text:
    No. 2636
    Second Circuit
    NUGENT v. LEE LUMBER COMPANY
    (June 2, 1926. Opinion and Decree.)
    (June 30, 1926. Rehearing Refused.)

      (Syllabus by the Editor)
    1. Louisiana Digest — Pleading—Par. 62; Master and Servant — Par. 160 (i).
    The negligence charged in an alternative demand for damages under Article 2315 of the Civil Code in a suit for compensation under the Workmen’s Compensation Law, Act No. 20 of 1914, discloses no cause of action where the alternative demand shows a breach of duty due to the decedent only as employee.
    2. Louisiana Digest — Master and Servant —Par. 158.
    An accident which occurred after the injured employee had left the premises of his employer and was being transported on a truck did not arise in the course of his employment and he cannot recover compensation under the Workmen’s Compensation Act No. 20 of 1914.
    Appeal from the Ninth Judicial District Court of Louisiana, Parish of Rapides. Hon. R. C. Culpepper, Judge.
    Action by Pinkie Nugent, et al., against Lee Lumber Company, Ltd.
    There was judgment for defendant and plaintiffs appealed.

      Judgment affirmed.
    A. D. Flowers, of Jena, attorney for plaintiffs, appellants.
    Overton & Hunter, of Alexandria, attorneys for defendant, appellee.
   WEBB, J.

In this action plaintiff, Mrs. Pinkie Nugent, individually and as tutrix of her minor children, seeks to recover judgment against the Lee Lumber Co., Ltd., and Frank Hamilton for compensation under Act No. 20 of 1914, or, in the alternative, for damages under Article 2315 of the Civil Code, resulting from the death of Ed Nugent, husband of plaintiff and father of the minors.

The defendants excepted that the alternative demand failed to state a cause of action, and this exception being sustained, the cause was tried on the original demand, and judgment rendered rejecting plaintiff’s demands, from which she appeals. •

OPINION

The plaintiff urges that the court erred in sustaining the exception as to the alternative demand, and also in rejecting her demands under the statute.

NO CAUSE O'F ACTION

It has been held that an alternative demand for compensation under . Act No. 20 of 1914 may be cumulated with an action in tort under Article 2315 of the Civil Code (Hale vs. Gilliland Oil Co., 151 La. 500, 91 South. 853), and conceding that the converse of this is true or that the facts showing the relationship of master and servant or employer and employee alleged in the original demand may be denied or contradicted in the alternative demand, yet we are of the opinion that the allegations of fact under the alternative demand, if admitted to be true, should not show a right of action under Act No. 20 of 1914, as would be the case In the present instance.

There are, no doubt, instances where a person who is an employer would be liable to another who is his employee for damages sustained by the latter through the negligence of the former, his agents or servants, which liability could have no connection with the liability of the employer, as such, under. Act No. 20 of 1914; but the negligence charged in the present álternative demand is clearly based upon an alleged breach of an obligation or duty which could have been due or owing to decedent only as an employee, otherwise the alternative demand discloses no cause of action, and we are therefore of the opinion the exception was properly sustained.

MERITS

The evidence establishes that decedent was employed to drive an ox-team belonging to Frank Hamilton, who had a contract with the Lee Lumber Co., Ltd., to haul logs from lands belonging to or under the control of the latter; that the ox-team was kept at a corral located upon the lands of the Lee Lumber Co., Ltd., which was about one-half mile from the residence of decedent; that decedent’s employment required that he hitch up the team at the corral and from thence drive the team and haul logs from such places as designated by Hamilton; and at the close of the day to return the team to the corral.

That on the date of the accident the-decedent, after completing the day’s task,! requested a driver of a truck- belonging to-Hamilton to carry him from the corral to: decedent’s home, on the truck, which re-; quest was acceded to by the driver, and! while decedent was being thus .transported! he in some manner lost his balance andi fell from the truck ’ (which was at that: time on the public road and about one-half: mile from the corral), receiving injuries! which caused his death. ]

The evidence shows that Hamilton had! not contracted with decedent to transport, him to or from his work, although it ap-‘ pears that decedent had on several occasions ridden .back and forth with Hamilton, from and to the corral, and decedent had! also on several occasions been carried to; his work by employees of Hamilton who; were using their own vehicles in going to- and from their work, but it does not appear that Hamilton knew of -the truck-driver undertaking to carry decedent home; on the occasion of the accident; on the contrary, the evidence indicates that the drivers of the trucks belonging to Hamilton had been instructed not to take the' trucks from the corral or camp after the day’s work was done.

Had Hamilton contracted with decedent to transport him to and from his work and the accident had occurred while he was being thus transported, it could have been well said that the injuries received arose in the course and out of the employment; but as the evidence does not show any such contract, we do not think the evidence, which shows that an employer had on different occasions, while going .to his place of business, requested an employee, who was likewise going to take up the duties of his employment at the same place, to ride with him, could be held to have tacitly agreed to transport the employee to and from his work, and that the employee would not under such circumstances- be riding with his employer, as such, but with a friend.

The truck driver, in undertaking to carry decedent home on the truck, was acting on his own initiative and responsibility and not as an employee of Hamilton, and under these circumstances the fact that the accident occurred while the decedent was riding on a vehicle of his employer would not of itself render the employer liable for the injuries received by decedent in falling from the truck.

If the employer is liable under the facts presented, it is for the reason that the accident occurred while he was returning home from his work, but we have not been cited to any decision in which such a broad construction has been placed on the statute.

It cannot be said from the situation of the place of the accident that there was any causal connection between it arid the risks or hazards incident to the place of employment as was the case in Gasca vs. Texas Pipe Line Co., 2 La. App. 483, or Jones vs. La. Cent. Lmbr. Co., 2 La. App. 260, or Provost vs. Gheens Realty Co., 151 La. 508, 92 South. 38; and we are of the opinion that when the decedent took his seat upon the truck for the purpose of being transported and had left the premises the relations between him and Hamilton had ceased and the accident cannot be said to have arisen in the course of the employment.

The facts presented in this case bear a close resemblance to those developed in William Bass vs. Shreveport-Eldorado Pipe Line Co., Inc., 4 La. App., in which the 'plaintiff’s demands were rejected, and the reasons assigned in that case are also applicable to the instant case.

The judgment appealed from is therefore affirmed.


source: Caselaw Access Project

author: WEBB, J.

license: Public Domain

text:
    No. 2421
    Second Circuit
    DOVE v. O’BANNON
    (February 8, 1926, Opinion and Decree)

      (Syllabus hy the Editor)
    1. Louisiana Digest — Tender—Par. 7.
    A legal tender admits the liability to the amount tendered.
    2. Louisiana Digest — Timber—Par. 15.
    One who does not instruct his workmen as to the boundaries of his land from which they were gathering wood, is liable to the adjoining land owner for the profit that was made out of the wood wrongfully gathered from his land.
    (Civil Code, Art. 2315. Editor’s note.)
    Appeal from the Ninth Judicial District Court of Louisiana, Parish of Rapides, Hon. R. C. Culpepper, Judge.
    Action by Charles A. Dove against E. M. O’Bannon. There was judgment for plaintiff and defendant appealed.
    Judgment affirmed.
    Lamar Polk, of Alexandria, attorney for plaintiff, appellee.
    K. Hundley, of Alexandria, attorney for defendant, appellant.
   WEBB, J.

The plaintiff and defendant are the owners of contiguous lands, from which the timber had been cut and removed many years ago, leaving the tops of the trees and other refuse lying upon the ground, which could be comparatively easily gathered and used for fire-wood.

Defendant contracted to deliver wood to a concern at three dollars per cord, which wood, he states, he expected to obtain from his own lands (of which he had several thousand acres of like character in the same territory), and for this purpose he sent parties out to gather and haul the wood, and these parties took wood not only from the lands of defendant, but also from the lands of plaintiff; and in this action plaintiff seeks to recover the damages sustained, which he places at one hundred and sixty-two and 50-100 dollars, the alleged value of sixty-five cords of wood, claimed by him to have been removed from his property.

The defendant made a tender of twenty dollars and costs accrued to date of tender, which, not being accepted, he filed an answer, denying that any wood had been removed from plaintiff’s land, and if it had been removed by parties employed by defendant, that it was without his knowledge, and ' that such parties were independent contractors for whose acts he was not responsible; and in the alternative, in event of it being shown that wood had been removed from plaintiff’s land by persons for whom he was responsible, that the' wood was not worth more than fifty cents per cord.

The judgment of the trial court was in favor of the plaintiff, for twenty-three and 50-100 dollars, with interest and costs. The defendant appealed, and plaintiff answered the appeal asking that the judgments be amended so as to allow the amount in the petition.

OPINION

In view of the admission of liability resulting from the tender (Ins. Co. vs. Pike, et al., 34 La. Ann. 828), the case presents only two questions, one relating to the quantity of wood removed by defendant’s employees from the lands of plaintiff, and the quantum of damages.

The lower court did not file a written opinion, and we are not informed of the quantity of wood which he found had been removed, nor of the measure of damages, whether the value of the wood was fixed at the value on the land, or otherwise.

The evidence as to the quantity, number of cords of wood taken from the land, is based more or less on estimates made by the respective witnesses, and these estimates are conflicting. The defendant was in a better position to have ascertained with some degree of certainty the quantity removed, and he states that he, after taking the matter up with his haulers, found that eighteen cords had been cut. This, however, appears to be erroneous, in view of the fact, as shown by the direct testimony of Bratton, a witness for defendant, that he (Bratton) and his son, had cut and removed twelve cords and the evidence that Orr and DeWitt had cut wood on the land for at least eight days each, and that a cutter would cut from one to two cords per day and the testimony of Shirely that he had cut three cords.

We find that there were at least thirty-nine cords removed from the plaintiff’s land, this finding being based upon the evidence of Bratton, and the testimony referred to above.

As to the measure of damages, the defendant states that he knew the boundaries of the lands probably better than any one, and that he had given small maps to some of his employees showing the lines, and that he did not know any wood was being taken from plaintiff’s land.

Several of the cutters state, however, that they did not have any particular instructions from the defendant; that he did not give them any map, and that his instructions were general, for them to cut to the northeast and within one-half mile of the railroad; while Bratton says that he was given a map and shown the lines between the property of plaintiff and defendant, but he admits that he cut twelve cords of wood off of the plaintiff’s land.

We find that the defendant negligently failed to instruct his workmen as to the boundaries, and that the trespass which was committed by them,' was attributable to his carelessness, and that he cannot be held to have been in legal good faith.

We do not find, however, that the defendant was in moral bad faith; that he intended to have the wood gathered from the lands of plaintiff; and in view of the evidence showing that the wood lying upon the land had little, if any, market value, and that the maximum profit which the defendant obtained from the sale of the wood was sixty cents per cord, we are of the opinion that the judgment in plaintiff’s favor for twenty-three and 50-100 dollars was sufficient.

State vs. Cypress Co., 131 La. 70, 58 South. 1033.

The judgment is affirmed.


author: ODOM, J.

text:
    No. 1778
    Second Circuit
    MILES v. RECLAMATION OIL PRODUCING ASSOCIATION
    (June 30, 1926. Rehearing Refused.)

      (Syllabus by the Editor)

    ON REHEARING
    1. Louisiana Digest — Parties—Par. 17, 18.
    Where the defendant dies subsequent to the date on which an original decree was rendered, the court will recast the decree making the representatives of the succession parties.
    Appeal from the First Judicial District Court of Louisiana, Parish of Caddo. Hon. E. P. Mills, Judge.
    Cook & Cook, of Shreveport, attorneys for plaintiff, appellee.
    Wilkinson, Lewis & Wilkinson, of Shreveport, attorneys for defendant, appellant.
   ON REHEARING

ODOM, J.

This case was before the court in November, 1924, and again on rehearing in January, 1925. See 1 La. App. 94, for original opinion and decree. It wlas again before us in December, 1925, and rehearing refused on February 9, 1926. For opinion and decree, see 3 La. App. 746.

The identical questions raised in this case were presented in the case of American National Bank of Shreveport versus Reclamation Oil Producing Association of Louisiana, et al., 156 La. 652, 101 South. 10. Upon the authority of this latter case this court rendered judgment for plaintiff and against defendant. See I La. App. 94. As we adhere to the reasons assigned in our former opinion, there is no necessity for a restatement of the case and the law applicable.

Inasmuch as E. G. Murrell and D. W. Breazeale, two of the defendants, died subsequent to the date on which our original decree was rendered and their proper succession representatives are now before the court, it may be well to recast the decree.

Therefore, for the reasons assigned in .our former opinion, and upon the authority of the .case of American National Bank vs. Reclamation Oil Producing Association, 156 La. 652, 101 South. 10;

It 'is therefore ordered, adjudged and decreed that the judgment herein appealed from be set aside, and it is now ordered, adjudged and decreed that there be judgment in favor of the plaintiff, R. P. Miles, and against the defendant, Reclamation Oil Producing Association, in the full sum of twenty-seven hundred and fifty dollars with eight per cent per annum interest from January 26, 1921, until paid, less credits as follows: $585.17 paid January 10, 1921; $853.75 paid January 13, 1921, and $500.00 paid January 27, 1921, and that the defendants, J. E. Camette, W. N. Collins, F. Reynaud, Mrs. Margaret Gwinn Murrell, administratrix of the estate of G. R. Murrell, deceased, and Mrs. Mattie Hyams Breazeale, surviving widow, and Henry Hyams Breazeale, sole heir of D. W. Breazeale, deceased, (the last two men-' tioned being substituted for D. W. Breazeale), be and each is hereby condemned to pay plaintiff jointly the sum herein decreed to be due by defendant, Reclamation Oil Producing Association, each for his virile shares; the defendants to pay all costs, including attorney’s fees at 10 per cent on the balance due.


text:
    No. 2441
    Second Circuit
    JEFFERSON v. CADDO TRANSFER & W. CO.
    (April 10, 1926, Opinion and Decree)

      (Syllabus by the Editor)
    1. Louisiana Digest — Automobiles—Par. 8.
    The plaintiffs in a suit for damages arising out of an automobile accident carry the burden of making out their case beyond a reasonable doubt. Therefore, where the evidence is conflicting but circumstances show that the evidence of the defendant’s witnesses is more likely correct there must be judgment for the defendant.
    (Civil Code, Art. 2315. Editor’s note.)
    2. Louisiana Digest — New Trial — Par. 42, 43.
    A new trial will not be granted where the • application of plaintiff contains affidavits on an immaterial point which he wishes to prove, namely, that the truck after running over the boy ran some thirty or forty feet before it stopped.
    Action by Phillip and Hattie Jefferson vs. Caddo Transfer and Warehouse Co. There was judgment for defendant and plaintiffs appealed.
    Judgment affirmed.
    Murff & Perkins, of Shreveport, attorneys for plaintiffs, appellants.
    Wise, Randolph, Randell & Freyer, of Shreveport, attorneys for defendant, appellee.
   ODOM, J.

On March 1, 1924, plaintiffs’ son, about 17 years old, was run over and killed on a public street in the city of Shreveport by a truck owned and operated by the defendant.

Plaintiffs bring this suit for damages resulting from the death of their son, and allege that his death was caused solely through the fault and negligence of the driver of said truck.

Defendant answered denying liability and defended the suit on the ground that there was no negligence on the part of its driver but that the accident was wholly unavoidable.

The district judge rejected plaintiffs’ demand and they have appealed.

OPINION

The accident which resulted in the death of plaintiffs’ son occurred in the daytime on Texas avenue in the city of Shreveport. Texas avenue is 40 feet and 6 inches from curb to curb. There is along the center of the avenue ' double street car tracks.

The truck which ran over and killed plaintiffs’ son was being driven in a westerly direction out Texas avenue, away from the business section of the city.

The accident happened on the right hand side of the street car track going out. The right hand rail of the outbound street car track at the place where the accident happened is 13 feet from the curb.

There was a gravel wagon being driven on the right hand side of the street going out about two feet from the curb. ■ The truck approached this wagon from the rear and about the time it got opposite the side of the gravel wagon plaintiffs’ son came between the truck and the wagon riding a bicycle going in the same direction as the truck and the wagon and in some way was thrown to the ground and the truck ran over him.

It is defendant’s theory that the boy while riding along by the side of the team either put his hand on the mule which frightened him and caused him to make a move which threw the boy to the street, or that in some way the handle Bar of his bicycle became entangled in the harness on the mule and that he was in that way thrown to the pavement and run over.

Counsel for plaintiffs, in brief, say that the crucial point in the case is:

“Was the boy knocked against the mules and . fell back under the truck, or did he himself run into the mules and fall back under the truck which was so close it could not prevent the accident.”

That seems to be the view accepted not only by counsel for plaintiff but counsel for defendant.

Therefore it is conceded that if the boy in riding Jhis bicycle became entangled with the team previous to being, hit there is no liability on the part of the defendant. On the' contrary, if the truck struck the boy and knocked him against the team and he’ was then knocked back to the pavement and run over by the truck, the defendant may be liable.

At the time of the accident there were on the gravel wagon Richard Riley, the driver, and another colored man by the name of Sam Allen.

On the truck there were the driver and a boy named John Martin sitting on the seat with him and on the top of the truck there was another colored boy by the name of Sheppard.

Sheppard was subpoenaed by the defendant and Sam Allen was subpoenaed by the plaintiffs, but according to the sheriff’s return neither of them could be found at the time of tie trial.

Riley, the driver of the gravel wagon, and a woman by the name of Marie Morris were called as witnesses for the plaintiffs, and the driver of the truck and the boy John Martin who was with him at the time were called and testified for the defendant.

These were the only eye witnesses, so far as the record discloses, to the accident.

Richard Riley, the driver of the gravel wagon, states that the boy on the bicycle rode up by the side of his wagon and in advance of the approaching truck and that as the truck came up from the rear it ran against him, knocking him over against the mule, and that the mule on that side became frightened and in some way knocked the boy to the pavement between the front and rear wheels of the truck and that he was run over and killed by the rear wheel.

Marie Morris, the woman called as a witness by plaintiff, was walking on the sidewalk next to the gravel wagon, coming towards the business • section of the city.

She says she saw the accident, and she corroborates the testimony of Riley, the driver of the wagon, to the effect that the boy was struck by the right fender of the truck and knocked over against the mule and that he then fell to the pavement under the rear right wheel of the truck.

The defendant’s witnesses, on the contrary, testify as positively that the boy on the bicycle came in between the truck and the wagon and that when he got opposite the mules he either touched the mule, which frightened it, or that his handle bar became entangled in the harness on the mule, and that he was thereby thrown to the pavement in front of the truck and was run over by the right front wheel of the truck.

These two witnesses, the driver of the truck and Martin who was on the front seat with the driver at the time, are both positive that the boy was run over by the front wheel and not by the rear wheel.

It will therefore be seen that the testimony of the two witnesses called by plaintiffs and that of the two witnesses called by defendant, is conflicting on a very material point of the case, and that is, whether the truck struck the boy and knocked him against the mule, or whether the boy ran against the mule and was then thrown to the ground.

After considering aU the testimony we are of the opinion that the theory of the case as advanced by the defendant is correct, and we have reached that conclusion after analyzing all the testimony.

The witness Riley, driver of the gravel wagon, states positively that the boy on the bicycle was riding in the center of the outgoing street car track and that the truck overtook him and struck him with the right fender and knocked him against the mule.

The question which naturally arises in connection with his testimony, is that if the boy was riding in the center of the street car track and the truck had its right wheels on the right side of the right hand rail and its left wheels between the two rails, how could the boy be struck by the right fender and knocked over against the mule which was to the extreme right hand side of the street?

It would seem reasonable that according to Riley’s theory of the position of the boy at the time he was struck and of the truck at the time it struck him, that the boy would have been knocked straight forward and not over to the side as Riley and the witness Marie Morris say he was.

This point seems to have occurred to the district judge who examined the witness and asked him specifically if he was sure that the. boy, at the time he was hit, was riding between the rails of the street car track, and he reiterated that he was. He then questioned the witness as to how it could be that the boy was struck by the right fender and knocked over to the right against the mule. He attempted to explain by saying that at the point in the street where the collision occurred there was a car parked over on the left hand side of the street and that . an automobile came down the street meeting them which swerved over toward the truck in order to avoid a collision with the parked car and that in order to keep from colliding with the oncoming automobile the driver of the truck swerved to the right and struck the boy.

It occurs to us that if the boy was riding between the street car tracks and the truck swerved to the right instead of his being hit by the right fender of the truck he would have been struck by the left-hand fender. '

' Further; with reference to the testimony! of the witness Riley, two police officers were called hy defendant to impeach his testimony. These police officers were not witnesses to the accident but were called by some one to go to the scene and investí; gate the facts. Both of these police officers testify that immediately upon being notified of the accident they went to the scene and found the boy lying in the middle of the street and that they talked to a! number of persons, among others the man Riley, the driver of the wagon. They both state specifically that the driver of the wagon told them that the boy became entangled with the mule or harness and was thrown by the mule to the pavement between the wheels of the truck and was run over by the rear right wheel.

This is directly contrary to what Riley testified on the stand as above stated.

Counsel for plaintiffs criticized the testimony of these policemen mainly for the reason that they were not able to give the names of the persons whom they interviewed; but we think their testimony is not to be criticized from that standpoint, for the reason that they both state that as a matter of fact they could not recall the name of the driver of the truck nor where he said he lived; but they stated positively that the colored man who gave them the information stated to them at the time he was the driver of the gravel wagon.

We think the testimony of Riley, given .•at the trial, is greatly weakened by the testimony of these police officers.

The witness Marie Morris, as above stated, corroborates the testimony of the driver of the gravel wagon, but under the circumstances we seriously doubt if she was in position to see precisely what happened beyond the fact that the boy was knocked down and run over by the truck. She is positive that she saw that and we have not doubt that she did, but we doubt if her position was such that she was enabled to see with any accuracy as to whether the truck struck the boy and- knocked him against- the mule' or whether he ran against the mule and was knocked back to the pavement. She was on the opposite side of the wagon at, the time, just in front of them, and while it is reasonable that she saw the boy when he was knocked to the pavement by coming in contact with the mule, we think it very probable that she did not see and could not tell with any degree of accuracy how the boy happened to come in contact with the mule.

But whether she did or did not see the entire transaction the fact remains that the driver of the truck and the man on the seat with him both state positively that the truck did not strike the boy but that the boy ran against the mule or in some way became entangled in the harness and was in that way thrown to the pavement.

We see no reason why we should entirely disregard the testimony of the defendant’s witnesses, and if it be conceded that they are entitled to the same consideration as the witnesses for the plaintiffs, we are utterly unable to say that the driver of the truck was guilty of negligence.

The plaintiffs carried the burden of making out their case beyond a reasonable •doubt. We cannot say from the evidence that they have discharged that burden.

Counsel for plaintiffs filed a motion in the District Court for a new trial, setting up that since the trial of the case they had discovered other evidence which, if introduced, would greatly strengthen their case.

They set up in that application that since the trial they have learned of two witnesses who saw the truck about the time it. ran over the boy and ■ watched it until it stopped some thirty or forty feet beyond the place whese the boy was run over, and' that said witnesses would swear on the trial that the truck did not stop when -it struck the boy but was running at a rapid rate of ten to twelve miles an hour and continued to run some thirty or forty feet after it struck the boy.

They further allege that one of said witnesses would swear that he was one of the first persons to talk to the negro driver in charge of the truck after he struck the' boy and that this driver told him that he did not see the boy at the time he struck him and in fact did not know that he had run over him until after he had passed him.

Plaintiffs attach to this application for a new trial the affidavit of Mr. Jack Dunlap and the affidavit of Mr. J. B. Roberson. Mr. Jack Dunlap in his affidavit states that after striking the boy the truck passed on for at least thirty or forty feet before it stopped and that the driver of the truck told him that he did not see the boy at the time he was run over. Mr. Roberson states in his affidavit that the truck passed on some thirty or forty feet after striking the boy, but he does not state that he interviewed the driver of the truck.

The ti’ial court refused to grant a new trial, and we think correctly so. We think it not 'material whether the truck stopped immediately after running over the boy or whether it ran on some thirty or forty feet before it stopped.

The material point is, whether the truck struck the boy and knocked him against the mule, or whether the boy ran against the mule previous to being struck by the truck.

Neither of these .parties professes to have seen the accident: The most that can be stated with reference to the affidavits of these parties is that if Dunlap were to testify that the driver of the truck had told him that he did not see the boy previous to his being struck it would impeach the driver’s testimony on that particular point. But if the truck driver’s testimony were eliminated entirely the court' would still not be " convinced beyond a reasonable doubt that the driver of the truck was guilty of negligence.

If these newly discovered witnesses had stated that they saw. the accident and were in position to detail the transactions connected with it, the case would be entirely different; but as we view it if plaintiffs could prove by them all that they say they can prove the case would not be made out beyond a reasonable doubt.

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


author: REYNOLDS, J.

text:
    No. 2663
    Second Circuit
    HARRIS HYMAN & CO., INC., v. LOUISIANA RAILWAY & NAVIGATION CO.
    (June 2, 1926, Opinion and Decree)
    (June 30, 1926, Rehearing Refused)

      (Syllabus by the Court.)

    1. Louisiana Digest — Carriers of Passengers and Goods — Par. 124, 125.
    As a condition precedent to holding a railroad company liable for loss of or damage to cotton intended to be shipped over its railroad, the cotton must be accepted for transportation by the railroad company, expressly or by implication.
    Whitehurst vs. Texas & Pacific Ry. Co., 131 La. 140, 59 South. 42.
    Meyer & Co. vs. V. S. & P. Ry. Co., 41 La. Ann. 639, 6 South. 218.
    Elliott on Railroads, vol. 4, 3rd ed. 481.
    Ruling Case Law, vol. 4, pages 688, 690, 691.
    2. Louisiana Digest — Carriers of Passengers and Goods — Par. 124, 125.
    If something required by law, custom or contract remains to be done by the shipper after goods are placed' in the hands of the agent of the carrier before they can be transported, the carrier does not become liable as a common carrier for loss of or damage to the goods until they are ready for shipment.
    10 Corpus Juris, 224, 225, 226.
    Ruling Case Law, vol. 4, page 693.
    Appeal from the Ninth Judicial District Court of Louisiana, Parish of Grant, Hon. R. C. Culpepper, Judge.
    Action by Harris Hyman & Company, Inc., against Louisiana Railway & Navigation Company. There was judgment for defendant and plaintiff appealed.
    Judgment affirmed.
    Monroe and Lemann, of New Orleans, and Holloman and White, of Alexandria, attorneys for plaintiff, appellant.
    Peterman, Dear and Peterman, of Alexandria, attorneys for defendant, appellee.
   STATEMENT OP THE CASE

REYNOLDS, J.

This is a suit by Har ris Hyman & Company, Inc., against Louisiana Railway & Navigation Company to recover $1,757.35 as the value of fourteen bales of cotton burned while on a gin platform situated on defendant’s spur track at Colfax, Louisiana, on September 5, 1924.

Plaintiff alleges, in paragraph V of its petition:

“That on or about September 1, 1924, plaintiff tendered to defendant, at Colfax, Grant parish, Louisiana, for shipment to itself at New Orleans, Louisiana, fourteen bales of cotton of the value of one thousand seven hundred and fifty-seven and 35-100 ($1,757.35) dollars, which cotton was accepted for transportation by defendant, and plaintiff was instructed by the freight agent of defendant at Colfax to place same on the platform of the Colfax gin, from which platform defendant had built a spur track to its main line, and from which point defendant loaded and shipped all cotton shipments originating at Colfax.”

And, in paragraph VIII:

“That said loss was occasioned without any fault or negligence on the part of plaintiff, and defendant is liable to plaintiff for the value of same under its responsibility as a common carrier.”

Defendant filed an exception of vagueness, which was tried and overruled by the lower court; and the correctness or incorrectness of that ruling is not urged before this court.

Defendant’s answer is, in effect, a general denial.

On these issues the case was tried and ! there was judgment rejecting plaintiff’s demand and plaintiff has appealed.

OPINION

The question to be decided in this case | is whether or not plaintiff made such deliv- j ery of the fourteen bales of cotton in ques- j tion to defendant as to make it responsible (J as a common carrier for the destruction J of the cotton. . J

C. J. Green, Jr., a witness for plaintiff, testified, pages 13, 14 and 15:

“Q. Then you say that this entire shipment of sixteen bales were going to the same place?
“A. To the same man.
“Q. Same man and same place?
“A. No. I wouldn’t say the same place, but I say the same man, and I don’t know whether he wanted them shipped to New Orleans or Alexandria.
“Q. Were you the one that secured the bill of lading for the two bales that were in the car?
“A. Yes, sir.
“Q. Why didn’t you get bill of lading at that time for the other fourteen?
“A. Because he made us load them in the car before he would give us bill of lading.
“Q. In other words, the agent wouldn’t give you bill of lading until the cotton was loaded in the car?
“A. No, sir.
“Q. When this cotton that you bought, Whether on the streets or at the gin, had been purchased, I believe you stated that after that it had to be loaded in the car?
“A. Yes, sir.
“Q. And that you had to pay something or that loading?
“A.. Yes, sir, ten cents per bale.
“Q. Was that ten cents paid by yourself r the railroad company?
“A. Paid by us.
“Q. Had you paid yet to have the foureen bales loaded that were on the platorm?
“A. They were not loaded yet.
“Q. So they were not loaded yet.
“A. They were not loaded yet, and I didn’t pay for the loading until they were loaded.”

From this evidence it is clear that the defendant had not received for transportation the fourteen bales of cotton that were destroyed by fire on the platform of the Farmers Gin Company at Colfax, Louisiana.

On the contrary, the defendant had established the custom not to receive cotton for transportation at the gin platform until it was actually loaded into defendant’s cars; and plaintiff, a corporation engaged in buying cotton and shipping it over defendant’s railway had acquiesced in this custom for more than two years and had assumed the burden of loading its cotton from the gin platform into defendant’s cars at its own expense before defendant would issue bill of lading to it for the cotton so loaded; and that as to the fourteen bales that were burned plaintiff had not given shipping directions to defendant’s agent. In fact plaintiff’s agent at Colfax, who was charged with the duty of giving these directions, did not himself know whether the cotton was to be transported to New Orleans or Alexandria.

Under these conditions it appears to us that defendant had not received the cotton for transportation, and therefore defendant cannot be held liable as a common carrier for its loss.

The allegations of paragraph five of plaintiff’s petition are not supported by evidence in the case.

It is therefore ordered, adjudged and de- • creed that the judgment appealed from be affirmed.


text:
    No. 2466
    Second Circuit
    CANNON v. WINNFIELD OIL AND GAS COMPANY
    (June 2, 1926, Opinion and Decree)
    (June 30, 1926, Rehearing Refused)

      (Syllabus by the Court.)

    1: Louisiana Digest — Appeal—Par. 625.
    Unless clearly erroneous, the decree of the trial court on matters of fact will not ■ be disturbed.
    1 La. App. 22, Jahncke Service vs. Hewson.
    2, Louisiana Digest — Explosives—Par. 3.
    In order to hold a defendant for damages for an -act complained of in this case, sale of explosive oil, on circumstantial evidence, the evidence must be strong . enough to exclude every other reasonable hypothesis other than that defend- ‘ ant’s act was the proximate cause of - the damage.
    Reed vs. Nelson, 133 La. 968, 63 South. 484.
    Bishop vs. Town of Mansfield, 144 La. 109, 80 South. 217.
    Appeal from the Eighth Judicial District Court of Louisiana, Parish of Winn, Hon. F. E. Jones, Judge..
    Action by David E. Cannon against Winnfield Oil & Gas Company, et al. There was judgment for defendant and plaintiff appealed.
    Judgment affirmed.
    ■R. W.. Oglesby, of Winnfield, attorney for plaintiff, appellant. 1
    Pearce and Fuller, of Winnfield, attorneys for defendant, appellee, Winnfield Oil & Gas Company.
    A. Leonard Allen, of Winnfield, attorney for defendant, appellee, J. L. Powell. •
   STATEMENT OF THE CASE

REYNOLDS, J.

In this suit plaintiff sued to recover $2500.00 damages for the loss by fire of his dwelling house and contents at Winnfield, Louisiana, on March 4, 1925. The fire is alleged to have been caused by the explosion of a lamp in the house, which lamp, it is alleged contained a mixture of kerosene and gasoline that was sold to plaintiff as kerosene oil by the defendant, J. L. Powell and sold to J. L. Powell as such by defendant Winnfield Oil & Gas Company.

On motion of plaintiff a remittitur of $500.00 was. entered.

Defendants moved to strike out paragraph five of the petiton and also filed pleas of vagueness and an exception of no cause of action, all of which were overruled by the court.

Defendants denied liability and alleged that no act of negligence, carelessness or fault of theirs caused the injury complained of.

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

OPINION

The exception filed in this ease presents very interesting questions of law, but under the view that we have taken of the facts the exception need not be passed on.

The evidence shows that plaintiff’s house and contents were destroyed by fire, but the exact cause of the fire is not established.

Plaintiff contends that it was caused by the explosion of a lamp and that the explosion was caused by the lamp being filled with a mixture of kerosene and gasoline; and that as the evidence shows that he purchased kerosene from defendant J. L. Powell and that Powell purchased it from defendant Winnfield Oil & Gas Company and that Powell had sold to other persons some of the same kerosene and some of the kerosene so sold by him to other persons was found to be highly inflammatory, this conclusively proves that the house was set afire by the explosion of the lamp and that the lamp exploded because the kerosene in it was. mixed with gasoline.

We are unable to concur in this view. There are thousands of ways in which a house can catch afire, and since the time that men began to build houses, houses have burned from various causes. All over the world houses are catching afire from causes that no one can account for, and the mere fact that a dwelling has burned establishes no other fact.

Plaintiff cites, with great confidence, as sustaining his contention, the case of Waters-Pierce Oil Co. vs. Deselrm, 18 Okla. 107, 89 Pac. 212, Supreme Court reports, vol. 29, page 270. But that case is essentially different from the one at bar. In that case it was not denied that kerosene and gasoline had been mixed and that the mixture was ■ a highly inflammatory fluid, while in the case at bar whether the oil contained in plaintiff’s lamp was mixed with gasoline is one of the contested questions.

’ The witnesses for defendants swore positively that no mixture of kerosene and ■gasoline was Sold by defendants to any one ■and a chemical analysis of a portion of the oil that is supposed to have contained gasoline corroborates defendants’ witnesses on this point, and such evidence as there is ■to the contrary is entirely circumstantial.

We are not convinced that the finding of the trial court on this point was erroneous.

Plaintiff insists that he is entitled to recover under the doctrine of res ipsa loquitur he is entitled to recover. This doctrine is authority in this case only for holding that plaintiff’s house was actually destroyed by fire. It is not authority for holding that the cause of the fire was the explosion of a lamp and that the lamp exploded because it contained a mixture of kerosene and gasoline.

We have carefully read all the evidence and are unable to find in it proof of any act of defendants or either of them connecting either of them with the burning of plaintiff’s house.

In order to hold a defendant for damages for an act complained of on circumstantial evidence, the circumstantial evidence must be sufficiently strong to exclude every other reasonable hypothesis other than that defendant’s act was the proximate cáuse of the injury.

Reed vs. Nelson, 133 La. 968, 63 South. 484.

Bishop vs. Town of Mansfield, 144 La. 109, 80 South. 217.

For these reasons the judgment of the lower ■ court is affirmed.


text:
    No. 2583
    Second Circuit
    GUILLOTTE v. LEE LUMBER COMPANY
    (June 2, 1926, Opinion and Decree)
    (June 30, 1926, Rehearing Refused)

      tSyllabus by the Court.)

    1. Louisiana Digest — Appeal—Par. 625.
    The judgment of the trial court on matters of fact will not be disturbed unless clearly erroneous.
    Jahncke Service Inc., vs. Hewson, 1 La. App. 22.
    Appeal from the Ninth Judicial District Court of Louisiana, Parish of Rapides, Hon. R. C. Culpepper, Judge.
    Action by Adolph D. Guillotte against Lee Lumber Company. There was judgment for defendant and plaintiff appealed.
    Judgment affirmed.
    Julius T. Long, of Shreveport, attorney for plaintiff, appellant.
    Overton and Hunter, of Alexandria, attorneys for defendant, appellee.
   STATEMENT OP THE CASE

REYNOLDS, J.

This is a suit to recover compensation under clauses (b) and (e) of subsection 1 of section 8 of the Workmen’s Compensation Law of Louisiana for the breaking and dislocating of- several of his ribs and the injuring- of his ears, hearing, brain, nerves, lungs, heart and other parts of his body, producing permanent injury, and for the serious permanent impairment of the usefulness' of a member or physical function.

Defendant denied liability on the ground that it had paid plaintiff full compensation during the period of his disability and that he had completely recovered from all injuries received by him and was now able to do work of any reasonable character'.

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

Under plaintiff’s complaint, the first question presented is, whether or not he is so injured as to prevent him from doing work of a reasonable character.

Under order of the district judge, Hon. Leven L. Hooe, doctors Simmons, Stafford and Rand were directed to make a physical examination of plaintiff and report to the court—

“(1) Whether or not Adolph D. Guillotte, plaintiff and injured employee, has ' any rib or ribs on the right side of his body dislocated permanently;
“(2) Whether or. not the said Guillotte’s ears, hearing, brain, nerves, lungs, heart, or any other parts of his said body are permanently-injured and impaired;
“(3) Whether or not the injuries to the said Guillotte prevent him from doing • work of any reasonable character, and whether or not he will ever be able to do work of any reasonable character.”

Doctors Simmons and Rand examined plaintiff and reported to the court as follows:

“In compliance with your order under date of September 28, 1925, the undersigned have examined Adolph D. Guillotte, who claims to have suffered certain injuries at the plant of the Lee Lumber Company, Limited, on the 25th of November, 1924.
“Physical examination and x-ray show old healed fractures of two ribs on the right side near the axillary line. These ribs have healed with good union and very little deformity. The general condition of the said Guillotte is good, age and other factors considered.
“Answering the specific questions of the court, we are of the opinion after our examinations:
“(1) That fhe fractured ribs have formed good union with little deformity and that there is no permanent dislocation of same.
“(2) That the said Guillotte’s brain, nerves, lungs and heart are in no way permanently impaired and that the slight impairment in hearing is due to age and in no way associated with the injury.
“(3) That the said injuries in no way prevent him from doing work of a reasonable character.
“(4) That this injury does not affect his brain, nerves, lungs and heart, and that with the exception of the slight impairment to his hearing above mentioned, his brain, nerves, lungs and heart are in good condition and functioning normally and that we consider that he is able to work now as before his injury.”

Doctors M. L. Adair and E. L. Sanderson also made an- examination of plaintiff, and basing their opinion, to some extent, on the history of his condition as detailed to them by him long after he had sufficiently recovered from his injuries to be able to resume his work and a short time before the filing of this suit, testified to conditions existing in plaintiff somewhat different from those shown by the official report of Doctors Simmons and Rand.

The physical condition of plaintiff is shown by the fact that from April 21, 1925, up to the time of the trial of this suit, July 31, 1925, he was able to do the same kind of work and harder work than he did before the accident, corroborates, we think, the findings of Doctors iSimmons and Rand as shown in their report made under order of court.

The district judge who tried the case and heard all the oral testimony given on the trial, decided that plaintiff had failed to make out his claim that he was unable to do work of any reasonable character. We think the finding on this point is correct.

Plaintiff contends that he is entitled to recover for the permanent impairment of a physical function on account of his defective hearing, and insists that his hearing was impaired by the accident.

On his return to work after the accident he made no complaint to his fellow workmen of his hearing, and his co-laborers testified that he could hear as well after the accident as before.

The testimony of the medical experts appointed by the court to examine plaintiff is as follows on this point:

“* * * that the slight impairment of hearing is due to age and in no way associated with the injury.”

The plaintiff introduced no evidence contradicting this opinion except his own testimony, and the district judge evidently was not impressed by it. Plaintiff did not fail to hear a single question asked him during the first part of his examination, but after he was asked:

“How about your hearing now?”

he frequently failed to hear the questions asked him.

There may have been a perfectly good reason for his not hearing the questions ■asked, him after the matter of the condition-of his-hearing was:.begun to be inquired into; but the district judge was in a better-position to -judge as to this, than is this: court, and the district judge found in favor. . of the defendant ■ on this point also. . We are not prepared to say that he manifestly, erred.

,For these reasons,, it is. prdere.d, ad-; judged and decreed that the judgment. ap-: pealed from be affirmed. . ■


text:
    No. 2656
    Second Circuit
    McLEMORE v. HEMLER
    (June 2, 1926, Opinion and Decree)
    (June 30, 1926, Rehearing Refused)

      (Syllabus t>y the JSCAtor)

    1. Louisiana Digest — Obligations—Par. 173.]
    A party cannot enforce a contract which he himself has violated.
    2. Louisiana Digest — Obligations — Par. 181; Evidence — Par. 53.
    The burden of proof is on one suing to enforce a contract to show that he has performed his obligation.
    Appeal from the Fifth Judicial District Court of Louisiana, Parish of Richland, Hon. John R. McIntosh, Judge.
    Action by J. Walter McLemore against W. Felix Hemler.* There- was judgment for defendant and plaintiff appealed. 1
    Judgment affirmed.
    Ellis and Ellis, of Rayville, attorneys for plaintiff, appellant.
    George Wesley Smith, of Rayville, attorney for defendant, appellee.
   ODOM, J.

On July 1, 1925, plaintiff and defendant entered into a .contract under the terms of which plaintiff was to sell to defendant fifty bales of cotton of the crop of 1925 at 21% cents per pound, said cotton to be of the first picking.

Plaintiff delivered thirty-one bales, which were accepted by defendant.

Defendant refused to accept the other nineteen bales, on the ground, as he alleges, that the cotton was not picked and handled in accordance with the agreement and was, for that reason, of lower grade than he had a right to expect under the contract.

Plaintiff brought this suit for $1,915.22, the value of the cotton not accepted.

There was judgment in the lower court' rejecting plaintiff’s demand and he prosecutes this appeal.

OPINION

The contract between the parties was in ] writing and reads as follows, to-wit:

“Rayville, La., July 1, 1925.
“Witness this contract and agreement en-J tered into by and between Walter McLe-' more, of Winnsboro, Louisiana, and W. 1 Felix Hemler, of Rayville, Louisiana, where-J in the said McLemore has contracted to sell f to W. Felix Hemler 25,000 pounds of lintl cotton in about 50 bales, subiect to the[ following terms and conditions:
“It is agreed that the cotton delivered on this contract shall be grown on the seller’s farm near Baskin composed chiefly of cotton grown from Cleveland Big Boll or Wanamaker Cleveland or Delfos 6102 varieties; it is also agreed that the seller will deliver to the buyer the first fifty (50) bales picked and ginned, and that the seller will endeavor through his tenants to use ordinary care and precaution in the gathering of said cotton so that as good grades as possible may be tendered on delivery; it is also agreed that the buyer shall have the right to reject any bale which does not weigh 400 pounds if he desires should such bale be tendered (this stipulation being made because any bale under 400 pounds is not of commercial weight). The buyer agrees to pay the seller (21%) twenty-one and 50-100 cents per pound for the said cotton and to pay for the same as fast as delivered. Both parties agree that the trend of the market shall have no effect upon this contract.
“Thus done and signed in the presence of the undersigned witnesses on the day and date first above written.
“Witnesses:
JESSE ANDERSON C. McLEMORE.
"J. W. McLEMORE,
“W. FELIX HEMLER"

Defendant, as a witness in his own behalf, gave his version of the facts and circumstances leading up to the signing of the contract, and went into details as to what was the understanding between him and plaintiff. Inasmuch as this testimony Was brought out by counsel for plaintiff and is in the record without objection, we think it should be considered along with the written contract, for it throws some light upon the question as to what was the understanding between the parties, and to that extent explains the contract.

His testimony referred to is as follows;

“Q. Now didn’t you first try to buy this cotton from McLemore that way, basis middling?
“A. Do you want to question me or me make a statement now?
“Q. Just answer the question, please. Now, didn’t you first try to buy this cotton from McLemore that way, basis middling?
“A. Mr. McLemore’s brother had sold me some contract cotton and he told me that the plaintiff, Mr. J. W. McLemore, wanted to contract some cotton. I went to Winnsboro and took- the matter up with Mr. McLemore; at the time he offered— he wanted to contract approximately fifteen bales of Delfos cotton and thirty-five bales of short cotton, basis middling, and strict middling, at twenty-two cents, and twenty-five cents, for the Delfos cotton, and he stated that he anticipated making about fifteen bales of the Delfos cotton and about thirty-five bales of Cleveland Big Boll and Wanamaker Cleveland cotton; we didn’t contract that day and we reached an understanding over telephone, he being at Winnsboro and I being in Rayville, he made an offer to sell the first fifty bales of cotton picked and ginned from his plantation at twenty-one and a half cents a pound regardless of whether this cotton was Cleveland Big Boll, Wanamaker Cleveland or Delfos and irrespective of grade. I told him that I couldn’t make a contract with him of that nature, unless he would personally agree that every effort would be made to pick this cotton as fast as it was opened and ginned it as fast as picked and deliver it because, if I made an open contract with him that he would tender or could tender cotton picked in any manner that he desired and I would have to take it; bought irrespective of grade. He assured me that if he sold me the cotton at twenty-one and a half cents a pound that this cotton would be picked as soon as opened, every effort would be made to preserve the grade, in order that it might be tendered as good as it'possibly could be. I don’t say that the verbiage used would be the exact conversation, but it’s approximately the conversation that took place and his conversation to me relative to his efforts to pick the cotton in as good shape as possible that it might be tendered that way, was repeated over the telephone and I at that time had this conversation in the presence of his brother Cage McLemore, who stated that if he agrees to that—
“• — I believing in and acting under the belief Mr. McLemore would use due diligence and pick this cotton as soon as it was opened and exercise the usual care and precaution in getting the crop out, I contracted with him at twenty-one and a half cents a pound for fifty thousand pounds of cotton to be delivered as specified in the contract and as we agreed, as fast as it could be picked and ginned.”

There is no question but that it was understood between the parties that plaintiff was to give some personal attention to the gathering and handling of the cotton and that his agreement-to do so was one of the considerations that induced defendant to contract as he did.

The cotton was sold without reference to grade or class and for that reason it was to defendant’s .interest to have plaintiff obligate himself to see that the cotton was picked as soon as it opened, ginned as soon as picked, and picked and handled with due and ordinary care.

Plaintiff’s own testimony shows that he understood that this obligation rested upon him, for he says that on one occasion defendant called him over the telephone and told him that the cotton was not being picked and handled carefully, and that he at once went to his hands or some of them and cautioned them to be more careful.

It is defendant’s contention that plaintiff failed to live up to his obligation in that respect, and that on account of plaintiff’s negligence the cotton was carelessly handled, resulting in inferior grades; that he did not get the grade of cotton that he had a right to expect and which he would have gotten if plaintiff had lived up to the contract; that while it is true the sale was made without reference to grade of class, that he was entitled to the best grade of cotton which could be produced with due and ordinary care in picking and handling it.

Plaintiff does not dispute the proposition that defendant was entitled to the best grade of cotton obtainable, but his position is that he did all that was contemplated under the contract to see that the cotton was properly handled, and that he there- , fore lived up to his part of the contract.

As plaintiff is suing to enforce the contract, the case hinges upon that point.

In reciprocal or commutative contracts the party who wishes to have the other live up to his obligation must perform his part of the obligation and he must, furthermore, perform the contract as a whole and not in part only.

Civil Code, Article 1913.

Shreveport Cotton Oil Co. vs. Friedlander, 112 La. 1059, 36 South. 853. I

Chase vs. Turner, 10 La. 19.

The rule is stated by the court in the 1 case of Taylor vs. Almanda & Brother, 50 La. Ann. 354, 23 South. 365, as follows:. fl

“The plaintiff who sues to enforce al commutative contract must show performance!”
“A party who sues on a special contract' to recover compensation alleged to be due on its performance, must show performance on his part if that matter is put at issue.” 9 Cyc. 759.

The plaintiff delivered thirty-one bales of' the cotton, which were accepted by defendant. He tendered the other nineteen bales, which were refused. Plaintiff alleges that he—

"* * * proceeded to have his tenants gather the cotton, using the. best care and precaution possible, and that petitioner proceeded with his part of the contract.”

Defendant puts this point at issue in his answer by alleging that “no care and precaution had been exercised by the pickers” to preserve the “grades”, and that the nineteen bales of cotton were refused for that reason “that they were not picked and delivered in the manner contemplated by the contract”, and that “the samples drawn from each side of the bales will show evidences of the fact that no care or precaution was used in the gathering of same”.

And he further alleged, in answer, that plaintiff breached the contract in that respect, which released him from it.

We have read and reread the testimony and are convinced that plaintiff gave little, if any, attention to the gathering and handling of any of the cotton.

Plaintiff was asked (page 177 of the evidence):

“Q. And you didn’t go up to look after the picking of the cotton, didn’t pay any attention to it, left that entirely to the tenants?

And he answered:

“Left that to the tenants, and have, ever since X had the place.”

On being asked if he was a merchant, he said:

“Yes, sir; don’t have time to fool with that (the picking and handling of the cotton) I just can’t attend to both of it. I can’t attend to the farm part of it.”

He said that at one time the defendant told him that the cotton showed evidences that it was being carelessly picked and handled and registered serious complaint on that point and that he made a trip to the plantation and told the hands to be more particular; but there is no evidence that he followed' up his orders or request to see that they complied. One of his tenants, named Pierce, owned a 40-acre farm of his own which he lived on and cultivated in addition to the twenty acres which he leased from plaintiff and on which seven of the nineteen bales refused by’ defendant were produced. Plaintiff admits that he did not at any time go to see Pierce about the gathering of this cotton. Plaintiff’s own testimony shows that he practically if not entirely neglected to perform the part of the contract which required him to see that the crops were picked and handled with due and ordinary care. He attempts to excuse his failure on this point by explaining that his tenants were good men and that he felt it was unnecessary for him to keep after them. But he had assumed the obligation of seeing that they did use proper care in handling the crop and he cannot escape on that ground.

We are satisfied that the tenants did not pick and handle the crop as they should.

The testimony shows that the season of 1925 up to October 19th was most favorable for the gathering of cotton. After that date it was extremely bad on account of excessive rains and it was impossible to gather cotton so as to produce good grades after the rains set in. Of the thirty-one bales delivered prior to the rainy season there were nine bales low middling, five strict middling, thirteen middling and four strict low middling.

Mr. Colder, who bought cotton in that section during the 1925 season testified that it was unusual to find low middling cotton in a lot picked before the rains, and says—

“* * * most of the cotton at that time was running middling and better.”

George Downes, another cotton buyer in that section, testified that he purchased over two thousand bales from various parties, all gathered before the rains, and there was not a bale which graded below middling and that he did not see a sample of low middling cotton during that time, and that the thirty-one bales delivered by plaintiff prior to the rains was a “bad lot”.

Hemler, the defendant, testified that the cotton showed evidences of being badly handled and for that reason showed samples below average grade for that season.

The first cotton tendered was accepted by defendant' and there ■ is no controversy as to that. We have referred to the testimony with reference to it only as tending to show loose and careless handling of plaintiff’s cotton generally.

As to the nineteen bales which defendant refused to accept, they were all bad, which was to be expected as they were picked after the rains. A great deal of this is what cotton buyers call “dogs”. It has no classification. Plaintiff had no right to expect cotton of good grade at that season, but he did have a right to expect the best that could be produced with due and ordinary care in picking and handling, and the testimony satisfied us that it was not handled as it could have been.

Ed. Shamblin, a cotton buyer, who examined samples of the nineteen bales said that five bales of it showed evidences of fair handling, the others bad, and that up to the time of its delivery he had not seen as bad a lot. Later on, he says he saw cotton as bad or worse but that that was probably because the longer it stays in the field after rain the worse it gets.

He further testified—

“Well, I would say that the cotton looked t9 me as though it was not handled very carefully.”

Other witnesses thought the nineteen bales below the average, and some, .including the ginner, Goforth and a tenant on his place, testified that the cotton was picked and handled in the usual and ordi-. nary manner.

Plaintiff’s tenant, Pierce, made a crop of cotton on his own land. He also leased twenty acres from plaintiff on which he produced seven bales of the nineteen bales which were refused by defendant. The testimony shows that he picked the cotton on his own land first and allowed the cotton grown on plaintiff’s land to remain in the field until after the rain. He made no effort to pick any cotton grown on the leased land until after the rain but devoted all his time to gathering that on his own land. He explains that by saying that he was sick and he could not send his children away from home to pick when they had enough at home to keep them busy.

Plaintiff admits that he made no effort to get Pierce to pick and gin the cotton on his land.

The contract provided that the “seller will deliver to the buyer the first fifty (50) bales picked and ginned”. The parties contemplated and the defendant had a right to expect that plaintiff’s tenants would gather their cotton when it opened and would not leave it in the field subject to the ravages of the weather.

The defendant, under the letter of the contract, was to get the first fifty bales ginned. It is customary for farmers to begin picking their cotton as soon as it opens and this contract should be construed with reference to that custom. We think it would not be contended by plaintiff that if all the tenants on the plantation had done as Pierce did, that is, neglect the crop grown thereon until it suited their convenience to gather it, there would be a compliance with either the letter or spirit of the contract.

Plaintiff made no effort to get Pierce to gather the cotton that grew on his own plantation and it was not gathered until after the rains and, as stated, seven of the nineteen bales refused were Pierce’s cotton.

Counsel for plaintiff argue that even if it be conceded that even if Pierce’s cotton was not picked as the contract provided and as contemplated by the parties, the contract should be annulled only to the extent of that particular lot of seven bales.

We do not base our holding alone upon the fact that these seven bales were not picked and handled in accordance with the agreement, but upon the fact that not only this particular lot but all the cotton was carelessly handled and that plaintiff was at fault in not looking after it. His fault resulted in the cotton making bad samples and low grades. Whether plaintiff could have induced the tenants to pick the cotton and handle it as the contract provided and as the parties contemplated, is not the question. The facts are that he made no effort whatever to induce Pierce to pick his cotton and made but little effort to get the others to handle theirs with care, the result being that defendant was tendered a lower grade of cotton than he would have received if plaintiff had performed his part of the contract and had seen that the cotton was picked and handled with due care.

The testimony shows that the tenants on plaintiff’s place knew that their cotton had been sold at 21 y2 cents a pound and we think the fact that they knew this accounts for their careless picking and handling it. If they had not known that the cotton was already contracted for we think it highly probable that they would have been more careful in order that they might produce a better sample.

Another feature which enters into consideration is that the contract stipulates that the cotton was to be chiefly “Cleveland Big Boll or Wanamaker Cleveland and Delfos”. “Delfos” is a long staple cotton and is worth more than ordinary short staple cotton.

Defendant swore, and his testimony on that point was not disputed, that plaintiff contemplated that he would have at least fifteen bales of “Delfos”. Defendant had sold him enough “Delfos” seed to plant about twenty-seven acres. In view of these facts the defendant had a right' to expect a fair percentage of the long staple cotton in the lot, especially as that variety opens early, and as out of the lot of fifty bales tendered there were only two bales of “Delfos”. Plaintiff excuses himself on this point by explaining that the. stand was bad from the first planting and he had to replant. An answer to that is that the contract was not entered into until July 1st, long after the cotton had been planted, and plaintiff knew of that condition when he contracted and yet led defendant to believe that he would have about fifteen bales of staple cotton.

The question as to whether this contract was divisible or indivisible does not, we think, enter the consideration. The principle underlying the holding in the case which counsel cite, Shreveport Cotton Oil Co. vs. Friedlander, 112 La. 1059, 36 South. 853, is that a party cannot enforce a contract which he himself has violated. That case supports our holding in this. Plaintiff is suing to enforce a contract. The burden was upon him to show that he had performed his obligation. We do not think he has done so.

Finding no error in the judgment appealed from, the same is accordingly affirmed, with costs.


author: ODOM, J. Per curiam:

text:
    No. 2627
    Second Circuit
    CLARK v. NORRED
    (June 20, 1926. Opinion and Decree.)
    (June 30, 1926. Rehearing Refused.)

      (Syllabus by the Editor.)

    1. Louisiana Digest — Evidence—Par. 112, 113; Lost Instruments — Par. 4.
    Title to real estate may be shown by parol testimony upon proving the loss of the deed and the contents thereof.
    2. Louisiana Digest — Evidence—Par. 112; Lost Instruments — Par. 4.
    Although the contents of a private deed to real estate lost or destroyed may be proved by parol it must also be proved that such a deed had beén executed.
    3. Louisiana Digest — Evidence—Par. 208.
    Written instruments under private signature are not admissible in evidence until" the signature thereto is proven.
    4.' Louisiana Digest — Evidence—Par. 59, 208; Lost Instruments — Par. 4.
    If the defendant denies having signed a deed to real estate which had been lost or destroyed and there is no evidence in the record to show that she did sign it, the deed is not proven.
    5. Louisiana Digest — Petitory and Possessory Actions — Par. 13, 15.
    A widow who owned a one-half undivided interest'oif her husband’s estate at" his death has a sufficient showing of - title to bring petitory action.,
    6. Louisiana Digest — Judgment—Par. 153, 207.
    Where the court has jurisdiction of the case and the minors are properly represented a judicial sale made after a complete hearing, in the absence of fraud, binds the minors as if they had been majors.
    7. Louisiana Digest — Judgment—Par. 172.
    Matters once determined in a court of competent jurisdiction may never again be called in question by parties thereto.
    Appeal from the Third Judicial District Court of Louisiana, Parish of Jackson. Hon. S. D. Pearce, Judge.
    Action by Mrs. Nannie-May Clark, et al., against S. B. Norred, et al.
    There was judgment for plaintiffs and defendants appealed.
    Judgment affirmed in part and reversed in part.
    E. L. Walker, of Ruston, attorney for plaintiffs, appellees.
    W. J. Hammon, of Jonesboro, Barksdale, Warren & McBride, of Ruston, attorneys for defendants, appellants.
   ODOM, J.

H. J. Glover died in the parish of Jackson on November 27, 1903, leaving a wife, Mrs. Nannie May Glover, and three children as his sole heirs, to-wit: Henry J. Glover, Homer T. Glover and Walter L. Glover.

He owned, at the time of his death, the following described land belonging to the community which existed between him and his said wife, to-wit: SEy, of NWy,; SWÍ4 of NE%; NEy of SWy,; and the wy2 of the Nwy* of SEy, Of Section 5, Township 15 North, Range 3 West, containing 140.0Ó acres.

About three years later Mrs. Glover married one E. D. Quick who,’ with his wife and the three Glover children, who were all minors, went to Sabine county, Texas, to reside.

E. D. Quick died about 1920, and Mrs. Quick 'subsequently married a man named Clark.

Mrs. Clark, and her children above named, all of whom are now of age, reside in the state of Texas.

In August, 1925, after the Glover children had attained the age of majority, they, together with their mother, then Mrs. Clark, brought this suit against the defendants, alleging that they are the owners and entitled to the possession of the 140.00 acres of land above described and that the defendants claimed to own and were in ppssession of the land under certain deeds and transfers which, they allege, were null and void for reasons specifically set out and which they ask to be cancelled and erased from the records and that they be recognized as the owners and be placed in possession of said land.

The defendants, in answer, denied that plaintiffs áre the owners of the land and set up title in themselves.

There was judgment in the lower court in favor of the plaintiffs and against the defendants as prayed for, from which judgments the. defendants prosecute this appeal.

OPINION

It is undisputed that plaintiffs are the owners in common of the land in dispute, unless their title thereto has been legally divested.

As a basis of title, they allege and show that said land was purchased by H. J. Glover during the existence of the 'community between he and his wife, now Mrs. Clark, one of the plaintiffs, who, at the time of his death, owned an undivided half interest in it by virtue of the community, the other undivided half descending to his three children, the other plaintiffs herein.

It is the contention of the .plaintiffs that they have not been divested of title.

It is defendants’ contention, on the contrary, that plaintiffs have been divested of title and that they are now ownérs of the land.

There is no deed of record or in existence, so far as the record shows, evidencing a sale by Mrs. Clark, the widow Glover, of her interest in the land. It is contended by defendants, however, but denied by her, that in May or June, 1913, she executed a deed to her interest in the land to one M. E. Norred.

The serious and sole question involved in the case, so far as Mrs. Clark is concerned, is whether she did in fact execute a deed to Norred.

It is not seriously denied by Mrs. Clark that there was at one time, about May or June, 1913, as alleged by defendants, a deed in existence purporting to convey her interest in the land to Norred with her name appended thereto as vendor. She says that she has no knowledge of such a deed and that if there was such the writing of her name thereon was without her sanction or authority and was a forgery.

We conclude, as did the district judge, that Norred at one time was in possession of a deed purporting to convey to him Mrs. Clark’s interest in the land; and we further conclude, as did the district judge, that the defendants failed to prove and that under the circumstances they cannot prove Mrs. Clark’s genuine signature was attached thereto or that the deed was executed with her sanction or authority.

It is not contended by defendants that Mrs. Clark authorized anyone to execute the deed for her, but they base their cause upon the proposition that she signed the deed in person, and upon that they must stand or fall.

As stated, the allege'd and purported deed was not recorded, and it could not be produced on the trial of the case. Norred says he gave the deed to a lawyer; the lawyer says he has no recollection of ever seeing it or having it in his possession. Mrs. Clark having denied that she signed the deed, the defendants attempted to prove that she did.

As bearing upon the point, it is well to recite certain incidents which occurred subsequently to the date on which Mrs. Glover, now Mrs. Clark, was married to E. D. Quick and moved to the state of Texas.

As stated, the widow Glover married E. D. Quick about three years after the death of her husband, Glover. After their marriage they went to Sabine county, Texas, to reside. After ■ reaching Texas Quick concluded to purchase a home for himself and family, and being without means of his own he began negotiations for ■.the sale of his wife’s land in Louisiana án order to raise the necessary funds.

M. E. Norred, who resided in Jackson parish, Louisiana, where the land is dispute is located, agreed to purchase the land at an agreed price to be paid in cash. The negotiations for the sale were carried on by Mr. Quick in person. He had his wife to execute a deed conveying her undivided half interest in the land together with one other forty-acre tract which she. owned individually to Norred, the deed reciting a cash consideration. This deed was sent to a bank in Jonesboro, Louisiana, to be delivered to Norred upon payment of the price in cash. Nor-red, it seems, was unable to raise the cash, and the deal was called off and the deed returned.

Mrs. Clark, then Mrs. Quick, admits that she signed that deed.

Pending these negotiations, E. D. Quick purchased some land in Texas in his own name from A. L. McGown, agreeing to pay the purchase price thereof out of the proceeds of the sale of his wife’s property in Louisiana. The cash sale of Mrs. Clark’s property having been called off, and E. D. Quick, her husband, being therefore unable to pay McGown for the property which he had purchased, Quick and McGown made a trip to Jackson parish, Louisiana, to see what disposition could be made of Mrs. Clark’s land. It was found that M. E. Norred was willing to pur- ’ chase the land on terms of credit. The price and terms, which were arranged by E. D. Quick, were as follows: $367.50; $50.00 cash and the balance in two notes due in one and two years. In order to make the sale to Norred Mrs. Clark, of course, had to sign the deed. E. D. Quick and McGown returned to the state of Texas where Quick had an attorney by the name of Minton to prepare the deed on the terms above named. The attorney prepared the deed and delivered it to Quick, who left the office of the attorney, stating that he would have the deed signed.

The attorney, Minton, says that subsequently either Mr. Quick alone or Mr. Quick and his wife returned to his office exhibiting the deed purporting to be signed by both Mr. and Mrs. Quick, and acknowledged before a notary. Minton, the attorney, made a draft on Norred for the sum of $50.00 and prepared two notes to represent the deferred payments and sent the draft, the two notes and the deed to the Jonesboro State Bank to be accepted by Norred. Norred signed the notes, paid the draft and the notes and cash were returned to Minton by the bank who in turn delivered the cash and the notes to E. D. Quick.

The notes in question were made payable to E. D. Quick' .and not to his wife. Quick delivered the cash and the notes to McGown in part payment for the land which he had purchased in Texas. McGown held the notes until after maturity and presented them for. payment. Norred was unable to pay them and on September 8, 1917, Norred, who claims to have held a deed from Mrs. Quick, sold the land to A. L. McGown, the consideration expressed in the deed being “the cancellation and delivery to the said Mack E. Norred of two certain vendor’s lien notes against the above land signed by the said Mack E. Norred of date May 14, 1913, and payable to E. D. Quick and maturing November 1, 1913, and November 1, 1914, for the sum of $158.75 each”.

In order to establish the verity of the purported deed from Mrs. Quick to Norred, defendants took the deposition, by commission, of Minton, the attorney in Texas, who represented E. D. Quick at the time and who wrote many letters about the sale for Quick. He says he saw a deed with the signatures of both Mr. and Mrs. Quick written thereon and purporting to have been acknowledged by them before a notary, but he does not know the name of the notary before whom it was acknowledged, nor the names of the witnesses attached thereto, and he was unable to state whether the deed or the acknowledgment bore the genuine signature of Mrs. Quick, as vendor.

From Minton’s testimony as a whole, it appears that Mr. Quick conducted all the negotiations with reference to the sale. He got Minton to prepare the deed. Min-ton seems to recall the details of the transaction with remarkable accuracy, and, in addition, he retained copies of letters which were written by Quick and by him, which he produced and which were filed in evidence in connection with his testimony taken by commission.

His testimony shows that at one time he was a notary and did notarial work in connection with his law practice. Owing to his business relations with the Quicks it would seem natural that they would have signed and acknowledged the deed before him. He says, among other things, that he does not recall whether the deed was signed and acknowledged before him or some other notary. We are satisfied that it was not, for the reason that if it had been he would unquestionably have recalled that fact, because, as stated, he recalled all other details in connection with the transaction.

Mrs. Quick, now Mrs. Clark, swears positively that she did not sign or acknowledge such a deed; that she did not see it; and she swears, further, that she did not get the money and did not see the notes.

The testimony makes it clear that the notes were made payable to the husband, that he got them and the cash and turned them over to McGown in part payment for the land which he had purchased for himself in his own name. No one who claims to have seen the deed could say that he recognized Mrs. Clark’s signature thereto.

Counsel for defendants contend that title to real estate may be shown by parol testimony upon proving the loss of the deed and the contents thereof, and in support of that contention they cite Davis Heirs vs. Davis Heirs, 123 La. 1091, 49 South. 718; Cain vs. Bauman, 118 La. 82, 42 South. 654; Grotevant vs. Dorrestein, 152 La. 734, 94 South. 372; and McNeely vs. Hyde, 46 La. Ann. 1092, 15 South. 167.

Conceding that as true, it is also true that the rule which admits proof of the contents of a private deed lost or destroyed does not dispense with the necessity of proving its execution. See:

Bradley vs. Calvit, 5 Mart. (N. S.) 662;

Cooper vs. White, 16 La. Ann. 317.

Defendants fail on the latter point. They have not proved the execution of the deed by Mrs. Quick, the alleged vendor.

The alleged deed from Mrs. Quick to Norred was a private act, was lost or destroyed, and was never recorded. Even if defendants had been in possession of the alleged deed, it would not have been admissible in evidence, because written instruments under private signature are not admissible in evidence until the signature thereto is proven.

Civil Code, Art. 2245.

Calhour vs. Pierson, 44 La. Ann. 584, 10 South. 880.

James vs. Rand, 43 La. Ann. 179, 8 South 623.

Code of Practice, Art. 325.

There is not a scintilla of evidence in the record to show that Mrs. Quick signed the deed which is relied on by defendants as the basis of their title to her undivided half interest in the land. On the contrary, she denies that she signed it or that she ever saw it or that she authorized its execution.

Defendants are, therefore, without ground to stand upon, so far as her interest in the land is concerned.

Defendants urge the point that a plaintiff in a petitory action must' recover on the strength of his own title and not upon the weakness of the defendants. That is elementary. In this case, however, the land in dispute was purchased by Mrs. Clark’s first husband, Glover, during the existence of the community between them. At his death she owned an undivided half interest therein. That fact is undisputed. As to a showing of title, she has met the requirements of the law.

AS TO THE OTHER UNDIVIDED HALE INTEREST, INHERITED BY THE \ MINORS

On September 18, 1917, M. E. Norred sold to A. L. McGown an undivided half-interest in the land which he claims to have purchased from Mrs. Clark. He executed a notarial deed which was duly recorded.

On January 21, 1918, McGown filed suit in the District Court of Jackson Parish, where the property is located, alleging that he was the owner in common with the minors named of the property now in dispute and that the property was not divisible in kind and that he was not willing to hold the land in common with them any longer. He prayed that it be sold in order to effect a partition.

Upon allegation and affidavit that the minors were absentees and had no tutor to represent them in the parish of Jackson in the proceeding, an attorney was appointed tutor ad hoc to represent them in the partition suit. The tutor ad hoc accepted the trust and took the usual oath. He filed answer in which he admitted the ownership of the property, as alleged, but denied plaintiff’s allegation with reference to the indivisibility in kind of the property. On the trial of the case no proof of ownership seems to have been made. Apparently the court considered that the question of ownership was not an issue, it having been admitted by the tutor ad hoc. On the question as to whether the property could be divided in kind, one witness testified that it could not be so divided without a diminution of its value.

Upon the pleadings and the evidence the District Court rendered judgment reciting “and the law and the evidence being in favor thereof it is ordered, adjudged and decreed that there be judgment in favor of the plaintiff, A. L. McGown, and against the defendants (naming the minors) recognizing plaintiff and defendants to be the owners in indivisión in the proportions of one-half to plaintiff and one-sixth each to .defendants in the SE!4 of NW>i; SWÍ4 of NEÍ4; NE% of swy4; and W% of NW% of SE%, Section 5, Township 15 North, Range 3 West, and decreeing a partition by licitation. It is further ordered, adjudged and decreed that said property is not divisible in kind and that same be sold by the sheriff of Jackson parish after due advertisement, at public auction, for cash, to the last and highest bidder”.

The judgment further referred the parties to a notary to complete the partition.

The clerk of the District Court issued a writ addressed to the sheriff, commanding him to sell the property in accordance with the terms of the judgment. The property was sold by the sheriff at public auction, and according to the recitals of the deed all the formalities of the law were complied with. The property was purchased by S. B. Norred (not M. E. Norred, who previously sold a half interest to McGown); he, in turn, sold the property and through him portions of it went into the hands of the other defendants in this case.

It is contended by the three Glover heirs, all now of age, that Norred acquired no title to the land by virtue of said sheriff’s sale and that they are the owners of the land, on the ground, first, that McGown, who provoked the partition sale, had no title to the half interest in the land and therefore no standing in court in the suit; and, second, that the judgment’ ordering the partition was rendered without proof of the ownership of the property, it being contended that the judgment finding that the land was owned in common by the plaintiff and defendants was based upon a tutor ad hoc’s admission of ownership in the answer.

The property sought to be partitioned is situated in Jackson parish. The District Court there, unquestionably had jurisdiction of the suit for partition, and it is not disputed that the defendants, the minors, residing in Texas, were properly represented by the tutor ad hoc who filed answer in his official capacity. The court passed upon and disposed of all the issues presented in the case. That judgment was rendered on February 8, 1918. No appeal was taken and the finality of that judgment is as complete as if it had been reviewed and affirmed by the court of last resort.

Mr. Justice Fenner, as the organ of the court, in the case of Hereman vs. Louisiana Institute, 34 La. Ann. 814, on rehearing says:

. “No principle of law is more inflexible than that which fixes the absolute conclusiveness of such a judgment upon the parties and their privies. Whether the reasons upon which it was based are sound or not, and even if no reasons at all were given, the judgment imports absolute verity, and the parties are forever estopped from disputing its correctness.”

.And he quoted, with approval, the following from Bigelow on Estoppel:

“Matters once determined in a court of competent jurisdiction may never again be called in question by parties or privies, against objection, though the judgment may have been erroneous and liable to, and certain of, reversal in a higher court.”

The case quoted from involved the validity of a sale of real estate made under judicial process, as does the one at bar.

To quote further from that case:

“Equally vain is it to contend that the court had no right to order the property to be seized and sold. This was the relief asked in the suit and adjudged by the court, and is equally concluded by the judgment. The proceedings in execution being expressly conformable to the express terms of the judgment cannot be questioned.”

The court in the case at bar having had jurisdiction and the .minors having been properly represented, it necessarily follows that in the absence of fraud they are as fully bound as if they had been majors and personally cited. See:

La. State Bk. vs. Navigation Co., 3 La. Ann. 313.

Johnson vs. Weld, 8 La. Ann. 126.

Schaffer vs. Scuddy, 14 La. Ann. 575.

Succession of Begue, 112 La. 1046, 36 South. 849, (on rehearing).

Boudreaux vs. Lower Terrebonne Rfg. Co., 127 La. 98, 53 South. 456.

On the question of the right of purchasers at judicial sales, our Supreme Court, in the case of Succession of Theze, 44 La. Ann. 46, 10 South. 412, said:

“It has long been the settled jurisprudence of this court that a purchaser at a judicial sale is held bound to look to the jurisdiction of the court granting the order of sale; but the truth of the record concerning matters within its jurisdiction cannot be disputed.”

Citing a long list of authorities.

And further:

“A purchaser at a judicial sale of property of the succession is not bound to look further back than the order of the court directing the sale.”

Citing:

Webb vs. Keller, 39 La. Ann. 55, 1 South. 423.

Linman vs. Riggins, 40 La. Ann. 761, 5 South. 49.

Succession of Lehman, 41 La. Ann. 987, 7 South. 33.

Gale vs. O’Connor, 43 La. Ann. 413, 9 South. 557.

The property in controversy was sold by reason of an order of a court which had jurisdiction; the minors were properly represented in the suit; a writ of sale was issued commanding the sheriff to sell the property; the sheriff did sell the property after due advertisement at public auction to the highest bidder for cash which was paid by the purchaser.

Even if it be conceded that the court had insufficient evidence upon which to base its judgment, that question is foreclosed by the judgment long since final as to all the parties.

It is not suggested that the purchaser was guilty of any fraud or collusion.

Our conclusion, therefore is that the title as to the minors’ interest in the land obtained by Norred at that sale is good and that he transferred a valid title to the other defendants in this suit.

It is urged by the Glover heirs that E. D. Quick, their guardian, living in Texas at the time, came to Louisiana, got the proceeds and failed to settle with them. Conceding that to be true, that does not affect the title. Quick, the guardian, was not a party to the suit under which the judicial sale was made, and the minors who were defendants in the suit were properly represented by a tutor ad hoc appointed by the court.

Quick was appointed guardian of the minors under the laws of Texas. After the sale he came to Louisiana and presented to the District Court of Jackson Parish where the land was situated a certified transcript of the proceedings in the Texas court by which he was appointed guardian, and asked that he be recognized, and there was judgment by the Fifth District Court of Jackson Parish rendered on June 14, 1918:

“Recognizing and confirming the appointment of E. D. Quick by the County Court, Sabine County, Texas, as guardian of the minors, Henry Glover, Homer Glover, and Walter Glover, and authorizing and empowering him to take possession of and remove from the state of Louisiana all of the property and effects, within the parish of Jackson, belonging to said minors, and particularly the sum of five hundred fifty-four 07-100 dollars now in the registry of this court and belonging to said minors, less the expense of this proceeding.”

We find in the record a cancelled check drawn by E. L. Walker, clerk, made payable to E. D. Quick, guardian,' dated June 14, 1918, for the above sum, specifying that it is for the interest of the minors in full, less costs.

E. D. Quick died in 1920, and the Glover heirs now say that he made no settlement with them. That fact cannot affect the validity of the judicial sale. Quick, the Texas guardian, gave bond in the sum of $500.00; their recourse was against the bondsmen.

Lastly, plaintiffs contend that the transcript of the proceedings in the County Court of Sabine County, Texas, appointing E. D. Quick guardian, were improperly certified and should not have been admitted in evidence in the District Court of Jackson Parish in the proceeding under which he was recognized as guardian and authorized to remove the funds.

A complete answer to that contention is that the judgment complained of was rendered on June 14, 1918, more than seven years previous to the filing of this suit, and is conclusive on the point raised.

See authorities on that point cited above.

The judicial sale transferred to the purchaser such title in the land as the parties to the suit had. Mrs. Clark never having parted with title, McGown, the plaintiff in the partition suit, had none to the one-hal'f interest which he claimed and, therefore, the purchaser got none; but the minors owned an undivided half interest which passed to the purchaser by virtue of the sale.

For the reasons assigned, it is therefore ordered, adjudged and decreed that the judgment appealed from be and the same is hereby affirmed insofar as it concerns the plaintiff, Mrs. Nannie May Clark, widow Glover; and as to the plaintiffs,. Henry J. Glover, Homer T. Glover and Walter L. Glover, the judgment is reversed, their demands rejected and the suit, as to them, dismissed, they to pay one-half of the costs of the suit, the other half to be paid by defendants; the costs of this appeal to be paid by appellees, Henry Glover, Homer T. Glover and Walter L. Glover.

ON APPLICATION FOR REHEARING

Per curiam:

The rehearings herein applied for by the plaintiffs, appellees, Henry J. Glover, Homer T. Glover and Walter L. Glover, and by the defendants, appellants, S. B. Norred, O. E. Hodge, John S. Hunt and A. E. Simonton, are refused


author: LECHE, J.

text:
    No. -
    First Circuit.
    LANDRENEAU v. CHAPMAN
    (May 4, 1926. Opinion and Decree.)
    (June 5, 1926. Rehearing Refused.)

      (Syllabus 6y the Editor.)

    1. Louisiana Digest — Automobiles — Par. 4 (b), 7.
    One who drives a wagon onto a public highway from a dirt road, although he saw an automobile coming some distance away, is contributorily negligent and consequently cannot recover damages resulting from a collision with the automobile.
    (Civil Code, Art. 2315. Editor’s note.)
    Appeal from the Parish of Evangeline. Hon. B. H. Pavy, Judge.
    Action by Octave Landreneau against Arville Chapman.
    There was judgment for plaintiff and defendant appealed.
    Judgment reversed.
    J. H. Dore, of Ville Platte, attorney for plaintiff, appellee.
    R. Lee Garland, of Ville Platte, attorney for defendant, appellant.
   LECHE, J.

The claim in suit is for damages arising out of a collision between plaintiff’s wagon and defendant’s automobile.

The plaintiff was driving a farm wagon drawn by two mules along a road going north, and the defendant was in his automobile going west on another road which intersected the first at right angles. The two vehicles met practically at the same time at the intersection of the two roads and -the automobile struck the wagon about the front wheel. Plaintiff, who was sitting on a board across the front part of the body of the wagon, was precipitated by the shock, over the hood of the automobile, and" struck the latter’s windshield. He was painfully hurt and cut but was not seriously injured. He asks for damages in the sum of two thousand dollars. The trial judge allowed him three hundred dollars, and on this appeal taken by defendant he prays for an increase to one thousand dollars.

The collision occurred in daytime and there was nothing to obstruct the view between the two vehicles. Plaintiff says that he saw the automobile when it was some distance from the crossing and the defendant also acknowledges that he saw the wagon, and each party seems to have estimated that he could clear the crossing before the other reached it, but the resultant collision indicated conclusively that both were faulty in their judgment as to the time it would take the other to clear the crossing. The testimony is, as usual in such cases, somewhat conflicting, but there is nothing to indicate that the defendant ■ deliberately ran into the plaintiff’s wagon.

The road on which the defendant was driving his automobile is one of the graveled public highways of the state and that on which plaintiff was traveling in his wagon is an ordinary dirt road. We have several times held to the rule that a person coming from a private roadway, or from a private lane or alley on which there is little, if any, traffic at all, is in duty bound when about to go upon a much-used public highway to slow down and even to stop if necessary, before entering upon such highway. The rule is not the result of any statutory law, except in most cities and municipalities, but it is nevertheless supported by reason and suggested by ordinary prudence. But we can’t say that it applies in this case,, as contended by defendant, for the evidence is lacking and fails to show whether the dirt road was a public highway and whether there was much traffic upon it.

Plaintiff admits that he saw defendant coming at some distance and yet he evidently failed to look in that direction when he reached the crossing, for he says that he heard defendant blow his horn and that the collision was simultaneous with the sound of the horn. Defendant, on the other hand, claims that he saw plaintiff’s wagon, that the mules seemed to stop when they reached the graveled road, and he concluded that he could pass in front of the wagon, but he adds that plaintiff urged the mules forward as he reached the intersection and that he was then unable to avoid the collision.

Our opinion is that both plaintiff and defendant failed to use proper precaution, that they both should have slowed down and stopped if necessary to avoid a collision. Each one saw the other and there is no reason why either one of the parties might not by the exercise of the least prudence and caution have avoided the accident.

For these reasons the judgment of the lower court is avoided and reversed and plaintiff's suit is dismissed at his costs.