text:
    No. 2936
    Second Circuit
    GRAY v. BROUILLETTE
    (Apr. 8, 1927. Opinion and Decree.)

      (Syllabus by the Court)
    1. Louisiana Digest — Appeal—Par. 625.
    The finding of fact by the trial.court.will not be disturbed on appeal unless manifestly erroneous.
    Appeal from the Twelfth Judicial District Court of Louisiana, Parish of Avoyelles. Hon. B. P. Gremillion, Judge.
    Action by Mrs. Irene Lurty Gray, widow of C. W. Keller, deceased, against Leon Brouillette.
    There was judgment for defendant and plaintiff appealed.
    Judgment affirmed.
    Porterie & Bordelon, of Marksville, attorneys for plaintiff, appellant.
    Bordelon & Normand, of Marksville, attorneys for defendant, appellee.
   STATEMENT OP THE CASE

REYNOLDS, J.

Plaintiff; sues the defendant to compel him to vacate certain premises belonging to her of which he has possession.

Defendant claims to have leased the premises from the ‘plaintiff for the year 1927 and refuses to .vacate.

On these issues the case was tried and there was judgment in favor of the defendant and the plaintiff appealed.

OPINION

Our learned brother of the District Court gave written reasons for the judgment rendered by him, as follows:

“In the fall of 1926, the plaintiff having a hay farm of about 65 acres ready for harvest, secured the services of defendant to harvest the same. Plaintiff was to furnish- all necessary implements and defendant all necessary teams, labor and wire, and they were to share equally in the hay harvested.
“Defendant began about the first days of O-ctober and worked until about December 3, 1926, harvesting during that time' about 2000 bales of hay.
“About three weeks- after Brouillette began operations on the hay farm, he moved on the place with his family, taking along with him his stock and corn and household furniture. He claims that he has a contract of lease from the plaintiff of the hay farm of 65 acres plus 25 acres for corn for the year 1927. This contract he contends is a verbal contract entered into about three weeks after he started working.
“Plaintiff sues -to eject him from her property because she contends that he has no contract for the year 1927; that he was to be given a contract by her for 1927 if he harvested the hay satisfactorily during the fall of 1926 and that that contract was to be in writing.
“Both parties cite Laroussinni vs. Werlein, 52 La. Ann. 424, 27 So. 89, and especially paragraphs 2 and 3 of the syllabus, plaintiff holding that the case at bar comes under paragraph 3, and defendant that it comes under paragraph 2 thereof.
“Paragraph 2 reads as follows:
“ ‘And if such a verbal contract be made, and subsequently the parties agree that the same shall be reduced to writing and be signed, and afterwards .there is a failure to reduce it to writing and to signature,— one of the parties refusing — it is still enforceable as a binding contract.’
“Paragraph 3 reads as follows:
“ ‘But if, when a verbal contract of lease is agreed, it is understood, contemplated and intended that it should be reduced to writing, that there should be a written lease, and that the written lease should take the place of and stand for what had bqen agreed on verbally in respect to the leasing of the property, then until the writing is drawn up and signed the contract is inchoate, and either party may, before signing, recede.’
“The testimony is at variance in many particulars. The court regrets that the note of evidence is not transcribed, but, owing to the urgency of the case, will have to trust to memory.
“Plaintiff says that defendant was to get a contract for 1927 if he did the work of 1926 satisfactorily. Just what is meant by satisfactorily has not been explained, but the court will presume that it means that defendant would be expected to do as well as reason would demand under existing conditionsi basing his actions upon the conduct or operations of others engaged in the same occupations around him.
“Mr. C. W. Smith attended to the farm of the plaintiff, except in matters of lease to which she personally attended. She said that she was to lease the property to defendant if he did the 1926 harvest satisfactorily. That if that happened she was to give him a contract — the usual way. What did she mean by the usual way? There is no explanation of her meaning, unless that it was to be done as before, that is, verbally. But be that as it may, she says that because he did not come up to his agreement to cut the hay satisfactorily, she did not give him a contract for 1927. We must first look into the .question as to whether or not the hay was harvested as well as could be reasonably expected. Considering the testimony on both sides in connection with the equipment furnished by plaintiff, the court is of the opinion that there is a preponderance in favor of the defendant to the effect that he did the best he could, or as well as could be reasonably expected of him, or again as well as the other hay-makers in that section.
“The point is raised that the plaintiff had to do some harvesting herself; but the court does not recall any testimony showing that Brouillette at any time gave up his job, or requested plaintiff to harvest; on the contrary, 'the court is under the impression that Smith testified that Brouillette remonstrated or found fault with him for attending to the. hay.
“Now, we come to the question of a written contract.
“As to that, the court finds that the evidence, that is, the oral evidence, about balances on both sides, and none of the witnesses are shown to be unworthy of belief. But we find several circumstances in the case.. The plaintiff says there was to be a written contract, then a contract in the usual way. Brouillette says that there was a contract — a verbal' contract entered into about three weeks after he began harvesting the hay, and in pursuance with said verbal contract he moved everything on the place; that under that contract he was to furnish all implements for 1927. We find him buying a power press paying a part of it cash and Mr. Smith securing the balance. We find Brouillette attending to a tractor and paying for repairs himself. We find John Park -under order to move off the place or remain as a yard man. We find Smith telling Rabalais, Park and Haley that the place was rented for 1927. These are the circumstances which added to the balancing testimony of Brouillette show that there is something in his contention. Otherwise, why should Brouillette be buying a -power press and Smith making good for him if 1927 was not in contemplation? Plaintiff was to furnish all implements. Why should Brouillette attend to a tractor and pay for repairs if not for the same reason? Why should John Park be ordered to move or stay as a yard man but not to farm, if the corn land had not been leased? Why should Smith tell Rapalais that he was glad that he would not have to worry about the place in 1927, that it was rented to Brouillette? Why should he also tell Park and Haley that it was rented? Again, why should Brouillette go to the trouble and expense of moving everything he had from Plaucheville to Hamburg if there was no contract? And without any objection from plaintiff? These conditions and circumstances in the court’s opinion show a preponderance of evidence in favor of the defendant.
“Plaintiff says that she liad no way of testing defendant’s ability; yet he did the same work for her in 1925 and the presumption is that she was satisfied, else Smith would not have gone after him at three different times for 1926.
“No time limit was set to harvest the hay; no conditions but that she was to furnish the implements and he the teams, labor and wire.
“I'lie court is not satisfied with plaintiff’s explanation of that written contract as against the circumstances above stated, and will rather hold that from the evidence, oral and circumstant'al, of defendant’s side, that there was a verbal contract with probably an intention of later reducing it to writing, and for that reason will apply paragraph 2 of the • syllabus of the decision quoted above as applying, and, in view of that, will render judgment in favor of defendant; restricting him, ■ however, to the land and premises as originally intended, and no more.”

After carefully reading all the pleadings and evidence and the able briefs of counsel we are convinced that the judgment of the court is fully supported by-the evidence.

Defendant, Leon Brouillette, testified, page 2:

“Q. During the month of October, 1926, you moved on Mrs. Keller’s place?
“A. Yes.
“Q. Did you have an agreement with Mrs. Keller for the lease of this property for the year 1926, or was it an agreement with Mrs. Keller for the removal of her hay that was already raised for that year?
“A. I had also rented with her the place for 1927.
“Q. For 1927?
“A. Yes; this year.
“Q. You had that?
“A. Yes, when I moved on the place.
“Q. Did you have any lease with Mrs. Keller for the year 1926?
“A. No; I did not have any lease for 1926.
“Q. Is it not a fact, as stated in Mrs. Keller’s petition, that if a lease were entered into between you and Mrs. Keller for
1927, that lease would have been reduced to writing?
“A. No; when I made the lease, we made a first verbal lease. After that I spoke about renting the property for several years on account it was expensive to buy tools and make hay; but not when I first leased. When I moved there our bargain was made for 1927.
“Q. Is it not a fact, then, that the lease for the year 1927 was to have been reduced to writing?
“A. We spoke about that, yes, but after-wards.”
Charles W. Smith, nephew of the plaintiff, testified, pages 31 and 32:
“Q. Did you ever tell any one after that, that the place was rented for next year?
“A. Yes, but I did not explain to him anything about the contract.
‘ Q. Whom did you tell that to ?
“A. I told John Parks, who was living with me at the time.
“Q. What did you tell him?
“A. That we were going to let Brouillette have the place for another year; but I did not go into particulars or state to him what our conditions or bargain was.
“Q. Did you tell Parks he had to return his house?
“A. No, I didn’t tell him that.
“Q. Did you ever tell him, after that ‘If you want to stay, I will build a house for Brouillette’s son to live in so you can stay in the house you are in, and you will do the yard work and the lot work?’
“A. There was some talk of building a house; he said he wanted to work by the day.
“Q. Did you tell him that day, T am glad I don’t have to worry about the hay for next year. I have rented the place to Brouillette and he can take care of it?’
“A. I told him I had rented the place, but I did not tell him the-particulars or the conditions.”
Thomas Rabalais testified, page 75:
“Q. During the time you worked on this tractor, did Smith tell you anything concerning the lease of the Keller place for 1927?
“A. Yes, he told me on the way going, he was glad he would not have to worry with the crop for 1927. I asked him why, and he told me Mrs. Keller had rented it to Brouillette.”
John Parks testified, pages 78 and 80:
■ “Q. Why did you leave there?
“A. Well, for two reasons; one reason —I had to borrow all my tools and make the 192.6 crop, and the second reason was that they had rented the place to Brouillette for 1927.
“Q. How do you know they had rented the place to Brouillette for 1927?
“A. He told me.
“Q. Who?
“A. Smith, and also Madam Keller.
“Q. When Mrs. Keller and Mr. Smith spoke to you and said they would need the place for Brouillette, for 1927, they did not tell yqu whether or not the bargain had been completed, not that the lease was going to be in writing or verbal?
“A. No.
“Q. Absolutely nothing to that effect, did not mention their bargain or under what conditions or anything else?
“A. No, they just told me they had rented the place to Brouillette for 1927.”

Robert Haley testified, page 88:

“Q. Did you hear any statement by Mrs. Keller or Smith relative to that property being leased for 1927?
“A. No, but Smith told me the place was rented for 1927.
“Q. When was that?
“A. That was some time about the last of October or the first of November.”

Alphonse Bordelon testified, pages 108, 109:

“It is agreed by counsel for both the plaintiff and for the defendant that if Alphonse Bordelon were present on the stand he would testify that he was present when the plaintiff and defendant entered into an alleged verbal agreement of lease for 1927, and that he would testify, in substance, with reference thereto, the same as defendant has done, defendant being his father.”

Plaintiff’s learned counsel have cited numerous well-selected authorities in support of their contention that where parties enter into a verbal contract, one with the other, and it is the intention to reduce to writing the agreement, to be signed by all concerned, the covenant or agreement cannot be said to be perfected or become exigible until so written up and signed.

But in view of the fact that we are convinced that plaintiff and defendant emercd into a completed verbal contract of lease by which plaintiff leased certain laud to the defendant and defendant accepted the lease and moved on the land before the question of a written lease came into the case, we have not found it necessary to discuss these authorities on that paint,. Neither have we found it necessary to discuss the question as to whether or not defendant properly harvested tbe hay crop of 1926, for the same reason.

We are convinced that after defendant tad moved his family on plaintiff’s property plaintiff became dissatisfied by reason of the . fact that defendant complained of Charlie Smith taking possession, of and cutting certain of the hay crop of 1926, and, in addition thereto, Charlie Smith testified, page 36:

“Q. Were there any objects or reasons why the proposed contract was not carried out except that Brouillette failed to harvest the hay in a workmanlike manner?
“A. Yes, there were other reasons, but the reason the contract was not entered was because he was not competent to carry out the 1926 understanding.
“Q. Would you mind stating the other objection?
“A. You want me to tell you why?
“Q. Yes.
“A. Then, one of the reasons was, when he spoke to Mrs. Keller she did not know he had a jack he was going to move on oúr place.
“Q. That is the whole cause of the trouble?
“A. No, he brought a crazy negro on the place.
“Q. Were there any other objections?
“A. He was not competent to handle the hay crop.”

It would serve no useful purpose to discuss in detail all of the conflicting testimony of plaintiff’s and defendant’s witnesses. The judge of the lower court, who heard the witnesses testify and observed their demeanor on the witness' stand, give credence to defendant’s contention that he entered into a completed verbal contract with plaintiff for the lease of the property for the year 1927.

In our opinion the judgment appealed from is correct, and accordingly it is affirmed.


source: Caselaw Access Project

author: WESTERFIELD, J.

license: Public Domain

text:
    No. 9936
    Orleans
    TUCKER v. CLANCY
    (Apr. 11, 1927. Opinion and Decree.)

      (Syllabus by the Court)

    1. Louisiana Digest — Clerks of Court — Par. , 3, 7.
    The clerk o.f the Twenty-eighth Judicial Court for the Parish of Jefferson is not personally liable for the salary of his assistants and employees.
    Appeal from Twenty-fourth Judicial District Court for the Parish of Jefferson. • Hon. Prentice E. Edrington, Judge.
    Action by Thomas Marion Tucker against Frank J. Clancy.
    There was judgment for plaintiff and defendant appealed.
    Judgment reversed.
    L. T. McCune, Dempsey & Monie, of New Orleans, attorneys for plaintiff, appellee.
    A. T. Higgins, of New Orleans, attorney for defendant, appellant.
   WESTERFIELD, J.

This is a suit against the clerk of the Twenty-eighth Judicial District Court for the Parish of Jefferson on behalf of a minor, claiming one month’s salary ($100.00), as typist upon the ground that the clerk employed him by the month and improperly discharged him in the early days of the month, without tender of payment of his full month’s salary.

From a judgment against him the clerk appeals. «

There was considerable testimony upon the question of whether there was cause for the dismissal of the typist which we deem unnecessary to consider.

The clerk of the District Court for the Parish of Jefferson employs his assistants and other clerical aid, with certain restrictions, but he does not pay them. His action in discharging a subordinate may, perhaps, be reviewed by mandamus, but, he is not personally liable for the compensation of his employees. He. merely acts as an agent of the State charged with certain discretion in the management of his office. See Act 142 of 1916.

The judgment appealed from is reversed and it is now ordered that plaintiff’s suit be dismissed at his cost.


text:
    No. 10,176
    Orleans
    WALLACE v. DAUENHAUER, JR.
    (Apr. 11, 1927. Opinion and Decree.)

      (Syllabus by the Court)

    1. Louisiana Digest — Pleading—Par. 62; Sheriffs and Constables — Par. 35.
    In an action against a sheriff for damages said to be due to his alleged failure to take an inventory of certain cattle seized under a writ of sequestration, when the petition, and annexed exhibits, do not disclose any injury to plaintiff as a, result of the alleged failure to take the inventory, an exception of no cause of action is properly maintained.
    Appeal from Twenty-eighth Judicial District Court, Parish of Jefferson. Hon. Prentice E. Edrington, Judge.
    Action by Charles W. Wallace against J. B. Dauenhauer, Jr.
    There was judgment for defendant and plaintiff appealed.
    Judgment affirmed.
    Marcus & Corkern, of New Orleans, attorneys for plaintiff, appellant.
    C. A. Buchler, of New Orleans, attorney for defendant, appellee.
   WESTERFIELD, J.

Plaintiff sues J. B. Dauenhauer, #heriff of Jefferson Parish, for $1655.00, alleging that, as sheriff, he improperly executed a writ of sequestration in a proceeding in which petitioner was plaintiff, asserting a lien upon “seventeen (17) cows, one (1) bull and one (1) horse, nine (9) Holstein cows, five (5) Jersey cows, one red, one black face muley, one (1) bridle line back muley.”

The sheriff’s fault is alleged to consist in that he “negligently or wilfully failed to> make an inventory of property seized by him in compliance with the said writ of sequestration.” .

“That said property, although' duly seized and taken into the possession of J. B. Dauenhauer, Jr., sheriff, was not produced by the said J. B. Dauenhauer, Jr., upon the trial of the aforementioned suit of Charles W. Wallace versus Mrs. A. J. Wetzell and A. J. Wetzell, but on the contrary, defendants, Wetzells, concealed, disposed of or put beyond the reach of plaintiff all of the-said property upon which plaintiff had a. lien and privilege; that plaintiff in said suit No. 3893 recovered judgment against, defendants, Wetzells, for the sum of $1655.00; but because of fhe acts and negligence of defendant, J. B. Dauenhauer, petitioner can find no property upon which to-execute same; that the property seized in-. said suit and so disposed ol by defendants, Wetzells, was sufficient to pay to your petitioner the full amount of his claim.”

The petition also recites:

“* * * that petitioner incorporates the proceedings in the suit of Charles W. Wallace versus Mrs. A. J. Wetzell, and A. J. Wetzell, No. 3893 of the Twenty-eighth Judicial District Court in and for the Parish of Jefferson, State of Louisiana (the sequestration suit alluded to) as part of the pleadings herein.”

To this petition exceptions of no cause of action and res judicata were filed and maintained. Plaintiff has appealed.

It will be observed that the entire proceedings in the sequestration suit are made part of the petition. Reference to those proceedings disclose the fact that the issue there presented involved the same subject matter made the basis of plaintiff’s demand here, which though, perhaps, between different parties and not properly the basis of a plea of res judicata may nevertheless, under the comprehensive scope of plaintiff’s petition, serve to support the exception of no cause of action.

It appears that when the sheriff undertook to seize the livestock upon which plaintiff had his lien only two or three head could be found for ’ the reason, as stated by the trial court, that — •

“The evidence shows that the defendant, Mrs. A. J. Wetzell, had before the institution of this suit disposed of part of said property save such cattle as died, there being left only one Jersey cow, a red bull and a horse, which is the only property actually seized under the writ herein issued.”

If the other cattle subject to plaintiff’s lien claimed in the sequestration suit were dead or disposed of before the writ was placed in the sheriff’s hands, we fail to see how the sheriff’s failure to take an inventory, injured plaintiff. Moreover, plaintiff recovered a monied judgment, for the full amount of his claim, against the Wetzells, and, it is not alleged that the judgment can not be satisfied by execution.

We think the exception of no cause of action was iproperly maintained and the judgment appealed from is therefore affirmed.


author: JONES, J.

text:
    No. 10,605
    Orleans
    BALTZ v. FRANCO
    (Apr. 21, 1927. Opinion and Decree.)

      (Syllabus by the Court)

    1. Louisiana Digest — Bills and Notes — Par. 130.
    Defense of want of consideration is not valid against a holder in .due course.
    Appeal from Civil District Court, Division “A”. Hon -.
    Action by John Baltz against Anthony Franco.
    There was judgment for plaintiff and defendant appealed.
    Judgment affirmed.
    M. C. Scharff, of New Orleans, attorney for plaintiff, appellee.
    Walter G. Wedig, of New Orleans, attorney for defendant, appellant.
   JONES, J.

This is a suit for six hundred eighty-three and 76-100 ($683.76) dollars, the amount of eleven promissory notes with eight per cent interest from respective maturities plus ten iper cent attorney fees.

Defense is want of consideration.

There was judgment for plaintiff and defendant has appealed.

The evidence shows that the plaintiff, an innocent third party, acquired before maturity the note (drawn by the maker and by him endorsed) from the original holder as collateral security for another debt.

Under the circumstances the defense of want of consideration has no merit as plaintiff was a hqlder in due course.

See Act 64 of 1904, Sec. 28.

The judgment is therefore affirmed.


text:
    No. 10,435
    Orleans
    AGNELLY v. GOODHEIT
    (Mar. 14, 1927. Opinion and Decree.)
    (Mar. 28, 1927. Rehearing Refused.)
    (Apr. 26, 1927. Writs of Certiorari and Review Denied by Supreme Court.)

      (Syllabus by the Court)

    1. Louisiana Digest — Prescription — Par. 190, 195.
    Suit against and service upon Edward Parelli will not interrupt prescription against Manuel Parelli, notwithstanding the fact that Manuel is the father of Edward Parelli and resides in the same house with him, and the further fact that Manuel is the father of Albino Parelli for whose tort the suit is instituted against Edward Parelli erroneously alleged to be the father of Albino Parelli.
    Appeal from Civil District Court, Division “B”. Hon. F. D. King, Judge.
    Action by Ellen Agnelly against Camille Goodheit.
    There was judgment for defendant and plaintiff appealed.
    Judgment affirmed.
    Habans & Coleman, of New Orleans, attorneys for plaintiff, appellant.
    H. M. Wilkinson, A. J. Hollander, John B. Fisher, of New Orleans, attorneys for defendant, appellee.
   OPINION

WESTERFIELD, J.

Plaintiff sued • Camille Goodheit and Edward Parelli for damages for .physical injuries, alleging that she was injured as a result of a collision between a Ford coupe, driven by Camille Goodheit, and a truck driven by Albino Parelli, minor son of Edward M. Parelli, which accident she alleges occurred November 2, 1924.

Edward Parelli answered, denying generally the allegations of plaintiff’s petition but specifically denying that he was the father of Albino Parelli. The suit was filed, October 22, ,1925. Parelli answered November 5, 1925. A supplemental petition was filed by plaintiff December 10, 1925, in which it was alleged “that through a clerical error she (petitioner) has shown the name of the father of Albino Parelli to be Edward M. Parelli where as it should be Manuel T. Parelli. No additional citation was asked for, but judgment against Manuel T. Parelli as originally prayed for was asked in the supplemental petition. However, Manuel Parelli was cited and served with a copy of the supplemental petition on December 11, 1925, or more than a year after the date of the alleged accident.

Manuel Parelli filed an exception of prescription -which was maintained and the suit dismissed as against Parelli. Plaintiff has appealed.

On the trial of the exception it was admitted that Edward Parelli was a son of Manuel, and resided in the same house with his father.

It is contended that the service of citation in the name of Edward, being domiciliary, was sufficient to interrupt prescription as to Manuel, because both parties lived in the same house a,nd the service might well be regarded as a service upon Manuel, the father, as upon Edward, the son. Or in any event, it was sufficient service to interrupt prescription, there being an error in the name of Manuel Parelli, thdugh, it is evident, that he was the person intended to be sued. In support of this' contention We are reminded that there is a distinction between process sufficient for the maintenance of judicial proceedings and judgment against a party and process relied on merely to interrupt prescription. Babin vs. Lyons Lumber Co., Ltd., 132 La. 876, 61 So. 855.

In the case of Louis Broussard vs. Hile Rosenblum, No. 10,062 Orl. App. (not yet reported) we held that “suit against, with citation to and service uipon a minor will not interrupt the prescription of an action against his father, though father and son reside together and it be shown that the father had personal knowledge of such suit.”

In that case we reviewed a number of pertinent authorities, to which we can add nothing by further discussion here. The present case can not be distinguished in principle, and, therefore, the Broussard case is controlling. If there was simply an error in the name of defendant a different case would be presented, but in .the Broussard case, as in this ■ case, the defendant named in the petition was served. In both eases it proved to be the son of the party eventually sought to be held liable.

However erroneous the citation may be in giving the name of defendant if it be sufficient to give judicial notice of the suit it will suffice to interrupt prescription. Actual notice will not do. It must be judicial. Service on the son, cited in his ©roper name, can not be considered as judicial notice to the father. It is quite likely that the son exhibited the citation and accompanying petition to his father who thereby became fully advised of the suit and of the fact that he and not his son was the party intended to be sued. Even though we indulge a presumption to that effect, indeed, if it were proven by this record to be the fact, it would not save the situation for it would amount to nothing more than proof that the father was aware of the claim made against him. If there were no such person as Edward Parelli or if no one by that name resided in the house with Manuel a different case would be presented. Perhaps the service of citation in the name of Edward Parelli at the home of Manuel Parelli, would suffice to interrupt prescription in that case. But the service in this case was in the name of Edward, and served at Edward’s domicile, Manuel Parelli has had no judicial notice. The plea of prescription was, therefore, properly maintained and the judgment a®pealed from is affirmed.


text:
    No. 9674
    Orleans
    PUBLIC BELT RAILROAD COMMISSION OF N. O. v. NEW ORLEANS COAL & BISSO TOWBOAT CO.
    (May 9, 1927. Opinion and Decree.)

      (Syllabus by the Court)

    1. Louisiana Digest — Prescription—Par. 78; Carriers — Par. 131.
    A claim against a consignee of several cars of coal for damages, caused by the deliberate cutting of the sides of cars containing the coal is only remotely related to the contract of carriage, and is based, not upon such contract, but upon a tort and the action to recover the damages is one, ex delicto, and prescribed by one year.
    Appeal from Civil District Court, Division “B”. Hon. M. Boatner, Judge.
    Action by Public Belt Railroad Commission of the City of New Orleans against New Orleans and Bisso Towboat Company.
    There was judgment for defendant and plaintiff appealed.
    Judgment affirmed.
    Wm. L. Fayssoux, of New Orleans, attorney for plaintiff, appellant.
    Nat. W. Bond, of New Orleans, attorney for defendant, appellee.
   WESTERFIELD, J.

This is an action by the Public Belt Railroad against a consignee of .several cars of coal, claiming damages in the sum of $1332.39. The cause of action is thus stated by counsel for plaintiff:

“The defendant and appellee, the New Orleans Coal and Bisso Towboat Company, had shipped to them from outside of the State of Louisiana and delivered to them by the plaintiff and appellant,- the City of New Orleans, by and through the Public Belt Railroad Commission for the City of New Orleans, on different dates during the year of 1920 and 1921, a number of carloads of coal to be unloaded by defendant and appellee, which cars loaded were received by. the Public Belt Railroad from its interchange and conveyed loaded to the switch of the New Orleans Coal and Bisso Towboat Company in this city, where said cars were to be unloaded and then thereafter said cars were picked up by plaintiff and appellant and returned to the respec1 ive interchange for delivery, as empties, back to the connecting carrier from whom said cars loaded were received by plaintiff and appellant.
“That, while said cars were on the switch of the defendant and appellee to be unloaded and being unloaded, the sides and bottoms of said cars were cut and damaged so as to make repairs necessary thereto before said cars would be delivered to the connecting line or carrier from whom they were received or would be accepted by the connecting line or carrier from whom they were received; that said cars were loaded when they were delivered to the interchange of plaintiff and appellant, and were then inspected and found to be in good order and condition and that the sides and bottoms thereof were not cut or damaged.”

Defendant, averring that plaintiff’s action was one ex delicto pleaded the prescription of one year which was maintained as to nearly all of plaintiff’s claim, as to the remainder, $76.50, plaintiff was non-suited. Plaintiff has appealed.

It is conceded that plaintiff’s action is ex delicto, and not ex contractu, the judgment appealed from is correct.

For the purpose of discussion of the plea of prescription we will assume that the cars were damaged by defendant’s agents or employees in the manner stated in the petition, without pausing to consider the extensive testimony in the record for the case was tried on- the merits. The cars, therefore, were ciit and damaged by defendant’s agents while on defendant’s switch, being unloaded.

It is argued that the Public Belt is a common carrier; that its service in connection with the delivery -of the coal was in interstate commerce and that under the Carmack Amendment an implied contract exists between the consignee and all carriers whether initial, connecting or ultimate.

It may well be conceded that the plaintiff is a common carrier, and, was engaged in interstate commerce (the shipper of the coal resided in Kentucky, where the shipment originated) in delivering the coal to defendant.

The alleged implied contract is quite another matter. We are referred to the following :

“The consignee, in accepting and receiving the goods he made himself a |party to the contract between the consignor and the plaintiff (carrier) or entered into an original contract to pay, which took the place of the right of the plaintiff to retain the property until the charges were paid.” Corpus Juris, vol. 10, p. 446.
“An action versus a carrier for injury to goods received under a contract of shipment is an action ex contractu and not subject to the Statutes of Limitation of one year.” So. Ry. Co. vs. Rosenberg, 30 So. 32.

Whatever may be the effect of the cases cited, we do not believe them applicable here. Perhaps a consignee is a party to a contract of carriage and an action against a carrier for damage to a shipment by a consignee may be brought, ex contractu, against either the initial carrier, under the Carmack Amendment, or against a connecting carrier, alleging negligence. But we are not dealing with a situation of that sort. Here there is no claim by the consignee but by the ultimate carrier agkiinst the consignee. The claim is not for freight or demurrage, or for anything directly connected with the contract of afreightment, in fact, very remotely connected with such contract, a claim for damages to property for wantonly cutting the sides of certain railroad cars. Without discussing the question of whether the plaintiff can maintain the suit on behalf of the owner of the cars for the repairs of which it acknowledged responsibility, we are of opinion that defendant, if guilty of the acts charged upon which its alleged responsibility is based, committed a delict, or tort, under Art. 2315 R. C. C., and that this action is barred by the prescription of one year.

The judgment appealed from is affirmed.


author: CLAIBORNE, J.

text:
    No. 9454
    Orleans
    WESTERN BAG & BURLAP CO v. TRANCHINA
    (Feb. 28, 1927. Opinion and Decree.)
    (Mar. 28, 1927. Rehearing Refused.)
    (May 23, 1927. Writs of Certiorari and Review Denied by Supreme Court.)

      (Syllabus by the Court)

    1. Louisiana Digest — Sales—Par. 123, 134.
    The defendant in New Orleans signed an . order to plaintiff in Chicago, through its salesman, for 5000 bags; the salesman inserted in the original order an additional 10,000 bags; the order, as altered, was accepted by the plaintiff. Held: Defendant’s repudiation of the order for 10,000 bags did not release him from his obligation to accept and pay for 5000 bags to him.
    Appeal from Civil District Court, Division "B”. Hon. Porter Parker, Judge.
    Action by Western Bag & Burlap Company against Felice Tranchina.
    There was judgment for plaintiff and defendant appealed.
    Judgment affirmed.
    Sol Weiss, Wiener & Netter, Louis H. Yarrut, of New Orleans, attorneys for plaintiff, appellee.
    Dart, Kernan & Dart, of New Orleans, attorneys for defendant, appellant.
    WESTERFIELD, J., dissents.
   OPINION

CLAIBORNE, J.

This is a suit for damages for failure to accept delivery of goods sold.

The plaintiff alleged that it is domiciled in Chicago; that the defendant ordered from plaintiff 5000 bags at a price of $73.50 per thousand to be shipped September 1, 1920, on terms of payment at sight draft against bill of lading f.o.b. Chicago, and otherwise on the terms mentioned in the order annexed to the petition.

That the said order was accepted and the shipment of the 5000 bag lot duly made; that defendant refused to accept said shipment on its arrival in New Orleans, or to take up the draft with bill of lading attached.

That thereupon, after notice to defendant, plaintiff, in open market, sold said rejected shipment and derived therefrom, after deduction of freight, storage and other charges, $42.39 making a loss of $325.11.

That plaintiff also sold to the defendant .ten thousand bags at the price of $75 per thousand, to be shipped on September 15, 1920, on the same terms as the shipment of 5000 bags.

That the defendant, prior to the shipment of the 10,000 bag lot, repudiated the order therefor and instructed plaintiff not to ship them.

That at the time of said repudiation the market price of said bags was $40 per thousand, and that defendant owes plaintiff the difference in price of $35 per thousand or $350.

That said two items make the sum of $675.11, which plaintiff claims from defendant.

So much of the order applicable to this case, is in the following words:

“Sales Contract “Western Bag & Burlap Co.
“Chicago, 111.
“No. 1051 August 5th, 1920.
“Sold to D. Tranchina and Son, City of New Orleans, State of Louisiana. Route I. C.
“Time of shipment, Sep. 1 to 15.
“Terms: Draft pgainst bill of lading
f.o.b. Chicago. Should there be more than one shipment on the contract, each shipment shall constitute a separate contract and shall be covered by a separate invoice. No verbal statement or trade custom shall alter this contract.
Quantity, size and grade, price per M. “Sept. 1, 5000 No. 1 S. H. 19x36 — 8 oz. sugars $73.50.
“Sept. 15th — 10,000 No. 1 S. H. 19x36 reversed $75.00.
“This 'contract to be binding on seller must be confirmed by the home office and cannot be cancelled by buyer for any reason whatsoever.”
(Signed) “Western Bag and Burlap Co.
“By D. R. Goodman.,
“Accepted: D. Tranchina and Son,
“Per Felice Tranchina.”

Defendant denied that he had ordered the 5000 bags as alleged, except as hereafter admitted; he denied having ordered 10,000 bags; he denied that the order for the 5000 bags was accepted; he admitted having refused to accept the consignment of 5000 bags “because there was no contract existing between him and plaintiff.”

Further answering he alleged:

“That on the 5th day of August, 1920, respondent agreed to purchase from plaintiff 5000 bags designated as No. 1 S. H. 19x36, 8 oz. sugars at a price of $73.50 per thousand, upon the terms of 30 days’ credit amd U’e shipment to be made from Chicago, Illinois, during the latter part of September, 1920; that plaintiff, through Mr’. D. R. Goodman, agreed to the terms aforesaid and executed a sales contract to correspond bearing the number 1051; that respondent signed said sales contract on the date aforesaid without reading the same; that in writing up said contract the said D. R. Goodman inserted time of shipment as September 1st, f.o.b. Chicago, on terms; draft against bill of lading; respondent further denies having signed the order herein sued on.”

On November 23, 1923, there was judgment for plaintiff for $325.11; defendant has appealed.

The suit was filed in the District Court on May 10, 1921.

On the trial of the case counsel for plaintiff entered a waiver of any claim upon the alleged order for 10,000 bags.

An examination of the record will show that the defense set uip in defendant’s answer is different from that made on the trial. We must bear in mind that the defendant was sued upon two separate and distinct orders; one for 5000 bags and another for 10,000 bags. In his answer he admits having given the order for 5000 bags. His reason for refusing to pay for the same, as contained in his answer, are two-fold; first, that he bought “upon the terms, of thirty days’ credit”; and second, that the shipment was to be made “during the latter part of September, 1920.”

The answer to the first objection is that the sales contract contained the following words: “Time of shipment September 1st.” There is no allegation nor charge that these words were not upon the contract at the time defendant signed it. He could neither allege nor charge that, for the reason that he himself produced and offered in evidence upon the trial of the case a carbon copy of the sales contract left in his hands by Goodman, and upon that copy, on yellow paper, are written, in conspicuous blue pencil, the very same words. “September 1st.”

The defense that he bought upon the terms of thirty days’ credit is equally weak. Upon the original sales contract, and upon the yellow copy produced and offered in evidence by defendant upon the trial of the case are printed in large roman type, different from the other type, the following words, “Terms: Draft against bill of lading;” and upon the face of the contract are printed the following words; “No verbal statement or trade custom shall alter this contract.”

To justify the pleading the defendant proceeded in his answer to state: “That respondent signed said sales contract on the date aforesaid without reading the same.”

The defense was without merit in law. 9 Cyc. 388; 35 Cyc. 63; and as a fact, is very weak, especially when he testified that he used 150,000 bags “in a season”. He also charged that Goodman had inserted: “Terms: Draft against bill of lading,” when we have seen that the words were printed in raised letters.

Admitting that the shipment was to have been made in the latter part of September, 1920, the bags were not sold at his risk until January, 1921, giving him three months to comply with the order.

But on the trial of the case the defense was shifted. The defendant was asked.

“Q. Now Mr. Tranchina, I wish you would tell me just why you refused to accept those bags?
“A. I refused to accept them because I think he had violated his contract. I think that when Í signed a contract for 5000 bags, I would take the 5000, but when he put on 10,000 more on my contract, I don’t think I am liable. * * * The reason I didn’t want to take them is because I didn’t know if I would be liable for them after-wards. .The market was all right and everything, the bags were worth the price, but I wouldn’t take the 5000 bags and then have them to force the 10,000 on me, which I didn’t want.
“Q. Didn’t the Western Bag and Burlap Co., on November 26, 1920, after this correspondence that you had with them, where’n you claimed you didn’t give the order, didn’t they agree that if you would accept the 5000 bags and pay their clraft that they would cancel the additional 10,000 order?
“A. Yes.”

The offer to cancel above referred to as a letter by plaintiff to defendant dated November 19, 1920, in the following words:

“Our Mr. Goodman emphatically states that he has sold you the additional 10.000 by telephone. In order to straighten this matter out, we will cancel the 10,000 bags that have not been shipped if you will at’ once pay the draft covering the 5000 bags that have been shipped and that are now held in New Orleans.”

This offer is again repeated in a letter by plaintiff to defendant dated November 26, 1920, in these words:

“If you accept this shipment of 5000 bags we will cancel the 10,000 still due you.”

There was no legal excuse on the part of the defendant to refuse to accept the 5000 bags. In a letter dated October 6, 1920, the defendant writes to plaintiff:

“So far as the order for the additional 10,000 is concerned you certainly must have confused us with somebody else as we only gave your representative one order and that was your No. 1051 for 5000 bags and this is the only order you have ever confirmed to us. When the railroad advise us shipment is here we will inspect it and if the bags are all right we will pay the draft but not before.” ■

On October 18, 1920, the defendant again writes to plaintiff:

“When the 5000 bags arrive we will examine them as stated above and will pay for them if we find the shipment satisfactory.”

There is no evidence that the defendant ever attempted to examine the bags. But there is evidence that the bags were in good condition.

Benjamin F. Feitel, a dealer in bags, to whom they' were sold for account of defendant, after he had refused to accept them, testifies:

“Q. Did you examine the bags?
“A. Personally myself.
“Q. What can you say as to their being 19x36 second-hand bags?
“A. They were; we made no reduction for any bad bags.
“Q. They are all good bags as sold?
“A. Yes, sir.”

It was not until November 23, 1920, that defendant changed his mind and resolved to reject the shipment of 5000 bags. On that day he writes to plaintiff:

"Replying to your various letters beg to say it is not our intention to accept the shipment you claim to have made us for as previously advised it was hot made in accordance with our understanding, and then, too, you claimed to have an order for more tiran we originally placed order for. Under the circumstances will advise your disposing of this shipment to some of your other buyers in New Orleans.”

In conformity with this letter the plaintiff sold the 5000 bags to Feitel.

The orders 5000 and 10,000 bags were separate and distinct, and were so treated. C'ne was given on August 5th in writing and the other was alleged to have been given some time afterwards by telephone. They were so treated by plaintiff. The one for 5000 bags was accepted by letter August 10th and by shipment. 1 Elliott on Contracts, S. 57. The one for 10,000 was held up until the 5000 bags were paid for. The sales contract contained the following clause:

“Should there be more than one shipment on this contract, each shipment shall constitute a separate contract and shall be covered by a separate invoice.”

If defendant had not ordered the 10,000 bags and if he had not accepted them he could not have been made to pay for them. There is no argument to prove that the payment by defendant of the draft of $325.11 as the price of the 5000 bags would have created on his part an obligation to accept and pay for the 10,000 bags. But if there was, the plaintiff’s reiterated offer to call off the 10,000-bag order if he would pay the draft for the 5000 bags would have released him at once from such obligation by payment of the draft.

We see no merit in the defense.

The amount of damages is established by the testimony of Feitel.

Defendant’s offer to purchase 5000 bags was increased by plaintiff’s salesman to 15,000 bags. Plaintiff <jid not see and did not know of the 5000-bag .offer but confirmed the altered offer which defendant knew nothing of. There was therefore no contract and no obligation to take the 5000 bags.

I respectfully dissent.

(Signed) WM. W. WESTERFIELD,

Judge.


author: REYNOLDS, J.

text:
    No. 2154
    Second Circuit
    DILLARD v. HART
    (April 8, 1927. Opinion and Decree.)

      (Syllabus by the Court)

    1. Louisiana Digest — Injunction—Par. 2, 13, 19, 22.
    The injunction must be granted, and directed against the defendant, himself, in the following cases:
    * * *
    When the defendant disturbs the plaintiff in the actual and real possession which such plaintiff has had for more than one year, either of a real estate or of a real right, of which he claims either the ownership, the possession or the enjoyment.
    Code of Practice, Article 298, Sec. 5.
    2. Louisiana Digest — Possession—Par. 1, 7.
    Public order and the highest interest of society demand that no violence shall be done to one in peaceable possession of property.
    Nicol vs. 111. Cent. R. R. Co., 44 La. Ann. 816, 11 South. 34.
    Appeal from the Twelfth Judicial District Court of Louisiana, Parish of De Soto.
    Hon. J. H. Boone, Judge.

      Action by Kitty - Dillard, et' al., against W. H. Hart.
    There was judgment for plaintiffs and defendant appealed.
    Judgment affirmed.
    Parsons & Colvin, of Mansfield, attorneys for plaintiffs, appellees.
    W. M. Pollock, of Mansfield, attorney for defendant, appellant.
   STATEMENT OP THE CASE

REYNOLDS, J.

This is a suit by Mrs. Kitty Dillard in her own right and as natural tutrix of her minor child, Elzie Dillard, issue of her marriage with Jules Dillard, deceased, against W. H. Hart to restrain him from interfering with her possession, individually and as such tutrix, of the NE*4 of Section 16, Township 14 North, Range 12 West, De Soto Parish, Louisiana, or the crops growing thereon, alleging that she had been in actual physical possession of -the land for more than twenty years and that W. H. Hart had within the twelve months prior to the filing of the suit without right, title or interest with force and violence entered on the land and interfered with her possession thereof and prevented her from' gathering the crops growing thereon.

A temporary restraining order was granted.

Defendant moved to dissolve -the injunction on the ground that he had been in actual physical possession of the land for a year and a day prior to the filing of the suit, and on the further ground that plaintiff had not shown legal right to the use, occupation or enjoyment of the land. This motion was referred to the merits.

Whereupon defendant answered, alleging that plaintiff had been out of possession of the land -for a year and a day prior to the 'filing of the suit; that the land was the property of the State of Louisiana and was vacant; that on or about September 15, 1922, the land was vacant and he took possession thereof and had been in actual peaceable possession of it ever since, and that plaintiff is seeking -by means of a writ of injunction to gain possession of property in his peaceable possession.

He prayed that there be judgment dissolving the injunction and dismissing plaintiff’s suit, and for $50.00 damages for attorney’s fees, and $100.00 statutory damages.

On the application of the plaintiff a rule was issued on defendant on September 29, 1923, to show cause on October 8, 1923, why he should not be punished as for a contempt of court in having violated the temporary restraining order.

The rule to show cause and motion to dissolve were heard along with the merits and judgment was rendered in favor of the plaintiff perpetually enjoining defendant from interfering with plaintiff’s possession and enjoyment of the land described in the petition and recalling the rule to show cause why he should not be punished as for contempt of court.

Defendant appealed.

OPINION

. The evidence -shows that plaintiff was and had been in actual and peaceable possession of the land described in the petition for about twenty years and that in the fall of 1923 defendant disturbed that possession.

The plaintiff, Kitty Dillard, testified, page 4: ...

“Q. Did he ever make any éxcuse to you why he did not pay you for-the -house?.
“A. He said Mr. Owens put him in the house and I would have to get the rent out of Mr. Owens.
“Q. Did Mr. Hart give you any disturbance this year about gathering your crop made by the tenant Benjamin?
“A. Yes, -sir; Mr. Hart got his gun and said he was going to have his fourth or die and go to hell. That he had the law in his hands, and that was his gun, and he would die and go to hell before anybody would get any cotton before he got his fourth.”

This was a wrongful and violent interference by defendant with plaintiff’s possession. The law jealously protects the possessor of immovable property against unlawful disturbance of that possession. Public order and the highest interest of society demand that no violence shall be done to one in peaceable possession of property. Even as against the lawful owner, the possessor of immovable property must be protected against the unlawful disturbance of his possession, where the lawful owner has been out of possession for a year.

Nicol vs. Ill. Cent. R. R. Co., 44 Ann. 816, 11 South. 34.

Defendant was without the slightest color of title to the property and his only claim to the right of possession was that of a tenant. His acts of ownership were without the slightest legal justification, and the issuance of the preliminary injunction and the judgment perpetuating it were correct.

Plaintiff prayed for damages against defendant but the District Court did not allow any. She did not appeal- from that part of the judgment nor has she answered the appeal. This court is, therefore, without authority to amend the judgment in this respect. . ‘

For the reasons assigned it is therefore ordered, adjudged and decreed that the judgment appealed from he affirmed.


text:
    No. 2264
    Second Circuit
    HOME LAND CO. v. BRYANT
    (April 8, 1927. Opinion and Decree.)

      (Syllabus by the Court)

    1. Louisiana Digest — Prescription—Par. 69.
    , Where immovable property is validly adjudicated to the state for taxes, and the sale is redeemed by the tax debtor after expiration of the redemptive period, prescription acquirendi causa is interrupted.
    Quaker R. Co. vs. Maier-Watt R. Co., 134 La. 1030, 64 South. 897. Armstrong vs. Morrill, 14 Wallace (U. S.) 120.
    Appeal from the First Judicial District Court of Louisiana, Parish of Caddo. Hon. T. F. Bell, Judge.
    Action by Home Land Company against Anne Bryant, et al.
    There was judgment for plaintiffs and defendant appealed.
    Judgment affirmed.
    R. G. Chandler, of Shreveport, attorney for plaintiffs, appellees.
    John B. Files, of Shreveport, attorney for defendant, appellant.
   STATEMENT OF THE CASE

REYNOLDS, J.

This was an action of slander of title converted into a petitory action. There was judgment in favor of the plaintiffs in the converted action and the defendant in that action appealed.

OPINION

This action involves the title to' and right to the possession of a piece of ground situated in Caddo Parish, Louisiana, described as one acre in the extreme northeast corner of the Kane Agricultural and Industrial School Subdivision lying in Section 19, Township 17 North, Range 13 West.

The facts are few and undisputed and only a question of law needs to be decided'.

Both appellant and appellees deraign title from a common source, namely, one William Jamison.

But appellant, in addition, pleads the prescription of ten years.

The history of the title is as follows:

On October 31, 1901, Book 25, Page 786, Caddo Parish records, William Jamison sold to James Bryant all of lot 21 of the Kane Agricultural and Industrial subdivision.

In 1904, Book 35, Page 677, of said records, James Bryant retroceded to William Jamison all of said lot 21, except one acre in the extreme northeastern corner thereof.

Appellees are the widow and sole heirs of James Bryant and claim title to the one acre so reserved as such widow and heirs.

On March 31, 1910, Book 63, Page 252, of said records, William Jamison sold to J. B. Atkins all of said lot 21.

On April 6, 1910, Book 49, Page 44, J. B. Atkins sold to Ed. Robertson all of said lot 21.

On May 16, 1916, Book 108, Page 420, the sheriff and ex-officio collector of taxes for the Parish of Caddo adjudicated to the state for unpaid taxes of the year 1915 assessed to James Bryant one acre of ground in the northeast corner of lot 21 of the Kane Agricultural and Industrial subdivision, the land in controversy.

On June 6, 1922, Book 170, Page 424, the State of Louisiana executed to James Bryant a certificate of redemption of the one acre of ground from the tax sale.

On January 18, 1923, Ed Robertson sold to Home Land Company, by act recorded, Book 175, Page 725, all of lot 21.

Appellant contends that the evidence shows that it and its authors were in actual possession of the property in controversy openly and in good faith and under title tran’slative of property for more than ten years prior to the institution of this suit, and that it has title to the one acre in question by prescription, if not by deed.

The district judge decided that William Jamison, not having title to the property in controversy, conveyed none by his deed to J. B. Atkins, and that, this being so, neither his vendee, Ed Robertson, nor the latter’s, the appellant in this suit, acquired any title to the property by their respective purchases; and- that quo ad appellant's plea of prescription, it was not necessary to go into the question as to the sufficiency of the proof as to that, for the reason that inasmuch as if it was ever initiated it had been interrupted by the sale of the property to the state for taxes.

Appellant insists that the sale for taxes only passed in inchoate .title, that the redemption restored the .status quo ante as completely as though no sale had taken place; that its author was in actual possession of the property during the time the title was in the,state; and that, therefore, the possession was unbroken and prescription uninterrupted.

We cannot assent to this view, for the reason that it is contrary to the well-settled principle that prescription does not run against the state.

Quaker Realty Co. vs. Maier-Watt Realty Co., 134 La. 1030, 64 South. 897.

Appellant cites us to the case of Handlin vs. Lumber Co., 47 La. Ann. 406, 16 South. 955, and other cases, as sustaining its contention, but we do not think any of them go as far as claimed by him. The most can be claimed for them is that they hold that a sale for taxes does not ipso facto divest possession. .This is altogether a different thing from the contention that such a sale does not, after expiration of the redemptive period, vest title absolutely in the state.

In the case of Quaker Realty Co. vs. Maier-Watt Realty Co., supra, the court, dealing with a somewhat similar question to that involved here, said:

“The plea of prescription of ten years is attempted to be sustained by showing that defendant and its author in title have been in possession of the property for more than ten years prior to the filing of this suit, May 9, 1912. But the State of Louisiana owned the property from the year 1885 until it sold the same through the auditor of public accounts, representing the state, September 1, 1909, under Act No. 80 of 1888, as amended by Act No. 126 of 1896. Prescription does not run against the state. Prescription was suspended during the time that the state was the oioner of the property; and ten years have not elapsed since the state parted with title in favor of plaintiff and - its authors. The plea of prescription is overruled.”

(Italics ours.)

The identical point at issue in this case • was presented and decided in the case of Armstrong vs. Morrill, 14 Wallace (U. S.) 120, the syllabus of which is as follows:

“Where the lands of A. in the adverse possession of B. were forfeited to the State of Virginia under its act of 27th February, 1835, declaring forfeitures for non-payment of taxes, but were allowed by a subsequent and private act to be redeemed by the original owner, held that the forfeiture to the state broke, in point of law, the continuity of the adverse possession (though it might have been, in fact, continuous) having been, in law, thus broken, was neither restored upon the redemption so as to' be continuous in law, nor was it so affected as that the persons holding adversely could tack the adverse possession prior -to the forfeiture to the adverse possession subsequent to the redemption and so make out a term of adverse possession which a statute required in order to give title.”

The district judge held that appellant had no title either by .deed or by prescription to the one acre in the extreme northeast corner of lot 21 of the Kane Agricultural and Industrial Subdivision lying in Section 19, Township 17 North, Range 13 West, and that the title thereto was in appellees as the widow and heirs of James Bryant under his purchase from William Jamison, tho common source of title; and in this conclusion we concur.

For the reasons assigned it is therefore ordered, adjudged and decreed that the judgment appealed from be affirmed.


text:
    No. 2163
    Second Circuit
    ARMISTEAD v. HANEY
    (April 8, 1927. Opinion and Decree.)
    (May 13, 1927. Rehearing Refused.)

      (Syllabus by the Court)

    1. Louisiana Digest — Action—Par. 53; Pleading — Par. 60.
    A suit brought to enforce an obligation not yet matured will be dismissed without prejudice to the plaintiff to renew his action when the obligation matures.
    Code of Practice, Article 158.
    Egan vs. Push,47 La. Ann. 742, 539.
    Hewitt vs. Williams, 47 La. Ann. 742, 17 South. 269.
    State Nat. Bk. vs. N. O. Brewing Assn., 49 La. Ann. 934, 22 South. 48.
    Sondheimer Co. vs. Richland Lumber Co., 121 La. 786, 46 South. 806.
    Appeal from the Eleventh Judicial District Court of Louisiana, Parish of Red River.
    Action by W. R. Armistead against J. S. Haney.
    There was judgment for defendant and plaintiff appealed.
    Judgment affirmed.
    John P. Stephens, of Coushatta, attorney for plaintiff, appellant.
    Nettles & Bethard, of Coushatta, attorneys for defendant, appellee.
   STATEMENT OP THE CASE ’

REYNOLDS, J.

This is a suit aided by provisional seizure filed August 30, 1923, to recover judgment for $1286.02, balance claimed to be owing on the price of a sawmill sold by plaintiffs to defendant and money advanced by plaintiff to defendant to enable him to operate the mill.

Plaintiff conditionally sold defendant a sawmill for $2975.00, to be paid as follows: Out of the price of all lumber manufactured and sold by defendant plaintiff was to receive, when collected, as a payment on the debt, $5.00 for each thousand feet, board measure. The debt was not to bear interest.

Subsequently additional advance was made by plaintiff to defendant to be paid for in like manner. As security for the payment- of the latter ..advances defendant pledged to plaintiff a mortgage not.e on real estate for the amount of $1000.00.

The total debits amounted to $2645.43 and the credits' to $1359.41, leaving a balance owing of $1286.02.

This suit was filed before the maturity of the debt.

Before answering defendant moved that plaintiff’s suit be dismissed as premature. This motion was referred to the merits. Reserving his rights under this motion defendant answered, denying liability, and assuming the character of plaintiff in re-convention defendant prayed judgment against plaintiff for $1915.34, of which amount $750.00 is for damages alleged fo have been sustained by the illegal issuance of the writ of provisional seizure and $1165.34 moneys alleged to have been paid by him to plaintiff in error.

On these issues the case was tried and there was judgment dismissing plaintiff’s suit as premature and dissolving the writ of provisional seizure.

The plaintiff was taxed with the costs.

The plaintiff appealed.

OPINION

Plaintiff and defendant entered into a contract reading as follows:

“State of Louisiana,
“Parish of Caddo.
“Know all men by these presents that for the consideration and upon the terms and conditions hereinafter set forth, W. R. Armistead, of Red River Parish, Louisiana, has this day and does by these presents agree and bind himself, his heirs and legal representatives, to sell, transfer, convey and deliver with good title, clear of encumbrances, unto J. S. Haney, of Caddo Parish, his heirs or assigns, the entire sawmill and plant now known as the Armistead mill and situated in Red River Parish, about four miles approximately southeast of East Point, complete, as it stands today, with the exception of the blacksmith shop located on the premises, and not including any wagons or teams.
“The consideration of this sale is to be the price and sum of twenty-nine hundred and seventy-five ($2975.00) dollars, payable as hereinafter set forth, and without interest.
“The said Haney is to take possession of said property, inclulding the land on which it is located, immediately, and proceed to operate the same continuously up to its capacity, except for strikes, accidents, breakdowns, and unavoidable causes, and every invoice or draft for lumber sold by him from said mill shall be by him endorsed over to the Bank of Coushatta, and as soon as collected the said bank is to deduct from the proceeds five dollars on each one thousand feet B. M. of the lumber covered by such invoice or draft, and deposit said sum to the credit of said Armistead, all of which amounts shall go as credits on the purchase price above stated, but without interest. This arrangement shall continue in effect and be carried out by the parties until said amounts so credited to the said Armistead in said bank shall equal the said purchase price, and then the said Armistead, his heirs or legal representatives, shall, upon demand, execute and deliver to the said Haney, his heirs or assigns, proper act of conveyance, selling, transferring and delivering the said sawmill by good title, clear of incumbrances, in consideration of the said price so paid as above stated.
“It is further agreed that the said Haney, his heirs or assigns, shall have the use, free of rent, for ten years from date of the land upon which the said sawmill and accessories are located.
“It is further agreed that the said Haney will saw and dress for said Armistead not exceeding 30,000 feet, B. M., of lumber for a house pattern, at cost, including timber, logging and manufacturing.
“In case the said Haney shall fail or refuse to perform the obligations assumed by him in this contract, he shall pay and forfeit to the said Armistead the sum of two hundred dollars ($200.00) as liquidated damages.
“Thus done and signed before the undersigned notary and two competent witnesses, February 24, A. D. 1923.
“Witnesses:
(Signed) “JAMES L. DORMAN.
(Signed) “BILL PETERS.
(Signed) “W. R. ARMISTEAD.
(Signed) “J. S. HANEY.
(Signed) “R. G. CHANDLER,
“Notary Public.”

Subsequently they entered into another contract in words and figures as follows:

“State of Louisiana,
“Parish of Caddo.
“Be it remembered that J. S. Haney, married to Miss Mammie Harper, is operating a sawmill in Red River Parish, Louisiana, and under contracts heretofore made with W. R. Armistead, a resident of Red River Parish, Louisiana, he is obligated to pay him sums aggregating $8.00 per 1000 feet for all lumber cut, sawed ' and sold, as will appear by said contracts which are in no wise modified, changed or altered by this agreement, but remain in full force and virtue.
“•However, it is necessary for the said Haney to obtain advances from the said Armistead to enable him to operate said sawmill business, and that he has this day executed a special mortgage on, lot 5 of Block “E” of Liberty Heights of Caddo Parish, Louisiana, with improvements thereon, for $1000.00, evidenced by one note payable six months after date, bearing 8 per cent interest from maturity.
“Now it is agreed between the parties that the said Haney shall pay to the said Armistead an additional $5.00 per 1000 feet for all lumber cut, sawed and sold by him iri Red River Parish to be applied as a credit on whatever amount may be advanced by the said Armistead on the aforesaid mortgage note, it being understood that the said Armistead shall advance him from time to time on said collateral security, but there shall be paid him in addition to the contract hereinabove stated $5.00 per 1000 feet out of the lumber manufactured and sold, and in default of so doing said mortgage note shall ipso facto become due and payable.
“Done and signed on this, the 19th day of May, 1923, before the undersigned witnesses.
“Witnesses:
(Signed) “D. BAKER,
Signed) “C. O. FERGUSON.
(Signed) “J. S. HANEY.
(Signed) “W. R. ARMISTEAD.
(Signed) “W. A. WILKINSON,
“Notary Public.”

The $8.00 per 1000 feet, board measure, that defendant was under obligation to pay plaintiff as above stated was the $5.00 per 1000 feet board measure to go as a credit on the price of the sawmill and $3.00 per 1000 feet “stumpage” or price of the timber converted into lumber, which timber belonged to plaintiff and was sold to defendant by him on that basis.

Plaintiff, W. R. Armistead, testified, pages 40, 41, 42, 44, 45:

“Q. Isn’t it a fact that Mr. Haney under the contract was not to make payment to you until the lumber was cut, sold and collected for?
“A. Yes, sir; that is the way the contract reads.
sH * H*
“Q. He was to pay you one hundred, cents (100c) on each dollar for all lumber cut and sold and collected for?
“A. After he took this one thousand dollars ($1000.00) up.'
“Q. Then you made a contract, according to your version, whereby Mr. Haney was to pay you for the advances that you claim to have made to his laborers by paying you all of the money collected when the lumber was sold and collected for?
“A. Yes, sir.
“Q. That was the way that this account was to be paid for?
“A. After this one thousand dollars ($1000.00) was expended; the rest of the money, if he sold fifty dollars or • one hundred dollars, I was to get it.
“Q. That was the way that you agreed that the amount you advanced was to be paid?
“A. Above the one thousand dollars.
“Q. Above the one thousand dollars ($1000.00)?
“A. Yes, sir.
“Q. You are positive you were to receive payment as the lumber was out, sold and collected for?
“A. Very positive.
* * * *
“Q. Then the only difference between the verbal and the written contract is that you were to receive more money under the old contract?
“A. Yes, sir.
“Q. The time and manner of payment was not changed one iota except that you were to receive more money?
“A. Yes, sir.
“Q. You were to receive your money as the lumber was cut, sold, manufactured and paid for — collected for, were you not?
“A. Yes, sir.
“Q. You were not to receive any money until it was cut, sold, manufactured and paid for?
“A. No, sir; he told me he didn’t have it.
“Q. You agreed to advance him all of this money upon the proposition that he was to pay you as the lumber was cut, sold, manufactured and paid for?
“A. Yes, sir.
“Q. Well, when he asked you about paying these laborers, or when you did pay these laborers off, was there anything said as to when that would be paid?
“A. They were to be paid.
“Q. And when were you-to be paid back your money?
“A. As the lumber was sold,
“Q. Well, if the lumber was never sold, you were not to get paid?
“A. No; but the understanding.-was that if I was to put up the money he would get the lumber on the market right away. He went to Shreveport to get prices but they didn’t suit him; he thought he could sell in Missouri or Texas better.
“Q. Your understanding was that he was to get the lumber on the market right away to pay you for what you had ,-"advanced the laborers?
“A. Yes, sir.
“Q. You paid their accounts?
“A. Yes, sir.
“Q. Isn’t it a fact- that¡ you made a number of money advances to Mr.-Hanky?
“A. I advanced him to the extent - Of one thousand dollars ($1000.00) and- over.
“Q. And then you advanced him on what you termed to be his pay roll?
“A. Yes, sir.
“Q. You were to receive payment from these accounts — when the lumber was sold and collected for?
“A. Yes, sir, that was all the way I could look for my money. He told me that he had a contract to sell a special kind of flooring in Kansas City. I told him I would be glad to have him, but he didn’t want to.
“Q. You have stated that you had a contract by which you were to receive payment of all the money that you advanced him when the lumber was sold and collected for?
“A. That was the only way I looked for my money.
“Q. That was the only way you expected your money?
“A. Yes, sir.
“Q. That was the contract under and by which you were to receive your money?.
“A. Yes, sir; he told me he didn’t have —his expression was: T haven’t got the money to tie up in such sums as that.’ After paying his pay roll he wanted me' to advance him twenty-five dollars per month for his personal use; so that was the time I quit putting up for him.”

The defendant, J. S. Haney, testified, pages 68, 69:

“Q. How was the maturity and the time of payment of all advances made to you by Mr. Armistead fixed?
"A. Every one of them under our contracts, the pay-roll money and everything, was to be paid for when' my lumber was sold and paid for; and it was not due until the amount was paid to me, for it was all -to go through the Bank o£ Coushatta, and they would be the trustee to distribute every bit.
“Q. No account was payable or became due until you collected the money?
“A. Until the bank received the money; the bank to do the dividing' and all the collecting. The bank was to do the collecting and " the dividing • and it wag not due' until they- did get it.
“Q. Have you made an effort to remove or steal any of the lumber in that mill site?
“A. Not a plank, nowhere.
“Q. Have you rendered. Mr. Armistead a copy of all invoices?
“A. No, sir; I wasn’t to do that under my contract. I started out — here is the way I started out. He didn’t ask for a copy to start with and I didn’t make him any. The thing went on some little while and he asked me for a copy and I told him yes and gave him a copy on everything.”

Under this evidence we conclude that plaintiff’s demand was clearly premature and the decision of the lower court on this point is correct.

Plaintiff insists that he has a privilege on the logs and lumber sequestered for the amount paid by him to the laborers who converted the standing timber into logs and lumber.

Privileges are strictl juris and exist only where the law has expressly created them.

Plaintiff testified, pages 48, 53:

“Q. Their accounts were due every week, were they not?
“A. Weekly.
“Q. Due weekly?
“A. Yes, sir; I paid them once a week.
“Q. And under the rules they were working their pay was due every week?
“A. Yes, sir; I helped them; hired the hands and told them I would pay them off to work and that I would see that they got their money, until I quit.
“Q. When you went over to the mill, Mr. Armistead, and started to hiring and firing the laborers, you practicaly took charge, did you not?
“A. No, sir. I took charge this far— they were not working for him, wouldn’t work; there were negroes lying around .there that he owed and hasn’t paid today, I don’t think, so far as I know, at least he hadn’t' paid them then. I said to him before I had this talk with him and I asked him how about it, and he asked me how about'me hiring the labor; I got the price of labor to cut by the thousand and I got' the negroes to cut in the woods so that the log haulers could haul the logs, and I got the day labor in the mill.” '

Under this evidence the .laborers were not working for the* defendant, J. S. Haney, who was operating the mill, but for the plaintiff, W. R. Armistead, and under the plain provisions of the law no privilege arose in favor of the plaintiff on the logs or lumber for the money he advanced to pay the laborers-whose labor produced the logs and lumber; and furthermore, plaintiff, having hired the laborers and having ■paid them, their privilege, if any ever existed, was thereby extinguished.

Therefore the judgment dissolving the writ of provisional seizure was correct.

Defendant asked for damages for wrongful seizure, of his property, but none were allowed him by the lower court. Inasmuch as the defendant did not appeal from the judgment nor move in this court to amend it, it cannot be disturbed on that point.

For the reasons assigned, it is ordered, adjudged and decreed that the judgment appealed from be affirmed.


text:
    No. 10,112
    Orleans
    GALLMAN v. YOUNG, Appellant
    (March 14, 1927. Opinion and Decree.)
    (April 11, 1927. Rehearing Refused.)
    (May 23, 1927. Writs of Certiorari and Review Denied by Supreme Court.)

      (Syllabus by the Court)

    1. Louisiana Digest — Damages—Par. 56. In fixing the amount of damages under Articles C. C. 1934 and 2315 the ability .. of th,e defendant to pay should be. considered.
    2. Louisiana Digest — Damages—Par. 105. The plaintiff in this case suffered a frac- ■ ture of the hip, was confined to ■ her bed for six months, and was permanently injured. A judgment in damages in her favor for $5000.00 affirmed.
    Appeal from Civil District' Court. Hon. Wm. H. Byrnes, Judge.
    Action by Mrs. Amelia Gallman, widow and c., against Mrs. Wilhelmina Young, wife and c.
    There was judgment for plaintiff and defendant appealed..
    Judgment affirmed.
    Maurice Rooney, Eugene Stanley, M. C. Scharff, of New Orleans, attorneys for plaintiff, appellee.
    Dart & Dart, of New Orleans, attorneys for defendant, appellant.
   CLAIBORNE, J.

This, is a damage suit by a sub-lessee against the main lessor for damages suffered from the alleged collapse of steps on the property rented by her.

There was judgment in the District Court in favor of plaintiff for $5000.00.

The defendant appealed to this court which reversed the judgment and dismissed plaintiff’s suit. Gallman vs. Young, 3 La. App. 756. On a writ of review the Supreme Court reversed the judgment of this court and remanded the case to this court on the question of the amount of damages. In this ‘court the plaintiff has prayed for an increase of the judgment.

The plaintiff alleged that as a result of her fall she suffered an “intracapsula fracture” of the hip; that she was confined to her bed for six months under the care of a doctor; that her injuries are permanent and that she is now a cripple, and has suffered and still suffers great pain.

She, claimed $2500.00 for the pain and suffering and $7500.00 for permanent injuries.

She has established the allegations of her petition, and the evidence is that she is now an inmate of the Home for Incurables, unable to support herself. At the time of the trial, two years after the accident, she walked with difficulty. She is 68 years of age.

The plaintiff relies upon the case of Funk vs. N. O. Ry. & Lt. Co., 150 La. 1046, 91 South. 506, and Hopkins vs. the same, 150 La. 61, 90 South. 512, in which two ladies, one aged 69 and the other 58, were awarded respectively $9000.00 and $10,000.00 for injuries sustained by them. In the first case the plaintiff was disabled from walking or standing, and in the second case the plaintiff sustained a curvature of the shine so as to cripple her for life.

In the case of Lowenthal vs. Vicksburg Ry., 117 La. 1007, 42 South. 483, the plaintiff suffered injuries which brought on “traumatic neurasthenia”; from a healthy, strong, stout woman, doing her own household work, she became emaciated and unable to work, and required frequent visits of a physician. The verdict of a jury for $5000 was affirmed.

The case of Fuge vs. N. O. Ry. & Lt. Co., 140 La. 582, 73 South. 689, is very much the same as the Lowenthal case above. A verdict of $6000.00 was affirmed.

. In the case of Hanson vs. The Texas Company, 3 La. App. 46, the court said $10,000.00 is a correct quantum of damages where there was a permanent injury of the skull due to a fracture and some mental impairment which probably would grow worse. The plaintiff was 32 years of age.

In the case of Boyer vs. Crescent Paper Box Factory, 143 La. 368, 78 South. 596, the plaintiff was scalped. She recovered $10,000.00.

In Englert vs. N. O. Ry. Co., 128 La. 473, 54 South. 983, the plaintiff was 43 years of age, mother of eleven children and in good health. By her injury her spinal cord was affected, producing paralysis of her right leg and right arm and affection of the heart. Judgment $15,000.00.

But it will be noted that in all the above cases the defendants were corporations and railroads.

In fixing the amount of damages the ability of the defendant to pay must be considered. Board of Control vs. Royes, 48 La. Ann. 1061, 20 South. 182; State ex rel. Neyland vs. Read, 50 La. Ann. 444, 23 South. 715; Daly vs. Kiel, 108 La. 170 (175), 30 South. 254; Byrd vs. Pierce, 124 La. 429, 50 South. 452; Jackson vs. Briede, 156 La. 573 (585), 100 South. 722.

The defendant quotes the following authorities: ’Williams vs. Electric Co., 43 Ann. 295, where a drayman, 60 years of age, had his thigh fractured, remained in a hospital four months and received $1000.00.

In Gomex vs. Tracey, 115 La. 824, 40 South. 234, the plaintiff had a broken thigh and shortening of the leg. He recovered $1500.00.

In Jones vs. N. O. Ry., 129 La. 788, 56 South. 889, plaintiff’s shin bone was broken. She remained in bed five months. Judgment $1000.00.

In addition to the above we find the following:

In Lorenz vs. City, 114 La. 802, 38 South, 566, a girl 9 years old suffered a dislocation of the hip which was permanently weakened. $2500.00.

In Gueble vs. Town of Lafayette, 121 La. 909, 46 South. 917, the plaintiff broke his hip in his fall, was confined to his bed three months and suffered excruciating pains; was not able to sit up; was an old man and at the time of the trial of the case, three years after the accident, had not recovered; cannot attend to any business that requires walking; before his fall he could earn a small income; this he can no longer do; he spent an amount for medical and other expenses. Judgment $2500.00.

In Roff vs. Summitt Lumber Co., 119 La. 571, 44 South. 302, petitioner’s heel was torn off, leaving him' a permanent cripple and sufferer, unable to earn a living; was confined to his bed for four months unable to get up or walk; earning capacity $54.00 a month. Judgment $3500.00.

In Navailles vs. Diezman, 124 La. 421, 50 South. 449, the facts are stated in the syllabus:

“A woman 60 years old was knocked down by an automobile and dragged. Her thigh bone was fractured in two places.
“She suffered excruciatingly for months. The injury would cause her to hobble with a stick instead of walk for the rest of her life. She was put to large expense. Held that a verdict of $3250.00, approved by the trial judge, would not be disturbed as excessive.”

See also White vs. Maison Blanche Co., 142 La. 265, 76 South. 708; Ryan vs. Louisiana Ry. & Nav. Co., 146 La. 40, 84 South. 371; Coggin vs. Shreveport Rys. Co., 147 La. 359, 84 South. 902; Clements vs. Texas & P. Ry. Co., 148 La. 1050, 88 South. 394; Funk vs. New Orleans Ry. & Lt. Co., et al., 150 La. 1046, 91 South. 506.

We see no reason to increase the amount of the judgment of $5000.00, which is therefore affirmed.


text:
    No. 10,337
    Orleans
    GAISSER, Appellant, v. NEW ORLEANS PUBLIC SERVICE INC.
    (Apr. 25, 1927. Opinion and Decree.)

      (Syllabus hy the Coxtrt)

    1. Louisiana Digest — Street and Interurban Railroads — Par. 19, 21; Carriers — Par. 30, 38.
    The obligation of a street car company to provide safe and ¡proper means of ingress for its passengers is met when the means are free from danger to one using ordinary care.
    Appeal from Civil District Court, Division “B”. Hon. Mark M. Boatner, Judge.
    Action by Mrs. Charles Gaisser against New Orleans Public Service Inc.
    There was judgment for defendant and plaintiff appealed.
    Judgment affirmed.
    W. J. Waguespaek, of New Orleans, attciney for plaintiff, appellant.
    Benj. K. Kernan, of New Orleans, attorney for defendant, appellee.
   CLAIBORNE, J.

In attempting to board a street car, the plaintiff fell and was injured. Hence this suit.

The plaintiff alleged that on April 18, 1925, at 10 o’clock a. m., she attempted to board the Dryades street car on the upper side of Peters or Jefferson Avenue on the lake side corner of St. Charles Avenue; that she was standing upon the street, as she was obliged to do, and endeavored to place her right foot upon the first step, but that in so doing she: fell 'by reason of the great distance between the street and the said step, and was thrown violently upon the brass handle of the street car where she was much injured, and was assisted by the conductor, who grasped her arm and pulled her up.

The defendant had not provided a suitable place from which its patrons could board its cars running upon the neutral ground in the center of said boulevard, but on the contrary, had to stand upon the street quite a distance below for the reason that the first step leading to the platform of the car overlapped the edge of the neutral ground at the only place where patrons are compelled to board the cars going towards the river; that the height from the street to the first step of the car is so great that it is not humanly possible fqr a lady of ordinary size to reach the first step without assistance; that plaintiff’s fall was caused by the negligence of the defendant in not providing a safe and proper place to board the car; that she suffered excruciating physical pain during two weeks; that she was treated by Dr. Wymer, defendant’s physician, who subjected her to a painful electric treatment; that she still suffers and believes that she will suffer indefinitely; that she was employed as a seamstress when she earned $45 per week from which she was incapacitated for two weeks; she estimates. her damages as follows:

Two weeks’ loss ................................$ 90.00
Physical pain ........................................ 1,910.00
$2,000.00
which she claims from defendant.

The defendant denied all the allegations of the petition and averred that it was informed that on August 18, 1925, at about ten o’clock a. m., a Mrs. C. Gaisser, in boarding a Dryades car at the corner of St. Charles and 'Jefferson Avenues, dropped a package on the platform • which she stooped down to pick up, and in raising her body . in a stooped position, struck her shoulder against the handhold on the door of the car.

There was judgment for defendant rejecting plaintiff’s demand and she has appealed.

“It is well established in jurisprudence that railway companies are under the legal obligation to furnish safe and proper means of ingress and egress to and from trains, platforms, station approaches, etc., and it is well settled that any person injured without fault on his part by any dereliction of its duty in the premises by a railway company, can recover damages against the corporation for injuries thus received.” Peniston v. Rrd. Co., 34 La. Ann. 777; Turner vs. Vicksburg, S. & P. Co., 37 La. Ann. 648; Le Blanc vs. Sweet, 107 La. 368, 31 So. 766; 10 C. J., p. 916, S. 1341, 1342, 1306, 1363; Reine vs. Rrd., No. 7596 Orl. App., Bk. 55.

The question in this case therefore is, did the defendant furnish thq plaintiff safe and proper means of ingress into its car?

The evidence is that, the railroad track is built upon a neutral ground; that the neutral ground is seven inches higher than the street, and that the lowest step of the car is 16% inches above the neutral ground making a distance of 23% inches from the street to the lower step; that the neutral ground extends 2% inches frqm the lower step; that the plaintiff was 48 years of age and weighed 164 pounds and was 5 feet 7 inches in height; that when she attempted to board the car she carried “some packages in her arms”; that she attempted to ascend the step by lifting her right foot from the ground and trying to put her left foot upon the step, in so doing she slipped and dropped her bundles and fell upon the brass rod on the right hand side of the car, when the conductor assisted her to rise and picked up her bundles.

The conditions existing upon the date of the accident were the same which had prevailed for a long time previous, both as to the street, the neutral ground, and the cars. They had been established by the city and could not be changed by the defendant. The defendant had no right to raise the street nor to widen the neutral ground.

There was no record of any accident having happened to any passenger attempting to board the car; while the height of the steps from the ground made it inconvenient to reach them from the ground they were not accompanied with any danger, which is the essential element of fault.

A passenger could have put his foot from the street upon the neutral ground, a distance of only seven inches, and thus have divided the distance to the step. Landphere vs. Ill. Cent. R. Co., 132 La. 351, 61 So. 399; Leveret vs. Shreveport Ry. Co., 110 La. 404, 34 So. 579. But the plaintiff was encumbered with packages and tried to elevate herself from the street to the step directly, a distance of 23% inches.

It is evident that she slipped. The condition of her skirts or her failure to grab the handle bar or the packages may have caused her to fall. Her own witnesses testify as follows. Mrs. Anderson says:

"Q. Could you board the car easily without assistance?
“A. I had one fall out óf the car, but I have always gotten in very easily.
“Q. Boarding a car going to the river, did you ever fall there?
“A. No, sir.”
Mrs. Hanna said:
“Q. Did you have trouble in getting . -in the Dryad es car at that point?
“A. No, sir; no serious trouble, nothing only the step being high. No, I never did fall.”

Mrs. Claycomb" testified that she often bad occasion to board-the car at that corner; on one occasion she would have fallen had not the conductor assisted her.

There is^ no evidence of anyone having fallen at that corner while entering; the only evidence is that it was inconvenient and for that reason the landing place was changed from that corner to the opposite corner towards the river. >

In the case of Clogher vs. Rrd., 143 La. 85, 78 So. 247, the court said:

“Where a street car stopped * * * at a place where the step of the car was 15% or 16 inches above the roadway, so that a passenger might safely alight by extending his foot seven inches out and stepping down while holding on to the handle bar, such place was reasonably safe, and the carrier was not liable for an injury to a passenger while alighting.”

We do not think that the increased distance of 7% inches was sufficient to make the steps dangerous, if proper precautions had been taken. Freeman vs. N. O. Public Service, No. 9299 Orl. App.

The handle bar and the conductor were there to assist the passenger. Facts speak louder than opinions. For the many years during which the conditions complained of had existed, numberless passengers had entered the cars and not an accident was recorded.

The same conditions exist in many other neutral grounds upon which cars are run.

We are of opinion that the judgment is correct and it is therefore affirmed.


text:
    No. 9716
    Orleans
    SUCCESSION OF D’ANNA
    (April 25, 1927. Opinion and Decree.)
    (May 9, 1927. Rehearing Refused.)
    (May 23, 1927. Writs of Certiorari and Review Denied by Supreme Court.)

      (Syllabus by the Court)

    1. Louisiana Digest — Building and Loan Associations — Par. 1.
    Homestead associations enjoy legislative ■favor, they are called corporations and exhibit some corporate resemblance though many legal restrictions do not affect them. They also resemble partnerships but are not held to the same responsibility. Homestead shares are called “stock”, though they have little in common with the corporate stock of private corporations.
    2. Louisiana Digest — Building and Loan Associations — Par. 1; Corporations— Par. 15, 84. 89.
    The undertaking by which a stockholder in a homestead company eventually pays for “current stock” by means of small weekly payments is terminated by the death of the stockholder and his succession is a creditor of the homestead for the aggregate of the payments made plus such interest and dividends as the charter and by-laws provide. The fact that in life a written notice is required to convert the current shares into cash is immaterial. The death of the stockholder supplies such notice.
    Appeal from Civil District Court, Division “A”. Hon. Hugh C. Cage, Judge.
    Action by Succession of Angelo D’Anna.
    There was judgment for plaintiff in rule and defendant in rule appealed.
    Judgment affirmed.
    H. W. Robinson, of New Orleans, attorney for defendant in rule, appellant.
    Theo. Cotonio, of New Orleans, attorney for plaintiff in rule, appellee.
   OPINION

WESTERFIELD, J.

Angelo D’Anna died possessed of five shares of “current stock” in the Crescent City Building and Homestead Association. His widow qualified as administratrix and ruled the homestead company into court to show cause why it should not pay the sum of $128.08, the withdrawal value of the stock at the time the deceased died.

The homestead resisted the rule on the ground that it was not a debtor of the deceased and could not be compelled to pay to administratrix the amount demanded; that deceased, alone, could obtain the cash surrender value of the stock, that stock in homesteads was like any other stock, and while administratrix could have it sold, by public or private sale, upon proper showing of indebtedness, the present proceeding was simply a rule for the payment of a debt due deceased and no showing of indebtedness was made.

The District Court made the rule absolute and the homestead appealed.

The question presented involves the nature of the deceased’s interest in the “current stock”. If the relation of debtor and creditor existed the administratrix was entitled to collect the sum demanded as a debt due the succession.

It is insisted that a stockholder is not, properly speaking, a creditor of the corporation in which he holds stock, and that, in this respect, the homestead and its stockholders are no different from any other corporations and stockholders.

But there is a great difference between corporations, in general, and homestead corporations. Homesteads, for reasons of public policy, are highly favored by the Legislature. Corporations, generally, are prohibited from issuing stock except for money, services or property actually received. Homesteads are generally exempt from usury laws. In order to confer the benefit of a vendor’s lien, the Legislature expressly sanctions the criss-cross transactions, by which a borrower simultaneously sells and buys the property to be mortgaged to secure the loan. A homestead association is neither a corporation nor a partnership in the fullest sense of the words, an4 “courts have found it impossible to classify them accurately with other bodies”. They have been variously described as mutual benefit associations, membership corporations, limited, quasi, or corporate partnerships, or as expedients resorted to for the more convenient prosecution of the particular co-partnership business for which they are organized, and as not being savings institutions or stock corporations within the meaning of certain statutes”. Corpus Juris, Vol. 9, p. 922.

The act under which homesteads are organized, Act 120 of 1902, Sec. 7, provides that a member may withdraw his unpledged shares at any time by giving written notice of such intention as provided for in the act of corporation or by-laws, and shall then be entitled to receive the amount paid in by him, and such proportion of the profits as the act of incorporation or by-laws may prescribe, less all fines, charges and losses accrued, or contingent, to the time of the notice of withdrawal, as the board of directors may determine, with no interest or profits from the time of such notice; but at no time shall more than one-half of the monthly receipts be applicable to the demands of the withdrawing members without the consent of the directors.

This provision is incorporated in the charter of the appellant. Current shares are paid for at the rate of twenty-five cents a week and, when the certificate of stock issues have little or no value, the idea being to. build up a credit by small installments and profits. It will be observed that upon written notice the stockholder may withdraw the amount paid in, plus profits, but counsel contends that this right was personal with the shareholder and died with him. We are of opinion that death was sufficient notice to the homestead that this particular shareholder could not complete his undertaking and was equivalent to, and had the same effect as, written notice given, in life, by one of its shareholders, of his intention to withdraw. It follows that the homestead is a debtor of the succession to the extent claimed, the amount not being disputed.

“The death of a stockholder terminates his membership; and settlement is to be made with his estate in much the same manner as though there had been a voluntary withdrawal, the withdrawal had not the estimated value of the shares being the amount payable.” Corpus Juris, Vol. 9, p. 943.

To hold otherwise would lead to absurd consequences, for Section 6 of the homestead act provides:

“That if a member be in arrears for the time specified in the act of incorporation or by-laws, for dues, interest, bonus, or premium, his shares may be forfeited as provided by the act of incorporation or bylaws.”

And it might as well be that the succession representative or the heirs would fail, or refuse to continue paying weekly the small installment fixed in the charter over a-period of months or years resulting in forfeiture of the stock or a sale at a sacrifice in order to avoid such consequence.

The judgment appealed from is therefore affirmed.