text:
    No 2290
    Second Circuit
    REID v. MISSOURI PACIFIC RAILROAD COMPANY
    (November 7, 1925, Opinion and Decree)
    (April 19, 1925, Rehearing Refused)

      (Syllabus by the Editor.)

    1. Louisiana Digest—Railroads—Par. 58.
    It is the duty of the employees of a railroad company to use ordinary care and precautions to prevent injury to persons or property at crossings even though these crossings are used very little.
    2. Louisiana Digest—Railroads—Par. 61.
    Making a flying or running switch is particularly dangerous under any circumstances. Therefore, where a gondola car, while making a flying switch, collided with a Ford truck on a crossing, employees of the railroad are negligent, even though the crossing was used very litle.
    3. Louisiana Digest—Railroads—Par. 63, 65.
    It is the duty of a co-laborer riding on an automobile truck with the driver to avoid danger wherever possible; therefore, where the truck is negligently backed on a railroad crossing, this negligence will be imputed to the co-laborer riding on the truck next to the driver, as well as to the driver of the truck.
    4. Louisiana Digest—Railroads—Par. 64.
    It-is not only the duty of. one about to cross a railroad track to stop, look and listen once, but it is also his duty to continue to keep a watch of the track.
    5. Louisiana Digest—Negligence—Par. 25.
    Contributory negligence on the part of the plaintiff defeats recovery.
    6. Louisiana Digest—Railroads—Par. 66.
    The doctrine of last clear chance does not apply to the train crew where there is no evidence to show that they were cognizant of the peril of the driver of the automobile truck and could have avoided the collision with it.
    7.Louisiana Digest—Evidence—Par. 42; Railroads—Par. 80.
    Where litigant has an opportunity of producing a witness and fails to do so, the presumption is that the testimony of such witness would be against him, but this does not constitute an admission that the testimony would have been against him.
    Appeal from the Ninth Judicial District Court of Louisiana, Parish of Rapides. Hon. John A. Williams, Judge.
    Action by Dempsey C. Reid against the Missouri Pacific R. R. Company for damages for personal injuries arising out of a collision between a gondola car of the railroad and a Ford truck.
    There was judgment for plaintiff and defendant appealed.
    Judgment reversed.
    Overton & Hunter, of Alexandria, attorneys for plaintiff, appellee.
    Hudson, Potts, Bernstein & Scholars, -of Monroe, attorneys for defendant, appellant.
   ODOM, J.

Plaintiff brings this suit against the defendant to recover damages for injuries which he received when a gondola or coal car on defendant’s track at Tioga, Louisiana,. collided with a truck in which he was riding.

At the time of the accident, Reid, the plaintiff in this case, was sitting on the seat of a truck by the side of Sidney A. Townsend, who was driving it. Reid and Townsend were both seriously injured and each brought suit against the defendant company. Their injuries grew out of the same accident and for the purposes of the trial the two cases were consolidated in the District Court and are submitted on the same testimony. All the conditions, facts and circumstances surrounding the accident are detailed and discussed in the opinion in the Townsend case, this day decided; therefore, it is not necessary to detail and discuss them in this opinion.

The difference between plaintiff’s case and that of Townsend is that Townsend was the driver of the truck and Reid was sitting on the seat by his side at the time of the accident.

We held in the Townsend case that the defendant company was negligent in the. handling of its ears at the time of the accident but that Townsend was guilty of such contributory negligence as to bar his recovery. The question we must determine in this case is- whether Reid, though not the driver of the truck, whs also guilty of such negligence as to bar his recovery.

It is urged in behalf of the plaintiff, Reid, that even though it should be held by the court that Townsend, the driver of the truck, was guilty of contributory negligence, his negligence cannot be imputed to the plaintiff.

But that is not the question in this case, for that point is conceded by counsel for defendant; but it is urged on behalf of the defendant that Reid himself, though not the driver of the truck, was guilty of such negligence as to bar his recovery.

The facts necessary to be narrated in connection with this case are as follows:

Townsend and Reid were both employees of the Lee Lumber Company and were working at its commissary at Tioga, Louisiana.

The Lee Lumber Company maintains an ice house from which it distributes ice to its customers in a Ford truck. Townsend had charge of the delivery of the ice and drove the truck. For some reason or other it was decided that Reid should take over the business of delivering the ice, and on the day of the accident he accompanied Townsend so as to familiarize himself with the routes and the customers. He and Townsend went together on the truck to the ice house, Townsend driving. They loaded the ice on the truck. Townsend got on the truck on the driver’s seat, which is on the left-hand side. Reid cranked the engine and got on the truck on the driver’s seat on the right-hand side of Townsend. «Townsend then proceeded to back the truck over the railroad crossing where the accident occurred.

Reid and Townsend both say that when the rear wheels of the truck struck the plank approach to the crossing Townsend stopped the truck momentarily, according to Townsend’s testimony, and about five seconds, according to Reid’s testimony, and that they both looked up and down the track and listened but did not see or hear cars approaching. Townsend then backed the truck to the railroad track, where it was struck by the gondola or coal car, causing the injury.

In our opinion in the case of Townsend versus the same defendant, we have fully set forth our reasons for holding that Townsend was negligent, and the question arises whether Reid also was negligent.

Reid, as stated, was on the seat to the right of Townsend. The truck was open, so that he could see to the right of him. There were no curtains to obstruct his view. The cars which struck the truck came from down the track, from the north, and struck the truck on the north side—the side on which Reid was sitting. Townsend was sitting on the opposite side of the truck from which the cars were coming and therefore had less opportunity of seeing up the track in the direction from which the cars were coming than did Reid.

Reid sáys that when the rear wheels of the truck reached the west edges of the plank approach to the crossing, Townsend stopped the truck for as much, as five seconds and that he, Reid, looked both Ways, up and down the track, and that he listened, but^neither saw nor heard the approaching cars. He says the engine of the truck was making considerable noise, which probably prevented his hearing the cars.

The testimony shows that from the < seat occupied by Reid at the time the truck was stopped he could see up the railroad track in the direction from which the cars were coming a distance of only eighty feet, and that further view from the truck was obstructed by the corner of the barber-shop.

The testimony further shows that at á point .only a few feét further back the track could have been seen from the point where Reid was sitting for a distance of some two hundred and fifty or three hundred feet; but Reid says he did not look up the track again.

Prom the time he first looked up and down the track he says he looked straight in' front of him; that he does not know what he was looking at but that he w'as looking straight to the front while Townsend was manipulating the truck over the crossing.

In the Townsend case we held that Townsend was negligent in not seeking a view of the track at a point where he could see, and we found that if he had looked a second time or at any time after he first looked he could have seen and averted the danger. The same can be said of Reid. He was sitting at a place where his view of the track to the right—the direction from which the cars were coming —was unobstructed; When he did look he saw that he could, see but a shorty distance up the track on account of the barbershop building; but if he had looked again after the truck moved further back he would have had an unobstructed view of the track for almost the entire length of it and could, of course, have seen the approaching cars. But according to his own testimony he did not see the cars until the moment they hit the truck, notwithstanding the fact that they hit the truck on the side where he was sitting. There is no question but that the accident could have been averted by Reid if he had continued to look.

But counsel contend that it was not Reid’s duty to look, because he was not the driver.

We do not think that under the circumstances of the case Reid was absolved from all duty and responsibility to keep a lookout for his own safety. He was not on the truck as Townsend’s invited guest, nor was he a passenger for hire. He and Townsend were co-laborers engaged in a joint enterprise. He had helped load the truck and had cranked the engine of the truck to start it and, after getting into the truck, he says, he did actually look up and down the track and listen. That fact shows that he realized that he should render some assistance at least in getting the truck over the crossing and that he should exercise some degree of care for his own safety. The fact that he looked and listened, as he says he did, shows that he was not relying solely upon Townsend’s making a safe drive over the crossing. He knew that this was a dangerous crossing and was aware of the necessity for taking every precaution. He was sitting at a place on the truck where he could see and could have protected himself if he had used ordinary diligence.

Learned counsel say that negligence on the part of the chauffeur is not imputable to a passenger, and they cite the following Louisiana cases in support of that doctrine.

Peterson vs. N. O. Ry. & L. Co., 142 La. 835, 77 South. 647;

Daull vs. N. O. Ry. & L. Co., 147 La. 1012, 86 South. 477.

Luke vs. M. L. & T. R. & S. S. Co., 147 La. 30, 84 South. 483.

Jacobs vs. Jacobs, 141 La. 272, 74 South. 992.

Broussard vs. Louisiana & W. Ry. Co., 140 La. 517, 73 South. 606.

Churchill vs. Texas & Pacific Ry. Co., 151 La. 726, 94 South. 314.

In Peterson vs. N. O. Ry. & L. Co., supra, the plaintiff was employed by one Kuhne, who was an employee of a brewing company. His wages were paid by Kuhne. Kuhne was driving a truck and the plaintiff was sitting by his side. The truck was struck by a trolley car of the defendant railway company resulting in injury to the plaintiff. The court found that the motorman of the trolley car was negligent in running his car at a high rate of speed' and that he had the last clear chance to avoid the accident. It also found that there was no negligence on the part of Kuhne in trying to cross the track as he did; and the court said:

“If he was guilty of contributory negligence in that respect, it would not interfere with plaintiff’s right to recover damages from the railway company for the negligence of the motorman, for two reasons, viz.: First, because the motorman had the last clear chance to avoid the accident; and second, because negligence on the part of Kuhne could not be imputed to the plaintiff. He was no more responsible for any negligence that Kuhne might have been guilty of than if he, the plaintiff, had been a passenger for hire.”

The question of negligence on the part of the plaintiff was not raised and was not an issue in the case. The court found that Kuhne, the driver of the truck, was not negligent, but found for plaintiff because the motorman was negligent and had the last clear chance to avoid the accident.

True, the court did saJy that even if the driver of the truck had been guilty of contributory negligence such negligence could not be imputed to the plaintiff who was no more responsible, the court said, for the negligence of the driver than if he had been a passenger for hir.e; but as stated, the point whether a passenger on a motor vehicle can himself be guilty of such contributory negligence as to bar his recovery was not raised and was not decided by the court.

In the case of Daull vs. N. O. Ry. & L. Co., supra, this point w’as not raised. Miss Cuneo, one of the plaintiffs, was riding on the front seat of Rev. Daull’s automobile as his invited guest. There was a collision between the automobile and a street car in which the Rev. Daull and Miss Cuneo were both injured. The court found that both the Rev. Daull, the driver of the automobile, and the motorman were guilty of negligence, and on the original hearing the court said:

“It does not appear' to have been contended in either the argument or briefs, that the right of Miss Cuneo to recover is any stronger than that of Rev. Daull, and we see no reason, in this instance, why it should be.”

And her demands were rejected. But the court, on rehearing, adhered to its former finding that both the driver of the automobile and the motorman were negligent, and said:

“But Miss Cuneo was a guest in the automobile, not charged with its management, and therefore not participating in the negligence of the driver.”

And held for plaintiff, Miss Cuneo, but rejected Rev. Daull’s demands.

In the case of Broussard vs. Louisiana Western Ry. Co., 140 La. 517, 73 South. 606, supra, the plaintiff’s husband was a passenger for hire. The court held that the chauffeur was guilty of contributory negligence and said:

“Wright must be disconnected with that negligence before plaintiff can recover.
“He is so disconnected if he was a passenger for hire and had reason to assume that the chauffeur was competent.”

Wright was on the rear seat of the car. The curtains had been taken down and there was nothing to prevent Wright from seeing the approaching train if he had been looking; and the contention was máde that he should have been looking and have warned the chauffeur, and the plaintiff cited the case of Dixon vs. V. S. & P. Ry. Co., 139 La. 329, 71 South, 527, where' the court held, in effect, that a passenger on the front seat of an automobile is under the same legal obligation as the chauffeur to be observant.

The court said that case had no application because those in the automobile in the cited case were not passengers for hire and that Wright was not on the front seat, and it questioned the soundness of the ruling of the court in the Dixon case. The court did not overrule the Dixon case but differentiated it from the case under consideration.

In the case of Luke vs. M. L. & T. R. & S. S. Co., 147 La. 30, 84 South. 483, supra, plaintiff’s daughter was killed while riding as an invited guest on a motorboat, and the court said:

“We do not rest the decision of this case on the doctrine of contributory negligence, on the part of plaintiff’s daughter, but upon the conclusion that there was no negligence on the part of the employees of the defendant company. If there was any negligence on the part of the young men who were operating the gas boat, it was not attributable to plaintiff’s daughter. One who travels as an invited guest in a boat or vehicle is not responsible for the negligence of the person who operates the boat or vehicle.”

The defendant cited the case of Dixon vs. V. S. & P. Ry. Co., supra, as maintaining that contributory negligence on the part of the driver of a vehicle is attributable to an invited guest riding therein, but the court said that the obiter dictum in the Dixon case was in effect overruled in the case of Jacobs vs. Jacobs, supra, and Broussard vs. Louisiana Western Railway Co., supra.

The case of Jacobs vs. Jacobs, 141 La. 285, 74 South. 992, supra, cited by plaintiff, is not in point, for in that case the court had under consideration the, question of fEe duty and responsibility of the driver of an automobile to an invited guest.

In each of the cited cases, except that of Peterson vs. N. O. Ry. & L. Co., 142 La. 335, 77 South. 647, the court had under consideration the question as to whether the negligence of the driver of a vehicle or a motorboat was imputable to an invited guest or a passenger for hire, and from these decisions it will be seen that it is definitely settled that it is not.

But that is not the question to be determined in the case at bar.

Reid himself is charged with negligence.

While our court has definitely decided that the negligence of the driver or chauffeur is not imputable to an invited guest or passenger for hire, it has never held that such invited guest or passenger for hire cannot by his own contributory negligence bar his right of recovery, but, on the contrary, has very strongly intimated that he may.

In the case of Churchill vs. Texas & Pacific Ry. Co., 151 La. 726, 94 South. 314, supra, the court said:

"Granting that Hayslip, the driver of the automobile, was guilty of negligence in approaching the crossing without slackening his speed and attempting to heat the train across, should this defeat plaintiff’s right to recover for the death of his father, who was the guest of Hayslip? Under the jurisprudence of this court, it would not, unless the circumstances were such that the deceased could he charged with negligence of his own.
“Churchill, not having charge of the operation of the machine, was not required to keep a lookout for danger, hut could rely upon the discharge of that duty by the driver, who was responsible for its operation; and it not appearing that the deceased saw the approaching train until almost the instant of the collision, and, having shouted the warning as soon as it was discovered, we do not find that he was guilty of negligence.”

In the last cited case, the plaintiff was an invited guest in an automobile driven by his son.

In the case of Leopold vs. Texas & Pacific Ry. Co., 144 La. 1000, 81 South. 602, Doctor Leopold was a passenger in an automobile with his son who was driving. They approached a railroad crossing at a speed of about fifteen miles an hour but slowed down to about eight miles an hour. Having struck a sandbed in the road and the engine having stopped running, the son got out and cranked it. Doctor Leopold testified that he looked up and down the track and listened, and mentioned to his son that it was about train time; but he neither saw nor heard the train approaching; then they started on across the track; but:

“That he never looked any more for the approach of a train, for the reason that his attention was attracted to his son’s manipulation of the car, as the latter had been away from home several months, and he was afraid the son would not be able to operate it readily.”

The son drove the car upon the track and it was struck by a train on the defendant’s road.

The court found that the defendant company was negligent in permitting the crossing to get in bad condition and permitting obstructions to grow up on its right of way, so as to obstruct the view at such a dangerous place, and proceeding, the court said:

“These conditions placed upon both parties the duty of exercising extreme care at this crossing; and, inasmuch as Doctor Leopold admits that he never looked any more after stopping until the train was almost upon him, we must conclude that he, too, was guilty of negligence.”

And the court said further:

“Some effort is made to excuse his failure to look again on account of the condition of the crossing, but the doctor says it was his fear that his son did not remember fully how to operate the car, on account of his absence. Be that as it may, he admits that he knew it was about train time, having mentioned it to his son, and the duty to look out for the train was far more important than the matter mentioned. He was not driving himself, so that he was compelled to have his attention on the car.”

The rule which we think should apply in cases of this kind is set forth in 29 Cyc. 561, as follows:

“Notwithstanding the fact that the negligence of the driver will not be imputed to a passenger, yet it is necessary that the passenger himself must exercise ordinary care. And the rule denying the imputation of the negligence of the driver to the passenger has no application where such passenger has an opportunity to discover the danger, it being his duty in such case to discover and avoid it. While the passenger is not required to exercise the same watchfulness as the driver, he cannot rely implicitly on the care of the driver when in a position to see. No recovery can be had where the passenger acquiesced or participated in the negligent acts of the driver, or had knowledge of the danger and accepts the risk to be encountered.”

The Leopold case alone is sufficient authority for holding that the plaintiff in the case at bar cannot recover. In that case, Doctor Leopold knew of and appreciated the danger. He was not in charge of the automobile but was in a position to see. He seems to have realized that some duty rested upon him for he did actually look and listen' but he did not continue to do so.

So, in the instant case, Reid knew the danger of backing over this crossing. He realized, as did Doctor Leopold, that some duty devolved upon him, for he says he looked and listened. He knew that it was dangerous to back out over this crossing, and therefore knew that it would be negligence for the driver of the truck to fail to observe ordinary precautions, and, as before stated, Reid was not Townsend’s invited guest on the truck, nor was he a passenger for hire; he and Townsend were co-workers and Reid assisted in loading the truck and cranked the engine in order to get it started.

And then if it be said that it was not Reid’s duty to look and listen, which is not true under the circumstances of this case, yet knowing the danger, knowing that it would be negligence in the driver to back out without, observing all precautions, and being himself in a position to see and listen and to avert the danger, and not having done so he acquiesced and participated in the driver’s negligence. In either event he was guilty of such contributory negligence as to bar his recovery.

In our opinion in the case of Townsend versus the same defendant, we set out in detail the circumstances which we think are sufficient to show that Townsend, the driver of the truck, was guilty of such .contributory negligence as to bar his recovery. The opinion in that case should, | therefore, be read and considered in connection with this one.

For the reasons assigned, it is therefore ordered, adjudged and decreed that the judgment appealed from be avoided and reversed and that plaintiff’s demands be rejected and his suit dismissed at his cost.

REYNOLDS, X, dissents.


source: Caselaw Access Project

author: ELLIOTT, J.

license: Public Domain

text:
    No. -
    First Circuit
    JIM VAUGHN v. METROPOLITAN LIFE INSURANCE COMPANY
    (November 10, 1925, Opinion and Decree)
    (January 28, 1926, Rehearing Refused)

      (Syllabus by the Editor.)

    1. Louisiana Digest—Insurance—Par. 80.
    A statement by an applicant for life insurance, that he had not consulted a physician when he had done so, and had reason to believe that he had tuberculosis, must be regarded under Act 52 of 1906 amended by Act 227 of 1916, not as a representation but as a a breach of warranty and a fraud upon the insurance company.
    Appeal from the Nineteenth Judicial District, Parish of East Baton Rouge, Hon. W. Carruth Jones, Judge.
    This is a suit against an insurance company to compel payment on a life insurance policy.
    There was judgment for defendant and plaintiff appealed.
    Judgment affirmed.
    Taylor, Porter and Joseph A. Loret, of Baton Rouge, attorneys for plaintiff, appellant.
    Spencer, Gidiere, Phelps and Dunbar, of New Orleans and H. Payne Breazeale, of Baton Rouge, attorneys for defendant, appellee.
   ELLIOTT, J.

The Metropolitan. Life Insurance Company issued a policy for $1000.00 on the life of James Vaughn, making Jim Vaughn, father of James Vaughn, the sole beneficiary. In his application for the policy James Vaughn stated that he had never suffered from any ailment or disease of the lungs and that he had not consulted any physician or been treated by one within the last 5 years. The application contains a declaration that his answers are full, true and complete, and that there are no exceptions to any such answers other than as stated; and further recites “It is understood and agreed that the foregoing statements and answers are correct and wholly true, and together with the answers and questions on part B hereof, they shall form the basis on the contract of insurance, if one be issued.”

The payment of the policy was resisted and plaintiff brought suit.

The defendant, for answer, contends that insured’s answers were false and fraudulent and that he knew them to be false and fraudulent at the time,'and made them for the purpose of deceiving defendant into issuing the policy; that defendant would not have issued the policy had his answers disclosed the true facts; that insured was suffering with tuberculosis at the time, etc.

The District Judge rejected plaintiff’s demand and he has appealed.

The question is: Were the answers and statements of James Vaughn in applying for the policy, so material that same must be held to have been fraudulent and defendant thereby deceived into issuing the policy, which it would not have done had full and truthful disclosures been made in response to the question asked.

It is established that on or about May 16, 1924, James Vaughn, a negro boy about 19 years old, accompanied by either his father or mother applied to Dr. Paulsen for treatment; stating that he “had had lagrippe, with a little fever and had not recovered from it probably”. Dr. Paulsen, suspecting tuberculosis, asked him to send him for examination a specimen of his sputum. The sputum was sent to Dr. Paul-sen’s office on May 20, 1924, and the examination disclosed tubercuolsis.

The doctor did not report the result to James Vaughn; but within about two weeks, it may have been a shorter time, he saw the plaintiff, Jim Vaughn, and told him what he had found.

The insurance was applied for on May 27, 1924. The policy bears date June 3, 1924, and James Vaughn died of tuberculosis on September 9, 1924.

On the same day that James Vaughn applied for the insurance he was examined by another physician in behalf of defendant company. This physician did not examine the sputum but found no evidence of tuberculosis, and that the general appearance of James Vaughn was healthy. That he was a first-class subject for insurance.

Fraud and untruthful answers are not to be lightly supposed. In this case the presumption of truth and good faith is supported by the report of the physician who examined James Vaughn for defendant. But against the presumption appears the certain fact that James Vaughn, accompanied by either his father or mother, consulted Dr. Paulsen about his health on May 16, 1924, and that he was seriously unwell then and had been for some time.

Dr. Paulsen’s request for a specimen of his sputum was complied with on May 20, consequently the answer of James Vaughn on May 27, that he had not consulted a physician, was not true.

The plaintiff contends that his state.ment that he had not consulted a physician must be regarded as a representation under the law Act 52 of 1906 (Amd. 1916, No. 227, p. 492) and not as a warranty.

That James Vaughn, like the insured in Cole vs. Mutual Life Insurance Company, 129 La. 704, 56 South. 645, believed that he suffered only a temporary ailment which did not threaten his life.

We think that the answer af James Vaughn that he had not consulted Dr. Paulsen on May 16, 1924, and that a speciment of his sputum had been requested for examination, concealed from the insurance company an important fact; and it is our opinion, if he had made the fact known on the 27th of May in applying for the insurance, the policy in question would not have been issued. James Vaughn in our opinion, was seriously unwell at the time he, accompanied by his father or mother, called on Dr. Paulsen, and had been for some time.

The evidence does not positively show that the result of Dr. Paulsen’s examination was known to James Vaughn at the time he applied for the insurance; but we are satisfied from the facts and circumstances in the case that he must have been aware and was aware that he had tuberculosis at the time he applied-for the insurance; therefore his answers amounted to a fraud on the defendant within the sense and meaning of the law Act 52 of 1906, (Amd. 1916, No. 227), and as defined by the Supreme Court in Goff vs. Mutual Life Insurance Co., 131 La. 98, 59 South. 28.

We believe the judgment appealed from is correct.

It is therefore ordered, adjudged and decreed that the judgment appealed from be affirmed and that the plaintiff and appel-. lant pay the cost of both courts.


author: O'DOM, J.

text:
    No. 2042
    Second Circuit
    S. B. SIMON v. DR. R. H. BLACKMAN
    (March 11, 1926, Opinion and Decree)

      (Syllabus by the Editor.)

    1. Louisiana Digest—Appeal—Par. 625.
    The finding of the trial court on a question of fact, namely, that the plaintiff “realtor” was entitled to his commission because he had complied with his cbntract, being clearly correct is affirmed.
    Appeal from the City Court of Shreveport, Caddo Parish, Louisiana, Hon. David B, Samuels, Judge.
    Plaintiff brings this suit to collect the sum of $250.00 which, he alleges, is due him by defendant for commisson on the sale of real estate.
    There was judgment in the lower court in favor of the plaintiff for the amount claimed, from which judgment defendant appealed.
    Judgment affirmed.
    B. H. Lichtenstein, of Shreveport, attorney for plaintiff, appellee.
    E. W. and P. N. Browne, of Shreveport, attorneys for defendant, appellant.
   O'DOM, J.

Plaintiff brings suit to collect the sum of $250.00 which, he alleges is due him by defendant for commission on the sale of real estate.

There was judgment in the lower court in favor of the plaintiff for the amount claimed, from which judgment defendant appealed.

OPINION

Defendant, Dr. R. H. Blackman, owned certain real estate in the city of Shreveport which he desired to sell. He entered into an agreement with the plaintiff, S. B. Simon, to the effect that if the plaintiff would find a purchaser for the property at the price of $6250.00 he would give plaintiff, for his services, the sum of $250.00.

Simon found a purchaser for the property at the price agreed upon.

It seems that the agreement between Dr. Blackman and Simon was that the price for the property shold be $6250.00 and that Dr. Blackman should receive $750.00 in cash, a first mortgage for $4000.00 and a second mortgage for $1500.00. Simon found a purchaser for the property at that price who finally purchased it.

There is no dispute between the parties as to the amount of commission that defendant was to allow plaintiff for making the sale.

But it is defendant’s contention that plaintiff agreed to find some one who would take up the first mortgage note of $4000.00 so that the defendant should receive in cash not only the $750.00 but also $4000.00 for the first mortgage note. Defendant was willing to carry the second mortgage note of $1500.00, but was not willing to sell the property unless he realized at least $4750.00 in cash from the sale.

Defendant claims that because Simon was not able to find a purchaser for the $4000.00 first mortgage note he has not carried out his contract and that therefore he owes him no commission.

Defendant says, in his testimony, that during some of his negotiations with plaintiff the plaintiff wrote out on a piece of paper with pen and ink the following words: “I undertake to place a four-thousand dollar first mortgage on this property” and signed the same with pen and ink.

It is admitted that plaintiff did not find a purchaser for the $4000.00 mortgage note.

However, according to defendant’s own testimony, he did finally make a deed for the property and received not only the $750.00 in cash but also received $4000.00 additional in cash. He claims, however, that in order to get the cash on the $4000.00 first mortgage note it was necessary for him to sell to another party certain other lots of ground which he owned in the City of Shreveport, and it is his contention that without making the sale of these other lots he could not have procured a purchaser for the $4000.00 first mortgage note. He sold five of these lots at $1100.00 each. He says that the lots cost him $1400.00 each, and it was suggested by counsel for defendant in his argument before the court that defendant, in order to realize cash on the note for $4000.00 he had to sacrifice his property.

But Dr. Blackman, in his testimony, did not state that the lots which he sold were worth as much as they were when he bought them. While he states that he paid $1400.00 apiece for the- lots he does not state that they had not declined in value from the time he purchased them up to the date on which he sold them.

According to defendant’s own testimony he finally received for his property the price which he agreed to accept for it and procured the amount of cash which it was understood he should receive.

The testimony does not convince us that plaintiff was to receive his commission of $250.00 on condition that he float the $4000.00 first mortgage note.

The plaintiff having found a purchaser for defendant’s property and the defendant having received all he asked for 'it we think he is bound for plaintiff’s commission.

Defendant testified that as a compromise he had offered plaintiff a half-interest in one of the second mortgage notes for $500.00. It does not seem to us reasonable that defendant would have made that offer had he no't realized that he owed the plaintiff the commission sued for.

Upon the whole, the testimony convinces us that the plaintiff is entitled to recover the amount which he claims.

For the reasons assigned, it is therefore ordered, adjudged and decreed that, the judgment appealed from be affirmed with costs.


author: REYNOLDS, J.

text:
    No. 2546
    Second Circuit
    W. J. O’PRY INSURANCE AND REAL ESTATE AGENCY, LIMITED, v. LANIER AUTO SPECIALTY COMPANY, INC.
    (February 8, 1926, Opinion and Decree)
    (March 11, 1926, Rehearing Refused)

      (Syllabus by the Court.)

    1. Louisiana Digest—Fraud—Par. 3.
    Fraud is never presumed.
    Barlow vs. Harrison, 51 La. Ann. 875, 25 South. 378.
    2. Louisiana Digest—Insurance—Par. 33.
    An accident insurance policy accepted and kept by the insured until it has about expired, in the absence of proof of fraud in delivering the policy, binds the insured to pay for the insurance in accordance with the rate stipulated in the policy.
    3. Louisiana Digest—Insurance—Par. 25, 33.
    It is no excuse that the insured placed the policy in its safe without reading ■ same.
    Appeal from the City Court, Alexandria Ward, Parish of Rapides, State of Louisiana. Hon. J. B. Nachman, Judge.
    This is a suit to collect premiums on insurance policies. Defendant answered and filed plea of estoppel.
    There was judgment for plaintiff as prayed for and defendant appealed.
    Judgment affirmed.
    Hawthorne & Stafford, of Alexandria, attorneys for plaintiff, appellee.
    Lamar Polk, of Alexandria, attorney for defendant, appellant.
    STATEMENT OF THE CASE
    W. J. O’Pry, representing the plaintiff, W. J. O’Pry Insurance & Real Estate Agency, Limited, delive2’ed to A. L; Lanier, representing the defendant, Lanier Auto Specialty Company, Inc., a standard accident . insurance policy protecting it against loss caused by accident to its employees from May 1, 1922, to May 1, 1924, and also a like policy similarly protecting it from May 1, 1924, to May 1, 1925.
    Mr. O’Pry, at the time he delivered the policies, was informed by Mr. Lanier that the payroll of defendant would be around $4000.00 a year, and he figured the premium to be charged on each policy at $70.00, and later rendered bills to defendant for the policies at $70.00 as the minimum premium for each of them. These bills were paid.
    The policies of insurance provide:
    “C. The premium is based upon the entire remuneration (salaries, wages, commissions, bonuses and all other remuneration) earned by all persons engaged in the business described in the declarations; and, if livery operations are covered hereby, upon the total amount received by the assured from the livery operations as defined in Insuring Agreement 1-C, to be herein referred to as ‘livery earnings’. Remunerations of active and /or named executive officers and proprietors and of managers and salesmen shall be included in accordance with the provisions of Item 4 of the Declarations.
    “At the end of the policy period the actual amount of the remuneration earned by the employees and the livery earnings received by the assured during such period shall be exhibited to the company, as provided in Condition D hereof, and the earned premium adjusted in accordance therewith at the rates and under the conditions herein specified. If the earned premium thus computed is greater than the advance premium paid, the assured shall immediately pay the additional amount to the company; if less, the company shall return to the assured the unearned portion, but in any event the company shall retain the minimum premium stated in the Declarations.
   REYNOLDS, J.

“D. The company shall be permitted to inspect the garage, sales agency, service station, repair shop and /or automobiles covered by this policy, and to examine the assured’s books and records at all reasonable times during the policy period, or within one year after its final expiration, for the purpose of determining the actual premium earned while the policy was in forcé, and the assured shall, whenever requested by the company, render a statement of the entire remuneration earned by the assured’s employees and of all livery earnings, during any part of the policy period.

“E. This policy may be cancelled at any time at the request of the assured; or by the company by giving five days’ notice of such cancellation, and the effective date of such cancellation shall then be the end of the policy period. If such cancellation is at the company^ request or at the assured’s request, when actually retiring from the business herein described, the earned premium .shall be computed and adjusted pro rata as provided in Condition C. If such cancellation is at the assured’s request, and he is not retiring from the business herein described, the earned premium shall be computed and adjusted at short rates in accordance with the table printed hereon, but such short-rate premium shall not be less than the minimum premium stated in said declarations. Notice of cancellation mailed to the address of the assured herein given shall be a sufficient notice and check of the company, similarly mailed, a sufficient tender of any unearned premium.”

As provided for in the policies, an audit of defendant’s books was made and it showed defendant’s payroll from May 1, 1923, to May 1, 1924, to be $15,141.49, and its payroll from May 1, 1924, to May 1, 1925, to be $15,202.70.

Shortly after the second audit was made plaintiff rendered defendant a bill for the additional premium claimed to have been earned under the policies. On receiving this bill Mr. Lanier telephoned Mr. O’Pry to cancel the last policy, and Mr. O’Pry went to see him, and they discussed the matter fully. The last policy of insurance w”as then in defendant’s safe but it was not returned or offered to be returned to plaintiff but remained in • defendant’s safe and in full force until April 21, 1925—ten days, before it would have expired by limitation.

The bill rendered by plaintiff to defendant was for the difference between the premium paid and that actually earned under the policies, $216.49, and payment having been refused plaintiff brought this suit.

Defendant denied liability and alleged that plaintiff represented to it that the annual premium on each policy would only be $70.00, and thereby induced it to accept the policies, and that having done so plaintiff is estopped to claim any additional premium.

It further alleged that immediately on being informed by plaintiff that a premium in excess of $70.00 a year was owing on each of the policies, it notified the plaintiff to cancel the second policy which at that time had been in force only one month and ten days, and that at that time only 23% of the premium thereunder had been earned, and that consequently it' was entitled to a rebate of 77% of whatever sum the court might find was the premium properly chargeable under the second policy; and it prayed for judgment against the plaintiff in reconvention for 77% of such premium.

On these issues the ease went to trial and there was judgment in favor of the plaintiff for the full amount claimed, and defendant appealed.

OPINION

The question to be decided in this ease is whether the plaintiff must pay premiums at the rate stipulated in the policies or at the rate of $70.00 a year for each policy in accordance with his alleged agreement with plaintiff’s agent, Mr. Lanier.

Defendant alleges in its answer that at the time of the issuance of the policies plaintiff informed Mr. Lanier, its representative, that the total premium on each policy would only be $70.00, but Mr. Lanier does not so testify.

He says, page 21:

“Q. Now, in the writing of that insurance for your company, and in its acceptance by you, did the question of the amount of the premium enter into it?
“A. It was my understanding that it was to be $70.00 per annum.
“Q. What, if anything, was said by the agent of the plaintiff company at the time that this insurance was solicited, with reference to. the amount of premium to be charged?
“A. My understanding was $70.00 premium—and that is the only remembrance that I have of the contract of agreement.
“Q. Was anything said with reference to any additional premium other than the $70.00?
“A. I don’t remember anything about it if it was.”

This testimony is in no sense equal to a positive oath that he was told by plaintiff or its representative that the premium on the policy would only be $70.00, without regard to the amount of its payroll.

Mr. O’Pry, who delivered the policies to defendant, swears positively that he based the estimated premium of $70.00 on a payroll of $4000.00 given him by Mr. Lanier.

He testified, page 4:

“Q. What was the estimated payroll in that policy?
“A. $4000.00.
“Q. How did you get that?
“A. Prom Mr. Lanier himself.”

The evidence shows that under these conditions defendant enjoyed the protection of insurance under these two policies for two years, less nine days, during all of whibh time its payroll was in excess of $15,000.00 a year.

Under the law and in equity defendant should pay the premium stipulated in the policies on the basis of its actual payroll.

It is not shown that defendant was induced to accept the policies by any fraud or misrepresentation of the plaintiff, and the fact that it put them in its safe without reading them does not excuse defendant’s ignorance of their terms.

In support of its plea of estoppel and contention that an agreement different from that shown by the policies may be proved by parol, defendant cites:

Act 105 of 1898.

46 U. S. 64.

Lepretre vs. Barthet, 25 La. Ann. 125.

14 R. C. L. 1161.

32 C. J. 1065.

14 R. C. L. 1920.

Commercial-Germania Trust & Savings Bank vs. White, 145 La. 54, 81 South. 753.

And numerous other cases.

We find these authorities to be' sound and to enunciate perfectly good law, but we cannot see the relevancy, they may have to this case, because there is no evidence in the record convicting plaintiff of any fraud or misrepresentation in inducing defendant to accept the policies. No fraud is alleged in defendant’s answer and none is shown by the evidence to have been practiced by plaintiff or its agent on defendant.

Defendant insists that it canceled the last policy one month and ten days after receiving it.

The evidence on this point is the testimony of Lanier, Wilder and O’Pry.

Lanier testified, pages 23 and 25:

“Q. Did you receive any additional invoices of these insurance policies?
“A. Yes, sir, some ten or fifteen days possibly after receiving^ the second policy and paying the bill I received an additional bill for one hundred and nineteen dollars and some odd cents, and immediately on receipt of it I called Mr. O’Pry on the phone and told him.
“Q. Now, by Mr. O’Pry do you mean the agent who testified here this afternoon?
“A. Yes, sir, W. J. O’Pry, and I told him my understanding of the premium was $70.00 per annum, and asked him what this additional bill was for, and he then explained to me that this was based upon a payroll basis, and that this was an additional premium over and above the $70.00 on the first policy. I then told him over the phone that that was not my understanding, and that if that was the rate that he was going to charge me that I did not want the insurance—and to cancel the policy. We talked quite a while over the phone and later Mr. O’Pry came to my office, and the conversation continued on along that same line, and I told him positively at that time to cancel the policy, that I did not want it on that rate.
“Q. Well, now, where was the policy that you had at that time?
“A. In the safe.
“Q. Did you go to the safe and offer to get the policy and return it to Mr. O’Pry?
“A. No, sir because when Mr. O’Pry left the garage he said: We’ll see about it’; and I heard no more from it until the policy had expired; I kept it in my safe and I never thought any more about it.
* * * *
“Q. Now Mr. O’Pry testified that this policy was returned to him on April 21, 1925; would you say that that was about right?
“A. It was about expired before the question ever came up again, and I had forgotten the policy in the meantime.”

Wilder testified, pages 26 and 27:

“Q. What was that conversation?
“A. The conversation in regard to the premium on insurance policy, and as I remember the conversation, Mr. Lanier told Mr. O’Pry positively that he did not want the policy and to cancel same.
“Q. And he told Mr. O’Pry to cancel the policy?
“A. Yes, sin, and Mr. O’Pry during this conversation said to let it rest a while and that he would see about it later.
“Q. Did Mr. Lanier withdraw from his statement of cancellation?
“A. No, sir.”

Mr. O’Pry testified, pages 10, 11 and 12:

“Q. Now, when the first audit, being exhibit ‘B’, was received by your office, did you impart that information to the defendant company?
“A. Yes, sir.
“Q. How?
“A. By a bill, billing him for the excess premium.
“Q. That policy was when?
“A. About July 1st.
“Q. What year?
“A. 1924.
“Q. That was on the first premium?
“A. Yes, sir.
“Q. Was any objection raised by the Lanier company with reference to that?
“A. No, sir.
“Q. That audit, then, was received in your office after the issuance of the second policy?
“A. Yes, sir, and after the premium was paid thereon.
“Now following the mailing by you to the Lanier Auto Supply Company of the first amended—or the invoice for the additional premium—you say that no objection was raised by the Lanier Auto Supply Company to this additional billing?
“A. Not to the first, but to the second there was an objection.
“Q. What was the nature of that objection? How was it made?
“A. Mr. Lanier said that he understood that the premium was to be $70.00, and I told him that it was based on the percentage of the payroll rate.
“Q. That was a telephone conversation?
“A. No, sir, personal.
$ $ $ #
“Q. Is it not a fact that he did phone you and tell you to cancel the existing policy?
“A. I have no recollection of that, but had he done so I could not have canceled the policy without the surrendering of the contract itself.
"Q. Would you testify that he did not phone you to that effect?
“A. Yes, sir.
“Q. Then Mr. Lanier, of the Lanier Auto Supply Company, Inc., did not phone you after the receipt of the amended invoice and tell you to cancel the second policy?
“A. No, sir, but had he done so I could' not have canceled it; the mere fact that he requested cancellation without surrendering the contract would not have been of any value at all, and we would not have accepted that kind of a cancellation on those instructions.”

The policy provides that it may be canceled by the insured by giving five days’ notice. It is not contended that the notice of cancellation required to be given by the term of the policy was given or that the policy itself was surrendered or offered to be surrendered.

It therefore follows that the assured received the benefit of the insurance given under the policy and that in law and in equity he shoufd pay for same.

The real question to be decided in the case is the question of fact as to whether or not the plaintiff agreed to furnish defendant insurance covering a payroll of $15,000.00 a year for a premium of $70.00 a year.

The learned judge of the City Court of Alexandria, who tried this case, heard the witnesses and weighed their testimony and gave judgment in favor of the plaintiff. His decision, both under the law and the evidence in the case, is correct.

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


text:
    No. 2088
    Second Circuit
    W. H. HART v. J. B. HART, ET AL.
    (March 11, 1926, Opinion and Decree)

      (Syllabus by the Court.)

    1. Louisiana Digest—Evidence—Par. 215, 222.
    Parol evidence shall not be admitted to prove a written document different from what it purports to be, in the absence of an allegation of fraud, error or duress.
    (Civil Code, Art. 2276.)
    2. Louisiana Digest—Obligations—Par. 7,8.
    If a party making an offer die before it is accepted, his heirs or legal representatives are not bound thereby.
    (Code, of Practice, Art. 1801.)
    Appeal from the Twelfth Judicial District Court of Louisiana, Parish of DeSoto. Hon. J. H. Boone, Judge.
    This is a suit by which plaintiff seeks to have a sale of land made by him to his mother declared to be a mortgage or security for debt, have the debt for which it was security declared paid, he declared the owner, and the mortgage canceled.
    The defendant filed an exception no cause of action and an answer.
    There was judgment for defendant and plaintiff appealed.

      Judgment amended and affirmed.
    W. M. Pollock, of Mansfield, attorney for plaintiff, appellant.
    Lee & Bell, of Mansfield, attorneys for defendant, appellee.
    STATEMENT OP THE CASE
    By this suit plaintiff seeks to have a sale made by him to his mother, Mrs. T. E. Hart, of certain lands situated in DeSoto parish, Louisiana, declared to be a mortgage or security for debt, and to have the debt for which it was security declared paid, and he declared to be the owner of the property and the mortgage canceled; otherwise to compel the defendants to convey the property to him by virtue of an alleged counter-letter from his mother to him.
    Defendants filed an exception of no cause of action and also an answer putting at issue all of the allegations of plaintiff’s petition.
    In the district court there was judgment in favor of defendants rejecting plaintiff’s demands, and he has appealed.
   REYNOLDS, J.

OPINION

Plaintiff presents two propositions.

He asks that the sale from him to his mother be declared a mortgage or security contract, but he does not allege that he executed the deed under error, fraud or duress. Hence he is not in position to offer any proof in support of the allegation that the deed was given as a security for debt, and his petition therefore fails to state a cause of action.

He also asks to be declared the owner of the property sued for by virtue of a promise of sale made , to him by his mother, dated May 10, 1913.

The petition does not allege that plaintiff accepted the offer of his mother during her lifetime to sell him the property, and under Article 1810 of the Civil Code:

“If the party making the offer die before it is accepted, or he to whom it is made die before he has given his assent, the representatives of neither party are bound * *

In his petition defendant alleges that his mother is dead and that by last will she had disposed of the property in controversy.

It therefore follows that the petition fails to state a cause of action as to his mother’s promise to sell him the property.

We are convinced that plaintiff’s petition fails to state a cause of action.

It is therefore ordered, adjudged and decreed that the judgment of the lower court be amended by sustaining defendant’s exception of no cause of. action to plaintiff’s petition and that as amended the judgment appealed from be affirmed with costs.


text:
    No. 12347
    First Circuit
    TALLY, ET AL., v. CONSERVATION COMMISSION OF LOUISIANA
    (January 28, 1926, Opinion and Decree)

      (Syllabus by the Editor.)

    1. Louisiana Digest—Appeal—Par. 143.
    • Where the judgment of the lower court was not signed by the judge the appellate court will dismiss the appeal.
    Appeal from the Sixteenth Judicial District Court, Parish of St. Martin. Hon. James Simon, Judge.
    Action by Taylor Talley, et al., against Conservation Commission of Louisiana.
    Judgment not signed.
    Plaintiffs appealed.
    Appeal dismissed.

      L. A. Fitch and J. O. Womack, of Baton ' Rouge, attorneys for plaintiffs, appellants.
    E. R. Schowalter, attorney for defendant, appellee.
   ELLIOTT, J.

The plaintiffs,. Taylor Tally, Arthur MeJimpsey, Thomas McQuiston, Arthur Ortis, Robert Castania, Roy Goodfellow, Robert Fitzgerald, Nelson McQuiston, Elden Lively, Isaac Mott, Samuel McQuiston, Clarence Fitzgerald, John Lisbold, John Witt, W. A. Graves, C. R. White, Willie White, Louis Gaudet and M. C. Cloy, by suit instituted in the Parish of St. Martin attack as illegal a permit issued by the Department of Conservation of Louisiana authorizing the taking and sale of buffalo fish under certain conditions, etc., set out in the petition and in a permit annexed but which need not be detailed here.

The Department of Conservation of Louisiana appeared in response to a rule nisi and as reasons why an injunction should not issue to the department in regard to the matter, for plea moved that the rule nisi be recalled and the suit dismissed on the ground that the domicile of the Department of Conservation was fixed by law in the city of New Orleans and that plaintiffs’ suit should have been brought at the domicile of the department in the city of New Orleans, instead of the Parish of St. Martin. That the district court of the parish of St. Martin had no jurisdiction, etc.

All we find concerning the action of the court on the exception is shown by a minute entry bearing date March 2, 1925, which reads:

“Exception of want of jurisdiction filed by defendant, taken up, tried and submitted and maintained. Bill reserved by plaintiffs to the ruling of the court.”

There is no judgment in the record. If the suit was dismissed as indicated, it is a final judgment that should have been signed by the judge. In the absence of a judgment, signed by the judge, the record cannot be considered. All we can do is to dismiss the appeal on the face of this record. See La. Digest, Vol. I, pp. 336, 337, 338, etc.


author: LECHE, J.

text:
    No. -
    First Circuit
    GUIDRY v. BREAUX
    (January 28, 1926, Opinion and Decree)

      (Syllabus by the Editor.)

    I. Louisiana Digest—Libel and Slander— ' Par. 73.
    Where the finding of the trial court as to the amount of damages sustained by slanderous words is clearly excessive, it will be reduced.
    Appeal from the Parish of Terrebonne. Hon. H. M. Wallis, Jr., Judge.
    Action by Isaac J. Guidry against Harry J. Breaux for damages for slander.
    There was judgment for plaintiff and defendant appealed.
    Judgment reduced.
    Ellender &■ Chavez, of Houma, attorneys for plaintiff, appellee.
    H. M. Bourg, of Houma, attorney for defendant, appellant.
   LECHE, J.

Plaintiff sues defendant for slander and demands damages in the sum of $300.00. The case was heard by a jury which returned a verdict in favor of defendant. Plaintiff then appealed to the Supreme Court, and that court, finding that the claim was. grossly exaggerated, refused to entertain the appeal and remanded the case to this court.

The salient facts, as we gather them from the record, are that the parties own adjoining farms; that plaintiff was repairing his fence near the division line between the two properties; that needing a lath, he took one from a dilapidated fence which, supposedly, he thought was a fence in common; That defendant’s wife, seeing plaintiff help himself to this lath, told her husband that plaintiff was breaking down her husband’s fence and taking the pickets. Whereupon the defendant, who was not on good terms with plaintiff, became excited and at once proceeded to resent this act of plaintiff. He remonstrated with plaintiff, claiming ownership of the lath which plaintiff had taken, and plaintiff put back the lath on defendant’s side of the division line. It can well be surmised that the conversation ensuing between these two men who were hostile to one another, though short, was very heated. It was then that the slanderous words, “you are nothing but damned trash and a damned thief”, were uttered by defendant to plaintiff. The only other persons present were a negro boy, who was helping plaintiff; a white boy, the son of plaintiff, and plaintiff’s young daughter, who was at some distance. There is no proof, and in fact it is not urged in argument, that this slanderous remark of defendant, spoken under the stress of excitement, has in the least manner lowered plaintiff’s standing in the estimation of the people of his community, and the only damage he suffered was temporary humiliation. The remark was slanderous and therefore actionable. There was no mutual exchange of opprobrious epithets and the plaintiff is therefore entitled to damages though only of a most nominal nature. We think $25.00 is ample.

For these reasons the judgment appealed from is avoided and reversed, and it is so ordered that plaintiff have judgment against defendant in the sum of $25.00, together with all costs of court.


text:
    No. -
    First Circuit
    RAGAN v. GRAND LODGE K. OF P.
    (January 28, 1926, Opinion and Decree)

      (Syllabus by the Editor)

    1. Louisiana Digest—Appeal—Par. 424, 429, 512.
    An appeal from an interlocutory judgment overruling an exception to the jurisdiction which was only entered on the minutes and not written and signed, is a frivolous appeal and will be dismissed.
    Appeal from the Parish of Iberia. Hon. James Simon, Judge.
    Action by J. W. Bagan, administrator, against Grand Lodge, K. of P.
    An appeal was taken by. the defendant to an interlocutory judgment overruling a petition to the jurisdiction.
    Appeal dismissed as frivolous.
    L. P. Bryant, of Jeanerette, attorney for plaintiff.
    F. B. Smith, of New Orleans, attorney for defendant.
   LECHE, J.

This appeal is from an unsigned interlocutory judgment. Defendant, alleging that it is domiciled in the city of New Orleans in this state, excepted to the jurisdiction of the Sixteenth Judicial District Court, sitting in the Parish of Iberia. That exception was overruled and though the judgment overruling the exception was only interlocutory and was only entered on the minutes and not written and signed, the trial judge nevertheless permitted defendant to appeal therefrom. Judgment overruling exceptions in the preliminary trial of a case which is appealable are interlocutory, and not subject to a separate appeal unless they cause an irreparable injury, for they may always be reviewed on the appeal of the case after trial and final judgment.

But appellee has made no objection to the appeal nor has he moved to dismiss, and construing his failure to do so as an admission on his part that the ruling does cause an irreparable injury, this court is loath to dismiss the appeal ex proprio motu.

The defendant is a fraternal benefit society engaged in insuring the lives of its members. That fact is alleged and practically admitted in the exception, and for that reason defendant clearly comes under the exception to the general rule, according to paragraph 10 of Article C. P. 165, as amended by Act 22 of 1894 and Act 44 of 1910. Suit at domicile of plaintiff even in the case of claims on accident policies, is now sanctioned by Act 21 of 1914. The appeal in this case appears to us to be frivolous, and it is dismissed at the cost of appellant.


author: ODOM, J.

text:
    No. 2017
    Second Circuit
    W. H. PERRY v. W. H. WILBOURNE
    (March 11, 1926, Opinion and Decree)

      (Syllabus by the Editor.)

    1. Louisiana Digest—Surveyors and Surveys—Par. 17.
    Under Article 825 of the Civil Code an action of boundary is imprescriptible and thirty years’ possession cannot affect it.
    2. Louisiana Digest—Appeal—Par. 625; Surveyors and Surveys—Par. 26.
    The finding of the trial court as to the boundary line being clearly correct is affirmed.
    Appeal from the Third Judicial District Court of Louisiana, Parish of Claiborne, Hon. J. E. Reynolds, Judge.
    This is a suit to establish a boundary line. Defendant filed a plea of prescription which was dismissed. Judgment ordered a line fixed as laid out by surveyors, Lupo and approved by Barber. Defendant appealed.
    Judgment affirmed.
    T. H. McEachern, of Homer, attorney for plaintiff, appellee.
    J. Rush Wimberly, of Arcadia, attorney for defendant, appellant.
   ODOM, J.

This is a suit to establish the boundary line between property owned by plaintiff and property owned by defendant situated in a rural section of the Parish of Claiborne.

It seems that some two or three years prior to the filing of this suit there arose a dispute between plaintiff and defendant as to the correct location of the boundary line separating their properties.

The plaintiff at that time employed Mr. Barber, the Parish Surveyor, to establish the said line. The line as established by Barber at the request of the plaintiff was not satisfactory to the defendant.

Plaintiff then filed suit to establish the boundary.

According to plaintiff’s testimony, which is not disputed, the defendant, after the institution of the first suit, told plaintiff that if he would dismiss his suit he would accept the line as established by Barber. Plaintiff then dismissed his suit with the understanding that defendant would be satisfied with the Barber line. Subsequently defendant informed plaintiff that he would not abide by the line as established by Barber but that if plaintiff would have the line established by a surveyor by the name of Crowson he would accept it.

Crowson did establish the line but defendant refused to accept the line.

Plaintiff then instituted the present suit, asking that the court appoint a surveyor to establish the line and make due return into court according to law.

On October 10, 1922, the court appointed James A. Lupo, a surveyor, to establish the line and make due return of his findings according to law.

Subsequent to the appointment of Lupo, at the request of defendant and with the consent of plaintiff, Mr. W. M. Barber, the Parish Surveyor, was appointed as associate surveyor with' Lupo to make a survey of the disputed line and locate the same and make due return to the court of their findings on Monday, December 11, 1922.

According to the proees verbal filed in court by these surveyors, both plaintiff and defendant were notified of the time fixed for making the survey and establishment of the line.

The defendant was present, according to the summons, when the line was established.

It seems that surveyor Lupo made the actual survey and that surveyor Barber was present during the time that the survey was being made.

In accordance with the order of court surveyor Lupo made a proees verbal of his findings. His proees verbal was submitted to surveyor Barber and was checked by him from measurements which he had made and was approved and signed by him.

On the trial of the case the court rendered judgment ordering the line fixed and established as laid out by Lupo and approved by Barber.

There is no evidence that the line between these properties had ever been established as provided by law previous to the survey made by the surveyors appointed by the court in this case. There was, however, a fence built many years ago by either the defendant or the authors in title of the plaintiff, but so far as the testimony goes this fence was built on a line which was supposed to be correct but which, according to the testimony, was never established according to law.

The defendant in this case contends that the old fence was built on the correct line and that this old fence line should now be accepted as the correct boundary between the properties.

It seems that the line established by the surveyors appointed by the court in this case does not correspond with the old fence line but cuts off a portion of the property which was originally claimed by Perry and places it over on defendant’s side. Insofar as the new line adds to defendant’s property it is satisfactory to him; but insofar as the line cuts off a portion of the property which is claimed by defendant and places it on plaintiff’s side, it is not satisfactory to defendant.

Defendant, in limine, interposed a plea of prescription, claiming that a portion of the land which he claimed and which was shown by the line established by the surveyors in this case to belong to plaintiff, had been in defendant’s possession for more than thirty years.

It is clear, under Article 825 of the Civil Code that the action of boundary is imprescriptible.

The old line as established between the adjacent proprietors was not established according to law but was merely guesswork.

In establishing the boundary in this case, the court proceeded according to the letter of the code.

There is no serious contention that these surveyors have erred in establishing the line and we can see no reason under the testimony adduced why defendant should not accept it without complaint.

There is some testimony to the effect that the line established by Barber and Lupo does not correspond precisely with the line established by Barber some three years prior; but Mr. Barber explains in his testimony that he is satisfied his original line was erroneous and that the line established by him and Lupo under appointment by the court is the correct line.

Finding no error in the judgment of the court below, it is therefore affirmed. Reynolds, Judge, recused.


text:
    No. 2512
    Second Circuit
    J. L. CALHOUN v. AMERICAN RAILWAY EXPRESS COMPANY, INC.
    (December 1, 1925, Opinion and Decree)
    (February 8, 1926, Rehearing Refused)

      {Syllabus by the Editor)

    1. Louisiana Digest—Carriers of Passengers and Goods—Par. 135.
    After a carrier has issued a receipt showing that the goods were in good condition at the time they were received, the burden of proof is on the defendant to show that the damage to the shipment was not caused by its fault or negligence. It is not sufficient that the defendant creates a doubt on the subject; it should make the matter clear.
    (Civil Code, Art. 2754. Editor’s note.)
    Appeal from Seventh Judicial District Court of Louisiana, parish of Concordia. Hon. R. M. Taliferro, Judge.
    This is a suit for damages to a shipment of furs caused by the negligence of the carrier.
    There was judgment for defendant and plaintiff appealed.
    Judgment reversed.
    Dale, Young & Dale, of Vidalia, attorneys for plaintiff, appellant.
    G. P. Bullís, of Vidalia, attorney for defendant, appellee.
   ODOM, J.

Plaintiff brings this suit against the defendant to recover $763.50 alleged to be due him for account of damage to a shipment of furs caused by defendant’s negligence in allowing said furs to become wet in transit between Jonesville, Louisiana, the place of shipment, and Ferriday, Louisiana, the place of delivery.

He alleges that the furs were delivered to the defendant at Jonesville in good condition and that defendant issued its uniform receipt therefor, and that when said shipment arrived at the place of delivery the furs were wet and had become heated, that the fur was slipping from the skins, and that the whole shipment was in such a condition that he lost the above stated sum.

Defendant, in answer, admitted the receipt of the shipment at Jonesville and the issuance of its receipt therefor showing that the furs were then in good order; but it sets up that as a matter of fact they were not in good condition and that they were wet and that the receipt was issued in error of fact and that the damage to the furs was due to no fault of its own, and especially alleges:

“That the damage to said furs was not caused either in whole or in part by its negligence, or that of its agents, but was caused by the act or default of the shipper, or the nature of the property, or defect or inherent vice therein, or improper or insufficient packing, and that defendant is in no wise liable to plaintiff on account of said loss.”

There was judgment in the district court rejecting plaintiff’s demand, from which judgment he has appealed.

OPINION

Admittedly only questions of fact are before this court for determination.

Plaintiff contends that the damage was caused hy defendant’s negligence in allowing the furs to become wet while in transit; but defendant denies this and sets up that the furs were in a wet, bad condition when received.

It is asserted by counsel for plaintiff and admitted by counsel for defendant that the issuance of the defendant’s receipt makes a prima facie showing that the goods were received in good condition. This presumption is, of course, subject to rebuttal.

Article 2754 of the Civil Code provides:

“Carriers and watermen are liable for the loss or damage of the things entrusted to their care, unless they can prove that such loss or damage has been occasioned by accidental and uncontrollable events.”

Having issued a receipt for the goods in this case showing that they were in good condition when received, the burden, therefore, was upon defendant to show that the damage to the furs, if any, was not due to its fault or negligence.

Kimball & Lilly vs. Brander, 6 La. 711.

Bond vs. Frost, 6 La. Ann. 801.

Ship Rappahannock vs. Woodruff, 11 La. Ann. 698.

Webre vs. H. Kendall Carter, 12 La. Ann. 446.

Lehman, Stern & Co. vs. Morgan’s L. & T. R. R. & S. S. Co., 115 La. 1, 88 South. 873.

National Rice Milling Co. vs. N. O. & N. E. R. R. Co., 132 La. 615, 61 South. 708.

Our learned brother of the district court, after reviewing the testimony, concludes his written opinion thus:

“It is our conclusion that the evidence in this case clearly preponderates in favor of the defendant and establishes with legal certainty that the damage to the hides in question was not occasioned by, nor while in the possession of, the defendant.”

And he rejected the plaintiff’s demand.

However much we dislike to set aside the judgment of the district court based on questions of fact, yet the conclusion which we have reached after carefully reading and considering all the testimony forces us to do so.

Mr. Tiffey, sworn for the plaintif.f, testified that he personally packed the hides before shipment; that he purchased about one half of them, and had personal supervision of the drying and preparing of all of them for shipment.

He says that he stretched them and hung them up in a drying shed or house on wires where they remained for several days, and that while he did not purchase more than one-half of them he personally inspected all of them, and that when packed for shipment they were dry and in good condition.

He testified that he personally inspected and sacked all of them 'and carried them to the station.

When the sacks were delivered to the agent of the Express Company at Jones-ville the agent inspected them and saw that they were not of the kind which he was authorized to receive, and ordered Tiffey to get other sacks, which he did.

After procuring the new sacks, one of the sacks which contained furs was emptied on the floor in the presence of Tiffey, the express company’s agent, and one other person, and resacked.

These hides, Tiffey said, were in good condition.

The other sacks were not emptied, but the old sacks with the skins inside were placed in the new sacks.

The testimony is that all of the sacks were dry and in good condition.

Mr. Ledford, defendant’s agent at Jones-ville, corroborated Mr. Tiffey’s testimony to the extent that he ordered the new sacks on account of the defective old ones and that he saw but-one sack emptied and repacked. He says the hides looked all right, and that while they might have been wet at the time, there were no outward indications that they were, and, in fact, they looked to be dry and looked to be in good condition. He did not order the new sacks because the old sacks were wet but because the old ones were oat sacks and some fur was showing on the outside.

Mr. O. J. Mixon, express messenger on the train, who handled the shipment while in transit, testified that there was no indication that the sacks were wet when received.

If the testimony of Tiffey stood in the record uncorroborated, it might be said that he was an interested witness because of the fact that he had sold a portion of these furs to the plaintiff and his testimony was challenged for that reason; but his testimony that the hides were dry and in good condition is corroborated by that of the agent, Ledford, who received them at Jonesville, and that of Mixon, the express .messenger, both witnesses for the defendant.

As already recited, the express receipt itself makes a prima facie showing that the packages were in good condition when received. But, in addition to that, it is shown • that the agent, Ledford, personally inspected the packages, and he says that they were in apparently good condition. Therefore it cannot be said that the express receipt was issued in error of fact. It is true that the agent did not unpack more than one of the sacks but he did see the others and testified that they appeared to be dry.

It must be borne in mind that the burden of plaintiff’s complaint is that the defendant allowed the shipment to get wet, and for that reason the hides and the fur were injured; and while Ledford, the agent, was not in position to testify as to the condition of the hides in the sacks which he did not open, he was in position to know and did know whether the sacks were wet, and he said they were not. Not only did he see one sack unpacked and repacked and the others resacked, but he personally assisted in the process.

We think, therefore, the conclusion is. irresistible that the sacks were dry at least when received..

How the undisputed facts are that on the following day when the sacks and hides were inspected at Yidalia by the plaintiff, Calhoun, the agent of the express company, and others, they were wet.

The testimony of both Calhoun and the agent and of the other witnesses is that they were “wringing wet” and that water was dripping from them.

Then the question naturally arises, when, where and how did they get wet?

In view of the testimony of Tiffey and of Ledford, the agent, at Jonesville, and of Mixon, the express messenger, all to the effect that they were in good condition when received, we think there is no escape from the conclusion that they got wet while in the possession of the defendant company.

It' is true that all the witnesses of the defendant say they did not get wet while in its possession, but, as stated, the question naturally arises, when did they get wet?

The testimony of defendant’s witnesses is that at the time they were loaded at Jonesville it was “misting rain”, but Mixon says that there was a very “light shower”.

The testimony shows that at the time the shipment reached Vidalia it was raining some, a mist or light shower, but it rained heavily that night and was “pouring down” the next morning, so much so that the shipment was not forwarded to Ferriday on the first train out of Vidalia, and when the goods were inspected later in the day they were very wet.

It is defendant’s contention that the skins were probably not well-cured and that when packed the moisture in them caused them to spoil. It is possible, of course, that there was some moisture in the hides when packed, but it is impossible for them to have contained the amount of water that was found in them later.

The testimony shows that when the hides were inspected at Vidalia they were hot; one witness testifying that they were so hot he could not bear to rest his hand upon them, and all the witnesses saying that the fur was slipping from them and that the shipment was badly damaged on that account.

The testimony makes it clear also that moisture in hides will cause them to heat and the fur to slip. In other words, produce the very condition which was found to exist. That point is not disputed.

Our conclusion is that the hides were in some way allowed to get wet while in the defendant’s possession and that the damage was caused in that way.

Defendant took the testimony of Mr. M. Krouse, Benjamin Grishman, Robert C. Harmon and Harry Abraham by commission.

These are all dealers in furs. Their testimony is to the effect that if hides are allowed to get wet they will heat and become damaged. The following hypothetical question was propounded; to each of them:

“Assuming that such hides were properly cured before being shipped, and they were received at Jonesville, La., at about 4:30 P. M. on December 21, 1923, by the express agent, and were kept in the express room at that place until 5 o’clock the same evening, and were then taken direct through a light rain to the L. & A. Railway express car, a distance of 30 to 40 feet, and Were transported in the express car on said road to Vidalia, La., a distance of about 28 miles, where they arrived at 6.15 P. M., and that they were not exposed to rain during transit, and on arrival were immediately carried by a man, without being placed on the ground, to the express room in Vidalia, a distance of not more than 30 or 40 feet, through a light rain, and such hides should remain in the express room at Vidalia until 9 or 10 o’clock the next morning, the total time being not more than 17 or 18 hours, could such hides spoil to such an extent that the hair or fur would slip easily from the hides by pulling it with the hands? What, in your opinion, caused same?”

The witness Grishman testified that under those assumed conditions the hides could not have been in the condition described. He says that they must have been packed five or six days before being shipped.'

The witness Abraham testified that the condition of the hides in his opinion was brought about by the packing of them while green and uncured, and he says that if the hides had been unpacked after eighteen hours of rain they would not have been wormy or heated.

The witness, Hammon, said, in answer to that question:

“The hides would not spoil to the extent described unless they had not been properly cured or got wet in transit.”

And further:

“If they were fly-blowh before they were packed and were not properly cured before packing, they would heat and slip, and also if they had gotten wet in transit.”

He further testified that, in his opinion, “they would not slip within forty-eight hours”.

On the contrary, the other witness, Mr. Krouse, whose testimony was taken by defendant, said, in answer to interrogatory No. 12 above quoted:

“If carried through a light rain the top hides would have been spoiled, but all the hides would not have been spoiled; but if hides were packed in heavy sacks I do not think any would have become spoiled.”

a And he further testified in answer to other interrogatories as follows:

“The top hides would get a chance to get heated, but I don’t think it would cause them to contain worms within that time. If packed in heavy sacks the top hides would become heated. '
“The hides that got wet could have started pulling from the rain. If the hides were packed green and uneured they would have spoiled in transit.
“The top hides and those nearest to exposure would be spoiled.
“If hides were properly cured and well-packed, hides could not have spoiled except from a rain. In my opinion, hides could have gone spoiled by being wet or packed while green.”

Plaintiff and his witnesses testify that they are experienced fur dealers and say that hides will heat and the fur slip within a few hours after getting wet; one of the witnesses saying within six hours and both witnesses saying within the time the shipment was in transit.

There is some 'testimony that worms were coming out of some of the sacks when inspected at Vidalia, but plaintiff says there were only a very few seen, and his testimony on that point is not disputed.

It is possible that the worms were deposited by the fly in the dry hides and that the moisture caused or enabled them to grow and make themselves manifest.

The testimony as to the length of time in which hides would spoil after becoming wet is conflicting; that of the plaintiff being to the effect that they would spoil within the time they were in defendant’s possession, and that of the defendant preponderating to the effect that they would not spoil and become damaged within that length of time.

Having issued its receipt showing that the goods were in good condition at the time they were received, the burden was on the defendant to show that the damage to the shipment was not caused by its negligence. It is not sufficient that it creates a doubt on the subject; it should have made it clear.

Bond vs. Frost, 8 La. Ann. 297.

The defendant, in our opinion, has failed to discharge that burden. We think that the plaintiff made out his case as to the amount of damage..

For the reasons assigned, it is therefore ordered, adjudged and decreed that the plaintiff, J. L. Calhoun, do have judgment against and recover from the defendant, the American Railway Express Company, Inc., the full sum and amount of $763.50 with legal interest thereon from judicial demand, and all costs of both courts.


author: ELLIOT'T, J.

text:
    No. 5807.
    First Circuit.
    HOGAN v. GULF LUMBER COMPANY.
    (January 28, 1926. Opinion and Decree.)
    (March 2, 1926. Rehearing Refused.)

      (Syllabus by the Editor.)

    1. Louisiana Digest—Master and Servant —Par. 160 (j).
    Where the preponderance of evidence is that an injured employee suing under the Workmen’s Compensation Act No. 20 of 1914 did not receive the injuries complained of while in the employment of the defendant as alleged in his petition, the defendant is not responsible under the act.
    Appeal form the Eleventh Judicial District Court, Parish of Vernon, Hon. Hal. A. Burgess, Judge.
    Action by Henry Hogan against the Gulf Lumber Company for recovery of compensation under Section 8, Subsection 1(a), of the Workmen’s Compensation Act No. 20 of 1914.
    There was judgment for plaintiff in part and defendant appealed.
    Judgment reversed.
    Fern M. Wood of Leesville, attorney for plaintiff, appellee.
    Thompson and Ferguson of Leesville, attorneys for defendant, appellant.
   ELLIOT'T, J.

The plaintiff, Henry Hogan, alleges that on . or about' August 1, 1924, while in the employ of the Gulf Lumber Company and engaged in grading lumber, he was struck in his extreme lower abdominal region by a plank. That the blow injured him, as set forth in his petition, causing a large swelling of the part mentioned. That an operation became necessary as a result of his injury and was performed by defendant. That the operation left him with a serious adhesion and permanently disabled him from doing work of any reasonable character. He claims compensation at the rate of 65 per cent of his daily wages of $3.00 per day for a period of 400 weeks.

The defendant, Gulf Lumber Company, admits that plaintiff was employed as alleged and that a physician in defendant’s employ performed an operation on plaintiff for hydrocele, but denies that plaintiff is suffering from any incapacity whatever. And if he is, denies that the incapacity was produced by or results from any injury received while w'orking for defendant. That defendant advanced plaintiff the sum of $144.00 to enable him to live while he was suffering from hydrocele. The district judge awarded plaintiff compensation for a period as not exceeding 300 weeks, less $144.00 already paid.

Defendant appealed.

The plaintiff alleges and testifies that he was injured on August 1, 1924. He further testifies that the next morning he was swollen up and reported the matter that morning to his foremen, Geo. Postes, and showed him the condition he was in. That the foreman asked him if he would have to go to the hospital, and that he in reply said he didn’t know; that he would have to see Dr. Carroll. That he went to see Dr. Carroll, and was operated on by him on August 4. That following the operation he returned home and remained there eight or nine days. That he received compensation after the operation for several months. That the operation performed by Dr. Carroll did not relieve him, and he was sent by defendant about six weeks afterwards to the hospital at LeCompte and was operated on again by Dr. Scott. Dr. Scott testifies that his examination of plaintiff disclosed the existence of a scar of the previous operation and small recurrence of the same trouble, and on account of which he performed another operation on plaintiff. The plaintiff testifies that he told all the physicians who examined him that his private parts had been injured by the blow of the plank; but Dr. Carroll and four other physicians claim that they examined plaintiff and that he told them at the time that the plank had struck him near the umbilicus, and six physicians, all who testified in the case, state that a blow at that place where he indicated that he had been struck would not have produced hydrocele.

Plaintiff is not only contradicted by five physicians as to his statement to them in the matter of the place where the plank struck him, but Dr. Carroll says that when plaintiff first came to see him, following the alleged injury, that he informed him that he had been getting into that condition for two or three months. That it was only after he had operated on him and some time had elapsed that plaintiff came back and then claimed to him that he had been hit around the umbilicus by a plank. All the physicians are agreed that a blow received on the part alleged to have been injured on the 1st of August would not have produced hydrocele on August 4th, but that a longer time was required in order that hydrocele might develop. The defendant by answer and evidence disputed plaintiff’s claim that he was injured. Defendant’s evidence on the subject invited and opened for evidence in rebuttal corroborating and supporting plaintiff’s claim in that respect. Plaintiff could have called his foreman, George Postes, who had, so plaintiff testified, seen his condition and heard him complain of his injury the next morning after it had occurred; but he did not call this supporting witness and offers no explanation for his failure to do so.

The plaintiff also testifies that he is unable to work and that he has not worked because not able since his injury. He was questioned very closely on that subject by defendant and asked if he did not work continuously in the same work in which he had been previously engaged from October 27 to February 10, and receive therefor $3.00 for each work day. Plaintiff for answer contends that he tried to work and did work two or three days, but that he really did not work because he was unable. His answers do not negative the payment about which he was questioned. A witness for defendant testified without qualification that according to defendant’s accounts the plaintiff did work grading lumber from October 27 to February 10 and received $3.00 per each work day during that time. Plaintiff took the stand in rebuttal, but does not deny the statement of this witness. And he could have called his foreman or any fellow workman and showed in rebuttal, if such had been true, about how much time he worked and his condition, as it appeared to them at the time, but he did not do that; it therefore appears to' us that the evidence decidedly preponderates in favor of the defendant.

It is proved that defendant paid compensation amounting to $144.00, and the plaintiff urges the fact as an admission supporting his claim. The payment supports his claim, but it is not conclusive as to his right to recover under the law. Plaintiff was sick and disabled for months, and an employer is almost bound to assist his employee in such a situation, no matter whether the employee is really entitled to it under the law or not. The second clause of Section 28 of the Employees’ Liability Act, which reads, “In determining whether or not an employer shall be exempt from and relieved from paying compensation because of injury- sustained by an employee for causes and reasons set forth in this section, the burden of proof shall be upon the employer,” has been considered. It is our opinion that the evidence heavily preponderates in favor of the contention that plaintiff’s trouble in its origin and the hydrocele, on account of which two operations have been performed on him, were not due to, nor caused by any injury received by plaintiff in the employment of defendant as alleged in his petition; but in some other way not disclosed by the evidence. It is ■ our conclusion that the defendant is not responsible therefor and that the District Judge erred in holding that such was the case and in condemning defendant to pay compensation under the law. For the above reasons the judgment appealed from is erroneous and contrary to the law and the evidence.

The judgment appealed from is therefore annulled, avoided and set aside and the demand of the plaintiff is refused and rejected at his cost in both courts.