text:
    No. 4138
    Second Circuit (Second Division)
    KOCH v. SOUTHERN CITIES DISTRIBUTING CO. ET AL.
    (December 9, 1931. Opinion and Decree.)
    (January 14, 1932. Rehearing Refused.)
    (February 8, 1932. Writs of Certiorari and Review Refused by Supreme Court.)

      Jackson & Smith and F. A. Blanchard, of Shreveport, attorneys for plaintiff, appellee.
    Barnette & Roberts, of Shreveport, attorneys for defendant, appellant.
    Herold, Cousin & Herold, of Shreveport, attorneys for defendant A. & J., Inc.
   CULPEPPER, J.

A. & J., Incorporated, own a building three stories high, divided into three stores, at the corner of Louisiana avenue and Milam street, Shreveport. La., all fronting on Milam street, known generally as the Saenger building. The corner store was occupied by the Hawkins Drug Company, Inc., of which plaintiff was president.

On the morning of January 12, 1930, plaintiff came to the store about 7 a. m., opened it up, and lighted the coffee urn. Underneath the building there is a basement. There was a trapdoor leading from the drug store into the basement, and which was kept closed. The gas meter which measured the natural gas that supplied the store was located in the basement, as were the carbonic acid gas tank and frigidaire, both connected with the fountain. Each of these contrivances had an electric motor attached to it.

Frank Malloy, who worked at the soda fountain, arrived at the store at about 7:20 a. m., shortly after the plaintiff arrived. He complained to the plaintiff that he smelled a disagreeable odor, and, thinking possibly it was fumes from a formaldehyde bottle left open, he and the plaintiff examined it and found it closed. The plaintiff testified that he was suffering from a cold and did not smell the odor. Frank Hicks, who was in the basement a day or two before the explosion, complained to Mr. Hawkins of being conscious of the basement being stuffy and causing a headache.

A few minutes past 10 o’clock a terrific explosion took place in the basement of the drug store, which was so violent that it almost completely wrecked the building. The floors were pushed up, and the walla were pushed out. Some of the soda fountain equipment was thrown across Louisiana street. Malloy, who was working behind the soda fountain, was hurled into the street. Plate glass windows in the furniture store on Milam street, and glass windows in the second-story of the City Hall building, across the street, were broken. In this explosion plaintiff received severe injuries.

A. & J., Incorporated, the owner of the building, and the Southern Cities Distributing Company, hereinafter referred to as the Southern Company, having the franchise to distribute natural gas in general consumption in Shreveport, were made defendants. One of the six-inch mains of the Southern Company had been laid under the pavement in Louisiana street parallel with the Saenger building, but across the street about six feet from the curb. A service tee was inserted in this main opposite the drug store, and a service line or lateral connected with this, tee was projected across the street to the sidewalk in front of the drug store. In order to project this line, and to avoid digging up the pavement across the street, the sidewalk in front of the drug store was excavated to the wall, and a two-inch pipe was cut in six-foot sections, inserted in the excavation, and was jacked or forced across the street, just under the pavement. The wall, or a concrete pier, of the Saenger building was used against which to set the jack. These six-foot lengths of pipe were fastened together as each section disappeared under the street pavement. When the end finally-reached the main, at the place desired, it was somewhat lower than the main, and it had to be lifted to connect with the •tee which had been inserted in the main.

About a year and a half before the explosion there had been a fire in the Saenger building which made it necessary largely to reconstruct it. The old service pipe which had been in use before the fire had been laid across t,he street to the main in substantially the same place as the main which was in use at the time of the explosion. Instead of removing this old service pipe or lateral, when the new lateral was placed, it was left where it was, and is referred to in the testimony as a dead pipe with both ends open. One end of this .pipe was just inside the curb in front of ' the drug store, while the other end was some twelve or fifteen inches from where the present service lateral connected with the main.

The curb cock was set in the pavement in front of the Saenger building on Louisiana street. It was set in place by the Southern Company, is owned by it, and is a device for shutting off the gas. Prom the curb cock through the remaining sidewalk and into the building the pipes were installed by the owner of the building. This work was done by Mr. Earl C. Schavey, a licensed plumber of Shreveport. When the house service pipes were installed, it was necessary to again excavate the sidewalk •to the wall of the building and effect an entrance into the basement of the building, so that the sidewalk at this point was twice excavated, the holes twice refilled, and the sidewalk twice replaced, some eighteen months before the explosion.

On account ~of the extreme violence of the explosion and of the damage done both to persons and property, both defendants began investigations to determine, if possible, its cause. A. & J., Incorporated, called in Mr. Schavey, who had installed the plumbing in the building, including the gas. pipes. The Southern Company had recourse to its own organization which is equipped for that kind of work.

Nowhere in this voluminous record has there been but two causes assigned for this explosion. One of these was the accumulation of natural gas in the basement; the other being sewer gas- accumulated in sufficient quantities- in -the basement to cause an explosion. The experts all agree that natural gas is always explosive when confined, as it undoubtedly could have been in this basement, and ignited, whereas sewer gas sometimes, is explosive and sometimes not, depending upon whether sufficient methane is found therein, and likewise confined as it could have been in this basement and ignited.

The representatives of both defendants made some preliminary investigation on the day of the explosion, which was a Sunday. The Southern Company started in earnest the next morning after the explosion and continued for a week or ten days. Mr. Schavey did some little work on Sunday, and possibly on Monday and Tuesday following, but did not do much work until the following Wednesday.

Both defendants continued active until what they considered all relevant facts that might have had some bearing on the explosion were developed. Mr. Si. Hazelmeyer, who had installed the service lateral in use at the time of the explosion, was. active in the investigation for the Southern Company, as was also Mr. Lytle, general foreman of that company, Mr. McBride, the general superintendent, Mr. Smith, the superintendent of operation and construction, and Mr. Hamilton, the claim agent and valuation engineer. They made all sorts of tests in that vicinity. On Wednesday morning Mr. Schavey made a test at the curb box on the sidewalk by pouring water down around the curb box and a series of bubbles came up. After dinner he went over to the point where the service lateral was connected with the main. There is some conflict in the testimony as to whether there was a depression in the street at this point, but the preponderance of the testimony, we think, is that there was. Mr. Schavéy said he was impressed with this depression, which he describes as about three feet square, and was at the point where the service lateral joined the main. He then drilled, or needled, a hole partly through the pavement at this point, and gas came out. It was set on fire, and blazed up about eighteen inches.

Representatives, of the city, the Southern Company and A. & X, Incorporated, wore all present and took part in what followed. A hole was then again dug at the curb that afternoon at the curb cock at the Saenger side of the street by the Southern Company’s representatives, about three feet square and about thirty inches deep, and no gas was found to escape. It had been raining, however, since they had dug the previous hole, and the bottom of the hole was full of mud. A test was. made to ascertain if gas was escaping by applying a flame, but with a negative result. The end of the old dead lateral or service pipe was then cleared of mud, the hole on the other side of the street stopped up, the light applied, and the gas flowing through this old lateral then blazed up with a roar.

An excavation was then made at the point where the service lateral joined the main. The service tee inserted in the main was. found kicked out, and left leaning toward Milam street. A small portion of the main was flaked off of the main where the tee was screwed in, but on the opposite side of the tee from Milam street. About three or four threads of the tee where it had been screwed into the main were bright. The remaining seven or eight threads were rusty.

The case was tried before a jury. A verdict was returned in¡ favor of the plaintiff against the Southern Company, for $35,995, the full amount sued for. The demands against the other defendant, A. & X, Incorporated, were rejected. A motion for a new trial was filed by the defendant cast, which was overruled, and it alone appeals.

The record is voluminous. The oral testimony covers over six hundred typewritten pages. It will therefore be impossible to discuss in detail the testimony of each witness without drawing this opinion out to an inordinate length, although it has been carefully considered in connection with the able briefs and oral arguments of counsel representing all parties.

The testimony clearly establishes, as nearly as human testimony can make certain any controverted fact, that the damage complained of was not caused by an explosion of sewer gas. In fact the very able and resourceful counsel of the Southern Company does no more than suggest that it was possible for sewer gas to cause this explosion. We think it is clear that if it had been possible for sewer gas to cause this explosion, it would have been incumbent upon the Southern Company, in view of the gas leak in its main which was found, to establish not only that a sewer gas leak was present in or near this basement, but that such sewer gas. was of the explosive kind rather than the innocuous sort that would not explode, and that this sewer gas rather than natural gas was the cause of the explosion. No sewer gas of any kind was found by any one.

But every one agrees that natural gas, when confined, is, highly explosive, and a leak in the gas main of the Southern Company was found and its movement was positively traced, after the explosion, to within twelve feet of the basement of the Saenger building.

Counsel for the Southern Company strongly urge that “plaintiff was never able to get the gas nearer than twelve feet of the building.” This argument is based upon the fact that the sidewalk is twelve feet wide and the end of the dead lateral service pipe came just inside the curb, where the gas did come through from the main on the City Hall side of Louisiana street to the hole excavated at the curb cock in the sidewalk.

But it is in evidence that excavations had twice been made in the sidewalk when natural gas was installed in the building about eighteen months before the explosion. One excavation was made by the Southern Company in order that the jack or device used for forcing the pipe across, the street to the six-inch main might rest against the wall or concrete pier of the Saenger building. The other was made by Mr. Schavey, the plumber, when he connected the house pipe with the curb cock, at the curb box, installed by the Southern Company. The soil of these excavations, when repaired and the sidewalk replaced over it, was not replaced as compactly as it was, originally.

Moreover, witnesses for defendant testify that, frequently in the process of jacking or forcing this service lateral across the street, it sometimes took five or six efforts before the pipe would be projected to the right point for connecting with the main, so that undoubtedly holes, would be left in the earth alongside this lateral as a result of each failure, in addition to this old dead lateral itself, which had also been left parallel with the new lateral.

Counsel for the Southern Company very strongly urge that the break found at the connection of the service line or lateral and the gas main was itself caused by the explosion. But we cannot agree with that conclusion. The service tee has from ten to twelve threads, and the tee itself tapers slightly from where the threads begin to the end of the tee. This makes it necessary for the tee to be screwed into the main snugly to prevent its becoming loose. The Southern Company admits that from the bright appearance of the threads on the tee it was not inserted into the main more than four or four and a half threads.

The weight of the testimony we think establishes that the insertion of the service tee only three or four threads into the main was not a proper connection. And we are impressed that, if the tee had been screwed in deeper so that it would have fitted in snugly and close into the main, it would not have “kicked” out. If the force of the explosion had been sufficient to disconnect the tee from the main some thirty-five or forty feet distant from the explosion, if screwed into the main properly, there would have been either a rupture of the threads, or a break completely through the main, and not just a thin flake off the surface, and the city engineer of Shreveport so testifies, and we are greatly impressed by his testimony.

There is no. testimony from any source that the threads on this tee were either stripped, or even slightly ruptured. It is contended that the small flake broken from •the main and estimated to be from one-eighth to one-fourth inch thick, would enable the tee to be “kicked” out without rupturing the threads, but the shell of the main is 45/100 of an inch thick. If the tee had been screwed in tight and snug into the main, for anything like the number of threads on the tee, this force, we think, whatever it was, would have either stripped or ruptured the threads, or broken the shell of the main as deep as the threads were inserted, or, what is most likely, would have at all times held firm with no resultant leak whatever. This flake which had broken out represents, we think, the full depth to which the tee was inserted into the main. Besides, in screwing the tee into the oval surface of the main, the bright threads on the tee would not be uniform in number all the way round as if screwed into a flat surface.

A careful consideration of the testimony has convinced us that this break took place before the explosion, caused probably by traffic over the pavement, and that the leaking gas therefrom found its way either through this old dead service lateral, or through the perforations under the pavement made by the act of forcing the new lateral under the pavement, to where it connected with the main. The surface of the street was a perfect seal, preventing the escape of the gas upward, and the sidewalk was almost, if not equally, effective, except possibly for the cover of the curb cock. If this dead service lateral was open at both ends, as it was, or if, as the testimony shows, several holes were punctured under the pavement, and no water could penetrate immediately beneath the pavement to seal these fissures or punctures, as seems likely, then there would be two excellent means, either being effective, by which the escaping gas could get to, and under the sidewalk. The sidewalk, as we have seen, had been excavated in order to jack this pipe across the street. This excavation, we infer from the testimony, was followed by another excavation soon after, to enable the plumber to run the pipe from the curb cock into the building. In replacing this pavement, the earth beneath was left more or less loose with the gas pipe and possibly fissures running through it that would enable the gas to penetrate the soil and pass through it to, and between, the concrete piers into the basement of the building. And while some of the gas might have escaped through the cover in the curb cock, still the close fitting cover and the fine dust and sand in the interstices around the curb box cover would no doubt effectively shut off a part of it, while the rest undoubtedly found its way into the basement of the building. And this conclusion is readily arrived at in the absence of any other source from which the gas could have come.

Natural gas confined within the basement could have caused this explosion. If this tee was disconnected before the explosion, as we think it was, the gas could have been conveyed perfectly to within twelve feet of the building, and we think could also have penetrated, and did penetrate and pass through, the loose soil from this, point under the sidewalk into the basement.

The Southern Company contends that plaintiff has not proven that the explosion was caused by escaping gas, that it belonged to defendant, or that it escaped through its negligence, and that all of these essential facts must concur and be proven with legal certainty before he can recover.

We think the evidence fairly establishes •that the explosion was caused by the accumulation of natural gas in the basement of the building. And we also think that the evidence establishes that the escaping gas belonged to appellant, and that it escaped from the break where the service tee connected with the gas main.' And this train of circumstances was brought about, and was, we think, the evidence establishes, the direct result of appellant’s, negligence in improperly fitting this service tee in the gas main.

That some three or four of the threads of this service tee were bright adds weight to the conclusion that, due to the improper connection at the main, it had become disconnected just long enough before the explosion to admit of enough escaping gas flowing to the basement to fill it with gas, and that it was set off by some agency in the basement, probably by an arc from one of the electric motors installed therein.

But it is not necessary that plaintiff should, after establishing that there was a leak in appellant’s main in close proximity to the building with a perfect conduit for the escaping gas to within twelve feet of the building, then follow the escaping gas inch by inch into the basement of the building. In the case of Castille v. Cormier, 144 La. 640, 81 So. 210, 213, the Supreme Court held that “it does not follow, because a fire occurs after an engine has passed, that the one happening is the necessary consequence of the other, but we have not held that, where a fire occurs, the ignition of which is explicable by the proximity of an engine capable, through negligence, of emitting sparks and cinders, and upon no other theory which has any support in the facts, it is necessary, in order to entitle the owner of the burned property to recover, that he should have followed the spark or cinder from the engine to the property and watched the process of ignition.”

Natural gas is a dangerous agency. Its distribution is accompanied by many possible dangerous consequences, and it is therefore well established that a higher degree of care and vigilance is required in dealing with such agency than is required in the ordinary affairs of life. A degree of care commensurate to the danger involved is required of a distributor of natural gas to avoid injury and damage and, in case of failure to exercise such care, and injury results, it is liable.

In the casé of Feely v. National Packing Co., 141 La. 903, 75 So. 837, 839, there were two defendants charged with negligence which caused an explosion similar to the one at bar. One of them was charged with permitting ammonia fumes to escape which, it was charged, caused the explosion, and the other defendant was charged with permitting Pintsch gas' to escape. The court held in that case that the explosion could not have come from the ammonia, just as we hold here that the explosion from the evidence adduced, could not have come from sewer gas. After the explosion, a leak was found in the Pintsch gas pipe under the sidewalk, and just above this leak was a six-inch terra cotta drain from the cooling room which had a hole in it. The gas pipe was incased in cement four inches thick and additionally in wooden boxing. From this the gas company argued the improbability of the gas penetrating these substances, and through packed earth for nine to twenty-four inches, and reaching the hole in the drainpipe. In passing upon the facts thus set out, the court said:

“In view of the evidence establishing positively that this explosion could not have come from the ammonia, and in view of the .absence of all source from which it could have come other than this Pintsch gas, and in view of the fact that to several of the witnesses the odor in question was that of Pintsch gas, we have come to the conclusion that this Pintsch gas was the cause. * * *”

The case of Wolff v. Shreveport Gas, Electric Light & Power Co., 138 La. 743, 70 So. 789, 791, L. R. A. 1916D, 1138, was one involving an explosion resulting from a leaking gas pipe in a basement of a building on Texas street in the city of Shreveport. The injuries resulting from the explosion were to a passerby on the street in front of the building. The explosion was held to have resulted from a leaking gas pipe, which to use the language of the court, “was very thin and covered with rust, which, by the jarring of the floor, might have been shaken off, leaving pits or holes through which the gas could escape.’’

Under the facts thus disclosed, which we think were as strong' for the defendant, if not stronger, than are the facts for the appellant here, the court held the gas company liable.

The jury allowed the plaintiff the full amount sued for, $35,995, which amount, we think, is excessive. Plaintiff, at the time of his injuries, was 38 years of age, enjoying good health, and was earning $250 per month. The explosion rendered him unconscious. He was lacerated and torn about the body, and his nose and right foot broken. The lacerations, contusions, and bruises about the body were so numerous that, when the wounds were dressed, he was scarcely recognizable by his friends. He remained in the hospital for about a month, was taken home, where he remained in bed two months, more. At the date of the trial, some fifteen months later, he was under the care of a specialist for his nervous condition and a bone specialist for his foot. His nervous condition is such that he is compelled to take sedatives, to induce sleep. We infer from the testimony that he is now almost a nervous wreck, and that it will be a long time before he can recover, if he ever can. In the meantime, he has endured and will continue probably for a long time to'come to endure great physical pain and mental suffering. We have concluded to fix the amount of the judgment at $15,000, for the injuries received, plus the expenses incurred to the date of filing the suit, which amount to $995.

It is therefore ordered, adjudged, and decreed that .the judgment appealed from be amended by reducing it to $15,995, and, as thus amended, it be affirmed; the plaintiff to pay the cost of appeal, and all other costs to be paid by the appellant.

PER CURIAM. In our opinion rendered on December 9, 1931, in this case, wherein it was. decreed that the amount of the award granted plaintiff in the lower court, namely, $35,995, with five per cent' per annum interest thereon from January 10, 1931, until paid, was amended by this court by reducing said amount to $15,995, we failed to mention or include interest. This was purely an oversight on the part of this court, as it was the court’s intention to include the legal rate of interest on the principal amount awarded, from judicial demand until paid.

Plaintiff has filed a motion calling the court’s attention to the fact that our decree failed to include interest on the principal sum awarded, and now asks that same be included. Accordingly, we now decree that legal interest be included on the said amount of $15,995, awarded by us, from judicial demand until paid; plaintiff to pay cost of appeal and all other costs to be paid by the appellant.

The application by appellant for a rehearing is refused.


source: Caselaw Access Project

author: DREW, J.

license: Public Domain

text:
    No. 3752
    Second Circuit (Second Division)
    McNEELY v. DAVE LUMBER CO. ET AL.
    (November 18, 1931. Opinion and Decree.)
    (December 9, 1931. Rehearing Refused.)
    R. A. Fraser and Ponder & Ponder, of Many, attorneys’ for plaintiff, appellee.
    W. H. Scheen, of Shreveport, and Boone & Boone, of Many, attorneys for defendant, appellant.
   DREW, J.

Plaintiff sued the Dave Lumber Company and S. H. Bolinger & Company, Limited, for $498.22, with 5 per cent per annum interest thereon from January 1, 1928, until paid, alleging that goods, wares, and merchandise to that extent were sold and delivered to the Dave Lumber Company. He further alleged that the Dave Lumber Company has been and is now engaged in operating a sawmill in the business of manufacturing and selling lumber under an agreed arrangement with the S. H. Bolinger & Company, Limited, whereby it was to cut and manufacture and did cut and manufacture into lumber timber belonging to the S. H. Bolinger Company in Sabine parish, Louisiana, under the direction, supervision and control of the said S. H. Bolinger Company, Limited. That the goods, wares and merchandise were sold and delivered during the years 1926 and 1927, as shown by attached, itemized account. That the said S. H. Bolinger Company, Limited, through its officers, managers, agents and representatives, induced the plaintiff to sell the said goods to the Dave Lumber Company by agreeing to contract and pay for same; and that the said Bolinger & Company caused an extension of credit to the said Dave Lumber Company and themselves and caused plaintiff to sell to the said Dave Lumber Company and themselves the said goods, wares and merchandise, the same being sold upon the good faith and credit of the said S. H. Bolinger Company, Limited.

Plaintiff further alleged that the Dave Lumber Company and S. H. Bolinger & Company, Limited, were liable jointly and in solido for the payment of said account, and prays for judgment accordingly.

Defendants filed an exception to the jurisdiction alleging that both defendants were corporations with their domicile in Caddo parish, Louisiana, which exception was overruled by the lower court, after hearing had thereon. Defendants then filed an exception of no cause of action, which was likewise overruled. Defendants answered admitting the correctness of the account sued upon, denying that the Dave Lumber Company was under the direction, supervision and control of S. H. Bolinger & Company, Limited, and alleged that S. H. Bolinger & Company, Limited had no kind of control or management thereof further than to pay for the lumber manufactured from the timber owned by it. It alleges that no goods, wares or merchandise were sold to it and, if sold to the Dave Lumber Company, it was for itself and that S. H. Bolinger & Company, Limited, had nothing to do with it.

S. H. Bolinger & Company denied that it contracted to pay for said goods, wares and merchandise through any of its officers, managers, agents or representatives, and that if any of its agents, managers or representatives did contract to pay for said goods, wares or merchandise delivered to the Dave Lumber Company, they were without authority to so do. It prayed that the demands qf plaintiff be rejected.

The judgment of the lower court was in favor of plaintiff against both defendants in solido for the amount prayed for. Prom this judgment, Dave Lumber Company did not appeal. S. H. Bolinger & Company, Limited, did appeal asking that the judgment of the lower court be reversed.

The exception of no cause of action is not urged in this court. We do not know on what defendants base said exception. It was overruled by the lower court and we find no reason for disturbing its finding. The plea to the jurisdiction is based on the ground that both defendants are corporations with their domicile in Caddo parish, Louisiana, and therefore must be sued in a suit of this nature at their domicile. The plea to the jurisdiction was tried and disposed of before the trial on the merits. The evidence adduced thereon showed that one of defendants, Dave Lumber Company, had only one place of business, which was located in Sabine parish, and that it had never had any other place of business. That defendant Bolinger Lumber Company was operating an extensive planing mill business in Sabine parish and was selling lumber, billing and collecting for it through its office in Sabine parish, and that all of the goods, wares and merchandise, the price of which was sued for, were sold in Sabine parish.

Defendants offered a copy of the charter of the Dave Lumber Company showing its domicile to be in Caddo parish, Louisiana, but failed to show that same had ever been forwarded or filed with the secretary of state or that the Dave Lumber Company was authorized to do business as a corporation. No evidence was offered as to the defendant Bolinger Lumber Company. As the exception to the jurisdiction had to be disposed of prior to the trial on the merits, defendants should have submitted evidence, if any they had, in support of their exception at the time of said trial. Under the pleadings and evidence offered on trial of the exception, it is clear that the exception to the jurisdiction was properly overruled. (The second clause of sec. 1, sub-sec. 5, par. d, of Act 179 of 1918).

The Dave Lumber Company had no other place of business than Sabine parish, Louisiana, and it is alleged that it and the S. H. Bolinger Lumber Company, Limited, are liable in solido. Therefore, they could have been sued in Sabine parish, even though S. H. Bolinger & Company could not have been sued there individually. (Art. 165, ' Code of Practice, sub-sec. 6.) The judgment of the lower court overruling the exception to the jurisdiction is correct.

ON THE MERITS

There is no denial that the goods, the price of which is sued fo.r herein, were delivered to the Dave Lumber Company, and the correctness of the account is admitted. There is much testimony in the record tending to show that the Dave Lumber Company was a part of the S. H. Bolinger Lumber Co.mpany, Limited, and was under its direct supervision and control. However, for the purpose of this decision, a determination of that question is not necessary. It is admitted that R. H. Sutton was the manager of S. H. Bolinger & Company, Limited’s, planing mill at Many, Louisiana. He had complete charge, filed suits for the collection of bills due defendant company, purchased goods, wares and merchandise on credit for the defendant company, employed and discharged men, ran an account with plaintiff for de-. fendant company, and held himself out to the public in general as manager in control of defendant company’s business in Sabine parish. That the Dave Lumber Company owned a small portable mill that acted as a feeder for defendant’s planing mill; that several other little mills were doing the same; and that these little mills were cutting timber owned by the defendant company and were not allowed to sell to anyone else. That the defendant company advanced part of the money to install said mills and took out insurance to protect itself from loss by injury to employees.

Plaintiff testifies, and is not contradicted, that R. H. Sutton, representing himself as manager of defendant company, came to his place of business and introduced to him members of the Dave Lumber Company, informing him that the Dave Lumber Company was a part of S. H. Bolinger & Company, Limited, and opened an account for said Dave Lumber Company. That he requested, for the convenience of the defendant company, that the account be kept separate as he was at the time keeping the other accounts of the defendant S. H. Bolinger Lumber Company, Limited, namely: planing account, hardwood account, and several others. That he mailed this account to the defendant Bolinger & Company, in Many and Shreveport, Louisiana, monthly, for a period of eight months, and while the account was in the making and at no time did defendant company deny the account until after the Dave Lumber Company ceased operations and their equipment was taken over by defendant company and operated under its own name.

It is not denied that R. H. Sutton had the authority to make accounts with plaintiff for the defendant company, but it is denied that he had authority to make the defendant company liable for the Dave Lumber Company. It is also admitted that a deposit of several hundred dollars was kept in the bank at Many and R. H. Sutton was authorized to draw on said account of defendant for necessities around the works that required immediate attention.

Plaintiff testified that the account was made for the defendant company, S. H. Bolinger & Company, Limited, and that he would not have opened the account for the Dave Lumber Company, as he knew nothing of them, and did know of the defendant company herein. That the account was charged on the day-book to “Dave Lumber Company” and when transferred to the ledger, was charged to the defendant company by the Dave Lumber Company.

The defendant company, therefore, by their actions and dealings with its manager, Sutton, led the public in general to believe that R. H. Sutton had full authority to contract debts for it in the operation of its business in Sabine parish, and in fact he had such authority, as is shown by the evidence; and if he exceeded that authority in contracting with plaintiff for the Dave Lumber Company account, it was the duty of the defendant company to have repudiated the account as soon as same was brought to its knowledge. That it did not do, and only denied the account as its own after the Dave Lumber Company had ceased operations and it had swallowed up all of the Dave Lumber Company’s assets, if they did not belong to defendant in the beginning.

In the case of Many Oil Company v. S. H. Bolinger & Company, Limited, 17 La. App. 297, 136 So. 140, a very similar case to the one before us, this court held that R. H. Sutton, manager of S. H. Bolinger & Company, Limited, did have authority to bind the defendant company.

We find no manifest error in the judgment of the lower court, and it is therefore affirmed, with costs.


author: STEPHENS, J.

text:
    No. 4178
    Second Circuit (Second Division)
    BRIDWELL v. BUTLER
    (January 14, 1932. Opinion and Decree.)
    (February 16, 1932. Rehearing Refused.)

      Goff & Goff, of Arcadia, attorneys for plaintiff, appellant.
    Seals & Atkins and W. F. M. Meadors, of Homer, and Wilkinson, Lewis, Wilkinson & Burford, of Shreveport, attorneys for defendant, appellee.
   STEPHENS, J.

The plaintiff, David J. Bridwell, brings this suit for the use and benefit of his six-year-old son, Ross Bridwell, to recover $32,612.10 as damages for injury alleged to have been sustained by his said son as a result of an automobile accident. It is alleged that the accident and injury was caused solely by the fault and negligence of the defendant, Lee Butler.

The defendant answered averring that the accident was caused through no negligence on his part but resulted from the gross carelessness, recklessness and unskilful driving of one J. M. Glover, the agent and servant of plaintiff; and that said negligence is imputable to the minor Ross Bridwell and his father, the plaintiff. In the alternative the defendant pleads contributory negligence by Glover, and that Glover’s contributory negligence should be imputed to the plaintiff and his minor son.

The trial judge rejected plaintiff’s demands, from which judgment plaintiff prosecutes this appeal.

The accident from which this cause of action arose occurred at the intersection of the Homer-Arcadia highway and the Ath-_ ens-Cross Roads road in the village of Athens, Louisiana. The latter road as it enters the corporate limits of the village becomes its main street. The Homer-Arcadia highway, which we shall hereinafter refer to as the highway, runs approximately north and south. It is intersected by the Athens-Cross Roads road, which we shall hereinafter refer to as the road, at right angles; the road running approximately east and west. Both the highway and the road are gravelled and at the point of intersection are approximately the same width. There is a slight downward grade from north to south on the highway at the scene of the accident. In the northwest corner of the intersection there is a filling station operated by Jim Dance. In the northeast corner there wns at the time of the accident a cornfield with tall cornstalks growing in it very close to both of the roads, which obstructed the view of persons approaching the intersection from the north of the traffic -approaching from the east, and vice versa.

On the day of the accident, May 26, 1930, J. M. Glover, a negro boy about 17 years of age, acting under the instructions of plaintiff, attempted to drive a Ford two-door sedan from plaintiff’s residence to the village 'of Athens. The six-year-old son of plaintiff was on the back seat of the automobile without the consent, so far as the record discloses, of his father or mother. Glover drove from east to west. As he approached the intersection, his view of traffic which might have been approaching on the highway from the north was obstructed, but this did not deter him. He drove into the intersection at a rate of speed which the district judge estimated to be between 30 and 35 miles per hour.

The defendant, Lee Butler, and three friends were traveling south on the highway in a Master Six Buick four-door sedan. They were going from Homer, Louisiana, to Cane River Lake in Natchitoches parish, Louisiana, for the purpose of fishing. The defendant was driving, and as he approached ,the intersection his view was likewise obstructed by the corn, in so far as traffic approaching from the east was concerned. Before entering the village, he had been maintaining a speed of 40 to 45 miles per hour, but after entering the village and on approaching the scene of the accident, he and his cqmpanions testified that he had reduced his speed by half. The district judge found that his speed on reaching the intersection was about 20 miles per hour.

If the side lines of both roads be projected across each other, and the resulting square be divided into quarters, the collision occurred in the southwest quarter of the intersection. We agree with the trial judge that both automobiles entered the intersection about the same time. The defendant became aware of the presence of plaintiff’s automobile when his own was about 15 feet from the intersection. He immediately applied his brakes, and his Buick automobile, turning slightly to the right, skidded a distance of 41 feet, as indicated by skid marks in the gravel, to the point of contact.

The attention of the driver of the Ford was first attracted to the Buick by the noise made by the application of its brakes. He swerved the Ford automobile to the left and it. continued to the point of contact with undiminished speed. After the collision the automobiles moved together side by side down the highway, in the direction in which the Buick was originally traveling until they came to rest some 50 feet from the point of contact, with the Buick in the ditch and the Ford nearby on the highway.

Much evidence was adduced by (plaintiff in an effort to show that the Buick struck the Ford. An equally determined effort was made by the defendant to establish that the Ford struck the Buick. It is conclusively shown, we think, that the collision did not occur in the manner suggested by either plaintiff or defendant. All of the damage to the Buick was on its left side and all of the damage to the Ford was on its right side. There was no damage to the front of either. After entering the intersection, the Buick turned slightly to the right and the Ford decidedly to the left. The courses as thus taken, if projected forward, would form an acute angle. They reached the vertex of that angle at the same time and side-swiped each other.

The learned trial judge found in his able written opinion that both automobiles reached the intersection at about the same time; that the Ford was being driven at the rate of 30 or 35 miles per hour and at no time was its speed reduced before the impact; that the Buick approached the intersection at the rate of about 20 miles per hour; that the driver of the Buick saw the Ford before it entered the intersection and immediately applied his brakes, which were in good working order; that the collision occurred in the southwest quarter of the intersection; that the driver of the Ford was grossly negligent in turning to the left instead of maintaining his side of the road, which he could have done and avoided the accident; and that the defendant was free from fault.

It must be conceded that there was but a slight difference in the distance traveled by each automobile after entering the intersection. If both entered the intersection at the same time, and the Ford moved through the intersection to the point of contact without restraint at a speed of 30 to 35 miles per hour (and these facts are amply supported by the record) and the Buick with brakes set traveled through the intersection approximately the same distance to the same point and necessarily reached it at the same time, it must further be conceded that the Buick entered the intersection at a higher rate of speed than the Ford.

We have concluded that the district judge was in error in estimating the speed of the Buick at 20 miles per hour.

On this question, Mrs. Jordan, witness for plaintiff, testified that she saw the Ford entering the intersection at a speed of about 30 miles per hour; that she did not see the Buick but heard it coming, its motor sounding like an aeroplane motor, but not as loud; and that she closed her eyes in order to avoid seeing the collision.

Jim Dance testified that he was 'sitting on a box in front of the filling station above referred to at the time the accident occurred. He estimated the speed of the Buick on entering the intersection, at about 60 miles per hour, and at the moment of impact, at about 25 miles per hour; that he measured the deep impressions in the gravel made by the brake-locked wheels of the Buick and that from the point where the brakes were applied to the point of contact of the automobiles was 41 feet.

Jim Dance further testified that a Buick of the. type here involved, if the brakes were in good working order, could be stopped if moving at 30 miles an hour in 40 feet. He was corroborated in this particular by the testimony of J. E. Curry and W. F. Jones.

Aub Atkins, village marshal of Athens, corroborated the testimony of Jim Dance, J. E. Curry and W. F. Jones that a Buick could be stopped in 40 feet if traveling 30 miles per hour, and further testified that shortly after the accident he stepped the length of the skid marks made by the Buick’s brake-locked wheels and that he found their length to be about 40 feet.

There is no evidence in the record that the Buick was traveling at a low rate of speed except that of the defendant and his three companions who were in the automobile with him at the time of the collision. They all testified that after entering the village the defendant reduced his speed by half; that before entering the village the defendant had been driving at an estimated speed of 40 to 45 miles per hour.

None of them looked at the speedometer either before or after entering the village. It is a matter of common observation and knowledge that if a person travels for some time at a high rate of speed and that speed is suddenly reduced, the actual reduction may be little, but seems great. These witnesses no doubt made their estimates of the Buick’s speed in good faith, but in our opinion every established fact and circumstance in the case show that they were in error; and that the Buick on entering the intersection was traveling at a high rate of speed.

If the defendant drove into the intersection at a greater rate of speed than 15 miles per hour it was in violation of the speed limit fixed by section 5, sub-section b, subd. 3, title II, of Act No. 296 of 1928, which reads as follows:

“3. Fifteen miles an hour when approaching within fifty feet and in traversing an intersection of highways when the driver’s view obstructed. A driver’s view shall be deemed tq be obstructed when at any time during the last fifty feet of his approach to intersection, he does not have a clear and uninterrupted view of such intersection and of the traffic upon all of the highways entering such intersection for a distance of two hundred feet from such intersection.”

At a distance of 50 feet from the intersection the defendant could not see traffic approaching from .the east a distance of 200 feet or more than a few feet. He was governed by the limitation fixed by the statute and his failure to observe it was negligence, which negligence, with the clearly concurring negligence of the driver of plaintiff’s car, in our opinion, was the proximate cause of the accident.

Under the jurisprudence of this state, contributory negligence cannot be imputed to a child six years old, nor can the contributory negligence of the employee of the father be imputed to the father for the purpose of barring recovery by him for the benefit of the child which has sustained the injury.

“The negligence or want of care on the part of parents or guardians of a child of tender years cannot be imputed to the child to prevent recovery for injury to the child.” Williams v. Mo. Pac. R. Co., 155 La. 349, 99 So. 286; Westerfield v. Levis, 43 La. Ann. 63, 9 So. 52; Barnes v. Shreveport City R. Co., 47 La. Ann. 1223, 17 So. 782, 49 Am. St. Rep. 400; Rice v. Crescent City R. Co., 51 La. Ann. 113, 24 So. 791; Buechner v. City of New Orleans, 112 La. 599, 36 So. 603, 66 L. R. A. 334, 104 Am. St. Rep. 455; Danna v. City of Monroe, 129 La. 138, 55 So. 741.

As a result of the collision, the child was thrown forward from the back seat of the Ford automobile and his head and body wedged between its front seat and side. He was removed from the automobile in an unconscious condition. A semiconscious condition existed for several days after the accident. Both eyes were discolored and swollen. An x-ray examination disclosed a long lineal fracture of the left frontal bone, extending from a point at the left nasal margin upward and backward for about three inches. Shortly after the accident, he developed a nervous condition, accompanied by nausea, vomiting, frequent headaches and light sensitiveness to both eyes. His head was slightly drawn to one side. These symptoms continued up to the time of the trial, some ten months after the accident, and are aggravated by exercise and heat, and are indicative of intracranial pressure which has resulted, it is believed, from the fractured , skull. The left eye was still discolored at the time of the trial. The left upper eyelid droops slightly. This latter condition is considered permanent. Recovery from the indicated intracranial pressure is problematical. There may be a recovery, and it may result in epilepsy.

We estimate the damages, which the plaintiff should recover at the sum of $3,500.

For the reasons assigned, it is ordered, adjudged, and decreed that the judgment appealed from be annulled, avoided, and reversed, and that there now be judgment in favor of plaintiff for the use and benefit of his minor son, Ross Bridwell, and against the defendant in the sum of $3,500.

PER CURIAM. Through oversight, we omitted from our decree in this case to allow plaintiff interest on the amount awarded as damages, and costs of court. The decree is now amended, corrected, and rewritten so as to read as follows:

It is ordered, adjudged, and decreed that the judgment appealed from be annulled, avoided, and reversed; and that there now be judgment in favor of the plaintiff, for the use and benefit of his minor son, Ross Bridwell, and against the defendant, Lee Butler, in the sum of $3,500, with 5 per cent per annum interest thereon from judicial demand until paid, and all costs of this suit.


author: CULPEPPER, J.

text:
    No. 4248
    Second Circuit (Second Division)
    LONGINO v. HOME INS. CO. OF N. Y.
    (January 14, 1932. Opinion and Decree.)
    Kennon & Kitchens, of Minden, attorneys for plaintiff, appellee.
    Thatcher, Browne, Porteous & Myers, of Shreveport, attorneys for defendant, appellant.
   CULPEPPER, J.

This cause is before the court on an appeal taken by defendant from an admittedly illegal and null judgment rendered by default in favor of plaintiff. Defendant, a New York corporation, made no appearance in the lower court until after the judgment had been rendered and signed. It appeared seasonably by written motion after judgment for orders of suspensive and devolutive appeals, alleging: “That — no valid or legal citation has been made herein on petitioner, the defendant; that the judgment is contrary to law and the evidence. * * *”

Plaintiff, appellee, has filed a motion to remand the case, asserting that the “judgment rendered herein is null and void, because no legal citation has been made on defendant, appellant * * *” and (prays that the case be remanded “in order that proper citation should issue, according to law.”

Defendant has interposed the objection to the motion to remand that same is premature, that “same cannot be considered prior to a definitive judgment on the merits” of the appeal; and that defendant is entitled to a hearing on the merits, and, thereafter, to a judgment annulling and reversing the judgment appealed from, “and dismissing plaintiff’s action as of non-suit.” Defendant (prays for a hearing on the merits and for a definitive and final judgment.

It being conceded by both parties that the citation was illegal, which must be the foundation to the action, and conceded that the judgment was, in consequence thereof, null and of no effect, manifestly we cannot pronounce definitively upon the case. No legal judgment can be rendered on a defective citation, unless, of course, the defendant should appear and answer. This is well settled and needs no citation of authorities in its support.

But defendant urges its plea of prematurity as against plaintiff’s motion to remand, and cites article 906 of the Code of Practice as governing the case. That article, we think, does not apply to cases of this character. It applies to cases in which a definitive judgment may or may not be rendered owing to the circumstances as to whether the court thinks certain testimony which was overlooked in the lower court, or which that court refused to receive, and which the appellate court finds is necessary to enable it to fully and finally decide the case and render justice to the parties. If the court, with the testimony in the record, thinks it can render a final judgment “according to conscience and the requirements of justice,” it will refuse to remand the case to permit additional testimony. Otherwise the court, under the provisions of the article cited, may in its discretion order the case remanded.

Rhodes v. Cooper, 113 La. 600, 37 So. 527; L. A. Frey & Sons v. Town of Slidell (La. Supp.) 137 So. 193.

In the present case, however, no such circumstances have arisen. Even if they had, no amount of additional testimony could avail this court, or any other, anything, since any judgment that might be rendered would be stricken with nullicy. The case should be remanded, not necessarily for the purpose. of taking additional testimony to enable this court to fully Iry and determine all the issues between the parties, but to permit plaintiff to have citation issued and served legally. This, we think, is the proper course, and the authorities for doing so are ample. Michie v. Brown & Co., 20 La. Ann. 75; Adams & Co. v. Basile, 35 La. Ann. 101; St. Louis Jewelry Co. v. Imbraguglio, 123 La. 389, 48 So. 1007; Dupuy v. Arcenaux, 21 La. Ann. 629.

The plea of prematurity is therefore overruled, the judgment appealed from is annulled and set aside, and the case is ordered remanded to the lower court to permit plaintiff to have citation issue and be served legally and the case otherwise to be proceeded with according to law, plaintiff, appellee, to pay costs.


author: TALIAFERRO, J.

text:
    No. 4244
    Second Circuit (Second Division)
    DAY v. BUSH ET AL.
    (January 14, 1932. Opinion and Decree.)
    (February 16, 1932. Rehearing Refused.)
    (February 29, 1932. Writs of Certiorari and Review Refused by Supreme Court.)
    Irion & Switzer and Thos. M. Comegys, Jr., of Shreveport, attorneys for plaintiff, appellant.
    Jackson & Smith, of Shreveport, attorneys for defendants, appellees.
    Argued before DREW, CULPEPPER and TALIAFERRO, JJ.
   TALIAFERRO, J.

Plaintiff alleges that the defendant E. J. Bush is a non-resident of the state of Louisiana, and that his agent and/or employee, J. A. Woods, a resident of Caddo parish, La., while operating an automobile, owned by said Bush, negligently and carelessly, in the city of Shreveport, La., ran into her car and caused damage and injury to her, for which she sues both of them. She predicates her right to sue .Bush in the district court of Caddo parish upon Act No. 86 of 1928, which is as follows:

“An Act providing for civil process against non-residents in cases arising out of the operation of motor vehicles within the State of Louisiana.
“Section 1. Be it enacted by the Legislature of Louisiana, That the acceptance by non-residents of the rights and privileges conferred by existing laws to operate motor vehicles on the public highways of the State of Louisiana, or the operation by a non-resident or his authorized chauffeur of a motor vehicle on the said highway other than under said laws, shall be deemed equivalent to an appointment by such nonresident of the Secretary of the State of Louisiana, or his successor in office, to be his true and lawful attorney for service of process, upon whom may be served all lawful processes in any action or proceeding against said non-resident growing out of any accident or collision in which said non-resident may be involved while operating a motor vehicle on such highways, or while same is operated by his authorized chauffeur; and said acceptance or operation of said vehicle shall be a signification of his agreement that any such process against him which is so served shall be of the same legal force and validity as if served on him personally.
“Section 2. The service of such process shall be made by serving a copy of the petition and citation on the Secretary of State, or his successor in office, and such service shall be sufficient service upon said non-resident; provided that notice of such service, together with a copy of the petition and citation are forthwith sent by registered mail by the plaintiff to the defendant, or are actually delivered to the said defendant,, and defendant’s return receipt, in case notice is sent by registered mail, or affidavit of the party delivering the petition and citation in case notice is made by actual delivery, is filed in the proceedings before judgment can be entered against said non-resident. The Court in which the action is pending may order such continuances as may be necessary to afford the defendant reasonable opportunity to defend the action.”

Service was made on Bush in the manner provided in the act, and he appeared, through counsel, and excepted to the jurisdiction of the court, rationae personae. Service could not be made on Woods and he is not before the court now. The exception was sustained and the suit dismissed. Plaintiff appealed.

Plaintiff alleges that J. A. Woods, at the time of the accident, was engaged in the sale of tobacco and other commodities for defendant Bush, and acting within the scope of his employment and/or agency.

It is not alleged that Bush has ever been in the state of Louisiana, nor that Woods was to any extent under his control or direction at time of the alleged accident. It is not even alleged that Woods was the chauffeur of Bush when the accident occurred. The nature of Woods’ engagement to Bush is not mentioned beyond the bare allegation that he sold “tobacco and other articles” for him.

We are called upon to interpret the Act of 1928 in the light of the facts of this case, as alleged by plaintiff, and particularly the word “chauffeur” contained therein.

To hold that the district court of Caddo parish has jurisdiction to hear and determine the merits of this suit against Bush is to hold that every non-resident who has an agent, employee, or other person engaged to him by employment in this state, who travels in the employer’s automobile on the public highways in the pursuit of his business, may be impleaded in the courts of the state and forced to appear therein, in any suit growing out of a collision involving said car while operated by said agent or employee. We do. not believe the Legislature intended to reach such a case in adopting said act. It does not necessarily follow that because an agent or employee of one person has to operate an automobile to discharge his duties that by so doing he becomes .the principal’s chauffeur. The word “chauffeur,” as employed in this act, means the hired operator of the non-resident’s automobile, and cannot be extended to include a salesman who operates the principal’s, car while performing the duties of his employment.

“Words of a law are generally to, be understood in their most usual signification, without attending so much to the niceties of grammar rules as to the general and popular use of the words.” O. C., art. 14.

It seems to us it would be a far-fetched construction of the word “chauffeur” to hold that Woods sustained that relationship to Bush. Certainly, as commonly understood, Woods would not have been referred to as a chauffeur of Bush. In referring to one person as chauffeur of another, instantly there arises the thought of close relationship between the two, a relationship akin to master and servant, one of respondeat superior. As Bush lived in the state of New York and Woods was a resident of Louisiana, their relationship, under the facts of the case, repels the idea of the latter being the chauffeur of the former.

A careful consideration of the act of 1928, in the light of conditions prevailing in the country with respect to improved highways and rapid transportation, impresses us with the conclusion that it was primarily the legislative intent to vest jurisdiction in our courts of actions arising under the act against non-residents temporarily using the highways with their automobiles operated by them, or by their authorized chauffeurs. It is. the act of driving on the state’s highways by the non-resident or his authorized chauffeur that gives jurisdiction to our courts in cases of collision or accident.

The Legislature, by paragraph (X), section 2, Act' No. 296 of 1928, has defined clearly who are chauffeurs within the meaning of that statute; it being as follows:

“ ‘Chauffeurs or Operators.’ Any person who operates a motor vehicle in the transportation of persons or property and who receives any compensation for such services. in wages, commissions or otherwise, paid directly or indirectly or who as owner or employee operates a motor vehicle carrying passengers or property for hire.”

Of course, it is well known the Legislature had in mind, in adopting this definition, that class of operators who drive jitneys in the cities and towns for hire, and did not have in view the other class of chauffeurs, who drive the cars of private persons for a salary or other compensation, and it was to this latter class of chauffeurs that Act No. 86 of 1928 relates.

Statutes of this kind are in derogation of common right and must be strictly construed. They cannot be extended by implication so as to include persons not coming within their terms. Ketteringham v. Eureka Homestead Soc., 140 La. 176, 72 So. 916.

The word “chauffeur” has a restrictive, as well as a general, meaning. AlS used in Act No. 86 of 1928 we think it was intended in the restrictive sense.

We have not found that our own courts have had occasion to construe or define the word “chauffeur” as employed in the 1928 act. The following quotation from Com. v. Cooper, 37 Pa. Co. Ct. R. 277, 282, 285, cited in footnote, 11 C. J. 747, is apropos of the question, to-wit:

“The accepted meaning of the word ‘chauffeur’ in every state where the term is used in a motor vehicle statute is a paid operator or employee, and includes in it the idea of compensation tor the operation of the vehicle. In some of the states, such as Massachusetts, New Hampshire, Vermont, the clear distinction is made between the license of an ‘operator’ and the license of a ‘chauffeur’ and in other states, such as Connecticut, Rhode Island, District of Columbia, Delaware and Maine, where the law provides, that all operators shall be licensed, .the word ‘chauffeur’ is not used at all in the statutes, but the more inclusive word ‘operator’ is used. * * * As far as the automobile industry and users of motor vehicles are concerned, it would only be by a strained and unnatural construction and foreign to the accepted usage that the term ‘chauffeur’ could be made to include operators other than employees for hire. The ‘National Association of Automobile Manufacturers’ and the ‘American Automobile Association’ use the word ‘chauffeur’ to mean ‘an operator for hire,’ and the word, as we believe we have shown, has always been used in that sense in dealing with motor vehicle legislation.”

As stated in the foregoing quotation “it would only be by a strained and unnatural construction and foreign to the accepted usage that the term ‘chauffeur’ could be made to include operators other than employees for hire.’’

In our opinion the ruling of the district judge on the exception to his jurisdiction is correct, and the judgment appealed from is affirmed.


author: LeBLANC,

text:
    No. 789
    First Circuit
    THOMPSON v. FUTRAL
    (October 7, 1931. Opinion and Decree.)
    (December 8, 1931. Rehearing Refused.)
    (January 4, 1932. Writs of Certiorari and Review Refused by Supreme Court.)

      A. H. Garland, R. Lee Garland and M. H. Thompson, of Opelousas, attorneys for plaintiff, appellant.
    L. L. Perrault, of Opelousas, attorney for defendant, appellee.
   LeBLANC,

J. Plaintiff, by his. pleadings, attempted to make this, an action in boundary, apprehending probably that any other form he might bring would be met with a plea of prescription which could not be pleaded against a boundary suit.

In his petition,, he sets out his and the defendant’s respective titles to lands which he alleges are contiguous and between which the boundary line has never been “legally” established. He avers that their titles are derived from a common author who originally owned a tract of land containing 66% arpents, the defendant’s title calling for 26% arpents, described as having a width of 1% arpents on Bayou Courtableau by a depth of 16 arpents, and his title calling for 36 acres adjoining the other on the south. Immediately following his averment that the line between the two properties has never been legally established is the further allegation by plaintiff * * that the fence which the said Sam W. Futral (defendant) has placed on the property takes in about three and eleven hundredths (3 & 11/100) acres of petitioner’s property.”

An exception of no cause of action was filed in the lower court and overruled, the court holding, however, that the suit, although brought as an action in boundary, was in reality one to recover land which plaintiff claimed belonged to him, but was, in the possession of the defendant. Accordingly, the court gave the defendant the right to set up any title he may have and defend on his possession.

Plaintiff’s allegation that the defendant had 3.11 acres of his land under fence was a claim that the land was included in his. title and belonged to him, and at the same time an - admission that it was in defendant’s possession. The only result the suit could accomplish would be to establish either in his favor, or adversely, the title to the property he claims, thus making the action petitory in its nature. It would seem, therefore, that by these judicial declarations by which he is bound plaintiff is precluded from doing the very -thing he started out to do; namely, to forestall a plea of prescription.

The district judge relied on the case of Ganucheau v. Monnot, 130 La. 463, 58 So. 150, for his ruling that the action here was one involving title and consequently petitory. His ruling to that effect and further permitting the defendant to set up any title he may have and to stand on his possession was correct, and we already maintain it.

In his answer, the defendant sets up the deed under which he claims the property, the same being included in a larger tract of land containing 66% arpents, less about 2 arpents sold to the Colorado Southern, New Orleans & Pacific Railroad Company, which he purchased from Mrs. Marie Louise Iahaye, wife of Louis Saucier, on February 27, 1911. He pleaded the prescription of ten and thirty years acquirendi causa and also the prescription of thirty years under article 852 of the Revised Civil Code.

From a judgment sustaining the plea of prescription of ten years acquirendi causa and that of thirty years under article 852 of R. C. C., and dismissing his suit, the plaintiff has appealed.

In order to consider the pleas urged by defendant, it is necessary to go back to the origin of the titles to these respective tracts of land.

In the year 1870, a tract of land having a front of 5 arpents on Bayou Courtableau by 40 arpents in depth belonged jointly to L. E. Melancon, J. D. Bernard, and Jean Castille. On November 6th of that year they appeared before a notary public and made an amicable partition of same. The tract was divided into three lots of 1% arpents each on Bayou Courtableau by a depth of 40 arpents. Lot No. 1, the most western one, was allotted to Castille, lot No. 2, .the middle one, to Bernard, and No. 3, the eastern one, to Melancon. Each one of these lots contained an area of 66% arpents. Plaintiff’s title to the tract of land which he claims is derived through sales to various, purchasers, from the tract referred to in the aforementioned partition as lot No. 2, which was allotted to Bernard. His immediate vendor was the estate of Henry L. Garland. The deed under which he purchased was a public sale of the properties of that estate made by A. Leon Dupre, testamentary executor, on September 27, 1919, in which it appears that the tract is described as being 36 acres, of land, and the northern boundary given is Mrs. Louisa Sonnier. It is observed that the judgment of court which ordered the partition described the tract as containing only 26 acres. In the adjudication sale, however, the land is referred to as being the same as was acquired from J. H. Bernard et al. on January 17, 1906, and consulting that sale we find that it is. there described as containing 36 acres. Regardless for the time being of what .the exact acreage was, it is established that the tract constituted the rear or southern portion of the original 66% arpents of the J. D. Bernard lot, immediately adjoining the front portion, which at one time belonged to Mrs. Marie Louise Saucier, who sold to the defendant Futral.

Futral’s deed from Mrs. Saucier, as we have already noted, called for a tract of 66% arpents, more fully described as follows:

“A certain tract of land, situated in .the Parish of St. Landry, State of Louisiana, with all the buildings and improvements thereon, containing sixty-six and two-thirds (66%) arpents, less about two (2) arpents sold to the Col. S., N. O. & P. R. Co., bounded north by Bayou Courtableau, south by lands of Mrs. N. C. Devilliers and Estate of H. L. Garland, east by G. M. Duplechain, and west by Theophile Joansonne. Being the same property acquired by vendor herein from Mrs. Andrew Johnson, as per act of sale dated October 23rd, 1906, and recorded in Conveyance Book B-4%, page 379, of the Recorder’s Office of this Parish. The above described property is located in Sec. 20, T — 6—S, R — 5—E, Louisiana Meridian, being Lots One (1) and Two (2) on a map attached hereto and shaded yellow on said map, the area being erroneously stated on said map to be fifty (50) arpents.”

There is no doubt that the tract includes as its western portion that part of the original Bernard lot immediately adjoining the Henry L. Garland (now plaintiff) tract on the north. The eastern portion of the tract we can trace through several conveyances to the original lot allotted to L. E. Melancon in the partition of November 6, 1870. Looking to the deed from Bernard to one Zeringue, made in 1872, and in which the title to the western portion of defendant’s tract originated, we find the property described as having a front of one and one-third arpents by a depth of only 16 arpents. This would give an area of 26% arpents, Taking into consideration the area and the boundaries of the eastern portion of defendant’s tract of land which comes from the Melancon title, it had the same dimensions, giving both tracts a depth of 16 arpents instead of 20. The defendant contends that 20 arpents is the depth called for in his deed and of which amount of land he has been in possession and had prescribed under the pleas set up by him.

If the defendant had to rely on the titles alone, he would be restricted to a depth of 16 arpents, as up to the time of his deed from Mrs. Marie Louise Saucier that is all that the title called for. But, when she sold to him, she described the land as containing 66% arpents, less the 2 arpents which had been sold to the railroad company for a right of way. It is clearly shown, as already stated, that the 66% arpents consisted of two tracts which measured 1% arpents front each on Bayou Courtableau, making the whole 3% arpents. Now, 3% arpents. by 16 would only produce an area of 53% arpents, whereas the same width by 20 arpents would give 66% arpents, the exact number called for in defendant’s deed. Moreover, the railroad, right of way mentioned in the deed is shown to be further back than the 16-arpent line, and exactly at the 20-arpent line from Bayou Courtableau there is shown to have existed a well marked and defined line. The defendant therefore has a deed which we have concluded includes the land up to this 20-arpent line, and, if he has shown possession in good faith, for ten- years or more, as the district judge held he had, necessarily his plea of ten years’ prescription is good, and was properly sustained.

On the question of possession and good faith, we have decided to adopt the views and the findings of the trial judge, who in a written opinion submitted by him has carefully gone over the facts and the law. That part of which is pertinent follows :

“Defendant was until 1911, after his purchase, a resident of the parish of St. Mary, and a stranger in this parish. He was a timber worker and farmer. Before closing his purchase with Mrs. Saucier, the lines of the property he contemplated acquiring were exhibited to him by Louis Saucier, the vendor’s husband. The northern part of the Saucier property was under fence and in cultivation and had been for many years, but that part of the same lying on both sides of the Colorado Southern, New Orleans & Pacific Railroad Company's right of way (which had been granted by Saucier to the railroad company some years before) lying south of about the 12 arpent line was unfenced woodland, the lines of which, however, were well marked by surveyor’s hacks on trees. The southern line, as shown the defendant by Saucier, was marked at its western end (the southwest corner of the tract) by a cypress post planted in the ground and by cross marks on trees, and followed plain surveyor’s marks on trees to the southeast corner of the tract, which was also well marked. This line, then an old one according to the witnesses, is located, according to V. E. Smith, civil engineer, who surveyed the land for defendant, exactly 20 arpents from the bayou and inclosed a tract of 66% arpents, precisely the quantum purchased by defendant.
“Defendant, upon his conclusion to purchase, required Mrs. Saucier to provide him with an abstract of title, which, together with the act of sale which had been prepared by Mrs. Saucier’s attorney, he sent to Mr. C. F. Borah, an attorney at Franklin, for examination, who fully approved of the title and of defendant’s purchase.
“The plat referred to in the sale as being attached to it was either not actually attached or was lost, for it was not recorded. However, attached to the abstract which defendant produced at the trial was a map or sketch closely fitting the description of the map referred to in the sale. It shows the property shaded in yellow, and shows, moreover, that it extends south of the railroad to the 20-arpent mark, as does the map made by the railroad when the tracks were laid in 1907.
“Immediately after defendant’s purchase, he extended his fences southward to the railroad right of way, constructed a hog-proof fence all around the property (with the exception of the small portion lying south of the railroad which was too low to cultivate), built a large residence on the property (which he has since occupied as a home for himself and his family), and cleared and put into cultivation all of the wooded portion of the property north of the railroad. When this suit was brought, he had been in actual, peaceable, and continuous possession for almost 20 years. Hence, if the possession commenced in good faith, defendant has prescribed for all the land covered by his act of purchase.
“An examination of the act under which defendant holds shows that the same was made with full warranty of title; that defendant paid about $30 per arpent for the land, a good price; that it is free of any defects on its face; that it describes and covers the land in controversy. It is a just title. True, it says that the land is the same as that acquired by Mrs. Saucier from Mrs. Andrew Johnson, and scrutiny of that deed would have revealed that Mrs. Johnson sold only to a depth of 16 arpents. But under repeated decisions of the courts it is held that mere reference to another act, the deed of purchase being on its face free of defects, will not affect the purchaser with knowledge and make him a possessor in bad faith. As was said in the recent and valuable case of Land Development Co. v. Schulz, 169 La. 1 (124 So. 125, 127):
“ ‘ “A title defective in form cannot be the basis of prescription.” By this the law means “a title on the face of which some defect appears, and not one that may prove defective by circumstances, or evidence dehors the instrument.” ’
“See, also, Pattison v. Maloney, 38 La. Ann. 887; Clayton v. Rickerson, 160 La. 771 (107 So. 569); Montgomery v. Whitfield, 41 La. Ann. 653 (6 So. 224); Beard v. Lufriu, 46 La. Ann. 882 (15 So. 207); Blair v. Dwyer, 110 La. 337 (34 So. 464).
“Futral must have believed his vendor owned the land which he bought, or otherwise he would not have expended shortly after his acquisition a large amount of money in improving it. Had he known of the defects, he surely would not have taken the pains and incurred the expense of having the title examined by a lawyer to ascertain whether he could safely buy. In Land Development Co. v. Schulz, already cited, the court answers plaintiff’s contention as follows-;
“ ‘There is no doubt that Mrs. Schulz believed that she was acquiring a good title to the lots. * * * She was so advised by an attorney at law before she bought the property, and she showed her faith in his advice by spending a considerable sum of money in improving the property long before she could have relied upon a plea of prescription or statute of repose.’
“While there is no evidence that the south line of the property, marked on the trees in the manner already referred to, was ever formally agreed to as the correct boundary between the proprietors to the north and those to the south, it is clear that it is a surveyor’s line, and has been there for considerably more than 30 years. Mr. Camille, who owns property east of Futral’s land testified that John Close, who owned the Futral property from 1896 to 1899 recognized it as his south line and exhibited it to him. Louis Saucier, whose wife sold to Futral, testified that it was regarded by him and the other proprietors as the line and that he thought his wile owned all the land between it and the bayou. He further stated that, when his wife purchased from T. C. Devillier, T. C. Devillier’s father, who had charge of the land for his son, showed him the same line. T. C. Devillier testified that he claimed a depth of only 16 arpents, but admitted he had never been to his back line, since he had no occasion to do so. He further admitted that his father, who farmed the property, knew much more about it than he did. Both Morgan and Smith testified that the line was a very old one, as did Theophile Johnson, who formerly owned the property to the west. There are no other lines to be found running east and west across the property, and this fact, taken in connection with the testimony of the witnesses, affords strong proof that it was generally regarded as the boundary between the two properties. Such a line was deemed sufficient in Vidrine v. Vidrine, 14 La. App., 484 (130 So. 244).”

The foregoing reasons correctly dispose of the plea of ten years’ prescription. We consider it sufficient to sustain the judgment in favor of the defendant without the necessity of having to discuss the plea of thirty years’ prescription under article 852, R. C. C.

We note that the lower court condemned the defendant to pay costs of court. No reason is given for doing so, and we can think of none, unless it was done inadvertently. We deem it our duty to change that part of the judgment so as to make it conform to the law which provides that in every case the costs shall be paid by the party cast. Code of Practice, arts. 157 and 549.

For the foregoing reasons, it is therefore ordered that the judgment of the lower court be amended by condemning the plaintiff, instead of the defendant, to pay the costs, and, as thus amended, that it be affirmed.


author: ELLIOTT, J.

text:
    No. 880
    First Circuit
    CATHERIN v. COMMERCIAL CASUALTY INS. CO.
    (December 8, 1931. Opinion and Decree.)
    (February 8, 1932. Rehearing Refused.)
    (February 29, 1932. Writ of Certiorari and Review Refused by Supreme Court.)
    Shelby Taylor and A. B. Parker, of Baton Rouge, attorneys for plaintiff, appellee.

      Milner & Porteous and P. Carter Johnson, Jr., of New Orleans, attorneys for defendant, appellant.
   ELLIOTT, J.

Herman Catherin, an employee of Baton Rouge Poster Advertising Company, while engaged in his work of posting advertising signs, was shot in his right eye as a result of the accidental firing of an old shotgun barrel in the hands of Earl Ramsey, his assistant, which said Ramsey, in performing services arising out of and incidental to his employment in the course of his employer’s business, had picked up in cleaning away the rubbish .around the signboard on which they were posting signs.

Alleging the loss of his eye, and that Baton Rouge Poster Advertising Company had at the time, under Act 20 of 1914, sec. 23 (amended by Act 85 of 1926), employer’s liability insurance with Commercial Casualty Insurance Company, and that said contract of insurance constituted a direct obligation in his favor, the said Catherin brought suit against the insurance company claiming of them compensation on said account at the rate of $9.75 per week for a period of 100 weeks, less $107.25 paid previous to the institution of the suit.

An exception of no cause of action filed by defendant, not acted on in the lower court, is not before us on appeal.

Defendant admits having paid plaintiff compensation to the extent of $107.25, but alleges that it was done through error of fact and of law. It denies liability and avers that the claim does not arise out of and in the course of plaintiff’s employment; that there was no causal connection between the employment and the injury.

There was judgment in favor of the plaintiff, and the defendant has appealed.

The evidence shows that the work of Herman Catherin and Earl Ramsey consisted in pasting posters for advertising purposes on 'signboards erected at certain places.

The performance of their work required them to take off the old advertisements, paste new ones on the boards, and clean away the rubbish and trash around the place where the signboards stand.

In this instance' the plaintiff was getting ready to put on a new advertisement, and Earl Ramsey at the same time was engaged in cleaning away the rubbish near the board, and to that end was picking it up. In so doing Ramsey picked up the barrel of an old single barrel shotgun found lying in front of the board, which in some way not satisfactorily explained was fired, and the shot from it struck plaintiff in the right eye, putting out his eye.

The serious question is whether there existed a causal connection between the injury and the circumstances under which the gun barrel was fired.

Defendant queries thus: “Where a gun is found while performing a service for the master, and one employee deliberately points it at another and the cartridge is discharged so that an employee loses an eye, does the accident arise out of and in the course of his employment?”

Defendant is mistaken in putting the question as if Earl Ramsey had deliberately pointed the gun at the plaintiff. It does not appear to have been done purposely.

Defendant sent an agent to the plaintiff soon after the accident happened and procured from him a written statement in which there appears the following language:

“Earl Ramsey picked the -gun up and turned it to the ground and snapped it, hut it did not go off. Then he pointed the gun towards me and as he did, it went off and the shots hit me on the right side of the face. I did not know whether the gun was cocked or not, or whether he pulled the trigger again to make it go off.”

This statement implies that the gun was purposely pointed toward the plaintiff, hut the plaintiff and Earl Ramsey, testifying on the trial, do not say that the gun was snapped, and, failing to go off, was then pointed toward the plaintiff. The plaintiff says:

“Q. When he called your attention to the fact that he had the gun in his hand and said he found an old rusty shot gun, where did he have it pointed?
“A. He had it in his hand.
“Q. Was he looking at it, examining it?
“A. No, sir, he was not examining it, he was just turning it over in his hands.
“Q. Did he have anything else in his hands?
“A. Yes, sir, paper. Old bill poster paper.”

Questioned further, he said that the gun barrel had no stock, handle, nor trigger on it. But later he said, as for the gun having no trigger, he did not know that of his own knowledge.

Earl Ramsey, testifying on the subject, says that the butt of the gun had rotted off:

“Q. Did it have a trigger on it?
“A. No, sir. It was a hammerless gun; it had a thing on the bottom but it did not have any hammer qn it. I picked up the gun and showed it to Catherin. He said, yes, I see it. Just as I went to throw the gun away it went off.
“Q. In your hands?
“A. Yes, in my hands.
“Q. How did it happen that the gun went off?
“A. All I know is that I threw the gun away, like that (indicating). Just when I took the gun to throw it away, there was a screw hanging out of the gun where the stock was nailed on it.
“Q. You made a simple gesture or movement of your hand that contained the gun, didn’t you?
“A. Throwed it away, yes.
“Q. And as you moved your hand or made the gesture the gun went off?
“A. Yes.
“Q. I want you to be truthful about this — after the gun went off did you not still have the gun in your hands?
“A. After the gun went off, the gun fell out of my hand.
“Q. The gun was in your hand when it went off?
“A. Yes, when she went off it fell out of my hand.
“Q. When it went off you threw it away?
“A. No, it jumped out of my hand.
“Q. It went off when it was in your hand?
“A. Yes.”

According to the testimony, Ramsey picked up the gun barrel and had it in his hands with some old poster paper, but it was not by him intentionally pointed at the plaintiff; yet it was of course pointing at plaintiff’s face, otherwise the shot would not have struck him in the eye.

The Act 20 of 1914, sec. 38 (amended by Act 38 of 1918), says that an accident shall, unless a different meaning is clearly indicated by the context, “be construed to mean an unexpected or unforeseen event happening, suddenly or violently, with or without human fault.”

This gun barrel was not exposed to fire nor to an electric spark. It did not spontaneously fire as a result of having been picked up and held in the hand. Ramsey must have done something to bring it about, but just how it came to fire, the evidence does not enable us to say.

Defendant cites us to Conaway v. Marine Oil Co., 162 La. 147, 110 So. 181. In that case the court said:

“While Conaway was engaged in supplying the tires of an automobile with air, a pistol in the hands of one of defendant’s employees was accidentally discharged, the bullet therefrom striking and killing Conaway.”.

It does not appear from the opinion that the employee whose pistol was discharged was handling the pistol in the performance of his duty as employee and in performing service arising out of and incidental to his employment in the course of his employer’s business.

In the present case this does appear; hence a difference exists between the situation in the present case and the case cited.

Ramsey, in picking up the gun barrel lying near and in front of the board and in having it in his hands for the purpose of casting it away so that the space near the board might be clear of rubbish, was performing service arising out of and incidental to his employment and in the course of his employer’s business. The employment of the plaintiff in the same work in which Ramsey was engaged, caused him to be near the board and within range of the gun and the shot discharged from it.

The fact that Ramsey was careless in handling the rubbish picked up by him is not a matter which we can take into account. Therefore there seemingly appears a causal relation between the picking up of the gun barrel, having it in hand for the purpose of casting it away, which was the source of the injury, and the injury to the plaintiff, as the result of his service in the same employment.

The situation in the present case appears to us to be on a parity with that which existed in Schexneider v. General American Tank Corporation, 5 La. App. 84. In that case St. Amant, whose pistol fire killed a fellow employee, in explaining how it happened, testified in part as follows: “* * * And how it happened or what, I do not know, but the gun accidentally went off.” The employee whose pistol killed the other employee was a watchman, whose work required him to have a pistol at the time and (place, and the service of the other party who was killed required him to be there at that time.

In Myers v. La. Ry. & Navigation Co., 140 La. 937, 74 So. 256, 257, we copy from the syllabus:

“The test to determine whether injuries to a workman arise out of his employment is not whether the cause of the injury, that is, the agency producing it, was something peculiar to the time of employment, but whether the nature of the employment was such that the risk from which the injury resulted was greater for the workman than for a person not engaged in the employment.”

The facts of the present case meet the requirements of this test.

In Dyer v. Rapides Lumber Co., 154 La. 1091, 98 So. 677, the court said:

“Where a workman is exposed to some risk manifestly necessitated by his employment, he is entitled to his compensation, unless it be also manifest that he would at the time of the occurrence have been equally exposed to' the same risk outside of his employment.”

The facts of the present case also meet this test.

The cases Ferguson v. Cady-McFarland Gravel Co., 156 La. 871, 101 So. 248; Byas v. Hotel Bentley, 157 La. 1030, 103 So. 303, and Brown v. Vacuum Oil Co., 171 La. 707, 132 So. 117, support liability in principle. The'causal relation between the source of injury and the employment of the party injured, in Gasca v. Pipe Line Co., 2 La. App. 483, and Lebourgeois v. Lyon Lumber Co., 6 La. App. 216, was not greater than seems tq exist in the present instance.

The judgment appealed from is in our opinion correct.

Judgment affirmed, defendant and appellant to pay the costs in both courts.


author: JANVIER, J.

text:
    No. 14,082
    Orleans
    STATE OF LOUISIANA v. MENEFEE MOTOR CO., INC.
    (January 11, 1932. Opinion and Decree.)
    (February 15, 1932. Rehearing Refused.)
    (February 29, 1932. Writs of Certiorari and Review Refused by Supreme Court.)
    Charles J. Rivet, of New Orleans, attorney for plaintiff, appellee.
    J. L. Warren Woodville, of New Orleans, attorney for defendant, appellant.
   JANVIER, J.

The state tax collector for the city of New Orleans seeks to recover from Menefee Motor Company, Inc., additional license taxes for the years 1930 and 1931.

Defendant is a retail dealer engaged in the sale of automobiles.

Under section 8 of Act No. 205 of 1924 it is required of retail dealers that they pay a license tax predicated upon annual gross sales.

For each of the two years in question defendant paid a license tax of $360, which is the amount due under the act from a retail dealer1 whose gross sales exceed $500,-000, but are less than $600,000.

Defendant admits that its gross “receipts” for the years involved were as stated in the rule fixed by the tax collector, but contends that, since there are included in those gross “receipts” certain amounts which it, defendant, paid for freight for transporting the automobiles sold from the factory, in which they were made, to New Orleans, where they were delivered to customers, those freight moneys should be deducted from the gross “receipts” in order to ascertain what amount correctly represents gross sales.

The agreed statement of fact on which this rule was submitted shows:

“That, in selling cars to its customers, the defendant adds a profit fixed by the manufacturer to the f. o. b. price, and also divides the freight charged by the manufacturer and paid by the défendant company so as to prorate it equally to each car and adds said proration to the customer’s bill.”

It is argued that, thus, in the case of each sale, the amount paid by the customer includes freight money, in which defendant is in no way interested, but which it merely collects from the customer to reimburse it for the amount already remitted to the manufacturer.

The contention is ingenious, but, if sound, would enable all dealers who sell in one city goods manufactured in another, or who transport from one point in one city to another point in the same city goods for sale, to deduct for license tax purposes the freight or transportation charges and thus reduce the amount on which is based the license tax.

Why could not a grocer who receives a carload of flour apportion to each barrel or to each sack of flour its pro rata of the, total freight, and then, for the purpose of determining his • gross sales for license tax purposes, deduct the entire freight paid? Why could not every retail dealer adopt the same method?

That defendant sets up on its books a special account, in which it keeps a record of the freight (paid and balances the amount paid to the manufacturer by the amounts paid by the customers, is merely a convenient method of bookkeeping, and cannot be permitted to interfere with the legal situation which actually exists where a retailer sells to a customer an article for a gross price, which gross price is made up of many component parts, such as amount paid to manufacturer, pro rata of salary of clerks, pro rata of rent, etc. Why should the retailer not deduct the salaries of his clerks and the rent of his building, as well as the freight paid? All go to make up the price which must be charged the purchaser.

When the legislature based license taxes due by retailers on gross sales, it evidenced an intention to adopt, as the basis for the tax, the total amount paid by the purchasers, without considering the component parts making up the total sale price and without deducting therefrom any of those items.

If the freight paid by the customer should not be included as a part of the gross sale price, but should merely be considered as the return by the customer of an advance made to the manufacturer, then it would follow that the retailer’s vendor’s lien to secure payment of the purchase price should not include that freight money. Yet, we venture the suggestion that every automobile dealer, in the event of non-payment by a customer, would be prompt to assert his vendor’s lien for the whole sale price, including the freight money.

We realize that it is quite customary for automobile manufacturers and dealers to advertise the prices of their cars as though they were to be delivered to the customers at the factory, or, as it is known to shippers, “f. o. b. factory,” but this is merely a convenient method by which manufacturers may publish in nation-wide periodicals, prices of automobiles which are applicable in all localities. Each purchaser knows that when he buys a car the price is based on delivery at factory, but that freight and other charges are added in making up the price, which he pays, but this does not mean that he accepts delivery at the factory because, to so construe his contract would be to place on him the risk of transportation, in which risk, it is conceded, the purchaser is in no way interested. It is true that, according to the agreed statement of fact, the bill which is sent to the purchaser of each automobile is made up of various items and that among those items is found a charge for freight, but this is done merely that the customer may see how the price to him is arrived at, and cannot have the effect of authorizing courts to hold that the freight is not a part of the purchase price.

Defendant in truth and in fact sells automobiles delivered in New Orleans and it cannot deliver them in New Orleans unless it has paid the freight. When it pays the freight it must add the amount of the freight to the price, and it cannot be heard to contend that it paid the freight for the customer’s account, or that it collected the freight from the customer merely to remit it to the factory. That included in the bill is usually the cost of an automobile license does not change the situation. That item is plainly the result of the request of the purchaser of the car that the dealer obtain from the state the necessary license plates, hut the purchase by the dealer of license plates bears no analogy to the freight charge paid by the dealer prior to the sale to the customer.

We conclude that the additional license claimed is due.

In the district court judgment was rendered in accordance with the view's which we have expressed; that is to say, to the effect that, in computing gross sales, the license taxpayer should not deduct the amounts paid as freight on the articles transported from point of manufacture to point of sale, but His Honor below was of the opinion that, since, in making the said deductions, the license taxpayer had acted in good faith and upon a letter which had been issued from the office of the former attorney for the state license tax collector, the interest and attorney’s fees contended for should not be allowed.

We find in the record an answer to the appeal, in which answer the interest and attorneys’ fees are prayed for.

According to the agreed statement of fact, in basing its license tax payment on the sales only after deducting freight payments, defendant acted upon the faith of a letter marked “Defendant-5” received by it. That letter was dated February 12, 1930, purports to bear the signature of the former attorney for the state tax collector in license matters, and advises defendant that “deductions for freight * * * were allowable.”

Counsel for defendant now concedes that, if his contention that the freights are deductible is not legally sound, then, so far as the additional license itself is concerned, his client is not protected by the said letter, but he contends that, inasmuch as his client acted in good faith in making the said deductions, and was led into that action by the letter referred to, the interest and attorney’s fees should not be assessed. It is difficult to understand the theory under which it is argued that the estoppel, which is contended for against the state, applies to the principal, but not to the interest and attorney’s fees. However, whatever the theory may he, since the enactment of Act No. 148 of 1906, we are unable to see how the writing of such a letter, even if it be conceded that the letter was written by the attorney himself, can form the basis of an estoppel against the state. In section 1 of that act it is provided:

“That no action or inaction of the state, a municipality, town or parish of this state, shall stop, or prescribe, or debar its right to proceed for licenses or additional licenses before the day of prescription shall begin.”

Various eases cited by defendant and relied on as establishing the right of defendants similarly situated to rely on an estoppel against the state either have no application, or were decided prior to the enactment of the Act of 1906. It necessarily follows that, even if the letter referred to was signed by the attorney himself, it would have no effect, since his duties do not include the right to waive any license tax legally due. He cannot substitute his opinion for the decision of the courts. He has no prerogative but to proceed for the collection of licenses, and he may not, on his own initiative, interpret license statutes in such a way as to waive or abandon the rights of the state. Not only is the additional license tax due, but, also, defendant must pay interest at 2 per cent from the 1st day of March of each respective year, as well as attorney’s fees at 10 per cent on the whole amount due.

It is ordered, adjudged, and decreed that the judgment appealed from be and it is amended so as to include 2 per cent per month interest from March 1, 1930, on $290, and 2 per cent per month interest from March 1, 1931, on $140, together with attorney’s fees at 10 per cent on the whole amount due, and, as thus amended, the judgment is affirmed.