author:
ELLIOTT, J.
      LECHE, J. MOUTON, J.

text:
    No. 1580
    First Circuit
    T. W. HUDSON v. LOUISIANA RAILWAY & NAVIGATION CO.
    (December 8, 1925, Opinion and Decree)
    (January 28, 1926, Rehearing Refused)

      (Syllabus by the Editor.)

    1. Louisiana Digest — Pleading—Par. 126, 131.
    Where defendant fails to avail himself of the right to except on the ground of vagueness, it is too late for him to obtain virtually a dismissal of the suit by objecting to the admissibility of the evidence under the pleading.
    2. Louisiana Digest — Damages—Par. 38.
    One who operates a sawmill is entitled to the loss of profits that he would have made in manufacturing the lumber out of logs due to his inability to haul logs over a road blockaded by a pile driver and train equipment of a railroad.
    (Civil Code, Art. 2315. Editor’s note.)
    Appeal from the Twentieth Judicial District, Parish of West Feliciana, Hon. Chas. Kilbourne, Judge.
    Action by T. W. Hudson against Louisiana Railway & Navigation Company. There was judgment for plaintiff and defendant appealed.
    Judgment amended and affirmed.
    E: S. Muse, of St. Frhncisville, attorney for plaintiff, appellee.
    James H. Kilbourne, of St. Francisville, attorney for defendant, appellant.
    LECHE, J. Concurs, written reasons.
    MOUTON, J. Dissents, written reasons.
   ELLIOTT, J.

T. W. Hudson alleging that Louisiana Railway & Navigation Co. had for three days during the month of March and two during April, 1923, blockaded with its pile driver and train equipment, the only logging road, whereby he was able to haul logs to his sawmill which he was operating on the line of defendant’s railroad, in such a way that it was impossible to get logs to his mill and that as a consequence he was forced to shut down his mill on said days and suffered a loss amounting to $531.00 on account of said act of defendant, brought suit to recover said amount. He further alleged that the blocking of said crossing was not necessary; that if it had been left open he would not have suffered the loss aforesaid. That he requested defendant not to block the crossing, but defendant persisted in and did actually and deliberately block the road and thus compel him to shut down his mill and suffer a loss aforesaid.

Defendant for answer denied plaintiff’s allegations on the subject of damage and urged that plaintiff had no right to haul logs across defendant’s right of way without defendant’s permission, which he did not have; alleges that it had the right to obstruct the crossing as was done; that the obstruction on the days mentioned was due to forces over which defendant had no control and therefore even if plaintiff was damaged, defendant was relieved of responsibility on said account and prayed that plaintiff’s demand" be rejected, etc.

The parties went to trial on the issue thus formed, but when plaintiff offered evidence, the purpose of which was to show that as a result of the blocking and his inability to haul logs over it to his mill on the days stated, his mill had to be shut down and that the $531.00 damages claimed was the loss which he sustained on account of being unable to get logs to manufacture into lumber, defendant objected, on the ground that plaintiff’s petition was too vague and uncertain to admit proof thereof; the objection states that no particulars of any damage are given in the petition, no items of damage specified and only a gross sum claimed.

The district judge received the evidence, subject to the objection. In deciding the case he overruled the objection, considered the evidence and rendered judgment in favor of plaintiff as prayed for.

Defendant appealed and urges that its said objection should have been sustained and the evidence not heard and we are urged not to consider the evidence. The objection will be considered first.

The petition of judicial demand should express clearly what is demanded, C. P., Art. 151. It must contain a clear and concise statement of the object of the demand. C. P., Art. 172, No. 4. Defendant urges that plaintiff’s petition does not comply with the law in stating clearly what is demanded; that it was surprised by the evidence; not prepared to defend on the ground for which the evidence was offered. Sawmills are operated for the purpose of manufacturing lumber out of logs. Lumber must be sold in order to obtain a profit from its manufacture. Therefore the damages claimed, come as a reasonable inference from the wrongful obstruction, which prevented plaintiff from" manufacturing lumber.

The object of pleading is to notify the adverse party of the nature of the demand, so that the demand may be defended.

In this case defendant did not except to plaintiff’s petition as not conveying to defendant sufficient notice of- the way in which the damages claimed were sustained; but answered the demand set up by special defenses and prayed that the demand be rejected. If defendant was uncertain as to the manner in which the damages alleged by plaintiff had been sustained, it should have excepted in limine and before answering the demand, praying that it be rejected and called for more light on the subject.

In Oldham vs. Grogan, 3 N. S. 517, the Supreme Court, speaking of a petition, said:

“It is sufficient to apprise the adversary of the facts on which a claim is set up against him. The legal consequences of the case may be shown on the trial.”

The law C. P., Art. 316, 320, 321, furnishes examples, as a guide in matters of the kind and other matters. The law provides that when a defendant has answered to the merits joined issue and prayed that plaintiff’s demand be rejected that:’ “the parties are then in á position to discover that evidence is necessary in support of their respective claims”, C. P., Arts. 357, 359.

In Marr vs. Barnes, 1 Rob. 190, the Supreme Court held that “a motion requiring plaintiff to state more clearly his cause of action, was too late after answering to the merits”.

In this case, the damages claimed appearing to be a reasonable consequence of defendant’s act, it was too late to object to evidence, the purpose of which was to establish the damages claimed as a result of the shut down alleged. Ory vs. Winter, 4 Mart. N. S. 277; Hodge vs. Easten, 5 Mart. N. S. 57; Fierson vs. Irwin, 5 La. Ann. 531.

In Doulut vs. McManus, 37 La. Ann. 800, plaintiff sued defendant for slanderous remarks. The petition alleged what defendant had said of which plaintiff complained; valued the damages in a lump sum and prayed for judgment against the defendant for the sum claimed.

The defendant did not urge that the petition was vague or indefinite; but answered the demand, praying that it be rejected. When plaintiff offered evidence to prove the demand, defendant objected as was done in this case.

The court speaking of the petition says:

"It is clearly sufficient to place defendant in possession of the nature of the facts prepared to be proved, and to enable defendant to prepare his defense.
“The objection that the claim for specific damages has not been set forth and detailed under which plaintiff can recover, is likewise unfounded. That omission could not justify the rejection of the evidence. . It is well settled that vagueness wasn’t of precision or generality in the averments of a petition, should be taken advantage of by an exception, which should be filed in limine, before answer to the merits, unless the opposite party had therefrom no sufficient notice of the nature of the demand and would be surprised.
“It is likewise positive that the final judgment rendered on the merits of the controversy in favor of either of the litigants, will constitute res adjudicate, to any new suit brought on averments similar to those contained in the petition.”

See also Butchers’ Union, Etc., vs. Crescent City Co., 41 La. Ann. 358, 6 South. 508; Bickham vs. Hutchinson, 50 La. Ann. 765, 23 South. 902; Solomon vs. Gardiner, 50 La. Ann. 1293, 23 South. 896; Albinest vs. Yazoo & M. V. R. Co., 107 La. 133, 31 South. 675; Fox and Jewell vs. Barksdale & Sledd, 118 La. 339, 42 South. 957.

In this case we think, taking 'all the allegations of the petition together, defendant had notice of the way in which plaintiff claimed to have been damaged and when plaintiff’s allegations were denied, special defenses urged and the rejection of plaintiff’s demand prayed for, defendant’s objection came too late. Not only that but the final judgment rendered in this case will be res adjudicata as between these parties on the subject of the damages claimed. The record contains a letter from defendant to plaintiff dated August 14, 1923, in which defendant acknowledges the receipt of a letter from plaintiff, complaining of the inconvenience and loss, due to the obstructed crossing.

The objection' was properly overruled.

As for the merits, the contract offered in evidence concerning the use of the spur at Bruder, gave plaintiff the right to use the crossing in order to haul logs to his mill at that place; because the operation of a sawmill by plaintiff at that place was the object of the contract and the crossing offered the only route1 by which logs could be hauled to the mill. Defendant completely obstructed the crossing and it was not necessary to have done so; the pile driver and train equipment could have been placed elsewhere at the time; but it was nearer to the washout being repaired to place it where it was done. Defendant by the contract, surrendered the right to Obstruct the crossing against plaintiff as was done.

Plaintiff’s claim for loss of profits that he would have made by manufacturing lumber out of logs, if his mill had not been shut down during the days mentioned is a very serious question. We have considered that it is unusual for a sawmill not to have spare logs on which he could operate for a few days and have also considered the further fact, that the daily and weekly net profit of his mill, during the months mentioned were not brought out.

Plaintiff testifies that his mill had a daily capacity of about 12,000 feet; that his total operating cost each day was about $151.00; that he manufactured about 7000 feet of lumber per day and received for it about $40.00 per thousand. He testified that it cost him $151.00 to manufacture $280.00 worth of lumber and we deduct $151.00 from $280.00 and according to which he earned a net profit of $129.00 per day and $516.00 in four days. Plaintiff in his testimony practically states that he claims but four days. We are clear that plaintiff is entitled to some damages but $129.00 per day appears very large.

As to the cut of the mill, cost of operation and price of lumber, plaintiff is corroborated by L. C. Smith.

Plaintiff says that he sometimes ran every day; but admits that a good deal depended on the weather as to whether he got logs to his mill.. On this subject he says:

“Q. Weather conditions and everything else would have permitted you to operate your mill on these days?
“A. Yes, sir. The weather was so that I could have run on these days, I could have run, unless some other misfortune happened.”

Whitty Young, plaintiff’s log hauler, corroborated him as to the weather on the days the crossing was obstructed.

There is no evidence to the contrary. We can not go out of the records on the subject of the amount of damages to be allowed and arbitrarily fix on some amount, againsfTall the evidence there is on the subject.

Plaintiff was indebted to defendant for rent of the spur at the time of the trial but we conclude that the stipulation in clause 13 of the contract with reference to the spur was the real, actual consideration on account of which plaintiff was given the right to use the spur.

Under the evidence before us the judgment appealed from appears to be correct; except in the matter of computation. We find that plaintiff’s figures entitle him to $516.00 instead of $531.00. The amount due plaintiff is therefore fixed at $516.00 instead of the sum named in the petition and as thus corrected the judgment is affirmed.

Plaintiff and appellee to pay the cost of the appeal; defendant the cost in the lower court-

LECHE, J., concurs. For written reasons hereto attached.

MOUTON, J., dissents. For written reasons hereto attached.

LECHE, J.

In my opinion there is no hard and fast or arbitrary rule by which trial courts may be guided in admitting or rejecting evidence to establish damages which are only alleged in globo.

In Hernsheim vs. Levy, 32 La. Ann. 340, the court held that the single allegation “that the unlawful attachment of his goods has damaged him in his business to the amount of ten thousand dollars'” is sufficiently clear and certain for the admission of evidence to show the amount of claimant’s 'pecuniary loss.

In the case of Doullut vs. McManus, 37 La. Ann. 800, the court holds that lack of detail in specifying damages should be taken advantage of by exception which should be filed in limine, and does not justify the exclusion of pertinent evidence.

In Townsend vs. Fontenot, 42 La. Ann. 890, 8 South. 616, the court says, the allegation that plaintiff is entitled to recover $9000.00 “for actual damages sustained by your petitioner by the wrongful seizure $5000.00, for vexation of mind, trouble and annoyance to himself and family, and time lost by him, in the sum of $2000.00, for punitory and examplary damages in the sum of, $1000.00, for attorney’s fees in the sum of $1000.00”, is too uncertain and inadequate to admit of proof.

In Bickham vs. Hutchinson & Bailey, 50 La. Ann. 567, 23 South. 902, the court says, that it is better practice to itemize the damages, but it is not always adhered to; that the court had repeatedly sanctioned pleadings for damages, in which specific and separate amounts were not claimed for each particular and definite damage, and it then proceeds to cite authorities.

In Williams vs. Pope Mfg. Co., 52 La. Ann. 1442, 2 South. 851, the court says, that an objection to the effect that defendant is entitled to know how plaintiff divides her damages, what portion is actual and what portion is punitory, is without merit and cites the Bickham case.

In Louisiana Railway & Navigation Co. vs. Sarpy, 117 La. 156, 41 South. 477, the syllabus by the court reads: “Where in an expropriation suit, a lump sum is claimed by way of damages and the petition sets forth a number of distinct items or elements of damage,, without specifying the proportion of the sum claimed which is to be attributed to either of them, testimony offered in support of the claim is properly rejected."

In Davis vs. Arkansas S. R. Co., 117 La. 329, 41 South. 587, the court says that the plaintiff’s “pleading was certainly very loose, and defendant was entitled through the appropriate except to have had the plaintiff ordered to make specific allegations as to the fact of damage, the amount thereof and of what elements composed, and itself relieved from answering until this should be done, in order that it might meet and répel the demand if it could. It is entitled to that information and relief now”. The case was remanded to the trial court with the right reserved to plaintiff to amend her petition, a ruling to this effect was also made in the case of Gumpert vs. Werlein, 149 La. 843, 90 South. 215.

The pertinent allegations in plaintiff’s | petition in this case, are that he is engaged I in operating a sawmill, that the only means within his control to reach his sawmill and to supply it with logs, is by a road I crossed by defendant’s tracks, that said! road was blocked for five days by defend-1 ant’s pile driver and work train; that I plaintiff requested defendant’s employees I to move said train, but that they failed to[ do so, thereby ‘making it impossible to I supply his mill with logs; that plaintiff! was compelled to shut down his mill and that defendant thereby caused him a loss of five hundred and thirty-one dollars, which amount he claims as damages.

There is no doubt that upon reading the written demand of plaintiff, defendant could not from the petition itself, say of what the damage claimed by plaintiff was composed, and that under Art. C. P., 172, the petition should have contained a clear and concise statement of the object of the demand,) as well as the cause of action on which it is founded. Defendant was left to guess what particular items of damage plaintiff had suffered and by what method he had reached the conclusion that his loss whether in money or profits, amounted to $531.00.

In the case of Davis vs. Arkansas S. R. Co., 117 La. 330, 4 South. 587, the organ of the court as I understand his language, at pages 328 and 324, intimates that the Code of Practice has established' a method of making certain that which is vague in pleadings by means of the proper exception and that where a defendant fails to avail himself of such exception, he is not entitled to a dismissal of the suit, a result which would inevitably follow in this case, if plaintiff’s proof were declared inadmissible. The ruling in the 37 La. Ann. case of Doullut vs. McManus, at page 802, seems to be to the same effect, although in the cases of L. R. & N. Co. vs. Sarpy, 117 La. 156, 41 South. 477, and Townsend vs. Fontenot, 42 La. Ann. 890, 8 South. 616, the admission of proof was refused and the claims dismissed.

To remand the case in order to afford plaintiff an opportunity to amend, would be tantamount to the court’s supplying an exception of vagueness which defendant failed to file.

In this unsettled condition of the jurisprudence of this state, I believe it is more reasonable to follow the principles laid down in the Doullut and Davis, eases, and to hold that where a defendant fails to avail himself of the right to except on the ground of vagueness, it is too late for him to obtain virtually a dismissal of the suit by objecting to the admissibility of the evidence under the pleadings.

For these reasons, I concur with my colleague Judge Elliott, in the decree which he has prepared.

MOUTON, J.

(Dissenting.)

Plaintiff alleges that he operates a sawmill at Bruder Spur on the line of defendant company; that during the months of March and April, 1923, defendant blocked the roadway leading to his mill, and across the tracks of defendant, with a pile driver and train equipment making it impossible for plaintiff to supply his mill with logs, and as a consequence he was forced to shut down his mill and has suffered the loss of $531.00 on account of the said acts of defendant company. Further on in his petition plaintiff alleges that the blocking of the roadway by defendant prevented plaintiff from “going to his said sawmill with logs for manufacture into lumber”. Grounding his claim on these allegations plaintiff is asking judgment against defendant in the sum aforesaid with legal interest from judicial demand.

On proof being offered to sustain the demand, defendant promptly objected thereto to show loss or damage, for the reason, that the allegations of the petition as to the damage claimed are too vague, indefinite and uncertain to admit proof thereof, no particulars of any kind being given, no items of damage being specified and only a gross sum of damage being claimed. The court permitted the evidence to establish damages to go in under reservation, and in rendering judgment, overruled the objection and held that the evidence had been properly admitted. In support of his contention that this evidence was competent under the allegations of his petition, plaintiff relies mainly on Doullut vs. McManus, 37 La. Ann. 800 one of the leading cases of the Supreme Court of this state on this subject. In that case the claim was in damages for a malicious slander and defamation of character. In the course of the opinion, the court said: “The petition contains a clear statement of the time, place and circumstances of the occurrence. It specifies the words used. It charges malice, want of provocation and absence of all justification. It values the damages, real and vindictive, and prays for corresponding relief.” Continuing and in referring to' the petition, the court says: “It is clearly sufficient to place defendant in possession of the nature of the facts proposed to be proved and to enable him to prepare his defense.” It says also that defendant was sufficiently informed of the essential facts on which plaintiff relied to claim damages. Upon the foregoing analysis of the petition the court in the syllabus of the case, said: that “Vagueness, want of precision or generality in the averments could be taken advantage of by exception before issue joined, unless the opposite party has not therefrom had sufficient notice of the nature of the demand and would be truly surprised.” Then follows this line: “The object of pleading is to notify the adverse party, so that he may be prepared to rebut.” The other case New Iberia Tel. Exchange vs. Cumberland Tel. and Tel. Co., 51 La. Ann. 1025, 25 South. 975, recognizes the doctrine that damages may be claimed in globo subject to the requirement that each item constituting the total demanded should be sustained by proof. Here, plaintiff claims $531.00 in a lump or round-sum. This he had a right to do under our law of pleadings, and he was not therefore required to specify the items, if any existed, which together constituted this lump sum claimed. This we recognize as being the correct rule in .such cases. In the instant case the only allegation of plaintiff in reference to the damage is that by reason of the alleged blocking of his roadway he was “forced to shut down his mill and has suffered the loss” of which he complains. Was it possible for defendant under such a general statement of the alleged “loss” to be apprised of what it was? Plaintiff in support of his claim, offered evidence showing the value of the manufactured lumber from the mill, less the cost of manufacture, for the purpose of establishing the profits he was making. Deprivation of these profits by the blocking of the roadway during four days constituted his alleged loss for which he claims the damages. He contends that the loss of these profits is the only damage he would have suffered. We can not accede to this proposition. In being forced to close his mill, for aught, defendant knew, he might have suffered the loss claimed in paying the employees of the mill while it was not running or from some other cause. It can not be said that defendant could be legally apprised that the loss was in the profits he was deprived on the manufactured lumber, unless he could have surmised this by the mere reference in plaintiff’s petition that he was “manufacturing” the logs in his sawmill “into lumber”. The object of pleading says the court in the 37 A. 800, is to notify the adverse party so that he may be prepared to rebut.

Measured by this rule, defendant was not notified so that he might have submitted counter proof to the claim that plaintiff had suffered the loss of profits as a consequence of his acts. He was not apprised' of the nature of the facts proposed to be proved to enable him to prepare his defense which was the situation in the case above quoted., Not being apprised that the damages claimed were the result of the loss of profits or of some other cause, defendant was not in a position to prepare himself to “rebut” or to prepare his defense. The objection to the evidence should have been maintained, and it was therefore improperly admitted. In his brief plaintiff claims that the blocking of the roadway was a violation of his rights, and entitles him at least to nominal damages. There is no claim whatsoever in damages for a violation of his personal or property rights. The demand is restricted exclusively to 'the demand in damages for the forced closing of his sawmill, and no damages could he allowed for the violation of his rights urged in the brief.

Counsel for plaintiff has referred us to a number of decisions from common law courts which he contends supports his position. We do not find, however, that the Doullut vs. McManus, 37 La. Ann. 800, to which he has referred or that any other case decided by our courts, sustains his contention in the instant case on the point under discusison.

Guided by the rules governing on this subject in our jurisprudence, I am of the opinion that the objection to the evidence should have been maintained and therefore dissent from the majority opinion of the court.


source: Caselaw Access Project

author: REYNOLDS, J.

license: Public Domain

text:
    No. 2613
    Second Circuit
    LOUISIANA LOAN & INVESTMENT CORPORATION v. ST. JOHN
    (May 7, 1926, Opinion and Decree)

      (Syllabus by the Court.)

    1. Louisiana Digest — Pleading—Par. 62.
    When a petition discloses a cause of action as to any portion of the amount sued for, an exception of no cause of action should be overruled. Davis vs. Arkansas Southern Ry. Co., 117 La. 320, 41 South. 587.
    2. Louisiana Digest — Bills and Notes-Par. 193.
    Plaintiff in a suit on a promissory note, to which there is attached as collateral security thereto, a mortgage note, has no , cause of action to ask that the property described in the mortgage securing the mortgage note be seized and sold to satisfy the judgment that might be rendered on the principal note.
    Appeal from the Fifth Judicial District Court of Louisiana, Parish of Franklin, Hon. John R. McIntosh, Judge.
    Action by Louisiana Loan and Investment Corporation against Harry A. St. John. There was judgment for plaintiff and defendant appealed.
    Judgment reversed in part.

      George Gunby, of Monroe, attorney for plaintiff, appellee.
    Thompson and Berry, of Winnsboro, attorneys for defendant, appellant.
   STATEMENT OP THE CASE

REYNOLDS, J.

Plaintiff sued defendant on a promissory note signed by him for $2500.00, dated March 1, 1922, drawn payable to the order of Louisiana Savings Bank & Trust Company sixty days after its date and by said company endorsed in blank, bearing interest at the rate of eight per cent per annum from its maturity until paid and stipulating for the payment of ten per cent on the amount of principal and interest as attorney’s fees if placed in the hands of an attorney for collection, and acquired by the plaintiff from the payee in due course before maturity; subject to a credit of $650.00 paid May 30, 1923; and to which there was attached, as collateral security thereto, another note for $4,000.00, also signed by defendant, dated July 30, 1920, drawn payable to the maker’s own order on July 30, 1921, and by him endorsed in blank, bearing interest at the rate of eight per cent per annum from its maturity until paid and stipulating payment of ten per cent on the amount of principal and interest as attorney’s fees if placed in the hands of an attorney for collection, and is paraphed “He Varietur” by T. Y. Berry, a Notary Public of Franklin parish, Louisiana, under date of July 30, 1920, to identify it with an act of mortgage of that date, a certified copy of which is attached to and made part of the petition, securing its payment, granted by defendant and his wife, Mrs. Golda St. John, who joined him therein for the purpose of waiving homestead exemptions, on lots 1, 2, 3, 4 and 5 of block 14, of the Landauer and Ellis addition to the town of Winnsboro, Louisiana; which mortgage was filed for record August 25, 1920, and recorded September 13, 1920, in mortgage book 1 at page 607 of the mortgage records of Franklin parish.

It prayed for judgment against the defendant for $2500.00 with eight per cent per annum interest thereon from March 1, 1922, until paid, and ten per cent on the whole, as attorney’s fees; less a credit of $650.00 as of May 30, 1923.

It also prayed that its pledge of the $4000.00 mortgage note be recognized; that the mortgage securing the payment of that note be rendered executory; that the property described therein be seized and sold according to law for the satisfaction of that note; that out of the proceeds of such sale it be paid, in preference to all other persons, the amount of the judgment to be rendered in its favor on the principal note.

It further prayed for “such further judgment as under the pleadings herein it is entitled to”.

Defendant filed a plea of no cause of action which was overruled by the court.

He then filed a motion to require plaintiff to elect which cause of action it would prosecute, alleging that its petition presented two causes of action inconsistent with each other, one seeking judgment against him for the amount owing on the principal note and the other seeking, as pledgee, foreclosurei of the mortgage securing the pledged note. The court referred this motion to the merits.

Thereupon defendant answered alleging that defendant acquired the principal note' after its maturity; that he had paid to the payee therein named, plaintiff’s trans- j terror, 500.00 on the note in the summer of 1924, for which amount he was entitled to credit thereon; that in consideration of such payment plaintiff’s transferror had extended the time for the payment of the note for one year from the date of such credit; and that therefore plaintiff’s action was premature.

He prayed that the further prosecution of the suit be stayed until the expiration of the time granted him for the payment thereof and that he have credit on the note for the $500.00 as of the date of payment.

The District Court rendered judgment in favor of the plaintiff on the principal note for $2500.00 with eight per cent interest thereon from January 30, 1923, until paid, and ten per cent on the amount of the principal and interest, as attorney’s fees, less a credit of $650.00 as of date May 30, 1923, and less, also, a further credit of $500.00 as of date December 8, 1923; and recognizing plaintiff’s pledge of the $4000.00 mortgage note as security for the payment of the principal note, and rendering the mortgage securing the payment of the $4000.00 note executory and ordering the mortgaged property sold according to law for the satisfaction thereof and the payment of plaintiff’s judgment out of the proceeds of such sale in preference to all other persons.

The defendant appealed.

H Plaintiff filed in this court an answer to ■the appeal and asks that the judgment ■appealed from be affirmed, and, in the alternative, that it be given by this court ftuch judgment as the pleadings and evidence entitle it to.

OPINION

Defendant’s exception of no cause of iction was properly overruled, for the reason that plaintiff’s petition expressed a cause of action on the principal note.

And the defendant’s motion to require the plaintiff to elect might well have been overruled also, for as we understand the petition it only expresses a cause of action on the principal note and there was therefore no other cause of action expressed with which it might be inconsistent. However, referring the motion to the merits instead of overruling it in no wise prejudiced defendant.

It was admitted by the plaintiff on. trial that after the petition in the suit had been drawn and forwarded to the Clerk of the District Court of Franklin parish for filing plaintiff had paid $500.00 on the principal note and was entitled to credit thereon as of date December 8, 1923, for that amount.

Defendant introduced no evidence in support of the allegation in his answer that he had been granted an extension of the time in which he had to pay the note.

The only issue between plaintiff and defendant is as to that part of the judgment appealed from rendering the mortgage securing the pledged note executory and ordering the mortgaged property seized and sold for the satisfaction of that note and the payment of the proceeds of the sale of the judgment in favor of plaintiff on the principal note.

In Ducasse vs. Keyser, 28 Ann. 419, the Supreme Court recognized the right of a pledgee to cumulate in one action a demand for the sale of the pledge with one for judgment for the debt to secure the payment of which the pledge was granted.

And in Freiler Mercantile Co. vs. Chaney, 146 La. 138; Fidelity & Deposit Co. vs. Johnson, 117 La. 880, that Article 3170 of the Civil Code authorizes a pledgee as owner of the pledge to suei the pledgee direct to obtain the sale of the pledge for the satisfaction of the debt to secure which it was given.

But plaintiff did not sue to have the pledge sold to satisfy the pledge debt. It asked that the mortgage securing the payment of the pledged note be rendered executory and the mortgaged property seized and sold. We know of no law and have been cited to none authorizing it to do this. Inasmuch as have been cited to none authorizing it to be done.

However, as the plaintiff, both in its petition and in its answer to defendant’s appeal, has asked that it be given such judgment as the pleadings and proof entitle it to if it be not entitled to that specifically prayed for by it and rendered by the lower court, under the authority of Code of Practice, Article 905, and the case of Lumkin vs. Reisor, 120 La. 597, 45 South. 518, we have authority to grant it the relief we think it is entitled to.

It is therefore ordered, adjudged, and decreed that that portion of the judgment appealed from reading as follows, to-wit;

“It is therefore ordered,, adjudged and decreed that there be judgment in favor of Louisiana Loan & Investment Corporation and against Harry A. St. John in the full sum of two thousand five hundred and 00-100 ($2500.00) dollars, together with eight per cent per annum interest from January 30, 1923. until paid, subject to a credit of $650.00 paid May 30, 1923, and an additional ten per cent of the above amount due as attorney’s fees; subject to a further credit of $500.00 paid December 8, 1923”

be and the same is hereby, affirmed.

It is further ordered, adjudged and decreed that that portion of the judgment appealed from reading as follows, to-wit;

“* * * and that said mortgage be and the same is hereby rendered executory;' that the property be seized and sold and out of the proceeds therefrom plaintiff be paid the amount of the judgment herein rendered as well as the costs of court”

be and the same is hereby reversed.

And it is now ordered, adjudged and decreed that the right of pledge of the plaintiff on the $4000.00 note secured by the mortgage be and the same is hereby recognized and that the said note be seized and sold according to law for the satisfaction of the debt to secure the payment of which it was pledged and that out of the proceeds of such sale the plaintiff be paid, in preference to all other' persons, the amount of the judgment in his favor against the defendant.

The defendant to pay the costs of the District Court in this suit, the plaintiff to pay the costs of this appeal.


author: ODOM, J.

text:
    No. 2584
    Second Circuit
    WATKINS v. ROACH
    (May 7, 1926, Opinion and Decree)
    (June 2, 1926, Rehearing Refused)

      {Syllabus by the Editor)

    1. Louisiana Digest — Master and Servant Par. 160 (a), 160 (j).
    Where the defense in a workmen’s coml pensation case under Act No. 20 of 1914 is that the injury complained of was caused by the intoxication of the' employee, the burden of proof under Section 28 of Act No. 20 of 1914 is on the employer to show that the injury was caused by the intoxication of the employee.
    2. Louisiana Digest — Master and Servant —Par. 160 (j).
    Where there is evidence 'to show that, an injured employee was intoxicated to some extent when he was injured but no evidence to show that the injury was due to the intoxication, the burden of proof under Section 28 of the Workmen’s Compensation Act 20 of 1914 being on the employer there must be judgment for the plaintiff.
    3. Louisiana Digest — Master and Servant —Par. 154.
    The Employers’ Liability Act should not be strictly construed in favor of the employer but rather liberally in favor of the employee.
    Appeal from the Seventh Judicial District Court of Louisiana, Parish of Concordia, Hon. R. M. Taliaferro, Judge.
    Action by Willie Watkins against T. W. Roach. There was judgment for plaintiff and defendant appealed.
    Judgment affirmed.
    Hugh Tullis of Yidalia, attorney for plaintiff, appellee.
    Dale, Young and Dale, of Vidalia, attorneys for defendant, appellant.
   ODOM, J.

The defendant was a contractor and was engaged in constructing >r enlarging a public levee near Ferriday n the Parish of Concordia.

In the construction of the levee he used what was called a “drag-line”, operated by a steam engine.

The plaintiff, along with others, was employed Ky him to operate the “drag-line”, and while at work operating' said “drag-line” plaintiff got his left hand caught between the wheels of the machine and the rails on which it ran, resulting in his hand being crushed so that he lost the third and fourth fingers of that hand, and his second, or middle, finger was mashed and badly injured.

He brought this suit under the Workmen’s Compensation Act (Act 20 of 1914 and amendments) to recover sixty-five per cent of his wages for sixty weeks and $250.00 for medical and surgical expenses.

The defense ■ is' that plaintiff was not injured to the extent alleged and “that the injury was caused by plaintiff’s intoxication at the time of the injury”.

There was judgment in the lower court in favor of plaintiff for $100.00 for medical expenses and for $9.75 a week for forty weeks for the loss of two fingers; and defendant appealed.

Plaintiff did not appeal, nor has he moved in this court for an amendment of the judgment.

OPINION

It is admitted that plaintiff was receiving $15.00 per week at the time he was injured, and the fact that his injury resulted in the loss of the third and fourth fingers of the left hand, and that he in-curved medipal and surgical expenses amounting to $100.00, is not disputed.

Section 8 of Act 20 of 1914, as amended by Act 216 of 1924, provides that for the loss of any other finger than the first the employee shall receive sixty-five per centum of his wages during twenty weeks.

The plaintiff has lost two fingers, and is therefore entitled to sixty-five per centum of his wages for forty weeks.

He is also entitled, of course, to the $100.00 medical and surgical expenses incurred on account of the injuries.

He brought this suit for sixty-five per centum of his wages for sixty weeks predicated upon the theory that he had lost the middle finger of the left hand. The testimony is conflicting as to the condition of the middle finger at the time of the trial, one of the physicians saying that it was injured to such an extent that it could be of no further use, and the other physician stating that, in his opinion, the plaintiff would gain practically normal use of that finger by exercise.

The judge of the lower court refused to allow compensation on account of this finger, and inasmuch as plaintiff did not appeal and has not moved for an amendment of the judgment, further discussion of the case on this point is unnecessary.

The main defense urged by counsel for defendant is, that the accident was caused by plaintiff’s intoxication.

Section 28 of Act 20 of 1914 provides that no compensation shall be allowed for an injury caused by the injured employee’s intoxication at the time of the injury, and further provides, in paragraph 2 thereof, as follows:

“In determining whether or not an employer shall be exempt from and relieved of paying compensation because of injury sustained by an employee for the causes and reasons set forth in this section, the burden of proof shall be upon the employer.”

We think the testimony establishes the fact that the plaintiff, at the time he received the injury of which he complains, was, to some extent, intoxicated; but the the extent of his intoxication is not made clear. ■

The plaintiff himself testified that he was not intoxicated to any extent, in fact, he said he had not drunk any intoxicant at all.

However, all of the witnesses who testified in the case were convinced that he had been drinking and that he was under the influence of intoxicating liquor both previous to and subsequent to the accident.

Mr. E. H. Hayes, one of the witnesses, did not see plaintiff just prior to the accident but saw him shortly thereafter, and testifies that he smelled liquor about him, and that plaintiff told him that he had taken a drink or two of whiskey. He further testified that he had heard plaintiff! tell other persons that he was drinking! on that occasion, which statements, hel said, were made in the doctor’s office ini the presence of himself, the doctor and pos-I sibly others. I

Doctor Stewart, who attended plaintiff* immediately after the accident, testifiec* that he was under the influence of intoxi* eating liquor; that he could not say hcl was absolutely drunk but “he had quite M bit of whiskey”; and says, further, that h<H was unable to walk straight and waiB groggy and drowsy. I

Mr. C. L. Malloure saw plaintiff three-quarters of an hour after the injury, and says that he acted as though he were drunk and in a kind of stupor, and at that time could not walk straight; and says, further, that plaintiff admitted to him that he was drinking.

Mr. L. L. Whitmore, who operated the “drag-line”, testified that he saw plaintiff about two minutes after the accident. He said that he had no proof that plaintiff was intoxicated, except that he smelled whiskey on his breath. He said, further, that plaintiff could not wa'lk straight and had to be assisted into an automobile in order to be carried to the physician's office. He testified that he was working in close proximity to where plaintiff was injured and that he saw he was somewhat drowsy.

Our conclusion, therefore, is, that plaintiff, on the occasion of the injury, was intoxicated to some extent. However, it may be that his groggy, drowsy condition immediately following the accident was due to some extent to the shock resulting from the injury.

But whether plaintiff was in an intoxicated condition at the time of the injury, we think makes! no difference for the reason that there is no testimony that plaintiff’s intoxication caused the injury.

The record is bare of any explanation as to just how the accident happened. Plaintiff himself made no explanation of it, and while there were four men working with him at the time they were not called as witnesses.

The foreman stated that he had been working within about thirty feet of plaintiff for several hours, but he did not see the accident, and did not see plaintiff to take notice of the injury until two minutes after the accident happened. . He stated, however, that he had seen him and had noticed him at frequent intervals for several hours just previous to the accident.

The fact that the foreman was on the work and had seen plaintiff, indicates that he did not consider him intoxicated to such an extent that he could not perform efficiently the duties for which he was employed. It would seem reasonable that if plaintiff was intoxicated to such an extent that he could not perform his work the foreman would have ordered him to cease.

The compensation act, as quoted above, specifically provides that the burden of proof shall be upon the employer to show that the injury was caused by the intoxication.

The defendant has failed to discharge this burden.

If the court should hold that plaintiff is not entitled to compensation, it would have to assume that plaintiff’s intoxication caused the injury. We cannot assume that, under the plain letter of the statute to the effect that the burden of proof on that particular point is upon the defendant.

Counsel for defendant, in oral argument before the court and in brief, contend that the intent of the statute was to discourage laborers from drinking intoxicants while on duty, and further contend that the fact of intoxication bars the employee from compensation in case of injury while in that condition.

But that is not what the statute provides. The act specifically states that the employee shall riot be entitled to compensation if his injury is caused by his intoxication.

It - is altogether possible for an employee to perform labor while under the influence of intoxicating liquor. It is only in cases where the intoxication causes the injury that the employee is barred compensation.

In this case there is no proof that the plaintiff’s intoxication caused the injury.

The employer’s liability act should not be construed strictly ' in favor of the employer but rather liberally in favor of the employee.

Jones vs. Powell Lumber Co., 156 La. 769, 101 South. 135.

Finding no error in the judgment appealed from, it is therefore affirmed, with costs.


author: ELLIOTT, J.

text:
    No. 3111
    First Circuit
    BEASLEY v. LEESVILLE MOTOR COMPANY, INC. Opposition of McClarren Rubber Co.
    (December 22, 1925, Rehearing Refused)

      (Syllabus by the Editor.)

    1. Louisiana Digest — Receivers—Par. 33.
    Where a receiver had certain property sold with the other property but under a separate -appraisement because of a judgment previously having been obtained the property which was sold subject to this judgment should contribute pro rata with the balance of the property sold in proportion of the price received, to the total cost of advertising, commission of auctioneer and other expenses but no other cost should be charged against it.
    Appeal from the Eleventh Judicial District, Parish of Vernon, Hon. Hal A. Burgess, Judge.
    Action by O. S. Beasley-against Leesville Motor Company, Inc., opposition of McClarren Rubber Company. There was judgment for opponent and receiver appealed.
    Judgment amended and affirmed.
    C. E. Hardin, of Leesville, attorney for opponent, appellee.
    S. I. Foster, of Leesville, attorney for receiver, appellant.
   ELLIOTT, J.

-McClarren Rubber Company obtained judgment against O. S. Beasley, receiver of Leesville Motor Company, Inc., on an account for $1,183.78 with interest, recognizing their privilege on certain automobile casings and tubes described in their petition for the unpaid purchase price of same.

The receiver appealed, but the judgment was affirmed.

The receiver then caused the casings and inner tubes to be sold under a separate appraisement and the same brought $250.00 at the sale. The receiver then filed an account and proposes to apply this $250.00 with other sums to the payment of various claims, legal charges, costs and expenses, leaving nothing for opponent.

McClarren Rubber Company opposed the account, setting up their judgment and. privilege recognized by the court and prayed that the $250.00 be ordered paid to them by preference and priority over all other charges, claims and expenses. The district judge recognized their claim in this regard; except that he held that the $250.00 was subject to the commission of the receiver and the cost of the sale in which the casings and tubes, with other property had been sold. The receiver again appealed, but has not made any appearance in this court. McClarren Rubber’ Company appeared and in answer to the appeal prays to be relieved from contributing to any cost, charge or expense citing Act 198 of 1914 and International Harvester Co. of America vs. Union Irr. Co., 150 La. 423, 90 South. 71, and some other eases.

The record shows that McClarren Rubber Company did not participate in the receivership, but they did not have the sale of the casings and inner tubes dissolved for non-payment of the price; so the receiver had same sold, with the other property but under a separate appraisement, etc., and the sum of $250.00 was the price received in the sale.

It therefore appears reasonable and fair that the $250.00 should contribute pro rata with the balance of the property sold and in proportion to the price received, to the total cost of advertising the property for sale and to the total commission of the sheriff, ex-officio auctioneer, for selling same.

It is therefore ordered, adjudged and decreed that the judgment appealed from be amended so as to make McClarren Rubber Company contribute pro rata out of the $250.00 with the. other property sold at the same time; to the total cost of advertising the property for sale and to the total commission of the sheriff, ex-officio auctioneer, for selling same; but to no other charge, claim or expense mentioned on the account.

As thus amended the judgment appealed from is affirmed. The receiver to pay the cost of the appeal.


author: LECHE, J.

text:
    No. -
    First Circuit
    ROSEMAN v. RUSS
    (November 10, 1925, Opinion and Decree)
    (December 22, 1925, Rehearing Refused)

      {Syllabus by the Editor.)

    1. Louisiana Digest — Partnership—Par. 49.
    Under the Pleading and Practice Act 157 of 1912 as amended by Act 300 of 1914 and 228 of 1924, one has the right to sue for the recovery of money wrongfully collected by a former partner on an open account which then belonged to him, even though the precise amount of an acknowledged indebtedness by the former partner resulting from the operation of this dissolved partnership had not been definitely fixed.

      Appeal from the Parish of East Baton Rouge,' Hon. Wm; Carruth Jones, Judge.
    .Action hy Charles Roseman against Stephen M. .Russ. There was judgment for plaintiff and defendant appealed.
    Judgment affirmed.
    Cross and Moyse, of Baton Rouge, attorneys for plaintiff, appellee.
    Benton and Benton and C. C. Bird, Jr., of Baton Rouge, attorneys for defendant, appellant.
   LECHE, J.

The facts in this case are substantially, that plaintiff and defendant entered on September 10, 1923, into an agreement of partnership for the purchase and sale of cypress lumber, whereby all profits to be derived from said business were to be shared equally between the partners. The partnership operation was accordingly carried on until August 25, 1924, when Roseman bought out all the rights, titles and interests of Russ in the property and assets of the partnership and assumed payment of the liabilities of the same, then estimated to amount to about sixteen thousand four hundred dollars ($16,400.00). In consideration of the assumption of this liability by Roseman, Russ executed his four promissory notes in favor of Roseman, each for the sum of $543.21. As a further consideration Russ also hound himself to execute an additional note in favor of Roseman, for such amount as it may he shown that he is personally obligated to the said business which has been conducted under the contract of partnership of September 20, 1923, the place and time of payment of such note being set forth in detail in the written agreement of August .25, 1924.

The present suit was filed December 23, 1924, and for cause of action, Roseman alleges that on August 29, 1924, after he had ■purchased and acquired all the assets and outstanding accounts of the late firm, Russ collected without any right thereto, from the Baton Rouge Sash & Door Works, Inc., an open account due to the late firms and at the time of its collection, owned hy Rose-man, amounting to two hundred and forty-three 88-100 dollars. He accordingly prays for judgment against Russ for the full amount of said open account with legal interest thereon, and costs of suit.

Defendant first excepted to plaintiff’s petition on the ground that it showed no cause of action and that plea being 'overruled, filed an answer. Thereupon plaintiff moved for judgment as prayed for in his petition, upon the face of the petition and answer, and after due hearing, the trial judge having so decreed, defendant prosecutes the present appeal from such judgment.

The defense is in effect, that the partnership has not yet been dissolved, still remains unliquidated and that one partner cannot sue another except for dissolution and liquidation of the partnership. Defendant urges in his brief, that hy the agreement of September 10, 1923, he was to have the full administration of the firm’s affairs, and, assuming that the firm is still in existence, he further urges that under Art. 2867, C. C., this power cannot he revoked or taken away from him except for cause. He further argues that this contract is undivisible and if we understand him correctly, that it cannot be partly or partially dissolved hut can only be dissolved in its entirety.

The agreement of September 10, 1923, merely authorizes the defendant to make purchases of lumber, upon u his furnishing duplicate lists of such purchases to plaintiff and it obliges defendant to keep a full account of all transactions of accounts kept open for the plaintiff’s inspection at all reasonable times. Beyond these clauses, we find no stipulation granting full power of administration to defendant. But even conceding that such power of administration had been vested in the defendant, there was nothing left <for him to administer after August 25, 1924, for by the latter agreement, he sold his interest in the property and assets which were under the agreement of September 10, 1923, to constitute the stock in trade of the partnership. He surely could not expect to continue to administer property which he had sold and which he had voluntarily and without reservation transferred to plaintiff. Nor do we see any ground to invoke the articles of the Code in regard to the divisibility or indivisibility of obligations, for by the agreement of August 25, 1924, the partnership • created by the agreement of September 10, 1923, was dissolved and extinguished in its entirety.

The agreement of August 25, 1924, not only dissolved the partnership but practically liquidated its affairs, only leaving for future adjustment the exact amount which would later be found to be due by defendant. According to the stipulations of that agreement, defendant, after subscribing four certain promissory notes each for the sum of $543.21, acknowledged that he was still indebted to the late partnership, the assets of which had become vested in plaintiff and its liabilities assumed by plaintiff, but as the exact amount of such indebtedness could not then be definitely fixed, he agreed to subscribe another note at a future time when such amount might be shown.

The only question in the ease, as we view it, is whether plaintiff had the right to sue for the recovery of the money wrongfully collected by defendant on an open account which then belonged to plaintiff, simply because the precise amount of an acknowledged indebtedness by defendant resulting from the operation of a dissolved partnership between plaintiff and defendant, had not been definitely fixed.

There is no statutory law in this state forbidding one partner from suing another during the existence of a partnership, upon a cause of action arising out of the partnership. There is however such a rule of practice adopted from the common law, in our earliest jurisprudence (10 M. 433, Dromgoole vs. Gardner) and steadily adhered to by oui; court to this day. Hennen in his Digest- announces the rule in the following language: “A partner cannot sue his co-partner for sum paid or advanced for the partnership, or funds placed in it, or goods furnished, or profits made, or losses incurred, during its continuance until a final settlement in his treatise on Partnership.” (2nd Ed. Bk. 111, Chap. X) gives a lengthy and detailed history of the origin at common law, of the restrictions upon the right of one partner to sue his co-partner. Many of the reasons adduced by him for these restrictions, - are based upon the peculiar practice and diverse jurisdictions of English courts of Law and Courts of Equity. He says that formerly courts of equity were adverse to interfering at all between one partner and another partner, unless it was for the purpose of dissolving the partnership. The latter reason is likely the one for which our courts first adopted the rule, though it may also be properly said that when differences arise between partners, in regard to matters involving the partnership the judicial entity called the partnership, has an interest at issue, which during its existence, is within its exclusive control. But in the present case, the agreement of August 25, 1924, has put an .end' to the- partnership: That partnership - has been dissolved" and' liquidated except as to the single item, the amount of. the indebtedness of defendant to. the late - partnership now vested in plaintiff. We cannot conceive how that item, still open for determination can- have any-bearing upon the claim in this suit.

Defendant admits in the agreement of August 25, 1924, that he still owes an undetermined amount to plaintiff who now stands in lieu of the partnership. Another and a different question might be presented if defendant made any claim against plaintiff as successor to the partnership, but this he is estopped from doing under the agreement which he signed and executed.

We do not believe defendant’s defense comes within the rule of practice as announced by Hennen in his Digest, whether viewed from the terms in which the rule is formulated or from the reasons which caused its adoption by our court.

The facts recited in this opinion appear from the petition and answer and the documents annexed thereto, and we believe that under the Pleadings Act of 1912, they justify the judgment rendered by the District Court and, for these reasons, that judgment is affirmed.


author: MOUTON, J.

text:
    No. -
    First Circuit
    HERRIN STATE SAVINGS BANK v. CALMES AND HAGUE
    (April 1, 1926, Opinion and Decree)
    (May 4, 1926, Rehearing Refused)

      (Syllabus by the Editor)
    1. Louisiana Digest — Mandate—Par. 89, 90; Estoppel — Par. 41, 51.
    Although the cashier of a bank had no authority to accept a transfer of the assets of a coal company for the bank and agree to release the endorsers' on the coal company’s note, the evidence showed that the bank had acquiesced in this action by liquidating the coal company’s assets and applying the money to the note. This will estop the bank from collecting the balance due on the note from the endorsers.
    Appeal from the Parish of East Baton Rouge, Hon. W. Carruth Jones, Judge.
    Action by Herrin State Savings Bank against J. F. Calmes and L. S. Hague. There was judgment for defendants and plaintiff appealed.
    Judgment affirmed.
    W. G. Randolph and Fred G. Benton, of Baton Rouge, attorneys for plaintiff, appellant; ' '

      ' C. C. Bird and Chas. A. Holcombe, ;of, Baton Rouge, .attorneys for defendants,, appellees.
   MOUTON, J.

The defendants, Calmes and Hague, residents of East Baton Rouge, bought the Cárterville Coal Corporation leases of a coal mine situated near Herrin, Illinois, and organized the Leah Coal Co., Inc. Needing money to run the mine they borrowed nine thousand dollars from the plaintiff bank for which they executed a promissory note in favor of Wm. C. McCormick, trustee, on August 17, 1920. This note was reduced by payments to the sum of four thousand dollars and for this amount, on August 15, 1921, the Leah Coal Company gave its promissory note to the Herrin bank, plaintiff. To secure the payment of this note defendants made a trust deed in favor of the bank, and for additional security endorsed the note individually. The note of $4000.00 was reduced by partial payments to the sum of $1505.00 for which this suit is brought against defendants on their personal endorsements, the Leah Coal Mine Co., having been dissolved and its affairs liquidated. The operation of the mine not having proved a success, Hague, with the full consent of Calmes, his associate in the enterprise, was authorized to go to Herrin for the purpose of making a final disposition of the assets of the Leah Coal Company. Hague went to Herrin where plaintiff bank is located and had a conference with Lyerla, its cashier, in reference to the amount due on the note sued upon. A correct decision of this case depends upon a proper interpretation of what transpired at that conference and of the subsequent ratification thereof or acquiescence therein by the bank.

Hague says, that at this conference, Lyerla, cashier, who was acting for the bank, told him if he would transfer him the stock and leases of ..the ..Leah Coal Company, he would release ..defendants ° of all their . indebtedness to the . bank. He .says, he was alone -with the cashier when this conference. took place. The version, of the cashier on the other hand is, that Hague being desirous . of disposing of his mining property came into the bank and asked if we would not-act as his agent in assisting to dispose of his property - near Herrin, and “apply its proceeds to their indebtedness”. He - says, he agreed to use his best efforts in trying to dispose of the property and to-apply the proceeds, as suggested. He admits that Hague left a bill of sale with him and the stock certificates of the company endorsed in blank, -and which were subsequently assigned to him and Maybel J. Lyerla. He says, in accepting the assignment of the stock he acted in a personal capacity as the agent to help defendants liquidate their indebtedness to the bank. The conference above referred to between Hague and Lyerla occurred in the beginning of May, 1923. On June 4, 1923, Lyerla wired Calmes, the other defendant, as follows:

“Am transferring assets of Leah Coal for its indebtedness. Will relieve you of same if you will send today corporation stock book, assignment and bill of sale from J. F. Calmes and L. S. Hague to Leah Coal Company. Also, charter of Leah Company. Rush wire at our expense.”

The language used in this telegram clearly confirms the version given by Hague of the conference held between him and the cashier. The concluding part of the telegram has a - particular - significance when considered in connection with what had previously transpired between these parties. 'The words “our expense” therein evidently referred to Lyerla and the bank. These terms would scarcely have been employed if Lyerla had been acting only in the personal capacity of agent. The proof shows that acting in compliance with the request conveyed in the telegram the defendants sent to Lyerla the corporation stock book, also a hill of sale of the property rights of the defendants to the Leah Coal Company. It is also shown that these assets were disposed of hy Lyerla who made no accounting of his administration to the defendants and who did no't get a word from Lyerla during a period of about a year and five months when payment was demanded of the balance of the note in question. Such conduct as that on the part of Lyerla clearly indicates that he was acting as owner for the bank of the assets of the Leah Coal Company and not as the agent of these defendants. We have no hesifancy, in concluding from this state of facts that the defendants sold their assets to the bank through Lyerla, its cashier, in payment of their indebtedness and that the latter, nor the bank was acting in the capacity of agent of defendants with the understanding that the proceeds from their coal mine should be applied to the payment of their debt, and that if any balance remained after the application of these proceeds, defendants should be bound therefor.

Counsel for plaintiff makes the point that Lyerla had no implied power by virtue of his office as cashier, to release defendants of their indebtedness to the bank. The law sustains this contention. The evidence in the record leaves no doubt that the cashier in the instant case was given considerable latitude in the management of the affairs of the hank, but there is, however, no proof that he had been expressly authorized by the board of directors to accept a transfer of the assets of the Leah Coal Company in payment of the debt of defendants. The cashier knew; as he testifies, that he had no power to release the indebtedness without authority from the board of directors of the hank. As he knew that, it is hard to believe that he undertook in violation of his duties to make the release in favor of defendants without sanction from his principal. This is possible but not probable. There can he no question that the banl^ knew that the assets of the Leah Coal Company were being sold by the cashier, or the bank.

In a letter written by Randolph, attorney for the bank, and addressed to defendants, he says that in a letter written to him hy the bank, the latter said it was at a loss to understand the tenor of the telegram to Calmes above referred to, because, says the bank, it was not its intention at any time to ask for title in the property for the purpose of cancelling the note, other than to assist in disposing of it and applying the proceeds on the note. The bank unquestionably knew that the cashier had entered into an agreement with these defendants in reference to the cancellation of the note. The only agreement which had been made, as the evidence clearly shows, was that the hank had consented to accept the assets of the Leah Coal Company in payment or extinguishment of its claim. This is the only agreement of which it could have been informed unless we are to infer that the cashier purposely deceived the bank by making a false statement. We can not therefore escape from the conclusion that if the bank had not authorized the cashier to make the agreement for the release of defendants from the obligation on the 'note, it was certainly informedi thereafter of the action of the cashier and received the proceeds from the sale of defendants’ assets as owner with the understanding that it would release respondents on the note.

This brings us to the consideration ofj the case of Bank of Jeanerette vs. Druhlet, 149 La. 505, 89 South. 674, relied upon byl counsel for plaintiff bank. In that case the cashier had been allowing overdrafts for a number of year without any authority being specifically granted him by the board- of directors of the bank. The court found that prior to a meeting of the board in Sept., 1924, the usage of the cashier in permitting these overdrafts had been known to the members of the board and held there was therefore little doubt that the board had acquiesced therein. Continuing further in reference to these overdrafts the court said:

“The directors must be considered to have acquiesced in and authorized the overdrafts which preceded .the September meeting because we conclude from the circumstantial evidence, to which we have referred, that they were informed.”

The direct proof here shows clearly that the cashier accepted a transfer of the assets of the Leah Coal Company for the bank, and agreed to release defendants of their indebtedness, and that if, as contended, the bank had not authorized the cashier to make this release, the circumstantial evidence shows that the bank has acquiesced in the action so taken by its cashier, or has ratified the agreement.

Counsel for plaintiff contend that the plea of equitable estoppel can not be maintained unless the person urging it has been induced to alter his position to his detriment. The record shows the bank to have had originally a trust deed bearing on the assets of the L'eah Coal Company as security for its note. Such a deed, as we understand, is of the nature of a mortgage under our laws. It is shown that defendants made a sale or assignment of this deed to the bank, also a transfer of all their stock, corporation books, etc., to it, thus completely divesting themselves of their entire property in their company. Such a contract thus transferring their ownership in the corporate property of their company effected a radical change or alteration in the position they previously occupied, and which could hardly have been but detrimental to their rights. The defendants had certainly irrevocably changed their position and had placed themselves at the mercy of the bank which could, as it is doing now, claim the balance on the note if the purchase proved an unprofitable investment. This change in the position of defendants was the result of the action of the cashier of the bank when he entered into the agreement with Hague at the conference which was held at Herrin in May, 1923. The telegram of June 4, 1923, shows unmistakably that the bank had knowledge of this transaction, and its subsequent conduct in receiving the proceeds realized from the sale of the assets of the Leah Coal Company gives additional proof of its acquiescence in the conduct of its cashier, . and convinces us that it has deliberately ratified the agreement which releases these defendants on their note. The district judge so found, and we see no error in his judgment.

Affirmed.


author: WEBB, J.

text:
    No. 2199
    Second Circuit
    GASCON v. RANKIN
    (April 10, 1926, Opinion and Decree)
    (June 2, 1926, Rehearing Refused)

      (Syllabus by the Editor.)
    1. Louisiana Digest — Automobiles — Par. 4 (a), 4 (b).
    Where one drives an automobile around a street corner so as to make it impossible to .avoid an accident, the act of ■'driving1 this automobile in'•such A manner “was the proximate cause of the collision and consequently the owner is liable for the damage done.
    Appeal from the First Judicial District Court of Louisiana, Parish of Caddo, Hon. J. H. Stephens, Judge.
    Action by R. -L. Gascon against S. R. Rankin. There was.judgment for plaintiff and defendant appealed.
    Judgment affirmed.
    T. Overton Brooks, of Shreveport, attorney for plaintiff, appellee.
    Alex F. Smith, of Shreveport, attorney for defendant, appellant.
   WEBB, J.

In-this action plaintiff seeks to recover judgment against defendant, S. R. Rankin, in the sum of four hundred and seventy-three and 75-100 dollars, for repairs to an automobile amounting to the sum of two hundred and sixty-three and 75-100 dollars, and loss of the use of the car, two hundred and ten and 00-100 dollars, damages alleged to have been sustained by reason of a collision between plaintiff’s automobile, while being driven by his wife, and an automobile belonging to and being driven by defendant.

The collision occurred on Edwards street, which intersects Texas street at right angles, and the facts upon which plaintiff based his right to recover are alleged as follows:

“That * * * Mrs. R. L. Gascon, the wife of your petitioner, was driving down Edwards street * * * moving toward and approaching Texas street; that she was proceeding in said automobile * * * on her own right hand (side of the street) * * * slowly and cautiously * * with due regard to the right of others * * * and that 'defendant was driving out of Texas street ■ into ■ Edwards * * * and that he -did not make a proper turn from Texas street into Edwards street, but drove his automobile far across the center line * * * of Edwards street * * which was on his own left hand ■ and that he ‘ drove • his automobile far in excess of the * * * speed allowed by law, and at such rate of speed that he violated the ordinances of the city of Shreveport * * * relative to the rate of speed allowed vehicles running on such highways; that in driving his automobile * * * across the center line of Edwards street, and in driving at the rate of speed which he was * * * defendant was careless, reckless and negligent and exercised no regard for the rights of others Upon the highway and that defendant carelessly, recklessly and negligent drove his automobile into petitioner’s automobile at said time and place, etc.”

The defendant answered, admitting the collision, denying negligence, and alleged the collision was due solely to the fault and negligence of Mrs. Gascon, who was driving in a careless, negligent and illegal manner, on the wrong side of the street; and, in the alternative, in the event it should be held that defendant was 'negligent, and that his negligence contributed to the accident, then, he alleges that Mrs. Gascon was also negligent and her negligence was concurrent with that of defendant and contributed to the accident.

. Defendant also reconvened for the amount paid out for repairs on his car.

On trial, judgment was rendered in favor of the plaintiff for the sum of two ‘hundred and sixty-three and 65-100 dollars, the amount alleged to have been due for repairs. and defendant appeals.

Plaintiff has answered the appeal and asked that the judgment be amended so as to allow for the amount claimed for the loss of the use of the automobile, and, as amended, affirmed.

OPINION

While the testimony is conflicting in many respects, we find the evidence establishes that at the time of the accident the streets were slippery; that the defendant, who had been driving on the right side (east) of Texas street, turned south into Edwards street at an approximate rate of speed of ten or twelve miles per hour; as he turned into Edwards street (which was forty-five feet in width from curb to curb) he observed the automobiles parked parallel with the curb on both sides of the street and at an approximate distance of twenty or thirty feet below the intersection, and on his left, there was a wagon parallel with the automobiles parked on that side, and next to and partially parallel with the wagon the plaintiff’s automobile being driven by Mrs. Gascon at a speed of five or six miles per hour, and next to and between plaintiff’s automobile and the automobile parked next to the curb on the right of the street, there was an open space.

None of the witnesses testified directly as to the width of this open space, that is, whether or not it was of sufficient width to permit an automobile to pass, and if this Is a necessary fact to be determined, we would say that the evidence does not sufficiently establish the fact, and the presumption would be against the party who may have the burden of proof to show, bither, that it was, or was not, of sufficient width for an automobile to have passed; but we do not deem it necessary to delermine this fact, as the evidence does not Istablish that the open space was not of lufficient width for the defendant to have driven his car through, considering, the. manner in which he came into the street, that, is, at an angle-of about forty-five degrees, and at such speed as would not permit him. to have avoided collision, with-, any object which barred the way when such object was within twenty or thirty feet of the intersection.

The conclusion which we draw- from the-evidence is that when defendant turned into Edwards street, the collision was inevitable, and this is confirmed by the evidence which shows that Mrs. Gascon and defendant realized the situation about the same time each making a vain attempt to avoid the collision, Mrs. Gascon by trying to get her car nearer to or behind the wagon, and defendant by attempting to check the speed of his car by the application of the brakes.

The defendant, as stated, claims that he was not negligent and charges the fault to' the driver of plaintiff’s car in that she had driven the car partially, at least, over to her left of the center of the street, and, in the alternative, if her act was not the proximate cause of the collision, it was a contributing cause.

We are of the opinion the act of the defendant in turning into the street in such manner (whether due to the rate of speed or to the angle at which he came into the street) as rendered it impossible for him to avoid collision with an object on the street; into which he turned, at a distance of twenty or thirty feet below the intersection, shows he was not operating his car with ordinary care.

. Defendant had no legal reason to presume that the street into which he turned would be clear to his right of the center; nor was the driver of the plaintiff’s car a- trespasser on the street by reason of the fact of having placed the car in which she was driving partially over on the left of the center of the street; but if it could be said that the driver of defendant’s car was. negligent by reason of the facts stated,- it appears her negligence was prior in time to that of the defendant, and not concurrent; the situation existed at the time defendant turned into the street, and we are of the opinion that the proximate cause of the collision was the negligence of the defendant. (R. C. L., Negligence, vol. 20, No. 113.)

On the motion to amend, that record indicates that the plaintiff’s car was used by his wife who is not shown, however, to have been engaged in any business, and the plaintiff states the loss of the use of the car was worth ten dollars per day, which is also supported by a like statement of the mechanic who repaired the car.

We have no doubt the wife of defendant was inconvenienced by not having the car at her disposal, but we are uhable to accept the statements as indicating the monetary loss of such inconvenience.

The judgment is affirmed.


author: ODOM, J. WEBB, J.

text:
    No. 2486
    Second Circuit
    GOSPEL v. SOUTHERN CARBON COMPANY
    (February 8, 1926, Opinion and Decree)
    (May 7, 1926, Opinion and Decree)

      (Syllabus by the Editor.)

    1; Louisiana Digest — Master and Servant —Par. 160 (g).
    The widow of an injured employee is barred by Subsection 1 of Section 31 of Act No. 20 of 1914 the Workmen’s Compensation . Law for compensation after one year after the death of the employee.
    2. Louisiana Digest — Master and Servant —Par. 160, 160 (a), 160 (g).
    Under Subsection 1 of Section 16 of the Workmen’s Compensation Act No. 20 of 1914 the fact that the widow of the deceased employee forfeited her right by not suing within a year after the death of the employee cannot deprive the dependent minor children of their right under the law.
    3. Louisiana Digest — Master and Servant —Par. 154, 160 (a).
    Subsection 2 (j) of Section 8 of the Workmen’s Compensation Act No. 20 of 1914 as amended by Act 43 of 1922 provides that an appointment of a tutor is not necessary except when there are no surviving parents but this does not have the effect of depriving the minor children of their rights under the act due to any negligence of the widow.
    4. Louisiana Digest — Master and Servant —Par. 154, 160.
    The situation of a minor from the standpoint of being able to claim compensation under the Workmen’s Compensation Act No. 20 of 1914 in case where the parent for any reason neglects or declines to invoke in his or her behalf is the same as if the minor had no parent.
    ON THE' MERITS
    5. Louisiana Digest — Master and Servant —Par. 158.
    Where it appears that there is a causal connection between the risk of the employment and the 'accident, in this case caused by striking a match to light a cigarette it is the rule to allow compensation although the risk of the employment may have been only a contributing cause.
    6. Louisiana Digest — Master and Servant —Par. 154, 160.
    Under Section 8 of Subsection 2 of the Workmen’s Compensation Act No. 20 of 1914 as amended by Act 43 of 1922 the right to recover compensation by the widow and the minors is considered distinctively and consequently can be separate.
    (The recent amendment of Section 8 of Act 20 of 1914 is Act No. 216 of 1924. Editor’s note.)
    Appeal from the Fourth Judicial District Court of Louisiana, Parish of Ouachita, Hon. Percy Sandel, Judge.
    Action by Augusta Gospel, individually and as tutrix against Southern Carbon Company for compensation for the death of husband and father. There was judgment for defendant insofar as the claim of the widow was concerned and for plaintiffs, the minor children. Defendant appealed.
    Judgment affirmed.
    Geo. Wesley Smith, of Rayville, attorney !or plaintiff, appellee.
    McHenry, Montgomery, Lamkin and Lamrin, of Monroe, attorneys for defendant, ippellant.
   ODOM, J.

This is a suit under the orkmen’s Compensation Act (Act 20 of .914 and amendments).

On September 28, 1922, Arthur Gospel vas working for the defendant company bnd while assisting in the installation of a pasket in a gas regulator; he struck a aatch to light a cigarette, causing the gas lo explode, as a result of which explosion ae was so badly burned that he died on October 12th following.

Surviving him were his wife, Augusta, lospel, and two children, Willie, aged 5 rears and Arthur, less than 4 years old.

On March 30, 1925, Augusta Gospel, the widow of the deceased, and mother of the said minor children, was appointed Natural Tutrix of said minors and on the same day she qualified by taking the oath prescribed by law.

On that date, which was two years, five months and eighteen days subsequent to the death of Arthur Gospel, this suit was filed by the widow, individually and as tutrix, to recover compensation under the Workmen’s Compensation Act as amended by Act 43 of 1922.

Defendant plead prescription of one year under section 31 of the act. This plea was sustained by the lower court as to the claim of the widow but overruled as to the claim of the minor children, and judgment was rendered in favor of the two children for forty-five per cent of $13.50 for 300 weeks.

From this judgment the defendant prosecutes this appeal.

The plaintiff, Augusta Gospel, did not appeal, nor has she asked that the judgment be amended.

ON THE PLEA OF PRESCRIPTION

Subsection 1 of Section 31 of Act 20 of 1914 reads as follows:

“That in case of personal injury (including death resulting therefrom) all claims for payment shall be forever barred unless within one year after the injury or death the parties shall have agreed upon the payments to be made under this Act, or unless within one year after the injury proceedings have been begun as provided in sections 17 and 18 of this act * *

Under this section of the act there is no question but that whatever action Augusta Gospel may have had for compensation on account of. the death of her husband is barred.

But, insofar- as the minors are concerned, another question is involved, for section 16, subsection 1, of the same act provides:

“That in case an injured employee is mentally incompetent or a minor or where death results from the injury, in case any dependent as herein defined is mentally incompetent or a minor, at the time when any right, privilege or election accrues to him under this Act, his duly qualified curator or tutor, as the case may be, may, in his behalf, claim and exercise such right, privilege or election, and no limitation of time, in this Act provided for, shall run, so long as such incompetent or minor has no curator or tutor as the case may be.”

If Arthur Gospel, the deceased, had left no widow but only the two minor children, the case from the standpoint of prescription as to the claim of the minors, would be entirely free from doubt, for they had no tutor appointed for them until the day on which this suit was filed, and under the plain letter of the law prescription does not run against them so long as they have no tutor.

But counsel for defendant contend-—

First, that where the mother or father of the minor child or children survives it is not necessary, under the act, that a tutor be appointed; that the mother or father, as the case may be, is there to represent the minors without being formally qualified as tutor or tutrix, and that therefore prescription runs against the minors; and,

Second, that under the act, compensation is due and shall be paid entirely to the widower or widow for the common benefit of such widower or widow and the minor children, and that, to quote from their . brief—

“* * * therefore the claim of the surviving widow is for the entire amount of compensation due for the injury causing the death of Arthur Gospel” and that—
“* * * the failure of the surviving widow to be confirmed as natural tutrix did not prevent prescription from running, and the entire claim being barred by her failure to prosecute the claim within one year after the death of the husband, inasmuch as section 8, paragraph 2, subsection (j) clearly provides that the appointment of a tutor is not necessary, except when there is no surviving parent”.

It is true that subsection (j) of paragraph 2 of section 8 of the act does provide that where there is a surviving widow or widower and a child or children the compensation shall be paid entirely to the widow or widower, but it goes further than that and provides that it shall be paid—

“* * * for the common benefit of such widow or widower and the child or children”.

In case the employee sustains injuries in the course of his employment such as to disable him to earn wages, the law provides that the employer shall pay to him certain amounts sufficient to sustain him in a measure until he is again able to resume his labors and earn compensation; and in case of his death, it provides that this compensation shall be paid to his dependents, especially designating these who are entitled to receive it. In case the employee leaves a wife and children, they are made the beneficiaries of the compensation in order that they may sustain themselves. In case of the death of the husband, the widow receives the compensation for the joint benefit of herself and the minor children of the deceased, in order that she may sustain herself and the children. In case the deceased leaves no wife or husband but dependent minor children, the compensation inures to the benefit of the children.

So that in either event the dependent minor children are entitled to the compensation.

The fact that the widow or widower of a deceased employee for any reason forfeits her or his right to claim the benefit of such compensation for herself or himself, cannot deprive the dependent minor children of their right to claim and receive it.

If the law were otherwise, the dependent children could not, in case a father or mother survived, receive the compensation unless such father or mother willed to accept it.

Such a rule could easily work great hardship upon dependent minor children. Let us suppose, for instance, that in the case at bar the wife of the deceased and mother of the children had abandoned her husband and children previous to his death and at the time of his death was residing in another state and did not wish to return and accept the benefits of the act, it could hardly be said that for that reason the children would be deprived of the compensation? Such, however, would be the result if counsel’s contention be correct. Such was never intended by the lawmaker.

These dependent children can no more oe deprived of their rights under this act because of the negligence of the mother ;han they could be deprived of a legacy or nheritance because the mother, refused or neglected to qriálify as their tutrix and claim it for them.

Counsel are correct in their contention that the mother" in this case had a right to claim arid accept the compensation without qualifying as tutrix. Under the plain letter of the Civil Code and under repeated decisions of our Supreme Court, surviving parent may appear in court and prosecute defend actions for or against their minor children without qualifying as tutor or tutrix; but we are not aware of any law compelling them to do so.

The question of parents’ responsibility for failure to qualify as tutor or tutrix and to protect the rights of their minor children is another matter. The act under consideration specifically provides that where there is a surviving parent the compensation shall be paid to him or her and that the appointment of a tutor shall not be necessary. That means, as we see it, nothing more than that the survivor is not required to qualify in order to receive the compensation for the benefit of herself and the children; but it by no means implies that the right of the dependent minors to receive compensation is dependent upon the will or disposition of the parent to accept the benefits of the act in his or her favor.

The situation of a minor, from the standpoint of being able to claim compensation under the act in cases where the parent for any reason neglects or declines to invoke the act in his or her behalf is the same as if the minor had no parent. To hold otherwise, would be to make the minor’s right depend entirely upon the will of the parent.

We cannot give assent to counsel’s contention, especially in view of the fact that the act is to be construed liberally in favor of the employee and his dependents.

Having held that the minors in this case, being dependents of the deceased, are entitled to compensation under the workmen’s compensation act, regardless and independent of any right accruing thereunder to the mother, and it appearing that no tutor was appointed for them until the day on which the suit was filed, it necessarily follows that the plea of prescription is not well founded.

Section 16 of the act specifically provides that where a dependent is a minor at the time the right or privilege accrues under the act, and has no tutor—

“* * * no limitation of time in this act provided for shall run so long as such incompetent or minor has no curator or tutor

The plea of prescription, as to the minors, was properly overruled.

ON THE MERITS

WEBB, J.

The decedent, Arthur Gospel, while in the employ of the defendant at' a weekly wage of thirteen and 50-100 dollars received injuries in an explosion of gas, which injuries caused his death.

Decedent, with other employees of defendant, was engaged in installing a gasket on a gas regulator which was situated in a house or room about eight feet square, and in the course of the work of installation, certain bolts being removed, gas escaped from the regulator into the room.

It further appears decedent and his fellow employees were aware of this fact and that decedent, while the work was in progress, turned aside and moved towards the door, lighting a cigarette, and the flame from the match ignited the gas which had accumulated in the room, causing the explosion.

It also appears that decedent had been warned and requested by one of his fellow employees not to smoke or light the cigarette.

. The plaintiff contends that the evidence shows the accident to have arisen in the course of and out of decedent’s employment and although it appears decedent was neg ligent his negligence cannot be considered in determining the right of plaintiff tc recover.

The plaintiff’s contention appears to be that one of the risks of the employmen was the danger of an explosion of the gas and that there was a causal connection be tween the risk of the employment and th< injuries received.

Had the explosion resulted from a sparlB thrown off while the workmen were liftin¡ or working upon the fixture, there couli be no doubt as to the accident arising ij the course of and out of the employment and in this respect, at least, it is clear tha one of the hazards of decedent’s emploj ment was due to danger of the gas e? ploding.

The statute is intended to provide pr( tection to the employees against all ris! to which they may be exposed by the enl ployment (Dyer vs. Rapides Lumber Co. 154 La. 1091, 98 South. 677), and where appears there is a causal connection b tween the risk of the employment and £ accident, it is the rule to allow compe: sation, although the risk of the emplb; ment may have been only a contributi: cause.

As to the amount of recovery.

Decedent was injured and died from tl| injuries in 1922, subsequent to the amenl ment of Act No. 20 of 1914 by Act No. 43 of 1922, and in view of tbe construction which we have placed upon the statute, on the plea of prescription, in which the right to recover by the widow and the minors is considered distinctively, we are of the opinion that the amount which can be recovered for the benefit of the minors is thirty-five per cent of the weekly wages of decedent.

It is therefore ordered that the judgment appealed from be amended and the amount of compensation due the minors be fixed at thirty-five per cent of thirteen and 50-100 dollars for three hundred weeks, and as thus amended the judgment is affirmed.


author: BY THE COURT.

text:
    No. 2720
    Second Circuit
    SIESS v. COUVILLION
    (June 2, 1926, Opinion and Decree)

      (Syllabus by the Editor.)

    1. Louisiana Digest — Courts—Par. 127.
    The Court of Appeal has no original jurisdiction to issue injunction under Section 29 and Section 2 of Article VII of the Constitution of 1921.
    Appeal from the Twelfth Judicial District Court of Louisiana, Parish of Avoyelles, Hon. L. P. G-remillion, Judge.
    Action by Mrs. Mina Siess against C. P. Couvillion, sheriff, etc. Application for injunction restraining the sheriff and .seizing creditors from proceeding with the advertisement and sale of plaintiff’s property binding the decision of the Court of Appeal.
    Application dismissed.
    J. C. Cappel, Porterie and Bordelon, of Marksville, attorneys for plaintiff, appellant.
    A. V. & P. Coco, W. E. Couvillon, of Marksville, attorneys for defendant, appellee.
   BY THE COURT.

The plaintiff, appellant, has presented to the judges of this court an application in which she alleges, in substance, that) on January 20, 1926, she made application for and obtained from the Judge of the Twelfth Judicial District Court of Louisiana in and for the Parish of Avoyelles a temporary restraining order, restraining the sheriff of Avoyelles parish, C. P. Couvillion, from selling her property, which he had seized under certain writs of fieri facias; that in the same order granting the restraining order the said judge issued a rule nisi ordering the sheriff and seizing creditors to show cause on a day fixed why said temporary restraining order should not be continued and perpetuated and a permanent injunction issued; that subsequently thereto and prior to the date set for the hearing, the sheriff and seizing creditors filed exceptions of no cause or right of action and moved to dissolve the restraining order previously issued, which exceptions and motion were set down for argument and were argued and submitted to the court; that on the day fixed for the hearing on the rule nisi the judge sustained said exceptions and dissolved the restraining order previously granted; that she moved for a new trial, which was refused by the court, whereupon she applied for and was granted a suspensive appeal to this court and that she furnished bond in the amount fixed by the court.

She further alleges that, notwithstanding she was granted a suspensive appeal to this court and that she filed bond in the amount fixed by the court, the said sheriff persists in advertising and selling her property.

“Now your petitioner shows to this honorable court that notwithstanding the fact that a suspensive and devolutive appeal were granted to her by the Honorable 12th Judicial District Court from the latter court’s ruling and maintaining the exception of no cause of action, in the above numbered and entitled cause, the said sheriff of the Parish of Avoyelles and the creditors named hereinabove, are proceeding anew with the advertisement of that property and have offered for sale her property in satisfaction of the judgments herein-above listed on Saturday, June 12, 1926 (as per certificate of publisher of Weekly News, Marksville, La., hereto attached and made a part of this petition); that in order to give effect to the suspensive appeal taken in this cause aforesaid and until your Honorable court can pass upon the issues involved herein and determine the correctness of the ruling of the 12th Judicial District Court herein, it is necessary that the said sheriff of the Parish of Avoyelles, C. P. Couvillion, and the creditors, August H. Flaspoller Company, Louisiana Molasses Company, E. E. Worms, Nicholas Burke Company, Goodbar & Company, A. Lehman & Company, Dwyer Brothers Company. Ltd., and Albert Hardtner Company, be restrained, prohibited and enjoined from proceding further with the advertisement and sale of your petitioner’s property until the further orders of this court and until she has had an opportunity to be heard on appeal; that unless the said sheriff of the Parish of Avoyelles and the said seizing creditors, all of whom are named hereinabove, are restrained and prohibited from this illegal advertisement and sale of your petitioner’s property, petitioner shows that she will suffer irreparable loss and injury.”

And she prays that the said sheriff and seizing creditors be restrained from proceeding further with the advertisement and sale of her property on June 12, 1926, until this court shall have reviewed the issues concerned in said case on appeal and until the further orders of this honorable court.

OPINION

This court is without jurisdiction in the premises.

Section 29 of Article YII of the Constitution provides:

“The Courts of Appeal, except as otherwise provided in this constitution, shall have appellate jurisdiction only * *

Section 2 of the same article provides that—

“* * * the Courts of Appeal, and each of the judges thereof, * * * may issue writs of habeas corpus, in behalf of any person in actual custody * * * and may also in aid of their respective jurisdictions, original, appellate or supervisory, issue writs of mandamus, certiorari, prohibition, quo warranto, and all other needful writs, orders and process * *

Upon the application of plaintiff, the applicant here, an appeal in this case was lodged in this court on May 25, 1926. She now comes into this court asking for the issuance of an order which the lower court refused to grant. Upon the hearing of the case in this court on appeal the court will pass upon the question presented and if the court below erred, its error will be corrected.

But this court has no original jurisdiction to issue injunctions. The only writs we are authorized to issue are these in aid of our appellate jurisdiction. Plaintiff is not asking for a writ directed to the court below. She asks that we enjoin the sheriff of the Parish of Avoyelles from selling her property.

.The relief prayed for is therefore refused.

Judges of the Court of Appeal, Second Circuit, State of Louisiana.