author: LECHE, J. LECHE, J.

text:
    No. 239
    First Circuit
    WYATT ET AL. v. FINLEY ET AL.
    (February 15, 1928. Opinion and Decree.)
    (June 12, 1928. Judgment rendered on Rehearing.)
    (October 29, 1928. Reversed by Supreme Court on Writ of Certiorari and Review.
    Docket No. 29,415.)
    Taylor & Parker, of Baton Rouge, attorneys for plaintiff, appellee.
    Taylor, Porter, Loret' and Brooks, of Baton Rouge, attorneys for defendant, appellant.
   LECHE, J.

The Travelers Insurance Company appeals from a judgment condemning it to pay to plaintiffs compensation in a sum exceeding four thousand dollars. The plaintiffs are the surviving dependents of Jesse Wyatt, who is alleged to have been killed while in the employ of one Sam E. Finley, principal contractor, and Enoch Pittman, sub-contractor, during the performance of certain duties arising out of and in the course of his employment, and the Travelers Insurance Company is surety in a policy of insurance issued to Wyatt’s employer to indemnify said employer in case of liability under the compensation law of Louisiana.

There are two main defenses presented by the Travelers Insurance Company. (1) That Finley the principal contractor and indemnitee, who is an absentee from this State, was not cited or adjudged liable for the compensation; (2) that plaintiffs have faile.d to prove that Jesse Wyatt, the deceased emplpyee, was killed by an accident arising out of and during the course of his employment'. Our learned brother of the District Court over-ruled both of these defenses and rendered the judgment which is brought up on this appeal.

(1) The liability of the insurance company is regulated by special statute and ■not by the articles of our Code fixing the manner of establishing and enforcing the liability of sureties in general. Section 23 of Act 20, page 58, of 1914, known as the Employers’ Liability Act, regulating the issuance of insurance policies under the Act, provides that such agreement (indemnity insurance) shall be construed to be a direct obligation by the insurer to the person entitled to compensation, enforceable in his name. The language of the statute which should be read into the bond is so clear that it cannot be misconstrued, and therefore plaintiffs were entitled to bring the present action directly against the Travelers Insurance Company as surety, without suing or first obtaining a judgment against Finley, the employer. We are therefore of the opinion that the trial Judge properly over-ruled this defense.

(2) Whether Jesse Wyatt was killed while performing his duties and during the course of his employment is a question of fact, and proof thereof should affirmatively appear in order to entitle plaintiffs to recover. There are two witnesses who testified on that subject. E. J. Wyatt, brother of the deceased, says that he saw Jesse’s body after he was killed, and he says further that the truck which Jesse had been driving was all smashed, down on the railroad track. He did not see the killing. Enoch Pittman says that he knows Jesse was killed and that Jesse at that time was engaged in driving a truck, but like E. J. Wyatt, he did not see the accident. According to this testimony, it is probable, as claimed by plaintiff, that Jesse Wyatt was killed while .driving the truck, by a collision with a railroad train, but it is not shown whether Jesse was then actually engaged in the performance of his duty and whether the accident arose out of his employment. Again it is not shown whether he was actually killed by the train. There is nothing to show the condition of his body and the real cause of his death. These are only matters of probable inference under the record. They are easily susceptible of proof, if true, and should have been shown with certainty and not' left to probable inference.

Under this state of facts, there are two things which this Court may do, either dismiss plaintiff’s demand as in case of non-suit, or remand the case in order to give plaintiff the opportunity to supply the necessary proof showing the circumstances under which Jesse Wyatt was killed.

The Employers’ Liability Act, like all compensation statutes, is founded upon motives of public policy and not upon natural individual rights. The State has an interest in keeping its citizens who perform actual industrial service, from becoming paupers and objects of public charity and it is with this object in view that such statutes are enacted, construed and enforced. Technicalities in matters of proceedings are expressly discountenanced in their enforcement.

Believing then that the interests of public justice will be thereby better subserved, the case will he remanded for the purpose of enabling plaintiff to offer proof of the manner in which and the circumstances under which Jesse Wyatt was killed. Such a course lies within the equity powers of the Court, especially in a matter of this kind. Indeed precedents are not wanting to justify the Court in so doing. Succession of Finnegan, 135 La. 475, 65 So. 614; Crawford, Jenkins & Booth vs. Fisher, 135 La. 16, 64 So. 927; Bell vs. Germain & Boyd Lbr. Co., 131 La. 974, 60 So. 635; Police Jury vs. T. & P. Ry. Co., 122 La. 389, 47 So. 692.

For these reasons the judgment appealed from is set aside and avoided and it is ordered that this case be remanded for the purpose of giving the parties an opportunity to offer evidence as to the circumstances under which Jesse Wyatt was killed, and whether he was at that time engaged in performing duties arising out of and during the course of his employment, plaintiffs to pay the costs of appeal, and all other costs to be taxed when the case is finally terminated.

ON REHEARING

LECHE, J.

We heretofore held in this case, that under Section 23, Act 20, page 58, of 1914, an employee could, without any (previous formality, sue directly the surety of his employer. After reconsidering this question on application for rehearing, we now believe that' we erred in so holding. The language of the statute is as follows:

“That no policy of insurance against liability arising under this Act shall be issued unless it contains the agreement of the insurer that it will promptly pay to the person entitled to compensation all installments of the compensation that may be awarded or agreed upon, and that the obligation shall not be affected by any default of the insured after the injury, or by any default in the giving of any notice required by such policy, or otherwise. Such agreement shall be construed to be a direct obligation by the insurer to the person entitled to compensation, enforceable in his name. No policy of insurance against liability under this Act shall be made unless such policy shall cover the entire liability of the employer under this Act.” ■

The responsibility of the insurer is, by the terms of the law, limited to the payment of the installments of the compensation that may be awarded or agreed upon and consequently does not cover the payment of the installments of the compensation that have neither been awarded nor agreed upon. It is not alleged nor is it pretended under the pleadings in this case, that there ever was any award or agreement as to the installments of any compensation due by the employer to the employee. The conclusion is therefore irresistible that plaintiff has not brought herself within the requirement of the statute, before attempting to enforce directly the obligation of the insurer towards the employee. Judge Claiborne, in a well-reasoned opinion of the Orleans Court of Appeal, in the case of Stouff vs. Travelers Insurance Company, 7 La. App. 13, so held.

The language of Section 2'5 of the same Act, confirms this construction of Section 23, for if the employee could sue directly the insurer of his employer, without any previous formality, there could be no necessity for the enactment of Section 25, which permits a direct action where the employer has been shown by an unsatisfied writ of execution to be insolvent.

Counsel for defendant insurance company, also cite another case decided along the same line by the Orleans Court of Appeal, viz: Griffin vs. Hotard, No. 11,028 of the docket of that Court, 7 La. App. 604. This decision is not accessible to us. We therefore rest our conclusion on the case of Stouff vs. Travelers Ins. Co., which appears to us to be sound and logical.

Counsel for plaintiff stresses particularly clause D in the insurance contract in this case, which substantially says that the contract is made for the benefit of the employee and is enforceable against the insurance company by such employee in his name or in his hehalf, at any time, and in any manner permitted by law, whether proceedings are brought against the insurance company alone or jointly with the employer. Of course, a surety can enter into a conventional agreement with an employer and agree to any condition not reprobated by law. But reading further, clause G of the contract clearly shows that clause D does not support plaintiff’s position as to her right to sue directly without formality. Clause G specially provides that no action shall lie against the insurance company to recover any claim for loss under paragraph 1, until such loss shall have been fixed or rendered certain by final judgment against the employer or by agreement between the (parties, just as is provided in Section 23 of the Compensation' Act. ' :

Eor these reasons our former judgment is set aside, and it is further ordered that the judgment appealed from be avoided, and reversed and plaintiff’s demand rejected at their costs as against the Travelers Insurance Company.


source: Caselaw Access Project

author: LECHE, J. Per Curiam: ELLIOTT, X,

license: Public Domain

text:
    No. 323
    First Circuit
    SULLIVAN v. NEW ORLEANS & NORTHEASTERN R. R. CO.
    (June 12, 1928. Opinion and Decree.)
    (October 3, 1928 Rehearing Refused.)
    (November 26, 1928. Writ's of Certiorari and Review denied by Supreme Court.)
    Ott & Rich, of Bogalusa, and Spencer, Gidiere, Phelps and Dunbar, of New Orleans, attorneys for plaintiff, appellee.
    B. M. Miller, of Covington, and W. J. Suthon, Jr., of New Orleans, attorneys for defendant, appellant.
   LECHE, J.

Plaintiff owns lots 4 and 5 in Section 1, Township' 8, South Range 14 East in the Greensburg Land District, Louisiana, included within the territorial limits of the Parish of St. Tammany. He alleges that defendant owns lands in Sections 40 and 41, in the same township and range, situated contiguous to and adjacent to his lots 4 and 5. That the boundary line between his said land and that of defendant has never been determined except by a private survey made on behalf of petitioner, which survey defendant is' unwilling to accept. That it is necessary that said boundary be judicially determined, and with that end in view, plaintiff prays for the appointment of a surveyor by the Court and that said boundary be judicially ascertained and fixed in accordanee with law.

The District Court thereupon appointed a surveyor, who proceeded -to determine a boundary line between the lands of plaintiff and defendant, and the question involved in the present litigation is whether the report of the surveyor so appointed is correct and should be approved.

From a judgment approving and homologating the report of the surveyor thus appointed by the Court defendant has taken the present appeal.

It is conceded that the titles of both plaintiff and defendant emanate originally from the United States Government, that all of these lands were at one time surveyed under authority of that government, that plaintiff’s land is bounded on the west by a line originally fixed by government surveys, and that defendant’s land is bounded on the east by a line also fixed by government surveys. Whether the line bounding plaintiff’s land on the west and that bounding defendant’s land on the east is the same line is one of the controlling issues in the case. According to the Government map filed in the record, there is a small stream indifferently called Brockman’s Bayou and Brockman’s River, which separates the land of the plaintiff from those of the defendant. According to the report of the surveyor appointed by the Court in the case, and the map which he has made and annexed as part of his report, Brockman’s Bayou is entirely within the limits of plaintiff’s lands. The line fixed by the Court’s surveyor is west of Brockman’s Bayou and is delineated as the one line of separation or the boundary line between the lands of plaintiff and' the lands of defendant. At some points it is a considerable distance west of Brockman’s Bayou and it is thus made to include lands west of Brockman’s Bayou, as part of the lands owned by the plaintiff.

It is not disputed that where lands have been originally fixed and adopted by Government surveys, a re-survey of such lines must be confined to re-establishing them as originally fixed and located by the Government. It was therefore encumbent upon the surveyor appointed by the Court in this case, to ascertain where the original line forming the western boundary of plaintiff’s lots 4 and 5 was located by the Government survey, and where the line forming the eastern boundary of defendant’s portions of Sections 40 and 41 was located by the Government surveys, and eventually to ascertain whether these two lines are one and the same.

Plaintiff says in his brief that the line forming the eastern boundary of defendant’s land is the same line as that forming the western boundary of his land. The same assertion is made in his testimony by the surveyor appointed by the Court in the case. When asked by courfsel for defendant whether as a matter of fact, he had any field notes specifically describing the location of the western boundary of plaintiff’s land, the surveyor answered that the western boundary of Section 1 (containing plaintiff’s land) is the east boundary . of Sections 40 and 41 (containing defendant’s land). That may be true, but it is not supported by the Government map on file in the record, for that map shows Brock-man’s Bayou as separating the eastern boundary of defendant’s land in Sections 40 and 41 from the western boundary of plaintiff’s land on Section 1. Evidently the surveyor did not have any fiéld notes, if any there are, showing the survey of lots 4 and 5 of plaintiff, and his answer is a conclusion which he draws from his survey of defendant’s land.

In the surveyor’s report there are numerout discrepancies between his findings, in courses and distances and especially in distances, from the courses and distances given in the Government field notes. It may be that he is right and that measurements and directions- in the field notes are erroneous. These discrepancies are not great but they certainly show tne necessity for the application of the rule of law that natural objects and monuments are more important than courses and distances in ascertaining the location of unknown and disputed lines. There might be error in measuring courses and distances, but there can be none in locating natural objects and monuments.

According to Article 828 of the. Civil Code “when two estates are separated by a public road or by a water course which serves as a common limit, the' action in boundary cannot be sustained in relation to them,. unless the road or water course has experienced some change in its situation.” The plat of survey made under Gov-eminent authority, as before stated, shows that Brockman’s Bayou separates the land of plaintiff from the land of defendant. The titles of both parties are derived from the Government and are predicated upon this survey. The evidence fails to show any change in the situation of Brockman’s Bayou, except to the extent that there was some dredging to make a log pond, and some digging of barrow pits along the western bank of that bayou, but this in no way encroached upon plaintiff’s land on the east side of the bayou.

Our view of the evidence in this case leads us to the opinion that the estate of plaintiff and defendant are separated by a water course, whose situation is not shown to have been changed, and that according to Article 828 of the Civil Code of Louisiana, the present action in boundary should not be sustained.

For these reasons the judgment appealed from is avoided, set aside and reversed, and plaintiff’s demand rejected at his costs.

ON APPLICATION POR REHEARING

Per Curiam:

Our original opinion sufficiently sets forth the question submitted for decision in this case. We therein stated that according to the official plat of survey on file in the U. S. Land Office, the same plat upon which plaintiff’s title is predicated, it appears that the lands of plaintiff and those of defendant are separated hy a water course called Brockman’s Bayou, and finding no evidence that the bed of this water course had been changed, we therefore held that plaintiffs’ action should not be sustained and cited C. C. Art. 828 as authority for our finding.

In the amended orders of survey under which the eastern boundary lines of Sections 40 and 41 were established, the surveyor was expressly instructed in one instance to begin at the southeast corner of Crawford’s claim (Sec. 40) on Brock-man’s River, thence down said river one mile; and in the other, to begin at the northeast corner of the claim of Wm. Brockman (Sec. 41) thence uip Brockman’s River and old West Pearl River, one mile, etc. The surveyor most presumably followed these instructions, the plat which he made of these surveys so indicates, and the line which he thus established is the eastern boundary line of Sections 40 and 41, the same line which according to the survey in the present case does not in fact follow Brockman’s River.

We therefore believe that the conclusion which we first reached should remain undisturbed.

The application for rehearing is refused.

ELLIOTT, X,

dissenting. The plaintiff Sullivan alleges contiguity and brings an action of boundary, contending that the western limits of lots 4 and 5 of Section 1, form the eastern limits of the head-rights Nos. 40 and 41, T. 8, S. R. 14 E., Greensburg Land District of Louisiana, and vice versa, etc.

. The contentions of the plaintiff are supported by a surveyor appointed by the Court to run the boundary in question. He is corroborated by another surveyor, who accompanied the survey in behalf of the defendant. The plat of the survey shows parcels of highland colored yellow on the plat and over which the boundary line is claimed to run, part of the highland being apportioned by the surveyor to the headrights as accretion, and part to the lots 4 and 5 of Section 1. There is no evidence to the contrary and the present situation must be looked on as established.

But the amended order, directing that headrights 40 and 41 be located and surveyed, field notes of the government survey and plat made based thereon, approved July 12, 1852, shows Brockman’s River or Bayou in 1824-1825, also in 1851-52, as a water course, issuing from old west Pearl River and serving as the common limit of said headrights and Section 1 in the same township and range from the place where it emerged to the place where it returned into the stream. The head-rights are shown as situated on the western and Section 1 as situated on the eastern side of the same. Lots 2, 3, 4 and 5 of Section 1, together with a small parcel of other land are shown on the Government plat as forming an island with lot 4 situated north of and contiguous to lot 5. This was the situation at the time the headrights were located and under the law, C. C. 828, must fail as the majority of the Court holds, unless Brockman’s Bayou is shown to have experienced a change in its situation since then. The plaintiff does not allege that the former situation has changed, but it is evident from the testimony on the subject that great changes have occurred. It was impossible for the lower court to escape that conclusion, but according to the showing made on the subject, the rights of the parties can not be acted on with any certainty without a further showing necessary to clear up the existing situation. According to the present showing, lots 4 and 5 of Section 1 are not now contiguous to each other and do not form an island, but quite an expanse of water intervenes between them and each constitutes an island. The patent from the State offered in evidence and under which plaintiff claims lots 4 and 5 of Section 1, states that these lots were sold according to an official plat of survey in the State Land Office. This plat was not offered in evidence. The rights of the plaintiff to part of the land called for by the patent should not be rejected without an examination of the plat because the action may lead to contradictory action as to other part's called for by the patent.

It is evident that Brockman’s Bayou did exist as a river or stream and as a boundary limit at the time of the Government survey, but it is equally as evident that it is not now in its former place in existence as a stream. Parts of its old bed opposite the headrights and opposite lots 4 and 5 of Section 1 at the time of the Government survey are dead water, part highland, part' low swamp, but the stream is not where it used to be. The stream has retired quite a distance eastward and southward and has ceased to separate the two headrights and the lots 4 and 5 of Section 1. And while that is true, the record does not show whether the lots 4 and 5 of Section 1, on the Government plat, and the lots 4 and 5 of Section I called for by the patent under which plaintiff claims, is the same ground, nor whether the lots 4 and 5 of Section 1 claimed by the plaintiff under the patent from the State and the two islands designated as lots 4 and 5 of Section 1, on the plat of the present surveyor, is the same ground, nor can it be said at present what connection, if any, exists between the two islands designated as lots 4 and 5 of Section 1 on the plat of the present surveyor, and the highland colored yellow on his plat.

The law on the subject of accretion, dereliction and islands formed by the retiring non-navigable streams should be taken into account and the suit instead of being dismissed, should, in my opinion, be remanded for a new trial and the parties given an opportunity, in view of the showing made, to amend their pleadings so as to apply to The situation.


author: LECHE, J.

text:
    No. 284
    First Circuit
    HAAS ET AL. v. OPELOUSAS ST. LANDRY BANK & TRUST COMPANY
    (May 8, 1928. Opinion and Decree).
    (June 12, 1928. Rehearing Refused.)
    (July 20, 1928. Writs of Certiorari and Review granted by Supreme Court.)
    (November 26, 1928. Writs of Certiorari and Review recalled by Supreme Court.)
    Jno. W. Lewis, of Opelousas, attorney for plaintiffs, appellants.
    Dubuisson, Perrault and Burleigh, of Opelousas, attorneys for defendant, appellee.
   LECHE, J.

On January 18, 1926, plaintiffs deposited in the defendant bank, a draft for $1969.00 drawn on the American Rice Milling Company of Crowley, La., for credit to their checking account. The draft had been drawn by B. C. Sloan and was attached to a bill of lading. It represented the price of rice sold by Sloan to the American Rice Milling Company. The rice had been shipped by Sloan to Crowley, “shipper’s order notify American Rice Milling Company.”

The draft was sent by defendant to the Crowley Trust and Savings Bank for collection. It was paid on January 21, 1926, and the Crowley Trust and Savings Bank, remitted to defendant its own check, drawn on the Marine Bank & Trust Company, New Orleans, to cover the amount collected. Defendant received the check on the Marine Bank, on January 23, 1926, but on the morning of the same day, the Crowley Trust & Savings Bank failed to open its doors, and went into the hands of a receiver. The result was that the amount of the draft, $1969.00, is considered lost by the failure of the Crowley Trust & Savings Bank, and the question in this case, is, who must bear that loss, plaintiff or defendant.

There was no special agreement entered into by the parties on January 18, 1926, when the draft was deposited by plaintiffs in the defendant bank. It is only reasonable to assume that the deposit was made and accepted, to be dealt with in the ordinary course of trade and according to custom. Plaintiffs were large depositors in the defendant bank, in which it is said that their deposit account reached as high, at times, as $50,000.00. They are stockholders in the bank and both they and their manager and agent are familiar with banking customs. The defendant accepted the draft and sent it out for collection, in the usual way and without unreasonable delay. No negligence can be charged to the defendant. It sent the draft to another hank which it ■ had no reason even to susp.ect as being unreliable or insolvent and acted promptly , and in good faith.

In support of its non-liability, the defendant contends that its service in the. collection of the draft was free, and that it should not be held responsible for the failure of the Crowley Bank whose insolvency it had at the time, no means to ascertain and whose standing was then not even open to suspicion. It contends further that it acted with prudence and promptly, and is not chargeable with the least fault or negligence. On the other hand, plaintiffs say that the large checking account .which they maintained in the bank, furnished it a very remunerative consideration for this service, but they fail to allege and show any specific negligence on the part of defendant.

The implied agreement between a bank and its depositors in our opinion, is not prompted altogether by altruistic motives on either side. The depositor is relieved of the burden of holding his funds to insure their safekeeping, and he enjoys at the same time the convenience of drawing upon the same in such amounts and at such times as he may wish, and in some instances by special agreement ‘he additionally receives interest on his daily balances. The bank or depositary, on the other hand, uses these funds, and it derives revenue therefrom in making loans and discounts. The benefits therefore in the implied agree1 ment between the depositor and the depositary may be said to be mutual.

It was held in Clason & Co. vs. New Orleans, 46 La. Ann. 1, 14 So. 306, where the sole question related to taxation, that the relation between the depositor and the bank, is that of creditor and debtor. But that must he taken in the sense that every depositor is the creditor of the depositary to the extent that the latter owes the former the duty of returning the thing deposited, or its equivalent. The Civil Code provides that the depositary is hound to use the same diligence in preserving the deposit that he uses in preserving his own property. It must also be observed that although the depositary does not become the owner of the thing deposited, it is equally true that a bank receiving money on deposit it entitled to use that money under such restrictions as are provided for in the banking laws of the country, or else it could not earn revenue sufficient to maintain its existence.

As a matter of fact, in this case, there is nothing to take it out of the class of ordinary agreements between a bank and its depositors, and it was undoubtedly understood by both parties that the draft was taken for collection through the ordinary channels, and its proceeds when collected, were to be kept on deposit subject to be used by the bank and subject to be drawn by the plaintiffs, according to banking customs. The fact that the defendant gave plaintiffs a receipt or deposit slip on January 18, 1926, does not mean that it received the $1969.00 in currency, or that it acquired the ownership of the draft or guaranteed its collection. In fact there are printed in clear type, on the face of the deposit slip the following words: “All checks and drafts are credited subject to final payment.” The only guarantee that plaintiffs had any right to expect and which is implied in the contract of deposit, was that defendant would use the same diligence to collect the draft and to preserve its proceeds, as it would if the draft had actually belonged to it.

It appears unreasonable that the defendant bank should he held to be an insurer of the safety of the draft and bill of lading, while in transit and in process of being collected, or of the proceeds before such proceeds were actually received by it and placed in its vault. The Code merely requires diligence and in the present case, there was diligence on the part of the defendant depositary.

To say that the loss which was caused by the fault of the Crowley Trust & Savings ■Bank, must fall on the one of the two innocent parties in this suit who might have prevented the loss, is merely begging the question. For it is impossible to conceive how either of them might have guarded against an occurrence which it was impossible for either of them to foresee.

Learned and industrious counsel on both sides, who have presented their views in a masterly and skillful manner, concede that there are two lines of decisions among the Courts of the country, on the subject of the responsibility of a depositary bank towards its depositor, in the collection of drafts, checks and other commercial paper of a like nature. One line of decisions holds in substance, that the intermediate collecting agencies between the depositary bank and the drawee of the paper, are the agents solely of the depositary bank and that the depositary is liable for the fault and negligence of such collecting agencies, and the other holds that such intermediate collecting agencies are the agents of the depositor and therefore that the depositary bank is not liable for their fault or negligence. Each of the learned counsel then claims that the decisions of the Supreme Court of Louisiana, have aligned this State with the one or the other line of decisions accordingly as it may be favorable to his side of the controversy in the present case.

There are two decisions of the Supreme Court of Louisiana upon that subject and they apparently conflict with one another, so that it cannot be said that we have any established or crystallized jurisprudence placing this State in line with one or other theory adopted by the Courts of our sister States. These two decisions are, Ezekiel Hum vs. The Union Bank of Louisiana, 4 Robinson 109, and Martin vs. Hibernia Bank and Trust Company, 127 La. 301, 53 So. 572.

The conflict between these decisions consists in the fact that in the Martin case, the organ of the Court, says in effect that there is -no privity between the sub-agent and the principal unless the principal has been expressly vested with the power to substitute someone, (called a sub-agent) in his place, that if a sub-agent is thus appointed without special authority from the principal, the sub-agent owes no duty to the principal as there is no privity between them. He then held, if we understand the decision correctly, that Martin, owner of the check, had no right of action against the Hibernia Bank for its fault or negligence as sub-agent of the depositary bank, the bank of Areola. In the syllabus of the decision the Court says:

“A bank receiving a check for collection is liable, under the commercial law, to the depositor for any loss occasioned by the conduct of any sub-agent employed by it to assist in making the collection; but in such case there is no privity of contract between the depositor and the sub-agent.”

The bank which received the check for collection in that case, was the Areola bank. The Areola bank was not a party to the suit and its liability to Martin was not an issue in the case. The important point however, which we understand to have been decided in the case is, that the depositary bank alone is responsible to the depositor for the fault or negligence of the other bank or banks who have handled the check or draft for collection at the request of the depositary bank.

On the other hand, Judge Martin, who was the organ of the Court in "'the Hum case, concedes that under Art. 3007 C. C. (old number) 2976, the agent is answerable for the .person substituted by him to manage in his stead, if the procuration did not empower him to substitute, but he says that this is an affirmative pregnant with the negative, that he is not answerable if the procuration did empower him to substitute. This power, he says is implied, whenever he knows that the agent will necessarily be obliged to act by a substitute. There is no doubt that plaintiffs in the present case were fully aware of the customs and usages of the bank, and they knew that the bank could not go in person to Crowley to make the collection, and that it would resort to the ordinary mode of collection, to-wit: The agency of a bank at Crowley where the draft was made payable. The power of using another bank at Crowley as a substitute, was therefore implied.

It is passing strange that if the Supreme Court had intended to change the law as construed by it in the Hum case, it made no reference or allusion to that case in the decision of the Martin case. It is apparent that the Hum case was not brought to their attention. The conflict between the two decisions appears irreconcilable, and believing that the decision in the Hum case accords better with the law and especially with the equities in the present case we believe that we are authorized to adopt it as the law governing the present case.

In the Martin case one of the outstanding facts was that the Hibernia Bank sent the check for collection to the bank in Cleveland, Miss., upon which it was drawn. Both the District Court and the Orleans Court of Appeal held that the Hibernia Bank was responsible for this act of imprudence, when there was another bank in Cleveland by whom the collection might have been made, but the Supreme Court reversed both of these decisions on the ground hereinbefore stated, that Martin had no right of action against the Hibernia Bank, a sub-agent employed by the Bank of Areola, without express authority from Martin.

Since the rendition of the Martin decision in 1910, the Legislature adopted in 1916, Act No. 85, page 204, absolving a bank from liability when sending a draft or check for collection to the bank on which it is drawn. That act seems to have been adopted to clarify the situation brought about by the Martin decision. In 1926, Act 86, page 125, was adopted by the Legislature, also absolving a bank from liability for the fault or negligence of its correspondents in the collection of negotiable paper. But this act cannot apply to the present case which arose in January, 1926.

It might be contended that if the law as we construe it in this case, was in existence prior to the session of the Legislature in 1926, there was then no necessity for the Legislature to adopt Act No. 86. It can, however, be truthfully said that the Martin decision had created some doubt as to what the law really was at that time, and the legislative purpose was to eliminate all doubt about the whole matter.

Believing then that plaintiffs impliedly gave defendant authority to employ a sub-agent in the collection of their draft on the American Rice Milling Company at Crowley, that defendant acted promptly and without fault or negligence in its duties as a collecting agent and depositary of plaintiffs, and that both the law and the equities are with defendant, it is ordered that plaintiff’s demand be rejected and the judgment of the District Court affirmed.


text:
    No. 339
    First Circuit
    GELPI v. WILBERT
    (November 10, 1928. Opinion and Decree.)
    Jos. M. Jones, of New Orleans, attorney for plaintiff, appellee.
    Laycock, Borron & Laycock, of Baton Rouge, and Jos. Nicolosi, of Plaquemine, attorneys for defendant, appellant.
   LECHE, J.

Plaintiff sues to recover from defendant the sum of five hundred dollars, for services which he rendered in performing a surgical operation on the body of defendant. The District . Judge rendered a judgment on the face of the pleadings, in favor of plaintiff, for two hundred and fifty dollars, leaving a contest for further adjudication, the balance of plaintiff’s demand, the sum of two hundred and fifty dollars. At the conclusion of the trial, the Judge found in favor of plaintiff, the additional two hundred and fifty dollars and from that judgment defendant has appealed. It therefore appears that the amount in dispute in this Court, is only two hundred and fifty dollars, and not as stated, through clerical error in the judgment, five hundred dollars. This is conceded by both counsel.

It is undisputed that plaintiff is a surgeon of high standing and pre-eminent in his profession, and that he has earned a great reputation throughout the country for his skill and ability. This, we assume, was the reason that prompted defendant to employ him. Plaintiff resides in New Orleans where he practices his profession, and defendant resides in Plaquemine, in the Parish of Iberville, where the surgical operation was performed. Plaintiff had previously been called to Plaqiuemine to perform surgical operations, at various times, and was not an infrequent visitor to Plaquemine, in the practice of his profession, though the record does not show how often he made such visits. Whether his visit to Plaquemine on the occasion that he operated upon defendant, was solely for that purpose is questioned, but we will assume that it was. It is well known that Plaquemine is about eighty or ninety miles distant from New Orleans and is accessible by rail and also by graveled highway.

In determining the amount which constitutes fair remuneration for medical services, many factors must be taken into consideration, some of which are the skill and reputation of the physician, the time which he devotes to the case, and the inconvenience and expense to which he may be subjected. Another important fact to be considered is the amount of the estate and the ability of the patient to pay.

Several physicians testified as experts, that plaintiff’s demand, considering his •well known skill and reputation as a surgeon, was reasonable and not excessive, but none of them knew anything of defendant’s resources and his financial ability to pay.

It appears that although defendant is a descendant of a family reputed to be wealthy, he is married and only earns a salary of one hundred and seventy-five dollars per month, that he lives with his brother, that his board and lodging cost him about eighty dollars per month, that he owns no property of any kind, except an automobile which he bought on time, when he lived with his father now deceased, who did not charge him for board and lodging. Defendant also says, and in this he is corroborated by Molison, bookkeeper and auditor for. A. Wilbert & Sons, that he has no other source of income outside his salary, and is insolvent. '

Defendant says that although he made no effort to agree upon a fee with plaintiff, he was led to believe by other physicians that he would not be charged more than three hundred and fifty dollars at most.

Considering the circumstances as shown by the testimony in the record, which we have thus summarized, we think that a fee of three hundred and fifty dollars would be fair to both parties.

It is therefore ordered that the judgment appealed from be reduced from two hundred and fifty to one hundred and fifty dollars, and as thus amended, that it be affirmed, defendant to pay costs of court.


author: MOUTON, J.

text:
    No. 349
    First Circuit
    DUPLESSIS v. HARRELL
    (October 3, 1928. Opinion and Decree.)
    C. C. Weber, of Donaldsonville, attorney for plaintiff, appellant.

      Chas. T. Wortham and Waiter Lemann, of Donaldsonville, attorneys for defendant, appellee.
   MOUTON, J.

Plaintiff and defendant were rival candidates for member of the School Board at the Democratic Primary held in the sixth ward, Parish of Ascension, September 11, 1928.

The tabulation by the Democratic executive committee of the votes cast at that election shows that plaintiff received 31 votes and defendant 34, giving a majority of three votes to the latter on the face of the returns. Harrell, defendant, was declared the nominee.

Plaintiff files this suit claiming that he is entitled to the nomination. Plis demand was rejected. He appeals.

Among other allegations of the plaintiff, he avers that he was nominated as member of the School Board, for the reason that the said W. H. Harrell was not a qualified candidate for said position, because at the time the primary was held, or when this contest was filed, he was not assessed “for not less” than $500.00 of individual or community property in the Parish of Ascension. Under the provisions of Section 11 of Act 97 of 1922, any person who has filed his application to become a candidate, may file in writing with the committee calling the primary his objections to the application of any other candidate, in which he may state the reasons why such other candidate is not duly qualified under the qualifications prescribed by the party calling the primary. It is obvious that such objections must be directed to the qualifications, which the committee, as a political body, may prescribe, and can have no possible reference to the property qualifications which a member of the School Board must possess as required by Section 17 of Act 100 of 1922. The qualifications which the committee may prescribe have reference exclusively to the nomination of the candidate, and those demanded under the provisions of Act 100, to his election.

The contestant neither alleges nor contends, that he has filed with the committee which called the primary, any objections whatsoever as to the qualifications of contestee for the office in contest. This, contestant was imperatively required to do, under Section 11 of Act 97 of 1922 within five days after the last day upon which persons may file notifications to become candidates. There was, therefore, no action taken by the committee in this respect which could be reviewed by the Courts, as provided for in Section 11 of that Act. In regard to the complaint that contestee is not qualified to hold the office because he is not assessed in the sum of at least $500.00, as required by Act 100 of 1922, raises an issue which altogether premature, as such a question could be raised only after the election of contestee to the position in dispute, to which, for aught We know, he may never be elected.

The other part of the complaint of contestant is directed against the qualifications of four voters who are alleged to have voted for defendant. These attacks were made against the right of these voters to be on the registration roll. Such an attack must be made prior to the primary election. A candidate should not be permitted to take the chances of securing such votes, and after realizing that he has failed to get them, attack their right to be registered. The four votes charged to be illegal are the following: Joe Picard, Joe Dugas, Walter Gaudin and Mrs. Elise Conger. The vote of Joe Dugas is attacked for the alleged reason that Dugas was not a resident of the ward in which said election was held. The votes of Joe Picard and Walter Gaudin were attacked because they were illegally registered. The vote of Mrs. Elise Conger was attacked because she was married to a gentleman who is a British subject. The objection to the last vote is abandoned in this Court.

The votes of Joe Picard and Walter Gaudin are attacked, as previously stated, because they were illegally registered. This allegation in substance admits that they were registered and therefore cannot be entertained for the reason that such attacks should have been made before the primary election. The vote of Joe Dugas was attacked because he was no longer a resident of the ward in which the election was held. It is impliedly admitted that he was registered, and there is no allegation as to the time he removed from the ward. This is an indirect attack upon the right of Dugas to be on the registration list, and is therefore an attack on his right to be a registered voter. We are therefore of the opinion that the attack upon the right of Joe Dugas, just like the attack upon the legality of the votes of Joe Picard and Walter Gaudin should have been made before the date of the primary election, and as no such attack is alleged to have been made, it is now too late to entertain such attack.

Under the Constitution, no person shall vote at any primary election unless he is at the time, a registered voter. The Constitution also provides that any qualified voter of this State shall have the right to apply to the District Court to have stricken off, any name illegally placed or standing on the registration roll. The jurisprudence is not questioned that the attack on the right of a person to be on t}ie registration roll, must be made before the election is held.

The purpose of the Constitution and laws of this State is to secure a fair expression of the views of the majority of the voters for the nomination of their candidates. We believe, under the facts of this case, that the election in question has accomplished that result, as found by the District Judge.


author: MOUTON, J. MOUTON, J.

text:
    No. 257
    First Circuit
    JOHNSON v. VINCENNES BRIDGE CO.
    (February 15, 1928. Opinion and Decree.)
    (April 11, 1928. Rehearing Refused.)
    (October 29, 1928. Affirmed by Supreme Court on Writs of Certiorari and Review;
    Docket No. 29,311.)

      Ellis & Ellis, of Covington, attorneys for plaintiff, appellee.
    Morgan and Simmons, of Covington, attorneys for defendant, appellant.
   MOUTON, J.

The defendant was engaged in constructing a bridge across Pearl River,.- and ■ through • one - -Decker,- ■ its foreman, employed plaintiff to haul steel from freight cars at Pearl River Station to where it was erecting the bridge, a distance of about half a mile. The steel had to be unloaded by plaintiff from freight cars at the station, and had to be hauled by him in a truck to the bridge where it was to be used in its construction. The contract, a verbal one, was made on May 30, 1926. Plaintiff, under the agreement was to haul all'the'steel that was then at the station, which it was figured amounted to thirty-two tons. He was to receive two dollars a ton for the hauling, and had to furnish a truck for that purpose and the necessary labor.

On June first, two days after the date of the agreement, plaintiff with his truck and two laborers he had employed, started on the job to unload the steel, and to transport it in his truck to ‘the 'place where the bridge was being erected. The same evening, about four o’clock, while plaintiff was loading his truck with the steel a heavy piece of steel fell on his hand, crushing two fingers, which later resulted in their amputation.

Plaintiff, for the injuries thus received, brings this suit for compensation under the provisions of the Employer’s Liability Act. Judgment was rendered in his favor from which defendant company prosecutes this appeal.

Counsel for plaintiff and counsel for defendant, to a large extent, seem to rely on the case of Burt vs. Davis-Wood Lumber Company, reported in 157 La. 111, 102 So. 87. In that case, Burt, the plaintiff, had been employed by defendant company to carry its manufactured lumber to market, furnished his own team and wagon, and was paid at a specified rate per thousand feet. In this case plaintiff was to furnish his truck, and was to receive two dollars per ton, which, as in the Burt case, was likewise a specified rate. In that respect the two cases are similar. The similarity stops there.

In the Burt case it was shown that Burt boarded at the boarding house which afforded accommodations to the company and its mill’s force. He was carried on the payroll as were other laborers of the mill, and was paid on the regular pay days, every two weeks. The lumber that he hauled was pointed out to him, measured, and he was given specific direction to whom he should deliver it.

Other facts are referred to in the opinion which showed that the company had practical control and supervision of the haulers which carried with it the authority to discharge the employee at will. Under that state of facts, as was remarked by the Court, the doctrine of independent contractor had no application. After thus commenting on the evidence the Court then expresses itself in the following significant manner:

“There was obviously no piece work to be performed, there was no particular job to be executed, there was no specific pile, stack or quantity of lumber to be hauled, but only such as was pointed out * * *• by the employer.”

In the instant case there was a specific pile, stack or quantity of steel to be carried, there was a particular job to be executed, and obviously a piece of work to be performed. This brings the present case clearly within the declaration of the Court above reproduced, and which differentiates it in well defined lines from the essential controlling facts of the Burt case. In this case it is shown that plaintiff had employed two laborers to assist him in doing the job, that they were paid by him, that the defendant company did not know who they were and that he also furnished the truck to haul the steel. Such facts, in cases of this character, have always been considered as important factors to show that the party engaged to do the work is not a servant, but must be considered as an independent contractor. Barrow vs. Shields, 13 La. Ann. 62; Clark vs. Tall Timber Lbr. Co., 140 La. 380, 73 So. 239; Peyton vs. Richards, 11 La. Ann. 62.

The record shows also that plaintiff expected to get through with the hauling in four days, and that his expenses, including the use of his truck which he estimated at five dollars, would amount to $37.50. His contract he says, was at the rate of $2.00 per ton for the haulings which would have totaled $64.00 for the thirty-two tons to be hauled. Deducting the $37.50 from these $64.00, the difference in his favor would have been $27.50. His truck was unquestionably thrown in as an investment in the undertaking and the balance he expected to receive, after deducting the wages he had to pay his employees with the use of the truck thrown in, can be considered in no other light than as the profit he anticipated to make on his contract. These facts considered with the conditions of the agreement to which we have hereinabove referred, make it quite clear that plaintiff was an independent contractor and was not an employee or servant of defendant company.

Counsel for plaintiff refer to the fact that the company had furnished a gin-pole, ropes, block and tackle, .also a tractor to assist in unloading the steel from the freight cars; also, that Decker, foreman of the company, had explained the way to use this equipment. In showing plaintiff how to use this equipment to unload the steel from the cars, he was not attempting to direct or control plaintiff in the hauling of the stuff to the bridge where it was to be used, and for which plaintiff was employed. Plaintiff .had a specific work to do, and the manner of its doing, including the employment, payment and control of the labor, was left entirely with him.

In a case presenting similar facts, and where equipment had been furnished by a railroad company to carry out the work, the court held that the party was an independent contractor. See Robideaux vs. Hebert et al., 118 La. 1089, 43 So. 887, 12 L. R. A. (N. S.) 632.

The proof shows that after plaintiff was injured, he went to see a physician and that the two laborers he had employed carried a load of steel to the bridge; that the next morning they went back to the station to continue the work on which they had started the day before. They found that the company had placed others on the work, and for that reason they did not proceed any further and returned with the truck to plaintiff’s home. It is shown that the two laborers had been sent by plaintiff to resume work the morning after he was injured. This fact shows that plaintiff considered that under his contract his duty was to haul the steel to the bridge, and that he had discharged this obligation in performance of the job he had undertaken through the men he had employed to assist him in accomplishing that object.

Counsel for plaintiff say that in putting others on the job next morning, the company actually exercised its right to discharge, and that this circumstance is a strong, if not a decisive factor in proving that plaintiff was an employee or servant of the company. The facts and circumstances of the case to which we have hereinabove referred, show that under the agreement plaintiff had been engaged as an independent contractor, and had so been considered after his employment. As he was, under the terms of his agreement, an independent contractor the nature of that contract had fixed legal essentials, and neither of the parties could control its legal effects. Being made, the law alone could govern its results. Lange vs. I. C. R. R. Co., 107 La. 702, 31 So. 1003: Cooley vs. Broad, 29 La. Ann. 345, 29 Am. Rep. 332; Adams Mach. Co. vs. Newman, 107 La. 702, 32 So. 38.

As plaintiff was an independent contractor he could have insisted on his rights under the contract, but neither plaintiff nor defendant could change its nature and convert plaintiff from an independent contractor to a servant or employee of defendant company.

For the foregoing reasons it is adjudged and decreed that the judgment appealed from be avoided and reversed and that the demand of the plaintiff be rejected at his cost in both courts.

ON APPLICATION FOR REHEARING.

MOUTON, J.

When this case was first submitted, the contention between counsel, as was remarked in our original opinion, seemed to revolve around the proper application of the ruling of the Court in Burt vs. Davis-Wood Lbr. Co., 157 La. 111, 102 So. 87, to the issues presented herein for determination. In addition to what we said in quoting from that decision in our original opinion, we shall quote the following therefrom: “The defendant,” said the Court, “had practical control and supervision of the haulers and the absolute right to say when and what lumber should be hauled, and this carried with it the right to discharge the employee at will.”

But, plaintiff in that case, had been employed as a ' “hauler” and obviously, as found by the Court, the defendant company had control and supervision over him with the right to discharge him at will.

Here, as we stated originally, plaintiff had a specific pile or quantity of steel to be carried, a particular job to be executed, and evidently, a certain piece of work to be performed. Defendant company in the instant case, had no control or supervision over the work Johnson had been engaged to perform, the time he was to begin, manner of doing it, or when he was to get through with the job; and therefore, the defendant certainly had no right to discharge him at will.

This case, and the Burt case, are at such variance in the essential particulars above pointed out, and in other important factors commented upon in our original opinion, that we can not see how we could give the Burt case a different interpretation and application than it received in our former opinion, if we are to be guided, as we must be, by the conclusions of the higher court. Among several authorities cited by Moore, the cases of Holmes vs. Tenn. Coal, Iron & R. R. Co., 49 La. Ann. 1466, 22 So. 403, and Bell vs. Albert Hanson Lumber Company, 151 La. 824, 92 So. 350, are confidently relied upon by counsel for plaintiff.

In commenting on the decision of this Court counsel takes occasion to direct our attention to the case of Robideaux vs. Hebert, 118 La. 1089, 43 So. 887, 12 L. R. A. (N. S.) 632, referred to by us, and ■which he says had been decided long before the Employer’s Liability Act of 1914 was enacted, it occurs to us, that the Holmes vs. Tenn. Coal, Iron & R. R. Co., 49 La. Ann. 1466, 22 So. 403, supra, case, which is referred to by counsel as particularly applicable to the issues of this case, would be of little value if it could be affected by reason of the fact that it also antidates the adoption of the Liability Act, only with the difference that it precedes the Robideaux case by ten years, and the statute of 1914 by a much longer period. We do not think, however, that the pronouncements of the Court in those two decisions are in any way invalidated because of the fact that they had been rendered prior to the passage of the Employees’ Compensation Statute. The rules of law which differentiate between the rights of an employee and those of an independent contractor depend upon a proper appreciation of the relations which exist between master and servant. The Employer’s Liability Act has made no changes in those relations, and was intended to provide only for the compensation of employees under its various provisions.

Passing from these observations to the issues in contest, we shall first consider the decision in Holmes vs. Tenn. Coal, Iron & R. R. Co., 49 La. Ann. 1465, 22 So. 403. In that case, the employee, an old negro, owned a shovel with which he unloaded cars of coal for defendant company. Sometimes he was paid by the day; at others, for the car he unloaded. If he delayed in his work, additional labor was employed. He could quit as he pleased, and could be discharged at will. This laborer, says the Court, was under the authority of the defendant “who directed and ruled in all matters relating to work.”

Obviously under such a state of facts, the Court held that this old negro was a laborer or employee, and was not an independent contractor. The facts are so essentially different in that case from those in the case at bar that no comments are necessary to show the inapplicability of that decision to the issues herein presented.

The case of Bell vs. Albert Hanson Lumber Company, 151 La. 824, 92 So. 350, was by an employee who was engaged in felling logs in a swamp for the supply of a sawmill. It is true this employee was not housed or boarded by the defendant company, and on account of the severity of the services required, could work on the days he pleased during the week; but, says the Court, he was a part of a logging outfit that had to operate with regularity; that the woods superintendent would see that the work was done right, and that the company had absolute control in the matter of allowing its employees to work and discontinuing their work.

Evidently, in that case, the plaintiff was a swamp laborer who earned his livelihood as one of a gang of men that formed a part of the system that was necessary for the operation of the mill. The complete, if not the absolute supervision that was retained over plaintiff in Bell vs. Albert Hanson Lbr. Co., 151 La. 824, 92 So. 350, for the direction of his services, as to the time he was to go to work or discontinue, and as to the manner of performance under the supervision of the woods superintendent, made it quite plain that he was a mere laborer or employee, and was not an independent contractor.

There was no such control and superintendence retained by defendant company over the plaintiff in the instant case, which constitutes the usual 'test applied in cases of this character as was recognized by the Court in the Bell case. On the contrary, plaintiff herein, was altogether independent of control or supervision in regard to the time he was to begin his services, in what way he was to perform them, or as to the time he was to complete the job, or discontinue. The essential features, as appeared in the evidence, which clearly characterized plaintiff as a laborer or employee in the Bell case, are totally absent in the present suit, and which in our opinion show herein, as we originally held, that plaintiff was not an employee, but was an independent contractor.

Counsel refers us to Dick vs. Gravel Logging Co., 152 La. 999, 95 So. 99, where the Court said that the Employer’s Liability Act is humane in its purpose and its scope should be liberally construed, so as to in-elude all services that can reasonably be said to come within its provisions. In passing on this case we were not unmindful of the doctrine above referred to which has been repeatedly recognized by our Courts.

It must be admitted that contracts have certain legal characteristics which spring from the nature of the agreements. If the contract shows, as appears in this case, that the party employed is an independent contractor, it is impossible to change the nature of his agreement and to clas-' sify him as a laborer or employee. It is proper we admit, to rather enlarge than restrict the provisions of the Employer’s Liability Act, but we cannot believe that the courts are authorized to give it such a liberal construction as to bring the services of an independent contractor within the purview of that statute. Such a construction would carry the doctrine invoked beyond all statutory bounds or limitations. We cannot do that.

The rehearing, for the foregoing reasons, is refused.


author: MOUTON, J. ELLIOTT, J.,

text:
    No. 351
    First Circuit
    WALL ET AL. v. TANGIPAHOA SCHOOL BOARD
    (November 10, 1928. Opinion and Decree.)
    Ellis, Ellis & Ellis, of Amite, attorneys for plaintiff, applicant.
    S. S. Reid, of Amite, attorney for defendant, respondent.
    ELLIOTT, J., concurs in the opinion for written reasons.
   MOUTON, J.

The defendant School Board of Tangipahoa, passed a resolution, August 8, 1928, authorizing children from the second and fourth wards of that parish to attend school at Sunny Hill, Washington parish; and, for the cost of their tuition appropriated a sum not to exceed $18,000.00 to be paid to the School Board of Washington Parish..

Plaintiffs applied to the District Court of Tangipahoa for a rule commanding the defendant board to show cause why a restraining order should not issue prohibiting permits to the children of Tangipahoa to attend school at Sunny Hill, Washington Parish, and the paying of any money to the School Board of Washington from the funds which had been set aside by defendant Board for the" tuition of the children that might attend the Sunny Hill school. Plaintiffs prayed that the rule, after hearing, be made absolute. The injunction was refused by the District Court.

Plaintiffs apply to this Court for writs of certiorari, prohibition and for a mandamus to compel the District Judge to issue an injunction prohibiting defendant Board from applying the funds appropriated by it for the purpose hereinabove stated.

In their petition plaintiffs allege that they have no right to a suspensive appeal, and that the only remedy remaining to them is through the writs for which they pray. This allegation precludes the possibility of plaintiffs seeking any relief by either a suspensive or devolutive appeal. It is only in aid of our appellate jurisdiction that we can issue writs of prohibition, certiorari or mandamus, Ricobono vs. Kearney, 164 La. 844, 114 So. 707. As it appears from the allegation of the petition above referred to, that no appeal is asked for, or will be asked, we have no jurisdiction authorizing us to issue the writs.

In T. Hoffman-Olsen, Inc., vs. Northern Lbr. Mfg. Co., 160 La. 839, 107 So. 593, the Court on page 848 of the decision, in referring to the judgment below refusing the injunction, said:

“That no suspensive appeal would lie from such a judgment, even if it would afford the relief sought, but that a devolutive appeal only, would be taken.”

The Court then says:

“As relates to a devolutive appeal, it is obvious that it would not afford adequate relief.”

This is precisely the situation here. In the case above quoted, the Court then concludes on this subject by saying:

“Therefore if any relief is to be given, it must be given under our supervisory jurisdiction.”

This Court having no supervisory jurisdiction cannot grant the relief demanded. The application for the writ is denied.

ELLIOTT, J.,

concurring.

I concur in the opinion that the writ of mandamus should be refused. I do so, however, on the following grounds: The object of the suit in the lower court is to annul a School Board Ordinance of the Parish of Tangipahoa adopted by a majority vote, under which the children of certain parents, living in the Parish of Tangipahoa near the parish line, are sending their children to school at Sunny Hill in Washington Parish; and the annulment would result in more harm than good to these children for the present school year.

The record shows that certain school children in Tangipahoa Parish have been going to the Sunny Hill school for many years. The Sunny Hill school is near the parish line and nearest to the homes of the children in question. These parents wish to send their children there on that account. No objection by the School Board authorities of Tangipahoa Parish formerly existed to this attendance, but now the School Board member from the second ward of Tangipahoa Parish, in which most of the children live and certain other citizens, residents of Tangipahoa Parish, are opposed to the children attending the Sunny Hill school, and to the payment to the Washington Parish school authorities, of the money appropriated for that purpose.

After the children from Tangipahoa Parish had been attending the school at Sunny Hill for some time, the question was voted on by the Tangipahoa Parish School Board and four members voted for the continuance of the present arrangement for the current year, and two against it.

The ordinance reads in part:

“Whereas we have led the people up to the point of the opening of the school, we would allow them to go on to Sunny Hill for this season 1928-1929 and then means to be arranged for another year, namely, with the understanding that they go to school in Tangipahoa Parish, etc.”

If the injunction is compelled it will interfere with what the School Board has done in providing for school children in the locality, for the present year, result in a change of the transfer arrangements entered into under which the children in the second ward attending the Sunny Hill school may not be taken to the school at Spring Creek, and the result would be' that those going to Sunny Hill would almost surely be taken out of school for this year.

The Constitution of 1921, Section 11 of Art. 12, places the public school under the joint power of the Legislature and the State Board of Education.

The State Board of Education exists by virtue of the Constitution Section 4 of Art. 12.

The Act 100 of 1922, Sec. 20 (Amd. Act 100 of 1922) gives discretion to Parish Boards to locate school houses, and to see that the provisions of the law on the subject are complied with. Section 21 gives them discretion in regard to “adequate school facilities of the children,” etc.

The relators depend on Section 59 (Amd. Act 16 of 1924) to justify the injunction. This section must be understood in connection with the other provisions of Act 100 of 1922 on the subject.

An injunction applied for under Section 59 (Amd. Act 16 of 1924) in view of the other and discretionary provisions vested in schobl boards under Act 100 of 1922, and at a time when the injunction would operate to the detriment of the children at Sunny Hill for the present term, presents a different situation than would be the case if the injunction had been applied for at a time when no detriment would have resulted.

I concur in the judgment refusing the mandamus for the above reason.


text:
    No. 347
    First Circuit
    MORRIS ET AL. v. YOUNG & DE BRITTON
    (November 10, 1928. Opinion and Decree.)

      W. C. Braden, of Lake Charles, attorney for plaintiffs, appellants.
    Cross & Moyse, of Baton Rouge, attorneys for defendant, appellee.
   LECHE, J.

Lee Morris was shot and killed on August 23, 1926, and the present suit is by Mrs. Tessie Morris, as widow, acting for herself and her three minor children. to recover compensation under the Employer’s Liability Act, from the defendants . in whose employ Lee Morris was at the time of his death.

It appears that another suit on the same cause of action, was also brought against the defendants by Mrs. Tom East, who also claims to be the lawful widow of Lee Morris, but that cause it not pending in this Court, and therefore it requires no expression of opinion on our part as to its merits. We mention this for the reason that some question arose during the trial of the present case, as to the right of the plaintiffs herein to obtain compensation for the death of Morris. It seems that Morris was lawfully married to Mrs. Tessie Morris, one of the plaintiffs, and the mother of the other ¡plaintiffs, in the Parish of Calcasieu, February 3, 1910; that although a resident of Louisiana, he went to Texas and obtained a divorce from Mrs. Tessie Morris. Mrs. Tessie Morris says she was not notified in any manner of Morris’ demand for divorce, and that she only heard of it about four months before the death of Morris. Mrs. Tom East says that she was married to the deceased on the 17th of May, the same summer that he got his divorce. It does not appear clearly in what year this took place.

The validity of the divorce obtained by Morris is raised in £he argument of the case. Mrs. Tessie Morris intimates that it was obtained by false swearing or through fraudulent practices, and she contends that she and her children were dependents of Lee Morris, who paid her alimony, in obedience to a judgment of the District Court of the Parish of Calcasieu, from 1923 to within a few months before his death. She says that the last time she heard from Morris was in June, 1926.

Another defense presented in the case is that at the time Morris was killed he was not engaged in any hazardous trade, business or occupation.

The third and the main defense in the case is: 1. That the killing was caused by the said Lee- Morris’ wilful intention to injure the negro (Curley Williams) who killed him.

2. That the said injury was caused by the said Lee Morris’ deliberate breach of statutory regulations affecting safety of life and limb.

3. That the said injury was due to the wilful misconduct of the said Lee Morris, and to his illegal and criminal actions.

The case was tried and all these defenses were properly presented at one and the same time.

The District Court rejected plaintiffs’ demand and they have appealed.

At the time Morris was killed, the defendants Young and DeBritton were engaged in the performance of a road-building contract, entered into by them with the Louisiana Highway Commission. They were building a highway in the Parish of St. James, near Union Post Office, where they had brought a road-building outfit consisting of wagons, scrapers, mule teams and other paraphernalia generally used for the purpose.. Morris was employed by defendants to perform the duties of foreman of a small squad of levee laborers. Young, one of the defendants, terms him as “a small team foreman over 16 head of mules.”

Morris and the laborers who worked under him lived in tents, erected near the road which was under construction. Morris and his second wife, who is now Mrs. Tom East, lived in one tent, a short distance from the tents occupied by the negro laborers. On the morning of the killing, Morris got up and went out. Mrs. Tom East says that he took his pistol and placed it about his person. A short while later, Morris came back to his tent to drink a cup of coffee and again left the tent. He then went towards that occupied by Curley Williams and the shooting began. There are four witnesses who testified to the manner in which the shooting was done, but a fair preponderance of the evidence shows that Morris approached Curley Williams’ tent with his pistol in hand, cursed and abused Williams, and was attempting to force him to go on the work where the other laborers had already gone. Williams came out of his tent, said that he was hungry and that he would go to work later or in the evening. Morris advanced towards him, jabbed him with his pistol, threatened, cursed and abused him; Williams then backed away and warned Morris not to advance any more, and it was then that Morris deliberately shot the negro.

Williams was also armed- and only pulled out his pistol-after he had been shot. He fired at Morris and killed him on the spot. Curley Williams then started away and he, also, fell dead from the shots he had received from Morris. There are other unimportant details as to what occurred at the time, recited by the witnesses, in which there is some variance between them, hut the facts as stated and as we said before, are well established by a preponderance of the testimony and are sufficient for a proper application of the law pertinent to the case.

The defense that plaintiff was not entitled to compensation, if any was due, and that Morris was not engaged in any hazardous trade, business or occupation need not be noticed or passed upon, as the third defense is abundantly sufficient to support the judgment rendered by the District Court.

It is shown that defendants had warned Morris who was known to be of violent temper, not to go armed while performing his duties as foreman. They had expressly informed' him that the laborers who would be placed under his orders, were from the locality where the defendants lived, were well known to them, were, as they expressed it, their pet negroes, and should be treated gently and not. abused or harassed. Morris also knew that he was violating a criminal statute of this State in carrying a concealed weapon and that he had no right to coerce the laborers under him at the point of a pistol. We went out armed, for the deliberate purpose of cowing Williams, shot him without legal excuse or justification but was himself shot and killed by Williams who acted in absolute self-defense. The testimony presents a case covered by Section 28 of the Employer’s Liability Act and Morris has by his conduct debarred his dependents, if any, from recovering any compensation for the loss of his life.

The judgment appealed from is affirmed.


text:
    No. 328
    First Circuit
    LAY v. PUGH ET AL.
    (June 12, 1928. Opinion and Decree.)
    (November 26, 1928. Writs of Certiorari and Review denied by Supreme Court.)
    (October 3, 1928. Rehearing Refused.)
    H. E. Ellis, of Covington, and R. D. Jones, of Covington, and Miss Anna C. McCay and Paul A. Sompayrac, of New Orleans, attorneys for plaintiff, appellee.
    Miller and Heintz, of Covington, and Morgan and Simmons, of Covington, attorneys for defendants, appellants.
   MOUTON, J.

Plaintiff brings this suit for compensation under the Employers’ Liability Act, Act No. 20 of 1914 as amended.

He alleges that he was injured in his right eye, the injury causing a total loss of that eye, while he was performing his duties as a carpenter in the repairing and changing the style of a building owned by Joseph Pugh, and situated in the town of Mandeville; that Augustus Smith, acting as agent, employed him to do the work for Pugh; that although Pugh has not actually denied liability he has not been able to collect the compensation he claims, and therefore asks the intervention of the Court to enforce payment from Pugh.

Plaintiff then alleges in the alternative, that if the Court finds that Augustus Smith was not the agent of' Pugh, but was an independent contractor, that Smith be held liable for the compensation claimed. Finally, plaintiff alleges that he believes that though the persons engaged in the work exceeded seven in number, neither Pugh nor Smith carried any insurance for the protection of their workmen; that the work was hazardous and dangerous and comes within the laws of Louisiana making employers liable under the Workmen’s Compensation laws of Louisiana.

Augustus Smith filed an exception of no cause or right of action; thereafter answering, making due reservation of the benefits of the exception. Joseph Pugh filed a similar exception; subsequently answered, and likewise reserved the benefit of his exception. The District Judge maintained the exception urged by Smith but over-ruled Pugh’s exception and rendered judgment on the merits for the compensation demanded. Pugh appeals from the judgment rendered against him, and Top Lay, plaintiff, appeals from the judgment maintaining the exception in favor of Smith.

Augustus Smith files a motion in this Court to dismiss the appeal taken by plaintiff from the judgment maintaining the exception of no cause of action filed by Smith.

The dismissal of the appeal is asked on the complaint that' the lower Court did not render a written separate judgment maintaining the Smith exception. In the same written judgment which was signed by the District Judge, two separate judgments and decrees were rendered; one in favor of plaintiff on the merits against Pugh, and the other for Smith on his exception of no cause of action. Although the two judgments were written on the same sheet of paper, they were in reality two separate judgments and decrees and both bore the signature of the Judge.

In the case of Monroe Hardware Co. vs. Thompson et als., 162 La. 335, 110 So. 495, the Court held that two separate decrees were not objectionable on the ground that a single judgment' had been rendered. We find no merit in the motion to dismiss, and it is therefore denied.

We will first pass on the exception urged by Smith, and next in order on the defense relied on by Pugh, the other defendant.

In his petition plaintiff alleges in the first article, that Pugh is indebted to him for one hundred weeks’ compensation at the rate, etc., until paid. In the second, he describes the injury he received while at work on a building belonging to Pugh. It is certain that in these two articles there is no cause of action alleged against Smith. In the third article, he avers that he was employed by Pugh, through Smith as agent for Pugh, as he was by Smith informed, and that he therefore makes the allegation of his employment by Smith as agent for Pugh. Obviously no relief could be demanded against Smith under that article in which it is distinctly averred by plaintiff that Smith had acted as Pugh’s agent. ' In the fourth article, after alleging that he could not collect against Pugh, plaintiff asks for the intervention of the Court to enforce payment against Pugh. Here, Smith is completely eliminated from the demand, and the contest is strictly restricted to a claim against Pugh. There is unquestionably no cause of action or demand set out' against Smith in the foregoing four articles of the petition. In the following article, number five, and pleading in the alternative, plaintiff alleges that if the Court should find that Smith was not the agent of Pugh, and decides that he was an independent contractor, in that event, he is entitled to recover the compensation claimed from Smith. Such an allegation as that has less value than the averring by the pleader of a mere conclusion of law, as it depends for its effect on the possible finding by the Court of a conclusion which could only be reached on facts properly set out in the petition.

Finally, in article six, the last, plaintiff after making allegations not pertinent to the. qfuest-ion at issue, avers “that the work was hazardous and dangerous and comes within the laws of Louisiana making employers liable under the Workmen’s Compensation laws of Louisiana.” Here it will be noted, that the petition totally fails to allege that at the time plaintiff was injured, Smith, as his employer, was engaged in the line of work described in the petition “as a trade, business or occupation.” Such an allegation in addition to the averment that the work was hazardous, was essential, unless it had been alleged that plaintiff and Smith had voluntarily elected tó come under the provisions of subrsectiqn 4 of section 1 of Act No. 20 of 1914. Blaine vs. Iglehart, 5 La. App. 17; Shipp vs. Bordelon, 152 La. 795, 94 So. 399. With a view of making a proper analysis of the petition, we have considered the articles therein set out disjunctively and conjointly or in their proper legal relation one to the other, and have been unable to find th^t a cause or right of action has been disclosed against Smith, w*1-??® exception was therefore correctly maintained-

The exception of no pause of aGtlon filed by Pugh was referred to the merits by the Court.

As we have hereinabove stated, while it je true that plaintiff hps alleged that the work in which he was employed was dangerous or hazardous, he, however, did npt aver that his employer, Pugh, was engaged in that line of work as “a trade, business or occupation,” and that such an allegation was essential to the setting out of a cause of action unless he had averred that by agreement with Pugh they had elected to come under the benefits of the compensation act above referred to. In the case of Shipp vs. Bordelon, 152 La. 795, 94 So. 399, the Court held that such an averment was essential but that the defect had been cured by timely amendment before the exception of no cause of action had been passed UP°n, otherwise, it is apparent from the decision that the exception would have been maintained. In this case, as the exception was referred to- the merits, we will dispose of the pase on the proof adduced on the trial.

The defendant Pugh, filed an amended answer, in which he alleged that his sole occupation was that of surveyor for the Parish of St. Tammany, and that he was not engaged in a hazardous occupation. Counsel for plaintiff and defendant have indulged in considerable discussion on this question. The fact is that it is quite immaterial to the real issue presented herein for solution, as to whether or not Pugh was a surveyor for that parish, as he might very well have been a surveyor, and at the same time engaged in the trade, businues§ or occupatiqn of erecting, repairing or demolishing buildings. This proposifion was piet and solved in Shipp vs. Bordelon, 152 La. 795, 94 So. 399, in the following words:

“To render the Employers’ Liability Act applicable, the business of the employer in which the employee is engaged need not be exclusive.”

It must, however, be alleged by the complaining employee or affirmatively proved by him that he was engaged in a line of work which was followed by his employer as a “trade, business or occupation.” In the instant case, plaintiff did not make the required allegation, but attempted to make the proof which is essential to entitle an employee to recover under the plain provisions of the statute.

Pugh, defendant, was asked if he had experience in putting up buildings under cqntract. His answer is that he had not. He stated that he had put up buildings for himself but that he had not erected buildings for other people; that he had never personally directed the work in the putting up of buildings. He was asked if he had not drawn the plan for the St. Tammany Hotel, to which he answered that Soule had made the plan, and that the work had been carried under the supervision of Surrand, and that Soule was the architect. There is no evidence in the record contradicting the answer so given by defendant. He was asked and admitted that the building he was erecting was being put up as a restaurant which was to be operated by Mugnier, his wife’s nephew. He admitted he had been in the paving business “but not in buildings.” Such evidence which appears from the foregoing is far from showing that defendant was engaged in the erection, repair or demolition of buildings or structural appurtenances as a “trade, business or occupation.” It is probable that he expected to derive some profit in the hotel which was to be operated by Mugnier. This simply indicated that he was going into "a business venture, but such an enterprise could not possibly’be taken as proof that defendant was following building business as a trade or occupation within the intendment of the statute. The proof is that the building in question was being erected under the supervision of Smith, who, on account of some differences with defendant, quit the work and after he left 'the undertaking was carried to completion by Givens. The evidence does not show that the work for the changing of the style of the old building into a restaurant was carried on in the beginning or subsequently by defendant, but that the enterprise had been from its incipiency under the supervision of Smith, and thereafter was carried to completion by Givens It was a private undertaking by defendant, from which, it may be true, he expected to derive future profits from the revenue of the restaurant, but there is nothing to show or even to indicate that the building had been constructed by Pugh, as an employer, in a line of work as a trade, business or occupation. No such proof having been established, plaintiff had no right to recover compensation against Pugh as was decreed below.

It is therefore ordered, adjudged and decreed that the judgment maintaining the exception of no cause of action filed by Augustus Smith be affirmed, and it is further ordered and decreed that the judgment rendered in favor of the plaintiff against Joseph Pugh be annulled, avoided and reversed, and that demand of the plaintiff be and is hereby rejected with costs.


author: WEBB, J.

text:
    No. 3216
    Second Circuit
    THOMPSON v. MORGAN
    (June 28, 1928. Opinion and Decree.)
    (July 14, 1928. Rehearing Refused.)
    (December 5, 1928. Affirmed by Supreme Court on Writ' of Certiorari and Review.)
    W. M. Harper; H. H. Russell of Monroe, attorneys for plaintiff, appellee.
    George Wesley Smith, of Rayville, attorney for defendant, appellant.
   WEBB, J.

The plaintiff, S. B. Thompson, an employee of a railroad company, while in the course of his employment driving a motor car used in carrying workmen and material for maintaining the tracks, was injured in a collision between the motor car and an automobile, being driven along the highway by defendant, P. M. Morgan, which collision occurred in the day time at the intersection of the railroad track and the highway, and defendant appeals from a judgment rendered against him in this action to recover damages for personal injuries.

The highway over which defendant approached the crossing runs parallel with the tracks for about one thousand feet and then turns at approximately right angles to the track, and as defendant approached the crossing along the roadway parallel with the tracks, he had a view of the track to the north of the crossing for a considerable distance, which would have enabled him to have seen locomotives or trains moving toward the crossing, but there was a box car parked on one of the tracks which obstructed the view of smaller vehicles, such as motor cars, and when defendant arrived at approximately the point where the highway turns, which was more than one hundred fifty feet from the track, he directed his attention to the track south of the crossing and continued driving and drove onto the crossing where the collision occurred with the motor car which had approached from the north and which had not been seen by defendant until about the moment of collision.

.The motor car was not equipped with any signalling devices and there were not any signals given of its approach to the crossing, but when the motor car reached a point south of the box car, the driver, plaintiff, saw the automobile at the point where the highway turned to cross the tracks, when he could have easily stopped the motor car before it reached the crossing, but assuming that the driver of the automobile would exercise care and yield the right of way, he did not attempt to stop until it was too late.

Appellant urges that the facts show that defendant was not negligent', but that, if he was, the plaintiff, driver of the motor car, was also negligent and that his negligence contributed to the collision.

The theory upon which defendant urges that he was not negligent appears to be based upon some contention that his action must be considered in connection with the action of plaintiff, and the character of the vehicle being operated over the track by the railroad company, as well as with regard to the situation, or obstruction of his view of the track by the box car.

However, the railroad track was a warning of danger from all vehicles or equipment which the railroad company might, in conducting its business, move over the track, and the universal requirement that one using the highway must, before driving upon the crossing or intersection of the railroad track and highway, exercise his senses of sight and hearing to guard against such danger, is, we think, applicable without regard to the character of the vehicle, or whether the danger would be greater from one vehicle than another, and the fact that the operator of the motor car did not give any signals of the approach of the vehicle to the crossing, did not relieve defendant from the duty of exercising his senses of sight and hearing to guard against the danger. (Blackwell vs. St. L. etc. Ry. Co., 47 La. Ann. 268, 16 So. 818, 49 Am. St. Rep. 371; Loftin vs. Louisiana Railway Co., 135 La. 33, 64 So. 972), and the evidence showing that, without regard to the obstruction of defendant’s view of the track by the box car, he had ample opportunity to have observed the track, on which he would have seen the approaching motor car, and ample time and distance thereafter to have avoided the accident by stopping his automobile, the situation presented is not at all analogous to that presented in the cases cited by counsel, in which it was held that' one approaching such a crossing was not bound to come to a stop before driving on the crossing, and we are of the opinion that defendant was clearly guilty of negligence.

The position that plaintiff was also negligent is urged on the theory that he was bound to give warning signals of the approach of the motor car to the crossing, and the evidence showing that defendant could have stopped his automobile until he was within approximately thirty feet of the crossing, that the failure of the plaintiff to give any signals should be held to have been negligence and to have contributed to the accident.

There is not any statute that requires thdt motor cars, such as that being driven by plaintiff, should be equipped with any signalling devices or that any signals shall be given of the approach of such vehicles to highway crossings, and the evidence does not indicate that it is the custom to give any signals, nor does it appear that the plaintiff was operating the motor car in an unusual manner, and if the question of negligence is to be determined solely with relation to whether the plaintiff was exercising the usual care in operating the motor car, we do not think it could be said that he was negligent; however, the law, or at least the well settled jurisprudence, is that the motor car had the right of way, on which the plaintiff acted when he saw the defendant approaching the crossing, assuming that defendant would observe the approach of the motor car and yield the right of way. (Brown vs. Texas & Pacific Ry. Co., 42 La. Ann. 350, 7 So. 682, 21 Am. St. Rep. 374; Taylor vs. V. S. & P. Ry. Co., 123 La. 768, 49 So. 518), and we are of the opinion that the plaintiff was bound to give some signal of the approach of the motor car to the crossing, and that the usual noise made by the vehicle when being operated is not sufficient (Davis vs. Boggs, 22 Ariz. 497, 199 Pac. 118).

The right of way which vehicles operated on the track have at highway crossings over those operated on the highway is not arbitrary, and in one respect is based upon the fact that vehicles moving along the track cannot be as readily stopped as those operated on the highway, and is founded upon a rule of public safety, and the same rule, we think, requires that warning of the approach of such vehicles to the highway crossings should be given (Watkins vs. St. L. B. & M. R. R. Co., Tex. Civ. App., 245 S. W. 794; Continental Improvement Co. vs. Steadman, 95 U. S. 161, 24 L. Ed. 403; Brown vs. Texas & Pacific Ry. Co., supra), and when there is not any such warning given, and the failure to give such warning may be said to have contributed to the accident, the operator of the vehicle cannot recover damages for injuries received by him in such accident.

The evidence, as stated, established that defendant could have stopped his automobile and avoided the collision had he known of the presence of the motor car, even after plaintiff vainly tried to avoid it, and although it may be that the defendant would not have heard the signal, had any been given, we cannot assume that he would not, and we are of the opinion that the failure of plaintiff to give any warning signal must be held to have been a contributing cause to the collision (Ortolano vs. M. L. & T. R. R. & S. S. Co.. 109 La. 902, 33 So. 914), and that plaintiff cannot recover.

The judgment appealed from is therefore avoided and reversed, and it is ordered, adjudged and decreed that the plaintiff’s demands he rejected at his cost.