text:
    No. 10,207
    Orleans
    RIGAUD v. GARVEY
    (April 23, 1928. Opinion and Decree.)
    (June 18, 1928. Rehearing Refused.)

      (Syllabus by the Court)

    I. Louisiana Digest — Parties—Par. 2, 3, 5; Pleading — Par. 22.
    Where a suit is brought for the use of the real parties in interest by a plaintiff authorized to bring it, and where defendant is not deprived of any of his means of defense and will be protected by the judgment, the action will be maintained notwithstanding that technically the party before the Court may not strictly be the proper plaintiff for the case.
    Appeal from Civil District Court. Hon. H. C. Cage, Judge.
    Action by Jules Rigaud against Joseph B. Garvey et al.
    There was judgment for defendant and plaintiff appealed.
    Judgment reversed and case remanded.
    Tiche and Tiche, of New Orleans, attorneys for plaintiff, appellant.
    F. C. Marx, of New Orleans, attorney for J. B. Garvey, appellee.
    J. L. Toler, of New Orleans, attorney for American Surety Co., appellee.
   CLAIBORNE, J.

This is a suit against the contractor Garvey and his surety and the owner, Oralie Balentine, for materials and labor furnished to a building. It was filed in January, 1925.

Plaintiff alleged that Garvey contracted with Miss Balentyne, the owner, to construct a duplex dwelling house on Salomon Place; that he, plaintiff, with his son, were employed to do the plastering work under the direction of Garvey, and that he, plaintiff, furnished the material and labor amounting to $579.53 for which he has filed a privilege against the property. He prayed for judgment in solido against Garvey and Miss Balentyne for said amount, and for recognition of his privilege against the property.

Miss Balentyne filed a general denial and further answering averred:

That she admitted her contract with Garvey; that it was written and dated December 14, 1923, and was signed by the American Surety Company, as surety for Garvey, for $7934, and was recorded in the mortgage office, all in accordance with Act 139 of 1922, and was faithfully executed; she admitted that Garvey constructed the building.

After the filing of this answer the plaintiff filed a supplemental petition in which he averred that according to this answer the American Surety Company was liable to him and he therefore prayed for judgment against it for a like amount of $579.53.

The Company answered admitting that it had signed Garvey’s bond as surety but denied all the other allegations of the two petitions.

Garvey admitted the contract with Miss Balentyne and that he had constructed the building; but denied that the plaintiff was employed by him to do any work on the building, but admitted that he employed plaintiff’s son to do plastering work, and he denied all the other allegations of the petition.

Miss Balentyne then excepted that neither the original nor the supplemental petition disclosed any cause of action against her.

This exception was maintained by judgment rendered April 14, 1925, and plaintiff’s suit against her was ordered dismissed. From this judgment plaintiff has not appealed.

On June 30, 1925, there was judgment in favor of the two defendants, Garvey and the surety company.

From this judgment the plaintiff has appealed.

In' this Court’ the plaintiff has admitted that he has no claim against Miss Balentyne, individually, nor against the insurance company. The only claims he urges are one against Garvey, personally, and the other for the privilege of the furnisher of materials and labor upon the property of Miss Balentyne under Articles 2772 et seq. of C. C.

But inasmuch as he makes no allegation and no proof of personal indebtedness by Miss Balentyne to him, and he disclaims any claim against her, and considering the final judgment in favor of Miss Balentyne from which no appeal was taken, the plaintiff could only be entitled to a privilege upon the property built for Mrs. Balentyne if she owed Garvey any portion of the contract price, under Articles C. C. 2772, 2773.

Art. C. C. 2773 reads as follows:

“Workmen and persons furnishing materials, who have contracted with the undertaker, have no action against the owner who has paid him. If the undertaker be not paid, they may cause the moneys due him to be seized, and they are of right subrogated to his privilege.”

Under Art. C. C. 2772 the workmen and furnisher of materials have no privilege in their own right; they have only the same privilege as the contractor has, and if the latter has none, they have none either. There is no allegation and no proof that amount was due the contractor or that he was entitled to a privilege upon the building. Hale vs. Wills et ah, 3 La. Ann. 504; Whitla vs. Taylor, 6 La. Ann. 480; Gaydon vs. Justus, 26 La. Ann. 221.

As the plaintiff admits that Act 139 of 1922 grants him no privilege, we are spared the necessity of examining that question.

There remains therefore only one defendant, Joseph B. Garvey, the contractor, or .undertaker. Judgment was rendered dismissing plaintiff’s demand against him also. The reasons of the learned trial Judge were as follows:

“Garvey denies he ever contracted with Jules Rigaud; he alleges he contracted with his son, Albert, and says he owes Jules Rigaud nothing.
“The first witness placed on the stand by the plaintiff was Albert Rigaud, the son of Jules Rigaud, the plaintiff. Albert swore he and his father were partners and this was a partnership job.
“Jules Rigaud was then placed on the stand and he swore, that while he and his son took contracts as partners, yet at times they did not; but he swore positively that the Ballentine job taken on Solomon Street was a job taken by his son Albert. That testimony absolutely ends the case and makes it useless to go into it any further.
“The defense set up by Garvey is absolutely made out by the testimony of Jules Rigaud, the plaintiff, and it would be futile to carry on the case any further and there must be judgment for the defendant.”

In the course of the trial the Judge said:

“If it was a partnership, one partner, two partners, or three partners cannot bring suit in their own name. That is a law so well established that neither you nor I can change it.”

The error of the trial Judge was in coming to the conclusion that Jules Rigaud was a partner of his son Albert, in their general business, or in this particular job.

The Civil Code, Article 2805 (2776) says:

“Partnerships must be created by the consent of the parties.”

There is absolutely no testimony that they were partners in their general business. They had no partnership name. There was no partnership agreement between them.

Albert had no money, his father put up the money. It is true that Albert testified that he and his father were partners, but his untutored mind did not probably grasp the meaning of the word.

It took a wiser man than him to know what- constituted a partnership, about which learned judges have differed. Chaffraix & Agar vs. Price, Hine & Tupper, 29 La. Ann. 176.

He said that his father bore all the losses. Societas leonina; C. C. 2814 (2785). Obligation to pay losses is essential to a partnership. He signs all the contracts he gets “Albert Rigaud,” and his father signs “Jules Rigaud.” There was no agreement between them.

Jules Rigaud testified that he worked with his son on some jobs, not on all jobs; on some jobs he gets paid by the day; he takes jobs independently of his son; his son takes jobs with which he has nothing to do; on this job for Garvey his son got so much a week while the work was going on; he paid him; his son did not give him anything for his losses on this building; he pays his son $10 a day; he has no agreement with his son; at times, on some jobs, he and his son work as partners; they did not work as partners on the Solomon job; it was his son’s job; at times his son takes jobs with which he has nothing to do, and vice versa; the Solomon job under discussion was Albert’s job, all he did was to furnish his son with the material and labor; it was Albert’s job more than his; when Saturday came and there was no money to draw, he had to furnish the money to his son; it was his son’s job, because he worked for Garvey all the time.

At this juncture the Court remarked:

“To use the vernacular of the street, Mr. Tiche, it looks like you are blown up. He says it was Albert’s job.”
Mr. Tiche: “Suppose it was and this man (Jules) furnished the labor and material?
The Court: “He furnished it to a subcontractor (Albert Rigaud). Garvey is the contractor.
Mr. Tibhe: “Well he has a lien against the house.
The Court: “No, he has not. He furnished it to a sub-contractor.”

The case ended there, and judgment was promptly rendered against the plaintiff.

On the theory that Albert was the subcontractor under Garvey, this conclusion was perhaps correct. But if it is true that Albert and Jules were partners then the judgment was • eminently wrong. For in that case, Albert and Jules were subcontractors and furnishers of materials and labor to Garvey directly and had a right of action undoubtedly directly against him. But it is evident that the trial Judge decided the case on the theory that Albert .and Jules were not partners but third persons to each other.

Garvey denied that he employed the plaintiff (Jules Rigaud) to do any work on the Building, but admitted that he employed plaintiff’s son, Albert, to do plastering work in said building.

But there is no testimony that the plaintiff and his son were general partners. The only testimony is that it sometimes happens that they take contracts together as partners.

Jules Rigaud then pays his son Albert regular wages, aüd if the job yields any profit, he allows him a certain proportion thereof as a further compensation for his services.

In the elaborately argued case of Chaffraix and Agar vs. Price, Hine and Tupper, 29 La. Ann. 176, the Court in an opinion covering eighteen pages decided that:

“Where a party shares in the profits of a partnership, not as a principal but as an agent, or employee who receives a certain proportion of the profits in compensation of his services, he is not a partner.”

Affirmed in Chaffraix and Agar vs. Lafitte, 30 La. Ann. 631; Miller vs. Chandler, 29 La. Ann. 88.

But in the case before us, the testimony of plaintiff is that he was not a partner of his son in the construction of this building, and the sworn allegation' of Garvey in his answer is that he employed plaintiff’s son and denied that plaintiff was employed by him. “Non in hac cfoedera veni.” If Jules and Albert were not general partners, then it follows, as day follows night, that Garvey made no contract with Albert and Jules, but with Albert alone. Whatever arrangements were subsequently made between Albert and Jules are no concern of Garvey and cannot affect him in any manner.

Giving the case of Wolf et al. vs. N. O. Tailor Pants Co., 52 La. Ann. 1357, 27 So. 893, all the authority to which it is entitled it may be differentiated. In that case the plaintiffs, as members of the firm of Wolf and Sons prayed for judgment in their favor individually, against the defendants whom they charged with having enticed away from their employ a valuable clerk.

The obligation, if any, arose during the partnership and was sued upon during its existence. Here the contract was made before the partnership was found and consequently not with the partners, and the suit was brought, if partnership there was, after its dissolution. Therefore in the last case the suit may not be brought in the name of a partnership which no longer exists, but must be brought in the name of all the partners. State vs. Judge of 2nd Dist. Court, 13 La. 484.

Therefore if this suit had been brought in the two names of Albert and Jules Rigaud the Wolfe case would not have been applicable.

The only question remaining therefore is, was this suit properly brought in the name of Jules Rigaud? It must be admitted that it would have been more properly brought in the name of Albert Rigaud, inasmuch as the contract was made with him. But it must also be admitted that from the evidence Jules Rigaud is more pecuniarily interested in the claim made in that suit than is Albert Rigaud, and that from the testimony of Albert Rigaud, he has ratified and approved the filing of this claim in the name of his father, Jules. At any rate we do not agree that the drastic judgment in this case should be the penalty for filing the suit in the wrong name. It has been repeatedly held that where the real creditor authorizes another to appear as plaintiff to recover a claim which belongs to him, the judgment is binding upon him, and the debtor has no interest in knowing to whose benefit the judgment will accrue when rendered. Cade et al. vs. Redditt, 15 La. Ann. 492; Lapice vs. Lapice, 21 La. Ann. 226; Holzob vs. N. O. & Carrollton R. R. Co., et al., 38 La. Ann. 185; Lewis et al vs. Holmes, 109 La. 1035, 34 So. 66; Marqueze & Co. vs. Fernandez & Co., 30 La. Ann. 200; Malmore vs. Martinez, 144 La. 96, 80 So. 212.

The same rule should apply when the real party in interest testified in favor of the plaintiff.

In the case of Shaw vs. Thompson, 3 N. S. 392, the Court said:

“The suit appears to have been brought by the persons having the legal interest in the instrument sued on. Whether they were the owners or not, was a matter with which the defendant had nothing to do, as the judgment here formed res judicata against any other who might hereafter have claimed an interest in it.”

In Humphreys vs. Cousin, 7997 Ct. App. April 18, 1921, O. Bk. 57, the syllabus, made by the Court reads as follows:

“Where suit is brought for the use of the real parties in interest by a plaintiff duly authorized to bring it, and where the defendant is not deprived of any of his means of defense and will be protected by the judgment, the action will be maintained noTwithstanding that technically the party before the Court may not be strictly the proper plaintiff in the case,” quoting 8 Orl. App. 48; Lejeune vs. Vanfrey Sugar Planting & Mfg. Co., 123 La. 871, 49 So. 603; Hanton, et al. vs. N. O. & C. R. Light & Power Co., 124 La. 562, 50 So. 544; Smith vs. Atlas Steam Cordage Co., 41 La. Ann. 1, 5 So. 413; Keer et al. vs. Evershed et al., 41 La. Ann. 18, 6 So. 566; Strauss vs. Bloom & Co., 18 La. Ann. 48.

In Smith vs. Atlas Steam Cordage Co., 41 La. Ann. —, 5 So. 413, the Court said:

“A suit brought by one in his individual name, but in reality for the benefit of non-residents as owners of the claim sued on must be viewed as instituted by the constituents themselves who must be considered as the real plaintiffs in court.”

In the case of Torian vs. Weeks, 46 La. Ann. 1502, 16 So. 405, the plaintiff made a planting partnership with the defendant and subsequently agreed with a third party to share his interest. Held the plaintiff could sue for the enforcement of the contract in his own name, the defendant not being a party to the subsequent agreement.

This decision was approved in Lejeune vs. Vanfrey, 123 La. 871, where after his lease with defendant plaintiff formed a partnership with another, it was held that Lejeune alone could sue defendant for the violation of the lease. “The just and correct solution of the question is that it does not concern the defendant what agencies Lejeune employed to carry on his mercantile business on the Providence Plantation.”

The case of Tripo Colovich vs. National Fish Co., 8 Ct. App. 47, is identically the same as the case before us. In that case Tripo Colovich was the master and half owner with his brother Costo Colovich and Frank Sanbat; the three manned the boat and fished oysters which they sold and divided the proceeds between them; the business was transacted by Tripo Colovich in the name of “Schooner Mary K.”

The plaintiff sold oysters to the defendant who failed to pay for them. This suit was filed against him by “Tripo Colovich, master and owner of the Schooner Mary K., praying for judgment in favor of himself individually.” The defendant answered that “it was not indebted to Tripo Colovich, individually, in any sum whatever, but that the oysters were purchased from a partnership which at the time was operating the Schooner Mary K.” Thereupon the plaintiff filed an amended petition in which he alleged that his suit was authorized by all parties in interest, and he concluded by a prayer for a judgment in favor of himself “as master of the Schooner Mary K.” The judgment in favor of the plaintiff was affirmed on the authority of many cases quoted in the opinion. In conclusion the Court said:

“The general, doctrine which we gather from these cases is that where a suit is brought for the use of the real parties in interest by a plaintiff duly authorized to bring it, and where the defendant is not deprived of any of his means of defense and will be protected by the judgment, the action will be maintained notwithstanding that technically the party before the Court may not be strictly the proper plaintiff in the case.”

The Court refers to the Wolf case and differentiates it; it refers to it as highly technical, so recognized, by its author himself who said:

“We- regret having to dismiss a suit brought on behalf of a partnership in a manner which has been so often acquiesced in.”

A writ of review to the Supreme Court was denied from the opinion in the Colovich case.

But a more liberal view than in the Wolfe case was subsequently taken by our Supreme Court in the case of Lejeune vs. Vianfrey, 123 La. 871, 49 So. 603, and Torian vs. Weeks, 46 La. Ann. 1502, 16 So. 405, cited in the latter case and quoted by us above.

We shall follow the Colovich case carrying with it the, exequatus of the Supreme Court and better calculated to assist the maxim of the civil law: “honeste vivere, néminem nocere, et suum cuique tribuere.”

It is therefore ordered that the judgment appealed from in favor of Joseph B. Garvey be reversed and set aside; and it is now ordered that this case a's to him be remanded for trial upon the merits with leave to the plaintiff to file a supplemental petition making Albert Rigaud a party defendant, and to allege therein that his original petition was filed with the consent of his son, Albert Rigaud; the defendant Garvey to pay the costs of appeal and the costs of the District Court to await the final determination of this suit.

Judgment reversed and case remanded.


source: Caselaw Access Project

author: CLAIBORNE, J.

license: Public Domain

text:
    No. 11,493
    Orleans
    MERCANTILE ADJUSTMENT AGENCY v. FABACHER, ET AL.
    (July 7, 1928. Opinion and Decree.)

      (Syllabus by the Court)

    1. Louisiana Digest — Appeal—Par. 119; Prohibition — Par. 8, 17.
    No appeal will lie from a judgment dismissing an appeal upon the ground that the. surety is not such as the law requires. The protper remedy is by prohibition.
    Appeal from First City Court. Hon. Val J. Stentz, Judge.
    Action by Mercantile Adjustment Agency against Edward Fabacher, et al.
    There was judgment for plaintiff and defendant appealed.
    Appeal dismissed.
    J. A. Casey, of New Orleans, attorney for plaintiff, appellee.
    Brian and Brian, of New Orleans, attorneys for defendants, appellants.
   ON MOTION TO DISMISS APPEAL.

CLAIBORNE, J.

Judgment having been rendered on February 23, 1928, against the defendant, Edward B. Fabacher, he has appealed.

The plaintiff and appellee then took a rule in the trial court upon the appellant Fabacher to dismiss his appeal upon the ground that the surety on the appeal bond did not possess the qualifications required by law.

On April’ 10th the rule was made absolute and defendant’s appeal was dismissed.

On April 20, 1928, the defendant-appellant obtained a suspensive appeal from said judgment dismissing his appeal.

In this Court, on May 2, 1928, the plaintiff-appellee filed a motion to dismiss the appeal upon the ground "that where an appeal has been dismissed for want of a solvent surety on the appeal bond, the (proper remedy is not by suspensive appeal from the judgment dismissing the appeal, but the proper remedy is by a writ of prohibition.”

The motion is correctly made and must prevail.

In the case of Borie vs. King, 3 La. App. 658, this Court held:

“No appeal will lie from a judgment dismissing a suspensive appeal upon the ground that the surety is not such as the law requires. The proper remedy is by prohibition.” State of La., et al. vs. Judge of the Fifth Dist. Court, 21 La. Ann. 113; Sampson vs. Gillis, et al., 22 La. Ann. 591; State, et al. vs. Rightor, 36 La. Ann. 200; Reynolds vs. Egan, 122 La. 47, 47 So. 371.


author: WESTERFIELD, J.

text:
    No. 10,366
    Orleans
    ROBERTSON & SON v. NEW ORLEANS, TEXAS AND MEXICO RY. CO.
    (July 7, 1928. Opinion and Decree.)

      (Syllabus by the Court)

    1. Louisiana Digest — Railroads—Par. 88, 89.
    The effect of Act 70 of 1886 is to place the burden of proving the want of negligence upon the railroad when livestock is killed upon its tracks. This burden is overcome by proof of unavoidable accident.
    Appeal from Civil District Court, Division “D.” Hon. Porter Parker, Judge.
    Action by W. T. Robertson & Son against New Orleans, Texas and Mexico Railway Company.
    There was judgment for defendant and plaintiff appealed.
    Judgment affirmed.
    John D. Nix, Jr., and W. W. Wright, of New Orleans, attorneys for plaintiff, appellant.
    George J. Janvier and William H. Talbot, of New Orleans, attorneys for defendant, appellee.
   WESTERFIELD, J.

The defendant railroad company is Sued for the value of three mules killed by its trains.

Plaintiff relies upon Act 70 of 1886 which places the burden upon railroads of disproving negligence in the killing of livestock by locomotives. Act 110 of 1886 relieves railroads of this burden when fences are maintained along the right-of-way.

There was a fence erected along defendant’s right-of-way where the mules were killed but it does not appear to have been in good condition and gates in the fence are shown to have been left open by someone, whether the fault be with the defendant in this respect is not clear.

Viewing the evidence as establishing the equivalent of no fence the situation is as expressed in Mongogna vs. R. R., 115 La. 597, 39 So. 699:

“The only penalty for failing to fence is that it (R. R. Co.) assumes the burden of showing that the injury to stock upon its tracks was not the result of negligence.”

See Robert L. Bailey vs. T. & P. R. R. Co., 1 La. App. 233; Foster vs. T. & P. R. R. Co., 5 La. App. 601.

The only evidence in the record as to the manner in which the mules were killed is that given by two engineers employed by. defendant who were in charge of the locomotives which killed the mules. This evidence is to the effect that when the mules were first observed on the track they were too close to permit the stopping of the trains. In the absence of any countervailing proof this evidence meets the requirements of the situation.

The judgment appealed from is affirmed.


text:
    No. 10,373
    Orleans
    BEAUCOUDRAY v. ROBERTS
    (July 7, 1928. Opinion and Decree.)

      (Syllabus by the Oourt)

    1. Louisiana Digest — Brokers—Par. 15.
    When a prospective purchaser of property obligates himself to pay the broker’s commission on his failure to comply with his offer, and the sale is not consummated but through no fault of the prospective purchaser, he owes no broker’s commission.
    Appeal from Civil District Court. Hon. E. K. Skinner, Judge.
    Action by May F. Beaucoudray against H. S. Roberts.
    There was judgment for plaintiff and defendant appealed.
    Judgment affirmed.
    Charles Louque, of New Orleans, attorney for plaintiff, appellee.
    John D. Nix, Jr., and W. W. Wright, of New Orleans,' attorneys for defendant, appellant.
   CLAIBORNE, J.

Plaintiff sues for the return of a deposit.

She alleges that on November 6, 1924, she signed an offer to purchase property for the price of $7650 on condition that she should obtain a homestead loan of $6500, which she did not obtain; that ír accordance with said offer she deposited with the defendant H. S. Roberts, real estate broker, $765; that by written -agreement between her and the owner, Harry Goldstein, the above agreement of sale was cancelled and the deposit made by her ordered returned, which the said Roberts, broker, refuses to do, and for which she claims judgment.

The offer to purchase is as follows;

“New Orleans, November 6, 1924.
“H.' S. Roberts,
“Dear Sir:
“I hereby offer to purchase for $7650 . the property No. 2900-06 Melpomene. Terms and conditions: Cash, subject to a Homestead loan of $6500. * * * If this offer is accepted, I agree to deposit with H. S. Roberts $765.00 on account of purchase price. In the event of acceptance, and my failure to comply with the terms of this offer, I obligate myself to pay on demand your commission of four per cent on this sale.
(Signed) “May Beaucoudray.”
“New Orleans, November 6, 1924.
“Acceptance of above offer is hereby authorized and I agree to pay you your brokerage of $150.
(Signed) “H. Goldstein.”

The agreement to cancel the above sale is as follows:

“New Orleans, January 22, 1925.
“It is mutually .agreed * * * between Harry Goldstein and Mrs. May Beaucoudray, that the agreement of sale heretofore made and signed in relation to two certain lots and * * * is hereby annulled and set aside, and the deposit made by Mrs. Beaucoudray be returned to her free of expense and the real estate agent H. S. Roberts is hereby directed to return the same to Mrs. May Beaucoudray.
(Signed) “Harry Goldstein.
“May F. Beaucoudray.”

The defendant admitted the offer of sale and the acceptance thereof, but' denied that any agreement between the plaintiff and the owner of the property can affect him; and assuming the character of plaintiff in reconvention the defendant prayed for judgment for $306 and $100 attorney’s fees.

By consent, judgment was rendered in favor of plaintiff for the balance, $359.

After trial judgment was rendered for plaintiff for $406 balance due.

The defendant has appealed.

The testimony shows that the American Homestead approved the application and granted the loan. But after the title had been submitted to their attorney for examination he reported “that there was a defect in the measurement of the title, and that he could not pass upon the validity of the title without having a survey and plan to decide upon the validity of the title.” It was even said that the property encroached upon the sidewalk. Goldstein, the owner, refused to have a survey made. The homestead then cancelled the loan.

The defendant rests his case upon the principle that the party owes the commission through whose fault the sale failed. Quoting 22 Howard U. S. 69, 4 Orl. App. 65, 4 id, 345, 391.

But this is not the case here. It was not through the plaintiff’s fault that the sale was not consummated. The sale was made “subject to a homestead loan of $6500.” After examination of the title, the homestead required a survey, the owner refused to have one made, and the homestead cancelled the loan. It is thus evident that the plaintiff was not the cause of the failure of the sale; that it was clearly the duty of Goldstein under the circumstances to have had a survey made to prove the validity of his title.

The judgment was in favor of plaintiff and it is affirmed.


text:
    No. 10,162
    Orleans
    SUCCESSION OF GOLDEN
    (April 21, 1928. Opinion and Decree.)

      (Syllabus by the Court)

    1. Louisiana Digest — Taxation—Par. —; Interest — Par. 31.
    In cases in which the settlement of a succession has been “bona fide contested” the interest on the inheritance tax imposed by Section 24 of Act 127 of 1921 shall be remitted.
    Appeal from Civil District Court. Div. “B.” Hon. Mark M. Boatner, Judge.
    Succession of Mary E. Golden. Opposition of William W. Kilpatrick et al.
    There was judgment for defendant and plaintiff appealed.
    Judgment affirmed.
    Frymire and Ramos, of New Orleans, attorneys for plaintiff, appellant.
    Rene A. Viosca, of New Orleans, attorney for defendant, appellee.
   OPINION

CLAIBORNE, J.

This case involves the claim of the Inheritance Tax Collector for interest for failure to pay the within tax the period fixed by law.

Mary E. Golden died on May 21, 1924, at the age of 67; she was never married and her parents died before her, her succession was opened on May 22, 1924.

On May 27, 1924, J. P. H. Ruddy, of Pennsylvania, father of the two minors John K. and James W. Ruddy, distant relatives of the deceased, prayed for and obtained an order for search of a will at the late'residence of the deceased. No will being found, he prayed to be appointed administrator of the succession.

On August 11, 1924, William W. Kilpatrick, also of Pennsylvania, filed a petition in which he alleged that himself and his four brothers and sisters were first cousins of the deceased; he opposed the application of P. H. Ruddy for appointment as administrator and prayed that he himself be appointed.

By judgment rendered August 19, 1924, William W. Kilpatrick was appointed administrator.

By order rendered August 21, 1924, the inventory of the succession taken June 2, 1924, and filed August 21, 1924, was homologated. It amounted to $93,102.99.

On August 21, 1924, letters of administrator were issued to W. W. Kilpatrick.

On September 22, 1924, the Administrator filed a provisional account, in which he stated the assets in New Orleans amounted to $93,102.99 and the ordinary debts to $101.50 and the privileged debts to $15,302.25, composed of a balance due on the prices of certain lots, the premium on the administrator’s bond, the commission of the administrator, the fees of the Notary and appraisers and attorneys of the succession, and the funeral undertaker. This account was homologated on October 6, 1924.

On the same day, September 22, 1924, the administrator obtained an order for an inventory in the Parish of Jefferson. The inventory was taken on October 16th and filed on October 28th, showing assets valued at $5,000.

On October 6, 1924, the administrator obtained an order for a private sale of 200 shares of the New Orleans Land Co., appraised $6400, and 50 shares of the National Power and Light Co., appraised $4500, “in order to pay the debts of the deceased as shown on the provisional account filed herein” on September 22, 1924.

On February 26, 1925, 'nine months after the death of Mary Golden and after the opening of her succession, the administrator filed a rule against the Clerk of Court to fix the amount of the inheritance tax at $3745.60.

The attorney for the Clerk agreed that the amount of the tax was correct, but claimed “the further sum of one hundred twelve and 36-100 dollars as penalties or interest.

By judgment rendered April 28, 1925, the Court made the rule absolute for the amount admitted by the administrator but rejected the demand for interest.

From this judgment the Clerk appealed.

Percy S. Benedict, attorney, representing three of the 'nearest five heirs of the deceased testified as follows;

“Mr. Mabry represented the heirs of a party by the name of Matthes Fitzpatrick, who, he claimed, was a deceased brother of the other parties whom we represent, and inasmuch as Matthew Fitzpatrick had died since the death of Mrs. Golden he came in equally with the other heirs; that his contention was made before the rule for the inheritance tax was taken, if I recall correctly, and it was only after the rule pending that Mr. Mabry finally abandoned his attack upon the parties we represent. Yes, and I presume until we found out who the heirs were, that it was impossible to fix the amount of the inheritance tax.”

The recognized heirs of the deceased were all her cousins.

Section 24 of Act 127 of 1921, p. 331, reads as follows:

“The taxes hereby levied shall bear interest at the rate of one per cent per month, and two per cent per month, beginning twelve months after the death of the decedent; saving to any heir, legatee, or donee the right to stop the running of interest against him by paying the amount of his tax with accrued interest, estimated or ascertained, or by tendering the same to the tax collector in the manner prescribed by the general law; provided, however, that in cases in which the settlement of the succession is bona fide contested such interest shall be remitted; so 'also when it shall be shown to the satisfaction of the tax collector that the beneficiary was ignorant of the inheritance.”

The case has been submitted to us without argument.

We find with the trial Judge that the settlement of the succession was “bona fide contested” and that the interest should be remitted. Succn. Bolán, 158 La. 811, 105 So. 10.


text:
    No. 10,240
    Orleans
    TEXAS OIL CO. v. VEITH
    (July 7, 1928. Opinion and Decree.)

      (Syllabus by the Court)
    1. Louisiana Digest — Prescription—Par. 96, 108; Taxation — Par. —.
    Where plaintiff sues for money expended in error in paying the taxes owed by defendant his action is a personal one and not within the inhibition of Art. 233 of the Constitution of 1898, notwithstanding the fact that the taxes were paid without the knowledge or consent of defendant.
    Appeal from Civil District Court. Div. “E.” Hon. William H. Byrnes Judge.
    Action by the Texas Oil Company against Philip G. Veith.
    There was judgment for plaintiff and defendant appealed.
    Judgment affirmed.
    Dufour, Goldberg and Kammer, of New Orleans, attorneys for plaintiff, appellee.
    W. W. Wall, of New Orleans, attorney for defendant, appellant.
   WESTERFIELD, J.

This is a suit for the recovery of $1200, paid in error, which enured to the benefit of defendant.'

Defendant reconvene's, claiming $S00 as a commission. Both the original and re-conventional demands were allowed by the trial court and by answer to the appeal. Both parties complain of the judgment.

Plaintiff’s demand results from the payment • of taxes on property belonging to defendant. It appears that defendant acquired the property known as the “Irma Warehouse,” which stood in defendant’s name, and in attempting to pay the city taxes on that property paid all taxes owed by defendant on property assessed in his name, or $1200 more than it should have paid.

Defendant resists the plaintiff’s claim upon the ground that there is no personal liability for taxes, citing Art. 233 of the Constitution of 1898 (then in force), State of La. vs. Hamilton, 42 La. Ann. 1203, 8 So. 304; Meyer & Co. vs. Parker, 41 La. Ann. 441, 6 So. 679.

In Journee vs. Bluek, 7 Orl. App. 417, it was held that—

“A petition reciting that tax was paid by plaintiff for defendant, at the latter’s request on the latter’s property and praying for a personal judgment for the amount so paid discloses a cause of action.”

It was also held that such demand could not “be looked upon as the enforcement of a tax by suit within the inhibition of Art. 233 of the Constitution.”

In Sandidge vs. Hunt, 40 La. Ann. 766, 5 So. 55, the Supreme Court said:

“This is a suit for reimbursement of money expended in disencumbering the property of taxes, and not one for the collection of taxes themselves. When payment was made they became extinguished and ceased to be. Hence, this is in the nature of a personal action and governed by the prescription of ten years.”

It is true that in the Journee case the taxes were paid by consent of the defendant and that in the Sandige case the property on which Sandige paid the taxes had been sold by Hunt to Sandige and encumbered the title, which Hunt had warranted. But we see no difference in principle. Both suits were for taxes paid under the circumstances prevailing. In both cases and in this case, as stated in the Sandige case the taxes had ceased to be and the action was a personal one.

In Baudry-Lacontinerie, Vol. 12, p. 740, No. 1399(b), we find: “If the third party without interest has paid in his own name, he may on principle act against the debtor by the action known as ‘de in rem verso’ for we must not suppose that there has been donation on the part of the third party. This action has its source in the principle of equity that no one must enrich himself at the expense of another,” and in a footnote we read: “This principle has such commanding character that it must be applied even when the payment has taken place against the will of the debtor and in spite of his protestations,” citing “2nd Moulon No. 1320; Colmet de Santerre No. 176; 17 Laurent No. 488; 8 Huc., p. 18 No. 9; 4 Morcade No. 675, 27 Dem’l No. 80-81.” R. C. C. 2134, C. N. 2136.

Our conclusion is that plaintiff is entitled to recover on the' main demand.

The reconventional demand is based upon a commission alleged to be due plaintiff as a real estate agent in connection with the sale of the same property, “Irma Warehouse.”

Without quoting the letters exchanged,' upon which this claim rests, or going into details, we are satisfied that the trial court was correct in allowing it.

For the reasons assigned, the judgment appealed from is affirmed.


author: REYNOLDS, J.

text:
    No. 2581
    Second Circuit
    PIERSON v. WINBARG
    (May 22, 1928. Opinion and Decree.)
    (June 28, 1928. Rehearing Refused.)

      (Syllabus by the Court)
    1. Louisiana Digest — Possession—Par. 1.
    There can be no civil (possession in the absence of title.
    C. C., Article 3431.
    2. Louisiana Digest — Petitory and Possessory Actions — Par. 48, 49.
    The possessory action' cannot be maintained where there is neither civil possession nor natural or corporeal possession of the thing possession of which is sued for.
    Code of Practice, Article 49.
    Appeal from the Tenth Judicial District,. Parish of Natchitoches. Hon. John F. Stephens, Judge.
    Action by Mrs. Sidney A. Pierson against E. B. Winbarg.
    There was judgment for defendant and plaintiff appealed.
    Judgment affirmed.
    Rusca and Cunningham, of Natchitoches, attorneys for plaintiff, appellant.
    Phanor Breazeale, of Natchitoches, attorney for defendant, appellee.
   STATEMENT OF THE CASE

REYNOLDS, J.

Plaintiff alleged that she was the owner of the following described property, to-wit:

“That certain tract or parcel of land situated in the city of Natchitoches on the east side of Jefferson street, lying between Jefferson street and Cane river, and between Pine and Sidney streets; said land being bound on the north by Pine street, on the south by Sidney street, on the east by Cane river, and on the west by Jefferson street.
“That on or about the 1st day of November, 1924, Eugene B. Winbarg, who resides in the parish of Natchitoches, pretending to be the owner of the above described property, in bad faith and without' any title whatever has disturbed your petitioner in the enjoyment of said property by fencing and talcing actual possession of said property and refuses to deliver said property to your petitioner.
“That your petitioner and her authors have had the real and actual' possession of said above described property since 1869 until the recent and above stated disturbance by said defendant E. B. Winbarg.”

And she prayed to ' be restored to the possession of the property and for damages for illegal ouster.

Defendant prayed oyer of and the court ordered plaintiff to exhibit her title, whereupon she filed a response setting up:

“That her husband, David Pierson, acquired that certain property described as being situated in the city of Natchitoches, bounded on the north by what is known as Pine street, on the south by Sidney street, on the west by property of Sibley, and on the east by Main or Jefferson street, as shown by acts of sale recorded in book 61 folio 334 on October 25, 1869, book 74 folio 20 on October 17, 1876, and book .61 folio 405 on April 1, 1870.
“That her said husband went' into actual possession of the said above described tract of land and also went into possession of that certain strip or tract of land lying in front of said above described land, said strip of land being bound on the east by Cane river, on the west by Main or Jefferson street, on the north by Pine street, and on the south by Sidney street; and that said land or strip of land was fenced and claimed by David Pierson as owner from 1869 until his death in 1902 or 1903, exceeding thirty years in time.
“That plaintiff, as widow in community, and four ¿hildren, sole issue of the marriage between plaintiff and David Pierson, went into the actual possession of said strip of land lying between Cane river and Jefferson street and between Pine and Sidney streets in the city of Natchitoches, and remained in possession of same with other property until January 10, 1910, at which time the four children, namely, Alice, Maud, May and Clarence Pierson sold their interest in the succession of their father David Pierson, with certain exceptions, as is shown by act of sale recorded in book 128 folio 53, a certified copy of which is hereto attached as ordered by the court.”

And she alleges that as widow in community of David Pierson, deceased, she was the owner of an undivided half of the property and became the owner of the other undivided half by virtue of the purchase thereof from the heirs of David Pierson as alleged, and that since 1910 she has been in possession of the land as sole owner.

Defendant filed an exception of no right of action and no cause of action which was tried and overruled, and thereupon defendant answered denying all of the allegations of the petition, except that he admitted taking and holding possession of the property.

On these issues the case was tried and there was judgment rejecting plaintiff’s demand and dismissing her suit and she appealed.

OPINION

Plaintiff asserts she had civil possession of the land at the time she was dispossessed in virtue of a thirty-year prescriptive title.

Defendant contends she had no prescriptive title and hence no civil possession.

“Civil possession * * * js * * * the detention of a thing hy virtue of a just title, and under the conviction of possessing as owner.”

The burden was on plaintiff to prove the title set' up, and we do not think she has discharged it.

The evidence as to the extent of the possession and the length of time it continued is conflicting. It would serve no useful purpose to analyse it. Suffice to say that in our opinion it shows, at most, possession of some part of the land for not exceeding twenty-five years.- This was insufficient to give plaintiff a prescriptive title and without she could not have had civil possession. Not having civil possession she could not, of course, in law have been disturbed by defendants’ acts.

We find no error in the judgment appealed from and accordingly it is affirmed.


author: ODOM, J.

text:
    No. 3254
    Second Circuit
    STOKES v. E. SONDHEIMER CO.
    (May 22, 1928. Opinion and Decree.)
    (June 28, 1928. Rehearing Refused.)

      (Syllabus by the Editor)

    1. Louisiana Digest — Master and Servant —Par. 154, 159.
    Paragraph 14, clause (d) subsection 1 section 8, paragraph 8, clause (d) subsection 1 of section 8, and paragraph 15, clause (d) subsection 1 of section 8 of Act 85 of 1926, amending Act 2'0 of 1914 the Workmen’s Compensation Act have no application in cases where there is an injury to both a leg and an arm, the combination of both injuries being such as to produce total disability to do work of any kind, compensation for which is provided by clause (b) of subsection 1 of section 8 of Act 85 of 1926.
    2. Louisiana Digest — Master and Servant —Par. 154, 159.
    The total allowance under paragraphs 5 and 7 of clause (d) subsection 1 of section 8 of Act 85 of 1926 is 275 weeks compensation for loss of a hand and a foot. This is not in conflict with clause (b) of subsection 1 of section 8 of the same act where the loss of these two members produces total disability. In such cases recovery of compensation is had for total disability under the latter section.
    3. Louisiana Digest — Master and Servant —Par. 160(d), 160(i).
    Where the plaintiff in a workmen’s compensation case under Act 20 of 1914 never refused treatment, had never been offered any, and had been left to charity for a long period of time, the defendant can not plead lack of medical attention to injured employee as a defense.
    4. Louisiana Digest — Master and Servant —Par. 160(k).
    In accordance with Act 19 of 1884, ten dollars for medical examination of injured employee and fifteen dollars for testifying in court is a reasonable fee for physician.
    Appeal from the Sixth Judicial District Court', Parish of East Carroll. Hon. F. X. Ransdell, Judge.
    Action by Columbus Stokes against E. Sondheimer Co.
    There was judgment for plaintiff and defendant appealed.
    Judgment amended and affirmed.
    A. J. Wyly, of Lake Providence, attorney for plaintiff, appellee.
    Theus, Grisham & Davis, of Monroe, attorneys for defendant, appellant.
   ODOM, J.

Plaintiff brings this suit to recover compensation under Act' No. 85 of 1926.

He alleges that while cutting logs in the woods for defendant, a tree fell on him, breaking one of his legs and one of his arms, and as a result of said injuries he is totally and permanently disabled from doing any work of a reasonable character, and asks for full compensation for 400 weeks under clause (b) of subsection 1 of section 8 of the act.

Defendant, in answer, admits that while plaintiff was employed by it he was accidentally injured on January 23, 1927, and avers that it

“* * * paid to plaintiff herein, as compensation, during the period of disability, the sum of $368.50, which said amount covered compensation for a period of twenty-seven weeks, from date of accident, January 27, 1927, to August 1, 1927, being sixty-1 five (65%) per cent of a weekly wage of $21.00.”

The lower court found that plaintiff was earning at the time of the accident $24.00 per week, and awarded him compensation at 65% of that amount, or $15.60, for 400 weeks, subject to a credit of $338.35 already paid.

Defendant prosecutes this appeal.

OPINION

Plaintiff was injured on January 23, 1927, and the case was tried on January 11, 1928.

From the date on which plaintiff was injured up to and including the date of trial, he was totally disabled as a result of his injuries to do work of any reasonable character; in fact he was totally incapacitated to do any work at all involving physical exercise.

At the time of the trial, he was wearing a steel brace which extended from the hip joint to the sole of his foot, and he could walk only with the aid of crutches. His knee joint was “practically immobilized,” only a slight degree of flexion being possible upon removing the brace. The x-ray reveals a fracture at the junction of the lower and middle thirds of the right femur—

“* * * with a bowing outward about an angle of thirty degrees (quoting Dr. Wright’s report). A steel plate is seen intact on the exterior of the bone. There is rarefaction of the boney substance about the fractured area. The humerus shows an extensive comminuted fracture of its lower end which apparently involves the joint with the fragment displaced, seemingly inward and everted * ® * he has a low grade infection of the bone at the site of the injury as a result of the steel plate being as yet intact.”

As to the condition of plaintiff’s arm, Dr. Wright, in his report, said:

“The right elbow is distorted and the carriage angle destroyed. There is an inward bowing of the lower end of the humerus. Compensatory function of the elbow joint is apparently excellent. Extreme extension is impossible but he uses the joint with great ease.”

Dr. Wright testified that there is callous union of the fracture of the arm, and was asked if there was any stiffness in the arm, and he said:

“He does not get complete flexion out of it; it is 25% normal.”

Asked if he could estimate the percentage of disability to the arm, he said:

“Not greater than 25%.”

Asked what plaintiff could do with that arm, he said:

“As far as I could tell, he has perfect function of the hand and he has about this much flexion (demonstrating).”

The testimony shows that in treating the fracture of plaintiff’s leg the physicians used what is called a Layne splint, which is a metal plate attached to the bone by four screws, the purpose of the iplate being to hold the ends of the bone in place during the process of healing.

There were three physicians, Dr. Wright, Dr. Hemley, and Dr. Evans, called as witnesses, each of whom was of the opinion that nature had provided, at the point of' fracture, an abundant amount of callous, but that the callous substance had not ossified or hardened into bone, as in ordinary cases, due, as they thought, to the presence of the metal plate and to the fact that one of the screws intended to hold the plate in place was inserted into the fracture, all of which produced irritation and a low degree of infection.

In sum, each of the physicians testified that at the time of the trial plaintiff was totally disabled, and all were of the opinion that his disability is permanent, unless relief is obtained by subsequent treatment.

This condition having continued over a period of one year, from the date of the injury to the date of the trial, under the law and the settled jurisprudence plaintiff is entitled to full compensation during disability, not exceeding 400 weeks.

But defendant, in oral argument before this court, and in briefs filed (not in answer) contends, first, that conceding that plaintiff has lost the use of a leg, he can be granted compensation for no more than 175 weeks, as that is what the statute provides for the amputation of a leg, and the total loss of the use of a member is equivalent to the amputation . thereof; and, further, that there is no proof that plaintiff has lost the use of his arm entirely, and that at most compensation for the arm should not exceed 25% of the amount fixed by the statute, for the total loss of the use of an arm (200 weeks), for that is the percentage of disability to the arm which the physicians think plaintiff has sustained; and, in the second place, it is urged that plaintiff should submit to further treatment which they propose at their expense in order to minimize his disability.

Taking up these points in the order named.

It is ’ true that paragraph 14 clause (d) subsection 1 section 8 of Act No. 85 of 1926 provides that— ’

“A permanent total loss of the use of a member is equivalent to the amputation of the member.”

And paragraph 8 clause (d) subsection 1 of section 8' fixes the compensation for the loss of a leg at 65% of wages during 175 weeks and for the loss of an arm (paragraph 6) during 200 weeks; so that if plaintiff had lost both an arm and a leg, under a literal construction of these sections and without regard to other portions of the act, he could not recover compensation for more than 375 weeks. It is also true that paragraph 15, clause (d) subsection 1 of section 8 provides that in all cases involving a permanent partial loss of the use of function of the member mentioned hereinabove

“* * * compensation shall hear such proportion to the amounts named herein for the total loss of such member as the disability to such member bears to the total loss of the member”

so that if the disability ■ to plaintiff’s arm is only 25% he would be entitled to compensation for only 50 weeks, or a total of 225 weeks for both.

But those provisions of the statute to which we have referred have, we think, no application in cases where there is an injury to both a leg and an arm, the combination of both injuries being such as to produce, total disability to do work of any kind. And that is the case here.

The plaintiff, as he stood before the court on the day the case was tried, one year less twelve days after he was injured, was a physical wreck so far as any kind of manual labor is concerned. His wounds had not healed, he was sore and lame, and he could get about only with the use of crutches. All in all, he was totally incapacitated to labor. If there was any kind of work he could do at that time, counsel have not suggested what it was.

Under such conditions, we must give effect to clause (b) of subsection 1 of section 8 of the act which provides that

“For injury producing permanent total disability to do work of any reasonable character, sixty-five per centum of wages during the period of disability, not, however', beyond four hundred weeks.”

shall be paid.

In fixing the amount of compensation due an injured employee by his employer we should not select and give effect to those provisions of the act alone which appear to be favorable to the employer and thereby minimize his liability and at the same time exclude and disregard other sections of the act which may, on first blush, appear to be conflicting.

To hold that' plaintiff, having received injuries to both a leg and an arm, which injuries combined have. unquestionably totally disabled him, can be awarded no more than the total fixed by the statute for a leg and an arm, would, in effect, be to read out of the statute that provision for compensation for total disability during the period of disability not exceeding a fixed period.

It was not intended, of course, that these provisions of the statute fixing the period over which compensation should be paid for the loss of a member or the loss of the use thereof, should overshadow those provisions for the payment of compensation during disability. The different provisions of the act should, if possible, be so construed as to harmonize, and each given effect in its proper place, and we think that can be done.

Under paragraph 5, clause (d), subsection 1 of section 8 of the act, an employee receives compensation during 150 weeks for the loss of a hand, and under paragraph 7 he receives compensation for 125 weeks for the loss of a foot, or a total for the two of 275 weeks; and yet under paragraph 10 of the same clause, subsection and section, for the loss of “one hand and one foot” he is paid the same per centum of wages for 400 weeks or 125 weeks more than the total allowed under paragraphs 5 and 7.

According to the argument of defendant’s counsel, there is a conflict, because they say, in effect, that in cases where there is a loss of two members the most that can be allowed is the sum of the allowances for each of the members.

We see no conflict. It is evident that the legislature took into consideration the seriousness of a laborer losing a hand and a foot at the same time, which in all probability would result in total disability, whereas the loss of either might only slightly impair one’s capacity to earn wages.

Our attention is called to the case of James vs. Spence & Goldstein,. 161 La. 1108, 109 South. 917, where the employee sustained an injury to the hand, and the court said:

“His injury has unfitted him for the only two occupations he knows anything about, that' of carpentering and that of farming.”

And yet the court allowed him to recover as for the total loss of the hand only.

There seems to be an impression that the effect of the court’s holding in that case is that if the injury is only to a member of the body the injured employee can recover no more than the amount stipulated for the loss of the use of the member, even though the injury has produced total disability. Such was not the court’s holding.

True, it is said that, plaintiff’s injury “unfitted him for the only two occupations he knows anything about;” but it was not held that' he was totally disabled.' Quite the contrary. The plaintiff there admitted and the court observed that he was only partially disabled. Said the court:

“That plaintiff’s case falls within subsection (c) seems to be clear.”

The act under consideration was No. 216 of 1924. Subsection (c) paragraph 1 section 8 of that act provides for payment during partial, not total, disability. The court had under consideration a case where admittedly the disability was only partial. Our Supreme Court has never held (nor has any other, so fas as we know) that in a case where, as the one at bar, an employee has received injuries to his members such as to produce total disability to labor he can recover no more than the price set upon these members.

Defendant’s second plea is equally unavailing. The case was tried on January 11, 1928, one year after iplaintiff was injured. On that date defendant, in open court, by written motion, offered to have plaintiff treated at its expense and asked that he be ordered to submit to such treatment and in event he refused “that defendant be relieved from paying further compensation,” and the court .refused to grant the order.

Defendant’s motion and request are grounded upon the theory, which is sound, that an injured employee cannot refuse to accept harmless treatment at the employer’s expense, which treatment would in all probability relieve his disability. But defendant, under the circumstances of this case, is in no position to invoke that rule as a defense to the action brought against it.

Defendant tendered aid to the plaintiff for the first time on the day the case was called for trial, one year after the injury. Paragraph 5 clause (k) subsection 2 of section 8 of the act provides that the employer shall in every case coming under the act furnish medical and surgical aid to the injured employee . to an amount not exceeding $250.00. But during the year which elapsed between the date of injury and the date of trial, defendant expended nothing to relieve plaintiff but, on the contrary, sent him to the Charity Hospital in Shreveport where he received the only medical aid and treatment he ever had. On May 28th he was discharged from the Charity Hospital as cured. But he was not cured, and there seems to be no reason why defendant should not have known that.

Defendant paid plaintiff compensation up to August 13th, when the payments were discontinued. Plaintiff was still disabled. From August 13th to January 11th, a period of five months, plaintiff was abandoned by-defendant, notwithstanding his disabled condition, and notwithstanding defendant had not expended nor offered to expend for his relief the amount' fixed by statute.

Plaintiff’s right of action for full compensation had fully accrued when the suit was brought, and it was only on the day the case was called for trial that defendant offered to do anything for him. On that day it' asked that he be ordered to accept treatment, and in event he refused, it be relieved from paying “further compensation,” when it had ipaid him nothing in five months, and did not then offer to pay that which had already accrued, nor did it offer to pay compensation during the disability which would necessarily result from the treatment it then offered.

We held in Martin vs. Wyatt Lumber Co., 4 La. App. 157, and again in Smith vs. Butler, 7 La. App. 338 (Advance Reports, No. 21, February, 1928), that an injured employee cannot refuse to accept simple and harmless treatment at' the expense of the employer and thereby extend the period of disability, and we adhere to those decisions; but they are not controlling in this case.

- In the Martin case, the employer, immediately after the injury, offered to have plaintiff operated on for hernia at its expense, but we refused to order him to accept that treatment because it was held that an operation for hernia carried with it an element of danger to life.

In the Smith vs. Butler case, the injured employee was being treated by the best surgeons at the expense of defendant. The defendant and the surgeons stood ready, willing and anxious to continue the treatment' but plaintiff refused to accept further treatment and refused to permit the surgeons to complete the treatment which they had, begun, and we held that his continued disability was due to his own fault.

In the case at bar, defendant had never at any time refused treatment; he had never been offered any, but, on the contrary, had been left to charity and to shift for himself for a long period of time.

Under the circumstances, defendant could not defeat plaintiff’s . cause of action, already accrued, by then offering further treatment.

The court fixed the. fees of Dr. Evans and Dr. Hamley at $50.00 each. Counsel for defendant say these fees are excessive, and should be reduced.

The act provides that' the fees of medical experts shall be reasonable and shall be taxed as costs as in other civil proceedings. The amount, according to Act No. 19 of 1884, page 25, should be fixed by the court with reference to the value of the time employed and the degree of learning or skill required.

We do not minimize the value of the time and skill of physicians, but we think the fee allowed in this case excessive. They were on the stand only a short time. In other cases we have allowed $15.00, but inasmuch as these physicians had each examined the (plaintiff before being called, we think a fee of $25.00 to each is reasonable, and the judgment should be so amended as to aljow that amount.

The lower court awarded plaintiff compensation as for permanent total disability for a period of 400 weeks. This was error. He is entitled to compensation during disability, not beyond 400 weeks.

The judgment is therefore amended so as to award compensation during disability, not beyond 400 weeks, and further, reducing the fees of Drs. Hamley and Evans from $50.00 each to $25.00 each, and as thus amended it is affirmed.


author: WEBB, J.

text:
    No. 3167
    Second Circuit
    FORD, BACON & DAVIS, INC., v. SHAW
    (July 7, 1928. Opinion and Decree.)

      (Syllabus by the Editor)

    1. Louisiana Digest — Automobiles — Par. 7(c), 8; Evidence — Par. 58.
    Where the preponderance of evidence shows that defendant was driving on the wrong side of the road with his bright lights on, defendant carries the burden of proof to show that such circumstances were not the proximate cause of the collision.
    .2, Louisiana Digest — Automobiles — Par. 7(c), 8.
    Where defendant was driving with his bright lights and there is no evidence : indicating that driver of plaintiff’s car could have avoided the collision, without taking the risk of driving into the ditch, defendant is liable for damages sustained.
    Appeal from the Fourth Judicial District Court, Parish of Ouachita. Hon. Percy Sandel, Judge.
    Action by Ford, Bacon & Davis, Inc., against A* T. Shaw.
    There was judgment for plaintiff and defendant appealed.
    Judgment affirmed.
    Shotwell & Brown, of Monroe, attorneys for plaintiff, appellee.
    George Wesley Smith, of Rayville, attorney for defendant, appellant.
   WEBB, J.

The plaintiff, Ford, Bacon & Davis, Inc., instituted this action to recover damages to an automobile owned by it sustained in a collision with án automobile owned and driven by defendant, A. T." Shaw. Plaintiff alleges that the collision resulted from the negligence of defendant in driving at an excessive rate of speed with bright’ lights and on the wrong side of the roadway, which was denied by defendant, who, in turn, alleged that the collision was due to the fault of the driver of plaintiff’s automobile, in that he was driving on the wrong side of the roadway, and he reconvened for damages.

On trial judgment was rendered in favor of plaintiff for the expense of repairs and depreciation, end rejecting the reeonventional demand, from which defendant appeals, urging that the preponderance of the evidence failed to establish any negligence on his part, and, in any event, that the evidence showed that the driver of plaintiff’s car was negligent and that his negligence contributed to the collision.

The collision occurred on the public highway while plaintiff’s car was being driven west and defendant’s was being driven east, the left' front and side of the automobiles coming in contact.

There were three persons riding in plaintiff’s car, all of whom testified that the car was on the driver’s right hand side of the roadway at the time of the collision, while defendant testified that plaintiff’s car was on the driver’s left hand side of the roadway, and it is contended that the physical facts or the position of the automobiles after the collision supports defendant’s testimony.

After the collision the cars moved in the general direction in which they were being driven, and both came to a stop on defendant’s right hand side of the roadway, but the evidence shows that after the collision each of the cars swerved to that side of the roadway, and at least there cannot be any clear inference drawn from the situation of the cars after the collision, which supports the testimony of defendant rather than that' of the witnesses for plaintiff, and we are of the opinion that the preponderance of the evidence shows that the collision occurred while defendant was driving on the wrong side of the roadway, and defendant carried the burden of proof to show that such circumstance was not' the proximate cause of the collision (Schick vs. Jenevein, 145 La. 333, 82 So. 360) and it further appearing that defendant was driving with bright lights and there not being any evidence indicating that' the driver of plaintiff’s car could have avoided the collision, without taking the risk of driving into the ditch, we are of the opinion that defendant was properly held liable, and the judgment is affirmed. (Ellis vs. Colleta, 1 La. App. 369; Riser vs. Schreiber, 4 La. App. 340.)


text:
    No. 3112
    Second Circuit
    STRAUSMAN v. WOLINSKI AND LEVY
    (May 22, 1928. Opinion and Decree.)
    (June 28, 1928. Rehearing Refused.)

      (Syllabus by the Editor)

    1. Louisiana Digest — Sales—Par. 111, 116.
    Where shipment was made by defendants to their own order with draft attached, in default of proof to the contrary, the place of sale as well as obligation of delivery was to be completed and performed at the' place of destination, and the carrier was the agent of the defendants.
    2. Louisiana Digest — Sales—Par. 119, 124.
    Where the purchaser of goods had the right to inspect them before acceptance but did not do so, he will be held for payment for these goods even though the goods delivered by the carrier were inferior to those shipped by the seller.
    Appeal from the First Judicial District Court of Louisiana, Parish of Caddo. Hon. J. H. Stephens, Judge.
    Action by Morris Strausman against Wolinski and Levy.
    There was judgment for plaintiff and defendants appealed.
    Judgment affirmed.
    Robertson and Gibbs, of Shreveport, attorneys for plaintiff, appellee.
    Crain, Jackson and Johnston, of Shreveport, attorneys for defendants, appellants.
   WEBB, J.

The plaintiff, Morris Strausman, while in Chicago, on June 21, 1926, purchased from defendants, Wolinski & Levy, a partnership composed of Mandel Wolinski and Harry Levy, four hundred and thirty-two pairs of second-hand shoes and five dozen pairs of hose at the price of seven hundred and fifty-five and 20-100 dollars and made a deposit of fifty dollars at that time, and the shipment was to be made to plaintiff at' Shreveport with sight draft attached to the bill of lading for the balance of seven hundred and five and 20-100 dollars.

The draft with bill of lading attached was sent to the Commercial National Bank of Shreveport, and the draft being paid to the bank the bill of lading was delivered, and on presentation of the hill of lading to the carrier the shipment was delivered to plaintiff.

In this action the plaintiff alleges that the defendants had substituted in the place of the shoes purchased a lot of worthless shoes and shipped same to plaintiff and that defendants were indebted to it in the sum oil seven hundred and fifty-five and 20-100 dollars, and alleging that defendants were non-residents, he obtained a writ of attachment under which the shoes claimed to have been received by plaintiff were seized and garnishment issued against the Commercial National Bank.

The Commercial National Bank answered the garnishment process, stating that it had received from the Community State Bank of Chicago a sight draft drawn by defendants, Wolinski & Levy, on plaintiff, Morris Strausman, payable to the order of the Community State Bank of Chicago for seven hundred and five and 20-100 dollars, with bill of lading attached, which draft was paid by plaintiff, and that it had in its hands its own draft drawn on the Chemical National Bank of New York for the amount, less exchange, or $704.20, and therefore it denied any indebtedness to defendants or having any property in its possession belonging to defendants,' and defendants appeared through counsel and excepted that the petition failed to show a cause of action, which was overruled, and they then answered pleading, in effect', the general denial.

The cause was tried and judgment rendered in favor of the plaintiff and against Mandel Wolinski and Harry Levy in solido for seven hundred forty-five and 20-100 dollars, and sustaining the writ of attachment, with recognition of a privilege to the extent of the judgment, and ordering the property attached and the funds in the hands of the Commercial National Bank sold and the proceeds applied to the payment of the judgment, from which the defendant's appeal.

The principal ground upon which the defendants rely for the reversal of the judgment is, that the court erred in its finding of fact, as to which it is argued this court is in equally as good position to determine the weight to be given to the evidence as the trial court was, in that the evidence on behalf of the defendants was taken under- commission, and considering the trend of the evidence offered by the parties.

That is, the evidence offered by plaintiff tended to establish that the shoes which had been selected by him had not been delivered to him by the carrier, while the evidence offered by defendants tended to show that the shoes which had been selected by plaintiff had been delivered to the carrier, and considering the improbability of other second-hand shoes being substituted while in the hands of the carrier, that the evidence should have been considered solely with reference to the degree of certainty with which the evidence established the facts contended for by the respective parties.

That is, unless it could be said that the evidence offered by plaintiff established with greater certainty that the shoes selected by him had not been delivered by the carrier than the evidence offered by defendants established that the shoes selected by plaintiff had been delivered to the carrier, judgment should have been rendered in favor of defendants.

Considering the evidence of the parties tending to directly establish the facts, that is, as to the delivery to the carrier by defendants and non-delivery by the carrier to plaintiff, the proof is, we think, about equally balanced; however, the evidence establishes that the shipment was made by defendants to their own order with draft attached, and in default of proof to the contrary the place of sale as well as obligation of delivery was to be completed and performed at the place of destination, and the carrier was the agent of the defendants. (R. C. L. vols. 23, 24, No. 75; 307, also First National Bank vs. Henderson Cotton Oil Co., 157 La. 394, 102 So. 501; Canal-Commercial Trust & Savings Bank vs. N. O. T. & M. Ry. Co., 161 La. 1051, 109 So. 834), and we are of the opinion that plaintiff had the right to inspect the goods before delivery, and it being established that defendants refused to grant him such right and wrote plaintiff to take the shipment out and that they would make good any claims made by him If he was not satisfied is a material circumstance to be considered in weighing the testimony of the parties, where it is argued that one or the other was guilty of fraud, and we think that the preponderance of the evidence supported the position of the plaintiff that the shoes selected by him had not been delivered by the carrier, and that the court correctly so held.

The defendants further suggest that the judgment was erroneous in that it was against the members of the partnership and that it was also erroneous as to the funds in the hands of the Commercial National Bank. However, under the pleadings and the evidence the judgment could have been rendered against the partnership as well as the individual members, and we do not think the individual members have any cause to complain if the plaintiff did not choose to have the decree so written, and as the plaintiff does not make any complaint of the decree and as the Commercial National Bank has not appealed or made any appearance here, we do not think that the defendants can complain as to the judgment as it may affect the bank. The judgment appealed from is therefore affirmed.


text:
    No. 2867
    Second Circuit
    LEVY v. DEHAN
    (March 14, 1928. Opinion and Decree.)
    (May 22, 1928. Rehearing Refused.) (-, Writ's of Certiorari and Review Denied by Supreme Court.)

      (Syllabus 6y the Editor)

    1. Louisiana Digest- — Attorneys—Par. 70.
    In view of the amount involved and the time and labor devoted to the case, the evidence of three attorneys as to the value of legal services rendered will be considered correct where the only evidence to the contrary was that of one attorney for the defendant.

      Appeal from the First Judicial District Court, Parish of Caddo. Hon. J. H. Stephens, Judge.
    Action by Joseph H. Levy against H. Dehan.
    There was judgment for plaintiff and defendant appealed.
    Judgment affirmed.
    J. H. Levy, of Shreveport, attorney for plaintiff, appellee.
    A. M. Pyburn, J. Fair Hardin, of Shreveport, attorneys for defendant, appellant.
   ODOM, J.

Plaintiff is an attorney at law and brings' this suit against 'defendant to recover $500.00 which he charged defendant as a fee for professional services rendered.

Defendant admits that he employed plaintiff and that iplaintiff rendered professional services for him, but refuses to pay the fee demanded because he considers it excessive.

The lower court rendered judgment for plaintiff, as prayed for, and defendant appealed.

OPINION

The only question involved is whether the fee charged by plaintiff is excessive. The judge of the lower court did not think so. Neither do we. Independently of the opinions expressed by attorneys called as witnesses as to the value of the services rendered by plaintiff to defendant and the reasonableness of the fee, the undisputed testimony showing the amount involved, the time and labor devoted to the case by plaintiff, and advice given, convinces us that the fee charged is not excessive.

Plaintiff himself testified that the fee is reasonable. In addition to his own testimony, plaintiff called Mr. John D. Wilkinson, Mr. Clifton F. Davis, and Mr. A. H. Van Hook, all of the Shreveport bar, as witnesses. Mr. Wilkinson testified that for the services rendered a fee of $500.00 or $600.00 would not be excessive. Mr. Davis and Mr. Van Hook both testified that a fee of $500.00 was not excessive.

As against this testimony, we find that of Mr. J. Fair Hardin, also of the Shreveport bar, one of the attorneys for defendant, who testified that a fee of $150,00 would sufficiently compensate plaintiff.

After iplaintiff had offered, in addition to his own testimony, that of three prominent attorneys as to the value of the services rendered, defendant called only one witness, Mr. Hardin. His opinion is hardly sufficient to overcome that of the other attorneys, and we might add, that of the District Judge, also.

However, we do not base our judgment solely upon the opinions of the witnesses called.

It is unnecessary to go into detail as to the controversy about which plaintiff advised defendant, except to state that it involved a lease contract on property in Shreveport at $450.00 per month for five years, one year of which had expired.

The lessors were about to demolish one of the walls of the leased premises, which would necessarily interfere with defendant’s restaurant business. That brought uip the question of defendant’s rights under the lease. Defendant consulted friends as to the proper course to pursue. They advised him to consult counsel, and he employed iplaintiff. Plaintiff devoted four days. to the examination of the law and authorities applicable, had numerous consultations with Mr. Van Hook, who represented the lessors. An agreement was finally reached between plaintiff and Van Hook, attorney for the lessors, that the lease should be canceled and that the lessors should pay defendant for improvements that he had made on the building, amounting to some $1700.00.

Van Hook agreed to submit the matter to his clients and advise them to accept it, and he says they agreed to the settlement. When plaintiff submitted the proposition to defendant he refused to accept unless awarded damages in a large sum, and plaintiff withdrew from the case, after advising defendant that he was not entitled to damages.

Whereupon defendant employed other attorneys and finally brought suit to have the lease contract declared abrogated because of an active violation of the obligation of

the lessors and for damages in the sum of $33,600.00. The case finally reached the Supreme Court. See Dehan vs. Youree, et al., 161 La. 806, 109 So. 498.

That plaintiff’s legal conclusions and advice to defendant were sound is evidenced by the fact that the court declared the -lease abrogated and awarded Dehan a sum to cover the value of his improvements and rejected his demand for damages. He got at' the end of a lawsuit substantially what plaintiff advised him he was entitled to and what he could have gotten without suit. All the negotiations with reference to the matter were carried on between plaintiff, as attorney for defendant, and Mr. A. H. Van Hook, attorney for the lessors. Mr. Van Hook was therefore in position to estimate the value of the services rendered by plaintiff to defendant'. Mr. Van Hook testified that plaintiff’s services were worth $500.00.

Por the reasons assigned, the judgment appealed from is affirmed, with costs.


text:
    No. 3193
    Second Circuit
    DOWIES v. CURRIE, ET AL.
    (June 28, 1928. Opinion and Decree.)
    (July 14, 1928. Rehearing Refused.)

      (Syllabus by the Editor)

    1. Louisiana Digest — Courts—Par. 126, 128.
    “The appellate jurisdiction of the court is determined by the amount in contest at the time the judgment appealed from was rendered in the lower court.”
    Appeal from the Second Judicial District Court, Parish of Bienville.
    Action by Gilmer Dowies against J. E. Currie, sheriff, et al.
    There was judgment for plaintiff and defendants appealed.
    Case transferred to Supreme Court'.
    J. P. Guillot, Goff and Barnette, of Arcadia, attorneys for plaintiff, appellee.
    R. L. Williams, of Arcadia, attorney for defendants, appellants.
   WEBB, J.

This is a suit for an injunction and for damages for alleged illegal seizure. J. E. Currie, as sheriff of the parish of Bienville, seized, as the property of S. S. Johnson, certain movables, in the possession of plaintiff, under a writ of fi. fa. issued upon a judgment obtained by the Commercial Bank of Arcadia against S. S. Johnson in the District Court of Bienville parish and advertised them for sale, whereupon plaintiff brought this suit.

He alleged that the movables seized were his property and not subject to seizure under the fi. fa., that they were worth $1600.00, and that he had been damaged by the seizure $2500.00, and he itemized the damages.

He prayed that the defendants be enjoined from proceeding with the sale, that the property seized be decreed to be his and not subject to seizure, be released, and for judgment against the defendants in solido for the sum of $2500.00, damage caused him by the seizure.

A temporary restraining order was issued and on final trial it was made permanent, the property seized decreed to belong to plaintiff and ordered released from seizure. Plaintiff’s demands for damages were rejected.

The defendants appealed, and plaintiff has answered the appeal and prays that the judgment appealed from be amended by awarding him damages for illegal seizure in the sum of $2500.00 as prayed for in his petition.

The plaintiff in the injunction claimed the property seized, the value of which was alleged to be sixteen hundred dollars, and damages for the seizure, amounting to twenty-five hundred dollars, and ■ it not appearing from the pleadings that the amount of the damages claimed was excessive or the value of the property exaggerated, or that the claims could not be cumulated in the same action, the amount involved places the cause beyond the jurisdiction of this court (Ludeling vs. Garret, 50 La. Ann. 118, 23 So. 94), and although the judgment rendered did not allow any damages, nevertheless the amount involved at the time the case was submitted was above two thousand dollars, and there not having been any remittitur, the jurisdiction is to be determined by the amount involved at that time.

“The appellate jurisdiction of the court is determined by the amount in contest at the time the judgment appealed from was rendered in the lower court.”

Wolf vs. Thomas, 137 La. 833, 69 So. 269.

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


author: MOUTON, J.

text:
    No.-
    First Circuit
    TEN DAY GROCERY CO., INC., v. J. E. SMOOT & COMPANY
    (June 12, 1928. Opinion and Decree.)
    (June 30, 1928. Rehearing Refused.)

      (Syllabus by the Editor)

    1. Louisiana Digest — Payment—Par. 17, ' 18; Evidence — Par. 150.
    Where draft on third party in payment of debt to plaintiff had not been paid, letter from defendant to plaintiff asking for time and assuring him that he would be protected in the matter is an acknowledgment of the debt and implied a waiver of any defense of payment.
    Appeal from the Parish of Livingston. Hon. Columbus Reid, Judge.
    Action by Ten Day Grocery Company,Inc., against J. E. Smoot and Company.
    There was judgment for defendant and plaintiff appealed.
    Judgment reversed.
    Rownd & Warner, of Hammond, attorneys for plaintiff, appellant.

      Carroll Buck, of Amite, attorney for defendant, appellee.
   MOUTON, J.

In payment of an account due by defendant company to plaintiff company, the former drew a sixty-day acceptance draft on the Columbia Box Factory of New Orleans. This draft was endorsed by plaintiff company and was turned over to the First State Bank & Trust Company of Hammond, where plaintiff received credit for the amount of the draft.

The Columbia Box Factory, the drawee, not long after went into the hands of a receiver, the bank was unable to' collect the draft, and brought suit for its collection against Smoot & Company, defendant herein. The demand of the bank in that suit was rejected. The amount of the draft was charged back by the bank to the account of plaintiff herein, which has instituted this suit against Smoot & Company for $399.33, the amount' of the draft.

The bank in its suit against the Smoot Company made special reservation of its rights against plaintiff company which had no connection with the suit of the bank against Smoot, and which cannot be affected by the judgment therein rendered. This suit must therefore be decided on the contested issues between plaintiff and defendant herein.

In its petition after giving the history of the transaction upon which its demand is grounded, plaintiff alleges that upon learning that the draft had not been paid by the Columbia Box Factory, it' notified J. E. Smoot & Company of the fact, and that under date of^March 7, 1921, said company acknowledged the indebtedness in writing, promised to pay it, if given ample time, and without any legal action on the part of the petitioner.

The question as to whether the debt was acknowledged depends for its solution on the proper construction of a letter of plaintiff to defendant of March 4, 1921. The letter of plaintiff to defendant of March 4th is as folldws:

“We have just been advised by First State Bank and Trust Company they have been forced to turn item of $399 and few cents over to their attorney for collection. This paper you sent us as part payment on amount due this company and the same was discounted to them. We regret to note that they are taking such action and thought you would appreciate having the matter brought to your attention giving you opportunity of forwarding voucher covering, making it unnecessary that the matter should be carried further and judgment rendered against your good company.”

The defendant’s answer to that letter is as follows in the letter of March 7, 1921:

“We acknowledge receipt of yours of March 4th in reference to the First State Bank & Trust Company matter.
“We were very much surprised ourselves to learn that these people had taken this action, as we think was entirely uncalled for. This paper was due on December 27th, and the first we knew of same not having been paid was when we received a letter from the bank about the middle of January. In the meantime this concern had gone into the hands of a receiver owing us $1200.00 or $1500.00 besides this amount. Had we known that this paper had not been paid as we should have, we not only might have been able to protect ourselves on this item, but also the rest of the account, and we think the bank has been very negligent in this matter. We are not attempting to saddle our bad luck on your company, but feel that under the circumstances we should be given ample time to take care of this matter without any legal action on your part, as through your or the bank’s inattention to the matter, puts you partly to blame.
“Please let us hear from you, and we will be very glad to protect you in this matter provided we can have a little time to do so.”

It is plain that defendant had always acknowledged its debt of $399 to plaintiff, as it had given its draft to plaintiff for that amount drawn on the Columbia Box Factory. It again acknowledged the debt in its letter of March 7, 1921. In that letter besides the acknowledgment', defendant says that about the middle of January it had received a letter from the bank saying that the draft had not been paid. The defendant also says in that letter that the bank has been “Very negligent in this matter,” and also states that plaintiff is also “partly to blame.” The bank was charged with negligence, and plaintiff was also blamed in part. Defendant was fully aware of what had occurred, and in spite of it's complaints, says “but feel that under the circumstances we should be given ample time to take care of this matter without any legal action on your part.” In the concluding lines of the letter, defendant says: “Please let us hear from you and we will be very glad to protect you in this matter, provided we can have a little time to do so.”

Evidently defendant' was asking for time to settle the debt. It is true it did not use the words to settle or pay, but the letter would be without meaning if that' were not what was meant by the language used in the letter.

The waiver of any defense against the payment of the debt if not expressed, was certainly implied under the terms of that letter. Plaintiff is entitled to recover for the amount claimed.

It is therefore ordered, adjudged and decreed that the judgment be reversed. And it is further ordered and decreed that plaintiff have judgment against defendant in the sum of three hundred and ninety-nine and 23-100 dollars ($399.23) with legal interest thereon from October 27, 1920, until paid, with cost of court.


text:
    No. 3233
    Second Circuit
    KERR v. PIMA PETROLEUM CO., INC.
    (June 28, 1928. Opinion and Decree.)
    (July 14, 1928. Rehearing Refused.)

      (Syllabus 6y the Court)

    1. Louisiana Digest — Appeal—Par. 429,435, 437, 572, 729.
    Appellate courts can only decide cases on the record as made uip in the trial court, and will not remand a case to the trial court that new issues may be raised and evidence introduced thereon.
    Code of Practice, Article 895.
    Appeal from the Eighth Judicial District Court, Parish of LaSalle. Hon. F. E. Jones, Judge.
    Action by D. W. Kerr against Pima Petroleum Company, Inc.
    There was judgment for plaintiff and defendant appealed.
    Judgment amended and affirmed.
    Henagan and Gaharan, of Jena, attorneys for plaintiff, appellee.
    Thornton, Gist and Richey, of Alexandria, attorneys for defendant, appellant.
   STATEMENT OF THE CASE-

REYNOLDS, J.

Plaintiff, D. W. Kerr, sues defendant, Pima Petroleum Company, Inc., for $336.00 with legal interest thereon from judicial demand.

He alleges that he leased to defendant, on October 15, 1926, at $1.50 per day, the use of a pair of horses, a wagon and a set of harness, and delivered possession of them to defendant and that defendant used them up until November 9, 1926. He further alleges that defendant has not returned to him his property and refuses to pay him the lease price.

The defence is that if any one assuming to act for defendant leased plaintiff’s property he was without authority to do so and defendant is not responsible to plaintiff for his acts, and, in the alternative, that if any one assuming to act for defendant did lease plaintiff’s property defendant is not responsible for the value of the horses- for the reason that they were in a wire enclosure which was fastened in the usual manner and all the usual and customary precautions were taken by the persons in charge of the animals to prevent them from being stolen or straying away and that the horses disappeared from the enclosure without fault on defendant’s part.

On these issues the case was tried and there was judgment in favor of the plaintiff against defendant for the sum of $102.50 with legal interest thereon from the date of the judgment, and defendant appealed. Plaintiff did not appeal nor has he answered the appeal.

Defendant has filed in this court a motion that the case be remanded to the District Court to enable it to prove that since the trial it had duly tendered defendant his wagon and he had refused to receive it. This in the event the court should be of opinion that some one authorized to bind it had leased plaintiff’s property from him.

OPINION

We find in the record a written opinion by the District- Judge from which we learn that he was of the opinion that defendant was not responsible for the disappearance of the horses and rejected plaintiff’s demand against it for their value; that the person who leased plaintiff’s property from him had authority to bind defendant in the premises and that the wagon, was worth $40.00 and the harness from $20.00 to $25.00; and that defendant had had the use of plaintiff’s horses for twenty-five days for which it owed him $1.50 a day or $37.50.

Plaintiff not having appealed from the judgment nor answered defendant’s appeal the judgment cannot be altered in his favor.

The evidence clearly establishes that one Wayne Y. Muse was “production foreman” on defendant’s leased land and that he hired the horses, wagon and harness from plaintiff at the price of $1.50 a day and that he kept them on defendant’s leased land and used them in defendant’s business from October 15, 1926, to November 9, 1926, or twenty-five days, during .which time the horses were fed, watered and otherwise cared for by defendant’s employees.

The only evidence in the record as to the value of the harness and wagon is the testimony of .plaintiff himself who said;

“Q. What is the value of it (the wagon) ? -
“A. I don’t know.
“Q. At that time?
“A. I guess it was worth $35.00 or $40.00.
“Q. What was the harness worth?
“A. I guess about $20.00.”

Under plaintiff’s own testimony we think he is only entitled to recover the minimum value which he puts upon his property, and that he is entitled to only $35.00 for the wagon and $20.00 for the harness, or $55.00 for both. To which must be added $37.50, rent for the use of the horses, wagon and harness for twenty-five days at $1.50 a day. Accordingly the amount allowed plaintiff in the court below must be reduced to $92.50.

In the motion filed in this court defendant alleges that since the trial in the District Court it tendered plaintiff his wagon and that he refused to receive it, and defendant asks that in event the court should be of opinion that the person who assumed to lease plaintiff’s property for it had authority to do so, that the case be remanded to the court below to enable it to prove the tender and refusal.

The evidence shows that when plaintiff brought his suit defendant was in possession of the wagon. Instead of tendering it to plaintiff and alleging and proving the fact it elected to deny that it had leased plaintiff’s property from him. Thereafter it was too late for defendant to change the issues.

It is therefore ordered, adjudged and decreed that the judgment appealed from be amended by reducing the amount awarded plaintiff from $102.50 to $92.50, and that as thus amended it Is affirmed. Defendant to pay the costs in the lower court. Plaintiff to pay the costs of this court.


text:
    No. 3195
    Second Circuit
    JACKSON v. DIXON
    (June 28, 1928. Opinion and Decree.)
    (July 14, 1928. Rehearing Refused.)

      (Syllabus by the Editor)
    1. Louisiana Digest — Evidence—Par. 342, 349, 352.
    Evidence of two witnesses not sufficient to show that plaintiff in former suit had sworn falsely where circumstances show witnesses merely testified as to their conclusions from their understanding of the issues.
    2. Louisiana Digest — Injunction—Par. 97.
    Where injunction is dissolved no attorney’s fees will be allowed if there was no motion to dissolve filed.
    Appeal from the Fourth Judicial District Court, Parish of Ouachita. Hon. J. T. Shell, Judge.
    Action by Aaron Jackson against Mike Dixon.
    There was judgment for defendant and plaintiff appealed.
    Judgment affirmed.
    Robert H. Hope, of Monroe, attorney for plaintiff, appellant.
    Dawkins and Dawkins, of Monroe, attorneys for defendant, appellee.
   WEBB, J.

The plaintiff, Aaron Jackson, brought this action to annul a judgment which the defendant, Mike Dixon, had obtained against him, and obtained an injunction restraining, the sale of property seized on execution under the judgment, and the plaintiff, appeals from a judgment rejecting his demands and dissolving the injunction with statutory damages and attorney’s fees.

The action in which the judgment attacked was rendered -appears to have been based upon a claim for services of Dixon in caring for stock on a plantation leased by Jackson from J. D. McGee in which it appeared that Dixon, who was a cropper or laborer, had formerly rendered like services for McGee and had a contract with McGee to continue such services which was in existence at the time of the lease to Jackson, and the case turned upon whether or not Jackson had taken over the contract with Dixon, and the evidence offered by plaintiff to impeach the judgment was the testimony of three women living on the plantation or neighboring property who appear to have anticipated presents from Dixon when he collected the judgment, and of admissions made by Dixon in a conversation in which the trial and presents were discussed.

The witnesses, in substance, said, that Dixon had in such conversation admitted that he had sworn falsely on the trial; that he had said his contract was with McGee and that he did not have a contract with Jackson; and conceding that there was a conversation between Dixon and the 'witnesses, we are impressed from our reading of our testimony that the women testified as to their conclusions from their understanding of the issues presented on the trial, as explained to them by Dixon, and without regard to the denial of Dixon that he had made the statements attributed to him by the witnesses, we are of the opinion that the testimony was not sufficient to show that Dixon had admitted that he testified falsely as to any issue presented on the trial, and there is not any other evidence in the record indicating that Dixon had sworn falsely. The judgment rejecting plaintiff’s demands was correct.

The plaintiff complains of the allowance of attorney’s fees on the ground that there was not any motion made to dissolve the injunction and the injunction being dissolved on the merits there could not be any allowance for such fees, citing Albert Hansen Lumber Co. vs. Mestayer, 130 La. 688, 58 So. 571; Three Rivers Oil Co. vs. Laurence, 153 La. 224, 95 So. 652; and Evasovich vs. Cognevich, 159 La. 1035, 106 So. 556, in which latter case it was said that such fees are not allowed where the injunction has been dissolved as the result of the trial on the merits, which rule is applicable where there was not any motion to dissolve, although the dissolution of the injunction necessarily involved the merits.

The judgment appealed from is therefore amended, so as to strike therefrom the allowance for attorney’s fees, and as amended it is affirmed.