author: ODOM, J.

text:
    No. 3683
    Second Circuit
    WALKER v. McMURRAY
    (December 31, 1929. Opinion and Decree.)
    T. S. Price, deceased, and J. W. Elder (successor), of Ruston, attorneys for plaintiff, appellant.
    Dhu Thompson, of Ruston, attorney for defendant, appellee.
   ODOM, J.

Plaintiff and defendant, two colored men, conceived the idea of establishing a ball park on the outskirts of Ruston, and to that end bought 4% acres of land from T. E. Covington at an agreed price of $486, $100 to be paid in cash, and the balance to be paid in 6, 12, 18 and 24 months. The property was bought by the ¡parties jointly, and for the deferred payments they gave their notes in solido, made payable to the vendor, T. E. Covington.

As stated, the property was purchased for the purpose of establishing a ball park, in which it appears that the parties were to be equally interested. As the property had no improvements upon it at the time, it was agreed that they should build a grandstand and place a board fence around the park. If there was ever any agreement between the parties as to how the ball park was to be managed, the record fails to disclose it. The record shows, however, that some time subsequent to the purchase of the land, plaintiff and defendant reached an agreement by which plaintiff was to advance the money to take care of the notes as they matured, and defendant was to develop the park by clearing and leveling it, and by building a grandstand, a fence, and a < gate, and that, when these improvements were made and the notes given for the purchase price were paid, the parties would get together and make a settlement between themselves and agree upon the amount advanced by each for the development of the ball park.

The testimony shows that plaintiff carried out his (part of the agreement by paying the purchase price of the land, except possibly- one note, and that defendant bought and paid for, out of his separate funds, lumber and other material for the building of the. grandstand and fence, and paid for having the land cleared and leveled. The testimony shows that subsequent to the building of the grandstand and fence, there were a few ball games and prize fights staged — some by plaintiff and some by defendant — but just what amount was received by each is not stated, and in fact, so far as the present suit is concerned, the question of revenues from that source is not an issue.

The notes given for the land were turned over to Covington, the vendor, who placed them at the First National Bank of Ruston, where they' were paid by the plaintiff, Calvin Walker. Walker brings the present suit against defendant to recover of him the sum of $243, or one-half the purchase price of the ¡property, alleging that he had advanced for the defendant, not only all of the cash payment, but one-half the amount of the notes as well. The defendant in answer denied that plaintiff had paid for him one-half the $100 cash payment on the land and one-half the first note due, as alleged, but, on the contrary, set up that he had contributed his one-half of the cash payment, as well as one-half of the first note due, but admitted that plaintiff had paid the entire amount of the second, third and fourth notes. Defendant reconvened for the sum of $512.98 which he had advanced for the improvement of the park.

At the inception of the trial, plaintiff objected to any testimony offered by defendant tending to establish his claim for money advanced and labor performed in improving the ball park, for the reason that his claim was represented by promissory notes and that the items set up by defendant could not be pleaded as a set-off, because said items were not equally liquidated and demandable (see article 2209, Civil Code). The objection was overruled, and we think properly so, because plaintiff’s suit is not one on a promissory note, but to recover money advanced for the payment of said notes. Plaintiff claims to be the holder and owner of the notes, but, as a matter of fact, the notes themselves and the indorsements thereon show the contrary. The notes are in solido obligations of plaintiff and defendant. They were placed in the bank, either as collateral or for collection, and when due they were paid to the bank, as shown by the indorsements thereon, and while, as stated, plaintiff claims to own the notes, yet as a matter of fact the notes themselves show that they were paid and that the transfer which Covington made of .the notes to the plaintiff, Walker, was made long after the notes, had been fully paid. This, as stated, is shown by the indorsements on the notes.

On .the first note due, Mr. Add Thompson, vice president of the bank and who handled the transaction, wrote on the back of it the word “Paid,” followed by the words, “and transferred to Calvin Walker, 10 — 11—26, without recourse on us, (signed) First National Bank, by Add Thompson, Y. P.” This indorsement was subsequently obliterated in part by the erasure of the words “First National Bank, by Add Thompson, V. P.,” and the name “T. E. Covington” was signed to the transfer. On the back of the second note due, there was marked originally the words: “Paid by Calvin Walker, 4 — 12—27, (signed) First National Bank by Add Thompson, V. P.” Subsequently, that indorsement was changed entirely so as to read as follows: “Paid and transferred to Calvin Walker, 4 — 12—27, without recourse on me.” The fourth note due bears upon the back of it this indorsement:. “Payment received and cancellation authorized. First National Bank of Ruston, Ruston, Louisiana.” That indorsement was erased entirely and the following substituted: “Paid and transferred to Calvin Walker, 4 — 9—28, without recourse on me. (Signed) T. E. Covington.”

The fact that the original indorsement on each of these notes was completely changed is patent. The testimony shows beyond question that each and every one of these notes was paid and left with the bank, and that after the last one was paid, the cashier of the bank, without the consent of Romie McMurray, wrote the transfer to Walker and that Covington signed the transfer. The plaintiff, therefore, has no action on the promissory notes themselves, because when they finally went into his hands they had long since been paid and the so-called “transfer” of them to him amounted to nothing.

It is not disputed that plaintiff has an action against the defendant .to recover the amount which he paid for defendant; therefore, the defendant had a right to plead any claim which he may have had for improvements placed upon the property as a set-off against the amount advanced for the payments of the purchase price of the property.

It is suggested that there was a partnership between these parties and that neither one could have his claim against the other liquidated prior to a liquidation of the partnership. But there was no partnership between these parties, merely a joint ownership of certain real estate, and this is a suit by which the parties are trying to enforce their respective claims against each other, and we think the court correctly permitted testimony on both sides for that purpose. If there had' been a commercial partnership between them and there had been debts arising out of partnership transactions, the partnership affairs would have had to be liquidated before the partners could adjust their claims against each other, but, as stated, there was no commercial partnership— in fact no partnership at all — and no good reason can be assigned why these parties should not in a suit of this kind have their claims against each other adjudicated.

On the merits of the case, the district judge in a written opinion made an exhaustive analysis of the testimony and reached the conclusion that, in connection with the purchase of the property and improving the same, plaintiff had advanced the sum of $456.50, and that defendant had advanced for the improvement of the property the sum of $466.98, and he granted judgment accordingly. We have gone over the testimony carefully and it does not appear to us that the judge erred in his findings, and in respect to the amounts we shall let the judgment stand.

The judgment goes further, however, and orders the property owned by these parties sold to effect a pártition. As neither party asked that this be done, and as each seemed to object to it, and as we see no reason why it should be done, we shall amend the judgment by eliminating all reference to a sale and partition of the real estate. The property is owned by these parties jointly, and we think they should be left to dispose of it as they see fit. The judgments practically offset each other.

For the reasons assigned, it is ordered, and decreed that the judgment appealed from be amended by striking therefrom that portion which orders the property sold to effect a partition, and as thus amended, it is affirmed; the costs to be borne in equal proportion by these litigants.


source: Caselaw Access Project

author: WEBB, J.

license: Public Domain

text:
    No. 3693
    Second Circuit
    SWEDMAN v. STANDARD OIL CO. OF LA.
    (December 31, 1929. Opinion and Decree.)
    (January 21, 1930. Rehearing Refused.)

      C. W. Easterling, of Monroe, attorney for plaintiff, appellee.
    Theus, Grisham, Davis & Leigh, of Monroe, attorneys for defendant, appellant.
   WEBB, J.

Defendant appeals from a judgment in favor of plaintiff for damages to an automobile owned by the plaintiff, which was alleged to have resulted from a collision with a motortruck owned by the defendant, alleged to have been operated by an employee of defendant.

The collision occurred in the afternoon of August 16, 1928, on a paved highway in the parish of Ouachita. Plaintiff’s automobile, which was trailing an automobile being driven by L. J. Jackson, was in advance of defendant’s truck, which was trailed by a truck owned by a bakery company, and, the Jackson car being stopped, plaintiff’s car was also stopped, and following defendant’s truck collided with it, and the bakery truck in turn struck defendant’s truck, and, swerving from the impact, came in contact with plaintiff’s car.

On trial there was some evidence offered tending to show that some of the damages sustained by plaintiff’s car resulted from its being struck by the bakery truck. However, the only questions urged here by the appellant are that the evidence established that the driver of plaintiff’s car had failed to give a signal of his intention to- stop, as required by the statute regulating traffic on the highways (Act No. 296 of 1928), and that the failure to comply with the statute was the proximate or contributing cause of the accident, and appellant also urges that the evidence failed to establish that the driver of defendant’s truck was acting within the scope of his employment, and it is further urged that plaintiff having alleged that the accident occurred on July 12, 1928, the court erred in permitting plaintiff, over defendant’s objection, to show that the accident occurred on August 16, 1928, and to recover damages to his car resulting from a collision on the latter date.

We are of the opinion that the allegation as to the date of the accident was merely a matter of description, which was not necessary for plaintiff to allege or prove, and, in view of the fact that plaintiff alleged other matters of description which fully advised defendant of the accident from which the damage resulted, we are of the opinion plaintiff was properly permitted to show the correct date on which the accident occurred, although different from that alleged (see Cross, Pleading, sec. 92, p. 110), and the evidence showing that the truck was owned by defendant 'and was being operated by one of its employees at the time of the. accident was sufficient to warrant a recovery against defendant, in the absence of any evidence that the driver was not acting within the scope of his employment. May vs. Yellow Cab Co., 164 La. 920, 114 So. 836.

The contention that the collision resulted from, or was contributed to by, the failure of the driver of plaintiff’s automobile to give a signal of his intention to stop, as required by the statute regulating traffic on the highways (Act No. 296 of 1928), involves a question of fact whicjh was peculiarly within the province of the trial court. And, while it is shown that the driver of plaintiff’s automobile did not give any signal of his intention to stop, it was shown that he did not bring the car to a sudden stop, and that it was stopped at the time it was struck by defendant’s truck, and, if the statements of the driver of plaintiff’s car, and of the plaintiff, who was riding in the ear, be accepted, and the distance which the truck traversed from -he time the car stopped until it was struck by the truck be fixed on their estimates of the intervening period, and the evidence showing the speed at which the truck was being driven, the distance would be so great that there could not be any excuse for the collision, without regard to the failure of the driver of plaintiff’s car to have given a signal of his intention to stop.

On the other hand, if the version of the driver of the truck is accepted, it would show that he was trailing plaintiff’s car at such distance it was impossible for him to avoid colliding with it in event the driver should bring it to a sudden stop either by, reason of the car in advance of plaintiff’s car being suddenly stopped or by the voluntary action of the driver, which would show that the driver of the truck was guilty of negligence (Blashfield, vol. 1, p. 454, sec. 29; Langford vs. San Diego Elec. Ry. Co., 174 Cal. 729, 164 P. 398; Henican v. Woodman, 1 La. App. 281), and that his negligeftce at least contributed to • the collision, and conceding that the driver of the truck, even though negligent, should be relieved of liability if the failure of the driver of plaintiff’s car to give a signal of his intention to stop contributed to the collision, the question of whether such failure did contribute to the accident is dependent upon the distance that plaintiff’s car was being driven in advance of the truck.

While the estimates of the witnesses called by plaintiff as to the period intervening after the car was stopped, until the collision, when considered with the estimates of the speed at which the vehicles were driven, does not furnish very reliable data for determining the distance at which plaintiff’s car was stopped in advance of the truck or the distance at which the latter was trailing the car, on the other hand the estimate of the driver of the truck as to the distance at which the car was stopped in advance of the truck is shown to have been made after the car was stopped, and on an observation made when the collision was inevitable, as the driver of the truck, in an attempt to pass around the car, lost control of the truck, with the result that it skidded into collision with the car, and such estimate, either as indicating the distance at which the car was stopped in front of the truck or the distance at which the truck was trailing the car, is also not very reliable.

Neither the plaintiff nor the driver of his car knew that the truck was behind them, and, while the driver of the truck must have known that the plaintiff’s car was in advance of the truck, and could have, if he was maintaining a lookout, informed the court of the time the vehicles had been proceeding in that order, as well as the distance maintained by him between plaintiff’s car and the truck, his testimony leaves the impression he did not pay any particular attention to the situation until the moment of the collision, when it is admitted plaintiff’s car had been stopped.

Giving any weight to the estimates of the witnesses called by plaintiff of the period intervening after plaintiff’s car was stopped and the collision, it would appear that plaintiff’s car had been stopped for an appreciable time prior to the observation made by the driver of the truck, and that the proximate cause of the accident was due to the failure of the driver of the truck to maintain a lookout, and from our review of the evidence we are impressed that such was the case, and not the failure of the driver of plaintiff’s car to give a signal of his intention to stop.

•The judgment is affirmed.


author: WEBB, .J.

text:
    No. 3619
    Second Circuit
    JONES v. DOWLING
    (December 31, 1929. Opinion and Decree.)
    (January 31, 1930. Rehearing Refused.)

      J. W. Elder, of Ruston, attorney for ¡plaintiff, appellee.
    Dhu Thompson, of Ruston, attorney for defendant, appellant.
   WEBB, .J.

Defendant, owner of a plantation, and plaintiff entered into an agreement under which the latter was to plant, cultivate, and harvest a crop of cotton on defendant’s plantation; defendant to furnish stock, farming implements, and fertilizer, and also to advance plaintiff with some supplies, and plaintiff agreed that, when he was not employed in working the crop to be planted, he would remain on the .plantation in readiness to do such work on the plantation as defendant should call upon him to do, for which plaintiff would be paid at the rate of $1.50 per day. It was further agreed that, when the crop had been harvested and sold, an accounting would be had, by deducting from the proceeds of the crop the cost of fertilizer, and the balance divided, and the amount due defendant for supplies furnished, if in excess of the amount due plaintiff for other work done by him, deducted, from the share of plaintiff.

The contract was made about the first of the year, and after plaintiff had. prepared the land which he was to plant, he was employed by defendant in doing other work on the (plantation, during which time defendant furnished him with money and supplies. Plaintiff planted the crop .in April, but, after planting and when he was not employed in working the land allotted to him, he left the plantation and remained away for some time, with knowledge that defendant desired his services in assisting with other work necessary to be' done on the plantation, and when plaintiff returned defendant informed him that he had violated the contract and that his- services would not be needed.

Defendant 'then proceeded to have the land which had been planted by plaintiff in cotton, which was then ready to be worked, cultivated, harvested, and sold, and the present action was brought to recover judgment against defendant for one-half of the proceeds of the crop.

In answer to the suit, defendant (pleaded that plaintiff had violated the contract and had forfeited any rights he had thereunder, and he further pleaded, in event he should be held liable to plaintiff, that there should be deducted from the proceeds of the crop the value of the fertilizer furnished, and from the share of plaintiff the expense incurred in cultivating and harvesting and one-half the expense of ginning and marketing the crop and also the amount due defendant for supplies.

On trial, the court held defendant liable to account for one-half of the proceeds of the crop, less the expense of cultivating and harvesting the crop, and the amount due by -plaintiff for supplies, and defendant was also held liable for work which plaintiff had done under the cropping agreement; the amount thus found due plaintiff being $119.18, for which judgment was rendered, with legal interest from judicial demand. Defendant appealed, and plaintiff has answered the appeal, praying that the amount of the judgment be increased.

The court held that plaintiff was a lessee, and appellant complains of the ruling, urging that ‘ plaintiff was a mere employee, and that plaintiff had violated the contract and was properly discharged and should not have been permitted to recover, while appellee complains that the court should not have allowed any deduction for expenses incurred by defendant in cultivating and harvesting the crop.

Contracts by which the owner permits another to cultivate his land in consideration of allowing him a share of the crops are of a personal nature, and', although the law recognizes that lands may be leased for a share of the crop (article 2671, C.C.) it is generally recognized that under such contracts the person cultivating the land may be merely an employee (Lalanne vs. McKinney, 28 La. Ann. 643; Bres & O’Brien vs. Cowan, 22 La. Ann. 438; Hunter vs. Walding, 3 La. App. 433; Holmes vs. Payne, 4 La. App. 345; Kelly vs. Rummerfield, 117 Wis. 620, 94 N.W. 649, 98 Am. St. Rep. 951, note 953), but, where it is- not shown there was an agreement that the person cultivating the land is to receive a share of the crop or proceeds thereof in lieu of wages, or the circumstances are such as to show that such was the intention of the parties, such contracts will be considered as contracts of lease (Louisiana Farm Bureau vs. Clark, 160 La. 294, 107 So. 115; Louisiana Farm Bureau vs. Bannister, 161 La. 957, 109 So. 776).

There was not any express stipulation that the share of the crop to be received by plaintiff would be in lieu of wages, and there is no showing that defendant reserved the right to direct, supervise, or control plaintiff in planting, cultivating, or harvesting the crop, and the fact which is urged as indicating that the plaintiff was an employee, rather than a lessee, is the stipulation that he would, when not engaged in working the land assigned to him, remain on the place in readiness to render service in doing work on the plantation which defendant should call upon him to do.

But we do not think that the stipulation was legally binding, and whatever the moral obligation, the failure of plaintiff to comply with the stipulation did not give defendant the legal right to declare the planting agreement violated and take over the cultivation of the land which had been planted by plaintiff.

However, it does not appear that defendant acted in bad faith, and it is not shown that plaintiff made any protest, but on the other hand, it appears when defendant informed him that he violated the contract, plaintiff apparently acquiesced and he does not appear to have made any claim until the present suit was filed, and we are of the opinion that the court properly allowed a deduction for the expense incurred by defendant in cultivating and harvesting the crop, and the judgment is affirmed.


text:
    No. 3117
    Second Circuit
    RECEIVERSHIP OF BRYCE CASH STORE, INC. (Opposition of Traders Securities Company et al.)
    (November 18, 1929. Opinion and Decree.)
    (December 31, 1929. Rehearing Refused.)

      P. E. Brown, of Arcadia, attorney for plaintiff in opposition, appellee.
    J. Rush Wimberly, of Arcadia, and George M. Wallace, attorneys for Baker Grocery Co., Inc., defendant in opposition, appellant.
    ' I. J. McConathy, of Arcadia, attorney for Arcadia Mercantile Company and for Receiver, appellant.
   ODOM, J.

A receiver was appointed for the Bryce Cash Store, Incorporated, a corporation, on October 15, 1926, and upon application of the receiver, the court, on January 15, 1927, ordered him to sell at private sale all of the assets of the concern to pay the debts. Having sold the assets of the corporation, the receiver filed his account on which he listed separately the privileged and ordinary claims filed with him, advertised- the -account and applied to the court for an order'to pay the claims as listed. • •

Among the claims scheduled as privileged was one in favor of the Baker Grocery Company, Inc., for $155.66. The Traders Securities Company, and other creditors, who claimed no privilege and whose claims were scheduled by the receiver as ordinary debts, opposed the account on the ground, as they claim, that the Baker Grocery Company had no privilege and that its claim should have been listed along with those of the other ordinary creditors. On trial of the opposition, all parties being present or duly represented, the district court sustained the opposition and ordered the account amended so as to place the claim of the Baker Grocery Company on the list of ordinary creditors. Hence, this appeal.

The grounds on which the Baker Grocery Company claims that its debt should be paid by preference over the opposing creditors, none of whom claim any privilege, are that previous to the appoihtment of the receiver it had sued the Bryce Cash Store, and, under proper allegations, had caused the property of its debtor to be attached and had carried its suit to judgment, which judgment maintained the attachment and specifically recognized its privilege, as allowed by law to attaching creditors on the property attached, and ordered it sold to pay the claim by preference.

The Baker Grocery Company did not execute its judgment and have the property sold and counsel for opponents now contends that because it did not execute its judgment, it had no (privilege. Counsel’s contention is set forth in his brief and we quote therefrom as follows:

“The opposition is based on the allegations that the judgment of the Baker Grocery Company was rendered on an ordinary claim, such as the claims of the opponents are, and that there was no privilege resulting to the Baker Grocery Company by reason of its attachment, because no execution has ever issued on the judgment which sustained the attachment,”

And, quoting the last paragraph ■ of the brief:

“There is no authority under the law for a receiver to allow a privilege, as W this case, which is not lawfully created— and a privilege like ■ this cannot be perfected under the laws of this State except through execution.”

In other words, counsel for opponents grounds his case solely upon the ¡proposition that as a matter of law an attachment confers no privilege unless there is execution on the final judgment obtained in such proceedings, and, in support of his contentions, cites Code of Practice, article 724, and Eymar vs. Lawrence et al., 8 La. 38.

Article 724 of the Code of Practice reads:

“Provisional seizures (attachments — see Beck v. Brady, 6 La. Ann. 444) and sequestration give no privilege to those who have made them, until they have obtained a judgment and order of execution on the property sequestered or provisionally seized.”

The Code does not say and it cannot be construed to mean that an execution must issue in order that a privilege may exist. It says the seizures confer no privilege in favor of those who have made them “until they have obtained judgment and order of execution.” Strictly speaking, an attachment gives no privilege upon the property attached for, as was stated in Beck v. Brady, Brown & Company, 7 La. Ann., p. 1, the attachment may be dissolved or the property bonded and released. But, where the attachment proceedings are carried to final judgment which specifically maintains the writ and recognizes the privilege allowed by law to attaching creditors, the privilege is perfected and dates back to the service of the writ. Harris v. Andrews & Company, 20 La. Ann. 561. The requirements of the Code of Practice, article 724, for obtaining the privilege are met when the Court maintains the writ and recognizes the privilege, which is equivalent to an order of execution. Swift & Co. v. Leon Kahn & Company, 151 La. 837, 92 So. 355.

Counsel in his brief quotes the first paragraph of the syllabus in the case of Eymar v. Lawrence, supra, which reads:

“The creditor who proceeds against the property of his debtor by provisional seizure (attachment) and sequestration, acquires no privilege thereon, until he has obtained a judgment, and execution issues on it.”

The syllabus is misleading. What the Court said and all it said on this particular point was this:

“The plaintiff proceeded by provisional seizure, and the 724th Article of the Code of Practice declares that provisional seizures and sequestration give no privilege to those w,ho have made them, until they have obtained a judgment and order of execution on the property sequestered or provisionally seized.”

The Court did not hold, as the syllabus would seem to indicate and as counsel now contends, that no privilege exists unless execution under the judgment actually issues, and, so far as we are able to find, it has never been so held nor could it be, because the language of the Code is plain.

Code of Practice, Article 722, provides that the creditor, “by the mere act of seizure is invested with a ¡privilege * * * which entitles him to a preference over other creditors, unless the debtor has become bankrupt, previous to the seizure.” It is conceded that there was in this case an act of seizure which was declared by the Court to be valid and was sustained. The Baker Grocery Company was, therefore, entitled to a preference over the other less diligent creditors. The property of the debtor was attached before the receiver was appointed and the privilege, whén recognized by the Court, dated back to the service of the writ. Now was this seizure and the privilege conferred by it divested when the receiver was appointed and took over the property? The answer is, no.

A receiver is but an officer of the Court who acts as trustee for both the creditors and the debtor corporation. He acts, not for himself, but for both and represents each. Property in his hands is in the custody of the law. He is but an agent through whom the Court acts.

Receivership of New Iberia Cotton Mills, 109 La. 875, 33 So. 903;

In re Pleasant Hill Lumber Company, 126 La. 743, 52 So. 1010;

Harvey v. Gartner, 136 La. 411, 67 So. 197, Ann. Cas. 1916D, 900.

The appointment of a receiver sustains the status quo of the corporation, and is meant to preserve and not to cause injury either to the creditors or to the corporation. State v. King, 46 La. Ann. 110, 14 So. 902. His taking over of the property brings about no change of title and cannot prejudice the rights of any creditor. He takes the property as he finds it, burdened with all the liens and privileges which affected it in the hands of the corporation, and to the same extent. He stands in the shoes of the corporation. The order appointing the receiver in this case specifically directed him to take charge of all the assets of the corporation and to hold or administer the same “in such manner as he may be directed by this Court and subject to the further orders of this Court.” The property was, at the time the receiver was appointed, in the custody of the sheriff who had taken possession of it under the writ of attachment. Presumably, he surrendered the property to the receiver. But such surrender did not “destroy the privilege resulting from the seizure.” Cleveland Steel Company v. Joe Kaufman Company, 155 La. 529, 99 So. 428, 429; Item Company, Ltd., v. Nu-Grape Bottling Company, Inc., 160 La. 975, 107 So. 770; Item Co., Ltd., vs. Nu-Grape Bottling Co., Inc., 160 La. 631, 107 So. 471.

The property was sold by the receiver at private sale by order of the court. The privileges on the property were shifted to the proceeds and the claims must be paid according to their rank. In re Connell Iron Wks., 138 La. 702, 70 So. 617.

The receiver, after reducing the assets of the corporation to cash, presented his account, and asked that it be homologated. On his account, he listed the claims which he proposed to pay by preference, among them being that of the Baker Grocery Company for $155.66. A number of the ordinary creditors opposed the account on the ground that this creditor had no privilege. On trial of the opposition, the district court ordered the account amended so as to place this claim among the ordinary debts. That judgment is erroneous and must be reversed.

For the reasons assigned, it is ordered and decreed that the judgment appealed from, striking from the list of privileged claims that of the Baker Grocery Company and ordering it scheduled as an ordinary debt and ordering the receiver to pay it as such, be reversed and further ordered that the receiver’s account, listing such claim as privileged, be and is hereby approved and homologated, and the -receiver ordered to pay the same by preference acording to its rank; all costs to be paid by opponents.


author: JANVIER, J.

text:
    No. 11,599
    Orleans
    FREED REALTY CO., INC., v. SINGER
    (January 27, 1930. Opinion and Decree.)
    E. M. Stafford and Daniel Wendling, of New Orleans, attorneys for plaintiff, appellee. ; ¡IS)
    A. D. Danziger and P. H. Stern, of New Orleans, attorneys for defendant, appellant.
   JANVIER, J.

Plaintiff sues for recognition as owner of certain real estate. It alleges that in an act of sale passed before E. M. Stafford, notary public, bn September 20, 1922, the immovable property in question was purchased from C. S. Thomas, and that, though the purchase price, $1,300, was paid by plaintiff, . the . property, for convenience, was placed in the name of defendant Singer under a verbal agreement that he would convey it to plaintiff whenever requested so to do.

Plaintiff annexed to its petition interrogatories on facts and'articles, by which it was sought to elicit from Singer an admission of the truth of the above outlined allegations. • ■ •>

In ' answer to the interrogatories, Singer, in effect, admitted that he was not the owner of the property, but alleged that it had been placed in his name to secure repayment to him of $1,309.74, which he claims is due him. by plaintiff, Freed Realty Company, Inc.

After a trial below the matter was appealed to this court, and we, in reversing the decision ,of the trial court, held that Freed Realty Company,' Inc., was entitled to be placed in possession of the real estate as soon as it repaid to Singer such amount as was due him. We held, however, that, inasmuch as the evidence as to the correctness of Singer’s claim should have been submitted in the court below, the case should ,be. remanded so that evidence in regard to the said claim might be produced. See Freed Realty Co., Inc., v. Isidore Singer, 5 La. App. 551.

After hearing the evidence in regard to the claim of Singer, the district court rendered judgment dismissing that claim as in case of nonsuit. Singer has appealed from that judgment, and Freed Realty Company, Inc., has answered the appeal and, in its answer, asks that, instead of the judgment of nonsuit, there be a definite decree of absolute dismissal.

It will be seen that the only question now before us is whether or not Singer’s evidence is sufficient to warrant a judgment sustaining his claim.

The claim is composed of three items, as follows:

1. Materials furnished to the premises 1035 Iberville St— $ 271.09

2. Materials furnished to the premises 3805-07 Annunciation Street __________________________________________ 388.65

3. 10% builders commission on house at 2223 Peters Ave------- 650.00

Total ________________________________________ $1,309.74

A. A. Freed, who seems to have managed and controlled Freed Realty Company, Inc., and defendant, Singer, for several years had offices together, and during that time had many friendly deals and arrangements, under which they entered various joint, real estate enterprises for their mutual advantages. On many occasions they seem to have loaned money to each other. They were very close friends, and most of these enterprises were entered into on purely verbal agreements, so implicit was the confidence each had in the other.

Finally, misunderstanding and suspicion succeeded harmony and confidence and each charged that he had been victimized by the other. An attempt was made to balance .accounts, but, although some kind of a settlement was effected, it is now charged that the items now in dispute were not included in that settlement.

The record is voluminous, and the question presented is purely one of accounting; but we have striven diligently to. reach a conclusion therefrom.

It would serve no good purpose to discuss in detail the evidence. Were we privileged to consider the question of fact without regard to the decision reached by the district court, and were it not for the rules of evidence which place the burden of proof on Singer, it is possible that we would have come to the conclusion that Singer’s evidence was slightly more convincing than that on the other side. But we cannot dismiss from our minds the realization that the trial judge saw and heard the witnesses and was thus in a much better position than we are to properly decide the issue, which, as we have said, is one entirely of fact.

Then, too, inasmuch as we have already held that Singer is holding the property, which does not belong to him, solely as security for such debt as he may be able to .prove is due him, the burden of proof unquestionably rests on him to establish that debt by a preponderance of the evidence.

That he recognized this is shown by the following statement of the trial court and the answer made by Singer’s attorney:

“The Court. * * * It is up to Singer to prove the verity of these items; he carries the burden.

“Mr. Danziger. We are willing to assume that responsibility.”

For these reasons: That Singer has not sustained the burden of proving his case, and that a strong presumption of its correctness attaches to the finding of the trial judge, we do not feel that the judgment should be reversed.

But we are unable to see that any good purpose can be served by affirming the judgment of non-suit. It is very evident from the voluminous record that the matter was exhaustively (presented to the court below, and if we affirm the judgment of non-suit the effect would be that the property would remain subject to the claim of Singer, and would thus be indefinitely removed from commerce and that the litigation, which has already extended over a considerable period, would be further prolonged, because it is probable that, on the next trial, no additional evidence could be produced by either of the parties.

It is contrary to the public policy of the state that property should be indefinitely removed from commerce, and it is highly desirable that litigation be terminated as soon as is reasonably possible. We therefore feel that a definitive judgment, dismissing the suit, should be rendered.

It is therefore ordered, adjudged and decreed that the judgment appealed from be and it is • annulled, avoided and reversed, and that there now be judgment in favor of Freed Realty Company, Inc., and against Isidore Singer, recognizing the Freed Realty Company, Inc., as the owner, and ordering the said Isidore Singer to turn over to said Freed Realty Company, Inc., the following described property, to-wit:

“Two certain lots of ground, together with all the improvements thereon, and all the rights, ways, privileges, servitudes and advantages thereunto belonging or in any wise appertaining situated in the 7th District of this city, in square bounded by Apricot, Leonidas, Monroe and Pritchard Streets, Square No. 409, which said lots are designated by the Nos. 5 and 6, and adjoin each other, measuring each thirty feet front on Apricot Street by a depth of One hundred and twenty feet, between parallel lines, lying at a distance of One hundred and twenty feet from the corner of Leonidas and’ Apricot Streets.”

All costs to be paid by defendant and appellant.

Judgment reversed and suit dismissed.


author: WESTERFIELD, J.

text:
    No. 13,146
    Orleans
    FARMER v. JONES
    (December 16, 1929. Opinion and Decree.)
    (January 13, 1930. Rehearing Refused.)
    (March 10, 1930. Writ of Certiorari and Review Refused by Supreme Court.)

      Martin E. Kranz, of New Orleans, attorney for plaintiff, appellant.
    Jos. A. Casey, of New Orleans, attorney for defendant, appellee.
   WESTERFIELD, J.

Plaintiff filed suit against the defendant in the First City Court on six promissory notes, aggregating $120.00, and stipulating for 8 per cent interest and 30 per cent attorney’s fees. An answer was filed setting up a plea of want of consideration. With the issues thus made up the case went .to trial, only one witness being heard, the defendant. At the conclusion of defendant’s testimony plaintiff’s counsel verbally requested the court to dismiss the suit. The court declined to do so and rendered judgment for defendant, . whereupon plaintiff appealed.

In his brief in this court plaintiff asks that the “judgment of the lower court be reversed and that there be judgment in favor of plaintiff, allowing plaintiff to discontinue this suit”, citing Art. 491, C. P., which reads:

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

Assuming that this question can be raised on appeal, we observe that • the rule relied on by plaintiff is subject to exception: “For instance after the case has gone to trial and evidence has been adduced, the judge can exercise his discretion as to the kind of judgment he shall enter.” State ex rel. Gondrian, Administrator v. Judge, 48 La. Ann. 455, 19 So. 256.

In the case before us defendant filed a reconventional demand, which was not proven and the court in its judgment reserved defendant’s right to establish it in another proceeding. We see no useful purpose to be subserved by interfering with the court below in the exercise of its discretion; consequently the judgment appealed from will be affirmed.

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


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    No. 3020
    Second Circuit
    EDMINSTON v. TERRILL BROTHERS GROCERY CO. ET AL.
    (December 31, 1929. Opinion and Decree.)
    J. W. Elder, of Ruston, attorney for plaintiff, appellant.
    Dhu Thompson, of Ruston, attorney for defendants, appellees.
   WEBB, J.

Plaintiff, C. C. Edminston, brought this action against Terrill Bros. Grocery Company, a commercial partnership, and the individuals comprising the partnership, and E. S. Kidd and Will Dunbar, employees of the partnership, to recover damages alleged to have been sustained by plaintiff as the result of personal injuries sustained by his minor son, Roy Edminston, alleged to have resulted from the negligence of said employees acting within the scope of their employment; and plaintiff appeals from a judgment rejecting his demands.

Defendant Terrill Bros. Grocery Company conducts a grocery and produce business in the city of Ruston, and plaintiff alleged, in substance, that a chicken had escaped from the partnership’s place of business to an adjoining street; that E. S. Kidd, a clerk employed by the (partnership, had requested plaintiff’s son, who was 12 years of age, to capture the fowl, to which the boy assented; and that, while he was chasing the fowl, a motortruck owned by the partnership, and being driven by its employee Will Dunbar along the street, collided with the boy.

The petition is somewhat vague as to the specific facts on which plaintiff based the charge of negligence against the employees. However, considering the petition and the evidence, as well as the brief of counsel for appellant, it appears that the basis of the claim to recover against Kidd and the partnership, his employer, is that the street on which the fowl was at large was narrow and congested with traffic, and that Kidd, knowing the conditions, was guilty of negligence in requesting and permitting an immature youth to take the hazard of being injured by vehicles using the street while he was attempting to capture the fowl, and that the basis of the claim to recover against Dunbar and the (partnership, his employer, was that Dunbar, having knowledge of the congested condition of the street, had operated the truck in a careless manner and at an excessive rate of speed.

The evidence shows that Dunbar was acting within the scope of his employment, but it was not alleged that Dunbar knew that Kidd had requested plaintiff’s son to capture the fowl or that he knew that plaintiff’s son and other youths with him were on the street, or that he knew any of the circumstances; and, while it was established that there were vehicles parked on the side of the street, of which the portion devoted to vehicular traffic was about 26 feet in width, the evidence does not show that Dunbar was operating the motortruck at an excessive rate of speed or in a careless manner, having regard to the vehicles parked along the street, nor was it shown that there were any vehicles, other than the motortruck driven by Dunbar, moving on the street in the vicinity of the accident. It was shown that plaintiff’s son had followed the fowl under a wagon which was standing along the side of the street, and, while there was some evidence that the boy came from the side of the wagon and was standing between the wheels and the body of the wagon at the time he was struck by the motortruck, the preponderance of the evidence established that the youth came from the rear of the wagon and suddenly appeared in the path of the truck and in such close proximity thereto that Dunbar was unable to avoid the accident.

And, without regard as to whether or not the boy was sufficiently mature to be guilty of contributory negligence, Dunbar was not shown to have been negligent, and plaintiff cannot recover as against him (Culbertson v. Crescent City Ry. Co., 48 La. Ann. 1376, 20 Sou. 902; Powers v. Simmons, 7 La. App. 523), nor against the partnership as his employer.

Relative to the right to recover against Kidd and the partnership as his employer, it is urged that the evidence established that the street was narrow and congested by vehicles parked along the side of the street, and that Kidd had knowledge of the danger, to which the youth would be subjected from vehicles using the street, of which the youth did not have knowledge, and that Kidd should be held guilty of negligence in requesting the youth to attempt to capture the fowl, and the evidence establishing that Kidd was a clerk in the store conducted by the partnership, and that it was a custom with the employees of merchants handling produce, whose places of business abutted on the street, to take up fowls at large on the street, that Kidd, in requesting the youth to capture the fowl, was following a custom and was acting within the scope of his employment, and his employer was liable.

While the evidence established that Kidd had requested several youths, among whom was plaintiff’s son,, to capture the fowl, and that the street was congested by vehicles, it was not shown that there was a great volume of traffic on the street, but it indicates the contrary, as it appears that the street (which is referred to in the evidence as an alley) was principally used by persons in hauling merchandise to and from the business houses situated in the block in which the partnership’s place of business was located, and it was not shown that plaintiff’s son was, considering his age, immature, and the evidence indicates to the contrary. While it was shown that it was a custom of the employees of the dealers whose places of business abutted on the street to capture fowls found at large on the street, and that Kidd, in requesting the youths to obtain the fowl, was following the custom, it was.not shown that the defendant partnership knew of such custom, nor was it shown that the fowl discovered by Kidd at large on the street was the property of the defendant partnership or that it had escaped from its place of business to the street. It was shown that, when Kidd requested the youths to capture the fowl, he was not on the premises of his employer, and one of the members of the partnership testified that Kidd was not authorized to take up fowls at large on the street, and there is not any evidence in the record showing the authority of Kidd, other than that he was a clerk in the store conducted hy the partnership.

While it may possibly be assumed that Kidd, as a clerk in the store of the defendant partnership, was as such bound to conserve the merchandise handled by the partnership, and for such purpose that he had implied authority to have fowls belonging to the partnership, which may have escaped from his employer’s premises to the street, recaptured, we do not think it may be assumed that Kidd had authority to have fowls captured which he found on the ' street, which did not belong to the partnership, or had not escaped from its place of business, in the absence of evidence showing that the partnership knew, .of the custom of its employees to take up fowls on the street under an assumption that such fowls belonged to the partnership; we do not think the partnership could be held liable for the negligence of its employees who undertook to have fowls taken up from the street adjoining the partnership’s place of business.

Appellant does not contend that the relationship between plaintiff’s son and the partnership was that of master anfi servant, or that such - relationship existed between Kidd and the youths who, at his request, attempted to capture' a fowl at large on the street, but it is urged that Kidd, a man of mature years, should be presumed to have had knowledge of the danger to which the youths would be exposed in attempting to capture a fowl at large on the street, of which they, being immature or inexperienced, did not have knowledge, and that the action of Kidd in requesting the youths to capture the fowl indicated a degree of negligence analogous to wantonness.

The evidence does not show that there was such volume of traffic on the street as to render it hazardous for one in the exercise of care to go upon that portion of the street devoted to vehicular traffic, nor does it show that there were any dangers, which were not apparent. And the evidence showing that plaintiff’s son was not immature, but that he wa3 fully capable of appreciating the hazard to which he would be exposed, it cannot, we think, be said that the action of Kidd in requesting him to capture the fowl indicated wantonness. But, conceding that Kidd should have foreseen that (the youth would be exposed to danger, and that he might be injured by vehicles passing along the street, the danger was- one that could be guarded against by the exercise of ordinary care; and the evidence showing that plaintiff’s son was fully capable of appreciating the hazards to which he would be exposed and of guarding against such risks, we are of the opinion that the proximate cause of the accident was the failure of the youth to exercise ordinary care, and not that Kidd had requested and permitted him to expose himself to risks of which he was not fully aware and capable of guarding against.

The judgmént is affirmed.


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    No. 3561
    Second Circuit
    GRIFFING ET AL. v. KING
    (December 31, 1929. Opinion and Decree.)

      Thompson and Berry, of Winnsboro, attorneys for plaintiffs, appellees.
    Wm. H. Mecom, of Columbia, attorney for defendant, appellant.
   WEBB, J.

This is an action of boundary. Plaintiffs alleged in substance that they were the owners of the wy2 of SW%, section 5, and NW% of NW%, section 8, township 12 N., range 9 E., which Is contiguous to the E% of SE%, section 6, and NE% of NE%> section 7, in same township and range, owned by defendant; that the boundary between the properties had not been established, and they prayed for service and citation and for the appointment of a surveyor to inspect and survey the premises and make due returns of his survey, and that the same be homologated and the line established accordingly.

Process was made on defendant, who filed an exception of no cause of action and pleaded the prescription of 10, 20, and 30 years in bar of plaintiff’s demand, and the exception and pleas were referred to the merits, and thereafter defendant consented to the appointment of a surveyor, without prejudice to her rights under the pleas previously filed, and the court signed a formal order appointing a surveyor, and directing him to- make a survey of the property described in the petition as belonging to plaintiffs but of other lands than as alleged to belong to defendant, and the order did not thus direct the survey of contiguous lands.

The surveyor, however, surveyed the line between the Wy2 of SW%, .section 5, and Ey2 of SE‘%, section 6, and filed a proces verbal of his survey, and plaintiffs filed a motion to' homologate the proces verbal and obtained an order for a rule against defendant to show cause why the proces verbal should not be homologated and the boundary between the W% of SW%, section 5, and E% of SE!4, section 6 fixed and established in accordance with the survey.

Service of the motion was accepted, and issuance of the rule waived by defendant, who again excepted and pleaded the prescription of 30 years.

The minutes show that thereafter the case was fixed for trial on June 1st, and that on. June 4th the rule was • called for trial, and, defendant failing to appear, trial was proceeded with and judgment rendered approving and homologating the proces verbal and fixing and establishing the boundary between the Wy2 of SW%, section 5, and E% of SE%, section 6, township 12 N., range 9 E., in accordance with the survey.

Defendant appealed, and she especially complains that the order for the survey did not designate the property to be surveyed as described in the petition, but described other property, and, further, in event it should be held that the order should be read in connection with the petition, and the surveyor be held to have been authorized to make the survey, that he had failed to survey the line between the NWM of NW%, section 8, and NE1^ of NE14, section 7, and she also complains of the decree establishing the boundary between the of SWy,, section 5, and E% of SE14, section 6, on trial of the rule. She further complains of the «phraseology of the decree, in that following the declaration homologating the proces verbal of the survey and declaring the line as surveyed between the Wy2 of SWy,, section 5, and E% of SE%, section 6, to be the boundary line between those tracts; it was further declared that the line “is the true boundary line between the estates of the plaintiffs in the South half of Section five, etc., and the estate of defendant in the South half of Section 6” etc.

It is generally known that, in suits of the present character, the orders are usually drafted by counsel, and that often the attitude of counsel representing the parties is such as to mislead the court, and warrant the assumption that they acquiesce in methods of procedure which are not strictly in compliance with the ordinary procedure, and, while all of the irregularities of which defendant complains would not have occurred if she had given (proper attention to the suit, yet an action of boundary is of such nature that necessarily a degree of formality must be observed which is not essential in other actions, and the consent of the parties to a departure from the ordinary course may not be inferred from an apparent acquiescence.

The procedure in such actions is the same as in other actions involving questions of fact as well as of law, and there is not any provision which authorizes the boundaries between estates to be established by summary proceedings or by rule.

It is usually necessary that a surveyor be appointed to survey the property, (article 841-, Civ. Code), and, as he is required to make a proces verbal of the survey, which- is required to be drafted with some formality and should show in its face that the surveyor has complied with the requirements (articles 833, 835, Civ. Code), there could not be any reason why the proces verbal of the survey should not be homologated on a motion or rule to show cause, and, if the ¡parties agree to submit the cause ■ on the merits at that time, there could not be any objection to the line as surveyed being declared to be the boundary line, if the survey is shown to be correct, and no other evidence is offered.

However, on a motion to homologate the proces verbal of the survey, the correctness of the survey is not at issue, and, even though the survey is correct, it is not conclusive of the question of boundary, and we do not think that the plea of prescription which defendant filed in answer to the rule can be considered as showing that she consented to the case being tried on its merits, and, as it does not appear that defendant was present or represented on the trial of the rule, we do not think that evidence as to the correctness of the survey and other evidence appearing, the record could have been received at that time and judgment rendered establishing the boundary, unless the case was fixed for trial on the merits.

The record does not show that the cause was fixed for trial on the merits, and the judgment rendered establishing the boundary line on the trial of the rule to homologate the proces verbal of the survey, in the absence of anything to show that defendant consented to the trial of the cause at that time, cannot be maintained.

We do not deem it necessary to pass upon the question presented by counsel, relative to the regularity of the order for the survey, and the failure of the surveyor to survey the line between the NW44 of NW%", sec. 8, and NE% of NE%, sec. 7, as such matters will no doubt be taken care of on the cause being remanded.

It is therefore ordered that the judgment appealed from homologating the (proces verbal of the survey and establishing the boundary be avoided and set aside, and that the cause be remanded for further proceedings, reserving to the parties the right to amend their pleadings or file such further pleas as they may desire.

It is further ordered that the plaintiffs pay the cost of appeal, and that the liability of the parties for all other costs await the trial.


text:
    No. 3677
    Second Circuit
    SELIG & BAUGHMAN HARDWARE CO., INC., v. PARKS (MRS. EMMA G. PARKS, Intervener)
    (December 31, 1929. Opinion and Decree.)
    H. E. Dawkins, of Farmersville, attorney for plaintiff, appellee.
    H. G. Fields, of Farmersville and R. J. O’Neal, of Shreveport, attorneys for intervener, appellant.
    H. G. Fields, of Farmersville and R. J. O’Neal, of Shreveport, attorneys for defendant.
   WEBB, J.

Plaintiff, Selig & Baughman Hardware Company, Inc., a judgment creditor of Emmett Parks, obtained the seizure of funds deposited to the credit of Parks with the Marion State Bank, and Mrs. Emma Parks, wife of Emmett Parks, intervened claiming that the funds belonged to her and had been deposited by her husband, acting as her agent to his credit, and she prayed that the property be released from seizure and decreed to belong to her.

On trial judgment was rendered rejecting intervener’s demands, maintaining the seizure and ordering the funds delivered to the sheriff and credited on the writ under which the property was seized, and the intervener appeals.

Neither of the parties has made any appearance here and from our review of the record, we find that the evidence established that the property belonged to the judgment debtor, Emmett Parks, and the judgment is therefore affirmed.


text:
    No. 3420
    Second Circuit
    JONES v. BELL
    (November 18th, 1929. Opinion and Decree.)
    Herndon & Herndon, of Shreveport, attorneys for plaintiff, appellee.
    Foster, Hall & Smith of Shreveport, attorneys for defendant, appellant.
   WEBB, J.

In this action, plaintiff alleged that he was the holder of a note, acquired in due course, for a valuable consideration and before maturity, which had been drawn by defendant, for $290, payable to her own order and by her indorsed in blank, and secured by a mortgage on immovable property owned by defendant, and he prayed for judgment against defendant for the amount of the note, etc., and for recognition of the mortgage.

The answer of the defendant is somewhat vague and conflicting, but, in substance, the defense made is that the note had been delivered by plaintiff to one of the attorneys representing the plaintiff, with an agreement that he would pay certain indebtedness of the defendant and her brothers, and that one of her brothers had subsequently given the attorney a note, and that it was agreed that the amount of that note would be credited on the note sued upon, but that the attorney had failed to comply with the agreement; and that the plaintiff was fully aware of all the circumstances connected with the transaction, and defendant called the attorney in warranty to defend the suit,' and iprayed that plaintiff’s demands be rejected; and, in event of any judgment being rendered in favor of plaintiff and against defendant, that a like judgment be rendered in favor of defendant against the alleged warrantor.

There was a motion to strike out the call in warranty, which was allowed; and the cause was fixed for trial on a future date, and, when the case was called, counsel for defendant was not present, and the court permitted plaintiff to pro.ceed to trial with the case and judgment was rendered in favor of plaintiff, as demanded.

Defendant appeals; and it is urged that the court erred in allowing the motion to strike out the call in warranty, and also in permitting plaiiitiff to proceed with the trial, in the absence of defendant and her counsel.

It is contended that the motion to strike out was filed by the alleged warrantor, and not by the plaintiff, and it is further urged that the motion to strike out a call in warranty was irregular, and, if the call was not legally warranted, that an exception should have- been filed, and, further, that the motion to strike out was allowed on the ground that the answer under which the call was made did not show that there was any privity of contract between the plaintiff and the alleged warrantor, and that the ruling was erroneous.

While it might be contended that the motion to strike out was filed by the alleged warrantor, considering the body of the motion, it was, however, signed by the attorneys for the plaintiff, and, although it appears to have been argued in the trial court, as here, that the motion was hy the alleged warrantor, we do not so consider it, but, on the other hand, we think that the motion should be considered as having been presented by the plaintiff, and we do not think it was necessary for the plea to have been designated as an exception, rather than as a motion to strike out, as it does not appear that defendant misunderstood the object of the plea.

We do not know on what ground the motion was allowed, as the court’s reasons for the ruling are not in the record. But-the call in warranty was based upon the provision of the Code of Practice, art. 379, which declares that: “Personal warranty is that which takes place in personal actions; it arises from the obligations which one has contracted to pay the whole or a part of a debt due by another to a third person,” and it surely cannot be said that the payee and holder of a note is obligated to the drawer to pay the note, whatever may be said as to his right to negotiate it, and it is not alleged that, after the note (passed from the hands of the alleged warrantor, there was any agreement by him with defendant that he would re-acquire or pay the note, and the court properly allowed the motion to strike out the call in warranty.

Relative to the alleged error of the court in permitting plaintiff to proceed with the trial of the case on the date fixed for trial, and in the absence of defendant and her counsel, it was stated in argument that there Were other cases on the docket, and that the case had been called out of its regular order. However, the only facts shown by the record are in the minutes, where it appears that counsel for defendant appeared in court, “after rendition of judgment, and objected to same on the ground that this case being the fourth on the docket for this date, has been tried and judgment has been rendered by 9:40 a. m. Objection ovei’ruled, and bill reserved.”

The rules of the court are not before us, and, as there was not any motion for a new trial filed, we cannot assume that there was any irregularity in calling the case for trial, - the presumption being to the contrary, nor may we assume that the absence of defendant and her counsel at that time was due to circumstances which would have even suggested that the court on its own motion should have ordered a new trial.

The judgment appealed from is affirmed.


text:
    No. 3030
    Second Circuit
    LANE v. E. J. DEAS CO., INC.
    (December 31, 1929. Opinion and Decree.)
    (January 31, 1930. Rehearing Refused.)
    (March 10, 1930. Writ of .Certiorari and Review Refused by Supreme Court.)

      Foster, Hall & Smith, of Shreveport, attorneys for plaintiff, appellant.
    Wilkinson, Lewis & Wilkinson, of Shreveport, attorneys for defendant, appellee.
   ODOM, J.

On March 24, 1925, the E. J. Deas Company, Inc., entered into a contract with the police jury of Caddo Parish to pave a portion of the Shreveport-Blanchard public road for the sum of $110,000, and gave bond with the Aetna Casualty Company as surety for the faithful performance of the contract in accordance with the specifications. The contract was entered into .and the bond given pursuant to the provisions of Act No. 224 of 1918, p. 406. The contractor defaulted and the surety company took over the contract, re-let the work to another concern, and the police jury turned over to the surety company the full amount of the contract price, less the amount which had been previously paid to the original contractor. This proceeding was in accordance with the bond, from which we quote the following:

“Upon failure of the principal to promptly and efficiently prosecute said work in any respect to the satisfaction of the Parish Engineer, the said sureties shall take charge of the work and complete the contract at their own expense, being allowed, however, any balance in the hands of the Police Jury due under said contract.”

Prior to the date on which the contractor defaulted, and while the work was in progress, the contractor wrote two orders or assignments, one dated June 6, 1925, and the other June 13th, in words and figures as follows:

“Parish of Caddo, Shreveport, Louisiana.

“Please pay--, of Shreveport, Louisiana, the amount of Seven Hundred Dollars Thirty Cents ($700.30) on final estimate for work on Shreveport-Blanchard road.

‘‘E. J. Deas Company, Inc.,

“By E. J. Deas, Pres.”

(Italics ours.)

The other is identical with the above, except as to the amount, which is $461.78. Mr. Deas, president of the contracting company, presented one of the orders to Mr. Bullen, parish engineer, who wrote thereon the following certificate:

“I hereby certify that there is due the E. J. Deas Company, Inc., the amount of $700.30 for work done on. Shreveport-Blanchard road to -June 5th, Inch

“J. T. Bullen,

“Engineer Caddo Parish.”

Mr. Deas presented the above to Mr. L. F. Clawson, parish treasurer, who wrote thereon the following:

“Accepted. L. F. Clawson, Parish Treas.”

The other order was presented to Mr. Gayle, chairman of the road committee, who wrote thereon the following:

“I certify that there is due the E. J. Deas Company, Inc., the amount of $461.78, for work done on Shreveport-Blanchard road to June 12th, Inch

“A. C. Gayle,

“Chairman of Road Committee.”

And Mr. Clawson indorsed it as follows:

“Accepted. L. F. Clawson, Parish Treas.”

In order to secure funds with which to carry on th.e work, Mr. Deas, .president of the company, sold these so-called certificates to 'the plaintiff, C. W. Lane, at a discount and inserted his name, thereon as transferee. Mr. Lane, subsequently told Mr. Clawson, the parish treasurer, and Mrs. Duringer, secretary of the police jury, that he had purchased these certificates. The contractor defaulted in August, and the surety company took over the contract on the 17th of that month.

On October 23rd following, Lane .filed a sworn statement of the amount due him with the recorder of mortgages, as provided in section. 2, Act No. 224 of 1918, which 'statement recites in part that the E. J. Deas Company, Inc., contractor, is due him the sum of $1,162.08 (being the total of the two certificates), “on account of having furnished money to said E. J. Deas Company, Inc., for the purchase of material in the construction of and the payment of labor on the Shreveport-Blanchard road.”.

Lane made demand on both the police jury and the surety company for payment, which demand was refused, and he brought this suit against the Deas Company (then in the hands of receivers), the police jury, the surety company, Bullen, and Gayle, in solido. The receivers made no defense, and judgment went against them hy default, ordering them to pay the amount in course of administration. Plaintiff’s demands against all other defendants were rejected, and he appealed.

Counsel for plaintiff in the brief filed in this court say that “the Caddo Police Jury would have paid plaintiff the amount of the assignments had not the surety company intervened and opposed the payment and agreed to take over the work. In consequence of this agreement, the Police Jury turned over to the surety company the funds due the contractor, E. J. Deas Company. Therefore, the actual controversy is between the plaintiff and the surety company.”

The question whether the surety company is liable to plaintiff for the amount of this claim under the circumstances depends upon the obligation which it assumed under the contract and bond, construed, as they must he, with reference to the law under which they were written.

The law relating to public works in force at the time this contract was entered into was Act No. 224 of 1918, section 1 of which provides that, when public roads are about to be constructed under a contract in excess of $500, at the expense of any parish, the parties shall reduce the contract to writing and sign it, and that it shall be the duty of the official representing the parish to require of the contractor bond, with surety, which contract and bond shall he recorded in the office of the recorder of mortgages. The letter of the law was complied with in this case. Under the terms of the contract, which is in evidence, the contractor obligated itself to furnish all materials and to do and perform all labor and work necessary for the completion of the paving according to the specifications, and the parish of Caddo obligated itself to pay for said work the sum of $110,000, “when completed in accordance with the plans and specifications.”

The bond furnished by the contractor is written in exact accord with the law; the obligation of the surety being to “secure the faithful performance of the contract, and the full payment of all suh-contractors, workmen, laborers, mechanics, and furnishers of materials and supplies,” according to the specifications.

The bond further specifically provided that, “upon failure of the principal to promptly and efficiently prosecute said work, in any. respect to the satisfaction of the engineer, the said sureties shall take charge of the work and complete the contract at their own expense, being allowed, however, any balance of the fund in the hands of the Police Jury due under said contract.” The contractor defaulted, and the surety took over the work, and the parish paid to it the balance in its hands under the contract.

That the parish of Caddo has fully complied with the contract and discharged its obligation cannot, we think, be questioned. It -agreed to pay $110,000 to have the road paved, and this it has done. There was never any objection made by this claimant or any other, to the solvency or sufficiency of the bond, which was timely recorded with the contract in the office of the recorder of mortgages of the parish where the work was to be done, all in accordance with the act. By thus complying with the law, the parish was relieved from the payment of any amount beyond the contract price. There is therefore no room for any demand by any claimant against the parish.

But the surety stepped in and took over the work and undertook to' complete it and did complete it at a loss to itself. By taking over the contract, the surety put itself in the place of the contractor and assumed its obligation, which was to complete the work according to the specifications. Klein vs. Collins, 159 La. 704, 106 So. 120.

In addition to its obligation to complete the work, the surety, under the law and under the bond, owed the further duty of paying the claims of all “sub-contractors, workmen, laborers, mechanics, furnishers of materials, and supplies” chargeable against the contract and work, whether those claims arose before or after it took over the contract. By taking over the contract, the surety put itself in the place and stead of the contractor, but it was not relieved of its duty to pay the claims of subcontractors, laborers, and materialmen. But its duty extended no further than to complete the work according to the plans and to pay the claims specifically mentioned in the law and the bond. It did not become obligated to pay the personal debts and obligations made by the contractor during the progress of the work, except such as were properly chargeable against the contract under the law.

Counsel for plaintiff contend that their' client’s claim is one of those chargeable against the work and which the surety is obliged to pay under the law. Proceeding upon that theory, plaintiff on October 23rd, more than 60 days after the contractor defaulted and the surety took over the work, filed with the recorder of mortgages a sworn statement of the amount due him in accordance with section 2 of said act, by virtue of which he claims a lien. But that gave him no lien, for the reason that the law grants no lien in favor of persons who advance funds to the contractor to carry on the work. Section 2 of Act No. 224 of 1918, provides that any person “to whom any money shall be due on account of having done any work, performed any labor on, or furnished any material in the construction, erection, alteration or repair of any such buildñng, road, etc.” (italics ours) may file a sworn statement, etc. But the plaintiff’s claim was not for work or labor done or for materials furnished. The sworn statement which he filed recites that the contractor is indebted unto him “in the sum of Eleven Hundred and Sixty-two Dollars and Eight Cents ($1,162.08), being money due affiant on account of having furnished money to the said E. J. Deas Company, Incorporated, for the purchase of materials in the construction of and the payment of labor on the Shreveport-Blanchard road.” In other words, plaintiff advanced the contractor money with which to prosecute the work. A similar situation was presented in the case of Red River Valley Bank vs. Louisiana, etc., 142 La. 838, 77 So. 763, and the court held that a statute providing for privileges upon works in favor of laborers, mechanics, and furnishers of materials confers no privilege upon public property in favor of persons not included in the enumeration, “such as those who lend money to the contractor.”

If, however, the money is paid directly by the claimant to workmen, laborers, or materialmen or by the claimant through the contractor as his agent for that purpose, and a contemporaneous conventional subrogation of their rights is obtained from such laborers and materialmen, then the claimant is protected, but not otherwise. Such was the holding in the very recent case of State et al. vs. Smith et al., 167 La. 301, 119 So. 56. There was no payment by the plaintiff to the laborers and materialmen, but the money was advanced to the contractor, who used it to pay such bills.

We find no merit in the contention that the parish of Caddo became bound to pay plaintiff’s claim. The affairs of a parish are administered by the police jury, which body alone can bind it. It is argued- that the orders given by the contractor to plaintiff were transfers of funds in' the hands of the police jury belonging to the contractor, and that the police jury accepted the transfers and thereby became bound. But the police jury did not accept the transfers and as a body knew nothing of them. The orders were presented to Mr. Clawson, the parish treasurer, who wrote upon them the word “Accepted” and signed his name as “Parish Treasurer.” The parish treasurer is elected by the police jury, and is at all times under its direction. He has neither administrative nor discretionary powers. His duties, as fixed by statute, are to keep the money belonging to the parish, to disburse the same according to law, to take receipts therefor, and to keep accounts of all receipts and expenditures of the parish. He can pay out no money of the parish unless the same has been previously allowed by the police jury or a court order. See Revised Statutes, see. 2639 et seq., Wolff, vol. 2, p. 1530.

In plaintiff’s first amended petition, he alleged that the parish treasurer “was duly authorized by the police jury of Caddo parish to accept notice of the certificates and the assignments made by E. J. Deas Company.” He was called upon to state specifically what authority the treasurer had to act for the police jury. He pointed out none, but in his second amended petition he alleged that A. C. Gayle and J. T. Bullen, “under the" rules, by-laws and regulations of the Police Jury and by resolution passed by the Police Jury were vested with full authority to act in the premises * * * and more particularly to certify to the instruments herein sued upon and to accept the transfers and assignments due the E. J. Deas Company by the Police Jury of Caddo Parish to C. W. Lane, and that their acts have been duly ratified by the Police Jury of Caddo Parish.”

In a third amended petition, plaintiff declared that it was not within his power to point out any ordinances or resolution of the police jury which vested said Gayle or Bullen with any authority to issue the aforesaid certificates, and being unable to do so, he amended his pleadings “by striking out that portion of said amended and supplemental petition which alleges that A. C. Gayle and J. T. Bullen were authorized by ordinances and resolutions of the Police Jury to sign the certificates herein, excepting, however, the resolution of the Police Jury which authorized the President of the Police Jury to enter into the contract with the E. J. Deas Company.”

On the trial of the ease, it was affirmatively shown that the issuance of these certificates was not authorized by the contract or by motion, resolution, or by-law of the police jury, or sanctioned by precedent. Bullen, the parish engineer, testified that, if he had ever before issued a like certificate during his seven years’ employment as engineer, he had no recollection of it. He further testified that the certificates were not intended to be evidences of an indebtedness of the police jury to the contractor, but only to show that the contractor had done work to that amount since the last estimate. Furthermore, there was no transfer of a present indebtedness and none intended. The assignments were conditional only. The orders on their face show that they were to be paid only on “final estimate.” Whether they would ever be paid was contingent on whether there would be due the contractor anything on “final estimate.” The contractor defaulted, and there was nothing left out of 'which to pay the claims.

The parties with whom plaintiff dealt in this case were authorized neither to represent nor bind the parish.

“Police juries, like all other corporations created under the laws of Louisiana, are artificial beings or persons who can act only in the mode prescribed by the law creating them. No officer of a police jury can legally bind, or stand in judgment for the corporation without special authorization.” Hoffpauir vs. Wise, 38 La. Ann. 704; Police Jury vs. Mayor and City Council, 38 La. Ann. 631; Union Sulphur Co. vs. Parish of Calcasieu, 153 La. 858, 96 So. 787.

Viewed in the most favorable light from plaintiff’s standpoint, this was a transfer' of only part of a debt. The police jury, not having assented to the transfer, is not bound. Red River Valley Bank vs. Louisiana, etc., supra; R. C. L., vol. 2, p. 621.

Counsel for plaintiff cite and apparently rely on the case of Baker vs. City of Shreveport, 165 La. 395, 115 So. 631. The distinction between that case and the one at bar is manifest. It has no application here.

Lastly, plaintiff asks in the alternative that, if the court should hold that neither the parish nor the surety company is bound, judgment should be rendered against Gayle and Bullen in solido. Counsel have cited no law or precedent under which they can be held for this debt, and we know of none.

The judgment appealed from is correct, and is affirmed, with costs in both courts.


author: REYNOLDS, J.

text:
    No. 3680
    Second Circuit
    BROADUS v. THE OHIO OIL COMPANY
    (November 18, 1929. Opinion and Decree.)
    (March 10, 1930. Writ of Certiorari and Review Refused by Supreme Court.)

      Julius T. Long, of Shreveport, attorney for plaintiff, appellee.
    R. L. Benoit, of Shreveport, attorney for defendant, appellant.
   REYNOLDS, J.

This is a suit under the Workmen’s Compensation Law (Act No. 20 of 1914 as amended).

Plaintiff alleged that while at work for defendant on November 5, 1928, digging ditches at a weekly wage of $31.50, the shovel with which he was digging slipped and the handle of it struck his left leg ’ in the vicinity of the knee and' so injured the leg that he had permanently lost the use or function of it in consequence.

He further alleges that he was paid compensation of $20 a week for three weeks and that thereafter defendant refused to recognize liability for further payments.

And he prayed for judgment against defendant for $20 a week, beginning November 5, 1928, with legal interest on each payment from its maturity until paid, less a credit of $60.

Defendant admitted plaintiff’s employment at a wage of $31.50 a week, but denied that he sustained any injury while in its employ and denied that plaintiff was disabled to any extent, and alleged that any injury plaintiff had sustained had long since healed and any disability resulting therefrom had long since ceased.

Defendant further alleged that on November 7, 1928, plaintiff reported to its foreman that he had sustained an injury while at work for defendant, and that on the faith of such representations defendant paid plaintiff compensation of $20 a week during three weeks and also provided him with physician’s services and medicines, and learning that the injury complained of by plaintiff had not been received by him while in its employ it discontinued furnishing him with physician’s services and medicines and discontinued paying him compensation.

On these issues the case was tried and there was judgment in favor of plaintiff and against defendant for $20 a week during his disability, not exceeding one hundred and seventy-five weeks, the first payment being decreed due as of November 5, 1928, with legal interest on each installment from its maturity until paid, less a credit of $60, and fixing the fees of the experts, Sanderson and Ragan, called by plaintiff as witnesses, at $25 each, and the fees of plaintiff’s attorney at one-fifth of the net amount awarded.

From this judgment the defendant has appealed.

OPINION

Plaintiff testified, regarding the manner in which he was injured and the nature of his injury.:

“Q. Well, tell the court just how it happened?

“A. Well, I was digging a ditch, and I struck my foot down on the sharp-shooter, and had on a pair , of rubber boots, and' I throwed my weight against it, it was muddy, and it just slipped off, and the' end of it come down and hit me on the knee.

“Q. You mean the end of the sharpshooter?

“A. Yes, sir.

“Q. You mean the shoulder?

“A. Yes, sir. And it hit me and it hurt me so bad, and it hurt me all down my leg, in my veins, and swelled up in my groins here to where I couldn’t go.

“Q. Was there anything the matter with your knee before that time?

“A. No, sir.”

The case was re-opened twice on the application of defendant, and on the third trial one of its witnesses, L. J. Brown, testified:

That on November 6, 1928, the day plaintiff alleges he was injured, he was hunting, and:

‘‘Q. Did you see Mr. Broadus that day?

“A. Yes, sir.

“Q. Tell us what occurred?

“A. I was down there hunting and was sitting down under the tree, hunting for— looking for — and I heard some one holler and I went walking on down there and I found' Mr. Broadus down there under a log, and I lifted the log off of him.

“Q. Did you lift the log off of him?

“A. Yes, sir.

“Q. Was - he on the ground?

‘‘A. Yes, sir.

“Q. Was that a pretty big log?

“A. No.

“Q. But you did lift it off of him?

“A. Yes, sir.

‘‘Q. He could not get up without your lifting the log off of him?

“A. No, sir. He was down and I had to lift it off of him, and he got up and went toward the road, and I hunted on out and he was trying to see if he could get a ride to town, and he was taken in by Mr. Martin. He came along there and picked him up.

‘‘Q. As he walked away from you, where you had taken the log off of his leg, did he limp?

“A. Yes.

“Q. What size log was that?

“A. I„ took' it to be eleven or twelve inches in diameter.

“Q. How long was it?

“A. It was a short log.

“Q. What?

“A. It was a dead log.

“Q. Did you see him after that day?

“A. Yes, sir.

“Q. You say that was on the 6th of November?

“A. Yes, sir.

“Q. How do you fix that date?

; “A. The reason I know it so well, it was iny birthday; no one forgets that.

“Q. About what time of day was that?

“A. Between three, three thirty or four; somewhere along that.

* * *

“Q. Now you had not told any one about seeing the log on his leg?

“A. No, sir; I did not want to have anything to do with it.

* * *

“Q. You knew this case was going on?

“A. Yes, sir.

“Q. When did they ask you about it?

‘‘A. Yesterday afternoon.

“Q. Then how come them to find out about the log having been on his leg?

“A. I do not know how come they to find it out.

“Q. What did they say that made you tell them that?

“A. I figured like it was that it was right and I would tell it.

‘‘Q. How was it broached; let the court have some idea how it came up.

“A. They asked me if I knew anything about it and I. told them that I did not want to have anything to do with it.

“Q. Then what?

“A. Then they said, ‘it is all right to tell the truth,’ and I says ‘yes,’ and after that happened I up and told them what I knew,

“Q. Will you tell the court about what time it was, without giving yourself too much latitude, when you pulled the log off of his leg?

“A. Three thirty or four thirty.

“Q. Was he hollering?

“A. Was hollering once in a while.

“Q. How far were you from him when you heard him?

“A. About a quarter.

* * *

“Q. Did you see him get in the car with the woman?

“A. No, sir; I heard the car stop and start up.

‘‘Q, You did not see it?

“A. Yes, sir; seen the car close to the bridge.

“Q. Do you know whose car it was?

“A. I taken it to be Mr. Martin’s car.”

Mrs. E. U. Martin testified:

“Q. Do you know Mr. Broadus?

“A. Yes, sir.

“Q. Mrs. Martin, did you see him on November 6th last?

“A. I saw him that evening — that night you might call it.

“Q. Tell what happened?

“A. Well, I had gone across the Bodcaw and was on my way back home and overtaken him on the bridge; I saw that he was crippled, so I stopped and asked him if he wanted a ride, and he says yes he would sure appreciate a ride home. I had the car pretty well loaded, but he-hung on the fender, and we took him to town.

“Q. Did he have any squirrels with him?

“A. Yes, sir; eight.

“Q. How do you fix that date, Mrs. Martin?

“A. What makes me know it was on the 6th of November, I- know that a bill was charged to me; have two little nieces; the Cook baby was sick and I went to get some syrup, and got some cane juice, and we got some medicine, and the Keller child was sick, and the man could not tell me and my sister apart, and he charged the bill to me.

“Q. Did the doctor give you a prescription that day?

“A. It was charged at the drug store.

“Q. Did you see the prescription?

“A. Yes, sir; went in to pay my bill, and he marked it ‘Martin baby Cook’ instead of ‘baby Cook.’

“Q. Would you recognize that prescription if you were to see it?

“A. Yes, sir; I certainly would.

“Q. I. will ask you if this is the prescription you are talking about? (Showing witness document.)'

“A. Yes, sir; there is part of the ‘M’.

“Q. Did he say anything about -being hurt?

“A. Well, he said something about being hurt. I was driving and did not pay much attention. He was talking about getting hurt someway that evening.

“Q. What time of day was that, Mrs. Martin?

“A. It was after dark; I had my lights on.

* * *

“Q. You heard this young fellow Brbwn swear that you picked him up at four thirty in the afternoon?

“A. I was not paying him any mind.

“Q. He -must be wrong? About that time? You did not pick him up at that time?

“A. It was after dark when I picked him up.” '

Mrs. Clara Martin testified:

“Q. Did you have occasion to see Mr. Broadus^ during the early part of November?

“Á. Yes, sir.

“Q. This past November?

“A. Yes, sir.

“Q. Will you tell us what took place, please?

“A. I was with my sister-in-law, Mrs. E. G. Martin, and he was coming across the Bodcaw bridge. She picked him up in her car and brought him in. I was in the car with her when she picked him up.

“Q. Did you see him before you picked him up?

“A. Yes, sir; he was walking on the Bodcaw bridge when she picked him up.

“Q. Did anything appear to be the matter with him?

“A. He was limping pretty badly.

“Q. Do you know what date that was?

“A. On the 6th of November.

“Q. How do you fix that date?

“A. Well, two days after that, Mrs. Cox’s little girl was sick. We had gone to see Mrs. Cox and she had the doctor with her and he had given a prescription showing that it was the 8th.

“Q. Was that the same day that you picked Mr. Broadus up, the day that the doctor gave the prescription?

“A. No, sir; it was two days after that that they had Dr. McKellar.

“Q. They had the doctor two days after your sister picked Mr. Broadus up?

“A. Yes, sir. '

“Q. On what date did Mrs. Cox have the doctor?

“A. The 8th of November.”

The testimony of the last two named witnesses contradicts that of the witness Brown' as to the time of the day plaintiff was in the woods,' and tends to discredit his testimony as to seeing Mrs. Martin’s car near the Bodcaw bridge.

Defendant introduced the testimony of sixteen witnesses in the effort to prove that plaintiff had stated that his knee was hurt by a log rolling on it while he was in the woods hunting game and also to prove that at the time of the trial he was able to do work of a reasonable character.

The testimony of these witnesses as to plaintiff’s ability to do work of a reasonable character does not impress us in view of the testimony of the medical experts, the report of the radiologist, and the admission of defendant’s counsel found in the record.

In the course of the trial the following colloquy took place between the court and defendant’s counsel:

' “By the court: If there is no dispute about whether the man was injured, we can probably curtail the expense as well as the length of the record.

“Mr. Benoit (counsel for defendant): So far as I am concerned, there will be no dispute that he has an injury to the knee; that is, so far as the injury is concerned. As I say, our answer does not set that forth, but we determined that after we filed an answer, and we didn’t consider it necessary to file a supplemental answer, but just to make an admission, and we don’t propose to contest the fact that he has an injury to his knee. Now, if Mr. Long (counsel for plaintiff) wants to prove the extent of it, he can proceed, but we are not contesting that fact.”

In view of this admission of counsel for defendant we do not deem it necessary to consider the evidence- as to whether or not plaintiff was injured or the nature and extent of his injuries or whether at the time of the trial he was unable to do work of a reasonable character in consequence of his injuries, and shall confine ourselves to the issue as to whether or not plaintiff was injured in the course of his employment by defendant and whether his disability at the time of the trial was the result of such injuries.

Disregarding entirely the testimony of plaintiff himself as to when and how he was injured, we find ample testimony in the record to show that it happened in the course of his employment by defendant.

Grady Nelson testified that he and plaintiff were at work together on the same job on November 5, 1928, and:

“Q. State whether or not an accident happened there to him at that time, and if so, what?

“A. Yes, sir. While I was working there, why — so I was coming on down the hill and stopped and rolled me a cigarette and he went to start in to work then and he shoved down on the sharp-shooter and his foot slipped or struck a root or something and struck his knee on the shoulder of the sharp-shooter and he stopped and commenced rubbing, and he says: ‘That sure does, hurt.’ I says: ‘May be it will quit directly’ or something like that. I was just going walking on, and I says ‘I had better go on up the line’ and he stayed around there and rubbed his knee a while, and directly he came on up and stacked his tools, and the last I saw of him he was going in home from being hurt. * * *

“Q. What is a sharp-shooter?

“A. It is a little, narrow spade, six inches wide and sixteen inches long.

“Q. Well, how was it that he got hurt?

“A. Well, he was digging a ditch. , He had his foot upon there, and he had done stopped digging, and I reckon got in a hurry or something, and thought he had better hurry up before the pusher saw him; so he shoved down on it, and struck a root and his foot slipped off and he wrenched over and he hurt his knee.

* * *

“Q. What time in the morning was that?

“A. Between eight and nine o’clock.

“Q. Did he leave the job right away after that happened9

“A. Well, no. About fifteen or twenty minutes — something like that. I went on up the line and went to work, and when I saw him again he had stacked his tools, and I heard him tell the pusher who had charge of the crew his leg was hurting so he could not work.”

C. Y. Modisette testified that he witnessed the injury to plaintiff, and:

“Q. Tell the court what you know about it?

“A, * * * Broadus had on a pair of gum boots, and he shovels with his left foot, and lie stepped on that shoulder of that sharp-shooter, and that gum boot slipped off and he hit his knee in there somewhere. He just craned over and craned down with it and he began to rub his knee, and I walked on then * * * just across a little drain on the next hill, and Broadus came on over there — wasn’t over fifteen minutes from .that time the boot slipped off that he comes over there and asked me where the pusher was, and I said ‘sitting right on top of the hill over there’ and he says ‘boy, I am hurt and I got to go in’ and he goes on up to Taylor and talks to Taylor a few minutes and he comes on back by me going in home —he said he was going in.

“Q. What time of the morning was that?

“A. About nine o’clock.

“Q. When did you see him next after he went home?

“A. I seen him that night about 6:30.

“Q. What was he doing when you saw him?

“A. Lying in bed.

“Q. Did you see him doing anything to his knee?

“A. I seen him bathing it in sally water.”

Mrs. Emma Roberson testified that she resided within a hundred feet of plaintiff’s home and saw him and her husband go off together to work on the morning of November 5, 1928, and saw plaintiff return home crippled between eleven and twelve o’clock the same day. That he was not crippled when he left that morning, and that on his return home he went to bed and remained there. That plaintiff’s wife was sick and she, Mrs. Roberson, had occasion to visit her that day and the next and in that way saw plaintiff at home in bed on both days. She fixes November the 5th as the day she saw plaintiff come home crippled and go to bed by the fact that on that day she telephoned to the ’Baptist Hospital at Alexandria, Louisiana, for accommodations for a Mrs. J. P. Donohoe.

Another neighbor of plaintiff’s, Mrs. Annie Persinger, testified that she went to see his wife on November 6th and found plaintiff in bed. That she arrived at plaintiff’s house about 9 o’clock in the morning and remained there a couple of hours and that when she left he was still in bed.

Plaintiff admitted going squirrel hunting but denied that a log rolled on his leg and denied that he had even seen defendant’s witness, Brown. He was asked:

“Q. You went hunting after you put in your claim?

“A. Certainly did.

‘‘Q. She (meaning Mrs. Martin) did actually pick you up?

“A. She did; and I gave her two squirrels, and she didn’t deny it. I gave her two squirrels.”

He further testified that it was not on November 8th but on November 10th that Mrs. Martin picked him up.

“Q. Did you ever hur-t your leg over in the woods?

“A. No, sir; I did not.

“Q. After you got hurt?

“A. No, sir; never.”

We are satisfied that it was not on the 6th but on the 10th of November that plaintiff went hunting and was picked up by Mrs. Martin at the Bodcaw bridge. It being conceded that plaintiff was injured in the course of his employment and that he was not capable, at the time of the trial, of performing work of a reasonable character, the burden of proof was on defeudant to show that the disability was not the' result of the injury, and this burden the defendant failed to discharge.

The trial judge, who heard the witnesses testify and observed their demeanor on the witness stand, rendered judgment in favor of the plaintiff. Under the evidence and the law we think the judgment is right and it is affirmed.