text:
    No. 3217
    Second Circuit
    BRECKENRIDGE STATE BANK v. NELSON
    (May 22, 1928. Opinion and Decree.)
    (June 28, 1928. Rehearing Refused.)

      (Syllabus by the Editor)

    1. Louisiana Digest — Bills.and Notes — Par*. 208, 209.
    Although a general denial is not permitted under the Pleading and Practice Act as amended hy Act No. 27 of 1926, nevertheless a special and specific denial of each paragraph of petition is not sufficient to constitute a denial of signature cutting off all defenses as provided by Code of Practice, Art. 324.
    2. Louisiana Digest — Bills and Notes — Par. 202, 204, 240.
    Where note is attached to petition and made part thereof, the fact that note is payable to order of one bank and not endorsed and petition states that it is payable to another bank, is sufficient to justify judgment of non-suit.
    Appeal from the Twenty-Sixth Judicial District Court, Parish of Bossier. Hon. H. C. Drew, Judge.
    Action by Breckenridge State Bank against J. C. Nelson.
    There was judgment of non-suit for defendant and plaintiff appealed.
    Judgment affirmed.
    J. B. Herold, of Shreveport, attorney for plaintiff, appellant.
    H. C. Fisher, of Shreveport, attorney for defendant, appellee.
   WEBB, J.

The Breckenridge State Bank instituted this action against J. C. Nelson to recover judgment on a balance alleged to be due on a promissory note, in which plaintiff alleged that it was the holder and owner of the note described as having been drawn by defendant' payable to the order of plaintiff and attached and made the note a part of the petition, which note shows on its face to have been drawn by J. C. Nelson payable to the order of the Guaranty State Bank and is not endorsed.

Defendant answered admitting his residence and otherwise, specially and specifically denying each article of the petition, and trial was had, during the course of which defendant admitted his signature to the note, and plaintiff offered to introduce the note in evidence, and on defendant’s objecting that the note varied from the note described in the petition, and that it does not show title in plaintiff, plaintiff was not permitted to introduce the same in evidence, and after introducing evidence as to the laws in the state wheré the note was drawn, to support the stipulation for interest, the case was closed and submitted on briefs to be filed.

Pending submission of briefs, plaintiff filed a motion to reopen the cause in order that the alleged clerical error or variance between the description of the note, as shown by the allegations of the petition, and the note itself, and to permit plaintiff to offer evidence showing that the note had been acquired by plaintiff from the Guaranty State Bank, and the motion being refused and judgment rendered rejecting plaintiff’s demands as of non-suit, it appeals.

The plaintiff urges ■ that the judgment should be reversed and judgment rendered in its favor, it being argued that the defendant, in his answer, denied his signature to the note, and having admitted the signature on trial, he was shut off from any other defence, and that judgment should be rendered in favor of plaintiff as demanded; and, in the alternative, in event judgment cannot be rendered in favor of plaintiff, that the court erred in refusing to grant the motion to reopen the cause so as to correct the error in refusing to permit the note to be introduced in evidence and to permit plaintiff to introduce evidence showing that it had acquired the note from the Guaranty State Bank.

The first position taken by defendant is dependent upon several questions; first, whether or not defendant denied his signature, and, if so, whether he was deprived of any other defence, or plaintiff relieved of proving that it was the owner of the note, as well as whether or not the note being attached to the petition, and the signature being proven, it can be considered although formally refused to be admitted in evidence. Passing the latter questions, we deem it necessary to consider only the first.

The' plaintiff in one paragraph of its petition alleged it was the holder and owner of a note made by J. C. Nelson and signed by him * * * payable to the order of the Breckenridge State Bank, and defendant in his answer to that paragraph followed the formula used in answering prior paragraphs and denied specially and specifically all of the allegations in the paragraph, and plaintiff places special stress on defendant’s use of the words “specially and specifically” and thus distinguishes the case from that of Henderson vs. Alford, 1 La. App. 791, where the defendant, in answering paragraphs in which the allegation was made that he had signed an instrument merely used the word denied.

Prior to the adoption of the statute known as the Pleading and Practice Act (No. 151 of 1912, as amended by Act No. 27 of 1926), it was held that a defendant sued on a note pleading the general denial would not be held to have denied his signature, so as to deprive him .of other defences, when the signature was proven, under Article 324 of the Code of Practice'.

In Stockton vs. Truxton, 8 La. 224, it was said, with relation to the plea of the general denial, where pleaded in an answer to an action on a note:

“Although an express denial of every allegation be an express denial of each one, this court has held, that the plea of the general issue to the plaintiff’s demand, founded on a promissory note, does not waive others when found for the plaintiff; that is, an express and special denial of the signature is required, before the party is debarred from every other plea or defence, on proof of it being made of it by the adverse party.”

And although it may be that the Pleading and Practice Act has abolished the plea of general issue, by providing that the plaintiff shall state, so far as practical, each of the material facts upon which his action is based, and that the defendant shall admit or deny each material allegation of fact, the general effect of the special plea of denial is the same as under the general denial as to the proof thereunder, and we are of the opinion the same effect should he given to the special denial of the paragraph of the petition under the Pleading and Practice Act as was formerly-given to the plea of general denial, in so far as such relates the admission or denial of signature under Article 324 Code of Practice.

Concluding that defendant did not deny his signature to the note sued upon, he was not deprived of other defences or rights, and having denied that plaintiff was the owner of the note, and plaintiff hav-. ing failed to offer any proof of its alleged ownership, and the note sued upon not being endorsed to plaintiff, judgment cannot be rendered in its favor.

The second position of plaintiff, in which it urged that the court erred in refusing to reopen the cause, is apparently based upon the contention that the sole reason why the court could not render judgment in plaintiff’s favor was the alleged error in refusing to admit the note in evidence, but, as stated above, there was another reason; that is, plaintiff did not prove its ownership of the note, and the motion to reopen the cause shows that the failure to prove ownership was not due to an oversight but was deliberate, and further, plaintiff in its position does not pretend to set forth the manner in which it acquired the note, and conceding that the refusal to admit the note in evidence was error, we cannot say that the court should have reopened the cause rather than reject plaintiff’s demands as of non-suit.

The judgment appealed from is therefore affirmed.


source: Caselaw Access Project

author: REYNOLDS, J.

license: Public Domain

text:
    No. 2488
    Second Circuit
    HARDEE v. McGAGA, ET AL. JAMISON, Garnishee McGAGA, Intervenor
    (May 22, 1928. Opinion and Decree.)
    (June 28, 1928. Rehearing Refused.) (-. Writ of Oertorari and Review Denied by Supreme Court.)

      (Syllabus by the Court)
    1. Louisiana Digest — Marriage—Par. 143, 145.
    Property purchased in the name of the wife during the existence of the community presumably falls into the community; and the fact that it was purchased in her name does not even raise a presumption that it is her separate property.
    Civil Code, Art. 2402.
    Succession of Graf, 125 La. 204, 51 So. 115.
    2. Louisiana Digest — Marriage—Par. 100, 127, 163.
    Act No. 94 of 1916 and Act No. 219 of 1920 permit the wife to act without the authority of the husband in regard to her separate property, but in no way affect the laws relative to the community of acquets and gains.
    Sissung vs. North River Ins. Co., 5 La. App. 123.
    3- Louisiana Digest — Marriage—Par. 99, 154.
    Money earned by a married woman in operating a boarding house falls into the community of acquets and gains, in the absence of proof that she was carrying on business separate from .her husband.
    Act No. 186 of 1920.
    Isaacson vs. Mentz, 33 La. Ann. 595.
    4. Louisiana Digest — Marriage—Par. 154.
    Under Act No. 186 of 1920, the fact that the wife, during the existence of the community, operates a boarding house with the acquiescence of the husband, does not take the revenues derived from the operation of the boarding house out of the community of acquets and gains in the absence of proof showing that the wife operated the boarding house separate from the husband.
    Jordy vs. Muir, 51 La. Ann. 55, 25 So. 550.
    Bank vs. Bein, 12 Rob. 578.
    Knight vs. Kaufman, 105 La. 35, 29 So. 711.
    King vs. King, 107 La. 437, 29 So. 205.
    Appeal from the Eleventh Judicial District Court, Parish of Sabine. Hon. Hal A. Burgess, Judge.
    Action by T. W. Hardee against T. B. McGaga, et al. Charley Jamison, garnishee. Mrs. Annie Jane McGaga, intervenor.
    ■ There was judgment for defendant and plaintiff appealed.
    Judgment amended and affirmed.
    T. C. Armstrong; Boone and Boone, of Many, attorneys for plaintiff, appellant.
    Don. E. Sorelle, of Many, attorney for defendant T. B. McGaga, and intervenor Mrs. Annie Jane McGaga, appellees.
   STATEMENT OP THE CASE

REYNOLDS, J.

This is a suit by attachment against an absentee, cited and served through a curator ad hoc appointed by the court to represent him in the action.

The plaintiff alleged that the defendant, T. B. McGaha was an absentee and was indebted unto him in the sum of $277.88 with interest thereon at the rate of 8% per annum from October 15, 1920, until paid, and 10% on the amount of principal and interest as attorney’s fees, less a credit of $9.27 as of date November 12, 1921, and that Charley Jamison was indebted or had in his possession money belonging to the defendant.

A writ of attachment against the property of the defendant was issued and a writ of garnishment was served on Charley Jamison, and Don E. Sorelle was appointed and accepted the appointment of curator ad hoc for the absentee.

The garnishee answered that he had in his possession $93.85 collected as rent of the property attached and that he understood the money belonged to Mrs. Annie Jane McGaha, the wife of defendant, T. B. McGaha.

Under the writ of attachment the sheriff seized eighty acres of land, more or less, namely, the southeast quarter of southeast quarter of section thirty-four and the southwest quarter of southwest quarter of section thirty-five, township ten north range eleven, west, in Sabine parish, Louisiana, and certain movables.

The curator ad hoc on behalf of the defendant denied ownership by him of the property seized.

Mrs. Annie Jane McGaha, the wife of the absentee T. B. McGaha, intervened in the suit and claimed to be the owner of the property seized, in virtue of a purchase thereof by her from J. T. Simpson by act passed before J. J. Stumpff, a notary public of Ouachita county, Arkansas, on March 24, 1924, and recorded in book 36 at page 321 of the conveyance records of Sabine parish, of the land described, and that the money in the hands of Charley Jamison the garnishee represented rents of the property collected by him for her.

“The fact that the title was taken in the wife’s name, and that it was paid for out of her earnings for personal services rendered after marriage, did not take it out of the category of community property, there being no separation of property. This is elementary. The wife’s earnings are, like the husband’s, assets of the community. Property acquired after marriage, whether in the name of the husband or wife, is presumed to be community property. It, follows that, when title to real property acquired after marriage appears in the wife’s name, it is just as much subject to seizure at the suit of community creditors as though it stood in the name of the husband, who is the head and master of the. community.”

Knight vs. Kaufman, 105 La. 35, 29 So. 711.

“All property acquired under the regime of the community whether in the name of one spouse or the other is presumed to be community property. The wife, claiming such property to be hers, must establish her pretensions by legal proof. The fact that the title was taken in her name does not even raise a presumption in her favor.”

Succession of Graf, 125 La. 197, 51 So. 115.

In Isaacson vs. Mentz, 33 La. Ann. 595, a judgment creditor of a widow sought to subject to his judgment property acquired by her from her husband in his lifetime in'payment of “money made and earned by her by keeping a boarding house on her own account and received by the husband and applied to his own use;” and in a contest between the heirs of the deceased husband and the creditor of the wife the court adjudged that the property belonged to the succession of the deceased husband, saying:

“Inasmuch as there was a community of acquets and gains existing between this husband and wife during the entire term mentioned, the earnings referred to fell into the community and were subject entirely to the charge and disposition of the husband, as the head of that community, for which he was under no obligation to account to his wife.”

There is no proof that Mrs. Annie Jane McGaha possessed any separate paraphernal property or that the property was acquired with any such funds On the contrary, the proof shows that whatever consideration she paid for it was derived from operating a boarding house her earnings in which belonged to. the community between herself and her husband. Therefore both the property acquired with such earnings and the rents thereof were subject to seizure for community debts.

Plaintiff answered the petition of intervention and alleged that the property sized belonged to the defendant T. B. Mc-Gaha; that he deeded it to his son-in-law, J. T. Simpson, who, in turn, deeded it to defendant’s wife, Mrs. Annie Jane McGaha, and that the transfers were simulations and, if not, then made with intent to defraud plaintiff.

On these issues the case was tried and there was judgment decreeing intervenor to be the owner of all the property at-' tached and dissolving the writ of attachment and garnishment, and taxing plaintiff with the costs of the attachment and garnishment proceeding, and plaintiff appealed.

' OPINION

In reaching a conclusion in this case we have not found it necessary' to determine whether or not the sale from T. B. McGaha to J. T. Simpson and from the latter to Mrs. Annie Jane McGaha were simulations or in fraud of creditors of T. B. McGaha, for the reason that at the time of the attachment' of the property the title thereto stood in the name of Mrs. Annie J. McGaha and under the law. it presumably belonged to the community of acquets and gains existing between her and her husband T. B. McGaha, the defendant, and it was subject to attachment for the debts of the community and the debt sued on by plaintiff was a community debt.

Mrs. Annie Jane McGaha claims to own the property in virtue of the fact that she purchased it with funds derived by her in operating a, boarding house in her own name, but there is no proof that she acquired or operated the boarding house with her separate iparaphernal funds or that she had any separate paraphernl funds or that the hoarding house was operated in such manner as to relieve the community of acquets and gains between herself and her husband, the defendant T. B. McGaha, from liability for debts contracted in the operation of it. Under the facts disclosed by the record any one furnishing supplies for the boarding house could have held the community of acquets and gains liable therefor. Hence the revenues derived from operating the boarding house fell into the community.

It' is true that Mrs. Annie Jane McGaha considered the boarding house and the funds derived from its operation her separate property, but there is no proof in the record that she was operating the boarding house separate from her husband.

It therefore follows that the property attached and the funds in the hands of the garnishee were subject to seizure in satisfaction of plaintiff’s claim.

It is therefore ordered, adjudged and decreed that so much of the judgment appealed from as decrees the property attached and the funds in the hands of the garnishee to be the separate property of intervenor, Mrs. Annie Jane McGaha, and dissolving the writ of attachment and the writ of garnishment and taxing plaintiff with the costs of the attachment and garnishment proceeds be annulled, avoided and reversed, and it is now ordered, adjudged and decreed that' the writ of attachment and writ of garnishment be sustained and the property attached and money garnisheed decreed to be the property of defendant, T. B. McGaha, and that the property attached be sold and the money in the hands of the garnishee and the proceeds of the sale of the attached property be applied to the satisfaction of plaintiff’s claim in principal, interest, attorney’s fees and costs.


text:
    No. 3178
    Second Circuit
    HAM v. DOMILL CONSTRUCTION CO., ET AL.
    (May 22, 1928. Opinion and Decree.)
    (June 28, 1928. Rehearing Refused.)

      (Syllabus 6y the Court)

    1. Louisiana Digest — Master and Servant —Par. 154, 156.
    Before an employee can recover under the Employers’ Liability Act from the owner of a building being erected by a contractor he must show that the construction of buildings was a part of the business, trade or occupation of such owner.
    (Section 6 of Act No. 85 of 1926.)'
    Appeal from the Fourth Judicial District Court, Parish of Morehouse. Hon. J. T. Shell, Judge.
    Action by George Ham against Domill Construction Company, et al.
    There was judgment for plaintiff and defendant appealed.
    Judgment amended and affirmed.
    Todd and Todd, of Bastrop, attorneys for plaintiff, appellee.
    Theus, Grisham and Davis, of Monroe, attorneys for defendant Domill Construction Company, appellant.
    Madison and Madison, of Bastrop, attorneys for Bastrop Pulp and Paper Company and Southern International Paper Company, defendants, appellants.
   STATEMENT OF THE CASE

REYNOLDS, J.

Plaintiff alleges that on December 11, 1926, while in the employ of defendant Domill Construction Company and engaged in repairing a building in the town of Bastrop, Louisiana, belonging to the Bastrop Pulp & Paper Company he fell to the ground from a scaffolding eighty-four feet high and broke his right leg'above the knee and dislocated the knee and crushed several ribs on the right side and received other injuries in consequence of which he was permanently totally disabled to do work of any reasonable character.

He further alleges that at the time of the injury he was earning an average weekly wage of $33'.60.

He further alleged that subsequent to the injury the Bastrop Pulp & Paper Company had been consolidated with and changed its name to that of the Southern International Paper Company which assumed all of the liabilities of the Bastrop Pulp & Paper Company.

He further alleges that his medical and hospital expenses had been paid by tie defendants who had also paid him compensation up until April 9, 1927, or sixteen weeks, at the rate of $16.25 a week.

And he prayed for service and citation of the Domill Construction Company, Bastrop Pulp & Paper Company, and Southern International Paper Coihpany and for judgment against them in solido for $20.00- a week for 400 weeks, beginning December 11, 1926, with interest on each weekly payment at the rate of 8% per annum, from the date due until paid, less a credit of $16.25 a week for sixteen weeks, and for the further sum of $250.00 medical expenses, less such amount as defendants may have paid on that account. •

The defendant, Domill Construction Company, answered denying that plaintiff was injured as seriously as claimed by him and that he was receiving the wages alleged by him and that he had paid or was responsible for any medical expenses growing out of his injury, and alleged that plaintiff was only working eight hours a day for six days a week and receiving therefor 40 cents an hour, and that plaintiff only received a slight injury, consisting of a fracture of the right leg above the knee, and that the injury had entirely healed, that compensation at the rate of $16.25 a week for 16 weeks had been paid to plaintiff and that this was all the compensation he was entitled to, that all medical, hospital and doctor’s bills had been paid, and that plaintiff was entirely well of and not suffering from any disability as a. result of the injury.

The defendants; Bastrop Pul® & Paper Company and Southern International Paper Company, filed answers making the same denials and allegations as did the defendant, Domill Construction Company. Both defendants denied that they were liable to plaintiff in solido with defendant Domill Construction Company or otherwise.

On these issues the case was tried and there was judgment in. favor of the plaintiff, George Ham, and ágainst defendants, Domill Construction Company, Bastrop Pulp & Paper Company and Southern International Paper Company in solido for $20.00 per week during disability, not to exceed 400 weeks, beginning December. 11, 1926, with interest at 5% per annum on each weekly payment from the first of each week for which it was due, less a credit of $16.25 paid weekly for sixteen weeks from December 11, 1926, and judgment for the further sum of $250.00 for medical expenses, or as much thereof as may be necessary in the treatment of plaintiff, less such amount as may h^ve already been paid on that account, and fixing the fee of plaintiff’s attorneys at 20% of the amount of the award, but not exceeding $1000.00, and awarding them a privilege on the judgment therefor, and fixing the fees of the two experts who testified in the case at $25.00 each and ordering their fees taxed as costs in the case.

From this judgment' the Domill Construction Company and Southern International Paper Company appealed.

OPINION

The judgment appealed from is incorrect insofar as it condemns the Bastrop Pulp & Paper Company and the Southern International Paper Company in solido with the Domill Construction Company, for the reason that plaintiff was not an employee of either of the former and the evidence does not establish that the construction of the building was a part of the business, trade or occupation of either of those companies.

The only other question involved in the case, as stated by counsel for the Domill Construction Company in their brief, is

“* * * whether the court' should have rendered judgment during disability, not to exceed one hundred and seventy-five (175) weeks, as defendant offered the plaintiff in open court, or whether the court should allow judgment for four hundred (400) weeks.”

Section 15 of Act No. 85 of 1926 provides:

“In all cases involving a permanent partial loss of the use of function of the member mentioned hereinabove, compensation shall bear such proportion to the amounts named herein for the total loss of such member as the disability to such member bears to the total loss of the member, provided that in no case shall compensation for an injury to a member exceed the compensation payable under this act for the loss of such member.” (Bold type ours.)

The compensation recoverable for the loss of a leg is sixty-five per centum of wages during 175 weeks.

Paragraph 1* clause (d), section 6 of Act No. 85 of 1926.

Plaintiff’s right leg was broken above the knee and the knee caip dislocated. He was carried to a hospital and given medical treatment . at the expense, of defendants, and was paid compensation at the rate of $16.25 per week from the date of .his in? jury to April 9, 1927.

The injured leg is half an inch shorter than the other. He testified:

“Q. You walk around town often?
“A. Not much; not more than I have to,
“Q. You are not working, are you?
“A. No, sir.
“Q. Still, you have to walk around town on your legs?
“A. I don’t have to, but I go after mail and things like that.
“Q. Did that pain you about March or April, whenever you walked on it?
“A. Yes, sir; pains me just as bad now as it did then, or as much then as now.
“Q. But, still you attempted to skate on it that day?
“A. Yes, sir.
“Q. About how long did you try to skate or have the skates on your feet?
“A. I had them on my feet about ten minutes.”

Under the plain language of the statute the compensation plaintiff is entitled to is limited to sixty-five per centum of wages during 175 weeks as for the loss of a leg, and defendants concede that he was entitled to judgment for that amount.

With respect to the injury to his rib, the evidence satisfies us that this was minor and that plaintiff was entirely cured of. Therefore he was not entitled to compensation on that account.

It is therefore ordered, adjudged and decreed that as to the defendants Bastrop Pulp & Paper Company and Southern International Paiper Company, the judgment appealed from be annulled, avoided and reversed and plaintiff’s demands rejected and his suit dismissed at his cost, and that, as to defendant Domill Construction Company, the judgment appealed from he amended so as to award plaintiff compensation of twenty dollars iper week for one hundred and seventy-five weeks beginning December 11, 1926, with legal interest on each payment from the date of its maturity until paid, subject to a credit of sixteen and 25-100 dollars per week for sixteen weeks beginning December 11, 1926, and that in all other respects the judgment appealed from be affirmed.


author: WEBB, J.

text:
    No. 3214
    Second Circuit
    LOUISIANA FLOUR & FEED COMPANY, INC., v. PARNELL
    (May 22, 1928. Opinion and Decree.)
    (June 28, 1928. Rehearing Refused.)

      (Syllabus by the Editor)

    1. Louisiana Digest — Tender—Par. 1.
    A tender is not necessary before bringing suit where any rights which defendant may have to the uncollected notes may be protected by the judgment.
    2. Louisiana Digest — Pleading—Par. 62.
    Where the illegality of a contract does not necessarily follow from the allegations of the petition but must depend upon inferences, an exception no cause of action will be overruled.
    Appeal from the Fourth Judicial District Court, Parish of Ouachita. Hon. J. T. Shell, Judge.
    Action by Louisiana Flour & Feed Company, Inc., against Charles W. Parnell.
    There was judgment for defendant and plaintiff appealed.
    Judgment reversed, exception no cause of action overruled, and case remanded for trial.
    R. H. Oliver, of Monroe, attorney for plaintiff, appellant.
    Theus, Grisham & Davis, of Monroe, attorneys for defendant, appellee.
   WEBB, J.

In this action plaintiff, Louisiana Flour & Feed Company, Inc., seeks to enforce against defendant, Charles W. Parnell, an alleged agreement entered into between the parties on the 9th of December, 1924.

Plaintiff alleges that it was a creditor of C. W. Parnell & Co., Inc., for the sum of $2488.87 with 8% per annum interest thereon from June 30, 1921, secured by certain mortgage notes, and that in November, 1921, involuntary bankruptcy proceedings were taken against C. W. Parnell & Co., Inc., under which an order was "issued for the sale of all the property of the bankrupt, and that pending the sale C. W. Parnell, the defendant, the principal stockholder of C. W. Parnell & Co., Inc., having conceived plans for the reorganization of the company which contemplated his coming into possession of its property, or so much as he could acquire, entered into an agreement with plaintiff of the following tenor:

“Party of first part is holder and owner of note of C. W. Parnell & Co., Inc., for $2488.87, with 8% interest from June 20th, 1921, with certain mortgage notes attached thereto as collateral. At the sale of assets of C. W. Parnell & Company, Inc., to be held on Dec. 10th, the collateral shall be bid in by party of first part, or, in bulk with remainder of assets by party of second part or some one acting in his interest. In latter event said collateral shall be delivered to party of first part as its property, without deposit of any money, at the price of the indebtedness of C. W. Parnell & Company, Inc., to party of the first part, irrespective of the amount of the bid. Party of the first part shall proceed with reasonable diligence to collect the said collateral notes from the various makers, paying over to C. W. Parnell whatever surplus there may be, if any, over the indebtedness due party of the first part. On the other hand, if, after a reasonable time and due effort to collect, part of the first part shall not have collected the full amount due it. as represented by the note of C. W. Parnell & Company, Inc., then party of the second ©art shall pay the deficiency to party of the first part.”

Plaintiff further alleges that acting in pursuance of the agreement it became the purchaser of the collateral mortgage notes and began at once to collect same and had collected as much from the said notes as it was possible for it to do, and had collected all that it was possible to collect, which was less than the amount of the note of $2488.87 with interest, and that it had made demand on defendant for payment of same without avail, and it prays for judgment for such amount with 8% per annum interest from judicial demand and costs.

The defendant excepted that the petition failed to state a right or cause of action, which was sustained and judgment rendered dismissing the suit, from which plaintiff appeals.

The grounds on which the exception was based may be stated as follows: That the contract was in violation of public policy and null; that the consideration was illegal; and, further, that there was an implied obligation on the ©art of plaintiff to surrender to defendant any of the uncollected notes, and the surrender of same was a condition precedent to enforcing the obligation of defendant.

The contention that it was necessary for plaintiff to surrender the uncollected notes (assuming there were any) or to allege a tender, as a condition precedent to the enforcement of the obligation of defendant, while urged by counsel is not discussed, and considering that the allegation of tender is usually necessary as a condition precedent to the enforcement of a right only when so declared by statute, or in actions for rescission, or where stipulated in the contract, and as none of these reasons appear in the present instance, and as it appears that any right which defendant may have to the uncollected notes may be protected in his defence and by the judgment, we do not think it was necessary for plaintiff to allege a tender.

The position that the consideration of the contract was illegal, was discussed by counsel in connection with the contention that the purpose of the parties was to stifle and prevent competitive bidding at the sale, that is, the parties bound themselves not to bid against each other and the effect was to stifle bidding, urging that the consideration or cause of the agreement on the part of plaintiff was the promise of defendant to guarantee the payment of the debt due to plaintiff by the bankrupt, while plaintiff apparently takes the position that the agreement should be considered as relating solely to the collateral notes in which the reciprocal promises of the parties was on the one hand to pay or deliver to the other any amount collected from the notes in excess of the indebtedness due by the bankrupt to plaintiff, and on the other to ©ay a sum equal to the deficiency in event the amount' collected from the notes was less than the indebtedness due ©laintiff, and the effect of the agreement was to encourage rather than to stifle bidding, but that if the effect was otherwise, the validity of the agreement must depend upon whether or not the parties were actuated by honest motives.

The memorandum of the agreement is somewhat' vague and does not set out in .apposition the reciprocal promises of the parties, and it does not show on its face that either of the parties bound themselves not to bid, or that the agreement of defendant with relation to the payment of the indebtedness due plaintiff was in consideration of any agreement on the part qf the latter not to bid, but the defendant contends that when the contract is considered with the allegations of the petition that defendant, Parnell, desired to obtain assets of the corporation, and the declaration in the agreement that plaintiff was a creditor, of the corporation holding collateral paper as security, and. the manner of condncting or offering the assets for sale (in globo) and in parcels, the adjudication being made in globo only when the bid was equal to or in excess of the bids for the parcels, with the. law under .which it was necessary for plaintiff to protect its rights in the pledged notes, necessarily leads to the conclusion . that the object or cause of the contract was to stifle or prevent competitive bidding.

The conclusion is based upon an assumption that the parties’ interests were adverse (defendant’s interest being to acquire the assets at the minimum, price and plaintiff’s being that the assets and especially notes should bring' the maximum price) and that by the agreement with relation to the payment of the indebtedness due plaintiff by the bankrupt the necessity of plaintiff protecting the collateral was avoided, and by means of the manner of conducting the sale defendant was to obtain the assets without coming in competition with plaintiff. ’

The petition, however, shows that plaintiff did bid on the collateral notes and became the purchaser and we assume it did protect its interest, and it is not shown that the assets of the bankrupt were offered in globo and in parcels, nor is it claimed that any statute, rule or order of court required the assets to be so offered, nor does it appear that defendant bid for or acquired any part of the assets of the bankrupt.

While it may be the parties did contemplate that the assets would be offered in globo and in parcels and that under their agreement they bound themselves not to come in competition with each other, in such offerings as to the 'notes, and thus their contract be held null and void as contrary to public policy, without regard to their motives, we do not think such conclusion necessarily follows from the facts alleged by plaintiff but ’must largely depend upon inference drawn from facts which do hot appear from the pleadings.

The-illegality of a contract as a means of avoiding compliance with a promise thereunder is usually a matter-of defence to be presented by a special plea (Harvey vs. Fitzgerald, 6 Mar. (O. S.) 530; Katheman vs. Ins. Co., 12 La. Ann. 30); however, when the illegality arises from violation of a, law -relating to public policy and is apparent from the contract or becomes apparent when considered with alle: gations of the petition, if may be urged in support of an exception, but in such case the illegality should clearly appear and not be inferred, as there cannot be any presumption that one has violated the law or that they contracted with the view of its future violation.

“Without»» minimizing the importance of the doctrine that contracts should not be enforced if they contravene public policy, many courts have cautioned against recklessness in considering contracts as being in violation of public policy * * * All that the cautionary remarks may be interpreted to mean is that in determining whether a contract is against public policy there must be kept in view the rule that where there is no statutory prohibition the courts do not readily pronounce an agreement invalid on the ground of public policy or convenience but on the contrary are inclined to leave men free to regulate their affairs as they think proper * * * It has also been observed that the power to invalidate agreements on the ground of public policy * * * should be called into action to set aside or annul the solemn engagements of parties dealing on equal terms only in cases where the corrupt or dangerous tendency clearly and unequivocally appears on the face of the contract itself, or is the necessary inference from the matters which are expressed, etc. * * * It is no doubt correct to say that while public policy forbids the enforcement of an illegal or immoral contract, it is equally insistent that those which are lawful * * shall be enforced, etc.”

R. C. Law, Contracts, vol. 6, page 710, No. 119. .

We are of the opinion the exception should 'have been overruled, and it is therefore ordered that the judgment be avoided and annulled arid that the exception of no cause or right of action be overruled, and the cause be remanded for further proceedings; defendant to pay. .the cost of appeal.


author: ÓDOM, J.

text:
    No. 3070
    Second Circuit
    STATE EX REL. THOMAS, ET AL. v. FULLER, DISTRICT ATTORNEY
    (February 3, 1928. Opinion and Decree.)
    (March 14, 1928. Rehearing Refused.)
    (May 6, 1928.' Judgment-of Court of Appeal Affirmed by Supreme Court on Writs of Certiorari and Review.)

      (Syllabus by the Editor)

    1. Louisiana Digest—
    Under Sections 2593 and 2594 of the Revised Statutes a number of citizens have the right to mandamus a District Attorney to. bring suit in the name of the State to determine judicially - the question as to whether the police jury is legally constituted.
    Appeal from the Eighth Judicial District Court, Parish of LaSalle. Hon. R. C. Culpepper, Special judge.
    Action by State of Louisiana, on the relation of Simeon B. Thomas, A. Jack Taylor, and Clarence C. Paul against Harry Fuller, as District Attorney for the Eighth Judicial District of Louisiana.
    There was judgment for relators and respondent appealed.
    Judgment affirmed.
    Hawthorn & Stafford, of Alexandria, and C. W. Flowers and S. R. Holstein, of Jena, attorneys for relators, appellees.
    Harry Fuller, District Attorney for the Eighth Judicial District of Louisiana, -respondent, appellant, per se.
   ÓDOM, J.

Áct No. 279 of 19Ó8, section 1, provides that' in each parish of the state (the parish of Orleans excepted)'

■ “* *- * having a population of. -less than fifty thousand inhabitants there shall be elected in the manner provided by law, in addition to the police jurór to which said ward is entitled', an additional police juror for each five thousand inhabitants which said ward contains.”

The parish of LaSalle, according to the last official census, contains less than fifty thousand inhabitants. Therefore, if any ward of that parish contains more than five thousand inhabitants, such ward, "under the above act, is entitled to an additional police juror.

In order to ascertain whether ward three of that parish contained more than five thousand inhabitants and was, for that reason, entitled to an additional police juror, the Police Jury, on November 9, 1926, passed an ordinance' ordering and directing that a census of that ward be taken.

The census was taken. The results showed that there were more than five thousand inhabitants in the ward. A certificate to that effect was forwarded to the Governor and he forthwith proceeded to appoint an additional police juror as well as an additional member of the School Board for that ward; Commissions were issued to them and they qualified and are now holding said offices.

After these officers had been appointed and qualified, some thirty-five persons of ward three and a great number-from other wards of the parish, all alleging that they were citizens of the parish, petitioned the Honorable Harry Fuller, District Attorney, to bring suit in the name of the State, under Section 2593 af the Revised Statutes, to have these officers ousted, on the ground that they had intruded into and were unlawfully holding and exercising a public office, to-wit: that of police juror and member of the School Board.

They set up in their petition, as their grounds of complaint, substantially that according to the last official census ward three of LaSalle parish contained less than five thousand inhabitants and was therefore not entitled to an additional police juror and member of the School Board, that the Police Jury, in ordering and taking á census of the ward, had proceeded without warrant and without authority in law, that it had no right or lawful authority to certify the results of such illegal census to the Governor, and that he had no right under the law to create the office of an additional police juror and member of the School Board for that ward and had no right to make the appointment; and, further, that if the Police Jury had such right under the law, the census taken was erroneous and that, as a matter of fact, the ward contained less than five thousand inhabitants, as would be shown by a correct census.

For all of which reasons they alleged that the appointments made by the Governor and the commissions held by said officers are null and void and that said parties are unlawfully holding and exercising said offices.

The District Attorney refused to bring the suit.

Whereupon these petitioners brought this suit against the District Attorney, asking that mandamus issue ordering and directing him to bring the suit, setting put as a cause of action the grounds set forth above.

He filed in limine an exception of no right and no cause of action.

Reserving his rights under said exception, . he answered setting up substantially that the Police Jury was warranted under the law in taking the census of ward three of LaSalle parish and certifying the same to the Governor, that the Governor had a right to make the appointments, and that said parties were lawfully holding and exercising said offices.

His exception of no cause and no right of action is grounded, as we understand, upon the proposition that he is vested under the law with discretionary powers as to what suits he shall bring in the name of the State and when to bring them and that mandamus will not lie to force him to act in cases of this kind; and, further, that in as much as the petitioners are not themselves claiming these offices, they have no right to proceed against those now holding them under appointment and commission by the Governor, and no right to force him to proceed against them in the name of the State.

The lower court overruled the exception of no cause of action, and upon trial ordered the District Attorney to proceed as required.

The District Attorney has appealed.

OPINION

The questions whether the Police Jury of LaSalle parish was authorized under the law in ordering and taking the census of ward three of that parish in order to determine whether that ward was entitled to an additional police juror and member of the School Board, and whether the Governor was warranted in making the appointments, are not before the court in this suit. The only question presented is whether the District Attorney should bring suit to have these questions judicially-determined.

In so far as the question at issue is concerned, we see no distinction between this case and that of State ex rel. Smith vs. Theus, District Attorney, 114 La. 1097, 38 So. 870.

In that case the charge leveled at the Parish Superintendent of Public Education was that he—

<** * * has usurped, intruded into, and is unlawfully holding -and exercising the position of parish superintendent of public schools within the state.”

In the case at bar, the petitioners allege, in substance, that J. E„ Turnley and S. A. Doughty are guilty of usurping, entering into and unlawfully holding and exercising the offices of ipolice juror and member of the School Board respectively, and that they desire that suit be brought by the District Attorney to test their right to hold and exercise said offices. •

They set up as a ground of the complaint that these parties are holding and exercising offices which do not in fact and in law exist; that the Police Jury of LaSalle parish and the Governor of the State have without warrant in law created the offices which these parties hold; and, in substance, that as a result of the illegal and unwarranted acts of the Police Jury and the Governor, both the Police Jury and the School Board are illegally constituted, because each has one more member than the law allows.

The petitioners have raised and presented a vital question, one which is of general public interest, and one which should be judicially determined. The only way to have the question settled is to have it presented to the court, and the- only way to have it presented is for the District Attorney to bring the suit in the name of •the State.

In this case as in that of State ex rel. Smith vs. Theus, District Attorney, supra, we think the petitioners were entitled to have the suit brought. It was the duty of the District Attorney to comply with their request and bring the suit.

They are seeking to' have him act, not under sections 1 and 6 of Article IX of the Constitution, but under sections 2593 and 2594 of the Revised Statutes, the “intrusion into office1” law.

The District Attorney makes the point that the petitioners did not allege that they are taxpayers, as they did in the Theus case, supra. We think that makes no difference. They did allege that they are citizens of the parish. As citizens they are interested in the proper administration of the parochial affairs of the parish and in the public schools.

Under section 6 of Article IX of the Constitution it is made the duty of the District Attorney or Attorney General, as the case may be, to bring a suit to impeach certain officers “on the written request, specifying the charges, of twenty-five citizens and taxpayers.”

But, as stated, the request made by the citizens in this case is not to “impeach” the officers named, but to have it declared that they are unlawfully holding and exercising the offices. The law which authorizes such suits does not specify that the petitioners shall be taxpayers.

The District Attorney also contends, in support of his exception of no cause of action, that inasmuch as the petitioners are not claiming these offices for themselves they have no interest in the subject matter and therefore no right to comipel him to bring the suit.

If they had attempted to come into court as individuals contesting the right of Turn-' ley and Doughty to hold and exercise these offices, the point might be well taken under the authority of Ford vs. Miltenberger, 33 La. Ann. 263; Osgood vs. Black, 33 La. Ann. 493; Guillotte vs. Poincy, 41 La. Ann. 333, 6 So. 507; State ex rel. Saizan vs. Judge, 48 La. Ann. 1501, 21 So. 94.

But they are not suing as individuals, but are asking that the suit. be brought by the State through the District Attorney.

This case falls under the ruling in the cases of State vs. Grandjean, 51 La. Ann. 1099, 25 So. 940, and State ex rel. Smith vs. Theus, District Attorney, 114 La. 1097, 38 So. 870. In these cases no other person was claiming the offices; but the court held that the suits were properly brought in the name of the State.

Police Juries and School Boards control parochial affairs. Citizens have an interest in seeing that these boards are properly constituted. Having such interest, they have the right to have judicially determined the question whether such boards are legally constituted.

If the District Attorney’s position be well taken, they have a right without a remedy.

But the law provides the remedy in sections 2593 and 2594 of the Revised Statutes. As that law is interpreted in the Theus case, the District Attorney must act.

The District Court overruled the exception of no cause of action and ordered the District Attorney to file the suit. That ruling is correct and the judgment appealed from is accordingly affirmed.


author: ODOM, j.

text:
    No. 3192
    Second Circuit
    MORGAN PLAN COMPANY, INC., v. ATES, ET AL.
    (June 28, 1928. Opinion and Decree.)
    (July 14, 1928. Rehearing Refused.)

      (Syllabus by the Editor)

    1. Louisiana Digest — Exemptions from Seizure — Par. 2, 11.
    A general waiver of a common laborer of the exemption from seizure of his future, unearned wages is void under Code of Practice, Article 644, as amended by Act 184 of 1918.
    Appeal from the City Court of the City of Alexandria. Hon. J. B. Nachman, Judge.
    Action by Morgan Plan Company, Inc., against W. C. Ates, et als.
    There was judgment for defendants and plaintiff appealed.

      Judgment affirmed.
    F. B. Capfpel, of Alexandria, attorney for plaintiff, appellant.
    B. T. Dawkins, W. C. Roberts, of Alexandria, attorneys for defendants, appellees.
   ODOM, j.

On August 30, 1926, W. C. Ates and others signed a promissory note in favor of the plaintiff, which note contains the following general waiver:

“Each of us, whether Principal, Surety, Guarantor,' Endorser or otherwise party hereto, hereby, severally waive" and renounce, each for himself and ■ family,' all homestead or exemption rights and especially waive in favor of any holder of this note any and all personal exemptions accorded under the laws of Louisiana or any other state of the United States, «as against the seizure, attachment or garnishment of any wages or salary that may be due any one of us by any person, firm or corporation, either1 of us may have under or by virtue of the Constitution or laws of this State, or any other state of the United States, as against this debt, or renewal thereof, and eaeh further waive demand, protest and non-payment.’?

On August 26, 1927, the plaintiff obtained judgment against Ates, et al., for the full amount due under the note.

Ates is a common laborer for the Missouri Pacific Railroad Company.

At some time after plaintiff obtained the judgment, it seized, through garnishment process, the sum of $98.70 in the hands of Ates employer, said amount being due him as wages. He moved that the seizure be dissolved on the ground that under Article 644 of the Code of Practice his wages were exempt from seizure. But plaintiff interposed the plea that he had waived his exemption in the note which he signed. Ates now claims that the waiver was void, being prohibited by law and against public policy.

The ;only question therefore presented for our consideration and decision, is whether a- common laboror can validly waive the exemption from seizure .-of unearned wages.

Counsel for the plaintiff company says in brief:'

“Counsel for defendant contend that such a' waiver is against public policy, and relies bn the Act No. 79,' page 123, of 1876. This act of 1876 exempts the wages of labbr'ers;' and especially precludes' the-laborer or party entitled to the exemption 'from renouncing or waiving it.
‘iSuch may be the law of1 1876 up to the time, of the .p.assage of the Act No. 184, page 347, of 1918, and. this: article-enumerates in detail the different matters that, are exempt, -including laborers’ wages; but this Act No. 184 of 1918 does not preclude in any (manner) the renunciation or waiving of this personal exemption. Said Act of 1918 specially repeals all other prior acts on this question. The act • of 1876 provided a penalty as against such waiver. Act 184 of 1918 not -only- -provided no penalty, but no prohibition or inhibition was provided in said act. Therefore Act 79 of 1878 was repealed by that of 1918 on the same subject matter, and the1 present contract falls under thp law of 1918.”

Counsel’s point might be well taken, but for one thing. He has entirely overlooked the fact that the portion of Act 79 of 1876 which he says—

“* * * especially precludes the laborer or party entitled to the exemption from renouncing or waiving it”

was not repealed by Act 184 of 1918.

Act 79 of 1876 is

“An act to amend article six hundred forty-four of the Code of Practice * * * to fix penalties for the violation of this act, and to fix the limits of this act and the interpretation to be given it.”

The act is written in four sections which are embraced in the title.

Section 1 amends Article 644 of the Code of Practice, which specifically provides that a laborer’s wages shall be exempt from seizure.

Section 2 provides—

“That any person offending against the provisions of this Act, or who shall by any artifice or subterfuge induce or procure another to sign away, by contract or otherwise, any of the rights which he or she may have under this Act, shall be deemed guilty of a misdemeanor, etc.”

Section 3 repeals all laws conflicting with or contrary to its provisions; and section 4 states the interpretation to be given the act.

It is conceded that the purpose of section 2 of this act was to make it unlawful for a laborer to waive the exemption accorded him under the act.

The title of Act 184 of 1918 is

“An act to amend and re-enact section one (1) of Act No. 79 of the General Assembly of the State of Louisiana of 1876, •entitled,” etc. (The title of Act 79 of 1876 is quoted literally.)
“Section 1. Be it enacted by the General Assembly of the State of Louisiana, That section one (1) of Act' 79 of 1876 be amended and re-enacted so as to read as follows:
“Section 1. That article six hundred forty-four of the Code of Practice of Louisiana be so amended as to read as follows:”

Then follows the article in full, which provides, as did the old article, that a laborer’s wages are exempt from seizure.

Section 2 of the act repeals all laws contrary to or conflicting with, the provisions of the act.

It is perfectly clear that the act of 1918 did not repeal or in any wise affect sections 2 and 3 of the act of 1876, and that they are now in full force and effect.

Therefore, according to counsel’s own argument, it is now unlawful for a laborer to waive the exemption.

It cannot be questioned, we think, that the legislature of 1876 intended to make it unlawful for any one to waive the exemptions provided in Article 644 of the Code of Practice. It is equally clear that the legislature of 1918 intended to leave untouched that provision of the act of 1876 which made such waiver unlawful.

What may have been the reasons which prompted our legislature to make such waivers unlawful need not be discussed. Suffice it to say that they are unlawful by legislative enactment, and we think it reasonable to assume that our legislature was prompted by the same reasons which underlie the decisions of courts of last resort in many of the states of the Union declaring such waivers unlawful, and that' is that they are against public policy.

In a very recent case, that of J. N. Weaver vs. Clyde Lynch, 79 Colo. 537, 246 Pac. 789 (also reported in 47 A. L. R. 299), the Supreme Court of Colorado held that—

“A stipulation in a note waiving the right of exemption is void as against public policy.”

Following this case, as reported in 47 A. L. R. 299, there is a note in which the annotator states—

“It is a general rule that a personal exemption cannot be waived by stipulation in an executory contract, such as a note, bond, lease or the like,”

and in support of the rule there are cited cases from fourteen states of the Union.

We quote the following from Ruling Case Law, volume 11, page 543:

“The better reasoning and weight of authority support' the proposition that a contract made at the time of incurring an indebtedness waiving the debtor’s right to exemptions is contrary to public policy and invalid. The statutes which allow a debtor, being a householder and having a family for which he provides, to retain, as against the legal remedies of his creditors, certain articles of prime necessity, to a limited amount, are based upon views of policy and humanity, which would be frustrated if an agreement waiving his right could be sustained. If effect should be given to such agreements it is likely they would be generally inserted in obligations for small demands, and in that way the policy of the law would be completely overthrown. Because of a disposition on the part of some to take undue advantage of another’s extremity and because also of the readiness of m„en, under pressure, to make contracts which may deprive them and their families of articles indispensable to their comfort the legislature has most wisely interposed.”

And the following from Corpus Juris, volume 25, page 11, section 192:

“It is a rule nearly universal, based on reasons of public policy, that a debtor’s waiver of his exemption right by stipulation of an executory contract, is absolutely void.”

And, again—

“The rule in nearly all jurisdictions, whether under a statute so providing, in exjpress terms, or in the absence of statutory provisions, is that an exemption in wages cannot be waived in an executory contract.”

In Hardin vs. Wolff & Cref, 29 La. Ann. 333, our court held, with Judge Egan as its organ, that rights acquired under the homestead laws of the state could not be waived by any convention of parties.

The law at that time granted to the head of a family the right to claim his homestead as against certain creditors and exempted it from seizure, but there was no specific provision by which he could waive the exemption.

However, the decision in the Hardin vs. Wollf case, supra, was overruled in Nugent vs. Carruth, 32 Ann. 445, with Justice White as the organ of the court.

But it is interesting to note that Justice White, in his opinion (in which he paid high tribute to the “judgment and ripe scholarship” of Justice Egan) noted and drew a distinction between a general renunciation and a special renunciation as to particular property.

Speaking of these decisions which were cited by Judge Egan in the Hardin vs. Wollf case, supra, Justice White said:

“Without reviewing them in detail, we think they all either depend on the particular provisions of the statute law which they interpret, or if they formulate a doctrine, simply teach that a general renunciation of. the right to claim the benefit of homestead or exemption laws cannot be enforced. Upon even this proposition there is division of authority; taking it however as sound doctrine, it does not meet the instant' issue, which is not whether a general renunciation of the right to claim the benefit of homestead or exemption laws is binding, but whether a special renunciation as to particular property can be enforced. The difference between the two cases is self evident; the one being a divestiture on the part of the debtor of his right to claim the benefits of the laws of the land as to his present and future (property, the other being simply the exercise of his power of ownership over the particular property the subject of a particular contract. In fact we think a careful scrutiny of the oases in the books will make it clear that the fundamental distinction is carefully observed between the right of an individual when not inhibited by positive law to do as he pleases with his own, and his want of power to make, as to all future property, a law of his own different from and in violation of general laws applicable to all others.”

Prom the above we think it highly probable that if the court had been considering a case in which the debtor had made a general instead of a special waiver, it would. have been held that such waiver was void, even as to the homestead.

In the case at bar, Ates made a general waiver, in a note, of the exemption from seizure of his future; unearned wages. ;We hold that such waiver was void, and in so holding affirm the judgment of the lower court. Costs to be .paid by the appellant..


text:
    No. 2518
    Second Circuit
    ARMAND v. ARMAND
    (May 22, 1928. Opinion and Decree.)
    (June 28, 1928. Rehearing Refused.)

      (Syllabus by the Editor)

    1. Louisiana Digest — Fraud—Par. 1, 9.
    In view of Article 1497 of the Civil Code allegations that a deed of sale was in reality a donation by which the donor divested himself of all of his property is an allegation of fraud, and permits the introduction of parol evidence.
    2. Louisiana Digest — Donation—Par. 20, 30.
    Where the evidence conclusively shows that a purported sale was a donation by which the donor divested himself 'of all of his property it is null and void under Article 1497 of the Civil Code.
    3. Louisiana Digest — Evidence—Par. 352.
    Where the evidence as to the value of improvements placed on property is conflicting, the burden of proof being on the defendant to prove this defense, their value will not be allowed to the defendant.
    4.Louisiana Digest — Obligations—Par. 128.
    The law does not require that the plaintiff should have tendered to defendant the value of the improvements placed by defendant on the property prior to instituting the action to annul and therefore sale can be annulled before tender is made.
    Appeal from the Tenth Judicial District Court, Parish' of Natchitoches. Hon. John P. Stephens, Judge.
    Action by . Alex Armand against JSdward Armand.
    ■ There was judgment for defendant and plaintiff appealed.
    Judgment reversed.
    M. L. Dismukes, of Natchitoches, attorney for plaintiff, apellant.
    Phanor Breazeale, of Natchitoches, attorney for defendant, appellee.
   WEBB, J.

The plaintiff, Alex Armand, brought this action against his son, Edward Armand, to annul and cancel a transfer of forty' acres of land made by the plaintiff to defendant under an authentic act passed on August 13, 1921, purporting to be a sale for an expressed consideration of three hundred dollars cash.

The petition is somewhat vague, but construed liberally plaintiff, in substance, alleges that, there was not any consideration for the transfer and the transfer was a donation in disguise and procured by defendant by fraudulent representations in that defendant, in consideration of the transfer, promised to contribute to the support of plaintiff and his wife (defendant’s mother) and thereby caused plaintiff to divest himself of all of his property, • and that the purported sale was null and void, being a donation by which plaintiff divested himself of all of his property.

Plaintiff further alleged, in the alternative, in event the transaction is held to 'have been a sale, that the same should be annulled for non-payment of the price, or that plaintiff should have judgment against defendant for the amount expressed as the price, with legal interest' from the date of the transfer, with recognition of a vendor’s privilege on the property, and plaintiff further alleged that defendant had built a dwelling house on the property, and paid the taxes thereon, and that he tenders to him one acre of land on which the dwelling house is situated in satisfaction of the payment of taxes and improvements, and he prays for judgment annulling •the purported sale as a donation in disguise, and, in the alternative, for judgment annulling the sale for non-payment of the price, or for judgment- for the price, and for general relief.

The defendant answered alleging that the transaction was a sale and that the price had been paid, in that the land had been purchased by plaintiff with the understanding that the price would be ipaid by plaintiff with amounts due defendant who was at that time a minor to be collected by plaintiff, and the land was conveyed to defendant when he became of age, and that wages due defendant to an amount • in excess of three hundred dollars had been collected by plaintiff and the conveyance was made in pursuance of the agreement; defendant denied that. he had -promised to contribute to the support of plaintiff and his wife as the consideration of the transfer, or that any fraud had been practiced.-

Defendant further alleged that he had placed improvements on the property of the value of fifteen hundred dollars and that he had paid the taxes thereon, and that the net revenues from the property had not been in excess of seventy-five dollars per year, and alleged that he .would not be sufficiently remunerated by accepting the one acre ■ of land tendered, and he prayed that plaintiff’s demand be rejected, but should the transfer be annulled for any reason, that he shpuld have judgment in reconvention for the value of the improvements or fifteen hundred dollars, and the amount of taxes paid, and that the transfer should not be annulled until the payment of such amounts.

On trial, judgment was rendered in favor of defendant, rejecting plaintiff’s demand, and he appeals.

During the course of the trial parol evidence was offered by plaintiff and admitted over defendant’s objection tending to show that there was not any consideration for the transfer other than an agreement of the defendant to contribute to the support of plaintiff and to show that' plaintiff had divested himself of all his property, and on behalf of defendant evidence was offered tending to support his allegations as to the consideration of the transfer, and evidence was also offered as to the value of the improvements and use of the property.

The court', we understand, in deciding the case, concluding that the Objection to the admission of parol evidence should have been sustained, and such evidence not being considered, judgment was rendered in favor of the defendant, and the parties in their presentation of the case here have confined their discussion almost exclusively to the question of the admissibility of the evidence, w.ithout giving much consideration to the facts established by the evidence, or the relief which the parties should be granted, should the evidence be considered, and entirely ignoring the alternative demands of plaintiff, which latter we presume are abandoned, and we shall confine our discussion to the admissibility of the evidence and, if admissible, to the facts established, and the relief to be granted under the facts established.

The plaintiff apparently contends that parol evidence was admissible under the answer of defendant, the allegations of fraud, and under the allegations that' the transaction was in fraud of the law.

The defendant in his answer did not admit the allegations of the plaintiff, and we do not think that his answer could be regarded as being in the nature of a confession either that the transaction was a donation or that plaintiff had thereby divested himself of all of his property, and if the only manner by which the transaction could be avoided by plaintiff would be on the confession of the defendant, resulting from the answers to interrogatories on facts and articles, or otherwise, the answer of defendant cannot be considered as sufficient to warrant the act of sale being set aside and decreed to have been a donation by which the plaintiff divested himself of all of his property, and we do not think the answer could be considered as an admission of error in the purport of the act so as to permit the introduction of parol evidence to show a purpose other than that expressed.

The allegations as to fraud having been perpetrated upon plaintiff by defendant, which were, that defendant had promised that he would contribute to plaintiff’s support if plaintiff would make him a deed to the property, and that defendant had violated his promise, are very vague unless considered as an attempt to have the transaction declared to. have been an onerous donation and then to rescind it for failure to comply with the charges imposed on the donee.

The authentic act stands as the sole and only evidence of the transaction between the parties until it is alleged and-shown to have been signed in error, under duress or procured by fraud, and neither error nor duress being alleged, and the act having been passed before a notary public, where it may be presumed that the full purport of the instrument was explained to the parties, if an explanation was necessary, it is difficult to conceive of defendant having signed the instrument purporting to be a sale under the belief that he was signing an act of donation, or that, if he conceived, that he would hold the act' of sale as being a donation, he did not do so with full knowledge of the difficulty which would confront him should the apparent vendee oppose his construction, and we are of the opinion the allegation of fraud was not sufficient to permit the introduction of parol evidence to vary or change the written instrument; but even if so, the evidence fails to establish that defendant had agreed to contribute to plaintiff’s support'.

The allegation that the transaction was in reality a donation by which plaintiff divested himself of all of his property, was, we think, in its legal conclusion, an allegation that the transaction was in fraudem legis, in view of Article 1497, C. C., which declares:

“The donation inter vivos shall in no case divest the donor of all his property; he must reserve to himself enough for subsistence; if he does not do it, the donation is null for the whole.”

In Lagrange vs. Barre, 11 Rob. 302, the court said:

"The terms of this law appear to throw a certain incapacity upon every citizen to dispose and divest himself of all of his property by donation inter vivos, and declares that such donation shall be null (not reducible) if he has not reserved to himself enough of his property for his subsistence, etc.”

And in Kelly vs. Kelly, 131 La. 1024, 60 So. 671, it was held that:

“The nullity of donations omnium bonorum is based upon motives of public order, and estoppel by acknowledgment or admission cannot be invoked to maintain a condition or state ■ of things created in violation of a prohibitory law.
“Individuals cannot by their conventions derogate from the force of laws made for the preservation of order or good morals (C. C., Art. 11). Whatever is done in contravention of a prohibitory law is void, although the nullity be not formally directed. (C. C., Art. 12). It concerns the state that a donor should not pauperize himself by his gratuities.”

And considering that the allegation was that the transaction was in violation of a prohibitory law relating to public policy, the question is presented, whether or not the plaintiff, who was himself a party to the violation of the law, and who was a party to an apparently valid act under which the unlawful transaction was masked, may introduce parol evidence in conflict with the act and to show that the transaction was unlawful and void.

In Lazare vs. Jacques, 15 Ann. 599, it was held that:

“Parol evidence is admissible whenever the obligation is one contracted in fraudem Iegis; it is immaterial what form may have been given to the reprobated contract.”

And the ordinary heirs of an apparent vendor were permitted to establish by parol as against the apparent vendee that the transfer under the form of a sale was in fact an illegal donation and it has been held that donations made in violation of Article 1497 C. C. were absolutely void. (Ackerman vs. Larner, 116 La. 101, 40 So. 581; also Harris vs. Wafer, 113 La. 822, 37 So. 768; Rocques vs. Freeman, 125 La. 59, 51 So. 68; Joco vs. Joco, 129 La. 621, 56 So. 615; Cox vs. Busch-Everett Oil Co., 131 La. 817, 60 So. 256); and we are of the opinion that under the allegation that the transfer was made in fraudem legis parol evidence tending to support the plea was admissible and the evidence should be considered.

The evidence, we think, conclusively established that the plaintiff, as head and master of the community, was the owner of two forty-acre tracts of land, the record title to which appeared in the names of himself .and wife, respectively, and that on the same date and before the same notary as the transfer made by plaintiff to defendant (which is attacked) the wife of plaintiff, authorized by him, transferred the tract appearing on the record in her name to Amy Armand, the daughter of plaintiff, for a like consideration as that expressed in the transfer from plaintiff to defendant, and that there was not any consideration as that expressed in the transfer from plaintiff to defendant, and that there was not any consideration at the time of the purported transfers by either of the apparent vendees, and that the lands thus conveyed were the only property owned by the plaintiff or the community.

The plaintiff and Amy Armand and the notary before whom the acts were passed, testified that there was not any consideration and that the real transactions were donations by the apparent vendors to the apparent vendees, and the only evidence to the contrary is the statement of the defendant to the effect that during the period of- his minority the property transferred to him had been purchased by plaintiff under an agreement between plaintiff and himself that it would be paid for from wages due defendant by a third person and from the sale of cattle belonging to defendant, and the property deeded to defendant, and that the transfer was made in pursuance of such agreement.

The defendant did not attempt to state the amount due him for wages, or whether the same had' been collected by plaintiff and paid on the property, and although it appears some cattle (three head) were given in part (payment of the property by plaintiff, which defendant stated belonged to him, the source of his title to the cattle was very indefinite and uncertain, and plaintiff denied that he had collected any wages due defendant or that lie was the owner of the cattle or that there was any such agreement as related by defendant.

We' find that the preponderance of the evidence establishes that the real transaction between the parties was a donation, and having been made at the same time as the donation to the daughter of plaintiff, the two transactions should be considered' as one in determining the question as to whether plaintiff divested himself of all of his property (Joco vs. Joco, 129 La. 621, 56 So. 615) and that thus considered the transaction was in violation of law (Art. 1497 C. C.) and null and void.

The evidence as to the value of the improvements on the property is conflicting, as well as to when some of the improvements were placed oil the property, whether before or after the date of the (purported sale; but considering that the burden of proof was on the defendant to establish such facts with reasonable certainty, and that he has had the use of the property for several years, we think an allowance of three hundred and fifty dollars, the estimated value of the dwelling house, which is the only improvement definitely shown to have been placed on the property by plaintiff, is all that can be allowed under the evidence, and without remanding the case for further evidence,, which is not suggested.

The law does not require that the plaintiff should have tendered to defendant the value of the. improvements placed by defendant on the property prior to instituting the action to annul (Wafer vs. Harris, 113 La. 822, 37 So. 768) and we do not think that the decree annulling the sale can be held in abeyance pending the payment of the allowance for improvements.

The circumstances ©resented we think authorize the courts under Act No. 265 of 1918 to be taxed equally against the parties. (Carraway vs. LeBlanc, 6 La. App. 192.)

It is therefore ordered that the. judgment appealed from be avoided and reversed, an'd it is now ' ordered, adjudged and decreed that plaintiff, Alex Armand, have and recover judgment annulling and avoiding that ■ certain act purporting to be a sale by Alex Armand to Edward Armand of the southwest quarter of the southeast quarter of section twenty-nine township eight north range seven west, containing forty acres, more or less, situated in Natchitoches parish, Louisiana, passed before J. O. Gunter, Notary Public, on the 13th day of August, 1921, recorded in book 148 at page 511 of the conveyance records of said parish, and that said act be can-celled.

It is further ordered, adjudged and decreed that defendant, Edward Armand, have and recover judgment in reconvention against plaintiff, Alex Armand, in the sum of three hundred and fifty dollars with legal interest thereon from the date of this decree.

It is further ordered that the costs in both courts be taxed equally against the parties, and that each pay one-half of the said cost.


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    No. 2500
    Second Circuit
    BAKER GASOLINE CO., INC., v. SUTHERLAND
    (May 22, 1928. Opinion and Decree.)
    (June 28, 1928. Rehearing Refused.)

      (Syllabus by the Editor)

    1. Louisiana Digest — Payment—;Par. 17.
    The defense, of payment, where defendant contests the correctness of the credits allowed him hy plaintiff, must be pleaded in an action for a balance due upon open account.
    2. Louisiana Digest — Payment—Par. 18, 19, '20.
    An allegation in ■ defendant’s answer that plaintiff had not given him credit for all payment is a sufficient allegation to admit evidence in support of the plea consisting of checks showing the endorsement of plaintiff.
    Appeal from the First Judicial District Court, Parish of Bossier. Hon. T. F. Bell, Judge.
    Action hy Baker Gasoline Company, Inc., against Dell Sutherland.
    There was judgment for plaintiff and defendant appealed.
    Judgment reversed and case remanded for new trial.
    Cook & Cook, of Shreveport, attorneys for plaintiff, appellee.
    Burff & Mabry, of Shreveport, attorneys for defendant, appellant.
   WEBB, J.

The plaintiff, Baker Gasoline Company, Inc., formerly Baker-Strother Oil Company, Inc., instituted this action to recover judgment against defendant, Dell Sutherland, alleged to have been a member of a partnership known as. the Caddo Tire Company, composed of O. K. Hargraves and Dell Sutherland, for a balance due on open account amounting to three hundred ninety-four and 48-100 dollars, for merchandise sold to the partnership, and as shown by statement annexed to the petition, it being alleged that the partnership had be.en dissolved and that O. K. Hargraves was a non-resident.

The defendant filed an exception of vagueness, directed at plaintiff’s failure to allege under which name plaintiff was doing business at the time of the alleged transactions, and, further, that the account sued upon failed to show dates of debits and credits, etc., and praying that the exception of vagueness Jie sustained and plaintiff he ordered to $ile an itemized account as .prayed for.

The exception of vagueness was overruled, and plaintiff filed an itemized statement of the account, showing debits for sales made from January 12, 1920, to June 30, 1921, amounting to three thousand ninety-three and 67-100 dollars, and credits for cash and other items from February 11, 1920, to July 27, 1922, showing the balance claimed.

The defendant answered admitting that he had been, a member of the partnership as alleged by plaintiff and that the partnership had been dissolved, he having sold his interest to his co-partner on May .6, 1921, of which plaintiff was advised on May 10, 1921, and admitting that the partnership had purchased from the BakerStrother Oil Company, Inc., merchandise but denying the indebtedness claimed.

Defendant further alleged that he was not liable for any sales made after plaintiff learned of his retirement from the partnership, and that the indebtedness incurred prior to the dissolution had been paid; and, further, in the alternative, if it should be held that defendant was liable in any amount, he alleged that plaintiff had failed to give the Caddo Tire Company credit for all payments made and that if Such credits were allowed the account would be overpaid; and, further, in the alternative, he alleged that the Baker-Strother Oil Company, Inc., had purchased merchandise, etc., from the Caddo Tire Company and was indebted to the Caddo Tire Company in the sum of three hundred eighty and 44-100 dollars, which defendant pleaded in compensation, and prayed that plaintiff’s demands be rejected at his cost.

On trial defendant did not' offer any evidence in support of the alternative defences, and judgment being rendered against him as prayed for, he appeals, and while suggesting other errors there are only two which appear to be seriously urged.

First, that the court erred in refusing to permit defendant to show that payments had been made for which other credits than as shown on the account should have been given.

Second, that the evidence did not establish the correctness of the account, that is, as to the debits showing sales to the Caddo Tire Company.

In support of the first contention, defendant apparently urges two grounds: one, that the action being for a balance alleged to be due upon open account, it was not necessary for defendant to plead any matters such as payment, etc., going to extinguish the indebtedness in order to be permitted to prove such facts; and the other, the allegation of payment, without setting forth the time, amount or manner of payment, was sufficient to permit the introduction of evidence to prove the payment.

In support of the first contention, defendant apparently contends that an action on open account is analogous to an action of assumpsit, in which a defendant, under the plea of the general issue, may be permitted to show payment without a special averment. (R. C. L. vero Account, vol. 1, page 221, No. 22; verbo Payment, vol. 21, page 117, No. 128), citing Fram vs. Allen, 3 Mar. (O. S.) 381, which was an action for a balance alleged to be due after offsetting accounts against each other, in which it was said that defendant could show that defendant was entitled to other credits than shown by the statement of the account, without pleading compensation; but the decision cited was said to have been rendere.d prior to the adoption of the Code of Practice (Mortimer vs. Trappan’s Estate, 9 La. 112), and since that time it has been universally held that such a defence must be specially pleaded.

We have not been cited to any case where in an action for a balance due upon open account it is held that the defence of payment must be specially alleged; however, it has been held to be necessary in an action on an account (McKeown vs. Mathis, 19 La. 524; Gerlin vs. Beard, 26 La. Ann. 630), and we do not think there is any reason' to apply a different rule when the suit is for a balance on account.

The plaintiff bears the burden of pleading and proof to show that the amount claimed is due, and when the suit is on account, to prove the correctness of the items, and while the account sued upon may show payments, he is not bound by the credits further than as to the amounts, and if defendant wishes to contest the correctness of the credits, we do not think he can do so without specially pleading that .they are erroneous, or that other payments have been made for which credit is not given, and therefore that the defence of payment must be pleaded in an action for a balance due upon open account.

In support of the second contention, plaintiff cites the case of Holmes vs. DePlaigne, 23 La. Ann. 238, in which it was held not to be necessary, in ©leading payment, that the plea should set forth the particulars as the time and amount of the payment, to which defendant opposes the decision in Bayley & Bond vs. Storey & Poland, 30 La. Ann. 1210, the syllabus of which reads:

“Where defendant alleges as a ground of defence, error, overcharges and payment and set up a claim in reconvention on the basis of those allegations, he must set them forth with such particularity as to put plaintiff on his guard, before he will be allowed to introduce evidence in support of them.”

Which latter decision seems to have been considered by the trial court as in effect overruling the decision in Holmes vs. DePlaigne, supra, and to have been the basis of the ruling sustaining plaintiff’s objection to the introducton of any evidence in support of the ©lea of payment.

The cases cited by the Supreme Court in Bayley & Pond vs. Storey & Poland, were all cases where a plea in compensation or a reconventional demand was attempted to be proven, and there is of course a great distinction between the pleas of compensation and reconvention and the plea of payment, the former being distinct demands, often not related to the claim sued upon, and we do not think there is necessarily a conflict between the decisions.

The general rule is stated by Cross to be that the plea of payment is more favored than pleas of compensation and reconvention and is not under the strict rule applicable to the latter (Cross, Pleading, page 99, No. 83) or as we understand, the sufficiency of the plea should be considered with some regard, not only to the nature of the suit', but to the circumstances reflected by the demand, or sometimes by the nature and character of the evidence offered, as where the evidence offered to show payment is the receipt of the plaintiff (DeLee vs. Sandel, 12 La. Ann. 208), and considering the fact as shown by the pleadings that the action here is against a member of a former partnership, which the evidence shows had been dissolved more than a year prior to the suit, by defendant withdrawing from the partnership, with the knowledge of the plaintiff, we are of the opinion that the evidence should have been admitted in support of the plea, especially where the evidence offered was checks showing the endorsement of the plaintiff during the period the account was made.

We are therefore of the opinion that the evidence should have been admitted, and it is therefore ordered that the judgment appealed from be set aside and the cause remanded for a new trial.


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    No. 2782
    Second Circuit
    WILLIE v. LOUISIANA LONG LEAF LUMBER COMPANY, ET AL.
    (November 6, 1928. Rehearing Refused.)
    (November 13, 1928. Rehearing Refused and Writ of Certiorari and Review Denied by Supreme Court.)

      (Syllabus by the Court)
    1. Louisiana Digest — Master and Servant —Par. 156, 158.
    An employee who, of his own volition and in disobedience to the orders of his employer, while being transported on a work train from his place of work to his boarding house at the close of the day’s work, leaves the train while it is temporarily stopped and walks down the railroad track to converse with friends and, after the train has begun to move attempts to board it and is injured, cannot recover compensation from his employer for such injuries.
    2. Louisiana Digest — Master and Servant —Par. 158, 160 (j).
    Where the evidence shows that the cause of the employee’s injury was his attempting to .board a moving train in defiance of his employer’s rules, thereby unnecessarily exposing himself - to danger, he cannot recover compensation.
    Pierre vs. Barringer, 149 La. 71, 88 So. 691.
    Appeal from the Eleventh. Judicial District Court, Parish of Sabine.
    Action by George. Willie against Louisi-1 ana Long Leaf Lumber Co.
    There' was judgment for defendants and plaintiff appealed.
    Judgment affirmed.
    Fern M. Wood, of Leesville, attorney for plaintiff, appellant.
    R. A. Fraser, of Many; Thornton, Gist & Richey, of Alexandria, attorneys for defendants, appellees.
   STATEMENT OF THE CASE.

REYNOLDS, J.

This is a suit to recover compensation under the Workmen’s Compensation Act (Act 20 of 1914 and- amendments) for an injury suffered by plaintiff in attempting to board a moving train.

Defendants deny liability on the ground that at the time of the accident plaintiff was not engaged in the performance of any work for his employer and that the accident did not arise out of or in the course of his employment, and that the injury to plaintiff resulted from his attempting to board a moving train in defiance of the rules of his employer provided for his safety and protection.

O-n these issues the case was’ tried and there was judgment rejecting plaintiff’s demands and dismissing his suit and he has appealed. *

OPINION

The evidence shows that plaintiff was employed by defendants and was being transported from his place of work to his boarding house on a work train at the end of the work day; that the train stopped for five minutes to pass from a switch track onto the main track; that one of the workmen on the train asked the foreman of the. work gang for permission for the crew to get off the train and that he told him in "the hearing of plaintiff “to stay on the train” and “not to get off;” that notwithstanding these instructions plaintiff did leave the train and went down the railroad track in the direction in which the train would move about 100 yards on private business; and that after the train had resumed its journey and was in motion the plaintiff attempted to get aboard it and in doing so fell under the moving cars and was injured.

Ed. Teasley, foreman of the work gang, testified:

“Q. Did George Willie or any of the members of this steel gang, just before entering the main line ask you if they could get off the train?
“Á. Yes, sir, and i told them to stay on the train; that we only had five minutes there, and not to get off.
“Q. Was George Willie there?
“A. Yes, sir.
“Q. Did he hear you?
“A. I suppose so; he was close enough to have heard it.
“Q. What did you tell them?
“A. Don’t get off; we only got five minutes, and don’t get off.
“Q. You had already told George Willie and the other men that it was against the rules of the company to get off?
“A. Yes, sir.”

(Record, page 24.)

Jim Brown, conductor of the work train, testified;

“Q. Was this hoy on the train when you got up there?
“A. Yes, sir; entire crew on there; and they wanted to get off and go up to the camp, and I told them not to go, that we had only five minutes there, and he asked me to slow up for them.
“Q. Where did Willie go?
“A. He got off and walked up the track a,bout 100 yards. That morning he had attempted to catch a moving train, and I kicked him and pulled him off.
“Q. Did you warn him at that time?
“A. I told him dozens of times before that about catching the train.
“Q. Did you see the accident?
“A. Yes, sir.
“Q. Where were you?
“A. On the back end of the caboose; and about this time he grabbed at the hand hold, and went' under the car.
“Q. Had the train got under way at •that time?.
“A. Not very fast; it had only gone about 100 yards.
“Q. This hoy, George Willie, did he have at the time any business for the company up that track?
“A. He had no business, except in that caboose.
“Q. Had no duties to perform for the company out there?
“A. None at all.”

(Record, page 29.)

Clarence Holden, one of the work crew, testified:

“Q. Did you see George Willie there?
“A. Yes, sir.
“Q. Was he working with you boys?
“A. Yes, sir.
“Q. I ask you whether or not George Willie .rode the train from where you finished the spur, to the main track?
“A. Yes, sir; he was on there.
“Q. When you got to the main line and the train stopped there, did any of you talk to anybody about getting off the train?
“A. Asked Mr. Ed. Teasley if he could go up in the camp, and he said T haven’t got but five minutes, and we’ve got to go; don’t get off.’
“Q. Did George Willie go up there?
“A. Yes,- sir; I went up the track and called him.
“Q. What did you tell him?
“A. To. come on back, that he couldn’t catch a train; and he looked back and went on up the track.
“Q. What did you say to him?
“A. I told him to. come and get on the train, they are fixing to leave.
“Q. Did he do it?
“A. No, sir.
“Q. Did he have any work for the company up there?
“A. Not as I know of.
“Q. Did any of the boys have any work to do there at the switch?
“A. No, sir.”

(Record, page 31.)

Sam Allen, another of the work crew, testified:

“Q. Did you see George there just before he got hurt?
“A. Yes, sir; he walked up the track there.
“Q. Did you talk to him?
“A. Yes, sir.
“Q. What did you tell him?
“A. I told him to go back and not try to catch that train; that he couldn’t catch a train.
“Q. What did he say?
“A. He said ‘no train leaves me.’
“Q. Did he stand there until the train started?
“A. Yes, sir.
“Q. Were you looking at him when he caught the train?
“A. Yes, sir.
“Q. Was he working there; doing any work for the company?
“A. Just down there talking.
“Q. Just visiting with you boys?
“A. Yes, sir.”

(Record, page 34.)

Zuma Garner, another of the work crew, testified:

“Q. Did you hear anyone ask Mr. Teasley, the boss man, whether or not the boys could leave the caboose and go to the camp?
“A. Yes, sir; I heard that.
“Q. Was George Willie there?
“A. Yes, sir; all of us up there.
“Q. And what did Mr. Teasley tell you?
“A. Said we couldn’t go because we only had five minutes there.
“Q. Did George hear that?
“A. He was there; he ought to have heard it.
“Q. Did George leave the train?
“A. Yes, sir.
“Q. Did anybody else go?
“A. Yes, sir.
"Q. You tell George to come back?
“A. Yes, sir.
“Q. You stayed on the train?
“A. Yes, sir.
“Q. Did George come back?
“A. No, sir.
“Q. Was he doing any work for the company u® there?
“A. No, sir; sitting down.
“Q. Didn’t have any business up there?
“A. No, sir.
“Q. He tried to catch the train and got hurt?
“A. Yes, sir.”

(Record,.pages 37, 38.)

The testimony of these witnesses convinces us that plaintiff was violating rules of his employer when he left the train and - went up the railroad track in pursuit of amusements; that he was not then performing any services for his employer; that the accident did not' arise out of or in the course of his employment; and that the injury complained of was suffered by reason of plaintiff’s deliberate failure to use an adequate safeguard and protection against the accident provided for him by his employer and in deliberately exposing himself unnecessarily to danger.

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


text:
    No. 3292
    Second Circuit
    DINNAT v. SUCCESSION OF B. T. LEWIS
    (June 28, 1928. Opinion and Decree.)
    (July 14, 1928. Rehearing Refused.)

      (Syllabus by the Court)

    1. Louisiana. Digest — Executors and Administrators — Par. 164.
    ■Charges by a hospital for the use by a patient of a bedroom, the operating room, and a wheel-chair, and for drugs and dressings, and laboratory service, are for “expenses of the last illness” within contemplation of section 3 of Article 3252 of the Civil Code and, as such, entitled to the privilege conferred by that article and section.
    2. Louisiana Digest — Privilege—Par. 2, 3.
    Privilege will be neither created nor destroyed by judicial construction.
    Succession of Beer, 12 La.'Ann. 698.
    Appeal from the Ninth Judicial District Court, Parish of Rapides. Hon. R. C. Culpepper, Judge.
    Action by M. Dinnat against Succession of B. T. Lewis.
    There was judgment for defendant and plaintiff appealed.
    Judgment affirmed.

      K. Hundley, of Alexandria, attorney for plaintiff, appellant.
    Hawthorn and Stafford, and J. L. Pitts, Jr., of Alexandria, attorneys for defendant, appellee.
   STATEMENT OF THE CASE

REYNOLDS, J.

The administrator of the Succession of B. T. Lewis, deceased, having placed the Baptist Hospital of Alexandria, La., on his tableau of debts and distribution as a creditor of the succession in the sum of $160.00 and classed its account as "expenses of the last illness” and accorded it the privilege conferred by Article 3252, section 3, of the Civil Code, M. Dinnat, a conventional mortgage creditor of the succession, opposed the homologation of the tableau on the ground that some, if not all, of the services charged for were not “expenses of this last illness.”

On trial there was judgment dismissing the opposition and opponent has appealed.

OPINION

As stated by counsel for appellant in his brief, the only question involved here is, whether the hospital bill for the last illness of the deceased is a privilege debt to be paid out of the proceeds of sale of (property specially mortgaged by the deceased in preference to the mortgage debt.

Opponent, a special mortgage creditor of the deceased, contends that it is not. The District Court held that it was. The question is res novo and not without difficulty but we conclude that the judgment appealed from is right.

Article 3252 of the Civil Code provides:

“The privileges which extend alike to movables and immovables are the following:
“3. Expenses of the last illness.”
* * *

Appellant cites Article 3202 of the Code:

“The expenses of the last' sickness comprehend the fees of physicians and surgeons, the wages of nurses, and the price due to the apothecary for medicines supplied by him to the deceased for his personal use during his last illness.”

and contends that it defines what are “expenses of the last illness” and that under its definition appellee’s charges are not within the category.

In our opinion Article 3202 is not definitive but illustrative. This is shown, we think, in the use of the word “comprehend,” which is used as the equivalent of “such as,” and these latter words, when used to give some example of a rule, are never exclusive of other cases which that rule is made to embrace.

The Standard Dictionary gives as a definition of “comprehend,” “to include; comprise; enclose; encompass.”

Webster defines it as- “to contain; to embrace; to include.” “To take in or include; to take in by construction or implication; to comprise; to imply.”

Opponent contends that the expenses of the last illness to which the law accords a privilege are necessary expenses and that the things charged for by appellee are luxuries.

Hospitals, because of their greater facilities for the treatment of the sick and wounded, have now become necessaries, and we do not think the use of a bedroom and the laboratory and the operating room and a wheel-chair and drugs and dressings —the things for which the hospital is demanding pay — are luxuries.

Opponent further contends that the services rendered to the deceased by the hospital were not continuous and that therefore all of them were not rendered during his last illness.

. The evidence shows Mr. Lewis’ last illness continued from the time he was admitted to the hospital until he died. He underwent two operations, one a major and the other a minor one. The minor operation was intended to prepare him for the major one and was necessary for that purpose. The physician who attended the deceased in his last illness swore positively that the illness from which Mr. Lewis died was a continuous one.

. We therefore conclude that the services charged for by the Baptist Hospital were properly classed as expanses of the last illness and accordingly the judgment appealed from is affirmed.