author: ELLIOTT, J.

text:
    No. 864
    First Circuit
    COMMERCIAL BANK & TRUST CO. v. PROVENSAL
    (June 30, 1931. Opinion and Decree.)
    (October 7, 1931. Rehearing Refused.)
    (November 30, 1931. Writs of Certiorari and Review Refused by Supreme Court.)
    Morgan & Simmons, of Covington, attorneys for plaintiff, appellee.
    S. W. Provensal, of Slidell, in person, attorney for defendant, appellant.
   ELLIOTT, J.

Commercial Bank & Trust Company, holder and owner of a promissory note for $350 with interest and attorney’s fees, executed and signed by S. W. Provensal, payable to the order of Commercial Bank & Trust Company, brought suit against Provensal to compel payment.

The note bears a credit of $20 paid February 2, 1929, by Provensal.

Defendant appeared and urged as a special defense that there was no proper or legal consideration given for the note, to the full knowledge of the plaintiff payee through its proper officer. .On the same day, he filed an answer in which, after admitting his signature and the payment of $20, he reiterated his averments that it was without consideration, and that the plaintiff had full knowledge of the entire matter. He denied owing the indebtedness alleged against him.

There was judgment in favor of the plaintiff as prayed for. Defendant has appealed.

From defendant’s brief, we see that he complains that the court ruled against him erroneously to his prejudice. We copy from his brief on the subject:

“During the trial of the case and upon cross-examination of the first witness defendant set out to establish the failure or want of proper or legal consideration, when plaintiff objected on the ground that defendant had not set out in detail those facts or circumstances showing the failure of proper or legal consideration. His. Honor of the lower court in his first ruling stated that he would allow the testimony, ruling that the objection to such testimony go to the effect.
“Defendant thereupon proceeded with the cross-examination and after a few ®uestions the defendant (means plaintiff) again renewed his objection. His Honor the lower court then ruled that such testimony was not admissible under the pleading. This ended the cross-examination. The plaintiff then closed. Defendant' was sworn and declared that he wished to give testimony to show the failure of proper or legal consideration, and the court, stating that no such testimony would be received, the defendant was compelled to close his. case.”

The note of testimony bears out this statement, except that it appears therefrom that C. E. Schonberg, president of the plaintiff bank, being cross-examined, was asked by defendant:

“Q. Did I get cash for that note? (Objected to by plaintiff on the ground mentioned. The court ruled that he would hear the evidence, upon which the witness answered):
“A. No.
“Q. Then what did I get for it?
“A. What did you get for that note?
“Q. Yes, sir.
“A. You gave me that note as the balance due on a previous note that the bank had held.
“Q. Where is it?
“A. I^have it.”

At this juncture, the plaintiff again objected, urging as a further reason that defendant had elicited the fact that the note sued on is a different and separate note against which he has leveled his defense, and constitutes a renewal and ovation (means novation) on the form of the debt.

The court ruled:

“Inasmuch as the witness has answered that the note was given to renew and take up a previous note that it would not now be relevant to go into the details or circumstances for a previous obligation, therefore sustains the objection.”

The defendant was then sworn and testified, saying:

“I offer to testify with reference to the consideration for Which this note was given.”

The court declined to hear him, stating, in effect, that defendant did not set up in his answer sufficient facts to warrant inquiry into the consideration of the previous note. The ruling was. correct.

Act No. 64 of 1904, sec. 25 says:

“An antecedent or pre-existing debt constitutes value; and is deemed such whether the instrument is payable on demand or at a future time.”

Section 26:

“Where value has at any time been given for the instrument, the holder is deemed a holder for value in respect to all parties, who become such prior to that time.”

In Langstaff v. William Lees & Co., 11 La. Ann. 271, the court said:

“The defendants, by their answer, admitted their signatures, and pleaded ‘failure of consideration,’ without any specification, either of the consideration of these notes, or of the time, place or circumstances of its failure.
“We agree with the District Court, that this, plea is too vague to authorize the admission of proof upon it.”

In this case, it is shown that the note sued on represents the balance due on a previous note, as to which the consideration is not alleged to have failed. The answer admits that a payment of $20 was made on the present note:

The fact that the defendant, after alleging want of consideration, added: “To the full knowledge of plaintiff corporation acting through its. proper officer,” cannot take the situation out of the grasp of the legal provision that an antecedent or preexisting debt constitutes value.

We think that the court ruled properly. And on the evidence adduced, judgment was properly rendered in favor of the plaintiff as prayed for.

Judgment affirmed. Defendant and appellant to pay the cost in both courts.


source: Caselaw Access Project

author: JANVIER, J.

license: Public Domain

text:
    No. 14,002
    Orleans
    NATAL ET AL. v. LOUISIANA & ARK. RY. CO.
    (November 16, 1931. Opinion and Decree.)

      Swords & Jung, of New Orleans, attorneys for plaintiffs, appellants..
    Milling, Godchaux, Saal & Milling,' of New Orleans, attorneys for defendant, appellee.
   JANVIER, J.

Blaintiffs seek reimbursement for the loss sustained in the death of their fourteen-year-old son, who died as a result, of a collision between the automobile in which he was a guest passenger and a train of defendant railway company.

The accident occurred where the track of the railway company crosses Palm street in the upper section of the city of New Orleans near the parish of Jefferson. The time of the happening was about 6:15 in the morning of July 8, 1930, during broad daylight and in clear weather.

The automobile, driven by an eighteen-year-old friend of the deceased, was on its way in Palm street towards the downtown or business section of the city, and the train was proceeding out of the city on its regular schedule.

Palm street and the railway tracks intersect, but not at right angles, and are so located that the automobile and the train, as they approached the point of intersection, almost faced each other.

The charges of negligence, as they appear categorically set forth in the brief of plaintiffs, are as follows:

“1. That it was negligent, by reason of the failure of the train crew to give adequate warning, by sound of whistle and hell, as the train approached the crossing.
“2. That it was negligent, by reason of its failure to adequately safeguard the crossing, by either gates, a watchman or automatic signaling device.
“3. That its principal negligence, and the one on which plaintiffs chiefly rely, resulted from defendant operating its train over said crossing at an excessive and dangerous rate of speed, in view of the crossing’s mode of construction, the physical facts surrounding it, its location in a populous city and over a heavily traveled thoroughfare, and the customary manner of its crossing by automobilists.’’

The defenses are that the train was operated at a moderate speed and that all necessary and reasonable signals and warnings were given; that the automobile was being driven at a reckless and excessive speed; that np proper lookout was maintained, and that the recklessness of the driver was so apparent and continued for so long a time that it was negligence on the - part of the deceased, himself, to fail to protest; that, in fact, he acquiesced in this carelessness.

The suit was originally brought against both the railway company and Ben Gill, Sr., father of the. minor who was driving the automobile, but, prior to the trial, it was dismissed as to Gill.

From a judgment in favor of defendant railway, plaintiffs have appealed.

We will consider in order the three charges of negligence, on which the petition is based, in an effort to determine whether there was any blame to be attached to the employees of defendant, or growing out of the operation of the train, or to defendant company, itself, in that no proper and adequate safeguards were maintained, because until it appears that the defendant was at fault, there is no necessity to consider the alternative defense of contributory negligence on the part of the deceased.

The first charge is that the train operatives were negligent in that they failed to “give adequate warning, by sound of whistle or hell as the train approached the crossing.” The evidence with regard to the giving of warning signals is conflicting. That on hehalf of defendant is positive; that is to say, the witnesses testified affirmatively that they heard the signals, whereas that on hehalf of plaintiffs is negative; the witnesses merely stating that they heard no warning. In such a situation where the number of witnesses and the credibility of witnesses is about evenly balanced, positive testimony must prevail over negative, and we, therefore, conclude that the signals were sounded. In fact, counsel for plaintiffs, with commendable frankness, concedes that on this point the evidence preponderates against the charges made by his clients and he states in his brief that “it would be futile for us to burden the court with the resolution, of this controversial point.”

We next consider the second charge of negligence, that the crossing was not adequately safeguarded, and that either a gate or a watchman or an automatic warning device should have been maintained.

it is conceded by counsel for plaintiffs that “in the absence of a statute or ordinance requiring the railroad company to guard the crossing with gates, or by a watchman, its failure to do so is not negligence per se.”

We have been referred to no statute or ordinance requiring gates or a watchman or an automatic signaling device, and it follows that it was not negligence, per se, for defendant to have failed to maintain such safeguards. It is argued, however, that, because of the extremely hazardous nature of the particular crossing, it was negligence, as a matter of fact, for the railroad to rely on the protection afforded by the giving of the simple warning customary in rural communities where traffic is light and danger slight.

The record shows that on the date of the accident, Palm street was being used, and, for about three or four weeks prior thereto, had been used as the only traffic artery between the upper limits of the city of New Orleans and that suburban section commonly known as Metairie Ridge. This, of course, made of that street a much traveled thoroughfare, and there is no doubt that at busy periods of the day a fairly constant stream qf vehicular traffic passed over the crossing. Yet the evidence shows that at that time in the early morning only a few automobiles were on the street, and no unusual or extreme hazard existed by reason of congested traffic.

That the view of the driver qf the automobile was almost entirely unobstructed when he reached a point within 200 feet or so of the track is very evident from the testimony and, also, conclusively appears from an examination of the photographs which we find in evidence and we find no sufficient basis to sustain plaintiffs’ contention that the view of the driver was appreciably obstructed by trees, weeds, or shrubbery. True it is, that from the direction from which the automobile was approaching, the view of the driver was interfered with by trees, until he reached a point nearly 200 feet from the track, but, after passing the trees in question, anyone who wishes to do so may look and if he does look he will have a clear vision of a train approaching on the track. At no point are these trees nearer to the track than 175 feet and we cannot accept as sound the argument that the view of an approaching train is obstructed where the obstruction is located at so great a distance from the track itself. After passing the obstruction there is ample time for an automobile, operated at any reasonable speed, to be stopped before reaching the track. The track was slightly elevated above the level of the surrounding ground and a warning device and a “stop sign” made it very apparent that a railroad crossing existed.

We conclude that, at the time of the accident, there was no extraordinary hazard resulting from the physical circumstances or nature of the crossing sufficient to place upon defendant the legal duty to maintain crossing gates or an automatic warning device or a watchman.

The third charge of negligence is that the speed of the train was excessive and dangerous in view of the so-called peculiarly hazardous condition of the crossing; its location in a populous city, and in view of the speed at which automobilists customarily operate their cars at that point.

The train consisted of a locomotive, a tender and a few coaches. It came to a stop in less than 200 feet after striking the automobile. The estimates of the several witnesses as tq the speed of the train vary greatly, but the short distance traveled by it after the collision leads to the conclusion that the speed could not have been excessive, as modern steam trains are very heavy and, when traveling at a high speed, carry great momentum, which prevents their stopping within short distances. It was shown conclusively that the' train had left the station less than three miles away, some fifteen minutes before the accident. Though it had stopped once for passengers and once for orders, the fact that it had consumed fifteen minutes in traveling less than three miles would indicate moderate rather than excessive speed.

We have already discussed the charge that the volume of automobile traffic made it imperative that special precautions be taken and have concluded that, at least at that time in the early morning, there were not, in that locality, sufficient automobiles to create a great or unusual hazard.

Plaintiffs’ contention that the custom of motorists to drive fast over the crossing and to fail to slow down upon reaching it and that this custom placed upon the train operatives a greater duty to exercise care than would otherwise exist raises a most interesting question.

Conceding that a train is operated at a reasonable and careful speed over a particular crossing, and without undue danger to motorists also driving moderately and with ordinary care, can it be said that the operatives of such train are negligent because they fail to take intq consideration that a custom has been established by autoists to drive in that particular neighborhood at excessive and. dangerous speeds? We are not prepared to say that such a custom, if clearly proven, would not place extraordinary duty on operatives of trains, but here no such custom is shown, as the particular witness relied on to establish the existence of such a practice proved no more than that some people are careless in negotiating the crossing. The same carelessness is exhibited by a certain number of autoists at all crossings, but we do 'not find from the record that a large majority of motorists, at this crossing, operated their cars at excessive speeds.

Plaintiffs rely largely on two decisions of the Supreme Court of Louisiana, Downing v. M. L. & T. R. R. & S. S. Co., 104 La. 508, 29 So. 207, and Lampkin v. McCormick, 105 La. 418, 29 So. 952, 954, 83 Am. St. Rep. 245, and they contend that, in compliance with the doctrine announced in these cases, the defendant railroad company in the instant case, should have been particularly careful in the operation of its train, and in the maintenance of warnings, because of tbe fact that the crossing in question is located in a large, populous city. There can be no doubt that it is negligence to run trains at high speeds through sections of populous cities, but the facts of each case should be taken into consideration and no definite, positive rule can be laid down which will govern in all. In each of the two cases to which we have referred a most dangerous situation was shown in that trains were operated on parallel tracks with the result that in each case the injured party was confused by the train on the other track and did not realize that another train was approaching on the track on which he was standing. In fact, in discussing the reason for the decision in both cases, the Supreme Court in the Lampkin case, which was the later of the two, said:

“This case resembles, in a number of its features, that of Downing v. Southern Pacific Railroad Co. (recently decided by this court) [104 La. 508] 29 So. 207. In both cases there was the killing of a man, for want of proper caution, hy the backing down of afreight train. In both cases the freight train moved opposite a danger point in the streets of a town simultaneously with the passing of a passenger train upon a- parallel track, when the attention of persons standing along or between the tracks would be likely to be attracted by the passenger train, and when the noises from the passenger train would be likely to conceal the approach of the freight train.”

We have reached the conclusion that the defendant company was guilty of no negligence, and therefore there can be no recovery, regardless of whether or not there was any duty in the deceased to protest against the excessive speed and the continued negligence which was being exhibited.

The judgment appealed from is affirmed.


author: McGRECOR, J.

text:
    No. 3703
    Second Circuit
    SMITH v. BEWLEY FURNITURE CO. ET AL.
    (November 18, 1931. Opinion and Decree.)
    Barksdale, Bullock, Warren, Clark & Van Hook, of Shreveport, attorneys for plaintiff, appellant.
    Cook & Cook, of Shreveport, attorneys for defendants, appellees.
   McGRECOR, J.

This is a suit by the plaintiff- to recover damages for the illegal entry of her home and for the value of certain, articles of furniture removed therefrom and converted by the defendants. In her petition Mrs. W. M. Smith, the plaintiff, alleges that during her absence and without her knowledge and consent the defendants, on or about April 17, 1928, wrongfully and illegally entered and broke into her home at 1663 Texas avenue in the city of Shreveport, and removed therefrom certain furniture and other personal property valued at $90. On account of this alleged wrongful conduct of the .defendants the plaintiff brings this suit for $1,090 damages, which she itemizes as follows:

Value of property taken and removed..$ 90

Mental anguish ______________________________________ 500

Exemplary damages _____________________________1 500

$1,090

The defendants first filed a motion to strike out that portion of plaintiff’s demand calling for exemplary damages and this motion was sustained. The defendants then answered, setting up that the plaintiff was indebted to defendants in the sum of $57 for furniture sold and delivered to the plaintiff, and being in arrears on her payments and unable to pay anything further on the bill, that she asked and consented that defendants take the furniture in full settlement of the balance due. It is alleged in the answer that this agreement was made on the sixteenth of April, 1928; that on the next day, or April 17, 1928, pursuant to the agreement, the defendants went to the residence and entered her house and removed the furniture. The actual moving was done by F. A. Bewley, one of the defendants, and two negro boys, employees.

Questions of fact alone are involved in this case. On the trial of the case the plaintiff produced only one witness besides herself. For the defendants there appeared F. A. Bewley, one of the defendants, two employees and two former employees.

The plaintiff alleges that on the afternoon of April 16, she. called at the place of business of the defendants and made arrangements for at least a week’s extension on her past due account. The defendants allege and contend that on this occasion it was agreed that - the defendants should send for the furniture on the next day an.d take it back in settlement of the account. Five witnesses testify to this for the defendants and the plaintiff alone denies it. It is testified by all the defendants’ witnesses that the plaintiff said on* that occasion that she would not be at home on the next day but that she would leave the house unlocked so that the furniture could be removed without any trouble. Plaintiff denies this, but the' fact remains that she was away, the house was unlocked and there was no obstacle to removing the furniture.

It is sought to refute' the testimony of the defendants’ witnesses by pointing out certain conflicts and discrepancies therein. We do not find these serious. On the contrary, they are natural and the fact that they exist convinces us of the sincerity and truthfulness of the witnesses. It would not be profitable or of any value to discuss the testimony of the various witnesses in detail. The judge of the lower court saw and heard these witnesses testify and observed their demeanor. It was his opinion that the plaintiff failed to prove her case. We find no error, manifest or otherwise, in the judgment appealed from.

For the reasons assigned, it is therefore ordered, adjudged, and decreed that the judgment appealed from be, and the same is, hereby affirmed, the plaintiff and appellant to pay all costs of both courts.


author: MOUTON, J.

text:
    No. 865
    First Circuit
    LUCAS E. MOORE & CO. v. HURSEY TRANSPORTATION CO.
    (June 30, 1931. Opinion and Decree.)
    (October 7, 1931. Rehearing Refused.)
    Burns & Burns, of Covington, attorneys for plaintiff, appellee.
    S. W. Provensal, of Slidell, attorney for defendant, appellant.
   MOUTON, J.

Defendant company executed a promissory note for $500 in favor of plaintiff company, September 30, 1930, payable in October, 1930.

The execution of the note is admitted, the sole defense being want of consideration.

The proof is that defendant was indebted to plaintiff in a sum exceeding $500 for Insurance premiums. It is shown, and not disputed, that this note was given in part payment of the account for these premiums, and that the account was credited up to the amount of the note. This, pre-existing obligation of the defendant constituted a legal consideration for the note which embodied a valid binding obligation.

Counsel for defendant contends that there was no novation and there is nothing therefore to prevent plaintiff from suing on the old debt. The question of novation is not raised in the answer or pleadings.

Novation is not an issue in the case, and even if it were, as defendant’s account has been credited to the amount of the note, it need not entertain any fear that plaintiff could hereafter recover for the whole debt.

The judgment below is in favor of plaintiff for the amount of the note, in which we find no error, but we will not, however, grant damages for a frivolous appeal asked for by appellee.


author: CUEPEPPER, J.

text:
    No. 3735
    8econd Circuit
    EZERNACK v. EZERNACK
    (November 18, 1931. Opinion and Decree.)

      R. A. Eraser, of Many, attorney for plaintiff, appellant.
    Boone & Boone, of Many, attorneys for defendant, appellee.
   CUEPEPPER, J.

Plaintiff proceeded by rule for an injunction restraining d’efendant from interfering with the passage by plaintiff and the members of his family upon, over, and across defendant’s land from the home of plaintiff out to the nearest public highway, alleging that a passageway across the land of defendant is the only possible and practical way for plaintiff to get to the highway. Plaintiff alleges that for more than twenty years there had been a private road continuously open and used by and for the benefit of his property and home over and across defendant’s said property; but that recently defendant closed and obstructed said private road without any right so to do, greatly to the damage of plaintiff and his family and tenants. Plaintiff represents that writ of injunction is necessary to protect his rights in the premises, and, accordingly, prayed for and obtained a rule upon defendant to show cause why the alleged closed road and passageway should not be opened to the use of plaintiff and the occupants of his land and premises, and why an injunction should not issue perpetually restraining defendant from in any manner interfering with the free use of said passageway; and ordering defendant to remove therefrom all obstructions placed thereon. He prayed for recognition and enforcement of his alleged right of passage and way over and across defendant’s land, also that his right be reserved to s.ue defendant for damages for illegal interfeience with nis alleged rights.

Defendant filed an exception of no cause or right of action, which was tried and referred to the merits by the court. Defendant, reserving his rights under the exception, filed answer of general denial, and the case was thereupon tried on the merits, after which the court rendered judgment sustaining the exception of no cause or right of action, recalled the rule, and dismissed plaintiff’s suit with costs. Plaintiff has appealed.

Defendant urges his exception of no cause or right of action before this court. If the exception is good, and we believe it is, a determination of that question will dispose of the case. Counsel quotes Civ. Code, art. 699, in support of the exception, Wherein it provides that the owner of an estate which is inclosed, and who has. no way to a public road, may claim the right of passage on the estate of his neighbor to the nearest public road and shall have the right to construct a road over the land of his neighbor, but he shall be bound .'to indemnify his neighbor in proportion to the damage he may occasion. Counsel points out that plaintiff has in no way stated or indicated in his petition that he had offered to pay or had any intention to pay defendant for the land for use as a road or passageway; that under -the law this would have to be done before plaintiff would have the right to sue for a right of way.

Plaintiff, on the other hand, claims and sets out in his petition:

“That for more than twenty (20) years there has been a private road and right of passage continuously open and used by and . for the benefit of petitioner’s said property over and across” the property of defendant. And defendant ‘‘has recently closed and obstructed said private road * * * without any right so to do.”

Plaintiff claims that a road or passageway had long since been established, not by deed of course, but by the voluntary act of defendant; and that plaintiff having availed himself of the use of the passageway for a number of years, the right to use the same has become vested in plaintiff, hence when defendant closed up and obstructed the passageway it amounted to a violation of plaintiff’s vested rights, in consequence of which plaintiff has the right to require defendant to again open up the alleged passage or road and be enjoined from closing it or interfering with plaintiff’s right to pass over same.

Plaintiff nowhere in his petition alleges that the location of this road or passage has been fixed by and between him and defendant; does not allege that there has ever been any express agreement by and between them regarding the passageway or the right on the part of plaintiff to use it. Plaintiff evidently, from the allegations in his petition, relies upon an implied right to use the way by reason of the aljega-tion that there existed the road or way, that he had been using it, therefore has the right to continue same unmolested.

In Baldwin Lbr. Co., Ltd., v. Todd, 124 La. 543, 50 So. 526, the court held, quoting syllabus by the court:

“An injunction based on an implied right of passage is properly refused, where it does- not appear that the alleged place and mode of passage has been fixed by consent of parties or a judgment of court.”

The court held in that case that under Civ. Code, arts. 700-703, an implied right of way cannot be exercised until it is fixed by consent of parties or judgment of court.

In Wemple v. Eastham, 150 La. 247, 90 So. 637, the court held-that:

“Owners of an inclosed estate are not entitled to a right of passage unless the parties agree upon its location, and upon the compensation to be first paid, or until location of the servitude and the compensation to be first paid shall have been fixed by a judicial decree, under Civ. Code, arts. 699, 700, 702.”

The trial judge in the present case had the benefit of the testimony adduced upon trial ’ on the merits. He evidently found no evidence of any agreement, verbal or otherwise, having ever been entered into by and between plaintiff and defendant fixing a passageway over defendant’s land for plaintiff to use. We have read the testimony in the record witn this object in view, and we fail to find any such agreement. There is none set forth in any of the various title deeds filed in evidence. Plaintiff has proceeded by rule for an injunction to restrain defendant from interfering with what is shown to be merely an implied right. Under the decisions cited and quoted above, an injunction will not lie. The judgment of dismissal by the lower court as in case -of nonsuit, we think, is correct, and is therefore affirmed.


author: CULPEPPER, J.

text:
    No. 3776
    Second Circuit (Second Division)
    BREAZEALE v. AMERICAN RAILWAY EXPRESS CO., INC.
    (November 18, 1931. Opinion and Decree.)
    Breazeale & Hughes, of Natchitoches, attorneys for plaintiff, appellant.
    Rusca & Cunningham, of Natchitoches, attorneys for defendant, appellee.
   CULPEPPER, J.

On November 9, 1928, Mrs. P. H. Bell, of Leaks.ville,- Miss., shipped by the defendant carrier, to Mrs. Wood Breazeale, of Natchitoches, La., a lot of china and cut glass in two boxes, valued on the express receipt at $400. The shipment was delivered on November 13th to the defendant, in apparent good order, and delivered to the plaintiff in apparently the same condition.

It was some time after the receipt of the shipment before 'the packages were opened, due to the fact that plaintiff was moving into a new home. She did decide, however,' to unpack the cases after Mrs. Bell had inquired, over long distance telephone, whether everything was all right. She then notified defendant’s agent in Natchitoches that several articles were broken. Mr. Mc-Manus, the agent, made several attempts to see Mrs. Breazeale, but, due to the fact that she was out, it was several days after receipt of the notice that he finally saw her. He puts the time about December 10th.

Some of the broken pieces were exhibited to defendant’s agent, but the containers were probably destroyed, as at this time plaintiff had already moved. Claim was made for $250, and some effort made to adjust the matter amicably, but without result. This suit followed. Upon trial of the case, there was judgment for plaintiff for $46, but defendant filed a motion for a rehearing, which was granted, whereupon the matter was again submitted to the court without additional evidence, and judgment was. then rendered for the defendant. Plaintiff appeals.

Defendant complains of a ruling of the lower court in ruling out as inadmissible a certified copy of the schedules and rules of defendant as filed with the Interstate Commerce Commission, upon the ground that the receipt or bill of lading issued to the shipper when received was (quoting), “what you are bound by.”

This was an interstate shipment, and the provisions of the tariffs and classifications on file with and approved by the Interstate Commerce Commission have the force of statutes. And while the bill of lading should conform to the tariffs, rules, and regulations approved by the Interstate Commerce Commission, nevertheless, if there should be found any discrepancy, the published approved rules would govern. Southern Express Co. v. Byers, 240 U. S. 612, 36 S. Ct. 410, 60 L. Ed. 825, L. R. A. 1917A, 197. The objection, therefore, should have been overruled, and the schedules and rules admitted.

However, the document is before us, attached to a bill of exceptions, and it will not be necessary to remand the case to admit the evidence. Rule 18 of the Freight Classification Rules, provides as follows:

“All shipments must be so prepared or packed as to insure safe transportation with ordinary care on the part of the Express Company.”

And further:

“Glassware, other fragile articles, or articles in glass or earthenware must be boxed, barreled, or crated and so packed as to insure safe transportation with ordinary care; if not so packed and plainly marked to indicate the nature of the contents, the company shall not be liable for damage to shipments, except when proved to be negligent.”

The only testimony as to how this glass was packed was by Mrs. Breazeale, who testified that, when the packages were opened, “they were packed in excelsior, and newspapers on the bottom and top.” There is no testimony as to the size of the packages, what they were composed of, how much excelsior was used, or the quantity or newspapers. It was not shown that the boxes were marked to indicate that the contents were glass, earthenware, or fragile articles. And there is a complete lack of testimony as to defendant’s negligence.

The burden of proof was upon the plaintiff to show that these articles were, in fact, properly packed, and marked to indicate their contents. Failing in this, 'it was incumbent upon the plaintiff to prove defendant was negligent. In this, plaintiff also failed. The testimony is equally as unsatisfactory as to the value of the articles damaged.

The judgment appealed from is therefore correct, and is affirmed.


text:
    No. 3756
    Second Circuit (Second Division)
    PLAUCHE-LOCKE SECURITIES CO., INC., v. TERRELL (HOLLINGSWORTH, Garnishee)
    (November 18, 1931. Opinion and Decree.)
    Cline & Plauche and C. S. Girod, Jr., of Lake Charles, and W. H. Wamsley, of Coushatta, attorneys for plaintiff, appellant.
    Henry W. Bethard, Jr., of Coushatta, attorney for garnishee.
   CULPEPPER, J.

Plauche-Locke Securities Company, Inc., obtained judgment in the district court of Red River parish on October 14, 1927, against- G. A. Terrell, in the sum of $622.38, with interest, attorney’s, fees, and costs, and with recognition of plaintiff’s vendor’s lien and chattel mortgage upon an automobile belonging -to defendant, for the purchase price of which the note sued on was given. The property mortgaged was thereafter sold by the sheriff, and, after the judgment had been credited with the proceeds, there was left a balance due on same. Thereafter, garnishment proceedings, were issued under a fi. fa. in which C. W. Hollingsworth was made garnishee. Hollingsworth answered, setting forth that Terrell was in his (Hollingsworth’s) employ as a bookkeeper at a salary of $175 per month, payable monthly on the first of each month, but that he, garnishee, had loaned Terrell certain sums of money and had. sold him certain merchandise previous to the beginning of the employment, and since, for which Terrell'owed $322.38 at the beginning of his employment and the amount of the advances since amounted to $3,041.96; that he (garnishee) entered into an agreement with Terrell at the beginning of the employment, which agreement is still operative, by which Terrell’s salary should be applied upon his said indebtedness to garnishee from month to month as same accrued. Garnishee attaches an itemized statement to his answers to interrogatories which shows that Terrell still owes more than his salary accruals up to the end of his employment, which will he, according to the answer, November 30, 1928.

Upon this, showing judgment was rendered, denying the relief sought and dismissing the garnishmenc proceedings. Plaintiff took an appeal from the judgment; the appeal Deing lodged in this court on December 2, 1929. No appearance has been made before the court- by plaintiff, no brief filed, and no appearance by counsel for argument. Counsel for the garnishee made no appearance except to file briefs. Counsel states in his brief that it is his. understanding that plaintiff has abandoned its case against the garnishee, presumably for the reason that Act No. 115 of 1928, upon which plaintiff relied for relief, was declared unconstitutional by the Supreme Court on December 1, 1930, in an opinion handed down in the case of Surety Credit Co. v. Tieman, reported in 171 La., page 581, 131 So. 678. It is true the act was declared unconstitutional in the decision referred to.

Such being the case, plaintiff would have to recover, if at all, under the old law.

Under the old law, future credits or rights could not be seized, and garnishee was liable only for money or property of debtor in garnishee’s possession at date of garnishment.

Garnishee states in his answer to the interrogatories that he did not have at the time of the service of the interrogatories, nor since, any money or funds, rights or credits in his possession, belonging to the defendant G. A. Terrell. This being taken tó be true, plaintiff’s garnishment was unavailing, and the dismissal of the proceeding by the district judge was correct.


author: DREW, J.

text:
    No. 3739
    Second Circuit
    JONES v. GRAND LODGE OF TABERNACLES OF THE GENERAL GRAND INDEPENDENT ORDER OF BROTHERS AND SISTERS OF LOVE AND CHARITY FOR NORTH AND SOUTH AMERICA, LIBERIA AND ADJACENT ISLANDS, No. 8129
    (November 18, 1931. Opinion and Decree.)

      Breazeale & Hughes, of Natchitoches, attorneys for plaintiff, appellee.
    Gunter & McClung, of Natchitoches, attorneys for defendant, appellant.
   DREW, J.

Plaintiff sued on a policy of insurance issued on the life of Cecilia Francois for the sum of $300, making the plaintiff herein the beneficiary. The insurer is a fraternal organization with its domicile in the state of Louisiana. The suit as originally filed alleged the defendant to be a non-resident corporation and was cited through the secretary of state. No appearance was made by defendant and plaintiff’s case was proved up on default. From this judgment defendant appeared and perfected an appeal to this court. Later, and during the pendency of the appeal in this court, defendant filed a suit to annul the judgment for the want of citation. Plaintiff answered the suit and reconvened on the policy, praying for judgment for the amount of the policy. By agreement of counsel, the case was tried on the testimony offered in the first case by the plaintiff and the testimony offered on the present trial.

Defendant admits issuing the policy sued on by plaintiff and does not deny that the insured, of whom plaintiff is the beneficiary had paid all dues that she owed to the local lodge up to the time of her death. It does contend, however, that at the time of the insured’s death the local lodge, of which she was a member, viz.: Mars Hill Tabernacle, No. 22, located at Bermuda, Louisiana, was' under suspension, due to the failure of the proper officer or officers of that lodge to make remittance to the grand lodge, and that suspension of the local lodge, although through no fault of the insured, was a bar to the recovery on the policy if the insured died during the time of the suspension. The lower court upheld this contention, annulled the default judgment and rejected the demand of plaintiff in reconvention. From this judgment, plaintiff in reconvention has appealed.

To decide this contention of the defendant lodge is to decide the case. This court has on numerous occasions held under like policies that when a member of a lodge pays his dues to the proper officer of the local lodge on or before the due date, in accordance with the rules and regulations of said lodge, he has complied with his duties and is in good standing, regardless of the failure of the officer to forward the money to the grand lodge, the officer receiving the money being the agent of the grand lodge and not of the member. Smith v. Most Worshipful Grand Lodge, etc., 135 So. 675, 17 La. App. 536.

A case against the same defendant as in this case and growing out of the same identical facts, and during the time of the alleged suspension that is claimed in this case, was decided adversely to the defen,dant lodge by this court on February 26, 1931. Emanuel v. General Grand Independent Order of Brothers and Sisters of Love and Charity of North and South America, Liberia and Adjacent Islands, 16 La. App. 186, 183 So. 506. The identical questions and on the same facts as in this case were fully discussed in that one. It is therefore unnecessary for this court to fully discuss them again, and for the reasons given in that case, we are of the opinion that the plaintiff in reconvention is entitled to recover under the policy sued on.

It is therefore ordered, adjudged, and decreed that the judgment of the lower court be amended by reversing the judgment rejecting the reconventional demand, and that plaintiff in reconvention have judgment against the defendant in reconvention in the full sum of $300, with 5 per cent per annum interest thereon from July 19,- 1927, until paid; the cost of appeal to be paid by appellee.


author: STEPHENS, J.

text:
    No. 3795
    Second Circuit (Second Division)
    SHREVEPORT MATTRESS CO. v. J. M. RITTER & SON ET AL.
    (November 18, 1931. Opinion and Decree.)
    Parsons & Colvin and P. H. Alston, of Mansfield, attorneys for plaintiff, appellant.
    Ponder & Ponder, of Many, attorneys for defendants, appellees.
   STEPHENS, J.

The plaintiff sues to recover a judgment against J. M. Ritter & Son and the individual members thereof, in solido, in the sum of $124.60, alleged to be due for merchandise sold and delivered in two shipments, as shown by invoices' of date September 14, 1926, and July 13, 1927, each for the sum of $75 and $49.60, respectively.

The defendant answered, denying that the merchandise had been sold and delivered to it.

Paragraph 2 of the petition reads as follows :

“That the said indebtedness is for merchandise sold and delivered, on open account, on September 14, 1926, and on July 13, 1927; as will be shown by a sworn itemized ' statement of said account, hereto annexed and made part hereof.”

Paragraph 2 of the defendant’s answer reads:

“Paragraph two of said petition is denied.”

A trial of the case resulted in a judgment rejecting plaintiff’s demands. The plaintiff moved for a new trial. The mo- ' tion was overruled, and the plaintiff appealed.

In support of its case, the plaintiff offered in evidence the depositions of Daley V. Trickett, its manager, and H. G. Gibbs, its bookkeeper. The counsel for the defendant interposed the general objection that the matter contained in the depositions was irrelevant and immaterial, and especially objected to the introduction of a bill of lading offered in connection with the depositions, as an unidentified, unauthenticated copy. The objections were overruled, the evidence filed, and the plaintiff rested.

The defendant then introduced its only witness, J. C. Ritter, the manager of J. M. Ritter & Son. This witness announced himself as familiar with the transaction with plaintiff. He admitted the receipt by his firm of the goods alleged to have been sold and delivered, and produced two canceled checks, one for the sum of $73.50, dated December 20, 1927, and the other for the sum of $66, dated December 19, 1928. He testified that these checks were given and received in payment of the invoices sued on.

It will be noted that the defendant executed a complete reversal of its position after the plaintiff closed its case. The plaintiff, having received no intimation in the pleadings that it would be met with a plea of payment, had no witnesses present | to rebut the evidence in support of the plea. The counsel who represented the plaintiff at the trial did not object to the evidence of payment nor plead surprise and move for a continuance. This omission on the part of counsel is explained by the fact that his associate, who was the only attorney familiar with the litigation, was not present at the trial.

The motion for a new trial sets up that the two checks filed in evidence by the defendant represented the payments for goods and merchandise sold and delivered to J. M. Ritter & Son at a time subsequent to the date of the invoices sued on. Paragraphs 4 and 5 of the motion for a new trial read as follows:

“That the check for $73.50 was paid to petitioner to cover an invoice for merchandise sold and delivered by petitioner to said Ritter & Sons on July 15, 1927, amounting to $27.00, and an invoice for goods sold to said Ritter & Sons on September 21, 1927, in the sum of $46.50, making a total of $73.50.
“That the check for $66.00 was delivered by said Ritter & Sons to J. W. Parsons, one of petitioner’s attorneys on November 19, 1928, for the specific and expressed purpose of paying the amount due to petitioner. for an invoice of goods in that amount sold and delivered by petitioner to said Ritter & Sons under date of February 13, 1928.”

If we were convinced that the defendant’s evidence established payment of the amount of the two invoices sued on, we would hold with the district judge that the motion for a new trial should be overruled. But we are not so convinced. The witness for defendant relies solely on the cnecks as evidence of the payment of the invoices. He does not pretend to have any considerable independent recollection about the .matter.He offers no explanation whatever of the discrepancies as to dates- and amounts, a comparison of which are. shown as follows:

Invoices:

Sept. 14, 1926, for________________________________ $ 75.00

July 13, 1927, for___________________________________ 49.60

$124.60

Checks-:

Dec. 30, 1927, for_________________________________ $ 73.50

Nov. 19, 1928, for__________________________________ 66.00

$139,.50

A check for $73.50 does not pay a debt of $75. It is suggested by defendant’s counsel that the difference was a discount of 2 per cent, to which the defendant was entitled. The evidence shows that the plaintiff sold its goods subject to a discount of 2 per cent if the amount due was paid in ten days. It is inconceivable that the defendant would-deduct 2 per cent for cash after delaying payment for more than fifteen months. No explanation is offered by the witness as to why check for $66 was given in payment of an item of $49.60. The evidence of the witness, carefully considered as a whole, lends force to the position of the plaintiff, as detailed in the motion for a new trial, -that the checks were given in payment of other invoices' for goods purchased at other times.

We are of the opinion that the motion for a new trial should have been allowed.

It is therefore 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 and against the defendant sustaining the motion for a new trial; and that the case be remanded for further proceeding, according to law.


text:
    No. 3740
    Second Circuit (Second Division)
    W. W. PAGE & SON v. ROBBINS ET AL.
    (November 18, 1931. Opinion and Decree.)

      Breazeale & Hughes, of Natchitoches, attorneys for plaintiff, appellant.
    James W. Jones, of Natchitoches, attorney for defendants, appellees.
   STEPHENS, J.

The plaintiff, W. W. Page & Son, seeks to recover a judgment in solido against Tobe L. Bobbins, G. M. McQueen, and J. L. Berry, in the sum of $335.59, with interest, attorney’s fees and costs. An exception of no cause or right of action was filed by the defendants McQueen and Berry, and sustained by the district court, and this suit dismissed as to them. The plaintiff prosecutes this, appeal from that judgment.

The plaintiff’s petition follows:

“The petition of W. W. Page & Son, a commercial firm composed of W. W. Page and Luther Page, residents of the Parish of Natchitoches, Louisiana, respectfully shows:
“That in suit No.' 18534 on the docket -of your Honorable Court entitled W. W. Page & Son vs. Tobe L. Bobbins, they did on August 8, 1926, obtain an order from your Honorable Court for executory process ordering the seizure and sale on second of October, 1926, of the North half of the Northwest quarter of Section Eighteen, Township Eight, North of Bange Eight West, Parish of Natchitoches, Louisiana. That said writ of seizure and sale was issued to satisfy a debt secured by mortgage on the above described property in the sum of Four Hundred Two and 60/100 ($402.60) Dollars, with eight per "cent interest, from October 18, 1922, and ten per cent attorney’s fees. Which order, together with the petition and note and act of mortgage, etc., is referred to, the same being of record in Clerk’s office, Parish of Natchitoches, Louisiana.
“Your petitioner further shows that on August 10, 1929, the above described property was finally 'sold at Sheriff’s sale for $100, less Thirty-Two and 99/100 ($32.99) Dollars cost of the sale. Proces verbal thereof was duly -filed for record in Clerk’s office on August 14, 1929, and the writ credited with Sixty-Seven and 01/100 ($67.01) Dollars. 'Leaving.. a balance due on the debt of Three Hundred Thirty-five and '59/100 ($335.59) Dollars, with eight per cent interest from October 18, 1922 and ten per cent -attorney’s fees.
“Petitioner shows that on the 29th of September, 1926, T. L. Bobbins obtained a temporary restraining order prohibiting the sale of property as then .advertised under the writ of seizure and sale in the suit of T. L. Bobbins- v. W. W. Page & Son, 10th District Court No. 18,573.
“On the trial of said rule there was judgment rendered in favor of the defendants, Page & Son of date December 1, 1926, recalling and dissolving the temporary injunction rejecting the plaintiff’s demand and dismissing his suit/ which judgment was duly recorded in the Clerk’s office in Book 143, Folio 451, on December 1, 1926.
“On December 3, 19-26, T. L. Bobbins, plaintiff in said suit obtained an order of suspensive and devolutive appeal returnable to the Court of Appeal on January 3, 1927. The devolutive appeal bond was fixed at One Hundred ($100) Dollars and the suspensive appeal bond fixed as the law directs.
“In pursuance of said order Bobbins filed on December 13, 1926, a suspensive appeal bond in the sum of Eight Hundred Ninety-Nine and 37/100 ($899.37) Dollars. The same dated the 8th iof December, 1926, with G. M. McQueen and J. L. Berry as sureties thereon in solido. A certified copy of said appeal bond is annexed and made part hereof.
“On trial in the honorable Court of Appeals for the second circuit of Louisiana the judgment of the district court was affirmed. The judgment of the circuit court was filed and is of record in the Clerk’s Office of the district court in the case of Robhins v. Page & Son (10 La. App. 207, 120 So. 683).
“Petitioner shows that the property mortgaged has been exhausted, leaving a balance due as above stated to petitioner by Robbins of Three Hundred Thirty-five & 59/100 ($335.59) Dollars with eight. per cent interest from October 18, 1922, and ten per cent attorneys fees and that under the obligations of the appeal bond J. L. Berry and G. M. McQueen are solidary obligors with Robbins for the payment of said amount.
“Wherefore, petitioners pray for service and citation of T. L. Robbins, G. M. McQueen and J. L. Berry according to law and after due proceedings had your petitioner have judgment against them in so-lido in the sum of Three Hundred Thirty-five and 59/100 ($335.59) Dollars, with eight per' cent interest from October 18, 1922, and ten per cent attorneys fees together with all costs of court. For all further orders and general relief.”

The bond which is referred to as annexed and made part of plaintiff’s petition, is for the sum of $899.37, and appears on its face to be given to support both a suspensive and devolutive appeal. The condition of the bond reads as follows:

“* * * whereas the above bounden Tobe L. Robbins has obtained an order from the Hon. Tenth District Court, for the Parish of Natchitoches, Louisiana, granting him a suspensive and devolutive appeal to the Hon. Court of Appeals, second circuit of Louisiana returnable to said Honorable Court on the 3rd day of January, 1927, from a certain definitive judgment rendered and signed in the case of Tobe L. Robbins versus W.’ W. Page & Son, No. 18,573 on the docket of the 10th District Court. •
“Now therefore if the above bounden, Tobe L. Robbins shall prosecute his appeal, and shall satisfy whatever judgment may be rendered against him, and that same shall be satisfied by the proceeds of the sale of his estate, real and personal, then this obligation to be null and “void, ¡otherwise to remain in full force and effect.”

In the suit of Robbins v. W. W. Page & Son, 10 La. App. 207, 120 So. 683,. in which the appeal bond sued on herein was filed, the only question presented was whether .this court should reverse the finding of the district court and order a preliminary injunction to issue, or affirm the decree of the district court recalling the restraining order and refusing to issue the preliminary writ of injunction. This court affirmed the judgment of the district court and thereby rendered the only judgment against the appellant which could be rendered against him. Clearly, then the only resulting obligation on the appeal bond founded on the condition therein contained was to pay the costs of that proceeding. If the condition required by law in a suspensive appeal bond, when given to sustain an appeal from an order issuing a preliminary writ of injunction, was considered as written in the bond sued' on, the obligation would only be extended to include damages resulting from the suspension of the order by virtue of the appeal.

Plaintiff’s suit is predicated solely on the theory that there is a balance of $335.59 of the original mortgage indebtedness due it by the defendant after the property subject to the mortgage had been exhausted. There is no demand made for damages resulting from the suspending of the restraining order or for the costs of the suit to enjoin the foreclosure proceed'ing. The plaintiff has not brought his suit within the conditions of the bond, and therefore has not stated a cause of action against the sureties. Greiner v. Prendergast, 3 La. Ann. 389.

There is another reason, however, why the plaintiff may not recover on the suspensive appeal bond. A suspensive appeal cannot be granted from an order recalling a restraining order and refusing a preliminary injunction (section 5 of Act 29 of 1924). If a devolutive appeal does not aftord adequate relief, the sole remedy is by application for writs of certiorari. T. Hofman-Olsen, Inc., v. Northern Lumber Mfg. Co., Inc., 160 La. 839, 107 So. 593. It was held in Barrow v. Caffery, 161 La. 778, 109 So. 488, that a trial court has no discretion to grant a suspensive appeal to a party who has been denied a preliminary writ of injunction.

The trial judge being without authority of law to grant the suspensive appeal in the case of Tobe L. Robbins v. W. W. Page & Son, the decree granting said appeal is an absolute nullity, and it follows that the suspensive appeal bond given pursuant to and in order to effectuate the appeal thus unlawfully granted is without legal force or effect, and is neither binding on the principal or the sureties.

In the case of Ingargiola v. Cappell, 13 Orleans App., p. '321, it was held that the surety on a bond given for a suspensive appeal granted after the lapse of ten days was bound only for costs, though the bond was for an amount large enough for a suspensive appeal, and the surety bound himself “to satisfy whatever judgment may be rendered against him.”

In the cited case, as in the present case, the suspensive appeal was granted without the sanction of law, and in the present case, as in the cited case, the suspensive bond, as such, must be held without legal effect.

For which reasons we are of the opinion that the exception of no cause or right of action on behalf of J. L. Berry and G. M. McQueen, sureties on the bond, was properly sustained, and the judgment is therefore affirmed.


text:
    No. 3920
    Second Circuit (Second Division)
    LYONS v. RAYSON
    (November 18, 1931. Opinion and Decree.)
    Lyons & Prentiss, of Shreveport, attorneys for plaintiff, appellee.
    R. D. Fuller, of Shreveport, attorney for defendant, appellant.
   STEPHENS, J.

The plaintiff sues for damages in the sum of $2,000 for personal injury, and for the recovery of $50 expended for medical attention.

The plaintiff alleges that on August 18, 1929, at about 10 o’clock in the morning, he was riding in an automobile as an invited guest of Dv. Leroy H. Scott. The automobile was being driven by Dr. Scott in a westerly direction along the Shreveport-Greenwood road, on the right-hand side thereof and at a moderate rate of speed; that an automobile owned and operated at the time by the defendant was traveling in the same direction and attempted to pass the automobile in which plaintiff was riding, and in doing so swerved in front of and struck its left front wheel, causing it to swerve from the road and overturn in a diteh; that the defendant was driving in a grossly negligent manner, and at an excessive rate of speed; and that said recklessness and grossly negligent rate of speed on the part of the defendant was the proximate cause of the accident. That as a result of the accident plaintiff sustained injury to his back in the sacroiliac region, and to his head, neck and ear; that he was confined to his bed for a period of sixty days, and during a part of that time was under the care of a physician.

The defendant answered denying generally the allegations of the plaintiff’s petition. The district judge rendered judgment in favor of the plaintiff in the sum of $350 for the personal injury sustained, and $50. for doctors' bills, with legal interest on said sums from judicial demand. From the judgment rendered defendant appeals.

From a careful reading of the evidence, we have concluded the district court has correctly disposed of the case. The evidence supports the contention of the plaintiff that the accident was caused solely by the negligent driving of the defendant, and the damages awarded by the district judge appear to us to be conservative and to represent a fair remuneration for the injury sustained.

Defendant has made no appearance in this court, either by brief or oral argument. It is ordered, adjudged and decreed that the judgment of the district court be affirmed with costs.


text:
    No. 3833
    Second Circuit
    MOSELY v. LEVY ET AL.
    (November 18, 1931. Opinion and Decree.)
    Craig, Bolin & Magee, of Shreveport, attorneys for plaintiff, .appellee.
    John P. Slattery, of Shreveport, attorney for Allen Manufacturing Company, Limited, defendant, appellant.
   DREW, J.

Plaintiff alleged that he was the owner of the following described real estate situated in Caddo parish, La., to-wit:

“Beginning at the Southeast corner of the land in Section 3, township 16, Range 13, sold by K. W. Railsback to O. P. Gahagan about April, recorded in Book -, page -, on the Public Gravel Road for a starting point and running West 27.58 chains to the Section line between Sections 3 and 4, Township 16, Range 13, thence South 15 chains to a stake on said Section line; thence East to said Gravel Road (now paved); thence in a Northerly direction along said Gravel Road to the place of beginning, containing 43.24 acres, and lying in the Northwest Quarter of said Section 3, Township 16, Range 13. Also the South half of Lot 1 of Section 4, Township 16, Range 13, containing 20 acres as per map recorded in Book ‘S’, p. 884, and as per map hereto annexed. Also South Half of Lot 2 of said Section 4, containing 20 acres, as per said map just mentioned. Also that portion of South Half of Lot 3 of said Section 4, lying North of the Reisor Branch of the Texas & Pacific Railroad, and the NW% of said Lot 3, less a strip 35 links wide off the East side, which was included in the sale of O. P. Gahagan, containing 24.29 acres, as per map above mentioned. Also that part of Lot 4, Section 4, lying North and East of Sand Bayou and containing 8.82 acres, as per said two maps above mentioned. Also that part of Lot 6 of said Section 4, lying North of the Reisor Branch of the Texas & Pacific Railroad, containing .27 acres, per said maps above mentioned. Also that part of Lot 7 of said Section 4, lying North of the said Reisor Branch of the Texas & Pacific Railroad, containing 15.20 acres, as per said maps above mentioned.
' “Also the North Half of Lot 8 of said section 4, containing 20 acres, as per said maps above mentioned, and containing in all, in both Sections 4 and 3, 151.82 acres, all in Township 16 North, Range 13 West, in Caddo Parish, Louisiana, with all of the buildings and improvements thereon and therein belonging. Also a lot described as beginning at a point 1980 feet North of the Southeast corner of Lot 9, Section 4, Township 16 North, Range 13 West, as per map of the Daniels lands, thence North 330 feet to corner of the land sold by K. W' Rails-back to T. D. Connell, thence East along said Connell land line to the West side of the Gravel Road to a point due East of the point of beginning; thence West to the place of beginning, containing 14.50 acres, more or less, all in Caddo Parish, Louisiana, together with all buildings and improvements thereon, containing in all 186.-32 acres, more or less, with the buildings and improvements thereon’’;

as shown by deed recorded on July 7, 1928, in the conveyance records of Caddo parish, La.

That there appears in the mortgage records of Caddo parish, La., in Book 160, p. 1, a certain, purported lien in favor of the Allen Manufacturing Company, Limited, which acts as a cloud on petitioner’s title. That said • lien is null and void and of no effect against his property and should be canceled and erased from the mortgage records for the reason that said lien was recorded on August 11, 1927, and more than a year has elapsed since it was filed for record, and, if it ever had any effect ' against his property, has prescribed or perempted by the lapse of one year since its filing. He specially pleads prescription of one year, or peremption, and attached said lien for the sole purpose of showing rem ipsem.

Plaintiff also alleged demand upon the Allen Manufacturing Company, Limited, and W. M. Levy, clerk of court for 'Caddo parish, La., to cancel and erase said purported lien. He prayed for a rule to issue to the Allen Manufacturing Company, Limited, and W. M. Levy, clerk, to show cause why the said lien should not be canceled. Later, he filed an amended petition alleging that James J. O’Toole and Mrs. Prances S. O’Toole had not entered into a general contract for the work of construction, improvement or repair, erection or reconstruction on the real estate described in plaintiff’s petition, and no written contract was or has been recorded in the office of the recorder of mortgages of Caddo parish, La.

Defendant Allen Manufacturing Company, Limited, in answer alleged that the lien is a valid, existing lien on the property described in plaintiff’s petition. That said lien was duly filed in the mortgage records of Caddo parish on August 11, 1927, and on March 17, 1928, a suit was filed against the then owner of said property, and a judgment for the amount sued for obtained recognizing its lien and privilege. That said suit was duly recorded in the mortgage records of Caddo parish,' La., on June 2, 1928, within a year of the filing of said lien. It denied the need of the reinscription of said lien under the circumstances, and alleged that the recording of said judgment had the same legal effect as the reinscription. It denied that the lien has prescribed or perémpted.

The trial in the lower court resulted in judgment for plaintiff, making the rule absolute and ordering the cancellation of said lien. Prom this judgment' Allen Manufacturing Company, Limited, has appealed.

It appears that the property on which lien was alleged at one time belonged to Mrs. Prances S. O’Toole, and some buildings were erected thereon; and that Allen Manufacturing Company, Limited, furnished the materials for said buildings and placed of record a lien against said property.' The lien was recorded on August 11, 1927. On March 17, 1928, Allen Manufacturing Company, Limited, filed suit against Mrs. Prances S. O’Toole and James J. O’Toole for the amount of said indebtedness, as shown by the lien, to-wit, $689, alleged the indebtedness to be due for materials furnished by petitioner to Mrs. Prances. S. O’Toole and used in the erection of improvements on her separate property, purchased January 3, 1927; describing the property (which is the same description aa the property on which plaintiff in his suit alleges). It further alleged that James J. O’Toole likewise bound himself for the payment of the indebtedness by note of date August 15, 1927, and that it had a privilege on said lands, as its lien was seasonably recorded in the mortgage records of Caddo parish, La. Prayed for judgment against both defendants in solido and that its lien, as furnisher of materials, be recognized and enforced on said property.

Defendants-, Mr. and Mrs. O’Toole, confessed judgment, and judgment was rendered as follows:

“In this matter the law and evidence being in favor thereof and by further reason of the confession of the defendants herein, it is ordered, adjudged and decreed that the plaintiff, Allen Manufacturing Company, Ltd., have and recover judgment against the defendants, James J. O’Toole and Mrs. Prances S. O’Toole in solido, in the sum of Six Hundred & Eighty-nine ($689.00) Dollars, with eight per cent per annum interest thereon from August 15, 1927, until paid and all costs of this suit, including ten per cent on said principal and interest as attorneys’ fees. It is further ordered, adjudged and decreed that plaintiff’s lien and privilege as furnisher of materials be recognized and enforced on that certain property purchased by -the said Mrs. Prances S. O’Toole from P. P. Webb, in Caddo Parish, Louisiana, and fully described in said deed as recorded in Conveyance Book 244, p. 707, of the Recorder’s Office of Caddo Parish, Louisiana, dated January 3, 1927, and filed for record on May 9, 1927.
“Thus, done, read and signed in open Court on this the 17th day of March, A. D., 1928.
“T. P. Bell, District Judge.”

It is to be noted that the judgment does not describe the land or refer to the volume and page on wliich said lien was recorded in the mortgage records of Caddo parish, and at no place in the record is it shown that Mrs. O’Toole was the owner of the land descrihed. The judgment was filed and recorded on June 8, 1928, and on July 30, 1928, said judgment on part of the descrihed land was canceled, and on August 15, 1928, was canceled on the remainder of said land. On July 6, 1928, plaintiff herein acquired the above-described property from C. H. Brandon, and on October 5, 1929, the present suit was filed.

The lien was filed and recorded more than two years prior to the filing of this suit and was never reinscribed. Therefore, under section 12 of Act No. 298 of 1926, the lien had perempted and was of no effect, unless the judgment in the suit of Allen Manufacturing Company, Limited, v. Mrs. Frances S. O’Toole and James J. O’Toole, recorded June 8, 1928, had the effect of keeping the lien and privilege granted by said lien alive. We think not. Lalane v. Payne et al., 42 La. Ann. 152, 7 So. 481; De St. Romes v. Blanc, 31 La. Ann. 48; Watson v. Bondurant, 30 La. Ann. 1.

And in this case the judgment does not attempt to describe the lien recorded in Volume 160, p. 1, of the mortgage records of Caddo parish, and does not even refer to the volume in which it was recorded, which alone would not have been sufficient. Furthermore, the very judgment claimed by defendant to have prevented the peremption of the lien and privilege at the expiration of one year was canceled more than one year before the filing of this suit. The only effect, if any, that the suit against Mr. and Mrs. O’Toole by the defendant herein could have had, would have been to interrupt or suspend the period of peremption dui'ing the time of the pendency of said suit, which was from March 17, 1928, to June 7, 1928, less than three months, and it was more than one year after the suit • was terminated when the present suit was filed; and plaintiff had been owner of the property for one year and three months before filing suit.

It is unnecessary in this case to discuss the right of the lienor to reinscribe his lien.

It is therefore ordered, adjudged, and decreed that the judgment of the lower court be .affirmed, ■ with all costs.


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    No. 3849
    Second Circuit (Second Division) .
    FULMER v. CREECH
    (November 18, 1931. Opinion and Decree.)

      Craig, Bolin & Magee, of Shreveport, attorneys for plaintiff, appellant.
    C. B. Huson, of Mansfield, attorney'for defendant, appellee.
   STEPHENS, J.

The plaintiff, D. T. Fulmer, a merchant, sues the defendant for $35.19 for goods and. merchandise alleged to have been sold and delivered to her personally, and for the further sum of $251.55 for goods and merchandise sold and delivered to the partnership of Myers & Creech, a partnership alleged to have been composed of Hill Myers and the defendant, Mrs. W. H. Creech. It is alleged that the goods and merchandise sold and delivered to Myers & Creech were for the account of the defendant, and that she bound herself to pay for them.

The defendant answered, admitting that she owed the sum of $35.19, representing the balance due on her personal account with the plaintiff, and made a legal tender of said sum, together with costs which had accrued at -the time the answer was filed. She denied owing the sum of $251.55 alleged to be due for goods and merchandise sold to Myers- & Creech, and further denied the existence of such a partnership.

A trial of the case resulted in a judgment in favor of plaintiff for the amount tendered, and otherwise rejecting plaintiff’s demands at his costs. The plaintiff appealed.

The defendant, Mrs. Creech, lived in Logansport, La., and owned a farm near there. It was equipped with a wagon, plow, tools, and three mules, all of which she owned. During the year 1928 the defendant permitted her son-in-law, Hill Myers, to operate the place. He arranged with another son-in-law of the defendant named Ebard and a son of the defendant named Lamar for each to work one-third of the place, to board with him at the house on the farm, and for each to be responsible to him for one-third of the mule feed bills.

The agreement between the defendant and Myers seems to have been rather indefinite, as is frequently the case when the element of kinship enters into the consideration of a business transaction. Myers arranged with the plaintiff for the advancing of the necessary supplies for farming operations for “Myers & Creech.” At the end of the crop year, there was due the plaintiff the sum of $251.55, and Myers had collected the board and the prorata of the feed bill due by Ebard and Lamar. The record does not disclose how much cotton or other products were produced, or how it was divided, but it does show that Mrs. Creech, the defendant, received nothing for rent.

Hill Myers did not testify in the case. The plaintiff testified that Hill Myers approached him early in the year 1928 and asked him about “running them,” and that Myers said he wanted the supplies charged to Myers. & Creech; that he told him that he would do it, and that, some time after Myers- had been buying on the account as thus created, he went to see Mrs. Creech at her house, and told her of the arrangement that Myers had made and asked her if it was satisfactory, and that she said, it was.

Mrs. Creech, -the defendant, testified that she had never formed a partnership with Myers; that she had never authorized him to open, the account in the name of Myers & Creech; and she denied most emphatically that the plaintiff ever came to her house in his life, or, that she ever heard that it was his intention to hold her responsible for the account until the institution of this suit, which was more than two years after it was opened.

No one testified that they ever heard of the partnership of Myers & Creech befóte or after the opening of the account, except the father of Myers, who stated that he had seen invoices in the name of Myers & Creech which came from plaintiff’s store.

Lamar Creech testified that he had never heard, of such a partnership, and that it was understood that Hill Myers was to pay for supplies for the year’s operations.

Clearly, with respect to each other, Hill Myers and the defendant were not partners, as there is no evidence to support the proposition that, as between them, there was a partnership agreement or that there ever existed any intention to form a partnership. The question is whether they held themselves out to the public as partners to the extent that they would become liable as partners with reference to third persons.

The only evidence in the record that the defendant ever heard of the existence of the partnership, and that she acknowledged responsibility for its existence and obligations, was that of plaintiff. The defendant denied, as stated above, that the conversation as testified' to by plaintiff occurred.

The burden of proof is on plaintiff to establish his case. The trial judge was of the opinion that he failed to sustain that burden. We entertain the same opinion.

The judgment appealed from is therefore affirmed.


author: TALIAFERRO, J.

text:
    No. 3857
    Second Circuit (First Division)
    BULLARD v. NATTIN ET AL.
    (November 18, 1931. Opinion and Decree.)

      Wallace & Hardeman, of Benton, attorneys for plaintiff, appellant.
    L. B. Duke, of Benton, attorney for defendants, appellees.
   TALIAFERRO, J.

On January 23, 1930, Henry Rhodes filed suit in the district court of Bossier parish against W. A. Atkins on open account for $19.95, and, after trial, secured judgment therefor. Atkins contested this suit, disclaimed liability for the account, asserting that his wife was responsible for its payment; that the sales of meats and other edibles making up the account were made to hig wife while operating a cafe in Bossier City, in which he was not interested, had no control over it; and that the cafe was purchased by his wife with her separate funds. No appeal was taken from this judgment. Execution issued thereon, under which the sheriff of Bossier parish seized and advertised for sale for May 3, 1930, the equipment and fixtures in the restaurant mentioned.

The present suit was instituted by Mrs. Bullard against said sheriff and Rhodes, wherein she claims ownership of the seized property by notarial act of sale from W. A. Atkins, her son-in-law, dated December 31, 1929, for a price of- $1,800, of which amount $800 is alleged to: have been paid in cash, and the balance discharged by the vendee’s assumption of an outstanding mortgage against the property.

Plaintiff applied for and secured the issuance of a rule on the defendants to show cause why a preliminary writ of injunction should not issue. This rule was fixed for trial and tried on May 1st, two days before the sale of the seized property, resulting in a judgment rejecting plaintiff’s demands and denying the injunction. A devolutive appeal was perfected from this decree, which is now before us.

Rhodes denies that plaintiff is the owner of the seized property, and attacks the purported sale to plaintiff by Atkins as being in had faith, without consideration, and perpetrated through fraud and collusion, for the sole purpose of placing the property beyond reach of Atkins’ creditors; and that no delivery was made of the property. In all other respects, the suit was put at issue by this answer.

The record does not affirmatively disclose that the case was tried on its merits, but evidently the court and attorneys for both sides considered it submitted on the merits with the evidence adduced when the rule was tried. The judgment, in effect, finally disposes of the case. If there was nothing before us to review but the ruling of the lower court on the question of issuance of the preliminary injunction the matter would be moot,, as sale of the property took place on May 3, 1930, as advertised.

The sale of the restaurant equipment and fixtures to plaintiff recites that $800 of the price was paid in cash, and that the balance of the price, viz., $1,000, was to be discharged by plaintiff assuming and paying a mortgage for that amount against the property held by Bossier State Bank. However, the evidence shows that no part of the price was paid in cash, but that two notes of Atkins and his wife, one for $300, dated January 4, 1926, and one for $500, dated December 10, 1926, in favor of and owned by plaintiff, were discharged in lieu of payment of, cash, as declared in the act of sale.

Mrs. Bullard, by written act, leased the restaurant property back to Atkins the same day she .took deed to it, and before the same notary and same witnesses.

On February 18, 1929, W. A. Atkins executed a note for $1,000 to his own order and by him indorsed, due one year after date, and gave a mortgage on the restaurant fixtures and equipment to secure payment of same. This note was. pledged as collateral security with the Bossier State Bank to a note of Atkins for $250, or about, and was so held by that bank when the sale was made to plaintiff.

It is well to note here that Atkins and his wife testified in the case of Rhodes against the former, and both swore positively that the restaurant and its equipment and fixtures belonged to Mrs. Atkins, who is a daughter of Mrs. Bullard. That case was tried after the sale to Mrs. Bullard, after the mortgage of $1,000 was executed and recorded, and after Atkins was supposed to have leased the property from plaintiff.

It is not contended that plaintiff went into possession of, or exercised any dominion or control over, the chattels described in the act of sale to her from Atkins. As a matter of fact, no change whatever in the situation of the property was effected by these transactions between Atkins and plaintiff. Mrs. Atkins remained in possession of same, and used it in the restaurant building as she had done previously.

We are satisfied from the evidence in the record that plaintiff loaned to her daughter and son-in-law considerable money, and it is. established that they owed her the $800 represented by the notes above mentioned.

In this court, defendants made no appearance, nor filed brief. In the brief filed on ^behalf of plaintiff, argument is restricted to two propositions: (1) Whether delivery was made under'the sale to plaintiff so as to affect third persons, and (2) has plaintiff rebutted the presumption of fraud arising from the fact of her vendor remaining in possession of the property.

“The -tradition or delivery of movable effects takes place either by their- real tradition, or by the delivery of the keys of the buildings in which they are kept; or, even by the bare consent of the parties, if the things' can not be transported at the time of sale.” Civ. Code, art. 2478.
“Sales or exchanges of movable property are void against bo-na fide purchasers and creditors unless possession is given before such bona fide purchaser or creditor acquires his right by possession. What a delivery of possession is depends on the nature of the property; it may be constructive or actual,” etc. Civ. Code, art. 2247.

As between the parties, consent is sufficient to vest title to movables, but a different rule applies when the rights of third persons and creditors are involved. Civ. Code, art. 1922.

“In like manner, if movable property has been alienated by contract, but not delivered, it is liable in the hands of the obligor to seizure and attachment, in behalf of his creditors.” Civ. Code, art. 1923.

In the instant case, the property in controversy consisted of movables which, were susceptible to actual delivery, without inconvenience or disturbance of their immediate use. The nature of its possession underwent no alteration whatever as a result of the sale to plaintiff.

iTie fact -that persons appear before a notary public and witnesses and execute a sale of movable property, a formality not required by law, does not satisfy the requirement of delivery of the object sold; but on the contrary, arouses a suspicion of the bona fide nature of the transaction, especially when the principals are related by the ties of blood or marriage.

The test in a case of this character is whether the vendor retains such possession and dominion over the thing as to be enabled to give good title to an innocent third person. If this has been done, the sale is incomplete, and creditors of the obligor may enforce their rights against the undelivered property.

. “Where the owner of property has lost his control over it, and cannot change its destination, his creditors cannot attach; but whenever the owner can sell and deliver, the creditors may seize.” Oliver v. Lake, 3 La. Ann. 78.

No change in possession of the property in controversy having taken place as- a result of the sale to plaintiff, she not having received delivery of same either actually or constructively, levy thereon under' the judgment against Atkins was legally made. However, if it be conceded that the sale to Mrs. Bullard was completed by delivery of the object of the sale, there is still another reason why the sale cannot be sustained.

The record leaves little or no doubt that Atkins was insolvent when the conveyance was made to plaintiff. He doubtless knew Rhodes was preparing to sue him, as the account due Rhodes was made in September and October, 1929, before the sale to plaintiff. In the Rhodes suit, he -testified that the cafe property belonged to his wife. At this time, his possession of the property was supposed to be based upon the lease from plaintiff. He sold to plaintiff after he had given evidence -that the cafe belonged to his wife. The acts and conduct of Atkins smack of fraud and reflect a well-defined purpose to prevent Rhodes from collecting the account due him, regardless of the character of the means necessary to accomplish the desired end.

Vendor remaining in possession is a badge of simulation. Civ. Code, art. 2480; Cole v. Cole, 39 La. Ann. 878, 2 So. 794.

The conveyance by Atkins -to Mrs. Builard, considered in the light of the undisputed evidence in the case, was in reality an attempt at a giving in payment which may only be consummated by delivery. Civ. Code, arts. 2655, 2656; Queyrouze & Bois v. Thibodeaux, 30 La. Ann. 1114.

A person acquiring title to property in satisfaction of a previously existing indebtedness is not on quite so good a footing as one who buys outright and parts with the price to have the thing, where it is shown that the grantor is insolvent or has acted through fraudulent intentions.

It has been held by our courts in several cases that even though the vendee be in good faith in acquiring property from his debtor by dation en paiement, if it appears that the debtor was insolvent or acted through fraudulent motives, unknown to his vendee, the transaction would be annulled. The reason of the rule is obvious. The property of the debtor is the common pledge of all his creditors, and any attempt on his part to show a preference to one or more of. them is subject to be set aside for that reason.

A sale to pay one creditor, even ignorant of the debtor’s insolvency, is a fraud on the other creditors. Taylor v. Knox, 2 La. 16; Lovell v. Payne, 30 La. Ann. 512.

And this is true even though the grantee be in utmost good faith. Fisbel v. Irwin, 132 La. 344, 61 So. 397.

“An insolvent debtor may lawfully sell for the price which, is paid to him; but the law forbids him to give in payment to one creditor, to the prejudice of the others, any other thing than the sum of money due. Civ. Code, art. 2658.” Fishel v. Irwin. 132 La. 344, 61 So. 397; Appleby v. Lehman & Co., 51 La. Ann. 476, 25 So. 132.

The judgment appealed from is correct, and is hereby affirmed.


text:
    No. 3872
    Second Circuit (Second Division)
    JONES v. WYATT LUMBER CO.
    (November 18, 1931. Opinion and Decree.)
    James W. Jones, Jr., of Natchitoches, attorney for plaintiff, appellee.
    Ponder & Ponder, of Many, attorneys for defendant, appellant.
   CULPEPPER, J.

Levi Jones sues the Wyatt Lumber Company to recover compensation in the sum of $8.77 per week for thirty-two weeks, beginning August 5, 1929, and for $4.87 per week at the end of the thirty-two weeks’ period and continuing, not, however, beyond two hundred sixty-eight weeks, for alleged injuries to his sixteen year old son, Lee Ellis Jones, sustained while engaged in and arising out of the employment by said company.

Defendant admits the boy was in the employ on the day and date alleged, but denies he was injured while in the course of his employment, or that the injury arose out of or was incidental to his employment. Defendant avers that Lee Ellis Jones, on the contrary, had abandoned his duties, and, in violation of strict orders-not to attempt to board a moving train, he attempted to do so, and as a result he received the injuries .complained of. There was judgment upon the trial of the. case for plaintiff in the sum of $8.77 per week for twenty-two weeks, from which judgment defendant alone has appealed.

On August 5, 1929, and for some months prior thereto, the above-named son of plaintiff was in the employment of defendant company working in the section crew, keeping up defendant’s. logging railroads. Along this particular railroad there were several wooden bridges crossing small streams, and due to fire hazard i-t was the custom of the foreman of the section crew to have some one of his crew to pass over the track after work hours from 5 to 6 o’clock in the afternoon, behind the last train to pass over the track, in order to look .for and extinguish any fire that might break out on any of the bridges or trestles caused from passing trains. The foreman, John Pope, instructed the employed boy on the afternoon of August 5, 1929, as he had done on a number of similar previous occasions, and after the day’s work was over, to walk over the track to look for any fires, which might have been started on any of the bridges. Lee was paid at the rate of $2.25 per day for his regular ten hours’ work on the section, ending at 5 o’clock, and 25 cents extra for the one hour he was supposed to consume thereafter in walking over the track. The length of the track he was supposed to patrol on that occasion was about one mile and a quarter. Mr. Pope, foreman, testifying as to Lee’s, duties, says:

“His duty was to be careful and stay out of the way of trains and after the trains came in to come in behind them and take care that there was no fire to take care of any fire that he seed along the track and bridges.”

He was to walk into camp behind the last train. If he arrived at a trestle before the train passed, he was instructed particularly to “get off outside and watch until the trains passed,” then walk in behind the train. He was told not to ride the train.

Isaac Courtney, a log loader coming into camp on the train which injured the boy, testified he was riding on the left-hand side of the engine and saw Lee sitting on end of a cross-tie on witness’ side of the track as the train approached him; that the train was backing in to the camp, the two end cars having a load of lumber placed partly on one of the cars and partly on the other, and there being several other empty flat cars between the 1;wo loaded ones and the engine; that the load of lumber “had slacked and one end of it come off;” that “some of the lumber was hanging off from the end of the ties”; that, when the train got within about two car lengths (sixty feet) from Lee, he got up from the end of the cross-tie on which he was sitting, and made a step or two “getting in the clear”; and that Lee had gotten “clear 'of everything but the lumber and it caught him in his pants and it dragged him nearly across the trestle and there was a long tie and it butted him and knocked him loose and he fell down there under the trestle.”

Witness says it was a piece of the lumber which was protruding out from the car that caught Lee’s pants. He says the cross-tie on which Lee was sitting was at the edge of the trestle on the side or end from which the train was approaching, and that when he was caught by the piece of lumber he was carried about two rail lengths before being knocked loose and fell. Both bones of his leg were broken between the knee and ankle. This witness, Isaac Courtney, when cross-examined, appeared not to know anything other than just the facts as stated on direct examination. Many questions were asked him about simple questions of fact connected with and surrounding the accident, but he pretended not to know anything. His lack of knowledge of facts upon cross-examination, we must say, was rather remarkable. This was the only witness who said he saw Lee as the train approached him.

Luther Horne, another employee on the train, said the first thing he saw was his heels fly up just before the boy fell from whatever it was that had hold of him. Horne’s position on the train was sitting on an empty flat car back from the two loaded cars and on the side opposite from where Lee was seated on the cross-tie. Says he did not see Lee sitting on the cross-tie — did not see him at all until he saw his heels fly up. Asked about whether any pieces of lumber were protruding from the loaded cars, Horne said he did not see any. Says he does not know what caught the boy. Horne said he helped set the car out at the switch, but saw no pieces of lumber projecting over the side of the car.

Lee Ellis Jones testified that he was sitting on the track, and, when the train got pretty close to him, he got “up to walk from the track,” and “just as I started off that is all I remember. Something catched me and the next thing I remember I was gettin’ up from the other side of the trestle.” Says he does not know what caught him, and that he did not notice .any lumber sticking over the side of the car. Says it was about 5:20 o’clock that he got hurt. He. says when he got off the track he stepped off on the edge of the dump. He denies that he tried to catch the train and ride in to camp.

John Pope testified that the dump along by the side of the track at the place where Lee claims he stepped off the track on to it is about eight feet, wide, which is no wider than the ties are long, eight feet, just a “skeleton dump.” Pope says the dump is. about ten or twelve feet high, and is steep on the side Lee claims he was standing on, but on the opposite side the dump is a gradual slope.

Sam Lewis, the flagman, testified he was riding a flat car on the side of the track opposite from the side Lee said he was on, and could see the track ahead; that he saw no one. did not see Lee at all. Says he could see well, and could have seen Lee if he' had been up on the track. Says he examined the car there at the place of the accident, and that there was nothing hanging over the side of the car; that the car was still loaded, chain over the lumber, and fastened, and the lumber straight.

Peyton Self was fireman on the train. He says he was up in the engine at the time and could see the track ahead, and that he did not see Lee. Says the car of lumber was loaded' flush with the bunk, and that he did not see any pieces of lumber projecting over the side of the car. Says he could have seen Lee if he had been standing on the track ahead. He was on the right-hand side of the engine cab facing the way the train was going, which was the same side the accident happened.

Clarence Gandy testified he was on the train, standing up on the running board of the loader, and was in charge of the train at the time; that he could see the track ahead of him, as- the running board was about two feet above the car, and was watching the track ahead. Says he did not see Lee anywhere, neither on the track nor by the side of it; notwithstanding he says he was keeping a close watchout ahead. Says he helped load the car of lumber that afternoon at the mill, and saw it at the time of the accident, and that the lumber was loaded straight, securely fastened down with a chain, and none of it was projecting over the sides of the car.

Five-thirty o’clock in the evening the early part of August is broad daytime. It is most remarkable that none of the crew of six men on that tra-in saw Lee Ellis Jones anywhere on or about the railroad track except the lone witness Isaac Courtney, whose memory was bad as to most everything he was asked upon cross-examination. The testimony to the effect that the lumber on the car was properly loaded, placed straight, securely fastened down, and no pieces projecting out on the sides of the car, was fully concurred in by practically all the witnesses except Isaac Courtney. Lee Ellis Jones' could hardly have stepped off the track on to a dump at that particular place as he says he did,- because the track covered, or practically covered, the entire dump. If he had stepped off the track, he would have been precipitated down the steep embankment some ten or twelve feet, and away from the train and away from any plank or projection that could possibly have been attached to the car. About the only possible way the injured boy could have come in contact with the train, under the preponderance of the evidence, would have been for him to have been in hiding down under the embankment, or under the trestle which was only twelve feet away, and, when the train, which was running at a slow speed, got near him, he attempted to board it, and in doing so fell, and as- a consequence was hurt. His motive for attempting such a feat is easily accounted for, in that he wished to save having to walk into camp.

Mr. Gandy testifies that he asked Lee immediately after the accident what he meant by letting the train run over him, and he replied that he did not know. If Lee had had nothing to hide as to how he got hurt, the natural thing for him to have done would have been to tell Mr. Gandy how it happened. Dr. Perkins, who treated the boy a few hours after the injury, testified that he asked him how he came to get hurt, and that Lee first told him he did not know, and then later said he tried to get on the train and fell off. We think this, must have been the cause of the accident.

The boy had had strict orders to keep away from the trains as they passed him and not to get on them. We think -the preponderance of the evidence shows that in violation of these strict orders the boy deliberately violated them, and thus brought about his own injury. Under such circumstances, plaintiff cannot recover under the Employers’ Liability Act (Act No. 20 of 1914, as amended). Webre v. Caire & Graugnard, 10 La. App. 775, 123 So. 168; Pierre v. Barringer, 149 La. 71, 88 So. 691.

For the reasons above assigned, the judgment of the lower court is reversed; and there is now judgment rejecting plaintiff’s demands, with costs of both courts to be paid by plaintiff. •