text:
    No. 11,078
    Orleans
    JORDAN v. THE CHECKER CAB CO., INC.
    (February 11, 1928. Opinion and Decree.)
    (March 4, 1929. Rehearing Refused.)

      Samuel J. Tennant, Jr., of New Orleans, attorney for plaintiff, appellee.
    P. L. Fourchy, of New Orleans, attorney for defendant, appellant.
   JONES, J.

Plaintiff sues individually and as tutrix for her minor daughter, for damages for personal injuries alleged to have been caused to both by defendant, who were passengers in its cab, when its chauffeur negligently ran into a parked car upon St. Charles Avenue in the 4900 block.

Defendant first filed an exception of no cause of action and when this was overruled, answered denying specifically all allegations of the petition. Later it filed a supplemental answer averring that the collision had been caused by an unknown driver of a large automobile, which had bumped into defendant’s car, as it was going up St. Charles Avenue and knocked it over into the parked car. .The trial judge later rescinded his order permitting the filing of the supplemental answer on the ground that it changed the issue between the parties, the first answer having denied the collision entirely and the second having admitted it.

This ruling was correct. See Code of Practice, Arts. 419 and 420.

Charles Case, Receiver of the First National Bank of New Orleans vs. Robert Watson, 22 La. Ann. 350.

L. P. Spyker vs. E. C. Hart, 22 La. Ann. 534.

E. J. Hart Co. vs. Mrs. M. J. Bowie et al., 34 La. Ann. 323.

Jamison vs. Charles F. Cullon & Co., 110 La. Ann. 781, 34 So. 775.

Roe et al. vs. Caldwell, 145 La. 853, 83 So. 43.

State et al. vs. Bozeman et al., 156 La. 635, 101 So. 4.

There was judgment for plaintiff, individually for $1,000.00 and as tutrix for her minor daughter for $100.00 and defendant has appealed.

The alleged negligence is abundantly proven by the uncontradicted testimony of both plaintiff and her daughter, as the defendant was properly not allowed to offer any testimony in support of his supplemental answer.

The amount allowed to plaintiff individually is excessive. The record shows that the enamel on one of her front teeth was broken by the impact and several of her front teeth were loosened.

Dr. Gueno, the dentist who put the filling in the broken tooth, testified that the tooth had been extremely sensitive when she first came to his office and that he thought it possible that later the nerve would die in the tooth and an abscess might form, that it took him five sittings to prepare the tooth and fix it properly and that during the entire time, he found it very sensitive, and that Mrs. Jordan had suffered intense pain as several other teeth were loosened by the collision.

Plaintiff testified that she was forced to remain in bed seven days except for the short space of time that she took to go to the dental office on the third day, which visit had been necessary because the broken tooth had a jagged point and was-cutting her lip. She further testified that her nose was mashed and her right arm and right shoulder badly wrenched, and that she suffered several bruises and sprains on the rest of her body.

As she did not call in a physician to treat the contusions and wounds, we are forced to conclude that they were not so serious as pictured in her testimony. We do not find anything in the record to confirm the allegations of plaintiff that her beauty had been considerably lessened by the injury.

We have decided to affirm the judgment and reduce the amount allowed plaintiff to $500.00.

Although the testimony as to the injuries of plaintiff’s daughter who was about seventeen years of age at the time of the accident, is very meager, we think that the amount allowed, namely, $100.00, does substantial -justice, as she evidently suffered some bruises and some shock.-

It is now ordered, adjudged and decreed that there be judgment in favor of plaintiff, Mrs. Nell Y. Jordan, and against the Checker Cab Company in the sum of $500.00, and it is further ordered, adjudged and decreed that there be judgment in favor of Mrs. Nell V. Jordan, as tutrix of her minor daughter, Loraine Jordan, in the sum of $100.00 with 5% interest from judicial demand, cost of the lower court to be paid by defendant and cost of the appellate court by plaintiff.


source: Caselaw Access Project

author: JANVIER, J.

license: Public Domain

text:
    No. 10,820
    Orleans
    HOUSTON v. LEWIN
    (March 18, 1929. Opinion and Decree.)
    Bernard Titche, of New Orleans, attorney for plaintiff, appellee.

      F. C. Querens, of New Orleans, attorney for defendant, appellant.
   JANVIER, J.

Plaintiff sues defendant for $638.11, claimed to be due for services rendered in assisting in planning and supervising the making of certain repairs and alterations to defendant’s residence.

Plaintiff claims that he was employed by defendant, who agreed to pay him as his fee, 10 per cent on the total amount of the expenditures.

The defense is that plaintiff was not engaged to assist in the planning of the work or to supervise the construction, but was merely employed as an ordinary carpenter and has been paid for his work as such.

The record convinces us, as it did the trial judge, that plaintiff’s contention is correct and that he was employed on a 10 per cent basis as he alleges. We quite agree with the trial judge in his statement that ‘‘very little assistance was given to the court by the defendant, who, it seems, had forgotten all the details of the transaction, and had even forgotten whether or not any specific agreement had been made.” Defendant’s memory is unusually bad, but, fortunately, the record contains correspondence between him and plaintiff, which shows conclusively the nature of the contract.*

Defendant contends that there is not sufficient proof as to the amount expended to do the work to justify a recovery by plaintiff.

This question is purely one of fact and the finding of the trial court not only is not manifestly erroneous, hut, on the contrary, seems to us to be correct.

Furthermore, the information as to what the work cost was peculiarly within the possession of defendant, and it was his duty to produce it.

Defendant further contends that plaintiff is not entitled to a lien because his contract was for more than $500.00 and was neither reduced to writing nor recorded. We do not agree with this contention, but as the lien was not recognized by the trial court and, as plaintiff has not answered the appeal, the question of the existence “vel non” of a lien is not before us.

Defendant next contends that plaintiff’s claim is barred by the prescription of one •year, provided for in Section 6 of Act 229 of 1916, which is the building statute in force at the time the work in question was performed. That section reads as follows:

“Section 6. Be it further enacted, etc., That any privilege provided for by this act may be enforced by a civil action in any court of competent jurisdiction in the parish in which the land is situated and such right of action shall prescribe within one year from the date of recordation of the privilege in the office of the recorder of mortgages, unless renewed in accordance with law.”

Defendant argues that the case of Gleissner vs. Hughes, 153 La. 133, 95 So. 529, is controlling here and is authority for the proposition that the prescription of one year is applicable.

That case involved solely the ranking of liens and mortgages and the question of the right to a personal judgment was not presented.

The section of the act to which we refer applies only to the right to a lien or privilege and in no way limits the time within which a claimant may file suit for a personal judgment against the owner.

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


text:
    No. 10,661
    Orleans
    ENGLEMANN v. AUDERER
    (March 18, 1929. Opinion and Decree.)
    A. R. Martinez, of New Orleans, attorney for plaintiff, appellee.
    J. H. Weiner, of New Orleans, attorney for defendant, appellant.
   JANVIER, J.

Auderer employed Englemann as real estate agent to sell a certain piece of property belonging to him. The contract provided that Englemann should have a fixed time within which to sell the property, but that if within three months after the termination of his contract, it was sold to a purchaser with whom, during the existence of the contract, Englemann had been negotiating, the commission stipulated for in the contract would be paid to Englemann.

Within three months after the expiration of the contract the property was sold by Auderer to Vic. A. Anseman. The evidence shows conclusively that during the existence of the contract Englemann had been negotiating with Anseman, in the hope of selling Anseman the property.

These negotiations had not been extensive, but there can be no doubt that Anseman was anxious to buy the property while it was listed with Englemann and that during that time, he had had conversation with Englemann about it. Mr. Anseman testified as follows:

By Mr.'Martinez:

“Q. Is it not a fact that you made an offer of $7,500.00 to Mr. Engleman?
“A. I think over telephone I made an offer of $7,500.00 and that was the end of it.
“Q. You only had one telephone^ conversation?
“A. Yes, one, may be two, but my negotions with Mr. Englemann were very limited.”

It is quite evident from the testimony that Englemann had little, if anything to do with the actual sale to Anseman, and that for this reason the enforcement of the contract works a hardship, on Auderer, but the mere fact that a contract works a hardship upon one of the parties does not authorize us to set it aside.

As the trial judge said in his reasons for judgment:

“Contracts not prohibited by law, entered. into meaningly, constitute the law between the parties—the law made by themselves and they are as much bound by their private laws as they are by the laws passed by Congress of the United States or the Legislature of the State of Louisiana.
“I know of no prohibition against the making of such a contract as the one sued on in this case. The parties were capable o.f consenting, did consent and the object of the contract being lawful, it is a .perfectly good private law between the parties, and, however unwise, or, however foolish a man may be to enter into such a contract, the Courts do not sit to relieve men of the results of their folly, but sit to enforce private as well as public laws.”

It was argued that the contract in question was made in accordance with the rules of the Multiple Listing. System and that the rules of that system were, therefore written into the contract and formed a part of it.

This is true, but we do not see that the obligation voluntarily assumed by defendant is affected thereby. The rules of the Multiple Listing System simply provide for a listing agent and a selling agent and for a division of the commission between the two. That is to say, that an owner lists his property with a listing agent. If a selling agent produces the purchaser, the commission is divided between the agent with whom it was listed and the agent who produced the purchaser. In this case, however, the owner listed his property with two selling agents, he had previously listed it with the plaintiff and while he was still under contract with plaintiff so far as Mr. Anseman was concerned, he listed it with another firm of real estate agents. Having done so he made himself liable for both commissions.

Under the contract which Auderer made with Englemann, it was stipulated that in the event suit should become necessary to collect, the commission, Auderer would pay attorney’s fees, which were in the contract fixed at 25% of the amount due. Suit has become necessary and the attorney’s fees are therefore due by Auderer.

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


author: PER CURIAM.

text:
    No. 10,078
    Orleans
    MELLON, DIRECTOR GENERAL OF RAILROADS, v. THE J. M. BURGUIERES CO., LTD., ET AL.
    (March 18, 1929. Opinion and Decree.)

      Denegre, Leovy and Cliaffe, of New Orleans, attorneys for plaintiff, appellant.
    Milling, Godchaux, Saal and Milling, of New Orleans, attorneys for defendant, appellee.
   PER CURIAM.

BY THE COURT. This is a suit for the collection of a balance on demurrage charges claimed to be due for the use of railroad equipment.

The defendant denied that it owed the demurrage and on reconvention asked for the return of $345.05 demurrage which it had paid under protest.

The matter went to the Supreme Court of Louisiana and that Court held that defendant company was not liable for the demurrage charges and remanded the case to this Court, so that we might investigate the record and determine whether there was sufficient evidence to order the return of $345.05, alleged to have been paid under protest. (See Mellon, Director General of Railroads, vs. J. M. Burguieres, Co., Ltd., et al., 120 So. 15.)

We have carefully -investigated the record on this point and are of the opinion that the evidence amply sustains the allegations that this amount was paid and that the payment was made under protest.

In view of the decree of the Supreme Court, it is, therefore, ordered, adjudged and decreed that there now be judgment in favor of plaintiff in reconvention and against Andrew W. Mellon, Director General of Railroads, as agent of the United States, in the sum of $345.05, with interest thereon at five per cent, from June 7, 1920, until paid and for all costs.


author: LECHE, J.

text:
    No. 404
    Firs.t Circuit
    SCHOULTZ ET AL. v. KELLER
    (February 13, 1929. Opinion and Decree.)

      Hiddleston Kenner, of New Orleans, attorney for plaintiff, appellant.
    Victor A. Planche, of Covington, attorney for defendant, appellee.
   LECHE, J.

Plaintiffs allege that they are the sole surviving heirs of Paul Small-wood and, as such, they sue to he recognized as owners of the South half of the Southeast quarter of Section 8 in Township 9, South of Range 13. East, containing eighty acres.

They allege in their original petition that defendant is also claiming title to the same land; that neither are they, nor is defendant in possession, and they base their action on Act 38, page 38 of 1908. Defendant Keller, who alone was originally sued, interposed several defenses. On the trial of the case, it was shown by plaintiffs’ own witnesses that Keller was actually in possession and that he, and also other parties are claiming ownership of the property in dispute. On appeal to this Court, the action in the opinion of the Court, was held to be of petitory character and the case was remanded to enable plaintiffs to make proper parties and to have them duly cited.

After the case was remanded to the District Court, plaintiffs filed a supplemental and amended petition, in which they prayed for citation on Auguste J. Planche, Sr., and the heirs of his deceased wife, as being the other persons who claimed ownership of the property, and the decree of this Court was thereby apparently complied with.

All the defendants then excepted to plaintiffs’ original and . supplemental petitions on the ground that the causes of action therein set forth are inconsistent and that plaintiffs should be ordered to elect, whether they will proceed, under Act 38, page 38 of 1908, or according to Articles 43 et seq. of the Code of Practice, fixing the manner in which petitory actions should be conducted.

Plaintiffs having failed to make such election, the trial judge after due hearing, dismissed the suit and from that judgment plaintiffs prosecute the present appeal.

The character of an action at law, is to be determined by the prayer of the petition. Lagay vs. Chieusse, 5 Rob. 132; Edwards vs. Ballard, 20 La. Ann. 169; Ashbey vs. Ashbey, 41 La. Ann. 102, 5 So. 539;. Maille vs. I. C. Rd. Co., 121 La. 360, 46 So. 355. From this principle which is now firmly imbedded in our law, it is obvious that the character of an action is not to be determined by what the parties choose to call it, for their opinion is merely a conclusion of law, but it must be determined from the pleadings themselves.

When this case was first submitted to us, plaintiffs alleged that neither were they, nor was defendant Keller in possession of the property and that allegation, read in connection with the prayer of their petition, fixed the action as one brought under the statute of 1908. Upon that theory the case was argued and submitted. The proof showed that Keller was actually in possession, whether as sole owner, for himself, or for others, was no.t-decided or determined by our judgment and decree. But we werq convinced that plaintiffs’ allegation that defendant was not in possession, was not sustained, for the proof clearly showed the contrary, and that proof was from plaintiffs’ own witnesses. We might then have dismissed plaintiffs’ suit, but to avoid a multiplicity of suits, we remanded the case in order that plaintiffs might make the other claimants to the property, parties defendants, in compliance with the manner of conducting petitory actions, as prescribed in the Code of Practice.

Urging their motion to elect, defendants contend that the degree of proof in an action under the statute of 1908, differs from that required in the ordinary petitory action and that the burden of proof under the’ statute of 1908 is not upon plaintiffs. They cite no authority for this statement and we know of none. This may be partly true to a certain extent, but in the present condition of the case, we have already found that Keller is in possession, whether for himself alone, for others, or for himself and the other defendants, makes no difference as to the character of the action. The petitory action must be brought against the one in possession and conversely the one in possession (for over a year and a day) can only be ousted through the petitory action. Plaintiffs, both in their original and supplemental petitions pray to be recognized as, and decreed owners of the property. We see no inconsistency in these petitions as to the relief for which they pray. The nature of defendant’s possession, as well as its extent and duration can only be passed upon after trial on the merits.

Believing that our learned brother of the District Court has erred in his ruling, it .is ordered that the judgment appealed from be avoided and reversed and this case remanded to be proceeded with according to law, defendants and appellees to pay costs of this appeal," and all other costs to be taxed on final determination of the case.


author: GLEASON, J.

text:
    No. 10,711
    Orleans
    DEMACK MOTORS, CO., INC., v. HALLICK
    (January 21, 1929. Opinion and Decree.)
    (February 25, 1929. Rehearing Refused.)
    McGiehan and Strauch, of New Orleans, attorneys for plaintiff, appellee.
    Jose A. Morales, of New Orleans, attorney for defendant, appellant.
   STATEMENT OF THE CASE.

GLEASON, J.

ad hoc. This is an action to recover from defendant, a married woman, a balance due on a promissory note signed by her, together with interest and attorney’s fees as stipulated in the act. The note was secured by a chattel mortgage on an automobile. Judgment was rendered in favor of plaintiff, and defendant appeals.

OPINION.

The defense in this case is founded on the theory that, notwithstanding the note was made by the defendant individually, and that the automobile was purchased in her name, as a matter of fact and to the knowledge of the plaintiff, she was purchasing the machine for the account of the community; that, therefore, it is a community obligation.

There is nothing whatever in the record to support the defense. On the contrary, the record shows conclusively that the' automobile was purchased for the defendant for her own account, and the note was signed by her in her individual capacity. The husband was no party to the transaction whatever. She and her separate estate are, therefore, bound.

The judgment is correct and is affirmed, appellant to pay all costs.


text:
    No. 380
    First Circuit
    GIROIR v. THE CELOTEX CO., INC.
    (January 9, 1929. Opinion and Decree.)
    (February 13, 1929. Rehearing Refused.)
    Brumby & Bauer, of Franklin, attorneys for plaintiff, appellee.
    E. V. Parham and Edward Rightor, of New Orleans, attorneys • for defendant, appellant.
   LECHE, J.

Defendant appeals from a judgment condemning it to pay compensation to plaintiff at the rate of fifteen 83/100 dollars per week during the period of disability not exceeding ninety weeks, commencing from September 6, 1926, subject to a credit of one hundred and forty-six 60/100 dollars, the deferred payments to bear legal interest from the date of their respective, maturities until paid.

Plaintiff while working for defendant was injured about the left hand which was jammed between some heavy machinery and a post, when the machinery tilted off its base. It became necessary to amputate the third- finger of plaintiff’s left hand and the other fingers of the same hand as well as his whole hand were bruised to such an extent that plaintiff is unable to grasp anything with that hand. Plaintiff sues for compensation at the rate of sixty-five per cent of twenty-five dollars per week for a period of three hundred weeks, but the trial court' limited his compensation as above set forth.

The defendant excepted to plaintiff’s demand on the ground that the District Court for the Parish of St. Mary had no jurisdiction ratione personae.

Defendant is a foreign corporation established under the laws of the State of Delaware and has its principal office for doing business in this State, in the town of Marrero, Parish of Jefferson. Plaintiff was working in the employ, of defendant, at Louisa, in the Parish of St. Mary. Defendant also had an office at Louisa. Plaintiff was employed by an agent of defendant in the Louisa office and received all his instructions as to his duties, and was paid wages for his labor, by that office. It is beyond question that defendant was doing business in the Parish of St. Mary and that it had an office in that parish. According to the provisions of Act 179, page 336 of 1918, Sec. 1, Par. 5, sub-par. “d”, where a corporation is engaged in business in mor'e than one parish, the venue of the suit shall at the option of the plaintiff, be in the parish where the cause of action arose. In this case it is conceded that defendant does business in more than one parish and that the cause of action arose in the Parish of St. Mary, and it therefore follows that the District Court for the Parish of St. Mary is vested with jurisdiction. Defendant contends however that the cited section of the Act of 1918 only applies to causes of action resulting from a trespass or an offense' or quasi offense. The first part of the section seems so to indicate, but the second part specifically says that where the cause of action results from any other cause, the venue of the action shall be in the parish where is or was located the particular office which has supervision of the transaction from which the cause of action arose, or at the domicile of the corporation at the option of 'plaintiff. This seems adversely decisive of the contention of defendant.

Again, defendant contends that Act 179 of 1918, has no application to suits for compensation under the Employers’ Liability Act and cites as authority the case of Burson vs. Ohio Oil Co., 6 La. App. 739. But that decision seems to be in direct conflict with the case of Jenkins vs. Salmen Brick & Lumber Co., 148 La. 30, 88 So. 601. We must perforce be guided by the latter case, where it is specifically held that Act 267 of 1914, an act fixing the venue for actions against corporations, applies to suits under the Workmen’s Compensation law.

The Employers’ Liability Act, Section 18, paragraph 1, fixes the venue in compensation cases, before the judge of the Court which would have jurisdiction in a civil case. It is apparent that the District Judge of the Parish of St. Mary, would, according to Section 1 of Act 179, page 336 of 1918, have jurisdiction of a civil case against defendant, and therefore that he has jurisdiction over defendant in the present suit for compensation.

Defendant’s exception to the Court’s jurisdiction was properly overruled.

On the merits of plaintiff’s demand, the only controverted questions are the extent of plaintiff’s disability occasioned by the accident, and the number of weeks for which he should be allowed compensation. There is no dispute as to the rate of compensation.

It appears conclusively from the evidence that the third finger of plaintiff’s left hand had to be, and was actually amputated, that the little finger and the second finger of the same hand had gotten so stiff that they could not be bent at the joints, and that plaintiff had partially lost the use of his left hand for the purpose of grasping or holding any object. There is some expert medical testimony to the effect that plaintiff was afflicted with some form of rheumatism or arthritis which in addition to .non-use, may have caused the stiffness of these fingers. But it is nevertheless true that up to the time of the accident, plaintiff had enjoyed the unobstructed use of his left hand and all its fingers. It may be that plaintiff’s physical condition contributed to the stiffness of his fingers and that their non-use may in part account for their condition, but in either event, the proximate cause of plaintiff’s disability undoubtedly resulted from the accident. Behan vs. John B. Honor Co., 143 La. 348, 78 So. 589, L. R. A. 1918F, 862.

In view of paragraphs 5 and 16 of subsection (d), of Section 8 of Act 85, page 110 of 1926 the trial judge fixed plaintiff’s compensation at three-fifths of the total loss of his hand, and allowed compensation for ninety weeks. We believe that his finding is in accordance with the spirit and letter of the compensation law, and for this reason the judgment appealed from should be affirmed, and it is hereby so ordered.


author: MOUTON, J.

text:
    No. 410
    First Circuit
    EFFERSON v. BOURN
    (February 13, 1929. Opinion and Decree.)
    R. M. MeGehee, of Hammond, attorney for plaintiff, appellant.
    Rownd & Warner, of Hammond, attorneys for defendant, appellee.
   MOUTON, J.

Plaintiff obtained the issuance of executory process on a mortgage note for twelve hundred dollars ($1200.00) of defendant under which his property was seized. Defendant took out a rule against plaintiff for a preliminary injunction to arrest the sale. His contention is that plaintiff agreed to accept the amount in principal, and interest on the note in full payment before placing it in the hands of the attorney for collection. He claims that the sum so tendered by him should be accepted in settlement and independently of the attorney’s fees for which the note provides in case of suit.

The Court decreed that upon deposit of the amount so tendered in the registry of the Court, the injunction issue prohibiting further proceedings towards the sale of the property.

The proof shows that on September 4, 1928, a few days after the maturity of the note, plaintiff and defendant agreed to meet in Hammond, on Tuesday the next day, for. the purpose of making a settlement of the note.

Ben Lockhart was to advance the money to defendant to pay the note in principal and interest. He had a certificate from the bank on which he expected to raise the funds, but was required to have it signed by his wife before he could get the- amount represented by the certificate. He says, and the preponderance of the evidence shows, that he left Hammond at about 9:00 o’clock a. m. to go to Holden to have his wife sign, and that plaintiff agreed to await his return for the payment of the note, as it had been understood.

In about two hours, Lockhart was back in Hammond from Holden, but in the meantime plaintiff, claiming he was sick, had placed the note in . the hands of an attorney for collection. Defendant tendered the amount of the note in principal and interest as had been agreed, but the attorney refused to accept the offer, contending that he was entitled to attorney’s fees. The proof shows that plaintiff had agreed to accept the amount so tendered in full payment of the note.

' Counsel for plaintiff and defendant have not favored us with briefs in this case, but we have, however, gone carefully over the evidence, and find no error in the judgment below which decreed the issuance of the writ upon compliance with its order requiring the deposit mentioned in the judgment.


author: REYNOLDS, J.

text:
    No. 3396
    Second Circuit
    HAMMONS v. SOUTHERN INTERNATIONAL PAPER CO.
    (December 19, 1928. Opinion and Decree.)
    (March 12, 1929. Rehearing Refused.)

      Smith and McGregor, of Monroe, attorneys for plaintiff, appellant.
    Madison and Madison, of Bastrop, attorneys for defendant, appellee.
   STATEMENT OF THE CASE.

REYNOLDS, J.

This is a suit under the Workmen’s Compensation Act. Plaintiff alleges that while employed by defendant at a weekly wage of $30.00 his right arm was accidentally broken in the course of his employment and that in consequence he is permanently partially disabled and is now only able to earn $18.00 a week, and he prays for judgment for compensation of 65% of the difference between his present earning capacity and the wages he was able to earn at the time of the injury, or $7.80 a week, for 300 weeks, with legal interest on each weekly payment from its maturity until paid, beginning February 6, 1927, less a credit of $244.80 already paid.

Defendant admitted the employment and accidental injury and denied that plaintiff was partially disabled or that his ability to earn wages had been diminished by the injury and alleged that he had fully recovered from his injury and was able to perform as much labor and earn as much money as at the time of the injury.

On these issues the case was tried and there was judgment in favor of the plaintiff and against the defendant for 65% of $6.00 a week during a period of 200 weeks, beginning September 28, 1926, less $288.80 already paid by defendant to plaintiff.

From this judgment the plaintiff appealed.

OPINION.

The facts proved and admitted show that plaintiff suffered an injury to his right arm which left his elbow impaired, and the only serious contention for the court to decide is the amount of compensation he is entitled to.

At the time of the injury he was earning $30.00 a week, and if he had lost the arm he would have been entitled to 65% of this amount during 200 weeks.

Act No. 85 of 1926, section 8, subsection 1, clause (d), paragraph 6.

But his injury only resulted in permanent partial loss of use of function of the arm.

Doctor George W. Wright testified:

“Q. You were the attending physician in the case of Marcus Hammons, injured employee, of the International Paper Company?
“A. Yes, sir.
“Q. Have you examined Mr. Hammons recently?
“A. Yes, sir.
“Q. What is your opinion as to the percentage of disability of that arm in its present condition?
“A. Well, considering the fact that the whole arm is taken as 100 per cent—33% in the shoulder, 33% in the elbow, and 33% in the wrist, it is only possible for him to be injured in one-third of his arm capacity; and of the possible 160 degrees of function in the elbow, he has one-third of it well present, 35 degrees.
“Q. Working it out on that basis, what would the real disability in the arm be?
“A. Well, it would be about two-thirds of one-third; between seventeen and twenty per cent.
“Q. Do you think that twenty per cent would be tbe maximum disability to his arm?
“A. Yes, sir.
“Q. And the minimum disability would be somewhere around seventeen per cent?
“A. Between fifteen and, seventeen per cent.
“Q. What is your opinion as to the possibility of any increase or decrease in that present disability?
“A. I think his present disability will become materially minimized as a result of usage; just how long it will take to do that, I do not know, but I do know that he will have more flexation in that elbow than he has now, by usage of it.”

No other medical expert testified in the ease.

Act No. 85 of 1926, section 8, subsection 1, clause (d), paragraph 15, provides:

“In all cases involving a permanent partial loss of the use of function of the member mentioned hereinabove (arm) compensation shall bear such proportion to the amount named herein for the loss of such member as the disability to such member bears to the total loss of the member * *

And paragraph 6, of the same section, subsection and clause, provides:

“For the loss of an arm, sixty-five per centum of wages during two hundred weeks.’’

We are of the opinion of the District Judge, that plaintiff has only lost twenty per cent of the use of function of his arm and that he was only entitled to judgment for twenty per centum of sixty-five per centum of the wages he was earning during a period of two hundred weeks. He was earning $30.00 a week and twenty per centum of sixty-five per centum of that is $6.00. The judgment appealed from allowed him this amount, less $288.88 that, admittedly, he had been paid, and it is therefore right.

Finding no error in the judgment, it is ordered, adjudged, and decreed that it be affirmed.


author: •REYNOLDS, J.

text:
    No. 3301
    Second Circuit
    WHITE v. HILL
    (November 8, 1928. Opinion and Decree.)
    (December 19, 1928. Rehearing Refused.)
    (February 25, 1929. Writ of Certiorari Granted by Supreme Court.)
    Foster, Hall and Smith, of Shreveport, attorneys for plaintiff, appellant.
    John B. Files; Mabry and Carstarphen, of Shreveport, attorneys for defendant, appellee.
   STATEMENT OP THE CASE.

•REYNOLDS, J.

Plaintiff, Robert W. White, commenced an action in the District Court of Caddo Parish, Louisiana, against defendant, James Hill, to obtain a personal judgment against him upon two certain promissory notes dated April 8, 1926, both signed by defendant and drawn payable to maker’s own order and by him endorsed in blank, both bearing interest at the rate of 8% per annum from their date until paid and stipulating payment of 10% on the amount sued for,- as attorney’s fees, in the event of' suit for the collection thereof, one of the notes being for the sum of $600.00 and payable one year after its date and the other for the sum of $595.00 and payable two years after its date, and both paraphed “Ne Varietur” as of their date to identify them with an act of mortgage of even date therewith on one-half of lot number 29 lying next to and adjoining lot number 28, all in TAL number 15, city of Shreveport, Caddo parish, Louisiana, recorded April 8, 1926, in book number 139 at page 660 of the mortgage records of Caddo parish, securing the payment of the notes, and for recognition of his mortgage on and ordering the property sold for the satisfaction of the judgment to be rendered.

The notes and a certified copy of the mortgage were attached to and made a part of the petition.

The defendant was duly cited and served and the case allotted to the division of the court presided over by Judge T. F. Bell.

On June 4, 1927, the defendant filed a prayer for oyer of the notes and mortgage.

On June 8, 1927, judgment by default was entered in favor of the plaintiff and against the defendant.

On June 11, 1927, the judgment by default was confirmed and formal judgment in fa/vor of the plaintiff and against the defendant as prayed for by the plaintiff was rendered and signed.

On June 14, 1927, the defendant filed a motion to vacate the judgment by default and the judgment of confirmation, on the ground that they were prematurely rendered for the reason that at the time of their rendition there was pending and undisposed of a prayer for oyer.

On June 20, 1927, a writ of fi. fa. was issued upon the judgment and placed in the hands of the sheriff, who,' on the same day, seized and took into his possession* the property described in the judgment.

The minutes show that on June 25, 1927, defendant’s motion to- vacate the judgments as premature was overruled; but we do not find in the record any signed formal judgment'to that effect.

On July 9, 1927, the plaintiff filed a motion to vacate both judgments as prematurely rendered, on the same grounds as set up by defendant in his motion.

The minutes further recite that on July 11, 1927, this motion was granted and the judgments vacated.

On July 13, 1927, a new judgment by default in favor of the plaintiff and against the defendant was entered.

On October 13, 1927, this judgment by default was confirmed and a new judgment in favor of the plaintiff and against the defendant as prayed, for by the plaintiff was rendered and signed by Judge J. H. Stephens.

On October 14, 1927, the sheriff returned the writ óf fi. fa. into court with the following endorsement thereon:

“Received the within writ of fieri facias on the 20 day of June, 1927, and on the 21 day of June, 1927, executed the same by seizing and taking into my official possession the following described property, to wit: one half of lot 29 lying next to and adjoining lot 28 in T A L, 15, city of Shreveport, Caddo parish, La. together with all buildings and improvements thereon.
“E. E. Marvell, “Deputy Sheriff.
“I herewith return this writ to Clerk’s office, the seventy days having expired, retaining the above described property under seizure by virtue of this writ.
“Oct. 14, 1927.
“M. Martin,
“Deputy.”

We do not find in the record any further return by the sheriff of what h# did in further execution of the writ, but apparently he sold the seized property on December 3, 1927, to W. A. Mabry' for the price of 11650.00 and that Mabry refused to pay the price and take title, for on December 12, 1927, Mabry was ordered by Judge Stephens to show cause on December 14, 1927, why he should not comply with his bid.

The minutes further sjiow that on February 4, 1928, the rule was recalled and Mabry dismissed, but we do not find any signed formal judgment to that effect in the record.

On March 14, 1928, the plaintiff was granted an order of devolutive appeal to this court from—

“the judgments rendered herein on June 11th, 1927, October 13th, 1927, and the judgment rendered on rule herein February 4th, 1928.”

The defendant has filed in this court a plea of estoppel and of acquiescence in the judgment appealed from by the plaintiff, and the plaintiff has filed in this court a motion to remand the case to the District Court.

OPINION.

Plaintiff seeks to appeal from three judgments, two of them in his own favor rendered on his own petition and awarding him all the relief prayed for by him, and no more, and the third against him.

As to the two judgments in his favor, the law does not permit an appeal from them for the reason, as stated in the case of State ex rel. John T. Moore Planting Co., Ltd., vs. Howell, Judge, et al., 139 La. 336, 71 So. 539:

“ <* * * the party against whom judgment had been rendered cannot appeal: (1) If such judgment have been confessed by him, or if he have acquiesced in the same, by executing it voluntarily * * *.’ C. P. Art. 567.
“And, a fortiori, a party in whose favor a judgment has been rendered, in strict accordance with his own prayer, cannot appeal, since a prayer that a judgment be rendered is something more than even a confession or an acquiescence and operates, if that be possible, as a more complete estoppel to deny the correctness of the judgment so obtained than does a confession, to deny the correctness of the judgment confessed, or an acquiescence, to deny the correctness of the judgment acquiesced in.”

Appellant does not contend that the judgments did not give him all the relief prayed for or that they gave him relief not prayed for but only that they were prematurely rendered.

Appellant cites the case of Marsalis vs. Rent, 2 La. App. 515, but that case is distinguishable from this. The appellant there had prayed for a personal judgment against the appellee for a debt with recognition of a mortgage on certain land given to secure its payment. The trial court gave him judgment as prayed for, except that the land it recognized his mortgage on was not that described in his petition or the mortgage hut different land; and what he asked this court to do and what this court did was to amend the judgment so as to make it recognize his mortgage on the land described in his petition and the mortgage instead of on land not described in either..

And as to the judgment against appellant, the appellee was not cited and has not appeared in this court and therefore we are without jurisdiction ratione personae of the appeal.

Code of Practice, Article 581.

Cockerham vs. Bosley, 52 La. Ann. 65, 26 So. 814.

We do not find in the record any formal signed judgment recalling the rule and dismissing the defendant in rule. The only parties to that proceeding were the appellant here and Mabry, the defendant in rule and the judgment of the court was definitive quo ad the latter on all nuestions presented by the rule. True, the minutes show that the rule was recalled and the defendant in rule - dismissed, but, in our opinion, this was not sufficient.

“The signature of the judge to any final decree rendered by him, is absolutely necessary to constitute it a judgment. Mere entries of judgment on the minutes of the court, unsigned by the judge of the court, are not judgments.”

State ex rel. Hartwell vs. Jumel, 30 La. Ann. 421.

Counsel for appellant, in brief, declares that—

“The whole matter is gotten to the point where plaintiff cannot extricate himself from the difficulties of two judgments apparently in his favor without the relief of this court.”

There has not been any direct attack on the validity of both or either of the judgments in appellant’s favor and their validity vel non has never been passed upon by the District Court, and until this has been done this court is without jurisdiction to say whether they are valid or invalid, as we have no original jurisdiction, except in certain instances, to which the one before us does not belong.

For the reasons assigned the appeal is dismissed.

WEBB, J., concurs.


author: ELLIOTT, J. M. LECHE, J.

text:
    No. 7941
    First Circuit
    MOSS v. LEVIN ET AL.
    (January 9, 1929. Opinion and Decree.)
    (February 13, 1929. Rehearing Refused.)

      Weeks & Weeks, of New Iberia, attorneys for plaintiff, appellee.
    Mouton & Debaillon, of Lafayette, attorneys for defendants, appellants.
   ELLIOTT, J. M.

Porter Moss, a brick mason by occupation, lost tbe fourth and fifth fingers on his right, and the fifth finger on his left hand, while working for Nathan Levin in the construction of the new courthouse building in the Parish of Lafayette. These fingers were practically mashed off. Amputation near the hand was necessary and performed immediately following the accident. The fourth finger on his left hand was so badly injured in the accident that it remains stiff, greatly weakened and is of no use. The sinews, tendons and muscles of the remaining fingers on his right hand were also badly injured and weakened. The forefinger on each hand, deprived of the co-ordination of the other fingers, have largely lost their power and utility for work and are permanently weakened and impaired. The amputation of three fingers near the hand, useless condition of another and injury to, and weakening of the others, has resulted in a permanent loss of grip in both hands.

Plaintiff claims that said injuries have produced in him a permanent total disability to do work of any kind. He was receiving wages for his work at the time of his injury at the rate of $12.00 per day or $72.00 per week. He claims compensation at the rate of $20.00 per week for a period of 400 weeks. He alleges that American Employers Insurance Co. of Boston, Massachusetts, insured said Levin against liability on account of accident to his employees engaged in said work.

That said insurance policy constitutes a direct obligation on the part of said insurance company to him. That said insurance company is therefore liable' unto him for said compensation in solido with said Levin. That said Levin and said insurance company, by contract between them, have wrongfully stipulated to his prejudice, that no action shall be taken against said insurance company in favor of said Levin or other party, to recover for any loss for accident to an employee, unless brought after the claim cf loss has been fixed, either by agreement between the parties, with the written consent of said insurance company, or by final judgment against the employer. That said agreement is in violation of the laws of this state and of Act 20 of 1914 as amended.

That said insurance company has assumed full charge of all negotiations, preventing said Levin from making an agreement with him, and has, itself, refused to agree to or consent to any agreement to pay him the compensation to which the law entitles him.

That he has made demand for payment on said Levin and was refused. That he made like demand on said insurance company before filing suit, and said insurance company, declaring that he was entitled to sixty weeks compensation at $20.00 per week, refused and disputed his demand for compensation at the rate of $20.00 per week for 400 weeks and declined to pay same.

That said Levin is a resident of the State of Texas, the laws of which state grant no such right to plaintiff. That said Levin will leave the State of Louisiana within the next few months and defeat his right and deprive him of the protection afforded by the laws of this state. That payments have been made to him at the rate of $20.00 per week from the time of said accident; in all, 25 weeks at the time of suit. That said payments have been made only at the pleasure of the insurance company. His original and amended and supplemental petitions contain other statements, but the issues do not re(juire that they be further mentioned.

The defendants, Levin and said insurance company, appeared separately and excepted to plaintiff’s demand, setting forth in their exceptions that he had failed to' allege that he “is not being and has not been paid, the maximum per centum of wages to which he is entitled,” under the law; but admits having been paid such, from the time of injury to the time of suit.

That plaintiff failed to allege that the amount to be paid him as compensation had been fixed or determined by an award or by an agreement with his employer. That his petitions therefore set forth no right nor cause of action.

The exception of prematurity was overruled; that of no right nor cause of action was réfei’red to the merits.

The defendants under reserve of their exception's, then answered separately, admitting plaintiff’s employment; that he was receiving wages as stated, and had received injuries while at work; but they denied that same were as extensive and great as he claimed. They deny his averment that the. insurance policy issued to Levin constituted a direct obligation to plaintiff. They admit refusing to come to any agreement with him as to the amount of insurance and the period during which it was to be paid, but aver that he had been regularly paid $20.00 per week, the maximum compensation to which he is entitled since the accident, and that they have advised him of their liability to do so for a period of 60 weeks, counting from the date of his injury. That plaintiff having been paid as aforesaid, has no right of action against them under the law to recover judgment fixing the amount of his compensation for a definite period of time.

Judgment was rendered in favor of the plaintiff as prayed for. *

Defendants have . appealed.

The policy of insurance was not offered in evidence and is not in the record. But as for defendants’ contention that it does not constitute a direct obligation in favor of the plaintiff, we will assume, in the absence of any denial of the fact, that ’it is conditioned as the law directs on that subject.

The Sections 23 and 25 of Act 20 of 1914 were recently construed in that respect by the Supreme Court in the case of Wyatt vs. Finley et al., 9 La. Ap. 139, 118 So. 874, on a writ of review to this court, and it was held that the policy in that case constituted a direct obligation in favor of the employee. In the case cited the employer was absent from the state, not a party to the suit, no agreement on the subject of compensation had been reached between the employer and employee and it was not shown that the employer was insolvent, etc.

In the present case we do not doubt the right of the plaintiff to claim compensation of his employer ■ and the insurer of his employer in solido, in the same suit. The suit, however, must be terminated on another ground.

Defendants’ contention that, as plaintiff is being paid the maximum compensation to which he is entitled, under the law governing the present case, Section 18 (amending Act 85 of 1926) 1(B) of the Employers’ Liability Act, no suit can be filed to have the amount of compensation and the period of time during which the payment is to he made, definitely fixed, as long as the maximum compensation claimed is being regularly paid, is the serious question in tbe case.

This Section reads:

“(A) That in case of a dispute over or failure to agree upon a claim for compensation between employer and employee, or the dependents of the employee, either party may present a verified complaint to the judge of the district court, which would have jurisdiction * * *; setting forth the names and residences of the parties and the facts relating to the employment at the time of the injury, the character and extent of the injury, the amount of wages being received at the time of the accident and injury, the knowledge of the employer or notice of the occurrence of the accident and injury, and such other facts as may be necessary and proper for the information of the said judge; and to give the other party sufficient information to enable him to intelligently answer and defend the complaint, and should state the matter or matters in dispute and the contention of the petitioner with reference thereto, including all facts which are in this Act, or in any subdivision thereafter, made conditions under which compensation may be granted.
“(B) Unless in the verified complaint above referred to, it is alleged (where the complaint is filed by the employee or his dependents) that the employee or the dependent is not being, or has not been paid, and that the employer has refused to pay, the maximum per centum of wages to which petitioner is entitled under the provisions of this Act, the presentation or filing of such complaint shall be premature and shall be dismissed; when such allegation is contained in such complaint and is denied by the employer at the time fixed for the hearing thereunder by the court, if it be shown that such allegations are without reasonable cause or reasonable foundation in fact, said complaint shall be dismissed and the question of whether or not such allegations of nonpayment are justified under the facts, shall be determined by the court before proceeding with the hearing of other issues involved.”

The plaintiff contends that defendants, having refused to enter into a written agreement with him as to' the maximum compensation to which he is entitled, and the period of time during which it is to run, so as to enable him to have it approved by the court, his right of action to have the maximum compensation to which he is 'entitled and the period of time during which it is to be paid, has accrued under Section 17 (amending Act 38 of 1918) and that the fact he is being paid the maximum weekly compensation to which he is entitled is no bar to the suit.

Section 17 provides:

“That the interested parties shall have the right to settle all matters of compensation between themselves. But all agreements of settlement shall be reduced to writing and shall be substantially in accord with the various provisions of this Act and shall be approved by the court.
“The agreement between employer and employee or his dependent, shall be ¡presented to the court upon joint petition of employer and employee or his dependent; which petition must be verified by both parties. The settlement so approved shall be immediately entered as the judgment of the court, and such judgment shall have the same force and effect and may be satisfied as other judgments of the same court.”

He cites in support of his action the construction placed on this section by the Supreme Court in Ford vs. Fortuna Oil Co., 151 La. 489, 91 So. 849, and Daniels vs. Shreveport Producing & Refining Co., 151 La. 800, 92 So. 341, also the case of Mitchell vs. Lock Moore & Co., Ltd., 1 La. App. 200.

We have concluded, but not without difficulty, that the law as it stands since the passage of Act 85 of 1926, by its terms prevents and intends to prevent suit to have the amount of compensation to which an employee is entitled and the period of time during which. it is to be paid, fixed by the court as long as the employee is receiving the maximum compensation to which he is entitled.

The Act 85 of 1926 amends and re-enacts the Title and Sections 2, 3, 6, 8, 18, 20, 23, 31 and 37 of the Employers’ Liability Act. Care was taken to make the law bring about the situation contended for by defendants, by various provisions in the amending law.

The intent of the Legislature on the subject is manifested by the language of paragraph (B). It is further shown by the provision made in paragraph (C) for taking depositions de bene esse. This paragraph provides that when any of said parties defem it necessary to take the testimony of any witnesses who might not be available in the event a dispute ever arose under this Act, depositions shall be so taken and filed with the clerk of court, having jurisdiction, for use in evidence in any future proceeding, just 'as though a suit had been filed before the depositions were so taken. Such a provision would not have been incorporated in the law if the testimony of witnesses who might not be available when needed, was not in the mind of the Legislature at the time.

The Code of Practice Art. 440 (amending Act 112' of 1914) already provided for exigencies of the kind. But the provision made in paragraph (C) was incorporated in the Act because of the provision made in paragraph (B). The intent to stay suit is also indicated by the amendment of Section1 31 (amending Act 85 of 1926) so as to read: “Where, however, such ¡payments have been made in any case, said limitation, shall not take effect until the expiration of one year from the time of making the last payment.” This change in the law and reference to “such payments have been made in any case,” seems intended to harmonize with the provisions that no suit can be filed as long as the defendant or his insurer continued to pay the maximum compensation claimed by the injured party.

Section 31 (amending Act 85 of 1926) refers to Section 17 (amending Act 38 of 1918) and to the agreement provided for therein, saying with reference thereto: “* * * unless within one. year after the accident or death, * * * the parties shall have agreed upon the payments to be made under this Act, or unless within one year after the accident proceedings have been begun, as provided in Sections 17 and 18 of this Act.”

It is evident from this provision that the agreement provided for in Section 17 was not to be changed in terms, but postponed and to be effective, only after the employer or his insurer has ceased making maximum payments. That is necessary, else the latest law would be controlled by the older. The existing law must give way sufficient to enable the latest law to be effective. It must be regarded as amended by implication to that extent. C. C. Art. 12.

The decisions of the Supreme Court and of this court cited by plaintiff were rendered previous to the adoption of Act 85 of 1926. These decisions cannot give Section 17 (amending Act 38 of 1918) a fixed meaning against the result of a subsequent Act of the Legislature.

We therefore find that as plaintiff does not and cannot allege that “he is not being paid the maximum per centum of wage to which he is entitled,” that under Act 20 of 1914, Section 18 (amending Act 85 of 1926), 1(B), the presentation or the filing of his petition was premature and same must therefore be dismissed, unless the defendants have renounced the benefit of this law.

Paragraph (B) was established by the Legislature in favor of employers and their insurers. It was in force on October 27, 1927, when the' defendant insurance company wrote plaintiff’s attorneys advising them “* * * according to law your client is entitled to 60 weeks of compensation, which amount we are prepared to pay. If you do not agree with our interpretation of the law, it will be necessary for you to submit the matter to the court for decision.”

In all cases in which it is not expressly or impliedly prohibited, parties can renounce what the law has established in their favor. C. C. Art. 11.

Giving effect to paragraph (B) and others on the same subject, the suit which the writer of the letter contemplated meeting, must be regarded as one which the law provides may be brought at the expiration of 60 weeks in case payments have ceased.

We have considered the rights protected by Section 6 of Article 1 of the Constitution of 1921; but we do not think the situation comes within the purview of this Article.

The fact that Section 22 (amending Act 247 of 1920) of Act 20 of 1914, has been held unconstitutional has been considered. Zehner vs. Mader, 153 La. 1042, 97 So. 34. Also the difficulty it will be for a disabled employee, perhaps penniless, to hire counsel and take depositions de bene esse, against the day when he may stand in need of the testimony; uncertain as to whether it may be needed or not and if so, when. Also the situations suggested by counsel for the plaintiff. But these matters are for the Legislature.

Having reached the conclusion that the plaintiff had no right of action at the time of filing suit, there" Is nothing to be done except to dismiss the case. The judgment appealed from is erroneous, contrary to the law, and must therefore be annulled and set aside.

For the reasons stated, the judgment appealed from herein is annulled, avoided and set aside, and plaintiff’s suit is dismissed at his cost; reserving to him the right to bring another suit under the law, Act 20 of 1914, as amended, for the purpose of recovering from said Nathan Levin, and said American Employers Insurance Co. of Boston, Massachusetts, compensation in solido, for the maximum sum and for the period of time claimed in his petition, in case the weekly payments made at the time of suit, shall cease to be made. Plaintiff and appellee to pay the costs in both courts.

ON APPLICATION FOR REHEARING

LECHE, J.

Plaintiff filed this suit for compensation for 400 hundred weeks at the rate of twenty dollars per week, alleging various facts which are set forth more in detail in our original opinion, but which for the purpose of this discussion may be limited to the allegations that payments have been made to him at the rate of twenty dollars per week from the time of said accident, in all, twenty-five weeks at the time of suit, and that said payments have been made only at the pleasure of the insurance company. That said insurance company has declared that he was entitled to sixty weeks’ compensation at twenty dollars per week, refused or disputed his demand for compensation at the rate of twenty dollars (per week for 400 weeks, and that said defendants have refused to have an agreement liquidating the amount of compensation to be paid, and the term for the continuance of said payments; also the right to have such agreement considered and approved by the Court and reduced to judgment with recognition of the liens and privileges accorded to petitioner to secure payment of his said compensation.

Defendants interposed exceptions of no right and no cause of action which were eventually overruled by the District Court, and judgment rendered in favor of the plaintiff as prayed for. Prom a decision by this Court setting aside the judgment of the District Court appealed from, and' dismissing the plaintiff’s suit without prejudice .to any future rights that may accrue, plaintiff has filed an earnest application for a rehearing.

Section 17 of the Employers’ Liability Act as amended by Act 38 of 1918, p. 59, provides that the interested parties shall have the right to settle all matters between themselves upon complying with requirements of that section, and that settlements so approved by the Court shall immediately be entered as the judgment of the Court, having the same force and effect as other judgments. It is very evident that this provision is not mandatory, but is permissive and confers an optional right which may or may not be exercised by either of the parties.

Section 18 following, as amended by Act 247 of 1920, then provides that in case of a dispute over, or failure to agree on a claim for compensation, either party may present his verified complaint to the Judge, setting out various averments referred to in the Section.

It was under, the above quoted Sections that the decisions were rendered in the cases of Daniels vs. Shreveport Refining Corp., 151 La. 800, 92 So. 341, and in Vining vs. Lock Moore & Co., Ltd., 1 La. App. 200. In the latter case, this Court in line with the decision of the Supreme Court, held in effect, that when the employer has refused to submit to the provisions of Section 17, the employee is entitled to a judgment in Court fixing the compensation under Section 18, notwithstanding the fact that the amount of compensation has not been disputed.

Section 17, as amended, and as above set forth in substance, remains unchanged. The Legislature however, since the rendition of the above referred to decisions and prior to the cause of action under consideration, by Act 85 of 1926, page 121, has amended and re-enacted Section 18, so as to read as follows:

“(A) That in ease of a dispute, over or failure to agree upon a claim for compensation between the ’employer and employee or the dependents of the employee, either party may present a verified complaint to the Judge of the District Court which would have jurisdiction, setting forth the names and residences of the parties, and the facts relating to the employment at the time of the injury, the character and extent of the injury, the amount of wages being received at the time of the accident and injury, the knowledge of the employer or notice of the occurrence of the accident and injury, and such other facts as may be necessary and proper for the information of said Judge; and to give the other party sufficient information to enable him to intelligently answer and defend the complaint, and should state the matter or matters in dispute and the contention of the petitioner with reference thereto, including all facts which are in the Act, or in any subdivision thereafter, made conditions under which compensation may be granted.
“(B) Unless in the verified complaint above referred to, it is alleged (where the complaint is filed by the employee or his dependents) that the employee or the dependent is not being paid, or has not been paid, and that the employer has refused to pay the maximum per pentum of wages to which petitioner is entitled under the provision of this Act, the presentation or filing of such complaint shall be premature and shall be dismissed; when such allegation is contained in such complaint and is denied by the employer, at the time fixed for the hearing thereunder by the Court, if it be shown that such allegations are without reasonable cause or reasonable foundation in fact, said complaint shall be dismissed and the question of whether or not such allegations of non-payment are justified under the facts, shall be determined by the Court before proceeding with the hearing of* other issues involved.”

This last quoted provision amplifies and adds to Section 18 the requirement that the employee or his dependent shall specially allege that he or said dependent is not being', or has not been paid, and that the employer has refused to pay the maximum per centum of wages to which the petitioner is entitled under the Act.

It would seem that this provision was deliberately worded to avert the situation caused by the aforementioned decisions interpreting the Sections as they formerly existed, but if not, it is certainly too specific to sanction the institution of a suit, where it is alleged in effect that the maximum per centum ■ of wages have been and are being paid.

Plaintiff, in'order to circumvent this logical deduction, takes the position in his application for rehearing, as was done in original argument, that the words: “Maximum per centum of wages to which petitioner is entitled under the provisions of the Act,” have the same meaning as though they read: “Total compensation to which petitioner is entitled, etc.” This construction, however, is repugnant to the very phraseology of the provision referred to, for surely if the “maximum per centum of wages” means “total compensation,” the requirement of the allegation, “that the employee has not been paid,” when taken in conjunction with the other stipulations, is vain and meaningless. By reference to the schedule of compensation under the Act, however, it is made plain that “the ■ maximum per centum of wages” necessarily means the maximum percentage of weekly earnings at the time of the accident.

Plaintiff also urges that the interpretation placed on Section 18 as re-enacted, by this Court, eliminates Section 17; hut plaintiff in support of this position must necessarily assume that the provisions of Section 17 are compulsory, whereas they are expressly discretionary. Certainly there is no inconsistency in a provision that gives the right to an amicable settlement with the approval of the Court, and a later provision which gives the employee or his dependent the right to sue upon a showing that he or said dependent is not being paid, or has not been paid the maximum per centum of wages.

Lastly, plaintiff argues that the other provisions in the Act, namely, Subsection C of Section 18 and Section 31 as enacted by Act 85 of 1926, do not uphold the contention in our original opinion as supporting our interpretation of Section 18. Be that as it may. There is nothing contained in the above referred to provisions, or any of the other Sections re-enacted by Act 85 of 1926 repugnant to or in conflict with the express requirements of Subsection B of Section 18, and we must therefore interpret the law as we find it.

Rehearing refused.


author: MOUTON, J. ELLIOTT, J.

text:
    First Circuit
    No. 242
    GULLETT GIN CO. v. VARNADO GIN CO., R. D. FORNEA, OWNER
    (February 15, 1928. Opinion and Decree.)
    (March 7, 1928. Rehearing Granted.)
    (February 13, 1929. Opinion and Decree on Rehearing.)

      S. S. Reid, of Amite, attorney for plaintiff, appellant.
    Bascom D. Talley, of Bogalusa, attorney for defendants, appellees.
   MOUTON, J.

In July, 1926, plaintiff company sold to defendant a Double Box Press with automatic tramper, ram and other accessories for $1,819.00. A payment of $606.00 was made in cash, and for the balance of the purchase price $1,212.00, two promissory notes, each for $606.00 were executed in favor of plaintiff. On a mortgage given to secure the credit portion of the price, plaintiff took out executory proceedings to have the machinery seized and sold for the payment of the notes and the accrued interest.

The defendant company, through Robert D. Pornea, the owner, obtained the issuance of an injunction to arrest the sale. The injunction is grounded on allegations of fraud and misrepresentation by the agent of plaintiff company in making the sale, and because of redhibitory defects in the thing sold. Defendant company, plaintiff in injunction, asks the annulment of the sale, the avoidance of the two notes sued on, and for the recovery of the $626.00 cash payment made by it with interest from July 15, 1928. Judgment was rendered maintaining the injunction, cancelling the notes, but refusing the restoration to plaintiff of the $606.00 cash payment made on the day of sale. The court also in a companion suit against plaintiff in injunction, rendered judgment rejecting the demand of the Gullett Gin Company brought on an open account for $385.71, for gaskets,. packings, etc. The main contest between the parties depends on a proper solution of the issues involved in the injunction suit, which, by consent, was tried on- the demand on the open account, with the understanding that a separate judgment would -be rendered in each case.

Plaintiff in injunction, it is shown, prior to its purchase of the machinery from the Gullett Gin Company, was using a screw-press for the baling of cotton at its gin. With a view of increasing the number of bales of cotton it could put out daily, a Double Box Press with automatic tramper, ram, etc., was - bought by plaintiff in injunction from the Gullett Gin Company which was represented in the deal by George W. Hall a traveling salesman.

The machinery was installed not long after the sale and for a short while seems to have given satisfaction. This satisfactory operation was, however, of very short duration. In a few days, the Varnado Gin Company, purchaser, experienced serious trouble with the ram which was essential to the proper functioning of this Double Box Press. Men of sufficient experience and skill tried in vain at the Varnado Gin, where the machinery had been installed, to get satisfactory results in baling the cotton. The bales came out wedged-shaped, larger at one end than at the other, and the operation of the machine was so inefficient that a continuation of baling the cotton became practically impossible. The Gullett Gin 'Company was called up at Amite where it has its domicile, and was told of the trouble that the Varnado Company were experiencing in trying to operate the machinery with the ram that had been originally installed on it. The Gullett Gin Company sent a mechanic to remedy the trouble; the original ram was found defective and a new one was set in, with which the new press was again operated, but' without better results. The fact is, that the second ram was less satisfactory than the first, and no satisfaction could be obtained from this Double Box Press.

The vice or defect in the thing sold rendered it so absolutely useless, or its use at least so inconvenient and imperfect, that it must be supposed the Varnado Gin Company would not have bought it had it known of the vice. That being the situation, plaintiff in injunction under the provisions of Article 2520 C. C. would be entitled to an avoidance of the sale.

Counsel for the Gullett Gin Company contends that the Varnado Company cannot obtain relief under the provisions of that Article, because the implied warranty which ordinarily exists in all sales, was restricted or modified in the special warranty which formed part of the contract in the instant ' case. ■ This special warranty on which counsel relies, reads in part as follows:

“Said machinery is warranted to be of good material and to perform well, if properly operated, by competent persons.”

It also provides that in case the purchaser be unable to get the machine to operate well, “telegraphic” or “written notice” must be given to the Gullett Gin Company. Counsel’s first contention in reference to this special warranty is that the Varnado Company failed to give it either the written or telegraphic notice as therein provided. The proof is that the complaint about the inefficiency of the machine was given by telephonic communication, and shows that the Gullett Gin Company, upon receiving this message, sent a mechanic to remedy the trouble, and, as a matter of fact, thereafter sent a new ram for the operation of the machine. If the Gullett Gin Company desired to stand on the stipulation that a message, either written or by telegram was a prerequisite to any assistance for tho remedying of any fault or deficiency in the machine, it could have ignored the message sent it by telephone. In sending a mechanic to remedy the trouble, the written or telegraphic communication provided for in the warranty was ignored and waived. It was too late to raise such an issue after the Gullett Company had attempted to correct whatever caused the failure of the Varnado Company to successfully operate the machine.

Counsel for the Gullett Company contends that it fulfilled its warranty by effectively replacing the parts which Fornea, owner of the Varnado Company, claimed were defective. It is true that the Gullett Company attempted to replace these parts, but it is equally certain that it was not successful in remedying these defects. In that respect it failed to live up to the obligations of its warranty, and the consequence was that the machinery failed to “perform well” as was guaranteed in the special warranty, although it was properly operated as was required in the special warranty stipulations.

The lower court decreed a cancellation of the notes, and refused the reimbursement to plaintiff of the cash payment on the contract which meets with our approval, and the judgment in the injunction suit is therefore affirmed.

The Court also rejected the claim on the open account in the other suit which was for the recovery of the price of gaskets, packings, etc., that had been used to remedy the defects in the ram, and for a follow-block which was also shown to be defective. The price for these items is not recoverable. There is also a claim on the open account for an insurance premium paid by plaintiff. Counsel for the Gullett Company says, as defendant failed to return and actually prohibited the return of the ram and oil tank, the company is entitled to collect therefor, and for' the accessories. The evidence fails to support this conclusion of fact contended for by counsel, and the demand for the insurance premium, and for the accessories, was properly rejected by the judgment of the District Court which will also be affirmed, but in a separate judgment.

ON REHEARING.

ELLIOTT, J.

A rehearing was granted the Gullett Gin Company herein. None other was prayed for, therefore we consider requests contained in the petition for which the rehearing was granted, but no further. The rehearing was to enable us to reconsider the law and the facts in both cases.

The Gullett Gin Company contends that our opinion and decree gives effect to evidence altering the provisions of the written warranty contained in the agreement for the sale of the press in question, and that it was error to do so.

The act of sale contains an agreement, as follows:

“That you warrant said machinery as expressed on the back hereof but not otherwise.”

And a further agreement as follows:

“When this order is accepted by you, it is understood that the same shaft be, and be held to be the entire contract between us and no agreement, verbal or otherwise, other than is set forth herein, forms any part of this contract.”

The warranty expressed on the back of the Act of Sale reads as follows:

“Said machinery is warranted to be of good material and to perform well if properly operated by competent persons. Upon starting, if the purchaser at any time, within 10 days, is unable to make same operate well, telegraph or written notice, stating wherein it fails to conform to the warranty, is to be given by the purchaser to the Gullett Gin Company at Amite, La., and not verbally to any of its travelling men. And reasonable time shall be given the Gullett Gin Company to remedy the defect, the purchaser rendering all necessary and friendly assistance and in case trouble be caused from a clearly defined original defect in the machinery itself, the Gullett Gin Company reserves the right to replace any defective part or parts without charge; but such defective part or parts shall not condemn the machine to which it belongs. If on trial the machine can not be made to fulfill the warranty and the fault is in the machine itself, the purchaser when instructed to do so, agrees to load and ship the machine where instructed and the amount of the purchase price of same is to be credited on the notes pro rata or money paid thereon refunded pro rata; the purchaser in such case to have nor make any claim for any damages of any nature or character whatsoever against the Gullett Gin Company, by reason of the failure of said machine to fulfil the warranty; but the pro rata diminution of the purchase price aforesaid to be the sole and only element of damage for breach of this warranty.
“Failure of any article named herein to comply with this aforesaid warranty shall in no way affect this contract nor the notes and chattel mortgage and trust deed given in accordance therewith as to the other articles named therein. Failure to make such trial or to give such notice, or use after ten days without notice shall be conclusive evidence of the fulfilment of the warranty.
“The Gullett Gin Company shall at the request of the purchaser, render assistance of any kind, in operating said machine or any part thereof, or in remedying any defects at any time. Said assistance shall in no case be deemed an acknowledgment on its part of a breach by it of this warranty, or a waiver of or excuse for any failure of the purchaser to fully keep and perform the conditions of this warranty.
“The purchaser 'agrees to properly put up and operate the machinery according to the directions furnished by the Gullett Gin Company, and that if the fault be traceable to not putting up, or not operating according to directions, purchaser agrees to pay all expenses incurred in rectifying it. Any failure on the part of the purchaser to comply with this contract, releases this warranty entirely.”

It is alleged in Fornea’s petition for injunction, Articles 2, 5 and 20, that the notes secured by chattel mortgage on the press representing the credit price of the same, and which the defendant in injunction was endeavoring to enforce against the press by executory process, had been obtained from him by the defendant in injunction through fraud and misrepresentation.

He further alleges that the press did not and will not do the work which it was warranted to do; that the Gullett Gin Company in that respect, did not fulfil its warranty.

To give the contention of the Gullett Gin Company practical effect, it would be necessary for us to hold that the warranty stipulations printed on the back of the act of sale have taken away and avoided Fornea’s right to plead and avail himself of the fraud alleged to have been practiced on him, and of the redhibitory defects in the press alleged in his petition.

The right to show fraud is conferred by the Civil Code, Arts. 1847, et seqi. This Article after explaining and illustrating the law on the subject proceeds to say:

“It is not necessary that either of the facts mentioned in the last preceding rule should have actually been produced. It is sufficient to constitute the fraud that such would be the effect' of the contract if it were actually performed. C. C., Art. 1847, No. 8.”

It is then provided:

“Engagements made through fraud may be avoided by the obligee, either by exception to suits brought on such contracts, or by an action brought for that purpose.”

Civil Code, Arts. 1881, 1882 and 2047. Code of Practice, Art. 20. And that the fraud may be proved by simple presumptions or by legal presumptions, as well as by other evidence. C. C., Arts. 1848 and 2288. The theory is, that engagements procured by fraud confer no rights.

Fornea also charges in his petition that the press contained redhibitory vices at the time of sale. A sale of the kind cannot be shielded from redhibition by the stipulations which would negative the law on that subject. Civil Code, Arts. 2520, etc., and 2541, etc. Code of Practice, Art. 20. Macarty vs. Bagniers, 1 Mart. (O. S.) 149; Melancon vs. Robichaux, 17 La. 97; Turner and Renshaw vs. Wheaton et al., 18 La. 37; Ogden vs. Michel, 4 Rob. 155; Copley vs. Berry, 12 Rob. 79; Faulk vs. Hough, 14 La. Ann. 659.

The lower court properly received the parol evidence tendered by Fornea, the tendency of which was to show that the sale in question had been procured by fraud and that the machine sold- had vices of a redhibitory character at the time of the sale.

The provision that “Failure of any article named herein to comply with this aforesaid warranty shall in no way affect this contract nor the notes and chattel mortgage and trust deed given in accordance therewith, as to the other articles named therein,” etc., and the further provision “The Gtillett Gin Company reserves the right to replace any defective part or parts without charge, but said defective part or parts shall not condemn the machine to which it belongs,” etc., must be construed in connection with the sale made.

The press was sold as one object, thing or unit, made up of different parts. The language quoted therefore means that when any particular part of the thing sold is found to be defective and can be replaced without detriment to the machine as a whole, it may be done. Defendant in injunction concedes that the ram, an essential part of the press, at the time of the sale was defective, but contends that it took out the defective ram and installed another in its place, which it contends is not defective.' That having changed the ram, it has done all that the contract of sale and the law governing rights of the parties, requires it to do.

But after reconsidering the law and the facts, our opinion remains that the Gullett Gin Company has not remedied the defect in the press, and that its defective working has existed and continued from the beginning and has not been removed. The Gullett Gin Company was not aware of the defects in the press at the time of the sale, but that fact does not prevent the redhibition because the evidence shows that because of its defects existing at the time, it will not do the work which it was sold and warranted by the seller to do. Civil Code, Arts. 2529, 2531.

The press was defective at the time of the sale but the defects were not apparent nor discoverable on a simple inspection. It was only after trial in pressing cotton that its defects came to light.

The decision of the Supreme Court of Tennessee in the case of Somerville et al. vs. Gullett Gin Company, 137 Tenn. 509, 194 S. W. 576, cited by defendant in injunction, we take to be a proper application of the law of Tennessee on the contract before the Court, but the present one is subject to the laws of this State, under which redhibitory defects can be shown, even if they do undermine stipulations which would cut off the inquiry.

As for Fornea’s claim that the representations of the agent of the Gullett Gin Company, that these hydraulic presses would press cotton faster than the gin he then had and that they were as easy or easier to operate than the screw press which he then had, amounted to a fraud and misrepresentation, we do not think so. It is our belief from the evidence that the representations were true, but the representations must, of course, be understood as applying to presses of the kind that are perfect in their parts and structure; not to one that contains vices in its parts and structure. It happened that this particular press contained vices in its parts and structure at the time of sale, and as a result, gave trouble from the start.

The warranty stipulations invoked by defendant in injunction provides that “The Gullett Gin Company, shall, at the request of the purchaser render assistance of any kind in operating said machine or any part thereof, or in remedying any defects at any time.” The Gullett Gin Company is shown hy the evidence not to have timely, effectively nor efficiently discharged this undertaking. In operating the gin, the press must keep up with it. If the gin gets ahead, it must be stopped until the press ’ catches up. Consequently, when a gin is operated in competition with others, which Fornea shows to have been the case, it is just as necessary to have a press that will work fast in pressing the cotton as it is to have a gin that will gin it as it arrives, otherwise the gin cannot be operated.

In this case, when the hydraulic pressure was applied to the ram, the oil which put it in force was forced out of its container with- such violence and in such quantity, that the men working the press, as well as the bale of cotton being pressed, were drenched with the oil, gasoline or water, according to the liquid used. There was loss of power, and no performance such as the warranty contemplated, saying nothing of the loss and danger caused hy the escaping oil, gasoline, etc. But that, perhaps, was not the greatest trouble. When the ram was forced up against the lint cotton, it would not release so that the bale could be pushed out of the press. It required the efforts of several men for a considerable time to force it down so as to release the hale.3 Notice of the trouble was communicated to the Gullett Gin Company and an officer of the Company, after a longer delay than should have taken place, accompanied by a mechanic, went to the gin and undertook to work the press, but it could not he worked by them any better than hy Fornea. They almost immediately recognized that the press was defective. They decided that it was the ram, but they must also have found something wrong with the casing of the press. The officer informed Fornea that the ram would have to be taken out and another put in, and he immediately returned to Amite and sent hack the mechanic with a new ram and a new casing. The mechanic, acting for the Gullett Gin Company, took out the old ram and put in a new one and a new casing, but the trouble continued as before. The new ram with new packing served to check to some extent, the escape of the hydraulic liquid, but the new ram did like the first one when forced up as it would not release its pressure. The strength of four or five men working with heavy wooden beams and iron crow bars for about two hours was necessary in order to get a hale of cotton -out of the press, after it had been pressed. Fornea and others who worked with it, attribute the trouble to the mechanical working of the ram. That is no doubt the apparent and likely the main cause, but the evidence indicates that there are other and contributing causes. The failure of the ram to work properly cannot be the sole cause why a bale was often made big at -one end and little at the other, in spite of efforts to have it in the usual form.

The claims of the officers of the Gullett Gin Company that its hydraulic press will work, operate and perform as easily and efficiently as they claim, will he conceded, but it is conceded that the press sold Fornea was defective, by taking out the ram which was in it at first and putting in another one. The mechanic who installed the new ram stayed a while after completing the work, and says that he saw several bales of cotton pressed, and that the press worked all right whilé he was there. But he left in a couple of hours and has never returned.

The officers of the defendant in injunction contend that the first trouble was remedied in the way stated, and that the present trouble is therefore not due to defects in the press, but to lack of intelligent operation. There is no more reason, however, for supposing that the trouble, which has never been abated is now due to the lack of intelligent operation than the first, and the Gullett Gin Company upon investigation, found that the first was not due to that cause.

The testimony of the officers of the defendant in injunction, and the argument in its behalf, is, that Fornea and his employees did not look after the deflector and keep it in proper position, and that instead of keeping the lint evenly distributed under the tramper, they permitted it to pile up on one side of the press; that the powerful mechanically working ram, operating against more lint cotton on one side than the other necessarily resulted in an uneven bale. But nothing indicates that Fornea and his employees are not fully capable of operating a cotton press, such as the one in question. They knew that the lint cotton had to be distributed in the press evenly on all sides. They say that it was done as carefully as possible, but that uneven bales frequently resulted in spite of their efforts.

The evidence therefore shows that there were defects in this press when sold that renders its use so imperfect and inconvenient that Fornea would not have purchased it had the defect been known to him at the time. The value of the press, due to the defects that existed in it at the time, was a great deal less than the sum agreed to be paid.

Defendant in injunction claims that we should not have allowed a credit on $1200.00, the amount of the two notes representing the credit price of the press, when only the ram valued in the sale at $277.20 was defective, and this, the only defective part was by it replaced at its own expense, etc.

As heretofore stated the original vice has never been remedied. The changing of rams left the press still defective in operation. Then again, the ram was not valued in the sale at $277.20. The parts of the press were not valued in the act of sale separately; the only price fixed is that of the press complete. Fornea testifies that in buying the press he bought the complete unit. The act of sale and mortgage support him, and the petition of the plaintiff for executory process also supports him. It alleges that the petitioner sold to Varnado Gin Company the following described property: “1—Dbl box steel bound press complete, with hyd ram and cylinder, etc.” The enumeration continues and various articles are mentioned, but none are separately valued, the price of the complete outfit being $1819.00. There is no evidence in the record as to the value of any of the parts which together form the press.

As for the suit on account, No. 4719, in which the plaintiff charges Fornea $277.00 on the grounds that the warranty stipulation contains a provision which obligates the buyer to lend friendly assistance in returning any of the defective parts, Gullett Gin Company contends that Fornea did not render its mechanic necessary assistance, after it was taken out of the press to load it on a truck so as to enable him to return it to the factory at Amite. Fornea testified without contradiction on this subject, that the Gullett Gin Company’s officer promised to send over a new ram, take out the old one, install the new one; and take the old one back at its own expense. The Gullett Gin Company’s mechanic called on Fornea to help him load the old ram on his truck, but Fornea says without contradiction, that at the time the request was made his gin had just re-started, and that cotton wagons were waiting with cotton for the gin, some about to leave on account of the delay to which they had been subjected, due to the press. That in order to load the old ram on the truck, it would have been necessary for him to stop his gin, and use his entire force for a couple of hours or more. In such a situation, some other time to load the ram should have been agreeable. Then again, the old ram was defective, it may have no value, and the evidence does not show that it has any value. Under the circumstances we do not think that Fornea should be required to pay for the old ram.

Another item claimed of Fornea is on account of a tank. The evidence shows that the tank which first came with the press proved defective, and it was necessary to get another one in its place. The evidence does not show the value of this item. The Gullett Gin Company, is, of course, entitled to the tank not being used on the press, and when it sends for the ram, it can at the same time take the tank to which it is entitled.

Another item is on account of a follow-block. The follow-block that came with the press was broken while being used, but whether it was defective or broken as a result of Fornea’s fault is not shown by the evidence, the charge however, is for a new one to take the place of the old one. The evidence does not enable us to say that the first follow-block was not defective like the ram and tank, as claimed by Fornea. The Gullett Gin Company was bound to replace defective parts without charge.

There are also other items claimed of small value. They were all used by Fornea in an effort to make the press work. We think that the Gullett Gin Company was obligated, to furnish them without charge for the purpose stated.

A reconsideration of the two cases, has not changed our conclusion in any way, and for these reasons our previous opinion and decree herein is reinstated and now made the final opinion and decree of this Court in both cases.