text:
    No. 10,981
    Orleans
    DUVIC v. FRIEDRICHS & DUPAS, ET AL.
    (November 26, 1928. Opinion and Decree.)

      Guión & Upton and W. W. Ogden, of New Orleans, attorneys for plaintiff, appellee.
    E‘. M. Heath, of New Orleans, attorney for Friedrichs & Dupas.
    Milner & Porteous, J. H. Weiner and S. G. Roos, of New Orleans, attorneys for Frank Jordano, appellant.
   JANVIER, J. ad hoc.

Plaintiff, a lady about sixty years of age, was a “prospect” riding in the automobile of the defendant, a real estate agent, when, as a result of a collision with another automobile, she was injured. On the afternoon on which the accident occurred, she had called at the office of Friedrichs and Dupas, real estate agents, with reference to an advertisement of certain property on Metairie Ridge. She wanted to make an investment and desired to investigate the advisability of investing in the lands whose virtues were set forth in the advertisement. At the office of Friedrichs & Dupas she was turned over to Frank Jordano, the other defendant'.

Jordano told plaintiff that the land she was interest in was all sold, but that he would like to show her other lands on Metairie Road, and, at his solicitation she and her sister agreed to let him drive them out in his automobile to see the lands he was offering. They entered his car, and, with him at the wheel, proceeded on their journey to Metairie Road. All parties agree that until they reached the city limits the car was driven at a moderate speed. According to the two ladies, when they reached a point at or near the city limits, the speed of> the car was greatly increased, and from then on until the time of the accident, it was, in their judgment, quite excessive. When the car reached a point near the Cedar Telephone Exchange in Jefferson Parish, it collided violently with a large sevenipassenger Paige car, going in the opposite direction.

Jordano’s story is that he was proceeding at about fifteen miles per hour and that, as he reached the curve just before the point at which the accident afterwards occurred, he sounded his horn three times, but that up to that time he had not seen the Paige car approaching from the other direction. This, he says, was due to the curve and to intervening weeds and objects. He states that when the Paige car was about half a square or so away, he saw it coming; that it was on the wrong side of the road, and was swaying or swerving from side to side, and that its speed was terrific; that he was on the right side of the -road and that he momentarily expected the Paige car to cross to its right and it was only at the last moment that he realized it was not going to do so. It was then, according to his version, that he turned suddenly to his left, in an effort to avoid a head-on crash. He was not successful, however, and his car was struck on its left side just astern of its midsection.

Plaintiff and her sister contend that Jordano’s speed was from thirty to thirty-five miles an hour; that he remained in the middle of the road until it was too late to avoid the oncoming Paige car, and that he could have avoided the accident had he pulled to the right, as they claim he should have done, or had his speed not been excessive.

There is no question that, at the time of the collision, Jordano’s car was on the left side of the road. Of course, it is the duty of a driver to do all he can to avoid a collision. Ordinarily, collisions are avoided by the respective drivers remaining on the right side of the road. It therefore may be said to be the duty of a driver who is on the left side of the road at the time of the collision to bear the burden of proving that it was necessary for him to be in that position, and that had he been on the other side of the road, the accident would have occurred anyway.

The evidence is quite conflicting. It seems that the Paige car was occupied by several men and a woman, who were characterized by various witnesses as “drunks.” Either that car, or one very much like it', and containing a crowd of .people in a similar condition, had stopped at a cold drink stand a short time before the accident, and the proprietor testified as to their condition.

The case would be a very difficult one were it not for the fact that we may call to our assistance the opinion of the trial Judge, who saw and heard all of the witnesses. In number, the witnesses for the defendant predominate, but we believe that the corroborating circumstances are rather with the plaintiff. The trial Judge no doubt had reasons for disregarding the testimony of some of the witnesses for the defendant. What his reasons were we can only conjecture. A careful reading of their testimony, however, leads to the belief that possibly he was of the opinion that the testimony of each coincides a little bit too exactly with that of all of the others. We do not mean to infer that they were not telling the truth, as they saw it, but it should be remembered that they were all riding in a truck, going in the opposite direction, and .were talking to one another. The estimates given by each as to distances, speeds, warning sTgnals, etc., coincides so exactly with the estimates given by all of the others that we are forced to the conclusion that, while they gave their versions as they remembered them, their remembrance is based probably on discussions among themselves, rather than on actual recollections of what they saw at the time of the accident.

As to the speed at which the defendant’s car was being driven, it seems improbable that it was as moderate as he claims. The two lady occupants testify positively that he was going at a very fast speed and they both state that they had frequent occasion to ride in automobiles and were to some extent familiar with matters of that kind. Furthermore, it appears that the defendant Jordano had told them that he could reach the property he wanted them to inspect in about fifteen or twenty minutes, whereas, at the time of the accident, they had already been riding some twenty-five or thirty minutes. Let us say, in passing, that we were much impressed by the extravagant claim of the defendant, i. e., "I could get there in five minutes providing the bridges - didn’t rise by the basin.” This is manifestly absurd in view of the fact that he had already been traveling half an hour and had still, according to his statement, about a mile and a half or two miles to go.

Plaintiff and her sister had explained to Mr Jordano that they were not interested except in property near the city, and which could be reached in a few minutes, and it is very evident that the defendant was most anxious to convince these ladies that the property he wanted to show them was only a few minutes’ ride from the center qf the city. In view of all the circumstances, it is our opinion that the defendant has not successfully borne the burden of proving that his being on the wrong side of the road was necessary; nor has he been able entirely to overcome the testimony of plaintiff and her sister, as to his speed.

If he was negligent and his negligence had any causal connection with the resulting accident, he is not relieved from liability to his guest riding with him' by the showing of negligence on the part of some third person.

Friedrichs & Dupas were also made defendants but the trial Judge rendered judgment in their favor on the ground that Jordano was not their agent, but was an independent real estate broker, and that they were not responsible for his negligence. No appeal was taken from that part of the judgment; consequently that question is not before us.

The only matter remaining for determination is the amount to be awarded plaintiff. She lost two molar teeth and one .of her front teeth was cracked. It was at first thought that her skull was fractured. Quite a number of stitches inside her mouth and around her lips were necessary. She was compelled to' remain in bed for twelve days. Her speech is to some extent still interfered with.

We believe that twelve hundred dollars, the amount allowed her in the court below, is correct.

It is therefore ordered, adjudged and decreed that the judgment appealed from be affirmed, at the cost of appellant.


source: Caselaw Access Project

author: JANVIER, Judge ad hoc.

license: Public Domain

text:
    No. 11,328
    Orleans
    ITEM CO., LTD. v. CHECKER CAB CO.
    (October 29, 1928. Opinion and Decree.)
    Deutsch & Kerrigan, of New Orleans, attorneys for plaintiff and appellee.
    Paul L. Fourchy, of New Orleans, attorney for defendant and appellant.
   JANVIER, Judge ad hoc.

The delivery truck of plaintiff company and the wrecker truck of defendant company met in collision at the corner of Perdido and South Liberty Streets in the late afternoon of August 20, 1927.

The Item truck was proceeding out Per-dido Street towards the lake and the wrecker truck was being driven along South Liberty Street in an uptown direction.

After the accident both trucks were found about twenty-five (25) or thirty (30) feet in Perdido Street beyond the intersection of South Liberty Street, the Item truck lying on its left side. Each driver claims that before entering the intersection he slowed down to a very moderate speed and looked carefully for vehicles on the cross streets. The story told by the driver of the wrecker truck seems to us so highly improbable that we cannot accept it as the correct version of the - affair. He says that:

“* * * at the time I came to the corner and came to practically a stop and looked and did no't see anything, and blew my horn and shifted into second gear, as I pulled near the corner I saw this Item car making thirty-five or forty miles, I saw I could not beat the truck across the corner so I came to a dead stop, which was a little into Perdido Street, so the Item truck kept on coming and swung to the left and there was another machine on the opposite side, and the rear of the Item truck hangs into the front of my machine and drags it twenty-five or thirty feet out of Perdido Street and threw his machine into the right curb and then turns it over -and hits the other machine.”

The Item driver states that the wrecker truck approached at a very rapid rate and that its driver, in an effort to avoid the accident, turned to the right in Perdido Street, and that the wrecker truck was going so fast that it overtook the Item truck and its right front fender and front bumper hit the Item truck in the right rear, and turned it over on its left side. This seems to be borne out by the testimony and is clearly shown by the physical condition of the Item truck after the accident.

At any rate the trial judge saw and heard the witnesses and we are of the opinion that his conclusion is fully sustained by the record. In cases of this kind, where only facts are involved, we are not inclined to reverse the findings of the trial judge, unless they are plainly erroneous.

The judgment is therefore affirmed, all costs to be paid by appellant.


text:
    No. 11,445
    Orleans
    ITEM CO., LTD., v. LI ROCCHI
    (November 13, 1928. Opinion and Decree.)
    (November 26, 1928. Rehearing Refused.)

      Deutsch & Kerrigan, of New Orleans, attorneys for plaintiff and appellant.
    Paul L. Fourchy, of New Orleans, attorney for defendant and appellee.
   JANVIER, Judge ad hoc.

Dr. LiRocchi, a veterinarian in New Orleans, owed the Item Company $264.56 for certain business advertisements. The Item Company obtained judgment against him and issued a fi. fa. No property was found and Dr. LiRocchi was examined as to his assets. This examination took place on the 16th of February, 1928, and disclosed that Dr. Li Rocchi was the owner of a 1927 Dodge car, an old Ford truck, and certain office furniture. On the 18th of February, 1928, Dr. LiRocchi, in a notarial act passed before Josiah Gross, Notary Public, transferred to his sister, Mrs. Josephine Eckert, for a consideration of $750.00, all of the assets disclosed by -the examination which we have referred to above.

After considerable search, the sheriff, together with the attorneys for the Item Company, located the Dodge automobile and seized it; whereupon Mrs. Josephine Eckert produced to the sheriff an affidavit to the effect that she was the owner of the car. A rule was taken against Mrs. Eckert by the Item Company to set aside her affidavit and to declare that the automobile seized was the property of Dr. LiRocchi. The trial court held that the evidence did not show that the sale was simulated and dismissed the rule.

The sole question involved is whether or not the so-called sale from Dr. LiRocchi to Mrs. Eckert was simulated. If it was a bona fide sale it cannot be set aside.

At the outset, we may say, that the entire transaction is tainted with suspicion and is pregnant with suspicious circumstances.

The fact that a notarial act was employed, where no formal document was necessary, in itself leads to the belief that there must have been some desire to prepare evidence to meet an impending demand.

As to Dr. LiRocchi, we say without hesitation that the sole purpose he had in mind was to place his property where it could not be reached by his creditor, and if the setting aside of the sale did not involve the possible rights of Mrs. Eckert, it would hot be necessary to go beyond this point. However, if the sale was a valid one, and if Mrs. Eckert did actually pay the purchase price to Dr. LiRocchi in cash, whatever his intention may have been, we would find ourselves unable to deprive Mrs. Eckert of property for which she in good faith may have paid cash. However, it does not appear that Mrs. Eckert was acting in good faith.

The property which she purchased consisted of a Dodge coupe, an old Ford truck and some office furniture theretofore used by a veterinarian. That she had no use for these things is best shown by the fact that she never used the truck at any time, that she never used the furniture and office fixtures at any time, and that she allowed Dr. LiRocchi to use the Dodge coupe whenever he needed it. This we get from her own testimony. In fact she admits that she left all of these things in possession of Dr. LiRocchi.

Another suspicious circumstance is that she did not recall whether she had paid $700.00 or $750.00 for the articles supposed to have been purchased.

She states in her testimony that Dr. Li Rocchi told her he needed a few dollars and that she produced cash out of her pocket to the extent of $700.00 or $750.00 and bought his assets.

Then, again, let us remember that she states that she did not know how far the car she was buying had been run, and in fact she showed very little knowledge of it at all. She was familiar with automobiles, having owned three other cars, yet knew so little about the Dodge car that she did not know what shift it had. In this connection we think that the trial court was plainly in error in excluding evidence as to the shift, as the evidence was certainly relevant to test the credibility of the witness, whose cerdibility was under attack.

The circumstance which to our minds is absolutely conclusive, however, that this pretended sale was concocted between Dr. LiRocchi and his sister for the purpose of defeating the rights of the creditor, in the fact that, long before the seizure was made, Mrs. Eckert prepared an affidavit for the purpose of releasing the expected seizure. This affidavit was in Dr. LiRocchi’s possession at the time of the seizure, which was on the 19th day of March, 1928, the affidavit having been prepared on February 24, 1928.

To our minds the whole transaction shows conclusively that the pretended sale was in fact no sale at all. It was merely a scheme between Dr. LiRocchi and his sister for the purpose of preventing the execution of the judgment.

It is therefore ordered, adjudged and decreed that the judgment appealed from be reversed, and that there now be judgment setting aside the affidavit made by Mrs. Josephine Eckert.


author: JANVIER, J. ad hoc.

text:
    No. 11,528
    Orleans
    CONNERY v. NOEL, ET AL.
    (November 13, 1928. Opinion and Decree.)
    Charles Mundy, of New Orleans, attorney for plaintiff, appellee.
    Thomas J. Dobbins, of New Orleans, attorney for defendant, appellant.
   JANVIER, J. ad hoc.

This is a suit for wages, which plaintiff alleges are due her as a domestic servant and for $6.00, which she claims, Mrs. Noel owes her for a suit of clothes, which plaintiff avers she sold to Mrs. Noel. The sole question is whether or not plaintiff had been paid, in full for her services as a domestic and whether or not, she had been paid for the suit of clothes.

The testimony of the plaintiff, herself, is very uncertain and, in fact, but for the leading questions and suggestions of her counsel, there would be nothing, even in her own testimony on which a recovery could be based.

The testimony of the defendants is quite plain to the effect that the plaintiff had been paid in full and had been allowed her room and hoard, after her period of service had terminated, simply because she was in bad health and had no place to go. This testimony is corroborated by another witness, who was a roomer in the house, and we think, shows conclusively that the plaintiff is in error in her contention.

■We see no reason to reverse the trial Judge. It is therefore ordered, adjudged and decreed that the judgment appealed from be affirmed.


text:
    No. 11,508
    Orleans
    J. T. MANN & CO., INC. v. BARRETT
    (November 13, 1928. Opinion and Decree.)
    Chas. E. de la Vergne, of New Orleans, attorney for plaintiff and appellee.
    W. J. Kearney & H. P. Sneed, of New Orleans, attorneys for defendant and appellant.
   JANVIER, Judge ad hoc.

J. H. Mann & Company, Inc., are engaged in business in New Orleans in installing rubber tiles and in selling other rubber goods in connection with the building and repairing of houses.

Defendant, Miss Sara B. Barrett, was engaged in business in New Orleans in the selling of rubber tiles on a commission basis. The plaintiff and the defendant conceived the idea that they could operate together to the mutual advantage of both, the defendant to assist the plaintiff in securing contracts, under which the plaintiff would install rubber tiles furnished by the defendant. Apparently the business of the defendant was not entirely successful and she found it necessary to borrow certain sums from the plaintiff company. Just what she used these sums of money for, seems to us of no importance, as it was unquestionably understood 'that they were to he repaid, either in cash or out of the profits she was to make on contracts, or, as she contends, out of the profits the Mann Company were to make. She contends, in other words, that it was understood that, if she produced sufficient business out of gratitude to her, the Mann Company would absorb the loans and she would never be called on to make payment.

This defense plainly places the burden upon her to prove that the Mann Company did make sufficient profits out of the business produced by her, to absorb these advances.

We are not convinced that such was the contract. However, if it was not so agreed, her defense would fail and if it was so agreed, her defense would likewise fail, as we do not believe that she has successfully shown that, even under her view of the matter, the profits made by Mann & Company from her business were sufficient to absorb the amounts advanced.

It appears to us, however, that there is some error in the calculation of the amount due. We notice that the total amount claimed is $220.32, less a credit, represented by a note of $75.00, which makes a balance of $145.32, to which is added interest of $14.05, making a total of $159.37. We believe the correct way to fix the amount due is tO' eliminate entirely the item of $75.00 on November 16, 1925, as it to all intent and purpose has been eliminated by the credit of $75.00 on November 17, 1925, and to allow interest on each of the remaining loans from the date on which it was made.

It is therefore ordered, adjudged and decreed that the judgment appealed from be amended and that there now be judgment in favor of plaintiff in the sum of $145.32 with legal interest as follows: On $25.00 from September 14, 1925, on $15.00 from December 24, 1925; on $76.32 from February 13, 1926; on $10.00 from March 31, 1926; on $9.00 from April 30, 1926, and on $10.00 from June 15, 1926. These interest calculations may or may not show the amount of interest to be due as $14.05, but we think that if it is not that amount, it will be so near to it, that it would be unfair to throw the cost of the appeal on the appellee under such circumstances. The cost of appeal shall, therefore, be borne by the appellant.


text:
    No. 11,387
    Orleans
    CRATON v. COURET
    (October 29, 1928. Opinion and Decree.)
    L. A. Molony, of New Orleans, attorney for plaintiff and appellee.
    Brian & Brian, of New Orleans, attorneys for defendant and appellant.
   JANVIER, Judge ad hoc.

Plaintiff sued for $104.15 for installing certain electrical wires and sockets in defendant’s residence.

Defendant denies the correctness of the charge and avers that he employed plaintiff merely to make some minor alterations in electrical installations which had been previously made by defendant himself, but which as originally made by him did not comply with the city building code.

The trial court allowed plaintiff $75.00. On the argument in this court it was admitted by defendant’s attorney that: “A charge of $40.00 or $45.00 might have been about right.”

According to experts of defendant, materials worth about $21.00 were used and, according to defendant’s brief, the labor should have required about seventeen hours. Defendant’s experts also state that $2.50 an hour would have been a fair charge. On these figures, according to defendant himself, the labor charge should have been $42.50 and the material charge should have been $21.00, making a total of $63.50. Plaintiff claims that $104.15 was a fair charge. Defendant’s own estimate of the value of the services and material is so near the amount allowed by the trial court that we see no reason to disturb the judgment.

It is therefore ordered, adjudged and decreed that the judgment appealed from be affirmed at the cost of appellant.


text:
    No. 10,448
    Orleans
    HIGGINS MANUFACTURING CO. v. A. S. SPIESS SALES CO., ET AL.
    (November 13, 1928. Opinion and Decree.)
    Miller, Miller & Fletchinger, of New Orleans, attorneys for plaintiff and appellee.
    J. D. Nix, Jr., and W. W. Wright, of New Orleans, attorneys for defendants and appellants.
   JANVIER, Judge ad hoc.

Higgins Manufacturing Company, through its salesman, contracted to deliver to A. S. Spiess Sales Company, a partnership composed of Alvin S. Spiess and E. A. Spiess, three hundred cases of merchandise known as Higgins Nut Product. The goods were to be paid for at 23 cents per pound, f.o.b. New Orleans — one-third twenty days from date of invoice, one-third forty days from date of invoice, and one-third sixty days from date of invoice. The contract contained the following provision:

“Exclusive Agent in Louisiana
“Distributor to reship to Mobile, Ala., territory.
“Distributor to reship to Little Rock, Arkansas.
“Distributor to reship to Mississippi.”

The goods were delivered, apparently, during the latter part of September, 1924. The total price was $2,277.00.

Higgins Nut Product, according to the evidence, is a butter substitute on the order of oleomargarine, and is used by bakers and cake-makers instead of butter.

On the 19th of December — or nearly three months after the receipt of the goods — the defendants remitted $759.00, being the amount due as the first installment. Up to that time, and in fact until after that time, no complaint of any kind was made as to the quality or condition of the goods.

As no further payments were forthcoming, the plaintiff commenced correspondence with the defendants in an effort to secure the balance of the purchase price. It was then, for the first time, that the contentions which defendants have set up in this suit, were raised by them.

Their defense is that the goods were not up to the sample, and that they were therefore not able to sell them, and furthermore that only fifty cases were actually bought by them, and that the balance was really shipped to them on consignment, they to attempt to sell it for the plaintiff on a 5 per cent commission basis.

With reference to the first contention, it appears there was nothing in the contract which required the product to be of a particular grade or quality, and as the contention was not made until more than three months after the receipt of the goods, and until nearly a hundred cases of it had been sold, we are of the opinion that this defense should not be allowed to prevail, particularly as the merchandise sold was highly perishable, and its condition later on — if in fact it was in bad condition — may have been due to the treatment accorded it by the defendants. At any rate, the fact that it 'was received without complaint, and that no complaint was made for more than three months, is very persuasive evidence that it was in sound merchantable condition when received by defendants.

As to the second defense that 250 cases of the article were shipped on consignment and really remained the property of the plaintiff, it seems to us that this defense should not be allowed to prevail for several reasons. First, and foremost, the contract itself makes no such provision, but appears as an outright sale of 300 cases by the plaintiff to the defendants. Defendants argue that that portion of the contract reading:

“Exclusive Agent in Louisiana.
“Distributor to reship to Mobile, Ala., territory.
“Distributor to reship to Little Rock, Arkansas.
“Distributor to reship to Mississippi.”

was put in because plaintiff’s, salesman told them that he would arrange for them to reship to certain dealers in the territory mentioned, and also to Dallas, Texas. Plaintiff avers that that part of the contract meant nothing more than that defendant had the right to sell the goods in the territories mentioned if it could find purchasers. This latter interpretation seems to us to be the one plainly intended at the time the contract was made. In our judgment evidence tending to contradict or to vary the contract should not have been admitted, as the contract is plain and unambiguous and needs no explanation or interpretation.

If, however, there is in the contract on this feature anything ambiguous, the evidence as a whole falls far short of convincing us that the defendants understood or believed that 250 cases of the article were being shipped them on consignment. In fact, as late as December 1, 1924, after they had had the goods in their possession more than two months, the defendants 'wrote a letter to the plaintiffs in which they stated that, in an effort to put the product on the market, they had cut the price two cents a pound. It is evident that they would not have been able to do this without first obtaining the authorization of the plaintiff, if the goods remained the property of the plaintiff and had merely been shipped to the defendants on consignment.

The entire file of correspondence in the record convinces us that the defendants are not in good faith in their various defenses.

Plaintiff argues that the trial court erred in not rendering judgment on the pleadings. "We are not at all convinced that the trial court was not in error in this regard, but as the whole record is before us, and as the same result may be obtained by affirming the judgment of the trial court, we see no reason to do otherwise.

Although the question in this case as to whether damages for frivolous appeal should be allowed is a very close one, we do not feel justified in awarding them, except in cases where the appellant or his attorney knew, or ought to have known, that there was no substantial reason for believing that there was error in the judgment of the lower court; and we are not quite convinced in this case that the facts would justify us in awarding these damages.

It is therefore ordered, adjudged and decreed that the judgment appealed from be affirmed, at. the cost of appellant.


author: MOUTON, J.

text:
    No. 376
    First Circuit
    GULF PUBLIC SERVICE COMPANY v. LOUISIANA TAX COMMISSION
    (December 4, 1928. Opinion and Decree.)
    Harry P. Sneed, of New Orleans, attorney for plaintiff, appellant.

      J. Sheldon Toomer, of Lake Charles, attorney for defendant, appellee.
   MOUTON, J.

Plaintiff company is the owner of a manufacturing plant with equipments and improvements on city lots situated in the City of DeQuincy, Calcasieu Parish.

The manufacturing plant was assessed at sixty-five thousand dollars ($65,000.00), and the improvements on the lots at five thousand dollars ($5,000.00), by the Assessor of Calcasieu. These assessments were approved by the Board of Equalizers of the parish.

After completion of the assessment rolls the Louisiana Tax Commission ordered the Assessor to increase the assessment on the improvements on the city lots to eight thousand five hundred dollars ($8,500.00), and on the manufacturing plant to one hundred and seven thousand nine hundred dollars ($107,900.00).

Plaintiff, contending that the assessment of the Tax Commission is excessive, brings this suit to have it reduced to the amount originally fixed by the Assessor and approved by the Board of Equalizers.

The District Judge decreed a reduction of the assessment on the city lots to five thousand dollars ($5,000.00), but refused a reduction on the manufacturing plant, and approved the valuation of one hundred and seven thousand nine hundred dollars ($107,900.00), which had been fixed by the Tax Commission.

The lower court ordered plaintiff to pay the Tax Collector ten per cent (10%) additional on the taxes due and collectible for attorney’s fees to the attorney appointed to assist him.

The contention of the plaintiff is, in substance, that when a plaintiff sues for a reduction of his assessment, and his demand is granted in part and rejected in part, he is not liable for attorney’s fees.

The total assessment by the Tax Commission amounted to one hundred and sixteen thousand four hundred dollars ($116,-400.00), which was. reduced by the court to the sum of one hundred and twelve thousand nine hundred dollars ($112,900.00).

Plaintiff finds no error in the judgment thus reducing the assessment, but directs his complaint exclusively against the decree imposing the ten per cent (10%) tax as attorney’s fees. His contention is that when the suit for reduction is maintained in part and disallowed in part, such fees should not be granted. Under the provisions of Act 170 of 1898, section 56, attorneys representing Tax Collectors in all proceedings for the reduction of assessments or when it is sought to restrain the collection of taxes, are entitled to a compensation of ten per cent (10%) on the amount collected. In a later Act, that of 1916, No. 140, under section 16, the commission of the attorney is fixed at ten per cent (10%) on the amount of the taxes involved when the assessment is sustained or not reduced more than twenty-five per cent (25%) of the reduction claimed.

In the instant case the reduction obtained was far from the twenty-five per cent (25%) spoken of in the statute, and under its provisions the commission of ten per cent (10%) accrues to the attorney, unless there be some merit in the contention of counsel for plaintiff that under a recent decision of the Supreme Court, in Tremont Lbr. Co. vs. Police Jury of Winn Parish, et al., 164 La. 259, 113 So. 839, such a commission cannot be taxed to the unsuccessful plaintiff in cases of this character.

Before referring to the decision above cited on,which counsel for plaintiff places his entire reliance, it may be appropriate to consider the adjudications of our courts on this question in prior decisions.

In State ex rel. Stemple vs. City of New Orleans, 105 La. 768, 30 So. 97, the statute of 1898, fixing the ten per cent (10%) attorney’s fees and which runs on practically the same lines with the provisions of section 16 of Act 140 of 1916, the court said that the statute did not exceed the power of the Legislature and was neither invalid nor unconstitutional. The attorney’s fees of ten per cent (10%) imposed in the case; were maintained.

In the case reported in a later decision, Liquidating Com. N. O. Whse. Co. vs. Marrero, 106 La. 130, 30 So. 305, the constitutionality of Act 170 of 1898, was again attacked. The court then held that this commission of ten per cent, thus imposed on the unsuccessful tax register, is regarded as costs, and falls legitimately within legislative control and regulation.

The court further said that the constitutionality of such statutes had been challenged in various states but had been upheld by the courts.

In the still more recent decisions reported in Baton Rouge Water Works Co. vs. Bd. of State Affairs et al., 149 La. 391, 89 So. 247; Show vs. Watson, 151 La. 893, 92 So. 375, and Mortgage & Securities Co. vs. City of New Orleans et al., 153 La. 1073, 97 So. 44, the court held that where the assessment was not reduced to an amount exceeding twenty-five per cent (25%) of the reduction claimed, the tax debtor was liable to ten per cent (10%) on amount of taxes collected. It may therefore be safely stated that our courts have for many years, and in several decisions, maintained the validity of the ten .per cent (10%) attorney’s fees imposed on unsuccessful suitors in suits of this character, either under the provisions of Act 170 of 1898, or 140 of 1916. We understand that counsel for plaintiff admits that our courts had so decided in the decisions rendered prior to the case of Tremont Lumber Company vs. Police Jury of Winn Parish, 164 La. 259, 113 So. 839, but that in this, the latest expression of the court on the subject under discussion, it had not followed the doctrine previously announced.

It will be noticed that in the 164 La. case, the court in the course of the opinion took occasion to remark, that the case was not to reduce or correct an assessment, but was for the purpose of reducing the tax levy itself. It was therefore held that Acts 170 of 1898, and 140 of 1916, were inapplicable. Here the suit is unquestionably for the reduction of the assessment and its correction, which brings the issue clearly within the grasp of the‘sections of the Acts hereinabove referred to. There is not a single expression of the court in the case cited by counsel for plaintiff indicating that it had any reason to question the soundness of the decisions previously rendered upholding the legality and constitutionality of the provisions of the statutes under which the attorney’s fees were taxed against plaintiff. If the court had intended to depart from its former rulings on the subject, there can be no doubt that it would have emphatically so declared. It has not, and as long as it does not, we must be guided by its former decisions.

The only question presented is as to whether the issue comes under the operations of the statutes, and is to be regulated accordingly.

Our conclusion is that it does and that plaintiff was properly held for the ten per cent (10%) attorney’s fees as decreed below.


author: PER CURIAM.

text:
    No. 11,326
    Orleans
    PERLOFF v. SCHARP
    (October 29, 1928. Opinion and Decree.)
    Benj. Y. Wolf, of New Orleans, attorney for plaintiff and appellant.
    Jos. Rosenberg, of New Orleans, attorney for defendant and appellee.
   PER CURIAM.

This is a suit on an open account. The defense is a plea of payment which the judge, a quo, sustained and dismissed the suit.

We have read the record with care and we are unable to say that the court manifestly erred in determining the issue of fact in plaintiff’s favor.

Judgment appealed from is therefore affirmed.


text:
    No. 11,250
    Orleans
    HARVEY v. WINSEL
    (October 29, 1928. Opinion and Decree.)
    (See Harvey vs. Hirsch, reported on p. —.)
    Woodville & Woodville, of New Orleans, attorneys for plaintiff and appellee.
    Jos. Rosenberg, of New Orleans, attorney for defendant appellant.
   PER CURIAM.

This case involves the right of plaintiff, a real estate agent, to a commission under a contract similar in all essential particulars to one considered by this court in the case of Stanley A. Harvey vs. Harry Hirsch, No. 7518 of the docket. The same defense is made here as was made there, and for the lengthy reasons given and upon the authority of the numerous citations referred to in that case, this defense cannot prevail.

The judgment appealed from is therefore affirmed.


author: LECHE, J.

text:
    No. 383
    First Circuit
    JACOBS v. LAGRANGE
    (January 9, 1929. Opinion and Decree.)
    Brumby and Bauer, of Franklin, attorneys for plaintiff, appellant.
    Borah, Himel, Block and Borah, of Franklin, attorneys for defendant, appellee.
   LECHE, J.

Plaintiff’s suit is founded upon a claim represented by an open account. To this demand defendant excepted and pleaded the prescription of three years. After hearing evidence, the trial judge overruled the plea and though no answer had been filed nor default entered, he proceeded at the same time to render judgment in favor of plaintiff for the full amount of her claim. The trial judge evidently treated the plea of prescription as an answer, and he based his judgment upon the evidence submitted on the trial of that plea. That judgment appears to have been signed, though neither it nor the record shows that it was read and signed in open court as required by Arts. 543 and 546 of the Code of Practice; Laurent vs. Beelman, 30 La. Ann. 363; Woodlief vs. Logan, 50 La. Ann. 438, 23 So. 716. The minutes of the court show only that it was rendered in open court on March 21, 1928.

On March 22, 1928, defendant applied for a rehearing. That application was argued and submitted on March 26, 1928, when it was taken under advisement by the court. On July 3, 1928, the minute entry shows that the application for rehearing was granted and judgment now rendered setting aside and annulling the judgment heretofore rendered and at the same time, judgment was now rendered in favor of defendant, rejecting plaintiff’s demand.

It is from the latter judgment that plaintiff prosecutes the present appeal.

Plaintiff both in oral argument and in her brief complains that the trial judge had no right or authority, when he ruled upon the application for rehearing on July 3, 1928, to set aside ana vacate his former judgment without actually again hearing her, and to immediately enter and sign another judgment. In effect she complains that the second judgment was entered without giving her a hearing in accordance with the requirements of due process of law.

Up to the year 1926 rehearings in a trial court were unknown to our system of procedure. A judgment could only be revised, set aside, or reversed by appeal, by action in nullity, by rescission or by a new trial. C. P. 556. The Code of Practice provides in detail the manner of procedure when a new trial is granted. By Article 563 it is provided that when a new trial is granted the cause should again be set on the docket and tried anew. The adoption of Act No. 10, p. 11 of the Acts of 1926, is an innovation in our system of procedure and according to its provisions, a rehearing may now be granted in our trial courts. Obviously the words new trial and rehearing are not synonimous. The word rehearing as understood and construed when applied to appellate court procedure, means to again hear argument, to permit a re-argument of the case. In the case of Reed vs. Corlin, 115 La. 137, 38 So. 942, where the Court of Appeal did precisely what the trial judge did in this case, the Supreme Court held that the Court of Appeal was without authority to do so. There appears no reason why the manner of proceeding on an application for rehearing should be different in a trial court from that in an appellate court. The Legislature has not so indicated under the terms of the statute, and the presumption is that an application for rehearing in a trial court should be treated and proceeded with in the same way as in an appellate court.

On the application for rehearing in this case, the question to be decided was whether the rehearing should be granted or refused and nothing more. The judgment might be correct or it might be erroneous, but that question could only be passed upon after a ruling granting the rehearing. The trial judge did not however do this. He did not in terms rule upon the application for rehearing, although his action, by necessary implication, shows -that he so intended and that in his opinion the rehearing should be granted. He went further. He set aside his former judgment and proceeded at once to render another and a different judgment.

For these reasons the judgment appealed from should be avoided and set aside and the case remanded to be heard and re-argued, and it is accordingly so ordered, defendant to pay costs of appeal; other costs to be taxed on final disposition of the case.


text:
    No. 388
    First Circuit
    EVANGELINE PEPPER PRODUCTS CO. v. DALFERES CIGAR AND TOBACCO CO.
    (January 9, 1929. Opinion and Decree.)

      Voorhies and Labbe, of Lafayette, attorneys for plaintiff, appellee.
    A. W. Dalferes, of Lafayette, attorney for defendant, appellant.
   MOUTON, J.

Plaintiff brought suit for $192.94, balance on open account for goods alleged to have been delivered to defendant between Dec. 25, 1925, and Feb. 24, 1926.

A tender of $72.62 was made by defendant, for which judgment was rendered against it before trial, which, with a recognized allowance of $2.39 for freight charges, reduced the claim of the plaintiff to $117.20, the amount decreed below, from which defendant prosecutes this'appeal.

The defendant, in its answer, afte* admitting its indebtedness for $72.62 for which judgment was rendered, as herein-above stated, avers that some of " the goods though received without any previous order, the delivery thereof was accepted in pursuance of the custom of trade in such goods, that respondent would undertake to sell them, and thus introduce the goods in the vicinage, and would pay for portions that were marketable, with the right of returning or being given credit for goods that would spoil while in its possession, or for any other reason rendering them unsaleable; that it was also agreed that defendant would have the right, at all times, to exchange the goods for others of a similar character, and that when a larger amount was delivered than respondent desired to handle, the excess would be returned for which proper credit would be allowed. Finally, defendant specially denies that an outright sale was made of the goods, but avers they were bought under the conditions hereinabove stated.

Counsel for defendant says that all things not forbidden by law may become the subject of a contract. This is obvious, and no one disputes the correctness of that proposition.

Plaintiff testifies that the sale was made in the regular course of its business, and according to its invoices which ordinarily accompany the shipment of its goods to its various customers, and denies that its agreement with defendant was handicapped by the stipulations specially alleged in defendant’s answer. The issues disclosed by the record are as to whether the goods were sold or simply consigned to defendant or had been shipped without previous order or were oversized, spoiled or unsaleable.

A correct decision of this case depends on a proper solution of the foregoing contentions. It will be observed that the last items carried on the account run to the latter part of February, 1926. It is shown by the testimony of J. J. Fournet, attorney, that in September, 1926, he called on defendant for payment of this balance of the account. In answer to the demand for its collection, defendant contended that the goods had been sold on consignment, and offered to return them in full settlement of the claim. M. D. Dalferes, one of the defendants, said that in a conversation he had with Builliard, a member of plaintiff company. Builliard told him he had not sold his goods on consignment, to which Dalferes replied: “I never claimed that.” In a letter by M. D. Dalferes, dated March 5, 1926, addressed to the plaintiff company, Dalferes said he had never told Builliard that the goods had been sold on consignment. Hence, it is well established by the record, that the sale was not on consignment, and there is, therefore, no merit in such a defense. Although it is not urged as a defense that some of the goods had been shipped without previous order, evidence was introduced to sustain this contention. It is, however, admitted by defendant, as appears on the note of evidence, that the goods listed on plaintiff’s invoices had been delivered to defendant company, and accepted. This acceptance constituted a ratification of the sale, and has the legal effect of eliminating the question as to whether there had been an order authorizing the shipments.

The defendant, it seems, contends that although the goods were accepted, the acceptance was in pursuance to the conditions embodied in the special defenses herein-above referred to. The marrow of these specific defenses, and which formed the gravamen of the contest, was in reference to, the right claimed by defendant, that it would be given credit for the portions of the goods that “became spoiled while in respondent’s possession, or for any other reason rendering them unsaleable.”

In answer to a letter from plaintiff of date Feb. 2, 1926, defendant company in a letter dated Feb. 6, 1926, said in part: “Your candy is not in an unsaleable condition but we have had quite a few kicks, not as to its quality but as to its size.” Here, we have a direct acknowledgment from defendant that the goods were not unsaleable, and in addition, a recognition that they were unobjectionable as to quality. This fully answers the contention raised as to their unsaleableness, especially when taken in connection with the refusal of defendant to pay the account to Attorney Fournet long after September, when the only objection to the claim was that the goods were sold on consignment, a statement not supported by the record.

In this letter of defendant of February 6, 1926, a complaint appears as to the size of the goods, for the first time, and which is not urged as a defense, but found its way in the record as one of the contested points. After stating in that letter that there had been a few kicks in reference to the size of these goods, the writer concludes as follows: “Please send us a credit memorandum for merchandise returned to you, and send us a statement of our account and we shall settle.” It is manifest from such expressions that neither the unsaleableness or size of the goods were considered at all, as reasons justifying a repudiation of the contract.

We now pass lastly to the issue raised in reference to the allegation that the goods or portions thereof, were spoiled. If they had been spoiled it occurs to us that they would have likewise been unsaleable at the time the letter of February 6th was written. The fact is, that Mr. M. D. Dalferes was asked by attorney for plaintiff if any of the products of plaintiff company were spoiled when that letter was written. His answer to that question is that he does not remember. According to the tenor of that answer, the goods might or might not have been spoiled at that time, although in that letter it was stated by Mr. Dalferes that they were not unsaleable, and that there was no complaint as to their quality. On March 4, 1926, as appears on the account, a cash payment of $75.00 was made by defendant, and without complaint that the goods'were spoiled or unsaleable. And much later, in September, 1926, when the bill was presented for collection by J. J. Fournet, the only objection urged to its payment was, that the goods had been sold on consignment. It is fair to infer that if they had been either spoiled or unsaleable at that time, a complaint to that effect would have been made by defendant. Under such a state of facts, our conclusion is that the court below properly denied the relief sought by defendant.


author: ELLIOTT, J.

text:
    No. 2487
    First Circuit
    JOUBAN v. MAYER
    (January 9, 1929. Opinion and Decree.)
    Cline and Plauche, of Lake Charles, and Ped C. Kay, of DeRidder, attorneys for plaintiff, appellant.
    Robert J. O’Neal, of Shreveport, attorney for defendant, appellee.
   ELLIOTT, J.

Mike Jouban claims to be the owner of a parcel of .land described as “lying in the N. W. corner of lot 7 of the Shirley subdivision of the town of De-Ridder, having a front of 158 feet and 8 inches on Warren Street, thence running east 275 feet and 8 inches between parallel lines, containing one acre more or less,” by purchase from Raymond A. Mayer. That through mutual error and mistake on the part of said Mayer and himself, in passing the act of sale, the title was made to call for only 108 feet and 8 inches front on Warren Street; the result being, that a frontage of fifty feet by a depth of 275 feet 8 inches on the south side of the lot was not discovered by the description. He alleges, in case the error was not mutual, that then it was produced in the act by the fraud of the seller in furnishing a mis-description of the property to the notary, thereby deceiving the notary as well as the petitioners. He prays that the act be re-formed, so as to cover all the property which he purchased.

The defendant denies 1;hat there is error in the act, in the matter of description _ and denies the fraud alleged against him.

The evidence on the subject of error and fraud is in the main, the statements of the plaintiff affirming, and of the defendant in denying the fact, There were several other witnesses, but their testimony does not have important bearing on the issue.

No weight was given by the lower court to the testimony of two witnesses called by plaintiff to support his statements, nor to one called by the defendant to show a verbal extra judicial admission on the part of the plaintiff against his contention in the suit.

Plaintiff’s actions and his testimony show that he believed he had bought the entire body of land which he alleges that he bought, and which contains 158 feet 8 inches front on Warren Street. It is shown that immediately after the sale, he planted fruit trees and trimmed shrubbery growing on the fifty feet not included in the act, and had the ground plowed. The defendant testifies that he did not notice these acts. It seems to us, however, that he must have been aware of what plaintiff was doing, but he says not.

The defendant furnished the notary the description of the property; it is a certain specified frontage and it can not by any language used in the act be held to' refer to anything more or less than the particular parcel of land specifically described.

Acts often state that the property sold is all or part of the same that the seller had acquired by a certain act, but it is not always done. In this case the defendant testifies that the frontage specified in the act is all that he intended to sell and all that his contract with the plaintiff provided for; that there was no mistake ,on that subject nor fraud on his part in the description furnished the notary. The defendant was not present when the act was signed. The notary started to read it to the plaintiff at the time he was about to sign it, but he stopped the reading, saying it was not necessary. It is our belief that the act calls for all that the defendant intended to sell and all that he understood his contract with the plaintiff called for.

The act is presumed to be correct. It requires convincing evidence to show that, through error and mistake, it does not cover all that both the parties intended that it should.

We think the case was correctly decided in the lower court.

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


author: REYNOLDS, J.

text:
    No. 3407
    Second Circuit
    COOPER v. STUCKEY ET AL.
    (December 19, 1928. Opinion and Decree.)
    McHenry, Montgomery, Lamkin and Lester, of Monroe, attorneys for plaintiff, appellant

      Munholland and Munholland, of Monroe, attorneys for defendants, appellees.
   STATEMENT OF THE CASE

REYNOLDS, J.

This is a suit hy Mrs. Love M. Cooper, the wife of C. H. Cooper, against E. C. Stuckey, J. C. Cobb and T. W. McDonald to recover the sum of $300.00 with legal interest thereon from judicial demand, as damages alleged to have been sustained by her by reason of the seizure and sale as the property of her husband, C. H. Cooper, of an automobile, described as a Ford Sedan bearing the motor number 10,871,663 and license number 194-344, under a fi. fa. issued upon a judgment obtained by the Five Points Grocery against C. H. Cooper in the City Court of the City of Monroe, Louisiana, in an action in said court numbered 4741 on its docket and entitled Five Points Grocery versus C. H. Cooper. She alleges that the automobile was her separate, paraphernal property and not subject to seizure or sale for the debts of the community existing between her and her husband or of her husband.

The defendants denied that the automobile was the separate, paraphernal property of the plaintiff and alleged that a community of acquets and gains existed between her and her husband and that it belonged to the community.

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

OPINION.

The record presents for our consideration only a question of fact, namely, was the automobile seized and sold the separate, paraphernal property of the plaintiff?

It was purchased from the Lee-Rogers Chevrolet Company, Inc., in the name of the plaintiff and her husband, C. H. Cooper, acted for her in the transaction.

The purchase price was $443.50 and was paid as follows: $135.00 by transfer to the vendor of another automobile and a note for $208.50, payable in ten monthly installments of $20.85 each and secured hy a mortgage on the automobile.

Both the note and the mortgage were signed: “Mrs. L. M. Cooper, by C. H. Cooper.”

The automobile transferred to the vendor in part payment of the one purchased is claimed by the plaintiff to have been donated to her by her son but the evidence does not establish this to be a fact to our satisfaction but rather tends to show that it was the property of the husband.

The note given in part payment of the purchase became a debt of the community and the community property was subject to seizure and sale for its satisfaction.

Property acquired during the existence of the community of acquets and gains, whether in the name of both husband and wife or of either of them, presumptively is community property, and the wife who claims as her separate paraphernal property something purchased during the existence of the community has the burden of proving that she had a separate estate under- her separate administration and control and that the property claimed as her own was acquired with money or property belonging to such estate, and this burden we do not think the plaintiff has discharged.

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


author: ODOM, J.

text:
    No. 3438
    Second Circuit
    ELLIS v. MCDONALD ET AL.
    (December 19, 1928. Opinion and Decree.)
    Newton & Newton, of Monroe, attorneys for plaintiff, appellee.
    Dawkins and Dawkins, of Monroe, attorneys for defendants, appellants.
   ODOM, J.

The plaintiff was the owner of a Ford truck. and trailer, which he used for hire, and, on the 19th. of April, 1928, the defendant, E. McDonald, took physical possession thereof without right and without authority, drove it to his wife’s filling station and store and delivered it to her, where it remained until May 29th, following.

Plaintiff brings this suit against both McDonald and his wife, Mrs. Mabel McDonald, to recover the loss which he sustained on account of being deprived of the use of the truck during the time that it remained in defendants’ possession; and also the sum of $1500.00, for humiliation.

The defendants, in answer, denied that they were indebted unto plaintiff in any sum, but admitted that the defendant, E. McDonald, had taken possession of the truck and carried it to . Mrs. McDonald’s place of business, on the Winnsboro Road, and had kept it for a period of time; and alleged that they thought the truck had been abandoned and that they took it for his protection.

There was judgment in the lower court in favor of the plaintiff, and against both defendants, in the sum of $210.00, and all costs. Mrs. Mabel McDonald appealed.

OPINION.

The testimony shows beyond question that E. McDonald, the husband of Mrs. Mabel McDonald, took possession of plaintiff’s truck without authority and without right in law, and that it was placed in Mrs. McDonald’s possession, on her premises, and kept there from April 19 to May 29.

It further appears that the plaintiff, Ellis, owed Mrs. McDonald a bill for groceries and gasoline and that, previous to the taking of this truck, she had filed suit against him to collect the amount. A number of witnesses testified that Mrs. McDonald stated to them that she had taken possession of the truck and expected to keep it until plaintiff paid his bill. Mrs. McDonald testified that she had nothing to do with the taking of the truck nor with keeping it, but, in this respect, her testimony is contradicted by other witnesses who testified that she had told them that she was going to keep the truck until Ellis paid his bill; and it is clear that she did refuse on several occasions to permit Ellis or anyone else to repossess it.

The taking possession of the truck was a trespass which rendered the defendants liable for whatever loss and damage plaintiff sustained on account thereof. They kept the truck in their possession for about forty (40) days. Ellis testified that the truck was worth to him not less than $7.00 per day. The lower court found that he was entitled to $210.00, based, we assume, upon the theory that plaintiff could have used the truck thirty (30) days during the time it was in defendants’ possession. The court allowed nothing on the claim for humiliation and embarrassment, on account of the illegal taking of the truck.

We think the judgment is correct and it is therefore affirmed, with costs.


text:
    No. 3367
    Second Circuit
    MASK v. CITY OF MONROE
    (December 19, 1928. Opinion and Decree.)
    Theus, Grisham and Davis, of Monroe, attorneys for plaintiff, appellee.
    H. H. Russell, of Monroe, attorney for defendant, appellant.
   STATEMENT OF THE CASE.

REYNOLDS, J.

Plaintiff sued defendant for $5,000.00 for personal injuries alleged to have been suffered by her in a collision between a street car owned and operated by defendant and an automobile occupied and driven by her. She alleges that the collision was caused by the carelessness of the driver of the street car.

Defendant denied that plaintiff was injured as alleged and denied that its servant was negligent and alleged that the collision was caused by the carelessness of plaintiff in driving suddenly and unexpectedly to its servant in front of the approaching car and that the driver of the car was unable for that reason to avoid striking the automobile.

On these issues the case was tried and there was judgment in favor of the plaintiff and against the defendant for $1,000.00 and defendant appealed. Plaintiff has answered the appeal and asks that the amount of the award be increased.

OPINION.

The circumstances of the collision are testified to, on behalf of plaintiff, by Mrs. Eva Hundley, Miss Sybil Mask, Filhoil Breard, and the plaintiff herself, and on behalf of the defendant by T. J. Wainright, Mrs. Rosa Copeland, and Joe LaDort.

The testimony of the first four named witnesses was accepted by the trial court as entitled to greater weight than that of the last three named witnesses, and we concur in that view of it.

According to the testimony of the- first four named witnesses the plaintiff drove an automobile out of Harrison Street and into Jackson Street in the City of Monroe, Louisiana, and proceeded north in Jackson Street upon the space carrying the street car tracks until stopped by a traffic officer just before she arrived at DeSiard Street and was held there to await a removal of congestion of traffic that existed at that point, and while the automobile was being held at that place under those circumstances it was run into from the back by a street car owned and operated by the . defendant, injuring plaintiff and damaging the automobile.

Under these facts the defendant is clearly liable for damages for the injury done to plaintiff and the damage to the automobile.

Plaintiff testified that in consequence of the collision she 'suffered much pain and some, bruises to her ;body and that the pain continued down to the'.time- of the trial, some thirteen months after the collision. Under this evidence we are not disposed to reduce the amount of the award allowed plaintiff.

And the evidence shows that plaintiff was able to return to her work on the third day after the collision and had been continually at work up to the time of the trial. We are therefore of the opinion that the prayer for an increase in the amount of the award should not be granted.

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


text:
    No. 3434
    Second Circuit
    ODOM v. HODGE-HUNT LUMBER CO., INCORPORATED
    (December 19, 1928. Opinion and Decree.)

      H. W. Ayres, of Ruston, attorney for plaintiff, appellee.
    Barksdale, Warren & McBride, of Ruston, attorneys for defendant, appellant.
   ODOM, J.

George A. Odom, plaintiff, is Superintendent of Public Schools for the Parish of Jackson, and, for his services as such officer, he is paid a salary by the School Board of two hundred ninety-one & 66/100 ($291.66) dollars per month, payable semi-monthly.

The Hodge-Hunt Lumber Company, Incorporated, defendant, obtained judgment against the said Odom on November 18, 1927, in the sum of $115.62, and, on April 27, 1928, said judgment not having been paid, it procured the issuance of a writ of fieri facias and caused to be seized, through garnishment procedure, the sum of $145.83, in the hands of the Jackson Parish School-Board, said amount being due plaintiff, Odom, as salary for the last half of April, 1928.

Following the seizure of said amount in the hands of the School Board, the plaintiff, Odom, ruled the Sheriff and the judgment creditor to show cause why the amount seized in the hands of the School Board should not be released on the ground that he was a public officer, and the amount seized was due him as salary, and, as such, was exempt from seizure for his ordinary debts. His suit by rule was accompanied by an application and prayer for an injunction prohibiting the Sheriff and the judgment creditor from proceeding further with the seizure, and prohibiting the School Board from paying over said amount to the seizing creditor.

The trial of the rule resulted in a judgment in favor of the plaintiff, decreeing that the amount seized in the hands of the School Board was exempt from seizure for the ordinary debts of plaintiff in rule, and perpetuating the injunction. From this judgment, the defendant in rule, the judgment creditor has appealed.

OPINION.

The judgment appealed from is correct. A Parish Superintendent of Public Schools is a public officer. State ex rel. Smith vs. Theus, 114 La. Rep. 1097, 38 So. 870.

The salary of a public officer is exempt from seizure for his ordinary debts. Fischer vs. Dubroca, 163 La. Rep. 292, 111 So. 710.

. Counsel for the judgment creditor in oral' argument before the court and in an exhaustive brief filed, contend that the salary of a public officer is not exempt from seizure and they would have us so hold, even though the contrary was held in the Fischer vs. Dubroca case, supra, for they say that case is not stare decisis. But we follow the Fischer vs. Dubroca case, and hold that plaintiff’s salary is exempt.

Under our view, there is but one issue raised in the case and that is the one we have decided. But counsel for the judgment creditor object to the form of the procedure, contending that plaintiff should not have proceeded by separate suit, but should have come into court by way of intervention or third opposition. We are not impressed with this contention. Plaintiff’s action in this case is by way of rule on the seizing creditor and the Sheriff to show cause why the amount seized in the hands of the School Board should not be released because exempt from seizure, and we see no reason why the suit should not bear a different' number from the original suit by the judgment creditor against the judgment debtor. Besides, if it be said that the action of the judgment creditor making the School Board a party garnishee, is a suit between it and the School Board, and that plaintiff is a third person to that suit, as contemplated by Articles 389 and 395 of the Code of Practice, plaintiff’s proceeding by rule to show cause why the funds in the hands of the Board should not be released because exempt under the law is, substantially, a third opposition. State ex rel. Bagur vs. Judge, 24 La. Ann. 599.

Again, counsel for the judgment creditor contend that plaintiff in rule should not have coupled with the rule a prayer for an injunction, their main contention being that a hearing on the case under the pleadings prevented a decision on the main point at issue, which is, whether plaintiff’s salary is exempt from seizure. The contention is not well founded because, as a matter of fact, the sole issue presented by the pleadings is whether as a matter of law plaintiff’s salary, as a public officer, is exempt from seizure for his ordinary debts, and that precise point was decided by the court below and decided by us. So that, if counsel for the judgment creditor desire to have that question again submitted to the Supreme Court in the belief, or at least the hope, that the court on further consideration may reverse its holding in the Fischer vs. Dubroca case, the way to get the case before the court is open, because, if we are in error in our holding that plaintiff’s salary is exempt from seizure, the court will order the case up on application for a writ.

Finding no error in the judgment appealed from, the same is accordingly affirmed, with costs in both courts.


text:
    No. 3440
    Second Circuit
    POPE v. MOST WORSHIPFUL ST. JOHN'S GRAND LODGE
    (December 19, 1928. Opinion and Decree.)
    Robert Layton, of Monroe, attorney for plaintiff, appellant.
    Charles M. Roberson, of Shreveport, attorney for defendant, appellee.
   STATEMENT OF THE CASE.

REYNOLDS, J.

Plaintiff, Amanda Pope, widow of H. P. Pope, sued the defendant, Most Worshipful St. John’s Grand Lodge, Ancient Free and Accepted Masons, of the State of Louisiana, for herself and her two minor children, Robert Lee Pope and Lee Alvin Pope, issue of her marriage, with the deceased, of which children she is the confirmed natural tutrix, to recover $500.00, with legal interest thereon from May 1, 1926, on a benefit certificate for that amount issued by defendant to the deceased and payable to his widow and children on the death of the said H. P. Pope.

She alleges that her husband died May 1, 1926, and that on July 16, 1927, she furnished defendant with proper proof of the death of her husband.

She further alleges that, on May 2, 1926, defendant obtained from her the certificate sued on and had not returned it.

The defense is that the deceased had not paid his dues for the months of April and May, 1926, in consequence of which the certificate had lapsed.

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

OPINION.

The constitution and by-laws of defendant were introduced in evidence and show that each certificate holder is required to pay monthly a tax of 85 cents, called dues, in time for the secretary of the local lodge to transmit it to the secretary of the Grand Lodge and have it in his hands not later than the tenth day of the month, and that failure of the certificate holder to pay such dues within the time mentioned automatically forfeits all benefits under the certificate.

W. D. Wright testified that he was Master of King Solomon Lodge No. 15 at the time of the death of H. P. Pope, and:

“Q. Do you know of your own knowledge whether or not he was in good standing?
“A. According to the secretary’s record he was.”

On cross-examination he was shown the report of the secretary of the lodge to the Grand -Lodge for the month of April, 1926, of dues paid by certificate holders, and he was asked:

“Q. I will ask you to examine this instrument and state whether or not that is a report from your lodge?
“A. I don’t see no date on it.
“Q. The month of April is there, isn’t it? You signed it, didn’t you?
“A. This is for King Solomon lodge—
“Q. This is the lodge that you were Master of. I now I ask you — this is the report that you O. K’d and sent in for the month of April? Examine it and see if you remitted for H. P. Pope?
“A. If I remitted or the lodge remitted?
“Q. Whether you or the lodge? '
“A. His name is not on that.
“Q. His name is not on that report for the month of May?
“A. That’s April.
“Q. For the month of April, for which you O. K’d and sent in? Well, if he had been in good standing — if he paid into your lodge, you would remitted for it?
“A. My report shows where they double up.”

J. W. Beatty testified that he was secretary of King Solomon Lodge No. 15 at the time of the death of H. P. Pope, and he was asked:

“Q. State whether or not H. P. Pope was a member in good standing at the time of his death, according to your records?
“A. Yes, sir; according to my records, lie was in good standing.
“Q. State- whether or not he paid his dues for the month of April, 1926?
“A. Yes, sir, he paid his dues. That is, the lodge allowed so much and they give a check and I charged it to his account. At the time his wife didn’t send up the money. Reverend Brunson brought the money for a time. Whenever they didn’t have the money there the lodge would allow so much for him and make a check and credit to his account.
* * *
“Q. State whether or not during the time you were in there, he was ever dropped as a delinquent?
“A. No, sir.
“Q. State whether or not the lodge pays the burial expenses not in good standing?
“A. Not to my knowledge they would not.
* * *
“Q. Do you know whether or not the dues owing by Pope fox the month of April, 1926, were forwarded to the Grand Lodge at Shreveport in due time?
“A. Well, on the report — we sent him up on the report.
“Q. You sent him in on the report?
“A. Yes, sir.
“Q. What does that mean?
“A. Report on the dues, indemnity dues.
“Q. You reported that he had paid?
“A. Had paid, yes, sir.
“Q. Who did the paying? Did you pay the Shreveport Lodge, or who?
“A. No, sir; I made out the report and the treasurer sent the money in.
“Q. Who was the treasurer at that time?
“A. Jim Fellows,”
On cross-examination he testified:
“Q. As secretary of the lodge, you collected eighty-five cents per month from the members during your incumbency in office?
“A. Yes, sir.
“Q. The several eighty-five cents you collected you remitted each month to cover their relief with the relief association?
“A. Yes, sir.
“Q. Do you know when those remittances were to be made?
“A. On or before the-10th of each month they were to make remittances to cover their relief dues.
“Q. You made out the report for the month of April for the local lodge, di'd you not?
“A. Yes, sir.
“Q. You signed the report?
“A. Yes, sir.
“Q. You remitted eighty-five cents for all the members that had paid into the local lodge at that time?
“A. All that was on the roll, yes, sir.
“Q. Examine this report, and see, when you made remittance, did you include Pope on the April report?
“A. I don’t see it there.
* * *
“Q. This is your report?
“A. My handwriting.
“Q. Did you include Pope’s name on the May report?
“A. Yes, sir.
“Q. I hand you this report for the month of May, and ask you to examine that —first, testify, is that the report from your lodge? And if you find Pope’s name on there?
“A. I don’t see it now.”

George Fellows testified that he was treasurer of the local lodge and that:

“Q. State whether or not Pope’s dues were paid for the month of May, 1926, on this certificate?
“A. You see, at that time Pope was sick, and the lodge paid his dues for him, kept the dues up; couldn’t drop him, he was sick; the lodge credited him up and sent him up on the report.
* * *
“Q. Do you know whether or not his dues for the month of April were sent to Shreveport?
“A. Now I issue the check according to the secretary amount, he gives me for the endowment. Sometimes he gives me for a check to be double, for two payments, and I would write them out for what they called for.”

On cross-examination he testified:

“Q. Fellows, you don’t know anything about the number of members that was made up on tile secretary’s report? You only know he called on you for so much money?
“A. I never compared the report.
“Q. You simply cashed the orders when they came to you properly signed?
“A. That’s all.
“Q. You don’t know what men were on the report or what was off?
“A. I do not.”

J. A. Steadman testified that he was Grand Secretary of the Grand Lodge, defendant in this case, and was such at the time of the death of H. P. Pope, and:

“Q. I hand you this report, Steadman, and ask you to examine that report and testify did that come from your office, and if so how did you get it?
“A. Through the mails, from the secretary, W. B. Wright.
“Q. Examine that report and see if the name of one H. P. Pope is remitted for the month of May?
“A. Not that I can see.
“Q. I will ask you to examine this record and state what does it show regarding the disposition of H. P. Pope?
“A. H. P. Pope is number 30 on the roll, and he is paid for 1926, for January, February and March; dropped on 4-11-26.”

The evidence satisfies us that the dues for the months of April and May were not remitted to the Grand Lodge and that deceased was delinquent in payment of his dues at the time of his death and consequently his certificate had lapsed.

But plaintiff’s counsel insists that the local lodge was the agent of the Grand Lodge for the purpose of collecting and remitting the dues and that the certificate could not be forfeited for neglect of the local lodge to make remittance.

This is only true where .the local lodge actually received the members’ dues, but not true where, as here, the dues were never actually paid but, at most, were expected to be paid by the local lodge as an act of charity.

The gratuitous payment of dues of a member to the Grand Lodge by the local lodge was no part of the duty of the local lodge to the Grand Lodge, and the Grand Lodge could not be estopped to declare the certificate lapsed because of the failure of the local lodge to perform an expected gratuitous act.

Plaintiff further insists that the evidence shows -that the burial department of defendant paid funeral benefits to the amount of $75.00 on account of the death of Pope, and contends that this act estops defendant to assert that the deceased was not in good standing.

The burial department and the insurance department are two distinctly separate departments of the defendant organization, and a member of both might be in good standing as to one and not in good standing as to the other. Presumably the dues of the deceased to the burial department were paid and that that is why the benefits accruing as a member of that department were paid. But be this as it may, the discharging by the defendant to a deceased of the benefits promised by its burial department could not estop it to deny liability for benefits under its insurance department.

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


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    No. 3374
    Second Circuit
    BUCHANAN v. C. R. I. & P. RY. CO. and BURTON
    (January 21, 1929. Opinion and Decree.)
    T. A. Carter, of Alexandria, attorney for plaintiffs, appellants.
    A. Leonard Allen, of Winnfield, attorney for defendant, appellee, A. P. Burton.
    Barksdale, Warren and McBride, of Ruston, attorneys for defendant, appellee, Chicago, Rock Island and Pacific Railway Company.
   STATEMENT OF THE CASE

REYNOLDS, J.

The plaintiffs, Frederick Buchanan and his wife, Mrs. Irma M. Buchanan, sue the defendants, A. P. Burton and Chicago, Rock Island and Pacific Railroad Company, to recover damages for the death of their child, Verna Marion Buchanan, aged between three and four years, caused, it is alleged, by the negligence of the defendants, or either of them.

Both defendants filed exceptions of no cause and no right of action, which were sustained by the trial court, and plaintiffs’ demands were rejected and their suit dismissed, and they have appealed.-

OPINION

The material allegations of the petition are as follows:

“That A. P. Burton, ... is a citizen and resident of Winn Parish, State of Louisiana, and that the Chicago, Rock Island & Pacific Railway .Company is a railway corporation engaged in the business of a common carrier . . . that in due course of the Chicago, Rock Island & Pacific Railway Company’s business, under a contract with one A. P. Burton, certain cross-ties . . . were placed upon the right of way of the Chicago, Rock Island & Pacific Railway Company ... in the town of Winnfield, Winn parish, Louisiana . . . That the ties were either the property of the said A. P. Burton or ... of the Chicago, Rock Island & Pacific Railway Company. That your petitioner is unable to ascertain whether the Chicago, Rock Island & Pacific Railway Company owned the ties or whether the said A. P. Burton owned the ties. Your petitioner shows that there was a trail or path used by the public in going to and from the ice house, which was located near the Chicago, Rock Island & Pacific Railway Company’s tracks, and that it was the custom of families residing in certain sections of Winnfield to send for ice, and that these ties, either belonging to the Chicago, Rock Island & Pacific Railway Company or A. P. Burton, were stacked along side of this pathway which was used by the public. That the said ties were negligently stacked, and that they were stacked in such a manner that the least little jolt or jar would cause one or more of said ties to fall off said stack and do injury to passersby, and your petitioners show that the ties were stacked in this careless and reckless manner on September 4th, 1927, and that particularly one tie, which was a crooked tie, was just balancing on the edge of the other ties, and that the stack of ties was some five or six feet high, and this particular tie was on the top of the stack and next to the path used by people going after ice . . . that their little girl, Verna Marion Buchanan, aged .three years, four months and three days, was playing with some other children in the yard when the mother of her little playmates instructed the children to go after ice. That your petitioners’ little girl . . . not. knowing the danger in the lurking ties, passed by and placed her hand upon said tie, or either attempted to pull up on said stack ' of ties, and the slight pressure o.f her little fingers on the improperly stacked ties, which were stacked in such a manner as to be nothing more than a trap, fell off of the pile of ties on your petitioners’ little girl, Verna Marion Buchanan, mashing the life out of her . . ."

And they prayed judgment against both defendants, individually and in solido, in the sum of $25,000.00.

Considering all of the allegations of the petition it appears that cross-ties were stacked by their owner on the right of way of the Chicago, Rock Island & Pacific Railway Company for the use of, or to be transported by that carrier. The right of way was the property of the Chicago, Rock Island & Pacific Railway Company, and neither defendant owed any duty to plaintiffs’ child, who was a trespasser or licensee, other than not to wantonly injure her.

In our opinion, the judgment sustaining the exceptions of no cause and no right of action as to both defendants is correct, and accordingly it is affirmed.


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    No. 3256
    Second Circuit
    SMITH ET AL. v. HENDERSON, CLERK, ET AL.
    (November 8, 1928. Opinion and Decree.)
    (December 19, 1928. Rehearing Refused.)

      Dimick & Hamilton, of Shreveport, attorneys for plaintiffs, appellees.
    A. M. Wallace and John G. Gibbs, of Shreveport, attorneys for defendant, appellant.
   ODOM, J.

On December 14, 1922, Ardis & Company, a corporation, filed suit against G. W. Smith, T. H. Lawrence and R. M. Sandidge to recover the sum of $2,353.47, together with interest thereon from November 1, 1918, and ten per cent attorneys’ fees, the obligation sued on being evidenced by one promissory note signed by the said Smith, Lawrence, and Sandidge.

Each of the defendants was cited, but neither Smith nor Lawrence made appearance and judgment by default was rendered against them in solido on January 27, 1923.

The defendant, Sandidge, answered the suit and alleged in substance that whereas he signed with the other defendants the note sued on, the debt evidenced by said note was not an obligation of the individuals who signed the same, but “was the debt of the Haughton Gin Company, Limited, and that appearer merely signed said note to secure said indebtedness and that said Haughton Gin Company, Limited, has more than sufficient assets to cover and pay all of said indebtedness without plaintiffs having to call upon the guarantors thereof.’’

Subsequent to the date, on which the original answer of Sandidge wa,s, filed, he amended his answer so as to read as follows:

“And in the alternative and in event the Court does render judgment against this appearer, that then and in that event and in event of payment on the part of said Sandidge that said Sandidge be fully and legally subrogated to all such payments against appearer’s co-defendants, G. W. Smith and T. H. Lawrence and that he have legal subrogation against said Smith and said Lawrence for their unit portion of said judgment.”

At the time this suit was filed, it appears that Ardis & Company had in its hands funds belonging to the said Sandidge amounting to $1912.78, so that when judgment was finally rendered against Sandidge for the full amount of the note sued on, with interest and costs, it was specifically stipulated and ordered that plaintiff, Ardis & Company, apply the sum of $1912.78, then in its hands belonging to the said Sandidge, to the payment of the indebtedness sued upon, and that the judgment rendered be credited with said sum as of date September 2'5, 1921. And it was further ordered that:

“R. M. Sandidge be and he is hereby subrogated to the rights of plaintiff, Ardis & Company, Limited, arising out of the judgments rendered herein against T. H. Lawrence and G. W. Smith' in so far as the payment of $1912.78 made by said Sandidge exceeds one-third (1/3) of the total amount of the judgment rendered herein; otherwise the judgments rendered herein to remain in full force and effect.”

The last named judgment was duly recorded in the Mortgage Records of Bossier Parish, on January 24, 1924.

• The present suit', brought by G. W. Smith and T. H. Lawrence, is for the purpose of having the said judgment can-celled and erased from the mortgage records, the plaintiffs alleging that they have paid and fully satisfied their pro rath or proportionate share of the amount due by them under the said judgment. They make J. M. Henderson, Clerk and ex-officio Recorder of Mortgages, the defendant in suit, and join with him as co-defendants the heirs of the said R. M. Sandidge, he having died some time previous to the filing of this suit.

The defendants, in answer, specifically deny that the said judgment has been paid, as alleged by plaintiffs, and pray that their suit be dismissed at their costs.

The lower court found for plaintiffs, ordered the Clerk to cancel and erase the said judgment from the mortgage records of said Parish, and the defendants have appealed from that judgment.

The only question presented for our determination is whether the judgment in favor of R. M. Sandidge against G. W. Smith and T. H. Lawrence, co-defendants with Sandidge in the suit of Ardis & Company, Limited, against them in solido has been paid.

There is no contention on the part of Smith and Lawrence, plaintiffs in this suit or rule to cancel said judgment, that they, or either of them, ' ever paid to Sandidge, or to any of his heirs, any part of the judgment rendered against them. But, to support their allegations that said judgment has been paid, they offer the following testimony:

On December 14, 1922, the said Ardis & Company, Limited, brought suit against the Haughton Gin Company for $2,009.36, and, on January 26, 1923, judgment was rendered in favor of the plaintiff and against the defendant by default for the full amount sued for. Plaintiffs in the (present suit proved, over the objection of the defendants, that they had paid the said judgment against the Haughton Gin Company in full.

Plaintiffs also proved that at some time, probably August or. November in 1926, they paid to Crawford, Jenkins & Booth a debt of $795.32, due by the said Haughton Gin Company, making a total of the amounts which they paid for the Haughton Gin Company something over $2800.

The theory on which the plaintiffs contend that the payments which they made of the debts of the Haughton Gin Company should be held as payment of the judgment against them is that the said Haughton Gin Company was owned by them and the said R. M. Sandidge, one-third (1/3) each, and that, therefore, the said Sandidge was indebted unto them for one-third of the amount of the debts which they had paid, said Sandidge’s one-third thereof amounting to $900.00 or $1,-000, which is about equal to the amount for which the said Sandidge obtained judgment against them in the suit of Ardis & Company vs. Smith, Lawrence and Sandidge.

’ The (proof that these plaintiffs paid the debts of the Haughton Gin Company to the amount of approximately $3,000 is perfectly clear. But, the payments made by these plaintiffs of the debts of the Haughton Gin Company cannot be credited as payments on the judgment which San'didge had against them in the absence of any agreement between the parties that said payments were to be so credited.

The records show that the Haughton Gin Company was a corporation organized under the laws of this State, in the year 1913. We find in the record a certified copy of the charter of that concern showing that it was organized and incorporated by S. J. West, R. M. Sandidge, T. H. Lawrence, G. W. Smith and J. B. O’Neal. That charter was duly filed and recorded, as the law provides.

In 1922, Ardis & Company sued the corporation, alleging that G. W. Smith, one of the plaintiffs herein, was president, and he was cited as such. In the suit of Ardis & Company vs. Smith, Lawrence and Sandidge, Sandidge made reference to the said Haughton Gin Company by alleging that the debt there sued on was that of the Haughton Gin Company, and he specifically set out at that time that the Haughton Gin Company had ample property out of which the amount sued for might be collected.

There is no testimony in the record which indicates that the said corporation was dissolved at the time said payments were made, or that it has been dissolved up to the present date. The charter of the said corporation provides that' it should exist for a period of ninety-nine years, unless sooner dissolved, in accordance with its charter. And the charter, in Article VI, provides that the charter may be abolished by a vote of two-thirds of the stockholders cast at a meeting called for that purpose.

Counsel for plaintiffs attempted to prove that said Haughton Gin Company had never functioned as a corporation, .but they failed to do this. G. W. Smith was asked, as a witness, this question:

“Q. Did the Haughton Gin Company ever operate as a corporation?”

And he answered:

“A. No, sir, the Haughton Gin Company never was operated in any sort of a business way as it should have been. We never could get any settlement at all.”

Corporations legally established do not automatically c'ease to exist. The law under which this charter was filed,. and the charter itself, specifically provide the methods to be pursued for the dissolution of the corporation and the liquidation of its affairs.

Act 78 of 1904 provides that—

“Wherever parties have attempted to form a corporation and have executed, recorded and published the charter, all contracts made and acts done by such corporation shall be treated as the contracts and acts of valid corporations so far as affects the rights and obligations of the coi’poration and its shareholders * *

According to the testimony of plaintiffs themselves, the amounts which they paid to Ardis & Company and Crawford, Jenkins & Booth were debts of the corporation and not those of R. M. Sandidge, one of the shareholders therein. Under the law and under the charter ‘of the Haughton Gin Company no stockholder in said corporation was or is liable for any debt of the corporation, any further than the unpaid balance due the corporation on the shares of stock subscribed for and owned by him; and it is not shown, or even suggested, that Sandidge owed any balance on the stock for which he subscribed.

If it be conceded, and there is no reason for doing so, that the Haughton Gin Company was a partnership, and not a corporation, the plaintiffs would be in no better plight.

“The partnership once formed and put into action, becomes in contemplation of law, a moral being, distinct from the persons who compose it. It is a civil person, which has its peculiar rights and attributes * * * .” Succession of Pilcher, 39 La. Ann. 362, 1 So. 929; Smith vs. McMicken, 3 La. Ann. 322.

Whether the Haughton Gin Company was a corporation or a partnership at the time these plaintiffs made the payments to Ardis & Company and Crawford, Jenkins & Booth, the situation is the same. If it was a corportion, plaintiffs became creditors of tbe corporation; and, if a partnership, they became creditors of the partnership when they made these payments. Such payments did not constitute them creditors of R. M. Sandidge. The most that they could claim would be that they, by such payments, became subrogated to the rights of the creditor against the corporation or partnership.

The plaintiffs introduced some testimony to the effect that at some time during the period that the Haughton Gin Company was being operated, the said Sandidge owed the said Haugnton Gin Company something like $1,000 or $1,200, for ginning, which debt he never paid. Even if that be true, the testimony fails to establish that fact with legal certainty.

That was a debt due the Haughton Gin Company and not to Smith and Lawrence.

Counsel for plaintiffs, in brief, state that the attorney for some of the heirs of R. M. Sandidge stated in open court when this case was being tried that the judgment sought to be cancelled had been fully paid and that they had. no further interest therein. But the record fails to disclose that any such statement was made. In the absence of any note in the record that the attorney made such an admission, we can give no effect to the suggestion. We note, however, that in the answer of defendants, it is specifically denied that the judgment has been paid, and we note further that counsel for said defendants join the application for an appeal.

For the reasons assigned, it is ordered, adjudged and decreed that the judgment appealed from be reversed, and it is now ordered, adjudged and decreed that plaintiffs’ demand be rejected and their suit dismissed at their costs.


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    No. 3321
    Second Circuit
    UNITED STATES FIDELITY AND GUARANTY CO. v. MOORE
    (January 21, 1929. Opinion and Decree.)
    White, Holloman and White, of Alexandria, attorneys for plaintiff, appellee.
    K. Hundley, of Alexandria, attorney for defendant, appellant.
   ODOM, J.

This is a suit to collect damages to an automobile. The facts are that L. C. Negrotto had his. automobile insured with the plaintiff, United States Fidelity & Guaranty Company, against damage caused by accidental collision with another object. While he was driving his car along the street in Alexandria, a truck was backed out of an alley against it, causing damage. Negrotto had the car repaired at a cost of $164.50, which amount was refunded to him hy plaintiff, the insurer, and he subrogated plaintiff to his rights against the party causing the damage. Plaintiff sued defendant, Alvin N. Moore, for the amount, alleging that Moore owned the truck and that the collision was due to the fault and negligence of defendant’s employee, who was in charge of the truck.

The defendant denied, generally, all of plaintiff’s allegations, and especially denied that he owned the truck or that he was in any way responsible for the damage. The lower court found for plaintiff on all points, and gave judgment in his favor for the amount claimed. The defendant appealed.

OPINION

The case was submitted on briefs. It seems to he conceded that the truck driver was at fault. Counsel for defendant in brief has stressed only two points; the first being that he did not own the truck, and second, that the amount claimed is excessive.

His serious contention is that defendant, Alvin N. Moore, did not own the truck which collided with Negrotto’s car, but . that it was owned by defendant’s wife who is shown to be a public merchant, the truck being used in connection with her business.

The defendant testified that his wife was engaged in the grocery business, that the business was hers — not his — but that he managed the business. But defendant failed to give the Court any information as to whether he and his wife are separate in property, or as to when or how she acquired the means to establish the business.

“Every marriage contracted in this State, superinduces of right partnership or community of acquets or gains, if there be no stipulation to the contrary.” C. C. Art. 2399;

and

“This partnership or community consists of the profits of all the effects of which the husband has the administration and enjoyment.” C. C. Art. 2402.

All property of whatever kind, whether standing in the name of the husband or that of his wife or in their joint names, is presumed to belong to the community. This community is presumed to exist until the contrary is shown. Van Wickle vs. Violet, 30 La. Ann. 1106.

“When a married woman, not separate in property, is engaged in trade, she is presumed, in the absence of proof to the contrary, to trade on the funds of the community and the assets in her hands are those of the community.” Succession of Manning vs. Burke, 107 La. Rep. 456, 31 So. 862; Prendergast vs. Cassidy, 8 La. Ann. 96.

The husband is head and master of the community and administers its effects. C. C. 2404.

The truck which damaged the automobile in this case belonged to the community and was operated by an employee of defendant as manager of the business. The damage done is a liability of the community and must be acquitted out of the community assets. C. C. Art. 2403.

An action to collect a community debt is properly brought against the husband.

If there was no community between the defendant and his wife, or if this was not a community debt, the burden was upon the defendant to affirmatively establish that fact. Succession of Manning vs. Burke, supra. The defendant made no effort to establish these facts, if true.

As to the quantum of damage, the District Judge was convinced that the amount claimed was correct, and the testimony amply supports his findings.

For the reasons assigned, the judgment appealed from is affirmed, with costs in both courts.


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    No. 3366
    Second Circuit
    MASK v. CITY OF MONROE
    (December 19, 1928. Opinion and Decree.)
    Theus, Grisham and Davis, of Monroe, attorneys for plaintiff, appellee.
    H. H. Russell, of Monroe, attorney for defendant, appellant.
   STATEMENT OF THE CASE.

REYNOLDS, J.

Plaintiff sued defendant to recover $1,000.00, damages alleged to have been done to it by a street car owned- and operated by defendant in a collision between the automobile and the street car. The collision is alleged to have been the result solely of the negligence of the driver of the street car.

Defendant denied that the driver of the street car was negligent and denied that the automobile was damaged as alleged and alleged that the collision was caused solely by the carelessness of the driver of the automobile who, it is alleged, drove the automobile suddenly and unexpectedly in front of the street car as it was approaching and that the driver of the street car was unable for that reason to avoid striking the automobile.

On these issues the case was tried and there was judgment in favor of plaintiff and against defendant for $250.00 and defendant appealed. Plaintiff has answered the appeal and asks that the judgment be increased.

OPINION.

The circumstances connected with the collision between the street car and the automobile are ' described in the opinion in the case of Mrs. W. B. Mask vs. City of Monroe, 121 So. 250, No. 3367 on the docket of this court and this day decided, and for the reasons therein assigned for the opinion that the plaintiff there was entitled to judgment against the defendant we hold that the plaintiff here is entitled to judgment against the defendant in this case.

The amount of damages alleged by plaintiff to have been done to his automobile in the collision is $1000.00. The court below allowed him $250.00. The cost of repairing the car, as testified to by the witness Cummins, an expert in such matters, would be $185.00, but this would not have put the car in as good condition as it was before it was damaged and the car would not have been as valuable after being repaired as it was before it was damaged. We are therefore of the opinion that the amount allowed by the trial court was correct.

Plaintiff has asked that the amount of the award be increased, but we do not think an increase is warranted by the evidence.

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