author: LeBLANC, J. ELLIOTT, J.

text:
    No. 706
    First Circuit
    BROWN v. LEARD
    (December 1, 1930. Opinion and Decree.)
    J. C. Daspit and J. R. Fridge, cf Baton Rouge, attorneys for plaintiff, appellee.
    Hermann Moyse, of Baton Rouge, 'attorney for defendant, appellant.
   LeBLANC, J.

The plaintiff in this case had originally, in May, 1927, obtained a judgment for compensation against the defendant. He had presented a claim for compensation for the full period of 400 weeks on the ground that he had a total, permanent disability. The judgment of court allowed him compensation at the rate he prayed for, but for the period of 300 weeks. There were no written reasons for judgment assigned, but it seems to be admitted that it was based on total permanent incapacity. No appeal was taken, and compensation was paid regularly.

In March, 1929, the defendant presented a motion to the court in which he averred that the plaintiff’s condition had improved, and he accordingly prays to have him examined by competent physicians, to the end, no doubt, that, if he was found improved, compensation would be either diminished or discontinued. That motion remained in abeyance. The plaintiff was never examined, and compensation continued to be paid, and was about to expire by final payments, when, on September 20, 1929, the plaintiff in turn presented a motion in which he alleges that his condition has grown worse, and he asks to be examined by competent medical experts. He prayed that, after due examination, a hearing he had before court, and that there be judgment “amending and revising and increasing the judgment heretofore rendered” from 65 per cent of his average weekly wage, for a period of 300 weeks to the same average weekly wage for a period of 400 weeks. He was examined, the hearing was had, and judgment rendered in his favor as prayed for. The defendant has appealed.

Plaintiff’s motion seeking an- amendment and extension of the period of time of compensation contains the following allegation:

“That in the original judgment rendered in this cause plaintiff was found by this Honorable Court to be permanently and totally disabled from doing any work of a reasonable character, and was awarded judgment for sixty-five (65%) per cent of his weekly wages for a period of three hundred weeks.”

That judicial declaration on the part of the plaintiff formed the basis of an exception of no cause of action which was filed by the defendant; the contention being made that, as the plaintiff had already been found to be permanently and totally disabled, it would be illogical to try to show that his disability had increased, as it is physically impossible for a person to be more disabled than totally and permanently so. It is further argued that, as the real purpose of this motion is to amend a judgment fixing the time of compensation at 300 weeks instead of the maximum of 400 weeks, plaintiff pursues the wrong remedy, as his right to have this done would have been by timely appeal.

Whether it was discretionary with the lower court to limit the period of compensation in its original judgment to 300 weeks, or whether that judgment was the proper or correct one to have been rendered under the law and the evidence, is a matter with which we are not concerned at this time. If the plaintiff was not satisfied with the period of compensation as fixed therein, it was his duty to appeal. That was his remedy. Quattlebaum v. Texas Pipe Line Co., 4 La. App. 406; Becton v. Deas Paving Co., 3 La. App. 683. He had a whole year in which to have this question reviewed on appeal. He did not appeal, but, more than two years after the date of the rendition of that judgment, appears in court and contends that he has the same right to have the same result accomplished under the provisions of section 20 of the Compensation Act. He invokes section 20 of the Act No. 20 of 1914, as amended by Act No. 38 of 1918, as he says that the injury was sustained in 1925, which was the year previous to that in which the present law on the subject was enacted.

In view of the language óf that section of the act which he invokes, to the effect that the judgment may be reviewed upon the application of either the employer or the employee, “on the ground that the incapacity of the injured employee has SUBSEQUENTLY DIMINISHED OR INCREASED * * 9 *’’ (capitals ours) and of the fact that the plaintiff has already been adjudged to be TOTALLY AND PERMANENTLY DISABLED, there seems to be serious doubt as to his right to proceed thereunder. It would be very difficult, if not impossible, to conceive how a person who already has a permanent total disability, can suffer an increased incapacity. From the standpoint of logic and sound reasoning, no incapacity which is total and permanent can increase.

There seems to be much merit in the defendant’s exception of no cause or right of action, and it might very well have been sustained. The evidence, however, was admitted and considered by the lower court as it had overruled the exception. Inasmuch as the case on plaintiff’s motion is before us for review on the merits, we may as well pass upon it.

The testimony, as we view it, does not show any increased incapacity, which it was necessary for plaintiff to show under section 20 of the act, which he maintained he has a right to proceed on. The testimony of Dr. Lester Williams on this point is unimportant, because he makes it plain that he is not testifying as an expert, but merely from a layman’s point of view. He is an X-ray specialist, and as an expert testifies from the viewpoint of his particular specialty, and does not seem to want to be involved in the medical aspect of plaintiff’s condition. Dr. Thomas Bird, the only other witness, says that he finds his general condition worse, but also says that, in speaking of his condition, he does not mean in regard to his ability to work. “It is medically that I was speaking,” he says, “and not from the viewpoint of his ability to do work.” By his own witnesses, therefore, it seems plaintiff has failed to prove the increased incapacity he was required to show, and his motion should have been dismissed.

The judgment of the lower court was erroneous and should be reversed.

For the reasons herein stated, it is ordered that the said judgment be, and the same is hereby, annulled, avoided, and reversed, and it is further ordered that there be judgment in favor of the defendant, S. W. Leard, and against the plaintiff, Ed. O. Brown, dismissing and rejecting the latter’s claim, at his costs.

ELLIOTT, J.

(dissenting). The question is whether the judgment rendered May 23, 1927, condemning defendant to pay plaintiff 65 per cent of his wages, or the sum of $7.50 per week for a period of 300 weeks, less sums paid, is final and in effect res adjudicata as to the number of weeks plaintiff can claim compensation, when the facts show that he has been a permanent total disability as a result of and constantly since his injury received on June 30, 1925.

Following his injury on June 30, 1925, plaintiff brought suit alleging that it had produced in him a permanent total disability, and claimed compensation accordingly, but, in deciding the case by judgment rendered May 23, 1927, the court allowed him but 300 weeks, which was the greatest period of time during which compensation could be allowed for a temporary total disability. The greatest period of time during which compensation could be allowed on account of permanent total disability was 400 weeks.

The act provides that “the judge shall not be bound by technical rules of evidence or by technical rules or procedure other than as herein provided. * * * The judge shall decide the merits of the controversy as equitably, summarily and simply as may be.” Act No. 20 of 1914, sec. 18, par. 4, as amended by Act No. 85 of 1926. Section 36 provides that no contract, rule, regulation, or device whatever shall operate to relieve the employer in whole or in part from any liability created by this act, except as herein provided, and the provision is in furtherance of the act as a whole.

After paying compensation for about two years or more, defendant, moving' under section 20 of the act (amended by Act No. 38 of 1918 and Act No. 85 of 1926), alleged that plaintiff’s incapacity had terminated or decreased, ruled him into court to show why compensation should not he discontinued or decreased, which shows that defendant did not regard the 300 weeks which the judgment fixed as not subject to change. The plaintiff countered by alleging that his incapacity had increased, and ruled defendant to show cause why it should not be required to pay him an additional 100 weeks. Of course there can be no increase of incapacity beyond that of permanent total disability, but plaintiff prays in his rule, among other matters, for such further orders as may be necessary in the premises and for all equitable and general relief. Under this prayer it was shown that plaintiff was a permanent total disability, due to his injury of June 30, 1925, and had constantly been such since his injury. Appropriate relief can be granted in such a case. Abadie v. Gluck’s Restaurant, etc., 168 La. 241, 121 So. 757.

The judgment of May 23, 1927, should not, in my opinion, in view of the provisions of the Employers’ Liability Act on the subject, be given the effect of finality as to the number of weeks for which plaintiff can receive compensation when in appropriate proceedings he shows that he is a permanent total disability as a result of his injury on June 30, 1925, and has remained such constantly ever since.

It seems to me that the judgment of the district court, allowing plaintiff the 100 additional weeks, is correct and in compliance with the act in question, and that the judgment should be affirmed.

I therefore dissent.


source: Caselaw Access Project

author: MOUTON, J.

license: Public Domain

text:
    No. 711
    First Circuit
    KINCHEN v. ROYAL EXCHANGE ASSURANCE OF LONDON, ENGLAND, ET AL.
    (December 1, 1930. Opinion and Decree.)
    R. F. Walker, of Baton Rouge, attorney for plaintiff, appellant.
    • Hawthorn & Stafford, of Alexandria, attorneys for defendants, appellees.
   MOUTON, J.

This case was remanded by this court, Kinchen v. Royal Exchange Assurance of London, England, et al., 12 La. App. 8, 124 So. 844, for the reception of evidence to ascertain whether or not the incompleteness of the record was due to the fault of appellant.

This evidence was to be taken within thirty days from the date of the order by this court remanding the case which was granted December 3, 1929.

Application for an extension of time to take the evidence was made to this court by appellant, and filed with our clerk at Baton Rouge, on January 2, 1930, although the clerk inadvertently marked it as filed January 2, 1929, instead of 1930.

This court, acting on the application, granted an extension of fifteen days from January 2, 1930. When the evidence was offered under this extension, on January 13, 1930, counsel for appellee objected thereto, claiming that the lower court was without jurisdiction, on the contention that, when this extension of fifteen days was granted, the time limit fixed under our original order had expired, and that this court had therefore no power to grant it. The first order granting thirty days to take the evidence was dated December 3, 1929, and the application for an additional extension was filed January 2, 1930.

The application for the additional extension was therefore filed within thirty days from the time given originally for the taking of the evidence. It was filed with our clerk at Baton Rouge, was therefore in time, and the second order of this court allowing the additional delay was legal.

The evidence taken January 13, 1930, shows that a search had been made for the’ testimony which was missing from the record 'by a deputy clerk of court, but could not be found when the transcript was prepared for the appeal to this court. There is nothing to indicate that the failure or inability to find it was attributable to the fault of appellant or his counsel.

The testimony is now in the record, and, as the law favors the right of appeal, the motion to dismiss because of the incompleteness of the record is overruled. This case will be heard at the next regular term of this court at Baton Rouge.

The clerk of this court will give notice of this order to counsel for the litigants.


author: ELLIOTT, J.

text:
    No. 725
    First Circuit
    TAYLOR v. KELLY-WEBER & CO., INC.
    (December 1, 1930. Opinion and Decree.)

      C. V. Pattison, of Lake Charles, attorney for plaintiff, appellant.
    McCoy, Moss & King, of Lake Charles, and Thompson & Ferguson, of Leesville, attorneys for defendant, appellee.
   ELLIOTT, J.

Kelly-Weber & Company, Inc., appellee, moves to dismiss the appeal taken herein by Grover Taylor, appellant, on several grounds. It is not necessary to consider any of them except those designated in the motion as Nos. 2, 3, and 4: That the transcript does not contain the testimony adduced on the trial; that the certificate of the clerk of the district court expressly states that the testimony adduced on the trial in the lower court is excepted from the transcript; that the transcript contains no statement of facts, etc. The transcript does not contain any statement of facts and it is not claimed that any was made as the law provides for in certain exigencies. The clerk of the district court in certifying to the transcript says that it contains all proceedings, “with the exception of the testimony which testimony has not yet been transcribed,” etc.

Appellant took cognizance of the motion to dismiss and was permitted to file in this court in opposition thereto a petition praying for further time in which to get the testimony, and in the alternative that the case be remanded in order that the transcript, might be completed.

Appellant alleges in his petition that at the time of obtaining the transcript, the testimony had not been reduced to writing and filed in the record; that he had on numerous occasions requested the court stenographer to file the testimony in the record, and on each occasion had been promised that the testimony would be filed in the record, etc. It is plain that the situation was well known to appellant, at the time he brought up the appeal, beyond and in addition to the declaration of the clerk of court in certifying to the transcript. And he could by timely petition to this court or to either of the members composing the same, and upon making the proper showing, have obtained further time in which to procure the testimony adduced on the trial and complete the transcript.

Plaintiff’s suit was brought under the provisions of Act No. 156 of 1912 (section 1, amended by Act No. 260 of 1918). Desiring to carry into effect in a proper and practical way the purpose of this act, its provisions have received our consideration in connection with appellant’s motion and request, hut the neglectful act of an appellant, of the kind we have in hand, and such as is provided for by Code Practice, art. 898, is not condoned by anything contained in the act in question. It is the legal duty of an appellant to file a complete transcript in the appellate court on or before the return day, unless he is hindered by something not due to his own act, in which event he should timely pray for an extension of time and make proper showing on the subject. Code Practice, arts. 587, 588. There is no excuse when he knowingly brings up an incomplete transcript taking no steps to have it completed. The law provides that if the copy of the record brought up be not duly certified by the clerk of the lower court as containing all the testimony adduced, and there is no statement of facts, the appeal must be rejected. Code Practice, art. 896.

A situation almost exactly like the present existed in the case of Louisiana Power & Light Co. v. Becker, 11 La. App. 195, 123 So. 193, except that the suit was not brought under the provisions of Act No. 156 of 1912 and there was no motion to dismiss. We held in the Becker case, in harmony with many decisions of the Supreme Court:

“Where record on appeal contains no note of evidence, no statement of facts, and no evidence, the judgment must be affirmed, in that the presumption is that trial judge acted on proper and sufficient evidence.”

A rehearing was applied for and the court, acting on the rehearing and in refusing same, took occasion to say, page 910 of 123 So.:

“It is evident that the incompleteness of the record was due to the fault of appellant, whose duty it was to see that the record was complete or to apply for the proper relief to have such record completed before submission of the case. This he has failed to do, and it is now too late to apply for such relief. Any former ruling by this court to the contrary is now overruled.”

The incompleteness of the transcript in this case is manifestly due to the neglect of the appellant, and the appellee moving therefor, we find that the appeal must be dismissed.


text:
    No. 704
    First Circuit
    RUNFALO v. DAGASTINO
    (December 1, 1930. Opinion and Decree.)
    Borron,, Hebert & Owen, of Plaquemine, attorneys for plaintiff, appellee.
    Jos. Nicolosi, of Plaquemine, attorney for defendant, appellant.
   MOUTON, J.

Plaintiff, alleging that he had sold fruits and produce to defendant during the year 1929, to the amount of $293.15, upon which he admitted to have received $75 on account, sues defendant for a balance thereon of $218.15.

The defendant in his answer admits that he received the goods from plaintiff in the year 1929, up to the sum of $284, but not for $293.15, as is averred in plaintiff’s petition; that $9.55 had been deducted on plaintiff’s account for damaged fruits, and that an overcharge of 50 cents had been made on an invoice.

The defendant, after making the foregoing allegations, avers that he, at plaintiff’s request, frequently advanced him various sums of money for the purchase of goods during the year 1929; that in January and February, 1929, he advanced him the sum of $300; also $50 in March, 1929; and in July. $75, aggregating a total of $425. The defense is, therefore, that defendant has overpaid plaintiff’s account by the sum of $150, which he claims against plaintiff in reconvention.

The lower court resolved the issues against the claims of defendant, and found that by, a clear preponderance of the evidence defendant was in debt to plaintiff for $199.50, after the deductions of $9.55 for damaged fruits, 50 cents for the overcharge on the invoice, and rendered judgment for $199.50 from which defendant prosecutes this appeal.

It is shown that the amounts which defendant claims to have advanced plaintiff were sent by checks in round sums, and on various dates, during the year 1929. The account filed by plaintiff carries a credit on it for the $75 check defendant had sent plaintiff, also one for $9.55 amount deducted for the damaged fruits.

Plaintiff, it appears, had no bookkeeping system in his business, and kept no ledger. He seems to have conducted his commercial business on slips. His testimony is that some of the payments made by defendant by checks were for accounts of October, November and December, 1928, for goods he had bought prior to his purchases for the amounts carried on his account for 1929, on which he had given defendant a credit for the check of $75, the only one of the checks which entitled him to a credit, in addition to the amount allowed for the damaged fruits.

The theory of the defendant is that at times, for some reason or other, plaintiff did not buy the goods for which he had advanced these various sums, and that the money which was not used remained to his credit. We find no evidence to sustain that contention. Defendant admits that he gave one or two checks to plaintiff that were not honored for lack of funds. There is also a letter in the record dated September 4, 1929, to which defendant’s name is subscribed and in which he acknowledges his indebtedness to plaintiff, and promises to pay the balance at some later date. Defendant denied that he had signed the letter and stated that his sister-in-law and his bookkeeper had signed his name thereto, without his authority.

Paul Polizetto, now a resident of New Orleans and formerly of Plaquemine, testified that in July or August, 1929, defendant had told him that he owed “this money” to plaintiff, Runfalo. Counsel for defendant questioned Polizetto about a suit counsel said was pending between Sam Polizetto, brother of witness, and Mrs. D’Agostino. Paul Polizetto denied that he knew anything about this litigation, and stated that he had. no interest whatsoever in the suit of plaintiff against defendant. Evidently, the judge believed plaintiff and Paul Polizetto and did not accept the explanation given by defendant in reference to the statements he had made in his letter to plaintiff of September 4, 1929, written at a date subsequent to the obligations he had incurred towards plaintiff as per the account filed against him.

Considering the character of the evidence submitted, we do not find that defendant has sustained his plea of payment, and his claim in reconvention. Our conclusion is that, as found below, the preponderance of the evidence entitles plaintiff to the amount decreed against defendant.


author: LeBLANC, J.

text:
    No. 679
    First Circuit
    WHEAT ET AL. v. BAYER & THAYER HARDWOOD CO., INC.
    (December 1, 1930. Opinion and Decree.)

      Brock & Carter, of Franklinton, and Hawthorn & Williams, of Poplarville, Miss., attorneys for plaintiffs, appellants.
    Ott & Johnson, of Franklinton, attorneys for defendant, appellee.
   LeBLANC, J.

Plaintiffs, W. H. Wheat, G. G. Wheat, Mrs. Viola Wheat Amacker, children of J. J. Wheat and of his wife, Susanah Holden, both deceased, and J. E. Wheat, the only heir of Pearce Wheat, a deceased brother of the plaintiffs, are suing defendant company for an undivided interest in a tract of land described in their petition, situated in the parish of Washington.

The land was originally acquired by Mrs. Susanah Wheat, mother of three of the plaintiffs, and grandmother of J. E. Wheat, from Solomon C. Smith in 1897. The sale was made to Mrs. Susanah Wheat, individually.

It is alleged by defendant that she had made the purchase with her paraphernal funds. The evidence shows that sheep which belonged to her husband, J. J. Wheat, had, during the existence of the community, been given for the land. Such being the proof, the acquisition was for the community. February, 1904, Mrs. Susanah Wheat sold the land to W. W. Seal and brothers for $1,500, $500 cash, and the balance on credit, which was paid by these vendees. Subsequently, in 1905, W. W. Seal and brothers sold to G. W. Seal, from whom defendant company derives its title, through the Cranor Lumber Company, the First National Bank of Gulfport, Miss., John H. Cassidy, and Daniel E. Sheridan.

As hereinabove stated, the land was purchased by Mrs. Susanah Wheat, became a community asset, and consequently one-half became the property of the children of J. J. Wheat, her husband. She sold the whole property to W. W. Seal and brothers after the death of her husband, and necessarily transferred to them only her undivided half therein, the ownership of the other half being vested in her children.

The defendant company, which traces its title to W. W. Seal and brothers, has no title to the undivided interest claimed by the plaintiffs, unless it be entitled thereto under the plea of prescription of ten years urged in bar of plaintiffs’ demand, and which is the only defense.

A portion of the property originally sold by Solomon S. Smith to Mrs. Susanah Wheat was hilly and the other was swamp land. Some of it was in cultivation, and most all under fencing. It was in that condition when sold by Mrs. Susanah Wheat to W. W. Seal and brothers, and from them to G. W. Seal. The Seals did not cultivate the land, but kept most of it under fencing, including the swampy portion for pasturage. This inclosing of the land and grazing of cattle thereon constituted actual corporeal taking of the property, and possession animo domini which forms the basis of the ten years’ prescription. Barrow v. Wilson, 38 La. Ann. 209; Chamberlain v. Abadie, 48 La. Ann. 587, 19 So. 574. The land was acquired in 1907 by the Cranor Lumber Company, in whose hands it was sold under sheriff’s sale in 1913 to the First National Bank of Gulfport, in whose ownership it remained until February 28, 1920, when the bank transferred it to John H. Cassidy and Daniel E. Sheridan, who in 1924 sold it to defendant company.

As hereinabove stated, it was shown that actual physical possession had been taken by W. W. Seal and brothers when they bought from Mrs. Susanah Wheat, and which possession continued when held by G. W. Seal, their vendee. It was shown that timber was cut off the land by the Cranor Lumber Company and by the bank after its purchase by them. This cutting of -timber, though not possibly constituting by - itself actual possession necessary for the basis of the ten years’ prescription, evinced the intention of continuing the civil possession which had commenced by physical corporeal possession. This is all the law requires to support title by the prescription of ten years. Gilmore, v. Frost-Johnson Lumber Co., 139 La. 354, 71 So. 536.

The good faith of the Seals in acquiring the property is questioned by the plaintiffs. There is no contention that the title to the Seals is defective in point of form, and is" not translative of property. The complaint is grounded on circumstances or evidence dehors the instrument. The proof shows that the Seals consulted a Mr. Adams, justice of the peace, in reference to the title, in whom they apparently had entire confidence, before they bought. He approved the title and they were, no doubt, in' good faith when they purchased, and honestly believed they were getting title from the true owner. They cannot be classed as owners in bad faith, who, the law says, assume the quality of owners or masters well knowing they have no title, etc. Civ. Code, art. 3452. See Land Development Company of Louisiana v. Schulz, 169 La. page 1, 124 So. 125. We find that they were purchasers and possessors in good faith, and so were the Cranor Lumber Company and the bank. The Seals having purchased in February, 1914, ten years thereafter, the bank, under its possession in good faith for that period of time and through its authors, had, in February, 1914, acquired ownership by virtue of the prescription of ten years.

The record shows, however, that in November, 1915, suit was filed by Elisa Jane Baugham, Nettie Rester, and Ada Boone, three sisters of three of the plaintiffs herein, and aunts of J. E. Wheat, to recover against the Bank of Gulfport an undivided interest in the land in contest by virtue' of their right of inheritance from their deceased father J. J. Wheat. Service was accepted, and no further steps taken by the plaintiffs. In February, 1916, there appears a purported sale of these plaintiffs’ interest to- the bank.

At the time the suit was filed the bank could have successfully urged its owner ship under the prescription of ten years, which had accrued in February, 1914, as before stated. Its title to the property had been perfected by the prescription of ten years under Civil Code, articles 3478 and 3479, and it could not be divested thereof, save by its own act. " It did not have to give the plaintiffs in the suit filed in November, 1915, anything, if it did not choose to do so,- .and the fact that it did in February, 1916/give to each of these plaintiffs a sum of money for- an alleged transfer of their interests in the property which it already owned is a matter which need not be considered in determining the validity of its title. There is nothing which appears in the suit as an admission on its part of any weakness in the title. As a matter of fact, the only appearance it made was to accept service of citation through its counsel. As far as the record discloses, that suit is still pending on the plaintiffs’ petition. Nothing was done by the bank by which any other heirs of J. J. Wheat could have been misled into believing that they had no rights in the property. Had the claims of the plaintiffs in that suit been put at issue by the bank, and had they been judicially declared entitled to the interests they were seeking to recover in the property, it might be that a decree of judgment in their favor would have enured to ■ the benefit of their co-heirs. But such a decree or judgment could not have been entered in view of the fact that the bank had already acquired a complete title to the property by prescription. Later on, in February, 1916, when the • bank saw fit to give those plaintiffs in that suit a sum of money for a purported transfer of an undivided interest which they did not own, it was a matter strictly between those parties, which concerned them alone,' and which certainly could not form the basis of any claim the heirs in the present suit might have.

The filing of that suit was not an interruption of prescription, because prescription had already accrued. If it be granted, for the sake of argument, that the act of the bank in taking title to the interests of the heirs, who were plaintiffs in that suit, in February, 1916, amounted to a renunciation of the prescription already acquired, and that such renunciation operated in favor of the other heirs, plaintiffs in this suit, it would seem that a new prescription began to run from the date of the purchase of those interests, and had again accrued by the sufficient lapse of ten years on the date the present plaintiffs filed their suit in February, 1929. Again, should the bank’s act in that instance be construed as one which placed it in the position of a possessor in bad faith, it can avail the present plaintiffs nothing.

If there should be the least douht of it before that time, certainly beginning with the title of Cranor Lumber Company in August, 1907, there was a possession which started in good faith, and that is all that is required to maintain the subsequent purchasers’ right to the prescription, even though there should have been an intermediate possession in bad faith.

“It is sufficient if the possession has commenced in good faith; and if the possession should afterwards be held in bad faith, that shall not prevent the prescription.’’ Civ. Code, art. 3482. See, also, Devall v. Choppin,. 15 La. 566; Barrow v. Wilson, 38 La. Ann. 209; Bennett v. Calmes, 116 La. 598, 40 So. 911.

It is urged as an evidence of bad faith on the part of the defendant that the attorneys who filed the suit in behalf of some of the heirs of J. J. Wheat against the Bank of Gufport in 1915 are the same attorneys who examined and passed on the title for Cassidy and Sheridan, and also were generally employed by the defendant, and that therefore their knowledge of outstanding or adverse interests in the property is imputable to their clients. It is observed that more than four years elapsed between the time of the filing of the suit in 1915 and the date of the sale to Cassidy and Sheridan, and there is no evidence to show that these attorneys were consulted by the defendant as to this particular matter when it purchased the property in 1924. It strikes us that under the circumstances we would have to strain the doctrine of the imputation of knowledge of an agent to his principal, in order to charge this defendant with the knowledge of these attorneys, even if it be conceded that the latter were in bad faith, on the ground that they were generally employed as its attorneys.

As we have concluded that the First National Bank of Gulfport had a title to the whole property as far back as the year 1915, it follows that, when it sold to Cassidy and Sheridan on February 28, 1920, it conveyed to the latter a valid and legal title, which is the title that was acquired by defendant in this suit in good faith on January 12, 1924, and under which it took and held possession. By the terms of article 3493, Revised Civil Code, this defendant “is allowed to make the sum of possession necessary to prescribe, by adding to his Own possession that of his author, in whatever manner he may have succeeded him, whether by an universal or particular, a lucrative or an onerous title.’’

This suit, as already noted, was filed in February, 1929, at which time defendant had acquired by prescription by possession for more than ten years under its title and that of its author.

The foregoing reasons apply to the demand of the plaintiffs W. W. Wheat, G. G. Wheat, and Mrs. Viola Wheat, wife of W. J. Amacker.

We will now address ourselves to the claim of J. E. Wheat, child of Pearce Wheat, who was a minor when his father died.

Article 3478, Civ. Code, was amended by Act No. 161 of 1920, p. 251, and Act No. 64 of 1924, p. 91. These amendatory acts say that:

“He who acquires an immovable in good faith and by a just title prescribes for it in ten years.”

And provides for the running of prescription against interdicts, married women, and absentees. As to minors the acts declare that prescription shall apply and accrue against them in twenty-two years from the date of their birth.

In the case of Thomann v. Dutel, 158 La. 1026, 105 So. 52, the court, in passing on Act No. 161 of 1920, amending the article of the Code, above referred to. says that the clear purpose of this statute was to give stability to titles to real estate by permitting the prescription of ten years to run against minors during their minority, and by limiting the right of a minor to recover immovables to one year after arriving at full age, when such prescription had accrued at the time of his reaching his majority.

In this cage, it is admitted that J. E. Wheat was born on July 18, 1905. Service of citation was made in this case February 18, 1929, and J. E. Wheat was therefore in his 24th year at that time, and prescription had accrued in favor of defendant company when he reached his majority.

The court below rendered judgment rejecting the demand of W. H. Wheat, G. G. Wheat, and Mrs. Viola Wheat Amacker. In that respect the judgment will be affirmed, but will be reversed in so far as it gave judgment in favor of J. E. Wheat for an undivided interest in the land, and in favor of defendant in warranty against John H. Cassidy and Daniel E. Sheridan.

It is therefore ordered, adjudged, and decreed that the judgment rejecting the demand of W. H. Wheat, G. G. Wheat, and Mrs. Viola Wheat Amacker be, and is hereby, affirmed.

It is further ordered and decreed that the judgments rendered in favor of J. E. Wheat against defendant company and in favor of the latter in warranty against John H. Cassidy and Daniel E. Sheridan be, and are hereby, reversed; and that the demand of J. E. Wheat be rejected, and that plaintiffs pay all costs of this suit.


author: JANVIER, J.

text:
    No. 13,415
    Orleans
    RICHARD v. TARANTINO
    (January 5, 1931. Opinion and Decree.)
    Joseph Rosenberg, of New Orleans, attorney for plaintiff, appellant.
    Gasper Bossetta, of New Orleans, attorney for defendant, appellee.
   JANVIER, J.

Petitioner, claiming to have sustained injuries while occupying a room in certain premises, owned by defendant and leased to petitioner’s mother, alleged that for some five months prior to the accident there had been a large hole in the flooring, and that, in attempting to sit on a chair, she fell because one of the legs of the chair went through the hole.

Defendant filed an exception of no cause of action, and, in support thereof, contended that, if the hole was a large one and had existed for five months to the knowledge of plaintiff, she was guilty of contributory negligence in so placing the chair that one of the legs was over the hole.

That plaintiff herself was. not the tenant is, of course, of no importance, because, although for several years the doctrine announced in McConnell v. Lemiey, 48 La. Ann. 1433, 20 So. 887, 34 L. R. A. 609, 55 Am. St. Rep. 319, prevailed in this state, and although under it a landlord was liable only to his tenant, still in Schoppel v. Daly, 112 La. 201, 36 So. 322, that doctrine was overruled, and it is now held:

“That the obligation imposed upon the owner of a building to answer in damages to a person injured by neglect of the owner to keep his building in repair arises ex delicto, and that the right of action, being in tort, is in favor of one who, is injured while lawfully on the premises or inside of the building as well as in favor of neighbors and passers-by.” Klein v. Young, 163 La. 59, 111 So. 495, 496.

The allegations of the petition, with reference- to the happening of the accident are as follows:

“Petitioner shows that on or about January 12th, 1930, at the hour of 5:00 o’clock P. M., petitioner endeavored to sit on a chair in said room and that there was a large hole in the flooring, which said hole was caused by the use, wear and tear of said premises, and that as petitioner endeavored to sit on said chair, one of the legs of the said chair went through the said hole, and the said chair tilted and petitioner was thrown therefrom, with much force and violence to the floor.”

It is rather difficult to understand how plaintiff, with knowledge that a large hole had existed for five months, could, without negligence on her part, place the chair so that one of its legs would fall through the hole. Nevertheless, to assume that she saw the hole, or realized its presence, and, notwithstanding this, put one of the legs of the chair over it, is to assume that she intentionally caused the accident.

The legal principle involved in such a situation is very similar to that which the Supreme Court discussed in Boutte v. New Orleans Terminal Co., 139 La. 945, 72 So. 513, 516, in which it was alleged that the person killed as a result of defective balustrades had knowledge of the defect.

In that case, defendant argued that the using of the gallery, and particularly the leaning against the defective balustrades, constituted contributory negligence. The court said:

“To assume that the lessee, in this case, knew that the balcony was so rotten that it could not withstand her weight would be to assume that she committed suicide.”

SimilarIf here, to assume that plaintiff realized that the hole was present, and nevertheless placed her chair over it, would be, as we have said, to assume that she deliberately injured herself. There is no doubt that the primary obligation of the landlord is to keep his premises in repair, and that he is liable for accidents resulting from defects such as that complained of here. Ciaccio v. Carbajal, 142 La. 125, 76 So. 583; Brodtman v. Finerty, 116 La. 1103, 41 So. 329; Bianchi v. Del Valle, 117 La. 587, 42 So. 148; Cristadoro v. Von Behren’s Heirs, 119 La. 1025, 44 So. 852, 17 L. R. A. (N. S.) 1161; Thomson v. Cooke, 147 La. 922, 86 So. 332; and Harris v. Tennis, 149 La. 295, 88 So. 912. Therefore, when the injured party has shown that the defect existed, the burden is shifted to defendant to exculpate himself, and his attempt to do so by showing contributory negligence on the part of plaintiff places on him the burden of proving or sustaining this special defense.

In Boutte v. New Orleans Terminal Co., supra, the court said:

“The defendant’s plea of contributory negligence, however, is a special defense; the burden of proof of which is shifted to the defendant when the plaintiff proves, prima facie, that the injury resulted from the defendant’s negligence.” .

It may be that the hole was located in a dark spot, or that for some other reason plaintiff’s attention was not, at the time directed to it. At any rate, the burden is on defendant to show that _ plaintiff was contributorily negligent, and this does not, in a situation of this kind, result from the mere fact that a hole existed, and that plaintiff had knowledge of it. We think the case should be remanded for trial on the merits.

It is therefore ordered, adjudged, and decreed that the matter be, and it is remanded to the First city court for further proceedings according to law and not inconsistent with the views herein expressed.


author: WESTERFIELD, J.

text:
    No. 11,841
    Orleans
    FEDERAL MORTGAGE & FINANCE CO., INC., v. LUX
    (January 5, 1931. Opinion and Decree.)
    Joseph Rosenberg, of New Orleans, attorney for plaintiff, appellant.
    Frank Soule, of New Orleans, attorney for defendant, appellee.
   WESTERFIELD, J.

This is a suit on five rent notes of $35 each, aggregating $175. The suit is defended upon the ground that the plaintiff is not a holder in due course; and the consideration for which the notes were given having failed, and the notes having been purchased with knowledge of this deficiency, no recovery can be had.

There was judgment below in defendant’s favor and plaintiff has appealed.

T. S. Lux, the defendant herein, leased from the Tulane Investment Company, Inc , the upper apartment of the building known by the municipal No. 4919 Magnolia street in the city of New Orleans, for one year beginning October 1, 1927, and ending September 30, 1928. At the time of the signing of the lease the property was mortgaged to the Standard Homestead Association. On October 20, 1927, the Tulane Investment Company assigned the lease and rent notes, and on October 27, 1927, transferred the property to L. H. Jones, who assumed the mortgage. On November 15, 1927, Jones assigned the lease to the Federal Mortgage & Finance Company, Inc., plaintiff herein, by indorsement on the lease as follows:

“For value received I hereby assign, transfer and deliver unto the Federal Mortgage & Finance Company, Inc. all my right, title and interest in and to the within lease and all rent notes — identified therewith.”

A little later, November 17, 1927, the secretary of the Federal Mortgage & Finance Company, Inc., Harry Goldman, caused the following inscription to be entered in the conveyance office of the parish of Orleans, in book 432, folio 486:

“State of Louisiana, Parish of Orleans.
“Before me, the undersigned authority, personally came and appeared Harry Goldman, Secretary of Federal Mortgage & Finance Co., Inc., who being duly sworn, deposes and says: That on July 25, 1927, the Tulane Investment Co. Inc. leased unto T. S. Lux, the upper apartment of Duplex, known as No. 4919 Magnolia St., between Robert and Upperline Sts. for term of 12 months rental of $35.00 evidenced by 12 notes and lease containing the usual clauses. That on October 20, 1927, the said lease and rent notes were assigned by the Tulane Investment Co. Inc. to L. H. Jones.
“That on Nov. 15, 1927 the said L. H. Jones transferred the said lease and remaining notes to the Federal Mortgage & Finance Co. Inc.”
“[Signed] Harry Goldman
“Sworn to and subscribed before me this Nov. 17, 1927.
“[Signed] Joseph Rosenberg, Not. Pub.”

On Match 26, 1928, the Standard Homestead Association foreclosed on the property and bought it in at judicial sale. The notes sued on cover the period of the lease after the foreclosure of the mortgage by the homestead and represent the unexpired portion of the lease, for which the defendant Lux received no consideration in rent, as he was dispossessed by the homestead.

It is the contention of plaintiff that the notes are negotiable in form, notwithstanding their identification with a contract of lease, citing First State Bank & Trust Company v. Crain, 157 La. 427, 102 So. 513, 38 A. L. R. 347, where it was held “that the mere physical taking of the written lease did not thereby make plaintiff (the bank) become a party to the lease.” But the main difference between the facts in this case and those which obtained in the cited case is that here the lease and notes were transferred by assignment and not by indorsement, a circumstance which, even though the notes were negotiable in form, distinguishes the case, for the assignee took them subject to all equities as between the original parties, particularly the stipulations in the lease itself.

“The practical difference between transfer by assignment and transfer by endorsement is: (1) The former makes the holder take subject to equities; and (2) the assignor, as distinguished from an endorser, in the absence of a statute to the contrary, is not liable) to the assignee, except on his implied warranties.” 8 C. J. 384.

In Joyce’s Defenses to Commercial Paper, volume 1„ page 924, we read:

“But where á mortgage is temporarily pinned to a note, endorsement of the mortgage operates as a common law assignment, and not a negotiation of the note so as to protect the transferee against prior equities and defenses.”

In the case at bar the Tulane Investment Company, the original • lessor, certainly could not maintain an action for rent covering the unexpired period of the lease, nor could L. H. Jones, its assignee, nor could the Federal Mortgage & Finance Company, his assignee, since both Jones and the Federal Mortgage & Finance Company, in acquiring all of the rights of their respective assignors, assumed the burden of their obligations.

The plaintiff stands in exactly the same position as if it had originally leased the premises to defendant and is in no sense a holder in due course under the Negotiable Instruments Law (Act No. 64 of 1904, as amended by Act No. 89 of 1926). This was the view of the judge, a quo, and we are of the opinion that his judgment was correct.

For the reasons assigned the judgment appealed from is affirmed.


text:
    No. 13,442
    Orleans
    CONSTABEL v. MILLER
    (January 5, 1931. Opinion and Decree.)
    Richard A. Dowling and Wm. R. Kinsella, of New Orleans, attorneys for plaintiff, appellee.
    Daly & Hamlin, of New Orleans, attorneys for defendant, appellant.
   WESTERFIELD, J.

Mrs. Julia A. Constabel was injured as the result of a collision between two automobiles. The accident happened on February 10, 1930, and m something less than thirty days thereafter Mrs. Constabel died. This suit is brought by her daughter Julia, under article 2315 of the Civil Code, against the defendant, Fred Miller, the owner of the car which collided with the Constabel car.

There was judgment in favor of plaintiff for $2,500, and defendant has appealed.

The collision occurred at the intersection of Washington and South Claiborne avenues in the city of New Orleans. The question of whether the driver of the Constabel car or the driver of the Miller car was at fault depends upon the credibility of the witnesses who testified for the plaintiff when their evidence is opposed to that of those who testified for defendant. One car or the other started prematurely and without waiting for a favorable light from a traffic semaphore which was operated at that intersection. This disputed question of fact was resolved by the district court in favor of the plaintiff, and, notwithstanding the insistence of counsel that its conclusion was erroneous, we arise from our consideration of the record without any conviction of manifest error on its part; consequently, under the authority of many adjudications of the Supreme Court and of this court, the finding in this respect will be approved.

There is one other rather unusual question left for our consideration, and it concerns the contention of defendant to the effect that the death of plaintiff’s mother was due to natural causes and not connected with the accident. An autopsy was performed which revealed the fact that Mrs. Constabel, at the time of her death, was afflicted with chronic myocarditis, broncho-pneumonia, edema of brain, and a healed fracture of the sixth rib on the left side. Only the last finding of the post mortem is said to have had anything to do with the accident, and, as has been stated, the fracture of the sixth rib on the left side was healed at the time of the lady’s death.

The testimony of two physicians is in the record, one of them Dr. George Hauser, assistant coroner for the parish of Orleans, who performed the autopsy, and, the other Dr. E. J. De Bergue, who attended Mrs. Constabel. Th'e effect of Dr. Hauser’s testimony is simply to establish the facts revealed by the post mortem, without developing any positive opinion as to the effect of the accident as a factor in Mrs. Constabel’s death.

Dr. De Bergue, however, was quite certain that the accident was responsible for her death, and the fact that bronchial pneumonia is listed among the other causes of death is most persuasive, for, from our knowledge of other cases, pneumonia is regarded as a likely consequence of traumatic injury. Then, too, Mrs. Constabel was 70 years old, a time of life when it is not to be expected that her heart would escape degeneration. Chronic myocarditis in a person of her age may not have any pathological significance. Moreover she is shown to have been in good health or at least unconscious of the maladies which the post mortem revealed, prior to her injury, and to have been confined to her bed almost continuously thereafter, during which time she grew progressively worse, with the result that she died within thirty days.

We have no difficulty in finding that Mrs. Constabel’s death was due to the accident.

The award in this case is very moderate. Plaintiff, Miss Constabel, testified that the expense of burying her mother amounted to $443; that she expended for nurses $126; and that her loss of salary while nursing her mother amounted to $75. Considering the amount of suffering that her mother experienced, no just complaint can be made to the effect that the award is excessive. No effort has been made to have it increased, however; consequently, for the reasons assigned, the judgment appealed from is affirmed.


text:
    No. 13,479
    Orleans
    NANCE v. UNITED FRUIT CO.
    (December 15, 1930. Opinion and Decree.)

      Edward S. Spiro, of New Orleans, attorney for plaintiff, ¿ppellant.
    Spencer, Gidiere, Phelps & Dunbar, of New Orleans, attorneys for defendant, appellee.
   JANVIER, J.

■ Plaintiff, the widow of a former employee of defendant, seeks to recover compensation fpr his death, claiming that he was killed by an accident arising out of and in the' course of his employment.

The facts, which are in the main admitted, are: That the decedent was a member of the “shore gang” of defendant, which gang at that time was composed of himself and three other laborers and a foreman, a Mr. Whatley; that the “shore gang” had moved a large pump along the wharf to a spot alongside the steamship Cartago, belonging to defendant; that the pump was to be placed upon the Cartago, but was so heavy that a floating derrick had been sent for to perform this operation; that the derrick was delayed, and that during the delay the foreman, Whatley, ordered the tour laborers of the “shore gang” to' “stand by” so that,' when the derrick should arrive, they might assist in raising the pump and lowering it into the hold of the ship; that decedent wandered off to another ship of defendant, the Suriname, lying some six or eight hundred feet down the river, and, in attempting to board this other ship, was precipitated into the water by the breaking of certain boards on which he attempted to cross the space intervening between the wharf and the ship, and- that he -was drowned in the river; that the boards, by means of which ■ decedent attempted to board the Suriname, and which broke under his weight, were very near to, the regular gangplank, and that, in order to reaqh the, boards, decedent had passed by the regular gangplank; that, lying at the wharf between the Cartago, and the Suriname, was another steamship belonging to another owner.

The defenses are that decedent voluntarily wandered away from his proper placé of employment and was drowned while on his way to visit a friend in another steamship located at a distance of six ■ or eight hundred feet away from the place at which he should have been, and that decedent voluntarily faile.d to use an adequate safety device, to-wit, the regular gangplank, and deliberately chose a very dangerous method of boarding the Suriname, to-wit, the use of small and manifestly inadequate boards,, and that, thus, under section 28 of Act No. 20 of 1914, which is the statute under which this suit is brought, he could not recover, even if it could be held that the accident otherwise arose in the course of his employment. Section 28 reads in part as follows:

“He is further enacted, etc., That no compensation shall be allowed for an injury caused * * * (3) by tbe injured employee’s deliberate failure to use an adequate guard or protection against accident provided for him. * * *”

The evidence shows that, after giving to the “shore gang” the order to “stand by" to await the arrival of the derrick, Whatley, the foreman, boarded the Cartago, and that two of his gang also went on this vessel, though he did not know of the presence of the other two thereon. The Cartago was alongside the pump, and later on, when the derrick arrived, Whatley called his gang back to work. Three of them were present, but the fourth, decedent, had been drowned.

Plaintiff’s counsel argues that it was not Whatley’s intention that the four laborers should remain immediately alongside the pump, but that they, knowing that they could do nothing, were justified in seeking shelter from the cold air, or in seeking relaxation, as they saw fit, and that there was, thus, no reason why decedent should not have wandered over to the other steamship to visit a friend who was on that vessel. It is also argued that he may have gone to the other vessel to assist in doing other work of defendant company.

With regard to this last suggestion, we believe that the burden of proof is on plaintiff to show just what was the purpose of her husband in boarding the other • vessel, and, in the absence of proof in this regard, we cannot presume the unusual, and cannot believe that he was voluntarily seeking work which he had not been ordered to perform.

It is quite true that Whatley testified that, in ordering the men to “stand by,” he did not mean that they must wait alongside the pump for the derrick, but it is very evident that what he meant was that they must remain near enough so that they could hear him call them back to work. Surely decedent did not do this. He had gone more than two city blocks away from the scene of his employment. He had passed by and gone entirely beyond a ship belonging to another company, and by no stretch of the imagination can it be said he was hurt by an accident arising out of and in the course of his employment.

“The evidence further shows that he, the plaintiff, was not performing services arising out of and incidental to his employment, and that the accident did not happen in the course of his employment, trade, business, or occupation. The accident to plaintiff happened because of his neglect of the duties assigned to him and the unnecessary exposure by him to a very dangerous implement. It was his duty to have taken care of himself, and not to have placed himself unnecessarily in a place of danger. He had deserted his post of duty at the furnace, and wandered some distance from the boiler when he met with the accident.” Pierre v. Barringer, 149 La. 71, 88 So. 691.

In Watson v. Holmes & Barnes, Ltd., 7 La. App. 210, we find that the syllabus reads as follows:

“The widow cannot recover under the Workmen’s Compensation Act No. 20 of 1914 and amendments where employee was killed three hundred and seventy-three feet from the premises of his employer while he was on a personal errand and not in the course of his employment, and in disobedience to instructions given to him by his master.”

See, also, Piske v. Brooklyn Cooperage Company, 143 La. 455, 78 So. 734.

In view of our conclusion that the accident did not arise in the course of the employment of decedent, it is unnecessary for us to consider the other contention made by defendant with regard to section 28 of the Compensation Act.

The judgment appealed from is affirmed.


text:
    No. 13,454
    Orleans
    GURNEY REFRIGERATOR CO. v. McDonald
    (January 19, 1931. Opinion and Decree.)
    Albert J. Pere, of New Orleans, attorney for plaintiff, appellee.
    J. C. McGee, of New Orleans, attorney for defendant, appellant.
   WESTERFIELD, J.

This is a suit for $160.03 with interest and attorney’s fees, the balance alleged to be due upon a certain promissory note, originally drawn for the sum of $460.03. Defendant avers that the consideration for the note has failed, in that certain refrigerators, for the purchase price of which the note was given, were unfit for the purpose for which they were intended. This defense failed to impress the trial court and a judgment resulted in favor of plaintiff as prayed for. Defendant has appealed.

Without entering upon a detailed discussion of the evidence, we observe that from our consideration of the transcript we are of the opinion that the trial court was correct in its conclusion.

The judgment allowed 10 per cent attorney’s fees upon the sum of $460.03; whereas, it is claimed the attorney’s fees should be allowed only upon the amount sued for, or $160.03. Since it appears from the record that at the time the note was placed in the hands of counsel for collection, no payment had been made, we believe the attorney’s fee should be based upon the original amount.

Our attention is directed to the fact that the note is dated March 5, 1929; whereas, in the judgment appealed from interest was allowed from March 3d. The judgment will therefore be amended to that extent.

For the reasons assigned, the judgment appealed from will be amended so as to allow plaintiff interest only from March 5, 1929, instead of March 3, 1929, and as thus amended, it is affirmed. Costs of both courts to be paid by appellant.

HIGGINS, J., takes no part.


text:
    No. 13,413
    Orleans
    CATALANOTTO v. MINNEAPOLIS FIRE & MARINE INSURANCE CO.
    (January 5, 1931. Opinion and Decree.)
    Guy J. D’Antonio and Deynoodt & de la Vergne, of New Orleans, attorneys for plaintiff, appellant.. .
    St. Clair Adams and St. Clair Adams, Jr., of New Orleans, attorneys for defendant, appellee.
   JANVIER, J.

Plaintiff was owner of a building in New Orleans- on which defendant had issued a policy of fire insurance and which burned under circumstances which led the representatives of 'defendant to believe that the fire was of incendiary origin, and that either plaintiff himself, or some one instigated by him, was responsible therefor.

There was also a policy of fire insurance on the contents of the building.

The realty and improvements were mortgaged and the fire insurance policy on the building was made payable to the holder of the mortgage to the extent of the interest of the said mortgage holder, and defendant insurance company, realizing that the contention that the owner himself had caused the fire to be started could not be used as a defense against the mortgage holder, paid the amount due under the mortgage, but refused to pay the balance of the face of the policy, which was claimed by the owner. of the premises, plaintiff here.

When defendant insurance company paid to the mortgage holder the amount due her under the mortgage, it obtained from her the mortgage notes and a full subrogation to her rights and claims against the owner of the property.

The right to the notes and to the subrogation is claimed by defendant insurance company to result from stipulations in the mortgage clause attached to the policy, reading as follows:

“Whenever this company shall pay the mortgagee (or trustee) any sum for loss or damage under this policy and shall claim that, as to the mortgagor or owner, no liability therefor existed, this company shall, to the extent of such payment, be thereupon legally subrogated to all the rights of the party to whom such payment shall be made, under all securities held as collateral to the mortgage debt, or may at its option pay to the mortgagee (or trustee) the whole principal due, or to grow due, on the mortgage, with interest, and shall thereupon receive a full assignment and transfer of the mortgage and of all such other securities; but no subrogation shall impair the right of the mortgagee (or trustee) to recover the full amount of her claim.”

Upon refusal of defendant company to pay to the owner the balance claimed under the policy, this suit was filed.

In answer thereto defendant’s principal contention is “that plaintiff herein either set fire to said premises himself, or caused said premises to be set afire for the purpose of fraudulently collecting the insurance thereon.” Having thus charged that the fire had been instigated by plaintiff, defendant, by way of reconventional demand, ¡prayed for judgment against him in the amount which it had been required to pay to the mortgage holder and for which it had secured a subrogation.

The trial court found in favor of defendant and rendered judgment rejecting plaintiff’s demand and also judgment in reconvention in favor of defendant and against plaintiff for the amount defendant had paid to the mortgage holder.

There is little dispute as to the law applicable to matters of this kind.

In a suit on a fire insurance policy the burden rests upon the insurer to establish facts upon which a release from its obligation is predicated. Breard v. Mechanics & Traders Ins. Co., 29 La. Ann. 764; Ziegler v. Mutual Aid & Ben. Life Insurance Association, 1 McGloin 284; Brignac v. Pacific Mutual Life Ins. Co., 112 La. 574, 36 So. 595, 66 L.R.A. 322.

It is equally well settled that such a defense need be proven only by a preponderance of the evidence, as in any other civil matter. See Dunn v. Springfield Eire & Marine Ins. Co., 109 La. 520, 33 So. 585-587, in which the court said:

“A preponderance of evidence determines issues of fact in civil causes.”

In Baker & McDowell Hardware Co. v. Liverpool & London & Globe Ins. Co., 3 Orleans App. 461, the court said:

“The acquittal of Harvey on his second trial for arson does not affect our conviction of his guilt, for we readily appreciate the fact even if the evidence administered in the criminal trial for arson was of like character to the evidence in the instant record, it might be that under the rule of the Criminal law that the guilt of the accused must be established beyond a reasonable doubt, an acquittal would be warranted. But the rule which requires this character of evidence to fortify conviction in a criminal charge of arson is relaxed in a civil action when this defense is set up, and it is now established by a great weight of authority, that a preponderance of evidence, as in all civil cases, is all that is necessary to establish this defense.”

See, also, Exnicios v. Sun Insurance Office, 156 La. 975, 101 So. 383.

It is also firmly established that in cases of this kind circumstantial evidence is not only admissible, but is usually the only evidence obtainable, since it is very evident that, in almost no instance can direct testimony of eye-witnesses be obtained Persons desiring to burn their properties for the purpose of collecting the insurance, or for any other illegal ¡purpose, do not •discuss their intentions with others, nor do they carry out such intentions in the light of day.

In Hoffman v. Western Marine & Fire Ins. Co., 1 La. Ann. 216, the court said:

“In a matter of this kind, every species of evidence, whether circumstantial or presumptive, which tends to convince the mind, may be adduced, whether on the one side or the other.”

In Adams v. Liverpool & London & Globe Ins. Co., 5 Orleans App. 301, we find the following:

“Where the defense in a suit on a contract of fire insurance is that of fraudulent fire, the fact that the assured himself set or caused to be set the fire which destroyed the property, may be established by presumptive, as well as direct evidence.
“The law, in cases of this instant character does not exact that the facts of fraudulent fire must be as fully proven as an indictment for arson.”

In Wightman v. Western Marine & Fire Ins. Co., 8 Rob. 442, the rule is stated as follows:

“To defeat a recovery on a policy of insurance on the ground that the plaintiff set fire to the premises, it is not necessary that the evidence should be such as would convict the plaintiff on a prosecution for arson.”

Although circumstantial evidence is admissible, it must be remembered that where it is relied on it must be such as does more than throw a mere suspicion of guilt on him who seeks to recover under his policy. In fact, as was said in Adams v. Liverpool & London Globe Ins. Co., supra:

“It may not be denied that the defendant may sustain its defense by circumstantial evidence, and that the fact that the insured himself set fire to the premises insured are not to be fully proven as on an indictment for arson (although on the latter point there are in this State at least two decisions of the Supreme Court to the contrary (Regnier v. La. State Marine & Fire Ins. Co.), 12 La. 341 and Flynn v. Merchants’ Mut. Ins. Co.) 17 La. An. 138) but it is equally undeniable that not only must the fact from which the inference or presumption is drawn be established in evidence, but the inference or presumption to which these proven facts give rise must be strong and almost inevitable, or, in the language of the Code, be ‘weighty, precise and consistent.’ C. C. 2288.”

That the creating of mere suspicion of guilt will not suffice to defeat an action for recovery under a policy was also held in Adams v. Liverpool & London & Globe Ins. Co., supra, in which we find:

“The known fact on which the presumption reposes must draw with it the unknown fact, as an almost necessary consequence. The presumption must be precise, and not susceptible of application to other circumstances than that which it is sought to establish.”

Bearing in mind, then, the legal principles which are involved, let us examine the record in an effort to determine whether there is therein evidence sufficient to justify the findings made by the trial court to the effect that plaintiff himself was responsible for the destruction of his property.

We are much impressed with the testimony of the deputy fire marshal and of the officer of the insurance patrol, both of whom arrived at the scene before the fire was extinguished, and who, as soon as they could enter the ruins, did so and found that in almost every room there were the remains of glass demijohns, in some of which were small quantities of coal oil and gasoline, and that there were broken milk bottles placed at various points about the structure, in some instances still containing coal oil; that an upper window was propped open with a lump of coal, the opening having been left apparently for the purpose of creating a draft and the coal, possibly, in the hope that it might fall into the flames and add to the conflagration. The glass containers to which we have referred, in most instances, of course, were empty, the fuel oil or gasoline having been burned, but in some few, which were located in spots not reached by the flames at the time of the arrival of the engines, the oil and gasoline, as we have said, remained unconsumed.

These witnesses also state that from the burned remnants of furniture it was evident that such as had been contained in the premises had little, if any value,' though it was insured for a substantial amount.

Plaintiff and his wife and children, who were absent at the time of the fire, deny any knowledge of or connection with the placing of the various demijohns of oil. They were, however, the last persons shown to have openly entered the house, they had the keys thereto, and no one is suggested as bearing any ill will towards plaintiff. The presence of so many containers of highly inflammable oil is more than suspicious.

We find, also, that the stories told by the various members of plaintiff’s family as to the reason for leaving the house deserted are most conflicting and self-contradictory.

It seems reasonable that, if a house owner has absented himself and his family from his home over night and that during that night his house has burned, he will forever afterwards remember exactly what it was that caused him to be away; yet at least three different reasons are given for the unusual visit to the brother’s home.

That plaintiff should have suddenly decided to transfer his whole family to his brother’s house for the night is, in itself, suspicious. His brother had only a very modest home, which is shown to have been entirely inadequate to house overnight the additional caravan which descended upon it. Unless, then, there was some overpowering reason for such a visit, it is not probable that it would have been made with the entire family and without warning.

The reason for leaving the son, Joe, in the city may have been, as claimed by plaintiff, that he was working as a taxicab driver and did not want to leave his work, but the testimony given by this son to the fire marshal immediately after the fire is far from convincing.

He states that his father, on the night of the departure, which was the night before the fire, had advised him of the proposed visit, yet the father, plaintiff, states that he had not seen his son, Joe, for three days prior to the fire. The particular bit of testimony given by Joe on this point is, to our minds, illuminating. Hp seems to, have remembered that he and his father had discussed what he would say if asked when was the last time he had seen his father prior to the fire, but he, apparently, forgot what the answer should have been. His answer is as follows: “About three days. The night they left.”

It seems to us that he had forgotten that- his father had instructed him to say that he had not seen him for three days, and, his memory being confused on this point, he gave both answers.

While it may have no bearing whatever on. the matter, we find it difficult to erase from our minds the fact that two of plaintiff’s brothers had in the past lost property through fires, which were at least known to the fire marshal, and known to plaintiff and to plaintiff’s wife.

It is contended that the value of the property was such that the face of the policy was not sufficient to cover it and that, thus, plaintiff had no interest in destroying it. While the cost of original construction may have been as much as the amount of the policy, it is more than doubtful if, under the conditions existing at the time of the fire, the value of the improvements to the owner even approximated the amount for which they were insured. The record shows that, for a long time prior to the fire, the store portion of the premises had been untenanted and that plaintiff, who was cultivating a farm some miles away, probably had no need for the residence portion.

We are also convinced that practically all of the furniture had been removed and that the amount of the insurance on it was much greater than the value of that which remained.

The record convinces us that defendant’s contention is not based on mere, suspicion alone, but that the evidence in support of it clearly preponderates, and is, in fact, overwhelming.

It was sufficient to convince the trial judge and, since only a question of fact is involved, the judgment appealed from should not be reversed.

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

HIGGINS, J., takes no part.


author: WESTEB.FIELD, J.

text:
    No. 13,629
    Orleans
    WILSON v. WILLIAM BADEAUX CO.
    (January 5, 1931. Opinion and Decree.)

      Cahn & Cahn and Leon Cahn, of New Orleans, attorneys for plaintiff, appellee.
    Dart & Dart and Leo L. Dubourg, of New Orleans, attorneys for defendant, appellant.
   WESTEB.FIELD, J.

Plaintiff in this proceeding sought to foreclose, via ordinaria, a chattel mortgage dated November 18, 1929, given, in security for a note for $2,000 executed, by the defendant corporation as collateral security for an indebtedness due plaintiff in the sum of $1,350.47, with 6 per cent interest from November 18, 1929, and 10 per cent attorney’s fees. The defendant corporation, through its receiver, who had been appointed by the civil district court about four months later, or April 1/ 1930, answered, admitting the execution of the mortgage, but attacking same as an unfair, illegal, and fraudulent preference over the other creditors of defendant. Assuming the character of plaintiff in re-convention, he asked for a judgment in defendant’s favor against plaintiff, setting aside the chattel mortgage, and dismissing the suit. There was judgment below in favor of plaintiff, and defendant has appealed.

The case is controlled by article 1984 of the Civil Code, which reads as follows:

“Every contract shall be deemed to have been made in fraud of creditors, when the obligee knew that the obligor was in insolvent circumstances, and when such contract gives to the obligee, if he be a creditor, any advantage over other creditors of the obligor.”

The question for determination, one of fact, is whether the plaintiff knew of the insolvency of his debtor at the time the chattel mortgage was executed. It is admitted that defendant was, as a matter of fact, insolvent at the time, but plaintiff denies knowledge of that fact. Counsel for the receiver make the point that direct evidence of knowledge of insolvency is practically impossible to secure and that it suffices to establish certain facts creating a strong presumption. They cite Calcasieu National Bank v. Campbell, 155 La. 383, 99 So. 337; Ventrilla v. Tortorice, 160 La. 521, 107 So. 390; and In re Morgan & Co., 155 La. 915, 99 So. 696. We are of opinion that the point is well taken and supported by the authorities cited; but we arise from our consideration of the record in this case with the conviction that the evidence here is not such as to warrant the conclusion that the plaintiff knew of the insolvency of his debtor, giving full effect to the principle referred to by counsel and established by the cited cases. The best that can be said concerning the testimony from the standpoint of defendant is that the Badeaux Company, Inc., was not prompt in the settlement of its bills, but very slow to pay, and required much prodding by their creditors. While it is unquestionably true that the plaintiff was aware of the unsatisfactory credit risk involved in its transactions with the defendant, it cannot be said, from the evidence before us, that' ha knew, or had cause to believe, his debtor to be insolvent at the time the mortgage was executed. The fact that a corporation is slow to pay its bills may be due to difficulty experienced in making its collections. We understand that this was the explanation given the plaintiff by officers of the Badeaux Company, Inc., when demands were made for a more satisfactory settlement of its obligations.

We are in accord with the finding of the trial court upon the issue of fact which alone is involved, and, consequently, for the reasons herein assigned,

The judgment appealed from is affirmed.


text:
    No. 13,423
    Orleans
    DAWSON v. TOYE BROS. YELLOW CAB CO., INC., ET AL.
    (January 5, 1931. Opinion and Decree.)
    Henry M. Robinson, of New Orleans, attorney for (plaintiff, appellant.
    David Sessler, of New Orleans, attorney for Toye Brothers Yellow Cab Co., defendant, appellee.
    Henry M. Mayo, of New Orleans, attorney for Charles Dennery, Inc., defendant, appellee.
   WESTERFIELD, J.

Plaintiff in this case was injured as the result of a collision between a taxicab in which he was riding and a motortruck. He brings this suit against the owner of the cab and the owner of the truck, in solido. Each defendant answered denying responsibility for the accident. There was judgment below in favor of both defendants, dismissing plaintiff’s suit. Plaintiff has appealed.

It is obvious that the plaintiff in this case must recover from one or the other, or both defendants, since, as a passenger in a public carrier, he cannot be charged with responsibility for the accident. The fact of his injury gives rise to the presumption that the driver of the taxicab was negligent, since, under ordinary conditions, with proper direction and control,, taxicabs do not collide with other vehicles. Hamburger v. Katz et al., 10 La. App. 217, 120 So. 391.

The accident occurred at the intersection of Howard and Magazine streets. The taxicab entered the intersection from the direction of the river, on Howard street. The truck was proceeding up Magazine street in the direction of Audubon Park. According to the driver of the truck it had been raining just prior to the collision and the streets were slippery and his brakes would not hold. He claims to have been running at a rate of eighteen to twenty miles per hour, when, as he reached the intersection, the taxicab suddenly shot out in front of him and he attempted to avoid striking the cab by turning in Howard street, but collided with it in the intersection, his front wheel striking the rear wheel of the cab.

Upon his testimony alone we find him negligent because, under the conditions obtaining, his speed was excessive. He should not have driven his heavy truck over wet, slippery pavement at eighteen or twenty miles an hour.

As to the taxicab, the evidence in the record is to the effect that he entered the intersection of Magazine street, a wide thoroughfare with two street car tracks, from Howard, a narrow intersecting street, without stopping, and, according to some witnesses, without blowing his horn. It is insisted in his behalf that there is no evidence to show that there is any “stop” sign on the pavement and, consequently, no necessity for the driver of the taxicab to have stopped before entering the intersection. The city traffic ordinance does not appear to have been introduced in evidence, but, independently of any requirement of that ordinance, we observe that it was the duty of the taxicab driver to have stopped his car when entering a broad thoroughfare with two street car tracks from a narrow side street. In any event, he has not successfully overcome the presumption of negligence which arose from the fact of the accident. We are of the opinion that the drivers of both vehicles were at fault.

It is strenuously insisted that the plaintiff in this case was not injured to any appreciable extent. He has claimed $300 for contusions, bruises, shock and damage to his clothing. In our judgment he is not entitled to anything more than nominal damages. We are convinced that he suffered some shock, being rendered unconscious for a few minutes, and that his hat was soiled and his coat slightly torn. He was taken to the Presbyterian Hospital, where he remained a few minutes, but there is no testimony in the record from any doctor or nurse who may have treated him at that institution. For the shock and possible damage to his clothing we believe the sum of $50 to be a proper award.

For the reasons assigned the judgment appealed from is reversed • and it is now ordered that there be judgment in favor of the plaintiff and against the defendants, Toye Brothers Yellow Cab Company, Inc., and Charles Dennery, Inc., in solido, in the full sum of $50, interest and costs.


text:
    No. 13,474
    Orleans
    SIMPSON v. PARDUE ET AL.
    (November 17, 1930. Opinion and Decree.)
    B. J. Allen, of New Orleans, attorney for plaintiff, appellee.
    E. D. Saunders, of New Orleans, attorneys for defendants, appellants.
    HIGGINS, J., takes no part.
   ON MOTION TO DISMISS

WESTERFIELD, J.

The appellee moves to dismiss this appeal upon the ground that the appeal bond was filed too late. The judgment against the defendants in the sum of $212 with legal interest from December 6, 1928, was rendered on March 31, 1930. A motion for a devolutive and suspensive appeal was filed on April 1, 1930, and an appeal granted, returnable April 25, 1930, conditioned upon the defendants furnishing bond as required by •law “in the sum of $50.00 for the devolutive appeal and the amount fixed by law for the suspensive appeal.” Twenty-four days thereafter or on April 24, 1930, a suspensive appeal bond in the sum of $350 was filed. Article 575 of the. Code of Practice requires suspensive appeals to be taken within ten days excluding Sundays. This appeal was obviously not within the time allowed for a suspensive appeal and, therefore, cannot be maintained as such. But, the bond was filed well within the year allowed for a devolutive appeal, and, though doubtless intended as security for the suspensive appeal, can, we believe, be allowed to support the devolutive appeal for which an order had been obtained and granted, the bond being for a sum much greater than the amount of security required in the order granting a devolutive appeal. See Harrell v. Gondolf, 6 La. App. 50.

For the reasons assigned the appeal herein taken is dismissed, as suspensive and maintained as a devolutive appeal.


text:
    No. 13,366
    Orleans
    PERRET v. GERACI
    (December 1, 1930. Opinion and Decree.)
    (January 5, 1931. Rehearing Refused.)
    John J. Wingrave, of New Orleans, attorney for plaintiff, appellant.
    I. F. Williams, of New Orleans, attorney for defendant, appellee.
   JANVIER, J.

Plaintiff, a longshoreman employed in the Robin street wharf on the river front in New Orleans, after completing his day’s work was on his way from the wharf to board a street car, when he sustained the injuries for which he now seeks remuneration.

As is no doubt well known, the various sheds at the port of New Orleans extend along the left descending bank eS the river, and on the city side of the sheds there is a paved roadway which parallels the river.

In the side of each shed nearest the roadway are numerous large doorways, in each of which there is a metal curtain which may be lowered so as to enclose the wharf space within the shed, or raised to permit passage of pedestrians or vehicles to and from the shed. Most of these curtains are normally kept closed, but it is customary to permit some of them to remain raised for ingress and egress of traffic.

As plaintiff passed through one of these openings to make his way across the roadway, there was, immediately to his right, a parked automobile facing him. This car was standing parallel to the shed and at a distance of about three or four feet from it.

After crossing in front of this parked car, plaintiff continued for a, distance of some three or four feet, when he came into violent contact with another automobile driven by defendant, and which had approached from his right; that is to say, from the direction in which the parked automobile, to some extent, obstructed his view of the approaching car, and likewise prevented defendant from obtaining a clear view of plaintiff.

It is charged that defendant approached at too rapid a speed; that he failed to sound any: warning of his approach, and that he was not on the proper side of the road.

These charges of negligence are denied by defendant, who claims that the accident resulted from the carelessness of plaintiff himself in stepping out into the roadway without looking.

The judge, a quo, dismissed plaintiff’s suit, apparently satisfied that he was, to say the least, guilty of contributory negligence.

The evidence leaves no doubt whatever that plaintiff at no time looked into the direction from which defendant was approaching. He admits that he had not yet looked in that direction at the time of the accident and he also admits that he knew that, on the roadway, vehicles were permitted to be operated in both directions.

There is a sharp dispute as tc whether the horn was blown and as to the speed of the approaching car. This controversy the trial court seems to have determined adversely to plaintiff and the evidence justifies such a conclusion. Certainly the speed qf the automobile was not so extraordinary as to have made it impossible for plaintiff to have become aware of its approach, had he taken the proper precautions. That defendant’s car may not have been approaching on the proper side of the roadway is qf no great importance, since, even if it were negligence to drive anywhere except along the right side of a road, which is manifestly not so, still, plaintiff’s contributory negligence in stepping into the roadway without looking would bar his recovery. Bass v. Means et al., 12 La. App. 260, 124 So. 553; Ne-ville v. Postal Telegraph-Cable Co., 13 La. App. 76, 126 So. 720.

Nor can the doctrine of the last clear chance afford relief, since the evidence makes it certain that there was no time, after discovery of the peril, for defendant to stop his car, or to otherwise avoid the accident. Williams v. Lykes Bros. Steamship Co., 12 La. App. 127, 125 So. 153.

The judgment appealed from is affirmed.


text:
    No. 13,459
    Orleans
    GURTNER v. BORDES
    (December 15, 1930. Opinion and Decree.)
    (January 5, 1931. Rehearing Refused.)

      Melvin P. Barre, of New Orleans, and Alexis Dumestre, of Metairie Ridge, attorneys for plaintiff, appellant.
    F. A. Middleton, of New Orleans, attorney for defendant, appellee.
   WESTERFIELD, J.

Plaintiff’s son, Edward Gurtner, was struck over his right eye by a club in the hands of defendant’s son, Frank Bordes, Jr. As a result of the accident, young Gurtner suffered the loss of his eye. His father brings this suit against the father of Frank Bordes, Jr., claiming $5,000 as damages for the use and benefit of his minor son. There waS judgment below in defendant’s favor and plaintiff has appealed.

The unfortunate accident on which this suit is based occurred while the two'boys aged respectively ten and fifteen years, Bordes being the elder, were at play in the public streets in the Parish of Jefferson. They were playing a game which they called “golf” with a club improvised from a stick found in the neighborhood, using stones in place of golf balls. There were but two witnesses to the accident, the boys themselves. According to the version of plaintiff’s son, he was standing about four feet in front of young Bordes, who had the club in his hand and was preparing to strike a stone lying in the street; that Bordes swung the club, missed the stone and, suddenly changing his position so as to come within range of his eye, struck him on the .eyebrow on the upswing of the stroke. The negligence of defendant’s son, for which his father is sought to be made answerable in damages, is said to consist in the fact that he struck at the stone without observing that the Gurtner boy was in dangerous proximity and within the range .of his club. If we accept the account of the affair as given by young Gurtner, it would be difficult to see how a recovery could be had because of the obvious negligence of plaintiff’s son, which would have contributed to the result. The account of the accident as given by defendant’s son differs materially. The Bordes boy says that young Gurtner was not in front of him, and, insofar as he could tell, nowhere near him when he struck at the stone, and that the blow was inflicted on the backward stroke of his swing, Gurtner having placed himself within range of the club without his knowledge. If this be the true version, it is apparent that Bordes cannot be charged with any negligence. Both boys were friendly and were playing together at the time. First one would use the club to strike stones and then the other. That this comparatively safe pastime should have had such disastrous consequences is much to be regretted, but, viewing the case from the standpoint of either plaintiff or defendant, we see no reason to place the entire blame upon the defendant’s son. At any rate it is certain that plaintiff has failed to sustain the burden of proof.

The judgment of the trial court appears to be correct, and, for the reasons herein assigned, it is affirmed.


text:
    No. 9788
    Orleans
    SUCCESSION OF WALSH
    (December 1, 1930. Opinion and Decree.)
    (December 15, 1930. Rehearing Refused.)
    (February 2, 1931. Writs of Certiorari and Review Refused by Supreme Court.)
    Dart & Dart and Louis C. Guidry, of New Orleans, attorneys for plaintiff, appellant.
    Frank P. Krieger, of New Orleans, attorney for defendant, appellee.
   JANVIER, J.

After the death of Michael Walsh, judgment in his succession proceedings was rendered, under which his widow, together with three daughters and one grandson, John Walsh, age thirteen years, were sent into possession of the estate. The widow in community was recognized as the owner of. an undivided one-half of the community property and the three children together with the grandson, son of a predeceased child, were sent into possession, each of an undivided one-quarter of the remaining undivided one-half.

Among the community property inventoried there appeared certain real estate described as follows:

“A certain tract of land situated - in the Parish of Tangipahoa, State of Louisiana, described as follows:
“First, the W% of S% of SW% of Section 4, Township 5, S. Range 7 E, containing forty (40) acres more or less.
“Second: the E% of S% of SW% of Section 4, Township 5, S. Range 7 E. containing forty (40) acres more or less.”

Thus as a result of the said judgment of possession the- real estate in question was placed, in the possession of the following persons in the proportions set forth:

Mrs. Ellen McDonald Walsh (widow), one-half.

Catherine Julia Walsh (daughter), one-eighth.

Claire Elizabeth Walsh (daughter), one-eighth.

Mary Walsh (daughter, wife of F. E. Clesi), one-eighth.

John Walsh (minor grandson), one-eighth.

The widow, Mrs. Ellen McDonald Walsh, thereupon qualified as the natural tutrix of her minor daughters, Catherine and Claire, but no one was appointed as the representative of the minor grandson, John.

About eighteen months after the judgment of possession was rendered, Mrs. Walsh, as the natural tutrix of her minor child, Claire Elizabeth, filed, in the tutorship and succession proceedings, a petition in which she alleged that although the realty above described'had stood on the public records in the name of her deceased husband and had been inventoried as forming part of the community estate, formerly existing between her and him, in truth and in fact it belonged to one David F. Williams, for whom it had been bought, and who had paid the said Walsh in full therefor prior to the death of the said Walsh.

In this petition Mrs'. Walsh as tutrix of her said minor child prayed that she be authorized to execute an appropriate notarial act transferring to Williams all claims or interest of the said minor in and to the said realty. An order to this effect was rendered. It appears that the other minor child, Catherine, had in the meantime become the wife of Frank P. Viscardie and had thus become emancipated by marriage.

Thereafter the said David F. Williams filed a petition in the succession proceedings in which he alleged that he was in fact the real owner of the realty in question, for the reasons to which we have already referred; that Mrs. Walsh, on her own behalf and as the specially authorized tutrix of her minor child, and the other daughters, Catherine Walsh Viscardie and Mary Walsh Clesi, had executed the necessary notarial acts to transfer to him their respective interests or claims in and to the said property, but that the said grandson, John Walsh, was an unrepresented minor; that a curator ad hoc should be appointed to represent him in this matter; and that judgment should be rendered against the said minor recognizing the said Williams to be the true and lawful owner of the whole of the said realty.

It thus appears that the said Williams, when he filed this petition, was in undisputed possession and ownership of an undivided seven-eighths of the property and the only portion in dispute is an undivided one-eighth, standing in the name of the minor, John Walsh.

On this petition an order was granted appointing Nicholas G. Carbajal "curator ad hoc” to represent the minor John Walsh.

The said curator ad hoc thereupon filed answer denying all the material allegations of Williams. When the matter came on for trial, Nicholas G. Carbajal did not appear in person to represent the minor, the note of evidence showing that the minor was represented by “Nicholas G. Carbajal through Mr. Milton De Reyna.”

Plaintiff, Williams, submitted proof in the form of oral testimony fully corroborative of the allegations of his petition. No objections were interposed to the introduction of oral evidence to prove title to realty and there was no evidence to the contrary, and judgment was thereupon rendered decreeing Williams to be the owner of the entire property in question.

From that judgment an appeal has been taken, and on behalf of the said minor it is contended that evidence, consisting solely of verbal testimony, was inadmissible, since title to real estate may not be proved by parol. Ample authority supports this proposition.

In Maskrey v. Johnson, 122 La. 791, 48 So. 266, the Supreme Court said:

“Where the owner of real estate, uninfluenced by fraud or error, vests the title thereto in another, such title can be devested, as simulated, only upon the production of a counter letter, or upon the basis of answers, elicited from the apparent owners, to interrogations on facts and articles.”

In the syllabus in the matter of Sagory v. Bouny, 42 La. Ann. 618, 7 So. 785, is found the following:

“In a suit brought against the widow and heirs of a deceased person for the recovery of real property standing in his name at the time of his death, on the theory that deceased was agent for plaintiff, and improperly tok title in his name, held, parol evidence is inadmissible to prove fraud in taking title in his name, that deceased was plaintiff’s agent to buy real estate, or for the purpose of establishing title in the plaintiff.”

In Freed Realty Co. v. Singer, 5 La. App. 551, the court said:

“Parol evidence to show that a purchaser bought property in his name for account of another, or as agent or otherwise, is not admissible.”

See, also, Hackenburg v. Gartskamp, 30 La. Ann. 898; Perrault v. Perrault, 32 La. Ann. 635; Hanby v. Texas Co., 140 La. 189, 72 So. 933; Succession of Block, 137 La. 302, 68 So. 613; Hoffmann v. Ackermann, 110 La. 1070, 35 So. 293; Turner v. Snype, 162 La. 117, 110 So. 109; Eberle v. Eberle, 161 La. 313, 108 So. 549; Succession of Lewis v. Lewis, 129 La. 638, 56 So. 621.

In answer to this contention counsel for appellee, Williams, argues that though title may not be proved by parol, nevertheless, if such evidence is admitted without objection, it is competent and, in support of this view, our attention is called to the following authorities:

Babineau v. Cormier, 1 Mart. (N. S.) 456, in which the court said:

“If parol evidence, in regard to immovable property, be admitted without objection in the inferior court, it cannot be objected to on the appeal.”

In Samuel Packwood v. J. L. White et al. 7 La. Ann. 31, we find the following:

“Parties are at liberty to admit parol evidence of a contract for land, and if they do so, the court will give effect to the same. (Cited in McLaughlin, Davis & Co. v. Sauve, 13 La. Ann. 100; Pauline v. Hubert, 14 La. Ann. 162).”

Many other cases are cited in support of this contention.

But it is guite apparent that here the situation is not the same as is presented where the parties are of full age and are represented by attorneys of their own selection. In such cases the failure to object to the introduction of improper evidence constitutes a waiver of the objection and renders admissible and . competent that which might have been excluded. But in the case of a minor, represented by a curator appointed by the court, no waivers are permitted. All objections which ought to be made must be considered as having been made. The minor in such a case is the special ward of the court, and his rights will not be permitted to be prejudiced by the failure of his appointed representative to alertly guard his interests.

In Saenger Amusement Co., Inc., v. Masur et al., 158 La. 745, 104 So. 701, 703, is found a case closely resembling this one in the. principle now under consideration. The court said:

“The only claim to consideration which this evidence presents is based upon the fact of its admission without objection. Upon its face it is no more than a conclusion of the witness as to the effect of public records. But in this case the defendants are minors and represented by a curator. The law does not permit a curator to waive anything, and will not hold his principal to the same accountability for his actions as for the actions of an attorney at law employed to represent him.”

In another case cited in the Saenger case (Bienvenu v. Factors’ & Traders’ Insurance Co., 33 La. Ann. 213), the same doctrine is announced, namely, that the rights of a minor cannot be lost by the failure of a judicially appointed representative to fully protect his interests. See, also, Jacobs v. Kansas City Southern & Gulf R. Co., 134 La. 389, 64 So. 150.

It is argued that the equities are with the plaintiff and that the uncontradicted evidence of all of the other interested parties to the effect that Williams is the real owner of the property shows that the min- or is attempting to take advantage of a technical situation for his own benefit.

There is no opportunity for a consideration of the equities which may exist as between the parties. In such a situation it is true that there is a possibility that a minor may take advantage of technical rules of evidence to obtain or maintain rights to which he is not entitled. On the other hand, unscrupulous majors might, by connivance, deprive an unprotected min- or of legitimate property rights unless these rights are to be protected by the rule that they may not be waived by his appointed representative. But, whatever may be the equitable result, the legal situation remains the same and prevents the admission of the only evidence offered in support of plaintiff’s claim.

In view of the fact that we have come to the conclusion that even the curator appointed to represent the minor has no authority to waive his rights, we need not consider the question that is presented by the fact that the curator did* not appear in person but sent a substitute to represent him.

We are of the opinion that a judgment of non-suit would be proper under the circumstances, since if there be proper evidence available, plaintiff should be permitted the opportunity of presenting it in another proceeding if he sees fit to bring one.

The judgment appealed from is therefore annulled, avoided, and reversed, and there is now judgment in favor of defendant, John Walsh, and against plaintiff dismissing plaintiff’s suit as in case of non-suit.