver of another vehicle approaching the crossing to proceed with sufficient care to permit the exercise of such right without danger of collision.” See supplement to this note in 37 A. L. R. page 494, and 47 A. L. R. page 595.

Hodge, the driver of the roadster, was proceeding at such high speed that he could not stop after seeing plaintiff enter the intersection. His negligence in that respect was the proximate, if not the sole, cause of the accident.

The mere fact that one vehicle has the right of way at an intersection does not absolve the driver of the car thus favored from the duty of using due care to avoid injury to others at the intersection.

Invoking the latter rule, counsel for defendant contend that plaintiff did not use due care and plead contributory negligence in bar of plaintiff’s action. Contributory negligence in actions of this kind bars recovery. But when that defense is set up, the burden rests upon defendant to sustain it. Buechner et ux vs. City of New Orleans, 112 La. 599, 36 So. 603, 66 L. R. A. 334, 104 Am. St. Rep. 455, and authorities there cited; Lemoine vs. City of Alexandria, 151 La. 562, 92 So. 58; Lipscomb vs. Standard Highway Co., 11 La. App. 508, 124 So. 156.

The negligence attributed to plaintiff is that she herself was speeding. As tending to prove that she was, defendant called six witnesses, each of whom swore that he had gone to the scene, either that night or the next day, and some on both occasions, and that there were skid marks on Fourth street just south of the intersection, extending back fifty or sixty feet, and some of them said that they extended into the intersection to the spot where the collision took place.

It is shown that an ambulance was carried that night to this intersection over Fourth street, the one over which plaintiff went, and that it made skid marks for some fifty feet just south of the intersection. But defendant’s witnesses testified that they saw the skid marks of the ambulance and of another ear also. Th’s testimony was introduced to support the theory that plaintiff tried, but failed, to stop the car. This testimony, if uncontradicted, would strongly corroborate defendant’s contention that plaintiff was speeding. But plaintiff produced exactly the same number of witnesses who swore positively that there were no skid marks on Fourth street, except those made by tie ambulance. Hammons and Cummings, police officers of the city, testified that, in l;ne with what they conceived to be their duty as officers, they went to the scene that night immediately following the accident, and, in order to ascertain, if possible, who was responsible for the collision, viewed the surroundings, and especially the streets, looked carefully for skid marks on Fourth street, using a flashlight; that they went back early the next morning for the same purpose; that they looked critically; and that none were there, except those made by the ambulance.

Mr. Wright, the probation officer, who had taken the minor, Hodge, into custody at the request of his father, went to the scene the next morning for the same purpose. He testified that there were no skid marks on the street, except those made by the ambulance. Plaintiff’s other three witnesses were equally positive. The witnesses for the respective sides are, so far as we know, of equal credibility. On this point, therefore, there is no preponderance of evidence in favor of either side.

Defendant introduced Jesse Cobb, Mose Bayles, Ed Anders, and Mr. Henry, whose testimony indicates that plaintiff was running between twenty-five and thirty miles an hour when she was some distance south of the Mill street intersection. Cobb and Bayles were in a Ford going north on the same street, as was Anders, in a Chevrolet. They say plaintiff passed them going twenty-five or thirty miles. Mr. Henry saw plaintiff turn from Natchitoches into Fourth street at a rapid rate. But none of these witnesses could say that plaintiff maintained that speed up to or into the crossing. They did not notice her car after it passed them at least a block and more south of where the collision took place.

As against all this, there is the testimony of plaintiff that she was not speeding, and that she stopped before entering the intersection.

Defendant failed to discharge the burden of sustaining her plea of contributory negligence.

By ordinance of West Monroe, it is made unlawful for any person to operate a motor vehicle on any of the streets at a speed exceeding fifteen miles an hour. Plaintiff admitted that she was proceeding up Fourth street, before reaching the crossing, at twenty miles, in violation of the ordinance. Hodge and Coates estimated her speed at twenty miles while in the intersection and at the moment of the collision.

The testimony as a whole does not warrant the holding that plaintiff was exceeding the speed limit at the time of the collision. But even if it be conceded that she was, and, therefore, guilty of negligence in that respect, it does not necessarily follow that, as a matter of law, she cannot recover. Counsel in their brief say that contributory negligence defeats recovery, even though the negligent act consisted in the violation of a statute or ordinance. That is true, of course, if plaintiff’s negligence in that respect contributed to the accident and injury as the proximate cause thereof. Contributory negligence defeats recovery in cases of this kind. But a plaintiff may be guilty of negligence and still recover, because a negligent act may not amount to “contributory negligence’’ in its legal sense, and it is only “contributory negligence” in its legal sense which defeats recovery.

“Contributory negligence in its legal significance is such an act or omission on the part of plaintiff, amounting to an ordinary want of care, as concurring with the negligent act of defendant is the proximate cause or occasion of the injury complained of." 29'Cyc. p. 505; 28 Cyc. p. 38.
“The mere collateral wrongdoing of the injured person cannot of itself defeat the right of recovery for the injury if it did not proximately contribute thereto, and, although one injured in an automobile accident may have been guilty of negligence, yet, if his negligence did not so contribute to his injury as that, but for such negligence on his part, he would not have received the injury, it will not bar recovery.”

Blashfield’s Encyclopaedia of Automobile Law (1927) vol. 2, p. 1209. See, also, Words and Phrases, First, Second and Third Series, Contributory Negligence.

The negligence of plaintiff, to bar recovery, must have in it the element of proximate cause. None such is shown here. Defendant is liable.

AS TO QUANTUM OF DAMAGE

At the time she was injured, plaintiff was twenty-five years old, in good health and was earning $220 per month. She was in a sanitarium one month, was confined to her bed at home for seven weeks additional, and during the time suffered. She was shocked and had contusions and lacerations about the body, a fracture of four transverse processes of the vertebrae, a fracture of the sacrum, “a fracture of the ischium, a portion of the pelvic bones.” She has some , difficulty in walking, one leg being slightly shorter than the other. There is no evidence that her earning capacity has been reduced. The physicians testified that she is now incapable of giving normal birth to a child. We do not consider that. She was once married and had no children and was separated from her husband at the time of the accident. Her expenses were something over $1,000. The court allowed her $5,231. We approve the allowance.

For the reasons assigned, the judgment is affirmed, with costs.


author: ELLIOTT, J. LeBLANC, J.

text:
    No. 536
    First Circuit
    FADAOL v. RIDEAU
    (May 6, 1930. Opinion and Decree.)

      E. V. Boagni, of Opelousas, attorney for plaintiff, appellant.
    George K. Perrault, of Opelousas, attorney for defendant, appellee.
   ELLIOTT, J.

Nahon Fadaol brought suit against Jean Baptiste Rideau for $264, alleged to be due him on a note for that amount.

The defendant, Rideau, denies that he executed the instrument described in the petition of the plaintiff. He pleads under reservations, and, in the alternative, the prescription of five years.

Under the answer, the burden of proof is upon the plaintiff to prove that the signature which the instrument sued on bears in the form of a mark is that of the defendant. If that fact be established, then the burden is upon the defendant to show the fraud and misrepresentation alleged by him in regard to the amount which it calls for.

J. C. Fadaol, witness for the plaintiff, and J. B. Rideau, defendant, both testified that defendant made payments on his indebtedness to the plaintiff contracted in 1920, but they differ widely in regard to the time at which it was done.

J. C. Fadaol testifies that the payments were made, one September 2, 1922, for $20, another. September 19, 1922, for $80, and that on October 1, 1923, the interest was paid up to that time. Defendant testifies that he paid $20 in October, 1920, and $80 in September or October, 1921, and in November, 1921, he paid approximately $15 in interest. Therefore it must be first ascertained whether this note on which plaintiff has brought suit bears the genuine mark or signature of the defendant. If that fact does not appear, then consideration of other matters is unnecessary.

A mark is not a signature. The mark of a person who does not know how to write is not a signature, but stands in the place of his signature, and is sufficient for every purpose except for making an olographic will.

The Negotiable Instruments Law, Act No. 64 of 1904, sec. 19, provides that:

“The signature of any party may be made by a duly authorized agent. No particular form of appointment is necessary for this purpose; and the authority of the agent may be established as in other cases of agency.”

The Civil Code, art. 2997, provides, that the power “to draw or indorse bills of exchange or promissory notes” must be express and special. And, whenever the Civil Code provides that a mark may be made in signing, it says that the party signing in that way must himself affix his mark. Civil Code, art. 190, subd. 2, arts. 1582, 2234; Code Practice, art. 675.

In this state the mark provided for in our Civil Code and Code Practice is usually made in the form of a cross, the same as in the common law.

Blackstone, speaking of the common-law method of signing, says:

“The method of the Saxons was for such as could write to subscribe their names, and whether they could write or not, to affix the sign of the cross, which custom our illiterate and vulgar do, for the most part, to this day keep up, by signing a cross for their mark when unable to write their names.” Blackstone’s Commentaries, book 2, subject, “Rights of Things,” c. 20, sec. 304, p. 225.

Under the Civil Code, “he who claims the execution of an obligation must prove it.” Article 2232.

“If the party disavow the signature * * * it must be proved by witnesses or comparison, as in other cases.” Civil Code, art. 2245.
“If the defendant deny his signature in his answer, or contend that the same has been counterfeited, the plaintiff must prove the genuineness of such signature, either by witnesses who have seen the defendant sign the act, or who declare that they know it to be his signature, because they have frequently seen him write and sign his name. But the proof by witnesses shall not exclude the proof by experts or by a comparison of the writing, as established by the Civil Code.” Code Practice, art. 325.

In this case the plaintiff endeavors to show that defendant owes the note, by showing that he owed the amount called for by the note.

J. C. Fadaol, manager of Nahon Fadaol’s, his father’s, business since 1915, substantially states: That, in the spring of 1920, the defendant requested the plaintiff to advance, not only to him, but his two sons as well, through the crops until that fall. As no definite arrangement was made as to what amount would be needed, no note was taken; but the account was an open one. Due to high prices of foodstuff and other commodities, .his bill ran much higher than he anticipated. When the fall of the year came, due to low price of cotton, he was unable to pay up all, but caused witness to execute the note in this case, which was discounted at Opelousas-St. Landry Bank & Trust Company. That the note sued on was given at the end of the year, closing the account, and evidences the balance due on said account. That matters rocked along until the fall of 1921, when he failed to make any payment whatever. In 1922, on the 2d of September, he paid me $20; on the 19th, $80. There was no other payment made on this note until 1923, when on the 1st of October he paid the interest, or a trifle more. That defendant made repeated promises, but never paid any more, etc.

The note sued on, bearing date December 16, 1920, shows a name affixed to it, his “J B x Rido.” It appears on its face that mark his the mark was made and the name “J B x mark Rido” was written by the hand of J. C. Fadaol, who signs as the only witness. It is evident that the mark was not affixed by defendant; still, if J. B. Rideau, standing by, understanding^ authorized J. C. Fadaol to affix his mark to the instrument sued on, as appears to have been done, then what was done must be regarded as having been done with defendant’s consent, within the meaning of the law, Civil Code, ar'.s. 1811 and 1819, and, though defendant may not have even touched the pen, the signing would have been binding on him.

The signing is not otherwise testified to by J. C. Fadaol, but he was later questioned in regard to the credits on the note sued on, which also purports to have been signed by J. B. Rido, by making his mark, all in the handwriting, however, and witnessed by, J. C. Fadaol.

“Q. You didn’t look to have some disinterested person sign as witness? Do you usually sign your name as witness to obligations due yourself?
“A. I did it on a thousand and one notes besides that one.
“Q. Is it usual for you to sign peoples names out of their presence, and sign it as witness, yourself?
“A. Yes, I did it as a legal transaction.
“Q. Is that your custom?
“A. No, it is not my custom, I gave him credit for what he paid.”

The defendant testifies: That he signed a note for $100 in favor of the plaintiff, at plaintiff’s request, in the early spring of 1920. That Manuel Rideau, his son, indorsed for him. That Manuel also signed a note at the same time, obtaining in that way advances for himself, for the same amount. That he indorsed for his son Manuel, his son and himself standing for each other. That two colored customers in the store were called to act as witnesses.

Manuel Rideau, called as a witness by defendant, corroborated his father.

The date and amount of the note sued on will not admit of any comparison with the note which the defendant admits signing. Not only is it different in date and amount, but Manuel Rideau never indorsed it, and J. C. Fadaol is the only witness, while the note which defendant admits having signed was, he says,. witnessed by two parties, who could not have been J. C. Fadaol, because defendant says that they were, customers in the store.

Defendant is an illiterate negro farmer. He knows nothing about business methods. The signing of a note indorsed by his son to obtain advances' from the plaintiff for making his crop in 1920 was for him an important event, a matter that he could be expected to remember.

The testimony of the defendant and his son has received our consideration; we find no reason for not accepting their testimony. The plaintiff called a witness in rebuttal, but the witness testified to nothing of any consequence. J. C. Fadaol did not himself, nor did anybody else, take the stand in rebuttal to deny the testimony of the defendant and his son, according to which, the instrument sued on cannot be the note which the defendant signed. Defendant is positive that he did not sign any other note and that he did not contract for advances beyond $100.

J. C. Fadaol testified that defendant promised at various times to pay the note sued on, but defendant denies that he did so. Plaintiff did not call on anybody to support him. He testified that his father and mother did not know how to read and write, which explains why his father left the management of such matters entirely to the witness. Still his father has, it seems, conducted an important mercantile and advancing business in the town in which he lives since 1907, borrows money from the bank, etc.

It is not necessary to pursue the matter any further. The plaintifff has failed to show by a preponderance of the proof on the subject that defendant signed the note sued on.

The lower court rejected plaintiff’s demand. The case was decided correctly.

Judgment affirmed; plaintiff-appellant to pay the cost in both courts.

LeBLANC, J.

(dissenting). Plaintiff, a merchant engaged in business in the city of Opelousas, instituted this suit against the defendant on a promissory note. The note is for the sum of $264, is dated Opelousas, La., December 16, 1920, is payable February 1, 1921, and bears 8 per cent per annum interest from date and 10 per cent additional as attorney’s fees in case it be placed in the hands of an attorney for collection. The defendant, being an illitérate negro, the note is signed by mark, witnessed by J. C. Fadaol, a son of the plaintiff. It bears indorsements of two payments aggregating the sum of $100 and an interest payment on October 1, 1923.

The answer of the defendant is a denial of any liability, with an averment that he had at one time executed a note of $100 in favor of the plaintiff which had been liquidated by the payments alleged in plaintiff’s petition, although on different dates than stated, and a special averment that, if the note signed by him was for a greater amount than $100, then “his signature to the same was obtained by fraud and misrepresentation on the part of the plaintiff. * * * ”

On this issue the case went to trial, which resulted in a judgment by the district judge in favor of the defendant, dismissing the plaintiff’s suit at his costs. From that judgment the plaintiff has appealed.

From the evidence it appears that the defendant, a farmer working at the time as a share cropper, was obtaining advances in the way of groceries, merchandise, and supplies from the plaintiff. On December 16, 1920, his account showed a balance of $264, which was converted into a note for a like amount; that being the note sued on. The defendant being illiterate, the note was prepared and the signature affixed by mark, all of this having been done by J. C. Fadaol whose name appears on the note as a witness. It might be mentioned here that the plaintiff also is illiterate, and this son attended' to all his clerical work and had a considerable part in the entire management of the business.

On December 30, 1921, the plaintiff obtained a loan of $4,500 from the OpelousasSt. Landry Bank & Trust Company, for which he gave his personal note secured by the pledge of a number of smaller notes held by him, among which was the note of the defendant.

According to the testimony of plaintiff’s son, repeated efforts were made by him to collect from the defendant the amount of his note. He succeeded in collecting the amounts endorsed on the back of it, turning over these amounts as he collected them to the Opelousas-St. Landry Bank & Trust Company. All further effort at collecting anything after October 1, 1923, having failed to bring about any result except promises, plaintiff instituted this suit on March 5, 1928.

The defendant does not deny his arrangement with the plaintiff about obtaining advances while he was cropping; the only direct conflict between them being as to the amount of the note that was executed.

If the defendant’s contention be correct, it is evident that the plaintiff, through his son, or both of them, deliberately took advantage of an illiterate negro, and in affixing his signature by mark to a note of $264, when in reality it should have been for $100, perpetrated the grossest kind of fraud.

In finding for the defendant, the district judge necessarily had to conclude that there was fraud. In his written reasons for judgment he charges the plaintiff with the burden of “making out his case by a preponderance of evidence,’’ and states that he failed “to make out his case as the law requires.” He seems to have overlooked that rule of evidence which shifts the burden of proof from the plaintiff to the defendant who charges fraud or pleads some special defense in exoneration of an obligation. Fraud especially must always be proved by him who alleges it. Civil Code, art. 1848. Concerning the matter of the burden, of proof on the subject of obligations, there is article 2232, Civil Code, which reads as follows:

“He who claims the execution of an obligation must prove it. On the other hand, he who contends that he is exonerated, must prove the payment or the fact which has produced the extinction of the obligation.”

This court had occasion to consider this question in the case of Schwartz Bros. vs. Shaheen, 8 La. App. 68, in which the issue was the same as is here presented, and the defendant was held to the burden of proving the fraud of which he complained.

Tested by this rule, the defendant in this case cannot be exonerated from an obligation, legal and valid on its face, because he also has failed to carry the burden which the law imposed on him.

Under the provisions of the Negotiable Instruments Law, the note here sued on created a prima facie valid obligation.

“Every negotiable instrument is deemed prima facie to have been issued for a valuable consideration; and every person whose signature appears thereon to have become a party thereto for value.” Negotiable Instruments Law, Act No. 64 of 1904, sec. 24.

There is not anything in the record to indicate that the plaintiff or his son are people who would engage in a practice such as they are charged with. The father had been in business for a long number of years, and the son had been its manager since 1915. They seem to have prospered, and must have enjoyed the confidence of one of the banking institutions of their city at least, as the Opelousas-St. Landry Bank & Trust Company loaned the father as much as $4,500 on his personal note, secured only by the pledge of notes of the character of the one here sued on. Judged by the extract offered in evidence which showed the statement of the defendant’s account, and the son’s testimony in connection therewith, their system of bookkeeping appears to have been fairly accurate and complete. These matters are mentioned as circumstances to be taken into consideration in weighing the testimony of the defendant’s son concerning the whole transaction against that of the defendant, who exaggerated quite a bit, was evasivo in several instances and uncertain in most of his statements, except the one to the effect that the note he was made to execute was for the sum of $100, and had been indorsed by one of his sons. As a corroborating witness he produced his son, who testified that his father had executed a note for $100, which he had indorsed, but he knew nothing whatever about the note sued on, nor was he at all familiar with his father’s affairs and dealings with the plaintiff.

A stronger character of proof should be required to convict one, it might be said, of so serious a charge as is made against the plaintiff in this case.

In the case of Calhoun vs. McKnight, 44 La. Ann. 575, 10 So. 783, 784, the Supreme Court in commenting on the character of evidence.required in cases in which there was a charge of fraud, said:

“Fraud is never presumed. While courts recognize the cunning concealment in which it shrouds its devious practices, and the difficulty of tracing it by direct proof, and therefore give due weight to all circumstances indicating its existence, yet such circumstances must be of a character to convince the mind clearly before they can support a conviction of such an offense, almost akin to crime.”

No such circumstances appear in this case. The district judge, in applying the wrong rule of evidence, incorrectly decided against the plaintiff, dismissing his suit.

The judgment should he set aside and reversed, and rendered in favor of the plaintiff and against the defendant as prayed for.

For the foregoing reasons I respectfully dissent.