text:
    No. 4387
    First Circuit Appeal
    JOSEPH GAUBERT v. LEON GAUBERT
    (February 18, 1925, Opinion and Decree)

      (Syllabus by the Editor.)

      1. Louisiana Digest — Surveyors and Surveys — Par. 5.
    Where the dividing line placed by the surveyor appointed by the court impinges or encroaches on old contiguous estates the dividing line in question very likely has not followed government bearings, courses and distances, and consequently is undoubtedly erroneous.
    2. Louisiana Digest — Surveyors and Surveys — Par. 3, 4, 9.
    The government bearings, courses and distances of grants and claims must be observed as to their outward markings for all purposes, unless proved to be erroneous and based on mistakes made by measurements from other government corners, bearings, courses and distances of the most unmistakable character.
    3. Louisiana Digest — Surveyors and Surveys — Par. 25.
    Where the result of a survey ordered by the court is clearly erroneous and incomplete, the case will be remanded for further information.
    4. Louisiana Digest — Surveyors and Surveys — Par. 27.
    The costs incurred in a boundary suit are divided equally where there is no proof of a demand on the one side and a refusal on the other to settle the dispute amicably.
    Appeal from the Twentieth Judicial District, Parish of Lafourche, Hon. H. M. Wallace, Jr., Judge.
    This is a- suit to establish a boundary line which should divide the estates of the plaintiff and defendant into two equal parts.
    There was Judgment approving the dividing line run by the surveyor appointed by the court, and the defendant appealed.
    Judgment set aside and case remanded for further information.
    J. A. Coignet and Howell and Wortham of Thibodaux, attorneys for plaintiff, appellee.
    Caillouet & Caillouet', of Thibodaux," attorneys for defendant, appellant.
   ELLIOTT, J.

This is a suit between Joseph Gaubert and Leon Gaubert concerning the proper location of the dividing line which should divide into two equal parts between them.

“The lower half of a certain tract of land on the right descending bank of Bayou Lafourche, measuring 2 arpents front by 40 arpents in depth between parallel lines, bounded above and below by lands formerly belonging to Joseph Caesar, hut now to present vendors.”

As stated, it is the lower half of the above two-arpent tract which is to be divided. The description of the twoarpent tract has been copied from the title from P. W. Lefort and Mrs. Eulalie Marie Bourgeois, wife of Philip J. Chapuis, to Joseph Bergeron and Leon Gaubert, dated March 9, 1909. In the answer of Leon Gaubert to the suit of Joseph Gaubert to have divided the said lower half which they own in indivisión, he consents that the land be divided by a boundary line between them.

A survey for the purpose was ordered by the court and J. R. Webb, surveyor, was appointed to establish the dividing line.

A line run by Mr. Webb, pursuant to the appointment of the court is favored by the plaintiff but opposed by the defendant.

Leon Gaubert in his opposition to the dividing line run by Webb alleges an existing established line which already divides said tract between him and Joseph Gaubert and pleads in support of the previously established line the prescriptions of ten and thirty years and prays for the recognition of the same; but he opposes the line run by Webb as being erroneous and contrary to their title, etc.

The district judge, after hearing the testimony, approved the dividing line run by Webb and the defendant appealed.

The contention of Leon Gaubert in his opposition to the Webb line, that a dividing line had been already and previously established between them, cannot he reconciled with his answer to the suit for division in which he consents that a dividing line be run between them. The evidence shows that no line dividing this lower half of the above mentioned tract between the co-owners thereof has ever been run or established in the manner and form prescribed by law; consequently defendant’s contentions about an old-established and existing dividing line, dividing the lower half of said above mentioned tract, must be put aside as having no merit; but this still leaves defendant’s opposition to the Webb line that it is incorrect and not in conformity with their title, etc.

. The evidence of Mr. Webb, the surveyor, who ran the line which is in contest, shows that the tract of land to be divided is part of the grant or headright claim No. 116, T. 15, S. R. 17 E., situated on the right descending bank of Bayou Lafourche, that is, on the north side of the bayou. He testified that in order to find the place where the line in question should be he started at a point on the railroad which we take to be from his evidence and the maps and diagrams found in the record, the southeast corner of grant or headright claim No. 11 on Bayou Lafourche. We think from his evidence that his starting point at this place was a proved government comer. Following his evidence and return, he, from this starting point, measured down the bayou meandering its course to a point where he stopped. This stopping place he took to be the southwest corner of grant or headright claim No. 116. He did not find any government mark or corner at this piace and did not search for any. He was told by people assembled there that previous surveyors had accepted the place as the southwest corner of grant No. 116, but he made no effort to prove the fact, except that he had measured to the place from his starting place up the bayou. From this place, taken by him to be the southwest corner of grant or headright No. 116, he measured back along the bayou to the place where he commenced the southern or bayou end of the dividing line in question. The place of commencement on the bayou of the dividing line to be run depends as to whether 'it is correct or not, on whether the place he measured from as the southwest corner of grant or headright 116 was in fact that corner. We have stated that the only fact supporting the place as the true corner is a long meander line down the bayou from the southeast corner of grant or headright No. 11 so long that an error in distance could almost be expected to some extent. If his line down the bayou from headright or claim No. 11 is true in point of distance, then his point of commencement is all right, but it would have been better and safer if he had searched along the bayou south of the claim or headright No. 116 until he found a proved government corner and from there measured back up the bayou so as to tie With the line he had run south if possible at the southwest corner of the claim or grant No. 116. If this had been done the southwest corner of the claim or grant No. 116 could have been located from government starting points with more certainty than was done.

As for the swamp or northern end of the dividing line, he found the northeast corner of the grant, or claim No. 12, a proved government comer. Measuring from there down the swamp, as we understand his return, following government courses and distances until he came to the place which from the distance he had come he calculated was the northwest corner of the claim or grant No. 116.. He did not find any proved or government marks at the place indicating that the place was the corner he took it to be, and he did not search for any. But taking it as the northwest corner of the grant No. 116, he measured back through the swamp to the place where he decided from the distance he had come was the swamp or northern end of the dividing line he had been appointed to run:

If his meander line down the swamp from the grant or claim No. 12 was true, then his points or stopping places are all right; but the swamp line he ran in order to reach these points was so long that some error must be rather expected.

It would have been, better and safer if be had found, in addition to the proved point at grant or section 12, a proved point or corner further on down the swamp from the northwest corner of claim No. 116 and had measured báck from there up to the place where the northwest corner of claim No. 116 was supposed to be so as to tie, if possible, with the line he had run from claim No. 12. If this had been done, then the northwest corner of claim No. 116 would have been established with more certainty than was done. As regards the best way to establish government or proved corners and the importance of doing so in surveys like that Mr". Webb was called on to do, we cite the decisions of the Supreme Court in Smith vs. Almond, 157 La. 265, 102 South. '380, and Houston Ice and Brewing Co. vs. Murray Oil Co., 149 La. 228. Having, as .we understand his return, original and supplemental and plan or blue print, and his testimony on the subject, thus determined where the end of the dividing line should commence on the bayou and end in the swamp, he ran the dividing line, and in so doing followed a course S. 16 degrees and 5 minutes W., instead of S. 15 degrees W. called for by the government field notes as the course of the side lines of the grant No. 116 in which the land and line in question is situated." And although he returns and testifies that the dividing line he ran has two government corners for its support, the total course of his line does not connect up with the claim or grant No. 12 but misses it 146 feet short' and S. 80 degrees 35 minutes E.

The testimony of witnesses in the record shows that the dividing line which Mr. Webb ran will, if adopted, place Leon Gaubert in conflict with old and well-established contiguous estates, and to the extent of the conflict he must either give up or contend with a result we cannot undertake to foresee; but the fact that the Webb line impinges or encroaches bn' old contiguous estates argues against' it.

Mr. Webb supports his line with tbe following statement which w'e quote from his supplemental return and process verbal:

“I set a stake at this point, then ran as per.notes of Sulakowski S. 15 degrees W. to the 40-arpent line.”

If we understand him, he refers to the northwest corner of claim or grant No. 116. Thence, continuing:

“There I made search for bearing trees and failed to find any; so I ran the rear of the lots up the 40-arpent line towards the railroad track looking at each corner until I reached the line between Sections 11 and 12. I was S. 80 degrees 35 minutes E. 146 feet from said comer. In other words, I was too far down the bayou with my random line between Sections 116 and 16, and in order to give to each section the distance called for by the notes and the approved map, it was necessary for me to change the direction of the line from Bayou Lafourche, and by calculation I find the course of. this line to be. S. 16 degrees 5 minutes W., and by making the line bear that course it gives to every section the frontage along Bayou Lafourche and in the rear along the 40-arpent line, the same and full distances as called for in the attached and approved field notes.”

If the surveyor in running the dividing line in question has not followed government bearings, courses and distances, impingement on the old-established contiguous tracts established with reference to government bearings, courses and distances is unavoidable and such should not be.

It may be that the government courses and distances in some respects and instances are based on errors and mistakes. But be that as it may, the old-established corners, courses, bearings and distances of these government grants .and claims cannot be changed now in a survey for the purpose of -dividing tract which forms part of one of these grants and claims; to allow that will be to disturb the holders and owners and possessions in all the- adjoining grants and claims.

It is unfortunate that we are unable to approve the dividing line as was done by the lower court; but we cannot approve a line" between the parties which, according to the testimony of the surveyor and his returns and blue print showing his work, rather appears to be wrong than right. The surveyor worked hard, and in testifying earnestly tried to 'make the dividing line her an clear, but his examination has not done’ so to our satisfaction. As already stated, we think an effort should be made to locate with more certainty the southwest and northwest corners of the claim or grant- No. 116 along the lines indicated in this opinion.

If no further proof can be found, then let that fact be returned to the court. We think the government bearings, courses and distances of these grants and claims must be observed as to their outward markings for all purposes, unless proved to be erroneous and based on mistakes by measurements from other government corners, bearings, courses and distances of the most unmistakable character. As for the dividing line in question, we would like- to know whether the result of its present location impinges, if at all, on the adjoining tracts next to the bayou and in the swamp to the depth of 40 arpents, and if so to what extent on each site from bayou to sw’amp.

We wish to know to what extent Joseph Gaubert and Leon Gaubert will each suffer or gain by the line as presently located by a blue print and map with distances measured thereon.

We notice that the surveyor did not run the dividing line parallel to either side of the tract, which was correct, because the tract' is to be equally divided and the line should run in the middle of the tract, giving to each the same quantity .and area front and rear.

We are unable in the present state of the record to render'a-final judgment as to the rights of the parties.

We have decided to set the judgment appealed from aside and remand the case for futher information, to the end that the lower court, as well as this court, may have in deciding the case the benefit of the further information.

It is therefore ordered, adjudged and decreed that the judgment appealed from be annulled, avoided, reversed and set aside and the case is now remanded to the lower court, to be returned to the docket; and we request that our suggestions as to further proof as to the corners of the gránt or claim No. 116 be complied with; that the further and additional information requested be supplied and placed in the record to be acted on by the lower court, and after which, in case of an appeal, we will be in position to render a final judgment in the matter. As for the cost incurred, it is ordered that' the cost in both courts be divided equally between the plaintiff and defendant. Por the purposes of this remand, the lower court will appoint any surveyor it deems best.


source: Caselaw Access Project

author: MOUTON, J.

license: Public Domain

text:
    No.-
    First Circiut Appeal.
    LAWRENCE M. BOURGEOIS v. W. W. TOWNSEND
    (Feb. 18, 1925, Opinion and Decree)

      (Syllabus by the Editor.)

      1.‘ Louisiana Digest — Pleading—Par. 59.
    Where the allegations of a petition as a . whole show clearly that complaint is by B. the petitioner,. and the prayer of the petition is. in favor of B., the peti- ' t'ioner and not through W., the agent, the-body-of the petition; and the prayer being construed together, leave no doubt that the relief is for B., the plaintiff; and must control the mere declaration in the opening paragraph, “through W., agent”. .
    2. Louisiana Digest — Pleading—Par. 59. Landlord and Tenant — Par. 97.
    Article 216 of the Code of Practice provides that where an oath of a party is required it may (in case of the absence of said party) be made by its- agent or attorney. Under Article 217 of the Code of Practice, this authority is granted in cases involving provisional seizure.
    3. Louisiana Digest — Pleading—Par. 15, 59. Landlor and Tenant — Par. 97
    Under Articles 216 and 217 of the Code of Practice, cases where the complaining party is absent the authority to make the affidavit is specifically conferred on plaintiff’s agent or attorney and is not restricted to the principal or his attorney as provided in Article 128 of the Code of Practice.
    Appeal from the Parish of St. Tammany, Hon. Prentiss B. Carter, Judge.
    This is a suit coupled with a provisional seizure for the collection of notes due monthly for the payment of rent under a lease. There were two exceptions filed; one to the capacity of the party suing, and the other that there was no proper affidavit authorizing the issuance of the writ of Provisional Seizure.
    There was judgment maintaining the exceptions. Plaintiff appealed.
    Judgment reversed and case remanded for trial according to law.
    A. J. Finney, of Covington, attorney for plaintiff, appellant.
    Victor E. Plauche, of Covington, attorney for defendant, appellee.
   MOUTON, J.

In the opening paragraph of this petition Lawrence M. Bourgeois alleges, as follows:

“The petition of Lawrence M. Bourgeois, formerly a resident of St. Tammany Parish, State of Louisiana,-and appearing and acting herein through his constituted and authorized agent, George P. Wright of Covington, Louisiana, with respect, reprsents.”

He thereafter alleges he had leased certain premises to W. W. Townsend for one year from Feb. 1, 1924, to the 31st day of January, 1925, for which Townsend has issued his notes, at $40.00 per month, and payable monthly. Further he alleges that according to the stipulations of the lease, if Townsend, lessee, failed to pay' any of the notes at maturity, the rent for the whole unexpired term of the lease would become exigible. Alleging that Townsend had failed in his payment of the rent for the months of May, June, July and August, 1924, Bourgeois prayed for judgment against Townsend for $400.00, amount alleged to be due for the unexpired portion of the lease. Bourgeois, alleging that he feared Townsend would remove the furniture from the leased property, asked for the issuance of a provisional seizure to protect his rights. His prayer in the petition is for judgment in his favor, and for the maintenance of his lien as lessor on the goods seized. The affidavit for the issuance of the writ is made by George P. Wright, who, in the opening pargaraph of Bourgeois’ petition above reproduced, Bourgeois declares was his constituted and authorized agent. In the affidavit, Wright swears that he is the lawfully constituted agent of Lawrence P. Bourgeois, who was, at the time, absent from the parish.

To this petition defendant filed the following exception:

That the petition discloses no right of action and no proper parties, plaintiffs, authorized to file this suit and stand in judgment.

That there is no proper affidavit authorizing the issuance of the writ of Provisional Seizure sued out.

The court maintained the exception, holding that there are no proper parties before the court, and no proper affidavit authorizing the issuance of the Provisional Seizure.

As plaintiff distinctly alleged that defendant had defaulted in the payment of his rent which had the effect, under the terms of the lease, to render exigible the subsequent installments, it is evident that the petition disclosed a right of action. The attorneys for the defendant, if we appreciate their defense correctly, are not contending that no cause of action is disclosed by the petition, but are asking for the maintenance of the judgment on the points sustained by the trial judge. .We will pass upon these two points in the order presented in the judgment appealed from.

In the first paragraph of the petition to which reference has been heretofore made, Bourgeois declares that George P. Wright was his duly constituted agent, and that he was appearing and acting> through his agent. Grounding himself on this declaration defendant contends that the suit is ■brought in the name of the agent. The allegations of the petition, as a whole, show clearly that the complaint is by Lawrence M. Bourgeois,' petitioner, against defendant, lessee, and the prayer of the petition is for judgment in favor of Bourgeois, petitioner, and not through Wright, agent The body of the petition and the prayer which must be construed together, leave no. doubt that the relief demanded is for Bourgeois, plaintiff, and must control the mere declaration in the opening paragraph, through Wright, agent There is therefore a proper party plaintiff before the court, and the lower court fell into an error in holding there was not.

The other point is that there was • no proper affidavit authorizing the issuance of the provisional seizure.

In the first paragraph of the petition, it is expressly declared by Bourgeois, plaintiff, that he was formerly a resident of St. Tammany Parish, and Wright was his constituted and authorized agent. The allegation that he was formerly a resident of St. Tammany Parish, clearly conveys the meaning that he was then absent from the parish, and gives a reason for the appointment of Wright, as his mandatary. In the affidavit for the writ, Wright swears that he is the lawfully constituted agent of Bourgeois, and that the latter was' then absent from the State of Louisiana. The allegation or declaration of the petition taken in connection with the affidavit make it very evident that Wright had the authority as an agent to represent plaintiff, then an absentee. This authority was not, however, as before stated, conferred upon Wright to institute the suit, as this was done by Bourgeois, his principal. In the petition, plaintiff asked for the issuance of the writ, and the affidavit was taken by Wright, as agent, for that purpose. The sole question is as to whether he was, as agent, authorized to take the oath to obtain the writ.

The contention of counsel for defendant on this proposition is that Wright had no such power because in a case of this character, and in all conservatory writs, the affidavit must be made by principal or his attorney. In support of this contention, defendant relies on the case reported in S. Fernandez & Co. vs. Elias Miller, 26 La. Ann. 120. In so holding in that ease, the court refers to C. P. Art. 128. An examination of this article will show that it refers to the power of parish judges to issue orders in the absence of district judges and other parish judges when absent or recused.

In such cases Article 128 provides that the affidavit should be made by the party complaining or his attorney. This is not the situation here. The instant case is governed by Article 216, C. P. which says: “In all cases when by any provision of this Code, an oath of a party is required, it may (in case of the absence of said party) be made by its agent or attorney”; and by Article C. P. 217, which grants this authority to cases involving provisional seizure. In cases where the complaining party is absent, the case here, the authority to make the affidavit is specifically conferred on his “agent or attorney,” and is not restricted to the principal or his attorney as provided for in Article 128 referred to in S. Fernandez & Co. vs. Elias Miller, 26 La. Ann. 120, the decision submitted by defendant in support of his defense. We therefore hold that Wright, the agent,. had the right to make the affidavit for his • absent principal.

Counsel for defendant, appellee, moves to ' dismiss the appeal claiming that as the case was filed in the name of the agent, of necessity Wright, agent, should have taken the appeal in his name. The nature of this motion, which presents the very marrow of the question at issue, made it possible for us to consider it in the order in which such motions are usually disposed of. ur ruling, for the reasons above given naturally disposes of this motion to dismiss, which is denied.

It is therefore ordered, adjudged and decreed that judgment appealed from be avoided and reversed; it is further ordered and decreed that the exceptions filed by defendant be overruled and that this case _ be remanded for trial according to law, appellee to pay the cost of appeal, those of the lower court to abide the decision of the case.


text:
    No.-
    First Circuit Appeal.
    NEW ORLEANS TENT AND AWNING COMPANY v. W. S. MILLER
    (Feb. 18, 1925, Opinion and Decree)

      (Syllabus by the Editor.)

    1. Louisiana Digest — Pleading—Par. 112, 113, 117. Prescription — Par. 224.
    The plaintiff cannot by his pleading change a promissory note into a written acknowledgment and thereby alter the period of prescription applicable to the case.
    2. Louisiana Digest — Prescription—Par. 101.
    A negotiable instrument is prescribed in five years from the time it becomes due or is acknowledged whatever may be the origin or nature of the obligation it may be evidence of or represent.
    Appeal'from the Parish of St. Tammany, Hon. Prentiss B. Carter, Judge.
    This is a suit for the collection of the face value of a promissory note. Defendant filed a plea of prescription of three and five years which was sustained. Plaintiff appealed.
    Judgment affirmed.
    A. S. Bums, of Franklinton, attorney for plaintiff, appellant.
    J. W. Simmons, of Covington, attorney for defendant, appellee.
   MOUTON, J.

Plaintiff alleges that in 1914, he advanced certain goods and merchandises in the sum of $449.90 to defendant, as shown by an itemized account annexed to his petition. He avers that this account was verbally acknowledged by defendant; that later, on Sept. 20, 1915, defendant acknowledged the account in writing, and which written acknowledgment is annexed to his petition for the purpose solely of showing a written acknowledgment of the debt.

Defendant filed a .plea of prescription of three and five years which was .sustained;. Plaintiff appeals.

The document which plaintiff characterizes as a written acknowledgment is in the form of a promissory note signed by defendant Sept. 19, 1915, and made payable six months afters date with 8 per cent interest from date. Plaintiff’s petition was filed Jan. 31, 1924, more than nine years after the note became due. In order to avoid, the prescription that had accrued on the note, plaintiff by virtue of his pleadings is seeking to convert or transform the promissory note into a mere acknowledgment of the debt under which it would be prescribed in ten years. In Jane Cowand vs. Josephine Pulley, 11 La. Ann. 2, the question presented was as to whether the prescription of three years, is applicable to a loan of money for which, at the time of making it, a note or a due bill, in a negotiable form, was given. The court held that the prescription of three years did not apply because the Legislature intended to protect the holders of debts evidenced by negotiable paper against the operation of any prescription but that of 'five years. Here, the note was not given when the goods were advanced, but was executed at at a subsequent time. This circumstance is, however, of no importance as it was the merging of the debt into a negotiable instrument which had the effect of bringing the obligation evidenced by the annexed note within the grasp of the prescription of five years. In the case of Perret vs. Roussel, 19 La. Ann. 174, the court in passing on a similar question said:

“Whatever may be the nature of an obligation, evidenced by a negotiable instrument, it is subject to the same prescription as the instrument itself.”

This decision affirms the principle previously announced. Plaintiff alleges that defendant after signing the note left the State. We do not understand that, plaintiff depends on this alleged fact as a cause for the interruption of prescription. This would not, however, avail him as prescription runs against persons residing out of the State. Act 17, 1923, p. 35. Counsel for plaintiff refers to the cases reported in John E. Burch vs. Americanus Willis, 21 La. Ann. 492; Sims vs. New Orleans Ry. & Light Company, 134 La. 897, 64 South. 823; Frederick Lutz vs. Andry Forbes, 13 La. Ann. 609; where the court held that the character plaintiff gives to his pleadings determines its prescription. In tho^e cases, the issue presented here was not admitted for consideration, and was not passed upon by the court. The decision relied upon by counsel for plaintiff above mentioned, in no way affect or militate against the principle repeatedly recognized that a negptiable instrument is prescribed in five years from the time it becomes due whatever may be the origin or nature of the obligation it may be evidenced or represent. As more than five years had elapsed from the maturity of the note when this suit was brought, prescrpition had accrued thereon, and the demand of the plaintiff was properly dismissed.


text:
    No. -.
    First Circuit Appeal.
    ARMAND MORIN AND WIFE v. ILLINOIS CENTRAL RAILROAD COMPANY
    (Feb. 18, 1925, Opinion and Decree)
    (May 5, 1925, Rehearing Refused.)

      (Syllabus by the Editor.)

    1. Louisiana Digest — Railroads—Par. 63, 64, 77.
    It is a duty of the traveler crossing a railroad track to stop, look and listen. Where deceased stopped but not before he got on the ties or track, it is extremely doubtful if he did listen and it is certain that he did not look before he. got On the track or after. Plaintiff is clearly contributorily negligent.
    2. Louisiana Digest — Railroads.—Par. 78.
    The rule of the “Last Clear Chance” will not be extended to cases where plaintiff’s own negligence extended ' up to and actually contributed to the injury.
    (Civil Code, Art. 2315. Editor’s note.)
    Appeal from the Parish of Tangipahoa, Hon. Columbus Reid, Judge.
    This is a suit for damages for the death of plaintiff’s son by being hit by a railroad train.

      There was judgment for plaintiff and defendant appealed.
    Judgment reversed.
    J. H. Inman, of Ponchatoula, attorney for plaintiff, appellee.
    Kemp and Buck-, of Amite, attorneys for - defendant, appellant.
   MOUTON, J.

Ambroise Morin, son of plaintiffs, was killed by the Panama Limited, passenger train of defendant company, Feb. 2, 1924, at 9:30 a. m., at a. public crossing, Fifth street, Independence, Louisiana.

A judgment for $10,250.00, based on the verdict of a jury, was rendered in favor of plaintiffs against defendant company from which it prosecutes this appeal.

The deceased, Ambroise Morin, was on a business mission and was travelling afoot from the west to the east side of the railroad tracks at the crossing of 5th street when he met with the accident. At this crossing the defendant company has two main tracks and a switch track. One of the main tracks is on the west side, and the other, on the east side of the right of way. The deceased was killed on the west track by the Panama Limited passenger train, which was travelling southward at the time. A freight train was also at that time travelling northward on the track on the east side of the right of way.

It is well established by the record that the deceased was standing on the track or on the croos-ties near the trail, when he was struck by the cow-catcher or engine and killed. On this question there is practically no discrepancy in the testimony of the witnesses for plaintiffs and defendant. Many of the witnesses for plaintiffs say he had been standing there two or three minutes before the collision occurred. Whether that long or not, it is however, indisputably true that deceased was in that position, and was just about turning his face westward, presumably upon hearing the distress signal, when he was struck. It is shown by the record and without contradiction, that the track where deceased was killed, is straight for a mile or so both ways and that there was at that point no obstruction whatsoever which could have obstructed the view of the deceased in either direction, north or south. The train that killed- him was coming from the north. Almost all, if not practically all of the witnesses unite' in saying there was nothing which could have prevented him from seeing the train. The deceased,' as it is alleged by plaintiffs, was at that time in his 18th year, in good physical condition, and of normal senses. As he stood on the track or near thereto for two or three minutes, and if the train was travelling, as most of all our plaintiffs’ witnesses say, at about 30 or 35 miles an hour, the deceased could, over this straight track which was free of all obstructions to the view, have unquestionably seen the advancing train at a distance of at least half a mile before it reached the spot where he was standing, if he had cast a glimpse or looked northward. If he had looked in that direction, as it was his duty to do before he got dangerously near the track or after he got on it, he could, as he was on foot, in the twinkling of an eye, have stepped aside and have avoided the accident. The proof shows, and which comes from the testimony as plaintiffs’ witnesses, that a freight train was at the time of the collision moving northward on the main line on the east side of the right of way and that deceased was looking in that direction. As he was going on, on his little business mission in that direction, he had, no doubt, his attention attracted to that train watching for it to clear the * way for his passage across the railroad tracks. He was evidently oblivious to his surroundings, and when he heard the shrill blasts of the Panama Limited which was coming from the north, he turned his head and made a vain effort to escape the accident. The evidence shows clearly that two or three blasts of the distress signals were given by the engineer of the Panama Limited at least thirty or forty feet before the train entered the crossing where deceased was standing. We believe the evidence shows clearly, that deceased had he been ordinarily conscious of his surroundings, considering the situation where he was placed, that he could not have failed to have heard the signals in time to have afforded him ample opportunity to avert the occasion. Even if such signals were not given, which could be inferentially drawn from the testimony of some of the witnesses for plaintiffs, the engineer was nevertheless, as said in Weil vs. Bell, 155 La. 1099, 99 South. 887, justified in assuming that the deceased would use his sense of hearing to discover the approach of. a heavy passenger train travelling 45 miles an hour. Let us say here, however, that the Panama Limited was not a heavy passenger train and that the noise caused by the moving freight train deadened the rumbling noises of the advancing train, the fact remains, and the dominant one here, that deceased at that hour of the day, 9:30 in the morning could by the most casual exercise of his sense of sight, have seen the train a good distance away, and which would have given all the time he needed to step aside to allow the train to pass on without danger.

Much is said by counsel for plaintiffs about the train in question travelling in excess of the speed limit of 15 miles an hour fixed by the ordinance of the Town of Independence. On this point the evidence is extremely conflicting. Witnesses for plaintiffs say the train was going at the time at 30 or 40 miles an hour. The train crew, including the engineer, fixed the speed at which they were travelling at about 12 to 14 miles an hour. The proof shows that the train had reached Independence exactly on schedule time, and there was therefore no necessity for such a speed as 30 or 40 miles an, hour contended for by plaintiffs. It is more likely that the crew could have a more correct appreciation of the speed of the train in their charge, than residents of the town who had no special interest in such a matter. Even if the engineer in the instant case failed to observe the ordinance of the Town of Independence, and was travelling 'in excess of the municipal speed limit, this did not in any way excuse the deceased from himself exercising the degree of care which the law required of him. May vs. Texas & P. Ry. Co., 123 La. 647, 49 South. 272-3, Elliott (2nd Ed.) p. 1171.

The degree of care required of the traveler crossing a railroad track is to stop, look and listen when this would be effective, State vs. Glenn, 153 La. 153, 95 South. 534. In this case deceased stopped but not before • he got on the ties or track; it is extremely doubtful if he listened and it is certain he did not look either before he got on the track or after.

In Tucker et ux. vs. Illinois Central R. Co., 141 La. 1101, 76 South. 212, the court said:

“No failure on the part of the railroad company to do its duty will excuse any one from using the senses of sight and hearing, upon approaching a railway crossing, and whenever the due use of either senses would have enabled the injured person to escape the danger, the injury is conclusive evidence of negligence, without any reference to the railroad’s failure to perform its duty.”

In this case, it is doubtful, as before stated, that the deceased used his sense of hearing, but it is manifest that he did not use his sense of sight, either of which would have enabled him “to escape the injury he received, is therefore conclusive evidence of his negligence,” “without any reference to the railroad’s failure to perform ' its' duty,” if it could be accepted as proved, that the defendant had failed in this respect. Plaintiffs invoke the doctrince of the “Last clear chañe,” as an exception to the general rule of contributory negligence. It must be observed while referring to this subject, that the degree of contributory negligence does not enter into the consideration of this doctrine as the rule of comparative negligence,, has not been accepted in our jurisprudence. Belle Alliance Co. vs. T. P. and P. R. Co., 125, La. 777, 51 South. 846.

The rule of “last clear chance” will not be extended to cases where the plaintiffs’ own “negligence extended up to,- and actually contributed to the injury”. Fitzpatrick vs. Letten, 123 La. 761, 49 South. 494. There can be no doubt that deceased up to the very moment of the collision could have escaped injury by stepping aside of the railroad track, and it is therefore obvious that “his negligence extended up to, and actually contributed to the injury” or in other words, was concurrent therewith. Under the state of facts and the law hereinabove, referred to, it is clear that plaintiffs have no right to recover, and that the judgment appealed from is erroneous.

It is therefore ordered, adjudged and decreed, that the verdict -of the jury and the judgment rendered theron, be avoided and reversed, and it is further ordered that the demand of the plaintiffs be and is hereby rejected at their cost in both courts.


text:
    No. -.
    First Circuit Appeal
    LORRIN WALL v. LIVINGSTON PARISH SCHOOL BOARD
    (Feb. 18, 1925, Opinion and Decree)

      (Syllabus by the Editor.)

    1. Louisiana Digest — Education—Par. 6; Laws — Par. 72, 84, 85.
    Section 58 of Act 120 of 1916 as re-enacted by Sec. 29 of Act 100 of 1922, provides that the School Board shall furnish transportation for children living more than two miles of a school of suitable grade, but these acts do not compel the School Board to furnish such transportation. Act 117 of 1922, makes it obvious that the furnishing of free transportation is optional with the School Board.
    Appeal from the Parish of Livingston, Hon. Columbus Reid, Judge.
    This is a suit to recover the cost of transportation of school children to and from school from the School Board.
    There was judgment for the defendant and plaintiff appealed.
    Judgment affirmed.
    Rownd, Hungate and Ficer, of Hammond, attorneys for plaintiff appellant.
    Mat. J. Allen, of Amite, attorney for defendant, appellee.
   MOUTON, J.

Plaintiff lives about four miles from Springfield where his children attended public school in 1921, 1922, 1923. Prior to 1921, the School Board of the Parish of Livingston acting under a resolution of the' board, in lieu of operating a school transfer, allowed plaintiff the sum of fifteen cents per day transportation for each child for each day it attended' school. Under this arrangement plaintiff received the sum of $133.90 from the School Board, paying up to Feb. 1, 1922. Dec. 30, 1921, the School Board passed a resolution discontinuing these per diem payments to take effect Feb. 1, 1922. After the adoption of this resolution discontinuing these payments, the School Board refused to pay plaintiff for transportation of his children to school as it had previously done. Plaintiff alleges that the School Board was bound to furnish this transportation and having failed to do so, should be made to reimburse. him the sum of $213.75 for attendance of his children to said school during 1425 days. Act 120, 1916, Sec. 58, says, that the Parish School Board shall have authority to provide transportation for children living more than two miles from a school of suitable grade. This section is re-enacted in Sec. 29 of Act 100, 1922. This authority is merely permissive, and in no respect compels the School Boards to furnish such transportation to children living over two miles from a public school.

Act No. 117, 1922, making attendance of children between certain ages compulsory on parents or guardians says: That children living more than two and one-half miles from a public school and for whom free transportation is not furnished by the School Board, shall be exempt from the provisions of that act. This makes it obvious that the furnishing of free transportation is optional with the Public School Boards, and is not compulsory. The Parish School Board of Livingston Parish was not under any legal obligation to furnish free transportation to the children of the plaintiff to school; had a perfect right to discontinue its payments to him for this transportation, and is not bound to for re-imbursement for the amount claimed in this suit, which was properly rejected.


author: MOUTON, J. C.

text:
    No.—
    First Circuit Appeal.
    INTERSTATE WHOLESALE GROCER CO., INC., v. C. W. PRUTSMAN
    (Feb. 18, 1925, Opinion and Decree)
    (May 5, 1925, Rehearing Refused.)

      (Syllabus by the Editor.)

    1. Louisiana Digest — Bonds—Par. 1, 3, 8.
    In construing a statutory bond the statutes must be read into the bond and the super added stipulations must be dis- • regarded.
    2. Louisiana Digest — Bonds—Par. 8. 11.
    The bondsmen cannot be held liable for items of account such as tomatoes, soap, onions, potatoes, flour, oats, Budweiser beer, vanilla wáfers, etc., on a bond written in compliance with Section 2 of Act No. 224 of 1918, which provides for bond to be given by the road contractor for the “faithful performance of the contract” and with the additional obligation “for the payment by the contractor and by all subcontractors for all work done, labor performed, or material furnished in the constrution, erection, alteration or repair of such building, road, work or improvements”.
    3. Louisiana Digest — Laws—Par. 67, 68, 76.
    The word “materials” used in an Act of the Legislature means “everything of which anything is made”, and the meaning of “materials furnished in constrution’? used in a statute cannot be enlarged.
    Appeal from' the Parish of Washington, Hon. Prentiss B. Carter, Judge. .
    This is a suit against the contractor, the sub-contractor, the police jury, the highway department, and the bonding company for groceries furnished the suh-contractor while working on a road.
    There was judgment for the plaintiff. Defendant appealed, judgment reversed as to C. W. Prutsman, the contractor, and the bonding company.
    Bascom D. Talley, of Bogalusa, attorney for plaintiff, appellant.
    Ott and Johnson, of Bogalusa, attorneys for defendant, appellee.
   MOUTON, J. C.

W. Prutsman, Jan. 7, 1920, entered into contract with the Police Jury of Washington Parish and the Highway Department of this State, to build a section of public road, between the Town of Franklinton and Pearl River. The United States Fidelity & Guaranty Company became the surety on the contract.

Part of the contract for the construction of the road was sublet by Prutsman to W. H. Thomas. Plaintiff alleges that he furnished in 1920, 1921, supplies for the teams, laborers, etc., to Thomas, the subcontractor, and brought this suit against the police jury, the Highway Department, Prutsman and Thomas, for a balance of account amounting to eleven hundred, seventy-six 90/100 dollars.

Relief is sought here against Prutsman and the U. S. Fidelity & Guaranty Company on the contract and bond, the other defendants having dropped out of the case.. The . lower court rendered judgment for the amount claimed, except attorney’s fees asked for penalty.

Defendants appealed.

The bnod was furnished by Prutsman, the contract, under provisions of Act No. 224, 1918. This statute in Sec. 2, requires that the contractor shall furnish a bond to guarantee the faithful performance of his contract, “and with an additional obligation for the payment by the contractor and by all sub-contractors for all work done, labor performed, or material furnished in the construction, erection, alteration or repair of such building, road, work or improvements, etc.” The claim is for supplies furnished for teams and laborers. The account sued upon is for such items as tomatoes, soap, onions, potatoes, flour, oats, Budweiser beer, vanilla wafers, etc. The words of the statute are that the bond shall be furnished to secure the payment of “material furnished in the construction, erection, alteration or repair of such road, etc.,” this being the matter with which we are concerned in the instant case.

Materials are defined as “everything of which anything is made.” Bovier, vol. li, p. 122. As usually employed in law this word signifies things furnished to a workman or artisan to be used in his work. It is in this sense that this word is employed in section 2, of said act, when it says for “material furnished in the construction” of such building or road. Section 5, in referring to a concensus provided for in the act between the state, parish of public bodies and other claimants, says in reference to these claimants: “Who have done work, performed labor or furnished material used in said work,' the latter shall be paid in preference, etc.” The language “material used in said work”, makes clear what the Legislature had in view in enacting this statute. Since the enactment of this law, the Legislature has enacted another statute, this is, Act 203, of 1924. The latter statute gives the right of recovery to any person or firm for feed for use by mules or other livestock employed by a contractor or sub-contractor in the construction, erection, alteration or repair of any public roads, etc. Section 3 of that act gives the same right as those accorded to those “furnishing any material in the constrution, erection, alteration or repair of any public building, public road, etc.” Obviously, the Legislature enacted the 'later statute to afford relief for the furnishers of supplies in the way of feed for animals used in the prosecution of some public work. This last statute makes it very evident that the Legislature never intended under the provisions of the prior Act, No. 224, 1918, that feed for teams herein sued for, or the other articles furnished as shown by the account hereinabove referred to, should be recoverable as “material” under that statute. Plaintiff contends that under the terms or wording of the contract and the bond the word “supplies” such as are here sued for, are included. This contract and bond are statutory, and of this there can be no question. In construing a statutory bond, it is well settled, that “the statute must be read info the bond, and super added stipulations must be disregarded”. Davis et al. vs. West Louisiana Bank et al., 155 La. 245, 252, 99 South. 207. If the word “supplies” is used in the bond, it must, under the rule above given, be read out of the bond so as to make it conform to the requirements of Act 224 of 1918, under whióh it was furnished and the same rule applies to the contract. In speaking about what is recoverable against the contractor and the bonding company, counsel for plaintiff says, quoting: If it is necessary to furnish laborers with dice, to hold them on the job, then, the dice are covered. If it is necessary to furnish negroes with playing cards to hold them on the job and keep them satisfied, then they are covered”. If the other articles carried on the account are recoverable, counsel is correct in maintaining that the dice and cards furnished the laborers would also be covered by the contract and bond. Following such a construction, it might be added that the contractor and bond company would be equally responsible for clothing furnished .the laborers to keep them warm, and for music vouchsafed to them to while away their lonely hours. Such a construction of the obligations incurred by the defendants would carry the reasoning of plaintiff to its ultimate logical analysis. We can not accede to such a proposition.

Counsel for plaintiff refers us to Sec. 6725, U. S. Comp. Statutes which require contractors to furnish bond to secure payment to all persons, “supplying them with labor and materials in the prosecution of the work provided in such contract”. Counsel says the Federal Courts have given a liberal interpretation to bonds furnished under contracts of that character and have allowed creditors to recover therein not only for freight charges in transporting materials, but also for provisions used by the contractor in feeding his employees. It will be noted that the section of the United States statutes above referred to reads: “labor and materials In the prosecution of the work” while our statute in Sec. 2 of Act of 1918, says: “material in the construction, etc.”, and in Sec. 5, “material used in said work”. As before remarked if there can be any doubt as to what was the intention of the Legislature in framing that statute, it was made clear by the subsequent Act No. 203, 1924, wherein relief was extended to creditors against contractors and sub-contractors for such articles as feed for the use of mules or other livestock employed in the construction of any public road or work. The obligations of contractors and their bondsmen in contracts of the character herein involved are statutory, and their responsibility to third party must be measured by the statute under which their contracts and bonds are furnished. Courts have no power to wander outside of the limits assigned by such statutes on the pretense of affording relief to claims seemingly grounded on 'principles of natural reason and equity. The law being clear on the subject an appeal to reason and equity can not avail. The articles furnished to the sub-contractor are not “materials” in the sense used in Act 224 of 1918, sued upon, and for which the contractor and guaranty company are not liable.

It is therefore ordered, adjudged and decreed that the judgment appealed from be avoided and reversed; it is further ordered and decreed that the demand of the plaintiff be rejected at its cost in both courts.


text:
    No. -.
    First Circuit Appeal
    MRS. JOSEPH GALJOUR v. SUCCESSION OF LIBERAL GALJOUR
    (March 2, 1925. Opinion and Decree.)
    (May 5, 1925, Rehearing Refused.)

      (Syllabus by the Editor.)

    1. Louisiana Digest — Prescription—Par. 89.
    Under Article 3534 of the Civil Code prescription .of one year has no application when one through kindness furnishes hoard and lodging to a parent or friend though that person is not an innkeeper. In a case like that prescription of ten years applies.
    (Civil Code, Art. 3544, Editor’s note.)
    2. Louisiana Digest — Prescription — Par. 89; Evidence — Par. 28.
    Where one of limited means gives room and. board to another of some means she is not presumed to have given the room and board gratis, even though she delayed her demand until after the death of the party to whom the room and board was given.
    3. Louisiana Digest — Evidence—Par. 280, 340, 344.
    Where a suit is brought within twelve months after the death of a party . whose indebtedness is asserted, it is not indispensible to the proof of the claim under Act No. 207 of 1906, that the testimony of the plaintiff be corroborated by one credible witness. The testimony of plaintiff and corroborative facts or . circumstances were sufficient proof to establish the' debt.
    4. Louisiana Digest — Evidence—Par. 339, 340. ,
    Under Article 2277 of the Civil Code where ■ the testimony of other witnesses besides that of the plaintiff shows that she furnished board and, lodging to deceased and what it was worth, such testimony fully corroborates plaintiff and fully establishes her claim, even if she were suing under a contract.
    Appeal from the Parish of Lafourche, Hon. Robert. B. Butler, Judge.
    This is a suit against the administrator of an estate of deceased for board and lodging furnished deceased before he died. There was judgment for plaintiff and defendant appealed.
    Judgment affirmed.
    Howell and Wortham, of Thibodaux, attorneys for plaintiff, appellee.
    Caillouet and Caillouet, of Thibodaux, attorneys for defendant, appellant.
   MOUTON, J.

Plaintiff sues the administrator of the Estate of Liberal Galjour for $1654.00 for board and lodging furnished deceased, and services rendered him during two separate periods of time, from Jan. 1, 1912, to August 20, 1913; and from Jan. 1, 1916, to Jan. 1, 1920. In her petition she asked $20.00 per month for the first period, and $30,000 a month for the second.

This suit was filed Nov. 13, 1923, and therefore more than ten years after the part of the demand, dating between Jan. 1, 1912 and August 20, 1912, had accrued. The prescription of ten years filed by defendant was maintained' as to this item, and correctly. In this respect there is no contest.

Defendant contends that his plea of prescription of one year should also have been maintained as to the other portion of the demand, and that the district judge erroneously overruled his exception*

His plea is based on Article 3534, Civil Code which • establishes the prescription of one year against the claim “of innkeeper and such others, on account of .lodging and board which they furnish”.

It is clearly shown by the record that plaintiff was not running an inn, hotel or boarding house when the deceased, Liberal Galjour, was lodging and boarding with her from Jan. 1, 1916, to Jan. 1, 1920, for which judgment was rendered in her favor. The deceased was her brother-in-law, came to live with her at her house when she lodged and boarded him during the period of time above mentioned. There is no claim made for the other services mentioned in the petition and the issue presented is therefore as to whether or not the demand for lodging and boarding by plain-Life, as the owner of a private house, where no boarders were taken in at a fixed price, is prescribed in one year.

The contention of counsel for defendant is that this prescription applies to “innkeeper and such others” and which includes claims for board in private houses.

In Succession of Susan Nitch, 22 La. Ann. 316, the court held that this prescription applies to claims for board in private houses when the proprietors or managers make it a business to furnish board at a fixed price, and in support of this doctrine refers to Union Bank of Louisiana vs. Campbell, 2 La. Ann. 759; Campbell vs. Nicholson, 3 La. Ann. 458; Francois Hebert vs. Ambrose Lacour, 5 La. Ann. 599. In the Union Bank of Louisiana vs. Campbell, 2 La. Ann. 759, which appears to be the leading case on this question, the record, it is true, showed- that Roberts, the claimant was a school master, and was not an innkeeper. It was shown, however, that he took minors in his home as boarders at a fixed price. In referring to this, the court said:

“By taking persons to board with him for hire, Roberts assimilated himself to an innkeeper.”

Evidently, having assimilated himself to an innkeeper he came within the meaning of the terms, “and such others” found in Article C. C. 3534, above reproduced. In Campbell vs. Nicholson, 3 La. Ann. 458, referred to in Succession of Susan Nitch, 22 La. Ann. 316, in passing upon the article of the Code under discussion, the court said:

“These articles embrace all persons within their categories who make it a business to give their labor, their art, or their supplies, for an adequate compensation, and with a view to profit.”

The crux of the question in such cases as was therein announced by the court, is when such persons make it a business to give labor or furnish their supplies for an adequate compensation.

In the Succession of Susan Nitch, 22 La. Ann. 316, the other reference which appears there, is to the case reported in Francois Hebert vs. Ambrose Lacour, 5 La. Ann. 599. The only thing said about the nature of the demand in that case, Francois Hebert vs. Ambrose Lacour, 5 La. Ann. 599, is that the deceased lived with the plaintiff at the time of her .death. The court therein refers to the cause of the action, which it says, was the same presented in, the La. Ann. 229. In that case the claim of the plaintiff was for services, funeral expenses and taxes paid. The case was dismissed on a point that has no connection with the issue here presented. It was true, as was stated by the court in 5 La. Ann. 599, that it had in previous suits, held that the prescription of one year applies to board in private houses. Unquestionably, it had so applied the rule, but this application had been where the proprietor of the home had made it a business to charge for board, or had “assimilated himself to an innkeeper”. In the Succession of Mrs. Hannah Newton, 33 La. Ann. 621, this question came up again for adjudication.. In that case the administratrix’s claim against the succession was for the support of her mother during her life-time. It was said then that it did not appear that Mrs. Hoffma, the claimant, made it a business to keep boarders and it was held that her claim could be prescribed only by ten years. Chief Justice Bermidez, the organ of the court, refers in the decision to Succession of Susan Nitch, 22 La. Ann. 316; Marcade Presc, 212, 213. There this author says:

“La regie sapplique, bien entendu
aux maitres de pensions bourgeoises et tous autres faisant metier de loger et nourir le public.”

Further he says:

“Elle ne sappliquerait pas non plus a des bourgeois 'prenant en pension chez eux par complainsance, un parent ou ami. Ceux-ci ne sont alors ni hoteliers ou traiteurs, ni marchands; ils ne font en cela, ni metier ni commerce.”

The above reasoning shows clearly that the prescription applies when the bourgeois, bourgess or private makes it a business to charge for board and lodging. It is however, distinctly stated by Marcade that the prescription finds no application when the private or bourgeois, through kindness, furnishes board or lodging in his name to a parent or friend, precisely the case here.

It is a well recognized principle that prescription can not be extended by analogy so as to make it' extinguish the rights of a creditor. In the 2 La. Ann. 759, the court held that the plaintiff’s case fell under the term “and such others” found in Article 3534, because he had assimilated “himself to an innkeeper”. We do not think that it would be safe or sound to give the words “and such others” such an enlarged and liberal construction as to make them include a plaintiff claiming remuneration for board and lodging furnished to a brother-in-law, a single boarder, and not at a fixed price, which is the basis of the demand in the present suit.

We do not think that the issue submitted in the instant case was directly presented and passed upon in the decisions cited by learned counsel for defendant. If, however, the court in those cases held that the prescription of one year is applicable to a case presenting the facts here of record, we can not accede to such a ruling, and must hold that in our opinion, the true doctrine was announced in the decisions hereinabove referred to, which correctly hold that the prescription of ten years is applicable, and not that of one year, which was properly overruled below.

The next contention of the defendant is that plaintiff did not intend to charge for the board and lodging, and is therefore not entitled to recover.

Plaintiff, when she furnished this board and lodging, between Jan. 1916, and 1920, was then a widow with two children, and was not, as far as the record discloses, in affluence but was rather a woman of small means. Liberal Galjour, the deceased, must have had some means, and must have had some property, otherwise there would not have been such a spirited contest over this claim. Plaintiff was merely his sister-in-law and was no blood relation. To furnish board to him necessarily required that plaintiff should incur expenses, and also for his lodging, unless she performed household duties for his benefit. Expenses and work of this character are never presumed to be gratuitous. On the contrary, the reverse is the rule in cases of this nature, founded on the axiom, that no one is presumed to give, Succession of Mrs. Hannah Newton, 33 La. Ann. 621. The contention that plaintiff did not intend to charge, is based mainly on the ground that she delayed until Liberal Galjour was dead to make her demand. In referring to this delay the district judge said:

“But the real reason for plaintiff’s delay in urging payment for said services was, no doubt, as suggested in the testimony, her vain hope, as it subesequently proved to be, that decedent, who was childless, would make her his principal legatee and thus indirectly recompense her perhaps to a greater extent than she could possibly expect from insisting on payment of his board and lodging.”

This, we believe, was the motive by which plaintiff was actuated. Liberal Galjour died June 12, 1923, and this suit was instituted Oct. 23, 1923. No doubt, when plaintiff realized at the death of Galjour that she had not been compensated in his will, she took the necessary steps to enforce her claim by judicial process. In this respect she can not be charged with procrastination as her suit was filed in' practically four months after the death of Galjour. If plaintiff allowed herself to be lulled into a false sense of security so as to permit the prescription period to extinguish her demand for the first portion of her claim, this is no reason to deprive her of the second portion for which she brought her suit some seven years before it would be barred by the lapse of time.

Counsel for defendant contends that parol evidence is incompetent to prove a liability upon the part of a party deceased, unless the testimony of the claimant is supported by at least the testimony of one credible witness under the provisions of Act 207 of 1906. The contention is that this credible witness required by the act, is lacking here. This act after declaring that a credible witness besides the plaintiff is required, goes on and says:

“Or unless an action upon the asserted indebtedness shall have been brought within a delay of twelve months after the decease of the debtor.”

In this case the action was brought well within twelve months after the death of Galjour. Having been brought within that period, parol evidence was admissible, and the testimony of one credible witness, besides the plaintiff, was not indispensable to establish the indebtedness of the deceased debtor. The testimony of plaintiff and corroborating facts or. circumstances were sufficient proof to establish the debt.

. This we understand to be the last position taken by the Supreme Court on this question. See Succession of Manion, 148 La. 98, 86 South. 667. The claim here, it must be noted, is for a quantum meruit, and not upon, a contract. The proof shows by the testimony of other witnesses besides that of plaintiff, that she furnished board and lodging to deceased, and what it was worth. Such testimony fully corroborates plaintiff and fully establishes her claim, even if she was suing under a contract. C. C. 2277.

The last buttress of the defense is that plaintiff claims the deceased promised to compensate her, and that her testimony stands solitary and alone to prove this promise. The fact is, that the demand of the plaintiff is not grounded on this promise. The claim she makes is for board and lodging furnished deceased from which his obligation sprung, and not from the promise. The promise was simply that he would recognize her in his will. He failed to do this, and the súit followed to enforce the payment for board and lodging on a quantum meruit for which plaintiff recovered judgment in a reasonable amount, and properly. t

Affirmed.

ELLIOTT, J. Dissents. (Opinion may be found in 2 La. App 1605.)


author: CLAIBORNE, J.

text:
    No. 8852.
    Orleans Appeal.
    THE E. C. TAYLOR CO. v. N. Y. AND CUBA MAIL SS. CO., Appellants.
    (March 2, 1925, Opinion and Decree.)
    (March 30, 1925, Rehearing Refused.)
    (April 27, 1925, Decree Supreme Court. Writ of Certiorari and Review granted.)
    (July 29, 1925, Decree Supreme Court. 105 Sou., Adv. Rep. No. 4, p. 379.)

      (Syllabus by the Court.)

    1. Louisiana Digest — Master and Servant— Par. 1, 176, 177.
    When a person lets out work to another to be done by him, such person to furnish the labor and the contractee reserving no control over the work or Workmen, the relation of contractor and contractee exists, and not that of master and servant, and the contractee is not liable for the negligent or improper execution of the work by the contractor.
    Appeal from Civil District Court, Hon. Wynne H. .Rogers, Judge.
    This is a suit for damages to a barge and laying up of a towboat.
    Judgment for plaintiff. Defendant appealed.
    Judgment- reversed.
    Borah, Himel, Block & Borah, attorneys for plaintiff and appellee.
    Terriberry, Rice & Young, attorneys for defendant and appellant.
   CLAIBORNE, J.

The plaintiff, the Taylor Co., engaged in the towing business, made a contract with the Equipment Co, by which the Taylor Company was to tow from Indian Village, on Bayou Plaquemines, and unload, at its own expense, upon the wharves of New Orleans, 500 tons of steel rail.

When the shipment arrived at New Orleans there was no wharfroom found upon which to unload the rails. There was then lying along the wharf below New Orleans at Chalmette Slips the Steamship “Lake Inglenook” upon which the rails were to be eventually loaded for export.

The ship was represented by Dudley Thomas, agent of the defendant doing business in this State in the name of “Ward Line”.

’ It was then agreed between all three parties, the Taylor Company, the Equipment Company, and Mr. Thomas, that instead of unloading the rails upon the wharf at New Orleans at its expense, as it had agreed to do, the Taylor Company should tow the rails down to the Chalmette Slips alongside the “Lake Inglenook” and that the defendant Company should unload the rails at its own expense. In other words, instead of unloading and delivering the rails upon the wharves at New Orleans, the plaintiff, the Taylor Company, was to deliver the rails at the ship’s side.

The rails were contained in a barge and the barge was towed by a tug, both the property of the plaintiff.

In pursuance of said agreement the plaintiff towed the barge alongside of the ship.

The defendants then employed the G. Raymond Stevedoring Co. to unload the rails and put them aboard the ship “Lake Inglenook”. In unloading the rails, through the carelessness and negligence of the men in charge of the work, who, the plaintiff alleges were the employees of the defendant, some of the rails slipped through the sling of the derrick and pierced a hole through the barge from which they were being hoisted, the property of the plaintiff, the Taylor Company. This accident necessitated the docking of the barge for repairs for some eight days, and the laying up of the tow boat Alarm.

The repairs cost $740, which the defendant paid, and the plaintiffs are now claiming damages from the defendants in the sum of $1,784.25, composed as follows:

The laying up of the tow boat_________$1,044.25
Loss of use of barge____________________________ 240.00
Loss' of fuel oil in bottom of barge.. 800.00
$1,784.25

Among other defenses defendants alleged:

“Further answering defendant shows that the work of unloading the steel rails from Barge No. 30 on the steamship ‘Lake Inglenook’ was performed by the G. Raymond Stevedoring Company, an independent contractor.
“Neither defendant nor any of its agents or employees had anything to do with the unloading of said rails on the Steamship ‘Lake Inglenook’, and if there was any fault or negligence on the part of those in charge of unloading said rails (and defendant is without sufficient information to enable it to say whether or not there was any fault or negligence) it was a matter with which defendant had nothing to do and over which it had no control, as said work had, as before stated, been let out to an independent contractor over whom defendant had no control and for whose actions it was not responsible.”

There was judgment for plaintiff and defendant has appealed.

We do not think it necessary to deal with any defense other than the one above stated; for if the facts stated therein are established then the defendants are entitled to a judgment.

The plaintiff alleged that the “damage to said barge was negligence of the agents and employees of the New York and Cuba Mail Steamship Company in charge of' the unloading of said rails”.

The defendant’s liability must oe determined by the solution of the question whether the rails were being unloaded by the employees of the defendant or by an independent contractor. If by the former, the defendants are liable; if by the latter, they are riot. The question must be decided by the evidence.

Defendants’ agent, Dudley Thomas, testifies:

“Q- .Who actually unloaded the rails from the barge to the ‘Lake Inglenook’?
A. G. Raymond Stevedoring Company, contractor, and we arranged with them to do that.
Q. Who paid them to do that?
A. We did, for account of the steamer.
Q. Under what, conditions did you employ the Stevedores to unload these rails?.
A. At the tim,e tha.t barge was handled we were employing them on a cost plus basis.
Q. Did the Stevedores make a report to you as to having damaged the harge?
A. Yes, sir. About 5:30 or 6 o’clock at night they called me on the phone and said one of the rails went adrift and punctured the barge and that it was sinking, and I gave instructions to double up the gang and get all the rails off as quick as possible, work through the supper hour, which they did.
Q. The people were employed by you regularly to load all your boats, were they not?
A. Yes, sir.
Q. And were your agents for that purpose?
A. Yes, sir.
Q. Now what did you mean by that answer; yes, sir?
A. We had the contract with them, and they were in entire charge of loading and unloading the ship. *
Q. You are referring to the G. Raymond Stevedoring Co.?
A. Yes, sir,
Q. Now you say, in explanation of your testimony that the Stevedores were your agents, that you had them employed to do all your loading. Were they not responsible to you for any damage they did to your boat?
A. We held them responsible for any damage they would do, yes, sir.
• Q. You paid the repair bill for repairing the barge, $740.00?
A. We paid a bill to the Johnson Iron Works on instructions from the P. and I. Club; that is the American Ship Owners’ Protective Association. They instructed us to pay the hill to Johnson.
Q. They instructed you to pay it because you were in charge of the ‘Inglenook’ and had the work done?
A. They instructed us to pay it because Johnson had done the work and was entitled to his money. Who was to reimburse, the Club, I don’t know; but we were instructed to pay it and charge it to the shipping board in the account.
Q. Is. it not a fact that when you took this barge to the Johnson Iron Works to be repaired you told them the Ward Line would pay that bill?
A. No, sir.
Q. Didn’t you tell them you would see that they got their money?
A. No, sir, I don’t remember telling them that.”

Captain Robert E. Hart, Master and Pilot of the tow boat Alarm, witness for the defendant, testifies:

“Q. Who was unloading the rails at the time, of the accident which you report occurred?
A. It was being done by a Stevedore. I don’t know his name.
Q. „What caused the accident?
A.. The accident was caused by using a hook chain sling, as near as I can see, because there had been several bunches of rails slipping before.
Q. ' Was the method of handling the rails and unloading them, was it correct or careless?
A. Well, it looked careless to me.”

Mr. Taylor, President and General Manager of plaintiff company testifies:

“Q. Did you have anything to do with the Stevedores who unloaded these rails, as stated?
A. No, sir.
Q. Never talked to them or made any contract with them, or discussed the matter with them?
A. No, sir.”

That is all the testimony upon that branch of the case.

We think it establishes that the work of unloading the rails from the barge was being done by the Stevedoring Company as an independent contractor, and not by the servants or agents of the defendants. Nor does it matter that the Stevedore was being paid by cost plus basis.

In the case of Faren vs. Sallers, 39 La. Ann. 1011, 3 South. 363, the Supreme Court adopted the opinion of Wood on Master and Servant, quoting:

"Sec. 593 (312). Whpn a person lets out work to another to be done by him, such person to furnish the labor and the contractee reserving no control over the work or workmen, the relation of contractor and contracteé exists, and not that of master and servant, and the contractee is not 'liable for the negligent or improper execution of the work by the contractor.
“Sec. 614 (317). The simple test is who has the general control over the work? who' has the right to. direct what shall be done and how to do it? and if the person employed reserves this power to himself, his relation to his employer is independent and he is a contractor; but if it is reserved to the employer or his agents, the relation is that of master and servant.”

Thompson says the test is the right to discharge. Vol. 2, p. 892.

In the case of Gallagher vs. S. W. Exposition Assn., 28 La. Ann. 943, the Court said:

“Where a party lets a job of work to a competent and suitable contractor and does not retain or exercise any control or-supervision over the work, he cannot be held liable to any employee of such contractor for any injury -suffered by the employee while engaged in said work, on account of the fault of the contractor.”

In Peyton vs. Richards, 11 La. Ann. 62, the Court said:

“The evidence showed that the defendant had contracted with the. undertaker to put up the iron front on a building, and that" afterwards defendant made a special contract with T. for T. to do the same work with assistants and laborers employed and paid exclusively by T. & T.
“The work fell to the ground and killed the slave. Held, that T. was not the servant or overseer of defendant and consequently defendant was not liable.” In the body of the opinion the Court said: “In all the cases of damages awarded under the 2299th Article of the Code, the party who caused the damage was one under wages to the party defendant, and engaged in work of which the actual superintendence and control belonged to the defendant.” Gaillardet vs. Demaries, 18 La. 492; Hart vs. New Orleans & C. R. Co., 1 Rob. 178; Taylor vs. Mexican Gulf Ry. Co., 2 La. Ann. 654; Carmanty vs. Mexican Gulf Ry. Co., 5 La. Ann. 704; Camp vs. Church Wardens of Church of St. Louis, 7 La. Ann. 321.

In Riley vs. State Line S. S. Co., 29 La. Ann. 791, the Court held that a ship was not liable to an- employee of a stevedore caused by defective tackle, even if such tackle was -furnished by the ship, when it is shown that the tackle had no apparent defect.

This decision was affirmed in Sweeny vs. Murphy, 32 La. Ann. 628, although the workmen employed by the Stevedore were the sailors of the ship.

In Young vs. Ship Princess, 22 La. Ann. 389, it was held that an action for damages for a collision could not lie against a 'vessel at the time under the control of a tugboat.

In Davie vs. Levy, 39 La. Ann. 553, 2 South. 395, the owner was exonerated from liability for an obstruction placed across the street by one with whom he had contracted to bring coal into his yard.

In Mahan vs. Everett and Planters Molasses Co., 50 La. Ann. 1162, 23 South. 883, plaintiff was walking along the sidewalk where Everett’s employee was loading barrels for the Planters Molasses Co.; one of the barrels rolled against plaintiff and injured him. Held: Everett was an independent contractor for whose fault the Planters Molasses Co. was not liable. Held:

“The driver of the float whose negligence caused the accident was in the employment solely of the Everetts. He had no connection with the Molasses Company, and that corporation is not liable for his fault.
"While the molasses belonged to the Company and was being hauled to their store, the hauling was done under contract with the Everetts, who as boss draymen, were independent contractors. A contractor (contractee) is not liable for the negligent or improper execution of the work by the contractor; quoting Faren vs. Sallers, 39 La. Ann. 1011; 3 South. 363.” Thompson on Neg., p. 899, 26 Cyc. 1555, No. 9013 Ct. App.; Peyton vs. Richards, 11 La. Ann. 62; Sweeny vs. Murphy, 32 La. Ann. 628; Moffet vs. Koch, 106 La. 375, 31 South. 40; Clark vs. Tall Timber Lumber Co., 140 La 380, 73 South. 239; Ecuyer vs. Benevolent Assn. of Elks, 152 La. 73, 92 South. 739; Wood, Master and S., Sec. 312, p. 601.

The defendants, through their agent, Dudley Thomas, testify that they had a contract with the G. Raymond Stevedoring Company, and that “they were in entire charge of loading and unloading the ship”. There is' no testimony to contradict this witness. The judgment must therefore be in favor of defendants.

It is therefore ordered that the judgment appealed from be reversed and set aside and it is now ordered that there be judgment in favor, of defendants rejecting plaintiff’s demand at its cost.


author: BELL, J. WESTERFIELD, J.

text:
    No. 8799.
    Orleans Appeal.
    J. C. HEALY COMPANY, INC., v. ABRAHAM BURGLASS.
    (March 2, 1925, Opinion and Decree.)
    (March 31, 1925, Rehearing Refused.)
    (May 26, 1925, Decree Supreme Court. Writ of Certiorari and Review refused.)

      (Syllabus by the Court.)

    1. Louisiana Digest — Evidence—Par. 52.
    “Litigants owe the duty of assisting in every legitimate way in the elucidation of thd truth.”
    Bastrop Bank vs. Levy, 106 La. 591.
    2. Louisiana Digest — Evidence—Par. 41, 42.
    Where death of an important witness , deprives plaintiff of his power to fully prove the terms of a verbal contract or the delivery of goods for the price of which he has sued, the burden of'disproving the material allegations of plaintiff’s petition (partially proven) is upon the defendant, where it i<3 reasonable to assume that defendant is in possession of facts necessary to decide the issue. Failure of defendant, to appear at the trial or to offer any evidence which would enlighten or assist ' the court and jury, justifies a presumption that there is no serious defense to the suit.
    3. Louisiana Digest — Evidence—Par. 53, 54, 55.
    “All evidence is to be weighed according to the proof which it was in the power of one side to have produced and in the power of the other to have contradicted.”
    Appeal from the Civil District Court for the Parish of Orleans, Div. “G”, Hon. Columbus Reid, Judge.
    This is a suit to enforce a verbal con tract.
    There was judgment for plaintiff and defendant appealed.
    Judgment affirmed.
    A.' J. Rossi, F. F. Tessier, attorneys for plaintiff and appellee.
    E,d Rightor, attorney for defendant and appellant.
   BELL, J.

This case, now on appeal, was tried before a jury and judgment was rendered for plaintiff as prayed for. Defendant has appealed.

The suit was filed December 12, 1921, and arises from an alleged verbal contract for the purchase of twelve suites of bedroom furniture, at $118.00 per suite. Plaintiff sues for recovery of the total unpaid purchase price, amounting to $1,419.00. The petition sets forth that on August 20, 1919, plaintiff sold to defendant the furniture above described and delivered same to him on October 10, 1919, under a verbal con-' tract, by which it was agreed that the goods were to be paid for in cash sixty days after delivery, the price, however, to be subject to a discount of 5 per cent if the 'total bill was paid within thirty days of delivery, all as per itemized bills annexed to and made part of the petition.

■ It is further alleged that sixty days having elapsed since the delivery of the furniture to defendant, the price is long past due and that notwithstanding repeated amicable demands made upon defendant, he bias failed to pay any part of the claim now sued upon.

Exceptions of vagueness having been pverrúled, defendant answers the foregoing material allegations of fact, as set forth in plaintiff’s petition, and this he does by simply denying same. He bases his denial “upon lack of sufficient information to justify a belief”. He even adopts this form of denial in respect to plaintiff’s specific allegations that frequent amicable demands have been made upon defendant for payment of the claim sued upon.

After a transaction alleged to have begun over five and a half years ago, the material facts of which are denied only by .defendant’s counsel on simply counsel’s information and belief, and after counsel’s averment that his client, as defendant, lacks sufficient information to justify a belief in regard to plaintiff’s allegations, we are asked, as a court of justice, reviewing a judgment and verdict rendered nearly three years ago, to now reverse the judgment appealed from and to enter a non-suit against the plaintiff.

The record discloses that at the trial of this case, counsel for plaintiff requested the crier or deputy sheriff to call defendant for cross-examination under Act 126 of 1908. Effort to find the defendant in and about the courthouse was of no avail, and although his attorney was present throughout the trial, it does not appear that he made any explanation to the court or to the jury as to the whereabouts of his client, nor does he appear to have stated any reasons for his client’s absence.

The president of the plaintiff corporation is shown by the evidence to have died on March 22, 1922, subsequent to the institution of this suit and before the case was called for trial on June 2, 1922. The president’s nephew testifies that he was salesman and office. manager of the plaintiff corporation during the years 1919, 1920 and 1921; that he was familiar with the bills annexed to plaintiff’s petition and showing' defendant’s indebtedness for $1,490.00; that on three different occasions he presented the hill to defendant for payment, and that at no time did defendant deny the correctness of the hill or that he received the goods described therein. He finally swears that defendant has failed to pay for the goods. The only other witness on behalf of plaintiff are its two attorneys of record. One of these attorneys testified that the president of the corporation placed the claim in his hands for collection, and that he (witness) made demand upon defendant for payment of the claim, but received no answer from him. The other attorney testifies that he was authorized by the deceased president to file the present suit. There was no cross-examination of the plaintiff’s witnesses, no evidence offered on behalf of the defendant, nor did defendant move for a new trial after rendition of the verdict and judgment against him.

It is now argued by counsel for appellant that the verdict was not justified by the evidence, which, it is contended, was wholly insufficient to prove any contract or agreement of sale involving an amount over five hundred dollars, and, secondly, that no execution of the alleged contract by delivery of the goods in question has been proven. While the total contract price of the furniture amounted to $1,419, the account annexed to the petition and submitted to the jury and testified to without objection by plaintiff’s salesman and office manager, shows clearly that plaintiff company, as a wholesale dealer in furniture, sold to the defendant some twelve bed-room suites of furniture at $118.00 per suite. The account is shown, therefore, to be composed of as many as twelve items, not one of which exceeds five hundred dollars. As previously noted, this witness has testified to his familiarity with this account and his frequent efforts to collect the same from defendant. Evidence by this witness as to the correctness of each item is sufficient. (Rossignol vs. Triche, 28 La. Ann. 144.) But we find, as did doubtlessly the jury and the judge of the trial court, that circumstances surrounding this case are strongly corroborative of such evidence as has been given by this witness. Proof quite sufficient and within the provisions of Article 2277 of the Revised Civil Code has been adduced to justify the verdict.

The death of plaintiff’s most .important witne§s, occurring before trial and after suit, accounts beyond reasonable doubt for plaintiff’s inability to prove delivery of the goods or the terms and conditions under which they were sold. Of these facts — if they were facts — defendant is bound at all times to have had knowledge. If there was no contract or execution of the contract, no one other than defendant was better able to both plead and prove that which would have clearly established the issues necessary for the determination of this suit. Under the circumstances of the case, defendant, as a litigant, owed a clear - duty to the court to assist it and the jury in every legitimate way to elucidate the truth. However, he has elected by his evasive methods of pleading to avoid specific negation of the material facts set forth in plaintiff’s petition, and he has seen fit to absent himself from the trial of the case.

It is plain from the pleading (Act 157 of 1912) and its subsequent amendments (Act 300 of 1914) (Act 228 of 1924) that a qualified denial of a plaintiff’s articulated allegations may be made by a defendant upon the latter’s averment that he lacks sufficient information in regard thereto to justify his belief in the existence of facts as alleged. However, pursuance of such qualified and evasive methods of pleading— licensed though they be by law — cannot meet with the approval of courts where defendant is plainly or presumably in possession of such knowledge as would permit his positive and unqualified affirmation or denial of the facts which plaintiff has alleged and upon which the action has been predicated. (31 Cyc., pages 200, 201.) Such evasive denial of the material allegations of fact set up in the petition before us, and under such conditions as have already been noted, is tantamount to a failure to deny at all that which has been properly and necessarily alleged. It raises at least a presumption, if it be not an absolute admission, of the alleged facts, and serves to corroborate proof which, if not the strongest, is shown to be the only proof available to plaintiff in establishing his case.

Abundance of authorities support the doctrine which this court has repeatedly recognized to the effect that:

“The burden of proof lies with the party who is most cognizant with the facts necessary to decide the issue.” Underwood Typewriter Co. vs. Frank Vatter, 14 Ct. of App., 410; Felix vs. Bruce, 14 Ct. of App., 27; Orlesch et al. vs. Fairchild Auto Co., 13 Ct. of App., 303.

The duty which is encumbent on all litigants, to assist a court of justice in arriving at the truth, has fallen in the present case particularly upon the defendant, despite the fact that the law in this, as in other cases, compels the plaintiff to first establish his cause of action with as much certainty as possible and with as full and complete proof as is available. Defendant’s failure to appear at the trial or to furnish evidence peculiarly within his knowledge, impels the belief and justifies the conclusion that he could not have overcome or disproved what had been affirmatively alleged and reasonably established. The principle of evidence properly applied to cases of this sort is expressed in 10 R. C. L. 884 and 902, to-wit:

“The conduct of a party to a cause, may be of the highest importance in determining whether the - cause of action in which he is plaintiff, or the ground of defense if he is defendant, is honest and just. * * *
“And so it has become a well established rule that where evidence which would properly be part of a case is within the control of the party whose interest it would be to produce it, and without satisfactory explanation, he fails to do so, the jury may draw an inference that it would be unfavorable to him. Lord Mansfield’s maxim ‘All evidence is to be weighed according to the proof with which it was in the power of one side to produce and in the power of the other to have contradicted’, has frequently been quoted with approval. Neglect to produce demonstrative evidence by a party who has it in his power, justifies the inference that it would operate to the prejudice of his contention. * * *
“As a general rule, the omission by a party to produce important testimony relating to a fact of which he has knowledge, and which is peculiarly within his own reach and control, raises the presumption, open to explanation, of course, that the testimony, if produced, would be unfavorable to him.”
“Mr. Elliott in his work on Evidence, Vol. 1, page 194, paragraph 141, states the rulo as follows: ‘It is frequently said that a party is not bound to prove a negative nor a fact peculiarly within the knowledge of the opposite party and that the latter may have the burden of disproving, but the mere form of an averment is of little consequence so far as the rule as to the burden of the issue is concerned, and if, in order to establish his case and move the court in his favor, a party must prove a negative, the burden is usually upon him to do so.”

In Pruyn vs. Sheriff, 51 La. Ann. 323, 25 South. 125, the issue was as to simulation vel non of a sale of .real estate. The vendor having continued in possession, the court held that this shifted the burden of proof to the purchaser to show the reality of the sale, and that this burden was not discharged by the single testimony of the purchaser, but that as the vendor could have been called as a witness and was not called, the inference was that if he had been called his testimony would not have corroborated that of the purchaser.

In the case of Bastrop Bank vs. Levy, 106 La. 586, 31 South. 164, the cashier of the plaintiff hank having defaulted and having committed suicide, an effort was made to straighten the affairs of the hank, which was left in confusion by the cashier. The defendant appeared on the books as one of its largest creditors, but the bank having failed to require of him a pass-book when depositing funds with it, and the deceased cashier being the only one other than the defendant who was possessed of the information as to the exact amount of deposits which had been made by the defendant, it was held that, after the bank had made a prima facie case against the defendant and had not been able to establish the total amount of deposits which had been made by him, it was his duty when sued to assist the court in furnishing this information. It was held in that ease:

“Where a defendant can by his own testimony throw light upon matters at issue, necessary to his defense and peculiarly within his own knowledge, if the facts exist, and fails to go upon the witness stand, the presumption is raised, and will be given effect to, that the facts do not exist.”

See also State vs. Jahraus, 117 La. 293, 41 South. 575; Succession of Levitan, 143 La. 1025, 79 South. 829; Succession of Drysdale, 127 La. 890, 54 South. 138.

In the instant case; frequent statements appear to have been rendered to the defendant and frequent demands appear to have been made upon him for the settlement of this account. There is nothing before us to show that defendant at any time during a period of nearly two years, either protested or objected to the plaintiff’s claim.

“It appears reasonable enough to presume the acquiescence of a debtor in an account rendered to him if during a reasonable time for that purpose, he does not object to its correctness.” Shaw vs. Oakey, 3 Rob. 362.
“The account rendered and acquiesced in is proof of the indebtedness it exhibits.” Broadnax & Co. vs. Steinhardt & Co., 48 La. Ann. 682, 19 South. 572.

We are satisfied that the defendant in this case has had his day in court and that the verdict of the jury and the judgment resulting therefrom should not be disturbed.

It is, therefore, ordered that the judgment herein appealed from be' and the same, is hereby affirmed at defendant’s costs in both courts.

WESTERFIELD, J.

I am of opinion that this case should be remanded to afford plaintiff an opportunity to prove his case which so far as the record discloses he has failed to do in this instance.

Therefore, respectfully dissent.


author: WESTERFIELD, J.

text:
    No. 8835.
    Orleans Appeal.
    HARRY PERKINS, Appellant, v. J. K. LEWIS.
    (March 2, 1925, Opinion and Decree.)

      (Syllabus by the Editor.)

    1. Louisiana Digest — Appeal—Par. 625. .
    The finding of the trial court on questions of fact, in the absence of manifest error, is affirmed.
    Appeal from Civil District Court, Hon. Wynne G. Rogers, Judge.
    This is a suit for damages for personal injury.
    There was judgment for defendant and plaintiff appealed.
    Judgment affirmed.
    John J. Wingrave, attorney for plaintiff and appellant.
    Paul W. Maloney, attorney for defendant and appellee. .
   WESTERFIELD, J.

Plaintiff alleges lie was instructed by defendant to crank an automobile and that in endeavoring to do sp his arm, was fractured.. He attributes the accident to the negligence of defendant and sues for damages.

The alleged negligence is claimed to be due to defendant having stepped on the accelerator or, as plaintiff styles it, “too much juice” was given the automobile engine while he was endeavoring to crank it.

There is no proof whatever that defendant had anything to do with the engine while plaintiff was endeavoring to crank the car, except the statement of plaintiff to that effect, and plaintiff testified that he didn’t know what he meant by “too much juice”, and that he only used that term because he heard others using it in relation to automobiles. Defendant says he was not even in the car at the time. Only plaintiff and defendant testified as to the manner in which plaintiff was injured.

We see no reason to disturb the judgment which the trial court rendered in defendant’s favor and it is therefore affirmed.