text:
    No. 373
    First Circuit
    HUDSON ET AL. v. UNION INDEMNITY COMPANY
    (December 4, 1928. Opinion and Decree.)

      T. Arthur Edwards, of Lake Charles, attorney for plaintiffs, appellants.
    J. C. Henriques, of New Orleans, and Prank T. Doyle, of New Orleans, attorneys for defendant, appellee.
   MOUTON, J.

Mrs. James A. Hudson recovered judgment in 1927 against the Louisiana Electric Company, individually, and for her minors, for negligence resulting in the death of her husband, James A. Hudson. Her judgment was for fifteen thousand dollars ($15,000.00), which was subsequently affirmed by this Court.

When he was killed, James A. Hudson was in the service of the city of Jennings, which carried liability1 insurance for Hudson, as one of its employees, in the Union Indemnity Company, defendant herein. At the time this judgment was rendered the defendant insurance company had paid compensation to Mrs. Hudson and her minor children in the sum of one thousand four hundred and fifty dollars ($1450.00), and in the same judgment it was decreed that the defendant company which had intervened in the case have judgment against the Louisiana Electric Company for said amount, and which was paid to defendant.

During the interval between the date of the appeal, and the affirmance of the judgment by this Court, the sum of nine hundred and eighteen 88/100 dollars ($918.88), as further compensation, was deposited in the registry of the Court by defendant to be paid Mrs. Hudson and her minors, or returned to the defendant company, as the Court might determine.

Plaintiffs allege that the total liability of defendant under its insurance contract to them, dependents of James A. Hudson, amounts to six thousand seven hundred and fifty dollars ($6,750.00), upon which it owes a balance of five thousand two hundred ninety-nine 50/100 dollars ($5,-299.50), and prays for a decree for nine hundred eighteen 88/100 dollars ($918.88), the sum deposited with the Court as aforesaid, and that this sum be credited on the five thousand two hundred ninety-nine 50/100 dollars ($5,299.50).

Plaintiffs further allege, in the alternative, that they expended forty per cent (40%) of the amount sued for in attorney’s fees, and one hundred six 25/100 dollars ($106.25) for briefs in the cause, and from which after deducting the sum of one thousand four hundred and fifty dollars ($1450.00), turned over to the defendant company under its claim in intervention, less the nine hundred eighteen 88/100 dollars ($918.88), deposited in escrow, leaves a balance of five thousand four hundred sixty-four 65/100 dollars ($5,464.65), for which defendant is liable in the proportion of one-half, that is, for the sum of two thousand seven hundred thirty-two 32/100 dollars ($2,732.32).

In a second plea and in the alternative, plaintiffs ask in the event the Court should find that the foregoing sum claimed is not equitable and commensurate with the results obtained, that it decrees such sum as it may consider a fair compensation for the benefits derived by defendant from the acts and deeds of petitioners.

The foregoing is an abbreviated statement of facts contained in the petition and embodies the essential averments upon which plaintiffs base their claim for relief, under the prayer of the demand which is in accordance with the facts alleged.

In their petition plaintiffs allege specifically that they sued the Louisiana Electric Company, a third person, in an independent action at law under the provisions of “paragraph one of said section 7 of Act 247 of 1920, and aver that the remaining portion of said section does not apply to this cause for the reason” that the defendant company and the city of Jennings refused to bring suit against the Louisiana Electric Company, against which, it may be proper to state, plaintiffs had obtained judgment as beneficiaries, for the death of James A. Hudson.

Paragraph one of said section of the Act upon which plaintiffs base their demand in the petition, provides that when an injury is suffered by an employee for which compensation is payable under that Act and is sustained under circumstances creating a liability incurred by a third person, the injured person may claim compensation under the Act, and if payment or an award of compensation is made thereunder, such award shall not affect the claim or right of action of such employee or his dependent against the third person, nor be regarded as establishing a measure of damages for the injury.

In the instant case plaintiffs received one thousand four hundred fifty dollars ($1450.00) from defendant company which was in reality an award or compensation for the benefit of the city of Jennings which was the employer of James A. Hudson at the time he was killed. This award in compensation, under paragraph one of the Act, could not have been taken as a measure of damages for his death, and plaintiffs would have been left free thereunder to proceed for the recovery of damages against the Louisiana Electric Company for the loss they Had suffered. It is not astonishing that plaintiffs should desire to have their claim controlled exclusively by that paragraph of that section, and to hold as inapplicable the two following paragraphs.

In paragraph two of that section, it is provided, that where the employer has paid or obligated himself to pay compensation under the provisions of the Act, he is given the right to bring an action against the third person inflicting the injury, for the amount he has so paid, or become obligated. In that paragraph, the right to sue the third party is also reserved to the injured employee, and, if suit is brought by either employer or employee, notice thereof must be given to the other in writing.

It therefore appears from the wording of the second paragraph that if suit be instituted by either employer or employee, their, interest, if not declared identical, are considered closely linked under the provisions of that part of the statute.

In the third paragraph, it is declared that if suit is brought by the employer, employee or 'his dependent, and damages are recovered, the claim of the employer for compensation actually paid, shall take precedence over that of the employee or dependent.

It is therefore further provided that .if the amount of damage recovered be insufficient to reimburse the employer for the compensation he has paid, with reasonable attorney’s fees, and his costs, such damages shall be assessed “solely in his favor;” but if the damages are in excess of the amount necessary to reimburse the employer, the remainder must be assessed to the employee or dependent, and upon payment thereof to the employee or dependent the liability of the employer for compensation shall cease, etc. There is no legal reason that we can conceive why the provisions of paragraphs two and three of section 7 of the Act should be held as inapplicable to the issues of the case.

Counsel for plaintiffs says that these paragraphs of the statute should be declared inoperative because the city of Jennings and defendant company refused to institute proceedings which he was compelled to do to save the claim of his clients from prescription. There is nothing in the statute or in any law of which we are aware that would authorize this Court to eliminate the part of the section herein-above referred to on the theory advanced by counsel. The fact is, however, that defendant, as intervenor, appeared in the original contest with the consent of counsel for plaintiffs, and obtained a decree in the original judgment, against the Louisiana Electric Company for the sum of one thousand four hundred and fifty dollars ($1450.00), for the compensation the defendant company had paid Mrs. Hudson and her minor children.

It is true that the defendant company did not institute a separate action, but it became indirectly by way of intervention a party to the proceedings instituted by. plaintiffs for the protection of its rights under the statute, but which was, however, an optional right that the defendant company might or might not have exercised.

Counsel for plaintiffs contends, it is intended by the statute, that if the compensation has been paid where there has been a refusal to sue as aforesaid, the compensation must be considered in the nature of a pension, and independently of the amount the dependent may recover against the third person. It is impossible for us to reconcile ourselves to such a construe-' tion of the statute, there being nothing in its provisions to authorize the interpretation contended for by counsel for plaintiffs, nor in Bouchon vs. N. O. Ry. & Light Co. 154 La. 399, 997 So. 587, cited by counsel in support of his petition on this subject.

The city of Jennings was the employer of James A. Hudson at the time he was killed. When judgment was rendered for fifteen thousand dollars ($15,000.00), originally, against the Louisiana Electric Company in favor of his surviving wife and minors, if this sum of one thousand four hundred and fifty dollars ($1450.00) had been paid by the city on compensation, and not by defendant, as it was under section two of said Act, the claim of the city for that amount would have taken precedence over that of the plaintiffs herein, as the widow and dependents of deceased.

As the city carried liability insurance for Hudson, one of its employees, with the defendant company, the one thousand four hundred and fifty dollars ($1450.00), were paid by it to plaintiffs herein in the way of compensation for benefit of the city of Jennings and was therefore justly received by defendant under the judgment rendered in its favor as intervenor.

An appeal having been taken in the case by' the Louisiana Electric Company, the defendant paid to plaintiffs, under its contract of insurance, the sum of nine hundred eighteen 88/100 dollars ($918.88), during the period intervening between the appeal and the final determination of the suit. This amount forms a component part of the total insurance money paid to plaintiffs by defendant under the policy, and is inseparable from the one thousand four hundred and fifty dollars ($1450.00) paid, as before stated.

The District Judge correctly held that this amount which was deposited, as accrued compensation, be returned to defendant.

In their first alternative plea plaintiffs ask attorney’s fees in the sum of two thousand seven' hundred thirty-two 32/100 dollars ($2,732.32), including expenditures and costs incurred in their suit against the Louisiana Electric Company, and in the second plea, in the alternative, for a lesser amount, should the Court be disposed to allow any under the circumstances of the case.

Attorney for plaintiffs was employed by Mrs. Hudson. Tbe defendant had nothing to do with his employment and certainly cannot be held bound for any portion of attorney’s fees impliedly or by contract. The claim for the attorney’s fees, we understand, is not based on any asserted contractual right, but on considerations of equity. It is only where there is no express law that judges must proceed according to equity. C. C. 21. Here, the rights of the parties litigant are regulated by statute, according to which they were properly adjusted by the trial judge. Plaintiffs are not entitled to any relief under the principles of equity, if such exist to support their demands which were properly rejected, with the reservation decreed in favor of defendant company for nine hun■dred, eighteen 88/100 dollars ($918.88) deposited with the Court.


source: Caselaw Access Project

author: ODOM, J.

license: Public Domain

text:
    No. 3413
    Second Circuit
    BARNES v. SHREVEPORT RAILWAYS COMPANY
    (November 8, 1928. Opinion and Decree.)
    George T. McSween, of Shreveport, attorney for plaintiff, appellant.
    Wise, Randolph, Rendall and Freyer, of Shreveport, attorneys for defendant, appellee.
   ODOM, J.

This is a damage suit brought by the plaintiff against the Shreveport Railways Company, a corporation which operates electric street cars in the city of Shreveport. The plaintiff alleges as a cause of action against the defendant company that on the 22nd day of March, 1927, she was a passenger for hire on one of defendant’s street cars, and that in getting off said car at the front end she stepped from the street car to the steps, and, as she did so, the motorman closed the door of said car, catching her right foot in the said car door and step, throwing her against the pavement. In paragraph 7, it is specifically alleged that the motorman was negligent “in closing the door and starting the said ear before petitioner had had a reasonable time to get-off said car and steps.”

The defendant, in answer, specifically denied any negligence on the part of the motorman and, in the alternative, plead that if it should be held that the defendant company, through its employees, was guilty of any negligence whatever, plaintiff’s action is barred by her own contributory negligence in not taking proper care in alighting from said street car, and in not making the proper observations as she left the car, and in walking in such a manner as to result in said accident.

There are only questions of fact involved in this lawsuit, for it is admitted by defendant that the plaintiff, being a passenger for hire on one of its street cars, it owed to her the highest degree of care and caution in transporting her and seeing that she had an opportunity to alight" from the street car in safety. So that the only question presented for our determination is whether the motorman in charge of the street car was negligent in closing the door and starting the car before plaintiff had time to safely alight therefrom.

The plaintiff, as a witness in her own behalf, testified that, as she approached the street crossing at which she desired to stop, she signaled to the motorman to stop the car and that he did so; that she stepped from the street car through the open door down to the car step, which the testimony shows is about sixteen (16) inches above the street, and that, as she was in the act of stepping down upon the street, and before she had gotten off the step, the motorman closed the door and started the car in such manner as to catch her right food between the step and the car, thereby tripping her and causing her to fail with great violence to the street, which fall produced injuries from which she suffered greatly.

The testimony shows that the door of the street car is opened and closed by the motorman, who occupies a seat in the front end of the car, by means of a lever which he operates without leaving his seat. It also shows that the step on the outside of the street car and opposite the door is automatically lowered as the door is opened, and that, as the door is closed, the step is at the same time raised.

The burden of plaintiff’s contention is that the motorman attempted to close the door and raise the step before she had time to fully alight therefrom, and that, in doing so, he caused her foot to be caught between the step and the car, causing her to trip and fall. She alleged and, on examination as a witness, testified that the motorman started the street car before she had time to alight therefrom, but she seems to lay stress in her testimony upon the fact, as she alleges, that it was the raising of - the step and the catching of her foot which caused her to'trip and fall.

The plaintiff, to corroborate her statements, introduced two (2) witnesses, Mrs. Brossette, and a man by the name of Walter Bagley. These witnesses testified that they were not far from the crossing at the time the accident occurred and that, while they did not see the plaintiff as she alighted from the car, because they were standing on the -opposite side of the car from the door, but they testified that they did see her about the time she fell upon the street. Their testimony, therefore, throws no light upon the point at issue, which is whether the motorman closed or attempted to close the door and elevate the step before the plaintiff had sufficient time to alight therefrom. So that on the main point at issue, plaintiff’s testimony is wholly uncorroborated.

As against the. testimony of the plaintiff, the defendant called its motorman, Mr. J. W. Crain, who was operating the street car on that occasion, its conductor, Mr. J. C. Alford, who occupied a place on the, platform at the rear end of the street car, and also some seven or eight persons who were passengers on the car at thej time of the accident.

Mr. Crain, the motorman, testified that he was going slowly at the time the plaintiff signaled him to stop and that he stopped and opened the door for her to alight. He says that she did get off the car in safety and that he made no attempt whatever to close the door and elevate the car step as she was alighting from the car, and that, as a matter of fact, he did not close the door or attempt to do so until sometime after she had fallen. Mr. Crain further testified that, after the plaintiff had gotten off the street car and was on the • pavement, she seemed to sit down for some reason which he could not explain, and that she attempted to get up and fell the second time to the street; and it seemed to him, from the way she acted, that something had “struck her from the inside.”

Mr. Alford, the conductor on the street car, stated that he saw nothing of the accident, but that he is positive that the motorman did not start the car after the door was opened for the plaintiff to alight.

To the same effect is the testimony of Paul Rushing and Mrs. J. E. Levasseur, who were not passengers on the car, but saw the accident; and of Mrs..J. L. Cotton, Mrs. C. M. Christian, Sr., Mrs. C. G. Peyton, Mrs. R. R. Garrard, Mrs. G. D. Rushing and Mr. J. S. Hollingsworth, each of whom was a passenger on the street car at the time of the accident. Not one of the witnesses who was a passenger on the car was able to state positively that the motorman made no attempt to close the door and raise the step before the plaintiff had time to alight therefrom, as nearly all of them were not in position to see precisely what was done; but these passengers on the car, without a single exception, testified positively that the car did not start after the door was opened to permit the plaintiff to alight, so that the tesimony of the plaintiff that the motorman did start the car before she had time to step to the sidewalk is contradicted by at least eight (8) witnesses, besides the motorman and the conductor.

Mrs. Levasseur testified that she saw the accident from her residence, which is about half a block away; that she could see the door of the car and was looking at the time the plaintiff alighted therefrom, and that the car did not move, and, further, that the plaintiff stepped down to the pavement and, after getting to the pavement, fell.

Paul Rushing, who was standing about 125 or 150 feet away, says he saw the car come to a stop, saw the plaintiff get off and saw her fall, and stated positively that the street car did not move, and that the door and the step were not moved before the plaintiff was safe on the pavement. The testimony of' Mrs. Levasseur is criticized by counsel for plaintiff on the ground, as he states, that she could not see from her residence on account of certain obstructions in the way of trees and shrubbery; but her testimony is that there were no leaves on the trees at that time, it being in the month of March, and her testimony on that point is corroborated by another witness who says that he went to Mrs. Levasseur’s residence on the day following and viewed the place of the accident from the room in the house where she says she was when she saw it..

The testimony of Paul Rushing is criticized and, to some extent, is impeached. Mrs. Gamble and Mrs. Bryant both say that Rushing came out of an alley into the street after the accident happened, and, therefore, could not have seen it. .

The defendant called as witnesses, Mr. Walter Smith, Superintendent of the Slattery Building, in the City of Shreveport, and Mr. A. J. Hughes, also a building superintendent, who had together inspected the street car on which plaintiff was riding, as well as other cars having doors and steps operated by a lever, subsequent to the date of the accident. These witnesses testified that they were familiar with the mechanical device used to open and close street car doors, such as are used by the defendant company, and they testified that, by actual demonstration, it was found that the doors can not be closed and that the steps can not be elevated while there is any appreciable weight upon the step, their testimony being to the effect that, in order for the motorman to be able to close the door and elevate the step, the closing of the door and the elevating of the step being simultaneous, the person alighting from the car must be entirely off the step. They state, however, that it would be possible in their opinion for the motorman, with considerable exertion, to operate the lever so as to close the door if there was on the step only a very slight pressure or Weight. However, Mr. Smith stated that with one of his feet or legs resting upon the step the door could not be closed, and Mr. Hughes testified that with his hand testing upon the step, accompanied by some little pressure, the door could not be closed.

Our conclusion is that, even if the testimony of Mrs. Levasseur and Paul Rushing be eliminated entirely, the plaintiff has failed to make out her case in that she has failed to establish any negligence whatever on the part of defendant’s employees.

The fact that the plaintiff did fall and was injured is undisputed. As to what caused her to fall, there is no testimony except her own, but, as her theory of the case is overcome by the overwhelming weight of the testimony on the other side, we must reject her theory.

As a theory as to what caused the plaintiff to fall, counsel for defendant have suggested that the plaintiff probably became sick or dizzy and fell for that reason. The testimony shows that the plaintiff was two months advanced in pregnancy at that time, and the testimony of Dr. Sanderson and Dr. Crain is to the effect that dizziness, nervousness, weakness and nausea are natural results of such condition, and, from their testimony, we think it not unreasonable to assume that, under such circumstances, the plaintiff became weak and dizzy and that, as a consequence, fell, after alighting from the car.

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


author: MOUTON, J.

text:
    No. 361
    First Circuit
    DUCHARME v. SMITH
    (December 4, 1928. Opinion and Decree.)

      Dubuisson, Perrault and Burleigh, of Opelousas, attorneys for plaintiff, appellant.
    G-remillion and Smith, of Crowley, attorneys for defendant, appellee.
   MOUTON, J.

Mrs. Sam Evans died in Basile, Louisiana. While her remains were being carried from that place to Opelousas, for burial, a collision occurred between a Ford touring car belonging to plaintiff and a car of defendant. Plaintiff was riding in his car with his wife and baby. Mrs. Wilson Kelly was driving.

Plaintiff claims forty dollars and sixty cents ($40.60) damages alleged to have been caused to his car by the collision. He asks for judgment for that amount for himself, individually.

In the petition, in which the wife, a daughter of the deceased, is also plaintiff, it is alleged that the funeral procession was delayed an hour on account of the collision, causing great inconvenience and mental anguish to her, for which she claims for herself the sum of one hundred and fifty dollars ($150.00) in damages.

The damages claimed by the two petitioners arose from a fault or quasi offense alleged against defendant. The claim of the husband is for injury to his car, and that of the wife is in the nature of personal injuries which cannot form part of the community, and are recoverable by herself alone. Act 68, 1902; Shield vs. Johnson & Son. Co., 132 La. 773, 61 So. 787, 47 L. R. A. (N. S.) 1080.

These demands, though originating from the same alleged source, are, however, separate and .distinct.

That of the husband is for forty dollars and sixty cents ($40.60), and is not of such a character that would give the District Court exclusive original jurisdiction thereof, so as to invest this Court with appellate jurisdiction under Article 7, section 29, Constitution 1921.

This amount being under one hundred dollars ($100.00), the lowest limit of our jurisdiction in ordinary cases, tllis Court could not be given jurisdiction by cumulating this demand with that of the wife. Alessi vs. Town of Independence, 142 La. 338, 76 So. 792; Hotard et al. vs. Periloux, 160 La. 752, 107 So. 515.

' The claim of the wife is for one hundred and fifty dollars ($150.00). It is asked because of the delay of the funeral by one hour, inconvenience and mental anguish. The effect of the ‘collison, as shown by the record, caused the car in which she was riding, to back in the ditch, and to rest on the axle. -She did not suffer a scratch and got out of the auto without serious effort or the slightest injury, with no symptoms indicating a nervous shock or other ill which are usually the result of such accidents.

One of the witnesses said that she was excited after the collision. The fact is that the real -issue revolves around the claim of the husband for the damage to his car, and that of defendant, Smith, in re-convention for damages to his auto, which he also claims against plaintiff. In further proof that such was the real issue is the fact that counsel for plaintiffs make no effort in support of Mrs. Ducharme’s claim, which, it would seem, was injected in the suit to clothe this Court with jurisdiction for the husband’s relief in the event of an adverse judgment.

The demand of the wife is fictitious and inflated, and it is not conceivable from the evidence that the amount involved by the delay and inconvenience she suffered could invest this Court with jurisdiction of the appeal; notwithstanding the amount claimed in her petition which is not binding on this Court. The evidence controls. McMahon vs. Bresch, 149 La. 319, 89 So. 17; Wagner vs. N. O. Ry. & Light Co., 151 La. 400, 91 So. 817.

Defendant claims thirty-five dollars ($35.00) in reconvention. This demand is obviously directed against Sidney Ducharme, the owner of the car which defendant alleges caused the collision.

As the demand by the husband is dismissed for lack of jurisdiction, the demand of defendant in- reconvention must follow the same fate. Even if defendant’s demand could be construed as having any connection with that of Mrs. Ducharme, it would, for the same reason, have to be dismissed.

It is therefore ordered and decreed that the appeals herein taken are dismissed for want of jurisdiction over the subject matter, at the cost of appellant.


text:
    No. 3412
    Second Circuit
    JONES ET AL. v. GLEASON
    (November 8, 1928. Opinion and Decree.)
    Dimick and Hamilton, of Shreveport, attorneys for plaintiffs, appellees.
    John B. Files, of Shreveport, attorney for defendant, appellant.
   ODOM, J.

The plaintiffs brought this suit to cancel a contract for the sale of real estate alleged to be worth $9,000.00. The defendant, in answer, admits the execution of the contract and alleges that he paid thereunder the sum of $1700.00 cash, and monthly payments amounting to $1350.00; and, in addition thereto, the further sum of $500.00, expenditures made on said property; and prayed as follows:

“Wherefore, premises considered, respondent prays that the plaintiffs’ demands be rejected at their cost, and the Central Lumber Company, Inc., be called in warranty herein, and that your respondent have judgment against the plaintiffs and the said Lumber Company and the said Realty Company, in the full sum of Four Thousand Five Hundred Dollars ($4500.00 jointly and in solido, as above alleged.”

There was judgment in favor of plaintiffs, ordering contract cancelled, and decreeing that Carter Brothers Realty & Building Company, Inc., and its vendees retain any payments made by the said Gleason (defendant) upon the said ¡property as liquidated damages.

The defendant, Gleason, asked for and was granted an appeal to this Court,- and plaintiffs moved to dismiss the appeal on the ground that this Court has no jurisdiction ratione materiae.

The amount in dispute far exceeds the maximum jurisdiction of this Court, as it is alleged and shown that the contract sought to be annulled involves property worth $9,000.00.

But, defendant, in answer to plaintiffs’ motion to dismiss, says that the only amount involved in the case is approximately $1600.00, and counsel says:

“The defendant admits that the contract was null but contended that he is entitled to be refunded approximately $1600. Therefore, the only question involved in this case is the amount of money to be paid the defendant in this case, and there is no question about enforcing the contract. The plaintiff did not sue for any money under the contract, but simply brought suit to have the contract declared void.”

The answer to (plaintiffs’ motion to dismiss the appeal was evidently written by counsel without having the record before him. In his answer to the suit, he specifically set up that he had paid $3550.00 on the contract, and had expended on the property an additional sum of $500.00; and that he had been" damaged in the sum of $1,000.00, and asked for judgment in re-convention against plaintiffs and the Carter Brothers Realty & Building Company, Inc., and the Lumber Company in solido for all of such amounts. We have read the record, and find that the amount in contest at the time the case was finally submitted on both the main and reconventional demands far exceeds the maximum jurisdiction of this Court.

Article VII, Sec. 1, of the Constitution provides:

“In all cases where there is an appeal from a judgment on a reconventional or other incidental demand, the appeal shall lie to the Court having jurisdiction of the main demand. If there be no right of appeal on the main demand, the appeal shall lie to the court having jurisdiction of the reconventional demand.”

Therefore, whether the appeal was from the judgment on the main or reconventional demand, the case should have gone to the Supreme Court. However, we shall not dismiss the appeal, but transfer it to the Supreme Court, under Act No. 19, of 1912.

For the reasons assigned, it is ordered, adjudged and decreed that this appeal be transferred to the Honorable Supreme Court; and that the record be transmitted by the Clerk of this Court to the Clerk of the First Judicial District Court in and for the Parish of Caddo, Louisiana.


text:
    No. 3336
    Second Circuit
    SHIELDS v. BAIN ET AL.
    (November 8, 1928. Opinion and Decree.)

      R. D. Puller, of Shreveport, attorney for plaintiff, appellant'.
    Crow and Coleman, and Barnette and Roberts, of Shreveport, attorneys for defendants, appellees.
   ODOM, J.

Plaintiff alleges that he had a contract with the defendant, H. H. Bain, under the terms of which the said H. H. Bain bound and obligated himself to sell to petitioner certain real estate situated in the City of Shreveport, upon petitioner’s paying to the said Bain the sum of $300.00, in installments. Alleging that he paid the said Bain $235.00 of said amount in person, and the balance of the $300.00 by and through his agent, Patsy Black Wayne, and that the said Bain now refuses to comply with his contract to make deed to petitioner, he 'brings this suit to force specific performance by the said Bain of" his obligation to make title; and, in the alternative, he asks that in case the Court should reject his demands on said Bain for specific performance, then, in that event, he asks judgment against the said Bain for the amount which he has paid.

After alleging in Paragraph 5 of his petition, that a portion of- the amount was paid by his agent, Patsy Black Wayne, who “was acting for him and in his stead” in making the said payments, he alleges that at the completion of the payments, the said H. H. Bain executed a deed conveying the said property to the said Patsy Black Wayne, and he makes the said Patsy Black Wayne a party to the suit, although he makes no specific demands upon her.

The plaintiff’s demands were rejected by the District Court, and he has appealed.

OPINION

The testimony shows that in the year 1913, the said H. H. Bain entered into a contract with the plaintiff in which he bound and obligated himself to sell to the plaintiff the property in controversy, upon the payment to him by the plaintiff of $300.00. in installments. It is clear that the plaintiff, Shields, made paynfents to Bain under the said contract from time to time covering a period of something like four or five years, approximating $185.00, all of which was accepted by the said Bain as part payments on the contract. But, in 1917, the plaintiff abandoned the property and went to the country to make a crop. He made no payments at all for something like a year. When he returned to the City of Shreveport', he had a conference with Bain in which it was agreed that the original contract should be rescinded and that the amounts which plaintiff had paid should be considered as rentals. The plaintiff himself admits, as a witness in his own behalf, that he agreed with Mr. Bain that the contract should be' rescinded. That was some time in 1918. This agreement, having been entered into by the parties, Bain, the defendant, was under no further obligation to the plaintiff.

In the early part of 1919, Patsy Black Wayne went to the defendant, Bain, and told him that she understood the property was for sale, and he told her it was. She asked if he would sell it to her, and he replied that he would. A written contract was then entered into between Bain and the said Patsy Black Wayne to the effect that Bain would sell the said property to her for the sum of $300.00, payments to be made at $5.00 per month, the said Bain agreeing to complete title by making deed as soon as all payments were made. She made her payments promptly, and, in 1923, the 'said Bain conveyed the property to her by deed.

The plaintiff’s admission that he abrogated. his contract with defendant and agreed that the amounts which he had paid should be considered as rentals is sufficient to put an end to his contention that Bain is under any obligation whatever to him, either to make title or to return the amounts paid. Patsy Black Wayne was made defendant in the case only incidentally. There is no demand made upon her, and there could, therefore, be no judgment rendered against her.

For the reasons assigned, it is ordered, adjudged and decreed that the judgment appealed from be affirmed at plaintiff’s cost in both Courts.


text:
    No. 2653
    Second Circuit
    CARLTON v. DURR ET AL.
    (November 8, 1928. Opinion and Decree.)
    Boone and Boone, of Many, attorneys for plaintiff, appellee.
    James W. Jones, Jr., of Natchitoches, attorney for defendants, appellants.
   ODOM, J.

Arthur H. Durr, the defendant in the present suit, brought suit in the Parish of Sabine against J. W. Folks to recover an amount alleged to be due on promissory notes. He alleged that his debtor resided permanently in the State of Texas, but that he owned 25 acres of land in Sabine Parish. He procured the issuance of a writ of attachment and, under said writ, the Sheriff attached the land alleged to belong to Folks on February 25, 1925. The suit of Durr against J. W. Folks was carried to judgment on May 12, following, the judgment recognizing the attachment and ordering the property sold to satisfy plaintiff’s claim.

The property attached appeared on the records in Sabine Parish in the name of “Mrs. J. W. Folks, wife of J. W. Folks.”

On May 4, 1925, more than two months after the property was attached, and while it remained under attachment, Mrs. Folks, aided and authorized by her husband, J. W. Folks, by notarial act, sold said property to Sam Lewing, and Lewing, on the same day, sold it to C. C. Carlton, plaintiff in this case.

After Arthur H. Durr, plaintiff in the original suit against J. W. Folks, obtained judgment on May 12, 1925, a writ of fi. fa. was issued under the judgment, and, under said writ, the Sheriff seized and advertised the property for sale to satisfy the judgment. Carlton, the plaintiff in this suit, then filed suit against Durr and the Sheriff, setting up his title to said land, alleging that he had purchased the same from Mrs. J. W. Folks, who owned it as her separate paraphernal property and that it was not the property of J. W. Folks,' nor of the community which existed between him and his said wife, and he asked that the said Durr and the Sheriff be enjoined from proceeding further with the sale and that his title to the property be recognized.

The defendant, Durr, in answer, set up as a defense that whereas the property stood on the records in the name of Mrs. J. W. Folks, it was not in fact her separate property, but belonged to the community which existed between her and her husband, J. W. Folks, and was, therefore, subject to the community debts. The lower court found for the plaintiff, recognizing his title and ordered the preliminary writ of injunction perpetuated and the property released. The defendant, Durr, has appealed from that judgment.

OPINION

The only question presented is whether the property in controversy belonged to the community which admittedly existed between J. W. Folks and his wife, or whéther the same was her separate, paraphernal property. If it was community property, it was, of course, subject to the community debts, and Durr, being a creditor of the community, was within his rights in having it seized in order to have it subjected to his claim.

All property purchased during marriage, whether in the name of the wife or the husband, or both, falls into the community.

Civil Code, Article 2400; Succession of Planchet, 29 La. Ann. 520; Davidson vs. Stuart, 10 La. Rep. 146; Gogreve vs. Dehon et al., 41 La. Ann. 244, 6 So. 31; Cosgrove vs. Creditors, 41 La. Ann. 274, 6 So. 585; Succession of Muller, 106 La. Rep. 89, 30 So. 329; Burns vs. Thompson, 39 La. Ann. 377, 1 So. 913; Succession of Manning vs. Burke, 107 La. Rep. 459, 31 So. 862.

The property in controversy was purchased in the name of Mrs. J. W. Folks, in 1921, during the life of her husband. At that time, she and her husband had been living together about twenty-three years under the community regime. There is nothing in the deed which suggests that it was to be her' separate property, or that the price was paid with her separate, paraphernal funds. The vendor was C. F. Lewing and the deed recites that “he does by these presents grant, bargain, sell, convey and deliver * * * unto Mrs. J. W. Folks, wife of J. W. Folks, the following described property * * * for the consideration of $1,000.00, cash in hand paid, the receipt of which is hereby acknowledged.”

The deed is signed by Lewing, but not by the vendee nor by anyone representing her.

“All property_purchased during the existence of the community, in the name of the wife, is presumed to belong to the community, and, in order to rebut this presumption, the wife must show with legal certainty; First, that the price was her paraphernal funds; Second, that it was administered by her; Third, that it was invested by her.”

See Otis et al. vs. Texas Company et al., 153 La. Rep. 384, 96 So. 1, and a long list of authorities there cited.

In some of the earlier cases, the Court went so far as to hold that in order to invest the wife must have the administration of paraphernal effects and prove the investment of the identical money in order to keep the effects out of the community.

Shaw vs. Hill, 20 La. Ann. 531, 96 Am. Dec. 420; Davidson vs. Stuart, 10 La. 148; Bolck vs. Melville, 10 La. Ann. 784; Dominguez vs. Lee et al., 17 La. Rep. 295.

The plaintiff, .who holds under Mrs. Folks and who seeks to arrest the sale of the land in question, carried the burden of rebutting the presumption that it belonged to the community. This he failed to do.

The testimony shows that, subsequent to the marriage of Mr. and Mrs. Folks, Mrs. Folks inherited from her deceased parents a one-fifth interest in some land, about ten head of cattle and a bunch of hogs. She sold her interest in the land for' $220.00, which went into the hands of her husband, and the two together “consumed it.” The husband took possession of the cattle, and traded one of the cows and a calf for an old wagon, traded some of the cows for mules or horses, and possibly sold some of them. He was referred to by one of the witnesses as a “horse trader,” and it seems that he continued to trade horses for cows and cows for horses until 1914, and probably later. He had at one time as many as six horses or mules and a wagon. What became of the hogs, the witness did not know.

In 1914, a tract of seventy acres of land was acquired in the name of John W. Folks and his wife, Mrs. Clorena R. Folks. The consideration expressed in the deed is $800.00 cash, but one of the witnesses stated that he was present when the sale was made and that Mr. and Mrs. Folks traded teams for the land. They kept this seventy acres of land until December 9, 1921, when they sold it, both signing the deed, to W. P. Lewing for a stipulated consideration of $2,000.00. But the witnesses say, and it is conceded, that the real consideration which they received consisted of some teams and 2'5 acres of land, the 25 acres of land having been conveyed in a separate deed to Mrs. J. W. Folks by C. F. Lewing, the purchaser of the 70-acre tract. This 25-acre tract is the land in controversy in the present suit.

The testimony makes it perfectly clear that not only did Mrs. Folks’ husband take charge of and spend the money which his wife received for the land which was inherited, but th'at he also took charge of the cattle and the hogs and sold or traded them as' he saw fit; at no time did Mrs. Folks, during the twenty-three years from the date of her marriagé up to 1921, when the land in controversy was acquired, have the control or administration of any of the property which she inherited. She permitted her husband to take charge of and administer it as he pleased. At the time the land in controversy was acquired in 1921, Mrs. Folks did not possess any of the money or any of the property which she had inherited. Her money had been spent or consumed by her and her husband, her live stock had been sold or traded.

It is contendecT'by counsel for plaintiff that this 25 acres of land was placed in the wife’s name in order to reimburse her for her paraphernal property which her husband had administered and disposed of, and that an agreement to that effect was made between the husband and wife. Conceding that to be true, the land did not become her separate property. Contracts, other than those specified in Article 2446 of the Civil Code, are void.

Civil Code, Article 1790; Carroll vs. Cockerham, 38 La. Ann. 813; Burns vs. Thompson, 39 La. Ann. 378, 1 So. 913; Compton vs. Sandford, 26 La. Ann. 237.

Act 219 of 1920, in effect at the time this property was acquired, removed a great many of the incapacities under which married women had theretofore labored, but it specifically provided that “nothing herein contained shall be deemed or construed to authorize a married woman to contract with her husband.”

J. W. Folks received some money and property belonging to his wife and was indebted to her to some extent. He could have made a dation en paiement in satisfaction of her claim by pursuing the methods prescribed by law, but that was not done. The property was put in the name of the wife during the existence of the community and it is not shown that it was bought by the wife with separate funds of which she had had the administration. Our attention is called to Act 186 of 1920, which provides that when the community property stands in the name of the wife, it cannot be sold or mortgaged without the consent of the wife, and it is argued that property standing in the name of the wife cannot be seized and sold for the debts of the community, or for the debts of her husband. Community property, under the law and jurisprudence, may always be subjected to community debts.

For the reasons assigned, it is therefore ordered, adjudged and decreed that the judgment appealed from be reversed; and it is now ordered that the preliminary writ of injunction issued herein be dissolved and set aside, and that plaintiff’s demands be rejected and his suit dismissed, at his cost in both courts.


author: WEBB, J.

text:
    No. 3294
    Second Circuit
    UNITED STATES HOFFMAN MACHINERY CORPORATION v. VALETERIA, INC. ABE MEYER, INTERVENOR, THIRD OPPONENT
    (November 8, 1928. Opinion and Decree.)
    Chandler and Taylor, of Shreveport, attorneys for plaintiff, appellee.
    Dimick and Hamilton, of Shreveport, attorneys for defendant, appellant.
   WEBB, J.

The plaintiff, United States Hoffman Machinery Corporation, obtained judgment against the Valeteria, Inc., for eighteen hundred dollars and interest with recognition of a chattel mortgage for the amount of the judgment on certain equipment sold by it to the Valeteria, Inc., under which the equipment was seized, and Abe Meyer, the lessor of the premises in which, the equipment was located at the time of the seizure, intervened, claiming a superior privilege on the proceeds of the property, and in answer to the intervention the plaintiff, Hoffman Machinery Corporation, pleaded that the intervenor had waived any lessor’s privilege which it may have had on the equipment in favor of plaintiff and that intervenor was estopped to claim any privilege against it, and, further, that the chattel mortgage had been filed and recorded against the equipment prior to its being placed in the leased premises, and was therefore superior to the privilege of the intervenor.

On trial intervener’s demands were rejected and he appeals, urging that the evidence established that the chattel mortgage did not describe the property with sufficient certainty to identify it, and that it was filed for record subsequent to the property being placed in the leased premises, and that the waiver of’ the privilege was also without effect for the reason that the property was not described in the waiver.

Passing the questions as to the sufficiency of the description of the property contained in the mortgage, and whether or not the lessor’s lien attached before the mortgage was filed for record, we are of the opinion that the intervenor waived any privilege which he may have had on the equipment as against the Hoffman Machinery Corporation.

The equipment covered by the waiver was described as the

“Hoffman Sanitary Pressing Machine, Model--------Number________located at 1407 Fair-field Street, occupied by Valeteria, Inc. * * *>"

and as the equipment consisted of six pieces of machinery, it is contended that the waiver was invalid for want of sufficient description.

There cannot be any question but that the intervenor intended to waive his privilege on something, and while intervenor contends the waiver applied to only one machine, yet the evidence shows that the machines were designed and used for pressing clothes and that each of the machines was designed and used for pressing a particular part of the same garment, and were considered as a whole, which fact was known to the intervenor at the time he signed the waiver, at which time he also knew the machines would not be delivered unless the waiver was signed.,

In construing contracts, where the language is ambiguous, the court may look to the subject matter and the circumstances surrounding the transaction, and considering the fact that the machines were designed and used as a unit, and that the intervenor knew of such fact, and that he knew at the time the waiver was signed that the machines would not be delivered unless the waiver was signed, we are of the opinion the instrument should be read in the light of those facts, and that it was sufficient, and that intervenor cannot claim, as against the plaintiff, any part of the 'proceeds of the sale, which was less than the amount due plaintiff.

The judgment appealed from is therefore affirmed at appellant’s Gost.


text:
    No. 3409
    Second Circuit
    LEVASSEUR v. BOARD OF COMMISSIONERS OF GRAVITY DRAINAGE DIST. NO 1 OF BOSSIER PARISH
    (November 8, 1928. Opinion and Decree.)
    Murff and Perkins, of Shreveport, attorneys for plaintiff, appellee.
    Herndon and Herndon, of Shreveport, attorneys for defendant, appellant.
   WEBB, J.

The plaintiff, J. E. Levasseur, entered into a contract ■ with the' defendant, Board of Commissioners of Gravity Drainage District No. 1 of Bossier Parish, Louisiana, to construct a bridge on the Dixie-Overland highway over a canal excavated by the defendant across the highway, for a fixed price and according to the specifications as required by the Louisiana Highway Commission.

While the work was in course of construction it was necessary that a detour be constructed for the passage of traffic over the highway, the route of the detour including a temporary bridge over the canal, which, together with the detour, was constructed by the plaintiff under the supervision of the engineer representing the defendant and paid for on force account, and, during the course of the work, the engineer representing the defendant ordered a watchman placed on the work, and in the present suit, for an amount claimed to have been paid by the contractor for the services of the watchman, the plaintiff obtained judgment, and the defendant appeals.

The plaintiff contends that the watchman was employed to guard the detour and that he was not, under his contract, obligated to furnish a watchman for such purpose; while the defense was, that the watchman was ordered for the protection of the entire work, and that, under the specifications, the contractor was obligated to furnish a watchman.

The specifications contain the following provision:

“The contractor shall provide, erect and maintain all necessary barricades, suitable and sufficient red lights, danger signals and signs, provide a sufficient number of watchmen and take all necessary precautions for the protection of the work and safety of the public. Highways closed to traffic shall be protected by effective barricades, on which shall be placed acceptable warning signs. The contractor shall provide and maintain .acceptable warning and detour signs at all closures, intersections and along the detour routes, directing the traffic around the closed portion or portions of this highway, so that the temporary detour route or routes shall be indicated clearly throughout its or their entire length. All barricades and obstructions shall be illuminated at night, and all lights shall be kept burning from sunset until sunrise.”

Under which defendant contends that the contractor was obligated to furnish the watchman, while plaintiff contends that the provisions related solely to the work of constructing the bridge along the highway, and not to the detour, or, if applicable to the latter, that where the work of constructing and maintaining the detour had Been let on force account, the contractor was to be paid for the services of the watchman on the same terms.

The detour, as stated, was constructed and maintained as extra work, or under force account, and when it was necessary to employ a watchman to protect the detour, the services of the watchman should, we think, be considered as necessary for maintaining the detour and have been paid for on that basis, as other work was paid for under the contract, that is, on force account. '

There was some conflict in the evidence as to whether or not the watchman was ordered to be placed on the entire work or on the detour. However, it is established that at the time the watchman was ordered on the work, the engineer was apprehensive as to the sufficiency of the temporary bridge on the detour route to withstand the force of the current or debris thrown against it, and as the evidence fails to show to the contrary, we assume that the condition continued to exist during the time that the watchman was employed and as the evidence indicates that the services of the watchman were almost exclusively confined to the detour, and there is not any suggestion that the expense incurred by the contractor for the services of the watchman should have been pro rated, and as the judgment allowed reimbursement for the amount expended, we find the allowance was substantially correct, and the judgment affirmed.


text:
    No. 3157
    Second Circuit
    STUYVESANT INSURANCE CO. ET AL. v. KILPATRICK ET AL.
    (November 8, 1928. Opinion and Decree.)

      L. Percy Garrot, of Shreveport, attorney for defendant, appellant, Christ Memtsas.
    Robert L. Garrett, of Shreveport, attorney for defendant, appellee, Hotel Supply & Store Fixtures Company, Inc.
   WEBB, J.

The plantiffs, Stuyvesant Insurance Company and General Fire Insurance Company, issued fire insurance policies in favor of Al. Kilpatrick, covering certain movable property owned by him and located in a restaurant which was damaged by fire.

An adjustment of the loss sustained was made with the insured, Al. Kilpatrick, in which liability of the Stuyvesant Insurance Company was fixed at $420.52 and that of the General Fire Insurance Company was fixed at $604.62.

Kilpatrick, at the time of the fire, was indebted to various parties, among whom was the Hotel Supply & Store Fixtures Company, Inc., which was at the time in the hands of a receiver, Baker Supply & Equipment Company, Christ Memtsas, and others; and following the adjustment with the insurance companies Kilpatrick, by authentic act, acknowledged that the Hotel Supply & Store Fixtures Company, Inc., held eight notes against him for $864.00 on which a balance of $745.00 was due and unpaid, and also two notes amounting to $54.00, and made an assignment of the amounts due by the insurance companies to the Hotel Supply & Store Fixtures Company, Inc., to an amount sufficient to pay its claim.

Notice of the assignment was given to the insurance companies, plaintiffs herein, and demands having been made by other creditors of Kilpatrick on the insurance companies for payment of their claim out of the funds due under the adjustment to Kilpatrick, the insurance companies filed the present proceedings, in which they allege that an adjustment had been made, as above set forth, and that the various claimants, creditors of Kilpatrick, being unable to agree as to the amount which each was entitled to receive from the funds due by them to Kilpatrick, they prayed for and obtained an order permitting them to deposit the amounts due under the adjustment in the registry of the court, and impleaded the various claimants and Kilpatrick", in order that it might be determined what proportion of the funds should be paid to the various claimants on their debts.

Answers were filed by the Hotel Supply & Store Fixtures Company, Inc., Baker Supply & Equipment Company, and Christ Memtsas; the Hotel Supply & Store Fixtures Company, Inc., setting up the indebtedness acknowledged by Kilpatrick, as above, and the assignment made by Kilpatrick in payment of same, and praying that the assignment be recognized and enforced and that it be paid the amount due it out' of the funds; while the Baker Supply & Equipment Company and Christ Memtsas set up claims against Kilpatrick amounting to two hundred eighteen and 42-100 dollars and seven hundred dollars, respectively, each prhying that their claims be recognized and paid by preference out of the funds deposited.

On trial judgment was rendered in favor of the Hotel Supply & Store Fixtures Company, Inc., for the full amount claimed by it, with interest, which was ordered to be paid by preference and priority out of the funds deposited in the registry of the court and recognizing the Baker Supply & Equipment Company and Christ Memtsas as creditors for the respective amounts claimed by them, and ordered the balance of the funds deposited in court, after payment of the claim of the Hotel Supply & Store Fixtures Company, Inc., to be prorated to them.

The proceedings taken in this matter appear to be without precedent. However, it clearly appears that all parties had consented to the method of procedure and, on trial, urged that it should be considered as in the nature of a concursus, and, with the exception of Memtsas, all acquiesced in the decree distributing the funds deposited in the registry of the court, and the only objection urged by the appellant, Memtsas, as to the distribution of the funds, in its last analysis appears to be based upon the theory that Kilpatrick was insolvent, and that the assignment made to the Hotel Supply & Store Fixtures Company, Inc., was fraudulent:

There .was not any suggestion .in the pleadings that Kilpatrick was insolvent, and we do not find in the record any direct proof of insolvency, or where any evidence was offered to prove insolvency, and therefore we do not think the question of the validity of the mortgage given by Kilpatrick to secure the indebtedness of the Hotel Supply & Store Fixtures Company, Inc., which was sought to be raised by Memtsas on trial was relevant, and for the same reason that Memtsas did not have any right to question the validity of the claim acknowledged by Kilpatrick to be due the Hotel Supply & Store Fixtures Company, Inc.

As previously stated, the proceedings taken were novel, but the parties cited did not make any complaint, and we do not think that under the pleadings and the evidence we are at liberty to consider the matter as analogous to bankruptcy proceedings, or a surrender for the benefit of creditors, and considering only the objections raised by the appellant, we do not find that there was any error in the judgment, and it is affirmed at appellant’s cost.


text:
    No. 2920
    Second Circuit
    WEBSTER v. CALHOUN
    (November 8, 1928. Opinion and Decree.)
    (December 19, 1928. Rehearing Refused.)
    James W. Jones, Jr., of Natchitoches, attorney for plaintiff, appellant.
    Rusca and Cunningham, of Natchitoches, attorneys for defendant, appellee.
   WEBB, J.

The plaintiff brought this action to rescind a contract of lease made by him to defendant, covering eighty acres of land and two mules, for a period of five years beginning on January 1, 1925, and expiring on January 1, 1930.

Tlie lease was made for an annual rental of four hundred ninety dollars, payable on October 10th of each year, and provided that at the expiration of the lease the mules should become the property of the defendant lessee, and it further stipulated that the lessee would cultivate all of the open lands on the property and that he would “clean out and keep open and in a drainable condition any and all ditches needing such work during the life of this lease.”

The lessee cultivated the property for two years, 1925 and 1926, paying the stipulated price of the lease, and the present suit was filed on September 22, 1926, to annul the lease on the grounds that defendant had failed to cultivate all of the open lands, and had failed to keep the ditches drained out and in a drainable condition, to which defendant excepted that plaintiff had failed to allege that defendant had been placed in default, which being overruled, he answered denying plaintiff’s allegations, and alleged that plaintiff had failed to keep the fences in repair and that cattle had damaged his crops, and further that plaintiff had taken possession of the mules without his consent, and reconvening for damages.

On trial, judgment was rendered in favor of plaintiff rescinding the lease and ordering the leased premises and animals to be delivered to him and rejecting defendant’s reconventonal demand, from which defendant appeals.

The defendant and appellant urges that his exception to the petition as to the failure of plaintiff to allege that defendant had been put in default should have been sustained, and on the merits, that the evidence failed to establish that defendant had failed to cultivate the open lands or to keep the ditches open and in drainable condition.

Passing the question of the necessity of an allegation that plaintiff had demanded that defendant place all of the lands in cultivation and keep the ditches open, as a condition precedent to the action to annul the lease, to the question of fact as to whether or not defendant did comply with his obligations in these respects we are constrained to find against plaintiff on the facts presented.

It is contended that plaintiff wished to cancel the lease, being of the opinion he had leased the property at too low a price, and that during the two years that defendant cultivated the premises he had raised larger crops than had been gathered from the property for many years, and it appears that the only part of the lands which was not planted by the lessee was a few feet next to the ditches, and although there is a conflict in the evidence as to the sufficiency of the work done by the lessee at the beginning of the planting season to clean out the ditches, it is conceded that he cleaned out the ditches at the beginning of each year, and the evidence does not show the land was not as well drained as the system of drainage constructed by plaintiff permitted it to be drained.

The evidence rather than establishing that defendant had failed to comply with the conditions of the lease as to cultivating the lands and keeping the ditches open establishes that there was a substantial compliance with the conditions, in that all of the land was cultivated, with the exception of a few feet next to the ditches, and that the property was drained with the exception of one or two acres, which had been planted by the lessee, and the failure of that portion of the tract to drain is attributed by several of the witnesses to the system of drainage and not to the failure of defendant to keep the ditches open.

The reconventional demand of defendant for loss of crops through the depredation of cattle, alleged to have been due to plaintiff’s failure to maintain the fences, was not sustained, and the evidence is very unsatisfactory as to the circumstances under which plaintiff took possession of the two mules, but it appears that defendant did not make any objection, and as to the claim for damages for the value of the services of the animals, we think defendant’s demands should have been dismissed as of non-suit.

It is therefore ordered, adjudged and decreed that the judgment appealed from be annulled, avoided and reversed, and that plaintiff’s demands be rejected and his suit dismissed at his cost, and that the reconventional demand of defendant for damages for the value of the services of the animals be dismissed as of non-suit.


text:
    No. 2420
    Second Circuit
    HARRIS ET AL. v. HENDERSON LAND, TIMBER & INVESTMENT CO., INC.
    (November 8, 1928. Opinion and Decree.)
    Murff and Perkins, of Shreveport, attorneys for plaintiffs, appellees.
    Pugh and Boatner, of Shreveport, attorneys for defendant, appellant.
   WEBB, J.

This action was brought by Lawson Harris, Albert Faulkner, Lucinda House, Willie House Dickson, and Jodie House Epps, to recover judgment for an interest in real estate formerly belonging to Jane Martin, who was alleged to have been the mother of Lawson Harris and Albert Faulkner and the grandmother of Lucinda House, Willie House Dickson and Jodie House Epps.

The plaintiffs alleged that Jane Martin owned an undivided one-half interest in the property, and that she left eight children, including Lawson Harris, Albert Faulkner, and the mother of Lucinda House, Willie House Dickson and Jodie House Epps, and prayed for judgment for their proportionate interests, or one-sixteenth to each of the children, Lawson Harris and Albert Faulkner, and one forty-eighth to each of the grandchildren, Lucinda House, Willie House Dickson and Jodie House Epps, and the evidence establishing that Lawson Harris was not a legitimate child of Jane Martin and that she had only seven children, the demands of Lawson Harris were rejected and the other plaintiffs were recognized as the owners of the proportionate interests established by the evidence to have been inherited by them from Jane White, or one-fourteenth to Albert Faulkner and one forty-secondth to Lucinda House, Willie House Dickson and Jodie House Epps, and the defendant contends that the recognition of plaintiffs for such interests being in excess of the specific interests claimed by the parties the judgment .was erroneous, and in violation of Article 156 of the Code of Practice, which reads:

“If one demands less than is due him, and do not amend his petition, in order to augment his demand, he shall lose the overplus.”

The petition set forth the title under which the plaintiffs claimed an interest in the property, that is, the title of their ancestor and their relation to her, and the number of her heirs, and the specific interest claimed was merely a consequence of the allegation of the number of their co-heirs.

They did not allege the names of the other heirs, nor is it contended that defendant acquired any interest in the property from Lawson Harris, who was alleged by plaintiffs to have been one of their coheirs, and no estoppel could have arisen in' favor of defendant by reason of their allegation in this respect, and the evidence establishing that Lawson Harris was not a legitimate child of Jane Martin and that Jane Martin had only seven children, we are of the opinion that under the prayer for general relief the judgment properly recognized them as the owners of the interest in the property established by the evidence to have been inherited by them from their ancestor, although the interest was in excess of that which they would have inherited had the evidence established that Lawson Harris was a legitimate child of Jan.e Martin, through whom the plaintiffs asserted title.

It is therefore ordered that the former opinion and decree rendered herein be reinstated.


text:
    No. 3334
    Second Circuit
    AMERICAN LAW BOOK CO. v. JONES
    (November 8, 1928. Opinion and Decree.)
    (December 19, 1928. Rehearing Refused.)
    Rusca and Cunningham, of Natchitoches, attorneys for plaintiff, appellant.
    James W. Jones, Jr., of Natchitoches, attorney for defendant, appellee.
   WEBB, J.

Under contract of date September 29, 1920, defendant agreed to purchase from plaintiff certain law books, being volumes 18 to 40, inclusive, of “Cyc.” and “Corpus Juris,” with yearly annotations, the price agreed upon being ninety dollars for the volumes of Cyc., eight dollars per volume for Corpus Juris, not to exceed seventy volumes, subject to a credit of sixty dollars for the work, and ten dollars per volume for the annotations.

Twenty-one volumes of Corpus Juris and one volume of annotations together with the volumes of “Cyc.” were to be delivered immediately and other volumes of Corpus Juris and annotations as same were published, and in settlement of the books for immediate delivery, the price of which was two hundred and sixty-eight dollars, the discount of sixty dollars was allowed and for the balance defendant paid thirty-eight dollars and gave seventeen notes of ten dollars each dated with the contract, maturing at one to seventeen months, respectively, from their date and bearing six per cent per annum interest from maturity, and it was agreed that defendant would pay for the other volumes of Corpus Juris and annotations as delivered.

The defendant paid five of the notes and this action was brought after maturity of the remaining twelve notes to recover judgment for their face value and interest, and for judgment for the price of three volumes of Corpus Juris and one volume of annotations alleged to have been subsequently delivered under the contract together with six per cent per annum interest thereon from the date of the alleged delivery of the books as provided by the contract.

The defendant answered pleading a general denial, under which he was permitted, without objection, to testify that volumes 17 to 21, inclusive, of Corpus Juris had not been delivered and that volume 14A of Corpus Juris (one of the volumes alleged to have been delivered as soon as it was published) had not been received, and defendant contends that plaintiff had thus violated its contract and should not be permitted to recover on the notes or for any books subsequently delivered.

The evidence shows that a shipment was made by plaintiff of two boxes of books on October 19, 1920, presumably including all of the volumes of. Corpus Juris published at that time, or the volumes which defendant claims were not delivered, and although plaintiff repeatedly wrote to defendant requesting him to give any reason for non-payment of the notes at maturity he did not make any complaint whatsoever, and the claim that some of the books were not delivered was not affirmatively made until the date of the trial, more than seven years after the shipment had been received, and giving full credence to defendant’s testimony that the volumes which he positively states were not delivered, we do not think that, in view of his laches and failure to make any complaint whatsoever, he should be permitted to refuse payment for the books which he admittedly received on the ground that plaintiff had violated its contract.

It is therefore ordered, adjudged and decreed that the judgment appealed from be annulled, avoided and reversed, and that plaintiff, American Law Book Company, have and recover judgment against defendant, James W. Jones, Jr., in the sum of one hundred and twenty dollars, the face value of the twelve notes of ten dollars each, with six per cent per annum interest thereon from maturity, to-wit: June 1, 1921, July 1, 1921, August 1, 1921, September 1, 1921, October 1, 1921, November 1, 1921, December 1, 1921, January 1, 1922, February 1, 1922, March 1, 1922, April 1, 1922, and May 1, 1922, subject to a credit of forty dollars, and in the further sum of twenty-six dollars, with six per cent per annum interest from January 1, 1922, and all costs of suit.


text:
    No. 3275
    Second Circuit
    WASHINGTON v. PAGE ET AL.
    (November 8, 1928. Opinion and Decree.)
    Rusca and Cunningham, of Natchitoches, attorneys for plaintiff, appellant.
    Phanor Breazeale, of Natchitoches, attorney for defendant, appellee.
   ODOM, J.

At some time prior to December 6, 1924, W. W. Page and Luther Page obtained separate judgments against Willie Washington, Clarence Washington, Robert Washington, Mitchell Washington, George Washington, Jr., and Ed Washington, six of the eleven heirs of George Washington, deceased. The defendants in the above suits owned by inheritance each an undivided one-eleventh interest in certain land in the Parish .of Natchitoches. Writs of fi. fa. were issued under said judgments, and the entire interest of each of said heirs was seized and sold by the Sheriff to the said W. W. and Luther Page. The sale was made on December 6, 1924.

Subsequently, said W. W. and Luther Page brought suit against the remaining heirs of George Washington, deceased, to have said property partitioned and, on December 19, 1925, obtained judgment ordering the property owned in indivisión by them and the remaining heirs of George Washington, sold to effect a partition, the said property not being suspectibile of partition in kind. Under this judgment, the Sheriff advertised and sold at public auction to the last and highest bidder the entire interest in said land, and W. W. and Luther Page became the purchasers thereof. Thq deed recites that the Messrs. Page, being the owners of a six-eleventh interest in the land; were allowed to retain that fraction of the proceeds and that they paid the balance in cash, which was distributed among the other co-heirs. This sale took place on February 20, 1926.

Willie Washington, whose one-eleventh interest in the land was sold under fi. fa. on December 6, 1924, was then living in a house on said land and continued to live there and to cultivate a small portion thereof until December, 1927.

On December 13, 1927, the said W. W. and Luther Page applied for and obtained a writ of possession against the said Willie Washington, ordering and commanding him to vacate said property within three days from the date of service. Service of the petition and order was made upon Washington on December 22nd. Whereupon said Washington applied for and was granted a temporary restraining order, prohibiting the said W. W. and Luther Page and the Sheriff from proceeding with said writ until such time as the case might be heard.

In his application for the restraining order, Willie Washington, alleged that he was in possession of the property as owner, as heir to his father and as agent of his co-heirs, and that he had been in possession thereof for many years, under color of title and was not a trespasser.

Apparently for the purpose of converting the proceedings into a possessory action, he alleged in Paragraph 6 of his petition:

“your petitioner shows that he has been disturbed in the (possession of his property that he has enjoyed as aforesaid for more than one year and that he is entitled to be maintained in his possession since he has been threatened by eviction through the issuance of the writ of possession illegally obtained.”

Upon hearing, the lower court recalled and vacated the restraining order which it had issued and rejected Washington’s demands. He has appealed from that judgment.

OPINION

Willie Washington, plaintiff in the injunction and defendant in the ejectment proceedings, does not question the validity of or attack the proceedings under which his interest and the interest of his co-heirs in the land in controversy were sold under writs of fi. fa., nor does he assail the partition suit under which W. W. and Luther Page acquired the land in February, 1926. He goes no further than to say that he is in possession of the said land as owner and under color of title.

The record before us shows that Willie Washington was legally divested of his title to any interest in the land on Decern* ber 6, 1924. His interest in the land, along with the interest of several of his co-heirs, was on that date sold by the Sheriff under writ of fi. fa., issued in a judgment against him and his co-heirs, to W. W. and Luther Page. From that date, he had neither title to nor right to possess the land. Later on, the Court ordered the entire interest in the land sold to effect a partition thereof, and it was sold and the Messrs. Page became the purchasers.

Willie Washington was not a party to the last named proceedings, because his interest in the land had previously been sold under fi. fa. The legal and immediate effect of these orders and sales was to divest Willie Washington and his co-heirs of all title to the property and to vest the same in the Messrs. Page. Henceforth, Washington’s possession of the property was legally for and under the purchasers.

Richards vs. Swords, Sheriff, et al., 131 La. Rep. 410, 59 So. 833, and authorities there cited.

In the Richards vs. Swords, Sheriff, et al. case, the Court said:

“The judgment ordering the sale was, in ultimate effect, a judgment condemning the parties thereto to deliver the property to the purchaser, and the proper method of executing it was to obtain, from the Clerk, a writ of possession, which was done. C. P. Art. 630, et seq.”

W. W. and Luther Page, being the owners of said property, under the writs, orders and sales above referred to, were entitled to the possession of said property, and, finding that Willie Washington was in possession thereof and refused to yield the same, they were legally entitled to the writ applied for and granted.

In addition to the remedy afforded a purchaser of property in order to get possession thereof by Art. 630, et seq., of the Code of Practice, Act 113 of 1906, provides that:

“Whenever any Sheriff or Constable in this State, acting under a writ of seizure and sale, a writ of fieri facias or any other order of sale, shall sell and adjudicate real estate and the occupant thereof shall not on demand deliver possession to the purchaser after he has paid the price of adjudication and received deed from the Sheriff or Constable, and due return has been made on the writ or order of sale, then the Cleric of the Court from which the writ or order of sale issued, shall on demand in writing of the purchaser or his agent or attorney, issue a writ of ejectment addressed to the Sheriff or Constable, by virtue of which the Sheriff or Constable shall put said purchaser in physical possession of the property sold, in the same manner as now provided by law for other writs of possession.”

The purchasers of the property in controversy complied with all of the requisites, not only those contained in the Code of Practice, but also those contained in-the Act of 1906, and were therefore legally entitled to the writ which they obtained. Counsel for Willie Washington, in oral argument and in brief, argued that he, being in possession of said land and being disturbed in that possession by the issuance and service of the writ of- possession upon him, was entitled to the writ of injunction as a matter of right, and, in support of that contention, he cites the case of Baptiste vs. Southall, 156 La. Rep. 442, 100 So. 674. The cited case does not support that contention. There, the husband had obtained a judgment of separation from bed and board against his wife, Mrs. Agnes Southall, who remained in possession of some of the community property. The Court held that she was clearly entitled to be maintained in her possession as she had been in the real possession of the property for more than a year, because her husband had no valid judgment ousting her from that possession.

The facts in the case at. bar clearly distinguish it from the cited case.

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


text:
    No. 3249
    Second Circuit
    SPENCER BROS. v. McBRIDE ET AL.
    (December 19, 1928. Opinion and Decree.)
    R. F. Langston, of Minden, attorney for plaintiff, appellant.
    C. J. Ellis, Jr., of Rayville, and T. Y. Berry, of Winnsboro, attorneys for defendants, appellees.
   WEBB, J.

The plaintiffs, Spencer Brothers, a partnership, having constructed a highway in Franklin Parish, under contract with the Police Jury and the Louisiana Highway Commission, seek in the present suit to obtain judgment against the highway for a balance alleged to be due under the contract, which it is alleged the highway had retained to secure the payment of • certain recorded liens, and plaintiffs make the alleged holders of the íiens, who were O. P. McBride and the Police Jury, parties to the suit, in order to test the validity of the liens filed hy them, and to -have same cancelled from the records.

Defendants, Police Jury and the Highway Commission, filed exceptions of no cause or right' of action, non-joinder and misjoinder, and that the plaintiff could not under the statute (Act 224 of 1918), bring a direct action to enforce his claim, and then answered, the Police Jury alleging that plaintiff was indebted unto it, for which it had filed and recorded, a claim, as required by the statute, and the Highway Commission admitted that there was a balance due plaintiff, which had been retained to secure itself against the liens filed, and which it stood ready to pay to the parties to whom ‘ it should be determined the amount was due, while O. E. McBride answered, setting up the lien and praying to be paid from the amount retained by the Highway Commission.

The cause was tried and judgment rendered ordering the cancellation of the claim filed and recorded by O. P. McBride and sustaining the exceptions filed by the Highway Commission and the Police Jury, from which judgment plaintiff, alone, appeals.

Act No. 224 of 1918, relative to the construction of public roads, etc., provides that the public authorities shall require a bond of the contractor for the faithful performance of the work and payment of all furnishers of labor, materials, etc., and provides for the filing and recording of claims by persons furnishing labor and material, and declares that when such claims have been filed and recorded, the authorities having the work done shall file a petition before the proper court, citing the claimants, contractor, etc., and surety on the bond, and that the authorities shall assert whatever claims they have against any and all of them, and require the claimants to assert their claims, and that all of said claims shall be tried in concursus, and that in event of the authorities having the work done do not file such proceedings, that any claimant may do so, and it has been held that under the statute, when claims have been filed and recorded against the contractor, that he cannot sue for the indebtedness due without provoking a concursus. Mahoney vs. Louisiana Highway Commission, 154 La. Rep. 383, 97 So. 582.

Giving to the plaintiff’s pleading the most liberal construction and considering that in his action against the authorities having the work done for the balance alleged to be due, that by having the claimants also' cited, that the rights of the claimants and of the authorities as between themselves may have been tested; yet in default of the surety on the bond being made a party, that the ¡proceedings cannot be considered as coming within the provisions of the statute requiring a concursus, and that under the ruling in Mahoney vs. Louisiana Commission, supra, the petition failed to state a cause of action, and that the exception was properly sustained.

We are of the opinion that, in sustaining the exception, plaintiff’s right to proceed to enforce any right it had in a concursus proceeding should have been reserved, and the judgment appealed from is amended so as to reserve the plaintiffs’ rights against defendants in a concursus proceeding, and, as amended, it is affirmed, appellants to pay all costs.


author: REYNOLDS, J.

text:
    No. 3016
    Second Circuit
    SMEDLEY v. RUSHING
    (November 8, 1928. Opinion and Decree.)
    Murff and Perkins, of Shreveport, attorneys for plaintiff, appellee.
    A. M. Wallace, of Benton, attorney for defendant, appellant.
   REYNOLDS, J.

This is a possessory action. The petition was filed on September 30, 1926, by Julia Moory Smedley, Mary Moory Ely, Susie Moory Brown, Columbus Moory, and Daniel Anderson, against George Rushing.

They allege that they were in actual undisturbed possession as owners of east half of Northeast quarter of Section thirteen Township eighteen North Range twelve West, in Bossier parish, Louisiana, for more than a year prior to the institution of the suit, and that since November, 1925, they were disturbed in their possession by George Rushing going in and upon a strip of said land lying just south of the Shreveport and Haughton gravel road, fencing up a strip consisting of about five or six acres,-and by the said Rushing’s building thereon a house and an oil and gas filling station; and they ask judgment restoring them to the possession of the property and that their right to sue for damages caused by the disturbance be reserved to them.

Defendant denies that he is in possession of any part of the land claimed by plaintiffs and alleged that he is in possession of a tract of land described as follows, to-wit:

Beginning at southeast corner of Section 12 Township 18 Range 12', Bossier Parish, La., run thence west 790 feet; thence north 120 feet to Shreveport and Minden good road; thence along said road to point of intersection of the Minden and Haughton roads; thence along said Haughton road to the point where said road crosses the east line to Section 12 Township 18 Range 12, Bossier Parish, La.; thence south, along said section line, a distance of 32 feet to point of beginning.

On these issues the case was tried and there was judgment in favor of the plaintiffs and against the defendant that the property in the possession of defendant was the property claimed by plaintiffs and ordering him to surrender possession there-’ of to the plaintiffs and to desist from further interfering with their possession thereof.

Prom this judgment defendant appealed, and plaintiffs have answered the appeal and pray that the judgment 'be amended by reserving to them the right to sue defendant for damages for disturbing them in their possession of the property.

OPINION

The only question in the case is whether defendant is in possession of the land claimed by plaintiffs or not.

George E. Dutton, a civil engineer and surveyor, testified that he made a survey of the locus in quo between February 26, 1926, and April 10, 1926, and made a map or plat of the survey, and this map or plat was filed in evidence. This map or plat shows, amongst other things, the location of the line between sections 12 and 13 in Township 18 North and the line between ranges 11 and 12 West, with reference to the lands in the actual, physical possession of the defendant.

And he further testified:

“Q. Did you make a survey and map of the surroundings there, in and around this land that is in controversy between the plaintiffs and defendant?
“A. I did.
“Q. I will ask you to examine this map and see if it is a true and correct location of the grounds around the place.
“A. It shows the result of that survey.
“Q. I will ask you whether or not this house, known as the Rushing house and garage, is north or south of that public road?
“A. South . of the public road.
“Q. I will ask you if there is a line of fence running north of the house, the dwelling house, along the side of that public road?
“A. There is.
“Q. You don’t know how long it has been there?
“A. No, sir.
“Q. Did you make a survey of this quarter section in order to locate this place, and get the true location?.
“A. Yes, sir; run the entire township line and range line between twelve and eleven, thirteen.
“Q. I will ask whether or not these houses are located north or south of the dividing line between sections 12 and 13?
“A. Located south of the dividing line. * * *
“Q. This place marked ‘dwelling’ is known as the Rushing dwelling?
“A. It is.
“Q. The garage is the one Rushing is supposed to have built on the land?
“A. It is.
“Q. This, according to your survey, is of what section, 13?
“A. Yes, sir.
“Q. East half of Northeast quarter of Section 13?
“A. East half of Northeast quarter of Section thirteen Township eighteen North Range twelve West.”

The testimony of this witness and that of Susie Brown, Mary Elly, Alf Thornton, Joe Elly, Wess Smith, Tom Hickman, and A. J. Murff, etsablishes to our satisfaction that plaintiffs were in possession of the land claimed by them as owners and undisturbed for more than a year prior to defendant taking possession thereof, that they brought this suit within one year after such disturbance, and that the land in defendant’s possession is that described in plaintiffs’ petition and not that described in his answer, and therefore the judgment appealed from is correct insofar as it orders defendant to restore possession of the property to plaintiffs and cease further disturbing their possession thereof. However, in their petition plaintiffs asked that their right to sue for whatever damages may have been caused them by defendant’s acts be reserved to them and this additional relief the judgment failed to give them and in an answer to the appeal they ask this court to amend the judgment appealed from so as to reserve to them this right, and they are entitled to such amendment.

It is therefore ordered, adjudged and decreed that the judgment appealed from be amended so as to reserve to plaintiffs the right to sue defendant for any damages they may have sustained by reason pf his disturbing their possession of the property claimed by them, and that as so amended the judgment be affirmed.-


text:
    No. 3372
    Second Circuit
    BOOKS v. KEEN & WOOLF OIL CO ET AL.
    (November 8, 1928. Opinion and Decree.)
    George T. McSween, of Shreveport, W. C. Boone, of Homer, attorneys for plaintiff, appellee.
    Pugh, Grimmet and Boatner, of Shreveport, and Spearing and Mabry, of New Orleans, attorneys for defendant, appellant.
   STATEMENT OF THE CASE

REYNOLDS, J.

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

Plaintiff, Mrs. Annie Mae Books, sues for herself and a minor child, Bernice Inez Books, issue of her marriage with P. H. Books, deceased. She alleges that her husband died on January 11, 1927, as the result of injuries accidentally received by him July 9, 1926, while in the employ of and performing services for Keen & Woolf Oil Company, Inc.; that at the time of the accident he was earning $5.50 a day and working seven days in the week; and she prays for judgment, for $17.81 a week for three hundred weeks beginning July 16, 1926, with legal interest on each installment from the date it was due. She also asks for further judgment in the sum of $400.00 as and for medical attention to and burial expenses of the deceased.

The defense is that the plaintiff was not living with the deceased at the time of the injury to him and his death and was not then actually dependent on him for support; that the death of the deceased was not caused by the injuries received by him while in defendant’s employment; that the defendant had itself paid all expenses connected with the injury to and burial of the deceased; and that it had paid compensation to the amount of $220.00 on account of disability of the deceased by reason of his injury.

On these issues the case was tried and there was judgment in favor of the plaintiff for the benefit of herself and her minor child against the defendant for compensation of $17.81 a week for three hundred weeks, beginning July 16, 1926, with legal interest on each installment from its maturity until paid, and the costs of suit.

From this judgment the defendant appealed, and the plaintiff has answered the appeal and asks that the judgment be amended so as to increase the amount of the weekly installments to be paid by defendant from $17.81 to $20.00, and so as to allow her the additional sum of $400.00 as and for medical and burial expenses of the deceased.

OPINION

Plaintiff’s husband was injured on July 9, 1926. He was struck on the left side by an iron pipe and several of his ribs were broken thereby. He died on January 11, 1927. The immediate cause of his death was pulmonary tuberculosis. Regarding the causal connection between the accident and his death, Doctor C. W. McGowen testified:

“Q. Now state to the court the condition he was in at the time that you treated him, Doctor?
“A. Well, when I first examined Mr. Books in my office in this building, I found a very active tuberculosis in both lungs, more in the left than in the right, with definite physical signs from the x-ray and positive sputum. He was sent to the Pines Sanitarium and stayed there from, I believe some time in August or July, I cannot recall. I would not state positively about the exact date, but when he came to the hospital he was a bed patient and remained a bed patient' the entire time he was there. He had a discharging sinus from the left side and discharged pus the entire time he was there. Several of his ribs were fractured at that point, which were movable. He had a severe cough and considerable pain, and did not seem to respond to any treatment we gave him— general treatment or rest. He grew progressively worse, and died.
“Q. Then it is your opinion, Doctor, of the cause of his death, as connected with the accident — from the receipt of the accident?
“A. My opinion is that he died of pulmonary tuberculosis, aggravated by a lick on the chest sufficient to fracture two or three ribs.
“Q. Did the ribs ever unite?
A. No, not all of them. There are two that did not, at least.
* * * *
“Q. I am asking you if it is possible if lie had not received the lick—
“A. (Interrupting) I think he had some tuberculosis before he received the lick.
“Q. Then it is* your opinion, Doctor, that this accident aggravated or caused his death from tuberculosis ?
“A. Yes, sir.”

Doctor Harold J. Quinn testified:

“Q. Doctor, assuming that a man, able to do oil field work every day, weighing approximately 180 pounds, received a lick to his left side, fracturing three or four ribs; that immediately following that accident, the ribs failed to unite, and that he constantly loses weight' after that time, and eventually dies some two months after that from tuberculosis — some four months after this accident from tuberculosis— what is your opinion as to what effect that accident had on the development of the tuberculosis?
“A. Well, my opinion is that the patient had probably a chronic tubercular condition and that the accident aggravated it. He probably had an old chronic condition.
“Q. What is your opinion as to whether that condition was active or inactive at the time that he received the injury?”

The evidence shows that on April 25, 1925, the deceased contracted a bigamous marriage with another woman.

Plaintiff testifies that she last saw her husband in October, 1925, and that he then accompanied her from Haynesville to Arcadia on her way to her father’s home where, she testifies, she was to remain until the deceased obtained permanent employment.

The mother and brother of the deceased testified that it was in the fall of 1924 that plaintiff went to her father’s home, and defendant earnestly insists that this is the true date of that event, and that this fact and the deceased’s bigamous marriage and the fact that plaintiff never saw her husband again after she went to her father’s home, conclusively show that the separation between plaintiff and her husband was intended to be and was permanent.

But there is no evidence in the record or suggestion that plaintiff was aware of the bigamous marriage or that the deceased intended to desert her.

As stated above, the District Judge resolved defendant’s contention against it, and we cannot say that he manifestly erred in doing so.

Plaintiff asks us to increase the amount of the weekly payment awarded her from $17.81 to $20.00.

The amount awarded her was the exact amount demanded by her in her petition, and therefore she has no just ground of complaint on this score.

Case vs. Cannon, 23 La. Ann. 36.

Plaintiff also asks us to grant her judgment for the further sum of $400.00 as and for medical and burial expenses of her deceased husband.

There is no evidence that plaintiff paid or obligated herself to pay any sum of money on this account. On the contrary, it is proven that the defendant paid all such expenses.

Finding no error in the judgment appealed from, it is accordingly affirmed.


author: BY WHOLE COURT.

text:
    No. 3384
    Second Circuit
    CITY OF MONROE, ET AL. v. COOPER, ET AL. CITY OF MONROE, ET AL. v. BREARD CITY OF MONROE, ET AL. v. HAWKS CITY OF MONROE, ET AL. v. HUDSON CITY OF MONROE, ET AL. v. BREARD, JR.
    No. 3385
    Second Circuit
    No. 3386
    Second Circuit
    No. 3387
    Second Circuit
    No. 3388
    Second Circuit
    (November 12, 1928. Opinion and Decree.)
    H. H. Russell; Theus, Grisham and Davis, of Monroe, attorneys for plaintiffs, appellees.
    Hudson, Potts, Bernstein & Sholars, of Monroe, attorneys for defendants, appellants.
   BY WHOLE COURT.

This Court has no jurisdiction in this case, because the controversy involves the constitutionality or legality of a local improvement assessment imposed by the municipality of the City of Monroe. The Supreme Court has appellate jurisdiction in such cases (See Sec. 10, Art. VII, Constitution of 1921).

It is therefore ordered that this case be transferred to the Supreme Court.


author: PER CURIAM.

text:
    No. 3259
    Second Circuit
    CAMMILL v. AMERICIAN CREOSOTE WORKS, INC.
    (December 19, 1928. Opinion and Decree.)

      John J. Peters, of Winnfield, attorney for-plaintiff, appellee.
    R. W. Ogleshy, of Winnfield, attorney for defendant, appellant.
   PER CURIAM.

When this case was ■ reached for argument, counsel, on both sides, stated in open court that an agreement had been reached that a lump sum should be paid by defendant in settlement of the demands of plaintiff.

This court having no jurisdiction to grant judgment ordering lump sum settle-, ment, it is therefore ordered that the .case: be remanded to the lower court in order. that that court may take the necessary ■ steps with reference to such lump sum settlement as may be agreed upon by the; ¡parties.