text:
    No. 2790
    Second Circuit
    SHEETS v. THE TEXAS CO.
    (November 6, 1926. Opinion and Decree.)

      (Syllabus hy the Court)
    1. Louisiana Digest — Master and- Servant —Par. 154, 159.
    A slight injury to an eye that leaves only a small scar in the cornea that does not interfere with the vision in doing work is not compensable under the Louisiana Workmen’s Compensation Act.
    Bell vs. Merchant’s Cotton Oil Co., 160 La. 585, 107 South. 436.
    (The recent amendment of Act 20. of 1914 is Act 85 of 1926. — Editor’s note;)
    Appeal from the First Judicial District Court of Louisiana,, Parish ■ of Caddo.

      Action, by Curt Sheets against The Texas Company.
    There was judgment for defendant and plaintiff appealed.
    Judgment affirmed.
    Long & McSWeen, of Shreveport, attorneys for plaintiff, appellant.
    Wise, Randolph, Rendall & Freyer, of Shreveport, attorneys for defendant, appellee.
   STATEMENT' OF THE CASE

REYNOLDS, J.

This action is brought under the Workmen’s Compensation Act to recover $20 per week for 400 weeks for an injury caused by caustic soda splashing into plaintiff’s right eye.

Defendant denied liability on the grounds:

First, that the injury was caused by plaintiff’s deliberate failure to use an adequate guard or protection furnished him by defendant to protect him against apcidept; and,

Second, that there is only a slight injury to plaintiff’s eye that does not and will not interfere with or diminish his earning capacity.

In the alternative, plaintiff alleged that if plaintiff is entitled to compensation he can only recover under Paragraph (e) of Subsection 1 of Section 8 of the Act.

On these issues the case was tried and there was judgment for defendant and plaintiff has appealed.

OPINION

The first question to be decided is, plaintiff’s right to recover compensation for the slight injury to his right eye.

Plaintiff testified, pages 2, 7, 8, 9:

“Q. What flew in your eye?

“A. Some of that caustic soda, it was like ice.

* * * *

“Q. Now you were hurt on October the 4 th?

“A. Yes, sir.

“Q. You went to the doctor and were under his attention until October the 19th?

“A. Yes, sir.

“Q. Thep you went back to work?

“A. Yes, sir.

“Q. You did the same general work that you had done before?

“A. Yes, sir.

“Q. You continued to do that work until December the 18th, did you not?

“A. Yes, sir.

“Q. Then from October the 11th on until December 18th you went back and engaged in your regular occupation and continued to do that work until December the 18 th?

“A. Yes, sir.

“Q. Why did you quit?

“A. Because I wanted to.

% sjs sfc

“Q. The foreman was not dissatisfied with your wo’rk?

“A. I don’t suppose he was; he never said anything about it.

“Q. Had no difficulty?

“A. No, sir.

“Q. You worked like you had previously ' worked?

“A. Yes, sir.

• “Q. Had no difficulty doing it?

“A. No, sir.

“Q. You got the same pay?

“A. Yes, sir.

“Q. If you had gone back and continued there is no. reason that you know of they would not have continued to pay you the same pay?

“A. No, sir.

“Q. You received compensation for the time that you were in the hospital, didn’t you?

“A. Yes, sir.

“Q. You were paid the stipulated amount for that loss of time?

“A. Yes, sir.

R. G. Collins testified, page 12:

“Q. Did he (meaning plaintiff) work there from October the 19th to December the 18th inclusive?

“A. Yes, sir.

“Q. Did he work just as he had before the accident?

“A. I did not see any difference.

‘‘Q. Was there any apparent difference in any manner whatever that you could tell as you observed him?

“A. None.

“Q. Did he seem to have any difficulty, as far as you could observe him, seeing in his work?

“A. No, sir.”

M. W. White testified, pages 29, 30:

“Q. After he received treatment, did Mr. Sheets come back to work?

“A. Yes, sir, he did; I think two weeks afterwards.

“Q. What kind of work did he do after he came hack?

‘‘A. The same kind that he had been doing before.

‘‘Q. What rate of pay?

“A. The same rate of pay?

“Q. And he continued to work there until what date?

“A. I think it was the 18th day of December.

‡ $ $ $

“Q. Did he)have any difficulty in doing the work that he had been doing before the accident?

“A. -I .could not state that he did; I could not see any difference.

‘‘Q. Was his work satisfactory?

“A. Yes, sir."

J. C. Dameron testified, page 56:

“Q. Did he manifest any difficulty m doing the work as far as you were able ■to see at all?

“A. I couldn’t tell any difference; he did the same work he always had done.”

Doctor J. L. Scales testified, pages 42, 43, 47:

‘‘Q. Anatomically, what did you find the condition of that eye, the physical condition of the eye?

“A. I found a small scar on the cornea on the right eye, I think.

* * * *

“Q. Did it cover any portion or part of the pupil?

“A. No, sir.

“Q. For ordinary sight and vision in doing work, did that interfere with the vision any?

“A. No, I don’t think so.

‡ í* S|! i* '

“Q. Well, would it be aggravated by the injury?

“A. I don’t think so.

“Q. Usually it would grow worse?

“A. Not from the injury, I don’t think.

“Q. It is not impossible?

"A. I wouldn’t say it is impossible, but I don’t think it likely at all.”

Doctor I. Henry Smith testified, . pages 48, 51, 52:

“Q. What was the ultimate condition of the injury to the eye?

“A. The result, of course, is a sear on the cornea in about the position that Doctor Scales testified.

$ $ $ &

“Q. Doctor, what kind of a spot is that?

“A. Well, it is a small spot there.

“Q. Is it as large as the head of ,a ten-penny nail?

“A. No, sir.

“Q. It is plainly visible to the ordinary layman’s eye?

“A. Yes, sir, if you get a good light on it anyone can see it.

“Q. What size would you say it was?

“A. About two millimeters.

“Q. About the size of a pea?

“A. No.

* * * *

“Q. You heard Mr. Sheets describe the kind of work that he does?

“A. Yes, sir.

“Q. From your examination, was there any reason why he could not carry on \that kind of work?

“A. I don’t think so; none whatever.

“Q. Doctor, do you find that that man can draw a clear focus with that eye?

“A. Yes, sir.

“Q. You tested that?

“A. Yes, sir; he has no injury to the focus.”

Doctor G. H. Cassity testified, page 60:

“Q. Was not this a question for an eye specialist? You have not, doctor, the instruments that a specialist uses to examine the eye?

“A. For what examination?

“Q. Well, I have had mine examined a great many times and the doctor uses quite a few instruments to look into the eye and make examinations. Are you equipped with all of these?

“A. Well, I don’t use them all; I could use them. There is no necessity for it. There is no evidence of any nerve injury.”

Under this evidence the provisions of the Workmen’s Compensation Law, allowing compensation for 100 weeks for the loss of an eye, and the authority of Bell vs. Merchants Cotton Oil Co., supra, we are convinced that the injury sustained hy plaintiff in this case is not compensable under the Employers’ Liability Act.

This finding as to the injury to plaintiff’s eye renders it unnecessary for us to pass upon the defense set up by defendant that plaintiff was barred from recovery on account of his failure to use adequate guards for his protection furnished him by the defendant; and as to that defense we express no opinion.

For the above reasons the judgment of the lower court is affirmed.


source: Caselaw Access Project

author: REYNOLDS, J.

license: Public Domain

text:
    No. 2753
    Second Circuit
    PARISH SCHOOL BOARD OF RED RIVER PARISH v. McHANEY
    (November 6, 1926. Opinion and Decree.)

      (Syllabus l)y the Court)

    1. Louisiana Digest — Education—Par. 6, 19.
    The principal of a public school belonging to and maintained at the joint expense of the parish school boards of two adjoining parishes legally in charge of the school under contract of employment by the school board of one of the parishes is subject to the control only of the school board employing him, and the school board of the other parish is without authority to restrain him by injunction from teaching m the school.
    2. Louisiana Digest — Intervention—Par. 5, 9, 13.
    An intervenor cannot change the issues between the plaintiff and defendant and cannot raise new issues.
    Mayer vs. Stahr, 35 La. Ann. 59.
    Appeal from the Eleventh Judicial District Court of Louisiana, Parish of Natchitoches. Hon. J. W. Jones, Jr., Judge.
    Action by Parish School Board of Red River Parish against W. R. McHaney, Parish School Board of Natchitoches Parish, Intervenor.
    There was judgment for defendant and intervenor and plaintiff appealed.
    Judgment dissolving injunction and dismissing suit affirmed, but otherwise reversed.
    Cunningham & Rusca, Stephens & Cagle, of Natchitoches, attorneys for plaintiff, appellant.
    Phanor Breazeale, attorney for defendant and intervenor, appellees.
   STATEMENT OF THE CASE

REYNOLDS, J.

The Parish School Board of the parish of Red River brought suit in the District Court of Natchitoches parish against W. R. McHaney to restrain him from exercising any authority in the Fairview-Alpha High School.

It alleged that the school was situated in Natchitoches- parish, near the line dividing that parish from Red River parish, and was owned and maintained jointly by the parish school boards of the two parishes.

That, without legal authority, W. R. McHaney had assumed charge of the school in the capacity of principal thereof over the petitioner’s objection, and refuses to desist therefrom, notwithstanding petitioner’s demand that he dó so; that unless he is restrained from further interfering With the management of the school petitioner will suffer irreparable injury, and that a writ of injunction is necessary to protect its rights in the premises.

A preliminary injunction was granted, but, on the application of the defendant, he was (permitted to bond it.

Plaintiff prayed for orders of appeal, both suspensive and devolutive, from the order permitting defendant to bond the injunction. The court granted it a devolutive appeal only, returnable to the Supreme Court.

The. parish school board o.f Natchitoches parish asked for permission to intervene and intervened in the case.

In its petition of intervention it alleged that the school was the joint property of itself and the parish school board of Red River parish, and was maintained at the joint expense of the two boards; that by agreement between the two school boards the management and control of the school was to be under one or the other of them alternately for the school year of September to May; that under this agreement it was entitled to manage and control the school from September 1, 1922, to the end of May, 1923; that pursuant to that right it had employed the defendant, McHaney, as principal of the school for the school year beginning with September, 1922, and ending with May, 1923; that, pursuant to his employment, McHaney was in charge of and conducting the school, and that plaintiff had arbitrarily ordered him to surrender control of the school without assigning any reason therefor; that the agreement between the two school boards for the management and control of the school should be upheld by the court and a new one fixed for the future government of the school if the existing one be not reasonable.

It was further alleged that the parish school board of Red River, parish was indebted to intervenor in the sum of $600.00 as its half of expenses of maintaining the school .paid by intervenor pursuant to the agreement between the two school boards, and that the parish school board of Red River parish had refused to pay the amount notwithstanding demand therefor.

The prayer was for judgment recognizing intervenor’s right to exclusive control of the Fairview-Alpha High School for the scholasti year 'beginning. September 1, 1922, and ending May 31, 1923, recognizing and enforcing the agreement between the two school boards for the management of the school by each other alternately for a scholastic year beginning September 1, decision by the State Superintendent of Public Education in case of disagreement between them, recognizing and enforcing its contract with W. R. McHaney to teach and act as principal of the school for the scholastic year 1922-1923, and for money judgment against the parish school board of Red River parish for $600.00.

The defendant answered that, by agreement between the- two school boards the school was managed by them alternately for a scholastic year at a time; that under this agrément he had taught in and acted as principal of the school during the school year 1921-1922 under employment by the Red River parish school board; that under the agrément the management of the school for the school year 1922-1923 belonged to. the Natchitoches parish school board, and that that board had employed him to teach in and act as principal of the school for the 1922-1923 school year at a salary of $200.00 a month, one-half of which was to be paid by the Red River parish school board; that’ four months' salary, or ’$400.00, was already past due and owing to him by the Red River parish school board, and that further salary will become due him by it at the rate of $100.00 per month at the end of each of the months from January , to May, 1923, inclusive, and he prays judgment in reconvention against the plaintiff for the salary due and to become due him.

Plaintiff filed an exception to the intervention on the grounds:

1. That there is no such political entity as “School Board of the Parish of Natchitoches”; and ' «

2. That intervenor had no interest in the controversy between plaintiff and defendant.

Plaintiff also filed an' exception of no cause or right of action.

’ Both exceptions were referred to the merits.

Whereupon _ the plaintiff, reserving its rights under its exceptions, answered, putting at issue the allegations of the intervention.

On these issues the case was tried and there was judgment dissolving the injunction and rejecting plaintiff’s demands and dismissing its suit.

And there was judgment in favor of the intervenor and against the plaintiff recognizing and enforcing the agreement between plaintiff and intervenor:

“That the Natchitoches Parish School Board shall have the full control and management of the Alpha-Fairview High School for the scholastic year 1922-1923, commencing in September, 1922, and ending in , May, 1923; that one-half of all of the operating expenses of said school shall be paid monthly by the Red River Parish School Board on' notice of said amount due being sent to the Red River Parish School Board authorities by the Natchitoches Parish School Board authorities until the expiration of the scholastic term pf said school.”

' There was also judgment in favor of intervenor and against plaintiff for the sum of $400.00 as one-half of the salary of defendant for the- first four months of the scholastic year.

There was also judgment in favor of intervenor and against plaintiff .for $180.00 as one-half of the salary of Mrs. W. R. McHaney as teacher in the school for the first four months of the scholastic year.

There was also judgment in favor of intervenor and against plaintiff for $250.00 as one-half the salary of Mrs. Manning as teacher in the school for the first four months of the scholastic year.

Together with 5% per annum interest on each amount from the date of the judgment until paid.

The plaintiff was taxed with all the costs of suit.

From this judgment (plaintiff appealed .to the Supreme Court. That court, on June 30,' 1926, ordered the ease transferred to this court.

OPINION'

EXCEPTION OF NO CAUSE OR RIGHT OF ACTION

This should have been overruled instead of being referred to the merits. Intervenor had an interest in preventing a breach by-plaintiff of the agreement between them for the management of the Fairview-Alpha High School and of its right under that agreement to exclusive control of the school during the school year 1922-1923; and it also had an interest in maintaining defendant in his position of teacher in and principal of the school during that period as it had a contract with him to so teach and act. This being so, intervenor had a right to intervene in the suit and make common cause with defendant against plaintiff.

This also disposes of the second ground of plaintiff’s other exception, that intervenor had no interest in the controversy between plaintiff and defendant.

In respect of the first ground of this other exception, that “there is no such corporation, political or otherwise, in existence, as School Board of the Parish of Natchitoches”, the title under which intervenor describes itself in its petition of intervention, this also was properly overruled, as it came too late.

A default was entered on the intervention on December 9, 1922; on December 16, 1922, the default was set aside and a new default entered; on February 19, 1923, the case was set down for trial on its merits for February 24, 1923; and on that day — February 24, 1923 — the plaintiff offered to file the exception. Intervenor objected to the filing of the exception on the ground that it came too late, but the objection was overruled and intervenor excepted.

Clearly the exception was offered too late and should not have been allowed lo be filed.

ON THE MERITS

By agreement, implied if not express, between plaintiff and intervenor, and certainly under the authority of the school laws, the Fairview-Alpha High School was under the exclusive management and control of the Natchitoches Parish School Board for the scholastic year 1922-1923, and the Red River Parish School Board was without right to interfere with such management during that time.

The injunction obtained by plaintiff was properly dissolved.

This brings us to that part of the petition of intervention that asks for a money judgment in favor of intervenor and against the plaintiff.

This demand is in no way connected with or incidental to the demands of plaintiff on defendant, and is a matter in which the defendant had no interest or concern. It was a matter to be determined and adjusted by the. two school boards between themselves, as they probably will be by amicable agreement.

But, be that as it may, it was a matter foreign to the controversy between plaintiff and defendant, and intervenor had no right to inject it into the controversy.

Said Chief Justice Bermudez, in Mayer vs. Stahr, 35 Ann. 57, cited in the syllabus:

“An intervenor cannot change the issues between the parties, plaintiff and defendant, and cannot raise new ones. His rights, on a proper interest being shown, are confined to joining or resisting either the plaintiff or the defendant, or to opposing bot'h.”

This ruling is in line with that in Clapp & Co. vs. Phelps & Co., 19 La. Ann. 461, and Cahn vs. Ford, 42 La. Ann. 967, 8 South. 477, and we have been unable to find and have not been cited to any authority holding the contrary.

For the reasons assigned, it is therefore ordered, adjudged and decreed that the judgment appealed from, insofar as it dissolves the injunction and dismisses plaintiff’s suit, he and the same is hereby affirmed, and that, in all other respects, the same be and it is hereby avoided and reversed.

Costs of the lower court to he paid by plaintiff, those of this court by intervenor.


author: ODOM, J.

text:
    No. 2527
    Second Circuit
    PAYNE v. AUTO FINANCE CO.
    (Feb. 24, 1927. Opinion and Decree.)

      (Syllabus by the Editor)

    1. Louisiana Digest — Licenses—Par. 6; Laws — Par. 76.
    The meaning of the term “gross annual receipts” in Section 25 of Act 205 of 1924, concerning license taxation, is gross annual earnings or revenue from its business.
    Appeal from the Tenth Judicial District Court of Louisiana, Parish of Natchitoches. Hon. John F. Stephens, Judge.
    Action by J. W. Payne, tax collector, against Auto Finance Company.
    There was judgment for plaintiff and defendant appealed.
    Judgment reversed.
    C. M. Cunningham, of Natchitoches, attorney for plaintiff, appellee.
    Breazeale & Breazeale, of Natchitoches, attorneys for defendant, appellant.
   ODOM, J.

This is a rule by the tax collector of Natchitoches parish on the defendant to show cause why it should not be ordered to pay a license tax of $150.00 for the year 1924, and $300.00 for the year 1925.

There was, judgment in. the lower court in favor of the tax collector making the rule absolute and defendant has appealed.

OPINION

The facts in the case are not disputed and are as follows:

Defendant is a corporation with a capital stock of $25,000.00. It is what is commonly called a “finance company” and deals in notes secured by chattel mortgage on automobiles.

The gross amount colected by it in the year 1924, that is, the gross amount of its receipts, was between $50,000.00 and $75,000.00.

Its gross earnings for that period amouned to $6,430.00.

Defendant paid no license for the year 1924.

For the year 1925, it made a sworn statement to the tax collector that its gross earnings for the year 1924 were $6,430.00, and on that basis it paid a license tax for the year 1925 of $50.00.

This license was paid under the provisions of Section 25 of Act 205 of 1924, which reads, in part, as follows:

' “That any other business not provided for in this act, and not otherwise provided for by separate law, except manufacturing, shall be graded the same as above set forth, and shall pay a license as fixed in this section.”

Defendant, as stated, is what is commonly called a “finance company”, and its business is not specifically provided for in Act 205 of 1924, nor in any separate law. Its gross earnings being $6,430.00, it was placed in class twenty-seventh of Section 25 of said act, which reads as follows:

“Twenty-seventh Class — When the gross annual receipts are six thousand dollars or more, and less than eight thousand dollars, the license shall be fifty dollars ($50.00).”

After issuing the license, the tax collector was , advised, it seems, that the terms “gross annual receipts”, as used in the statute, mean not gross earnings or profits but the gross: amount received or collected by defendant during that year.

Defendant, as already stated, bought and discounted chattel mortgage notes. It either sold the notes or collected them when due. If the notes matured while in the hands of defendant they were collected.

Defendant collected, in the year 1924, a gross sum of between $50,000.00 and $75,000.00, but that included not only interest and discount or profits, but also the principal sums paid for the notes, which notes were paid when they fell due.

The tax collector, therefore, seeks to collect a license of defendant under class nineteenth of Section 25 of the act, which reads as follows:

“Nineteenth Class — When the gross annual receipts are fifty thousand dollars or more, and less than seventy-five thousand dollars, the license shall be three hundred dollars ($300.00).”

Defendant contends that “gross annual receipts” means gross annual earnings or revenues from its business.

Defendant’s contention is correct.

The identical point was raised in the case of T. R. Hughes, Tax Collector, vs. Commercial' Securities Company, appealed to -the Supreme Court from Caddo parish. The defendant in that case was engaged in the same character of business as that engaged in by the defendant in this case. The tax collector in that case made the same contention as is made by the tax collector in this case. The district judge of Caddo parish held against the tax collector and his ruling was upheld by the Supreme Court.

See T. R. Hughes, Tax Collector, vs. Commercial Securities Company, No. 28293, on the docket of the Supreme Court, decided January 31, 1927.

Defendant has paid the full amount of license due by it for the year 1925. However, it is not denied that it owes the license for the year 1924. The amount of license tax, for that year is fixed by Section 26 of Act 233 of 1920, and is $50.00.

For the reasons assigned, it is ordered and decreed that the judgment appealed from be reversed; and it is now ordered and decreed that there be judgment in favor of the tax collector' and against defendant Auto Finance Company in the sum of fifty dollars, license for the year 1924, together with interest at two per cent per month from May 1, 1924, until paid, and •ten per cent attorney’s fees on both principal and interest. Defendant to pay costs.


author: BY THE WHOLE COURT:

text:
    No. 2838
    Second Circuit
    POLICE JURY OF RAPIDES PARISH v. MATTHEWS
    (Oct. 11, 1926. Opinion and Decree.)

      (Syllabus by the Editor.)

    1. Louisiana Digest — Mandamus—Par. 74; Courts — Par. 127, 141.
    Under Section 2 of Article VII of the Constitution of 1921, the Supreme Court has power to issue writs of mandamus in aid of its appellate jurisdiction. Therefore, the Court of Appeal is without jurisdiction to issue a mandamus directed to a district judge in a suit involving more than its appellate jurisdiction.
    Application of William Chase Matthews for writ of mandamus directed to Judge R. C. Culpepper.
    Application refused for want of jurisdiction.
    J. C. Cappel, of Alexandria, attorney for relator.
   BY THE WHOLE COURT:

Application of William Chase Matthews, defendant and relator in this application, for a writ of mandamus directed to the Hon. R. C. Culpepper, Judge of the Ninth Judicial District Court in and for the' Parish - of Rapides, commanding him to grant to relator a devolutive appeal from a judgment denying relator the right to bond.

Relator sets up in his application that he is parish treasurer of the Parish of Rapides and that on or about September 4, 1926, plaintiff, the Police Jury of Rap-ides parish, obtained from the Ninth Judicial District Court an order for a writ of sequestration commanding the sheriff of said parish to sequester and take into his possession all the books, papers, records and other documents pertaining to the office of parish treasurer; that relator, as parish treasurer, was in possession of all of said books, papers and record, and that he had a right to retain possession thereof; that the sheriff of said parish, acting by virtue of said order of sequestration issued by the judge, seized and took into his possession all of said books, records, etc. That subsequently relator filed a motion in the District Court asking to be permitted to bond said property upon furnishing a bond in such amount as the court should require with good and solvent sureties, and that the said judge, Hon. R. C. Culpepper, refused to permit relator to bond said property; and he asks that a writ of mandamus to issue, directed to the Hon. R. C. Culpepper, Judge of the Ninth Judicial District Court, commanding him to grant to relator a devolutive appeal from the judgment denying his right to bond.

Relator attached to his application the petition of the police jury in the above styled and numbered suit. In that petition the police jury allege that it is the owner of the following described property, to-wit: One loose leaf ledger, one lot of cash books, one check register for warrants, one minute book, general record files, filing cabinets, typewriter, adding machine, check writer, desks, one vault door thereto and combination lock thereon, and other books, records, papers, vouchers, furniture, fixtures, seals and stationery and all other furniture, fixtures and effects contained or situated within said room.

All of which, it is alleged, were in the unlawful possession of the defendant, W. Chase Matthews, and it is asked that a writ of sequestration issue commanding the sheriff of the Parish of Rapides to seize and sequester said property.

It is specially alleged in said suit that the records, documents, property and other effects described therein are well worth to your petitioner a sum and amount of at least fifty thousand dollars, and that the possession and use of said documents, records, etc., is well worth to your petitioner a sum in excess of fifty thousand dollars.

The value of the property in dispute, therefore, is more than the maximum jurisdiction of this court.

Under Section 2 of Article VII of the Constitution, this court may, in aid of its appellate jurisdiction, issue writs of mandamus, certiorari, prohibition, quo warranto, and all other needful writs, orders and process.

Under the allegations of the petition in this case, an appeal from any judgment rendered by the judge of said court would lie to the Supreme Court and not to this court. We therefore have no jurisdiction to grant the relief prayed for.

Application refused.


text:
    No. 2847
    Second Circuit
    STATE EX REL. ALLEN R. GENTRY v. O’QUINN
    (Oct. 11, 1926. Opinion and Decree.)

      (Syllabus by the Editor.)

    1. Louisiana Digest — Mandamus—Par. 74; Courts — Par. 127.
    The Court of Appeal has no jurisdiction over a rule to show cause why a mandamus shall not issue on the stenographer or clerk of a district court to compel them to comply with their duties until relator has exhausted his remedy before the District Court.
    2. Louisiana Digest — Mandamus—Par. 74; Courts — Par. 127, 147.
    Under Section 10 of Article VII of the Constitution of 1921 the Supreme Court has general supervisory jurisdiction over the District Court. Therefore, the Court of Appeal has no jurisdiction of a rule to show cause or mandamus suit directed to a district judge.
    Application by State ex rel. Allen R. Gentry to have Court of Appeal issue a rule to A. H. O’Quinn, stenographer, B. S. Swett, clerkt and Honorable John F. Stephens, Judge, to show cause why a write of mandamus should not issue.
    Application refused.
    J. W. Jones, Jr., of Natchitoches.
   This is an application by the relator, who is alleged to be the plaintiff in an action pending on the docket of the Tenth Judicial District Court of Louisiana in and for the Parish of Natchitoches, which action is styled Allen R. Gentry vs. W. F. Scott, in which it is sought to have this court issue a rule to A. H. O’Quinn, stenographer, B. S. Swett, clerk, and Hon. John F. Stephens, Judge of said court, to show cause why a writ of mandamus should not issue to the stenographer commanding him to deliver to the clerk the stenographic notes of evidence taken by him in said cause, and to the clerk, ordering and commanding him to file and place in the record in said cause the stenographic notes, and to the judge, ordering him to render and sign a judgment therein.

Considering the application in a general manner, we are of the opinion that this court is without jurisdiction as to the stenographer and the clerk, for the reason they are officers of the Tenth Judicial District Court in and for the Parish of Natchitoches, which has control over them and jurisdiction to compel them to comply with their duties in cases pending before that court, and that this court could have no jurisdiction until relator shall have exhausted his remedy before the District Court; and, as to the judge, this court is without jurisdiction, for the reason, that general supervisory jurisdiction over the District Court is vested in the Supreme Court. See Section 10 of Article VII of the Constitution.

Lavoy et ux vs. Toye Bros., 159 La. 209, 105 So. 292.

Paul vs. Tabony, 157 La. 400, 102 So. 503.


text:
    No. 2763
    Second Circuit
    SMITH v. INTERURBAN TRANSPORTATION COMPANY
    (Jan. 28, 1927. Opinion and Decree.)
    (Feb. 24, 1927. Rehearing Refused.)

      (Syllabus by the Editor)

    1.Louisiana Digest — Automobiles — Par. 4 (a), 4 (b).
    One who drives an automobile onto a public highway from a private entrance must take proper precautions to see that no vehicle is approaching before crossing the highway.
    2. Louisiana Digest — Automobiles — Par. 4, 4 (a).
    The driver of a motor bus is not negligent in driving to the left of the road in trying to avoid a collision with an automobile which had been negligently driven onto the road from a private entrance in front of the bus.
    3. Louisiana Digest — Automobiles — Par. 4, 7 (c).
    The excessive rate of speed of a motor bus is not the proximate cause of the accident, where it is caused primarily and solely by the sudden appearance of an automobile upon the road at a point so close to the bus as to deprive the bus driver of the last clear chance to avoid a collision.
    4. Louisiana Digest — Automobiles — Par. 4, 7.
    One who negligently drives an automobile from a little used private driveway onto a public highway so close to a bus that the bus driver can not avoid the accident, is guilty of the negli- . gence which caused the accident.
    Appeal from the Ninth Judicial District Court of Louisiana, Parish of Rapides. Hon. Leven L. Hooe, Judge.
    Action by Peter D. Smith, et al., against Interurban Transportation Company, Inc.
    There was judgment for plaintiffs and defendant appealed.
    Judgment reversed.
    Overton & Hunter, of Alexandria, attorneys for plaintiffs, appellees.
    Hawthorn & Stafford; L. P. Beard, of Alexandria, attorneys for defendant, appellant.
   ODOM, J.

Plaintiffs brought this suit to recover $5,477.00 damages resulting from a collision which took place on May 13, 1925, between a Ford touring car occupied and driven by Mrs. Smith and a passenger bus owned and operated by tbe defendant company.

There was judgment in the lower court for plaintiffs for $753.20 and defendant appealed.

Plaintiffs answered the appeal and ask that the judgment be increased to the amount sued for.

PLEADINGS

Plaintiffs allege that at about 2 o’clock p. m., on May 13, 1925, Mrs. Smith, wife of Peter D. Smith, and her two minor children, left the residence of Mrs. A. M. Wilks located on the Jefferson Highway just outside the limits of Alexandria, for the purpose of returning to their home in Alexandria; that they were riding in a Ford touring car; that the residence of said Mrs. Wilks is on the west side of said highway and that in order to reach the highway she drove her car down á private driveway leading from the residence to and intersecting the highway at right, angles; that she drove onto said highway, which at the time was open and unobstructed, and crossed over to the opposite side/ in order to get on the right-hand side going to Alexandria, the highway running north and south; that after she crossed the highway she turned to tbe left and straightened her car so as io proceed on north, and while on the proper side of the road, the bus of defendant company carelessly and negligently, and while going at an excessive rate of speed, left its side of the road, which was the right-hand side going south, turned to the left and ran into her car without slacking its speed or giving any warning whatever of its approach; and that before entering the highway she stopped and looked and saw no vehicle approaching, and that she was entirely free from fault or negligence.

The defendant, in answer, admitted the collision, but denied liability on the ground that the collision was due solely to the negligence of Mrs. Smith, the driver of the car, in going upon the highway at a rapid rate of speed without stopping and looking and with utter disregard of the laws of the road.

OPINION

The collision took place just south of Alexandria on the Jefferson Highway. Jefferson Highway runs north and south at that place, is gravelled and is much used for vehicular traffic.

On that day Mrs. Smith with her two small children had visited in the home of a kinsman, A. M. Wilks, whose residence is situated about 200 feet west of the highway. At about 2 o’clock p. m., she with her children, started in a Ford car back to her home in Alexandria. She drove her car east, down the private driveway from the Wilks’ residence to the highway. On the west side of the highway and between it and the Wilks’ property there is a ditch some three or four feet wide over which there is a bridge. Mrs. Smith says that when she reached the bridge and before entering the road, she stopped her ear and looked both ways and saw no vehicle approaching. However, she modified her testimony to the extent of saying that she thought she saw a vehicle of some kind coming down the road but that it appeared to be so far away, some four or five hundred feet, that she thought she had time to cross the highway, turn to the left and get on her side of the road.

She alleged and testified that she was going very slowly and carefully and that she had actually crossed over to the opposite side of the road and was proceeding north toward Alexandria on the right-hand side when the' driver of defendant’s bus, for some reason, left his side of the road, turned to the left (the bus was going north) and struck her car, which was on the proper side of the road.

As stated, the defendant’s bus was going south. It was on the right-hand or west side of the road and was going at twenty-eight to thirty miles an hour. Mrs. Smith went onto the highway from that side. The testimony is clear that at a distance of about sixty feet north of the intersection of the driveway leading from the Wilks’ residence to the highway where the collision took place, the driver of the bus swerved it to the left and that by the time it reached Mrs. Smith’s car it was to the left of the center of the road.

The right front fender of the bus struck the left front fender of the Ford car and knocked it around, some of the witnesses testifying that the front end of the Ford car was toward the south after the collision. The bus passed on the east side of the car and ran into the ditch on that side of the road and stopped some thirty feet south of the point where the collision occurred.

The driver of the bus explains his movements in this way: He says that Mrs. Smith drove onto the road unexpectedly to him from the side on which he was driving; that he first saw her car when it reached the side of the road; that she was then moving toward the road and that he was then only about sixty feet from her car and could not stop the bus, which weighed about 6500 pounds, in time to avoid the collision; that it occurred to him that the best course for'him to pursue was to turn to the left-hand side of the road and if possible run around the front end of the car, that if he ran straight ahead he would hit the car broadside, and that an emergency existed and he used his best judgment.

His testimony in the main is corroborated by that of all the passengers on the bus.

Under such conditions he unquestionably pursued the proper course.

But, according to plaintiffs’ theory of the case, the emergency was brought about by the fault and negligence of the driver of the bus in proceeding down the highway at an excessive rate of speed without looking ahead.

We do not think so.

The collision and resulting injury were caused by the carelessness and negligence of Mrs. Smith in driving her car upon the highway from a private side entrance without taking the proper precautions.

Mrs. Smith says she stopped and looked. The testimony is conflicting on the point as to whether she stopped. She says she looked both ways. But in view of the undisputed testimony as to how the collision occurred the conclusion is inevitable that she either did not look at all or that she looked without observing, or else she observed the approach af the oncoming bus and proceeded onto the road under the mistaken conclusion as to its distance from her, or that she proceeded in utter disregard of her own safety.

The accident occurred in broad daylight. From the point where she says she stopped and looked she had a clear and unobstructed view of the road in the direction from which the bus was coming for five or six hundred feet. If she looked she must have seen the approaching vehicle; there was nothing to keep her from seeing it. If she did not see it it was her fault. Her testimony that she stopped and looked and saw no vehicle avails her nothing, because the uncontradicted facts are that s.t the time she reached the bridge on the side of the road from where she says she stopped and looked the bus was coming down the open road in plain view.

In the course of the examination Mrs. Smith finally said that she did see what she took to be a vehicle coming down the road but that it appeared to be something like four or five hundred feet from her and she thought she had ample time in which to get across the road over to the opposite side.

If she did in fact look and see the bus coming and overestimated the distance, that was her misfortune and not the fault of the driver of the bus. If she did see the bus, she was unquestionably mistaken as to its distance from her; for if it had been as far from her as she says it was it would not have reached her before she crossed the road.

Counsel for plaintiff argue that the driver of the bus was' not keeping a lookout as he should and that if he had he could have seen Mrs. Smith’s car in time to stop before he got to the point of the collision. In fact, counsel argue that there was nothing to prevent the bus driver from seeing the Ford car coming down the driveway from the Willis residence to the highway.

The testimony is very conflicting on that point.

A. M. Wilks, Mr. Murphy, A. D. Morris, P. J. Carbo, A. M. Andries, Peter Andries and Mr. Smith, seven in number, all sworn for plaintiff, testified that there was no obstruction on that side of the road and that the hedge had been removed previous to the accident.

Mr. Fleming, Mrs. Fleming, W. C. Davis, Mrs. W. C. Davis, E. E. Pringle, M. W. Walker and Mr. Hollier, the driver of the bus, seven in number, all sworn for defendant, testified just as positively that the hedge was from twelve to fifteen feet high at the time and completely obstructed the view and that the hedge was not removed until after the accident.

Each set of witnesses made out a case on that point for the respective sides. These were all local people and were probably interested in the puteóme of the suit. That is the only way we can account for the fact that they so completely contradicted each other.

But there were two other witnesses called for defendant who live in Baton Rouge and who were probably not influenced by local sentiment. These were Mr. E. L. Erickson and Mrs. R. S. Simon. They were both passengers on the bus at the time. Their testimony was taken in Baton Rouge.

Mr. Erickson recalled the’hedge but did not know how high it was. Mrs. Simon said it was high enough to completely obstruct the view, of the Ford car as it came out.

These witnesses had ample opportunity to observe the movements of the bus and Mrs. Smith’s car.

Our conclusion, therefore, upon this point is that the hedge obstructed the view of the Ford car as it came , out from the Wilks residence.

The- testimony is also very conflicting as to whether Mrs. Smith stopped and looked before driving onto the highway.

But Mrs. Simon was sitting on the second seat from the front and was'looking ahead. She says Mrs. Smith did not stop when she got to the road and did not seem to .be looking, and she does not think Mrs. Smith ever saw the bus.

. Mr. Erickson says the Ford was just approaching the road when he looked up and saw it and it was moving at the time and that the collision took place about the center of the road at a point opposite the bridge.

We give great weight to the testimony of these two witnesses, for, as said, the testimony of the other witnesses is so conflicting ’ that it is impossible to draw any conclusion as to what really happened from what they say.

Counsel next contend that it was gross negligence for the driver of the bus to turn to the left; that if he had kept on his side of the road the collision would not have occurred.

The testimony of all the passengers on the bus is to the effect that the collision under the circumstances was inevitable.

Mr. Erickson who, as stated, was apparently without interest, said that the driver of the bus did everything possible to avoid the accident, and that if he had proceeded straight ahead, as plaintiffs say he should, he would have struck the Ford car broadside.

The general rule is that the driver of an automobile should keep to the fight, but the rule does not apply in cases where the driver is confronted with an emergency. He may lawfully leave his side of the road to avoid striking another car which suddenly and unexpectedly drives onto the road from his side.

The bus was on the main highway and had the right of way. Mrs. Smith drove onto the road from a side entrance at a'* point so close in front of the bus that the driver could not stop before reaching her car. In the emergency, the driver of the bus used his best judgment and swerved to the left in order to avoid the collision. As it turned out, his turning to the left probably saved the lives of the occupants of the Ford car. But even if it be said that he could have avoided the collision by proceeding straight ahead on the right-hand side of the road (we think he could not) he cannot be held responsible for an error in judgment under the circumstances.

Lastly, counsel suggest that the bus was traveling at an excessive rate of speed, and they cite Act 120 of 1921, which provides that no passenger motor transfer having a passenger capacity of more than seven shall exceed a speed of 25 miles an hour except by special permission of the Highway Commission. Said act, in that respect, is unconstitutional. State vs. Carter, 159 La. 121, 105 So. 247.

But the excessive rate of speed was not the proximate cause of the accident. The accident was caused primarily and solely, we think, by Mrs. Smith’s sudden appearance upon the road at a point so close that the driver of the bus was deprived of the last clear chance to avoid the injury.

The driver of a vehicle on a highway has no right to recklessly proceed without keeping a lookout ahead and without any regard whatever for the safety of those who may enter the highway from the side. He must drive cautiously at all times.

But the testimony in this ease does not warrant a holding that the driver of the bus was guilty of any imprudence. This was not a public crossing or intersection. Mrs. Smith came onto the road over a little used private driveway and her advent onto the road was so sudden and so close that the bus driver could not avoid the accident.

The following cases, we think, amply support our holding:

Collier vs. Varino, 153 La. 635, 96 So. 500.

Jacobs vs. Jacobs, 141 La. 274, 74 So. 992.

Roder vs. Legendre, 147 La. 295, 84 So. 787.

Marston vs. Shreveport Traction Co., 140 La. 18, 72 So. 794.

Gibbons vs. Terminal Co., 1 La. App. 379.

Norwich Union Indemnity Co. vs. Cohen, 1 La. App. 520.

Moore vs. Liddell, 155 La. 1018, 99 So. 857.

Lester vs. Roach, 155 La. 947, 99 So. 707.

Landrenau vs. Chapman, 4 La. App. 402.

For the reasons assigned, it is therefore ordered, adjudged and decreed that the judgment appealed from .be reversed and avoided and plaintiffs’ suit dismissed at their cost.


author: WEBB, J.

text:
    No. 2798
    Second Circuit
    DENNIS v. FORTUNA OIL CO.
    (Nov. 6, 1926. Opinion and Decree.)
    (Dec. 11, 1926. Rehearing Refused.)

      (Syllabus hy the Editor.)

    1. Louisiana Digest — Master and Servant —Par. 160 (j).
    Where the evidence in a suit by injured employee suing for compensation under the Workmen’s Compensation Act No. 20 of 1914, shows that at most there is a probability that the accident had something to do with accelerating an already infected tonsil condition, it falls short of the legal certainly required of plaintiff to prove his case.
    2. Louisiana Digest — Master and Servant —Par. 160 (j).
    Plaintiff, an injured employee suing for compensation under the Workmen’s Compensation Act No. 20 of 1914, cannot recover under Section, 8, Subsection 1 (e) .of the act for disfigurement or permanent impairment of the usefulness of his neck by reason of a sliver of steel penetrating it where the evidence shows that such was not the effect of the accident.
    (The recent amendment of Act 20 of 1914 is Act 85 of 1926. Editor’s note.)
    Appeal from the First Judicial District Court of Louisiana, Parish of Caddo. Hon. T. F. Bell, Judge.
    Action by Robert C. Dennis against For-tuna Oil Company.
    There was judgment for defendant and plaintiff appealed.
    Judgment affirmed.
    Long & McSween, of Shreveport, attorneys for plaintiff, appellant.
    Pugh & Boatner, of Shreveport, attorneys for defendant, appellee.
   WEBB, J.

Plaintiff brings this action under the Employers’ Liability Law to obtain judgment on the basis of permanent total disability to do any work of a reasonable character.

The District Court rejected plaintiff’s demands and he appealed.

The opinion of the district judge is as follows:

“This is a suit arising under the compensation law, in which plaintiff claims compensation for total permanent disability.

“Plaintiff was a helper in a boiler shop of the defendant company, and while engaged in his work, a sliver of steel was drive;} through his neck and lodged back of the throat and remained there. He went back to work in about two weeks; worked for a period of approximately three or four weeks, and then quit. He is undoubtedly suffering somewhat at this time, and not able to do heavy manual labor. The crucial question in this case being the cause of his present condition.

“According to the testimony of Dr. Sanderson, the plaintiff is in a very precarious' condition; a condition which may cause his death at any time; but likewise, under the testimony of Dr. Sanderson, the sliver of steel now embodied in his neck is not directly, at least, the cause of his present disability. As we appreciate the testimony, all the physicians practically agree that the sliver of steel in his neck could not possibly be the cause of his present condition, unless there was infection from the steel, and none of these physicians could discern any infection. The only possible evidence of infection from this steel is furnished by plaintiff himself in his testimony showing that he had • a rising in his ear, and when it bursted another minute piece of steel came out. While it is possible for this minute piece of steel to have worked its way up to the ear, it is, we think,, highly improbable, and it is much more probable that the plaintiff received this piece of steel from the outside, while working in the boiler plant, receiving 'it in the ear and causing the rising in the ear.

■ “From this, plaintiff has utterly failed to show that his present disability is due directly to the accident. He is, according to' ali of the physicians, suffering from infected tonsils and infected teeth, and that such tonsils and teeth are the direct cause of his present disability. However, under authority of Kenner vs. Standard Oil Company of Louisiana, 1st Court of Appeal, and authorities therein cited, it is argued that the tonsil condition was superinduced ■by the injury, or at least accelerated by it. If it be shown by a preponderance of evidence that plaintiff’s present condition was superinduced by the injury, or accelerated by it, then he is entitled to recover. It is not sufficient, however, for him to merely show that this condition is possible, or even probable. It devolves upon him to show with legal certainly that the injury to his neck either brought about the tonsil condition, or accelerated it. On this. phase of the case, see Stephens vs. Ohio Oil Co., Court of Appeals, Adv. Slits., No. 6, page 84, and Haddad vs. Commercial Motor Truck Co., 150 La. 327, 90 So. 666.

“This makes it necessary to go over the testimony to ascertain. what effect the injury had on his tonsil condition.”

Dr. Cassidy testified on page 43, as follows:

“Q. Just assume, doctor, that the conditions as intimated by the defendant are right; that he already had some ailment there, some infection already there; but that he was going about his work all the time, would this steel have been such a missile as could have caused that to become aggravated and to have further lowered his' vitality?

“A. Yes, sir, by making it chronically infected the tonsils — any foreign body penetrating or wounding the tonsils could have aggravated the condition and caused a more or less general infection. This steel could cause it by itself or it could have been a contributing factor.

“Q. It could have been a contributing factor to aggravate ■ his condition if nothing else had been the matter with him?

“A. Yes, sir.

“Q. And if he was able to work up to the time that he got this missile, and his condition, his disability to work since he got this missile would it be your opinion that the missile was a factor or the sole cause or contributing cause of his present condition?

“A. "Well, I am rather inclined to think it was a contributing cause.

“Q. Could it be the sole cause?

“A. It could be the sole cause.

“Q. But you are of the opinion that it is a contributing cause, though?

“A. Yes, sir.

“Q. You mean by that the exciting or aggravating cause?

"A. I am of the opinion that if it penetrated the throat that was already infected, or in other words, a chronic condition there due to infected tonsils and this missile penetrating the throat probably aggravated and allowed to flare up an old chronic condition that existed there.”

And again, on page 46, same witness testified: •

“Q. So the question of the aggravation and bringing on of his present condition is a mere, possibility and speculation so far as your testimony is concerned?

‘•‘A. Yes, sir, but I merely say that it is one of the things that could reasonably happen.”.

The only place that Dr. Sanderson gives testimony on this point is found on page 56, as follows:

“Q. Then, doctor, again assume that it is not the sole cause; that there isn’t so much infection solely from this sliver, could it be a contributing cause or exciting cause, assuming that he was able to work before this happened and to do heavy work?

“A. Well, the presence of that large foreign substance at that place in such close proximity to the nerves that absolutely carry on life itself, would make me believe that it is bound to have some influence.”

Dr. Adair, on page 73, testified:

“Q. And further on that line assume that he has an infected condition already, and the accident itself or the disability following the accident or the steel itself could also be an exciting or contributing factor or factors towards precipitating or producing his present disability at the time, present time — that is also true, isn’t it?

■ “A. I think it is possible that they could, yes — you will understand there that I am saying that it is possible not probable.

“Q. I understand. Now, the probabilities are — I am going to get to the probability; now, in an accident of a serious nature with an already latent deformity it will probably excite it to some extent, more or less, wouldn’t it, doctor?

“A. I think that is correct.

“Q. And the tonsils of the man — if the man already had an infected condition, the steel passing through the ear, coupled with a resistance • that would naturally bf lowered, would be susceptible of producir*' worse effects than would otherwise happen?

“A. Yes.

“Q. That is the realms of probability?

“A. That is probable.”

And again, on page 75 and 78, the same witness testified:

“Q. Then there is no way of concluding the extent or the degree to which this accident could be connected with his present condition and this piece of steel entering his neck, which may have accelerated that process, is there?

“A. No, except that it is a very small probability to start with.

“Q. Do you mean that it is a very small probability that it accelerated it at all?

“A. That is what I mean, yes.”

Dr. Pirkle testified, in general, that he did not think that the sliver of steel had any connection, either directly or indirectly, with' the present condition of the plaintiff, but that his present condition was due entirely to his infected tonsils and teeth.

About the best we can get out of this testimony is that there is a possibility, or at most a probability; that the accident had something to do with the tonsil condition, but this falls short of the legal certainty required of a plaintiff in proving his case.

Plaintiff contends, in this court, that if the evidence does not warrant a judgment on the basis of disability, that he is entitled to judgment under paragraph (e) subsection 1 of section 8 of the act, which reads as follows:

“In cases not falling within any of the provisions . already made, where the employee is seriously, permanently disfigured about the face or head, or where the usefulness of a member or any physical function is seriously, permanently impaired, the court may allow such compensation as is reasonable in proportion to the compensation hereinabove specifically provided in cases of specific disability above named, not to exceed sixty-five per centum of wages during one hundred weeks.”

The evidence, however, does not show that there was any serious disfigurement of the plaintiff’s neck caused by the sliver of steel penetrating it; neither does it show that the usefulness of that member was impaired; but, on the contrary, it indicates that plaintiff has no difficulty in eating or talking or in moving his neck, and while the plaintiff claims that his hearing was impaired, we are of the opinion that this is attributable to the rising in his ear, which the evidence does not show was. caused by the injury.

For the reasons assigned by the district judge and herein, the judgment is affirmed.


text:
    No. 2841
    Second Circuit
    PARKER v. DEMOCRATIC EXECUTIVE COMMITTEE OF FRANKLIN PARISH SISSON v. PARKER
    (Consolidated)
    (October 11, 1926. Opinion and Decree.)

      (Syllabus by the Editor.)
    1. Louisiana Digest — Mandamus—Par. 6, 44, 46.
    The duty of the Democratic Executive Committee is purely ministerial, and where it fails to perform its duty a mandamus will lie to compel its performance.
    '2. Louisiana Digest — Elections by the People — Par. 28.
    Under Section 28 of Act 97 of 1922 the State Central Committee and local committees of all political parties are specifically recognized as legal committees and governing authorities of such political parties.
    3. Louisiana Digest — Elections by the People — Par. 28, 38, 79; Citation and Appearance — Par. 17.
    The citation on the chairman of the Democratic Executive Committee is sufficient to compel the committee by mandamus to perform its duty.
    4. Louisiana Digest — Elections—Par. 28, 35.
    Where the Executive Committee concluded that irregularities in an election were such that it was impossible to reach a conclusion as to who was elected, they were within their rights to refer the matter back to the voters.
    Appeal from the Fifth Judicial District Court of Louisiana, Parish of Franklin. Hon. John R. McIntosh, Judge.
    Action by I. O. Parker against the Democratic Executivé Committee of Franklin Parish in mandiamus proceedings and action by Mrs. Cecelia Sisson against I. 0. Parker to have election declared null; consolidated'cases for the purposes of trial.
    There was judgment for defendants and plaintiffs appealed.
    Judgment affirmed.
    S.R. Holstein, D. V. Anders, of Winnsboro, attorneys for plaintiffs, appellants.
    E. B. Moore, T. V. Berry, of Winnsboro, attorneys for defendants, appellees.
   ODOM, J.

I. O. Parker and Mrs. Cecelia Sisson were rival candidates for the office of School Board member from Ward 4 of the parish of Franklin at the Democratic white primary election held on September 14, 1926.

The commissioners of election made their returns to the Democratic Executive Committee to be canvassed and promulgated according to „law.

That committee, after canvassing and considering the returns as a whole, refused to declare either candidate the nominee of the party for said office, for the reason, as stated by it, that the returns, as a whole, showed such gross irregularities that it was impossible for it to determine which of the candidates had received a majority of the legal votes cast.

Whereupon Mrs. Sisson brought suit in the District Court, asking that said election be declared null, void and of no effect and that neither candidate be declared the nominee, and that another primary election be ordered. She set' up various irregularities in the election, which we deem it unnecessary to state. She did not specifically allege that she was nominated at said primary.

I. O. Parker, the other candidate, brought mandamus proceedings against the Democratic Executive Committee, setting up that the returns of the commissioners of election showed that he had been nominated for the said office, and asking that the court order said committee to perform its ministerial duty and declare him the nominee.

The parties filed various and sundry exceptions, .all of which were overruled by the court below. The suit of Mrs. Sisson versus I. O. Parker was put at issue by answer of the defendant, Parker, and that of. Parker versus the Executive Committee •by answers of the committee.

The cases were consolidated for purposes of the trial.

The trial resulted in a judgment declaring that:

“The results of said primary election evidenced that neither candidate is entitled to have been declared the nominee or certified as such to the secretary of state, and that a second primary election is legally necessary to determine a nominee * * * and that the action of the said Democratic Executive Committee is approved and affirmed and said committee is hereby directed to order a second primary election herein in a manner and as. provided for by the election laws of this state.”

Taking up for consideration first the mandamus suit brought by I. O. Parker against the Executive Committee, we find that the said committee has filed in this court an exception to the jurisdiction of the court ratione materiae and an exception of no cause of action.

These exceptions are disposed of by the holding in the case of State ex rel. Trosclair vs. Parish Democratic Executive Committee, 120 La. 620, 45 South. 526, where the court said:

“The judge a quo correctly states the law when he says that if the duties of the Parish Executive Committee are ministerial mandamus will lie to compel their performance.”

Citing:

State ex rel. Patton vs. Judge, 40 La. Ann. 393, 4 South. 50.

State ex rel. Barbin vs. Secretary of State, 32 La. Ann. 579.

State ex rel. Supervisors vs. Judge, 48 La. Ann. 827, 19 South. 750.

State ex rel. Corese v. Judge, 48 La. Ann. 847, 19 South. 946.

In these decisions, or some of them, it was specifically held that the duty of the Democratic Executive Committee is purely ministerial and. that where it fails to perform that duty mandamus will lie and that the courts have jurisdiction.

The exceptions were properly' overruled by the lower court.

The committee also excepts to the citations.

Citation was served on W. H. Adams, chairman of the committee. The exception to the citation set out that each and every member of the committee should have been served.

Under Section 28 of Act 97 of 1922 the State Central Committee and local committees of all political parties coming within the provisions of the act are specifically recognized as legal committees and the governing authorities of such political parties.

Such committees are especially authorized to make rules and regulations for their own government. We are not informed as to whether the Franklin parish committee had made any rules with reference to the methods by which it might be cited and brought into court; but the chairman of that committee seems to have been recognized as the proper rparty to represent the committee as a whole, for we note that he acted for the whole committee in certifying the result of the canvass of the returns of the election. We can see no reason why the committee should not be brought into court by citation served upon the chairman as its head, and we are cited to no law which holds to the contrary.

The exception to the citation, we think, was properly overuled.

On the merits, we find that there is practically no dispute as to the facts.

The commissioners of election kept duplicate poll lists. These poll lists purport to show the names of all those w.ho voted in the order in which they voted. These two poll lists introduced in evidence were identical as to the names o.f the voters and the order in which they voted. They each showed that two hundred and thirteen persons voted.

The commissioners also kept duplicate tally sheets with a detailed check and the count of the ballots found in the ballot box. These tally sheets are identical also as to the number of ballots taken from the box. These tally sheets show that there were found in the ballot box two hundred and twenty-six ballots, or thirteen more ballots than were persons voting, according to the poll lists. Of these two hundred and twenty-six ballots found in the box, one hundred and eleven were marked for Mrs. Sisson and one hundred and fifteen for I. 0. Parker. Just how this discrepancy arose no one is able to tell. It is suggested that possibly the two commissioners who made the tally sheets omitted the names of some who voted, and that may be true; but it does not seem probable that they would have omitted as many as thirteen names.

The election whs held on September 14 and the returns were made to the committee on the 18th. This suit was tried ■on October 1, more than two weeks after the election was held. It must have been known by the rival candidates and generally known in the community that there was a discrepancy in the number who voted at the election and the number of votes cast as shown by the ballots counted by the commissioners, and it seems to us fair to assume that if, as a matter of fact, there were thirteen persons who voted and whose names were omitted from the poll lists one or more of these persons could have been found. In hotly contested local elections, as' this one seems to have been, the list of voters is closely checked. Parker, who claims to have received a majority of the votes cast, knew, of course, who had voted, according to the poll lists made by the commissioners. Pie knew also that there were thirteen more ballots in the box than the poll lists showed should have been there. It would seem, therefore, that if the poll lists had been incomplete he could have shown it. There is no testimony to show that the poll lists are incomplete.

With reference to the ballots in the box, two of the commissioners testified? that some of the tickets in the box were folded together and taken out of the box in pairs, but this is disputed by Mr. Harper, who took the tickets from the box.

It appears that the commissioners were furnished with four hundred ballots numbered consecutively according to law. One of the commissioners testified that after the confusion arose at the poll over the discrepancy between the number' of ballots in the box and the number of names on the poll lists, he looked at the remaining tickets, and that' the next ticket bore the number 215, which would indicate that only 214 tickets were used; but the commissioners did not count the remaining tickets to ascertain if any had been removed other than those in the box. The commissioners were unable to account for the discrepancy.

The lower court found, and all parties conceded, that there was no fraud practiced by the commissioners. The good faith of the commissioners and of the members of the Executive Committee is not questioned. No one is able to account for the discrepancy.

However, the testimony shows that there were two boxes, one in which the ballots for United States senator were deposited and one in which the School Board ballots were deposited. When the boxes were opened it was discovered that some of the ballots for United States senator were deposited in the School Board box. These ballots were transferred to the proper box. And it was further found that some of the School Board ballots were deposited in the “senatorial” box. These transfers were máde after the counting had begun, and we think it probable that in making these transfers some of the School Board tickets were in some way counted twice. This may or may not be a correct solution of the discrepancy. The only other solution is that tickets were illegally obtained by someone and the ballot box “stuffed”.

There is testimony to the effect that there were only two hundred and forty-six qualified voters in the precinct and that thirty of that number failed to vote, which would show that only two hundred and sixteen persons actually voted. But in determining who were qualified to vote the registration list was checked with the list of those who had paid poll taxes for the years 1924 and 1925, and it may be that there were some who were over 60 years and some under 22 years of. age who Were not subject to the payment of poll tax. The registration list showed that two hundred and seventy-six had registered.

Considering the returns made by the commissioners and all the testimony in the record, it is patent that there were such gross irregularities in this election as to make it utterly impossible for the court to determine which of the candidates was nominated.

The underlying principle of all elections is to ascertain the will of the majority. Where the returns are so irregular that it is impossible to ascertain this will the matter should be referred, back to the voters. When the Executive Committee in this case took into consideration the returns as a whole, it reached the conclusion that the irregularities were such that it could not determine who was nominated and refused to certify the name of either candidate to the secretary of state as the nominee. We think, under the circumstances of this case, the committee was well within its rights in doing so.

Having reached this conclusion, it is unnecessary for us to pass upon the various issues involved in the suit of Mrs. Sisson versus Parker.


text:
    No. 2701
    Second Circuit
    RISER v. BREAZEALE
    (November 6, 1926. Opinion and Decree.)

      (Syllabus by the Editor)
    1. Louisiana Digest — Appeal—Par. 625.
    The finding of the trial court on a matter -of fact, that a sawmill had been sold and was owned by the vendee at the time of an accident, being clearly correct, is affirmed.
    2. Louisiana Digest — New Trial — Par. 2, 31.
    Motion for a new trial will be overruled where it appears that the newly discovered evidence would be merely cumulative.
    Appeal from the Tenth Judicial District Court of Louisiana, Parish of Natchitoches. Hon. John F. Stephens, Judge.
    Action by Mrs. Ola Riser against Dr. E. W. Breazeale, et al.
    There was judgment for defendant and plaintiff appealed.
    Judgment affirmed.
    J. W. Jones, Jr., of Natchitoches, attorney for plaintiff, appellant.
    Breazeale & Breazeale, of Natchitoches, attorneys for Dr. W. W. Breazeale, defendant, appellee.
   WEBB, J.

The plaintiff, Mrs. Ola Riser, widow of Clarence Riser, brings this action against Dr. E. W. Breazeale and O. F. Shagun, alleged to have composed the firm of Ol F. Shagun Lumber Company, to recover compensation for herself and children under Paragraph (c), Subsection 2 of Section 8 of the Employers’ Liability Act, for the death of her husband, alleged to have resulted from injuries received by her husband while in the employ of the said lumber company.

The defendant, E. W. Breazeale, answered, denying the allegations of plaintiff’s petition, and no default or rule having been taken against O. F. Shagun, trial was had as against E. W. Breazeale, and judgment rendered rejecting plaintiff’s demands.

Plaintiff moved for a new trial on the ground that the judgment was contrary to the law and the evidence, and upon the ground that she had discovered important evidence subsequent to the trial, which motion was overruled, and plaintiff appealed.

OPINION

The plaintiff contends here that the judgment should be reversed and judgment rendered in her favor as prayed for, and if this court does not find that the evidence warrants such action, that the jufement should be annulled and the cause remanded for a new trial.

Considering these contentions in their order, We find that the evidence establishes that Dr. E. W. Breazeale purchased a sawmill, which was located near Coushatta, from J. A. Liendecker, and that Liendecker retained a chattel mortgage on the machinery to secure twelve hundred and fifty dollars, a part of the purchase price; that Breazeale moved the mill to a point near Campti, where it was set up and operated by E. W. Breazeale and C. C. Beard, and, their operations being successful, Beard withdrew and Breazeale entered into an agreement with W. W. Lejeune and C. K. Brunson to operate the mill under the name of the Breazeale Lumber Company, Limited, and this copartnership being unsuccessful the mill was turned over to O'. F. Shagun. #

The question of fact in dispute is whether or not O. P. Shagun was operating . the mill at the time Riser was injured for the benefit of himself, or whether it was being operated for the benefit of E. W. Breazeale.

E. W. Breazeale testified that the mill had been sold by him to Shagun on November 27, 1924, prior to the date of the accident, which occurred on March 16, 1925; that Shagun was to pay seventeen hundred dollars for the mill, of which amount two hundred dollars was paid in cash and applied by Breazeale on the mortgage retained by Liendecker.

Shagun, on the other hand, testified, as near as we can gather from his statements, that the agreement was that the mill was turned over to him to be operated by him for the benefit of Breazeale, Bakel and himself, O. P. Shagun, under the partnership name of G. P. Shagun Lumber Company, and that he was operating the mill for the benefit of the partnership at the time Clarence Riser was killed.

Mr. Bakel (one of the partners, as claimed by Shagun) and Mr. Riser were killed at the same time, and the parties, in the conflict between the testimony of E. W. Breazeale and Shagun, introduced evidence to support their respective witnesses.

The evidence establishes that the mill was turned over to Shagun on November 27, 1924, the date on which E. W. Breazeale testified that he had sold the mill to Shagun, and that on that date Shagun delivered to Breazeale a check for two hundred dollars; that at the time Breazeale claims to have sold the mill to Shagun the chattel mortgage in favor of Liendecker was unpaid, and Liendecker testifies that the agreement between Breazeale and Mr. Shagun was made in his presence and that he agreed to allow Mr. Shagun to pay off the mortgage but he did not agree to release Breazeale.

The evidence further establishes that, while the mill was being operated for the partnership,, Breazeale Lumber Company, Limited, composed of Breazeale, Lejeune and Brunson, that there were teams belonging to the partnership which came into the possession of Breazeale, and that these teams were not turned over to Shagun at the time the mill was delivered to him, but that the teams were sold by Breazeale to other parties.

The evidence further establishes that Mr. Shagun told the employees that Mr. Breazeale was not interested in the mill.

The evidence further establishes that, after the mill was delivered to Shagun, he tried to sell some of the machinery to the holder of the chattel mortgage.

Mr. Shagun denied that he had entered into any agreement with Breazeale in the presence of Liendecker, and he explains the check of two hundred dollars with the statement that it was given as a payment for an. undivided one-third interest in the mill, and that he tried to stop payment on the check when he learned that Liendecker would not release the machinery.

Mr. Shagun states that the reason why he had told the employees that Dr. Breazeale was not interested was because the employees did not want to work for Dr. Breazeale, and he also says, in explanation of his offer to sell Liendecker, the holder of the chattel mortgage, some of the machinery, that he expected to get the cash from the sale.

In support of the testimony of Mr. Shagun as to the transaction by which Shagun came into possession of the mill, evidence was offered tending to show that Dr. Breazeale had visited the mill plant on many occasions after it was delivered to Mr. Shagun, that he ha'd drawn several drafts for the O. F. Shagun Lumber Company and had otherwise attended to financial matters in which the Shagun Lumber Company was interested during the time the mill was operated by Mr. Shagun; that Dr. Breazeale had purchased feed for teams, presumably belonging to the lumber company, on the orders of Mr. Shagun, and that some timber had been cut from lands belonging to* Dr. Breazeale by the Shagun Lumber Company, and that, after the accident (boiler explosion), Dr. Breazeale had been interested in obtaining another boiler, and, that on the mill being abandoned, which was very soon after the explosion, Dr. Breazeale drew drafts in the name of the Shagun Lumber Company on parties to whom lumber, etc., had been sold by Shagun, and that Breazeale had hauled some of the lumber from the mill after the date of the explosion.

The evidence establishes that Dr. Breazeale had turned, in for the tax assessor an assessment sheet for the year 1925, showing for assessment to the Breazeale-Beard Lumber Company a sawmill valued at one thousand dollars, which we assume was the mill which was being operated by Mr. Shagun under the name of the O. F. Shagun Lumber Company.

Dr. Breazeale testified that he had not visited the mill on many occasions since it was delivered to Mr. Shagun, and it appears from the testimony of Mr. Shagun that he called upon Dr. Breazeale to assist him.jn attending to the financial matters connected with the mill, such as drawing drafts, etc., and Dr. Breazeale testified that' if any timber was cut from his lands by the Shagun Lumber Company he had no knowledge of it, and that he had some correspondence with parties relative to purchasing a boiler, which was at the request of Mr. Shagun, and it is shown " that all sales of lumber, etc., or removal of lumber after the explosion was made with knowledge of Mr. Shagun, who, after the explosion, turned the property back to Breazeale.

Dr. Breazeale being on a note for some nine hundred dollars secured by. a chattel mortgage on the machinery, was very materially interested in the success of the operations carried on by Shagun, and aside from the fact that Mr. Shagun requested him to attend to many matters connected with the finances of the mill, we are of the opinion that the evidence which could indicate any interest on the part of Dr. Breazeale is explained by the fact of his being responsible for the note, and from our consideration of the evidence we do not find anything which goes to contradict' the testimony of Dr. Breazeale, except the testimony of Mr. Shagun and the fact that Dr. Breazeale gave in the property for assessment under the name of BreazealeBeard Lumber Company.

The testimony of Mr. Shagun is very indefinite, and conflicting with itself, while that of Dr. Breazeale is supported by the direct testimony of Liendecker and by the fact that Mr. Shagun admits having given Dr. Breazeale a check for two hundred dollars, and by the fact of Mr. Shagun having, attempted to sell some of the machinery, and while the circumstance of Dr. Breazeale having given in the property for assessment under the name of BreazealeBeard Lumber Company cannot be ignored, we do not think that it can possibly be held to have overcome the testimony of Dr. Breazeale and Mr. Liendecker, and we find that the court, correctly weighed the evidence and rejected. the plaintiff’s demands.

MOTION FOR NEW TRIAL

The motion is based upon the allegations of newly discovered evidence, it being alleged that plaintiff can show by Mr. Shagun and others, acts of Dr. Breazeale establishing his interest in the affairs of the Shagun Lumber Company, such as showing that Dr. Breazeale received orders for lumber and delivered same to Mr. Shagun, and that Breazeale obtained bills of lading for shipments, with draft attached, drawn by Breazeale, and that she has, since the trial, obtained possession of drafts drawn by the Breazeale-Shagun Lumber Company and O. F. Shagun Lumber Company, by E. W. Breazeale, and that she has obtained the evidence of a person who accompanied E. W. Breazeale and O. F. Shagun to Coushatta on the date when the Question of-the indebtedness of Dr. Breazeale was under discussion, and by whom she can prove that no purchase or sale of the sawmill by Dr. Breazeale was mentioned, and that she can prove that Dr. Breazeale had permitted the liability insurance carried to lajpse some time before the alleged sale to Shagun.

We are of the opinion that, conceding that the evidence tending to show that Dr. Breazeale manifested an interest in the operation of the mill is cumulative, and it could be fully explained by the fact that Dr. Breazeale. was very much interested in the successful operation of the mill by Shagun, as it appears that Mr. Shagun had no property or other means by which he could pay the purchase price of the mill and relieve Dr. Breazeale of his .obligation to Mr. Liendecker, and by the fact that Mr. Shagun had called upon Dr. Breazeale to assist him in such matters.

As to the evidence of the witness who is alleged to have accompanied Dr. Breazeale and Mr. Shagun when they called upon Mr. Liendecker, we are of the opinion that this evidence would also be merely cumulative and also in conflict with some of the statements of Mr. Shagun (Ev. 182).

There was on the original trial some testimony "as to Dr. Breazeale’s having cancelled an insurance policy when he delivered the mill to Shagun, which it was claimed supported the theory of the defense that Breazeale had sold the mill to Shagun, but as we did not consider this evidence for the reason that the date of the cancellation was not shown with certainty, we do not think that the evidence offered by plaintiff in the motion could have any effect.

For the reasons assigned the judgment appealed from is affirmed.


author: ELLIOTT, J.

text:
    No. 2467
    First Circuit
    JOHNSON v. SYLVESTER
    (Jan. 7, 1927. Opinion and Decree.)
    (Feb. 12, 1927. Rehearing Refused.)

      (Syllabus by the Editor.)

      1. Louisiana Digest — Trespass—Par. 17.
    It is not necessary in an action of trespass for the plaintiff to allege any more than his ownership of the land and the trespass complained of.
    2. Louisiana Digest — Trespass—Par. 7, 18.
    Where the evidence shows that land from which defendant cut timber belongs to the defendant and not to the plaintiff, who sued in an action of trespass, there will be judgment for defendant.
    3. Louisiana Digest — Surveyors and Surveys — Par. 10, 11, 24.
    A surveyor’s testimony, uncontradicted, that the. dividing line between the lands of plaintiff and defendant had been set and that plaintiff was present at the time and appeared to be satisfied, will be considered correct by the court.
    4. Louisiana Digest — Acts—Pat). 33.
    Under Article 854 of the Civil Code, where one sells land described by boundary lines which contain a greater quantity than that called for in the title, the purchaser takes all the land within the boundaries.
    Appeal from the District' Court, Parish of Evangeline. Hon. B. H. Pavy, Judge.
    Action by Jules Johnson against Oscar Sylvester.
    There was judgment for defendant and plaintiff appealed.
    Judgment' affirmed.
    O. E’. Guillory, of Ville Platte, attorney for plaintiff, appellant.
    J. Hugo Dore, of Ville Platte, attorney for defendant, appellee.
   ELLIOTT, J.

Action of trespass, in which the plaintiff alleges himself to be the true and legal owner of certain lands described in his petition, and without setting out his title and not alleging himself to have possession of the land and not praying to be recognized as the owner of the same, prays for judgment against the defendant for the value of the cordwood alleged to have been cut and removed by the defendant from the same.

. Jules Johnson alleging himself to be the true and legal owner of a tract of woods land, described in his petition, and that Oscar Sylvester had cut and removed 1500 cords of stove and firewood from the same, prays for judgment against Sylvester for the value of the wood. Plaintiff does not set out his title, allege possession, nor pray to be recognized as the owner of the land, but for judgment for the cordwood cut and removed therefrom by defendant. The plaintiff alleges that the defendant had no right or authority to cut and remove the wood; that he did it with full knowledge that same did not belong to him and alleges in a supplemental petition that the defendant knew at the time of cutting the wood that same belonged to the (plaintiff.

The defendant excepted to plaintiff’s petition on the ground that it was vague and the plaintiff was ordered by the court to make his petition more explicit in the matter of title and as to the dates on which the wood was cut. In response to this order the plaintiff .alleged that he had no present recollection of the date of the title, that he had called at the office of the clerk of court for the purpose of getting the date, but was informed that his title had been withdrawn by the attorney for the defendant. That as for the cutting of the timber, it had only come to his knowledge during the spring of 1925, a short time before the institution of the' suit.

Defendant then excepted to plaintiff’s demand on the ground that his, petition, supplemental and amended, set forth no cause of action, which was by the court referred to the merits. The defendant then answered, denying that the plaintiff was the owner of the land described • in his petition; alleged that he was the owner and bona fide possessor of the same by title in due form duly recorded and set out his chain of title, apparently without break; back to the government in 1856. Alleged continuous, unequivoeál, open and public possession in himself as owner, through his authors in title for more than thirty years. He pleaded the prescriptions of one, five, ten and thirty years in bar of plaintiff’s demand, urged a plea of estoppel and prayed that plaintiff’s demand be rejected. The court rejected plaintiff’s demand and he appealed.

There is some question before this court as to plaintiff’s right of action. His petition does not appear to be different from those sustained by the Supreme Court in Harang vs. Bowie Lbr. Co., 145 La. 98, 81 So. 769; Interstate Trust & Banking Co. vs. Picard & Geismar, 147 La. 430, 85 So. 65; Pfister vs. St. Bernard Cypress Co., 155 La. 575, 99 So. 454.

On the merits plaintiff did not show himself to be the owner of the land described in his petition and from which the timber in question was cut and removed by the defendant. The act under private signature in plaintiff’s favor signed by Jules Molitor and others, which the plaintiff offered in evidence, bear§ no date. The signatures were proved on May 30, 1925, and it was recorded on August 19, 1925, in the conveyance records of the Parish of Evangeline.

This act states that the parties who signed it are- the heirs of Octave Molitor, a predeceased son of August Molitor, and they convey to the plaintiff in consideration of $2.50 all their right, title and interest in and to the land described in plaintiff’s petition; but the act proves very little on that subject. The act does not state what rights the parties had, nor what rights their ancestors left them in the land, and on the trial of the case, it' was not established that their ancestors had any rights in the land in question at the time of their death. It was not shown that the act conveyed anything to the plaintiff. The plaintiff also introduced in evidence another act in his favor for the land - described in his petition, signed by Theogene Johnson, dated June 8, 1925, and recorded in the conveyance records of the Parish of Evangeline on June 9, 1925.. This act states that the property described in it', is part of the same property which the vendor acquired from the heirs of August Molitor and wife, both deceased, and from the heirs of Sarah Teal, widow of Eli Nash, both deceased, and also conveys to the plaintiff all vendor’s rights and actions for timber cut and removed from the land by any third person without title and right thereto.

This title likewise proves very little on the 'subject of ownership, for the reason that no title was adduced on the trial from the heirs of August Molitor and wife, nor from the heirs, of • Sarah Teal, widow of Eli Nash, in favor of Theogene „ Johnson, covering the land in question, and no evidence, was adduced on the trial showing a deraignment of title for the land from said parties or their heirs, to Theogene Johnson, under whom plaintiff claims to own.

Some showing of that kind on the part of the plaintiff was very necessary, because Oscar Sylvester, the defendant, claims title to the land in question by deraignment from Sarah Teal and August Molitor. A title from Sarah Teal to Hawkins and from August Molitor to Wiggins, was offered in evidence on the trial by the defendant as links in his chain of title to the land in question. The act fi;om Jules Molitor and others in favor of the plaintiff and that from Theogene Johnson in his favor were the only titles which the plaintiff offered in evidence. These acts commence plaintiff’s claim to the land in June and August, 1925, and are utterly insufficient against the better, more . ancient and credible showing adduced by. the defendant in support of his ownership of the land in question. The title of defendant, acquired by him from Andre Johnson and by him apparently frqm plaintiff, describes defendant’s land by boundaries.

Albert Tate, a surveyor called as a witness on the subject, testified without contradiction and without pretense to the contrary, that the boundaries called for by defendant’s title includes a greater area than that called for in the act, but that the boundaries called for by defendant’s title includes the land described in the petition of the plaintiff. He declares that he ran the dividing line between the plaintiff and defendant, according to 'their respective titles, that of the plaintiff from Andre Johnson and that of defendant under R. M. Hollier, and that the boundaries called for by defendant’s title in: eludes the land described in the petition of the plaintiff. That plaintiff was present at the time and appeared to be satisfied.

There was no effort made on the trial to show that the testimony of Mr. Tate was incorrect. Under the law, the land from which the timber in question was cut and removed, belongs to the defendant. Civil Code, Art. 854.

'The judgment appealed "from was correct. Judgment affirmed, the plaintiff and appellant to pqy the cost in both courts.


text:
    No. 2858
    Second Circuit
    LOUISIANA RAILWAY & NAV. CO. v. LAWRENCE
    (January 28, 1927. Opinion and Decree.)
    (February 24, 1927. Rehearing Refused.)

      {Syllabus by the Editor)
    1. Louisiana Digest — Carriers of Passengers and Goods — Par. 155, 160; Evidence — Par. 58, 59.
    The burden of proof is on the defendant who claims a lower rate of freight charges than the regular tariff to establish the fact that a special rate was applicable to his shipment consigned to the ■ railroad company.
    2. Louisiana Digest — Carriers of Passengers and Goods — Par. 155, 160.
    In default of any proof that a special rate of tariff w'as applicable to a shipment made by defendant, there must be judgment for railroad company for freight charges on the regular tariff.
    Appeal from the Ninth Judicial District Court of Louisiana, Parish of Rapides. Hon. Leven L. Hooe, Judge.
    Action hy Louisiana Railway and Navigation Company against Rolle C. Lawrence.
    There was judgment for defendant' and plaintiff appealed.
    Judgment reversed.
    Peterman, Dear & Peterman, of Alexandria, attorneys for plaintiff, appellant.
    Gus A. Voltz, of Alexandria, attorney for defendant, appellee.
   WEBB, J.

In this action plaintiff seeks to recover judgment against defendant for an alleged , balance due for freight on shipments of crossties made hy defendant over plaintiff’s line from Pineville to Alexandria, and war tax on sdid shipments.

The plaintiff alleges that defendant was quoted a rate of two cents per hundred pounds, or a minimum of fifteen dollars per car load, and was assessed and paid freight charges on that basis amounting to one hundred and five dollars on the shipment of seven cars; that the rate quoted and charges assessed against defendant were erroneous and were not the correct rate and charges under the published tariff on file and in effect on the dates of the shipments, but that the correct rate, which should have been applied, was six and one-half cents per hundred pounds, and the correct charges, which should have been made under that rate was two hundred and sixty-six and • 28-100 dollars; and plaintiff also alleged that it failed to collect war tax of four and 84-100 dollars, making a balance due of one hundred jand sixty-six and 12-100 dollars, for which1 amount plaintiff prays for . judgment.

The defendant answered, admitting the shipments to have been- made, the quotation of the rate and payment of the charges as alleged, but denied that the correct rate, charges and war tax were as alleged by plaintiff, or that any balance was due, and alleged that the correct' rate was two cents per hundred pounds and that defendant had paid all that was due.

On trial judgment was rendered rejecting plaintiff’s demand, and it appealed.

OPINIO-N

The plaintiff offered in evidence certain tariffs, which were shown to have been published and on file on the dates of the shipments, under which the shipments from Pineville to Alexandria bore a rate of six and one-half cents per hundred pounds, and that the freight charges under such tariffs should have been as alleged by plaintiff.

The defendant then offered and introduced in evidence another tariff, which was shown to have been published and on file on the dates of the shipments, under which a rate of two cents per hundred pounds was applicable to such shipments from Pineville to Alexandria, where the shipment was for. use in the latter place and not for reshipment from that ipoint.

The parties each contend that the other was bound to prove the facts which would or would not render the latter tariff applicable, that is, the defendant contends the plaintiff should have established that the shipments were not to be used in Alexandria but were for reshipment from that I point, while the plaintiff contends the defendant should have established that the .shipments were for use in Alexandria and not for reshipment from that point.

' The plaintiff argues that the tariffs filed by it fix the general rule, and ' the tariff-filed by defendant fixes a special rate or exception to the general rate, Which seems to be admitted by defendant in his brief, and that it necessarily follows, defendant claiming under the special rate must prove the facts which would make the special tariff applicable; and this argument appears to us to be unanswerable, provided this question of fact was at issue, and the tariffs filed by plaintiff fixed the general rule or rate, and the tariff filed by defendant fixed a special rule or rate.

Under a strict construction of plaintiff’s petition, it may be that defendant might well have assumed plaintiff took the position that there was only qne tariff or rate applicable to all shipments of crossties from Pineville to Alexandria and have acted upon such assumption; however, he did not take such position, but pleaded that the correct rate on the shipments made by him was two cents per hundred pounds, and in support of his allegation he offered the tariff which fixed such rate, and there was thus placed before the court the tariffs . covering shipments from Pineville to Alexandria, which must be read together and which show, when thus read, that the tariff filed by defendant is a special tariff which is applicable only when the shipment is used in Alexandria and not to be reshipped from that point.

The tariff, we consider, is in the nature of a law. of which the shipper, as well as the carrier, must' take notice, and of which , they are presumed to have knowledge; and when the tariff was placed before the court and it appeared that the defendant' had paid under the special tariff, we think the pleadings, if necessary, should be considered as amplified and the plaintiff as appearing before the court claiming that the rate should be fixed under the general rule and the defendant as claiming that - it should be fixed under the special rule, and that the error, if any, in fixing the rate under the special rule was mutual,both parties being presumed to have knowledge of the law, and that the sole question at issue is one of fact, which is, whether or not the rate'fixed by the special tariff should have been applied to the shipments in question.

The tariff being in the nature of a law and the special rate being applicable only When the shipment was to be used in Alexandria and not to be reshipped from that point, the defendant should be held to establish the facts which would fix the rate under the special tariff.

“One claiming the benefit of a proviso of a statute is bound to prove the facts which, place him within the proviso.”

Miller vs. Morgan, 6 Mar. (N. S.) 86.

However, if it should be said that the regulation or tariff fixing the rate should not be considered as a law, and the burden of proof cast upon one who claims that the rate should be fixed under a special provision of the tariff to prove the facts which render the proviso applicable, but that the general rule, under which the plaintiff is generally held to bear the burden of proof should be applied, we are of the opinion that' the facts which may have rendered the shipments subject to the tariff filed by the defendant were peculiarly within the knowledge of the .defendant, and the defendant must be held bound to establish the facts which would render the special tariff applicable.

Lovell vs. Payne, 30 La. Ann. 511.

Bastrop State Bank vs. Levy, 106 La. 591, 31 South. 164.

Jones on Evidence, No. 181.

And in default of any proof of such facts judgment should have been rendered in favor of plaintiff.

The evidence establishing that the war tax was not paid, and the amount of this tax being fixed by law as alleged by plaintiff’s petition, we find that plaintiff should have judgment as prayed for.

It is therefore ordered, adjudged and decreed that the judgment appealed from be annulled, avoided and reversed, and that plaintiff, Louisiana Railway & Navigation Company, have and recover judgment against defendant, Rollo C. Lawrence, in the sum of one hundred and sixty-six and 12-100 dollars with legal interest thereon from June 18, 1919, and all costs.