author: TALIAFERRO, J.

text:
    No. 3639
    Second Circuit
    AETNA CASUALTY & SURETY CO. v. PALMER
    (November 18, 1931. Opinion and Decree.)
    (December 9, 193Í. Rehearing Refused.)
    Wilkinson, Lewis, Wilkinson & Burford, of Shreveport, attorneys for plaintiff, appellant.
    C. F. Currier, of Shreveport, attorney for defendant, appellee.
   TALIAFERRO, J.

In this suit the plaintiff seeks to recover of the defendant on a contract of indemnity. It appears that on a date mentioned the defendant induced the plaintiff to sign and execute a certain bond for another, and in consideration of the execution of this bopd, plaintiff required the defendant to sign a contract of indemnity guaranteeing it against any loss, damage or expense resulting from the execution of the bond.

It further appears that said bond executed by plaintiff as surety thereon was given to guarantee that one Davidson would carry out the terms and .provisions of a certain contract entered into with one Godwin for the drilling of an oil and gas well on certain properties in Union parish, Louisiana, and following the execution of said drilling contract and the bond on which plaintiff was surety, a suit was brought by said Godwin against the said Davidson and against the plaintiff herein, as surety on said bond, alleging that the said Davidson had defaulted in the performance of his contract and demanding of the said defendants judgment for $5,000, penal amount of said bond. After the filing of this suit in Union- parish, the plaintiff herein, being the surety on said bond, notified the defendant herein and the said Davidson of the pendency of said suit and tendered to the defendant herein the defense thereof.

It is well to state in this connection that the said Davidsqn', co-defendant with this ¡plaintiff in said suit, agreed to defend the suit in Union parish on certain conditions, and that the defendant in this suit, who was the' indemnitor on Davidson’s bond, carried the notification of the pendency of such suit received from plaintiff tq his own attorneys, and arranged with them to defend the suit wherein the said Davidson and this plaintiff were co-defendants, and which representation by counsel was to include the defense of the suit on behalf of both defendants. Further, the record discloses that the law firm of Story & Phillips, being the counsel retained by this defendant, indemnitor on said bond, replied to plaintiff herein, accepting the tender of defense of the suit in Union parish on behalf of both the principal and the indemnitor, and agreed to defend the suit on certain conditions. The record further shows that on trial of the suit in Union parish, being defended by the firm of Story & Phillips for both the plaintiff herein and the said Davidson, there was judgment rendered against the co-defendants in the sum qf $5,000, the penal sum specified in said bond, but all other demands were denied.

There was an appeal taken from the judgment of the • trial court of Union parish to the Supreme Court of Louisiana and the judgment against plaintiff was reversed, Godwin v. Davidson, 163 La. 804, 112 South. 728. Plaintiff in the present suit brings its action to recover of the defendant the sum of $499.31, being the costs and expenses incurred by it in prosecuting such appeal in the Supreme Court of Louisiana, alleging that it was necessary that such costs and expenses be incurred? a.greeably to the terms, provisions and conditions oí the contract of indemnity- heretofore mentioned.

On trial of this cause in the lower court the demand of plaintiff was rejected, except for the sum of $27.10, being the amount admitted to be due plaintiff. From such judgment this appeal is prosecuted by plaintiff.

There is no serious conflict in the evidence. A decision qf the case hinges upon the construction and interpretation to be given the- contract of indemnity.

Just here we think it well to state the exact ter|ns of the contract of indemnity pertinent to the issues of the case, viz.:

“SECOND: That I will, at all times, save harmless and indemnify the said Surety and also any other Surety Company which the Surety may procure to act as Surety or Co-Surety on said bond or undertaking, 'hereby constituting and appointing the said Surety our agent for the purpose of procuring such suretyship, from and against any and all demands, liabilities, loss, costs, damage or expense of whatever nature or kind, including counsel fees, whether incurred under salary or retainer, which the said Surety shall or may, at any time, for any cause, incur, sustain or be put to for or by reason or in consequence of executing said bond or undertaking, and that we will pay over, reimburse and make good to the Surety, its successors and assigns, all sums and amounts of money which the Surety or its representatives shall pay or cause to be paid, or become liable to pay under said bond or undertaking, or as charges and expenses 'of whatever kind or nature, including counsel fees, by reason of the execution of said bond or undertaking, or in connection with any litigation, investigation or other matters connected therewith, such ¡payment to be made to the Surety as soon as it shall have become liable therefor, whether it shall have paid out said sum or any part thereof or not.”
“ELEVENTH: The' surety may, at any time, hereafter, take such steps as it may deem necessary or proper to obtain its release from any and all liability under the said bond or undertaking, or under any other instrument of writing within the meaning of section Seventh hereof, and secure and further indemnify itself against loss and all- damages and expenses which the Surety may sustain or incur, or be put to in obtaining such release, or in further securing itself against loss, shall be borne and paid by the Indemnitor.”

The questions nqw arise: What is a proper construction and interpretation of these pertinent clauses of the contract of indemnity, considered in the light of the testimony? Must the indemnitee wait until requested by the indemnitor to take steps in the defense of its rights when sued, or can the indemnitee act whenever it thinks necessary or proper‘in furtherance of what it considers to be its interests? Who is to be the judge of the existing necessity of action?

It appears that after rendition of judgment in the case in Union parish, counsel who defended that suit, Messrs. Story & Phillips, moved for and were granted an order of suspensive appeal to the Supreme Court. As the judgment was for a large money amount it was imperative that a suspensive appeal be perfected. It developed about this time that Davidson was insolvent and could not arrange for the appeal bond, and time was short within which to perfect the appeal. It was while matters thus rested that counsel, who had represented the co-defendants in that suit, got in touch with Messrs. Wilkinson, Lewis, Wilkinson & Burford, regular counsel of Aetna Casualty & Surety Company, and explained to them the situation, requesting that they have their client, the surety company, provide the appeal bond, which was done. From this time on it appears that said regular counsel of the surety company identified themselves with the case, as attorneys of record, under instructions pf their client.. The case was argued in the Supreme Court by these attorneys and also by Messrs. Story & Phillips, attorneys of Palmer, and, as stated before, the judgment against Davidson and the surety company was reversed by the Supreme Court.

The services of Messrs. Story & Phillips, in the Union parish case, were rendered without cost to the surety company. In the letter to these attorneys from attorneys of the surety company, of June 1, 1925, the following significant clause appears, viz.:

“We understand that you will appear for the Aetna without cost to it and that you will actively defend this suit for the Aetna Casualty & Surety Company in all respects as if you were retained by it. As attorneys for the Aetna Casualty & Surety Company we agree with you that your defense of this suit for the Aetna Casualty & Surety Company shall be without prejudice to any of the rights of any of the parties concerned.”

It is contended by defendant herein that the surety company waived its right to employ additional counsel by consenting that counsel of Davidson (and Palmer) look after 'the defense to the suit in Union parish. Such a waiver, if intended, should be in unequivocal terms in order to modify the stipulations in the contract of indemnity, for certainly the right to employ counsel of its choice was a very important one to indemnitee. However, be this as it may, the excerpt quoted from counsel’s letter, above, makes it clear that none of the rights of .any of the parties concerned were modified or affected by the arrangement made to defend the Union parish suit.

Counsel qf defendant contend that the employment of additional counsel by the surety company was unnecessary and unreasonable under the circumstances, ^ and quote the following law of general application from 31 C. J., 437, viz.:

“Indemnitee cannot recover against the indemnitor for counsel fees or costs which have been unnecessarily and unreasonably incurred and voluntarily paid by him.”

Can it be successfully contended that the counsel fee incurred by plaintiff as claimed was unnecessarily and unreasonably incurred? We do not think so.

We have not been cited to very much legal authority in briefs of counsel. However, we think ample authority is found for our conclusions in construing the terms of the contract of indemnity, in view of the circumstances confronting the plaintiff in this case, in the case of Stewart v. Lapsley, 7 La. Ann. 641, from which we quote as follows:

“Had the appellant a right to engage counsel at the expense of Stewart & Co.? We think he had. The case of Peck v. Acker, 20 Wend. [N. Y.] 605, is conclusive as to that right. He was not bound to put his interests into the hands of the counsel selected by them. Indeed the record •shows, that when the sheriff was sued, and called Stewart & Co. in warranty to defend the suit, their attorneys filed a plea that they were not bound in warranty to him, and prayed to be dismissed, etc. For his own interest he had a right to employ counsel, and having paid no more than a just compensation for services of the most efficient kind, the amount must be refunded to him by the party who stands bound to save him harmless. The expense of defending the suit of Turner, was certainly much greater than it might have been, but this is exclusively the affair of the plaintiffs, and the result of their choice. It is clear that the right of the appellant to be indemnified, or to be saved harmless, cannot be affected by this fact.”

And again in Kern v. Creditors, 49 La. Ann. 886, 22 So. 40, 43, as follows:

“An attentive consideration of the testimony has. brought us to the conclusion that the fund was deposited as alleged for indemnity against possible loss.
“The obligation was to save plaintiffs in rule harmless. This, we think, included fees and costs. In Berry v. Slocomb, 2 La. Ann. 993, the obligation by defendant was to save the plaintiff harmless, as in the case here. The court held that the defendant owed the plaintiff the fee paid by him to counsel by whom the case was defended.”

A full and careful consideration of the evidence in this case convinces us that the contract qf indemnity relied upon by plaintiff gave to it the right to determine the necessity of directing its own attorneys to proceed to defend their interests in the case on appeal, and that such right was not waived by it.

We therefore find and hold that the plaintiff was within its rights in having counsel of its choice prosecute appeal from the judgment against it to the Supreme Court, and therefore should recover of the defendants the amounts incurred in that connection, which are shown to be reasonable.

The judgment appealed from is therefore amended by increasing the amount thereof to $499.31, with interest from March 16, 1926, and that defendant pay all costs of suit; and, as thus amended, said judgment is affirrqed.


source: Caselaw Access Project

author: ELLIOTT, J. PER CURIAM.

license: Public Domain

text:
    No. 860
    First Circuit
    SHAFER v. TOWN OF MADISONVILLE ET AL.
    (October 7, 1931. Opinion and Decree.)
    (December 8, 1931. Original Judgment Amended and Rehearing Refused.)
    H. W. Robinson, of New Orleans, and B. & M. Purser, of Amite, attorneys for plaintiff, appellant.
    Delvaille H. Theard, of New Orleans, attorney for defendant, appellee, Susquehanna, Inc.
    Morgan & Simmons, of Covington, attorneys for defendant, appellee, Town of Madisonville.
   ELLIOTT, J.

Mrs. Elizabeth Shafer, wife of Sidney B. Boudreaux, member of an outing party from New Orleans, consisting of about 400 girls, accompanied by their mothers, went on a pleasure trip across Lake Pontchartrain. • The trip was made on May 27/ 1927.

The steamboat Susquehanna, owned and operated by Susquehanna, Inc., was used by the excursionists for the purpose of making the_ trip.

The party first visited Mandeville, then proceeded to Madisonville, where they disembarked and went ashore, that being part of the trip. For that purpose it was. necessary to land on the wharf, from which they proceeded to the streets of the town, and, after spending the allotted time in Madisonville, the party came back to the boat moored at the wharf for the purpose of returning to their homes in New Orleans.

In returning to the boat by way of the wharf the plaintiff received an injury on account of which she brought this suit against .the Susquehanna, Inc., and the town of Madisonville. She alleges on the subject: That on her return to and while on the wharf, and 'about ten or twelve feet from the boat, and in the direct route between .the gangplank and the shore, she stopped a moment to speak to a friend, when her left leg went through the wooden flooring of the wharf, which was so rotten that it broke under her weight, letting her leg go down through the broken wood to her knee, which caused her to fall on her right arm, resulting in severe contusion of .the elbow, shoulder, left knee, and ankle. That in the fall the skin was torn from her left leg on both sides of her ankle and knee, splinters of wood being driven into the flesh, causing hemorrhage within the tissues, which in all was very painful.

That the wharf was old and the wood so rotten that it gave way under her weight while she was standing still upon it.

That the Susquehanna, Inc., was the owner of the Susquehanna, and it was the duty of the steamer and its mister and owners to furnish a safe place for its passengers to leave and embark, etc.

That it was gross, carelessness and negligence on the part of the town of Madison-ville to operate for hire and permit to be used by the public a wharfi which was unsafe and dangerous on account of its rotten flooring. That her injury was due solely to the carelessness and negligence of the Susquehanna, Inc., and the town of Madisonville, .their agents, employees, and servants. She claims of them, in solido, $10,000 on account of her injuries.

The Susquehanna, Inc., after excepting that plaintiff’s petition sets forth no cause or right of action, answered, denying generally all the averments in her petition. It urged no special defenses, and prayed that 'plaintiff’s demand be rejected. The answer of the town of Madisonville is similar to that of the Susquehanna, Inc., except that it admits that the Susquehanna did land at the wharf in Madisonville referred to by plaintiff; that such landing was made' without the knowledge or consent of the town authorities, contrary to its wishes. It urges no special defenses, and prays that -plaintiff’s demand be rejected.

The suit was filed on February 20, 1928, but it was not tried until April 21, 1930, more than two years, later. The lower court for written reasons assigned rejected plaintiff’s demand against both defendants. The plaintiff has appealed.

The exception of no cause- or right of action urged by the Susquehanna, Inc., not having been „ruled on by the lower court, and not being urged in .the brief, is- not a question before us.

As for plaintiff’s charges of - negligence, carelessness, and fault on the part of the Susquehanna, Inc., the disembarkation was safely made at the town wharf, which was the property of the town of Madisonville. 'It was on her return to the boat after visiting in the town that plaintiff was injured. The Susquehanna, Inc., is not responsible for the condition of. the wharf or the pavilion referred to by the witnesses. Her demand against Susquehanna, Inc., was therefore properly rejected.

But a different situation appears as to the town.

The town of Madisonville was incorporated by special enactment of the Legislature, February 18, 1817. See Acts 1817, p. 106. Section 3 of ¿his act confers on the town very general authority on the subject £f police; but no reference is therein made to the subject of wharves.

The town was re-incorporated by Act No. 327 of 1852. Section 7 of this act provides that:

“They shall have jurisdiction over the public landings and wharves and alter and repair the same when necessary.”

It appears from a case, W. B. Cook, tax collector & Police Jury of St. Tammany v. Dendinger, 38 La. Ann. 261, that in 1883 the town, acting under the provisions of Act No. 110 of 1880, amended its charter exempting the town from the power of the police jury over woods, roads, and highways and the imposition of parish taxes and licenses, but the report of the case does not indicate any change made in the provisions of Act' No. 327 of 1852, sec. 7, concerning its jurisdiction over the public landings and wharves and th£ right to alter and repair the same when necessary.

There is nothing in the record which indicates that the town of Madisonville has ever seen proper to adopt for its. government Act No. 136 of 1898; section 40 of which provides that existing municipalities can only come under the provisions of this act as the result of an election.

We therefore assume, in the absence of any showing to the contrary, that the town is still governed by the provisions of Act No. 327 of 1852 and according to which the repair of the public landings, and wharves belonging to the town should be performed, by the town when necessary, and it follows that failure to repair when necessary renders the town liable in damages for injuries caused by its negligence.

The mayor, Mr. Oulliber,- testifies that the wharf in question belongs to the town. With reference to the pavilion in which the accident to the plaintiff happened, he says in answer to questions:

“Q. Who had a right to put a pavilion there?
“A. The town of Madisonville bought it from the Jahncke Service Co.” '

We take it that his answer means that the town owns the pavilion. The ownership of the pavilion by the town further appears by evidence introduced showing that before the accident to plaintiff .the town authorities had carpenters to repair the floor of the pavilion. It appears that they took various pieces of old flooring and put in new pieces, but the work was not finished, and the town authorities, owing to the unfinished repairing and dangerous condition of the pavilion floor, directed the carpenters to put up barricades around it so as to keep people and cattle out of it until the work could be finished. A proper inference from the testimony on this subject requires the conclusion that the town authorities knew that the floor of the pavilion was rotten and dangerous to be walked on. They started to have it repaired previous to the trip of the Susquehanna and the arrival of .the excursionists in question, but for some unexplained reason the work was temporarily discontinued and the carpenters were directed to barricade the pavilion in such way that people could not get into it, the purpose being of course to keep people from getting in there and getting hurt due to the condition of the floor.

There is no reasonable doubt on this subject. A claim adjuster named Stewart came over to Madisonville to investigate the accident that had happened to the plaintiff and called on Octave J. Oulliber, the mayor. He .testified that Mr. Oulliber admitted to him that the wharf was dangerous.

Mr. Oulliber was on the stand and gave his testimony as a witness in behalf of the town after that of Mr. Stewart had been introduced. He was not asked about this statement imputed to him by Stewart, and it was not denied. If it had been untrue, it would almost certainly have been denied. Giving effect to the statement of Mr. Oulliber that the wharf was dangerous, he must have had reference to the floor of the pavilion, because the accident was in the pavilion. It was the pavilion floor that had been left in a state of unrepair. There is nothing in the record which indicates that the floor of the balance of the wharf was in need of repair. It therefore seems from the remark of Oulliber that he looked on- the pavilion floor as a part of the wharf, and it is our conclusion that it must be so regarded.

The evidence shows that this pavilion is a two-story structure, fronting and back about twenty feet distant from edge of the river. The upper floor is used for dancing, but the lower floor has benches in it, .to be used as seats, and the facts and circumstances indicate very strongly that the lower story in which were the benches, roofed over by the top of the pavilion, was a place equipped with seats where people awaiting the coming or the departure of vessels could rest protected from sun and rain.

The town denies ’in its answer that plaintiff was injured on the wharf, but it does not aver that she was injured in the pavilion, and that the pavilion was not part of the wharf. The ease was tried, not so much on the theory that the floor in the pavilion was safe, but rather on the theory-that it had been barricaded in such a way that the excursionists could not get into it except by going over or under it or by breaking down the barricade after warning by the captain of the Susquehanna as. they left the boat to go around it.

The contention of the plaintiff is that the pavilion was open; .that the excursionists in leaving the vessel walked through it and in returning did the same, and, sat down on the benches. That she saw no barricade, heard noi warning from the captain, that it was open, and she entered it on her return. Others were in it, and she stopped .to talk to a friend, when the plank on which she was standing still while speaking broke under her weight, causing the injury alleged in her petition.

The evidence concerning a barricade is conflicting; as showing the grounds of our conclusion we quote from the testimony as follows:

Miss Yvonne Boudreaux, daughter of plaintiff, at the time of testifying about 18 years old, says she was present at the time of the accident. That it occurred on the wharf where all the passengers were walking: The testimony of the witness is not to be regarded as incredible because she says it occurred on the wharf; it rather seems, from her testimony that she saw no barricade about the pavilion; that 'the lower story of the pavilion was open. Other excursionists were walking about therein; that no difference existed that she could see, separating the floor of the pavilion from that of the balance of the wharf; that as she remembered conditions at the time of testifying, which was about two years after the accident, it occurred in an open space, not in a barricaded area.

■ Mrs. R. C. Morgan, one of the passengers on the boat, a friend of the plaintiff not otherwise interested in the result of the suit, was near plaintiff at the time she got hurt, saw the accident, gave testimony on the subject. She says that when she returned from the town they were all standing on the landing and a plank gave way and plaintiff’s leg went through. Her testimony was taken about two years, after the accident. She says that it was not in the' pavilion, but on the wharf; she remembered a pavilion, but could not remember whether in coming back to the boat she came through it or not, but she went over the place where plaintiff got hurt. Her testimony does not seem to be incredible. It rather creates the impression that there was no barricaded area; that every part of the wharf was open, and that the pavilion floor may be- regarded as part of the wharf structure. She heard no warning from the captain that the excursionists were to go around the pavilion to get on the street.

Mrs. Boudreaux, the plaintiff, says that on returning to the wharf for the purpose of re-embarking that she stopped in the pavilion to talk to some girls seated on a bench. Others were there, and there were no barricades. That the benches on which the girls were seated were inside the pavilion; that she was standing up talking to them when the plank on which she was standing broke through, causing her injury. Thart no warning was given to her on leaving' the boat to go around the pavilion.

Mrs. Legion, friend of the plaintiff, passenger on the boat, 'present, standing facing Mrs. Boudreaux when she got hurt, says that there were no barriers. That when she left the boat she walked through the pavilion and came back the same way. That Mrs. Boudreaux, in coming back on the wharf, stopped to talk to girls seated on benches inside the pavilion; others were there, and while talking to them the plank under her broke and she received the injury of which shé complained. That the space in which it happened was open, there was no barricade; that she heard no warning from the captain or anybody else when she disembarked to reach the street by going around the pavilion.

Earl Galatas, called and questioned by defendant, a resident of Madisonville and apparently without interest in the result of the suit:

“Q. Were you there when the plaintiff, Mrs. Boudreaux, met with this accident, etc.?
“A. I was sitting on the end of the bench looking toward the boat. I heard a lady holler and I looked around as this lady went through the floor,” etc.

He jumped and with others assisted in extricating her by prizing up a couple of planks.

The evidence shows that the bench on which Mr. Galatas was seated was inside the pavilion; therefore the pavilion must have been open; else, how did he come to be on the inside and seated with, others on the benches?

Further questioned:

“Q. The real passage from the boat to the landing ground on the wharf was not the pavilion?
“A. Either way they wanted to go, the wharf or .the landing the way they go. I think it is barricaded on the south end', the pavilion is barricaded, unless they had taken it down before I got there. It was about 10 minutes after the boat landed when I got there.
“Q. What was barricaded?
“A. The other end; all the passengers were off the boat when I got there.”

In saying, the other end, the witness evidently refers to one of the ends of the pavilion.

Manuel Prieto, a resident of Madison-ville apparently without interest, called and questioned by defendant,, says that hé was within five or six feet of plaintiff when she got hurt, sitting there on the bench, etc. He further says:

“Q. How do passengers from boats move off the wharf into town — do they have to go through the pavilion or not?
“A. There are two ways to get off. It 'was, open to the south to go on the wharf around the pavilion. The pavilion was barricaded, hut when I went there it was all open; had been torn doion,” etc.

The testimony of Messrs. Galatas and Prieto so corroborates the other witnesses from the city, counting the plaintiff, that we feef that there can be no reasonable doubt that there was no real barricade around the pavilion. It seems, necessary to conclude that it was open to the excursionists, residents of Madisonville, sharing with them the benches under .the overhead pavilion.

It is well to remark that these excursionists were school girls and their mothers. There were no men nor boys accompanying them. It is not to be supposed that these elderly ladies and school girls wbuld have neglected the instructions from, the captain to reach the street by going around the pavilion if they had heard any such instructions on leaving the boat. And it is so unlikely that they broke down barriers around the pavilion or got over or under a real barricade, that we do not feel that such a contention can have any merit. The area under the pavilion was open when the excursionists arrived and re-embarked, according to the testimony of Galatas and Prieto, residents of the town seated on the benches at the time the excursionists returned to the boat.

There is no averment in the answer of the town nor evidence to justify an inference that persons without authority or knowledge of the town officials tore down the barriers and opened up the lower part of the pavilion giving the excursionists access to the benches.

There is no evidence that the town officers were without fault for the existing condition; that it was not due to their neglect and carelessness that the dangerous situation existed!

A Mr. Albert (his. other name is not stated) witness for the defendant, resident of Madisonville, says that he was within three feet of the plaintiff, saw her when she got hurt, assisted Messrs. Galatas and Prieto in extricating her from the predicament she was in due to the plank breaking under her weight. He declares, that the pavilion was barricaded; he advised that it be done. He claimed to have been present when the passengers uisembarked and to have heard the captdin. warn them to go around the pavilion in going to the street; that plaintiff received her injury before going uptown. That she went uptown and came back to the boat showing no signs of injury, etc. If he advised that the pavilion be barricaded, it is not unlikely that he advised the proper officers of the town, which if true, indicates their previous notice of the dangerous, condition of the pavilion floor and the necessity of keeping people off of it. If he was within three feet of the plaintiff, saw her fall into the hole, and assisted in pulling her out of it, as he says, it seems not unlikely that he too was inside the pavilion. He does not say that he was inside, but he does not speak of breaking down any barrier or going over or under) in order to reach her.

R. J. Breedlove, captain of the boat, says that the pavilion was barricaded when the boat landed. That he saw the barricade and directed the passengers in a loud and audible voice as they disembarked to get into the street by going around the pavilion.

The -captain was not a witness to the accident, at least he does not speak of seeing it; yet, if plaintiff was hurt immediately upon leaving the boat, as stated by the witness Albert, and after the captain had made proclamation directing them to reach the street by going around the pavilion, it seems rather unlikely that the accident could have happened at that time without coming under his notice.

Captain Breedlove and the witness Albert are the only parties of the many who were present when the boat landed who testified to .the declaration of warning, and that the pavilion was. barricaded at the time. Their testimony as to the barricade must be regarded as disputed by five witnesses and of the 420 passengers. on the boat; not one, nor other officer nor member of the crew, supports them in the matter of the warning which the witness Albert and; himself says, was given.

Adam Heiser, a workman resident of the town, says he “helped repair the floor of the pavilion and helped barricade it, but he was not present at the accident and could not remember whether the barricading was before or after the accident. He did not examine the barricade after the accident.

Willie Heiser, also worked at repairing the floor and barricading the pavilion. He was not present at the accident, but remembered that the barricading was before the accident. He does not claim to have examined the place afterwards.

Mr. Oulliber, the mayor, says, it was barricaded at the time, but he was not present at the time of the accident nor immediately afterwards; therefore neither he nor the two Heisers knew the conditions existing at the time of the accident. And as heretofore stated, Mr. Stewart claims that he admitted to him after the accident that the wharf was dangerous, and, we have seen how, in referring to the wharf, it is not unlikely that he had reference to the floor of the pavilion.

The floor of the pavilion is shown to have been in need of repair and the officers of the town are shown to have been aware of the danger due to the floor of the pavilion, but they took no adequate steps to barricade it up so as to prevent people getting hurt as a result of getting into it.

We think it likely from the evidence that some pretence at barricading had been gone through with previous to the time in question, but the work was so inferior and insufficient that it was about the same as if nothing had been done to keep people from going into the pavilion and sitting on the benches. We find from the evidence that the lower floor of the pavilion was open, and that it was. part of the wharf structure, all of which was the property of the town.

We therefore find the town at fault, negligent, and careless for having left such a serious concealed danger open to people when they had a right to expect that it was safe.

In the case Mamie Collins v. City of New Orleans, 3 La. App. 299, a bridge inside the corporate limits had been barricaded, but so insecurely that it did not prevent a person in a hurry from going through the barrier with the result that he was injured. The court held that the city was responsible in damages.

In the case Fennimore v. City of New Orleans, 20 La. Ann. 124, the duty of the city to keep its wharf in sound condition for public use was considered, and the city held to be liable for not having discharged its duty.

In Cristadoro v. Von Behren’s Heirs, 119 La. 1025, 44 So. 852, 17 L. R. A. (N. S.) 1161, the wharf was privately owned. The court considering the duty of the owner said (we copy from the syllabus):

“The owner of a wharf which has collapsed while being put to the use for which it was intended, is responsible in damages to those who were legitimately on it at the time and were injured.
"R makes no difference that the person injured was on the wharf as a guest or visitor of the lessee of the wharf.”
“The owner of a building is answerable for the damage occasioned by its ruin, when this is caused by neglect to repair it, or when it is the result of a vice in its original construction.” Civil Code, art. 2322.

From Thompson on Negligence, vol. 5, subject Negligence of Municipal' Corporations, sec. 6069, p. 547, we quote:

‘•When there is a duty to erect and maintain a railing or barrier there is of course a corresponding duty to erect and maintain one that is sufficient and a municipality is liable for an injury received by a traveler through insufficiency of such barrier if it had notice of the defect.”

And from same author, vol. I, subject Injuries from Defects in Premises, sec. 1007, pp. 923 and 924:

“The same duty and corresponding liability attaches to the proprietors or lessees of public wharves and piers in case of injury through non-repair or other negligence to any person going thereon upon lawful business. On principle the owners of wharves are held to the same degree of- care which attaches to carriers of passengers,” etc.

From Ruling Case Law, vol. 28, subject Wharves, sec. 29, we copy the following:

“As a general rule the wharfinger or the proprietor of a wharf, dock; or pier is liable in damages to a person rightfully on or about the premises for an injury sustained by reason of an unsafe or defective condition negligently caused or permitted to exist. This duty extends to invitees., as for example persons going on a •vyharf to receive a consignment expected to arrive.”

The section continues, but we do not see that a further quotation is necessary to the case.

We have come to the conclusion that the captain of the Susquehanna, if he gave any notice to the excursionists while they were disembarking to walk around the pavilion in going to the street, it was not sufficient, and was, not heard by the plaintiff.

The plaintiff has established her case against the town of Madisonville with sufficient certainty.

The judgment appealed from is contrary to the law and the evidence, and must therefore be annulled, avoided, and set aside, and judgment rendered in favor of the plaintiff.

In regard to the amount, plaintiff’s claim is, in our opinion, greatly overstated and her demand largely excessive. We think $600 a sufficient amount on account of the damage sustained.

For these reasons, the judgment appealed from is annulled, avoided, and set aside, and it is now ordered, adjudged, and decreed that there be judgment in favor of plaintiff Elizabeth Shafer, wife of Sidney Boudreaux, and against the town of Madisonville, Louisiana, for $600,' with 5 per cent per annum interest thereon from May 27, 1927, until paid.

The plaintiff and appellant to pay half the cost of the lower court.

The town of Madisonville to pay the other half and the cost of appeal.

ON REHEARING

PER CURIAM.

The application for rehearing calls our attention to the fact that the judgment allows interest from the date of injury instead of from the date of judicial demand. It is therefore ordered that our former decree be amended by allowing interest from judicial demand, and as amended same is made final and the application for rehearing is refused.


author: CULPEPPER, J.

text:
    No. 3773
    Second Circuit (Second Division)
    ZION’S REST CONGREGATIONAL METHODIST CHURCH v. METHODIST EPISCOPAL CHURCH, SOUTH
    (November 18, 1931. Opinion and Decree.)
    (December 9, 1931. Rehearing Refused.)
    Pegues, and Pegues, .of Mansfield, attorneys for plaintiff, appellant.
    Parsons & Colvin, of Mansfieid, attorneys for defendant, appellee.
   CULPEPPER, J.

This is a suit for slander of title brought by H. P. Ott, W. D. Cates, and J. P. Ryan, as alleged trustees of and acting for Zion’s Rest Congregational Methodist Church against the Methodist Episcopal Church, South, wherein plaintiffs allege said Congregational Methodist Church -is the owner and is in physical possession of a three-acre lot of ground in section 11, township 10, range 11 west, in DeSoto parish, on which is a church building and cemetery, known as Zion’s Rest Church. The petition alleges that the defendant church is also claiming the ownership of said property under a pretended deed, which constitutes a slander of plaintiffs’ title. Defendant filed:

(A) Exception to citation, which was overruled by the court.

(B) Exception to want of capacity in plaintiffs to sue.

(C) Exception of no cause of action.

The last two named exceptions were referred to the merits by the court, whereupon defendant filed an exception of lack of possession in plaintiff to support an action for slander of title, coupled with an answer asserting title to be in defendant to the property, and reserving the right to have the latter exception tried prior to the trial of the case on the merits.

Upon motion of counsel for defendant on the day the case was called for trial, the issue on exception of lack of possession in plaintiffs was taken up, tried and sustained by the court, and accordingly there was judgment upon that issue alone dismissing plaintiffs’ suit. It was from such judgment that plaintiffs prosecute this appeal.

Due to the fact that the issues were narrowed down to the question of whether plaintiffs had possession of the property in dispute sufficient on which to base an action for slander of title, the case depends for its solution upon questions of fact.

Defendant’s counsel states in briefs filed that defendant has. answered asking that the other exceptions tendered by it be sustained. We do not find any such answer in the record.

The Congregational Methodist Church, which we shall hereafter refer to as the plaintiff, obtained a deed ' to the property from S. D. Bufkin by notarial act dated January 22, 1895, duly, of record. It is on this deed that plaintiff rests its title. The testimony shows, and it is admitted by defendant, that plaintiff went into actual physical possession of the property immediately upon the passage of said deed and continued to hold, occupy, and use said property until in June, 1924, holding religious services in a church building previously constructed upon the lot of land by some of the members of plaintiff church, presumably by consent of the former owner of the land. There was at the time a cemetery on the lot, which was and has since been used as a community burial ground.

Por several years prior to and during the year 1924, the pastor of this Congregational Methodist Church, plaintiff herein, was Reverend W. E. Anding. During the year named, Reverend Anding decided to make a change in his church affiliations from the Congregational Methodists to that of the Methodist Episcopal Church, South. Accordingly, he informed the members of the church he was then serving at Zion Rest of his purpose, and a discussion arose amongst the church membership as to the church as a body changing its affiliations also and becoming affiliated with the Methodist Episcopal Church, South, ¿long with their pastor. On the 11th day of May, 1924, while in regular business conference assembled, this question of organizing the membership of the Congregational Methodist Church at said Zion Rest into a Methodist Episcopal Church, South, was discussed, resulting in plans being made while in said conference for a canvass of the members looking to the contemplated change. After what was. considered ample time for the canvass, and after public announcement that the matter would be passed upon at the next monthly meeting, said next monthly meeting was held on June 8, 1924, in regular church conference. At this conference, the question of the change was regularly brought up and by a vote of the members present a resolution was adopted, without a dissenting vote, providing that the church change its affiliation from the Congregational Methodists to the Methodist Episcopal Church, South. It appearing from the records of the former church that it had-no regularly constituted trustees; three of its members, J. W. Blue, S. C. Mathews, and R. L. Bufkin, were selected as trustees for plaintiff church, and were thereupon “authorized by said church to perfect deed and deed same to the Southern Methodist Church, and announcements were made publicly to this effect.” The above is quoted from the copy of the minutes of .the conference. The minutes, further show that the pastor, Reverend Anding, was authorized to invite Reverend R. H. Wynn, presiding elder of the Methodist Episcopal Church, South, in that district, “.to be present at a convenient date for the purpose of organizing this church into . a Southern Methodist Church.”

On 26th of May, 1928, the three trustees, viz., J. W. Blue, S. C. Mathews., and R. L. Bufkin, executed for and on behalf of the Zion Rest Congregational Methodist Church, as trustees thereof, a formal deed by notarial act conveying the property in controversy unto the Methodist Episcopal Church, South, defendant herein. The deed recites that same is executed “by virtue of the authority of a resolution of the conference of said Zion Rest Methodist Church, held in said church on June 8, 1924, as per certified copy of the minutes attached hereto and made a part hereof. * * *” This deed recites:

“That the object and purpose of this transfer is to place into the care, keeping, custody, and ownership of the Southern Methodist Church, the said house as a place of worship, subject to Discipline, usage and ministerial appointments of said church.”

This deed, with copy of minutes referred to attached, was recorded in conveyance records of DeSoto parish on May 81, 1928. There was, however, another deed executed to this property, of date January 15, 1925, recorded January 19, 1925, by the purported heirs, of I. D. Bufkin to the Methodist Episcopal Church through1 said J. W. Blue, S. C. Mathews, and R. L. Bufkin, trustees. This I. D. Bufkin, then deceased, was the same I. D. Bufkin who had in 1895 deeded the property to the1 plaintiff church. The deed of 1925 by the heirs of I. D. Bufkin sets forth practically the same as the deed of 1928 as to the purposes for which the property is conveyed. Defendant relies. upon both of these two deeds of 1925 and 1928 as muniment of its alleged title to the property.

During the course of years following the execution of the I. D. Bufkin deed in 1895, the members of the Congregational Methodist Church, it seems, lost sight of the fact that such a deed had ever been executed, and had formed the opinion and belief that the church had no title deed to the property. And it was for this reason, it is also true that the trustees, appointed at the church conference on June 8, 1924, took a deed from the heirs of I. D. Lufkin instead of executing a deed from the plaintiff church to the defendant church. This false impression or mistaken belief existed upon the part of all the parties concerned. It was not until some time in 1927 that it was discovered that this old deed of 1895 really existed. In the meantime, from June 8, 1924, up until the time this discovery was made, the Congregational Methodist Church ceased to function, and in its place and stead the newly organized Methodist Episcopal Church, South, was given full possession, use, and control of the church house and property and held and carried on. its regular church worship and Sunday school in same. There were a few of the members, which had constituted the former church, not being willing to join in with the new church body, withdrew themselves, and, for a portion of this period of some two and a half or three years, from June, 1924, to some time in 1927, had no semblance of religious services except for a part of the time a Sunday school was. conducted at the home of one of them, Mrs. W. D. Cates. It is clear that the defendant church went into actual possession of the property in dispute on or soon after June 8, 1924, and held same unmolested, in good faith, thinking it had succeeded to the property as owner. Its deed from the heirs of I. D. ' Lufkin in January, 1925, appears to be with full warranty of title and valid on its face.

Apparently there was no effort to revive or reorganize a Congregational Methodist Church until in September, 1927, when an undetermined number of persons met at “Old Town Tabernacle,” several miles distant from Zion Rest Church. Styling themselves as the ‘‘Zion’s Rest Congregational Church,’’ they elected J. F. Ryan as deacon, H. F. Ott as steward, W. D. Cates as. church leader, and Mrs. W. D. Cates- as secretary. Shortly thereafter, Reverend A. G. Smith from, Texas was engaged as part time pastor and a committee was appointed to make provision for a place to hold meetings. In November following, the committee, co&posed of J. F. Ryan, R. C. Ryan, and H. F. Ott, appeared at a quarterly conference being held by the Methodist Episcopal Church, South, at Pelican, and requested permission to use the Zion’s Rest church building as a meeting place for said newly organized Congregational Church. The request was granted, and dates for holding meetings by the Congregational Church were fixed so as not to conflict with the use by the Methodist Episcopal Church, South’s meetings. It was under these circumstances that the plaintiff began to use the property, and by virtue of which plaintiff now claims, to be in possession of the property as owner. The facts and circumstances surrounding the obtaining of the possession or semblance of possession, and the character of such possession subsequent, by plaintiff, did not, in the opinion of the lower court, and do not in our opinion, constitute such as to form the basis of a suit against defendant for slander of title. Both plaintiff and defendant congregations held their meetings in said Zion Rest church building after the permission was. granted by defendant to plaintiff, and the use which plaintiff made of the property thereafter was merely by suffrance or permission of defendant, and not as- owner. Such possession is not the possession contemplated by law as will warrant an action for slander of title. Defendant’s possession was open, public, and notorious, as owner ever since 1924 up to the filing of this suit. As to the validity of the titles exhibited by both parties, we are not called upon here to decide. Suffice it to say that possession was in defendant as owner under its title deeds as shown. While plaintiff claimed possession under the most ancient deed, the Congregational Methodist Church, which plaintiff claims to be its predecessor, surrendered its former possession to defendant in 1924, and the only possession plaintiff now hfs is as tenant by permission to use the property, and not as owner.

“The action in ‘jactitation’ of title is governed by the rules prescribed by the Code of Practice, under the title, ‘Possessory Actions.’ ” Bell v. Saunders, 139 La. 1037, 72 So. 727.

“The possessors entitled to bring these (Possessory) actions are those who possess as owners.” Code Prac. art. 47.

“Those who possess in the name of another, such as tenants, are not entitled to the possessory action.” Code Prac. art. 48.

The object of the action of jactitation or slander of title is to protect ownership of land from disturbance by slander; but it never lies against a possessor with title. The possessory and petitory actions regulated by positive law, give a party injured by adverse possession, every necessary remedy. Copley v. Hasson, 4 La. Ann. 531.

“Action of slander of title is founded exclusively on possession and is a form of possessory action.” Miller v. Albert Hanson Lbr. Co., 134 La. 225, 63 So. 883, 884; Dalton v. Wickliffe, 35 La. Ann. 355.

An attempt was made by plaintiff to prove that at a meeting held in the Zion’s Rest church building by plaintiff church, some time subsequent to the time plaintiff was permitted by defendant to use the building, that title to the property was admitted by defendant to be in plaintiff and upon the request then made by defendant plaintiff in turn granted defendant permission to continue to hold services in the building. In this, however, the trial judge evidently found that plaintiff failed in the attempted proof; and we concur with the trial judge on this feature of the case.

As before stated, possession, and the character of same, is a question of fact. The trial judge, who heard the witness testify, resolved this question in favor of the defendant, and in that we find no error. The judgment is therefore affirmed.


text:
    No. 3837
    Second Circuit (Second Division)
    BOLINGER v. MURRAY ET AL.
    (November 18, 1931. Opinion and Decree.)

      Wallace & Hardeman, of Benton, and W. H. Scheen, of Shreveport, attorneys for plaintiff, appellee.
    Cook & Cook, of Shreveport, attorneys for defendants, appellants.
   CULPEPPER, J.

This is a suit to abate an alleged nuisance created by defendants in the erection of a levee about one thousand feet in length along the south side of a graveled public highway which runs east and west on the section line dividing plaintiff’s lands on the north from defendants’ on the south. Plaintiff alleges that the natural drainage is from north to south over his lands onto and across the lands of defendant; that the erection of the levee complained of impedes the natural flow of the water, and causes it to become impounded during heavy rains upon plaintiff’s land to his detriment and injury. He alleges that on or about April 18 or 19, 1929, rain water running across his land southward to the land of defendants was held by the levee thrown up and thereby prevented from passing over its natural course, the levee holding it on plaintiff’s land; that the water thus impeded was backed up and overflowed about seventy acres of plaintiff’s land and destroyed his young cotton crop, which was being cultivated on the land, also deposited floating logs and brush upon the land. The expense of reconditioning the land and replanting plaintiff alleges will, together with the loss to crop due to delay, amount to $1,000. It is also alleged that the acts of defendants in erecting the levee were malicious, thereby entitling plaintiff to recover punitive damages in the sum of $500, together with $250 as attorney’s fees. Plaintiff prays for judgment ordering the removal of the levee and for a moneyed judgment for $1,750.

Defendants admitted the ownership of the respective lands, their relative positions, and the erection by them of the levee complained of, but denied that the natural drainage across plaintiff’s lands was toward or across that of defendants, although they admit there is a low place, known as Bull Bayou, or Slough, situated partly on their property and partly on plaintiff’s. Defendants specially deny that the erection of the levee or embankment by them obstructed the natural drainage as alleged, even if the court should find that a natuyal drainage existed as alleged. They allege that the natural drainage as originally existed has been completely changed by the construction by the North Bossier .Levee Board qf a canal on the east of the lands of plaintiff and defendants and another to the west. The police jury of Bossier parish, it is alleged, constructed a high grade for the gravel road on the section line between the respective properties which also im- ' peded the natural flow. Defendants further aver that plaintiff himself constructed drainage ditches over his lands extending out from Still House Bayou on his east across his lands towards Bull Slough, through which drainage ditches water can and does back out of and is diverted from Still House Bayou over and across plaintiff’s land into the basin of Bull Slough during stages of high water, thence finding its way across to defendants1’ lands; that as a result of said changes in the drainage system of the vicinity in question all of the water from plaintiff’s lands is concentrated into the drainage ditch excavated by the police jury along the north side of the road, thence it flows to the opening in said road at the bridge where the road crosses Bull Slough and there flows through this opening in a concentrated volume, out, upon and over defendants’ land from one point, “thereby tremendously increasing the burden, if any there was, which is denied, of the defendants.” Defendants’ nineteenth paragraph of their answer reads as follows:

“They show that these canals, drainage, ditches, and the road diverted all of the water on the land of defendants at a point which would not have been the natural destination of the said waters, and increased the volume of the water which would have flowed naturally into, or would have reached any portion of defendants’ adjacent estate.”

Defendants further aver that certain stagnant water which rested on plaintiff’s land was drained through these ditches onto defendants’ land, and still further increased their burden. In paragraph five defendants John E. and J. W. Murray admit erecting the levee complained of, and state their reasons for doing so as follows:

“* * * f0r the purpose of protécting it (their property) against extraordinary flow of water caused by building the road, and by the changes made in the natural drainage by the plaintiff * * *; they deny that this dammed or stopped up the natural drainage * * * or that it forces the water back over the land of petitioner.”

Defendants denied liability for the damages sued for; also set up reconventional demand for $2,500. The grounds alleged on for its recovery are that in 1924 one J. B. Ladd, a tenant on plaintiff’s property, owed defendants $2,500 and plaintiff agreed to collect this sum from Ladd for defendants, and that plaintiff collected this amount but never accounted to defendants for same.

In a well considered opinion the learned triai judge rendered judgment in favor of the plaintiff, and against defendants, ordering them to remove the levee complained of within ten days from the time the judgment became final and in default thereof that the same be removed at the cost of defendants. The demands of plaintiff were otherwise rejected, as were also defendants’ reconventional demands.

From this judgment defendants appeal.

Plaintiff, J. C. Bolinger, owned the E% of SE% of Sec. 24, T. 2'S N. R. 14 W. and Wy2 of SEy4 of Sec. 19, T. 23 N. R. 13 W., in Bossier parish. Defendants, J. E. and J. W. Murray, owned adjacent to plaintiff on the south section 25, T. 23, N. R. 14 and of W% of Section 30, T. 23 N. R. 13 W. Both plaintiff and defendants were at the time of filing this suit, and had been for some years prior, cultivating their respective lands, or a portion thereof. These lands had formerly been swamp lands subject to overflow and non-cultivatable except for some ridges or high places here and there about over them. To the east of these swamp lands are the hills and to the west flows Red River. A natural drain known as Still House Bayou comes from the north and courses generally southward through the bottoms near the hills on the east. This bayou passes through the northeastern and eastern portions of plaintiff’s land and emerges at the southeast corner where it crosses „the public road, over which is a bridge-. The bayou thence runs on southward through the extreme east portion of the lands of defendants. Along or near the west bank of this bayou is a ridge of slight elevation, and just west of the ridge is a depression which many years ago constituted the hed of Phelps lake, but which has ceased to exist as a lake due to natural deposits and the system of drainage instituted by the' North and South Bossier Levee Boards. The lands of both plaintiff and defendants, especially those portions directly connected with this controversy, lie within this old lake bed. The lowest point of this lake bed from north to south is what is known as Bull Bayou, or Slough. According to the map of plaintiff’s engineers, Bull Slough, as we shall hereafter call it, has a well defined course, which begins with a wide or beaver tailed spread up in sections 14 and 23, and contracts to a narrower channel running in a southeasterly direction through plaintiff’s E% of SE1/^ of 'section 24. It then crosses the public road near the southeast corner of the section, and runs southward through defendants’ E% o.f E% of section 25 and empties into the ' extension of Still House Bayou to the south. According to map of defendants’ engineers, however, this slough has no defined channel; in fact, it is not even shown on this map. The testimony is conflicting as to whether or not there is a well defined channel to this slough, such as to make its banks visible. The preponderance of the testimony, however, as found by the trial judge, and we concur in his findings, is that, regardless of whether Bull Slough does or does not have visible banks, it constitutes the natural drainagé running from north to south through the old lake bed, across plaintiff’s lands over that of defendants. This natural drainage, he found, known as Bull Slough, crosses the public road at the bridge the police jury had built for the purpose of permitting drainage from plaintiff’s lands, as well as other lands north of the road, across the road and on to defendants’ and other lands to the south. It is perfectly obvious from the testimony in the record that the natural drainage in that territory is from north to south and that the same is true as restricted to the particular estates of plaintiff and defendants here involved. This is especially true during high water from heavy rainfall.

There is a small area a few feet north of the bridge, along the course of the depression of Bull Slough, which is lower than the adjacent lands of plaintiff to the north and defendants to the south, upon which no doubt during slight rainfall water accumulates and remains. Befo.re these canals were dug along the north and south sides of the public road some water during normal rainfall probably made its way from defendants’ land immediately to the south and ran northward into this low area, but it is equally certain that when this low area filled up during heavy rains, this water, along with all other waters from the north, passed off by overflow southward across defendants’ lands. Of course, small quantities would remain in this low area after the water subsided, and become stagnant. Defendants, however, were relieved of the burden of receiving this stagnant water by the north roadside ditch which drained it off to the east into Still House Bayou. Hence we see no cause for defendants to complain of any burden imposed on their lands on account of having tq receive stagnant water from the land of plaintiff. We also fail to see the force of defendants’ argument that, by the creation of the system of drainage by the levee board, by. the building of the public road, and by the drain ditches plaintiff put in, the whole drainage of the vicinity has become so changed from its natural course as to create any greater burden upon defendants than their estate originally had. As a matter of fact defendants have been greatly benefited by tbe levee board drainage. It is shown that by the digging of Poston Canal from north to south on the west and dredging Still House Bayou on the east, defendants’ lands have, along with plaintiff’s, been converted from what was formerly a lake, into a rich, cultivated area.

Just to the west of Bull Slough depression, and between it and Poston Canal, is what is called Ash Ridge. It is the water coming from the north and collected between this ridge and the ridge to the east of Bull Sough, which flows southward, along Bull Slough depression, and along the old lake bed depression. Defendants’ contention is that this water is caused to be diverted from its original spreading flow down (they do not, however, admit that it is downward) this lake bed depression when it reaches the four or five foot grade thrown up by the police jury for the road bed, and there enters the roadside ditch which conducts it to the opening under the bridge at Bull Slough. They urge that, thus concentrated, it runs through this opening and onto their land at one point instead of being permitted by the natural drainage to flow fan-like all across their lands. Defendants contend that the water thus concentrated at that one point increased the burden of their lands. We cannot agree that this is true, since these waters had to flow under natural drainage across defendants’ lands. Their lands had always been burdened with, not only the water which now flows over them, but they were burdened with a much larger quantity before the levee board constructed Poston Canal and dredged out Still House Bayou, and the police jury dug the drainage ditches along the road. Mr. J. E. Murray, one of the defendants, testifying, was ásked if he would be better off without this present drainage than he was before it was put in, replied, “Oh no. The land was not subject to cultivation until the drainage was put in.”

Mr. J. W. Murray, the other defendant, testified that the water in going through the opening in the road at the bridge would, during high water, have a tendency to cut their lands up. When asked, however, if the water had ever cut the land up he .admitted that it never had. It therefore appears that no damage has yet been done to defendants’ lands by this volume of water passing through this one point at the bridge. It would be reasonable to conclude that if it should cut out a channel it would amount to vastly less damage to the land as a whole and growing crops on it than it would for the water to spread out over and overflow the land as a whole. Besides, the plaintiff is not responsible for the concentration of the water at the bridge. This was caused by the police jury in building the road.

The Supreme Court in Petite Anse Coteau Drainage District v. Youngsville Drainage District, 146 La. 161, 83 So. 445, 446, states that the accepted and well settled doctrine regarding the concentration of waters flowing from the superior estate onto the lower estate is set forth in Ludeling v. Stubbs, 34 La. Ann. 935, as follows:

“The owner of the lower lands of two adjacent estates can do no act which would impede the natural flow of waters on his lands, from those of the higher estate. The owner of the superior estate may make all drainage works which are necessary to the proper cultivation and to the agricultural development of his estate. To that end he may cut ditches and canals by which the' waters running on his estate may be'concentrated, and their flow increased beyond the slow process by which they would ultimately reach the same destination.
“But the owner of the superior estate cannot improve his lands to the injury of his neighbor, and thus he will not be allowed to cut ditches or canals, or do other drainage works by which the waters running on his lands will be diverted from their natural flow, and concentrated so as to flow on the lower lands of the adjacent estate at a point which would not be their natural destination * * Citing Civil Code, art. 660, and numerous decisions.

The essentials of the rule relative to the making of ditches and canals on the upper estate, and the concentration of the waters so as to pass out at some one point upon the lower estate, are that it shall be done in the interest of proper cultivation and the agricultural development of the estate. The further and additional requirement is that the waters be not diverted from their natural flow and concentrated so as to flow over the lower lands of the adjacent estate at a point which would not be their natural destination. Neither plaintiff nor the levee board nor the police jury, as we view this case, and as found by the lower court, have done anything by which defendants’ lands have been injured. On the contrary, their lands have been greatly benefited. Nor have these concentrated waters been diverted from their natural flow or prevented from reaching their ultimate , natural destination. It is conceded by all parties that what has been done was in the interest of the agricultural development of all these lands. It is true that the ditches along the roadside were put there by the Police Jury to drain the road bed, yet they serve the purpose of draining these lands as well. The same can be said of the cut in the roadbed where the bridge is built. While these roadside ditches have a slight fall, they fall slightly toward Still House Bayou and away from Bull Slough. Defendants contend that water backs up these ditches during high water onto the land. They also contend that the water backs out from this bayou up the drainage ditches dug by plaintiff further up the bayou, and this back water, .after reaching a certain stage, flows over onto plaintiff’s lands above increasing the volume of water on his lands to be precipitated down upon defendants at the one small outlet at Bull Slough bridge. These three drainage ditches cut by plaintiff extend from Still House Bayou up the eastern slope of the ridge to its crest where the ditch is shallow. The water is thus drained from the ridge crest east into the bayou, and the ditches from the crest of the ridge westward or toward Bull Slough drain the west slope into the slough. It is true that defendants introduced testimony of their engineers going to show differently. The trial judge who heard the testimony states:

“Defendants contend that their burden has been so increased by the construction of the canals and the highway that they are relieved from any right that plaintiff might have had. They claim also that the drainage ditches dug by plaintiff on his land increased the burden because they claim that water from Still House Bayou backs out on the land of plaintiff and would run down on their land but for the levee, but from all the evidence in the case I do not find this to be a fact.”

The court in its able opinion further states:

“They further claim that the water from Still House Bayou backs out in the road ditches and would come upon their land but for the levee. From all the evidence in the case it is my opinion that’ if the levee erected by defendants was cut at the opening in the highway at Bull Slough, that this would take care of all the rain water that would come from the north, and that if Red River gets high enough to back water through Still House Bayou and the road ditches and drainage ditches dug by the plaintiff, that it will already have covered the lands of the defendants by backing up directly from the South.”

We think the learned trial judge in his very able opinion has correctly solved these rather difficult questions, both from the standpoint of the facts and the law applicable, and his judgment-is accordingly affirmed.


author: DREW, J.

text:
    No. 3932
    Second Circuit
    SOADY BUILDING CO., LTD., v. COLLINS ET AL. (AMERICAN NATIONAL BANK, Intervener)
    (November 18, 1931. Opinion and Decree.)
    (December 9, 1931. Rehearing Refused.)
    (January 4, 1932. Writ of Certiorari and Review Refused by Supreme Court.)
    Dickson & Denny, of Shreveport, attorneys for plaintiff, appellant.
    Thatcher, Browne, Porteous & Myers, of Shreveport, attorneys for defendants, intervener, appellee.
   DREW, J.

Plaintiff sued for $2,100, alleging that it had leased to the defendants a certain building on Market street in the city of Shreveport to be used as a hotel, as shown by the written lease contract attached to the petition; and that defendants were in arrears with the rent to the amount of $2,100. It further alleged that it-had a lessor’s lien and privilege on the fixtures and furniture in said building; prayed for a writ of provisional seizure, and for judgment recognizing its lessor’s lien and privilege.

Defendants answered admitting the lease, as alleged, denied they owed the full amount sued for, and alleged that they were only indebted unto plaintiff in the sum of $1,467.88, which they admit. The American National Bank intervened in the suit, alleging that defendants were indebted unto it in the sum of $3,100, as evidenced by note and chattel mortgage against the fixtures and furniture located in said building leased from plaintiff by defendants; that its chattel mortgage was executed and recorded prior to the time the lease contract was executed between plaintiff and defendants, and therefore its chattel mortgage primed the lien held by plaintiff as lessor. It prayed for judgment in .the amount of its chattel mortgage note and that after a sale of the fixtures and furnishings of said building without appraisement, in conformity with the stipulations of the chattel mortgage, that it he paid by preference and priority over all other creditors, including the lessor.

Plaintiff, in answer to the intervention, denied that the chattel mortgage primed the lessor’s claim, and alleged that* the lease and mortgage were prepared at the same time, and that a lessor’s lien is superior to the lien of the chattel mortgage. In the alternative, it alleged that should the court hold that the chattel mortgage was superior to the lessor’s lien, by virtue of having been executed and recorded before the execution of the lease, then and in that event that the court should hold that the intervener conspired with the defendants, without the knowledge or consent of plaintiff, to deprive it of its superior lien and privilege. That intervener’s action amounted to a tort, and plaintiff should recover from intervener the amount of damage caused thereby, which it alleges to be the amount of rent due, to-wit, $2,100.

After trial in the lower court, there was judgment for plaintiff against defendants in the amount of $1,971.52, with five per cent per annum interest thereon from judicial demand until paid, maintaining the provisional seizure of the fixtures and furniture, and recognizing plaintiff’s lessor’s lien and privilege thereon, subject, however, to the rights of intervener; also judgment for intervener in the sum of $750, with interest at the rate of eight per cent per annum from August 1, 1925, until paid, and ten per cent attorney’s fees on principal and interest, recognizing the lien and privilege under its chattel mortgage; ordering the property seized to be sold according to law, add that intervener be paid out of .the proceeds of said sale the amount of $750, with interest and attorney’s fees; the balance, if any, to be paid to plaintiff.

The judgment is silent as to the alternative plea of plaintiff for damages for .the alleged tort of intervener. Plaintiff appealed only from that part of the judgment which sustained intervener’s claim. Deféndants have not appealed, neither has intervener appealed nor answered the appeal. Therefore, the only question before this court is the rank of the lessor’s judgment for $1,971.52, and the judgment of intervener for $750. The evidence offered on trial of the case clearly shows that the chattel mortgage was executed by defendants to intervener, and placed of record prior to the execution of the lease from plaintiff to defendants- The lower judge so held, and we think his finding is correct.

Intervener would not loan defendants the money represented by the chattel mortgage until its attorney had cleared the record of all judgments, and until the taxes were paid and the old lease to McGinty canceled, and then did not advance him the money until the mortgage was recorded and a copy furnished it. All of this was done before the actual purchase of the property set out in said mortgage. The money represented on said chattel mortgage was used by defendants to purchase the fixtures and furniture later on in the same day. The fact that the property mortgaged was not owned by defendants at the time they executed the mortgage is of no moment, as the mortgage attached as soon as the property was acquired. The sole purpose of executing the mortgage was to acqiuire money to pay for the fixtures and furnishings, the price of which had been agreed on by the then owner of the property. The law is well settled that, if the chattel mortgage is executed and recorded prior to the execution of the lease, the mortgage will he held to be a superior lien to the lessor’s lien.

Plaintiff further urges that the mortgage is null and void for want of sufficient description of the property. This contention is not well founded. The property is described as so many chairs^ so many heaters, etc., all located in the Boise Hotel, 619% Market street, Shreveport, La., and there is no dispute that the property described in the mortgage is not the property, the identical property, seized by plaintiff. It is not shown that the prop-' erty could have been described in any other way, and we think the description is sufficient. We find no error in the júdg-' ment of the lower court.

It is therefore ordered, adjudged, and. decreed that the judgment of the lower court be affirmed; all costs of appeal to be paid by plaintiff.


text:
    No. 3973
    Second Circuit (Second Division)
    HARRIS v. LOUISIANA OIL REFG. CORP.
    (November 18, 1931. Opinion and Decree.)
    (December 9, 1931. Rehearing Refused.)
    George Thurber, of Shreveport, attorney for plaintiff, appellant.
    Barnette & Roberts, of Shreveport, attorneys for defendant, appellee.
   CULPEPPER, J.

Plaintiff brought this suit under the Employers’ Liability Act (Act No. 20 of 1914, as amended) to recover compensation in the amount of 32% per centum of the weekly wages of hex-husband for 300 weeks, which she alleges were $47.10 per week at the time of his death. It is alleged that plaintiff’s husband, Oliver Harris, was an employee of defendant at the time of his death, which occurred on November 1, 1929, and had been employed since August the first previous; that the duties he was to perform consisted in cleaning and repairing storage tanks belonging to defendant, at such places and at such times as he was ordered; that while engaged in cleaning a tank for his employer in the town of Vivian, La., working on the inside of the tank, he was overcome by gas fumes in the tank and died from asphyxiation.

Defendant denied liability on the ground and for the alleged reason that plaintiff’s husband was not at the time of his death, and had never been, an employee of defendant, as contemplated under the Employers’ Liability Law, but alleges that said Harris was an independent contractor doing contract work for defendant.

Upon trial of the case in the lower court, there was judgment for the defendant, and plaintiff has appealed.

The sole issue involved therefore is whether Oliver Harris was an employee or an independent contractor, as defined in the Employers’ Liability Law. The facts as disclosed by the testimony are substantially as follows:

Defendant corporation owned storage tanks at various towns and places in Shreveport and other towns in the territory in which it operated. These tanks were used in which to store large quantities of gasoline to be distributed or dispensed as the business required. These tanks would in the course of time become foul from sediment and need cleaning. Sometimes they would spring leaks, which it became necessary to repair. For some months before Mr. Harris’ death he had been going from place to place cleaning and repairing these tanks for defendant. In each instance when requested, by defendant, Mr. Harris would go to the town or place where one or more tanks would need cleaning or repairing, look over and examine the tanks, and would then submit a price for which he would do the work. If satisfactory, defendant would accept, the offer. Under the agreement Harris would furnish all of the machinery, tools, labor, and other equipment with which to do the work. Mr. Berry, who says he contracted with Mr. Harris for the particular job on which- Harris- lost his life, testified that the price agreed upon was to cover “* * * all of the construction and tools .and so forth, that were necessary to do the work, and was to cover any expenses that Mr. Harris might see fit to incur up there (meaning at Vivian) in order to complete the job. He had to pay his laborers, whatever labor he had and also included his profits.”

‘‘Q. And the use of his equipment?
"A. Yes sir.”

Mr. Harris furnished his own transportation to and from the places where the work was done. As shown by the testimony of Mrs. Harris,' plaintiff, who accompanied her husband on most of these trips, Mr. Harris sometimes employed help and -at other times did all the work- himself. He always did the work on the inside of the tanks himself. His helpers usually stayed on the outside to assist him in anything he might call for or need from the outside. While on the job in which he lost his life he had a negro helper. He paid for all of his helpers.

In doing this work Mr. Harris had a portable steam boiler which forced live steam into the tank, -thus cutting out and removing the gas fumes-. Some-times-,- however, he would run water into the tanks in the place of live steam. He kept this process up for 24 hours, when he, would go in the tank, using a gas mask for protection, and use steel brushes or brooms with which to sweep down and clean the tank. He would stay in the tank only thirty minutes at a time, come out for aw-hile, and then return again. Mrs. Harris states it generally took her husband about three hours to clean one tank, depending on its size and condition of cleanliness. On the occasion when he lost his life, Mri Harris was on the inside of the tank cleaning it and was- overcome by gas fumes and died before he could be rescued.

Referring again to Mr. Berry’s testimony, he says that in contracting with Mr. Harris to perform this particular job, there was nothing said as to whether Harris was to do the work himself, and nothing said as to whether Harris was to employ any labor to help him; that Mr. Harris was considered as the contractor; that he knew the requirements of the company about cleaning tanks and that “it was up to him to do the work himself or to hire it done”; that after Mr. Harris had gone to Vivian and looked at the two tanks to be cleaned, he returned and made a price of $65 for each tank, which was agreed to.

In each instance when Mr. Harris would complete a job and notify the company, the company’s inspector was sent to the place to examine the work and, if found satisfactory, payment of the price agreed upon would be made. Mr. Harris’ name was never carried on the pay rolls of defendant corporation. Bills or statements were made out by Harris and presented to the corporation for the amount previously agreed upon for that particular job.

The letterhead used by Mr. Harris indicates that he held himself out a contractor. It is as follows:

“O. H. Harris
“General Contractor
“Shreveport, La.
“Specializing in Portable Steam
“Safety First System Used on
“Tank Cleaning Gas Tanks
and Repairing”

The following is copy of one of the bills made out by Mr. Harris to defendant:

“To Louisiana Oil Ref. Corp.
“In account with O. H. Harris
“Invoice on Three Tanks at Smackover, Ark. Three tanks at Smackover, Ark. have been cleaned as per contract. Aprxm. Five barrels of corode and rust was removed from these tanks.
(Contract for same) Two Hundred and Eighteen Dollars $218.00.
“O. K.
“Agent B. E. Liman
“Smackover, Ark.”

The work undertaken by Mr. Harris was for a completed job or result, as a unit or a whole, and for a stipulated consideration. It was under the control of defendant as to the results of the work only, but not as to the means by which the results were accomplished.

Act No. 85 of 1926, which is an amendment ' to the Employers’ Liability Act, defines an “employee,” as well as an “independent contractor”; the pertinent portion of the act being as follows:

“A person rendering service for another in any of the trades, businesses or occupations covered by this act (other than as an independent contractor, which is expressly excluded hereunder) is presumed to be an employee under this Act. The term ‘independent contractor’, shall be considered to mean, for the purpose of this act, any person who renders service, other than manual labor, for a specified recompense for a specified result either as a unit or a whole, under the control of his principal as to results of his work only, and not as to the means by which such result is accomplished.” Page 111, sec. 8, subsec. 8.

It is clear, therefore, we think, that the manner in which the deceased Harris performed the services for' defendant constituted him an independent contractor. It is true, Mr. Harris, performed the bulk of the manual labor himself, but he was not employed specifically to do this manual labor himself. He was contracted with to accomplish a certain specified result as a whole, for a specified price for the whole, the means being left entirely up to him. He in fact had full charge of, and accomplished the results in his own way. Defendant gave him no instructions, nor was he in any way directed or controlled. Defendant had nothing to do with the labor, tools, and implements to be used. It was only the results in which defendant was interested. Defendant’s only prerogative was to inspect and approve the finished work, and pay for same. This has all the characteristics of that of a contract by an independent contractor. The fact that the contractor himself did most of the work was merely incidental. There was nothing to prohibit him from doing the work if he so chose, and the fact that he did so does not constitute him a mere employee. Clements v. Luby Oil Co., 170 La. 910, 129 So. 526.

In Dick v. Gravel Logging Co., 152 La 993, 95 So. 99, the court says:

“It is the right to interfere that establishes. the difference between a mere servant and an independent contractor.”

The evidence in the present case discloses that defendant neither reserved the right in the contract with Oliver Harris, to interfere, nor did defendant actually interfere in, or have anything to do with the work while it was in progress.

We have carefully examined the authorities cited by plaintiff’s counsel, but they do not, we think, support plaintiff’s contention, and, under the most liberal construction of the statute, we are unable to reach the conclusion that Oliver Harris was an employee of the defendant corporation.

For the reasons assigned the judgment of the lower court is affirmed.