text:
    No. 4250
    Second Circuit
    THOMPSON ET AL. v. GLEN HILL GRAVEL CO., INC.
    (May 20, 1932. Opinion and Decree.)

      Wm. H. Mecom, of Columbia, attorney for plaintiffs, appellees.
    Theus, Grisham, Davis -& Leigh, of Monroe, attorneys for defendant, appellant.
   DREW, J.

Mrs. A. P. Thompson, individually and on behalf of her minor children, claims compensation from defendant for the death of her husband, whom she claims came to his death due to an accident while in the employ of defendant. The defenses raised by defendant are that plaintiff’s husband was an independent contractor, and that if he was not an independent contractor, that deceased was not in the employ of defendant at the time of the accident which caused his death, and it did not arise out of his em.ployment or within the scope of his employment. A determination of the case depends entirely upon the two defenses raised. The case was tried upon the following statement of facts:

- “1. A. P. Thompson, a resident of Caldwell Parish, was married to Mrs. A. P. Thompson, plaintiff in the above suit, and there were born to this marriage three children, namely: Maxine Louise, aged 4 years, Patsy Ruth, aged 3 years, and Margaret Lavelle, aged 2 years; that at the time of the accident complained of the above named Mrs. A. P. Thompson and the three minor children of the said A. P. Thompson were actually living with the said A. P. Thompson and were dependent upon him solely for maintenance and support.
“2. That for the past three years said A. P. Thompson was making a living by-hauling gravel, machinery, stones, etc., for a number of different parties, furnishing his own truck, fuel and upkeep of same and doing the hauling for a certain stipulated price that was agreed upon by the said A. P. Thompson and the parties- for whom he was hauling; that on the morning of the accident sustained by A. P. Thompson and for a few days prior thereto he, the said A. P. Thompson, was hauling gravel for Mr. McKeithen for a stipulated amount per yard; that Mr. Sorrells, in the capacity of Manager of Glen Hill Gravel Company, Inc., asked Mr. McKeithen if he knew where he could get a man to do some hauling for the Glen Hill Gravel Co., Inc., and he replied that A. P. Thompson, who was then in his- service, could get off and do the hauling for the Glen Hill Gravel Co., if satisfactory arrangements could be made with A. P. Thompson. Mr. Thompson was interviewed by Mr. Sorrells and the following verbal agreement was made by A. P. Thompson and the Glen Hill Gravel Company:
“Mr. Thompson was to haul a piece of machinery of a very delicate nature, weighing ’ between 500 and 1000 pounds, for Glen Hill Gravel Company from Webb, La., to Rhinehart, La., for a stipulated sum of. $10.00. Mr. Thompson was to furnish his own truck and all expenses incidental io the actual hauling and use of the truck, such as oil, gas, etc. The Glen Hill Gravel Company was to furnish a crew of men and a superintendent in charge of the crew of men to load and unload said machinery on and off the truck. The superintendent of the Glen Hill Gravel Company was to have the entire supervision and control over the loading and unloading o£ the machinery on and off the truck, but the Glen Hill Gravel Company was to have nothing whatsoever to do with nor control or direction over the truck or its operation, until the machinery was loaded at which time the superintendent was to designate the route to be used by the truck and was to require careful an(i prudent operation of. the truck until it had reached its destination.
“3. The Glen Hill Gravel Company would not have permitted Mr. Thompson to load and/or unload the machinery himself or with his own crew because of the delicate nature of the machinery and the size and weight of same and for the further reason that Mr. Thompson was not familiar with the handling of this machinery. The loading and unloading of said machinery was to remain in complete charge of the agents of the Glen Hill Gravel Company. Mr. Thompson had nothing to do with the machinery except to haul it under his agreement.
“4. That on or about 11 o’clock A. M., on the 11th day of March, 1931, A. P. Thompson left the service of McKeithen with his truck and started on his way to the gravel pit of the Glen Hill Gravel Company at Webb, Louisiana, in order to get the machinery that he was to haul, as above referred to. Before the said A. P. Thompson arrived at Webb, Louisiana, and before he had gotten the machinery and while driving his. truck on the main gravel highway, which was a public highway under the control of the Louisiana Highway Commission, the truck turned over and injured the said A. P. Thompson to such an extent that he died from the said injuries on or about the 24th day of March, 1931; that the place of the accident was approximately fourteen miles from the plant or gravel pit of Glen Hill Gravel Company, where the piece of machinery to be hauled was located; that at the time of the accident the said A. P. Thompson was alone in his truck.
“5. That the said A. P. Thompson was engaged by the Glen Hill Gravel Company for .this one particular job of hauling machinery under the agreement hereinabove mentioned, and when same was completed his contract with the Glen Hill Gravel Company was to terminate.
”6. That the Glen Hill Gravel Company, Inc., owned no trucks and whenever it was necessary for it to have any machinery, etc., hauled, said Glen Hill Gravel Company would have same done as in the, present case.
“7. That the usual and average wage of a truck driver was $2.50 per day, working ten hours, each day and six days a week, or a weekly wage of $15.00.
“8. That had the said A. P. Thompson completed his agreement to haul the machinery he would have covered a distance of approximately 85 miles.
“9. That the itemized statements of the doctors, hospital, and undertaker’s charges attached hereto is the correct amount; of expenses incurred by Mrs. A. P. Thompson.”

The lower court rendered judgment for plaintiff, rejecting both defenses, set up by defendant, and defendant prosecutes this appeal.

The attorney for defendant devoted the greater part of his brief and argument to the question of independent contractor, but we find it unnecessary to pass on that question, as it seems clear to us that the accident and death of deceased did not arise out of his employment or within the scope of his employment. Deceased was employed to haul a piece of machinery from Webb, La., to Rhinehart, La. That was the sole and only employment of deceased by defendant. It is true that he was employed at a place other than at Webb, La., but the work he was employed •to do was to begin when the machinery was loaded at Webb, La., and to end when the machinery was unloaded at Rhine-hart, La. The statement of facts contains the following clause:

“The superintendent of the Glen Hill Gravel Company was to have the entire supervision and control over the loading and unloading of .the machinery on and off the truck, but the Glen Hill Gravel Company was to have nothing whatsoever to do with nor control or direction over the truck or its operation until the machinery was loaded.”

Defendant was not responsible for .the manner in which the truck was brought to Webb, La., and with that it was not concerned. The truck might have been shipped to Webb or it might have been hauled there. The deceased and his truck were hired to perform a job which began at Webb and not before. Deceased, at the time of the accident, was going to a job he had been employed to perform. Plaintiffs argue that the employment necessarily contemplated that deceased would have to drive his truck from his home to Webb. We might presume .that to be true, yet it would not be different if deceased had been employed by defendant to help load the machinery on some one else’s truck. We could likewise presume that he would have to go from his home to Webb in order to be there to perform the work he was employed to do, and if he had used his truck as a mode of conveyance to Webb, or had ridden a train from his home to Webb, and the truck or train had wrecked, it could not be contended that the accident and resultant injury arose out of his employment or within the scope of his employment. It arose before the period of his employment began. He might have been employed the night before, but the work he was employed to perform was not to begin until his arrival at Webb. The general rule is that an injury to an employee on the public highway in going to or returning from the place of employment does not arise within the scope of or out of the employment. There are, however, exceptions to this. rule. We, do not think this case comes under any of the exceptions. Boutte v. R. L. Roland & Son et al., 15 La. App. 530, 132 So. 398.

If deceased had successfully made the trip to Webb and had hauled the machinery to Rhinehart and it had been unloaded, his work would have been finished. The money for his service would have been due. Whether he returned with his truck to his home or went elsewhere would have been of no concern to defendant. It. cannot be successfully contended that, if the accident happened on his way returning home after the completion of his work, compensation would be due. The rule of law applies alike to going to work and returning from work. Deceased was driving his own truck on a mission of his own— going to a job he had been employed to perform. The manner of getting himself and his truck there was entirely with him and not the defendant.

If deceased was an independent contractor (which question we do not pass on), plaintiff could not recover. If he was an employee he could not recover for . the reason he had not begun the work he was employed to perform, he was not on the premises where the work was to be performed, therefore the accident and resulting death of deceased did not arise out of his employment or within the scope of his employment.

The judgment of the lower court is erroneous.

It is therefore ordered, adjudged, and decreed that the judgment of the lower court be reversed, and that the demands of plaintiffs be rejected, with costs.


source: Caselaw Access Project

author: McGREGOR, J.

license: Public Domain

text:
    No. 4259
    Second Circuit
    GARRETT v. TEXAS-LOUISIANA POWER CO.
    (May 20, 1932. Opinion and Decree.)
    Seals & Atkins, of Homer, attorneys for plaintiff, appellee.
    Thatcher, Browne, Porteous & Myers, of Shreveport, and B. P. Barnette, of Arcadia, attorneys for defendant, appellant.
   McGREGOR, J.

In this suit the plaintiff, Mrs. Val Garrett, widow of Val Garrett, seeks to. recover from the defendant the sum of $3,657 in weekly installments of $12.19, during a period of 300 weeks, as compensation • for the alleged accidental death of her husband.

After answer had been filed, and when the case was ready for trial, it was submitted to the trial court on an agreed statement of facts signed by the attorneys representing the plaintiff and the defendant. There is, therefore, no necessity for discussing the pleadings, and our discussion will be confined to the facts as admitted in the said statement of facts, the pertinent paragraphs of which are as follows:

“It is admitted that plaintiff is the surviving widow of Val Garrett; that she was married to Val Garrett on August 14, 1921, and that there are no children issue of said marriage; that Val Garrett died on January 25, 1931, and that plaintiff was at the time of his death solely dependent on the said Val Garrett for her livelihood.
“It is further admitted that the Texas-Louisiana Power Company is a corporation authorized to do business in the State of Louisiana, and owns and operates a power plant in the Town of Arcadia, Bienville Parish, Louisiana, and has been operating said power plant for several years, and ■that on January 25, 1931, Val Garrett, the deceased husband of plaintiff, was employed by the defendant, and had' been employed for several months, at and in said power plant at Arcadia as chief engineer and operating engineer at a weekly wage of $37.50, and it is admitted that James B. Roberson was on January 25, 1931, employed by defendant at its. said power plant as an engineer to perform duties similar to those of said Garrett, except the duties of chief engineer.
“It is admitted that on Saturday night prior to the killing, Garrett brought a quart of whiskey down to the plant, and that after Garrett had poured a pint of same in a pint bottle, Roberson objected to his leaving the whiskey on the premises while Roberson was. on his shift, and that after a considerable dispute, Garrett took the whiskey away with him. ,
“And it is further admitted that Val Garrett, under his employment with the defendant, was required to be in and about the said power plant of the defendant at. Arcadia whenever in his judgment his presente was necessary; that on Sunday morning, January 25, 1931, the said- Val Garrett was at and in the said power plant, clothed in his work clothes, from 8:00 o’clock A. M. to 12 o’clock noon performing his duties as operating engineer, cleaning up the machinery and premises, and preparing for an inspection which he understood was to be made of said plant on the following Tuesday 'or Wednesday; that the said Val Garrett left the plant at about 12:00 o’clock noon on said date and went to his- home for lunch, wearing his work clothes, leaving his street clothes in a locker in the work room of said plant;, ■that just before going home for lunch, he,' Garrett, gave orders to the said James B. Roberson to move certain oil barrels which were located in the main room of the plant and that about 12:30 o’clock P. M. on said date, January 25, 1931, the said Val Garrett returned to .the said plant, still clothed in his work clothes, and inquired of the said Roberson with reference to the removal of the barrels, as follows:
“ ‘Why in the God damn hell have you not removed them barrels, like I told’ you?’, to which Roberson made no reply, and therefore Garrett turned suddenly and went over to the barrels, and moved two of them to the west side óf the engine room; and Roberson assisted him in moving the third barrel, Garrett cursing and mumbling to himself while in .the act of moving the barrels.
“That in moving the barrel Roberson got oil on his hands and went to the- lavatory, which is located in the side room or work room in said plant, in order to wash the oil from his hands; that after he had washed his hands, desiring a cigarette from his clothes which were in the locker in said work room, Roberson went to the locker in question to get the cigarette and was in the act of reaching for it when Garrett came into the side room where Roberson was, and said to him:
“ T want you to keep out of my business. It is. none of your God damn business how much whiskey I keep down here. I’m the boss of this plant, and will run it like I damn please,’ to which Roberson replied:
“ T don’t care how much whiskey you keep down here, or how much you have, but you know it is against the rules of the company to have it here on the job, and you must not have it here on my run, because if the boss comes along and find!? it, I would get fired. I have a wife and baby to support and can’t afford to lose my job.’
“Then Garrett said:
“ ‘God damn you and your God damn wife too. I have been aiming to break your neck, I will do it now.’
“Roberson then turned in time to’ see Garrett advancing upon him, and reached into the locker and got his pistol, and started firing at Garrett, and Garrett was killed by the said Roberson and died in the work room of said plant, in the town of Arcadia, Louisiana, at about 12:35 o’clock P.- M.; that Roberson thought Garrett, —by reason of his having, just prior to the shooting, his right arm and hand behind him when he advanced on him, — was armed with a weapon, but that Garrett was not armed and had in his right hand behind his body, a-piece of used oily cotton waste employed in said plant in wiping and' cleaning machinery, it is admitted that, Roberson was charged with murder, but indicted by the Grand' Jury for manslaughter only, for which he was tried and ac-, quitted.
“It is admitted that Garrett weighed, 180 pounds and Roberson 130 pounds.”

The lower court, in a well-written opinion, rendered judgment in favor of the plaintiff as prayed for, and the defendant has appealed. .

The defense is based upon section 28 of the Workmen’s Compensation Law (Act No. 20 of 1914), which provides:

‘‘That no compensation shall be allowed for an injury caused by the injured em, ployee’s wilful intention to injure * * * another. * * *”

In deciding the case, it is unnecessary to consider the question as to whether the death of deceased was an accident arising out of and in the course of his employment by the defendant, for, as we view the agreed statement of facts, the only question to be determined is whether his death was caused by his intention to injure Roberson, his fellow employee, who killed him.

A careful reading of the statement discloses beyond a doubt that Garrett was the aggressor throughout the difficulty. He weighed 180 pounds to Roberson’s 130i He cursed Roberson on account of not moving three barrels which he had ordered him to move. Without resenting this conduct on the part of Garrett, Roberson assisted in moving .the barrels, and then left him and went to the lavatory to wash his hands. Garrett pursued him there and began another quarrel about Roberson’s protest on the night before against his keeping whiskey on the premises in violation of law and contrary to the rules and regulations of the defendant company. It is evident that Garrett was exceedingly angry and was bent on doing bodily harm to Roberson. He knew he was his physical superior and cursed him and his wife in an apparent effort to cause Roberson to make an attack on him. When it seemed that Roberson would not give him the advantage of beginning the attack, he declared in a fit - of anger, “I have been aiming to break your neck, I will do it now.” As he uttered these words, he advanced Upon Roberson in a hostile and ■threatening attitude as if to put his words into action. When Roberson saw him advancing thus upon him, saying that he had been aiming to break his neck and that he was going to do it at that time, there was nothing left for him to do but defend himself as best he could. The result was the death of Garrett. The death would 'not have occurred if Garrett had not advanced upon Roberson threatening to break his neck. Who can doubt that Garrett’s death was caused directly by his intention to injure Roberson, and by his attempt to put this intention into execution? The question as to whether he was armed is not important. Because of the difference in sizes, he evidently did not consider that he needed to be armed in order to break Roberson’s neck, as he threatened to do.

It is true that just a very few minutes before he was killed Garrett was performing service or work within the scope of his employment, but, that does not alter the fact that he met his. death at the hands of Roberson while and because he was intending and trying to injure the man who killed him in self-defense.

Counsel cites the case of Guderian v. Sterling Sugar & Ry. Co., Ltd., 151 La. 59, 91 So. 546, 548, as follows:

“When a foreman, in the performance of his duty, is assaulted by a laborer under him, and is injured as a consequence, the injury is considered as caused by an accident within the meaning of Employers’ Liability Acts.”

With due deference to the statement of counsel for the plaintiff that the cited case is on all fours with the one under consideration, we find no comparison between them. In the present case the foreman or superior employee was the aggressor and was not in the performance of any duties, but was violating, not only his duty, but the law as well, when he made the unprovoked attack upon the man who killed him in self-defense.

It would be a dangerous precedent and would violate the spirit of the law to hold that, because a man is actually performing service within the scope of his employment at the moment when he receives an injury at the hands, of a fellow employee, he is entitled to compensation, even though the injury inflicted by his fellow employee "is inflicted because of his expressed intention and actual attempt to injure the fellow employee, and when therefore the injury is inflicted by the fellow employee in self-defense.

For the reasons assigned, it is therefore ordered, adjudged, and decreed that the judgment appealed from be, and the same ' is hereby, annulled, avoided, and reversed, and the demand of the plaintiff is rejected and her silit dismissed at her cost in both courts.


text:
    No. 4268
    Second Circuit
    WINLOCK v. GALLASPY
    (April 5, 1932. Opinion and Decree.)
    (May 4, 1932. Rehearing Refused.)

      Argued before DREW, McGREGOR, and PALMER, JJ.
    Rusca & Cunningham, of Natchitoches, attorneys for plaintiff, appellant.
    S. R. Thomas, of Natchitoches, attorney for defendant, appellee.
   McGREGOR, J.

This is’ a petitory action involving the title to 11.6 acres of land on the east bank of Red river, near Grappe’s Bluff in Natchitoches parish. This small plot of ground is included in a larger tract that originally belonged to N. F. Scopini, who/ at his death, left two children, John F. Scopini and Mrs. Mattie Robieu, his. sole and only heirs at law. On February 14, 1900, these two, John F. Scopini and his sister, Mrs. Mattie Robieu, undertook .to partition all the property of their deceased father between them. That part of the partition deed which disposed of the small tract in controversy is very indefinite and inexact. There appear to have been two adjacent tracts of lan’d on the banks of Red river which belonged to the estate and which contained in the aggregate 635 acres; the two tracts being designated in the partition deed as the Home Place, known as .the John Pierre Grappe Place, and the Old Lezuine Grappe Place. The deed states that “the said J. F. Scopini takes the Home Place in Natchitoches Parish, known as the John Pierre Grappe Place.” “Mattie Robieu takes * * * the Old Lezuine Grappe Place * * V’ It then continues and says:

“The said J. F. Scopini take the John Pierre Grappe Place and one-half of the above land in this tract. Mrs. Mattie Robieu takes the Old Lezuine Gra,ppe Place and one-half of the above land, * * *. Lines in both places to be established hereafter by agreement of said parties." (Italics ours.)

The meaning of the phrase “and one-half of the above land,” as used in describing what each of the two heirs was taking, is vague, indefinite, and unintelligible.

John F. Scopini was still living at the time of the trial and testified as a witness, in behalf of the plaintiff, but Mrs. Robieu had been dead for many years, and her testimony was not, therefore, available.

The partition deed stipulated that a line to mark the exact location of. the land of each was to be established by agreement of the parties. At the trial it was testified by John F. Scopini that this line was established soon after the date of the deed by a civil engineer named Henry. In this statement he is corroborated both by circumstances and several witnesses. The matter in controversy is as. to where the line between the two properties was situated. It is undisputed that each took actual possession of whatever was allotted to him or her, and that each interest has long since been sold. The plaintiff, Edwin Winloek, traces his title .to John F. Scopini, and the defendant traces hers to Mrs. Mattie Robieu. The two chains of title are unbroken and perfect, the only controversy being as to whether the 11.6-acre tract fell to John F. Scopini in the survey that marked the division between the properties of the two heirs of the estate of N. F. Scopini, or whether it fell to Mrs. Mattie Robieu.

In discussing the location of this property it is well to bear in mind several facts. In that portion of Natchitoches parish, land is divided into and designated by sections, townships, and ranges, but the sections are neither square nor uniform in size. Neither do they lie approximately north and south. At this particular place the sections are long and narrow, of irregular size, and extend in a northeasterly and southwesterly direction.

The bulk of the land comprising the property divided was hill land, though it bordered upon a bluff adjoining Red river. About 30 acres, however, was what is termed “bottom land.” As. far as we are able to determine from the evidence, the land which was divided between the two Scopini heirs is situated in sections 26, 27, 28, and 29, and in township 11 north, range 8 west. These four sections extend to and border upon Red river. The 30 acres of bottom land originally were in the. southwestern end of sections. 28 and 29. John F. Scopini is admitted to have received all of the east half of section 26 and all of section 27. He says that this was about one-half of the hill land; that in the division he and his sister agreed that each should have approximately one-half of the 30 acres of bottom land, or 15 acres each; that in accordance with that agreement a survey of this 30 acres of bottom land was made by a Mr. Henry, civil engineer, dividing it into two 15-acre tracts; that a line running approximately north and south between the two tracts was established; that he took the one that was on the west end of the strip and which extended to the east line of section 27; and that his sister, Mrs. Robieu, took the one on -the east. If his version of the matter is correct, then his land was in an “L” shape, with a frontage on Red river in sections 26, 27, 28, and 29, while .the only river frontage that Mrs. Robieu .had was in a part of section 29. In other words, the long, narrow strip of 15 acres which John F. Scopini says he drew in the division cut the Robieu land off from the river across the entire width of section 28 and across a part of section 29. At the time of the trial the original 15-acre tract claimed in the beginning by Scopini had been reduced to 11.6 acres by the caving of the banks of Red river, and practically all of the 15 acres which he says fell to Mrs. Robieu had caved into the river.

As. has been stated above, John F. Scopini and Mrs. Mattie Robieu each took possession of the property belonging to them respectively. Both plaintiff and defendant admit this fact and rely upon It. There is nothing in the original partition deed on which even a suggestion of the description of each part can be based. Each side relies upon the fact that a line was established in accordance with the agreement set forth in the deed; that each took possession of the property with reference to that line and finally disposed of it with reference to it.

The plaintiff traces his title by mesne conveyances to the estate of N. F. Scopini through John F. Scopini, and the defendant traces hers to the same source through Mrs. Mattie Robieu.

The first sale made was by John F. Scopini to R. W. Lowe on February 29, 1908. In th'is deed the land was described as being the east one-half of section 26, all of section 27 in township 11 north, range 8 west (less 10 acres on the north end), “and about 15 acres in Section 28 of the above township and range, situated on .the bank of Red River and bordered north and east by lands of Mrs. Mattie Robieu.” This description of the 15 acres corresponds exactly with the testimony of Scopini relative to the division of the 30 acres of bottom land. If the 30 acres were divided into two 15-acre .tracts, the west tract would naturally be bordered on the north by hill land of Mrs. Robieu and on the east by her 15 acres of bottom land. R. W. Lowe remained the record owner of this land for ten years, and during this time when he was the owner, Mrs. Robieu sold 73 acres of her land .to L. Q. C. Grappe on May 28, 1913. This tract is described as being wholly in section 29, when as a matter of fact, it is bound to have been in both sections 28 and 29, just as in Scopini’s deed to Lowe the 15 acres is described as being only in section 28, when as a matter of fact it also extended over into section 29. In this deed from Mrs. Robieu to Grappe the description is very loose and is as follows:

“A certain tract of land situated in the parish of Natchitoches, and bounded north by La. Ry. & Nav. Co., south by Red River, east by J. C. Copellar; west by R. W. Lowe, containing seventy-three acres, more or less, and one large residence in Section 29; T. 11; N. R. 8 W.”

I,t will be noted that the land sold to Grappe was said to be bounded on the west by R. W. Lowe. At that time Lowe was the record owner of section 27, which is west or southwest of section 28, in which a portion of the 73 acres was situated. Also the 15-acre tract claimed by Lowe is as much west of the 73 acres as it is south, hence it can easily be said that the 73-acre tract is bounded on the west or approximately west by section 27 and the 15-acre tract, both of which, according to the record, at that time were owned by R. W. Lowe. Red .river is on the approximate south boundary in section 29.

On March 3, 1917, after the death of Grappe, this same tract was sold at succession sale and Mrs. Robieu bought it back. In the deed the property is described as follows:

“That certain tract of land, situated in the parish of Natchitoches, near the village of Grappes Bluff, said tract of land being bounded north by the Louisiana Railway and Navigation Company, south by Red River, east by J. C. Copellar and west by R. W. Lowe, the exact quantity of which is unknown, part of the tract having caved into the river, being what is left of the same tract of land acquired by deceased from Mattie Robieu, as shown by the records of the conveyance office, parish of Natchitoches, together with the buildings and improvements thereon, being situated in Sec. 29, T. 11, range north of range 8 west, N. W. Dist. of La.”

This deed corroborates the testimony of Scopini and the contention of the plaintiff that a considerable portion of the Robieu tract had caved into Red river. At the time of this sale the Scopini land was still in the name of Lowe, and it will be noted that the deed by which Mrs. Robieu purchased the property states that the land sold is bounded on the west by R. W. Lowe.

Mrs. Robieu sold the land again on the same day to F. G. Gallaspy and J. W. Payne. In that deed the boundaries are the same,- the quantity is stated as being uncertain, and the land is described as “being all that remains of the tract acquired by L. Q. C. Grappe from Mattie Robieu.” It will be noted that in none of the deeds of the Robieu land is there any special mention made of any particular tract of acreage on the bank of Red river, while in all the deeds involving the Scopini land the 15-acre tract is always specially mentioned, and it is so located that it is as much on the west as it is on the south of the Robieu tract.

The next sale made was of the Scopini tract, which was sold on December 10, 1918, by R. W. Lowe to Mrs. C. G. Scopini, the wife of John F. Scopini. In the description the 15 acres is referred to as being in section 28, and bounded north and east by Mrs. Mattie Robieu. A few months thereafter, on August 6, 1919, Mrs-. Scopini and husband joined in a sale to the Gibsland Land & Lumber Company, Limited, under the following description:

“One hundred and sixty-nine and four-tenths acres of land situated on the left descending bank of Red River, containing, by actual measurement, one hundred and sixty-nine and fourrtenths acres, and comprising the following lots and subdivisions to-wit;
“East half of section twenty-six, township eleven north, range eight west; all of section twenty-seven, township eleven north range eight west; (except ten acres off of the north part of said section sold to J. C. Copellar).
“Also eleven and six-tenths acres lying partly in section twenty-eight and partly in section twenty-nine, township eleven north, range eight west. Together with all the buildings and other improvements on said land and appurtenances thereunto belonging. And being the same property sold to R. W. Lowe by act recorded in book 124, page 77 and bought back from said Lowe by act recorded in book 145, page 18 of the conveyance records of said parish. The said lands being more particularly” shown and described on a plat thereof made by M. G. Rugeley, surveyor, dated July 26, 1919, attached to and made a part hereof for a fuller and more complete description of said lands.”

In this description it appears that the 15-acre tract of bottom land has been reduced to 11.6 acres. Under the testimony about 4 acres had caved into the river. Furthermore, there is attached to the deed and recorded with it a plat of a survey made by M. G. Rugeley, civil engineer, which shows the exact location of the tract in controversy; at the time of this sale the Robieu tract was standing in the name of F. G. Gallaspy and J. W. Payne. Subsequently this interest was acquired by the defendant, Mrs. F. G. Gallaspy, on May 9, 1925. F. G. Gallaspy’s one-half interest was sold at sheriff’s sale and was described as being an “uncertain” tract. In that sale Gallaspy’s wife, Mrs. Ethel Gallaspy, the defendant herein, was the purchaser.

On December 19, 1928, Payne’s one-half interest was sold to Mrs. Julia Johnson. In this deed R. W. Lowe’s land is said to be on the west. As a matter of fact Lowe had sold to the present plaintiff, according to .the Rugeley survey which specifically described the boundaries of this land in controversy.

In every transfer of the Scopini land the 15-acre tract is specially mentioned. In all the transfers of the Robieu tract the western boundary is referred to as this same Scopini or Lowe or Winlock land. Where descriptions in sales of real estate refer to owners of lands as boundaries on the various sides, the descriptions in the deeds of these various adjacent property owners are recognized, otherwise the description would be meaningless. So when the defendant, in her deeds, says that her land is. bounded on the west by lands of R. W. Lowe and Lowe’s deed calls for this 15-acre tract which is on the west, she cannot be heard to say that the description in her deed included this same tract.

On December 21, 1926, the Gibsland Land & Lumber Company, Limited, sold the Scopini tract to Edwin Winlock, the plaintiff herein. The 11.6-acre tract is specially referred to and the sale is made with -reference to the Rugeley map.

The defendant claims that when F. G. Gallaspy and J. W. Payne bought the Robieu tract it included .the 11.6 acres and that the vendees .took possession of it and that they and defendant have retained that possession down to the present time. There is nothing in the Robieu chain of title that sufficiently describes the land to justify a plea of prescription; while, on the other hand, plaintiff’s chain of title to the Scopini land includes a definite reference to and description of a 15-acre tract from the beginning and later on includes a plat of it made by a civil engineer. The description in all these deeds constitutes a sufficient basis to sustain a plea of prescription. Both parties, however, claim active possession for more than ten years.

.John P. Scopini testifies that soon after 1900, in accordance with the agreement written in .the partition deed, a survey was made by a civil engineer by the name of Henry, and that the original 15 acres (now 11.6 acres) fell to him, and that he took possession of it and held it until it was sold to R. W. Lowe in 1908. He testified further that after his wife re-acquired the property in 1918, the Rugeley survey of the 11.6-acre tract was made; that he was present at the time; that the original line fixing the boundary of the 15-acre tract was found and retraced, and that the Rugeley plat of July 26, 1919, was a correct representation of this original Henry survey made shortly after the year 1900; that this 11.6 acres was the same land .that he had held in his possession from the year 1900, the date of the partition deed. He testified that he and his wife cultivated this particular tract of land in the years 1918 and 1919. Thus, at the .time of the Rugeley survey, it would appear that there had been more than eighteen years of possession since he says he took it as a part of his inheritance.

But P. G. Gallaspy says that when he and J. W. Payne bought the Robieu tract in 1917, he took possession of the .tract in controversy by having some pecans gathered from it. There were very few pecan trees near the tract and it is not clear that there were any on it; but, be that as it may, .this, action cannot offset the possession that Scopini had exercised by fencing the tract and having it worked.

Will Clark, a witness for the plaintiff, testified that he worked the Scopini land for him in 1900, and was present when the thirty-acre tract of bottom land was surveyed by Henry and divided into two fifteen-acre tracts. He stated positively and definitely that after the line was. thus run he worked the west 15-acre tract for John P. Scopini, and that he continued to work it most of the time up to the year 1919, when it was acquired by the Gibsland Land & Lumber Company, Limited, the vendor of plaintiff. He was also present when the Rugeley survey was made and knows that the lines run at that time coincided with those run by Henry soon after the partition deed of 1900. Clark’s testimony that he was working the land in 1918 and 1919 for Scopini is corroborated by the plaintiff, who was representing the Gibsland Land & Lumber Company, Limited, in their purchase of it on August 6, 1919. He states that Will Clark continued to rent the place for the new owner and to represent him as its agent. Por several years Buddy Grappe worked the land in controversy and paid the rent to plaintiff for the Gibsland Land & Lumber Company. According to his, testimony no one interfered with .the possession of the tract until the year 1928, when the' plaintiff’s husband laid claim to it for his wife.

P. G. Gallaspy, as a witness for the defendant, testifies that he rented the land in question to the same Buddy Grappe that plaintiff says, worked it for the Gibsland Land & Lumber' Company. But it seems that the principal thing that Grappe did for him was to gather a few pecans. Grappe evidently was renting land from both parties and paying rent to both. In testifying for the defendant he admitted that he had paid him (Winlock) rent on the 11.6 acres for the year 1927, and several years prior thereto. He endeavors to say that the 11.6 acres belonged to the defendant and that he rented it from her but paid the rent to plaintiff.

John Carlisle, a witness, for the defendant, testified that in 1928 he was on the land in controversy as a tenant of the plaintiff and that P. G. Gallaspy ran him off. This corroborates the contention of the plaintiff that he was in possession at that time through tenants and that .that is when he first learned of the pretensions of the defendant.

This is a hard and difficult case, made so by the kind of descriptions written into the various deeds. It has been suggested that the suit should have been brought in the form of an action in boundary. This might be true, but we doubt if any more satisfactory evidence could be produced than we have in the case as made up. Bach side seeks to support his title with a plea of ten years’ prescription. The description in all the deeds in plaintiff’s chain of title refer definitely to a tract of bottom land, the description and acreage of which coincides exactly with the land in controversy. John F. Scopini, who originally owned it and held possession of it for more than 18 years, is very clear in his testimony. He tells just where it is and who worked it for him and his wife. There is proof that it was surveyed shortly after 1900, and that in 1919 another survey was made which coincided exactly with the original one. When the plaintiff and his vendor bought the property it was, bought with special reference to this last survey and the original plat was made a part of the deed in 1919 and recorded with it. The preponderance of evidence is to the effect that Scopini, Lowe, Gibsland Land & Lumber Company, Limited, and Edwin Winlock, the plaintiff herein, herd open, undisputed possession of the tract from the year 1900 down to 1928, and collected rent from it.

On the other hand, the descriptions in the deeds constituting defendant’s chain of title are too vague and indefinite to justify a plea of prescription. Defendant may have gotten some pecans from the tract, but the same man that did this for her worked the land as a tenant of plaintiff and his vendor and paid them rent.

We think that in view of the way in which lands are described in that part of the parish of Natchitoches by reference merely to adjacent owners of land, the plaintiff has made out his case as clearly as could be done. In the very nature of things it is necessary to resort to parol testimony in this kind of cases, and this testimony is overwhelmingly in favor of the plaintiff. We do not know how care-, fully the trial judge considered the evidence in the case, but it is apparent that about eighteen months elapsed between the trial -and the final decision. In the meantime a new judge was elected and the trial judge went back on the bench as judge ad hoc for the purpose of deciding the case. We doubt if he had the assistance of sufficient argument and briefs of attorneys. Judgment was rendered rejecting the plaintiff’s demand, and he has appealed.

A careful and painstaking review and study of the record convinces us that the judgment appealed from is erroneous and should be reversed.

For the reasons assigned, it is ordered, adjudged, and decreed that the judgment appealed from be and the same is hereby annulled and reversed and set aside, and judgment is granted in favor of the plaintiff, Edwin Winlock, against the defendant, Mrs. Ethel Gallaspy, recognizing him as the true and lawful owner of that certain tract of land containing 11.6 acres, situated partly in sections 28 and 29, township 11- north, range 8 west, in the parish of Natchitoches, bounded on the north and east by land owned by the defendant, Mrs. Ethel Gallaspy, on the south by Red river, and on the west by lands of the plaintiff, Edwin Winlock, all according to a plat of a survey of the certain 11.6-acre tract made by M. G. Rugeley, civil engineer, on July 26, 1919, and recorded in Boole 145 at folio 138, in conveyance records of parish of Natchitoches, state of Louisiana. It is further decreed that the said plaintiff is entitled to the immediate, full, and undisputed possession of said tract of- land, and the defendant is ordered to surrender the same immediately upon the finality of this judgment. It is further ordered that the defendant pay all the costs of both courts.


author: PALMER, J.

text:
    No. 4270
    Second Circuit
    AUSTIN v. SUMRALL
    (May 20, 1932. Opinion and Decree.)
    George W. Lester, of Monroe, attorney for plaintiff, appellee.
    McHenry, Montgomery, Lamkin & Lam-kin, of Monroe, attorneys for defendant, appellant.
   PALMER, J.

Plaintiff seeks to recover of defendant the sum of $300 for alleged damages to his automobile resulting from a collision between the cars of plaintiff and defendant, which occurred between the hours of 7 and 8 o’clock on the evening of August 11, 1931, on Park avenue, in the city of Monroe.

Plaintiff alleges that his car at the time of the collision was being driven, with his consent and at his request and direction, by one Rudolph Mason; that his car was traveling on said Park avenue in a westerly direction at a speed between .twenty-five and thirty miles per hour and was on the right-hand side of the street, when an automobile, being driven by defendant, traveling in an easterly direction on said street, without, previous signal or warning, suddenly .turned to the left in an effort to enter a private driveway situated on the north side of the street, at a time when defendant’s car was so close to the car of petitioner as to make a collision inevitable.

Plaintiff further avers that the collision occurred solely on account of the gross negligence and carelessness of the defendant, particularly in his attempting to make a left turn at a point where there was no street intersection, when the cars of plaintiff and defendant were so close together that there was, neither time for defendant’s car to cross the street ahead of his car nor for his car to stop; that after seeing the danger created by the negligent acts of defendant, the driver of his car applied his brakes and did everything in his power to avoid the collision, but was powerless to do so.

Plaintiff further alleges that the estimated cost of repairing .the damages caused his automobile in said collision aggregates the sum of $339.95, but, in order to come within the jurisdiction of the trial court and to secure a speedy trial of the case, he reduced his claim for damages to the amount sued for.

Defendant answered, admitting the collision and that plaintiff’s ear at the time was traveling on said Park avenue in a westerly direction, and that he was traveling upon the same street in an easterly direction on the date alleged and about the hour alleged, but he denies that he was in any manner at fault in causing the collision.

Defendant further alleges that at .the time of the collision, he was on his way to his home on Park avenue, and that when almost opposite his private driveway, located across Park avenue from the side on which he was traveling, he made ready to enter his driveway, but, before doing so, he looked .to the east and west for approaching automobiles, sounded his horn, and gave the alarm signal for a left turn.

Defendant further alleges that at the time he was ready to make the left turn across the street to enter his driveway, he saw plaintiff’s automobile approaching from the east at a speed of about fprty-five or fifty miles per hour, without any lights burning, so he did not attempt ,to continue to cross the street, but stopped his car about the south center of the street in order to allow the driver of plaintiff’s car room and space to pass on the side on which he. was traveling, but that the driver of plaintiff’s car, on account of not keeping a proper lookout, and due further to the fast rate of speed he was .traveling, swerved the car he was driving to the south side of the street, until he was within a short distance of defendant’s car, at which time he suddenly attempted .to turn it to the right and, in so doing, struck the front side of defendant’s car with such force that it knocked defendant’s car several feet and' damaged it considerably.

Defendant further alleges, that the accident was due solely to the carelessness of plaintiff’s driver; that plaintiff’s driver at the time was operating his automobile in violation of a city ordinance of the city of Monroe, by virtue of the speed at which he was .traveling and also in violation of another city ordinance, by not having his lights burning and not driving on the right-hand side of the street, and in not keeping a proper lookout for approaching traffic.

Defendant, assuming the position of plaintiff in reconvention, demands damages of plaintiff in the sum of $96.45,, for repairs to his automobile, resulting from this collision, and for loss of the use of his car for five days.

This case was tried in the city court of the city of Monroe, La. The trial judge rendered a judgment in favor of plaintiff for the amount sued for, and rejected the reconventional demand of the defendant. Prom that judgment, defendant prosecutes this appeal.

THE PACTS

Park avenue, in the city of Monroe, runs practically east and west. Defendant lives on this street and, after having finished his day’s, work, got into his car to go home. After entering upon Park avenue, he traveled in an easterly direction. In order to reach his driveway, it was necessary for him to make a left turn and cross the street, since his residence and garage are situated on the opposite side of the street to that on which he was traveling. Plaintiff’s car was being driven by a young man, who had been sent on an errand for him. In returning to town, he also was traveling upon Park avenue, but in a westerly direction. As defendant came near the point on -the south side of Park avenue to make a left turn to enter his driveway, that is, to a point opposite the driveway leading to his garage, he cut his car to an angle of some forty degrees, into the street, but, at that time, discovering plaintiff’s car approaching, he brought his car to a standstill. The driver of plaintiff’s car, believing that defendant was going to cross the street to enter the driveway on the opposite side, cut his car to his left, and then, upon discovering that defendant brought his car to a standstill, turnéd plaintiff’s car again to his right, and at this time the cars collided, resulting in damages to both of them.

OPINION

While there are some conflicts in the testimony offered by plaintiff and defendant, yet we deem it unnecessary to consider in detail such conflicts, inasmuch as we think defendant is liable, upon his own statement. When the trial first began, plaintiff called the defendant under cross-examination and the following tes-, timony was elicited from him:

“Q. Your home is located approximately in the center of the Pour Hundred Block (400) on Park Avenue, is it not?
“A. Yes, sir, — approximately.
“Q. Before attempting (to enter your driveway, did you see the car of plaintiff approaching from the east?
“A. I saw him just about fifty feet.
“Q. What did you do?
“Á. I stopped.
“Q. In what position did you stop?
“A. My right rear wheel was six inches from the curb on the south and my left front wheel about twelve feet in the street, just preparatory to making the turn into my driveway.”

On direct examination, defendant gave the following .testimony:

“Q. What was the position of your car at the time of the accident?
“A. The right rear wheel I would say was 18 inches from the south curb, the left front wheel was at an angle of 40 degrees, approximately 9 feet from the-south curb.
“Q. Was your car running or standing still?
“A. Standing still.
“Q. Why was your car standing still?
“A. Just as I attempted to make a left turn to my driveway, I saw approaching car coming, meeting me, and I stopped for them to go by.
‘‘Q. Were you attempting to make a left turn so as to 'enter your driveway at the time of the accident?
“A. I was in the act of making the turn.”

• Section 33 of Ordinance 2550 of the City of Monroe, La., provides:

“It shall be unlawful for any person to drive a vehicle into or out of any street, between street intersections, and into or out of an alley, garage, building entrance or exit, without first stopping and ascertaining that no vehicle is using the street at a point sufficiently near to render an accident probable.”

This section- of the ordinance was the authority for defendant to make a left turn and cross .the street to enter his driveway, which is between street intersections, but it was also his specific directions as to how and when that turn could be made. Clearly, it was his duty, under this ordinance, to bring his car to a standstill before he attempted to make the turn, or any portion of the turn, in order that he might ascertain whether or not there was approaching any vehicle that was at a point sufficiently near to render an accident probable, in the event he should proceed at once to cross the street.

Instead of bringing his car to a standstill upon arriving at the point referred to, defendant cut it diagonally across the street at an angle which he stated to be about forty degrees. In his direct examination, he placed his left fr.ont wheel about twelve feet into the street. After thus cutting his car at such an angle into and across .the street, he says he saw plaintiff’s car approaching at a distance of about fifty feet away, at which time he brought his car to a stop. It was, no doubt, his thought that the driver of plaintiff’s car would continue on his right-hand side of the street and would have ample space in which to pass, but plaintiff’s driver, becoming confused when he saw defendant thus cut his ear into the street, as though he was intending to cross, and believing defendant was then in the process of driving across .the street, cut his car to his. left in an effort to pass behind him, but, upon finding that defendant had stopped his car, turned to the right, whereupon the two cars collided, resulting in plaintiff’s car, when it stopped, being on the opposite, or north, side of the street with the right front wheel upon the curb and the defendant’s car being practically straight across the street.

Defendant was clearly at fault, and acted in violation of the provisions of the traffic ordinance, supra, when he did not first bring his ear to a standstill before he made any part of his left turn to cross the street to enter his. driveway. It is this fault that we think constitutes the proximate cause of the collision. It was perfectly reasonable, under these circumstances, for the driver of plaintiff’s car to believe that after defendant had thus partially made the left turn, he was going to continue across, and, reaching such conclusions, he was perfectly justified in attempting to pass to the rear or behind plaintiff’s car .to escape a collision. Such a result was prevented because defendant, after having partially made the turn, brought his car to a standstill, and then, when this was made manifest to the driver of plaintiff’s car, seeing he could not pass to the rear, he again attempted to cut back to his side, at which time the car's collided, causing the damages sued for.

The courts of our state have, in almost every instance, and there are many such cases, held that when when a driver of an automobile violates a traffic ordinance and thereby causes injury to another, he is liable therefor. Broderick v. Lane Cotton Mills, 1 La. App. 155; Eiswirth v. Eaton, 2 La. App. 363; Roberts v. Eason, 6 La. App. 703.

It has frequently been declared to be the duty of the courts to rigidly enforce traffic ordinances, in order that the public may be safeguarded. This principle is fully considered, and the authorities reviewed, in Haywood v. Wagner, 16 La. App. 521, 134 So. 778. It would serve no useful purpose for the court at this time to give a list of the long line of authorities that sustain these conclusions. The principle is now too firmly fixed in our jurisprudence to admit of any argument.

The right of a driver of an automobile to make a left turn in an effort to escape injury threatened from the negligent acts of another motorist is also well fixed in our jurisprudence. In the case of Potter v. Glass ell, 146 La. 687, 83 So. 898, in passing upon this question, the Supreme Court said:

“One compelled to turn to the left and wrong side of a road to avoid a collision, because of another person’s violation of the law * * * is not negligent.’’

It is needless to cite the many other authorities of our Supreme Court, as well as. the numerous authorities of this court, that sustain this view. In the case of Lucky v. Lacy et al., recently passed on by this court, 19 La. App. 743, 140 So. 857, 860, April 5, 1932, a case is presented where the defendant was traveling on the wrong side of the road and met plaintiff who was traveling on the right side. Just before they met, in an effort to avert a collision, plaintiff cut his. car to the left and, at about the same time, defendant cut his car to the right; the two cars coming together in collision. In passing upon defendant’s liability, this court said:

“Due to the fact that the Louisiana courts have so often passed upon the question, it is now settled in our jurisprudence that a driver of an automobile, upon the right side of a highway, in order to avoid a head-on collision with an approaching car, which is traveling upon the wrong side, may cut his car to the left in an attempt to avoid an accident. This is based upon the principle that the driver of the approaching car, using the wrong side of the road, has thereby created a hazardous situation resulting in an emergency threatening injury to the car traveling upon the right side, from which the driver of that car has a right, if his judgment at that time leads him to do so, to resort to the left turn in an effort to avoid an accident.”

The same principle is involved here. Defendant, by partially making the left turn before stopping, in violation of the city ordinance, created a hazardous situation resulting in an emergency arising, which threatened injury to plaintiff’s car and its driver, from which hazardous situation plaintiff’s driver had a right, if his judgment at that time led him to so act, to. attempt to pass behind defendant’s car, because it was reasonable for him to believe that defendant would continue across the street after having improperly made ■the start, and 'the driver of plaintiff’s car, after discovering he could not pass to the rear of defendant’s car because it stopped, was therefore justified in attempting to escape injury by cutting back towards the left, although by so doing he did not thereby avert the accident. All one has to do, when he faces a hazardous situation creating an emergency threatening injury to him, for which he is not responsible, is to use reasonable judgment in the means he employs to escape injury. It may be that the means employed are not the safest available, but, if he acted as a reasonable person would act under such circumstances, he is not guilty of negligence. We think the plaintiff’s driver was. well within his rights, as expressed in these principles of law, at' the time of the collision.

We repeat, the proximate cause of the collision was the failure of defendant to stop when he came to the point at which he desired to make the left turn. Partially making the turn before he stopped created in the mind of plaifitiff’s driver the thought that he was going to cross the street without stopping, and, when he did stop, plaintiff’s driver apparently did what any reasonable person would do under the circumstances to avert the accident; so he is not chargeable with fault.

Defendant pleads that plaintiff’s driver was violating certain city ordinances at the time of the collision, by speeding, by running without lights, and by not driving on his. right side. As we have previously stated, there are conflicts in some of the testimony offered by plaintiff and defendant, and the evidence offered on each of the points just mentioned is involved in these conflicts but even if the evidence sustained these charges — and they certainly were not established to a legal certainty — they would not have any material bearing upon the collision.

As to the charge of running without lights, the testimony shows clearly that no lights were really needed, because the collision occurred before it was dark. As to the charge of running on the wrong side of the street, the evidence clearly shows that plaintiff’s driver only turned to the left in an effort to extricate himself from a perilous, situation suddenly created by the negligent acts of defendant. As to the charge of speeding, even if true, it had no material bearing upon the collision; it was not even a contributing cause.

The evidence .thoroughly established that the amount of damages plaintiff sustained to his car on account of this collision exceeded the amount sued for.

The judgment of the lower court is. correct, and it is accordingly affirmed; defendant, appellant, to pay all cost of the appeal.

McGREGOR, J., dissents.


author: HIGGINS, J.

text:
    No. 13,800
    Orleans
    EAGLE STAR & BRITISH DOMINIONS INSURANCE CO., LTD., v. DICKS
    (March 21, 1932. Opinion and Decree.)
    M. C. Scharff, of New Orleans, attorney for plaintiff, appellant.
    Lemle, Moreno & Lemle, of New Orleans, attorneys for defendant, appellee.
   HIGGINS, J.

This is a suit to recover damages to an automobile alleged to have resulted from a collision, with the defendant’s car. The petition alleges that the plaintiff is an insurance company and issued a policy to Jules Godchaux to indemnify him against loss for damages to his automobile; that the Godchaux automobile was damaged in a collision with the car of the defendant and that the plaintiff paid Mr. Godchaux the sum of $115.76 covering the damages; that under a clause in the policy plaintiff was subrogated to the rights of the insured; that on February 23, 1929, at about 11:30 a. m., the Godchaux automobile was being driven up St. Charles avenue; that there were two 'automobiles in front of it going in the Same direction and that, upon reaching General Taylor street, the lady driving the first car suddenly and without any warning turned to her right and then sharply to her left, crossing the neutral ground and then went out General Taylor street towards, the river; that the Godchaux car was being operated at a moderate and lawful rate of speed and came to a stop without striking the car in front of it; that before coming to a stop the chauffeur gave the proper signal that he was going to stop, but that defendant’s automobile, driven by his chauffeur, ran into the rear of the Godchaux car, causing the damages complained of; that defendant’s driver was guilty of negligence in operating his automobile at an excessive rate of speed, in failing to keep a proper lookout, and in not having his automobile under proper control so as to be able to bring it to a stop.

Defendant admitted the collision, but denied that his employee was in any way at fault and averred that ’ the accident was caused by the Godchaux car suddenly and without warning coming to a stop, so that it was necessary for all automobiles following it to come to an emergency stop; that as defendant’s car came to a stop the car following it struck or ran into the rear of the defendant’s car, catapulting it into the rear of the Godchaux ear.

There was judgment dismissing the suit and the plaintiff has appealed.

The only witnesses for the plaintiff were the chauffeur, who drove, and the mechanic, who repaired, the Godchaux car. The chauffeur of defendant and the mechanic who repaired the defendant’s car were the sole witnesses in defendant’s behalf. Both drivers say that there was a line of cars going up St. Charles avenue at the time alleged and that the front car, driven by a lady, suddenly and without warning pulled across the path of the oncoming traffic, requiring all automobiles to the rear to come to a sudden stop; that the automobiles were going about 20 or 25 miles an hour at the time; that the Godchaux car succeeded in stopping within one foot of the machine in front of it, but that the defendant’s car struck the rear of the Godchaux car, causing the damages- complained of. The mechanic who repaired the Godchaux car testified as to the damages to its rear and the mechanic who repaired the defendant’s car testified as to the damages to its- front and rear.

Counsel for plaintiff contends that as the defendant admits that his car struck the Godchaux car from the rear that the doctrine of res ipsa loquitur applies and defendant has the burden of exculpating himself from fault.

Conceding that this statement is sound, a view most favorable to the plaintiff, but without expressing any opinion on that point, we now proceed to examine the defendant’s evidence tending to establish his defense. The defendant’s driver testified that his automobile was struck from the rear by a car which was following it, causing him to lose control of it and run into the rear end of the Godchaux car; that he had all but come to a stop at the time of the collision and would have had sufficient distance within which to stop, had he not been bumped, because he was traveling 20 to 25 feet to the rear of the Godchaux car. The mechanic who repaired defendant’s car testified to extensive damages to its rear end, which physical fact tends to corroborate defendant’s chauffeur’s testimony. This evidence is not impeached or contradicted and, under the circumstances, we shall accept it as true, particularly since the trial court believed it. We find that the defendant’s driver was free from fault.

For the reasons assigned the judgment appealed from is affirmed.


text:
    No. 4265
    Second Circuit
    GEORGE E. BREECE LUMBER CO. v. MORRIS ET AL.
    (May 20, 1932. Opinion and Decree.)
    Hudson, Potts, Bernstein & Sholars, of Monroe, attorneys for plaintiff, appellant.
    Theus, Grisham, Davis & Leigh, ■ of Monroe, attorneys for defendants, appellees.
   PALMER, J.

Plaintiff seeks by this suit to recover of W. N. Morris and the Globe Indemnity Company in solido, ■ the sum of $2,049.59, with interest at the legal rate from judicial demand until paid, and 10 per cent upon the aggregate amount of principal and interest, as attorney’s fees.

Plaintiff alleges that defendant Walter N. Morris contracted with Herman and Sig Masur for the construction Of a certain building upon a lot in the city of Monroe, Louisiana; that defendant Globe Indemnity Company was the surety on the construction bond and that the contract and bond were timely recorded in the clerk’s office of Ouachita parish; that all the materials listed on the account, on which this suit is based, were purchased from plaintiff by the defendant Morris, and were used in the construction of the sai.d building; and that the total amount due for such materials is $2,057.37,' less a credit of $7.75.

As a basis of its demand for attorney’s fees, plaintiff avers that it made demand in writing on the Globe Indemnity Company, surety, for payment of its said account more than thirty days prior to the filing of this suit.

Defendants admit the correctness of the account sued on, but plead that Walter N. Morris paid plaintiff, for application on the Masur account, the sum of $500, which said sum they aver was received by Morris from Herman and Sig Masur, leaving a balance due plaintiff on said account of $1,549.59.

Defendants deny that proper notice was served on them whereby they can be held responsible "for the attorney’s fees claimed.

THE PACTS

There is little, if any, dispute over the facts, although by the pleadings the contrary is indicated. The facts may be stated substantially as follows:

Defendant Walter N. Morris, on January 27, 1931, entered into a written contract with Herman and Sig Masur for the erection of a two-story, frame and brick veneer apartment building on property they owned, situated in the city of Monroe, Louisiana. This contract was bonded by the defendant Globe Indemnity Company, and both the contract and bond were properly recorded in the mortgage records of Ouachita parish two days after they were executed. The work promptly started and, between February 9, 1931, and April 22, 1931, Morris purchased from plaintiff the materials shown on the account sued on, amounting to the sum sued for, all of which was used in the erection of the said building.

At the same time Morris was engaged in constructing the Masur building, he was also engaged in erecting for Joe Sampagnaro another structure. That job was also bonded. Some of the materials used in that job also were purchased from plaintiff. In addition to these two jobs, Morris owed plaintiff for materials used in several other and older jobs, not bonded. In selling Morris materials, plaintiff kept a separate account for each job. The Masur job was for $17,847.51, while the Sampagnaro job was for $5,592.

On April 2, 1931, Morris received from the Masur job a payment of $4,000, made on an estimate. At that time he had no other funds, save perhaps about $25. On that same day, he paid plaintiff the sum of $500 out of the funds received from the Masur job. Defendants aver that Morris at the time of this payment directed plaintiff to credit the amount to the Masur job. Plaintiff credited the payment to the Sampagnaro job, which, as we have already stated, was also a bonded job. At the time of this payment,'according to the testimony of Lee Hodges, bookkeeper for plaintiff company, there was nothing past due on either the Masur job or the Sampagnaro job. Morris left Monroe on June 27, 1931, and did not return until August 7, 1931. In the meantime, his whereabouts were unknown.

The questions for decision in this case are whether or not plaintiff has made a proper imputation of this- payment of $500, and if not, should it be ordered to credit the payment to the Masur job? Also, is plaintiff entitled to recover for attorney’s fees? And also should defendants be released from paying all costs accruing after they admitted in the answer owing the account sued on, subject to a credit of the said payment of $500?

OPINION

“The debtor of several debts has a right to declare, when he makes a payment, what debt he means to discharge.” Civil Code, art. 2163.

“When the receipt bears no imputation, (that is, no instructions from the debtor on what debt to apply the payment) the payment must be imputed to the debt, which the debtor had at the time most interest in discharging, of those that are equally due; otherwise to the debt which has fallen due, though less burdensome than those which are not yet payable.”

“If the debts be of a like nature, the imputation is made to the debt which has been longest due; if all things are equal, it is made proportionately.” Civil Code, art. 2166.

Undoubtedly, the $500 with which this payment was made came from Herman and Sig Masur and, at least, from an equitable standpoint, should have been credited to that job. However, it seems there was a misunderstanding between plaintiff and Morris at the time this payment was made and, as a result cf that misunderstanding, the sum was credited to the Sampagnaro job.

Morris, after making this payment, credited on his own books the Masur job with this payment. Notwithstanding the apparent misunderstanding between plaintiff and Morris as to the account on which this payment was to be applied, it is quite evident that in Morris’ own mind, he intended for it to be credited to the Masur job.

Morris made this payment to the bookkeeper, Lee Hodges, in the office of the plaintiff company. George O. Breece, manager of the company, was in the office at the time, but was sitting nearby in an adjoining room. Breece testified that Morris first came into the room where he was and told him he received the money with which the payment was made from the Sampagnaro job, although he admitted that Morris did not request that the payment be credited to that job. On cross-examination, Breece somewhat modified his statement by saying that Morris only told him he was finishing up the Sampagnaro job. At any rate, Breece directed Morris to make the payment to the bookkeeper, so Morris delivered the check by which the payment was made to the bookkeeper, saying: “Lee, give me credit for $500.00.” Hodges testified that no instructions were given him where to credit the payment; said he did not know at the time where the money came from.

There is a conflict between the testimony of Breece and Morris on what conversation took place between them in the office at the time this payment was made. Morris denied that he told Breece that he got this money from the Sampagnaro job. On the erntrary, he says, in effect, that he feels reasonably sure he told him that the money in question came from the Masur job.

In considering the conflicting testimony, the court’s first duty is to attempt to reconcile it, if possible. Therefore, ascribing to both parties honest intentions, the only way we can reconcile this conflict is on the theory that either Morris, in attempting to advise plaintiff the source from ■which this money came and on which debt he desired it to apply, through error, said it came from the Sampagnaro job, qr that Breece, having in mind both the Sampagnaro and Masur jobs, through error got it into his mind that Morris used the former instead of the latter name in this conversation. We can see no advantage to be gained by plaintiff by crediting the payment to the Sampagnaro job, for, as above stated, that job was also bonded. Neither can we see any advantage tq be gained by Morris in having this payment credited to the Sampagnaro job, for the status of his personal liability to plaintiff would be the same regardless of which of these two jobs received the credit.

To say the least of it, the testimony of Breece and Morris on .this controverted question, strongly indicates that there was a discussion between them at the time the payment was made, relative to the debt on which Morris desired the payment to apply.

If, therefore, plaintiff, through an honest misunderstanding, whether arising from its error or from the error of Morris, improperly credited this payment to the Sampagnaro job, especially if the interest of third parties has been prejudiced thereby, as is the case with the Globe Indemnity Company, the error should be corrected, if it can be- done. The record discloses no reason why that could not be done without prejudice to the legally vested rights of others. Plaintiff is guaranteed the full amount of its account against both the Masur and the Sampagnaro jobs, so to withdraw this credit from the latter and place it to the credit of the former plaintiff would lose nothing thereby. Not only the equities in the case, but the law itself authorizes and demands that such an error as the facts show has been made in this case should be corrected. There can be no just complaint on the part of any interested person why such correction should not be made.

Even if it be true that the payment was made without any instructions from Morris as to what account of the several he owed the payment should be applied, the question arises: What were plaintiffs duties in determining which of the several debts owed it by Morris, and which were on an equality, did Morris have the greatest interest in discharging?

Clearly, under article 2166 of the Civil Code, when a debtor making a payment fails to direct to what debt it shall apply, the creditor is charged with the respqnsibility of crediting the payment to that debt which the debtor has the most interest in discharging, of those that are equally due. For the creditor to do this, he must take into consideration all the facts and circumstances bearing upon the debtor’s situation. Hortman-Salmen Co., Inc., v. Naquin, 12 La. App. 491, 126 So. 453. Obviously, therefore, there is imposed upon the creditor in such instances the obligation of considering all the accounts due him by the debtor in his effort to determine which the debtor is most interested in discharging.

The record shows that Morris did quite an extensive business with plaintiff. There were some six or eight different accounts, and each was kept separately. This was necessary, of course, so that plaintiff could properly preserve his liens as a furnisher of material. At the time of this payment, only the Masur and the Sampagnaro jobs were bonded. Knowing that Morris was operating at least two jobs, it was the custom of the bookkeeper of plaintiff company, when Morris would make a payment, to ask him to what job he desired the payment credited. This is shown by the following questions and answers:

“Q. As a matter of fact, when you made this credit of $500.00 against the Sampagnaro joh, you merely made that credit because you thought he might have got the money from the Sampagnaro joh?
“A. I always made it a practice to ask Mr. Morris where he wanted the payment applied.
“Q. What did you say to him in this in stance ?
“A. He did not tell me where to apply it.”

It is obvious, therefore, that at the time of this payment, the following situation clearly existed: Morris, appears not to be progressing any too well financially. He owed plaintiff on six or eight, different jobs. Plaintiff is familiar with his method of operating and always made it a rule, as the testimony of the bookkeeper shows, when Morris made a payment, if he did not give instructions, to inquire of him to what job he desired the payment applied. Under these circumstances, plaintiff should have known, and would have known, had he not deviated from the custom, that this money came from the Masur job. The bookkeeper offered no reason why, in this particular instance, the exception was made from the regular custom of asking Morris how he wanted the payment applied, and the apparent misunderstanding in crediting this payment to the Sampagnaro job was due to that departure from the said regular custom.

If plaintiff had considered all these facts and circumstances, as the custom would have warranted Morris in believing, he would have known that Morris had the greatest interest in discharging the Masur job. Under Act No. 76 of the Legislature of Louisiana for the year 1926, Morris could not have directed this payment to apply anywhere else except on the Masur job. If he should do so, he would be amenable to a criminal prosecution and subject to a maximum jail sentence of twelve months. Sections 1 and 2 of that act provide:

“1. Be it enacted by the Legislature of Louisiana, That any contractor or sub-contractor who shall default on any contract for the construction, erection or repair of any building, structure, or other improvement and who shall have applied any money received on account of said contract to any other purpose than the settlement of claims for material and labor due or to become due thereunder shall be guilty of a misdemeanor.
“2. That any person convicted of a violation of this Act shall be sentenced to not less than thirty (30) days nor more than six (6) months in the parish jail and shall be fined not less than One Hundred ($100.00) Dollars nor more than Five Hundred ($500.00) Dollars and in default of fine shall serve not less than thirty (30) days and not more than six (6) months additional.'”

The provisions of this statute only reach the contractor, yet it does have some hearing upon the question of what debt the contractor had the most interest in discharging with this money. In other words, Morris’ interest in applying this payment towards the discharge of the Masur debt was far greater than his interest in discharging any other debt he owed plaintiff, so the creditor, being required, in the absence of instructions from the debtor, to impute the payment to the debt the debtor had the most interest in discharging, of those that are equally due, and, being familiar with the fact that Morris was working on both the Masur and Sampagnaro jobs, and having created and followed a custom qf always asking Morris where he wanted the money applied, and being charged with knowledge of this law, failed in his duties in properly determining the account to which this credit should be applied. In other' words, plaintiff did not make, under these facts and circumstances of which it had knowledge, the proper imputation of this payment and, nqt having done so, it is proper for the court to direct that it now make the necessary correction.

The contention of plaintiff is that, since it did not know the source from which these funds- came, even though the Globe Indemnity Company is prejudiced by the imputation of the payment made, it was not guilty of improper practice in crediting the payment to the Sampagnaro jobs. In support of this contention, plaintiff cites the following cases:

Hortman-Salmen Co. v. Continental Cas. Co., 170 La. 879, 129 So. 515; Grand Lodge Ben. Knights of America v. Murphy Cons. Co. et al., 152 La. 123, 92 So. 757; Madison Lbr. Co. v. Bachemin et al., 9 La. App. 382, 120 So. 508

If, as these cases hold, the plaintiff received this payment without any knowledge of its source, either expressed or implied, and if, when making the payment, Morris gave no instructions as to what debt on which to apply it, and if plaintiff applied the payment to the debt Morris had the most interest in discharging, of those that are equally due, then plaintiff was not guilty of improper practices when he did not apply the payment to the Masur job.. But, as we have heretofore stated, it is evident that Morris and Breece, the manager of plaintiff company, discussed the account to which this payment should be applied at the time it was made and, through an error, either on the part of Breece in misunderstanding Morris, or on the part of Morris in erroneously stating the source of the money received, the credit was passed to the Sampagnaro job, notwithstanding the funds came from the Masur job.

Since no vested rights have been acquired in the meantime by any outsiders whose interests would be prejudiced by correcting the error, it is proper that such error be now corrected. Also, as we have heretofore stated, the facts and circumstances in possession of plaintiff at the time of this payment were such as to convey to it, or should have conveyed to it, the information that these funds were derived from the Masur job. Furthermore, as we have heretofore stated, the debt which Morris owed plaintiff, in which he had most interest in discharging, of those that are equally due, especially as related to these funds, was the Masur job. Having reached these conclusions on the facts in the case, the principles enunciated in the cases relied on by plaintiff are not applicable to the case at bar.

If Lee Hodges, the bookkeeper of plaintiff company, has correctly stated the facts, neither the Masur nor the Sampagnaro account was due at the time this payment was made, but plaintiff held other accounts against Morris that were older and which were past due, amounting to approximately $1,500. The following evidence of the bookkeeper ‘bears out these conclusions:

“O. You mentioned other accounts charered a.erainst Mr. Morris, were they older than the Sampagnaro charge?
“A. Yes, sir.
“Q. How much did tbov amount to?
“A. Approximately $1500.00.
“Q. About how old were those accounts?
“A. They dated back to the first of 1930. ’
* * * * * ’ * * *
“Q. Are they nqt supposed to pay for those jobs until the acceptance of the building?
“A. We do not consider it as due as long as we are protected on it.
********
“Q. You said the Masur job was not past due?
“A. Yes, sir.
“Q. The Sampagnaro job was not past due either, was it?
“A. There was nothing past due on either job.”

Treating the case from this standpoint and considering all debts due to be of a like nature, the imputation of this payment should have been made to the debt which was the longest due, or, if several were of the same rank in this respect, the payment should have been made to all such proportionally. In other words, if neither the Masur nor the Sampagnaro job was due and Morris gave no directions as to how to apply the payment, and there were no facts to show plaintiff that Morris had any greater interest in discharging one debt than another, then it was the duty of plaintiff to have applied the payment to the debt longest due. Not having done that, certainly the payment is yet subject to be applied to the proper account. The funds having been derived from the Masur job, naturally the proper place is for them to be credited to that job.

It is therefore apparent that from either of the several angles from which this case is treated in this decision, it is proper that the payment in question be credited to the Masur job.

Plaintiff’s claims for attorney’s fees cannot be allowed for the following reasons: The amount awarded in this judgment is less than the amount demanded. Furthermore, no allegation is made and no proof offered showing written demands were made on the principal for payment of the debt sued on. (Act No. 225 of 1918.)

Counsel for defendants contend that, having admitted in their answer that the account sued on, after taking credit for the $500 in question, is correct, all costs incurred thereafter should be borne by plaintiff. The evidence does not show that the defendants at any time made a real offer of the actual amount due to plaintiff, with interest and costs, which had accrued. To have stopped the costs, it was necessary for defendants to have made a tender of the actual amount plaintiff is entitled to recover under this judgment and, in making such tender, the form prescribed by law (Code of Practice, article 407), had 'to be complied with. There was no effort made to comply with the. formalities required by this statute.

In our opinion, the judgment of the lower court is correct and it is accordingly affirmed, plaintiff, appellant, to pay all costs of appeal.


text:
    No. 13,872
    Orleans
    DIXIE BLDG. MATERIAL CO., INC., v. MERTZ ET AL.
    (May 16, 1932. Opinion and Decree.)

      Frymire & Ramos, R. R. Hagen and C. L. Stiffel, of New Orleans, attorneys for plaintiff, appellee.
    Gordon Boswell, of New Orleans, attorney for defendant, appellant.
   HIGGINS, J.

This is a suit by a materialman against the surety on a building contract bond and the contractor in solido to recover the balance of $148.93 alleged to be due for material sold and delivered to the contractor between July 14, 1927, and August 4, 1927.

The bonding company answered, admitting the issuance of the bond in the sum of $2,500, securing the faithful performance of the building contract by the general contractor, but averred that its obligation was fully discharged by paying $1,457.01 to three lien creditors and $1,-042.99 to the owner, or a total of $2,500, the full amount of the bond; that the payment to the owner was. made only after the lapse of time prescribed by law for the filing of liens, and that the said sum of $1,042.99 was due the oVner for the completion of the undertaking as the contractor had defaulted; that the said sum was paid the owner under the erroneous belief that all the materialmen had been paid, and only upon the owner’s insistent demand for the money; that the owner should pay the claim out of the amount which he received from it; that the owner should be called in warranty, and prayed that plaintiff’s, suit be dismissed, but, in the event that the court should render judgment against the bonding company, that it should be granted judgment against the owner for a like amount.

The sheriff was unable to locate the defendant contractor for the purpose of serving citation and copy of the petition on him, and no appearance was made in his behalf. He is therefore not before the court.

The owner, called in warranty, filed an exception.of no right or cause of action to the- call in warranty, and answered denying liability.

There was judgment in favor of the plaintiff as prayed for and sustaining the exception of no cause of action in favor of the owner and dismissing the call in warranty by the bonding company, and it has appealed.

The record shows that Joseph Mertz, a contractor by occupation, contracted in writing with -the New Orleans Furniture & , Manufacturing Company, as owner, to make certain alterations in its building for the sum of $2,500. The defendant Columbia Casualty Company executed a performance bond thereon in the sum of $2,500. The building contract was duly recorded in the mortgage office, and the contractor proceeded with the work, but failed to complete it, and was put in default by the owner; the notice of default being duly recorded in the mortgage office on October 3, 1927. Thereafter the owner completed the work at a cost in excess of the contract price.

In the meantime, three furnishers of material had duly recorded their liens in the mortgage office covering claims amounting to $1,457.01, and had properly served notice upon the necessary parties. These lien creditors and the owner demanded payment of their respective claims from the surety on the bond. The surety paid these claims, or a total of $2,500, the amount of the bond; payment being made after the thirty-day period for filing of a lien had passed.

About four months after the contractor had been put in default by the owner, and three months after the aforesaid payments had been made, plaintiff demanded of the surety company the balance of $148.93, due for material sold and delivered to the contractor and used in the construction of the improvement. The bonding company referred the plaintiff’s claim to the owner, and demanded that it be paid out of the $1,042.99, but the owner declined to do so or to return the necessary amount to the bonding company in order that it might pay the claim. Eleven months after the recordation of the default, the present suit was filed.

It is well settled that, under the provisions of section 14 of Act No. 298 of 1926, a furnisher of material is not required to file and record a lien in the mortgage office in order to collect the amount of his claim for materials furnished and used in the construction of the improvements, from the surety on the bond which guaranteed the faithful performance of the building contract by the contractor. Dixie Building Material Co. v. Mass. Bonding Co., 167 La. 399, 119 So. 405; Madison Lumber Co. v. Bachemin et al., 166 La. 1066, 118 So. 141; Arcadia Lumber Co. v. Austin et al., 15 La. App. 212, 131 So. 601; Truscon Steel Co. v. B. & Tr. Const. Co., 170 La. 1083, 129 So. 644.

Section 14 of Act No. 298 of 1926 specifically provides that a furnisher of material has a right of action against the surety on a building contractor’s bond for recovery of his claim for a period of one year from its maturity. See, also, authorities cited supra.

Section 4 of Act No. 298 of 1926 provides that a furnisher of material has a preference for the payment of his claim against the surety on the building contractor’s bond over .the owner who has expended money for the completion of the undertaking where the contractor defaulted. See authorities, cited, supra.

Therefore plaintiff certainly has a right to recover the amount of its claim from the defendant.

Counsel for the surety company finally contends, that the plaintiff was guilty of laches, and that it would be inequitable to permit plaintiff to hold the bonding company where it acted in good faith and paid the full amount of its bond. The fallacy in this argument is that section 4 of Act No. 298 of 1926 provides the procedure and method by which the surety on a building contract bond can protect itself against paying any more than the amount of the bond by convoking concursus proceedings. Defendant failed to exercise its clear statutory rights, and its. equitable plea is therefore without merit.

Counsel for the bonding company conceded in the argument at bar that the judgment sustaining the exception of no cause of action as to the call in warranty is correct, reserving his client’s right to recover from the owner in a direct suit any amount which it erroneously paid. Hence we do not express any opinion on this point.

The defenses were urged seriously and earnestly, and we therefore will not allow damages for frivolous appeal, as claimed by the plaintiff.

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


author: REYNOLDS, J.

text:
    No. 1990.
    Second Circuit Appeal.
    PETER FLETCHER v. MRS. L. B. WARD.
    (March 17, 1925, Opinion and Decree.)

      (Syllabus by the Editor.)

    1.Louisiana Digest — Appeal—Par. 518.
    Where there is no assignment of errors nor other means by which the correctness of the judgment can be examined into, the appeal must be dismissed.
    Appeal from City Court of Shreveport, Louisiana, Hon. David B. Samuels, Judge.
    L. C. Butler, of Shreveport, attorney for plaintiff, appellant.
    Thomas W. Robertson; Foster, Looney, Wilkinson & Smith, all of Shreveport, attorneys for defendant, appellee.
   ON MOTION TO DISMISS APPEAL

REYNOLDS, J.

In this case the transcript does not contain any evidence or statement of facts; nor does it contain the certificate of the judge or clerk that the transcript contains all the evidence on which the case was tried. There is no assignment of errors nor other means by which the. correctness of the judgment can be examined into.

The appeal must be dismissed.

Longer vs. Pugeau, 3 Mart. (O. S.) 221.

Robb vs. Mart, 5 Mart. (N. S.) 89.

Allain vs. Preston, 5 La. 478.

Nettleton vs. Stephens, 6 La. 164.

Garritson vs. His Creditors, 8 La. 518.

Haydel vs. Webre, 10 La. 37.

LeBlanc vs. Viel, 12 La. 33.

Bogereau vs. Armstrong, 15 La. 144.

Healy vs. Wagner, 19 La. 91.

Charbonnet vs. Dupasseur, 27 La. Ann. 105.

For the above reasons it is ordered, ad judged and decreed that the appeal be and the same is hereby dismissed.