text:
    No. 2155
    Second Circuit
    FOSTER AND GLASSELL CO., LTD., v. KNIGHT BROTHERS
    (April 10, 1926, Opinion and Decree)
    (May 7, 1926, Rehearing Refused)

      (Syllabus by the Court.)

    1. Louisiana Digest — Negligence—Par. 1; Municipalities — Par. 263.
    The driver of a truck cannot free himself or his employer from liability for damages caused by his throwing a bale of cotton upon a pedestrian who was walking along a neutral ground frequently used by persons as a passageway, by simply shouting “look out” as he threw the bale from his truck into such passageway. It was his duty to look before throwing the bale to be sure it would not hurt anyone.
    Mahan vs. Everett, 50 La. Ann. 1162, 23 South. 883.
    2. Louisiana Digest — Master and Servant Par. 65, 67, 150.
    An employee is not guilty of contributory negligence in walking near a truck loaded with cotton standing near a thirty-foot zone marked off and reserved from use ■ for unloading cotton and generally used by employees of a compress company as a passageway when the rules of the city fire department and of the compress company forbid the unloading of cotton on such reserved zone.
    Muscarelli vs. Hodge, 120 La. 335, 45 South. 268.

      Roff vs. Summitt Lumber Co., 119 La. 571, 44 South. 302.
    3.Louisiana Digest — Negligence—Par. 41.
    Contributory negligence will not be presumed against one injured by the negligent act of another.
    Buechner vs. City of New Orleans, 112 La. 599, 36 South. 603.
    Boutte vs. N. O. Terminal Co., 139 La. 954, 72 South. 513.
    4.Louisiana Digest — Negligence—Par. 20, 21.
    To constitute contributory negligence it must be shown that plaintiff voluntarily and unnecessarily exposed himself to a known danger.
    Babin vs. S W. Board, 2 La. App. 517.
    5.Louisiana Digest — Negligence—Par. 43; Appeal — Par. 625.
    Contributory negligence is an issue of fact to be determined primarily by the trial judge whose finding will not be reversed by this court unless clearly wrong on the face of the record.
    (Civil Code, Article 2315. Editor's note.)
    Appeal from the First Judicial District Court of Louisiana, Parish of Caddo, Hon. J. H. Stephens, Judge.
    Action by Foster and Glassell Co., against Knight Brothers for damages for injuries caused to the employee of the plaintiff. There was judgment for plaintiff and defendants appealed.
    Judgment amended and affirmed.
    Foster, Looney, Wilkinson and Smith, of Shreveport, attorneys for plaintiff, appellee.
    Wilkinson, Lewis Si Wilkinson, of Shreveport, attorneys for defendants, appellants.
   STATEMENT OF THE CASE

REYNOLDS, J.

Plaintiff, Foster & Glassell Co., Ltd., sued defendants, Knight Brothers, to recover the sum of $650.00 with legal interest on $537.40 thereof from August 3, 1920, until paid, and with legal interest on the balance from judicial demand until paid, for injuries negligently inflicted on its employee, Pink Morris, by an employee of defendants and for compensation for which injuries its employee had obtained judgment against it under the Employers’ Liability Act (Act 20 of 1914 as amended by Act 38 of 1918) and in satisfaction of which judgment it had paid its employee $537.40 on August 3, 1920.

The suit was commenced November 16, 1920.

Defendants tendered a plea of prescription of one year which plea was sustained by the court and plaintiff’s suit dismissed.

Plaintiff applied for a new trial which was dénied and it appealed to this court which affirmed the judgment of the trial court.

Plaintiff having been denied a rehearing by this court applied for and was granted a writ of certiorari by the Supreme Court where the judgment of the district court and of this court was affirmed in part and reversed in part. Said the Supreme Court:

“Our conclusion, therefore, is that insofar as the demand exceeds the sum alleged to have been paid by plaintiff to its employee, the plea of prescription was properly sustained; but as to the claim for $537.40, as for money paid because of the fault of defendant, it should have been overruled'. For the reasons assigned the judgments of the District Court and Court of Appeal are set aside insofar as the demand for reimbursement for money paid to the extent of $537.40 is concerned, and this cause is hereby remanded to the trial court to be proceeded with according to law and the views herein expressed. Defendant to pay costs of the Court of Appeal and of this court, all other costs to await final judgment.”

On the return of the case to the District Court the defendants answered denying negligence on the part of the driver of their truck and alleging that the proximate cause of the injury to plaintiff’s employee was his own negligence.

On these issues the case was tried and judgment was rendered in favor of plaintiff and against defendants for the sum of $650.00 with legal interest on $537.40 thereof from August 3, 1920, until paid, and with legal interest on the balance thereof from November 10, 1920, until paid, together with the costs of the suit.

A new trial having been applied for by defendants and denied by the court; defendants appealed to this court.

OPINION

It is conceded by both plaintiff and defendants that the only question to be decided is whether the alleged negligence of the driver of defendants’ truck or the alleged negligence of plaintiff’s employee was the proximate cause of the accident.

The evidence shows that there was a zone thirty feet wide marked off around the compress where the accident occurred generally used by employees of the compress as a passageway in going to and coming and going about the compress.

This zone was marked off by a chalk line and the rules of the city fire department and of the compress company forbid the unloading of cotton on it.

Pinkney Morris, an employee of plaintiff was at work near the compress, and while walking on the reserved zone, returning from dinner, defendants’ truck driver lifted a bale of cotton as high as his knees from the truck and yelling “lookout” toppled it to the ground — all at one time. The bale fell upon Pinkney Morris causing injuries to him for which he obtained judgment against plaintiff under the employers’ liability act as stated.

We are of the opinion' that Pinkney Morris was not guilty of negligence.

The evidence shows that the thirty-foot zone was generally used by those employed by or having business at the compress as a passageway.

George Slaughter testified, pages 10 and 20:

“Q. Now, what was Pink Morris doing?
“A. Well, he was just coming in from dinner, going to his work.
“Q. Which way was he coming from?
“A. Right up the side of the warehouse like, like he come every day.
“Q. Was that generally the way he come in?
“A. Yes, sir.
“Q. Now Pink Morris worked for who?
“A. Poster & Glassell.
“Q. What was his object in coming up that way?
“A. Well, that was generally the way he come every day, all of us come that way, by the side of the warehouse.
“Q. It was at dinner time?
“A. Yes, sir, after dinner.
“Q. He was coming there for the purpose of going to work?
“A. Yes, sir, Tom Rochelle was calling for him.
“Q. What did Tom do then?
“A. He was foreman, there.
* * *
“Q. Now, was this the general pathway for employees of Poster & Glassell to go to work?
“A. Yes, sir, every one in that place come in there and the hands going to dinner passed along that wall there down to the compress and to the compress room.
“Q. Now, was that the proper place for Pink Morris to come on his way back to work?
“A. Yes, sir, along that passageway.
“Q. Now, where is the door to Poster & Glassell’s warehouse, how close was he to the door?
“A. Well, a space — he was about ten or fifteen feet from the door.
* * %
“Q. Now, you say you saw this cotton fall?
“A. Yes, sir, now there was a trailer behind the truck and the trailer was unloaded before Pink Morris got there and the young man, we call him young man, whoever he was, he had managed to move the trailer back and he commenced to unload the truck, he got on top, I was satisfied he didn’t see him because he was not where he could have seen him; he was hot and straining himself to raise the cotton up and Pink Morris being on the opposite side and of course he threw the cotton off and it caught Pink.
‘‘Q. Now, when he threw the bale of cotton off did you hear him holler ‘look out’?
“A. No, sir, I didn’t hear that.
“Q. Would you have heard it if he had hollered ?
“A. Well, if he had hollered loud enough.
“Q. Is it customary to holler ‘look out'?
“A. It was customary to notify or to see if anyone, was in danger.
“Q. Do you know anything about that thirty-foot fire line?
"A. Yes, sir.
“Q. What is the reason for it?
“A.' The fire insurance requires it. They leave that space there so that in case of fire the fire wagons can get there at any time in case of fire so we have to leave it open. They require it.
“Q. Was it customary then to put cotton inside of that thirty-foot line?
“A. It was against the rules of the compress.
“Q. Then cotton was not supposed to be unloaded over that thirty-foot line?
“A. It was against the rules of the compress to put cotton on that thirty-foot space. I was foreman there for seven years.”

Thomas Rochelle testified, page 38:

“Q. And that was when Pink was coming back from dinner, was-it not?
“A. Yes, sir.
“Q. Well, where was he walking, close to the warehouse or way off?
“A. He was walking close to the warehouse.
“Q. Is that generally the way the employees come back to work?
“A. Yes, sir, every one comes up that line.”

Elmo Williams testified, page 67:

“Q. Were you close to the truck which was driven by Red the day Pink Morris got hurt by a bale of cotton?
“A. Yes, sir, I was fixing to pass when he threw the bale of cotton.
“Q. How close were you to the truck?
“A. I passed along by the truck, in fifteen feet of the truck.”

Prank Johnson, the driver of the truck and the person who threw the bale of cotton that injured Pink Morris, testified, page 53:

“Q. Do you know or did you know how the workmen got to and from the warehouse out there where they were working when they had to go back and forth?
“A. I didn’t know, sir; they come up out of all the doors; coming always.
“Q. Some one walking around nearly all the time?
“A. Yes, sir, coming and going around.”

Prom this evidence it is perfectly clear that the passageway was generally used by the employees of the compress company in going to and coming from work.

That it was against the rules of the city fire department and of the compress company to unload cotton on the thirty-foot zone, is established by the testimony of George Slaughter who testified, page 13:

“Q. Now, as a matter of fact, these trueles unload all of the time in that driveway?
“A. No, sir, not over the fire line they don’t.
“Q. But they often unload cotton in any particular place along here all the time (pointing to diagram) ?
“A. Yes, sir, out in the yard.
“Q. Up against the wall?
“A. No, sir, they don’t do that.
“Q. You don’t know whether they had the habit of unloading cotton there or not?
“A. No, sir, that was the first time that I ever seen them unload it there.”

Jonas Cornelius testified, pages 21, 30, 31:

“Q. Do you know anything about that thirty-foot fire line?
“A. Yes, sir.
“Q. What is the reason for it?
“A. The fire insurance requires that. They leave that space there so that in case of fire the fire wagons can get there at any time, in case of fire, so we have to leave it open.
“Q. Was it customary then to put cotton inside of that thirty-foot line?
“A. It was against the rules of the compress.
“Q. Then cotton was not supposed to be unloaded over that thirty-foot line?
“A. It was against the rules of the compress to put cotton on that thirty-foot space. I was foreman there for seven years.
* * *
“Q. Well, didn’t they make a habit of dumping cotton like cotton was dumped there this day up against the wall?
“A. I can’t remember any particular time; any time any truck driver came in there they wouldn’t dump the cotton there up against the wall. I don’t remember seeing them doing that as a habit.
“Q. But had you ever seen them doing that before this day?
“A. I don’t remember any case.”

Thomas Rochelle testified, page 44:

“Q. Now, that truck was in an unusual place?
“A. Well, it was not in the right place to be unloaded.
“Q. In an unusual place?
“A. Yes, sir.
“Q. Don’t you think that the truck being in an unusual position on the inside of the fire zone would have attracted the attention of Pink Morris?
“A. Well, I suppose he thought like this that he was going along there and didn’t think he was going to throw a bale down on him.”

The accident occurred at the noon hour and defendants’ truck driver had just unloaded the trailer on the side opposite the reserved zone.

We do not think that Pinkney Morris should be held guilty, of negligence in assuming that defendants’ truck driver would violate the rules of the city fire department and of the compress company by throwing cotton from his truck onto the reserved zone.

Defendants insist that the rules forbidding the use of the reserved zone for unloading purposes were frequently violated and that it was the custom to shout “look out!” and at once throw bales of cotton from the truck to the ground there.

We think that the custom is more nearly given by Jonas Cornelius who testified, page 21:

“It was customary to notify or to see if any one was in danger.”

And the testimony of defendants’ truck driver who testified, page 51:

<■* * * g0t a bale of cotton and hollered ‘look out!’ and I understood some one to say ‘throw it’ and I pushed.”

But defendants’ truck driver was evidently mistaken about having heard some one say “throw it” for he is not corroborated in this statement and defendants’ counsel do not even contend that he was directed by any one to throw the bale of cotton before he did so.

We think that it was the duty of defendants’ truck driver, before throwing the bale of cotton, to have seen that it would not injure any one or to have had some one do so for him.

Plaintiff insists that under the authority of Appalachian Corporation vs. Brooklyn Cooperage Co., 151 La. 41, 91 South. 539, that even if its employee, Pinkney Morris, had been guilty of contributory negligence, such negligence would not avail defendants as a defense in this case.

Having found that the proximate cause of the injury to Pinkney Morris was the negligence of defendants’ truck driver and that Pinkney Morris was not himself guilty of negligence it becomes unnecessary to pass upon this question.

It is evident that the District Court and counsel both for plaintiff and defendants overlooked the fact that so much of the former judgment of that court and so much of our former judgment affirming its judgment as decided that that part of plaintiff’s demand in excess of $537.40 with legal interest thereon from August 3, 1920, until paid, was prescribed was not annulled by the Supreme Court but affirmed, and that therefore plaintiff’s right to recover more than $537.40 with interest thereon from August 3, 1920, was thereby eliminated from the case.

The evidence convinces us that plaintiff was entitled to judgment, but not for the amount awarded him by the district judge but only for $537.40 with legal interest thereon from August 3, 1920, until paid.

Por these reasons, it is ordered that the judgment appealed from be amended so as to read as follows:

It is ordered, adjudged and decreed that there be judgment in favor of plaintiff, Poster & Glassell Co., Ltd., and against defendants, Knight Brothers, in the full sum of five hundred thirty-seven and 40-100 dollars together with legal interest thereon from August 3, 1920, until paid; defendants to pay all costs, except those of the present appeal which shall be paid by the plaintiff. And, as thus amended, the judgT ment appealed from is affirmed.


source: Caselaw Access Project

author: ODOM, J.

license: Public Domain

text:
    No. 2134
    Second Circuit
    BRENARD MANUFACTURING COMPANY v. GIBBS
    (June 2, 1926, Opinion and Decree)

      (Syllabus by the Editor.)

    1. Louisiana Digest — Corporations—Par. 299.
    The purpose of Act 64 of 1918 is to prevent a foreign corporation doing business in this state, from obtaining credit on the strength of unauthorized name and not designed to prevent the organizers of it from recovering from a debtor in this state.
    2. Louisiana Digest — Fraud—Par. 1.
    In order to constitute fraud false representation must relate to matters of fact which exist in the present or have existed in the past, but representation as to a matter of intention, although it may have influenced .the transaction, is not a fraud.
    3. Louisiana Digest — Bonds—Par. 1, 2.
    An instrument does not necessarily have to be signed by a surety in order to be a bond.
    4. Louisiana Digest — Obligations—Par. 76, 102.
    A contract giving one the right to send a special salesman to aid the purchaser does not require that a salesman shall be sent.
    5. Louisiana Digest — Evidence—Par. 215, 222.
    In view of Article 2276 of the Civil Code testimony admitted over plaintiff’s objection which had the effect of changing, enlarging, altering and modifying a written contract will not be considered by the appellate court.
    Appeal from the First Judicial District Court of Louisiana, Parish of Caddo, Hon. J. H. Stephens, Judge.
    Action by Brenard Manufacturing Company against W. G. Gibbs. There was judgment for plaintiff and defendant appealed.
    Judgment affirmed.
    R. L. Garrett, of Shreveport, attorney for plaintiff, appellee.
    Scheen and Blanchard, of Shreveport, attorneys for defendant, appellant.
   ODOM, J.

Plaintiff brought this suit to recover of defendant $844.00, and set up as a cause of action that it is the -holder and owner of twelve promissory notes aggregating that amount, all executed and signed by defendant and made payable to plaintiff, which notes are attached to and made part of the petition.

Plaintiff amended its original petition by setting out that the notes sued on were given for the purchase price of graphaphones or music boxes ordered by defendant from - .plaintiff under- certain order or agency contracts which were given by defendant and sent to plaintiff at Iowa City, Iowa, for approval as stipulated therein, and that after approving said orders the goods ordered were delivered to defendant by delivery to a carrier in Iowa City, Iowa, as provided in the orders, and it attached said orders to and made them part of the amended petition.

Defendant, in limine, tendered an exception to the suit, alleging that plaintiff was conducting business in this state in violation of law and that therefore plaintiff has no right of action.

No action seems to have been taken on this exception by the court.

Subsequently defendant filed answer, reserving his rights under the exception, and admitted that he signed the notes sued on but denies the indebtedness on the grounds that the notes were secured by fraud and without consideration, and he especially alleged that plaintiff’s representative had agreed that if defendant would sign the contract and the notes sued on, he, plaintiff, would place a salesman in the territory who would make sales of the machines, but that no salesman appeared and “that on account of the said failure of the agreement and contract the said' machines were never taken out of the railroad and the same were returned to the plaintiff at the place they claimed to have consigned the same; that they were duly- notified of the failure to carry out the agreement and contract and the true consideration of the said notes, and the plaintiff refused and failed to carry out the contract and agreement, and therefore the said notes were without consideration and were secured by fraud and your defendant has nothing in value therefor.

There . was judgment for plaintiff as prayed for and defendant appealed.

OPINION

The contract which defendant signed reads in part as 'follows:

‘.‘The Brenard Manufacturing Co., Iowa City, Iowa.
“Gentlemen:
“Upon your approval of this order and agency contract deliver to me at your earliest conveniences, F. O. B. factory or distributing point, the articles mentioned below, in payment for which I herewith hand you my notes aggregating $422.00 which you are to cancel and return to me if agreement is not approved by you.” (There were two of these contracts or orders and two sets of notes.)

Then follows a description of the articles ordered and a clause granting to defendant the exclusive agency for plaintiff’s line of “Golden-Throated” Claxtonola phonographs in that territory for three years and a clause with reference to discount, etc., and the following:

“If my sales under this contract do not am.ount to $422.00 (the value of the goods ordered and the aggregate amount of the notes accompanying the contract) you agree to either pay me the difference in cash or repurchase these Claxtonolas and records if returned to you in good order and you are to send your bond in the sum of $422.00 to protect me in the conditions Of this contract.
“To make.the last above paragraph binding upon you I agree to furnish within thirty days of date hereof 50 names and á'ddrésses- of' persons who may be interested in-securing.Claxtonolas to-whom you are to send appropriate advertising matter. * * * You are to have the right to send a special salesman into my territory at any time to do field work and promote the sale of Claxtonolas through my agency. * * * In order to protect you in your special methods and plans and in your expenditures this order cannot be countermanded.”

This, and one other contract like it together with ■ the notes sued on, were iorwarded immediately to plaintiff company at its home, office in Iowa City, Iowa, and was accepted on the same date received and the goods shipped promptly by express. When the goods arrived defendant refused to accept them and in order to prevent a sale of them by the express company they were returned to the shippers at their request according to the testimony of Mr. Loveland a member of the plaintiff firm and are being held subject to defendant’s orders.

According to defendant’s testimony, given on the trial of the case, he refused to accept the goods and to remove them from the express office, and he was asked:

“Q. Well, when these machines came down there you refused to receive them, absolutely? ■
“A. Yes, sir, until the man came. That was the agreement with me. I wasn’t to take them until he came back. I wasn’t supposed to get them -out of the express company’s office until they furnished a helper.”

And he says the agent or helper did not return. He also testified that he would not receive the goods because the plaintiff did not send him the kind of a bond they agreed to send and “I sent the little old certificate he sent me back and told them I was supposed to get a bond, get a guarantee from them”.

And he was asked—

“Q. They hadn’t complied with the contract as to these material features?

And he said:

“A. No, sir.”

Plaintiff objected to the above and all similar testimony on the ground that parol testimony is inadmissible under Article 2276 of the Civil Code to vary or alter the written contract, and the court admitted it subject to the objection and said:

“But you cannot vary, alter or amend the contract sued on.”

It will therefore be observed that defendant resists payment of the notes on three grounds, to-wit:

1. On the ground, as set out in the exception filed in limine, that plaintiff is a non-resident of the state and was doing business in this state in violation of Act 64 of 1918.

2. That said notes and contracts were obtained through fraud.

3. On the ground that plaintiff failed to furnish the bond required by the contract.

4. On the ground that plaintiff failed to send the salesman into the territory to sell the phonographs.

I.

Taking up these defenses in the order named, we find that Act 64 of 1918 is a penal statute providing that no person or persons shall carry on or transact any business in this state under an assumed name or any name other than his own, without registering with the clerk of court a certificate showing the name under which such business is or is to be conducted and the names of the persons owning or transacting such business with the post office address of such persons, and, in section 5, that any person or persons conducting or transacting any business who shall fail to comply with the provisions of the act shall be guilty of a misdemeanor and subject to a fine of not less than $25.00 nor more than $100.00 and. each day such person or firm continues such business shall constitute a separate offense. This is the only penalty which-the act provides. There is nothing in the act to indicate that in case a person or firm should violate its provisions his or its business, transactions are stricken with nullity.

The testimony shows that the ■ plaintiff firm is a commercial partnership domiciled at Iowa City, Iowa, and composed of Theodore O. Loveland and James L. Records, both domiciled at that place. So far as the record discloses these parties did not comply with Act 64 of 1918 by registering, and defendant contends that their failure to do so strikes with nullity the business transacted in this state.

But the jurisprudence of this and other states is the other way. In construing similar statutes our courts have held that the purpose of such enactments is to prevent a firm from obtaining credit on the strength of an unauthorized name and not designed to prevent the organizers of it from recovering from a debtor.

Wolfe vs. Joubert, 45 La. Ann. 1100, 13 South. 806.

Kent vs. Majoiner, 36 La. Ann. 259.

And in the ease of In re Pelican Insurance Co., 47 La. Ann. 935, 17 South. 427, the court said:

“The debtor of such a partnership or firm cannot plead the nullity of his engagement on' account of the creditor’s violation of . the statute where the' only penalty fixed by the statute for its violation is making it a misdemeanor and subjecting the offender to a fine.”

' In the case of. Smith vs. Williams, 152 La. 948, 94 South. 859, the court had under consideration Act 64 of 1918, the act invoked by defendant in this case, and it said:

“It is a general rule that in the absence of statute to the contrary a person may transact business and execute his contracts under any name he may choose to adopt, provided no fraud is committed. (Citing 29 Cyc. 270 and L. R. A. 1915D 981 note.)
"And whether there was any fraud committed in th-s case is a matter of defense, Dut does not arise on the exception of no cause of action.”

But in cases where there is a statute, on the subject it was stated that the courts are divided “as to whether or not the business so done is or is not so stricken with nullity as to preclude any recovery in such cases”.

(Citing Hunter vs. Big Four Auto Co., 162 Ky. 778; 173 S. W. 120; L. R. A. 1915D 987) where it was held that no recovery could be had, and said—

“* * * but as said in the note to that case the we.ght. of authority is the other way; and among the courts holding to the contrary are those of Louisiana”,

and the cases of Kent vs. Majoiner; Wolfe vs. Joubert, 45 La. Ann. 1100, 13 South. 806; and In re Pelican Insurance Co., 47 La. Ann. 935, 17 South. 427, supra, are cited.

The..jurisprudence is therefore settled in this state , that ,under Act 64 of 1918 the business engagements and contracts entered into by a foreign person or partnership in this state are not stricken with nullity, and a person obtaining credit from such a person or partnership cannot escape liability under such contracts merely and solely on account of the fact that such person, partnership or firm failed to comply with the provisions of said statute.

Therefore, if the defendant in this case avoids the effect of his contracts he must do so on other grounds.

II.

The defendant, in answer, sets up that the notes and the contracts were obtained by fraud and that they are therefore without consideration and are of no effect.

But he failed to plead or testify to any act on the part of the agent representing the plaintiff which discloses fraud.

An allegation of fraud by the pleader is but a conclusion reached by him. In setting forth the facts on which he based the allegation of fraud the defendant alleged, in answer, that the plaintiff’s agent stated to him an experienced salesman would be sent into the territory to sell the talking machines, and that such salesman did not appear. He does not charge that the agent concealed or suppressed any material fact or that he made any misrepresentation with reference to the kind or quality of the goods in order to induce him to sign the notes and contracts.

“As a general rule, in order to constitute actionable fraud, the false representation must relate to a matter of fact and such fact must be one which exists in the present or which has existed in the past.”

12 R. C. L. 244, sec. 14. And—

“Since a fraud must relate to facts then existing or which have previously existed, the general rule is that fraud cannot he predicated upon statements promissory in their nature and relating to future actions nor upon the mere failure to perform a promise or an agreement to do something at a future time, or to make good subsequent conditions which have been assumed. Nor, it is held, is such non-performance alone even evidence of fraud. Reasons given for this rule are that a mere promise to perform an act in the future is not, in the legal sense, a representation and a failure to perform it does not change its character. Moreover, a representation that something will be done in the future or a promise to do it from its nature, cannot be true or false at the time where it is made. A failure to make it good is merely a breach of contract which must be enforced by an action on the contract, if at all. And as in the case of promises, it is generally held that mere assertions on intentions or declarations of future purpose do not amount to fraud.”

12 R. C. L. 254, sec. 21.

See: 20 Cyc., p. 20.

In the case of Cage vs. Lewis, 68 Ill. 604, it was held that a false representation as to a matter of intention, not amounting to a matter of fact, although it may have influenced the transaction, is not a fraud in law.

And in Milwaukee Brick Co. vs. Schoknecht, 108 Wis. 457, (84 N. W. 38), it was held that no statement as to what would be done in the future constitutes fraud.

It therefore follows that if plaintiffs agent said everything that defendant says he did, he perpetrated no fraud upon defendant.

III.-IV.

Defendant testified that plaintiff failed to furnish him the bond as required by the following clause of the contract:

“If my sales under this contract do not amount to $422.00 you agree to either pay me the difference in cash or repurchase these Claxtonolas and records if returned to you in good order and you are to send your bond in the sum of $422.00 to protect me in the conditions of this contract.
“To make the last above paragraph binding upon you I agree to furnish within thirty (30) days of date hereof 50 names and addresses of persons who may be interested in securing Claxtonolas with whom you are to take up correspondence, etc.”

It seems that plaintiff did send its bond, but defendant says it was not the kind of bond that he expected, and he was permitted to testify, over plaintiff’s objection (the testimony being admitted subject to the objection) that plaintiff’s agent told him the bond was to be signed by a surety company.

The contract does not stipulate that a bond with surety should be furnished.

An instrument does not necessarily have to be signed by a surety in order to be a bond.

9 C. J., page 10, paragraph 7.

The contract further stipulates—

“You are to have the right to send a special salesman into my territory at any time to do field work and promote the sale of Claxtonolas through my agency.”

It does not require that a salesman shall be sent for that purpose.

Defendant contends that plaintiff’s agent agreed that a salesman should be sent, and he was permitted to give testimony to that effect as well as with reference to the kind of a bond which was to be furnished, all over plaintiff’s objection.

It is clear that such testimony was not admissible. The contract is clear and unambiguous on these points. Plaintiff was not induced through fraud or duress to sign the contract and the notes nor did he do so in error of law or fact.

The parol testimony which defendant gave with reference to the understanding between him and the plaintiff’s agent had the effect of changing, enlarging, altering and modifying the contract and was against or beyond what was in the act.

C. C., Art. 2276.

Such testimony having been admitted over plaintiff’s objection, cannot be considered by us.

In the case of Davis vs. Bierce, 114 La. 663, 38 South. 488, the court held that where a writing—

“* * * although embodying an agreement is manifestly incomplete and not intended by the parties to exhibit the whole agreement but only to define some of its terms, such parts of the actual contract as are not embodied within its scope may be established by parol 'evidence.” (Syllabus.)

The court in that case further held that the rule prohibiting the introduction of parol testimony to vary, contradict or enlarge a written contract is not violated by allowing parol to be given—

“* * * as to a distinct, valid, contemporaneous collateral agreement between the parties which was not reduced to writing, when the same is not in conflict with the provisions of the written agreement.”

The court in plain terms recognized the rule that parol evidence is not admissible against or beyond what is contained in the written act, as set out in Article 2276 of the Code, saying—

“It is a recognized rule of evidence throughout the United States”

and cited many authorities. And the court said further—

“The test of admissibility in such cases is whether the evidence offered tends to alter, vary or contradict the written contract or only to prove an independent collateral fact about which the written contract is silent.”

In the case at bar, the contract is not silent on the two points at issue. It provides that a bond shall be given and that—

“* * * you (the plaintiff) shall have the right to send a special salesman into my (defendant’s) territory at any time to do field work and promote the sale of Claxtonolas through my (defendant’s) agency.”

Clearly any testimony that plaintiff, through its agent obligated itself to send the salesman into the tereritory enlarges and goes beyond the terms of the written instrument.

See: Hafner Mfg. Co. vs. Lieber Lbr. & S. Co., 127 La. 348, 53 South. 646.

Brenard Mfg. Co. vs. M. Levy Inc., 2 La. App. 577.

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


author: WEBB, J.

text:
    No. 2611
    Second Circuit
    HARRIS v. DUBACH MILL CO., INC.
    (June 2, 1926, Opinion and Decree)

      (Syllabus by the Editor)

    1. Louisiana Digest — Timber—Par. 15; Evidence — Par. 352.
    Where the evidence did not show that the representative of the plaintiff could have profited by the error in cutting timber from plaintiff’s land it is not proven that ' the defendant was in moral bad faith.
    2. Louisiana Digest — Timber—Par. 15.
    Where the evidence does not show moral bad faith or an intentional trespass or wilful intent to cut timber of the plaintiff and convert it into their own use, the measure of damages is the difference between the value of the timber sold and the cost of manufacture.
    3. Louisiana Digest — Timber—Par. 15.
    Damages allowed for wrongful cutting of timber from another’s land allowed at a rate commensurate with the value of the timber destroyed.
    (Civil Code, Art. 2315. Editor’s note.)
    Appeal from Third Judicial District Court of Louisiana, Parish of Lincoln, Hon. S. D. Pearce, Judge.
    Action by Mrs. Bertie Harris against Duach Mill Company, Inc. There was judgment for plaintiff and defendant appealed. Defendant answered the appeal.
    Judgment amended and affirmed.
    T. S. Price, of Ruston, attorney for plaintiff, appellant.
    Dhu Thompson, of Ruston, attorney for defendant, appellee.
   WEBB, J.

In this case plaintiff seeks to recover judgment against defendant in the sum of eighteen hundred and sixty-six 65-100 dollars, the alleged value of lumber manufactured from timber alleged to have been illegally cut and removed from lands belonging to petitioner.

The defendant admitted cutting on the lands and removing a part of the timber cut and manufacturing the same into lumber, but alleged that its action was in good faith, believing it had the right to cut the timber and remove same, and that it was liable for only the stumpage value of the timber removed.

On trial judgment was rendered in favor of plaintiff in the sum of four hundred twenty-four and 58-100 dollars, which was found to be the difference "between the value of the lumber which could have been manufactured from the timber cut and the cost of manufacture.

The plaintiff appealed, and the defendant has answered the appeal, praying that the judgment be amended and the amount allowed reduced in accordance with the original answer.

OPINION

The record shows that the Dubach Lumber Company, Ltd., a corporation, was the owner of a sawmill plant and appurtenances, including tramways1 or roads- and equipment, and timber lands and contracts, among which contracts was one of date November 2, 1912, acquired from J. S. and Bettie Roane, under which the Lumber Company acquired the right to cut and remove timber within ten years from the date of the contract on several hundred acres of land, including the NE14 of NE!4 of Section 27 and S% of SE14 of Section 22, township 19 north, range 2 west; that the Dubach Lumber Company, Ltd., entered into an agreement with the defendant, Dubach Mill Company, Inc., a corporation, about the year 1920, under which the defendant took over the operation of the sawmill, etc., and was given the right to cut the timber of the Dubach Lumber Company, Ltd., and to manufacture the same into lumber, the Dubach Lumber Company, Ltd., to receive a certain per cent of the price obtained from the sale of the lumber.

That in carrying out the arrangement of operating the plant and cutting the timber, the Dubach Lumber Company, Ltd., furnished the Dubach Mill Company, Inc., a list of the timber contracts, showing the names of the parties and date of contract and expiration and description of lands covered by the contract, on which list appeared a memorandum of the contract made with J. S. and Bettie Roane, and that the Dubach Mill Company, Inc., from this list made a map or maps which were used by it in its instructions to its employees in cutting the timber.

It further appears that the timber on the lands covered by the contracts between J. S. and Bettie Roane and the Dubach Lumber Company, Ltd., of date November 2, 1912, was not cut within the period stipulated in the contract, and in the meantime Mrs. Bettie Roane died and the lands covered by the contract were partitioned between J. S. Roane and decedent’s heirs on July 23, 1921, and that the NE14 of NE14 of Section 27 and S% of SE% of Section 22, township 19 north, range 2 west, was allotted to the plaintiff, Mrs. Bertie Harris.

That prior to the expiration of the period of ten years in which the Dubach Lumber Company, Ltd., was given to cut the timber, and subsequent to the partition, the Dubach Lumber Company, Ltd., had approached the various parties to whom the lands had been allotted under the partition, and had secured from all of them, with the exception of plaintiff, extension of the time in which to cut the timber from the lands, and that the Dubach Lumber Company, Ltd., acting through its representative, had revised the list of contracts given to the Dubach Mill Company, Inc., making a notation on the list and on the memorandum of the J. S. and Bettie Roane contract “new deeds for this”, consequently the Dubach Mill Company, Inc., did not change its map or maps, and when the time came to cut timber in the neighborhood of the lands covered by the contract between J. S. and Bettie Roane and the Dubach Lumber Company, Ltd., (which was in December, 1924) the employees of the Dubach Mill Company, Inc., went upon the S% of SE1^ of Section 22 and were cutting a right of way thereon, when being informed that the land belonged to plaintiff they discontinued, but some time in January, 1925, they went upon the NE% of NE% of Section 27 and cut thereon 70,764 feet of timber, removing 39,658 feet when they were informed that the land belonged to plaintiff, when they ceased removing the timber, leaving on the ground 31,106 feet.

The defendant contends that it was in good faith and liable for only the stumpage value of the timber removed, basing its claim of good faith on the fact of the nota-l tion made on the list showing that a new deed had been acquired by the Dubach Lumber Company, Ltd., covering the property described in the contract between J. S. and Bettie Roane and Dubach Lumber Company, Ltd., which included the NE}4 of NE*4 of. Section 27, which had led it to believe it had the right to cut the timber.

Conceding that the defendant, Dubacb Mill Company, Inc., was thus led to believe it had the right to cut the timber, we are of the opinion the position taken as to the extent of its liability for the timber cut and removed would have been tenable under the decision in Guarantee Trust & Safe Deposit Co. vs. E. C. Drew Investment Co. et al., 107 La. 251, insofar as the co-defendant Maguire was concerned, had it been shown that the Dubach Mill Company, Inc., purchased the timber from the Dubach Lumber Company, Ltd., but such is not the case. On the contrary we are of the opinion that the position of the defendant, Dubach Mill Company, Inc., having cut .the timber under the instructions of the Dubach Lumber Company, Ltd., for the benefit of both, is the same as would have been the case had the timber been cut by the Dubach Lumber Company, Ltd., which would have been more nearly analogous to that of the defendant E. C. Drew in the case cited.

Considering the extent of the liability of the defendant from this point of view, it must be held that the Dubach Lumber Company, Ltd., knew when the contract between it and J. S. and Bettie Roane expired, and whatever may have been the subsequent impressions of its representatives as to the contract having been extended or new deeds obtained, the fact remains that the right to cut the timber had ceased to exist, and it would have been in legal bad faith had it cut the timber, and the same was the situation of the defendant.

However, it has been held that in measuring the damages due by a trespasser for cutting and removing timber, a distinction is made between legal and moral bad faith, and that the owner cannot recover for the value of the lumber manufactured from the timber taken without deduction for the cost of manufacture, unless the trespasser was in moral as well as legal bad faith. State vs. Williams Cypress Company, 131 La. 70, 58 South. 1033; Allen vs. Frank Janes Co., 142 La. 1058, 78 South. 115, and it is contended that the evidence fails to establish that defendant was in moral bad faith or that the trespass was knowingly and wilfully committed.

While moral bad faith, conscious guilt and wilful trespass may not be directly proven, when denied, and must be established by circumstantial evidence, we are of the opinion it must be established in order that the value of the lumber without deduction for cost of manufacture be fixed as the measure of damages as against a trespasser and that as against a corporation the circumstances must be such as to establish that the representative of the corporation who initiated the trespass by directing others was himself in moral bad faith, or was knowingly and wilfully directing or initiating the trespass.

The circumstances under which the trespass in the present instance was initiated did not lead the trial court to find that the trespass was knowingly and wilfully committed, and although it is not clear as to the cause of the representative of the Dubach Lumber Company, Ltd., having erroneously made the notation on the list of lands from which the Dubach Mill Company, Inc., the defendant, was given the right or instructed to cut the timber, the evidence not showing that the representative of the Dubach Lumber Company, Ltd., could have profited by the error we do not think it may be presumed that he was in moral bad faith and impute such bad faith to his principal, the Dubach Lumber Company, Ltd., or the defendant. •

In fixing the measure of damages at the value of the lumber manufactured from the timber illegally taken from property, without deduction for cost of manufacture, is in a manner allowing punitive damages, or an excess over the actual damage which the owner of the property has sustained by the trespass, and this measure will not be used where the evidence does not show moral bad faith or facts from which such bad faith should be presumed, and although the evidence in the present instance indicates that the Dubach Lumber Company, Ltd,, and the Dubach Mill Company, Inc., were negligent and careless in managing their affairs, insofar at least as to cutting timber, we do not think the evidence shows an intentional trespass or wilful intent to convert the property of the plaintiff to their own use.

The evidence shows that defendant manufactured 39,658 feet of lumber from the timber cut and removed from the property, and that it cut 31,106 feet of timber which was left upon the lands and which the evidence indicates that plaintiff cannot sell to other parties.

The evidence is somewhat conflicting as to the cost of manufacture and value of the lumber but we adopt the finding of the lower court as to these facts, making the difference between the value of the lumber and cost of manufacture six dollars' per thousand feet, or two hundred and thirty-seven and 95-100 dollars.

As to the timber left on the land, we are of the opinion the plaintiff cannot recover on the basis of what would have been the difference between the cost of manufacture and value of the timber had it been manufactured into lumber by defendant, and we shall allow for this at the price of two and 50-100 dollars per thousand feet or seventy-two and 76-100 dollars.

It is therefore ordered, adjudged and decreed that the judgment appealed from be amended and that the plaintiff have and recover judgment against the defendant in the sum- of three hundred and ten and 70-100 dollars with legal interest from judicial demand, and as amended the judgment appealed from be affirmed, plaintiff to pay the cost of appeal.


text:
    No. 2214
    Second Circuit
    STATE OF LOUISIAN EX REL. HAMMON v. HEFLIN
    (June 2, 1926, Opinion and Decree)

      (Syllabus by the Editor)
    1. Louisiana Digest — Discontinuance and Nonsuit — Par. 2, 6, 8.
    Under Article 491 of the Code of Practice, the plaintiff may, in every stage of the suit previous to judgment being rendered, discontinue the suit on paying the costs. A voluntary non-suit is the same as a discontinuance by the plaintiff.

      Appeal from the Fifth Judicial District Court of Louisiana, Parish of Winn, Hon. J. E. Reynolds, Judge.
    Action by State of Louisiana, ex rel. W. J. Hammon, District Attorney, against W. T. Heflin, sheriff and ex-officio, Tax Collector. There was judgment vacating a dismissal as of non-suit and plaintiff appealed.
    Judgment reversed and plaintiff’s suit dismissed as of non-suit.
    W. J. Hammon, Moss, Peters and Ware, of Winnfield, attorneys for plaintiff, appellant.
    Hawthorne and Stafford, of Alexandria, Pearce and Fuller, of Winnfield, attorneys for defendant, appellee.
   ODOM, J.

On March 12, 1924, William J. Hammon, District Attorney, brought suit, upon the petition of certain citizens and tax payers of Winn parish, to remove William T. Heflin, sheriff and ex-officio tax collector, from office and to have him declared ineligible to hold office in the future, alleging, as a cause of action, numerous acts of misconduct, neglect, etc., on the part of said Heflin in his official capacity as sheriff and ex-officio tax collector.

The defendant answered, admitting certain of the allegations and denying others and specially consenting that judgment be entered ousting him from office during the [remaining portion of his term, but denying [plaintiff’s right, under the law, to have [him declared ineligible to hold office in [the future.

I Defendant signified a willingness to have Ithe case tried and judgment rendered on its merits and the court fixed the date of the trial for June 3, 1924.

Subsequent to the fixing of the case for trial and before it was tried, the district attorney and the attorney employed to assist him in the prosecution of the suit, filed in court a motion reading in part as follows:

“Now into court, through undersigned counsel, come the citizens and tax payers at whose instance and request this suit was instituted, and Wm. J. Hammon, district attorney, and show to the court:
“1. That they desire to discontinue the suit herein filed, and desire that a voluntary non-suit be entered by the court.
“2. There is attached hereto the written request of said citizens and tax payers for the dismissal of said suit as in case of non-suit; also a receipted bill from C. Mc-Ginty, clerk, showing all costs have been paid.”

Upon this motion the court, it seems, dismissed the suit as prayed for.

This motion was filed and the suit dismissed by the court in the absence of counsel for defendant who later moved that the court’s order of dismissal be set aside.

It is not clear whether this order of the court was vacated or not, but the parties seem to have considered that it was.

Subsequently the court signed a judgment finally dismissing the suit and ordering—

“* « * that the right of the plaintiff to take a voluntary non-suit be rejected and disallowed”.

Plaintiff has appealed to this court, asking that the judgment be reversed and that the motion to dismiss the suit as in case of non-suit be sustained and the suit dismissed accordingly.

OPINION

The sole question presented is whether the court should have permitted plaintiff to discontinue its suit and take a voluntary non-suit or whether it should have dismissed the suit finally, as it did.

Article 491 of the Code of Practice reads as follows:

“The plaintiff may, in every stage of the suit previous to judgment being rendered, discontinue the suit on paying the costs.”

In the case of Davis vs. Young, 35 La. Ann. 740, the court held that—

“* * * there is no difference between a discontinuance and a voluntary non-suit”.

In that case the plaintiff brought a petitory action and the defendant resisted it and in reconvention asserted title in herself. After the evidence had been introduced and argument by counsel begun, plaintiff moved to dismiss his suit as in case of non-suit, to which the defendant objected, demanding a final judgment.

The court held that the plaintiff had a right to take a non-suit without prejudice to defendant’s rights on her reconventional demand.

In the case of Thompson vs. McCausland, 136 La. 774, 67 South. 826, the plaintiff asked that his suit be dismissed as in case of non-suit; the motion being made after the case had been submitted to the court and taken under advisement. After quoting Article 49Í of the Code of Practice, the court said:

“Construing the article thus quoted with reference to the right, accorded a defendant, to file a reconventional demand, it has been held, and we think the later authorities are conclusive upon the subject, that plaintiff may discontinue his suit at any time before judgment, but that he cannot, by so doing, put the defendant out of court, with respect to his demand in rec’onvention.”

Citing many authorities, among others:

Meyers & Co. vs. Birotte, 41 La. Ann. 745, 6 South. 607, where it was held a plaintiff may discontinue his suit at any time previous to judgment, notwithstanding a third person has intervened for the purpose of claiming ownership of the property attached.

Such is the rule under the language of the Code of Practice and under the uniform jurisprudence of the state.

It is argued by counsel for defendant that inasmuch the defendant admitted certain allegations of the petition and agreed that judgment be rendered ousting him from office for the remaining portion of the term, there was nothing the court could do but render judgment on the pleadings.

Their position is not supported by the decisions.

In Thompson vs. McCausland, 41 La. Ann. 745, 6 South. 607, supra, the evidence was all in, arguments concluded and the case submitted to the court and taken under advisement. The court held that the plaintiff was entitled to a non-suit.

In the case of Davis vs. Young, supra, the evidence was all in and counsel for the defendant had- begun his argument- when plaintiff moved for a non-suit, which • the court held he had the right to take.

The theory of defendant seems to be that when a case has reached the stage where the court can render a definitive judgment either on the pleadings or on the testimony it must do so if the defendant insists -upon it.

That is not the law. The plaintiff has the right to discontinue—

“* * * m every stage of the suit previous to judgment being rendered”.

Defendant cites in brief the cases of Crocker vs. Turnstall, 6 Rob. 354 and Gondran vs. Rost, Judge, 48 La. Ann. 455, 19 South. 256, in support of his theory.

The Crocker vs. Turnstall case and one other were referred to by the court in the Davis vs. Young case, supra, and with reference thereto the court said:

“These are cases in which under the special circumstances stated the judge refused a non-suit and the appellate court declined to interefere with the discretion exercised.”

The court, in the Turnstall case, stated that the plaintiff might discontinue his suit at any time previous to judgment rendered, citing Article 491 of the Code of Practice. But, said the court:

“We know of no law in force in this state that gives a plaintiff the right of calling upon the court for a judgment of non-suit.”

thereby making a distinction between a discontinuance and a non-suit.

• But in the Davis vs. Young case, supra, the court said:

. “There , exists, no essential difference-, between a discontinuance and a voluntary non-suit.” '' 1

It is clear that the decision relied upon by defendant, if it hold, as contended by counsel, that the court is vested with discretion in such cases, have been overruled by later decisions.

The other Louisiana cases cited by counsel, that of Gondran vs. Rost, Judge, does not support their contention. Numerous complications entered into the case, but the court held that even under the conditions which prevailed there, the judge- was without discretion and should have allowed the dismissal as prayed for.

Counsel also cite 18 Corpus Juris, 1158, to the effect that a plaintiff will not be allowed to discontinue his suit or to take a non-suit—

“* * * when by so doing defendant’s rights will be. prejudiced or he will be deprived of any just defénse.”

That doctrine is in line with the holding of our court.

It is not pointed out to our satisfaction that the defendant in this case will have his rights jeopardized or that he will be deprived of any just defense by the dismissal of the suit as in case of non-suit. It may be and perhaps is true that it was to defendant’s interest to have the matter finally disposed' of at that time,- ■ but! the court cannot grant him relief on that ground alone.

Counsel for defendant, in brief, cites authorities from other jurisdictions, but they are not controlling on the point.

For the reasons assigned, it is ordered, adjudged and decreed that the judgment appealed from be set aside, and it is now ordered, adjudged and decreed that plaintiff’s suit be dismissed as in case of non-suit; defendant to pay the costs of appeal.


text:
    No. 2446
    Second Circuit
    SHANKLAND v. MORRIS & CASTLE SHOWS, INC.
    (April 10, 1926, Opinion and Decree)

      (Syllabus by the Editor)

    1. Louisiana Digest — Pleading—Par. 2, 109.
    Although legal conclusions from facts may be pleaded in the alternative, facts cannot be so pleaded, and, therefore, when the defendant offered evidence to show that the device was not inherently dangerous, if this evidence established that ■ the device was inherently dangerous, the liability of the defendant is established.
    2. Louisiana Digest — Negligence—Par. 15.
    The act of an attendant in charge of an amusement device in operating the device before the rider was properly seated is a contributing cause to the accident and makes those in charge of the operation of the machine liable in damages.
    3. Louisiana Digest — Evidence—Par. 53, 58.
    One who holds himself out to the public as operating all of the amusement devices in a group carries the burden of proof to show that the device was operated by an independent contractor and not by himself.
    4. Louisiana Digest — Mandate—Par. 8, 80.
    The owner of a “squeezer”, an amusement device, who was not the lessee of any particular portion of the grounds, accounted to the operator of all the amusement devices in the group for the tickets sold, and received from the operator a portion of the amount, is not an independent contractor but the agent of the operator and consequently the operator is also liable in damages for torts committed by the agent of the owner of the “squeezer”.
    5. Louisiana Digest — Appeal—Par. 625.
    The quantum of damages allowed by the trial court for physical injuries being clearly correct is affirmed.
    (Civil Code, Art, 2315. Editor’s note.)
    Action by Mrs. Bertha Shankland against Morris Castle Shows, Inc. There was judgment for plaintiff and defendant appealed.
    Judgment affirmed.
    T. H. McGregor, of Shreveport, attorney for plaintiff, appellee.
    C. H. Lyons, of Shreveport, attorney for defendant, appellant.
   WEBB, J.

In this action the plaintiff seeks to recover judgment against defendant in the sum of ten thousand, eighty-nine and 50-100 dollars, damages alleged to have been sustained by her from injuries received when riding on an amusement device alleged to have been operated by defendant.

She alleges that the defendant, Morris & Castle Shows, Inc., is engaged in the show business and conducts and operates amusement devices, and that it was operating its devices in connection with the Louisiana State Fair at Shreveport, Louisiana, during a part of the month of October, 1923; that she being a visitor to the Fair was attracted to that part of the fair grounds where defendant was operating its devices, and upon the invitation of defendant she entered one of the devices, known as the “squeezer”, which is described as a contrivance which is entered by stepping into a passageway the floor of which is a moving platform, which carries the rider through a dark and winding passage to the exit by way of a “slide or chute” where the person making his exit in this way is seated upon a “chair” or “seat” and a “trigger” is sprung by the attendant, causing the seat to collapse and move forward with the rider who is thrown into a reclining position and onto the chute and is thus carried to the ground.

She alleges that when she came to the place of exit, she protested against taking the “slide” and requested permission to retrace her steps, but was informed by the attendant there was no other way of exit than by the “slide” and she, while still protesting, consented to take the “slide” and before she. was properly seated the attendant negligently and carelessly sprung the “trigger” and she was thus thrown upon the chute in such manner as to seriously injure ■ her.

The defendant answered denying all of the allegations of the petition, except as to its status and domicile, and especially alleged it did not own or operate the device on which plaintiff claimed to have been injured, and that the device on which plaintiff claimed to have been injured was owned and operated by other persons and that it did not have any interest therein.

Defendant also filed a supplemental answer in which it pleaded in the alternative and in event of the defense set up in its original answer not being sustained, and of its being found negligent, that the plaintiff was guilty of contributory negligence in that plaintiff was fully aware of the mechanism of the device and had the option of making her exit by walking down a stairway or going down the slide and she chose the latter, and her negligence contributed to the accident, which alleged facts are also pleaded as an estoppel.

The judgment of the District Court was in favor of the plaintiff in the sum of two thousand, five hundred and eighty-nine and 50-100 dollars.

Defendant appealed, and plaintiff has answered the appeal, asking that the judgment be amended and the amount allowed be increased to the amount claimed, and, as amended, affirmed.

OPINION

The evidence establishes that the defendant had a concession from the Louisiana State Fair to operate amusement devices during the time the fair was in progress, and that it gathered together a number of such contrivances and assembled and grouped the same upon a part of the fair grounds which we assume had been set apart by the fair association for that purpose; that the individual devices' were placed at points within the group, designated by the defendant, which furnished tickets bearing its name for each of the devices-in the group; that defendant accounted -to- the United States Government ,»for Internal Revenue taxes due it from the safe of tickets by the group,, and that all advertisements, notices, etc., having relation to the group of attractions was in the name of the defendant and with the knowledge, although it does not appear that advertisements, notices, etc., were paid by the defendant but were, it is indicated, donated by the . press.

The “squeezer”, which was one of the group of devices, was not owned by the defendant but by some arrangement between the owner and the defendant it as well as other devices in the group, which were not owned by the defendant, had been assembled as above. The evidence does not show what were the full terms and stipulations of the agreement between defendant and' the owner of the “squeezer”; it appears, however, that the owner of the “squeezer” received a certain per cent of the gro'ss receipts from the sale of tickets at that special attraction, and he furnished the labor necessary to operate it and had charge of its operation, and kept the device in repair.

The plaintiff entered the “squeezer” in company with her son, , a youth of about thirteen years, and her husband, and when she came to the place of exit by way of the “slide” she demurred and stated that she wished to make her exit in another way than by the slide, but after some parleying, during which her son made the exit by the “slide”, and upon being informed by the attendant that there -was no other means of making her exit, she consented to take the “slide” and while she was in the act of adjusting herself upon the “seat” the attendant sprung the trigger and plaintiff came upon the slide in such manner as to cause her to receive severe injuries.

The evidence further shows that at the point where the exit could be made by way of the “slide” there were stairs leading to the ground but that plaintiff did not see the stairs nor was she informed of. their existence; it is also established that a great number of persons had used the device and that with the exception of plaintiff no one had been seriously injured.

Considering the pleadings with reference to these facts, we are of the opinion (assuming the facts stated establish negligence) that the pleas of contributory negligence and estoppel are not sustained by the evidence, and the, questions to be considered relate to the cause of the accident, the liability of the defendant, and the extent of the injuries, under which heads we shall consider the evidence and the legal propositions which counsel contend are presented.

Considering these questions in their order, counsel for plaintiff, while relying upon the facts alleged as to the cause of the injury, that is, that it was attributable to the negligence of the attendant, contends that, if the injuries received cannot be attributed to the alleged negligence, that the evidence shows the device to have been inherently dangerous for amusement purposes, either by reason of the method in which the rider is thrown upon the “slide” or by reason of the extraordinary care which must be exercised in attending to the proper seating of the person using the device before it is set in motion.

(1) The plaintiff did not allege that the device was inherently dangerous, neither is the fact made an issue by the pleading of the defendant, and unless it be that the evidence which was admitted as to the construction, method of' producing the amusement, or “thrill” or operation, shows that the device was inherently dangerous, and the proof of such matters held to have extended the pleadings, the plaintiff could not raise-the issue. :

When one operates an amusement device which is inherently dangerous, he becomes an insurer of the safety of the person using the device; but when the device is not inherently dangerous, the operator would not be liable, unless the cause of the accident could be traced to negligence in the operation of the device; and while it is true that the responsibility of the operator in these instances may be said to he very different, we are of the opinion the source of the obligation or liability in both instances is the same, that is, the law as disclosed by Article 2315 of the Code.

Although the legal conclusion from facts may be pleaded in the alternative, facts cannot be so pleaded, and therefore when the defendant offered evidence to show that the device was not inherently dangerous, even though such evidence was admissible to rebut the claim of the plaintiff that the accident was attributable to the negligence of the operator, if this evidence established that the device was inherently dangerous, the liability of the defendant would be established. '

While it may be that a high degree of care must be exercised by the operators of all “riding” or “sliding” amusement devices, we do not think that for this reason alone such devices ean.be said to be inherently dangerous; and in view of the evidence establishing that the device was in a good state of repair, and that it had been used by many thousands of persons without' injury to them, and the evidence failing to establish the construction of the contrivance to have been such that the rider was dropped upon the slide in such manner as might be reasonably expected to cause an injury, we do not find that the evidence establishes the device to have been inherently dangerous.

Under the allegations of negligence of the operator, the evidence, as stated, shows the device to have been set in motion before the plaintiff was properly seated, and that she did receive injury, but it is contended that it being shown the device was not inherently dangerous and that the drop by which she was placed upon the slide was not of such distance as to ordinarily cause a sufficient jar to produce the injury which was sustained by the plaintiff, the injury should be attributed to a “mere accident” or risk that every one assumes who may use an amusement device.

The defendant did not plead assumption of risk, a defense ordinarily in actions by employees against employers, where it should be especially pleaded (Buechner vs. N. O., 112 La. 36 South. 603; Christy vs. Tremont Lumber Co., 129 La. 175, 55 South. 754; R. C. L., Master and Servant, vol. 18, p. 166) but assuming that the question could be raised without plea, in such cases as this, the evidence should establish the risk, rather than tend to establish that there was no risk.

Conceding, however, that there was a “risk”, as there must necessarily he in using any such amusement device, and that the risk was assumed by the plaintiff, she did not assume the risks of the results which might flow from the negligence of the attendant, and the evidence showing that the attendant did start the device in motion while she was adjusting herself upon the seat, we are of the opinion that it must be held that the act of the attendant was at least a contributing cause of the injury, when the evidence indicates, if it does not establish, that the safe operating of the device depends upon the position of the rider on the “seat” at the time the device is set in motion.

However, the evidence in this case shows that the attendant insisted upon the plaintiff using the “slide” over her protest, informing her that it was the only means of exit, although he knew of the exit by way of the stairs, and. under these circumstances it cannot be said that plaintiff assumed the risk.

(2) As to the question of the liability of the defendant, we shall consider this from the position taken by the defendant, which appears to be that the evidence showing the device not to be inherently dangerous, and the injuries to have resulted from the negligence of the attendant, and that the device was operated by the owner who paid the attendant, the defendant is not liable, quoting in support of the position as follows:

“* * * in amusement places where space is granted for conducting attractions for the amusement of the public and for which an admission fee is charged by the concessioner and divided with the owner, it is generally held that the owner assumes an obligation that the devices and attractions operated by the concessioners are reasonably safe for the purpose for which the public is invited to use them. He will not be relieved from responsibility because the exhibition is provided and conducted by the concessioner, provided it is of the character that would probably cause injury unless due precautions are taken to guard against it; and his duty applies not to construction alone, but to management and operation where the device is of a character likely to produce injury unless due care is observed in its operation.” (Ruling Case Law, vol. 26, sec. 17, Theatres.)

This citation is in effect that the law relative to non-liábility of the masters for the negligence of the servants of an independent contractor, is applicable to the owners of amusement parks who lease space to the operators of amusement devices, and in its application to this case presents the question' of whether the defendant operated the “squeezer” or whether it was operated by an independent contractor., . , , -

The appearance of things must sometimes be considered in determining the responsibility of persons, especially where one holds himself out as the operator of instrumentalities the operation of which may result in injuries to others (Ruling Case Law, Independent Contractors, vol. 14, page 77), or where work is being done for the owner where the public could have no knowledge of the relations between the owner and person or persons who may be doing the work, and we are of the opinion that where the evidence shows, as it does in this case, that one held himself out to the public as operating the devices in the group, that he carries the burden of proof to show that the device was operated by an independent contractor (Ruling Case Law, Independent Contractors, vol. 14, page 78), and that as the evidence does not show the contract between the fair association and the defendant nor the contract between the owner of the “squeezer” and the defendant, that the fact of the owner of the “squeezer” having employed the attendants and persons who had charge of the actual operation of the “squeezer” and that defendant did not undertake actual supervision of the operations or control of the employees would not be sufficient to warrant a finding that the “squeezer” was operated by an independent contractor.

On the other hand, without regard to the failure of the defense to prove the contract under which the defendant had the concession from the fair association, • or the contract between defendant and the owner of the “squeezer”, it appears to us that under the evidence the “device and the attendants” cannot be viewed other than as a unit in a group over which defendant had control.

The owner of the “squeezer” was not a lessee of any particular portion of the grounds set apart for defendant; he accounted to the defendant for the tickets sold and received from the defendant a portion of the amount, and we are of the opinion he was not an independent contractor.

(3) On the question of damages, the plaintiff claimed for physical pain and suffering and mental anguish and suffering, the sum of ten thousand dollars, and eighty-nine and 50-100 dollars for medical attention, and the judgment allowed her twenty-five hundred and eighty-nine and 50-100 dollars.

The injuries which the plaintiff received were described by the doctors as a displacement of the sacro iliac joint and of the fifth lumbar vertebra, which they all agree is a permanent injury, and that the plaintiff will suffer pain from the injury where she assumes for an unusual time a position where the weight of the trunk is upon the lower spine and hips.

The plaintiff suffered severely for about ten days after the accident, and had been under treatment of physicians for some time prior to the trial, and she states that she still suffers pain from the injury and by reason of the pain and suffering she had become very nervous.

The physicians were of the opinion that she would not suffer from the injury only where she might keep the weight of the trunk upon the hips for too long a time, and necessarily the nervous condition having been brought about by the suffering her condition would improve.

The plaintiff was on the witness stand in the District Court and the judge was in a position to ascertain to some extent the results of the injuries, and while instances may be cited where a greater or lesser amount was awarded' for similar injuries no one says that the amount allowed was unreasonable.

For the reasons assigned, the judgment is affirmed.


text:
    No. 2076
    Second Circuit
    SMITH v. KELLUM
    (April 10, 1926. Opinion and Decree.)
    (May 7, 1926. Rehearing Refused.)

      (Syllabus by the Editor.)

    1. Louisiana Digest — Judgment—Par. 192, 218.
    A judgment recognizing an irregular heir against which no attack has been made by adverse claimants must be accepted as prima facie evidence of heir-ship of the irregular, heir.
    2. Louisiana Digest — Partition—Par. 35; Evidence — Par. 144.
    In view of Article 2275 of the Civil Code a verbal partition of real estate must be established by the judicial admission of the parties of the partition, and therefore the plaintiff must prove authority to make these judicial admissions.
    3. Louisiana Digest — Partition—Par. 8, 35.
    In view of Article 2275 of the Civil Code the defendant's in a suit to establish a verbal partition, of land having judicially admitted the division to have been made, and each of the parties to have taken possession of the portion allotted to them, the partition was legally established.
    Appeal from the Second Judicial” District Court of Louisiana, Parish of Bossier. Hon. Robert Roberts, Jr., Judge.
    Action by Catherine Smith against Mack Kellum, et al., to establish a partition.
    There was judgment for plaintiff and defendants appealed.
    Judgment affirmed.
    Clifton E. Davis, of Shreveport, attorney for plaintiff, appellee.
    John P. Phillips, of Shreveport, and J. E. Harrington, attorneys fpr defendants, appellants.
   WEBB, J.

Tn this suit plaintiff seeks to establish that Thomas M. Smith, Mack Kellum and Aaron Oglesby made a partition of certain property owned by them in indivisión, and for judgment recognizing the partition, decreeing it to be final, and plaintiff the owner of the portion allotted to Thomas M. Smith, and, in the alternative, to have the property judicially partitioned.

She alleges that she is the widow of Thomas M. Smith; that the property was acquired by Smith, Kellum and Oglesby and the partition made by them during the existence of the marriage between herself and Thomas M. Smith; that the copartitioners had each taken possession of the portion allotted to them in accordanee with a survey and map and plan thereof, and had made improvements thereon, and cultivated same for their several benefit;'. that at the death of her husband, Thomas M. Smith, one-half of his. interest in the property vested in her and that she inherited the other half interest from her husband and had been recognized as his heir and sent into possession under a judgment of the District Court.

The suit is brought against Mack Kellum and the heirs of Aaron Oglesby who answered, admitting the purchase by Thomas M. Smith, et al., as alleged by plaintiff; that the partition had been made as alleged, and also that plaintiff had been recognized as the heir of Thomas M. Smith, but alleged the plaintiff was without right to bring the suit for the reason that her marriage to Thomas M. Smith was invalid to the knowledge of plaintiff, who knew at the time of the celebration of the marriage that Thomas M. Smith was married to another, and if she was unaware of the invalidity of the marriage at that time, she became aware of its invalidity prior to the time the property had been purchased by Smith, et al., and no interest in the property could have been vested or acquired by her either as widow in community or as heir of Thomas M. Smith.

The judgment of the District Court was in favor of the plaintiff recognizing and decreeing the partition final, and plaintiff the owner of the tract allotted to Thomas M. Smith.

Defendants appealed.

OPINION

The parties to this suit are negroes and the evidence establishes that plaintiff, when a girl of about sixteen years, was married on the 15th day of March, 1887, to Thomas M. Smith under a license issued by the proper authority on March 10, 1887; that she and her husband lived together on the plantation when they were married until about 1896, when they moved on the tract of land which had been purchased and divided among the co-owners, as alleged by plaintiff and admitted by defendants, where they resided until the death of Thomas M. Smith about the year 1920, following which the plaintiff by a judgment of the court having jurisdiction was recognized as the sole heir of Thomas M. Smith and sent into possession of his estate.

Over the objection of plaintiff evidence was admitted in support of defendants’ allegations relative to the invalidity of plaintiff’s marriage to Smith and the good faith of plaintiff.

This evidence established that some time during the seventies, prior to the date of the marriage of plaintiff to Thomas M. Smith, the latter had married Jane Brown, and the witnesses who testified to this fact also stated that Jane Brown and Thomas Smith separated very soon after their marriage; that Jane subsequently married Brazil Hill and that she died prior to the death of Thomas M. Smith; and the plaintiff stated that some time after her marriage Smith told her that he had been married to Jane Brown but that they had been separated for five years and that gave him a divorce.

The evidence does not show whether or not Thomas M. Smith or Jane Brown left heirs, ascendants,' descendants or collaterals.

The defendants contend the suit is analogous to a petitory action in which defendant asserts title and plaintiff, in order to recover, must establish title, apparently good against the world; that the judgmen recognizing the plaintiff as the ; heir..; of Thomas M. Smith cannot be- considered;, or if considered its invalidity is established by the evidence offered by the defendants-, which it is contended not only establishes the invalidity of the plaintiff’s marriage but also her bad faith.

While the defendants do not assert title to the interest which they admit was in Thomas M. Smith, yet as it is apparent the partition sought to be established must rest upon the judicial admissions of the parties to the partition (Article 2275, C. C.) the defendants are entitled to know that the plaintiff has the authority to make judicial admissions affecting the property, and to this extent the plaintiff is bound to prove her title.

The plaintiff asserts title through two sources; one by inheritance from Thomas M. Smith, and the other by virtue of her rights as the widow in community of Smith; and considering the titles thus alleged in their order, it is apparent, in view of the failure of the evidence to show whether or not Thomas M. Smith left heirs, ascendants, or. descendants, that plaintiff’s suit must be dismissed unless the judgment recognizing her as the heir of Smith is at least prima facie evidence of the fact.

In Glover vs. Doty, 1 Rob. 129, it was said:

“A decree of a court of probates admitting certain persons as heirs is prima facie evidence of their being so.”

And we are of the opinion that where the judgment recognizes an irregular heir, such as the plaintiff, and no attack is made upon the judgment, and no claim set up adverse to ' the decree, the judgment must be accepted as prima facie evidence of her heirship.

Plaintiff also proved that she was married to Thomas M. Smith Under a license issued by the proper authority, and this was in our opinion at least prima facie proof of her title to one-half of the community property.

The defendants contend, however, that the evidence offered shows the invalidity of the marriage and thus inferentially establishes the invalidity of the judgment, and that the presumption of the law as to the interest of the spouses in the property purchased during the existence of the marriage was without application as to the marriage of the plaintiff and Smith.

Conceding, without deciding, that defendants had the right to attack the validity of the marriage and'thus inferentially overcome the judgment and the presumption of law as to the rights of the plaintiff in the property acquired during the existence of the marriage, when they do not claim adverse to the marriage, we consider the evidence which it is contended establishes the invalidity of the marriage.

The only evidence as to this, aside from the proof of the marriage of Thomas M. Smith and Jane Brown prior to the marriage of plaintiff, is a statement said to have been made by the deceased, Thomas M. Smith (something over twenty-five years prior to his death) that:

“He had been married to Jane Brown, but that they had been separated for five years and that gave him a divorce.”

Which cannot in our opinion be said to have established the invalidity of plaintiff’s marriage, whatever effect it may have had to establish the good faith of the parties, had it been shown that the marriage was invalid.

The defendants having judicially admitted the division to have been made, and each of the parties to have taken possession of the portions allotted to them, it follows that the partition was legally established (Gusman vs. Hearsey, 26 La. Ann. 252; Metcalf vs. Alter, 31 La. Ann. 389; also Breaux vs. Hanson Lumber Co., 125 La. 421, 51 South. 444, and none of the parties making any objection to the division as shown, the judgment recognizing the partition and decreeing it to be final and plaintiff to be the owner of the portion of the tract allotted to Smith is affirmed.


author: WEBB, J. ODOM, J.

text:
    No. 2555
    Second Circuit
    BAUMAN-GEORGE PIANO COMPANY v. MATTHEWS
    (June 2, 1926. Opinion and Decree.)
    (On Rehearing, Remanded for New Trial.)

      (Syllabus by the Editor)

    1. Louisiana Digest — Transaction or Compromise — Par. 1, 15.
    Parol proof is admissible to show that a judgment had been compromised.
    2. Louisiana Digest — Payment—Par. 21.
    The defendant has the burden of proof to show his special defense that a judgment had been paid by the shipment of a piano which was delivered to the plaintiff. The. defendant must show the consent of the plaintiff or his agent to accept the piano thus shipped as payment of the judgment.
    ON REHEARING
    3. Louisiana Digest — Appeal—Par. 715, 729.
    Where the testimony introduced at the trial of a case was hearsay and meager the court will, in the interest of justice, remand the case for further testimony.
    Appeal from the Eighth Judicial District Court of Louisiana, Parish of Winn. Hon. F. E. Jones, Judge.
    Action by Bauman-George Piano Co., Inc., in liquidation against John Henry Matthews.
    There was judgment for plaintiff and defendant appealed.
    Judgment affirmed.
    On a rehearing case remanded to the lower court for a new trial.
    Edward Barnett, of Shreveport, attorney for plaintiff, appellee.
    R. W. Oglesby, of Winnfield, attorney for defendant, appellant.
   WEBB, J.

This is an action to revive a judgment, under Article 3547, Civil Code, in which it is alleged that the defendant was an absentee, and service was made upon a curator ad hoc appointed to represent the defendant.

The curator answered alleging that the judgment had been paid and satisfied, and upon this issue the cause was tried.

The curator ad hoc offered depositions of Mrs. Josie P. Matthews, the wife of defendant, in which she stated that it was her understandng that the piano had been returned by defendant to plaintiff, and that plaintiff had retained certain payments and had released the judgment, and of J. J. Payne, who was at one time sheriff of the parish of Winn, whose testimony is as follows:

“Int. 2. Q. If you say that you were sheriff of Winn parish, do you recall attempting to execute on a judgment of Bauman-George Piano Company vs. J. H. Matthews and if so what turn did the case take before the execution was completed?
“A. Yes, I recall the execution. ' Piano was seized, compromise entered into and Bauman-George Piano Company agreed to accept the piano as full payment of the debt, which proposition was also accepted by J. H. Matthews, and the piano was shipped to the plaintiff, Bauman-George Piano Company, at Shreveport, La.
“Int. 3. Q. If you say the execution was stopped by a settlement, state what the terms of settlement were?
“A. The execution was stopped and settlement made in accordance with my answer to Interrogatory No. 2.”

The plaintiff objected to the offering of the depositions upon the ground that it was an attempt to prove a compromise by parol, and further that, if there was a settlement, there was a written agreement and that the written agreement is the best evidence, and on the further ground that the testimony is hearsay.

The court admitted the testimony subject to the objections.

The judgment of the District Court was in favor of the plaintiff, and the curator ad hoc appeals.

There are two questions presented in this case.' ■ •

The first relates to the admissibility of the. depositions.

The evidence of Mrs. Josephine Matthews is clearly hearsay and should not have been admitted.

As to the depositions of Payne.

The defense set up was that the judgment had been paid and satisfied, and the depositions of. J. J. Payne go to show that there was a satisfaction of the. judgment by defendant giving the piano under seizure in payment.

No objection was made upon the ground that the evidence extended the pleadings, but that it indicated a compromise, and that parol could not be received to prove a compromise.

There was no dispute between the parties. The judgment had been rendered and whatever may be the legal denomination of the agreement of the parties looking to the extinguishment of the judgment, we do not think it is necessarily such as can be made only in writing or by compromise.

Webster vs. Harman, 148 La. 1090, 88 South. 462.

It has been held that payment may be pleaded against the revival of a judgment.

(Manning’s Unrep. Cases, 256.)

And it seems to be the rule that any subsequent agreement which would go to extinguish the judgment can be pleaded in bar of its revival.

(Corpus Juris, Vol. 34, Judgments, No. 1018, p. 663.)

We are of the opinion that the. evidence should have been admitted and must be considered.

2nd. What weight shall be given to the testimony, and does it prove that the judgment was extinguished?

The evidence tends to establish that the defendant made a dation en paiement of the piano to plaintiff in settlement of the judgment.

A dation en paiement imports, on the part of the defendant, that he acknowledged the debt. (Webster vs. Harman, 148 La. 1094, 88 South. 462.) That plaintiff, Bauman-George Piano Company, Inc., consented to accept the piano in full payment of the judgment; that the piano was delivered to the plaintiff.

The defendant has the burden of proof and we are of the opinion that the evidence fails to show either an acknowledgment of the debt, consent of the plaintiff or delivery of the piano. Consent of the plaintiff could have been shown to have been given only through an agent, and shipment to plaintiff would not be a delivery unless shown to have been on plaintiff’s orders, or delivery to a common carrier.

The record does not show that a writ of fi. fa. was ever issued on the original judgment, and there is nothing in the evidence to indicate that the sheriff made any return upon any writ and, at most, the evidence offered raises only a suspicion that something had been paid on the judgment.

The judgment is affirmed.

ON REHEARING

ODOM, J.

A reconsideration of this case leaves us in doubt as to the correctness of the judgment appealed from and our decree affirming it.

The defense urged by the defendant was that the judgment sought to be revived had been paid and satisfied.

The testimony introduced was mainly hearsay and meager at best.

Mr. Payne, who was sheriff at the time the alleged settlement was made, testified that the piano was surrendered by defendant to plaintiff in full satisfaction of the debt and was shipped to plaintiff, etc., but he was not able to state whether it was actually received by plaintiff or not. It seems to us that proof on this point could be made clear.

We think that in order that the ends of justice may be subserved the case should be remanded to the lower court for further testimony.

For the reasons assigned it is ordered that our former decree be set aside, and it is now ordered that the case be remanded to the lower court for a new trial; all parties to have the right to introduce such testimony as they may see fit. Costs of the appeal and all other costs to await the final result.


text:
    No. 2453
    Second Circuit
    WILLIAMS, HILL & CO. v. MORGAN’S LOUISIANA & TEXAS RAILWAY & STEAMSHIP CO.
    (June 2, 1926, Opinion and Decree)

      (Syllabus by the Editor)

    Louisiana Digest — United States — Par. 1.
    Congress has authority to limit the time of bringing actions on' claims against the government arising out of its control and operation of railroads.
    2. Louisiana Digest — Carriers of Passengers and Goods — Par. 131.
    The recitals of a bill of lading allowing an action for loss of damage to freight shipments within two years and one day cannot prevail against an Act of Congress, namely, Section 206 (a), 41 Fed. Statute Laws 461, granting two years as a period of limitation for such actions.
    (See Sec. 1 of Act 223 of 1924 of Louisiana. Editor’s note.)
    Appeal from the Ninth Judicial District Court of Louisiana, Parish of Rapides. Hon. R. C. Culpepper, Judge.
    Action by Williams, Hill & Co. against Morgan’s Louisiana & Texas Railway & Steamship Co.
    There was judgment for plaintiff and defendant appealed.
    Judgment reversed and plea of prescription sustained.
    Hackenyos, Hunter & Scott, of Alexanattorneys for plaintiff, appellee.
    White, Holloman & White, of Alexandria, attorneys for defendant, appellant.
   ODOM, J.

On October 24, 1919, plaintiff shipped a lot of cotton in bales over defendant’s line of railroad from Cheney-ville, Louisiana, to Alexandria, Louisiana, the shipment reaching Alexandria on October 28, 1919. The cotton was delivered to the compress in Alexandria on October 28, 1919, and, on the following day, the 29th, was unloaded at the compress and found to be in a damaged condition.

On October 26, 1921, plaintiff filed this suit to recover the amount of the damage to the cotton, and service was made on the Director General of Railroads on October 29, 1921.

Defendant filed a plea of prescription of two years, which was referred to the merits, and upon a trial of the case on its merits the plea was overruled and there was judgment in favor of the plaintiff for $165.05, the amount claimed. Defendant has appealed.

OPINION

The suit, in reality, is one against James C. Davis, Director General of Railroads, as the cause of action arose during the period of federal control.

The shipment of cotton was received by the defendant and its bill of lading issued therefor on October 24, 1919.

Delivery of the cotton was made four days later — on October 28, 1919.

Service of the petition and citation in the suit was made on October 29, 1921-two years and one day after the delivery of the cotton but two years and five days after it was received and bill of lading issued by the defendant.

Act No. 223 of 1914, Section 1, reads as follows:

“Be it enacted by the General Assembly of the State of Louisiana, that all actions by or against common carriers for the collection or recovery of erroneous freight charges, and all actions for loss or damage to shipments of freight, shall be prescribed by two years, said prescription to run from the date of shipment.”

Under the specific terms of this act the action brought by plaintiff is barred unless, as contended by plaintiff, the recitals of the bill of lading are controlling on this point.

The bill of lading issued by the defendant contains the following clause:

“And suits for loss, damage or delay shall be instituted only within two years and one day after delivery of the property, or' in case- of failure to make delivery, then within two years and one day after a reasonable time for delivery has passed.”

This suit was brought and service made within two years and a day from the delivery of the cotton; but the bill of lading was issued and the cause of action arose during federal control and operation of railroads and by Act of Congress dated February 28, 1920, federal control of railroads and systems of transportation terminated at 12 o’clock A. M. on March 1, 1920. In that act Congress provided for the disposition of all claims against the agent of the President of the United States arising out of such control and fixed the period of time within which actions on such claims might be brought as follows:

“Sec. 206 (a). Actions Against Agent of President — Period of Limitation — Courts Having Jurisdiction:
“Actions at law, suits in equity and proceedings in admiralty, based on causes oi action arising out of the possession, use, or operation by the president of the railroad or system of transportation of any carrier (under the provisions of the Fed eral Control Act, or of the Act of August 29, 1916), of such character as prior tc federal control could have been brough against such carrier, may, after the termi nation of federal control, be brough* against an agent designated by the presiH dent for such purpose, which agent shal* be designated by the president withiiH thirty days after the passage of this actl Such actions, suits or proceedings mayH within the periods of limitation now preM scribed by state or federal statutes but noH later than two years from the date of thH passage of this act, be brought in anfl court which but for federal control woulJ| have had jurisdiction of the cause oH action had it arisen against such carrier. 41 Stat. L. 461.”

Congress unquestionably had authority to limit the time of bringing actions on claims against the government arising out of its control and operation of the railroads. This it has done by the act cited above. The recitals of the bill of lading cannot prevail against the act of Congress, which is paramount.

Counsel for plaintiff cite the case of Hartness vs. New Iberia & V. Railway Co., 297 Fed. 622, decided by Federal Judge Foster, holding:

“Carriers are required by law to issue bills of lading. The carrier is at liberty to grant longer periods for the filing of claims or the institution of suits than the minimum provided by law; but, when the bill of lading attempts to shorten the time, the law should be considered as written into it and must govern.” '

That case is not authority on the point at issue in' the case at bar. The bill of lading in that case was issued on March 20, 1920, twenty days after federal control had terminated, and the shipment was interstate and not intrastate as in this C8.S6.

The cause of action in the case at bar arose and the bill of lading was issued during federal control, and by special Act of Congress the action was barred at the end of two years from the date on which the cotton was shipped ' and the bill of lading issued.

I Under the plain letter of the law and ■the act, we think the plea of prescription fchould have been sustained.

I Under this view it becomes unnecessary Ito discuss the merits of the case.

fl For the reasons assigned, it is therefore Birdered, adjudged and decreed that the judgment of the lower court be and is hereby reversed and the plea of prescription is sustained and plaintiff’s suit dismissd at its cost.