text:
    No. 2884
    Second Circuit
    SIMON v. SELBER ET AL.
    (November 7, 1930. Opinion and Decree.)

      J. H. Levy, of Shreveport, attorney for plaintiff, appellee.
    Wise, Randolph, Rendall & Freyer, of Shreveport, attorneys for defendants, appellants.
   ODOM, J.

Plaintiff sued Charles Selber, Louis Selber, Isadore Selber, Aaron Selber, and Mandel Selber to recover the sum of $125 alleged to be due him as commission for obtaining a loan of $12,500 on certain real estate in the city of Shreveport. Each of the defendants was cited and filed answer denying each and every allegation made in plaintiff’s petition. There was judgment in the lower court against Charles Selber for the full amount sued for and dismissing plaintiff’s demands against all other defendants. Charles Selber appealed, and in this court asks that the judgment be reduced to $25, his proportion of the alleged claim. Plaintiff did not appeal from the judgment rejecting his demands against the other four alleged debtors, nor has he moved in this court to amend the judgment.

Plaintiff alleged that these five defendants, naming them, “are indebted unto petitioner for services rendered in negotiating a loan of $12,500.00 on lots in Eairmount Subdivision in the City of Sherevport, Cad-do Parish, Louisiana, on corner of Fair-field Avenue and Mildred Street in the full sum of One Hundred Twenty-five Dollars, being one per cent of the amount of said loan, as per contract.” And he prayed that said defendants, naming them, be cited, and for “judgment in favor of petitioner and against said defendants for said sum.” It will thus be seen that plaintiff has sued these defendants as joint obligors He joined all of them as defendants in the same suit, and asked for judgment against them jointly and not in solido. He made no alternative plea asking the court to grant judgment against any one of the defendants in case it should develop on the trial that one of them and not all was liable for the whole debt. His prayer is for judgment against said defendants and for “all necessary orders and general relief.”

These defendants own jointly certain. real estate in the city of Shreveport, although there is some testimony to the effect that the interest therein' owned by Charles Selber stands on the records in the name of one Pearlstein. Charles Selber, the father of the other four, applied to plaintiff for a loan, to be secured by mortgage on said property. He did not at the time state to plaintiff that he was representing, not only himself, but the other co-owners as agent, but, as a matter of fact, he was so acting. The loan applied for was not for the benefit of Charles Selber personally, but for the benefit of himself and the other co-owners of the property offered as security. This is abundantly borne out by the record. When Charles Selber applied for the loan, he offered as security property owned by himself and the other four defendants jointly. He referred matters of detail to his son, Louis, one of the co-defendants, and told Simon, the plaintiff, that he would have to see his son, Louis, before the matter could be closed. Plaintiff’s own testimony shows that he knew that Charles Selber was acting for all the co-owners. He testified that an examination of the abstract showed that the four Selber brothers owned interests in the property to be mortgaged, and he was asked:

“Q. You knew then that you were dealing with owners other than Mr. Charles Selber?
“A. Mr. Charles Selber was acting, I presumed, in behalf of himself and others.
“Q. You. assumed that?
“A. Why, certainly. Quite a natural presumption. He acted all the way through that way.
“Q. You found that he was representing those parties and assumed he was their authorized agent?
“A. Why, certainly.”

In addition to this and as already stated, plaintiff brought his suit against these defendants jointly and asked for a joint judgment, thereby conceding that they were joint obligors. Counsel for plaintiff in his brief refers to “the Selbers” as the debtors. We quote the following from plaintiff’s brief:

“Louis Selber at page 32 of the testimony admits that his father had talked with Simon with reference to a loan, but that he didn’t know that the loan was for less than $15,000.00, and that after discovering that it was for $12,500.00 that he promptly repudiated his father’s right to enter into an agreement for less than $12,500.00, which is tantamount to admitting that he authorized his father to make a loan, but that he did not agree with the amount of the loan the old man made; another singular thing is that the other three Selbers did not come in and repudiate their father’s agency, thereby indicating that they at least would not repudiate a transaction that their father had solemnly entered into.”

Counsel for defendant, by asking in this court that the judgment against Charles Selber be reduced to $25, his proportion of the debt, concede that plaintiff earned the commission for-which he sues. The obligaiton to pay this commission rested upon all of the defendants. The father and the four brothers, acting through him as agent, negotiated for the loan. They joined in the same contract to do the same thing; they were joint obligors. Civ. Code, art. 2080.

The law is plain as to what judgment must be rendered in cases of this kind.

“In a suit on a joint obligation, judgment must be rendered against each defendant separately, for his proportion of the debt.” Civ. Code, art. 2086.

The judgment in this case should have been for plaintiff against each of the defendants for $25. But the lower court rejected plaintiff’s demands against all the defendants, except one, and plaintiff did not appeal from that judgment, nor has he moved to amend it.

Counsel for plaintiff in brief which he files in this court in support of the judgment against Charles Selber for the entire debt has cited numerous authorities to the effect that:

‘.‘Where a contract is entered into by one assuming to act as agent of another, without having been authorized to make the contract, such pretended agent is by law responsible personally in the precise terms of the contract.” Richie v. Bass, 15 La. Ann. 668; Thompson & Co. v. Moulton, 20 La. Ann. 536; Civ. Code, arts. 2979, 2593; Dodd, Brown & Co. v. Bishop, 30 La. Ann. 1178; Hewitt v. Roudebush, 24 La. Ann. 254; 21 R. C. L. Verbo “Principal and Agent,” sec. 93, p. 914.

These authorities are not in point, for the reason that there is nothing to show that Charles Selber exceeded his authority in making application for the loan. In fact, counsel himself argues in that portion of his brief which we have quoted that Charles Selber was authorized by the others, and the suit was filed and tried upon that theory.

For the reasons assigned, it is ordered and decreed that the judgment appealed from be amended by reducing the amount from $125 to $25, and, as thus amended, it is affirmed; costs of appeal to be paid by appellee, all other costs to be paid by appellant.


source: Caselaw Access Project

author: WEBB, J.

license: Public Domain

text:
    No. 2886
    Second Circuit
    BROWNE v. LEVY, Clerk
    (November 7, 1930. Opinion and Decree.)
    Thatcher, Browne, Porteous & Myers, of Shreveport, attorneys for plaintiff, appellant.
    Lee & Gilmer, of Shreveport, attorneys for defendant, appellee.
   WEBB, J.

T. P. Whittington purchased a lot of ground from J. W. & H. Atkins, giving a note, secured by vendor’s lien and mortgage on the property, for the purchase price, which mortgage was duly inscribed. Thereafter Whittington constructed improvements on the property, materials for which were furnished by various parties, among whom was R. Webb, who filed á lien against the property to secure his claim, and assigned the claim and lien to the Central Lumber Company, Inc., which instituted suit against T. P. & A. M. Whittington and J. W. & H. Atkins thereon to recover judgment against them in solido with recognition of the lien on the property.

In the meantime J. W. Atkins had transferred to H. Atkins his interest in the note given by T. P. Whittington, above referred to, and H. Atkins had proceeded against the property under the mortgage, purchasing the property under the proceedings had, and thereafter H. Atkins transferred the property to Percy N. Browne, trustee, who brought suit against the clerk and ex-officio recorder of mortgages and the Central Lumber Company, Inc., to have the lien filed by R. Webb and assigned to Central Lumber Company, Inc., erased from the records.

Counsel state that the two suits were consolidated for purpose of trial, and in the suit of Central Lumber Company, Inc., against T. P. Whittington et al. judgment was rendered in favor of the plaintiff against T. P. & A. M. Whittington, with recognition of the lien, from which judgment, in so far as it affected T. P. Whittington, J. W. & H. Atkins appealed; and in the suit of Percy N. Browne, trustee, against the clerk and ex-officio recorder of mortgages et al., judgment was rendered in favor of the plaintiff, ordering the lien filed by R. Webb and assigned to Central Lumber Company, Inc., canceled and erased from which judgment plaintiff appealed.

The appeal from the judgment rendered in the cause of Central Lumber Company, Inc., v. T. P. Whittington et al., was presented here and the judgment affirmed on March 24, 1930 (see Central Lumber Company, Inc., v. Whittington et al., 12 La. App. 695, 127 So. 79), and in presenting the appeal from the judgment in the cause of Percy N. Browne, Trustee, v. The Clerk and Ex-Officio Recorder of Mortgages, counsel state that the appeal should have been presented at the same time as the appeal in the cause of Central Lumber Company, Inc., v. T. P. Whittington et al., but it is conceded that the transcript in the present appeal had not been filed at that time.

However, be that as it may, it does not appear that, there could be any purpose in pressing the present appeal, especially in view of the fact that counsel concede that the judgment rendered in the cause of Central Lumber Company, Inc., v. T. P. Whittington et al., has been paid and the lien recognized to secure the judgment canceled and erased.

The appellant, Percy N. Browne, trustee, could not have any other interest or right than to have the lien against the property purchased by him from H. Atkins canceled and erased, and, it being admitted that the lien has been canceled, the appeal at most presents a moot question, and the appeal should be dismissed. Moniotte v. Bouanchaud, 139 La. 445, 71 So. 735.

The appeal is therefore dismissed.


author: DREW, J.

text:
    No. 3852
    Second Circuit
    HUGHES v. ARMISTEAD
    (November 7, 1930. Opinion and Decree.)

      Jos. W. Jones, Jr., of Natchitoches, attorney for plaintiff, appellant.
    W. H. Wamsley, of Coushatta, attorney for defendant, appellee.
   DREW, J.

Plaintiff sued defendant in what is commonly called the Clerk’s Court of Red River Parish for the sum of $50, alleging same to he due under a rent contract, and provisionally seized certain property of defendant that had been removed from the premises rented less than 15 days before the seizure. There was no answer filed and judgment was rendered by the clerk on default in the amount sued for, sustaining the provisional seizure. This judgment was rendered on February 14, 1930. The property provisionally seized was under a writ of fieri facias seized and advertised for sale.

On the day prior to the date the said property was to be sold, defendant filed suit claiming the judgment under execution was a nullity, setting forth various reasons for same being a nullity, all unnecessary to set forth here, prayed for a restraining order and for a rule nisi ordering the plaintiff so show cause why temporay injunction should not issue and finally be perpetuated restraining the sheriff and plaintiff from ever selling the property seized and declaring the judgment to be an absolute nullity; and in the alternative, to hold that the property seized and advertised for sale was exempt from seizure. He further prayed for damages and attorney’s fees for the alleged illegal seizure in the sum of $70.

Temporary restraining order was issued by the judge of the lower court until hearing could be had on the rule nisi. After hearing said rule, the lower court rendered judgment granting a temporary injunction, but on trial on the merits rendered judgment rejecting the demands of the plaintiff in rule and dissolving the temporary injunction. From this judgment, the defendant and plaintiff in rule has appealed to this court. The plaintiff and defendant in rule, appellee here, has moved in this court that the appeal be dismissed for the reason that this court is without jurisdiction ratione materiae. The case is before us on this motion.

The amount involved in the suit originally was $50, and that alone will be considered in fixing the jurisdiction of this court. The appellant in his suit to annul the judgment, claimed as attorney’s fees and damages the sum of $70, which cannot be considered in deciding the question of jurisdiction. However, if it should be considered, the amount would not be sufficient to give this court jurisdiction.

Article VII, section 29, of the Constitution of 1921, fixes the jurisdiction of the Court of Appeal.

“The Courts of Appeal, except as otherwise provided i this Constitution, shall have appellate jurisdiction only, which jurisdiction shall extend to all cases, civil and probate, of which the Civil District Court for the Parish of Orleans, or the District Courts throughout the State, have exclusive original jurisdiction, regardless of the amount involved, or concurrent jurisdiction exceeding one hundred dollars, exclusive of interest, and of which the Supreme Court is not given jurisdiction, except as otherwise provided in this Constitution, and all appeals shall be both upon the law and the facts.”

The district court did not have exclusive original jurisdiction of the case, and in fact the case was filed before the clerk of court and judgment rendered by the clerk, whose jurisdiction is concurrent with the justice of peace. The amount involved ■ is less than $100 and this court is without jurisdiction ratione materiae.

The appellant has made no- appearance in this case, neither has he filed a brief.

It is therefore ordered, adjudged and decreed that the appeal be dismissed, with all costs.


author: ODOM, J.

text:
    No. 3880
    Second Circuit
    CRAWFORD v. SOAP ET AL.
    (November 7, 1930. Opinion and Decree.)
    J. B. Crow, of Shreveport, attorney for plaintiff, apellant.
    Barksdale, Bullock, Warren, Clark & Van Hook; Wilson & Abramson; J. L. Dorman, and John T. Carpenter, of Shreveport. attorneys for defendants in rule, appellees.
   ODOM, J.

In the year 1929, J. R. Soap entered into a contract witn J. W. Shirley to build for him a dwelling house on a lot of ground which he owned, for a stipulated price, the said Shirley to furnish, all material and labor. The contract was not reduced to writing and recorded and bond furnished, as required by section 2, Act 298 of 1926. Shirley purchased the material, employed laborers and completed the house, but failed to pay some of the laborers the wages due them and failed to pay some of those who had furnished material for the erection of the structure. In conformity with section 12 of the act above cited, these laborers and material-men recorded in the office of the recorder of mortgages, within the time prescribed, affidavits of their claims. By the terms of the act, they had a lien and privilege on the building and the land upon which it was situated and had a personal right of action against the owner for the amount of their claims for a period of one year.

The laborers exercised their rights, filed suit against the owner, and obtained judgment for the full amount of their claims. They procured the issuance of a writ of fieri facias, under which the sheriff seized, advertised and sold' the property to one J. A. Leindecker, for $550, which was paid in cash by the purchaser to the sheriff.

Prior to the sale, the sheriff was furnished with a certificate of mortgages which showed recorded liens against the property in favor of not only the laborers, who had carried their liens to judgment, but in favor of the materialmen as well, and, for that reason, he refused to pay the proceeds of the sale to . the seizing ° creditors. Whereupon, the seizing creditors, the laborers (plaintiffs here) ruled him to show cause why he should not pay the claims in full, as the amount in his hands was sufficient for that purpose. For answer to the rule, the sheriff set up that there were other recorded liens against the property and divulged the names of the other lienholders and the amounts due them, and asked that they be cited and brought into court to assert whatever rights they might have. Those who had recorded liens for material came into court and asserted that their liens were of equal rank with those of the laborers for their wages, and asked that it be so decreed and that the funds in the hands of the sheriff be paid to all of tbe claimants pro rata, inasmuch as the amount in the hands of the sheriff was not sufficient to pay all the claimants in full. The judgment of the lower court recognized the claims of the laborers and materialmen as of equal rank and ordered the proceeds of the sale paid to them pro rata. From this judgment, the laborers, plaintiffs here, have appealed.

OPINION

The first and main issue before the court is whether, under Act 298 of 1926, page 552,. the lien and privilege of laborers for their wages primes that of those who furnish materials when, as in this case, all such claims were filed and recorded in accordance with the act.

The rights and privileges of these claimants and the liability of the owner are governed by section 12 of the act because the contract was not reduced to writing and recorded. That section provides that all those who perform any service or labor or furnish material for the erection of a building may record a copy of their estimates or an affidavit of their claims in the office of the recorder of mortgages of the parish in which the work is done, which, if recorded within a certain time, “shall create a lien and privilege upon the building or other structure and upon the land upon which it is situated in favor of any such person who shall have performed service or labor or delivered material in connection with the said work of improvement, as his interest may appear.”

Section 1 of the same act also provides that laborers and materialmen “shall have I a lien for the payment in principal and interest of such, work or labor performed or materials * * * furnished * * * upon the land and improvements on which the work or labor has been done or material * * * furnished.”

Under section 9 of the act, these privileges are of equal rank. That section reads as follows:

“The privileges herein granted, except where otherwise provided, shall be of equal rank, if recorded 'as provided herein, and shall be paid pro-rata out of the balance of the funds in the hands of the owner, or by the surety on the bond, if such balance and the amount of liability of such surety are not sufficient to pay them in full.”

This language is plain and unambiguous. It is not “otherwise provided” in the act that the privilege of the laborers shall prime that of the materialmen. These liens are superior to all other claims against the land and improvements “except taxes, local assessments for public improvements, a bona fide mortgage, or a bona fide vendor’s privilege, whether arising from a sale or resale to and from a regularly organized homestead or building and loan association, if said vendor’s privilege or mortgage exist and has been duly recorded before the work or labor is begun or any material is furnished.”

Therefore, the claims of the laborers and materialmen prime those of mortgagees and vendors only in case the work or labor was begun or the material furnished prior to the recordation of such mortgages or vendor’s liens. But the act goes further in both sections 1 and 12 and reads:

“Provided, however, that the claim for wages of a laborer, for the work actually performed by said laborer on any building, shall when presented and recorded by said laborer in accordance with the terms of this act, create a lien on the land and improvements, which will prime the rights of mortgagees or vendors.”

In ranking the claims as between the laborers on the one hand and mortgagees and vendors on the other, this latter clause grants to mortgagees and vendors no superior rights over the laborers by virtue . of having recorded their claims prior to the date on which the labor was begun, but makes the claims of the laborers prime those of the mortgagees and vendors in either event; whereas, in ranking the claims as between materialmen on the one hand and the mortgagees and vendors on the other, those of the former p$me those of the latter only in event the material was furnished prior to the date on which the mortgages were recorded. Therefore, under the act laborers have some advantage over materialmen.

Now counsel for the laborers, plaintiffs here, contends that by giving to the laborers an advantage over mortgagees and vendors which was not granted to materialmen, the legislature intended to subordinate the privilege of materialmen to that of the laborers on the building and land.

We do not think so and cannot so hold, in view of the plain language of section-9 of the act, which provides that the privileges created by the act shall be of equal rank, except where otherwise provided. It is nowhere provided in the act that the privilege of the laborer on the building and land shall prime that granted to those who furnish the material for the structure. The act grants a lien and privilege in favor of both laborers and materialmen on the building and land for' labor and material furnished, and makes such privileges, and others granted by the act, superior to all others, except taxes, and except the claims of mortgagees and vendors whose acts were recorded prior to the date on which the labor was begun or materials furnished. The act does not create or grant the privilege for taxes or local assessments or that in favor of mortgagees and vendors. These were created or granted by special laws. The act under consideration merely recognizes those privileges and fixes their rank as against those created by it. But as to the privileges created by the act, they are made of equal rank, unless the act itself provides otherwise and, 'as stated, the act makes no distinction between the claims of laborers and materialmen.

Another point raised by counsel for appellant is that plaintiffs (the laborers) were first to exercise the right granted by the act of putting their claims into judgment and having the property seized and sold. We find nothing in the act indicating that it was intended that those who proceed first shall have prior rights over the others. Under the act, the registry of the claim within a certain time, creates th.e “lien and privilege upon the building,” etc., and once the claim is registered in accordance with the provisions of the act, it takes such rank as the act gives it and that rank is preserved against the property. It is not the suit or seizure which confers the privilege or fixes its rank, but the registry of the claim in the office of the recorder of mortgages.

Plaintiff makes an alternative demand which is that the purchaser of the property at sheriff’s sale should he required to pay a sufficient amount to the sheriff to enable him to satisfy in full all the existing, valid liens and encumbrances against the property purchased. Counsel says in his brief that “this demand is based upon the proposition that the sheriff, before he could sell the property, was required to announce that all prior liens and moi'tgages would have to be taken care of by the purchaser at sheriff’s sale.”

We find no merit in this contention. There was no sale when the property was first offered, for the reason that there was no bid equal to two-thirds of the appraised value. It was re-advertised to be sold to the highest bidder for what it would bring. Article 682 of the Code of Practice provides that “at this second adjudication, the thing seized shall be adjudged to the highest and last bidder for whatever it will bring”, and Article 684 of the Code of Practice, that “if the price offered in this case by the highest and last bidder is not sufficient to discharge the privileges and mortgages existing on the property and which have a preference over the judgment creditor, there shall he no adjudication.”

But there were no privileges and mortgages existing on the property which had a preference over the judgment creditor, and, therefore, the adjudication to the highest and last bidder was legal. The purchaser complied with his bid by paying to the sheriff in cash the amount of the adjudication and the title to the property passed to him. In judicial sales, “the purchaser is bound for nothing beyond the price of his adjudication.” (Code of Practice, art. 708.)

The judgment appealed from is affirmed, with all costs.


text:
    No. 2890
    Second Circuit
    BARBEE v. ROAD DISTRICT No. 1, CLAIBORNE PARISH, LA.
    (November 7, 1930. Opinion and Decree.)
    Lee & Lindsey, of Minden, attorneys for plaintiff, appellant.
    W. D. Goff, District Attorney of Arcadia, attorney for defendant, appellee.
   WEBB, J.

In this action plaintiff seeks to obtain judgment against the police jury of Claiborne parish for personal injuries and property damage alleged to have been sustained by him while traveling on one of the public highways in' Claiborne parish.

Plaintiff alleged that defendant, or its agents, in repairing the highway, made an excavation in the roadway which was left open and unguarded and without any signal light or warning of danger throughout the night of December 3, 1925, and that plaintiff, while driving along the roadway during the night of December 3, 1925, drove his automobile into the excavation, causing him to sustain serious personal injuries and damaging the machine, that plaintiff was without fault, and that the accident was due solely to the fault of defendant; and he prayed for judgment against defendant in damages for the amounts alleged to have been sustained.

Defendant excepted that the petition failed to state a cause or right of action, which was sustained, and plaintiff’s suit dismissed at his cost, from which judgment plaintiff appeals.

Appellant does not contend that defendant police jury would be liable for damages which might result from acts of nonfeasance, such as failure to maintain the parish bridges and roads in repair (King v. Police Jury, 12 La. Ann. 858; Bankins v. Police Jury, 116 La. 639, 40 So. 925; Gaudet v. Parish of Lafourche, 146 La. 363, 83 So. 653), but lie urges that the police jury is liable fo"r damages resulting from acts of misfeasance, as when it undertakes to repair a road and in the course of the work leaves the road in a dangerous condition and fails to take precaution to protect those who may use the highway.

We do not think that such distinction can be made in this state, but that in either case the police jury cannot be held liable in the absence of an express statute; as in constructing, maintaining, and repairing roads the police -jury acts under the governmental authority delegated to it by the state.

It is not suggested that there is any statute imposing liability on the police jury, and we are of the opinion that the judgment appealed from is correct, and it is affirmed.


text:
    No. 2897
    Second Circuit
    CLINE LUMBER MFG. CO. v. ROBINSON ET AL.
    (November 7, 1930. Opinion and Decree.)
    Melvin F. Johnson, of Shreveport, attorney for plaintiff, appellant.
    John B. Files, of Shreveport, attorney for defendants, appellees.
   DREW, J.

Plaintiff sued the defendants, VA. D. Robinson and W. W. Jones, for the sum of $276.75, claiming a lien and privilege as furnisher of material for a certain house owned by W. W. Jones at the time of the filing of this suit. Defendant Jones answered the suit pleading a general denial and alleging that he purchased the property from one Josephine Bartley on the faith of the public record, and that the public record did not disclose any lien filed against the said Josephine Bartley, who was the owner of the property.

The judgment of the lower court was in favor of plaintiff and against defendant, A. D. Robinson, for the sum of $276.75, together with interest, and rejecting the demands as against W. W. Jones, and ordering the lien then of record canceled.

From this judgment the plaintiff has appealed, in so far as the judgment rejected its demands against W. W. Jones and ordered the cancellation of the lien.

The case has not. been argued in this court and was submitted on briefs to be filed, and which have not been filed. The appellant has not pointed out any errors in the judgment of the lower court, and there are none apparent.

It is therefore ordered, adjudged, and decreed that the judgment of the lower court be affirmed, with all costs of appeal to be paid by appellant.


text:
    No. 3078
    Second Circuit
    THE LEE HARDWARE CO., LTD., v. MAXWELL
    (November 7, 1930. Opinion and Decree.)
    Charles M. Roberts, of Minden, and Wm. H. Cook, of Shreveport, attorneys for plaintiff, appellee.
    Watkins & Watkins, of Minden, attorneys for defendant, appellant.
   WEBB, J.

This action was instituted on July 13, 1926, by plaintiff, the Lee Hardware Company, Limited, against defendant, J. S. Maxwell, to recover judgment against him for the price of merchandise alleged to have been sold by it to the J. S. Maxwell Electric Company, of which J. S. Maxwell was alleged to be the sole owner, and service of process was made on J. S. Maxwell.

On September 21, 1926, J. S. Maxwell appeared by counsel and excepted to the petition on the ground that the account annexed to the petition was against J. S. Maxwell Electric Company, a partnership, and that plaintiff was estopped from suing J. S. Maxwell as sole owner of the business, and prayed that plaintiff’s suit be dismissed. On October 18, 1926, plaintiff, with the consent of the court, filed an amended petition, setting up that the allegation in the original petition that J. S. Maxwell was the sole owner of the J. S. Maxwell Electric Company was erroneous, and that J. R. Daniel and J. S. Maxwell were partners in the J. S. Maxwell Electric Company, and that the J. S. Maxwell Electric Company, and J. S. Maxwell and J. R. Daniel, were indebted to plaintiff in solido for the price of the merchandise sold, and praying for service of process on J. R. Daniel, and on final trial, for judgment against the J. S. Maxwell Electric Company, J. S. Maxwell, and J. R. Daniel in solido for the amount sued for.

On November 18, 1926, J. R. Daniel appeared in person, and, in answer to the original and supplemental petitions, denied that he was a partner of J. S. Maxwell or interested in the business conducted under the name of the J. S. Maxwell Electric Company.

The exception filed by J. S. Maxwell on September 21, 1926, was submitted on December 20, 1926, and overruled, and J. S. Maxwell, on December 22, 1926, filed a plea, which was designated as an exception of no cause and no right of action; in which it was alleged that plaintiff, in its amended petition, had admitted a part nership existed between defendant J. S. Maxwell and J. R. Daniel which was conducted under the social name of J. S. Maxwell Electric Company, that there was no prayer for service of process on the partnership, and that he could not he sued individually for a partnership debt during the existence of the partnership.

The exception was overruled, and J. S. Maxwell then answered, again pleading the prior exceptions, and denying any individual liability, and prayed that plaintiff’s demands be rejected, and, in the alternative, in event judgment should be rendered against him, for judgment in his favor over against J. R. Daniel; and, on trial, judgment being rendered in favor of plaintiff and against J. S. Maxwell alone, he appeals.

Appellant does not suggest that the plea or exception filed bj" him on September 21, 1926, was not properly overruled, and he apparently relies for relief solely on the failure of the court to sustain the plea of exception filed by him on December 22, 1926. '

Had the suit originally been against J. S. Maxwell to enforce an individual liability arising from a commercial partnership, it appears to be certain that, in the absence of an allegation that the partnership had been dissolved, it would have been essential that the suit should have been primarily against the partnership (Key v. Box, 14 La. Ann. 497; E. B. Hayes Machinery Co. v. Eastham, 147 La. 352, 84 So. 898; also American Photo Player Co. v. Simon, 151 La. 708, 92 So. 307); and the same is true if by the filing of the amended petition plaintiff should be held to have abandoned the original suit. But when the action, which was originally against J. S. Maxwell, was attempted to be converted into one against a partnership composed of J. S. Maxwell and J. R. Daniel, the latter appeared and denied that there was any such partnership.

The pleadings thus show that both J. S. Maxwell and J. R. Daniel answered both the original and supplemental petition, and neither at any time raised any other issue than the question of partnership, and that, such issue being presented and tried under the answers of the parties, and the evidence conclusively establishing that J. S. Maxwell Electric Company, to which the merchandise was admittedly sold, was not a partnership, but was owned solely by J. S. -Maxwell, we are of the opinion that judgment was properly rendered against J. S. Maxwell, and the judgment is affirmed.

DREW, J., recused.


text:
    No. 3184
    Second Circuit
    WILBOURN v. NICHOLSON
    (November 7, 1930. Opinion and Decree.)

      • John B. Piles, of Shreveport, attorney for defendant, appellee.
    J. Rush Wimberly and Geo. M. Wallace, of Arcadia, attorneys for plaintiff, appel- ■ lant.
    A. B. Atkins and Wm. F. M. Meadors, of Homer, attorneys for defendant, appellee.
   ODOM, J.

By virtue of a written agreement and stipulation filed herein by coun-; sel representing the respective litigants, ' it is now ordered,; adjudged, and decreed ' that the judgment herein appealed from be , set aside; and further ordered and decreed that the demands of the plaintiff, A. H. Wilbourn, against the defendant, Doss Nicholson, be rejected and his suit dismissed; and further ordered that the reconventional demand of. the said Doss E. Nicholson against the plaintiff be rejected and the said reconventional demand dismissed.

It is further ordered and decreed that the sheriff of Claiborne parish deliver to the said Dosb E. Nicholson that certain check for the sum of $109.89, dated November 13, 1926, signed by Greer & Son, and made payable to A. H. Wilbourn; which said check is decreed to be full and final payment of all demands in this proceeding; costs to be prorated and paid by the respective litigants in equal proportions.


text:
    No. 3927
    Second Circuit
    HUFFT v. IDEAL LAUNDRY & DRY CLEANING CO.
    (November 7, 1930. Opinion and Decree.)
    Harry Y. Booth and George T. McSween, of Shreveport, attorneys for plaintiff, appellant.
   DREW, J.

Plaintiff sued to set aside a judgment rendered on March 23, 1929, under the compensation act, namely: Act 20 of 1914, together with amendments thereto, or, in the alternative, to reopen the case and that he be given judgment at the rate of $20 per week for a period of 400 weeks. As grounds for setting aside said judgment, plaintiff alleges:

1. That the judgment rendered did not reasonably comply with the . provisions of the compensation act; and

2. That the claim for compensation was discounted at a greater rate than 8 per cent.

He further alleges that he was induced to agree to this judgment upon the proposition of the defendant that he would be retained in its employ at $50 per week, regardless of injuries or disability. Plaintiff, however, refutes this last allegation in his testimony and we are therefore not concerned with it.

Defendant excepted to the petition for the reason that no tender had been made for the amount received under the judgment. Defendant then pleaded a denial of the allegations of plaintiff’s petition and res adjudicata, setting out that the former judgment of the court -was a bar to any right that the plaintiff might have had. It also filed a plea of prescription of one year and an exception of no cause of action.

None of the special pleas and exceptions were passed upon in the lower court, the district judge stating that he preferred to pass on the merits of the case, which he did, and rejected the demands of the plaintiff. Prom this judgment the plaintiff has appealed to this court. The defendant did not appeal from the judgment below and has not answered the appeal in this court. Therefore, we are without right to pass on the exceptions and special pleas filed in the case. The Supreme Court of the state and this court have repeatedly so held.

Plaintiff was employed by the defendant' as superintendent of its dry cleaning department, and on May ,3, 1928, an explosion occurred which burned the plaintiff severely. All his clothes were burned off, his body was badly burned and the hair burned off his head. The testimony shows that at least half the area of his body was burned, including his arms and hands. His ears were burned to such an extent as to leave them in a cauliflowered condition. On the left hand, the little ' finger was drawn down to the palm. The finger next to the little finger was drawn in a stationary position within three-quarters of an inch of the palm, neither finger being able to be moved by plaintiff, and the other two fingers were drawn in a semi-circular position and his thumb drawn backwards in what the doctors describe as a claw hand. There were many scars on the body, but there is apparently no complaint made about them. The condition above stated was the condition in which plaintiff was left after recovering from the burns received on May 3, 1928. Plaintiff was confined to the sanitarium for a period of over thirty days, after which he was discharged from the sanitarium and a short time thereafter, went back to work for defendant at the same job he held prior to the accident and for the same wages. Defendant paid to plaintiff his regular wages during the time he was in the sanitarium and until he went back to work, as well. He continued at his same job with defendant for eight or nine months, during which time his salary was first increased to $52.50 per week and later to $55 per week. He remained on the job until the different laundries in Shreveport consolidated, at which time the class of work in which he was engaged was all transferred to the Model Laundry, and he was sent there to work at a salary of $50 per week, the same that he was receiving at the time of the accident. He remained on this job for several months, when he was let out, due to a reduction in employees that was made by the laundry. Plaintiff then secured a job with the White Cleaners & Dyers, in Shreveport, in what is known as the spotting department, where he was employed at the time of the trial of this suit, at a salary of $25.00 per week.

A number of years prior to the accident complained of in this suit, ¡plaintiff had been shot in the hand, which resulted in the fingers being drawn in somewhat the same condition as they are now. However, the evidence shows that the fingers are drawn worse now than they were prior to his receiving the burns, although it is very uncertain as to how much worse the hand is now than before the burns complained of.

Plaintiff contends that he is permanently and totally disabled. However, the evidence all contradicts such a contention. He further contends that the least award he should receive is for the loss of an arm, which carries an award of $20 per week for 175 weeks in this particular case. The testimony shows that the work he was doing prior to the injury required the use of the arm and hand, and that the work he has been doing since was the same kind of work, and that the work he was doing at the time of the trial required the use of his arm and hand. Two of the doctors testify that he has about 75 per cent use of the hand, and that the arm was not incapacitated at all.

It is well to say here that the defendants paid all of plaintiff’s hospital and medical bills, which greatly exceeded the amount allowed under the compensation act.

Several months after plaintiff had returned to work, he had Dr. Caldwell to operate on his hand in the hope of benefiting it. However, the operation was not a success and plaintiff was indebted to Dr. Caldwell and the sanitarium for the operation. He took the matter up with the insurance company that was defendant’s insurer and through the special agent of the said insurance company and its lawyer, there was effected a lump sum settlement between the defendant and plaintiff. The said agreement was put in the form of a joint petition of plaintiff and defendant and presented to the court. At the time of the presentation, there were present the attorney for defendant and the plaintiff himself. There could be no claim of fraud or misrepresentation, for the plaintiff is an intelligent man and read the judgment before presenting it to the judge to sign. The judgment awarded the plaintiff the sum of $581.60, which' amount was paid in full.

Other than the scars of which plaintiff complains, no injury, other than his hand and arm, bothers him. He is apparently a well man otherwise. There is no contention that his injury to the arm and hand is any worse now than when he was working for defendant and drawing $55 per week, an increase of $5 per week over the salary that he was drawing before the injury. The testimony shows that the increase was not given out of sympathy for plaintiff or in order to prevent him from filing suit, but was the usual and customary raise that defendant gave its employees of long service, such as plaintiff had been. From the time of the accident until the lump sum settlement was made, the insurance company had been paying compensation to plaintiff, which amount plaintiff turned over to defendant. The amount of said compensation was $20 per week.

The accident occurred on May 3, 1928; the judgment effecting the lump sum settlement (which judgment is here attacked) was rendered on March 23, 1929; and the present suit was filed on January 23, 1930.

The lower court in a written opinion denying the application for' a new trial, said:

“If Mr. Hufft attached any importance to the burns on his hand, he should have called the Court’s attention to it. But even now, in the light of all the testimony taken on this point during the trial of the case, the Court is still unable to say how far the present condition of Mr. Hufft’s hand is attributable to the burns received by him while working for the laundry company. From the appearance of Mr. Hufft’s hand, as well as from the testimony of other witnesses, the hand was greatly shrivelled and atrophied as a result of a gunshot wound some years ago.
“The plaintiff continued to work for the laundry company for the period of a year or more after the settlement, and during that time received two increases in his wages. First his pay was increased to $52.50 per week and later, to $55.00. It was only after the several laundry companies in the city of Shreveport were consolidated and the plaintiff transferred to a branch of the consolidation which handled a particular line of trade that he lost his position. Mr. Hufft’s own testimony convinced the Court that he is still able to perform the same character of service that he was performing at the time he was injured, and thereafter as long as he remained with the defendant company.
“Everything said by the plaintiff and.his witnesses with reference to plaintiff’s ability as a fancy spotter may be true, but the plaintiff was not working as a fancy spotter for the defendant company, and the fact that he is at the present time receiving only $25.00 per week is not due to his inability, in the Court’s opinion, to earn $50.00 per week or more, but to the more limited possibilities for him to obtain the kind of employment he was engaged in for the defendant.’’

We think the lower court has correctly summarized the facts in this case and that the judgment is correct in denying the relief sought by plaintiff.

It is therefore ordered, adjudged and decreed that the judgment of the lower court be affirmed, with all costs.


text:
    No. 3934
    Second Circuit
    BRYANT v. WERNER CO., INC.
    (November 7, 1930. Opinion and Decree.)

      Thomas M. Comegys, Jr., and John B. Hussey, Jr., of Shreveport, attorneys for plaintiff, appellant.
    John B. Piles, of Shreveport, attorney for defendant, appellee.
   ODOM, J.

The plaintiff brought suit for compensation under the workmen’s compensation act (Act No. 20 of 1914, as amended) and has appealed from a judgment rejecting his demands.

In July or August, 1929, defendant, a building contractor, was engaged in repairing a certain building in Shreveport and employed plaintiff as a common laborer. On the occasion of the alleged accident and injury, defendant was tearing up and removing a floor and plaintiff was picking up and removing the planks. While carrying some of these planks from one place to another, he stepped through an opening, causing him to fall, striking his right hip on a floor joist. The fall was witnessed by the foreman on the job, who immediately examined plaintiff with the view of ascertaining whether he had been injured. As there were nails sticking up from the floor joists, the foreman thought it probable that plaintiff had been injured by one of these nails. He found no evidence of that fact, however, except a slight abrasion or wound on the hip and he at once sent plaintiff to Dr. Slicer, the company’s physician, for examination and told plaintiff at the time that if he was not seriously hurt to return to his work. This was in the forenoon, about 10:30 o’clock. Shortly after noon, plaintiff returned to his work and remained on the job that afternoon and the following day until noon. Plaintiff did not return to his work in the afternoon and neither the foreman nor anyone else connected with the defendant company heard anything from him for several months.

It is plaintiff’s contention that the fall produced an injury to his hip or to the sacro-iliac joint which has rendered him totally disabled to perform work of a reasonable character.

Dr. Slicer, who examined plaintiff immediately after the fall, testified that plaintiff walked into his office and told him that he had fallen and had been injured. Dr. Slicer says that he stripped and examined him and found a brush burn and contused wound on the right hip; that he tested him for joint injuries or fractures and found nothing of the kind; that he regarded the injury as mild; that there was no swelling and that he informed plaintiff that there was nothing to be done except to treat the slight skin injury.

On the trial of the case plaintiff attempted to show that as a result of the fall and the injury to the exterior of his body, he, was suffering from a sprain or strain of the hip or the iliac joint and that he had arthritis. In support of his theory he called two physicians, Dr. Hawkins and Dr. Caldwell. Dr. Hawkins made his examination about the middle of November, or nearly four months after the accident. He testified that plaintiff was complaining of soreness in the right hip and his back and that he examined an x-ray picture of those parts and that the picture showed no evidence of strain, dislocation or displacement of any of the joints, nor did it indicate any wasting of the tissues in those parts of the body. He testified that he found no symptoms of disease, suffering or disability, except what he called “subjective symptoms”. That is, the complaints made by plaintiff. He manipulated those parts of the body — the hip joint and the back — and said that he found some rigidity, but that plaintiff may have voluntarily resisted his manipulations. He found no objective symptoms of injury, suffering or disability.

His other physician, Dr. Caldwell, stated that he examined plaintiff on March 5, 1930, or approximately seven months after the accident, and that he found plaintiff walking with a limp and complaining of soreness ■ in the right side and pain in the region of the right side of the iliac joint; that in making movements, plaintiff made them with caution and with an apparent attempt to protect the right side; that in getting up and down off the table or in turning and twisting about, he used some effort — an apparent effort to protect that side — that “the muscles on the right side were in spasm, this was constantly present, and was increased by any effort to stretch the limb or to press over the joint or press over the origin of the muscle, from those facts I deduce that the patient had a strain of the sacro-iliac joint on the right side.”

He was. asked if from the history of the case which he had from plaintiff, his present condition could be the result of the fall and he said:

“I think that is possible — I think in six or eight months after the injury occurred, it would result in such a thing as this, it is possible.”

Dr. Caldwell stated that the x-ray pictures indicated no injury of the joints, no displacement and in ‘fact the only evidence he had of any injury or disability was the statements made to him by plaintiff himself, and the fact that plaintiff in moving about was inclined to protect those parts of the body which he claimed were affected. His testimony is that arthritis or pain in those joints could have been produced by the injury but he could not say, of course, that they were nor could he say that as a matter of 'fact there were such conditions or that plaintiff was in fact suffering at the time he examined him. As to the pain in those joints, he necessarily had to rely upon plaintiff’s statements.

The other four physicians who were called by defendant testified that plaintiff at the time of the trial was under no disability whatsoever. Dr. Slicer, who examined him immediately after the accident, said that there was no strain of any of the muscles or joints. The other physicians examined him several months after the accident and found no indications whatever that he was under any disability. Some of them testified that they made every known test and that they could discover no soreness or indications that plaintiff was suffering from arthritis or any other disease of the joints. Dr. Younger testified that he tested plaintiff’s nerves and muscles with certain types of electric current by which he could tell whether either was injured and that he found no injury whatsoever. Dr. Edwards testified that on December 5th he made x-rays of plaintiff’s hip and iliac joints and that he found them normal. He said, however, that an x-'ray would not show inflammation of the cartilages but would show changes or displacements, if there had been any. A lay witness, Mr. Achee, went to where plaintiff lived, two days before the trial, and found him standing in the yard without a crutch and without support. He suggested to plaintiff that he go to a lawyer’s office with him; whereupon plaintiff walked into the house and came back with a crutch. Plaintiff gives no account of himself from the time that he was injured in August until the time of the trial. He says he did not and could not work in the meantime, but h.e produced no witnesses to corroborate his statement to that effect, except his landlord who said that he had not paid any rent during the time.

It is altogether possible that when plaintiff fell, the muscles around the hip joint were strained or sprained and possible also that there was a strain or sprain of the sacro-iliac joint. It is also possible, but not probable, that such injuries as plaintiff received produced arthritis in the region of the hip or iliac joint, and it has been repeatedly held by this and other courts that where injuries to any part of the body produce that condition or disease known as arthritis, the employee is entitled to compensation if the disease or condition render him unable to do manual labor of a reasonable character. But in all such cases the court found as a fact that there was arthritis and that its cause was traceable to the injury. In the case at bar, there is no proof that plaintiff is in fact' Suffering 'from arthritis or that the fall produced any strain or sprain of his hip or iliac joint. The two physicians called by plaintiff did not say that he is in fact thus afflicted. They testified that plaintiff complains of soreness in the hip andf on the right side of the iliac joint and, assuming that his statements are true, they say that it is possible that he has arthri-^ tis and that such condition could have been brought on by the fall. But they say there are no objective symptoms of the disease or injury — in fact, no symptoms at all of the suffering or disease except what they refer to as “subjective symptoms”— that is, what they are told by plaintiff himself.

Counsel for plaintiff in their brief state that it has frequently been held by the courts of this state that a strain of the sacro-iliac joint sustained while in the course of employment is compensable under the Workmen’s Compensation Law, and they cite Altman v. Louisiana Central Lumber Company, 3 La. App. 132; Taylor v. Southern Engineering Company, 13 La. App. 292,125 So. 877,878, and Digg v. Brown Paper Mill Company, 12 La. App. 244, 125 So. 632, all decided by this court. In the Altman case the court said:

“The testimony makes it perfectly plain that this plaintiff while at work as a laborer in the lumber yard of the defendant company was injured in such a' manner as to render him unable to do any work of a reasonable character.”

In the Taylor case, the court said that—

“The testimony of Drs. Scott and Glass of the defendant company that plaintiff had a sprained or strained back when they examined him at the company’s request nine days after the accident and the report made by these doctors to the insurance company, of date January 16, 1928, wherein they say the injury was probably a sacro-iliac strain, and in reply to the question, ‘Are symptoms due entirely to injury?’, they answer ‘yes’, and the fact that plaintiff never had complained of his back before the accident, all convinces the court, not only that plaintiff complained of the injury received immediately after the accident, but is also convincing that the fall received by plaintiff did injure him, as alleged, and that he was totally incapacitated for work such as he was accustomed to do and the only kind of work he was competent to perform.”

In the case of Arender v. Grant Timber & Mfg. Company, 9 La. App. 132, 119 So. 498, 499, it was held that in workmen’s compensation cases the burden rests upon plaintiff to make out his case and that there “can be no recovery unless che evidence establishes with some degree of certainty that there was some connection between the accidental injury and the death or disability, as the case may be.” Such has been the uniform ruling of this and other courts. Plaintiff has failed to discharge the burden laid upon him; he has failed to establish with any degree of certainty that the fall on August 8, 1929, had any connection with his alleged disability when the case was tried in March, 1930.

For the reasons assigned, the judgment of the district court is affirmed, with costs in both courts.


text:
    No. 3644
    Second Circuit
    POWELL v. ROY
    (November 7, 1930. Opinion and Decree.)
    John B. Files, of Shreveport, attorney for plaintiff, appellant.
    Blanchard, Goldstein, Walker & O’Quin, of Shreveport, attorneys for defendant, appellee.
   WEBB, J.

Plaintiff, J. C. Powell, was the owner of the S. E. Yk, E. Yz of S. W. Yk, S. E. Yk of N. W. Yk and S. W. Yk of N. E. Yk of section 35, township 19 north, range 15 west, of Caddo parish, La., less twelve acres owned by' the Walker Hill Baptist Church, anl also owner of the mineral rights in the S. E. Yk of N. E. Yk of the same section, township and range, the surface rights of which were owned by Mrs. May Radigan.

On August 4, 1927, Powell transferred to R. O. Roy certain property described, as the S. E. Yk, E. % of S. W. Yk, S. E. %. of N. E. Yk and S. Yz of N. E. Yk of section 35, township 19 north, range 15 west, of Caddo parish, La., “less forty acres sold to Mrs. May Radigan,” and on August 19, 1927, the parties signed an instrument purporting to correct the description of the property conveyed, in which instrument the property transferred was described as in the former instrument, with the exception that in the latter instrument the property excluded was designated as “that part sold to Mrs. May Radigan, as per deed recorded in Book 193 page 123, and also that part sold to the Walker Hill Baptist Church, recorded in Book 175 page 241.’,’

In the present action, plaintiff, Powell, contends that it was not the intention of the parties that the mineral rights in the S. E. Yk of N. E. Yk of section 35 should 'be transferred, and prays for judgment decreeing that such mineral rights were not included in the description of the property; and, in the alternative, in event it should be held that such mineral rights were included in the description, then that the act of sale be reformed and the description of the property reformed so as to exclude such mineral rights.

On trial of the cause plaintiff’s demands were rejected, and he appeals and urges that the court erred in rejecting his main demand, for judgment that such mineral rights were not included in the description of the property conveyed, and, in any .event, that the court erred in rejecting his alternative demand, for judgment reforming the act of sale so as to exclude such mineral rights.

In presenting the cause here, as appears to have been the case in the trial court, learned counsel have devoted very little attention to the question as to whether or not the description of the property, as stated in either the instrument of date August 4, 1927, or that dated August 19, 1927, included the mineral rights in question, but have devoted their attention to the conflicting and contradictory statements of the parties relative to their intentions and their versions of what was said before and at the time the instruments were signed.

As stated, the testimony of the parties, who were the only witnesses called, is contradictory; plaintiff stating, in substance, that the mineral rights in question had. never been considered, while defendant said that such rights were considered from the inception of the negotiations and that one of the purposes of drafting and signing the instrument of date August 19, 1927, was to show that there was excluded from the transfer only that part of the property described which was owned by Mrs. Radigan, as shown by the title referred to as recorded in Book 193, page 123, of the conveyance records.

The call for the S. % of N. E. % of section 35, as shown by the respective instruments, includes the S. E. % of N. E. V, of the section, and we assume it will be conceded that in the absence of an express exclusion of the mineral rights in the S. E. Vi of N. E. %, such rights, as between the parties, as well as such rights in the S. W. V, of N. E. Vi of the section, were included in the description and passed to Roy, and that in the absence of positive proof that it was not the intention of the parties that such rights should be transferred, the instrument should be construed as written.

Considering the testimony of the parties, it cannot be said to have established that it was not their intention to convey and acquire the mineral rights in the S. E. V, of N. E. % of section 35, and considering the title of Mrs. Radigan, as recorded in Book 193, page 123, which shows that she acquired the land subject to the prior reservation of the mineral rights, we are of the opinion that the only part of the S. % of N. E. Vi of section 35 which was excluded from the transfer was the surface rights owned by Mrs. Radigan, and that the mineral rights owned by Powell, the vendor, passed to Roy, the vendee.

The judgment appealed from is therefore affirmed, at appellant’s cost.


text:
    No. 3687
    Second Circuit
    AMERICAN NATL. INSURANCE CO. v. COOK ET AL.
    (November 7, 1930. Opinion and Decree.)
    Foster, Hall, Barret & Smith, of Shreveport, attorneys for Cruelle Cook.
    Herndon & Herndon, of Shreveport, attorneys for appellee, Ammie Miles.
   WEBB, J.

Plaintiff, American National Life Insurance Company, availing itself of the provisions of Act No. 123 of 1922, deposited in court the amount of a policy of insurance written by it on the life of Ellen Miles, and cited, as adverse claimants of the fund, Ammie Miles, Willie Collins, and C. C. Cook.

The petition was filed on April 24, 1925, and service of process made on the adverse claimants as directed by section 4 of the statute, that is, in the same form and manner as service and citation in civil suits, and the delay for answering expressed in the citations was ten days from the date of service. All of the parties answered prior to any default having been entered against them, and each claimed the fund. However, Ammie Miles was the only one who answered within the period stated in the citation, while the answer of Collins and Cook was filed about three days after the period stated in the citation, and Ammie Miles filed a plea of estoppel against Collins and Cook, based upon section 5 of the statute, which provides:

"That the failure .of any one so cited to appear and answer within the time required by law, shall thereafter estop said person from claiming said money.’’

On trial of the plea there was judgment in favor of Ammie Miles, sustaining the plea and ordering the fund delivered to him, and Collins and Cook appeal.

The statute under which the plaintiff proceeded provides, as stated, that service of process shall be made as in civil suits, and that the delays for answering shall be the same; and, as in ordinary civil suits, no decree can validly be rendered until issue is joined by answer or on default, and then, only on due proof of the correctness of the demand.

Appellants contend that the answer filed by them before any default was sufficient, as it must be conceded would have been the case in an ordinary civil action (article 314, Code Prac.).

While it is apparent that the statute which authorized the plaintiff insurance company to interplead the adverse claimants to assert their claims to the fund was to enable the insurance company to be relieved of liability as to all parties impleaded, it is certain, we think, that it was not the intention of the Legislature to provide that a claimant should be permitted to take the fund without due proof of the correctness of his claim; and, in order to make proof of the claim, it was essential that issue should have been joined, either by answer or by default against the parties to be affected, and we are of the opinion that the answer filed by Collins and Cook, prior to any default having been entered, was on time, and that the cause, as between the defendants or parties impleaded, must be tried on the issues presented by their answers.

The judgment sustaining the plea of estoppel and ordering the fund deposited by plaintiff in the registry of the court paid over to Ammie Miles is therefore avoided and set aside, and it is now ordered that the cause be remanded for trial on the issues presented by the answers of the parties impleaded; Ammie Miles to pay all costs of the appeal, and all other costs to await the final decree.

ODOM, J., dissents.


author: WESTEREIELD, J.

text:
    No. 13,333
    Orleans
    GORDON v. HOME ACCIDENT INSURANCE COMPANY
    (November 3, 1930. Opinion and Decree.)
    Edward. S. Spiro, of New Orleans, attorney for plaintiff, appellant.
    Beard & O’Keefe and Alvin R. Christovich, of New Orleans, attorneys for defendant, appellee.
   WESTEREIELD, J.

Plaintiff, who was employed as a laborer by the defendant, Natalbany & Natchez Railway Company, was injured in the course of his employment, suffering a fracture of the left leg and injuries to the right foot. The accident which resulted in his injury occurred on April 18, 1929, and he was naid compensation at the rate of $7.20 per week from that date until August 15, 1929, when he was discharged as cured by doctors who had been treating him for account of his employers. Plaintiff denies that he had recovered from the effects of his injury on the date of his discharge and alleges that he was totally incapacitated and asks for an award on that basis for a period of 400 weeks, bringing his action against the Home Accident & Insurance Company, which had underwritten his employer’s liability for accident to its employees under the compensation laws. The question, therefore, is whether plaintiff, at the time of his discharge, had recovered from the effects of his injuries.

The record as made up unquestionably justifies the finding of the district court to the effect that there was no further liability in the premises. One physician, testifying on behalf of plaintiff, expressed the view that the fracture of plaintiff’s foot still incapacitated him from resumption of his work as a laborer. Two other physicians, however, testified to the contrary. It is admitted that the plaintiff was, at the time of the accident, and had been, for some time prior thereto, afflicted with syphilis and his counsel invoked the principle announced in Behan v. John B Honor Co., Ltd., et al., 143 La. 348, 78 So. 589, L. R. A. 1918F, 862, and other cases to the effect that an employee should be allowed compensation for physical disability for the aggravation, acceleration, or awakening of a latent disease by an accident occurring in the course of his employment. The principle invoked is well established and • has often been applied, but in the case before us there is no showing which, would warrant the conclusion that .plaintiff’s accident aggravated or awakened the disease to greater activity; in fact, no proof that he was in any worse physical condition after the accident than he was before so far as his syphilitic affliction was concerned. The medical testimony upon which, as we have heretofore said, much reliance must be placed in these cases, does not support plaintiff’s contention.

The weakness of plaintiff’s case seems to have been realized by his counsel in the district court, for, after the submission of evidence by both sides and before the argument of the case, the court was requested to appoint an expert medical examiner and, his application being refused, he urges in this court that the case should be remanded, with instructions to the lower court to appoint the expert, the belated request for which was made at the close of the hearing below. His contention in this regard is based upon section 9 of Act 20 of 1914. This section makes it the duty of the employer to cause an examination of the workman to be made immediately after knowledge or notice of the accident and to cause a copy of the report of such examination to be served upon him within six days thereafter. Should the employer fail to make the examination within that time, the employee is required to select a doctor and cause a copy of his report to be served upon his employer. Six days are allowed in which either side must notify the other of any objection he may find to the report and a failure to give notice of objection results in establishing the facts set forth in the report as prima facie evidence in any subsequent proceedings under the act. The section further provides that, “If there be any dispute thereafter as to the condition of the workman, the judge * * * shall order an examination of the workman to be made by a medical practitioner appointed by the court. The fees of such examiner shall be fixed by the court at not to exceed Ten Dollars, and shall be paid in advance by the applicant. Such medical examiner shall report his conclusions from such examination to the court, and such report shall be prima facie evidence of the facts therein stated in any subsequent proceedings under this act.”

It will thus be seen that the section relied on first requires the employer to have the examination made and then the employee. It allows either side a short period for consideration and criticism of the report made by the other side and provides that the failure to make objection shall result in the prima facie correctness of the report, and if, thereafter (meaning, we take it, after this preliminary procedure has been resorted to), there has failed to result any agreement as to the condition of the. employee, or, because of timely objection,' there has failed to result any prima facie proof of the extent of his injuries, then either party may apply to the judge for the appointment of a judicial expert, whose findings and report, whether objected to or not, shall be deemed prima facie evidence. It is apparent, therefore, that what this section of the act seeks to accomplish is the prompt determination of the extent of the employee’s injuries by permitting, first, one side, and then the other-, to appoint an expert in the hope that a prima facie showing may be made extra-judicially, and, failing in that, declaring that the findings of the judicial appointee shall be considered as prima facie correct.

There is no showing here that either the employer or the employee made any effort to comply with the preliminary requisites. Neither is shown to have served a copy of any report upon the other and both apparently elected to rely upon the testimony of physicians of their own selection administered at the trial. At the close of the case, when it appeared that the defendant’s medical testimony preponderated, ^counsel for plaintiff made a verbal request. We are of opinion that the action of the court below, in refusing to make the appointment upon the ground that the section of the act relied on did not apply, was correct, and, for the reasons herein expressed, the judgment appealed from is affirmed.


author: HIGGINS, J.

text:
    No. 13,407
    Orleans
    AMERICAN BRICK CO., INC., v. THE TULANE INVESTMENT CO., INC. ET AL.
    (November 3, 1930. Opinion and Decree.)

      Deutsch & Kerrigan and Bert Flanders, Jr., of New Orleans, attorneys for plaintiff, appellant.
    Henry J. Rhodes, of New Orleans, attorney for defendants, appellees.
   HIGGINS, J.

Plaintiff, a materialman, sued the defendants, the contractor and the owner of real estate, in solido and asked for maintenance and recognition of its materialman’s lien and privilege on the improvement and land upon which it was situated. There was judgment in favor of the plaintiff as prayed for, and only the defendant owner appealed both suspensively and devolutively.

An appeal bond was furnished, and the plaintiff took a rule to show cause why the appeal should not be dismissed because of insufficient assets of the surety. On the trial of the rule the judge a quo made the rule absolute, but allowed the- defendant five days within which tp file another bond. Within this time the defendant furnished another bond, and again plaintiff took a rule to show cause why the appeal should not be dismissed because of insufficient assets of the surety on the second appeal bond. The court below made the rule absolute and dismissed the appeal. Defendant then sought and obtained a writ of prohibition in this court which was subsequently recalled and vacated. Defendant then unsuccessfully sought a writ of certiorari from the Supreme Court. This court then ordered the record returned to the lower court. American Brick Co., Inc., v. Tulane Investment Co., Inc., 11 La. App. 173, 123 So. 160.

The plaintiff sought to execute its judgment against the defendants without success and filed a rule against the surety on the second appeal bond to show cause-why judgment should not be rendered against him as had been rendered against the defendant owner. There was judgment in favor of the surety, the defendant in rule, and plaintiff has appealed.

The plaintiff contends that, as article 579 of the Code of Practice provides that the appeal bond shall be so conditioned ‘‘that the appellant shall prosecute his appeal, and that he shall satisfy whatever judgment may be rendered against him * * * if he be cast in his appeal, otherwise that the surety shall be liable in his place,” and that as the defendant owner, as appellant, neither duly prosecuted its appeal nor satisfied the judgment rendered against it, the surety was liable.

Defendant in rule contends that, as the plaintiff refused to accept the appeal bond because of insufficiency of the surety and caused the appeal bond to be rejected and the appeal dismissed, and having only obligated himself to pay whatever judgment might be rendered on appeal, and no judgment having been thus rendered, he was not liable.

In the case of Agelasto v. Mills, 30 La. Ann. 1345, where the plaintiff caused the appeal bond to be rejected and the appeal dismissed because of insolvency of the surety on the appeal bond, the Supreme Court said:

“The district court discharged the rule on the ground that where the appeal was set aside because of the insolvency of the sureties there was no longer an appeal bond, there were no sureties, there was no appeal; . and that the judgment setting aside the appeal and releasing the sureties stands unreversed and is forever final.
“If it had been. * * *
“But it is clear that if the appellee procure the judgment of the district court setting aside the appeal for want of a sufficient bond, he has no claim on the sureties, whom he has thus formally refused to accept. It is obvious that the right of the plaintiff to proceed, after the district court has set aside the order of appeal for insolvency of the sureties, is no longer suspended by the appeal; and if he is delayed until the final hearing of the appeal, it must be because of some other act on the part of the appellant, or some omission on the part of the appellee, for which the rejected and released sureties in the appeal bond are not answerable.”

We are of' the opinion that the instant case is covered by the above authority.

Counsel for the plaintiff, however, has referred us to the cases of Simonds v. Heinn, 22 La. Ann. 296, and Denis v. Veazey, 12 Mart. (O. S.) 79. We do not believe these cases are in point because in both cases the appellant abandoned the appeal, and the sureties were held liable because the Appellant had failed to prosecute his appeal. In the present case the appellant did not abandon its appeal, but insisted that its appeal was properly taken, and that the surety on the appeal bond should have been accepted by the judge a quo as a competent surety.

For the reasons assigned, the judgment of the district court is affirmed at plaintiff’s cost.


text:
    No. 13,349
    Orleans
    HOTARD v. CONSOLIDATED COMPANIES, INC.
    (November 3, 1930. Opinion and Decree.)
    Edrington & Carmouche, of New Orleans, attorneys for plaintiff, appellant.
    St. Clair Adams, and St. Clair Adams, Jr., of New Orleans, attorneys for defendant, appellee.
   ON MOTION TO DISMISS

HIGGINS, J.

The ground on which the motion to dismiss this appeal is based is that the transcript was filed too late. The order granting the appeal fixed the return day as December 30, 1929. The transcript was filed January 3, 1930, or one day more than three calendar days after the return day.

The appellant resists the motion to dismiss upon two grounds:

First, that January 1st, having intervened between December 30th and January 3rd, and being a dies non, it should not be counted.

Second, that article 318 of the Code of Practice, which is applicable to this situation, provides that “in all cases where delay is given either to do something or to answer, neither the day of serving the notice, nor that on which the act is to be done or the answer filed, are included.”

Consequently, it is argued that the last day of grace, which would be January 2nd, should not be counted, and it is contended that the transcript was filed in time.

As to the first defense, to the effect that an intervening holiday should not be counted, we hape been referred to no authority and we know of none which sustains appellant’s position in that regard. When the last day on which the transcript must be filed happens to be a legal holiday, it is sufficient if the appeal is lodged the following day, but no allowance can be made for the intervening holiday, which is counted with the other calendar days. State ex rel Bourg v. Marrero, 132 La. 109, 61 South. 136, Ann. Cas. 1914C, 783; Keplinger et al. v. Barrow, 132 La. 244, 61 South. 217; New Iberia National Bank v. Lyons et al., 164 La. 1018, 115 South. 130; Roussel v. Guiterrez, 12 La. App. 700, 127 South. 1.

The transcript, not having been lodged within the three days, but on the fourth day, came too late, and the appeal should, therefore, be dismissed.

For the reasons assigned the appeal herein is ordered dismissed at the cost of appellant.


author: WESTERFIELD, J.

text:
    No. 13,382
    Orleans
    DAVIS LOAN CO. v. BLANCHARD
    (July 1, 1930. Opinion and Decree.)
    (October 20, 1930. Rehearing Refused.)

      Gill & Simon, of New Orleans, attorneys for plaintiff, appellant.
    Marcus & Corkern and D. C. Corkern, of New Orleans, attorneys for defendant, appellee.
   WESTERFIELD, J.

This is a suit by a licensed money lender against a borrower on a promissory note in the sum of $20. The defense is that the loan is unenforceable because usurious in that defendant was required to pay a notarial fee of $3.50 for the execution of a chattel mortgage securing the loan and for the further reason that the note provides for attorney’s fees at 20 per cent, with a minimum of $10. There was judgment below in favor of defendant ■ as prayed for and plaintiff has appealed.

The agreed statement of facts is as follows:

“That the Davis Loan Company is a licensee under the Small Loan Law (Act No. .7. of Special Session of 1928).
, “That on July 29, 1929, this company granted a- loan to W. Blanchard, who executed his certain promissory note therefor in the sum of Twenty ($20.00) Dollars, payable on August 29, 1929, with interest at tlie rate of 3Yz% per month from July 29, 1929, until paid, together with attorneys fees at the rate of 20% on the aggregate amount of principal and interest, providing that the minimum attorneys fees shall be $10.00.
“That the Davis Loan Company required W. Blanchard to execute in its favor a chattel mortgage on certain property described therein, which chattel mortgage was executed before Warren M. Simon, attorney and notary for the Davis Loan Company. That said chattel- mortgage has not been recorded in the Mortgage Office for the Parish of Orleans. That the wife of W. Blanchard did not appear in said act. That no representative of the Davis Loan Company inspected or appraised the property described in said chattel mortgage prior to the time that said loan was consummated, but obtained a description and valuation of said property from W. Blanchard with which it was satisfied. That in these proceedings plaintiff has not asked for the recognition or maintenance of its chattel mortgage, or made any mention thereof.
“That the act of chattel mortgage and loan was executed in the office of Warren M. Simon, Notary, in the presence of W. Blanchard, and Mr. L. M. Magruder, Manager of the Davis Loan Company, and two competent witnesses; that the said Warren M. Simon, Notary, charged W. Blanchard a notarial fee of $3.50 for executing said act of chattej mortgage.
“That the Davis Loan Company paid out the sum of $20.00 to W. Blanchard, who simultaneously paid $3.50 to Warren M. Simon to cover his notarial charge as aforesaid.
“That W. Blanchard has not paid any part of said note.
“It is further agreed in connection with <he question of notarial charges being paid by borrower under Act 7 of the Special Session of 1928, the attitude of the State Banking Department, which supervises all loan companies in this State, has been that while it was of the opinion that the charge was a violation of the provisions of the act, it would raise no objection to the charge being paid by the borrower unless some borrower should lodge a complaint with the department, in which event it would contest the validity of said charge, and it has not heretofore revoked the license of any licensee or prosecuted any licensee criminally, on account of the borrower being charged and paying a notarial fee to any Notary.
“Pending a determination of the effect of notarial charges being paid by the borrower, the plaintiff has not required its borrowers to pay notarial charges for chattel mortgages furnished in connection with their loans.”

Act No. 7 of the Special Session of 1928, known as the Small Loan Act, has for its object the licensing and regulation of the business of making loans in sums of $300 or less, secured or unsecured, at a greater rate of interest than 8 per cent per annum, the maximum conventional rate prior to the adoption of this legislation. Section 13 of the act reads as follows:

“Every person, co-partnership and corporation licensed hereunder may loan any sum of money not exceeding in amount the sum of Three Hundred Dollars ($300), and may charge, contract for and receive thereon interest at a rate not to exceed three and one-half (3%) per centum per month. Interest shall not be payable in advance or compounded and shall be computed on unpaid balances. In addition to the interest herein provided for, no further charge or amount whatsoever for any discount, examination, service, brokerage, commission or other thing or otherwise shall be directly or indirectly charged, contracted for or received, except the lawful fees, if any, actually and necessarily paid out by the licensee to any public officer for the filing or recording or releasing any public office any instrument securing the loan, which fees may be collected when the loan is made or at any time thereafter. Interest, discount or charges in excess of those permitted by this Act shall not be charged, contracted for or received, and if any such shall be charged, contracted for or received, the contract of loan shall be void and the licensee shall have no right to collect or receive any principal, interest or charges whatsoever.”

It will be observed that, in addition to the interest, no charge is to be made the borrower “except the lawful fees, if any, actually and necessarily paid out by the licensee to any public officer for the filing or recording * * in any public office any instrument securing the loan.” It is the contention of plaintiff that this language has no reference - to- notarial charges received by a notary, who is not the lender, or licensee, because “the notarial charge being fixed, made and received by the notary and which is a matter between the notary and borrower and with which the lender has absolutely no connection and receives no remuneration, .it cannot possibly be said that such a charge is prohibited by section 13 of the act.” It is further contended that it has long been customary in this state for the mortgagor to bear all expenses incident to the execution of the mortgage, such as notarial fees. This is true, it is said, of every loan made by an automobile finance company operating in this state, which requires the borrower to pay the cost of a chattel mortgage upon his automobile securing the loan, as well as all other expenses incidental to the consummation of the loan. It is also true, the argument proceeds, of the homesteads and banks, when lending money upon real estate, and of furniture houses and other merchants selling goods, where a mortgage is taken upon the merchandise sold, and that a custom so universal, in the absence of positive law to the contrary, has acquired the force of tacit and common consent. “Customs result from a long series of actions constantly repeated, which have, by such repetition and by uninterrupted acquiescence, acquired the force of a tacit and common consent.” R. C. C. art. 3. A customary charge by a third person for the usual security is, it is claimed, unobjectionable from any standpoint. (Parenthetically, it will be noted that the chattel mortgage in this case afforded plaintiff no security whatever. It was invalidly executed, because not signed by defendant’s wife, in the teeth of the requirement of section 17 of the act, and, moreover, was not recorded. It would therefore be ineffective as against third persons, even if validly drawn. Why plaintiff should exact a chattel mortgage and deliberately fail to record it is not easily understood, and certainly inconsistent with any idea of securing his loan by this means.)

But to return to the question of custom and conceding it to be as counsel contends with respect to the notarial charges, would the mere fact of their customary exaction in some transactions justify the practice in this instance; and if notarial fees may be exacted here, then why not a fee for experts customarily employed to value property, and why not a commission to a broker, the customary commission, if you please?

Chancellor Kent, in a very interesting case decided in 1819 (Dunham v. Gould, 16 Johns. 367, 8 Am. Dec. 323), in speaking of the force of custom (a commission of 2% per cent to a broker) as'overriding the maximum exactions permitted under usury laws of the state of New York, said:

“The custom of merchants is not applicable to such a case. It is not a matter of trade and commerce within the meaning of the. law merchant. And if there were such a local usage in New York, it would be null and void, and could not be set up as a cover or pretext to trample down the law of the land. The money-lenders throughout the country might as well set up a practice of their own, and then plead it in bar of the statute.”

But the Act of 1928 plainly indicates that notarial fees are not to be permitted because, under section 13, filing fees are the only exceptions to the prohibition of the act against “further charge or amount whatsoever for any discount, examination, service, brokerage, commission, or other thing or otherwise * * * directly or indirectly charged.” If there had been any intention to permit the exaction of a notarial fee, the act would have so provided, because the custom of public officers requiring a recording or filing fee is quite as well established as the custom of charging notarial fees for the preparation of chattel mortgages. The fact that the payment in this instance was made to plaintiff’s notary by the borrower, who retained the sum paid without division or accounting to his client, does not alter the situation, for, if a notarial fee may be charged at all, there is nothing to prevent a notary from becoming a licensed money-lender under the act and charging and receiving as notarial fees a sum equal to or greater than the maximum interest charge permitted under the act in his capacity as notary public. It will be observed that in this case the borrower obtained $20 from the lender, on which he contracted to pay 3% per cent per month, and simultaneously paid to the lender’s notary $3.50, a sum equal IjO 17% per cent. The borrower is, therefore, actually required to pay 17% per cent as a notarial fee and 3% per cent, the maximum permitted under the small loan law. But the 3% per cent is based upon $20, whereas the real sum received by the borrower was $16.50. Consequently, the rate of- interest, instead of being 3% per cent, is 4.2 per cent. The total charge which the borrower is required to pay in this instance would, therefore, be 21.7 per cent per month, or 260.4 per cent per year. In addition, the note stipulates for attorney’s fees of 20 per cent, with a minimum of $10, and, incidentally, it does not appear that the attorney’s fee is contingent upon default in payment. Assuming, however, that that is the case, the total cost to this defendant for the use of $20 for thirty days, the term of his note, would be 17% per cent in the form of notarial fees, 4.2 per cent for interest and 50 per cent for attorney s fees, a total of 71.7 per cent per month, or 860.4 per cent per annum. If the transaction. terminated at the end of the first thirty days and the note be paid promptly the attorney’s fees might, perhaps, he avoided, but if the borrower elects, or is compelled, because of necessity, to renew the loan, and the same exaction is made, he will be charged another 71.7 per cent for another thirty days, and so on. The fact that the money-lender does not get all of the charge is entirely immaterial, because the purpose of the act is not to limit the profits of the money-lender, but to relieve the burden of the indigent borrower.

In the leading case of Frorer v. People, 141 Ill. 171, 31 N. E. 395, 399, 16 L. R. A. 492, the court, in speaking of the purpose of usury laws, said:

“Usury laws proceed upon the theory that the lender and the borrower of money do not occupy towards each other the same relations of equality that parties do in contracting with each other in regard to the loan or sale of other kinds of property, and that the borrower’s necessities deprive him of freedom in contracting and place him at the mercy of the lender.”

It is interesting to reflect that the loan of money, except as a gratuitous accommodation, was from the beginning regarded as disreputable. Anciently, interest and usury were synonymous. A worthy citizen of Zion is described by David as, “One that putteth not out his money to usury.” Moses condemned the practice between brothers, .but, with a singular conception of hospitality, permitted a stranger to be victimized: “Thou shalt not lend money upon usury to thy brother; usury of money, usury of victuals, usury of any thing that is lent upon usury. Unto a stranger thou mayest lend upon usury, but unto thy brother thou shalt not lend upon usury ” Deuteronomy XXIII, 19, 20. When Christ came to Jerusalem upon the occasion of the Passover,

“And found in the temple those that sold oxen and sheep and doves, and the changers of money sitting:
“And when he had made a scourge of small cords he drove them all out of the temple, and the sheep, and the oxen; and poured out the changers money, and overthrew the tables.” John, II, 13-14-15.

All the dealers were driven out of the temple with a scourge, but the moneychangers had their money poured out, and their tables upset.

The way of the money-lender in Biblical times was hard, but we look in vain for any contemporaneous denunciation of such practices as that of Jacob defrauding his brother Esau of his birthright by taking advantage of his uncontrollable appetite for lentil soup. Nor do we find any criticism of the. greedy rapacity of Laban, who seized upon the grand passion of Jacob for his daughter Rachel to bargain for seven years at hard labor as the price of her hand in marriage, and who, when Jacob had faithfully discharged his part of the agreement, which to his everlasting credit and the greater glory of Rachel, he remarked seemed but a few days, demanded and obtained seven more years of labor before he would consent to the wedding.

“The teachings of the Hebrew Scriptures had a powerful influence upon the opinions of the leaders in the early Christian Church. Following out the Biblical prohibitions of interest, the great fathers of the Church, such as Chrysostom, Tertullian, and others, were all opposed to interest of any kind. This unanimity of opinion on the subject resulted in numberless edicts and decrees by popes, councils, kings, and legislatures over a period of more than fifteen hundred years. The prohibition of usury became, in fact, the center of the canonist doctrines.”

Ryan on Usury and Usury Laws, p. 42.

These early conceptions of interest as pernicious have, of course, yielded to a more rational view of the subject, but in practically every state of this Union, as we believe, a statutory maximum exists, the permissive amount varying from 6 to 30 per cent. In Louisiana, as is well known, the rate prior to the enactment of the small, loan law, was 8 per cent. Perhaps the realization that this maximum was not effective as against small loans inspired its enactment, a somewhat similar situation to that which preceded the adoption in 1545 of a statute of Henry VIII, legalizing interest, for in that act it is declared, “the statutes' prohibiting interest altogether had so little force that little or no punishment ensued to the offenders.” Ryan on Usury and Usury Laws, page 45. An increase in the permissive rate of interest from 8 per cent to 42- per cent must have been • due to a change in the public policy of the state. It is a matter of common knowledge that the maximum statutory permissive rate was not observed insofar as small loans to persons of limited means and income were concerned. Such persons, when required to borrow for some emergency and under the handicap of great necessity, were in no position to bargain over rates of interest. The parties who engaged in the business of lending these individuals at usurious rates were called .“loan sharks” and other names of an uncomplimentary character. In justice to such individuals, however, it must be said that the risks which they were required to take would not justify their lending money at 8 per cent interest. It was the eventual recognition of this .fact which led to an effort to legalize such loans by permitting a rate of .interest commensurate with the risk involved, with some, allowance for the fact that the business itself, even under the best conditions, was socially regarded as an undesirable occupation. In establishing the maximum of 3 y2 per cent per month, or more than five times the former rate, the purpose of the legislature was to fix a maximum charge for the borrowing of small sums of money. As a matter of fact, the charge can hardly be said to be interest in a proper sense, because it is for the most part an allowance for overhead expense on account of the unusual heavy losses incident to that character of money lending. Transactions under the small loan law cannot be compared with loans for industrial purposes, business expansion, or productive loans. These small loans are consumptive loans and for that very reason the borrowers often find themselves unable to repay their loans, since, as is largely the case, their incomes and necessities have remained constant and with' no reserve to take care of the additional expense of the loan. The purpose of this legislation, therefore, was to fix a maximum charge for money to the small borrower. In that view of the case, whether the charge be direct or indirect, whether part of the exaction be payable to the lender or to a third person by requirement of the lender, is immaterial, if the expense to the borrower exceeds the maximum amount as established by the statute.

For the reasons assigned the judgment appealed from is affirmed.

JANVIER, J., dissents.

ON APPLICATION FOR REHEARING

The majority of the court be.lieve that the author of this opinion possibly went further than the necessities of the situation required in disposing of the issues presented. All of the members of the court, however, believe the decree to be correct. Consequently the rehearing will be refused.