author: ELLIOTT, J. LECHE, J. MOUTON, J.

text:
    No.-
    First Circuit
    HOLMES & BARNES v. SHAWNEE MILLING CO. BANK OF TOPEKA, Intervenor.
    (Dec. 7, 1926. Opinion and Decree.)

      (Syllabus by the Editor.)

    (ON REHEARING.)
    1. Louisiana Digest — Banks and Banking —Par. 68.
    A bank which credits the amount of the draft to the depositor and permits him immediately to draw against it becomes the owner of the draft and bill of lading attached by implication, although the bank reserves the right . to charge back the amount in case the draft is not paid.
    2. Louisiana Digest — Banks and Banking —Par. 68.
    The deposit slip used by a bank on which there is a printed statement that the bank receiving the check or draft “acts only as agent, etc.”, yields to and is governed by the proved intention of the parties that the bank, in effect, purchased the draft with bill of lading attached by allowing the depositor to draw the face value of the draft.
    3. Louisiana Digest — Bills and Notes— Par. 117.
    Where the drawer and payee of a bank deal with each other in Kansas, the right of the payee is fixed by the law of that state even though enforcible in Louisiana courts.
    4. Louisiana Digest — Evidence—Par. 44.
    The law of Kansas applicable to a suit in. Louisiana courts when not proven will be presumed the same as in Louisiana.
    5. Louisiana Digest — Bills and Notes— Par. 138.
    In view of Articles 1916, 2439, 2456 and 2481 of the Civil Code, the delivery of a draft with bill of lading attached to a bank with the consent of the party with whom it was obtained and paid for by the bank crediting the amount of the draft has all the essentials of a sale.
    Appeal from Parish of East Baton Rouge. Hon. Wm. Carruth Jones, Judge.
    Action by Holmes & Barnes against Shawnee Milling Co. and Bank of Topeka, intervenor.
    There was judgment for plaintiff and intervenor appealed.
    Judgment affirmed, but on rehearing former judgment set aside and judgment' reserved and rendered in favor of intervenor.
    Taylor, Porter, Loret & Brooks, of Baton Rouge, attorneys for plaintiff, appellee.
    Laycock, Borron & Laycock, attorneys for intervenor, appellant.
   ON REHEARING.

ELLIOTT, J.

Our former opinion and decree, concerning the rights of Holmes & Barnes, Ltd., seeking to enforce the payment of a debt due them by Shawnee Milling Co., by attaching the proceeds of a draft drawn by Shawnee Milling Co. upon them, in favor of Bank of Topeka, has not changed. Their right is fixed by that' of Shawnee Milling Co., it is no greater than that of their debtor.

We also contend, in our former opinion, that the alleged error in the draft has not been established. It was drawn by P. E. Tally, bookkeeper for Shawnee Milling Co., and can not be reformed for error, even if such existed on the part of the payee, if there was none on part of the drawer.

But we have come to the conclusion, after re-examination of the law and the evidence op the subject, that Bank of Topeka was the owner and possessor of the draft at the time it was paid as the result of a previous purchase and delivery made at Topeka, Kansas.

H. D. Wolf, cashier, and H. W. Bowman, Jr., teller of Bank of Topeka, both testify that their bank purchased the draft and bill of lading attached. Mr. Tally, bookkeeper of Shawnee. Milling Co., does not say whether the draft was purchased or not, he states what was done and leaves it for the courts to decide whether or not a purchase resulted. The testimony of Mr. Wolf and of Mr. Bowman is supported by tbe deposit slip, showing how the draft ■vvas received in their bank, and the general course of dealing on the part' of Bank of Topeka and Shawnee Milling Co. and their relative situations, as regards each other at the time. The deposit slip, which includes the ’ draft in question, shows that Shawnee Milling Co. deposited it' in Bank of Topeka as cash. The word “cash” is not used on the deiposit slip, but that was the effect immediately given to and received as a result of what was done. The evidence shows that Shawnee Milling Co. received the equivalent of cash, on the day the deposit was made, by means of checks which it drew ’against the deposit and which were paid.

The draft says on its face “for collection”, and at the bottom of the deposit slip, the following appears in print “checks lost in. transit or on which payment is refused, will be ’charged back to depositor’s account, this bank acting only as agent and assuming no r’esponsibility beyond due diligence on its part”. These words in the draft and printed statement on the deposit slip is the main ground, supporting the claim of Holmes & Barnes, Ltd., that the draft when paid was the property of Shawnee Milling Co.; but we have come to the conclusion that these words in the draft and the printed statement on the deposit slip are not the controlling factors in the matter of ownership and possession at the time the draft was paid. The draft was also endorsed by Bank of Topeka for collection, but that form of endorsement was necessary, on account of the form in which the draft had been drawn. As for' the printed statement on the deposit slip, that the bank receiving the check “acts only as agent, etc.”, that yields to and is governed by the proved intent of the parties to the contrary at the time the slip was made, showing that the parties to the slip, did. in effect and in fact, intend and perfect at the time, a sale and delivery of the draft and bill of lading attached. The evidence shows that the draft was drawn and taken with bill of lading attached, to Bank of Topeka, for the purpose of having it cashed and the proceeds credited to Shawnee Milling Co., to the end, that the credit might be drawn out that day. P. E. Tally, bookkeeper for Shawnee Milling Co., testified that he did not know what arrangements, if any, had been made on the subject; but that Bank of Topeka, credited Shawnee Milling Co. with the draft, along with other drafts,’ and that the credit thus created was used as a checking account. That Bank of Topeka charged Shawnee Milling Co. interest and exchange on credits thus given, until the drafts were actually paid. That this draft was taken to Bank of Topeka for the purpose of having the proceeds credited to the account of Shawnee Milling Co., which was done. That’ the whole amount of the deposit was actually drawn out by Shawnee Milling Co. The deposit sli® bears date June 27, 1924. The account of Shawnee Milling Co., with the Bank of Topeka, on the morning of that day, shows that it was overdrawn to the extent of $12,064.67. That Shawnee Milling Co., during that day, deposited in the bank $4,910.35 which included the draft drawn on Holmes • & Barnes, Ltd., and checked out $4,511.00, which left ’the account' overdrawn to the amount of $11,654.43, and shows that the overdraft continued daily until June 30th, when it stood $13,719.42.

We think that the effect of this actual credit given and received at the time, on account of the draft, the existing and continuing overdraft and the course of dealing between the parties to the deposit slip, establishes between them a purchase of the draft and bill of lading by implication. That Shawnee Milling Co., having drawn the dr^ft for the purpose of depositing it to its credit as cash and having actually deposited it' and received cash for it, corresponding to the credit given, that it, in effect sold and delivered the draft and bill of lading attached to Bank of Topeka and divested itself of right' and title to the proceeds; vesting same in the bank.

The fact that the bank customarily charged interest on credits thus given to the drawer until the draft was actually paid, was not inconsistent with ownership and possession of the draft on part of Bank of Topeka.

The printed statement at the bottom of the deposit slip, that the check would be charged' back if it was not paid and that the bank assumed no responsibility beyond due diligence, was not inconsistent with a purchase and delivery as between Bank of Topeka and Shawnee Milling Co., drawer and payee, because if the draft had not been, paid, the Bank of Topeka would have had the right to charge it back, as a matter of law, provided there was no express agreement to the contrary. The only Louisiana case that we have found with apparent bearing on the questions in controversy is Louisiana Ice Co. vs. State National Bank. 1 McGloin 135, cited by plaintiff and relied on to show that the title of Shawnee Milling Co. was not divested by a deposit for collection; also supports the claim of Bank of Topeka, because it in effect, holds that if the depositor draws out the proceeds, he thereby makes the payee the owner and possessor of the draft for himself. The Supreme Court in Interstate Trust & Bankers Co. vs. Irwin, 138 La. 325, p. 336, 70 South. 313, referring to the contention of one of the parties said: “The defendant relies upon the .doctrine that when a bank discounts a note and credits the maker with the proceeds, the bank is not a holder for value, unless the credit is absorbed by an antecedent debt, or until it is exhausted by withdrawal.” The court did not pass on the doctrine, but speaks of it as if there was no objection to it on the part of the court.

In Burton vs. U. S., 196 U. S. 283, the syllabus reads in part:

“The deposit of checks in a bank and drawing against them by a customer, constitutes the relation of debtor and creditor, and the bank becomes the absolute owner of the checks so deposited, and not the agent of the customer to collect them. This relation is not, in the absence of any special agreement, effected by the rights of the bank against the customer and as liability therefor, in case the checks are not paid.”

In that case, according to- the report, the check did not have on its face the words “for collection” and the* proceeds were not immediately checked out, but it holds that a check deposited and checked out in due course, creates the relation of debtor and creditor and makes the bank which received the check, the absolute owner of the same and not the agent of the depositor, for the purpose of collecting the check.

In Ruling Case Law, Yol. 3, Subject, Banks, pp. 524 and 525, Section 152, the entire section must be read to get the proper , illustration which the author endeavors to give, but on account of its length we quote only a part of it as follows:

“If, on the other hand, there is a definite understanding at the time of the deposit, that such paper is deposited as cash, it is clear that the title passes to the bank. But where a check endorsed in blank is deposited without any definite understanding as to the way it is to be treated, but is credited by the bank to the depositor as cash and is so entered on the depositor’s cash book, the question frequently arises whether the title to the check passes immediately to the bank, or remains in the depositor. Prima facie, according to the weight of authority, the passing to the credit of the depositor of a check, bearing an endorsement, not indicating that it was deposited for collection, merely passes title to the bank. Still, according to the weight of authority, the rule above stated is not an absolute rule, is prima facie merely and yields to the intention of the parties, expressed or implied from the circumstances. * * * The intention of the parties as to the controlling factor may be shown in different ways and it would seem that the right accorded to the depositor, to draw upon the funds, is especially material as showing an intention that title should pass to the bank.”

Section 261, pp. 682 and 633:

“* * * Also, as we have heretofore seen, when checks or drafts are deposited by a customer and are regarded by both parties as amounting to so much cash, the title to such paper passess immediately and the relation of debtor and creditor arises. The transaction is equivalent to a purchase of the check or draft by the banker and he becomes responsible to the depositor for the amount thereof. To produce this result however, it must appear that the check or draft was received as a deposit, to be treated as cash and that such was the ihtention of both parties. If it was deposited for collection merely, it is quite plain that the bank does not take title, but merely acts as agent for collection. The property in the check or draft remains in the depositor and the relation arising from the transaction is not that of debtor and creditor, but as principal and agent.”

The subject is continued in Section 262, p. 634, and the author says that when a check or draft is credited as cash, it follows that the bank takes title to the proceeds immediately, upon crediting the check or draft as cash. The checking out amounts to a receipt of the ¡price and constitutes a purchase and delivery of the check or draft. The above language is supported by Commercial Bank of Pennsylvania vs. Armstrong, 148 U. S. 50.

Alexander vs. Birmingham Trust & Savings Bank, decided by the Supreme Court of Alabama, is cited by plaintiff as authority, that title to the draft remained in Shawnee Milling Co.; but in reality, the case supports the claim of Bank of Topeka. The report shows that it was an attachment suit, in which the attachment was maintained. The following excerpts are taken from the report, 16 A. L. R., pp. 1079, see p. 1081. "Indeed, there is no pretense that said bank became the purchaser of the draft,” etc.' And in the column opposite same page, Stone River National Bank vs. Lerman Mill Co., 9 Ala. App. 322, is cited, commencing at the bottom of the page and continuing on page 1082 as follows:

“Likewise, it appears that the deposit was conditional, as here, and it was held, that such an assumption of a conditional liability did not render the claimant bank, in fact, a purchaser of the draft, though formally, it might appear so. As pointed out in the opinion, the case would have been different, had the claimant bank actually purchased the draft, or had by agreement, credited the amount of it on a debt owed the claimant by the defendant. The deposit was conditional, with no pretense of a purchase and the mere fact that the drawer of the draft was at the time, indebted to First Naional Bank, to an amount in excess thereof, could have no material bearing on the result, in the absence of any agreement or understanding of any chedit to be given on account thereof, or any ¡pretense on the part of the bank, that credit was to be given or expected. Indeed the language used on the deposit slip, clearly indicates to the contrary. The First National Bank' therefore, was but the agent of the Fisher Company, in the collection of the draft.”

The court says in the case quoted, that the judgment would have been different if the bank and payee had actually purchased the draft, or had by agreement credited the amount of it on a debt owed the bank by the drawer.

Fourth National Bank of Montgomery vs. W. G. Bragg, decided by the Supreme Court of Virginia, II A. L. R., p. 1034, is very similar to the case we have in hand. It does not appear from the report that the draft involved in the case was deposited for collection; but it' deals with a draft deposited as cash, passed into a checking account and was immediately checked out by the drawer, before the seizure of the proceeds. It seems that a man named Covington, drew a sight' draft at Montgomery, Alabama, and with bill of lading attached, deposited same in Fourth National Bank of Montgomery, in which he had a regular checking account. The item, with others, deposited at the same time, was treated as cash and subjected to check. Covington made other deposits, checking against them, finally overdrawing his account. While this was going on, the draft proceeded on its way to the drawee, the Manchester Mills, at' Richmond Virginia, and was paid as soon as it was presented. After payment, but on the same day, W. G. Bragg attached the proceeds at Richmond, upon which Fourth National Bank of Montgomery intervened, claiming the proceeds as owner, giving rise to the very question we have in hand in the case before us. The only difference being that the draft in the Virginia case does not appear to have had on its face the words “for collection”. The court said p. 1036:

“The important question in this and in all similar cases is, whether it can be said that the draft with bill of lading attached, was taken by the bank in such a way as to constitute an assignment of and payment for the bill.”

The opinion reviews and cites many authorities. The court agreed with two Alabama decisions, cited p. 1 — 41 to the effect that — “the controlling distinction is between a deposit for collection and an unqualified and unconditional deposit' for credit and treated as cash. In one, the title remains in the depositor, in the other it [passes to the bank.” The syllabus, page 1034, reads in part:

“A bank which credits the amount of a draft to the depositor and permits him immediately, to 'draw against it becomes the owner of the draft and the bill of lading attached to it, although it reserves the right to charge back the amount in case the draft is not paid.”

“When a bank takes an assignment of a bill of lading and pays the accompanying draft of the shipper for the value of the goods, the bank becomes a bona fide holder and no attachable interest in the goods or proceeds remains in the shipper.” * * *

“The contract arising from the deposit of a draft in a bank, with the understanding that it may be checked, against and charged back, if not paid, is to be construed by the law of the state, where the bank depositor resides and the draft was drawn, and not by that of the state of the drawee."

According to these Virginia and Alabama cases, the Shawnee Milling Co. draft, in favor of Bank of Topeka, though drawn for collection, having been immediately credited to Shawnee Milling Co. as cash, and the proceeds checked out before the draft was paid by Bank of Baton Rouge, the checking account of Shawnee Milling Co. being overdrawn at the time and continuing to be so, because the property of Bank of Topeka, as soon as it was received; the act of the parties, amounting to a purchase of the draft by implication.

Old National Bank of Spokane vs. Gibson, decided by the Supreme Court of Washington, 6 A. L. R. page 247, is a case almost parallel with the case we now have in hand. In that case E. J. Gibson drew a draft against his account in Fidelity National Bank in favor of J. A. White, a customer of the Old National Bank. White deposited it in Old National Bank for collection, but the deposit slip showed that White received immediate credit for it as cash. White checked out the proceeds immediately. When the draft reached Fidelity National Bank on which it was drawn, (payment was refused; Gibson having stopped payment. Old National Bank then brought suit against Gibson to recover the amount, alleging that it had purchased the draft, upon which the questions' we have in hand in this case were considered and decided by the court. The court says, pages 248 and 249:

“The contention is that * * *, White having received from the Old National Bank, the full amount of his balance, in reliance upon, the check now in suit, then on deposit with it, the relation of principal and agent which had theretofore existed between White and the appellant bank, was terminated; that upon making such payment it ceased to hold the check for collection and became a holder in due course under the statute. The question then to be determined is whether having originally received the check as agent for collection, the bank, by honoring White’s cheeks to an amount which entirely exhausted his balance, including the deposited check, thereby became a holder for value.”

The court decided that Old National Bank hecamse the owner and holder of the draft for value. Four of the nine justices of the court dissented, but the author of A. L. R. says the majority opinion is in line with the preponderance and prevailing authority in the United States on the subject.

According to the majority opinion, if a bank takes a check or sight draft from a customer, nominally for collection, and gives the customer immediate credit for it as cash, and the customer checks out the entire amount before the payment of the check is stopped, the bank will be regarded as a purchaser qf the draft in due course and for value, as the result of an implied agreement to that effect, with right to compel the drawer to pay it, even though there was no consideration, as between the drawer and the drawee and though the bank could have, as a matter of law, charged the draft back against the drawer if his account had' been sufficient for the purpose.

Charles D. Scott vs. W. H. McIntyre Co., City National Bank of Auburn, interpleader, decided by the Supreme Court of Kansas, L. R. A. 1915-D, extensively quoted in intervenor’s brief, is also almost exactly like the case we have in hand. The syllabus reads in part:

“Where a draft, with bill of lading attached, is delivered to the bank in whose favor it is drawn, which forwards it to a correspondent for collection, and gives immediate credit to the depositor, the proceeds while in the hands of the correspondent bank, are to be regarded as belonging to the payee named in the draft, as against a creditor of the depositor who attempts to reach them by garnishment, after the account as increased by the deposit has been overdrawn, and this notwithstanding the practice of the first named bank, to charge its depositor interest on such items from the time of giving credit, until the proceeds are actually received and to charge back the amount in the event of non-payment and notwithstanding that a serial number was placed on the draft by the original bank, in sending it out for collection and that a witness testified to a general practice of bankers to place such numbers on items received for collection, but not upon those received as cash.”

In that case it appears that' W. H. McIntyre Co. drew a draft with bill of lading attached on Scott, in favor of City National Bank of Auburn. The draft was drawn for collection, but was deposited in Bank of Topeka as cash. McIntyre Co. received immediate credit and checked the credit out, their account being overdrawn at the time and continued to be for some time thereafter. Scott, a creditor of McIntyre Co., paid the draft to Bank of' Topeka and then immediately seized the proceeds in the hands of Bank of Topeka, upon which Bank of Auhurn, Indiana, intervened, claiming the proceeds. The case involved the right to charge interest on the credit until the draft was paid and the right to charge it back, if it was not paid. The Kansas court, citing authorities, held that the Bank of Auburn was the owner and possessor of the draft, the result of a purchase by implication, the consent' • of McIntyre Co. to sell and that of Bank of Auburn to buy, being shown by the deposit as cash, accompanied by possession and the immediate receipt of the price by checking it out.

In the case we have in hand, the ownership of the draft and bill of lading and the delivery of the same, results from the understanding and dealings between Bank of Topeka and Shawnee Milling Co. in Kansas. The proceeds of the draft, answering to the deposit and credit given, were checked out on the day the same was received. The drawer and payee having dealt with each other in Kansas, the rights of the payee are fixed by the law of that state. Civil Code of Louisiana, Art. 10. The law of Kansas not having been proven, will be presumed to like our own. The deposit slip in this case, shows that the draft' in question was deposited by Shawnee Milling Co. in Bank of Topeka as cash on June 27, 1924, and was checked out the same day. According to our law on the subject, Act 64 of 1904, Sections 25 and 26, Bank of Topeka gave value for the draft. Under Section 52, clause 3 and 4, it was a holder in due course.

The proposition as well as the assent to a, contract', may be express or implied. Civil Code, Art. 1811. To receive goods from a merchant without an express promise and to use them, implies a contract to pay the value, creates a sale by implication, Civil Code, Art. 1816. All of the essential element's of a sale, exist in this case, Civil Code, Arts. 2439 and 2456. The delivery of a draft may take place' by the use made of it by the party receiving it, with the consent of the party from whom it was obtained, Civil Code, Art. 2481.

As between the Shawnee Milling Co. and Bank of Topeka, if Shawnee Milling Co. had vested in Bank of Topeka all their right, title and interest in and to the draft at Topeka and before it reached the drawee at Baton Rouge, and we now hold that they had done so, it follows that Holmes & Barnes, Ltd., have no right to take the proceeds from Bank of Topeka and have same applied to the payment of the amount due it by its said debtor.

The decree of this court heretofore entered in this case is now set aside; the judgment appealed from is annulled, avoided and reversed and judgment rendered in favor of Bank of Topeka, intervenor, as prayed for in its petition. It is further ordered that the sheriff of the Parish of East Baton Rouge and Louisiana National Bank of Baton Rouge, restore the proceeds of the draft in question to Bank of Topeka and that the plaintiff Holmes & Barnes, Ltd., pay the -cost in both courts.

LECHE, J.

Concurring.

In my opinion, the only question in this case is one of fact, and that is, did the money seized by Holmes & Barnes belong at the time of the seizure to the Shawnee Milling Co., defendant, or to the Bank of Topeka, the intervenor?

That fact can only be ascertained by seeking from the other facts in the ’ record, what the real intention of the Shawnee Milling Co. and of the Bank of Topeka, was, at the time the draft was deposited by the former with the latter.

Admitting, if there is any doubt about it, that the draft when drawn, was to be deposited for collection, as stated on its face, the fact nevertheless appears that it was the cusom of the milling company as soon as it deposited such a draft and before the draft was collected, to draw checks on the Bank of Topeka in anticipation of the collection of the draft, and that the Bank of Topeka on receiving such draft would credit the amount thereof to the milling company, subject to the "condition that the milling company would pay collection charges and interest to the time of collection, and that if such draft was uncollected, it should be charged back to the milling company. On the other hand, if such draft was paid, interest charges would then stop and the proceeds become the property of the bank, and that is precisely what took place in this case.

Although the Bank of Topeka may have had possession and custody merely as pledgee or as conditional owner of the draft for the money it advanced on it to the milling company up to the time of collection, yet when the draft was paid, the proceeds belonged in full ownership to the Bank of T'opeka. In my opinion that was .the real intention of the parties, and that intention should be recognized and carried out.

MOUTON, J.

Dissenting.

Defendant, the Shawnee Milling Co., drew a sight draft on Holmes & Barnes, Ltd., for one thousand seventy-five dollars, (payable to the order of the Bank of Topeka. After stating, pay to the order Of the Bank of Topeka, the draft reads “for collection”.

Holmes & Barnes paid the draft to the National Bank of Baton Rouge to which it had been sent for collection by the Bank of Topeka. The amount of one thousand and seventy-five dollars collected on the draft by the Bank of Baton Rouge, was garnisheed by Holmes & Barnes, payee, under a judgment it had obtained against the Shawnee Milling Co., for flour, the latter had failed to deliver to Holmes & Barnes.

The Bank of Topeka intervened in the garnishment proceedings, claiming to be the owner of the one thousand and seventy-five dollars which had been attached in the hands of the National Bank of Baton Rouge by Holmes & Barnes under the judgment it had obtained against the Shawnee Milling Co. The Bank of Topeka, intervenor, is claiming this sum of one thousand and seventy-five dollars, proceeds realized on the draft, as purchaser of the draft from the Shawnee Milling Co. The burden of proof is therefore on the Bank of Topeka to show that it acquired title to the draft, as owner, by sale, exchange, or other contract transmissive of title. In order that we may properly determine what was the nature of the contract between the milling company and the Bank of T'opeka it is necessary for us to ascertain from the facts and circumstances of the case what was the intention of the parties in entering into the agreement in reference to the draft in question, or as to whether or not after the contract had been entered into, it was negative, altered or modified by a subsequent understanding passing title to the Bank of Topeka..

The proof shows that the Shawnee Milling Co. was a regular customer of the Bank of Topeka and had been dealing with it for quite a while. The fact is that the Shawnee Milling Co. had a large” overdrawn account with the bank. The bookkeeper of the Shawnee Milling Co., Mr. Tally, was the party who deposited the draft in question with the Bank of Topeka. He says, it was credited by the bank to the account of the milling company. He says, on cross-examination, that all such drafts were deposited to the account of his company, and that in such cases, he drew checks in favor of the bank in which he included the amount due the bank for collection and interest. He testified also that the draft in question was handled by the bank as similar drafts had been previously handled by it. He explains that the proceeds of the drafts he deposited, on all occasions, were credited to the account of the Shawnee Milling Co.; that this account was used as a checking account against which the milling company drew its checks. The foregoing testimony shows that the bank had established a running account with the milling company and which the record shows had been largely overdrawn. There is no proof whatsoever to indicate in the instant case that the bank was acquiring the draft as a purchaser. The testimony does not support this contention. The draft was simply turned over to the bank by the milling company in the usual course of dealing which had been established between them. The cashier of the bank says that the words “for collection” which appear on the face of the draft were inadvertently left there in the printed blank. He says, these words are sometimes striken out, but that in this instance they were not. If a special agreement had been made in this case by which the bank had acquired the note as purchaser or otherwise, it occurs to us that the words referred to would have been, erased or striken out of the draft.

The cashier of the bank testifies that the amount of the draft was credited to the account of the Shawnee Milling Co. The tellers of the bank testify practically to the same effect. The bank contends that by thus crediting the amount of the draft to the account of the Shawnee Milling Co., it became the purchaser of the draft and was entitled to the ownership of its proceeds. The cashier explains that the credit was given the milling company in the usual course of the banking business by deposit slip, in which appears the deposit of one thousand seventy-five dollars, the amount of the draft, and which was credited to the account of the milling company. We find, however, at the foot of the deposit slip, in print, the significant words following: “Checks lost in transit, or on which payment is refused, will be charged back to the depositor’s account, this bank acting only as agent and assuming no responsibility beyond due diligence on its part.” It may be that the words “for collection”, which appear in the draft were inadverently left there as explained by the cashier, but the language used in the foot note of the deposit slip is clear and leaves no doubt but that the bank in accepting the draft was acting as agent, only. It is impossible, unless we do violence to this language, to say that the bank was acting as a purchaser of the draft when it applied the deposit to the credit of the Shawnee Milling Co. At the time this deposit was so applied it is unquestionably true that the Shawnee Milling Co. was then the owner unless we eviscerate from the deposit' slip the emphatic declaration that the bank was acting as agent only, and did not assume any other responsibility in handling the draft. Not only this, but we would also have to accept the explanation of the cashier of the bank that the words “for colleteion” found in the draft had been left there inadvertently. The proof is that the Shawnee Milling Co., subsequent to the deposit and the application thereof to the credit of the milling company on the books of the bank, drew for an amount in excess of the deposit. If the bank had not placed the restrictions as to its handling of the draft above pointed out, the fact that it had honored the check of the milling company to the amount of the deposit or in excess thereof, it might upon that fact be contended by intervenor that the bank had acquired the check for value, thus establishing its title thereto as owner. Even, if the bank had merely reserved the right of charging to the account of the depositor the amount of the draft in case of its loss or refusal of payment, counsel for mover might with show of authority under some of the decisions cited by him, claim that the bank had parted with its money to the amount of the draft in favor of the milling company and was therefore a holder for value. There would be in such a situation, legal ground for that contention.

In the instant case, however, the restrictions go.further as we find in the draft in question the words “for collection”; also in the deposit slip the reservation of the right of the bank to charge back to the account of the milling company the amount of the deposit in the event of the loss of the draft or its payment refused, and we must also bear in mind that we have in this case in addition thereto this significant condition, namely, “this bank is acting only as agent and is assuming no responsibility beyond due diligence on its part”. It is stated there, clearly, beyond cavil or question, that the bank was acting as agent, only. At that time the deposit had been received and had been applied to the credit of the Shawnee Milling Co., still the bank proceeds to say we are acting in this transaction only in the capacity of agent. Not satisfied with this clear declaration, the bank says further in its reservation, we assume no responsibility beyond due diligence. Obviously, there is not the slightest claim to ownership in such language as this. What is the meaning of the words “no responsibility beyond due diligence on the part of the bank”. Evidently, diligence in the bollection of a draft as agent, for it is impossible to believe that such an expression as this would have been employed by the bank, if it' had considered itself as owner, or vested with title to the draft.

The evidence shows that the Shawnee Milling Co., after making the deposit, continued to draw on the bank, .and that in these drawings the amount of the draft was included. As a matter of fact, the record shows, that the overdrawn account of the milling company with the bank continued to increase as time wore on. As explained by the .cashier, the various deposits made by the milling company were used as a cheek account by that company. The bank simply honored its checks when they were drawn against this account' without requiring that the checks should be applied to any specific deposit. In this case it is certain that there was no special understanding that the milling company would draw against the deposit made to its credit for the draft in question as an amount the bank had paid to acquire title as a purchaser or otherwise. The record, therefore, lacks proof that it was the intention of the milling company to sell or to part with its ownership in the draft or that the bank intended to acquire title thereo. It is universally recognized as an elementary principle that in all contracts, in those of sales, exchange, or pledge as well, the intention of the parties is the dominant, determining and controlling factor. There was no intention to sell here on the part of the milling company and no- intention to buy by the bank, and there is no proof to show that by any agreement or understanding subsequent to the original contract as hereinabove explained, that the relations between the parties were changed or modified so as to operate a transfer of title to the bank.

Counsel for mover contends that the bank is entitled to the proceeds of the draft as pledgee. In its petition the bank claims these proceeds as owner, only. There is no proof whatsoever to indicate in the slightest that the draft had been pledged to the bank by the milling company. In the absence of either averment or proof in the record that the parties ever intended to enter into a contract of pledge, we find no grounds to support the contention of the bank in that respect.

Holmes & Barnes, plaintiff, complains that in our original opinion we modified the judgment appealed from by disallowing attorney’s fees which had been decreed below against the defendant. In this respect complainant is correct as defendant did not appeal nor file an answer to the appeal asking the disallowance of attorney’s fees. That part of our decree disallowing this item should therefore be set aside.

For the foregoing reasons, I hereby dissent and am of the opinion that the original judgment should be reinstated with the exception of the item set aside as above decreed.


source: Caselaw Access Project

author: CLAIBORNE, J.

license: Public Domain

text:
    No. 10,664
    Orleans
    CITIZENS DISCOUNT & INVESTMENT CO. v. BRENNAN, ET AL., Appellants
    (Jan. 17, 1927. Opinion and Decree.)

      (Syllabus by the Court)

    1. Louisiana Digest — Bills and Notes— Par. 184, 186.
    The holder of a negotiable note may sue upon it and collect it, and a payment to him will discharge the maker.
    2. Louisiana Digest — Usury—Par. 19, 23.
    The holder of a note has the right to collect the whole amount of the note notwithstanding such note does include a greater rate of interest than eight per cent per annum, provided such note does not bear more than eight per cent per annum interest after maturity until paid.
    3. Louisiana Digest — Appeal—Par. 512; Costs and Fees — Par. 59.
    Damages for frivolous appeal will not be allowed when the judgment bears eight per cent interest and twenty per cent attorney’s fees.
    Appeal from First City Court. Hon. W. Alex Bahns, Judge.
    Action by Citizens Discount & Investment Company aaginst D. E. Brennan, et al.

      There was judgment for plaintiff and defendants appealed.
    Ed J. Marx, of New Orleans, attorney for plaintiff, appellee.
    S. J. Tennant, Jr., of New Orleans, attorney for defendants, appellants.
   CLAIBORNE, J.

This is a suit upon a promissory note of $200. The defense is “that on November 24, 1925, they (the defendants) did borrow from the plaintiff the sum of $180, for which they gave a note in the sum of $200, the other $20 • being interest or discount charge made by petitioner; that the note itself is a mere evidence of the loan and that under the law, this interest or discount, being in excess of eight per cent per annum is a usurious rate of interest and your defendants cannot and should not be obliged to make payment therefor”.

There was judgment in favor of plaintiff and against the defendants for the whole amount claimed and they have appealed.

The plaintiff and appellee prayed for damages for frivolous appeal.

On the trial of the case the defendants attempted to show the amount which was given for the note and the party from whom the plaintiff bought it. On objection by the plaintiff the evidence was ruled out. 'The ruling was correct. The holder of the note was entitled to sue upon it and a payment to plaintiff would discharge the defendants. C. C. 2145 (2141); Dorr vs. Jouet, 20 La. Ann. 27; Zapata vs. Cifreo, 26 La. Ann. 87; Shaw vs. Thompson, 3 Mart. (N. S.) 392; Peyroux vs. Davis, 17 La. 479; Lapice vs. Lapice, 21 La. Ann. 229; Hewitt vs. Williams, 47 La. Ann. 746, 17 So. 269; Franek vs. Brewster, 141 La. 1031, 76 So. 187, and many others. Act 64 of 1904, p. 155, Sec. 51; 8 C. J. 593.

In the two case’s of Heyman vs. Reynolds, 12 Orl. App. 287, and Hailes vs. Hynson, id. 327, this court decided that the owner of a promissory note has the right to collect the whole amount of the note notwithstanding such note does include a greater rate of interest than eight per cent per annum, provided such note does not bear more than eight per cent per annum interest after maturity until paid. See also Giefers vs. Modica, No. 9701, O. B. 68.

The question is governed by the statutes of this state and the jurisprudence interpreting them. The authorities quoted by the defendants from our Supreme Court have been overruled by those statutes and the’ later jurisprudence. The authorities from other states are interpretations of their own laws.

Inasmuch as the judgment gives plaintiff eight per cent interest and twenty per cent attorney’s fees, we do not think that he is entitled to greater damages for a frivolous appeal.

C. P., 907; 17 A. 169; Anderson vs. Dinn, 17 La. 169; Gibson vs. Gill, 12 La. 420; McCoy’s Executors vs. Pritchard, 13 La. 429; Worsley vs. Barrett, et al., 14 La. 347; Wilds & Co. vs. Barrett & Co., 15 La. 445; Gollain vs. Jamet, 16 La. 565; Opdyke vs. Corles, 16 La. 569; Glenn vs. Ferguson, 21 La. Ann. 386; Renshaw vs. Richards, 30 La. Ann. 400; Citizen’s Bank vs. Benachi, 38 La. Ann. 376.


author: REYNOLDS, J.

text:
    No. 2754
    Second Circuit
    SEGRIST v. INTERURBAN TRANSPORTATION CO., LTD.
    (January 28, 1927. Opinion and Decree.)

      (Syllabus by the Court)
    1. Louisiana Digest — Carriers of Passengers and Goods — Par. 15.
    Where a passenger of a public carrier by motor bus on his own initiative got out of the bus and onto the rear of of the floor of a Ford motor truck belonging to a third person employed by the carrier to tow its disabled bus to a nearby filling station, he thereby ceased to' be a passenger of the public carrier by motor bus.
    Reary vs. Railroad Co., 40 La. Ann 32, 3 So. 390.
    2. Louisiana Digest — Automobiles—Par. 7; Carriers of Passengers and Goods— Par. 52.
    Where a person gets upon the rear floor of a Ford motor truck .not intended for the carrying of passengers without the knowledge or consent of the driver of the truck and falls therefrom and is injured, his injury is the result of his own negligence which is the proximate cause thereof and bars him from recovering damages therefor. McCoy vs. Railroad Company, 136 La. 987, 68 Sol 100.
    Hogg vs. Railroad Company, 139 La. 972, 72 So. 705.
    Appeal from the Ninth Judicial District Court of Louisiana, Parish of Orleans. Hon. Leven L. Hooe, Judge.
    Action by C. P. Segrist against Interurban Transportation Company, Ltd.
    There was judgment for defendant, and plaintiff appealed.
    Judgment affirmed.
    Lamar Polk, B. T. Dawkins, of Alexandria, attorneys for plaintiff, appellant.
    Hawthorn & Stafford, of Alexandria, attorneys for defendant, appellee.
   STATEMENT OF THE CASE.

REYNOLDS, J.

Plaintiff was a passen- . ger for hire on a motor bus operated by defendant between Monroe and Alexandria.

Approximately one hundred and fifty yards from a filling station at Pollock, Louisiana, the bus stalled, and the driver got out and walked to pollock and employed the Scott Motor Company, Inc., of that place to send a Ford motor truck to the disabled bus and tow it into Pollock. This, the Scott Motor Company, Inc., did, but the Ford motor truck was unable to pull the bus and it was disconnected from the bus by the driver preparatory to returning with it to Pollock where he intended to get a tractor with which to pull , the bus into Pollock. In the meantime the plaintiff, without. the knowledge or permission of the driver of the Ford motor truck, had placed his baggage on the Ford truck and taken a seat on the floor of the truck at its rear end. When nearing the filling station at Pollock the Ford truck turned to the left and plaintiff fell off of it and was seriously injured.

Plaintiff contends that he was given permission by one of- the two persons in charge of the truck to ride on it into Pollock. Each of these persons swears positively that he did not do so.

Plaintiff has sued the Interurban Transportation Company, Inc., for damages, alleging that he received his injuries while its passenger.

Defendant denied liability on the ground that when plaintiff fell off the truck he was no ■ longer its passenger and had ceased to be under its care and protection, and alleged that plaintiff’s own negligence was the sole cause of his injuries and that this negligence barred him of the right to recover damages.

On these issues the case was tried and there was judgment in favor of defendant and (plaintiff appealed.

OPINION.

We will take up the questions in dispute in reverse order.

First, was plaintiff guilty of negligence?

At the time he got upon the floor of the Ford truck it was cloudy and beginning to rain. He is by trade a compositor and was employed by the Rapides Printing Company, and is not shown to have been an expert in riding in the dangerous position of sitting on the floor of a Ford truck at the rear end.

He testifies that one of the two persons in charge of the truck told him he might ride into Pollock on it, but each of these persons swore positively to the contrary.

Hence it follows that plaintiff’s testimony on this point is offset by that of the persons in charge of the truck and that nothing has been proved.

Besides, the burden of proof rested upon the plaintiff.

But even if it be conceded that one of the two persons in charge of the Ford truck did tell plaintiff he might ride into Pollock on the truck, that by no means gave him the right to get upon the floor of the truck at the rear end, a place not equipped for the carrying of passengers or safe to ride on, when there was on the truck a cab with a comfortable and safe seat for two persons and only one person, the driver, sat on the seat when the truck went back to Pollock.

If either of the persons in charge of the truck had given plaintiff permission to ride back to Pollock on it such .permission could only have been for him to ride on the safe and comfortable seat in the cab of the truck prepared for the safety and comfort of those whose duties required them to ride on the truck.

R. K. Bryan testified, page 77:

“Q. I believe you have stated that there was a cab to the truck?

“A. Yes, sir.

“Q. How many could sit in that?

“A. Three can sit comfortably in that.

“Q. You did not have any one up in the cab with you?

“A. No, sir.

“Q. And if you have been going to invite any one you would have asked them or invited them when you were in the cab?

“A. Yes, sir.

“Q. And as a matter of fact, you did not know anything about anybody being on the truck at all?

“A. That’s right.”

Mr. Bryan was one' of the two persons in charge of the motor truck, the other being Mr. Z. C. Tucker. They came down together on the truck to the bus from Pollock but when the truck went back to Pollock to get a tractor Mr. Tucker did not return with him and Mr. Bryan was alone on the seat in the cab of the truck.

Mr. Bryan further testified, pages 61, 62:

“Q. Mr. Bryan, when you started back to the garage — I believe you have stated that you were driving?

“A. Yes, sir.

“Q. Was any one in the cab with you?

“A. No, sir.

“Q. Was there any one, as far as you know, on the truck?

“A. No, sir.

“Q. You have heard Mr. Segrist testify that either you or Mr. Tucker invited him to go up to Pollock on the truck?

“A. Yes, sir.

“Q. What have you to say as to whether or not you extended such an in- ' vita-tion ?

“Á. I did not do it.

* * *

“Q. Now, Mr. Bryan, I believe you say that you did not invite Mr. Segrist to come on the bus?

“A. I did not.

“Q. Are you positive of that?

“A. Yes, sir.

“Q. Well, did you invite any other passenger to do that?

“A. No, sir.

“Q. Was there any general invitation extended» to any of the passengers by you or by Mr. Tucker in your presence?

“A. No, sir.

* * *

“Q. He (meaning plaintiff) might' have said something about getting on the truck and you might have forgotten it?

“A. If he did, I did not answer him.

“Q.. He might have told you that he was going to get on the truck and come to Pollock with you?

“A. I did not hear him.

“Q. Do you recall anything that he said to you?

“A. No, sir.

“Q. He might have said that, but you don't recall it?

“A. He might have said it but I did not hear it.

“Q. Would' you deny that he said it?

“A. No, sir; but I deny that I heard him say it.

“Q. You deny that you heard Mr. Segrist say to you anything with reference to getting on the truck or any of the other passengers, say anything to you about riding on the truck? You deny that?

' “A. Yes, sir'; I deny that.

“Q. Didn’t' you have some men on the truck who came from Selma to Pollock? Where they worked?

“A. No, sir.

“Q. Were they friends of yours?

“A. No, sir; there wasn’t anybody on there that I knew; if there was anybody on there tha.t I knew I did not know about it.

“Q. You say that there were no friends of yours on there?

“A. There were no friends of mine on there, and I did not know that there was any one on there.”

Mr. Z. C. Tucker testified, page 38:

“Q. Did you hear Mr. Segrist testify this morning about either you or Mr. Bryan inviting him to go on the truck?

“A. Yes, sir.

“Q. You heard him, did you? What have you to say with ■ reference to that, as to whether or not you did that?

“A. Well, I didn’t.

“Q. Now, what have you to say as to whether or not Mr. Bryan did, in your presence or hearing?

“A. He did not in my presence.”

This evidence convinces us that plaintiff got upon the Ford truck on his own initiative and without the permission or knowledge of either of the persons in charge of the truck.

Besides this, there is no evidence tending to show that the driver of the truck was negligent in driving it.

T. D. Prestridge testified, page 79:

“Q. On what part of the truck was he? (Meaning plaintiff.)

“A. On the corner of the bed, with his feet hanging — on the corner of the bed behind the cab, with his' feet hanging; and when the truck slowed up and turned this curb, this gentleman (indicating Mr. Segrist) fell off.”

Mr. Bryan, who was driving the truck from which the plaintiff fell, testified, page 63:

“Q. Did you have occasion, during that drive, to make any sudden turn of the truck?

“A. No more than just to turn off the highway.”

Under all the evidence we are convinced that plaintiff was guilty of recklessness in getting onto the Ford truck on his own initiative and without the knowledge or permission of the driver and that he fell off the truck because of his own inexperience in riding sitting on the floor of the truck in such a precarious position.

The evidence further convinces us that the truck was not being driven negligently when plaintiff fell off of it.

On the question as to whether or not the plaintiff, at the time he fell off of the truck, was still a (passenger of the Interurban Transportation Company, Inc.

When the bus stalled, plaintiff got out and left it.

He testified, pages 4, 5, 6, 7 and 8:

“Q. Well, in other words, he got it about three-quarters the way up the hill, just outside of Pollock, when the bus stopped?

“A. Yes, sir.

“Q. What happened then? Did he put on his. brake to hold it at that point, or did he back down to the bottom?

“A. The bus stopped, and I think that he applied his emergency brake, and got out of the car and slammed the door and walked up the road toward Pollock.

“Q. Did he attempt to work on the motor or attempt to get it started after it stalled on that occasion?

“A. He did not.

“Q. What, if anything, did the operator or driver of the car say to you and to the other passengers when he left and started in the direction of Pollock?

“A. He did not say a word.

“Q. Did he make any explanation at all?

“A. None at all.

“Q. Now, what time was that, approximately?

“A. Well, about 7:30.

“Q. In the morning or evening?

“A. Evening.

‘‘Q. What was the next thing that happened after the driver, or operator of the bus left the bus, and you and the other passengers were parked in the highway three-quarters .of the way up hill?

“A. Well, the passengers- — wfe all got out of the bus and were standing on the side of the road, and about half-way, or maybe a little less, a truck with two men came down, and they came down and turned around and hacked up to the bus and tied a chain around it, and one of them got on the bus and attempted to start it, hut he could not start it, and about that ime it was dark and we could not see anybody’s'face plain, so I got on the front seat.

“Q. Of what?

“A. The bus.

“Q. Well, go ahead?

“A. And the bus had no lights, and he was trying to find the buttons of the bus to put the motor on, and I had some matches and I got up there and struck some matches, and by being on the front seat and watching the operation of the driver, I knew where the buttons were and I pointed them out to him, but he could not start the bus, and we got out and all the passengers got a hold of the bus, and the truck pulled the bus about five or six feet, and then the other man, they exchanged drivers, with the truck, and he tried to pull it but he could not pull it, and then one of the other men got into the bus and he tried to start it, but he could not do it.

“Q. Now, Mr. Segrist, how many men were on this truck that came down to your assistance from Pollock?

“A. Two.

“Q. Did the driver or operator of this bus return with these two men?

“A. He did not.

“Q. Well, as a matter of fact, did the driver or operator of defendant’s bus come back to the bus at all while you were there ?

“A. No, sir.

“Q. After these two men on the Ford truck failed to move this bus, what happened?

“A. Well, I don’t know; maybe they tried; each one of them tried it each time maybe to start the bus, hut by being on the front seat there, I talked with both of them quite a bit, that is, in trying to start the bus; and after they could not start it, I said something about wanting to get to Pollock, and one of them — I don’t know which one — us I don’t know either of the drivers, I could not point out either one of them now, but one of them told me. after I mentioned about wanting to get home, or to some place from where I could get home, he said that I could ride up with him.

* * *

“Q. Now, Mr. Segrist, what was the next thing that happened or that occurred?

“A. Well, after he said that, there were cars passing there all the time and there was a good deal of confusion, and a good many of the passengers were out in the back of the bus getting their grips out of it — they did not know what they were going to do,. so I went back to the back and got a grip out and brought it up and put in on the truck and got upon the back of the truck, and when I got up there, there was at least one or two other passengers already on the truck.

“Q. Then, as I understand you, some of the other passengers and you got your grips and climbed on the truck?

“A. Yes, sir.

“Q. Why did you get in the truck, Mr. Segrist?

“A. Well, the principal reason was because one of the drivers told me I could ride with him; it was beginning to rain and thundering and lightning heavy, and I didn’t want to be left down there in the bus in the dark without any lights.

“Q. When you got in the truck — were there seats in this truck?

“A. No, sir; it was just — it looked like, as well as I could tell, a kind of homemade flat, just a flat platform on the back of the truck.”

Both of- the men who came down to the bus in the Ford truck denied that either one of them had given plaintiff permission to ride on the truck; but in any event the evidence conclusively shows that the truck on which plaintiff was riding and from which he fell was not the property of the defendant Interurban, Transportation Company, Inc., nor was it under the management or control of any of its employees.

Mr. Tucker further testified, pages 36 and 46:

“Q. What did Mr. Phine Delia tell you and Mr. Bryan that night when he came into your shop at Pollock?

“A. He told Mr. Bryan, and I heard the conversation, as I was standing near, he told us that the bus had broken down and to get a truck and go down and see if we could pull it in, and in the meantime that he would call up and try to get a bus mechanic out of Alexandria.

“Q. Now, after he made this request of you, you and Mr. Bryan got this Ford truck and went down to the bus. That is correct, is it not?

“A. Yes, sir.

“Q. Did Mr. Phine Delia accompany you and Mr. Bryan down, to the bus?

“A. No, sir; he stayed at the garage.

“Q. During the time that you and Mr. Bryan were working on the bus, in an effort to get it into Pollock, did Mr. Delia come down there at'all?

“A. No, sir; I did not see him.

“Q. Mr. Tucker, as I understand it, the Pollock Motor Company keeps that truck on hand there to go down and pull the pople into the garage whenever a truck is stalled?

“A. Yes, sir.”

Mr. Bryan testified, page 60:

“Q. How came you to go down there?

“A. This young man over here came up and asked me, asked us to come down.

“Q. Mr. Delia, the bus driver?

“A. Yes, sir.

“Q. What did you do when he requested you to do that?

“A. We went back, got our truck and went on down.

* * *

“Q. Is that something that the Scott Motor Company frequently does, bringing in people who are stalled?

“A. That’s my business; I attend to that end of the business; 'anything that has to be pulled in, or any repair work of any kind to be done in the shop.

“Q. You did for the Interurban Transportation Company what you would have done for any one else under the same circumstances?

“A. Yes, sir.”

Mr. Phine Delia, driver of the bus that was stalled, testified, page 99:

“Q. When the bus stalled, what did you do?

“A. I opened the door — 1 knew about what was the matter — and I opened the door and said to the passengers ‘I’ll go up here and call up another bus’; and in the meantime, while this rain was coming, I said something to one of the Pollock Motor Company’s employees, if he had anything to pull the bus with, that the rain was coming, and I was on the telephone talking to Mr. Walker, and these fellows .went down and tried to pull the bus, but they could not and coming back I heard that they had run over someone.

“Q. Now, who was it that took the truck and went down to where the bus was?

“A. I didn’t know who left. I talked to Mr. Bryan and I learned afterwards that Mr. Bryan and Mr. Tucker went down. I was to go with them myself, but they went on their own hook to bring it in while I was telephoning.

“Q. So, then, as I understand your direct testimony, you got out of the bus and walked to Pollock, and after you got to Pollock you asked Mr. Bryan to go down and see if he could tqw it in?

“A. I said to Mr. Bryan: ‘Have you anything that you can pull a bus in with?’ and he said: ‘Yes, I have a ton truck here, we will go down together and get it up here.’ In the meantime while I was trying to get Mr. Walker, or someone at the bus station, they went down and tried to pull it in — Mr. Bryan and Mr. Tucker — I learned afterwards.”

From all the evidence it is clear that just prior to the accident in which he was injured plaintiff was riding on a Ford truck belonging to the Scott Motor Company, Inc., and that it was being driven by and was under the control of an employee of that company and that at the time the Scott Motor Company, Inc., was performing a part of its regular duties to the public, having tried and failed to tow defendant’s bus from where it was stalled into the town of Pollock, and that the Scott Motor Company, Inc., had been employed to tow defendant’s bus into Pollock and not to transport defendant’s passengers.

It therefore follows that plaintiff, at the time of the accident to him, had, of his own accord, left defendant’s bus and taken -passage on a truck of the Scott Motor Company, Inc., without the knowledge or permission of the driver of the truck and without the knowledge or permission of the driver of defendant’s bus.

And it is therefore clear that plaintiff cannot hold defendant liable for injuries received by him in an accident at a time when he was not its passenger, nor under its protection or care.

Plaintiff’s counsej in an able and exhaustive brief has reviewed the authorities touching the liability of a public carrier to its passengers; but having found that at the time of the accident to plaintiff, plaintiff was not a passenger of or under the care or protection of defendant the authorities cited have no application in this case.

For the reasons assigned, it is therefore ordered, adjudged and decreed that the judgment appealed from be affirmed.


text:
    No. 10,169
    Orleans
    HENDRICKS, Appellant, v. MAISON BLANCHE CO.
    (January 17, 1927. Opinion and Decree.)

      (Syllabus by the Court)

    1. Louisiana Digest — Negligence—Par. 10, 11.
    It is not ordinarily the duty of an employee to assist the customer in a store in descending from a shoeshine stand in the absence of a request for assistance or of evident necessity.
    2. Louisiana Digest — Negligence—Par. 1, 10, 11.
    To maintain an action by a customer against the owner of a store for apparent defects in the building two elements must concur, viz.: fault on the part of the master, and ignorance of danger on the part of the customer.
    3. Louisiana Digest — Negligence—Par. 25.
    Negligence on the part of the customer will defeat his action.
    (Civil Code, Article 2315. Editor’s note.)
    Appeal from Civil District Court. Hon. Wm. H. Byrnes, Jr., Judge.
    Action by Mrs. M. Hendricks against Maison Blanche Company.
    There was judgment for defendant and plaintiff appealed.
    Judgment affirmed.
    Jos. H. Brewer, of New Orleans, attorney for plaintiff, appellant.
    Gordon Boswell, M. B. 'Williams, of New Orleans, attorneys for defendant, appellee.
   CLAIBORNE, J.

This is a damage suit for falling from a shoeshine stand. .

The plaintiff made the following allegations : .

That she is “above the full age of majority”; “that on March 15, 1924, she entered the department store operated, by defendant herein for the purpose of making certain purchases and that while therein she noticed a shoeshine parlor or stand being operated by the defendant herein, said shoeshine parlor or stand being open to the public; accordingly petitioner mounted the shoeshine parlor or stand which extends upwards, the seat being several feet above the ordinary floor level”.

“Your petitioner alleges that she instructed one of the employees of the defendant herein to shine her shoes and that the employee of the defendant carried out her instructions, and a little later, having been told by the employee assigned to the shining of shoes in this department that the shining of said shoes was completed, your petitioner deeming it safe to get down from said stand proceeded to do so, when suddenly and without any warning whatsoever or negligence on her part, she fell violently to the floor and sustained the following damages: * * * Your petitioner avers that the said accident was caused solely by the negligence of the defendant’s employee assigned to said shoeshine parlor or stand, first, in not aiding and assisting plaintiff from the said stand, and second, by the negligence of the defendant in not providing a more suitable and safer stand for the shining of shoes; third, that she used due care and diligence in getting off of said stand, but that in spite of her care and diligence she fell and was injured.”

She prayed for $40,375 damages.

The defendant excepted that plaintiff’s “petition does not recite, set out, or disclose a right or cause of action”.

The exception was sustained and the suit dismissed. Plaintiff appealed.

We are of the opinion that the judgment is correct. The negligence charged to the defendant is twofold:

1st. That defendant’s employee did not assist plaintiff from the stand.

There is no allegation that assistance was necessary, or customary, or that plaintiff asked it and was refused. On the contrary, the plaintiff alleged that she was “above the full age of majority”. The presumption arises that she. was able to take care of herself.

It is not ordinarily the duty of a carrier to assist a passenger in alighting in the absence of notice that he needed assistance.

“A mere general allegation that it is the duty of a conductor to assist a female passenger in alighting from a car is subject to a special demurer.” 80 S. E. 626; 2 L. R. A. Digest 1282; Hutchinson on Carriers, Sec. 1127; 10 C. J. 830.

“If, owing to physical peculiarities of the plaintiff it was unsafe for her to use the appliances (steps of a street car) which are altogether adequate for ordinary passengers, she ought to have called the attention of the employee of the defendant company to that fact and asked for assistance. It is not, in such circumstances, negligence for the employees of the company to fail to volunteer their assistance.” 71 Pa. Sup. Ct. 103; 24 N. C. C. A. 621. See also Freeman vs. N. O. Public Service Inc., 1 La. App. 600; Bass vs. I. C. Ry. Co., 4 La. App. 175.

2nd. There was no allegation that the “stand was defective in its construction”, except that it “stands several feet above the floor level,” nor that it was constructed in a manner different from or more dangerous than other stands. At any rate that danger, if it was one, was apparent, and which plaintiff, by due care, could have guarded against. The defendant was bound only to use ordinary care in furnishing the stand to its customers. Yet where employees have been injured under similar circumstances the rule is that masters are bound only to furnish them such places or appliances as are reasonably safe and are in general use. 26 Cyc. 1107; Jones vs. Jahncke Service, 3 La. App. 270.

In the case of Flynn vs. Sporl, 3 Orl. App. 441, it was so decided. The plaintiff was an employee; she slipped upon the step3 and alleged that there was a defect in their construction. The court said:

“The alleged defect was apparent and the plaintiff assumed the risk; the employer was bound to give only the reasonable safe appliances in accordance with the nature, custom, necessities of the business.”

In support of its opinion the court cited Carey vs. Selleris, 41 La. 500, 6 South. 813, in which it was said:

. “To maintain an action by a servant against a master for an injury resulting from defective buildings, premises or appliances, two elements must concur, viz.:

“Fault or knowledge on the part of the master; innocence of fault or ignorance of the danger on the part of the servant.”

“However gross the fault of the master in subjecting the servant to risk from such causes, yet when the servant knows the defects and danger and still knowingly .and without protest consents to incur the risk to which he is exposed thereby, he is deemed to assume such risk and to waive any claim for damages against the master for injury resulting therefrom.” 1 Labatt S. 274; Tillotson vs. T. & P. R. R. Co., 44 La. Ann. 95, 10 South. 450; Cooley on Torts 55; 47 N. W. 182; 139 N. Y. 369; 48 Atl. 493; Wood M. & S. S. 334; 138 Mars. 390; 72 N. Y. Supp. 67; 119 N. Y. 221; 47 Fed. 690; 170 U. S. 665.

“Where an employee is not placed by an employer in a position of undisclosed danger, but is a mature man doing the ordinary work which he was engaged to do, and whose risks are obvious to anyone, he assumes the risk of the employment, and no negligence can be imputed to an employer for an accident to- him therefrom.” Moffet vs. Krach, 106 La. 372, 31 South. 40, adopting the syllabus in Kohn vs. McNulta, 147 U. S. 238. Also Clogher vs. N. O. Ry. & Lt. Co., 143 La. 85, 78 South. 247.

In Wave vs. Evangelical Baptist Society, 181 Mass. 285, 63 N. E. 885, it was said:

“It is a matter of common observation that on entering and leaving stores, halls, railways, cars, stations and platforms, office buildings, and other buildings and places and private houses, adjoining surfaces are frequently at different levels, and the difference in level has to be overcome by one or more steps, or by some other device. The same thing happens in the interior of buildings and structures. We cannot think that such a construction is of itself defective or negligent, and where the plaintiff fell down a step or steps it would say that the accident was due, to say the least, quite as much to her own inattention as to the presence of the step.” Wiggins vs. Standard Oil Co., 141 La. 533, 75 Sopth. 232.

3rd. It is perfectly evident that it was plaintiff’s want of care or her negligence that caused the accident. This bars her from recovery. Gibbons vs. N. O. Terminal Co., 1 La. App. 371; Mercier vs. New Orleans & C. R. R. Co., 23 La. Ann. 264; Schwartz vs. Crescent City R. Co., 3d La. Ann. 15; Houston vs. Vicksburg S. & R. R. Co., 39 La. Ann. 799, 2 South. 562; Pollock vs. T. J. Sellers Co., 42 La. Ann. 623, 7 South. 786; McCarthy vs. Whitney Iron Works Co., 48 La. Ann. 97, 20 So. 171;

Williams vs. Liberty Stores, Inc., 148 La. 450, 87 South. 233.

The plaintiff has asked that this cause be remanded to enable her to file an amended petition. But this suit was filed on September 3, 1924. The defendant is entitled to his peace of mind. There must be an end to litigation. It does not appear to us that the plaintiff can make other allegations to give her a cause of action. But if she can she may make them in another suit. For these reasons the cause will not be remanded.


author: ODOM, J.

text:
    No. 2791
    Second Circuit
    STATE OF LOUISIANA EX REL. JOHN SCOTT v. RATCLIFF
    (November 6, 1926. Opinion and Decree.)
    (December 11, 1926. Rehearing Refused.)
    ON APPLICATION TO DISMISS APPEAL.

      (Syllabus by the Editor.)
    1. Louisiana Digest — Courts—Par. 164.
    An appeal to the Court of Appeal involving constitutionality of an act of the legislature will be transferred under Act 19, of 1912 to the Supreme Court which has exclusive appellate jurisdiction in such cases.
    Appeal from the First Judicial District Court of Louisiana, parish of Caddo. Hon. T. F. Bell, Judge.
    Action; by State of Louisiana ex rel. John Scott against Clem C. Ratcliff.
    There was judgment for defendant and plaintiff appealed.
    Judgment transferred to the Supreme Court.
    Herndon & Herndon, of Shreveport, attorneys for plaintiff, appellant.

      Edward Barnett, of Shreveport, attorney for defendant, appellee.
   ODOM, J.

The plaintiff, relator, owned two lots in the city of Shreveport. On May 20, 1924, his said property was sold by the city tax collector of the city of Shreveport after due advertisment for the city taxes of the year 1923 to Clem C. Ratcliff, the defendant. More than one and less than two years thereafter plaintiff tendered to defendant the amount of taxes, interest, costs and penalties and demanded that defendant accept said tender and execute a redemption deed, which tender and demand were refused by the tax purchaser.

Whereupon plaintiff, relator, brought mandamus proceedings against Ratcliff, the tax purchaser, asking that he be ordered to accept said tender and execute a redemption deed.

In answer, the tax purchaser admitted that he had purchased the lots at tax sale as alleged, and admitted the tender of the amount alleged and his refusal to execute the deed.

Defendant specifically alleged in his answer that section 15 of Act 158 of 1898, which gives the tax debtor a period of two years within which to redeem property sold for city taxes, is unconstitutional, null and void under Article 233 of the constitution of 1898, Article 233 of the constitution of 1913, and section 11 of Article X of the constitutional of 1921.

The case went to trial on the above issues and there was judgment reading as follows:

“It is ordered, adjudged and decreed that the alternative writ of mandamus herein issued be set aside and annulled, and that the relator’s demands be rejected.

“It is further ordered, adjudged and decreed that there be judgment in favor of the respondent, plaintiff in reconvention, recognizing him to be the sole and only owner of the following described property, to-wit:

“Lots numbers thirty-two and thirty-three (32) and (33) of the Ratcliff subdivision of the city of Shreveport, Louisiana, as per map recorded on the conveyance records, of the parish of Caddo, state of Louisiana, together with all the buildings and improvements thereon.

“It is further ordered, adjudged and decreed that the relator, John Scott, be enjoined and prohibited from claiming or setting up any right, title or interest in and to the said property, or any part or portion thereof.”

Plaintiff applied for and was granted an appeal to this court.

Defendant, appellee, filed in this court a motion to dismiss the appeal on the ground that this court has no jurisdiction for the reason that a law was declared unconstitutional by the lower court and under section 10 of Article VII of the constitution of 1921 the Supreme Court and not this court has appellate jurisdiction.

Section 10 of Article VII of the constitution provides that the Supreme Court shall have appellate jurisdiction in all cases wherein-—

“* * * a law of this state has been declared unconstitutional.”

A reading of the judgment in this case will disclose that the lower court did not, in specific terms, declare section 15 of Act 158 of 1898 unconstitutional, but, in his motion to dismiss, the appellee alleges that the lower court in passing on the case did in fact hold and declare section 15 of said Act unconstitutional.

Relator, in his brief in opposition to the motion to dismiss, does not dispute the fact that the lower court did so hold.

We think it did so hold, for the reason above stated and for the further reason that such a holding was necessary in order for it to reach the conclusion which it did.

In the case of State vs. Yazoo & M. Y. R. Co., 116 La. 189, (40 South. 630), the Supreme Court declined jurisdiction for the reason that it did not appear—

“* * * that the question (as to the constitutionality of the Act) has been raised in the pleadings, and that (quoting the language of the constitution) ‘a law of this state has been declared unconstitutional’.”

And the court said further—

“We cannot discover from it (that transcript) that any law of this state has been declared unconstitutional, or that such ruling was necessary to the judgment as rendered.”

Relator’s case is predicated upon the sole proposition, according to his pleadings, that he had two years in which to redeem his property. That right is given him under section 15 of Act 158 of 1898, which Act is the charter of the city of Shreveport.

The constitution provides that such redemption may be made only within one year.

The defendant specifically attacked in his pleadings the constitutionality of the Act under which plaintiff, relator, claimed the right to redeem.

Inasmuch as it is admitted that more than one year elapsed between- the date of the execution and recordation of the tax deed and the date of the tender, the court had to hold, in order to reach the conclusion that it did, that section 15 of the Act referred to is unconstitutional; because the validity of the tax sale and all proceedings with reference thereto are not challenged.

It appearing, therefore, that the lower court did in fact hold that section 15 of the Act referred to is unconstitutional, our holding is that the Supreme Court and not this court has jurisdiction.

However, the appeal should not be dismissed. Under Act 19 of 1912 the case should be transferred to the Supreme Court.

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


author: WEBB, J.

text:
    No. 2769
    Second Circuit
    MORGAN v. NELMS
    (Jan. 28, 1927. Opinion and Decree.)

      (Syllabus by the Editor.)

    1. Louisiana Digest — Master and Servant —Par. 156.
    The fact that an employee, suing for compensation under the Workmen’s Compensation Act No. 20 of 1914, as amended, furnished his own wagon and team, employed laborers to help him, and was (paid in accordance with the number of logs hauled is not incompatible with the relation of employer and employee, nor does it make him an independent contractor.
    (See Sec. 1 par. 2 (a) and Sec. 6 of Act 20 of 1914 as amended. Editor’s note.)

      2. Louisiana Digest — Master and Servant —Par. 159.
    Where the wages of an employee, suing for compensation under the Workmen’s Compensation Act 20 of 1914, as amended, were fixed by the number of logs he hauled, his compensation should be gauged by the wages earned by one employed to do the same job.
    3. Louisiana Digest — Master and Servant —Par. 159, 159 (a).
    Where an injured employee, suing for compensation under the Workmen’s Compensation Act No. 20 of 1914, as amended, is totally disabled for a period of time after which his earning capacity is reduced, he will be granted compensation as for total disability to the time when he was able to earn wages after which his compensation is granted for partial disability, the total period of compensation not exceeding 300 weeks.
    (See Sec. 8, subsection 2 (b) and '2 (c) of Act 20 of 1914, as amended by Act 85 of 1926. Editor’s note.)
    Appeal from Ninth Judicial District Court of Louisiana, Parish of Grant. Hon. R. C. Culpepper, Judge.
    Action by Jim Morgan against John L. Nelms.
    There was judgment for plaintiff and defendant appealed.
    Judgment amended and affirmed.
    Peterman Dear & Peterman, of Alexandria, attorneys for plaintiff, appellee.
    Hardin, Hardin & Cavanaugh, of Lees-ville, attorneys for defendant, appellant.
   WEBB, J.

In this action plaintiff seeks to recover judgment for compensation for injuries alleged to have been received by him while in defendant’s employ and to have resulted in permanently totally disabling him to do any work of a reasonable character.

Plaintiff was engaged in hauling logs, and while loading his wagon a log fell or rolled against him, breaking both of his legs in two places, at the ankles and three inches above the ankles.

The accident occurred on October 16, 1924; suit was filed October 2, 1925; trial had on June 1 1926; and judgment was rendered in favor of iplaintiff for compensation at the rate of $20.00 per week beginning October 16, 1924, and for a period of 300 weeks, with 5 per cent per annum interest on all past due payments, and for all costs.

Defendant appeals, and urges that the judgment should be reversed on the ground that the evidence established his defense that plaintiff was an independent contractor, and that, if it be held to the contrary, the judgment fixing the amount of the weekly payments was erroneous and should be reversed.

Considering the contention that the evidence establishes that plaintiff was an independent contractor, we find that while there was some evidence offered tending to establish that plaintiff had contracted to perform a certain specific piece of work, to haul all of the logs from a certain tract of land, that it was not established, but the evidence does show that at the time plaintiff was injured he was hauling logs for defendant under an agreement that plaintiff would furnish his own team and wagon and would receive $3.00 per thousand fee for the logs hauled, and that during the course of plaintiff’s work he had employed laborers to assist him; and the defendant having testified that he did not maintain control over plaintiff as to the manner or method in which he did the work, the defendant contends that plaintiff is thus shown to have been an independent contractor.

While the circumstances of the plaintiff’s having furnished his own team and wagon and being paid on the basis of the number of feet of logs hauled, and that he employed laborers to assist him in the work may be said to indicate that plaintiff was an independent contractor, and in some cases entitled to great weight, they are not conclusive, and when advanced in support of the defense in an action under the employers’ liability statute, they have little weight in determining the nature of the work undertaken and its relation to the parties. (Burt vs. Davis Lumber Co., 157 La. 111, 102 South. 87; Heine vs. Hill Harria & Co., Inc., 2 La. App. 384.)

. In Burt vs. Lumber Co., which was an action for compensation under the employers’ liability statute, in which the defendant pleaded that plaintiff was an independent- contractor, it was said with reference to the circumstance of the plaintiff having furnished his own team and wagon, and being paid on the basis of the amount of lumber hauled,

“Nor does the fact that the employee furnished his wagon and team alter his relations with his employer, nor does such fact put the employer in the character of an independent contractor. The circumstances of,an employee furnishing his own team or tools could be of significance or weight at most in fixing the average weekly wages,”

or, in other words, such circumstances of themselves are not incompatible with the relation of employee and employer. (Dick vs. Gravel Co., 152 La. 996, 95 South. 99; Bell vs. Lumber Co., 151 La. 824, 92 South. 350.)

In those cases, however, it did not appear that the employees, or persons furnishing the tools or outfit with which they worked and. for which work they were paid at a rate per measure, had employed other laborer's to assist them in their work, and the present case may be differentiated from the cases cited in tha.t respect.

While we think it must be conceded that where one has been engaged to do work which from its nature required him to employ laborers to assist him, such fact would be entitled to great weight in determining whether or not he was an independent contractor, we do not think that the fact that a person who has been employed to perform work has employed others to assist him necessarily indicates that he was an independent contractor.

The statute, considered restrictively, may be said to have as its object, the protection of laborers who may be injured while performing work necessary in conducting certain businesses declared by the statute to be hazardous; and where it appears that the person injured was performing such work, circumstances which ordinarily would tend to show that he was an independent contractor, would be- entitled to little consideration.

It is conceded that the work which plaintiff was doing at the time of the accident, that is, loading logs on a wagon, was such as would have entitled him to recover compensation had he been an employee of the defendant, who was engaged in the business of logging, and as it does not appear that the work undertaken by plaintiff, that is, hauling logs, necessarily required that he should employ laborers to assist him in the work, we do not think it can be said that it was in the contemplation of the parties that he would do so; and the fact of plaintiff having employed someone to cut roads in order to expedite his work, did not affect the situation.

As we view the evidence, it establishes that defendant, who was conducting the business of logging, engaged plaintiff to perform work of such nature that defendant knew that persons who were injured while doing such work were protected by the statute, and that it was understood the plaintiff would use his own team and wagon in performing the work, and that he would be paid on the basis of the work done, and that plaintiff did employ persons to assist him in expediting his work does not establish that plaintiff was an independent contractor.

As to the extent and period of plaintiff’s disability and the amount of compensation:

The evidence establishes that plaintiff has not been totally disabled to do any work of- a reasonable character. It appears, however, that he was totally disabled from the time of the accident to February, 1925, at which time he was able to ride horseback and drive cattle and earn wages.

At the time of the accident, plaintiff was hauling logs and with the use of his team was making about six or seven dollars per day, and the evidence shows that at. that time the wages of a teamster or driver was $3.25 per day.

Since the accident, [plaintiff is shown to have earned some wages in February, 1925, being paid at that time $2.00 per day for driving cattle, and at the time of the trial he was driving a school wagon, the wagon and team being furnished by him, for which he received $50.00 per month.

While the evidence does not enable us to fix, with certainty, the amount which plaintiff was earning at the date of the accident, nor the amount which he was able to earn after February, 1925, we think that the basis for determining, the amount he was earning at the time of the accident should be the amount it would have required to employ someone to drive his team and haul the logs, or $19.50 per week, and the minimum amount which plaintiff was able to earn after the period of total disability could not have been less than $5.00 per week; and we conclude that, for the period of total disability, from October 16, 1924, to February 1, 1925, the weekly compensation should be sixty-five per cent of $19.50, and thereafter sixty-five per cent of $19.50 less $5.00.

It is therefore ordered, adjudged and decreed that the judgment appealed from be amended so as to allow the plaintiff to recover compensation during the period of disability, not exceeding three hundred weeks, at the rate of $12.70 [per week from October 16, 1924, to February 1, 1925, a,nd thereafter at the rate of $9.40 per week, and that all payments shall bear interest at the rate of 5 per cent per annum from date of maturity; and that as thus amended the judgment appealed from be affirmed. Plaintiff to pay the cost of the appeal.


text:
    No. 2835
    Second Circuit
    KOLB & WIFE v. KINMAN, ET AL.
    (December 11, 1926. Opinion and Decree.)
    (January 28, 1927. Rehearing Refused.)

      (Syllabus by the Court)

    1. Louisiana Digest — -Damages—Par. 84.
    In a suit for damages the burden is on plaintiff to make out his case by com- • petént evidence.
    Jacob vs. Illinois Cent. R. R. Co., 133 La. 735, -63 South. 306.

      Appeal from the Third Judicial District Court of Louisiana, Parish of Jackson. Hon. S. D. Pearce, Judge.
    Action hy James A. Kolb and wife against J. R. Kinman, et al.
    There was judgment for defendant and plaintiffs appealed.
    Judgment affirmed.
    Dhu Thompson, of Ruston, attorney for plaintiffs, appellants.
    T. E. Price, of Ruston, attorney for defendants, appellees.
   STATEMENT OP THE CASE

REYNOLDS, J.

In this case the plaintiffs, James A. Kolb and wife, Mrs. Lillie M. Kolb, sue to recover $15,200.00 for the death of their son, Melvin J. Kolb.

They allege that their son’s death resulted from a bruise or hurt on his right hip and groin; that the ligaments in his right groin and hip joint were torn loose and apart by the sons of the defendants while they were at play on the school ground at Ansley in Jackson Parish, Louisiana.

Defendants denied that their sons inflicted any injury on plaintiffs’ son and denied that he died from any injury inflicted on him by their sons and alleged that plaintiffs’ son died from natural causes. They further alleged that if their sons inflicted any injury on plaintiffs’ son and that he died from such injuries, that such injuries were inflicted without malice and in the course of games In which plaintiffs’ son and defendants’ sons were engaged and that plaintiffs are not liable therefor.

On these issues the case was tried and there was judgment in favor of defendants and plaintiffs have appealed.

OPINION

Of the several defenses set up by defendants we have only found it necessary to consider one as that completely disposes of the case, and this question is whether or not plaintiffs have established their contention that their son died as the result of injuries inflicted on him by defendants’ sons.

The testimony relied on by plaintiffs to prove their contention is that of their family physician, Doctor J. J. Bennett, who testified, pages 49, 50, 51, 52, 53, 54, 55:

“Q. Prom the history of the case and your examination and the complaint of the patient, would you say that the injury in the right hip was the moving cause of the boy’s death?

“A. I do.

“Q. Doctor, you say you saw no extraordinary indications of any injury in or around the right hip?

“A. There was no .abrasion or bruises; just a general swelling of the entire right hip.

“Q. Do you remember saying that, in your opinion, he was suffering from inflammatory rheumatism?

“A. I do.

“Q. In other words, you thought, at that time, that that was his trouble, Doctor?

“A. I did, yes, sir.

“Q. So, what did you diagnose the case as; what did the boy die of, in your opinion?

“A. Died of a general septic infection, commonply spoken of as blood poison.

“Q. Did you call that meningitis?

“A. He had a meningitis before he died, secondary to his general infection.

“Q. Well, then, what do you say he died with, in your opinion, or from what was the cause of the death?

“A. I think general infection; blood poison.

“Q. Well, then, do you say now that you think that was the cause of the death and not the spinal meningitis?

“A. The meniningitis was more or less a terminal factor in the disease; it was the most marked disturbance at the time of his death.

“Q. At that time, did you give out the statement or say that he died with meningitis, or was that you opinion at that time, and is it your opinion now?

“A. Meningitis, secondary of this general infection, yes.

“Q. In order to receive septic blood poison, could he have received that without the skin bein'g broken or from an injury where the skin was not broken and not received any exposure?

“A. You have to have an abrasion somewhere.

“Q. To die with the disease you say this boy died of?

“A. Yes, sir.

“Q. Now, after examining this boy, did you find any skin abrasions on him?

“A. Nothing more than this little sore on his left leg?

“Q. Now from this swollen condition alone, and standing by itself, without the septic poison, could you say what would have been the result; would that necessarily have caused death, in other words, Doctor?

“A. Without the infection, no.

“Q. And, in order to receive the infection, he must necessarily have had to have a skin abrasion?

“A. An abrasion, yes.

“Q. And you did not find an abrasion on this boy?

“A. Nothing, except this open sore on his left leg.

“Q. Then, Doctor, what are the several causes you find that will produce the disease that you speak of?

“A. An entrance into your blood stream of some bacteria germ.

“Q. How does that enter the body?

“A. Through an abrasion into the blood stream.

* * * *

“Q. In your testimony then, Doctor, the only source of this septic poison would have been in this instance from the old sore, through the old sore; that is your testimony?

“A. That is the most probable source of infection; there could have been others.

“Q. Name the others.

“A. From an abscessed tooth; discharging ears; tonsilitis; probably proslititis; any place where the pus would likely form.

“Q. Your testimony is that the bruise or pain, standing alone, by itself, would not have created or brought about the death of the boy?

“A. Yes.

* * * *

“Q. You áre not sure whether this boy died of spinal meningitis or this infectiou?

“A. The two combined, yes. The meningitis was secondary.

“Q. As a matter of fact, Doctor, you gave in the cause of his death as meningitis, did you not?

“A. Possibly; I believe I did. .

“Q. That is true?

‘A. Yes, I did, in filling out the death certificate for the Board of Health.

* 8j< ❖

“Q. And he could have died of meningitis from a germ that he contracted simultaneously with quittin'g school, and died from that disease, whether he had had the tussle with the boys or not?

“A. Yes.

* * *

“Q. And, therefore, you cannot say positively that the tussle with the boys brought into activity the germ or meningitis infection or not, can you?

“A. No, I could not say.

sfc sjc sj< sfr

“Q. My question is, is it possible to say positively what brought it into activity?

“A. No.

* sjc * *

“Q. From the examination that you made and were able to make, without more modern equipment, would it be possible to determine the origin of this germ?

“A. You mean the germ that killed this boy?

“Q. Yes?

“A. No.

si! * S¡! si!

“Q. As a matter of fact, from the time the symptoms develop, a party may die within a period of four hours to within thirty days, time, might he not?

“A. Yes.

, * * * #

“Q. I want to know whether it is possible, to a degree of certainty, to say what caused the meningitis infection in this case?

“A. No.

* * * *

“Q. Would you say that he died with traumatic meningitis or septic meningitis?

“A. Septic meningitis.”

If this fair and unbiased testimony of Doctor Bennett stood alone we would be justified in holding that the tussle between plaintiffs’ son and defendants’ sons complained of by plaintiffs in no way contributed to cause plaintiffs’ son’s death. But i,t does not stand alone.

Doctor S. L. White testified, pages 62, 71, 72:

“Q. Take his testimony in the manner in which he says the boy died from septic meningitis, is it possible in such cases, Doctor, to trace positively the origin or cause of the disease in that case, in your opinion, where he had no access to a laboratory and other instruments to make an accurate test?

“A. It is not.

“Q. Even though he received an injury such as he did there is no way to tell whether that injury was the exciting cause or not?

“A. No.

Ht * * *

“Q. And you say that this injury could not have been the exciting cause of the meningitis germ without there was a breaking of 'the skin?

“A. No, certainly not.”

Doctor Rutledge testified, page 80:

“Q. Do you know what he died with?

“A. He had a general septic condition.

“Q. You don’t know what caused that?

“A. I could not say what; no, sir.

“Q. Have you an opinion?

“A. I think that it was due to infection, probably from the sore; that was my opinion, and that is what I told Doctor Bennett when I was called in consultation.

“Q. You don’t think that the injury, an injury that would cause the swelling of the hip, and cause the swelling that this young man complained of, would be such as to cause death/?

“A. I could not see it that way.

“Q. You don’t think it was?

“A. The only thing that I could see was the septic condition; we don’t know the exciting cause.”

Doctor W. S. Harrel testified, page 146:

“Q. In your opinion, what did this boy die with, Doctor?

“A. I think the boy died with septicemia, and that that was what he was suffering with when I saw him.

“Q. In your examination, and from the history of the' case, do you think it was possible to determine the exact cause of the death of this boy, under the examination that you were able to make there, not having the laboratory equipment or other scientific means ?

“A. It didn’t look possible to me; I was unable to determine.

"Q. Then, as a matter of fact, as I understand from your testimony and from your examination and from the history of the case, the death would be what you term problematical or guesswork, indefinite; in other words, in your opinion, could there be any definite cause of the death, that is practically the same question I asked you a while ago?

“A. Not as I see it.”

W. J. Austin testified, pages 82, 83, 84, that at the time of the alleged injury to plaintiffs’ son by defendants’ sons he was a teacher in the Ansley school and:

“Q. Now, in the .¡class just ..before, the noon recess, was Melvijn in; your class at' that time?

“A. He Was.

“Q. On the last day he was at school?

“A. Yes, sir.

“Q. Did you have any occasion to notice Melvin with reference to his condition at that time?

“A. I did.

‡ $ 9 ‡

“Q. What can you say with reference to his looks on that occasion, when he reported to recite his lesson on December 1st, just before the noon hour?

“A. The boy did not recite that day in my class.

“Q. Due to what fact, if you know?

“A. Simply because the boy said he didn’t feel like it.

“Q. From the looks of the boy, would you say whether it indicated that he was or was not feeling bad, as compared with his looks on other days and during other lessons?

“A. Compared to his looks on that day, according to my opinion, he was not feeling well; he told me that he was not feeling well, and I told him that he need not recite; I don’t expect any' student of mine to recite when he is not feeling well; and the only thing that I have to go by is to take the word of the student and his looks.”

This evidence convinces us that it could not certainly be said what caused the death of plaintiffs’ son, and that septic meningitis cannot be contracted from a bruise or wound unaccompanied by an abrasion of the skin; it is perfectly clear that there was no abrasion of the skin of plaintiffs’ son. The testimony of Mr. Austin shows that the plaintiffs’ son, Melvin J. Kolb, was not feeling weli just before the noon recess during which it is alleged he was injured in a tussle with defendants’ sons and that the injuries caused his death.

The burden is on plaintiff in a damage suit to establish his contention by a fair preponderance of the evidence. The plaintiffs in this case have failed to do this.

Plaintiffs’ counsel cite Reth vs. Russell, 141 La. 586, 75 South. 418, in suport of the contention that if the injury sustained by plaintiffs’ son lessened the resisting force of his body and thereby rendered him more susceptible to contracting disease, plaintiffs would be entitled to recover. This authority has no application, in our opinion, to the facts of this case, for the reason that that case arose under the Workmen’s Compensation Act. But even if that case were applicable to this, still plaintiffs would not be entitled to recover since there is no evidence in the record that in our opinion in any way shows that the injury alleged to have been received by plaintiffs’ son contributed directly or indirectly to cause Melvin J. Kolb’s death.

Our learned brother of the District Court rendered judgment rejecting plaintiffs’ demand. After carefully reading the evidence and the briefs of counsel and the opinion of the trial judge, we are convinced that the judgment appealed from is correct.

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