text:
    No. 2716
    Second Circuit
    BUARD v. TEXAS & PACIFIC R. R. CO.
    (November 6, 1926. Opinion and Decree.)

      (Syllabus hy the Editor.)

    1. Louisiana Digest — Railroads—Par. 73, 78.
    Where one falls asleep sitting on a railroad track and is hit by an engine, recovery from the railroad company is based entirely on the doctrine of last clear chance.
    2. Louisiana Digest — Railroads—Par. 78, 79, 80.
    Where the preponderance of evidence fails to establish that the decedent was sitting on the rail or that he should ha^e been seen lying by the track, it fails to establish facts essential to the application of the doctrine of the last clear chance.
    Appeal from the Tenth Judicial District Court of Louisiana, Parish of Natchitoches. Hon. John F. Stephens, Judge.
    Action by Mary Buard against Texas and Pacific Railway Company.
    There was judgment for defendant and plaintiff appealed.
    Judgment affirmed.
    J. W. Jones, Jr., of Natchitoches, attor-. uey for plaintiff, appellant.
    Peterman, Dear & Peterman, of Alexandria, attorneys for defendant, appellee.
   WEBB, J.

The plaintiff, Mary Buard, brings this action to recover damages for .the death of her son, Walter Grimes, whose death is alleged to have resulted from the negligence of defendant in operating, one of its trains.

Plaintiff alleges that her son, issue of a former marriage, was killed at a point on defendant’s line near Natchitoches, where the highway crosses the railroad track, by a passenger train operated by defendant; that her son had walked for some distance and, becoming tired, had sat down on the railroad and fell asleep on the track; that the track at the point where the accident occurred was straight for some miles and that the operators of the train saw or could have seen her son lying asleep upon the track for a distance of five hundred yards and in ample time to have avoided the accident. She avers that the accident occurred! on tlie morning- of the 6th day of September, 1925, and at about 4:45 A. M.

Defendant answered, admitting that a boy named William Grimes had been struck and fatally injured by one of its trains on the date and at the hour alleged, but otherwise denied the allegations of plaintiff’s petition.

On trial judgment was rendered rejecting plaintiff’s demands and she appealed.

OPINION

On trial, plaintiff, without having made any ¡preliminary showing, offered parol evidence to prove that she had been married to one Dee Grimes and that decedent, Walter Grimes, was the issue of said marriage, which evidence was admitted o.ver the objection of defendant, and defendant urges that the objection should have been sustained, and the evidence offered ignored, leaving plaintiff without a cause of action.

However, in that event, and as there appears to be some conflict of authority as to whether the judgment should be affirmed or the case remanded for a new trial, or plaintiff’s demands rejected as of non-suit, we shall consider the evidence on the question as to the negligence of the defendant; as, if there was no negligence, it could serve no useful purpose to remand the cause or non-suit the plaintiff for failing to establish the alleged marriage and the legitimacy of her son, Walter Grimes.

The legal basis for plaintiff’s contention that defendant was negligent is the doctrine of the last clear chance, and conceding without deciding that the time and place where the accident occurred are shown to have been such as that the trainmen in the exercise of ordinary care were bound to maintain a lookout for persons sitting or asleep on or near the track, it -must be conceded that in order that the doctrine may be applied under the pleadings, it must appear from a clear preponderance of the evidence.

That the deceased, at the time of the approach of the train, was in a position of danger on or near the track, and that his position was such as that the trainmen, in the exercise of ordinary care, should have seen the deceased and realized that he was in a helpless condition, or unaware of the approach of the train, in time to have avoided the accident.

T'he evidence as to the position of the deced'ent, as stated by -plaintiff’s witness, Luther Bolden, who was with the deceased at the time of the accident, was that he (Bolden) had stopped on the track just north of where a public highway crosses the track, about an hour before the accident; that he (Bolden) had laid down with his head on the end of a crosstie with his feet extending out, and that decedent had sat down a short distance from witness in the direction from which the train was coming; that he sat on the rail, his feet resting on the end of the cyossties, with his elbows resting on his knees, and holding his head in his hands; that he (Bolden) fell asleep and was awakened by the noise of the approaching train, which was at that time within a distance, estimated by the witness, of fifteen to thirty-five feet, and that he (Bolden) jumped and called to decedent who. the witness staled, was in the same position which he occupied when the witness fell asleep), and that decedent jumped up and “kinder fell back”.

The evidence establishes that the train was running at about thirty-five miles per hour and that the body of decedent was found on the other side of the track at a distance of forty-five or fifty yards from where the witness (Bolden) states that he and decedent had stopped.

It was shown that immediately after the accident Bolden had stated that decedent “jumped and ran right in front of the engine” and there was some evidence offered tending to show that decedent was not struck by the locomotive.

The engineer testified that he was maintaining a lookout and that he did not see the boys and did not know that decedent had been injured until the following day.

The evidence establishes that the track was straight; that the' signals had been given for the crossing, and that the engineer could see a person sitting on the rails for a distance of one hundred and fifteen yards or within a distance that the evidence indicates the train could have been stopped.

It is apparent that, considering the speed of the train, Bolden (if his testimony - was otherwise correct) underestimated the distance between himself and the train when he was awakened, but we think that was very natural, and we consider the testimony of the witness as merely indicating that the period of time after the witness was awakened and the accident was exceedingly short.

The accident occurred at night; the witness was suddenly awakened from deep sleep, and in the glare of the headlight he saw and heard the train rushing towards him, and we can well account for the variance in his estimate of distances at that time, as well as the variance between the statements which the witness made immediately after the accident and the state-men made by him on the witness stand.

We think that-1 we detect a note of uncertainty in the testimony of the witness as to what actually did occur, and even if there was no other testimony than that of Bolden, we aré of the opinion that the lower court was warranted in refusing to find the defendant guilty of negligence upon the testimony of the witness.

However, the engineer stated that he was maintaining a lookout and that he did not see anyone on the track, and the evidence showing that the engineer could have seen decedent had he been 'sitting on the rail, we find that the preponderance of the evidence fails to establish that decedent was sitting on the rail, and as there is no evidence that decedent should have been seen if he was lying by the track, as the witness Bolden claims to have been, we are of the opinion that the evidence fails to establish the fact essential to the application of the doctrine of the last clear chance.

Por the reasons assigned the judgment appealed from is affirmed.


source: Caselaw Access Project

author: ODOM, J.

license: Public Domain

text:
    No. 2813
    Second Circuit
    PARKER v. LETON GIN CO.
    (November 6, 1926. Opinion and Decree.)

      (Syllabus by the Editor)

    1. Louisiana Digest — Master and Servant —Par. 158.
    Where one is employed to operate a press, but his duty is also to assist in doing work around the giristands, he is within the scope of his employment in working around the ginstands.
    2. Louisiana Digest — Master and Servant —Par. 159.
    One will be granted compensation as for ' total disability during the time of re- ■ covery from an operation amputating a portion of the iphalanx of a finger, although it was possible for him to drive ■an automobile- using his other hand.
    3. Louisiana Digest — Master and Servant —Par. 159,'159 (a).
    The' amputation of a portion of the first, phalanx of the middle finger which caused total disability for. eight weeks, but no disability thereafter, will not be sufficient for the court' to grant compensation for any longer period of time under the Employers’ Liability Act No. 20, 1914, and amendments.
    Appeal from the Second Judicial District Court of Louisiana, Parish of Webster. Hon. John S. Richardson, Judge.
    Action by John W. Parker against Letón Gin Company.
    There was judgment for defendant and plaintiff appealed.
    Judgment reversed.
    Robertson & Gibbs, of Shreveport, attorneys for plaintiff, appellant.
    Lee & Lindsey, of Minden, attorneys for defendant, appellee.
   ODOM, J.

The plaintiff brings this suit under the Workmen’s Compensation Act to recover compensation for 109 weeks, alleging that he was injured while operating a gin owned by the defendant.

He claims total disability for nine weeks and compensation for 100 weeks additional.

The defense is a general denial coupled with the special plea that plaintiff was employed to operate the presses and that it was no part of his duty to operate the ginstand at which he was injured and that, therefore, his injury did not arise in the scope of his employment.

There was judgment in the District Court rejecting plaintiff’s demands, from which he has appealed.

OPINION

The testimony shows that plaintiff was employed by the defendant gin company at a daily wage of $3.00.

While plaintiff alleges and swears that he was employed to operate the gin, the testimqny adduced by defendant is to the effect that he was employed to operate the press and not the gin stand.

The testimony satisfies us that, as a matter of fact, plaintiff was employed jo operate the gin presses and not the gin-stand; but it also satisfies us that it was customary for the employees of the defendant company, while operating its gin, to assist in whatever work1 around the gin might become necessary.

It seems that at the time plaintiff received the injury of which he complains they were ginning wet cotton which very frequently clogged the saws, when 'it became necessary to stop the gin and clean the saws.

The testimony introduced by defendant shows that at such times it was customary for all those engaged in and around the g!n to assist in cleaning the saws. The party employed as bookkeeper testified that he had, on occasions, quit his work and assisted in such work around the ginstand, and that, while it wUs not the duty of the men employed to operate the presses to work at the ginstands, that it was customary to call in the various hands to assist in that work.

There is no testimony that any of -the defendants had ever instructed plaintiff not to work around the ginstands, and while they all state that it was not plaintiff’s duty to work there, yet the evidence makes it perfectly clear that, as a matter of fact, he did so on occasion when assistance was necessary.

Plaintiff testified that while he was working around one of the ginstands he got his hand caught in some part of the machinery and had it crushed and badly injured.

The defendant, in brief, states its defense as follows:

“Plaintiff suffered this injury while attempting to relieve the choked condition of the ginstand, which had become clogged with unginned cotton. Defendant’s contention is that, as plaintiff was acting outside the scope of his employment at the time of the injury, the accident- did not arise out of and in the course of his employment, and, therefore, -defendant is not liable, and that the injury was of such a minor nature as not to entitle plaintiff to compensation.”

As already stated, it is true that it was not plaintiff’s duty to operate the ginstand, yet the testimony shows beyond question that it was customary for the men employed to operate the presses to assist in doing work around the ginstands when the occasion demanded it.

Our opinion is that defendant’s contention that plaintiff was not injured in the course of his employment is not well founded.

Doctor Worley, who dressed plaintiff’s wound, described the injury as follows:

“Well, the middle finger — this finger here — was lacerated and torn. The end of it was entirely torn off and the nail was almost torn off and the bone was crushed. This finger here was mashed and was cut around the nail; I have forgotten whether it was this side or this side. I had to amputate this finger here back about two-thirds from the end of the bone.”

Further testimony from Doctor Worley elicited the fact that only a portion of the first phalanx, of the middle finger was amputated, and that this finger for quite a while after the accident was slightly stiff and somewhat tender. Aside from that, there seems to be no permanent injury to plaintiff’s right hand.

Plaintiff testified that, while he was able on the date of the trial, in May, following the accident on November 17, to plow and do other farm work, his hand was still tender and that it sometimes hurt him at night after a day’s manual labor.

Doctor Worley testified that plaintiff’s disability was very slight and that his hand was constantly getting better.

The testimony convinces us that plaintiff received no permanent injury and that he is not entitled to compensation beyond the period during which he was disabled by the accident.

While plaintiff does not so state, specifically, we gather that his demand for compensation over a period of 100 t^eeks is based upon Clause (e) of Subsection 1 of Section 8 of the Act.

However, there is no testimony to warrant the court in awarding him compensation under that clause.

There is no question, however, but that plaintiff is entitled to receive compensation during the period of his disability. He testified that he was unable to do any work for some nine or ten weeks. He was under the care of Doctor Worley from 'November 17 until January 16 the following year, or approximately 53 days. During that time, we are satisfied, he was not physically able to do manual labor of a reasonable character, the injury being to his right hand. And while it is shown that he was a,ble to drive an automobile during that time, it is also shown that he used his left hand entirely in doing so.

We think that plaintiff is entitled to compensation during the period of eight weeks.

There is some testimony in the record that' a few days subsequent to the date of the injury one of the defendants told plaintiff that when his hand quit hurting him he might come back to the gin and take charge of the wagons in the' yard, which required no physical exertion except' marking and numbering of the wagons.

We think it probable that plaintiff could have done this work, provided he could use chalk for marking the wagons with his left hand.

But the fact remains that he was physically unable to do any work of a reasonable character, and even though defendant was willing to give him some light work and to pay him some compensation therefor does not destroy the fact that he was not able to do manual labor of a reasonable character over that period of time.

Plaintiff was receiving $3.00 per day for his services, which amounts to a weekly compensation of $18.00. He is entitled to 65 per cent of that amount, or $11.70 per week for a period of eight weeks.

Thq testimony further shows that his doctor’s bill amounted to $50.50, which should be paid by defendant.

For the reasons assigned, it is therefore ordered, adjudged and decreed that the judgment of the District Court be reversed and avoided, and it is now ordered that plaintiff have judgment against the defendant for compensation at $11.70 per week for a iperiod of eight weeks and the sum of $50.50 medical bill.

It is further ordered that defendant pay all costs of this suit.


author: WEBB, J.

text:
    No. 2855
    Second Circuit
    McCALMONT v. STERKX
    (Jan. 28, 1927. Opinion and Decree.)
    (Feb. 24, 1927. Rehearing Refused.)

      (Syllabus by the Editor.)

    1. Louisiana Djgest — Automobiles — Par. 4 (b).
    One who approaches a right-of-way street is required by law to exercise a higher degree of care than one driving on the right-of-way street.
    2. Louisiana Digest — Automobiles.—Par. 8.
    Where the evidence as to negligence of the parties in a suit and reconventional demand arising from an automobile collision is conflicting, the suit and reconventional demand will be dismissed.
    (Civil Code, Art. 2315. Editor’s note.)
    Appeal from the City Court, Alexandria Ward, Rapides parish. Hon. J. B. Nachman, Judge.
    Action by Mrs. Callie D. McCalmont, et al., against Joseph Sterkx.

      There was judgment for defendant and plaintiffs appealed.
    Judgment affirmed.
    Thornton, Gist & Richey; T. A. Carter, of Alexandria, attorneys- for plaintiffs, appellants.
    Overton & Hunter, of Alexandria, attorneys for defendant, appellee.
   WEBB, J.

An automobile belonging to J. A. McCalmont, while being driven by his wife, collided with a truck belonging to Joseph Sterkx, which was being driven by an employee of the latter, at the intersection of Murray and Seventh streets in the city of Alexandria, resulting in damaging the vehicles and injuring Mrs. Mc-Calmont.

Mrs. McCalmont and her husband filed suits against Joseph Sterkx to recover damages, alleging that the collision was due to the gross fault and carelessness of the driver of defendant’s truck, in that the truck approached and came on the intersection from Seventh street at an excessive rate of speed and after the automobile had entered the intersection from Murray street, and that the driver was not paying any attention to the traffic.

Defendant answered, denying any negligence on the part of his driver, or that the automobile had approached or entered the intersection prior to the truck, and alleged that the truck approached and entered the intersection prior to the automobile, and that the collision was due solely to the negligence of Mrs. McCalmont attempting to pass in front of the truck, and he reconvened for damages. He also alleged that under the ordinances of the city of Alexandria the truck had the right-of-way over the intersection, and pleaded, in the alternative, contributory negligence.

The suits were consolidated, and on trial judgment was rendered rejecting the demands of all parties, from which plaintiffs appealed, and defendant answered the appeal, praying that the judgment be amended and his reconventional demands allowed.

OPINION

Murray and Seventh streets intersect at right angles. The automobile came on the intersection from the east, while the truck came from the south, and the collision occurred at about the center of the intersection, at which time "each of the vehicles had traversed approximately an equal distance on the intersection and each was to the right of the center of the street from which the cars entered the intersection.

The left side of the automobile, at a point near the rear wheel, came in contact with the front of the. truck at about the left wheel, and after the collision the automobile continued on its general course, west, over the intersection, striking the curb on Murray street at a short distance west of the northwest corner of the intersection.

There were three persons who claimed to have seen the collision, who were, Mrs. McCalmont ánd Huel Bell, the driver of the truck, and Plez Randolph, who was riding on the truck.

Mrs. McCalmont states that as she approached the intersection she slackened the speed of her car and just before entering the intersection she observed the truck at a 'distance of about half a block and that as she was proceeding across the intersection, being at about the center, she observed the truck on the intersection approaching at a rapid rate of speed, and the driver looking back, apparently talking with someone, and that she accelerated the speed of her car in an attempt to avoid the collision; while Ruel Bell states that the truck approached and entered the intersection at speed of about nine miles per hour, and had proceeded thereon for some distance, when the automobile came upon the intersection and the driver of the automobile attempted to pass in front of the truck; he denied that he was looking back over the truck or talking to any one, and said that he had tried to stop the truck and had almost stopped it at the time of the collision; and Bell’s testimony is supported by the testimony of Randolph.

The ordinance filed in, evidence provides that vehicles approaching the intersection from Seventh street have the right-of-way over vehicles approaching from Murray street, and it declares that vehicles approaching from Murray street shall stop, if necessary, to avoid collision with vehicles approaching from Seventh street.

The contention of the parties is, on behalf of plaintiffs, that the physical facts, that is, the situation of the cars at the moment of impact, and the fact of the truck continuing to move after the collision, and striking the curb, supports the testimony of Mrs. McCalmont, or, at least, shows that the driver of the truck should have turned further to the right and avoided the collision; and, on behalf of defendant, the same physical facts are claimed to support the testimony of Bell and Randolph, and further it is contended that the evidence at least shows that Mrs. McCalmont, with knowledge of the approaching truck, failed to yield the right-of-way, but attempted to (pass in front of the truck in violation of the ordinance.

We do not think that the position of the cars at the moment of impact supports the testimony of either of the witnesses, in that it does not necessarily, conflict with the other, and the fact of the truck continuing to move after the collision, we think, is explained by the fact that the automobile was being driven at considerable speed at the time of impact and that the bumper on the automobile caught the truck and pulled with sufficient force to tear the bumper aloose from the automobile.

We do not think the evidence is sufficient to admit the application of the doctrine of the last clear chance, although it appears that the driver of the truck may have avoided the collision by turning further to the right; but it cannot be said he was guilty of negligence in failing to do so, if the situation which required such action was created by the continuing fault of Mrs. McCalmont. Neither do we think that if we should ignore the testimony of the witnesses for defendant, who claim to have seen the accident, and accept the testimony of the witnesses for plaintiff, that the evidence would necessarily lead to the conclusion that Mrs. McCalmont had violated the ordinance in entering upon the intersection from Murray street when she saw the truck approaching the intersection on Seventh street.

However, it must be conceded that collisions between vehicles (at street intersections) which have approached and entered the intersection from different streets, where the drivers of the respective vehicles had an unobstructed view of the other vehicle, as it approached the intersection, are inexcusable, and if any weight or consideration is to be given to an ordinance giving the right-of-way to vehicles which approach intersections from one street over those which approach from another, we think the driver who is required to yield the right-of-way must exercise a higher degree of care at intersections than the driver of the vehicle which has the right-of-way; and that where there is a conflict in the testimony as to which of the drivers was at fault, the presumption is against the one who was required by law to exercise the higher degree of care.

In the present instance there was one witness for plaintiffs and two for defendant, who claimed to have seen the collision, and their testimony is directly in conflict as to which of the drivers was at fault; and each of the parties ■ demanding damages, and carrying the burden of proof to establish negligence on the part of the other, the trial court was unable to determine that the collision was due solely to the fault of either; and in view of the place of collision, and of the law which placed upon Mrs. McCalmont the duty of exercising a higher degree of care, we cannot say that the judgment was manifestly erroneous.

If we should ignore the testimony of the driver of the truck and the witness who was riding on the truck, the testimony of Mrs. McCalmont, who does not undertake to estimate the speed at which she came upon the intersection further than to say she was driving at slow speed, patently suggests that she was in error as to the position of the truck when she entered the intersection, -as it is difficult to understand how the truck could have traversed the comparatively great distance of half a block while the automobile moved only twenty or twenty-five feet (Uzzo vs. Torres, 3 La. App. 292) unless the speed at which the truck approached the intersection was very must greater than the speed of the automobile; and if that be the case, Mrs. McCalmont £hould not have entered the intersection (Berry, Automobiles, 4th Ed., 847), but should have stopped her automobile as required by the ordinance.

The judgment appealed from is affirmed.


text:
    No. 2724
    Second Circuit
    NELMS v. HANKINS BROS.
    (Nov. 6, 1926. Opinion and Decree.)

      {Syllabus by the Editor.)

    1.. Louisiana Digest — Appeal—Par. 482, 518.
    An appeal will be dismissed where a transcript was presented to the clerk of the court without the evidence, he being prohibited under the rules of the court, from filing it.
    2. Louisiana Digest — Appeal — 'Par. 482, 483.
    The clerk of the court is not required to file any transcript until the usual filing fee is paid, and if not paid by the return day, the appeal will be dismissed.
    Appeal from the Tenth Judicial District Court of Louisiana, Parish of Natchitoches. Hon. John P. Stephens, Judge.
    Action by Jerry Nelms against Hankins Brothers.
    • There was judgment for defendants and plaintiff appealed.
    Appeal dismissed.
    J. W. Jones, Jr., of Natchitoches, attorney for plaintiff, appellant.
    S. R. Thomas, of Coushatta, attorney for defendants, appellees.
   ON MOTION TO DISMISS APPEAL

ODOM, J.

According to the minutes of the District Court, there was judgment rendered rejecting plaintiff’s demand on December 19, 1925.

On December 28, 1925, plaintiff asked for and was granted an order of appeal made returnable to this court on February 23, 1926.

It seems that the appeal was not perfected.

At the request of plaintiff, another appeal was granted on February 6, 1926, and made returnable to this court on or before March 15, 1926.

Having failed to perfect this appeal, another appeal was granted on April 7, 1926, made returnable to this court on or before April 26, 1926.

The transcript was finally lodged in this court on June 2, 1926, or thirty-seven days after the return day had expired.

Appellant asked for no extension of time in which to perfect the appeal and the time was not extended by consent of the parties.

Appellees have filed a motion in this court to dismiss the appeal on the ground that the transcript was not filed in time.

The appeal should be dismissed.

Bourgh vs. Hester, 1 La. App. 152.

Laiche, et al., vs. Martin, et al., 135 La. 798, 66 So. 226.

Counsel for appellant states, in his answer to the motion to dismiss, that the deputy clerk of the District Court failed to file or to deliver the transcript to the clerk of the Court of Appeal on or by the 26th day of April, the return day fixed by the district judge, but that he did—

“* * * deliver said transcript, less the evidence of said cause, to the said clerk qf this Honqrable Court (Court of Appeal) on the 27th day of April, 1926, without the deposit of five dollars filing fee.” Italics ours.

Counsel thereby set out two reasons why the clerk of this court was not required to file the transcript—

1. Because the transcript was not complete, and

2. Because no filing fee accompanied the transcript.

Rule II of this court provides that—

“In preparing the record for appeal to this court the clerks of the District Courts shall bind or fasten the pleadings, evidence and all documents filed in the case, except such documents and articles as cannot be conveniently so bound, in book form, fastened together at the side or tap of the pages and covered with cardboard,” etc.

And—

“It shall be the duty of the clerk of this court to refuse to receive, file or docket in this court any record not so made up in accordance with the foregoing rule.”

The transcript having been presented to the clerk of this court without the evidence, he was prohibited, under the rule, from filing it.

The filing fee of $5.00 was not paid.

Rule I of this court reads as follows—

“Rules of practice regulating appeals and proceedings in the Supreme Court of Louisiana shall under Section 27, Article VII of the Constitution apply to appeals and proceedings in this court so far as they may be applicable.”

Rule II of the Supreme Court reads as follows—

“The clerk of this court shall not be required to render services in his official capacity, whether by way of filing transcripts or otherwise, save upon the payment of such costs as- the law allows.”

The clerk of this court is not required to •file any transcript until the usual filing fee is paid.

Counsel, in his answer to the motion to dismiss, sets up that it was the clerk’s duty to' file the transcript as soon as received—

“* * * though it may not have been his duty to place the same on the docket of this Honorable Court.”

Counsel’s position is not supported either by law, rules of the court or custom. Attorneys who practice before this court all understand that it is now and has always been the rule that no transcript can be filed in this court without payment of the fee of $5.00.

That counsel for appellant so understood is evidenced by the fact that he paid the fee when the transcript was filed on June 2, 1926.

For the reasons assigned, it is ordered that the appeal in this case be dismissed at appellant’s costs.


text:
    No. 2789
    Second Circuit
    RAY v. LOUISIANA OIL REF. CORP.
    (Nov. 6, 1926. Opinion and Decree.)

      (Syllabus by the Editor.)

    1. Louisiana Digest — Appeal—Par. 625; Master and Servant — Par. -160 (j), 160 (I).
    Where plaintiff, an injured employee, suing for compensation under the Workmen’s Compensation Act No. 20 of 1914, fails to prove that the injury complained of was received in the course of his employment, this finding of fact by the trial court, being clearly correct, will he affirmed.
    Appeal from the First Judicial District Court of Louisiana, Parish of Caddo. Hon. E. P. Mills, Judge.
    Action by Will Ray against Louisiana Oil Refining Corporation.
    There was judgment for defendant and plaintiff appealed.
    Judgment affirmed.
    Long & McSween, of Shreveport, attorneys for plaintiff, appellant.
    Blanchard, Goldstein & Walker, of Shreveport, attorneys for defendant, appellee.
   ODOM, J.

Plaintiff brings this suit to recover compensation under the Workmen’s Compensation Act (Act No. 20 of 1914, and amendments).

He alleges that on or about the 14th day of February, 1926, while engaged in work for the defendant company in fitting pipe at its plant, his right foot slipped, causing him to fall to the floor, thereby fracturing the right hip and otherwise deranging and tearing the bones, muscles, ligaments, tissues, nerves and structures in and about the hip joint and small of the back, and that his injuries were such as to disable him from doing any work of a reasonable character.

The defendant denies these allegations, specifically setting up that plaintiff received no injury while in its employ.

A trial of the case resulted in a judgment in the District Court rejecting plaintiff’s demand, from which he prosecutes this appeal.

Plaintiff testified as a witness on his own behalf that while using a socket wrench he was taking off a nut from a, one-inch bolt and that while in a sitting position his right foot slipped which caused him to fall and his back was hurt in the manner set forth in ithe allegations of his petition.

He testified that he worked on until. 4:25. There is testimony to the effect that he claimed that the injuries occurred about 11:00 o’clock^ in the forenoon. However, ■ the testimony is not very clear as to what time the alleged injury took place. Plaintiff testified that he told Mr. Mclnnis that he was hurt and that Mclnnis heard him tell Mr. Burgé, foreman of the pipe-fitting gang, that he was hurt.

However, plaintiff’s testimony on this ■ point is denied by both Mr. Burge and Mclnnis. Mr. . Burge testified that he was • foreman of the pipe-fitting gang and that, he does not recall that plaintiff complained to him of receiving any injury. Mr. Me- ■ Innis testified that he was the plaintiff’s partner in the work and that if plaintiff fell and received any injury while at work he knew nothing about it, and he specifically states what he knows about the matter, as follows:

“Well, he mentioned about it being hard work and getting off or wanting to get off; and during that time some one said: We are stuck tonight, good and hard’, and he says: ‘Not me. I am going at four thirty.’ And I paid him no mind, and we just had to cut back a valve and bolt it on; and when I got back I walked up there and we put the valve on. You understand there was four bolts in it and Ray dropped one of the bolts and he says, T can’t stoop down on account of my hip.’ I never paid any attention, but put the bolt in. That was right around five o’clock.”

Another laborer who was working with Mr. Ray says that Ray told him prior to February 14th, which is the date on which Ray claims to have been injured, that his back gave him trouble and that Ray spoke about having been out on a party, but did not say that his dissipation on the party caused his back to hurt.

These are the only witnesses who gave testimony on the particular point as to whether the plaintiff slipped and fell as he says he did. It is clear, therefore, that plaintiff has failed to make out his case, for he has failed to show that as a. matter of fact he received any injury while at work for the defendant.

There were, a number of physicians called, two by the plaintiff and some four • or five by the defendant. Their testimony, as a whole, shows that plaintiff is suffering a slight disability on account of a sore condition in the region of the sacro iliac joint.

Doctor- Adair, who was called by plaintiff, testified that he made an x-ray of the sacro iliac joint which, he testified, showed that there was a slight slipping of that joint and that the slipping could have been caused by the fall which plaintiff described to him.

Doctor Geddes, an osteopath, testified that he had treated plaintiff and that one of his legs was slightly longer than the other, which could have been caused by the slipping or straining of the sacro iliac joint.

Doctor Murphy, a physician who was called by the defendant, testified that he treated plaintiff and that the x-ray plates which he examined show chronic arthritis of the- lumbar spine. He explained that arthritis means an inflamed condition of •the joints between the vertebrae.

The defendant also called Doctor Ragan, Doctor Hargrove, Doctor Abramson, and Doctor Crain, each of whom testified that from their examination of the x-ray plates plaintiff’s condition was produced by chronic arthritis and not from any strain or displacement of the sacro iliac joint.

There was introduced in evidence an x-ray picture of plaintiff’s teeth, which shows an abscess at the root of one of them, and the physicians are unanimous in the opinion that this abscess was sufficient to cause what they call focal infection and produce arthritis.

Plaintiff testified that he received the injury of which he complained on February 14th, and that one week later he returned to work and worked for about one month, losing during that time, some three or four days. He testified, that after receiving the alleged injury he continued to work until 4-25 in the afternoon of the same day. All of the physicians are of the opinion that if plaintiff had received th,e injury of which he complains, the maximum' pain and disability would have resulted immediately, and that if plaintiff had received the injury of which' he complains it would have been impossible for'him to continue his work. These physicians explain, at length, the reasons for their conclusions.

Plaintiff having failed to make out his case on the question of fact, the demands were properly rejected by the lower court.


text:
    No. 2781
    Second Circuit
    GOODWIN v. STANDARD OIL CO. OF LA.
    (Nov. 6, 1926. Opinion and Decree.)
    (Nov. 20, 1926. Rehearing Refused.)

      (Syllabus bv the Editor.)
    1. Louisiana Digest — Master and Servant —Par. 160 (g).
    The interruption of prescription provided for by Section 31 of Act 20 of 1914 and amendments, the Workmen’s Compensation Law has reference to payments of compensation made under the act and is not interrupted by annuities and benefits paid the injured employee after the accident.
    Appeal from the First Judicial District Court of Louisiana, Parish of Caddo. Hon. F. X. Ransdell, Judge.
    Action by John J. Goodwin against Standard Oil Company of Louisiana.
    There was judgment for plaintiff and defendant appealed.
    Judgment reversed and plea of prescription sustained.
    Long & McSween, of Shreveport, attorneys for plaintiff, appellee.
    T. M. Milling; F. L. Hargrove, of Shreveport, attorneys for defendant, appellant.
   ODOM, J.

Plaintiff brought this suit under the Workmen’s Compensation Act (Act 20 of 1914 and amendments) claiming full compensation for 400 weeks for an injury alleged to have been received while engaged in work for the defendant.

The defendant answered, denying liability to any extent and especially alleged that it had no knowledge of an injury to plaintiff while he worked for it and that the first knowledge it had that plaintiff claimed to have received such injury was when the suit was filed and service made.

During the progress of the trial the defendant filed a plea of prescription of one year which it urges as a bar to plaintiff’s suit.

There was judgment in the lower court for plaintiff as prayed for and defendant prosecutes this appeal.

ON THE PLEA OF PRESCRIPTION

The plea of prescription is based upon Section 31 of Act 20 of 1914, which reads as follows:

“That in case of personal injury (including death resulting therefrom) all claims for payments , shall be forever barred unless within one year after the injury or death the parties shall have agreed upon the payments to be made under this act, or unless, within one year after the injury proceedings have been begun as provided in Sections 17 and 18 of this act. Where, however, such payments have been made in any case, said limitations shall not take effect until the expiration of one year from the time making the last payment.”

Plaintiff filed this suit on August 26, 1925.

In his petition he alleged that he received the injury of which he complained and which he claims disabled him—

“* * * in the month of August, 1924, petitioner being unable to supply a more definite date.”

As a witness in his own behalf, plaintiff was asked to fix the date on which he was injured and he said:

“Somewhere near the first of August.” (Page 24 of the evidence.)

Doctor G. H. Cassity, a physician called by plaintiff, stated (page 36 of the testimony), that he examined plaintiff on January 21, 1926, the day before the trial, and was asked to state his findings and he said, among other things—

“He (referring to plaintiff) claims to have sustained an injury on or about August 1st by lifting a tractor wheel.”

Plaintiff took the testimony of Floyd Adkins and Clyde Musgrove who had worked for defendant along with plaintiff, but they could not fix the date of the alleged injury, although Adkins was asked: “Do you recall working with him on or about the Tatter part of August, 1924?” and he said: “Somewhere along in there. I don’t know just what time.” On cross-examination he said: “As well as I remember it must have been in August, but I don’t remember for sure.”

Plaintiff, as stated, in his testimony fixed the date at about the first of August, 1924, and on the day before the trial gave Doctor Cassity the same date. As the suit was not filed until August 26, 1925, more than one year elapsed between the date of the alleged injury and the date on which the suit was filed.

Under section 31 of the act the plea of prescription is good, unless the parties within one year after the accident “agreed upon the payments to be made under this act”, 'and there is no contention that such was done, or unless the limitation of one year as fixed in the act for bringing such actions has no effect on account of payments made by" defendant as provided in the last sentence of section 31 thereof, which reads as follows:

“Where, however, such payments have been made in any case, said limitations shall not take effect until the expiration of one year from the time (of) making the last payment.”

It is undisputed, in fact, proof administered by defendant shows, that a number of payments were made by defendant to plaintiff after the date on which he claims to have been injured, the last of these payments being made as late as November 20, 1924, or nearly three months after the suit was filed.

Counsel for plaintiff contend that the limitation of one year as prescribed in the statute, did not take effect until one year from the time of making this last payment.

•If defendant intended to make these payments to plaintiff as compensation under the Workmen’s Compensation Act for disability caused by an injury which it knew plaintiff has suffered while in its employ and said payments had been so received by the plaintiff, the position taken by counsel is unquestionably well founded. But it is also true that payments not so intended by the employer and not so received by the employee do not have the effect of prolonging the period for bringing such actions under the statute. It provides that in cases of personal injury all claims are barred unless within one year after the injury the parties shall have agreed upon the payments to be made under this act or unless within one year after the injury proceedings have been begun under sections 17 and 18 of the act. Then follows the sentence which provides that—

“Where, however, such payments have been made”,

that is, payments for personal injuries and payments “made under this act”, the limitation shall not take effect, etc.

The words “such payments”, used in the second sentence of the section, refer to payments made under this act as set forth in the first sentence of the section.

Payments of compensation made by an employer to an employee according to the schedule laid down in the act, with knowledge of the injury and resulting disability, are in the nature of admissions of liability under the act. But the payment of a sum of money by the employer to his employee is not necessarily a payment of compensation under the act.

Plaintiff, in support of his contention, cites the case of Johnson vs. Vernon Parish Lumber Co., 151 La. 664, (92 South. 219).

In that case the court found that subsequent to the injury complained of by the plaintiff the defendant had made six payments to the injured employee, and said:

“These payments are in the nature of admissions that plaintiff is entitled to compensation under the Employers’ Liability Act.”

But this holding was predicated upon a finding by the court that the payments were made to cover the period of disability resulting from the accident, for its said:

“Defendant company admits in its answer that plaintiff received six payments of $16 each, and alleges that this covered his period of disability resulting from the accident.”

In the case of Moore vs. Louisiana Oil Refining Corporation, decided by us and reported in Number 12, page 417 of the Louisiana Courts of Appeal Reports, the plaintiff’s wife, after the alleged injury and while her husband was in bed sick, went to the manager of the company and asked for aid, stating that her husband was in bed and that the family was without means. Whereupon she was paid $80, because it was the policy of the company to render assistance to its employees in times of need.'

It was there contended that this payment was an admission of liability, but we held that under the circumstances it was not such an admission.

It is clear, we think, that where it is contended that payments made by the employer to the employee prolong the period fixed in the statute for bringing an action to recover compensation, such a plea will avail the plaintiff nothing unless it be clearly shown that such payments were made as compensation under the act.

Such is the holding of courts of other jurisdictions.

•Bartholemu Shipping Corp. vs. Mullins, 119 Atl. 314.

Chase vs. Emery Mfg. Co., et al., 113 Atl. 840.

Ohio Oil Co. vs. Industrial Commission, et al., 127 N. E. 743.

Ashley Iron & Mining Co. vs. Fowler, et al., 271 S. W. 590.

Hunt vs. Industrial Accident Commission, 185 Pac. 215.

Pathe Exchange, Inc., vs. Court of Common Pleas, 129 Atl. 468.

It therefore remains to be determined whether the payments made in this case by the defendant to the plaintiff were made as compensation under the act.

The testimony discloses that plaintiff at no time filed a claim for compensation with the defendant, nor did he notify the company that he had been injured, although it is shown that he knew it was customary for injured employees to file such formal notice and make such demand, He had worked for the company for some two or three years prior to this time and on other occasions had filed such notices.

The testimony that the company had no knowledge of the alleged injury at the time the payments were made is not disputed.

Plaintiff testified, however, that he told Mr. Thompson, his Oboss-man”, that he had been injured. Mr. Thompson died previous to the trial.

Plaintiff’s explanation as to why he did not make out an accident report is as follows:

“Mr. Thompson, my boss-man, come and advised me not to make out an accident report and he would carry me on the sick list until the doctor told me I could go back, then I could do light work, would give me light work, so that I could make a living for my family.” (Page 57 of the evidence.)

The defendant company has a plan called “Annuities and Benefits” plan, commonly referred to as “A. & B.” plan, under which it pays its employees who are disabled by sickness. For the first four weeks of disability caused by sickness it pays them full wages or salary; for the next twelve weeks it pays them one-half their wages or salary. It was under this plan or arrangement that the payments were made by defendant and accepted by plaintiff.

Plaintiff testified that he was injured about the first of August, that he was in bed some two or three days, and did not pretend to do any work for about ten days or two weeks, although, he says, he was paid full time for that period. After the alleged injury he went back to work in the repair shop and did light work. Just how many days he did this kind of work is not definitely shown, but it is in evidence that he was carried on the rolls as an employee and as sick until November 15, when he voluntarily resigned his position to take up work as a life insurance agent.

Plaintiff was receiving a salary of $135.00 per month.

The payments which were made to him subsequently to his alleged injury were as follows: $65.32 on August 16, 1924, covering the period of two weeks prior to that date and was full time for his services and three days While sick; $53.32 paid September 5, 1924, which was for all services for two weeks, l)ut there was a. deduce tion of $11.00 for house, rent and lights; I $67.50 paid September 16, 1924, for full time services and five days while sick; $56.50 paid on October 6, 1924, for full time services from September 16, to September 30, and one day sick; $47.90 paid on October 20, 1924, for four days full time' services and three days half time; $23.84, covering the last half of the month of October for half time, being reported sick for the entire period; and $23.75 half time for two weeks up to November 15.

These payments correspond to the amounts which plaintiff was entitled to under the Annuities and Benefits plan and do not correspond to the amount which he would have been due as compensation under the act.

All these payments were made under the Annuities and Benefits plan. There is no suggestion that they were made as compensation under the act and, as stated, the defendant had no knowledge until the filing of this suit that plaintiff claimed to have been injured by accident while in its employ.

For the reasons assigned it is ordered, adjudged and decreed that the judgment appealed from be reversed and avoided and that defendant’s plea of prescription be sustained and plaintiff’s suit dismissed at his cost.


text:
    No. 2812
    Second Circuit
    FIRMENT v. EICHER-WOODLAND LBR. COMPANY PURDY-HESS CO., Intervenor
    Jan. 28, 1927. Opinion and Decree.)
    (Feb. 24, 1027. Rehearing Refused.)

      (Syllabus by the Editor.)

    1. Louisiana Digest — Estoppel—Par. 41.
    Where A sells ties to B, allows B to hold out sufficient money to cover the cost of the stumpage, and B; sells to .■ C allowing C to hold, out. the same amount for that purpose, D, the .party who sold the stumpage, in an intervention, in a suit between A and C for the amount-so held out can recover the cost of . the stumpage; .A -having acquiesced by allowing this, money .to be held out.
    Appeal from the Ninth Judicial-District Court of Louisiana, Parish of Rapides. Hon. R. C. Culpepper, Judge. ’’
    Action by P. E. Firment against EicherWoodland Lumber Company, Inc., PurdyHess Company, intervenor.
    There was judgment for plaintiff and intervenor and defendant appealed.
    Judgment reversed and rendered for intervenor.
    Hakenyos, Provosty & Staples, of Alexandria, attorneys for plaintiff, appellee.
    J. C. Cappel, of Alexandria, attorney for Purdy-Hess Company, intervenor, appellant.
    Bruton T. Dawkins, of Alexandria, attorney for defendant, appellant.
   ODOM, J.

The Purdy-Hess Co., a foreign corporation, owned a tract o'f land in the Parish of Avoyelles on which there is or was timber suitable for cross-ties. It had an arrangement with one Leonce Laborde to the effect that Laborde was. to make cross-ties of the timber on the land and was to pay 20 cents per tie for all ties made. Laborde and the plaintiff, P. E. Firment, entered into an agreement to the effect that Laborde was to make ties of the Purdy-Hess Co. timber, furnish his time and labor, superintend the making of the ti.es and have them hauled and delivered at stations on the railroad ..ready for. delivery to a purchaser, and the plaintiff, Firment, was to advance all funds. necessary for the making of the ties, including the expense for stumpage, making and hauling the ties, and, as a consideration-for such advances was to receive 10 per cent of the sum advanced; and, in order that he might recover the sums advanced plus 10 per cent, the proceeds of all ties made by Laborde were to go into his hands; and when a sale was made and the price of the ties collected, Firment deducted all sums' advanced by him, plus 10 per. pent, and paid the balance, if any,, to Laborde.

Under this arrangement Laborde made 2.892 ties from timber on the Purdy-Hess Co. land and hauled them to the railroad so that they could be sold and delivered These ties were sold on the railroad to one George L. Cleveland. Cleveland in turn sold them- to the Eicher-Woodland Lumber Co., Inc., the defendant in this case, and the Eicher-Woodland Lumber Co., Inc., sold them to the Southern Pacific Railroad Co.

.Previous to the sale of the ties to Cleveland, he was notified by Randolph, the agent of Purdy-Hess Co., that the stump-age had not been paid to Purdy-Hess Co., and that unless the stumpage was paid the ties would be seized; whereupon Cleveland agreed that he would ■ see that the stump-age was paid.

. -Randolph, it seems, learned that Cleveland was to sell the ties to. the defendant Eicher-Woqdland Lumber. Co., Inc., and he likewise notified said defendant that the stumpage had not been paid.

Having received notice from Randolph that Purdy-Hess Co. had not been paid the stumpage, Cleveland, when he bought the ties, paid Firment, the plaintiff, the price of the ties less the stumpage, which amounted to $578.40.

When Cleveland sold the ties to EicherWoodland 'Lumber Co., Inc., he was paid the price of the ties, less $578.40 for the stumpage.

Subsequent to the date on which Cleveland sold the ties to Eicher-Woodland Lumber Co., Inc., Firment, the plaintiff, made demand on Cleveland and the EicherWoodland Lumber Co., Inc., for the amount which had been retained for the stumpage, claiming that Firment had paid the stump-age; and he made and tendered his affidavit to that effect.

All parties recognized and conceded that the stumpage should be paid. It was immaterial to Cleveland and the defendant as to who should receive the amount reserved for the stumpage, and Firment was so informed; but they recognized that PurdyHess Co. should be paid by someone.

As stated, the defendant, Eicher-Woodland Lumber Co., Inc., had in its hands $578.40 which had been reserved and which amount it was willing to pay to the proper party.

Cleveland being without further interest in the matter, drew a sight-draft for said sum on the defendant, Eicher-Woodland Lumber Co., Inc., in favor of N. S. Scott, attorney for the plaintiff, Firment, with this notation:

“This draft is assignment of balance due for ties bought of Firment and sold to E. W. Lumber Co.”

This draft was • transferred by endorsement to Firment. The defendant, EicherWoodland Lumber Co. refused to accept and pay the draft. Whereupon Firment brought this suit against it, alleging that said draft represented the- balance due on ties which he had sold Cleveland 'and which Cleveland in turn had sold to the defendant.

The Purdy-Hess Co. intervened, claiming that it had not been paid the stumpage value of the ties and that the balance in the hands of the defendant should be paid to it.

The defendant admitting that it had in its hands the said sum and alleging that it had no interest in the controversy, deposited the said sum' in the registry of the court, in accordance with the provisions of Act 123 of 1922, and, by order of court, was relieved from further liability.

The issue is therefore narrowed down to the question whether plaintiff, Firment, or the intervenor, Purdy-Hess Co. is entitled to the sum in the registry of the court.

There is no question. but that the ties were made of timber belonging to PurdyHess Co., and it is not disputed that it should be paid the stumpage, if it has not already been paid; but the plaintiff grounds his action upon the proposition that he had bought and paid for said ties and that there was nothing due upon them.

Section 7 of his petition reads as follows:

“That said defendant was duly presented with affidavits that your petitioner had bought and paid for said, ties, which were delivered to said George E. Cleveland, as required by law, and that there was nothing further due upon said ties except said sum of $578.40 due by said Cleveland to your petitioner, as the purchase price thereof.”

In what is termed an answer to the petition of Eicher-Woodland Lumber Co., Inc., calling upon him to litigate with PurdyHess Co. the question as to who is entitled to said sum, plaintiff sets up that he bought said ties in good faith from Leonce Laborde, paying the full price thereof, and that he sold and delivered the same to Cleveland in good faith, without notice that anything was due on the ties, and that Laborde assured him that the stumpage had been paid, and that if said Laborde owed Purdy-Hess Co. for the stumpage its vendor’s privilege thereon was lost by the subsequent sale to Cleveland and by Cleveland to Eicher-Woodland Lumber Co., Inc.

Counsel for plaintiff, inr brief, cite, the Code and a long list of decisions to the effect that the vendor’s privilege does not follow a chattel into the' hands of third persons nor does it follow and attach to the proceeds of the sale.

But Pudy-Hess Co. is not claiming a privilege on the ties, nor a' privilege on the proceeds, but is claiming the amount held out by Cleveland for the stumpage, he havin been notified prior to his purchase of the ties that' the stumpage had not been paid. Therefore the question of privilege does not arise.' ,

If, as plaintiff alleges, he had bought the ties from Laborde in good faith without notice that Purdy-Hess Co. had not been paid and had transferred them to an innocent third person, Purdy-Hess Co. could not be heard to assert a vendor’s privilege on either the ties or the proceeds. But this is not the situation here.

In the first place, plaintiff did not purchase the ties from Laborde and was never the owner of them. Under the facts disclosed as above outlined, ‘Laborde was the owner of the ties at the time they were hauled and placed upon the railroad right-of-way. While plaintiff alleged and testified that he purchased them from Laborde, yet his testimony as a witness shows that he did not purchase' them, for he was asked this question:

“Will you state to the court what your agreement was with regard to the ties?”

And be said: •

“I paid him (Laborde) the stumpage for the ties; he hauled them to the station; and I paid for the making, hauling and evéry thing; Laborde never handled a nickel; ■ and,1 the money that I put into the business was myself (mine) alone; I was tp.get the whole amount, plus 10 per cent, and' Laborde would get the rest.” '

In other words, he financed the making of1 ¡the ties and when they were sold he got back what he had advanced plus 10 per cenf and Laborde got the balance.

' His testimony on that point is exactly in accord with that- of Laborde. Plaintiff’s c.onpection with the transaction as detailed by him and Laborde did not make him the owner, of the ties. He did not employ Laborde to make them. He does not claim that,, nor does he say that there was ever any, formal transfer of them to him at a fixed price which he paid or agreed to pay. The ties were therefore the property of Laborde.

■Plaintiff alleged that he sold the ties to Cleveland; but Cleveland disputes that. He .says he purchased them from Laborde and that he did not know plaintiff was in the transaction until after the ties were loaded, when Laborde asked him over the telephone to honor plaintiff’s draft for the sum of $1919.00, which he agreed to do.

Cleveland says plaintiff did dráft on him through the Marine Bank & Trust Company for the said amount and that he paid the draft with his check.

The testimony satisfies us that Laborde did make the sale, to Cleveland but' with plaintiff’s acquiescence.

Plaintiff says he paid the stumpage for these ties but paid it to Laborde upon the assumption and belief that Laborde was agent for Purdy-Hess Co. But granting that he did pay the stumpage to Laborde, the situation is not saved for him; for as already stated, Laborde was the owner of the ties and if he did not pay the stump-age to Purdy-Hess Co. the amount was due it when the ties were sold to Cleveland. The testimony shows that Laborde did not pay Purdy-Hess Co. for the stump-age. He admitted, in the presence of Mr. Hess, Mr. Randolph, Mr. Cappel and the plaintiff, that he had not paid it. As a witness for plaintiff he did not say he had paid it. When Cleveland told him that Randolph, agent, for Purdy-Hess Co. claimed that the stumpage had not been paid and that Cleveland would pay the price of the ties less the stumpage, Laborde made no protest and told Cleveland to pay Firment’s draft for the full amount less the stumpage.

Firment unquestionably knew that Purdy-Hess Co. had not been paid and acquiesced in the holding out of the amount due it, 'for the draft which he drew on Cleveland was for $1919.00, which included $10.00 for loading, and was for the full value of the ties, less $578.40 for the stumpage.

The situation therefore is that when Cleveland purchased the ties he held out for the stumipage and when he sold them to Eicher-Woodland Lumber Co., Inc., the same amount was held out for the same purpose, and that is the amount now in dispute.

Purdy-Hess Co. is entitled to the amount thus held out and now in the registry of the court. The District Court so held on the first trial; but the case was reopened to take testimony on the question as to whether Firment or Laborde was the owner of the ties sold to Cleveland. There was no testimony adduced on that point except that which is stated above. But the court on final hearing ordered the amount in controversy paid to the plaintiff. We think 'that was error.

For the reasons assigned, it is therefore ordered and decreed that the judgment appealed from be reversed, and it is now ordered and decreed that plaintiff’s demands be rejected and his suit dismissed; and further ordered that the sum of five hundred and seventy-eight and 40-100 dollars which was deposited in the registry of the court by the Eicher-Woodland Lumber Co., Inc., for the stumpage on the cross-ties, be paid by the clerk of court to the Purdy-Hess Co. All costs to be paid by piaintiff.


author: ELLIOTT, J.

text:
    No. 6015
    First Circuit
    MOUTON v. MORGAN'S LOUISIANA & TEXAS RAILROAD AND STEAMSHIP CO.
    (Feb. 12, 1927. Opinion and Decree.)

      (Syllabus by the Editor.')

    1. Louisiana Digest — Appeal—Par. 535.
    Under Article 3519 of the Civil Code as amended by Act 107 of 1898, a defendant and appellee may have the appeal dismissed five years after the case has been indefinitely continued by the Court of Appeal without any steps having been taken in that time.
    Appeal from the District Court, Parish of Lafayette. Hon. Wm. Campbell, Judge.
    Action by Eraste Mouton against Morgan’s Louisiana & Texas Railroad and Steamship Company and the Director General of Railroads.
    There was judgment for defendant and plaintiff appealed.
    Appeal dismissed.
    John L. Kennedy, of Lafayette, attorney for plaintiff, appellant.
    Mouton & Debaillon, of Lafayette, attorneys for defendant, appellee.
   ELLIOTT, J.

Suit to recover the value of a horse alleged by plaintiff to have been shipped over the defendant railroad and not delivered at the point of destination.

Defendant and appellee moves the dismissal of this appeal on the ground that same has been abandoned. Five years having elaipsed since it was indefinitely continued by the order of this court, without any steps taken in the prosecution of the same. The appeal was filed at Crowley on July 8, 1920. Thence by the order of this court and the consent of counsel it was transferred to be argued and submitted at Baton Rouge. It was then, by the order of this court, sitting at Crowley on May 22, 1921, continued indefinitely. Since then, so far as we are informed, nothing has been done looking to the prosecution of the same until October 25, *1926, at which time this court sitting at New Iberia, which has become the returning point for appeals from the Parish of Lafayette in lieu of Crowley, the record was -produced in open court. The motion to dismiss was filed at the same time.

The motion is based on Civil Code Art. 3519 (Amd. Act 107 of 1898), which provides: “If the plaintiff in this case after having made his demand, abandons or discontinues it, the interruption shall be considered as having never happened. Whenever the plaintiff, having made his demand, shall at any time before obtaining final judgment, allow five years to ela®se without having taken any steps in the prosecuting thereof, he shall be considered as having abandoned the same.” Before this enactment, it was a/question for the court to decide, under the law, C. C. Art. 3519, and C. P., Arts. 594 and 902, whether or not an appeal had been abandoned.

It is a ’prima facie impression on pur part that C. C. Arts. 3518 and 3519 (Amd. Act 107 of 1898), contemplates suits pending in the' court of original jurisdiction only. The mention made in Art. 3518 of suits, citations, demands brought, jurisdiction, etc., seems to justify that conclusion. The new provision amending Art. 3519: “Whenever the plaintiff having made his demand, shall at any time, before obtaining final judgment, allow five years to elapse without taking any steps,” etc., is a very broad enlargement and peremptory exception, available in the court of original jurisdiction under C. P. Art. 346; but we would not be disposed to hold that it broadened the scope of Arts. 3518 and 3519, making the exception of abandonment in the way mentioned, also available as a ground for dismissing a ©ending .appeal were it not for the decision of the Supreme Court hereinafter mentioned.

It rather appears that the abandonment of pending appeals was left and still remain as provided for by C. P., Arts. 594 and 902. This view is supported by the the case of Reagan vs. La. Western R. R. Co., 143 La. 754, 79 South. 328. In that case an appeal was taken from the judgment of a justice of the peace to the district court. It remained on the docket of the District Court inactive for more than five years, upon which the plaintiff and appellee moved under C. C. Art. 3519 (amd. 107 of 1898), to dismiss the appeal on the ground that it had been abandoned. Defendant and appellant moved at the same time to dismiss the case on the same ground. The district judge refused both motions. The Supreme Court, in reviewing 'the ruling on a writ of certiorari, held that the district judge had ruled properly as to both motions. That C. C. Art. 3519 (amd. Act 107 of 1898), had not provided a ground for dismissing appeals. That the article has no reference whatever to causes for dismissing appeals.

The Supreme Court held, however, in City of New Orleans vs. New Orleans Jockey Club, 129 La. 64, 55 South. 711, that C. C. Art. 3519 (amd. Act 107 of 1898), applied to appeals pending in the Supreme Court and dismissed the appeal in that case on the ground mentioned. The case was approvingly cited in 133 La. 401, mentioned in 155 La. 1044, p. 1050, and we find nothing in any subsequent case indicating that the City of New Orleans vs. New Orleans Jockey Club, 129 La. 64, 55 South. 711, case was not approved in the ruling mentioned. The two cases appears to be in conflict; but the City of New Orleans vs. New Orleans Jockey Club, 129 La. 64, 55 South. 711, case is directly in line with the motion we have in hand and will be followed on that account.

It was said in the argument of the motion, by counsel for appellant, that the record had been lost and only recently found. There is no showing to that effect, but supposing that it has been lost as stated, if it has been recorded it could have been reproduced as provided by the Revised Statutes, Sec. 474 (amd. Act 17 of 1878). If not recorded, it could have been reproduced by proving the contents of thé pleadings and prosecuted to a conclusion as reproduced.

The situation, therefore, can not be saved for appellant on that ground. Basing our action on City of New Orleans vs. New Orleans Jockey Club, 129 La. 64, 55 South. 711, it is decreed that the plaintiff and appellant herein has abandoned his appeal as a matter of law, C. C. Art. 3519 (amd. Act 107 of 1898), and the same is now dismissed at his cost.


author: LECHE, J.

text:
    No.-
    First Circuit
    COLEMAN v. ADAM
    (Jan. 7, 1927. Opinion and Decree.)
    (Feb. 12, 1927. Rehearing Refused.)

      {Syllabus by the Editor.)

    1. Louisiana Digest — Injunction—Par. 55; Appeal — Par. 625.
    The finding of the trial court that defendant had failed to. make a showing, justifying the issuance of a writ of injunction and nullifying the act of mortgage which he signed, being clearly correct, is affirmed.
    Appeal from the Parish of Vermilion. Hon. W. W. Bailey, Judge. -
    Action by Mary B. Coleman against Emma Adam.
    There was judgment for plaintiff and defendant appealed.
    Judgment affirmed.
    J. E. Kibbe, of Abbeville, attorney for plaintiff, appellee.
    L. A. Goudeau, of Lake Charles, attorney for defendant, appellant.
    Kitchell & Boudreaux, of Abbeville, attorneys for defendant in rule and appellee, Desire and Leonard Meaux.
   LECHE, J.

The relief prayed for by defendant in this, an incidental proceeding to the main suit, is to have declared as null and void, a judicial sale of her separate and paraphernal property, made to Leonard and Desire Meaux by the sheriff of the Parish of’ Vermilion, under executory process issued in the above entitled cause.

The plaintiff, as- transferee, held a promissory note of six hundred dollars secured by conventional mortgage upon forty acres of land belonging1 to defendant, wife of Leon Marceaux. The note became past due and was not paid, whereupon, plaintiff obtained executory process and caused the property to be seized, advertised and sold at public auction. Leonard and Desire Meaux, who were second creditors, became the purchasers and the property was adjudicated and deeded to them.

The defendant, who occupied the premises as her own separate- and -paraphernal property, refused to vacate, and thereupon the purchasers' applied to the District Court for a writ of- possession. It was then that defendant instituted the present proceeding. ■ She alleges that the mortgage upon which executory process had been issued as' well as the sale made by the sheriff under said writ, were absolute nullities. She charges that she had acted under -marital coersion and had been forced by her husband to sign the notes and the mortgage upon her separate property to pay the husband’s debts. That Leonard and Desire Meaux were fully aware of the nullity of said mortgage long before they purchased the property. She then prays that Leonard and Desire Meaux be perpetually enjoined from disturbing her in her possession and occupancy of the property and that the mortgage under which the judicial sale had been made, be declared null and of no effect and cancelled from the record of mortgages, for all other necessary decrees and costs.

The trial judge refused defendant’s demand and she has, appealed.

The mortgage upon which executory process issued and under which the sale was made, was originally given by defendant in favor of the F. B. Collins Investment Company on November 24, 1920. The plaintiff in the present suit is the transferee of the Collins Company, for having acquired the notes and mortgage by special written transfer dated December 8, 1920. Mr. John Nugier was at the time, the title attorney for the whole State and the local representative in the matter of loans made by the F. B. Collins Investment Company, a concern having its headquarters in the State of Oklahoma. The act of mortgage was passed before Mr. Nugier, who was also, a notary public for the Parish of Vermilion.

In making loans, the Collins Investment Company required the borrower to fill and sign a certain form of application. Its expert would then view and appraise the property and its attorney examine and pass upon the title. Guided by the reports- of its appraiser and attorney, it would then pass upon the application. In this case the usual procedure was followed, and the loan was made to. defendant for six hundred dollars.

Defendant testified that the money was borrowed by hei husband, that she was in great fear of him, that she was brought by him to the office of Mr. Nugier; that she did not sign the application for the loan and that the only document she signed was said to be a mortgage. She further says at first, that through fear of her husband, she- did not tell Mr. Nugier anything, but cried in his presence, and she thought this showed evidence of marital compulsion. She said Mr. Nugier did not ask her why she was crying and that she therefore did not tell him the reason. She denied having signed the application for the loan. On being further examined, she said she told Mr. Nugier at the time she signed the mortgage, that she did not want the money and that she did not owe it to anybody; that Mr. Nugier made her sign a paper which, is said, was a mortgage; that he asked her who the debts were for and she told him not for her, that' she did not owe anybody. She says that she signed because she feared a difficulty with her husband.

The defendant is illiterate and the only fact to which she consistently testified was that she was in fear of her husband. She does not say that he ever assaulted, brutalized or threatened her and she waivers as to the details of what took place in Mr. Nugiers’ office and contradicts herself several times.

Defendant’s husband, who was present when his wife testified, was then placed upon the witness stand. He seems to have been unabashed by his wife’s testimony and boldly stated that he had made the application for the loan and that he paid his debts with the money. He was very reluctant in answering questions, and in his testimony with regard to the circumstances surrounding the transaction, he tries to evade; either he does not know or he only supposes. He knows, however, that his wife signed the act of mortgage through fear, because he had threatened tq strike her if she had not consented to sign..

Mr. Nugier, an experienced and reputable member of the bar, who was at the time, attorney for the Collins Investment Company and their local representative, and before whom the act of mortgage was possed, contradicts the statements of defendant' as to what took place in negotiating the loan and especially as to what took place in his office. There was nothing unusual and out of the ordinary as tq the manner in which the transaction was carried out. If defendant had cried in his presence, or had told him she did not want the money and that she owed no one, his suspicions would have been aroused and his sense of duty towards his client, the Collins Investment Company, would at once have compelled him to stop all negotiations, to investigate and if imposed upon by defendant’s husband, to refuse the loan. But Mr. Nugier says that nothing of the kind took place. He says that defendant appeared to be very willing to borrow this money .and if there had been any marital coercion, he is confident that he would have noticed it.

The trial judge held in effect, that defendant had failed to make a showing, justifying the issuance of a writ of injunction and nullifying the act of mortgage which she signed in favor of the Collins Investment Company.

He evidently did not believe the complaint of defendant and we agree with him.


text:
    No.-
    First Circuit
    GUILLOT v. WILHELM MOSS CO.
    (Jan. 7, 1927. Opinion and Decree.)
    (Feb. 12, 1927. Rehearing Refused.)

      (Syllabus By the Editor.)

    1. Louisiana Digest — Pleading—Par. 7, 112; Obligations — Par. 170.
    Where 'plaintiff’s petition alleges a contract but also shows that plaintiff is entitled to payment on a quantum meruit; the proof on default, being sufficient to show the sum due to plaintiff on a quantum meruit, judgment is properly given plaintiff.
    2. Louisiana Digest — Pleading—Par. 7, 62; Obligations — Par. 170.
    Where a petition contains an allegation of a contract, the contract being attached to the petition and also sufficient to show money due on a quantum meruit, an exception no cause of action is properly overruled.
    Appeal from the District Court, Parish of St. Landry. Hon. B. H. Pavy,- Judge.
    Action by Treville Guillot against Wilhelm Moss Company, Inc.
    There was judgment for plaintiff and defendant appealed.
    Judgment affirmed.
    Charles J. Mundy, of Thibodaux, attorney for plaintiff, appellee.
    Dudley L. Guilbeau, of Opelousas, attorney for defendant, appellant.
   ELLIOTT, J.

Treville Guillot alleges that between November 22, 1924, and May 21, 1925, lie purchased'moss for defendant', at its request, the amount purchased being 144,694 pounds. That he charged defendant one cent per pound for his services in purchasing, hauling and storing the moss, a total of $1,446.94, and that no part of said amount had been paid. That he had purchased moss for defendant previous to November 22, 1924, without any special agreement as to compensation, but after a settlement on account of his previous purchases, he informed defendant through its manager, Mr. S. B. Webb, that his previous compensation was not such as would justify him in further buying; upon which Mr. Webb, defendant’s manager, requested him to make him a proposition in writing, which he did on November 22, 1924.

A copy of the proposition addressed to S. B. Webb, Manager, marked exhibit “A”, is annexed and made part of his petition and was filed accordingly. That defendant received and replied to his proposition by letter dated November 30, 1924, which letter he attached to his petition marked exhibit “B”, and it was filed accordingly. That defendant never again referred to the buying plan proposed by plaintiff, but continued to advise with him and authorized him to purchase for defendant, all the moss possible. That petitioner fulfilled and carried out defendant’s instructions faithfully and bought all the moss he could for defendant, furnishing his own truck and driver to haul and store same; paid all expenses in connection with the hauling, etc., as he had proposed in proposition No. 1. That in addition to buying and hauling moss, he did other work and performed other services for defendant in connection therewith for which he charges defendant $56.25; evidenced by an itemized account attached to his • petition marked exhibit “E” and filed accordingly. That the authority vested in him by defendant in buying and paying for moss, hauling and storing same, constituted a tacit acceptance of his proposition No. 1. He prayed for judgment against defendant for $1503.19.

Defendant appeared and excepted to plaintiff’s demand on the ground that his petition did not set forth a cause of action. The exception was overruled, but defendant did not further appear; and did not file an answer; therefore on motion of the plaintiff a judgment by default was entered and the defendant still failing to appear or file an answer, after due delay the plaintiff appeared, offered proof in support of his demand and the court rendered judgment confirming the default. Defendant appealed.

Defendant urges that plaintiff’s petition discloses no cause of action and that his exception to it on that ground should have been sustained.

Plaintiff’s petition must be read and understood in connection with the exhibits thereto annexed and filed therewith. These exhibits stand as exemplifications of the petition and the petition in our opinion sets forth a cause of action, not based on a contract, but for a quantum meruit.

Defendant urges that the suit- was on a contract and that the judgment was for a quantum meruit. The petition with exhibits, shows on its face that plaintiff’s propositions were-not accepted insofar as compensation was concerned; but defendant authorized, in fact, urged plaintiff to continue to buy moss, to store it, remitted sums to plaintiff in payment for moss purchased on defendant’s account and constituted plaintiff its agent for the purpose. The allegation that plaintiff’s proposition No. 1 was tacitly accepted does not gov-ern the form and substance of the demand, hut is governed and controlled by other averments and the demand, which shows that the action is in fact for a quantum meruit.

Defendant lastly contends that plaintiff did not prove his demand. We think the proof was sufficient to confirm the default. Defendant did not deny plaintiff’s allegations. The plaintiff took the stand as a witness and we think satisfactorily established, that defendant was justly and equitably indebted unto him in the amount claimed. The default was properly confirmed.

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


text:
    No. 3034
    First Circuit
    LOUISIANA STATE RICE MILLING CO., INC., v. BAKER
    (Feb. 12, 1927. Opinion and Decree.
    (March 8, 1927. Rehearing Refused.)

      (Syllabus by the Editor.)
    1.Louisiana Digest — Obligations — Par. 146, 147.
    One who is under a contract to furnish water to raise a rice crop, but floods the land only once, although several floodings were, necessary, will not be entitled to payment under the agreement, where this breach of contract is due to no fault of the other party.
    2. Louisiana Digest — Obligations — Par. 147; Act of God — Par. 2.
    One who is under contract to furnish water from a bayou which becomes salty 'due to dry weather, will not be liable in damages to the. contractee for the loss of his rice crop, because under Articles 1933 and 2219 of the Civil Code this condition is a fortutious event.-
    3. Louisiana Digest — Sequestration—Par. 31.
    Attorney’s fees are not allowed as damages for the dissolution of a sequestration where it was due solely as a result of the determination' that rice belonged to the defendants.
    Appeal from the District Court, Parish of Jefferson Davis. Hon. Jerry Cline, Judge.
    Action by Louisiana State Rice Milling Co., Inc., against Albert Baker, et al.
    There was judgment for defendant and plaintiff appealed.
    Judgment affirmed.
    Modisette & Adams, of Jennings, attorneys for plaintiff, appellant.
    John B. Fournet, of Jennings, attorney for defendant, appellee.
   ELLIOTT, J.

Action . involving the ownership of one hundred and fifty-five hags of rice, claimed as water rent.

Louisiana State Rice Milling Co. claims the ownership of one hundred and fifty-five bags of rice out of the rice crop made by Albert Baker, Joseph Baker and Phillip Baker, stored by them in the Miller Warehouse at Jennings. Defendants also claim the ownership of the rice and. deny plaintiff’s right thereto. The plaintiff caused the rice to be sequestered, but pending the suit the rice was sold by agreement, the proceeds taking its place in the suit.

The defendants filed some motions and exceptions which were overruled. They then answered, denying that the plaintiff was the owner of the rice, alleged that same belonged to Albert Baker, and that the other defendants were his employees. They admit that an agreement had been entered into between Albert Baker and the plaintiff, whereby the plaintiff was to have one-fifth of the crop as rent for furnishing water necessary to make the crop, but they allege that plaintiff did not carry out its understanding to furnish water, with the result that the crop was greatly injured. That less was made than would have beep if plaintiff had furnished water at the right time and as demanded and in sufficient quantity and of the right kind necessary for the purpose of irrigating the rice. That due to plaintiff’s failure, part of their crop planted was a total loss. They further allege that plaintiff abandoned their crop, leaving it as a total loss for lack of water; upon which Albert Baker, the owner of the crop, was forced to enter into a contract with C. J. Guidry, whereby Mr. Guidry saved their crop, to the extent that it was saved, by pumping water on it from his well at an expense of several hundred dollars. That' defendants in that way succeeded in making a short crop on part of their land; but about fifty acres could not be watered from the Guidry well and was a total loss. They allege a large amount of damages which they claim in reconvention and in addition $250.00 attorney’s fees on account of the sequestration made at the instance of the plaintiff.

The important facts are not disputed. The plaintiff entered into an oral agreement with Albert Baker to furnish him water to irrigate and make a rice crop. The terms and conditions of the contract were the same as had been agreed the previous year in a written contract. This written contract was not offered in evidence and is not in the record. The conditions of the agreement are so darkly outlined by the evidence on the subject that we could not with safety decide a contest, dependent on them; but we find no dispute on a,ny matter of that kind. The only important question about which the plaintiff and defendants differ is whether or not the contract between them was abrogated and terminated by the fact that before the rice crop could be produced, the water in Bayou Nezpique, from which plaintiff’s canal was supplied with water (the contract between the parties contemplated that fact) became so salty, due to the dry weather, that further use of it on the growing rice crop would have killed the rice and destroyed the crop.

The defendants urge that the crop was injured by plaintiff’s delay in starting its pumps and by break downs occurring after starting due to defective equipment. That delays of this kind deprived the crop of water when water was needed and served to shorten the amount produced. The evidence, however, does not show with reasonable certainty that defendants’ crop suffered any definite and ascertainable shortage on account of matters of that kind. The only definite and sufficiently established shortage and loss was due to the fact that after plaintiff had wet defendant’s field and the rice had come up and was growing and after plaintiff had flooded the rice crop one time and had started to flood it again, the water in Bayou Nezpique became so salty that if it had ’been admitted on the field it would have killed the rice and destroyed the crop. The crop needed water at the time and remained without water, suffering serious harm.

Seeing that their crop was about to be lost the defendants called on the plaintiff to save it by pumping water on it from neighboring wells. An arrangement of this hind could have been made by plaintiff and one of its employees started to pump water on it from a well; but its officers would not permit it to be done and left the crop to be lost.

Defendants seeing their crop given up and suffering and about to be lost for want of water, entered into an arrangement with C. J. Guidry, whereby Mr. Guidry pumped water on it from his well and continued to water it in this way until it was made, that is made to the extent that it was saved. There was a shortage over the entire field. About fifty acres was higher than the balance of the field. The entire crop could have been irrigated from plaintiff’s canal; but the fifty acres could not be irrigated from the Guidry well and was therefore entirely lost.

The evidence indicates that .plaintiff could have arranged with the owners of nearby wells for enough water to irrigate defendants’ crop, at least as much as was watered from the Guidry well; but plaintiff choosed to let the crop perish rather than do it. Plaintiff was unwilling to pump from ■ wells on the ground that it was too expensive and that it was not obligated to furnish water except from Bayou Nezpique.

It is argued by plaintiff that on account' of the work performed toward making the crop that it is equitably entitled to the one hundred and fifty-five bags, which is one-fifth of the rice made. That' as for the sum expended by the defendants for the water pumped by Mr. Guidry on the crop from his well, that the sum should be paid one-fifth by the plaintiff and four-fifths by the defendants; but we do not' think so. The evidence is clear that the one flooding was not sufficient to make a rice crop. According to the evidence, nothing would have been made if defendants had not succeeded, at an expense of several hundred dollars, in getting successive floodings from Mr. Guidry’s well. The plaintiff was requested to make an effort to get water for the crop in that way but declined to make any effort in that direction. The plaintiff abandoned the crop and. gave it up as a total loss. Defendants then saved it to the extent that it was saved in the way stated. The rice, which is the subject of this suit, must be awarded to the defendants and it is ordered that the party having custody of the proceeds pay same to the defendants.

But defendants’ crop shortages and losses .are not due to the fault of the plaintiff under the contract. Plaintiff was not obligated to furnish water from wells, it was to come frqm Bayou Nezpique. The water of the bayou became salty; not through any fault of the plaintiff, but due to the dry weather. This salty condition was therefore a fortuitous event within the meaning qf the law, Civil Code, Arts. 1933 and 2219. The plaintiff can not be charged with liability on account of a fortuitous event. Defendant claims $250.00 damages as expended on account of attorney’s fees due to the sequestration, of the rice involved in the suit. The dissolution of the sequestration comes about solely as the result of the determination that the rice belongs to defendants. The American Hoist and Derrick Co. vs. Frey, 127 La. 183, 53 South. 486, case, cited by defendants do not support their claim for attorney’s fees.

The judgment' appealed from is correct.

The plaintiff and appellant to pay the cost in both courts.


author: MOUTON, J.

text:
    No.-
    First Circuit
    COURTNEY v. BALLARD
    (March 8, 1927. Opinion and Decree.)

      (Syllabus by the Editor)

    1. Louisiana Digest — Sales—Par. 24.
    In view of Article 2275 of the Civil Code a receipt showing payment in full for one’s interest in the succession of his mother effects a conveyance of the movable and immovable property.
    2. Louisiana Digest — Evidence—Par. 252, 254.
    In the absence of allegations of error, fraud or duress, parol evidence is inadmissible to prove that receipts showing payment for all one’s interest in his mother’s estate included only the movable property and not the immovable.
    Appeal from Livingston Parish. Hon. Columbus Reid, District Judge.
    Action - by W. A. Courtney, Jr., against Mrs. Prances Malian Ballard, et al.
    There was judgment for plaintiff and defendant appealed.
    Judgment affirmed.
    Nicholls Pugh, of Springville, attorney for plaintiff, appellee.
    R. M. McGehee, of Hammond, attorney for defendant, appellant.
   MOUTON, J.

Plaintiff and his deceased wife, Willery Daniels, acquired .movable and immovable property, during the existence of their .marriage, which - was inventoried after her death in 1910. The inventory amounted to a total of $2155.00. There are eleven heirs. Taking the inventory as a proper criterion for the value of the estate, the inheritance of thesb heirs amounted to a little over eleven hundred dollars, entitling .each heir • to a sum slightly above $100.00 for their respective shares in the community. The proof shows that plaintiff gave $97.50 to each of his children in settlement of what was coming to them in their mother’s estate. All the heirs gave receipts to plaintiff for said amount, acknowledging that it was received in satisfaction of their respective shares in the estate of their mother. Nine of the heirs, on July 22, 1924, executed a notarial act confirming and ratifying the payments made to them by their father, and for which they had given him their receipts as aforesaid. The defendants, Mrs. Prances Malina Ballard and Mrs. Malissa Adele Mizelle, having refused to sign this act of confirmation, plaintiff brings this suit against them to have himself decreed the owner of all of the property of the estate.

Both of the defendants signed a receipt in favor of plaintiff as follows:

“Received from W. A. Courtney, Jr., the sum of $97.50, being her part of her mother’s succession. Received payment in full of all demands.”

The receipt given by Miss Malissa Mizelle is dated, November 1, 1911, and the other by Mrs. Ballard, December 2, 1911. At that time they were both over the age of twenty-one years. This suit was brought in 1926, about fifteen years after the receipts were signed. The contention of the defendants is that the receipts were intended to cover only their interest in' the movable 'property of their mother’s estate. The heirs of'Mrs. Willery Daniels, having accepted the succession, became co-owners or co-proprietors in the movables and immovables which comprised her portion of the community. The two defendants gave their individual receipts to their father, plaintiff, for $97.50, which they acknowledge they were given for their “part” in their mother’s succession and in full payment of all demands.

In Guice vs. Mason, 156 La. 201, 100 South. 397, it was held that a written receipt for part of purchase price money of realty satisfies C. C. Art. 2275, requiring transfer of immovables to be in writing. Here the receipts of the two defendants were not for a part of the purchase price but were in full payment of the share of each defendant in the movables and immovables which constituted the estate of their mother,, thus effecting a conveyance to plaintiff of their respective undivided interest therein.

Defendants offered to introduce parol evidence to show that these receipts had been intended to cover only their interest in the movable property of their mother’s estate. The district judge excluded this testimony on the ground that defendants had not attacked the receipts for error, fraud or duress. In the absence of such an attack we find that the court properly held the evidence inadmissible; also correctly decreed plaintiff owner of the property transferred by defendants.


text:
    No.-
    First Circuit
    DESHOTELS v. GRADNEGO
    (January 7, 1927. Opinion and Decree.)
    (February 12, 1927. Rehearing Refused.)

      (Syllabus by the Editor)
    1. Louisiana Digest — Petitory and Possessory Action — Far. 15, 35.
    The plaintiff in a petitory action is not • debarred from proceeding with it because defendant acquired the land at a public sale in a partition proceeding which may have been irregular or voidable, plaintiff having had no connection with these partition proceedings.
    Appeal from the Parish of Evangeline. Hon. B. H. Pavy, Judge.
    Action by Mrs. Bridgette Deshotels against Odosir Gradnego, et al.
    .There was judgment for plaintiff and defendant appealed.
    Judgment affirmed.
    O. B. Guillory, of Ville Platte, attorney for plaintiff, appellee.
    A. H. Garland, of Ville Platte, attorney for defendant, appellant.
   MOUTON, J.

Gerand Soileau, while married to plaintiff and during the existence of the community, acquired a tract of land situated in the parish of Evangeline. Gerand Soileau deserted plaintiff, his wife, and while living in concubinage with Eveline Viginat transferred to his concubine the land so acquired by him during his marriage with plaintiff. Later, Eveline Viginat pretended to transfer this land to her son, Ortesi P. Fontenot, who, in turn, reconveyed it to his mother. Some time thereafter Gerand Soileau died, leaving no ascendants .or descendants. In a suit instituted by Soileau’s collateral heirs his ostensible sale to his concubine and the pretended sale by her to her son and her son to her were set aside; a judgment was rendered recognizing the heirs of Soileau owners of the land, placing them in possession and ordering a sale to effect a partition.

In December, 1924, the property was adjudicated at public auction to Mrs. Victoria Ramos, from whom the defendants acquired.

It is not disputed that the land was acquired by Soileau during the regime of the community, and that at the time of its purchase plaintiff became part owner as a partner in the community. Upon judgment being rendered setting aside the sales from Soileau to his concubine and from her to her son, it is quite evident that the land was restored to the community, one-half of which belonged to plaintiff, for the recovery of which plaintiff has instituted this suit.

Judgment was rendered in her favor. Defendants appeal.

The sole contention of defendants as appears in their briefs is that plaintiff could not claim the property in this, a petitory action, before attacking the partition proceedings under which their vendor had acquired the land at public sale. In other words, that she could not ignore these' partition proceedings before asserting title to her undivided half in the land. Counsel, in support of this contention, cites Graham vs. Hester, 15 La. Ann. 148; Carrere vs. Labau, 23 La. Ann. 531; McCall vs. Irion, 40 La. Ann. 690, 4 South. 859; State vs. Grigsby, 117 La. 1050, 42 South. 497. In the cases cited it must be noted that the parties from whom the plaintiffs claimed had been proceeded against personally, or -through their apparent tutors or other legal representatives. In those cases the court very properly held that if these proceedings were irregular or voidable, the party claiming could not ignore them, and proceed directly by petitory action to recover property against defendants who were holding on apparently valid titles. In this case the situation is entirely different, as plaintiff did not have the slightest connection with the partition proceedings under which defendants are asserting title. The fact is that she was a total stranger to those proceedings, and never had any information whatsoever that they had ever taken place. There is nothing to indicate that defendants acquired on the strength of plaintiff’s actions or declarations or that she ever misled them to the prejudice of their rights. No estoppel is urged against plaintiff, and we cannot see why she should be debarred from proceeding in this action without first suing to set aside the partition proceedings which led up to defendant’s acquisition.