author: STEPHENS, J.

text:
    No. 4064
    Second Circuit (Second Division)
    BREWSTER v. SHREVEPORT BRASS WORKS, INC., ET AL.
    (May 4, 1932. Opinion and Decree.)

      Pugh, Grimmet & Boatner, of Shreveport, attorneys for plaintiff, appellant.
    Blanchard, Goldstein, Walker & O’Quinn, of Shreveport, attorneys for appellant Shreveport Brass Works, Inc.
    Herold, Cousin & Herold, of Shreveport, attorneys for appellee Chase Companies, Inc.
   STEPHENS, J.

In November, 1922, the plaintiff, H. C. Brewster, purchased from the defendant, the Shreveport Brass Works, Incorporated, a retail dealer, certain brass pipe and brass pipe fittings for use in the water system of the Jefferson Hotel building, which he was constructing in the city of Shreveport, La.

While the fittings were being installed in February, 1923, it was discovered that some of them were defective. ' The defendant replaced the defective fittings with others which proved sound and satisfactory, and at that time nothing was said with reference to the cost of labor incurred thereby, which was paid by plaintiff.

The brass pipe was installed soon after its purchase, throughout the entire hotel, and gave satisfaction on the first, second, and third floors of the building; but, about five years after its installation, the pipe in the hot water system above the ceiling of the fourth floor developed slight leaks which necessitated its removal, and replacement with other pipe.

This suit was instituted on March 9, 1928, for the purpose of recovering $324.60, the cost of labor in replacing the defective fittings with sound ones, and $815.13, the cost -of procuring and installing new pipe in the place of that which it was necessary to remove.

It is alleged by plaintiff that the fittings were sold for a specific purpose, and that the defendant warranted that they would serve that purpose; that their admitted failure to do so constituted a breach of defendant’s warranty which was not fully discharged by furnishing sound fittings, but -that plaintiff should recover the amount expended for labor in replacing the defective ones.

It is further alleged that the defendant warranted that the pipe sold would neither leak, rust, nor corrode, and that water, clean and uncolored by sediment, and with full volume, would flow through said pipe, but that conditions developed which constituted a breach of defendant’s warranties in all of these respects, due to defects in the material and workmanship which entered into the manufacture of said pipe, and to the incorrect proportions of copper and zinc in its composition, which rendered it unfit for use in the city of Shreveport where the water was highly corrosive.

The plaintiff prayed for judgment for the sums above stated.

The defendant answered, averring that its obligation to the plaintiff in regard to the brass fittings was fully discharged by its having replaced those found defective; and denying that the brass pipe was defective in any particular. It further averred that the pipe was purchased by it from the Chase Brass & Copper Company, Incorporated, which said company warranted it free from defects; and it caused said company to be called in warranty.

The warrantor answered and averred that the pipe sold by it to the defendant was free from defects; but denied any obligation of warranty.

After the case was tried and submitted in the district court, a plea of prescription of one year was filed by the defendant. Judgment was rendered sustaining the plea of prescription as to the claim of $324.60 for cost of labor in replacing the defective fittings, and non-suiting plaintiff’s demand of $815.13 for damages for breach of warranty in the sale of the pipe. Both the plaintiff and the defendant appealed from said judgment.

The plea of prescription of one year is founded on the proposition that plaintiff’s action is one in redhibition, or reduction of the price; and, as this suit was instituted more than four years after the sale, the discovery of the defect in the fittings, and their replacement, it is subject to the limitations provided by articles 2534 and 2546 of the Civil Code:

Article 2534:

“The redhibitory action must be instituted within a year, at the farthest, commencing from the date of the sale.
“This limitation does not apply where the seller had knowledge of the vice and neglected to declare it to the purchaser.”

Article 2546:

“In this case, the action for redhibition 1 may be commenced at any time, provided a year has not elapsed since the discovery of the vice.”

The form of action governs the matters of prescription. Martin v. Texas Company, 150 La. 556, 90 So. 922; Sims v. New Orleans Ry. & Light Co., 134 La. 898, 64 So. 823. This case is certainly not presented in the form of a redhibitory action, nor one quanti minoris, but appears to be in all particulars precisely what the counsel for the plaintiff designate it — an action for the recovery of damages for a breach of warranty.

The Supreme Court, however, has held in George v. Shreveport Cotton Oil Company, 114 La. 498, 38 So. 432, 434, that an action of the character here considered is in the nature of an action quanti minoris, and is governed by the conditions, rules, and limitations of such actions.

The cited case, as the present case, was an action for damages for breach of warranty. The court said:

“Plaintiff’s, action is not a redhibitory action. It is an action quanti minoris, claim'ing damages under the state of facts declared upon.”

In the same case it is further stated:

“A claim for damages may well be em- . bodied by a plaintiff in his action for a reduction of the price. He may fail in that particular feature of his demand by reason of the special facts of the case, but the action would none the less be still an action quanti minoris, though it would be one with additional factors embraced in it, which would affect the question of prescription, and the extent of the relief which should be granted. Paraphrasing what Laurent says, speaking of an action ‘reeursoire’ (volume 24, sec. 303), the demand, being born of the action in warranty for the vices of the thing sold, proceeding from the same cause, and subjected for its justification to the same rules, is necessarily controlled by the same conditions in its exercise, and cannot claim a greater limit for its duration than it does.”

On this issue, the plaintiff cites Henderson v. Leona Rice Milling Co., 160 La. 597, 107 So. 459, 461, as an action for damages for breach of a contract of sale and an active violation of the covenant of warranty, in which the Supreme Court held that articles 2534 and 2546 were not applicable. The ruling in that case is not pertinent here, as the action was commenced well within a year of the discovery of the defect. We Quote from the opinion:

“This suit was brought well within the year following the discovery that the rice plaintiff received was not pure Honduras rice.”

The plea of prescription, we think, was properly sustained by the trial court, and plaintiff’s claim growing out of the sale of the fittings thereby correctly disposed of.

With reference to the sale of the pipe, the trial judge held that the record did not support the plaintiff’s allegations of express warranty. A careful study of the evidence on this question has convinced us of the correctness of that ruling.

The plaintiff advances one other theory for recovery, and that is an implied warranty.

Whatever may be the form or character of the action (the question of express warranty being eliminated), there is one fundamental fact which must have been established as a basis for recovery; and that is, that the pipe was defective at the time of sale.

We are of the opinion that the pipe was not defective at the time of sale, and that those defects which subsequently developed were the natural consequences resulting from the unusual conditions to which the pipe was subjected.

The law of this state does not imply a warranty that an article sold will serve a special purpose. But, if we assume in this ease the existence of such warranty, no breach thereof has been established. The evidence clearly discloses that the pipe sold the plaintiff was not defective, but, on the contrary, was the best pipe obtainable in the markets of the world, for the special purpose for which it was to be used. It is true that it was shown that, if by special order the plaintiff had caused to be manufactured brass pipe containing a greater proportion of copper, it would have served him under the special conditions existing for a much longer period of time; but, as suggested by the experts who testified, the cost would have been prohibitive. It is a most significant fact that the plaintiff replaced the pipe which he had removed with brass pipe of its identical composition. If the plaintiff was not convinced, after using the pipe for five years, that it was the best that could be purchased for his special purposes, what prompted him to replace it with pipe of the identical kind and composition?

As .the evidence discloses, (without attempt at refutation) that the defendant sold the plaintiff the best article obtainable for the purpose, and that the article was free from defect when the sale was made, we are of the opinion that the defendant has discharged the obligation arising from an implied warranty, and that therefore the plaintiff’s demand for damages for breach of warranty of the pipe should be rejected.

For the reasons assigned, it is ordered, adjudged, and decreed that that portion of the judgment appealed from which decrees the dismissal of plaintiff’s demand as of non-suit be amended so as to order the rejection of said demand; and that the judgment, as thus amended, be affirmed.


source: Caselaw Access Project

author: TALIAFERRO, J.

license: Public Domain

text:
    No. 4097
    Second Circuit (Second Division)
    ODELL v. BABCOCK
    (May 4, 1932. Opinion and Decree.)
    John B. Files, of Shreveport, attorney for plaintiff, appellant.
    T. Overton Brooks, of Shreveport, attorney for defendant, appellee.
   TALIAFERRO, J.

This suit involves, the ownership of a Reo coupe automobile.

The facts appear to be that plaintiff acquired this car on account, from one who owed him, for the price of $1,900, and, having other cars, was anxious to dispose of the Reo for cash at the sacrifice price of $1,250. On or about June 6, 1930, one J. P. McIver learning of plaintiff’s desire to dispose of the car, and of defendant’s wish to purchase one, in the role of go-between or broker, brought the parties together in negotiations. The car was then delivered to defendant for purpose of demonstration and testing out for his own satisfaction, and he held possession of it for a few days, delivering it back to plaintiff or McIver. During the preliminary discussions between the parties, defendant informed plaintiff and Mclver that he would trade common stock of the American Finance Corporation for the car, but plaintiff declined to consider this offer, but finally agreed to investigate the value of the stock. He did so, and learned through one of the banks of Shreveport that the stock was practically worthless. He also learned that the preferred stock of that company did have a value. It does not appear that plaintiff and defendant discussed the sale or trade for the car again until the evening of June 13th, but during the interval Mclver, zealous to see the trade consummated and earn a commission, continued to act between the parties to prevent interest from lagging. On evening of June 13th defendant and Mclver drove to plaintiff’s residence, and there the trade was tentatively closed in the manner and under the conditions hereinafter mentioned. The stock was discussed at length, and, while plaintiff is not certain defendant mentioned preferred stock, he did say the stock had a value of $75 per share and dividends of 10 or 12 per cent had been declared on it; that some dividends had been deferred, but that the stock would come back on a dividend paying basis soon. Plaintiff stated that he did not want the stock, but wanted money, for the car. The representations of defendant that influenced plaintiff at this conference on June 13th may best be seen from the following of plaintiff’s testimony, viz.:

“He (referring to defendant) says, ‘I guarantee you by the 15th of August to have your money for this stock.’ Well I said, ‘That is all right, that will be perfectly satisfactory to me.’ He said, ‘If you will keep it that long I am satis tied you will get at least Fifteen Hundred ($1500.00) Dollars for it.’ So he went off with the car and the next day or two 1 went into it further and I went down -to his office and had his secretary, he told her that he had sold me or delivered me or was going to deliver thirty (30) shares of the stock of the company. I still thought it was preferred. I didn’t go into it any further. And I said, ‘Well I don’t want the stock issued or delivered to me because it is going to be sold anyway.’ And I have never seen the stock, never a single share of it, neither preferred, common or any other part of it. So that was -the sum and substance of the deal.”

This evidence was objected to by defendant’s counsel on the ground that it was not admissible under the pleadings. It was admitted as being relevant to the negotiations leading up to the sale of the car, but not to allow enlargement of pleadings.

Before the parties separated on this occasion plaintiff signed in duplicate an incomplete order or subscription for stock of said finance company, directed to defendant, on printed form used by the company, reading as follows: “I hereby purchase ............ shares of your No Par Common Stock in American Finance Corporation, purchase price $100.00 per share.” This paper, when introduced in evidence, had been completed by defendant to read as follows: “I hereby purchase 30 shares of your No Par Common Stock in American Finance Company. Paid in full by Reo Coupe Flying Cloud Automobile, Serial #10505, Motor CA 102333.”

There is dispute as to what was said by defendant to induce plaintiff to sign these papers. Plaintiff, corroborated by McIver, says that defendant suggested to plaintiff that he give him a specimen of his signature on a piece of paper for the use of the company in transferring his stock, but before this request could be complied with defendant took from his pocket the order or subscription blanks mentioned above, and suggested to plaintiff to affix his signature to each. Plaintiff admits he carried the orders from his porch into a lighted room and signed them, after noticing the paper called for purchase of stock. I-Ie states that he drew a line through the space used to write the number of shares being purchased or subscribed for. The car was then delivered to defendant, and he drove it from plaintiff’s residence that night.

In keeping with the understanding to •that effect, plaintiff on morning of June 14th appeared at the office of the American Finance Corporation to complete the trade, and, while he and defendant were discussing the -matter, defendant called the company’s secretary, and, in plaintiff’s presence, handed her the papers he had signed •the evening before, and requested her to issue stock to plaintiff as called for therein. Plaintiff demurred at the suggestion that the stock should be issued to him, stating that, as it would be sold very soon and the money paid over to him, he saw no necessity for such being done, but finally consented to the stock being issued in his name and authorized the secretary to hold it, which was done. Plaintiff never saw the stock certificate, nor had possession of it personally. He thought it called for preferred stock.

On July 1st plaintiff wrote defendant a letter which we quote in full:

“Dear Sir: Referring to our negotiations looking to the sale of a Reo Flying Cloud and for which you proposed to pay thirty shares of stock in the American Finance Company, which you represented to be worth $75.00 per share. You were given the car to try out subject to my investigation of this stock.
“I find upon investigation there are two kinds of stock issued by your company: preferred and common. My understanding was that the stock you were to trade to me was preferred stock, which stock I find to be worth approximately the price you stated. I would under no condition accept the common stock, which has no par value, and has not paid any dividends.
“If you will send me the preferred stock, I will execute the bill of sale; otherwise return the car to me and call the negotition off.”

Defendant did not comply with either request made in this letter, and on July 12th this suit was filed and service made on defendant.

Plaintiff takes the position that there was no sale of the car and that defendant is holding same illegally. In the alternative, he avers that, should it be held that there was a sale of the car for the stock, such sale should be decreed null and void because it was made through error super-induced by misrepresentations on part of defendant as to the value of the stock; and, further, in the alternative, should the court hold that there was a sale of the car, that the sale should be rescinded because there was no consideration for it, the stock being worthless. He further alleges that he had no knowledge of the value of the stock offered by defendant for the car, and relied entirely on the representations made by defendant that it was worth $75 per share, which was wholly untrue to the knowledge of defendant, who misrepresented its value to defraud petitioner.

Defendant, in answer to the petition, avers that he purchased the Reo car from plaintiff, delivering him 30 shares of the common stock of the American Finance Corporation therefor, and took possession of same as owner; that said stock did have a market value of approximately $75 per share; that, while he made no statement to plaintiff as ,to the actual value of the stock at time of sale, respondent does believe it to have a real and actual value, dependent upon the current economic conditions and the public demand for it.

On July 24th plaintiff filed supplemental petition and secured issuance of a writ of sequestration directing the sheriff of Cad-do parish to seize the car in controversy, but, as it could not be found, the writ was never executed and the amended petition was not answered.

The lower court rejected plaintiff’s demand and dismissed his suit. This, appeal is prosecuted by him.

As affecting defendant’s good faith and a lack of confidence in his title to the car, we have but to state some facts clearly established by the record. This suit was. personally served on July 12th. Defendant testified that he drove the car to New Orleans on July 9th or 10th, and left that city on July 13th. He is undoubtedly in error as to the dates. He was in Shreveport on July 12th. That is certain. The inference arises that he drove the car away after being served with suit, and thereafter made it impossible for the court’s processes to reach it. He stated he traded the car to a man in New Orleans, a stranger to him. His evidence on this score is far from being candid. If in good faith, he should have had no hesitancy in freely disclosing the facts.

The American Finance Corporation was organized in March, 1929. Its. capital stock consisted of ten thousand shares of preferred stock of the par value of $100, and of five thousand shares of cbmmon stock of no par value. Forty-seven hundred shares of the preferred stock and all of the common stock had been disposed of when this suit was tried. The common stock was transferred to three of the company’s officers, one of whom being defendant, he being vice-president, for $1.00 per share. This was paid by services rendered in organizing and promoting the company. No dividends had been paid on this common stock, while a quarterly dividend of 2 per cent had been paid on the preferred stock. It appears that some of the common stock had been sold for $50 per share and possibly some for a larger price to unsuspecting persons, but such limited number of sales do not establish a market or fixed value for such stock. Whatever value the common stock -had, or may have acquired, depended entirely upon the success. of the company’s business and earnings; and, having been in existence for only fifteen months when this controversy arose, it is inconceivable that this stock at that date could have acquired any real value as an investment. The money paid into the company’s treasury was for the preferred stock. There was really no money or property of value back of the common stock to give it a value.

Notwithstanding his allegations to the contrary, plaintiff knew this common stock had no value. He had persistently, through the negotiations with defendant, declined to consider it on the price of the car. We do not believe he ever agreed to accept the stock for the car. Defendant, by employment of artful means, succeeded in inveigling plaintiff into a situation from which he believed plaintiff could not extricate himself and would be estopped from denying he had sold the car. Plaintiff was credulous, and relied upon defendant’s promises and assurances. Defendant was anxious to secure possession of the car under semblance of title. His aim was to give plaintiff thirty shares of stock that he had recently acquired at $1 per share, and paid for in promotion services to the company, in order to have the car. Can it be supposed that plaintiff would have consented to part with his property for such price?

Defendant, in his efforts to completely tie plaintiff so he could not escape, and doubtless, too, out of lack of faith in the efficacy of the papers signed the night before, on the morning of June 14th, endeavored to get plaintiff to sign another application to purchase thirty shares of the no par common stock of the finance company, which plaintiff declined. This application is signed by defendant as salesman and is in -the record. At the same time he endeavored to have plaintiff sign a written act of sale of the car to' him, which was also refused. Failing in these efforts, defendant fell back on the blank order plaintiff had signed the evening before, which had been completely filled in to show purchase of the stock by plaintiff, and payment thereof made by delivery of the Reo car.

Our conclusion is, that plaintiff was only willing to dispose of his car to defendant on such terms as would insure the payment of the price in cash by August 15th following the negotiations in June, and that he was only willing to consider the preferred stock in exchange for the car, and, after learning that common stock had been issued to him, and knowing it had little or no value, he immediately called upon defendant to deliver the preferred stock to him or return the car. One of the elemental essentials to the consummation of the contract of sale or exchanze, viz., agreement as to certainty of price, is lacking. Civ. Code, art. 2464. There was no consent on part of plaintiff to part with title to the car for the common stock, and without such consent there could be no exchange. Civ. Code, arts. 2439, 2667. The minds of the parties at no time met as to what plaintiff was to receive in lieu of his car.

For the reasons herein assigned, the judgment of the lower court is reversed, annulled, and set aside; and there is. now judgment in favor of plaintiff and against defendant recognizing him as owner of the Reo automobile in controversy and entitled to possession thereof, and that defendant pay all costs of court.


text:
    No. 4132
    Second Circuit (Second Division)
    FIRST NATL. BANK & TRUST CO. OF SIOUX FALLS, S. D., v. LYLES ET AL.
    (May 4, 1932. Opinion and Decree.)
    Lyons & Prentiss, of Shreveport, attorneys for plaintiff, appellee.
    John B. Files, of Shreveport, attorney for defendants, appellants.
   STEPHENS, J.

The First National Bank & Trust Company of Sioux Falls, S. D., brought this suit against Sam E. Lyles, W. M. Bradford, and Raleigh Washington, on a promissory note for the sum of $500. The plaintiff alleged that the defendants were the makers, of the note, and that it was the holder and owner thereof in due course, in good faith, and for a valuable consideration.

The defendants answered, denying that the plaintiff was the holder and owner of the note, and averring that the suit was instituted in the name of plaintiff, for the use and benefit of Oliver S. Pender, the payee thereof; and that said plaintiff bank is merely a person interposed, acting as the agent and representative of Pender in an effort to defraud them.

It was further alleged in the answer, in the alternative, that, if the plaintiff was the holder of the note for a valuable consideration, it acquired title thereto in bad faith, and with full knowledge of its infirmities.

The defendants prayed for judgment rejecting plaintiff’s demands, and in reconvention for judgment against the plaintiff in the sum of $500.

A trial of the case resulted in a judgment in favor of plaintiff as prayed for, and rejecting the defendants’ reconventional demand. The defendants have appealed.

On February 3, 1930, Oliver S. Pender, a resident of Sioux Falls, S. D., leased to the defendants, for agricultural purposes, some 397.28 acres of land in Caddo parish, La. The term of the lease was from February 1, 1930, until November 15, 1930, and the consideration therefor was $500, represented by the note herein sued on, which was dated February 1, 1930, and became due September 1, 1930, executed by the defendants and made payable to the lessor, Oliver S. Pender. The note was regular upon its face, and therefore bore no evidence that it was given for unearned rent, or other consideration than value received. The lessor indorsed the note in blank, and transferred it to the plaintiff bank (he had been a customer of the bank for several years) on March 5, 1930, and was credited on the books of the • bank with the proceeds of the transfer, which was the principal sum of the note. Pender informed the bank at the time of its negotiation that the note represented the rental on a plantation in Louisiana. The bank did not know the financial responsibility of the defendants, but purchased the note relying largely upon the security of the indorsement of its customer Pender.

During the month of May, 1930, the plantation which the defendants had leased from Pender was subjected to an unexpected and complete inundation from the flood waters of. Cypress river, which destroyed the crops. The land remained submerged for such length of time that a late second attempt to produce crops upon it proved a failure. The defendants notified Pender on May 21, 1930, that the leased premises were under water.

As the facts as thus stated are uncontradieted, it is obvious that the defendants have failed to establish their defenses unless it be held that knowledge on the part of the plaintiff bank that the instrument was a rent note destroyed its negotiable character. There is no proof that the bank is a person interposed; or that acting in that capacity it represented Pender in an effort to defraud the defendants; but, on the contrary, it is- shown that the plaintiff bank became the owner of the note, by purchase from a customer, in the ordinary course of business, more than seventy-five days prior to the occurrence of the fortuitous circumstance which destroyed its consideration.

The negotiability of a note is not affected by the fact that its consideration is to be realized in the future, or through some contingency may never be realized. Sadler v. White, 14 La. Ann. 177; State Nat. Bank v. Cason, 39 La. Ann. 865, 2 So. 881; Martel v. Lafayette Sugar Refining Co., 153 La. 248, 95 So. 706.

The rule is stated as follows in 3 R. C. L., p. 1067, sec. 273:

“The courts universally hold that knowledge that a note was given in consideration of the executory agreement or contract of the payee, which has not been performed, will not deprive the indorsee of the character of a holder in due course, unless he also has- notice of the breach of that agreement or contract.”

It was held in First State Bank & Trust Co. v. Crain, 157 La. 427, 102 So. 513, 38 A. L. R. 347, that mere knowledge on the part of the transferee of a note that it was a rent note did not destroy its negotiable character.

The defendants rely on Commercial Germania Trust & Savings Bank v. Southwestern Surety Co., 145 La. 367, 82 So. 373, and Continental Bank & Trust Co. v. Times Publishing Co., 142 La. 209, 76 So. 612, L. R. A. 1918B, 632. Those cases are readily distinguishable from the present one. In the first cited case, the court found as a fact that the plaintiff holder of the note had full knowledge before its acquisition that it was a conditional obligation, and that, having notice of the admitted infirmity of the instrument, the plaintiff was not a holder in due course.

In the second cited case, the notes sued on bore, upon their face, notice to the transferee that it must take them subject to a lease contract between the original parties. The court held that the infirmity disclosed on the face of the notes destroyed their negotiability.

The present case is clearly governed by the decision in First State Bank & Trust Co. v. Crain, supra.

There was no evidence introduced and no argument submitted to support the defendants.' reconventional demand.

We are of the opinion that the judgment appealed from correctly disposed of the case, and it is, for the reasons assigned, affirmed.


author: JANVIER, J.

text:
    No. 14,090
    Orleans
    ORGERON ET UX. v. LOUISIANA POWER & LIGHT CO. ET AL.
    (March 7, 1932. Opinion and Decree.)
    (April 4, 1932. Rehearing Refused.)
    (May 23, 1932. Writs of Certiorari and Review Refused by Supreme Court.)
    Oliver S. Livaudais, of New Orleans, attorney for plaintiffs, appellants.

      L. L. Morgan and A. S. Cain, Jr„ of New Orleans, and D. M. Ellison, of Baton Rouge, attorneys for appellee Louisiana Highway Commission.
   JANVIER, J.

This matter comes to us on appeal from a judgment of the civil district court dismissing, on exception of no cause of action, a suit for damages for alleged unlawful death brought against various defendants, including the exceptor, Louisiana Highway Commission.

The sole question now before us is whether such commission, an agency or department of the state, may be sued for damages ex delicto.

Plaintiffs., Mr. and Mrs. Robert Orgeron, bring the action against Louisiana Power & Light Company, George Hoffman, Louisiana Highway Commission, and R. A. Cole. It is alleged that Leopold Orgeron, the minor son of plaintiffs, was killed as the result of an automobile accident, which, it is averred, resulted from the joint negligence of the two individual defendants, each driving a motor vehicle, one within the scope of his employment as. a servant of Louisiana Power & Light Company and the other within the scope of his employment by Louisiana Highway Commission.

The district judge dismissed the suit as against Louisiana Highway Commission, being of the opinion that the . jurisprudence of the state of Louisiana, based on the written law of the state, makes it impossible to entertain a suit sounding in damages against the state, or any of its boards, or departments. He strongly expressed the view, however, that, when such “agencies are created and performing the functions, which may perhaps be governmental in nature, and doing other works, * * * when carrying on these works through their agents, who are liable to commit torts and injure citizens- * * * there should be absolute permission given to citizens to bring suits against those agencies, to recover for damages they sustain and have such compensation paid out of the fund in the same way that railroad companies or street car corporations, doing public service, monopolistic by nature, and to have revenue sufficient to carry on all the operations of the corporation and sufficient also to pay the damages which are inflicted by the torts of its agents.’’ He further stated, referring to the great works of various character now performed by states and state agencies, that “these great works can no more be carried on without torts and injuries committed by the state than they could by private corporations, or public service corporations.”

The interesting opinion written on the subject by our brother below and the most persuasive argument presented by industrious counsel for plaintiffs have led us to delve rather deeply into the doctrine of immunity of the state from liability for damages, and we find that, from the earliest times, the doctrine has been in existence in this country, and that this was recognized by Mr. Justice Miller, in the very early case of Gibbons v. United States, 8 Wall. 269, 274, 19 L. Ed. 453, in which it was declared that:

“No government has ever held itself liable to individuals for the misfeasance, laches, or unauthorized exercise of power by its officers and agents.”

While it is very evident that Mr. Justice Miller either did not intend to include in his reference the countries of Western Europe, or had overlooked the fact that those countries, had, from very early times, admitted such liability, nevertheless there can be no doubt that, as to the English speaking countries, England and America, the doctrine of the immunity of the sovereign to assaults in the courts, is universally accepted; that “the king can do no wrong” has, as a necessary corollary, “the sovereign may not be forced to submit to suit.” Originally the royal prerogative was purely personal, and it was therefore, from the beginning, illogical to apply it to the United States, where the sovereignty, if the governing authority may be so called, is so broadly distributed among the various governmental officials and departments and is, in fact, in theory at least, still with the people themselves.

“* * * In our system, while sovereign powers are delegated to the agencies of, government, sovereignty itself remains with the people, by whom and for whom all government exists and acts.” Yick Wo v. Hopkins, 118 U. S. 356, 370, 6 S. Ct. 1064, 1071, 30 L. Ed. 220.

But, even if on a sound foundation, when originally applied to the sovereign of old, it is more than doubtful if there is any semblance of reasonableness in applying it to the “sovereign,” as the term is used in the United States, today, for, while originally the sovereign concerned himself solely with purely governmental functions, today we find our governments, state and national, undertaking to perform works of every nature heretofore considered as being exclusively within the prerogative of the private individual or corporation and never conceived of as being within the rights or duties of a sovereign. Let it not be believed that we intend to criticize the modern trend. Whether it be socialistic, or whether it be for the good, or work to the detriment, of the people as. a whole, we find it unnecessary to consider. It is sufficient that we recognize that the tendency exists, and that we express the view that, because of it, it would be well .to consider whether we should “remain bound by the fetters of a medieval doctrine, often regarded as having the institutional impregnability of an article of faith, which never had much, if any, justification.” Borchard, “Government Liability in Tort,” Yale Law Journal, vol. 34, p. 3.

If our governments are to engage in corporate business, if the state is to undertake the construction of bathing beaches and amusement parks, if it is to own and operate in its highway work hundreds of trucks, is it still within the bounds of reason to say that, in doing those works, it can do no wrong, and that it is therefore immune to litigation sounding in tort?

The question is an economic one. Should for instance, a flagrant, wrongful violation by an employee of a state agency of the rights of an individual require that the whole loss be borne by that individual, who is himself without fault, or should the burden of the loss be distributed among ¡the whole citizenship?

The state of Louisiana has, in enacting compensation laws, recognized that industrial accidents must occur, and it has adopted the policy that the loss which results from such inevitable accidents shall not he placed at the doors of the unfortunate individuals concerned, but must, through natural channels brought into play by the compensation laws, be distributed among the consumers, or, in other words, be charged back to the general public.

By reason of the application of the doctrine that the state is immune to tort actions, may incongruous results obtain. If the heads of the highway department have in mind the paving of two similar sections of road, and they decide that the department itself will pave one, but will let the other one out on contract to an independent contractor, and if, while the two jobs are in progress, A is killed by a highway truck and B is. killed by a truck of the independent contractor, under conditions showing negligence on .the part of the drivers, B’s representatives may recover, but the members of A’s family are told that, since the state may not be sued, they must stand the loss themselves. Another incongruous situation presents itself when we consider that, if the highway department, in building roads, finds it necessary to send its trucks upon the farm of a nearby property owner and take his earth to build an embankment, it may be held liable for the value of the earth, Booth v. Louisiana Highway Commission, 171 La. 1096, 133 So. 169, but that if, in removing the earth, through the sole carelessness of a driver of one of the highway trucks, the landowner himself should be injured, or killed, no redress for his injuries or death could be had, because “the state can do no wrong.”

The Supreme Court had no difficulty, under the written law, in announcing in the Booth case the doctrine stated — that the highway commission may be forced to pay for earth removed from the property of a nearby landowner, but, as the law presently exists, it seems that it would be impossible to render judgment in favor of the injured party should the hypothetical accident, which we have above described, actually occur. But the wisdom of economic policy is not for judicial consideration, and we feel that we are not privileged, and we know that we are not anxious, through the medium of judicial interpretation, to impose our views upon the people of the state.

The question which now confronts us was squarely presented to the Court of Appeal of the First Circuit in Kilberg v. Louisiana Highway Commission, 8 La. App. 441, and there our brothers of the other circuit, in holding that the Louisiana Highway Commission may not be held liable in tort, said:

"* * * No fault of an agent of the government can give cause for damages, against the government when such agent is acting within the scope of his governmental powers.”

Counsel for plaintiffs is most industrious in his attempt to persuade us that certain uew points made by him are determinative of the question, and that we should not rest our view on the decision in the Kilberg case. For instance, he states that there is nothing in article 2315 of our Civil Code which excepts from its general provisions making everyone liable for the results of his fault the state or the state agencies or departments. The argument is interestingly presented, but general provisions of a codal article must yield to specific constitutional declarations, and we feel, as did Judge Leche, the author of the opinion in the Kilberg case, that such codal or statutory provisions “must be read in connection with the fundamental constitutional principle that the State may only be sued with its permission (section 35, art. 3), and where a State agency is acting within the scope of its governmental functions, it represents the State and as such, it may not be sued except with the permission of the State.”

Another contention relied on by counsel is that the highway commission is an especially created political or departmental corporation, and that, as such, it may, under the act creating it, sue and be sued.

This argument, also, finds itself answered in the Kilberg case in the following words:

“It is evident from other provisions in the Act that the clause subjecting the Commission to the liability to be sued does not confer upon a complainant a right of action whereby the Commission would be eventually deprived and dispossessed of the fund which is necessary for it to exercise its governmental functions and which is dedicated by the Constitution to that special purpose. To so hold would be to recognize that the usefulness of the Commission can be destroyed and the purpose of its existence frustrated through the fault and negligence of the persons appointed to superintend the work necessary to accomplish the legal ends of its. existence.
“The funds under the control of the Highway Commission are specially dedicated to the construction and maintenance or highways and cannot be diverted from that purpose without express legislative sanction, and even if it were conceded that the Commission could be sued for damages ex delicto, a judgment for damages ex delicto would be worthless, Of course, courts of justice will not lend .themselves to render judgments which cannot be enforced or executed.
“There is no reason why we should further construe the stipulation ‘that the Commission is a body corporate and that as such it may sue or be sued.’ It is not necessary for the decision of this case for us to express any opinion as to what actions may be brought against the Commis-, sion. Such opinion would be obiter dictum. Suffice it to say that we are clearly of opinion that the Louisiana Highway Commission may not be sued for damages ex delicto, and that therefore plaintiff’s petition does not disclose a cause of action.”

In analogous situations, various courts have held that, though a state may create a special corporation to perform particular governmental functions, and that, though in the statute creating such corporation or agency or department, it may be provided that the said creature may sue and be sued, nevertheless such provisions merely permit suits in contract and for special purposes, but do not constitute permission to institute actions for tort. Riddoch v. State, 68 Wash. 329, 123 P. 450, 42 L. R. A. (N. S.) 251, Ann. Cas. 1913E, 1033; Murdock Parlor Grate Co. v. Commonwealth, 152 Mass. 28, 24 N. E. 854, 8 L. R. A. 399; Houston v. State, 98 Wis. 481, 74 N. W. 111, 42 L. R. A. 39; Davis v. State, 30 Idaho, 137, 163 P. 373, Ann. Cas. 1918D, 911, 13 A. L. R. 1276; Burroughs v. Commonwealth, 224 Mass. 28, 112 N. E. 491, Ann. Cas. 1917A, 38; United States v. Cumming, 130 U. S. 452, 9 S. Ct. 583, 32 L. Ed. 1029; United States v. Irwin, 127 U. S. 125, 8 S. Ct. 1033, 32 L. Ed. 99.

That the solution cannot be found in the extension of the unsatisfactory early English rule that the offending or wrongdoing official, or employee, may be held liable, requires little discussion. Usually the offending employee has little or no financial responsibility and thus the injured party, although permitted to obtain a judgment, is unable 'to secure actual recompense for his loss. In many instances, too, it is essential that officials and employees be encouraged to exercise discretion and judgment, and it is manifestly not advisable that, in such case, if the official or employee be found to have been in error in the exercise of his sound discretion, he find himself subjected to the possibility of suits for damages.

Nor does it appear possible that a rule of liability consonant with economic wisdom, and enforceable similarly in all like cases, can come from the theory that the state should be held where the damage results from the doing of a corporate act, but not where it comes as a consequence of the performance of a governmental function.

In many jurisdictions it has been held that the work of repairing roads is corporate, .whereas the building of roads requires the exercise of a governmental function. Hewitt v. Seattle, 62 Wash. 377, 113 P. 1084, 32 L. R. A. (N. S.) 632; Colorado v. Liafe, 28 Colo. 468, 65 P. 630; McMahon v. Dubuque, 107 Iowa, 62, 77 N. W. 517, 70 Am. St. Rep. 143; Wooster v. Arbenz, 116 Ohio St. 281, 156 N. E. 210, 52 A. L. R. 518; Bates v. Rutland, 62 Vt. 178, 20 A. 278, 9 L. R. A. 363, 22 Am. St. Rep. 95; Barney v. Lowell, 98 Mass. 570; Hennessey v. New Bedford, 153 Mass. 260, 26 N. E. 999; Wakefield v. Newport, 62 N. H. 624; Moore v. Luzerne County, 262 Pa. 216, 105 A. 94. Assuming, for the moment, that the distinction is sound, is it reasonable that the right of a person injured by a public truck, through no fault of his own, shall exist if the truck is found to have been engaged in repair work, but not if it was engaged in construction work? Aside from the rather inequitable situation which may exist where one citizen is permitted to sue, and another, under what may seem to be identical facts, is denied recovery, it is usually extremely difficult to determine whether the work out of which the injury arose is governmental or corporate in character, and, in many eases, what has been held to be a corporate act by one court has been declared by others to be a governmental function.

Judge Benjamin N. Cardozo in, “A Ministry of the Law,” vol. 35, Harvard Law Review, p. 120, says:

“It is a rule which has grown up in many jurisdictions and has become ‘a common ritual’ that municipal corporations are liable for the torts of employees if incidental to the performance or non-performance of corporate or proprietary duties, but not if incidental to the performance or non-performance of duties public or governmental. The dividing line is hard to draw.
“ ‘Building a drawbridge, maintaining a health department, or a charitable institution, confining and punishing criminals, assaults by policemen, operating an elevator in a city hall, driving an ambulance, sweeping and cleaning streets, have been held governmental acts. Sweeping and cleaning streets, street lighting, operating electric light plants, or water works, maim taining prisons, have been held 'private functions.’
“The line of demarcation, though it were plainer, has at best a dubious correspondence with any dividing line of justice.”

That there should be a distinction between the results of the doing of corporate acts and the performance of governmental acts has been entirely rejected in some jurisdictions, notably in Ohio (see Fowler v. City of Cleveland, 100 Ohio St. 158, 126 N. E. 72, 9 A. L. R. 131), and it has been questioned by the Supreme Court of the United States in Workman v. Mayor, etc., 179 U. S. 552, in which we find that on page 574, 21 S. Ct. 212, 220, 45 L. Ed. 314, the majority of the court said:

“* * * We must not be understood as conceding the correctness of the doctrine by which a municipal corporation, as to the discharge of its administrative duties, is treated as having two distinct capacities, the one private or corporate, and the other governmental or sovereign, in which latter it may inflict a direct and positive wrong upon the person or property of a citizen without power in the courts to afford redress for such wrong. That question, from the aspect of both the common and municipal law, was considered by this court in Weightman v. Corporation of Washington (1861) 1 Black, 39, 17 L. Ed. 52; Barnes v. District of Columbia (1875) 91 U. S. 540, 23 L. Ed. 440; and in District of Columbia v. Woodbury (1890) 136 U. S. 450, 10 S. Ct. 990, 34 L. Ed. 472. And although this opinion is confined to the controlling effect of the admiralty law, we do not intend to intimate the belief that the common law which benignly above all considers the rights of the individual, yet gives its sanction to a principle which denies the duty of courts to protect the rights of the individual in a case where they have jurisdiction to do so.”

It is apparent that there has arisen, and that there is now on the ascendency, a tendency, in applying the doctrine of the immunity of the sovereign, to distinguish between the state itself and the various, boards or departments now so numerous in all commonwealths. It is possible that a solution of the problem we have been discussing may lie in such distinction, which is shown to exist to some extent in Louisiana by a reading of the decision in Board of Commissioners of the Port of New Orleans v. Toyo Kisen Kaisha, 163 La. 866, 113 So. 127, 128, in which the Supreme Court, while recognizing the principle that prescription liberandi causa does not run against the state itself, said that it was nevertheless, operative against a state department or board (Board of Commissioners of the port of New Orleans). The court used these words:

* * we are not prepared to hold that the exception thus established in favor of the state applies to any or all other public corporations or agencies. * * *”

Nevertheless, we do not feel that it is within our right or prerogative to overturn a principle of law which has, from a time almost beyond the memory of man, been firmly imbedded in our jurisprudence, and which seems to be based on the written laws of our state as they exist today. If it be desirable that there be adopted, instead of the doctrine of the immunity of the sovereign, some more democratic rule, it must be for the legislative branch of the sovereign state to so decide. The courts may only interpret and apply written laws as they are enacted by lawmakers, and, in such situations, as we have here considered, the difficulty really lies in the fact “that legislatures, have been unwilling to re-examine the whole subject from the point of view of theory and history, in order to bring the law into harmony with the practical exigencies of modern life.” Borchard, “Government Liability in Tort,” Yale Law Journal, supra.

In discussing the question of the wisdom of following doctrines which are not consonant with the realities of life, Judge Cardozo, in “A Ministry of the Law,” Harvard Law Review, supra, has this to say:

“The time is ripe for betterment. T.e droit a ses epoques,’ says Pascal in words which Professor Hazeltine has recently recalled to us. The law has ‘its epochs of ebb and flow.’ One of the flood seasons is upon us. Men are insisting, as perhaps never before, that law shall be made true to its ideal of justice. Let us gather up the driftwood, and leave the waters pure.”

The judgment appealed from is. affirmed.

HIGGINS, J., absent, takes no part.


text:
    No. 4291
    Second Circuit (Second Division)
    ROBERTS v. ATKINS ET UX. (BULLARD ET AL., Interveners)
    (May 4, 1932. Opinion and Decree.)

      Robert Roberts, Jr., of Shreveport, attorney for plaintiff, appellee.
    Wallace & Hardeman, of Benton, attorneys for defendant, appellant.
   TALIAFERRO, J.

Plaintiff leased to W. A. Atkins and wife for one year ending November 30, 1931, certain property owned by him in Bossier City, La., for $40 per month. This suit was filed in October, 1931, to recover a balance of $385 due on the rent contract, and certain chattels found in the leased premises were provisionally seized.

Interventions and third oppositions were filed by Mrs. W. T. Bullard and Mrs. C. R. Hudson. The former claimed ownership of the seized property while the latter asserted a mortgage against same, which had been filed and recorded prior to date of lease to defendants, and prayed to be paid by preference from proceeds of sale. Plaintiff filed exceptions of no cause of action to both interventions. That filed in the Bullard case was sustained. He answered the Hudson intervention by general denial, except that said chattels had been seized and would be sold by the sheriff to pay the rent sued for.

The case was tried on an agreed statement of facts and resulted in rejection of Mrs. Hudson’s intervention and judgment for plaintiff for the amount sued for with recognition of the lessor’s lien and privilege on the seized property. Mrs. Hudson has appealed.

Plaintiff contends that the description of the property in the chattel mortgage held by Mrs. Hudson is not sufficient to identify it, within the meaning of the law, and therefore not effective as to third persons acquiring rights to or liens against it. It is conceded that the seized property is the same which Mrs. Bullard intended to grant the mortgage on, sought to be enforced by Mrs. Hudson, and it is conceded that said chattels were placed in the leased premises after June 17, 1930, the day the mortgage against them was recorded. *

The description of the property in the chattel mortgage is as follows:'

“1 horse shoe counter, 20 white porce-. lain stools, 16 chairs, 4 white porcelain tables, 1 coffee urn, water cooler, 1 large ice box, 3 light fixtures, 1 ceiling fan, 1 cash register, 1 6 hole stem table, 3 gas. cook stoves, 2 hot plates, 3 common tables, 1 lot of dishes, cooking vessels and silverware valued at about $25.00.”

The mortgage was originally given to First National Bank of Arcadia, La., and thereafter acquired by Mrs. Hudson. There is no reference in the mortgage as to the location of the chattels at that date, nor is there reference made as to the place the property would be carried for use. There is no descriptive reference to these chattels that would distinguish them from others of same kind; the parish wherein they were located is not mentioned.

No one could, by reading the chattel mortgage, identify the property therein described as being the same as was used in the leased premises by defendants.

It is elemental that identification must be possible from the face of the instrument of mortgage in order to affect third persons acquiring rights against the mortgaged chattels. The lessor has a lien and privilege on the movables found in the leased premises. Laws that would modify or affect this benefit should be strictly construed.

Section '2 of Act No. 198 or 1918, our chattel mortgage law, reads as follows:

“That every such mortgage of property mentioned in Section 1 shall be in writing, setting out a full description of said property to be mortgaged, so that same may. be identified.”

Section 6 of the act requires registry of the mortgage in a bpok kept for that purpose by the recorder of mortgages, wherein he shall enter a description of the property and the particular place where it is located. The fact that fixing of location of the property is required to be stated in the registry of the act presupposes that the mortgage itself contains, that information. The recorder would not be expected to ascertain this information dehors the mortgage.

The question here involved was considered in Pittsburgh Plate Glass Co. v. Lepow, reported in 10 La. App. 38, 120 So. 795, and in New Way Family Laundry, Inc., v. Lebo, 16 La. App. 157, 133 So. 463. These decisions make it clear that the description in Mrs. Hudson’s mortgage is insufficient for the purpose of complete identification, and that the location of the property was an indispensable part of the description in order that third persons have notice of the mortgage. In the first of these cases, Judge Jones, as the organ of the court, quotes extensively from common-law authorities, in support of the ruling herein made. There seems to be near unanimity of authority that the location of the mortgaged chattels is a necessary part of the description where identification cannot be made certain by marks, numbers, or other physical distinction.

The Lebo case, referred to, is on all fours with the present one. The description of the property in the mortgage involved in that case is, in a general way, practically the same as that in Mrs. Hudson’s mortgage. No location of the mortgaged chattels was given in the act, and the court held that without such the description was defective and identification was lacking. Many authorities are referred to in that case which sustain the question therein passed on.

In the case at bar, a person examining the records of Bossier parish would have found that Mrs. Bullard had mortgaged these chattels to the First National Bank of Arcadia. Nothing appeared of record, so far as disclosed, that Mrs. Hudson owned this mortgage or that Mrs, Bullard had leased the chattels to the defendant. Had reference been made to the fact that these chattels were being used, or would be used, by defendants in plaintiff’s property, a different situation would be presented, but, in the absence of such recital, no one could positively say, without knowledge of the facts dehors the record, that the mortgaged property and that seized in the leased premises was the same.

We are of the opinion the district judge correctly decided the case. The judgment appealed from is affirmed.


author: CULPEPPER, J.

text:
    No. 4124
    Second Circuit (Second Division)
    BROWN v. LIGGETT (HOWELL ET AL., Interveners)
    (May 4, 1932. Opinion and Decree.)
    Argued before STEPHENS, TALIAFERRO and CULPEPPER, JJ.
    Watkins & Watkins, of Minden, attorneys for plaintiff, appellee.
    A. S. Drew and John T. Campbell, of Minden, attorneys for interveners, appellants.
   CULPEPPER, J.

Plaintiff brought suit to recover $851 with legal interest from judicial demand for labor performed for defendant by him and certain others who had assigned their claims to plaintiff for purposes of this suit. In addition to the .claims for labor actually performed, plaintiff also sues for statutory penalties on the various amounts of each laborer’s daily wages, from their respective dates of discharge by defendant until the wages earned shall have been paid. It is alleged that plaintiff and his said co-laborers were discharged without having been paid their wages.

It is alleged that the services which plaintiff and his assignors performed for defendant, and for which the wages are claimed, was “in the drilling and operation of certain oil and gas wells on a lease owned by the said defendant,” situated on lands in Webster parish, full description of the land being set out in the petition.

It is also alleged that to secure the payment of said wages and penalties plaintiff has a lien and privilege on “the oil and gas wells located on the above stated lease, drilling rigs and machinery, appurtenances, appliances, equipment and tools that were used in the said operations, above alleged, also has a lien and privilege on the oil and gas lease.” Writs of provisional seizure were caused to be issued by plaintiff, and the returns of the sheriff thereon show the following property was seized:

“Oil and gas wells, drilling rigs, machinery, appurtenances, appliances, equipment and tools used in the operation of said oil and gas wells on the following described property.” (Here follows the description set out in plaintiff’s petition.)

No appearance was made by defendant, therefore judgment by default was rendered for plaintiff as prayed for on September 19, 1930. Service upon defendant having been domiciliary, notice ' of the judgment was sought to be had but failed because defendant had in the meantime moved from the state. Whereupon- service of notice was made upon D. W. Stewart, Jr., attorney at law, appointed to represent the absent defendant, after which the seized property was advertised for sale under the judgment.

Pending the advertisement, O. C. Howell filed an intervention and third opposition, alleging ownership of a portion of the property seized, consisting qf certain of the machinery, tools and appliances, denied the existence of a lien in favor of plaintiff upon the property, and obtained a rule upon the sheriff and plaintiff, and defendant, to show cause why same should not be released from seizure. The Merrick Oil Company, Inc., also intervened, claiming ownership of other portions of the seized machinery and drilling outfit, also denied any lien in favor of plaintiff in suit. Stevens Machine & Boiler Works intervened, asserting a superior lien to that of the plaintiff upon the seized property, alleging that it had “performed certain shopwork, labor and repairs on the drilling rig, equipment, machinery, casing, pipes and tools, and general repairs and upkeep of said drilling rig, etc., of said James B. Liggett, between the dates of July 10th and August 25, 1930.” This claim is for $688.05. D. A. Culberson intervened, alleging that he was entitled to a lien and privilege superior to that of all other persons upon the seized property, by reason of the fact that he “did and performed certain work and labor on the drilling rigs, derricks, equipment, machinery, casing, pipes and tools, in the matter of dismantling, moving and rebuilding same, belonging to James B. Liggett between the dates of July 22, 1930 and September 5, 1930.” This claim is for $680. H. R. Hayes Lumber Company intervened, alleging that it sold and delivered to defendant Liggett and J. S. Martin, between the dates May 2, 1930, and June 22, 1930, certain lumber, paint, nails, cement and other building materials aggregating $645.17, which defendant used in the construction, operation and drilling of “what is known as the Taylor j£l and 2,” located on the leased lands; that said amount had not been paid and that it is entitled to a lien and privilege upon the seized property over that of all other persons.

The sale was withheld and the issues as thus made up were submitted to the court upon the following short agreed statement of facts:

“It is admitted' by all parties concerned that the ownership alleged by the Merrick Oil Company and O. C. Howell represents true ownership of the property alleged in the petition, which ownership is admitted.
“And the amounts of the liens of the Stephens Machine &' Boiler Company, D. A. Culberson and H. S. Hays Lumber Company are admitted as correct but the rank of all liens to be determined by the court.
“And the right of Frank B. Brown and all lienors to exercise their lien and privilege upon the property of O. C. Howell and the Merrick Oil Company is a question of law left for the determination of the court. Also the question of whether or not penalties constitute a lien is also left for the court’s consideration.”

Apparently the court reconsidered the issues involved between plaintiff and defendant in the original suit and on which the default judgment was rendered, as the court on the trial of the interventions decreed “that the judgment previously rendered — be maintained and enforced” as to the amount of labor actually earned ($851) recognizing and enforcing a superior lien and privilege upon the seized property to secure its payment, but rejecting the demands for penalties.

There was judgment for Stephens Machine & Boiler Works, for $688.05, with legal interest from November 26, 1930; for D. A. Culberson for $680, with legal interest from December 15, 1930; and for H. R. ’ Hayes Lumber Co. for $646.17, with legal interest from November 29, 1930. A lien and privilege of equal rank was recognized upon all of the seized properties in favor of these three interveners, but of inferior rank to that of plaintiff in suit; and all of the alleged liens were recognized regardless of the owner or owners of the properties. The demands of O. C. Howell and Merrick Oil Co., Inc., were rejected. These two last named interveners alone have prosecuted appeals. H. R. Hayes Lumber Company, Stephens Machine & Boiler Works and D. A. Culberson took orders of appeal but did not perfect same.

It is o.ur view that plaintiff in suit, Frank B. Brown, has no lien or privilege on the property under seizure, for the following reasons:

He alleges that the labor for which he claims a lien was performed in the “drilling and operation of the wells.” It is not alleged nor does the testimony show how much or what part of the labor was performed in the work of drilling, nor what part' in the operation, if any, of the so-called wells after they were completed and became producing wells, if they ever did become such. This information is essential for the court to have. Act No. 171 of 1928 is the only statute granting a lien and privilege on oil and gas well rigs, machinery, appurtenances and appliances connected with such wells, to laborers thereon, to secure their wages. It creates a lien and privilege only when the labor or services are performed in the operation of oil or gas wells. It does not create a lien for services performed in the work of drilling such wells. Such has been the construction placed upon the statute by this court in a number of recent decisions, the first of which was the case of Wesson v. John Woodley, Inc., decided February 16, 1932, and reported in 19 La. App. 369, 139 So. 676. A number of other similar cases have since been decided, not yet reported.

If the so-called wells were only being drilled, plaintiff would have a lien upon the wells themselves under the provisions of Act No. 172 of 1928, but not upon the machinery used in drilling, or upon the lease. This, of course, contemplates that the wells should become producing wells and not result in dry holes, for a dry hole would be worthless.

O. C. Howell, in his petition of intervention, alleged that the wells in question were only being drilled; that it leased the rig claimed by it to defendant Liggett for the purpose of drilling a well, and that in fact there is no oil and gas on the property. The Stevens Machinery & Boiler Works alleged that the work it performed was repairs on Li'ggett’s drilling rig, equipment, etc. Merrick Oil Company, Inc., likewise alleges it was a drilling rig which it had loaned to Liggett, and that Liggett used it in drilling the well or wells in question. D. A. Culberson alleges that the labor he performed for Liggett was on drilling rigs, etc., in dismantling and removing same.

In view of all of the pleadings as made up in the case, and the absence of any testimony to the contrary, we think it entirely reasonable to conclude that the labor performed for which plaintiff claims a privilege, was in the drilling of- the wells in question, and that no producing oil or gas well was brought in or completed. If such had been true, plaintiff had every opportunity to submit proof to that effect, but he failed to do so.

We, therefore, hold that plaintiff in suit had no lien qr privilege, under the statute upon the property under seizure. In view of this holding it does not become necessary to pass upon the question raised as to whether or not plaintiff in suit would have a lien on the drilling rigs qwned by O. C. Howell and Merrick Oil Company, Inc., third parties; one of. which was leased and the other loaned to Leggett with which to do the drilling.

The claim of lien by D. A. Culberson, and by Stevens Machine & Boiler Works for labor and repairs upon the drilling rigs, derricks, etc., likewise falls insofar as it is sought to bring them under the provisions of the statute.

Lien or privilege cannot be allowed unless expressly and unequivocally granted by statute, particularly when claimed by creditor on property of one who is not debtor nor liable for the', debt. Burn Planting Co. v. Goldman Landing Co., 163 La. 720, 112 So. 662; La. Dig., Privileges, 1930 Supplement.

O. C. Howell and Merrick Oil Company, Inc., who owned the drilling rigs, tools, appliances, etc., were not debtors of plaintiff, nor of the other interveners. We know of no statute and have been cited to none which creates a lien or privilege upon oil or gas well drilling rigs, derricks and appurtenances thereto attached to secure the wages of mechanics or other workmen in repairing, dismantling or removing them. Such liens would necessarily have to be created by statute, and particularly so when the rigs belonged to some third party and leased or loaned to the driller or drilling contractor.

As to the claim of the Hayes Lumber Company to a lien for lumber, paint, nails, and cement sold to defendant Liggett, and used by him in the construction and alleged “operating and drilling” of the so-called wells, the only lien which could have been in its favor was a vendor’s lien. Even though the rigs, derricks, etc., had belonged to Liggett, the vendor’s lien for materials, such as were here sold, could not be enforced for the reason that their species have been changed by being incorporated in with the rigs and derricks themselves. Pratt Engineering, etc., Co. v. Cecelia Sugar Co., 135 La. 179, 65 So. 100; Civ. Code, art. 3230; Swoop v. St. Martin, 110 La. 237, 34 So. 426.

As previously stated, the drilling rigs sought to be subjected to a lien by plaintiff and interveners, Culberson, Stevens Machine & Boiler Works, and Hayes Lumber Company, belonged to parties other than defendant Liggett. Treating of liens for work done or materials furnished the lessee of mining properties, 40 C. J. page 1172 cites a case from the state of Washington which held that the “lien does not extend to machinery used by lessee but not owned by him or attached to the soil in any way. Mattocks v. Great Northern R. Co., 94 Wash. 44, 162 P. 19.” However, no such liens attach in any case except by statute, and we know of none in this state on the particular subject.

The intervener claimants of liens have made no appearance before this court, which strongly indicates that they now think their claims are without merit.

For the reasons assigned, the judgment appealed from is reversed and set aside in so far as it recognizes liens in favor of plaintiff in suit, and the interveners, D. A. Culberson, Stevens Machine & Boiler Works and H. R. Hayes Lumber Company, and in so far as it rejected the demands of O. C. Howell and the Merrick Oil Co., Inc. It is now ordered, adjudged, and decreed that said plaintiff, Frank B. Brown, and said interveners, D. A. Culberson, Stevens Machine & Boiler Works and H. R. Hayes Lumber Company are declared to have a lien or privilege upon said property to secure the respective sums for which they obtained judgment against James B. Liggett, defendant, and that their said claims for a lien are hereby rejected.

It is further ordered and decreed that O. C. Howell and the Merrick Oil Co., Inc., be and they are hereby decreed to be owners of the property for which each respectively intervened, and as such entitled to and sent in possession thereof, free of any lien or privilege herein claimed upon same.

It is further ordered and decreed that the costs of the main suit, except as to that of the seizure, be paid by defendant James B. Liggett; that the cost of the seizure and of the interventions of O. C. Howell and Merrick Oil Co., Inc., be paid by plaintiff in the main suit, and that D. A. Culberson, Stevens Machine & Boiler Works and H. R. Hayes Lumber Company each pay the costs of their respective interventions.

It is further ordered and decreed that said judgment be otherwise affirmed.


text:
    No. 4315
    Second Circuit (Second Division)
    MRS. ELOISE B. MULLEN v. E. D. GREEN REALTY CO. (K. S. BIGGERS, Intervener and Third Opponent)
    (May 4, 1932. Opinion and Decree.)
    ■ Dimick & Hamilton, of Shreveport, attorneys for plaintiff, appellee.
    Foster, Hall, Barret & Smith, of Shreveport, attorneys for intervener and third opponent, appellant.
   STEPHENS, J.

The plaintiff obtained a judgment against the defendant and caused to be issued a writ of fieri facias on October 14, 1931, and to be seized thereunder a promissory mortgage note in the sum of $475, executed by Mary Waterman Evans, to the order of herself and by her endorsed in blank.

The note was seized while in the possession of Texas Lumber Company, Incorporated, as the property of defendant, B. D. Green Realty Company, Incorporated.

After the seizure, K. S. Biggers filed an intervention and third opposition, claiming to be the owner of the note by assignment from the defendant, E. D. Green Realty Company,. Incorporated, the pledgor, subject to the rights of the pledgee, the Texas Lumber Company, Incorporated; the assignment of the rights and interests of the former owner and pledgor, the defendant, E. D. Green Realty Company, .Incorporated, having been notified to the Texas Lumber Company, Incorporated, the pledgee, prior to the date of seizure.

Plaintiff filed an exception of no cause or right of action to the intervention and third opposition, which was sustained by the trial court. The intervener appealed from that judgment.

By consent of counsel, the judgment sustaining the exception of no cause of action is reversed and annulled, and the case is ordered remanded to the trial court for further proceeding according to law.


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    No. 4345
    Second Circuit (Second Division)
    SEAGULL GASOLINE CO., INC., v. TIEUEL
    (May 4, 1932. Opinion and Decree.)
    Wilson & Abramson, of Shreveport, attorneys. for plain-tiff, appellee.

      Malcolm W. Feist, of Shreveport, attorney for defendant, appellant.
   STEPHENS, J.

The plaintiff sued and obtained judgment against the defendant in the sum of $1,081. The defendant was granted orders of suspensive and devolutive appeal. After the transcript had been lodged in this court, the law firm of Wilson & Abramson, which had represented the plaintiff in the trial court, appeared and obtained an order, founded on the averment that it had secured an assignment of the judgment from the plaintiff, substituting itself as party plaintiff-appellee.

The substituted appellee then moved to dismiss the appeal, and was met with an exception of no cause of action, filed by the appellant, founded on article 2447 of the Civil Code:

“Public officers connected with courts of justice, such as judges, advocates, attorneys, clerks and sheriffs, can not purchase litigious rights, which fall under the jurisdiction of the tribunal in which they exercise their functions, under penalty of nullity, and of having to defray all costs, damages and interest.”

Clearly, the partnership of Wilson & Abramson has purchased a litigious right, in the meaning of the article of the Code, and said purchase is a nullity. State v. Nix, 135 La. 811, 66 So. 230; New Orleans Gas Light Co. v. Webb, 7 La. Ann. 164; Watterston v. Webb, 4 La. Ann. 173; Pipes v. Norsworthy, 25 La. Ann. 557; Stafford v. National Fire Insurance Co., 164 La. 409, 114 So. 78; Illg & Valentino v. Regan, 166 La. 70, 116 So. 673.

The exception of no cause of action is therefore sustained; the order substituting Wilson & Abramson as party plaintiff-appellee is recalled and set aside; the original plaintiff-appellee is reinstated in that capacity, and the case is ordered returned to the calendar of this court for further proceedings, according to law.


text:
    No. 4242
    Second Circuit (Second Division)
    NOTTINGHAM v. HOSS
    (May 4, 1932. Opinion and Decree.)

      Cook & Cook and C. D. Egan, of Shreveport, attorneys for plaintiff, appellee.
    '.Edward Barnett, of Shreveport, attorney for defendant, appellant.
   TALIAFERRO, J.

On February 22, 1923, Hugh Spears, then a resident of Caddo parish, Louisiana, mortgaged to A. J. Hoss, defendant herein, the following described land, viz.:

“SE¼ of SE¼; also a strip of land on west side of SE% of SE%, Sec. 32, T. 23 R. 15, containing 16 acres, more or less.”

The location of the'land, (parish and state) is not given in the mortgage. It was properly registered in Caddo parish on March 1, 1923. Hoss began foreclosure proceedings on the mortgage, by ordinary process, March 22, 1928, and the mortgagor having removed from the state, a curator ad hoc was appointed to represent him. The petition in this foreclosure proceeding describes the land mortgaged as being:

“32 acres of land in Section 32, township 23, Range 15; and more particularly described as follows:
“A strip of land on the east side of the Southwest quarter of the southeast quarter; also a strip of land on the west side of the southwest quarter of the southeast quarter; each piece east and west 8 chains, and north and south 20 chains containing 16 acres in each piece,”

notwithstanding a certified copy of the act of mortgage is attached to and made part of the petition. Defendant made no appearance in the case and judgment by default was confirmed against him on May 2, 1928. The descriptions of the land in this judgment; in the execution issued thereunder; in the sheriff’s return; in the advertisement of sale and in the sheriff’s deed to Hoss, are all exactly like that contained in the petition in the foreclosure suit, being No. 47,966 on the docket of the district court for Caddo parish. There is no allegation in said petition of error in the description of the land in the mortgage and, of course, no prayer for reformation of the description to any extent on account of error.

In March, 1931, Hugh Speaps, by warranty deed, sold and conveyed to plaintiff the following described tracts of land, viz.:

“Thirty-two (32) acres in Section Thirty-two (32), Township Twenty-three (23) North, Range Fifteen (15) West, Caddo Parish, Louisiana, described as follows: A strip of land on the East side of the Southwest quarter of the Southeast quarter; (SW¼ — SE¼); also a strip of land on the West side of the Southeast quarter of the Southeast Quarter (SE¼—SE¼); each piece East and West being eight (8) chains, and North and South twenty (20) chains, and each containing sixteen (16) acres.”

who then instituted this suit, a petitory action, against defendant to recover that part of said land described as follows:

"A strip of land on east side of SW,4 of SE% Sec. 32, Town. 23 N. R. 15 W., containing 16.00 acres, more or less, and measuring 8 chains, east and west, and twenty chains, north and south,” in the parish of Caddo, Louisiana.

In the petition specific reference is made to the foreclosure suit, No. 47,966, and that proceeding is attacked as being illegal in so far as it affects, or undertakes to convey title to Hoss of the sixteen acres involved in the present suit.

Defendant admits title to and possession of said land through the sheriff’s deed from Spears. He avers that there was patent error in the mortgage from Spears to him which was corrected in the foreclosure suit; that plaintiff acquired the land from Spears long after Spears had lost title thereto; that the judgment in said foreclosure suit was res adjudicata. He prays to be recognized as owner of the land in question and that plaintiff’s suit be dismissed.

The district court decreed plaintiff owner of the land and defendant has appealed.

The note of evidence in this case consists of the entire record in suit No. 47,966, referred to above, including the sheriff’s deed to defendant, plus the deed from Spears to plaintiff.

We only have the bare allegations of defendant’s petition and the statement of his counsel in brief that there was error in the description in the mortgage from Spears to Hoss, and that the sixteen-acre tract involved in this suit should have been incorporated in that mortgage in order to meet the intention of the parties thereto. That there was error in the mortgage description is patent because the sixteen-acre tract therein described is included in the call for the SE% of SE1/^. There is repetition to the extent of the sixteen-acre tract, but the description which the parties intended to place in the mortgage is not specifically declared in the foreclosure proceeding.

It is quite clear that the court was without power to reform or correct the description of the land in the Spears mortgage without appropriate allegation declaring the nature and extent of the error, supported by proof on trial, and equally without the power to recognize the mortgage as affecting lands not described therein, and, especially is this true when a copy of the mortgage itself is attached to and made a part of the petition. In such circumstances the copy of mortgage controls the allegations of the petition where there is variance or contradiction. Therefore, so far as the judgment, recognizes the mortgage as affecting the sixteen-acre tract involved in this suit is ultra petitionem. Citation of authority to sustain these principles seems unnecessary.

Defendant contends that the judgment in the foreclosure suit cannot be collaterally attacked. A judgment that is absolutely null and void on its face, or which fact may be determined from the pleadings leading up to the judgment, may be attacked other than in a direct action.

Andrews v. Sheehy, 122 La. 464, 47 So. 771; Decuir v. Decuir, 105 La. 481, 29 So. 932; Brigot v. Brigot, 47 La. Ann. 1304, 17 So. 825.

However, plaintiff has alleged that the judgment in the foreclosure suit against Spears is illegal, null and void in so far as it attempts to convey title to the land involved in the present suit.

A foreclosure suit against a non-resident is essentially in rem. No personal judgment can be rendered against the defendant beyond the property involved. The suit is simply one to have recognized a preexisting right against property within the jurisdiction of the court. Proceedings in such a case must conform strictly to law and nothing may be done to prejudice the rights of the absentee not clearly within the power of the court.

In George, Curator, v. LeGrande, 3 La. Ann. 652, the court held:

“That the appointment of a curator ad hoc in a foreclosure proceeding is valid only for the purpose of foreclosing the mortgage upon the property actually mortgaged.”

In Willis et al. v. Thomason et al., 1 La. App. 313, it was held:

“As between the parties to a sale under foreclosure of a mortgage, such parties are estopped to attack the sale collaterally, but as to creditors and all other third persons, a sale made solely in foreclosure of a mortgage does not pass any property, except that which was covered by the mortgage. Such persons, creditors, and other third parties are not estopped to attack such sale collaterally.”

And in Coguenhem v. Trosclair, 137 La. 985, 69 So. 800, 801, the Supreme Court said;

“In the act of mortgage by Trosclair to LeBourgeois & Bush, under which the foreclosure sale took place, the property mortgaged was declared to be the Laurel Grove and Enterprise Plantations, ‘with all buildings and improvements thereon,’ and the metes and bounds were given. No mention was made of any servitudes or tramways. But in the act of sale to Trosclair the servitudes and tramways were specifically mentioned, and they were specifically mentioned at every step in the foreclosure proceedings, to-wit: In the petition; in the order for foreclosure; in the advertisement; in the sheriff’s deed; and in his return upon the writ. * * * But these reasons for estoppel would not apply to the plaintiff, a creditor of Trosclair; and, as to such a creditor and all other third persons, we prefer to adhere to the rule that at a sale made in foreclosure of a mortgage property not covered by the mortgage does not pass.”

The laws of registry are designed to protect innocent third persons in the acquisition of real rights. There is no charge or intimation against the good faith of the plaintiff. He could have examined the foreclosure proceeding against Spears and found nothing therein affirmatively showing that the sixteen-acre tract he purchased from Spears was included, or intended to have been included, in the mortgage to Hoss. On the contrary, he would have found the mortgage did not so include that description and the foreclosure proceedings do not declare any error to be in the mortgage.

The judgment appealed from is affirmed.


author: DREW, J.

text:
    No. 4099
    Second Circuit (Second Division)
    VERGO v. SHREVEPORT RYS. CO.
    (February 16, 1932. Opinion and Decree.)
    (March 16, 1932. Rehearing Refused.)
    Cook & Cook and C. D. Egan, of Shreveport, attorneys for plaintiff, appellant.
    Wise, Randolph, Rendall & Freyer, of Shreveport, attorneys for defendant, appellee.
   DREW, J.

Plaintiff, Joe Vergo, for himself and fqr the use of his minor son, Bastiano Vergo, ten years of age, instituted this suit against the Shreveport Railways Company to recover the sum of $42,500 damages, caused by an accident occurring on April 21, 1930, about 4 o’clock in the afternoon, on Texas avenue in the city of Shreveport, near the intersection of Division avenue, in which accident plaintiff's minor son lost his right leg.

It is admitted that the child started across Texas avenue at a point between Allen and Division avenue, and either the child was struck by a passing automobile or else a satchel of books which he was carrying in his hand was struck by the automobile and, as the result of coming in contact with the automobile, he was thrown or knocked onto the street car track in front of an approaching street car. It is admitted that the street car passed over the child or dragged the child, and so damaged his leg as to necessitate its amputation, also causing some injury to the hip and bruising the body. Plaintiff charges the following acts of negligence on the part of defendant:

1. That the street car was being operated at an excessive rate of speed and in excess of ten miles per hour, in violation of a city ordinance;

2. Failure to stop the car after the child fell on the track, by failing to apply the brakes;

3. Failure of the motorman to keep a proper lookout; and

4. Failure to have the street car equipped with fender qr life-saving device of the most approved design, and failure to drop the fender or trap that the car carried.

Defendant denied the acts of negligence charged to it by plaintiff, and alleged that the negligence or fault of the said Bastiano Vergo, or others over whom defendant had no control, was the proximate or sole cause of the accident, in said Bastiano Vergo attempting to cross the street at a place other than an intersection in close proximity to an approaching automobile without taking proper precaution to ascertain the approach of said automobile, and in going onto said street when the automobile was in such close proximity as to strike him, resulting in his being thrown or knocked to the pavement, with his leg across the track of the defendant company, so close to the approaching street car that it was impossible to stop the same in time to avoid the said accident; which negligence bars plaintiff’s recovery herein.

In the alternative, it pleaded the contributory negligence of Bastiano Vergo, as above alleged, as a bar to recovery.

The case was tried before a jury in the lower court, resulting in a verdict for defendant, the jury standing ten to two, which judgment was signed by the trial judge and plaintiff has prosecuted this appeal.

The fourth charge of negligence, that the car was not equipped with proper fender or trap and that same was not lowered, has been abandoned and the same is not urged in this court in argument or brief.

The third charge of negligence, that the motorman failed to keep a proper lookout, fails for want of proof. There is no testimony to show that he was not keeping a proper lookout, and the motorman. testified that he saw the child before or about the time the automobile struck him and knocked him onto the track, and until the street car struck him;

The second charge of negligence, that the brakes were not applied as soon as they should have heen, likewise fails as the preponderance of testimony is that the brakes were applied almost at the instant the child was struck by the automobile and as soon as it could be seen that he was going to be thrown on the, car track. Therefore, the only charge of negligence left is that the car was being operated at an excessive rate of speed and in excess of ten miles per hour, in violation of a city ordinance.

The city ordinance provides that a street car shall not be operated in the business section of the city at a greater rate of speed than ten miles per hour. The evidence is that the accident occurred in the business section of the city; therefore, the speed of the street car allowed by law at the place of the accident was ten miles per hour. Plaintiff contends that even ten miles per hour was excessive, due to the congested traffic at that time of day and also the congested traffic, due to a street carnival in operation on a vacant lot just opposite the scene of the accident. This contention is without force as the record discloses without contradiction that the street carnival was not in operation at that time of day and also at the time of the accident there were not more than two cars in motion in that block of the street, and the only person in the street was the unfortunate Bastiano Vergo. Numerous witnesses as to the speed of the car vary from eight to twenty miles per hour. However, the majority of the witnesses place the speed of the car at from ten to twelve miles, or twelve to fifteen miles per hour. It is difficult for any of them to fix the speed other than to say that it was traveling at an ordinary rate of speed, and to fix it in miles per hour was only to hazard a guess as no witness claimed to he an expert at fixing the speed of the street car. The two witnesses best qualified to fix the speed of the car were the motorman and conductor, who knew their schedule and rode the car daily, and both of these witnesses say the car was making from ten to twelve miles per hour, and for what it is worth, were corroborated by other witnesses, and we feel safe in accepting their testimony in regard to the speed of the car, which would make the car at the time of the accident exceed the speed limit as fixed by ordinance of the city of Shreveport. Therefore, the negligence charged to defendant by plaintiff of exceeding the speed limit of ten miles per hour, we think, is sustained by the evidence, but it was not the proximate cause of the accident. If the street car had been making only eight miles per hour, the accident could not have been avoided by the defendant’s employees.

The uncontradicted testimony is that the boy, Bastiano Vergo, in an attempt to cross the street at a place other than an intersection, ran out between two parked automobiles, directly in the path of the only automobile moving at that time in that particular block of Texas avenue. That the automobile struck him and knocked him onto the track of the defendant company, directly in front of an oncoming street car. The distance the street car was from him at the time he fell on the track, according to the witnesses, varies from five feet to sixty feet, but the great preponderance of testimony is that it was not more than twenty feet, and certainly too close to the car for it to have been stopped, had it been making much less than speed limit. A number of plaintiff’s witnesses placed the distance at from twelve to twenty feet and stated that it was too close to the car for the motorman to have had time to stop the car. Several witnesses testified that they turned their heads upon seeing the boy thrown onto the track, to prevent them from seeing him run over.

At the time plaintiff filed this suit, he undoubtedly thought the distance was not more than twenty or twenty-five feet in front of the car, as he so alleged. The testimony shows that the boy was not unconscious at any time, and also shows that he attempted to remove himself from the track, and the only reason he did not remove himself from the track was because the car was too close to him and he did not have time to do more than raise up on his elbows.

Bastiano Vergo’s father testified that he had repeatedly warned him of the danger of crossing the street other than at an intersection, and Bastiano testified that he knew the danger of attempting such a crossing of the street. He was in his eleventh year, born in this country, and had attended school for four years, making a grade every year. He was capable of knowing what he was doing and must be held responsible for his acts of negligence. His negligence in running out into the street in front of an automobile which struck him and threw him onto the track in front of the moving street car, too close to the car for the motorman to have time to stop the car, was the proximate cause of the accident and the speed of the car was not the proximate cause of it.

The uncontradicted testimony of an expert on stopping street cars at different speeds is that a car, moving ten miles per hour, when suddenly confronted with an emergency cannot be brought to a stop in a less distance than 58 feet. This testimony is uncontradicted and the court, not being experts in this line, necessarily in this case accepts it as true.

The last clear chance doctrine urged by plaintiff has no application in this case. Hayes v. Gunter Bros., 14 La. App. 402, 129 So. 401; Collier v. Frank Varino & Co., 153 La. 636, 96 So. 500.

Plaintiff contends that although the defendant. was not liable for the accident, due to the fact that its street car was exceeding the speed limit by one or two miles per hour, the child was dragged a distance of possibly 15 to 20 feet farther than it would have been had the car been traveling within the speed limit, and that the defendant is therefore liable for the additional injuries caused to the child by dragging it this extra distance, and cites in support of this contention the case of Pilsbury v. O’Keefe, Receiver, et al., 1 La. App. 493. The case cited has no application here for, the reason that there is no proof that the child received any additional injuries after the initial accident. In the Pilsbury case, it was conclusively proved that the child’s hip was injured after the car had stopped, due to the negligence of the motorman in backing the car over it again, against the instructions of the conductor.

The contributory negligence of Bastiano Vergo was the proximate cause of the accident and bars his recovery in this case. It is therefore ordered, adjudged, and decreed that the judgment of the lower court be affirmed, with all costs.