author: JOHN MAY, judge ad hoc. CLAIBORNE, J.

text:
    No. 10,062
    Orleans
    BROUSSARD, Appellant, v. ROSENBLUM
    (July —, 1926. Opinion and Decree.)
    (November 2, 1926. Rehearing Refused.)
    (January 4, 1927. Writs of Certiorari and Review denied by Supreme Court.)

      (Syllabus by the Court)

    1. Louisiana Digest — Appeal—Par. 565, 571, 574.
    All cases on appeal to this court shall be tried and considered solely upon the original record and pleadings, save as to exceptions taken, that may be pleaded at any period of a cause, and the proof of which will appear from the mere examination of the record.
    2. Louisiana Digest — Appeal—Par. 574; Estoppel — Par. 2, 53.
    A plea of estoppel may be filed in and considered by an appellate court, insofar as such plea is based upon matters in evidence in the court of original jurisdiction.
    3. Louisiana Digest — Estoppel—Par. 2, 53; Appeal — Par. 574.
    This court can not consider documentary evidence which has not been offered in the trial court, even though such documents be annexed to a plea of estoppel filed herein.

      4. Louisiana Digest — Judgment—Par. 9; Minors — Par. 177.
    While the laws governing pleading in the Louisiana courts do not specifically require the petitioner to set forth the majority of defendant, it is, of course, elementary that a valid judgment can not be secured against a minor, personally sued and cited, and without the intervention of his tutor or curator.
    5. Louisiana Digest — Minors—Par. 2, 3; Estoppel — Par. 48.
    The status of majority can not be created by estoppel.
    6. Louisiana Digest — Prescription — Par. .189, 190.
    Suit against, with citation to and service upon, a minor, will not interrupt the prescription of an action against his father, though father and son reside together and it be shown that the father has personal knowledge of such suit.
    7. Louisiana Digest — Minors—Par. 178, 179, 180; Action — Par. 12.
    The father, or in the event of his death, the mother of a minor may, as long as the minor child be under his or her authority, appear in every kind of civil suit in which the minor may be interested, but failure to do so does not present any legal ground for complaint by a third person in no way interested in the minor’s welfare.
    8. Louisiana Digest — Evidence—Par. 52.
    Where the plaintiff demands a large sum of money for injuries, for which she claims the defendant is responsible, and suit against the defendant (a minor) is filed, we know of no legal obligation upon either side to give to the other any information or assistance, save such as is exacted under the processes provided by law.
    Appeal from Civil District Court, Division “C”. Hon. E. K. Skinner, Judge.
    , Action by Miss Louise Broussard against Hile Rosenblum.
    There was judgment for defendant and plaintiff appealed.
    Judgment affirmed.
    Woodville and Woodville, of New Orleans, Sandoz and Sandoz, of Opelousas, attorneys for plaintiff, appellant.
    St. Clair Adams, of New Orleans, attorney for defendant, appellee.
    CLAIBORNE, J., dissents for written reasons.
   JOHN MAY, judge ad hoc.

On March 12, 1924, plaintiff, Miss Louise Broussard, filed suit against Leo Rosenblum for Nine Thousand ($9000.00) Dollars damages for personal injuries alleged to have been suffered in an automobile accident, which occurred September 23, 1923, such suit being No. 151,552 of the docket of the Civil District Court for this parish.

. In Paragraph 1 of plaintiff’s petition it is alleged:

“That Leo Rosenblum, of lawful age and a resident of this city and state, is justly and truly indebted unto your petitioner in the full sum of Nine Thousand ($9000.00) Dollars, etc.”

Domiciliary service was made upon Leo Rosenblum on March 13, 1924, by leaving the petition and citation at his residence in the hands of his mother.

On March 25, 1924, Leo Rosenblum, appearing through counsel, filed an answer admitting or denying, paragraph by paragraph, the allegations of the petition.

The answer to Paragraph 1 of plaintiff’s petition is as follows:

“That defendant denies specifically each and every allegation of fact contained in Article 1 of plaintiff’s petition, just as if he had' separated each' individual allegation >and denied the same categorically.”

This case came on for hearing on February 12, 1925, at which time defendant presented proof of his minority.

Plaintiff's counsel then asked permission to file a supplemental petition, making defendant’s father, Hile Rosenblum, defendant, which motion was denied, and the court thereupon rendered judgment “dismissing and rejecting plaintiff’s demand as in case of non-suit”.

No appeal was taken from such judgment, but on February 19, 1925, plaintiff filed suit No. 156,575 of the docket of the Civil District Court, upon the same alleged cause of action, but against Hile Rosenblum, who thereafter, on February 27, 1925, appeared through counsel and plead: First, “No Cause of Action”, and second, the prescription of one year.

Such exceptions came on for hearing on March 11, 1925, and on March 17, 1925, the District Court rendered judgment, maintaining the Plea of Prescription, and dismissing plaintiff’s suit. •

In this second suit, namely, that brought against Hile Rosenblum, the father of the minor, plaintiff’s petition, in Articles 9, 10, 11 and 12 thereof, recites the filing of the first suit and makes the record in that suit a part of the petition. Also reviews the service of such first petition and the testimony taken in the first case, showing that such petition and citation therein were sent by Leo Rosenblum to an insurance company in this city.

The remaining portions of such articles of plaintiff’s petition are devoted to allegations of which there is no proof in the record and to the conclusions of the pleader, that under the facts alleged, prescription of the cause of action sued upon was interrupted as against the father of Leo Rosenblum.

From the judgment in the second suit, maintaining defendant’s Plea of Prescription, plaintiff has appealed and the matter thus comes before us. '

Some time after taking and perfecting her appeal, or, to be exact, on January 16, 1926, plaintiff filed in this court a plea entitled “A Plea of Estoppel as Against the Plea of Prescription Filed by the Defendant in this Cause”, to which plea are annexed a number of original and carbon copies of letters which purport to have, been written by plaintiff’s attorneys to Leo Rosenblum; by the Aetna Casualty and Surety Company to plaintiff’s counsel; by plaintiff’s counsel to said insurance company; by plaintiff’s counsel to counsel for the defendant, .and also certain inter-office correspondence between local counsel for plaintiff and plaintiff’s counsel in Opelousas, Louisiana.

Upon the day of hearing by this court, counsel for the defendant filed a motion asking that the court, for the reasons therein given, order the Plea of Estoppel' stricken from the record and returned to plaintiff.

OPINION

Plaintiff has taken no appeal from the judgment for defendant in her suit against Leo Rosenblum, a minor, and we are therefore in no way concerned with the issues therein presented, except insofar as it be plaintiff’s contention that the answer filed for or by Leo Rosenblum in that suit was in such form as to mislead plaintiff and keep her in ignorance of the proper party defendant, until prescription had run against her claim, and except further1 as to plaintiff’s contention that such suit against Leo Rosenblum and the citation to and _ domiciliary service upoij him, serve to interrupt prescription of an action against his father.

The following issues are therefore presented for our determination:

' 1st. May we consider a “Plea of Estoppel” filed for the first time in this court, and based largely upon documents attached thereto, which were not in evidence in the court of original jurisdiction?

2nd. Is the defense of minority a matter of special plea, or is it a matter of defense on the merits, or a plea which may be made at any stage of the proceeding, or a question which may be raised by way of injunction against the execution of or suit to set aside a judgment?

3rd. When suit was brought against this minor, and domiciliary service made upon him by leaving a copy of the petition, and the citation addressed to him, at his residence in the hands of his mother, did he or did his father owe any legal duty to plaintiff to appraise plaintiff of his, defendant’s minority?

4th. Does the record disclose any action by defendant, Leo Rosenblum, a minor, or by his father, Hile Rosenblum, or by counsel appearing for Leo Rosenblum, which could be deemed to interrupt prescription or to create an “Estoppel”?

5th. Did suit against Leo Rosenblum, a minor, and citation addressed to him, with domiciliary service upon him, interrupt the running of prescription of an alleged cause of action against his father?

Taking up these issues in the order named, we will first consider the Plea of Estoppel, with exhibits annexed, filed in this court.

Section 27 of Article 7 of the Louisiana Constitution of 1921 provides that “all cases on appeal to the Courts of Appeal, shall be tried on the original record and pleadings, and evidence”, and further provides that the rules of practice regulating appeals to and proceedings in the Supreme Court shall apply in the Courts of Appeal, so far as they may be applicable, unless otherwise provided.

Article 902 of the Code of Practice of Louisiana provides that although in general parties before the Supreme Court are not allowed to plead other matters than those which were before the inferior court, nevertheless, there may be a departure from this rule when the exception taken is one of those which may be pleaded at any period of a cause, and the proof of it appears by the mere examination of the record.

In Wilkin-Hale State Bank vs. Tucket, et al., 148 La. 980, 80 South. 239, the Supreme Court said that:

“The general rule applying to this case is that an appellate court reviewing a judgment of a court of original jurisdiction should not consider as evidence in the case any document that does not form a part of the pleadings and" was not offered in evidence on the trial of the case”, and again

In Wunderlick, et al., vs. N. O. Ry. & Lt. Co., et al., 143 La. 626, 79 South. 80, it is stated that:

“Ex parte allegations contained in pleadings filed in this court as to facts aliunde the transcript, cannot be considered by this court.”

See also Dailey vs. Continental Supply Co., 155 La. 113, 98 South. 859; Succession of Henry J. Forstall, 35 La. Ann. 97.

In the case of Jacobs Bros. Walkover Boot Shop vs. Prances Bel, 1 La. App. 14, this court said:

“The appellate court cannot consider documentary evidence which has not been offered in the trial court, whether the same be annexed, to a petition as part thereof, or otherwise.”

And again in O. K. Realty Co., Inc., vs. John A. Juliani, Inc., 1 La. App., p. 1, we find that:

“Afi appellate court cannot consider any document which was not offered in evidence on the trial of the case.”

It is our opinion, therefore, that while a Plea of Estoppel may be filed in and considered by this court, we cannot give any consideration whatever to letters or exhibits of any character attached to and filed with such plea, when such exhibits were not in evidence in the court below.

The Plea of Estoppel filed in the instant case is based partly upon matters appearing in the record, but primarily upon the letters attached, and while we might be able to consider so much of the plea as is based upon matters appearing in the record, such consideration would necessarily go no further than as to the matters already before us by the plaintiff’s appeal from the judgment of the District Court, maintaining defendant’s Plea of Prescription.

The next question for consideration is whether a defense of minority is a matter for special plea, or is it a matter of defense on the merits, or a plea which may be made at any stage of the proceeding, or an issue to be raised even after judgment.

Counsel for plaintiff contend that the minority of Leo Rosenblum should have been plead specially and sufficient time allowed to plaintiff to bring her evidence, and in support of this contention refer us to Article 346 of the Louisiana Code of Practice.

Turning to such article we find that the peremptory exceptions founded on law may be pleaded in every stage of the action, previous to the definitive judgment, but they must be pleaded specially, etc.

Under Article 345 of the Code of Practice, however, we find that peremptory exceptions founded on law are those which, without going into the merits of the cause, show that the plaintiff cannot maintain his action, either because, it is prescribed, or because the cause of action has been destroyed or extinguished.

We find, therefore, that the defense of “Minority” is not a peremptory exception founded on law, but even if it were, that it may be pleaded at any stage of the proceeding, or even after definitive judgment.

This brings us to a consideration of the question raised by plaintiff as to whether or not the minor or his father or his counsel were under any legal obligation to plaintiff to appraise plaintiff of defendant’s minority, and the further question whether the record discloses any action by defendant, Leo Rosenblum, a minor, or by his father, Hile Rosenblum, or by counsel appearing for Leo Rosenblum, which could be held to interrupt prescription.

An action against a minor must' be brought directly against his tutor, or against a curator ad hoc, named to defend the suit. (Code of Practice, Articles 115-116.)

It is the duty of a prospective party plaintiff to ascertain the status of the proposed defendant, and if such defendant be a minor, to proceed against such minor through his tutor or curator ad hoc.

It is true that the laws governing pleading in this state do not specifically require that the petitioner set forth the majority of the defendant, but it is of course elementary that no valid judgment can be secured against a minor personally sued and cited and we know'of no presumption of majority, nor can the status of majority be created by estoppel.

Be this .as it may, however, plaintiff, in the instant case, saw fit to allege that dedefendant, Leo Rosenblum, was of lawful age, and Leo Rosenblum, through counsel, saw fit to deny such allegation of majority by way of’answer.

Plaintiff’s counsel say that a minor is .under the supervision and control of his parents, until his majority or emancipation, and that the law charges those parents with duties and obligations most onerous in character, and even holds them liable for the minor’s torts and compels the father, or mother if the father be deceased, to appear on behalf of the minor child in every kind of civil suit in which he may be interested.

Article 235 of the Civil Code does not say that the father or mother must appear on behalf of the minor child, but that they may, as long as their children are under their authority, so appear in every kind of civil suit in which the minor may be interested.

As a matter of fact, however, the minor Leo Rosenblum was never in any danger from the suit brought against him, .and while it may be the parents’ duty to their minor child to appear and protect him in every suit that may be brought against him, it would seem to us that their failure to do so would be more a matter, between the parents and child than a proper cause of complaint on the part of the plaintiff in an unauthorized suit against such minor.

We are, however, saved the necessity of any detailed consideration of the various contentions made by plaintiff and the various authorities referred to as supporting . such contentions for the reason that this matter has already been fully considered and passed upon in the case of Jung vs. N. O. Ry. & Lt. Co., et al., 145 La. 527, 82 South. 870, in which an almost identical condition was presented.

In that case, plaintiff received certain injuries resulting from being run into by an automobile owned and driven by one H. P. Arceneaux.

.Plaintiff made demand upon and brought suit against the Pox River Butter Company, believing Arceneaux to be its agent and employee, as the name Pox River Butter Company appeared upon the automobile and upon the building where Arceneaux was employed.

The Butter Company did not, in response to plaintiff’s demand, advise her of her error, and in response to the suit, filed the equivalent of a general denial.

Upon the trial of the case, defendant disclosed and proved the fact that Arceneaux was not in its employ, and plaintiff thereupon contended that it- was defendant’s duty to advise her. of the true facts and that it should not be allowed, after prescription had run, to deny Arceneaux’s agency.

And here we quote from the opinion of Justice Dawkins upon this contention of plaintiff:

“While it would have been more courteous and it seems the natural thing to have done, for the defendant to have properly notified plaintiff that Arceneaux was not in its employ, yet, in a controversy of this kind, where the plaintiff demands a large sum of money for injuries, for which she claims the defendant was responsible, and a law suit ensues, we know of no legal obligation resting upon either side to give to the other any information or assistance, save such as is exacted under the processes provided by law. A law suit is a contest in which either side is entitled to' avail himself of all the lawful weapons at his command, and neither owes any duty to the other to disclose any part of his case.”

Plaintiff further contends, however, that the minor, Leo Rosenblum, in the instant case, was without any legal right to defend the suit against him, or to urge his minority, except by appearance in court through his father.

Under the authority of the just quoted from ease, the father was not undfcr any legal obligation to advise plaintiff of his son’s minority in order to defend his minor son in a suit in which no valid judgment could be rendered against him, and whether or not any right exists in the minor to appear through counsel and make a defense, is not, under the circumstances, an issue in this cause, for he did appear and admitted or denied every allegation of plaintiff’s, petition, including his denial of plaintiff's allegation that he, the defendant, was of lawful age.

As to plaintiff’s contention that defendant’s counsel did, by way of various and sundry delays and continuances, put off the disclosure of defendant’s minority until prescription had run .against defendant’s father, we find no substantiation thereof in the record.

In the first place, defendant did positively deny the allegation of the petition that he was of lawful age, and in the second place, according to the certificate of the minute clerk of the trial court, it ¿ppears that the case of plaintiff against Leo Rosenblum was not posted for hearing uhtil May 30, 1924, at which time it was continued to June 13, 1924, and then continued to the foot of the docket, its next posting, being, on January 15, 1925. ■ .

There is nothing in the record to show for what reasons the case was continued on May 13 and June 13, 1924, nor, at whose request such continuances were granted, although it is suggested by way of brief and in oral argument that counsel for defendant was actively engaged in the trial of a case in the Supreme Court on those days. And so far as any further continuances are concerned, we are not interested in such as the prescriptive period would have run, in any event, in September.

The last question for consideration is, did suit against Leo Rosenblum, a minor, with citation addressed to him and domiciliary service upon him, through his mother, interrupt prescription of an action against his father?

Civil Code, Article 3518, provides that a legal interruption takes place when the possessor has been cited to appear before a court of justice, etc., and in White vs. McGuillan, 12 La. 534, the Supreme Court held that the same rule applies to the prescription liberandi causa. Counsel for complainant say that citation to a defendant, no matter how informal, or insufficient to serve as the basis of a suit and judgment, nevertheless suffices to interrupt prescription. (Vernon vs. Ill. Central R. R. Co., 154 La., p. 372, 97 South. 493, and that

The law considers the fact rather than the form of judicial notice in the matter of interruption of prescription. (King vs. Guines, 118 La. 344, 42 South. 959.)

We are also referred to a number of other decisions holding that, while various forms of defective citations and services render judgment thereunder impossible, they are nevertheless sufficient to interrupt prescription. But in none of these decisions has there been a failure of “judicial notice”. ■ ■ '

This entire question is considered and discussed in the recent case of Anding vs. Texas & P. Ry. Co., et al., 158 La. 412, 104 South. 190, and in which the authorities are fully reviewed and analyzed.

In this case plaintiff first brought suit against the Texas & Pacific Railway 'Co. Seven days after the filing of suit plaintiff filed a supplemental petition, in which she alleged that she had learned that the Texas & P. Ry. Co. was in the hands of receivers, naming them, and she prayed that the company be cited through said receivers to appear and answer the original and supplemental petitions, and that there be judgment against the company and against its receivers, as such. After the filing of the supplemental petition, the clerk issued a citation directed to the company, through its receivers, summoning the company, through them, to comply with plaintiff’s demand, to answer the petitions filed by plaintiff.

Thereafter the company filed an exception of no cause of action, for the reason that at the time .of the accident, the company was in the hands of receivers, and at about the same time the receivers excepted to the suit on the ground that they had not been properly cited.

At a later date, and more than a year after the happening of the accident, plaintiff filed a second supplemental petition, in which she alleged for the first time that the accident complained of occurred while the Tailway was being operated by receivers, and that the negligence alleged was that of the receivership, and in this second supplemental petition, she prayed for judgment against the receivers and had them cited. Thereafter the receivers appeared and filed a Plea of Prescription of one year.

There were various other exceptions taken and considered but none of any interest to us in the instant case. And the court, in its opinion, considers Article 3518 of the Civil Code, providing for the legal interruption of prescription, and holds that under this article it is not necessary, in order to interrupt prescription, that the citation be technically correct, or even sufficiently correct to form the basis of a judgment, nor is it necessary that the petition state a technically complete cause of action (referring to and quoting from Guebel vs. Town of Lafayette, 118 La. 494, 43 South. 63; McCubbin vs. Hastings, 27 La. Ann. 713; King vs. Guines, 118 La. 344, 42 South. 959; Vernon vs. Ill. Cent. R. R. Co., and Boutrie vs. Director General of Railroads, 154 La. 370, 97 South. 493; and now we quote directly from the opinion of the court;

“We are also of the opinion that the original and first supplemental petitions conveyed to the receivers sufficient knowledge of plaintiff’s claim against them to interrupt prescription. The original petition stated a complete cause of action against the railway company. The first supplemental petition contained a prayer for judgment against the receivers. All that may be said to be lacking in the latter, when read in connection with the original petition, to show a complete cause of action against the receivers, was the allegation that at the time of the accident the railway company was in the hands of receivers and that the alleged accident was due to the fault of receivers instead of to the fault of the railway company. However, the original petition alleged the date of the accident, and as on that day the railway company was in the hands of receivers, and had been for four years prior thereto, the absence of that allegation did nof have the effect of preventing the interruption of prescription, for the allegation setting forth the date of the accident and the service of the petition, containing that allegation, conveyed to the receivers, knowledge, judicially, that the accident occurred under the regime of the receivership, and the demand for judgment against them conveyed to them knowledge that they were being held by plaintiff responsible for the alleged negligence and accident that occurred under tbeir regime.”

This decision goes further than any of those preceding it and comes nearest to the support of plaintiff’s contention, but even here we find that the first supplemental petition filed and served before the lapse of the prescriptive period contained a prayer for judgment against the receivers, and therefore when read in conjunction with the first petition, contained the required “Judicial Notice” to the receivers of the claim and that such claim was being made upon them.

In the instant case, the suit against, and the citation directed to, and the domiciliary service upon the minor, Leo Rosenblum, did not, in any way, constitute “judicial notice” to the minor’s father that there was any claim being made against him. In fact, no claim whatever was made against the father, Hile Rosenblum, and no matter how intimate his knowledge may have been that a suit had been brought against his son, he can in no way be deemed to have received judicial notice of a claim against himself, when such a claim was never, in fact, made. To hold otherwise would be tantamount to dispensing altogether with the necessity of “judicial notice” and demand.

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

DISSENTING OPINION OF

CLAIBORNE, J.

The case of Jung vs. N. O. Ry. and Fox River Co., 145 La. 727, 82 South. 870, has no application to this case. The court thus states the issue to be decided in that case on p. 730:

“The issue here, therefore, must turn upon the question of whether or not, as a matter of fact, Arceneaux was the agent of the Fox River Butter Company and at the time engaged in attending to its business.”

The plaintiff in that case was knocked down by an automobile driven by Arceneaux. Under the belief that Arceneaux was in the employ of the Fox River Company, the plaintiff sued the Fox River Company as liable for the negligence of Arceneaux as its employee. The Fox River Company answered by a general denial.

In rejecting plaintiff’s demand the court said on p. 732:

“Plaintiff has failed to sustain the burden of proof to the extent of showing that Arceneaux was the agent of the Fox River Butter Company. Having found that Arceneaux was not the agent of the Fox River Butter Company it becomes unnecessary to determine the question of negligence.”

Plaintiff’s demand against the Fox River Butter Company was therefore rejected, and properly so.

The burden of proof was upon the plaintiff to establish that Arceneaux was the employee or agent of the Fox River Co. He who alleges agency must prove it, with or without answer. 2 C. J. 915 S. 635 — 8276 Orl. App. 29 A. 363; McCarty vs. Straus, 21 La. Ann. 592; Dawson vs. Landreaux, 29 La. Ann. 363; Rubenstein vs. Files, 146 La. 734, 84 South. 33.

But the burden is upon a defendant to sustain the plea of minority. Like all exceptions it must be specially pleaded.. C. P. 327-333-336-346; Patterson vs. Frazer, 8 La. Ann. 512; Smith vs. Braun, 37 La. Ann. 225 (228).

The balance that was said in the Fox River case concerning the absence of duty on the part of a defendant to disclose the facts of a case was not necessary for the decision of the case, and was therefore ohiter and only the individual opinion of the judge who decided the case.

In the Fox River case the defendants • did nothing to mislead the plaintiff. While in this case, although the defendant was a minor and incapable of standing in judgment, an answer was filed in his name by the same counsel who represénts the defendant herein, thus throwing plaintiff off of his guard.

On the other hand, in the case of Bastrop State Bank vs. Levy, 106 La. 587, 31 South. 165, Judge Blanchard said:

“Judicial tribunals are established to administer justice between litigants, and the first and most important step to that end is the ascertainment of the truth of the controversies which come before them. It is only when the truth is ascertained that the law can be properly applied in the just settlement of disputes. Litigants owe the duty of assisting in every legitimate way in the elucidation of the truth.”

And in the case of Baham vs. Stewart Bros. 109 La. 999, 34 South. 54, Chief Justice Nicholls, on p. 1011, said:

• “It having been established that a petition, with a citation accompanying the same, addressed to A. J. Baham, was served upon the wife of A. J. Baham, it was his duty, if he was not the party concerned in the subject matter, to have appeared in the District Court and excepted-to the citation.”

It is the duty of courts to teach litigants not only their rights but their obligations.

• But the question before us' for determination is not whether the plaintiff was entitled to a judgment against the minor in the first suit, or whether she is entitled to a judgment against the minor’s father, the defendant in the present. suit, but whether the prescription of plaintiff’s action against the father, defendant, has been interrupted and suspended by the former suit against the minor.

It is true that service of citation and petition addressed to the defendant are essential, as a rule, to the validity of a judgment, and that knowledge of a suit will not supply the want of them, however clearly brought home to them.

Yet there are exceptions to that rule when the defendant has remained silent when he should have spoken.

Thus it has been held that a citation rroneously addressed to “Joseph N. Robert” instead of “Francois J. Robert” and a judgment based thereon against Francois J. Robert may be a valid judgment against Francois J. Robert, in the presence of the silence of the latter in proper time to plead the error. Formento vs. Robert, 27 La. Ann. 489.

In the case of City vs. Cordeviolle, 10 La. Ann. 727, where the defendant was sued for city taxes and notified by publication under a special law in the name of "Cordoviatti” and judgment obtained against him in that name, the Supreme Court set aside the judgment on account of that error but said:

“It is hardly necessary to observe that a case of this kind differs somewhat from a suit commenced by citation, where the personal service of the citation would demonstrate who was intended to be made defendant.”

But the question before us is not whether the citation addressed to the minor in the prior suit would have justified a judgment against the father, the present defendant. Evidently not. The question is whether the citation and petition addressed to the minor were sufficient to interrupt the prescription against the father for the purposes of the suit under consideration.

Article C. P. 3518 (3484) reads as follows:

“A legal interruption takes place when the possessor has been cited to appear before a court of justice, on account either of the ownership or the possession; and the prescription is interrupted by such demand, whether the suit has been brought before a court of competent jurisdiction or not.”

One thing are the formalities essential to obtain a valid judgment. Forma dat esse rei. Another are the directions for suspending prescription by legal proceedings.

These are' not essential.

“Numerous decisions have established a distinction between the technical sufficiency of a citation, as a basis' for the maintenance of proceedings and judgment and its sufficiency for the purpose of interrupting prescription. Citation for the purpose of interrupting prescription need not be technically perfect in form or service.” 8 La. Dig., p. 797, s. 189; 6 id., p. 200, s. 193; Tessier’s Digest, p. 45, s. v; Bergstrom vs. Spielman, Orleans Appeal, No. 7708 Bk. 56 Orl. App.; Norwood vs. Lake Bisteneau Oil Co., 145 La. 828, 83 South. 25; State vs. Dyer, 154 La. 379, 97 South. 563; Anding vs. T. & P. R. R. Co., 158 La. 418, 104 South. 190; King vs. Guines, 118 La. 346, 42 South. 959; Babin vs. Lyons Lbr. Co., 132 La. 876, 61 South. 855.

In the case of Anding vs. T. & P. Ry. Co., 158 La. 412, suit was filed September 1, 1921. The plaintiff alleged that on October 27, 1920, while said railway was in the hands of receivers, she was injured by the negligence of defendant’s employees; she prayed for damages against the defendant railway. On September 8, seven days later, plaintiff filed a supplemental petition in which she alleged that the defendant was in the hands of a receiver, and she prayed that the defendant railway be cited through said receivers and for judgment against the ■ railway and the receivers as such. Citation issued directed to the railway, through its receivers, on September 9 the sheriff served a copy of the citation and petition on the railway, through its receivers. On October 20 the railway filed an exception that the petition disclosed no cause of action “for the reason that” at the time of the accident the company was in the hands of receivers and i therefore is not responsible for the alleged accident”. Two days later, and more than a year after the accident, plaintiff filed a supplemental petition in which she alleged for the first time that the accident happened while the railway was operated by the receivers who were therefore liable, and she prayed that they be cited and for judgment against them. The receivers filed a plea of prescription of one year.

The District Court, maintained the exception of no cause of action filed by the railway eompa*y and dismissed the suit as to it.

It also maintained the plea of prescription filed by the receivers and dismissed the suit as to them. The Court of Appeal affirmed both those decisions and the plaintiff took a writ to the Supreme Court.

The Supreme Court affirmed- the judgment in favor of the railway company finding i that “the negligence which caused the accident was chargeable directly to the receivership. Under these facts the railway company was not liable”. See p. 416.

The receivers pleaded that prescription had not been interrupted as to them, by the original petition and citation addressed to the railway company, when they should have been directed to them, and bepause they “did not convey to them sufficient knowledge of the claim against them to interrupt prescription”.

The Supreme Court reversed the opinion and decrees of both the District Court and the Court of Appeal and decided that prescription had been interrupted by the petition and citation addressed to the railway company and served upon the receivers, although the railway company was not liable, and the receivers alone were liable.

In support of that opinion the court cited and analyzed a number of cases. It quoted Vernon vs. I. C. R. R., 154 L. 370, 97 South. 493, where the facts and the issues appear to have been the same. There the plaintiff filed a first suit against the railroad company for causing the death of her son. The citation was addressed to the Director General and served upon him. In a second suit filed more than a year after the death of her son, she sued the Director General of Railroads for the same cause of action. The Supreme Court held that prescription had been interrupted by the first suit and said:

“On the whole we think the Director General was sufficiently informed by the citation and petition served upon him of the nature of plaintiffs’ claim and of the fact that she was demanding payment thereof; in other words, he was cited to appear in a court of justice on account of said claim, sufficiently to interrupt prescription thereon.”

In affirming the Vernon case , the Supreme Court in the Anding case said on p. 422:

“We are also of the opinion that the original and first supplemental petitions conveyed to the receivers sufficient knowlinterrupt prescription. The original petiedge of plaintiffs’ claim against them to tion stated a complete cause of action against the railway company. The first supplemental petition contained a prayer for judgment against the receivers. All that may be said to be lacking in the latter, when read in connection with the original position, to show a complete cause of action against the receivers was the allegation that at the time of the accident the railway company was in the hands of receivers and that the alleged accident was due to the fault of the receivers instead of to the fault of the railway company. However the original petition alleged 'the date of the accident; and as on that day, the railway company was in the hands of receivers, and had been for four years prior thereto, the absence of that allegation did not have the effect of preventing the interruption of prescription, for the allegation, setting forth the date of the accident, and the service of the petition containing that allegation, conveyed to the receivers knowledge, judicially, that the accident occurred under the regime of the receivership, and the demand for judgment against them conveyed to them knowledge that they were being held by plaintiff responsible for the alleged negligence and accident that occurred under their regime.” See also Thompson vs. N. O. Const, and T. Co., 24 La. Ann. 382.

In the case of Gueble vs. Town of Lafayette, 118 La. 494, 43 South. 63, quoted in Babin vs. Lyons, 132 La. 877, 61 South. 855, where the citation was addressed to, and served upon the mayor, the court said:

“There can be no doubt that through those papers he received judicial knowledge of the fact that the plaintiff had filed a demand against the town of Lafayette in the District Court, what that demand was for, and what the petition prayed for. He was as fully informed on these points as if the citation which he received had been addressed to the town of Lafayette, and had been placed in his hands. He was the proper person and the only necessary person to whom that knowledge should be conveyed. The fact that the citation was not addressed to the town of Lafayette did not do away with the knowledge which the papers, . which were actually served upon him, had conveyed.”

In King vs. Guynes, 118 La. 344, 42 South. 959, the court said:

“The law considers the fact rather than the form of judicial notice in the matter of the interruption of prescription. The word “cited” as used in C. C. Art. 3518 has been construed to mean any kind of judicial notice which brings home to the defendant knowledge of the demand instituted against him, such as notice of seizure and sale in executory proceedings or seizure and notice under execution of a twelve months’ bond.” Kings vs. Labranche, 35 La. Ann. 305; Boyd vs. Heine, 41 La. Ann. 395, 6 South. 714; Whitney Iron Works vs. Reuss, 40 La. Ann. 112, 3 South. 500.

A suit against the same defendant personally will interrupt prescription against him as executor. The cause of action is the same, the thing demanded is identical, and the parties are substantially the same. Hart vs. St. Charles Street R. R. Co., 37 La. Ann. 769.

In the case of Blanc vs. Dupre, 36 La. Ann. 847, the court decided that a suit filed by a curator, whose appointment was a nullity, interrupted prescription. Adopting the language of Flower vs. O’Connor, 17 La. 219, decided in 1841, the court said:

“In order to determine the extent and effect of a legal interruption, we must inquire more particularly into the object and cause of the action than into the right of the plaintiff, the manner in which it is prosecuted, and the competency of the court in which it is instituted, and endeavor to ascertain how far the knowledge of the titles on which the action is founded has been brought home to the defendant by the judicial demand; and we do not hesitate to conclude that if it be established that the defendant has been judicially notified of the titles which are the foundation of the demand, so as to acquire a sufficient knowledge of the rights which are sought to be enforced against him. by a suit, there results from said suit a legal interruption in favor of those to whom such rights belong.” State vs. Doherty, 25 La. Ann. 118.

In Satterley vs. Morgan, 33 La. Ann. 848, .the court said;

“This court has always given a liberal construction to that clause of Art. 3518 Rev. C. C., which declares that ‘a legal interruption takes place when the possessor has been cited to appear before a court of justice’.”

In Berens vs. Executors, 31 La. Ann. 115, the judge quoted French authorities as follows:

“The expressions of our Article (C. N. 2244) citation in a court of justice, must be understood in a broad sense; it would have been more exact to say, a demand in a court of justice.” Trop. Prese. No. 562; Merlin Rep. Yo. Prese. Nos. 401-5.

In the case of Anding vs. T. & P. Ry. Co., 152 La. 412, 104 South. 190, the defendant was in the first suit the railway company, and the petition and citation were addressed to it and served upon the receivers. Though the railway company did not owe the claim, service upon the receivers, who did not represent the railway, was held sufficient to interrupt prescription of the suit against the receivers, who were third parties, for the reason that the first citation and petition against the railway were served upon the receivers and fully informed them of the nature of the claim asserted by the plaintiff. So in this case the citation and petition were addressed to the minor, Rosenblum, who did not owe the claim, and were served at the domicile of the father, defendant, in this case, and informed him of the nature of plaintiff’s claim.

The' service upon the receivers was more defective than the service upon the minor in this' case, because the receivers did not in any manner represent the railway, and were not liable for its debts; while in the present case the father represented his minor son, C. C. 216-221, and was liable for his offenses.

C. C. 237-2318.

The evidence in the case shows that the petition and citation in the first suit addressed to defendant’s son were served at defendant’s domicile in the hands of his wife. It is no violent presumption to assume that the father received the petition and citation, and became acquainted with their contents, and that he assisted counsel in the preparation of the answer. The answer in nine paragraphs was filed in the name of the son, as if he was a' major. Although the petition alleged that the son was of the age of majority, there was no exception filed that he was a minor nor was it alleged in the answer in so many words that the son was a minor. C. P. 346; 159 La. 526.

There was only a denial of the allegation, contained in' the petition, of the majority of the son. Plaintiff overlooked this denial, as well he might, as denials áre sometimes made of admitted facts, and because the defendant followed this denial with an elaborate answer upon the merits which he might have avoided by' pleading the minority. This alone was very likely to throw plaintiff off his guard. The answer was a Trojan horse which contained within its bowels a mortal enemy. The answer was filed in the name of the minor. Another circumstance calculated to throw plaintiff off of his guard. It was a stumbling block thrown in the path of the blind.

It was only upon the trial of the case upon its merits, more than a year after the accident and after two continuances on the part of the defendant in this case that he testified that his son was a minor. By disclosing this fact he might have put an end to the litigation at once. He cannot take advantage of his silence.

Under these circumstances, I am of the opinion that the defendant cannot avail himself of the plea of prescription.

In the case of Odoberto vs. Virgin, No. 7986 of this court, O. B. 57, this court held:

“Where a party lulls another into the belief that he will suffer no loss by his inaction and thus induces him to refrain from claiming a debt, prescription will not begin to run until the other party is undeceived.”

In the case of Stanbrough vs. McCall, 4 La. Ann. 322, the court said on p. 324:

“The rule that he who thus paralizes the right of another shall not benefit by his own act to prescribe against that right, is not peculiar to our own jurisprudence; but as it has its foundation in reason and justice, we find it adopted as a principle of equity in England and in the United States. In Putney vs. Warren, 6 Vesey 73, it was held that where a party applies to a court of equity, and carries on an unfounded litigation, protracted under circumstances and for a length of time which deprives his adversary of his legal rights, thei court of equity considers that it should itself supply and administer, within its own jurisdiction, a substitute for that legal right, of which the party so prosecuting an unfounded claim has deprived his adversary.” 2 Story Equity 1526.

In the case of Hyman vs. Hibernia Bank et al., 739 La. 411, 71 South. 598, the prescription was held suspended because the defendant continued to pay the rent while the contents were being removed. See also Succn. Gilmore, 157 La. 133, 102 South. 94, 104 Decennial vs. Limitations. McDuffie vs. Walker, 125 La. 153 (167), 51 South 100; 7 Orl. App. 60.

The insurance company referred to by Leo Rosenblum, speaking as a witness, is the Aetna Life Insurance Company, the indemnitor of the present defendant, Hile Rosenblum.

The attorney who represented the minor, Leo Rosenblum, in the first suit is the same who represents the actual defendant. We must therefore conclude that the Aetna Life Insurance Company was the real defendant in both the suits against the minor and in the one against his father, the present defendant, and is therefore responsible for the pleadings in both cases. The insurance company must therefore be held for its failure to plead the minority of of Leo Rosenblum specially and in so many words and for its action in filing an answer in the name of the minor, as if he was sui juris. If it was wrong so to do, then the insurance company cannot tafee advantage of its own wrong; and I am of the opinion that it committed an error and was wrong in so doing.

In the Hibernia Bank case the court said:

“Where a bank and its debtor, successor of another company, paid rent for the premises leased by such other company to -lull the landlord into a false security and keep him fro.m discovering that they were removing from the premises goods subject to lessor’s right of pledge and his privilege, the prescriptive period of limitation to the landlord’s action for the tort committed Tfpon' him began to run from the date of the last payment of rent, since one who by some act succeeds in concealing from a creditor his cause of action cannot be allowed to reap the benefit of his own wrong.” Hyman vs. Hibernia Bank, 139 La. 412, 71 South. 598. Affirmed in Bernstein vs. Bank, 161 La. —, 108 South. 126.

In that case the syllabus reads:

“Concealing from plaintiff libelous letter held to suspend statute of limitations.”

See also Eureka Homestead vs. Sladovich, 161 La. —, 108 South. 477, where it was held that it was a fraud for a minor to represent himself as of age.

So in the present case this defe^da-R. by concealing the fact of his son’s minority when he should have spoken, and by authorizing an answer in his minor son’s name, as if he was a major, lulled the plaintiff into a false security of his right of action and “cannot be allowed to reap the benefit of his own wrong”. As to him, prescription began to run only from the date he testified his son was a minor.

For the above reasons I respectfully dissent, and I am of the opinion that the exception of prescription should be overruled and the case remanded for trial upon the merits.


source: Caselaw Access Project

author: MAY, Judge ad hoc.

license: Public Domain

text:
    No. 9276
    Orleans
    GIACONA, Appellant, v. ORLEANS ICE MANUFACTURING CO., ET ALS.
    (October 4, 1926. Opinion and Decree.)
    (November 2, 1926. Rehearing Refused.)

      0Syllabus by the Gourt.)

    1. Louisiana Digest — Master and Servant —Par. 154, 156.
    Where an owner enters into a contract for the alteration or repair of a building, at a fixed price, which includes the furnishing of labor and material and there is neither reservation, nor exercise of direction or control over the work, the second party is an independent contractor, for whose faults the owner cannot be held responsible.
    2. Louisiana Digest — Builders and Buildings — Par. 10, 12.
    Where a contractor for alterations or re-repairs to a building, sub-coiutracts for part of the work at a fixed price, and exercises only such general supervision over the work, as will enable him to see that contractual obligations are complied with, he is not responsible for the acts or omissions of the sub-contractor.
    3. Louisiana Digest — Automobiles—Par. 4, 8.
    One who undertakes to drive an automobile over congested and, frequently obstructed city streets, must be presumed tó be a skillful operator. He should therefore, know that sand and gravel spread over the surface of a paved roadway, may present an element of danger.
    4. Louisiana Digest — Automobiles,—Par. 4, 4 (a), 7.
    Plaintiff had full opportunity to see and appreciate the condition of the road complained of, if such in fact existed, as he was not less than sixty feet from the point of obstruction, at the time it came within his field of vision, and his failure to do anything to obviate the possible risk, constituted such negligence as, regardless of the negligence of defendant, must bar his recovery.
    Appeal from Civil District Court, Divi- ' sion A, Hon. Hugh C. Cage, Judge.
    Action by Julius Giacona against Orleans Ice Manufacturing Co. et als.
    There was judgment for defendants and plaintiff appealed.
    Judgment affirmed.
    Arthur Landry, Geo. Montgomery, of New Orleans, attorneys for plaintiff, appellant.
    J. C. Henriques, Eugene McGivney, S. S. Goldman, and J. F. Fenner, of New Orleans, attorneys for defendants, appellees.
   MAY, Judge ad hoc.

Julius Giacona asks judgment in solido for five thousand, sixty-three dollars and twenty-five cents ($5,063.25) against the Orleans Ice Manufacturing Company, Henry T. Steffee, and the Babst Paving Company.

Plaintiff alleges that the Orleans Ice Manufacturing Company owns and operates .a plant on Chartres Street, between Governor Nicholls and Barracks Street, this city; that in February, 1922, said plant was being repaired under contract with Henry T. Steffee, who in turn subcontracted, for certain part of the work with the Babst Paving Company; that on February 11, 1922, plaintiff was driving a Ford automobile down Chartres Street at a moderate speed and with due care; that there were piles of sand and gravel on the left side of Chartres Street and in front of the ice plant, placed there by the three defendants; that Chartres Street is well paved and that there was sufficient space for plaintiff to pass and there was nothing to indicate danger, notwithstanding the provisions of Ordinance 6712, N. C. S., requiring that protection be given the public by the contractor and that only one-third of the street be used for piling and storing material; that the sand and gravel had seeped and run into and over Chartres Street, and that as petitioner attempted to drive through, his automobile skidded upon such sand and gravel and capsizing, hit a pile of iron pipe stacked over the gutter and part of the street, which pile of pipe petitioner believes were so placed by the defendants.

Then follow the allegations of injury and prayer for judgment'.

All defendants filed exceptions, either of vagueness, inconsistency, misjoinder, or no cause of action, all of which exceptions were overruled, whereupon

The Orleans lee Manufacturing Company answered with the equivalent of a general denial, coupled, first, with the special defense that the defendants, Steffee, and Babst' Paving Company, were independent contractors, and second, in the alternative, with a plea of contributory negligence.

The defendant Steffee answered, • admitting that he was under contract with the ice company for erection of a cold storage room and averring that he had let the concrete and cement work ..to the Babst Paving Company, who for a stipulated price, furnished the material and labor incident to such contract. The remainder of this defendant’s answer is a general denial, coupled with an alternative plea of contributory negligence.

The Babst Paving Company answered, admitting that it performed certain work at the ice plant, under a sub-contract, with the general contractor, Steffee.

The remainder of this defendant’s answer is a general denial, with the alternative defense, that plaintiff was negligent, first, in not looking where he was driving and in either not seeing the piles of sand and gravel, or in not taking the proper precautions to avoid such obstacles; second, in driving on the left side of Chartres Street, in violation of City Ordinance, and third, in driving at a speed in excess of twenty-five miles an hour in violation of law.

There was judgment' of the District Court, rejecting plaintiff’s demands as to all defendants, the judge of the trial court, finding first, that the piling of the pipe on the sidewalk and over the gutter, was not in violation of law; that maintenance of such pipe in such position was not negligence, and that the pipe themselves had nothing to do with the accident; second, that defendant Henry T. Steffee, was an. independent contractor, as was also probably the Babst Paving Company; that the latter was within its legal rights in occupying not more than one-third of Chartres Street, with construction material; that he did not believe that' the sand and gravel had seeped entirely across the street to a depth of from three to six inches, and that he did not believe that such sand and gravel caused the accident.

In considering this case, we will direct our attention to the issues of law and fact, applicable to each defendant, and in what appears to us, to be the logical order.

Prom the evidence, it seems that the Orleans Ice Manufacturing Company, entered into a contract with Henry T. Steffee, for the installation of a cold storage room, at defendant’s ¡plant on Chartres Street.

Such contract called for certain specified work at a definite price, with labor and material to lie furnished by the contractor.

There is no- reservation whatever, to the Orleans Ice Manufacturing Company, of the right of direction, or control, as to the labor, or the means to be employed, or the manner in which the work is to be executed, and there is not even a suggestion in the record, that the defendant ice company, did, in fact, exercise any supervision or control.

Under these circumstances, Steffee was an independent contractor, for whose faults, or omissions, the defendant ice company is in no way liable.

In addition to certain piles of sand and gravel, located in the street in front' of the ice plant, and placed there, so the record shows, by the defendant, Babst Paving Company, plaintiff points to the presence of a pile of pipe located partly upon the sidewalk, and partly over the gutter, and in the street, and contends that such pipe were of a character ordinarily used in ice plants, and that they were negligently placed and maintained by the defendant ice company, in the position indicated, and in violation of law, and that their presence was the proximate cause of the accident.

Our comment upon such contentions is, first, that it is not shown that the pipe were placed in the position stated by the defendant ice company, or by anyone for whose acts, the company might be liable. Second, that there is nothing to show that the pipe were so placed and maintained in violation of law, and third, that it is not at all clear from the record, that the pipe were the proximate cause of, or contributed to, or in fact, had anything to do with the accident.

In his petition, plaintiff says that the sand and gravel caused his automobile to skid, swerve and capsize, and that it then hit the pile of pipe. On the other hand, some of the witnesses say, that the machine capsized upon coming in contact with the pipe, and one witness for plaintiff, Jacob Vorath, testifies both ways.

This brings us to a consideration of plaintiff’s claim against Henry T. Steffee.

Mr. Steffee, testifies, and in this, he is confirmed by his foreman, Palmer, that while he was under general contract, for the installation of the cold storage room, or ice box, he let the contract for the concrete paving to the Babst Paving Company, at a fixed price, the latter to furnish all labor and material, and from the uncontradicted testimony of both Steffee, and Palmer, it is fully apparent that Steffee neither reserved, nor maintained any supervision or control over the Babst Paving Company, other than such general supervision as would enable him to satisfy himself, that the contract was being executed in accordance with its terms.

The Babst Paving Company was therefore, an independent contract or for whose acts or omissions Steffee cannot be held liable, and as it is shown, that at the time of accident to plaintiff, Steffee had practically completed his contract, and was not using sand or gravel, and as it is further shown, that Steffee had nothing whatever to do with the placing and maintaining of the pile of pipe complained of, the responsibility for plaintiff’s accident, if any there be, other than in plaintiff himself, rests upon the Babst' Paving Company, the latter being in. entire control, of any and all work, then being carried on, and the owner of the sand and gravel, which plaintiff says obstructed the street.

As we understand it, plaintiff does not' seriously contend that the Babst Paving Company, is in any way responsible for the placing and maintaining of the pile of pipe, in the location stated, as the evidence clearly shows that the pipe were in that position when the defendant took charge of the work, and that such defendant had nothing whatever to do with it.

Plaintiff does however, contend that his injuries were the result of the negligence of the Babst Paving Company, in maintaining piles of sand and gravel in Chartres Street, in front of the ice plant, and in permitting such material to spread out, and over the entire street, from curb to curb, and to a depth, according to certain of plaintiff’s witnesses, of from two to six inches, all without any warning to plaintiff that the street so obstructed, was a •menace to the drivers of motor vehicles.

A large number of witnesses were produced by both sides, in an endeavor to show the number, and location of the various piles of sand and gravel, as well as the location of the pile of pipe, both in relation to the intersection of Governor Nicholls Street, and the frontage of the ice plant.

An attempt was also made, to show the distance between each of the piles of material, and the location and number of (parked automobiles and trucks on the right or riverside of Chartres Street.

The evidence however, as to these matters, is far from clear, as plaintiff and his witnesses located the first pile of material, that of gravel, all the way from twenty feet to one hundred and fifty-feet, from the intersection of Governor Nicholls Street. The evidence is also contradictory, as to the distance from Governor Nicholls Street, of the truck, parked on the right side of Chartres Street.

Regarding the alleged spread of sand and gravel over Chartres Street, certain of plaintiff’s witnesses, as before stated, testified that such gravel was of a depth of from two inches to six inches, and one witness says, extended almost to the river curb, and was in length on Chartres Street, some twenty-five or thirty feet.

The testimony however, convinces us, that the pile of gravel was some sixty feet distant, from the intersection of Governor Nicholls Street, and it is quite probable that some portion of both sand and gravel, had become spread out over a part of the street’s surface.

It may also well be, that due to the position of the truck parked upon the right side of Chartres Street, plaintiff was compelled to drive in the approximate middle of the street.

Plaintiff, however, says that he turned from Governor Nicholls into Chartres Street, presumably, at low speed, and he further testifies, that he never drove at a rate greater than ten miles an hour.

Such being the case, he was driving at that rate or less, when he straightened out into Chartres Street, and when he saw or should have seen, any sand or gravel that may have become spread over the street’s surface.

At that time, he was some sixty feet distant from such obstruction, if it in fact existed, and his witness, the automobile mechanic, Wiltz, testifies that a Ford car proceeding at ten miles an hour may be stopped in from eight to ten feet.

The accident occurred early in the afternoon and in broad daylight.

Plaintiff was presumably an experienced driver, as he had been driving that particular car for some six months.

.If Chartres Street was in such condition, as to preclude its use, without danger, plaintiff had full opportunity to see, appreciate and avoid such danger, by bringing his car to a stop or by so- reducing its speed as to eliminte all hazard.

Regardless therefore, of the charges of negligence, brought against this defendant, we find that in any event, plaintiff’s negligence, so contributed to the accident, as to bar his recovery.

For the foregoing reasons, the judgment appealed from is affirmed.


author: CLAIBORNE, J.

text:
    No. 9489
    Orleans
    LEES v. MURPHY
    (Nov. 29, 1926. Opinion and Decree.)

      (Syllabus by the Court.).

    1. Louisiana Digest — Corporations — Par. 40.
    Persons who hold themselves out as officers of an organized corporation are not liable to a third person who, on the faith of that conduct, subscribes to stock of the corporation and pays ; for the same to the vice-president, and who makes a contract of employment with the same • vice-president although no corporation was ever organized, when it is not claimed that ¡plaintiff subscribed to the stock and paid for it and made the contract all at the solicitation or with the knowledge of the defendant or that they profited by it.
    Appeal from Civil District Court, Division “C”. Hon. E. K. Skinner, Judge.
    Action by William S. Lees against John H. Murphy.
    ■ There was judgment for defendant and plaintiff appealed.
    Judgment affirmed.
    J. A. Casey, of New Orleans, attorney for plaintiff, appellant.
    Monroe and Lemann, Nicholas Callan, of New Orleans, attorneys for defendant, appellee.
   OPINION.

CLAIBORNE, J.

"This is a suit against three defendants for the reimbursement of subscription money and for the value of services rendered, . to a corporation which defendants lead ■ plaintiff to believe existed, while in reality there was no corporation.

The .plaintiff alleged that the three defendants John H. Murphy, Gustave B. Genin, and John A. Taft on April 16, 1923, agreed to form a stock company under the name of the “Ginner’s Compress Company”; that Murphy was elected president, Taft, vice-president, and Genin, secretary-treasurer, and that they held themselves out to the public, and particularly plaintiff, as such officers; that believing that the. defendants were the officers of an incorporated company he made a contract with the Ginner’s Compress Company, through Taft, its vice-president, for a double purpose; one by which he subscribed to 2000 shares of said company on account of which he paid to Taft $500; and the other by which he was employed by Taft as vice-president at a monthly salary of $250, and under which he was actually engaged in preparing drawings of certain machinery to he erected by said company; that before entering in said contract plaintiff made inquiries concerning the persons composing said corporation and was reliably informed, that the three defendants were officers of said company, and that upon the faith of said information that said company was legally organized, plaintiff entered into said contract; that plaintiff is now informed that said defendants have failed in their purpose and that said company was never organized and never will be; that therefore said three defendants are indebted in solido to. plaintiff in the sum of $500 paid to Taft as a subscription to the stock, and in the further sum of $500 for services rendered to the company, making a total of $1000.

Taft was not cited. Murphy and Genin alone were cited. They excepted to the petition, on the grounds that said petition does not state any right or cause of action. Their exception was maintained, and the suit as to them was dismissed.

The plaintiff has appealed.

We are of opinion that the exception was properly maintained. As to the $500 stock subscription, if the company was not organized, there is no allegation that Taft was authorized by appellees to solicit subscriptions, nor to receive the [price of the same, or that the plaintiff was induced by any act of appellees to subscribe or to make payments to Taft or that they know that Taft was soliciting subscriptions or collecting the price, or that they knew that plaintiff intended to subscribe or had subscribed, or that he would make or had made a contract of' employment, or that the appellees had any connection whatever with the plaintiff in the matter of the subscription or of .the employment.

If the company had been organized, the treasurer, and not the vice-president, would have been the proper officer to whom ¡payment could have been made. The plaintiff, under either hypothesis, paid the $500 to a person not authorized to receive it.

As to the contract of employment, Taft was likewise without authority to make it so as to bind the proposed company or the defendants. If the company was organized, there is no allegation that by resolution it authorized Taft to make it. In Bradshaw vs. Knoll, 132 La. 830, 61 South. 839, the court said:

“A corporation is not bound in law by the contracts of its promoters or by the unauthorized acts of its president not adopted or ratified by resolution of its board of directors, and is not bound in equity when the corporation has received no pecuniary profits from the execution of the contract or the unauthorized acts of its ¡president.” George L. Bright vs. The Metairie Cemetery Association, 33 La. Ann. 58.

If the company was not organized then it could not be made liable, for no one had authority to contract in its name. Marchand vs. Loan Assn., 26 La. Ann. 389.

As the contract alleged by the plaintiff was binding on neither the company nor the appellees, the plaintiff shows no cause of action against the appellees for its inexecution.

The case of Reardon vs. Dickinson, 156 La. 556, 100 South. 715, relied on by the plaintiff is not in point. There the agent of the defendants by a series of misrepresentations induced the plaintiff to subscribe to stock and pay for their subscription to the corporation of which the defendants were stockholders and of which they profited. In this case there is no misrepresentation as to the affairs of the company charged to appellees nor that they received the money and profited by it. Holding themselves out as promoters of a company to be formed or as stockholders and officers» of a company already organized, was no fraud upon the plaintiff unless appellees had solicited subscriptions from appellee or had collected the price, or had benefited by it.

The judgment is therefore affirmed.


author: WESTERFIELD, J.

text:
    No. 10,570
    Orleans
    KEENAN v. LEGARDEUR, Appellant
    (October 18, 1926. Opinion, and Decree.)
    (November 2, 1926. Rehearing Refused and Decree Amended.)

      (Syllabus by the Court.)

    1. Louisiana. Digest — Landlord and Tenant — Par. 52, 54.
    Under Art. 2692 R. C. C. the lessor is obliged to maintain the lessee in the peaceful possession of the leased premises, by which is meant moral as well as physical peace.
    2. Louisiana Digest — Landlord and Tenant — Par. 52, 54, 55, 70.
    A disturbance of moral conditions, affecting the peaceful enjoyment' of leased premises, must be serious and continuous, so as to render the premises uninhabitable, and amount to a moral eviction.
    Appeal from the First City Court, Section “A”, Hon. William Alexander Bahns, Judge.
    Action by Walter Cook Keenan against Rene J. Legardeur, Jr.
    The was judgment f®r plaintiff and defendant appealed.
    Judgment amended and affirmed.
    Leslie Beard, of New Orleans, attorney for plaintiff, appellant.
    Rene A. Viosca, of New Orleans, attorney for defendant, appellant.
   WESTERFIELD, J.

This is a suit by a landlord against his tenant for the sum of $340.00 claimed as rent.

The tenant admits the execution of a lease for the premises, for which rent is claimed, and, that rent notes aggregating the sum demanded, signed by him, are unpaid in the hands of plaintiff. His defense is based upon Art. 2692 R. C. C. to the effect that the lessor is bound to “maintain the thing in a condition such as to serve for the use for which it is hired and to cause the lessee to be in peaceable possession of the thing during the continuance of the lease”.

Defendant avers that he leased lower floor of a two-story or duplex dwelling for a period of nineteen months beginning March 1, 1924. That “beginning with the first night and continuing almost uninterruptedly until May 25, 1925, when defendant moved from the premises”, the tenant of the upper apartment, who also rented from plaintiff, his family and friends “conducted such a noisy and disorderly house” that defendant and his family in the lower apartment were unable to sleep; that the tenant in the upper apartment “continually used loud and obscene language and parties of drunken merrymakers made such a disturbance, that the lower apartment' was practically untenantable and uninhabitable”.

Our attention is directed to Keenan vs. Flanigan, 8578 Orl. App., where we held, with the subsequent approval of the Supreme Court, 157 La. 750, 103 South. 30, that:

“The obligation of the lessor as imposed by Art. 2692 R. C. C. to ‘maintain the thing in a condition such as to serve for the use for which it is ‘ hired’ and ‘to cause the lessee to be in peaceable possession of the thing during the continuance of tho lease’ refers to moral as well as physical condition and to moral as well as physical peace.

“The word ‘premises’ as used in Art. 2703 R. C. C. which declares that ‘the lessor is not bound to guarantee the lessee against disturbances caused by persons not claiming any right to the premises’ includes the lower as well as the u©per floor of a dwelling house, consequently the lessor is not released from .responsibility for disturbances created by occupants of a lower floor of- a two-story dwelling affecting his tenants the occupants of the upper floor.”

The principle announced in the cited case, though novel at the time, is now the settled jurisprudence and, further reflection convinces us of its soundness and manifest equity. But it is not every disturbance of moral conditions that justifies a tenant in refusing to pay his rent. The disturbance must be of an extraordinary character and continuous, at least intermittent.

In the Flanigan case (supra) we said “A disturbance of moral conditions affecting the peaceful character of a home to an extent that it becomes uninhabitable, amounts to a moral eviction of the tenant which in our view justifies him. in a refusal to pay the rent”.

The evidence before us does not sustain the averments of the answer, and, we are unable to conclude that the vexation of defendant, by plaintiff’s tenant, was such as to come within the doctrine of the Flanigan case. It is true that defendant testifies to one incident of a most distressing character. On that occasion plaintiff’s tenant, of the upper apartment, is said to have used language so vile that we marvel at its aptpearance in the record. But even if we accept defendant’s testimony at face value without any qualification of interest, we have only one incident. We would not be understood as deprecating the effect which even one exhibition of coarse vulgarity might have upon persons of refinement, and we assume the defendant to be of that class, but “one swallow does not make a summer” and one such disturbance does not amount to a moral eviction.

On the other hand six or seven witnesses testified to the peaceful character of the upper tenant. One of these witnesses, Mr. C. H. Chalifour, who resides next door, testified that he saw nothing and heard nothing unusual on the part of the upper tenant though he lived within twenty-five feet of the apartment.

Defendant occupied his apartment with the same surroundings for a period of fifteen months or from March, 1924, to May, 1925, when he left and took up his residence at Long Beach where he had rented a place for the summer. His long residence, as tenant, under circumstances which, according to defendant’s own statement, were no more peaceful than when he left the aipartment, would indicate that conditions, whatever they might have been, were endurable. The evidence, at best, is conflicting, and uncertain, and to justify a tenant in moving out and refusing to pay his landlord on the ground that he had been disturbed in the peaceful enjoyment of the property, greater certainty is required. Such was the opinion of the trial court with the advantage of personal contact with the witnesses and we are unable to say that he was clearly in error.

The judgment appealed from is affirmed.

The judgment is amended by making the interest' begin from June 30, 1925, and as thus amended the rehearing is refused.


author: CLAIBORNE, j.

text:
    No. 10,596
    Orleans
    EBERLE AND CO. v. C. C. TANK AND BOILER WORKS
    (Dec. 13, 1926. Opinion and Decree.)

      (.Syllabus by the Court)

    1. Louisiana Digest — Master and Servant —Par. 36; Pleading — Par. 112, 119.
    The fact that a salary is paid monthly is not inconsistent with an employment for a specified longer period.
    2. Louisiana Digest — Master and Servant —Par. 26.
    An employee who engages to perform.certain work in a specified time for a price agreed upon is entitled to the whole price agreed upon if he completes his work within the specified time.
    Appeal from First .City Court. Hon. Val. J. Stentz, Judge.
    Action by G. P. Eberle and Co., Inc., against C. C. Tank and Boiler Works.
    There was judgment for defendant and plaintiff appealed.
    Judgment reversed.
    E. A. O’Sullivan, of New Orleans, attorney for plaintiff, appellant.
    Herbert W. Kaiser, of New Orleans, attorney for defendant, appellee.
   CLAIBORNE, j.

Plaintiff claims from the defendant $150 ns the balance due for services rendered as accountant under a verbal contract.

Plaintiff alleged that on June 26, 1923, the defendant, being desirous of opening a set of books for a special system of bookkeeping, employed him to instruct its bookkeeper in said system; that in consideration of said services to render the bookkeeper efficient, plaintiff was to receive $200; that plaintiff is a public accounting firm; that it gave instructions to the bookkeeper and rendered him so efficient that he was placed in full control of the books; that during July, 1923, the defendant paid plaintiff $50 leaving a balance due of $150.

The defendant admitted making a verbal contract with the plaintiff “for the supervision of its books for a period of four months at a monthly rate of $50 making $200 for the entire contract”; that the plaintiff’s representatives made three visits to defendant’s establishment and all three during the first month of the contract for which defendant paid him $50 for the first month; that plaintiff failed to carry out the balance of the contract; that after this first month none of its representatives rendered -the defendant any services whatsoever, nor any qther visit than the three during the first month; that for that reason defendant does not owe plaintiff anything.

There was judgment on non-suit. Plaintiff has appealed.

The preponderance of the evidence is that in June, 1923, the defendant company was organized; that H. J. Roth was the bookkeeper, and C. C. Elmer the president; that Elmer employed the plaintiff to open up a system of books and bookkeeping for the firm; that the plaintiff was to instruct Roth in' the manner of keeping the books and was to continue his instructions for a period of four months for the consideration of $200; that the plaintiff decided upon the necessary books, and that they were purchased under his orders; that Roth opened up the books under his instructions, and that later he gave Roth advice and assistance on those lines. There is no pretense that plaintiff ever refused to give the necessary instructions, or that the instructions he did give were not useful and profitable, or that any fault was ever found with him on that score. The defense is that he was employed by the month at the rate of $50 per month. That position finds no support from the testimony of either the plaintiff or the defendant, as we interpret it.

The defendant relies upon the fact that at the end of the first month, it sent plaintiff $50 which he accepted. The fact that a salary is paid or payable monthly is not inconsistent with an employment for a specified longer period.

It is customary for employees, engaged for a long period of time, to be paid by the month, or at intervals during that time.

The defendant also denies indebtedness for the reason that plaintiff rendered no service after the second month. If services had been required after the second month, or at any time during the four months, and plaintiff had refused to render them, that defense would have prevailed. But the plaintiff was _ not employed to work during four months. He was employed to open up books and inaugurate a system of bookkeeping and to teach Roth how to continue the system, and he obligated himself to render necessary services to that end during four months, if necessary. But plaintiff was not obliged to call on Roth during four months if it was not necessary. The evidence is that he fulfilled his contract, in that respect. He opened up the books, he showed Roth the system, and instructed him how to continue it. That was his contract' and nothing more. If Roth acquired the necessary knowledge in two months, plaintiff was under no obligation to continue his visits to the defendant. It may be that defendant made a bad bargain, and that plaintiff made a good one, but' the law is that parties must abide by their contracts even when they are onerous. Dura lex, sed lex.

It is therefore ordered that the judgment herein be reversed and set aside, and it is now ordered that the defendant the C. C. Elmer Tank and Boiler Works, Inc., be condemned to pay to the plaintiff G. P. Eberle and Co., Inc., the sum of one hundred and fifty dollars with five per cent per annum interest from March 19, 1923, till paid and all costs of suit.


text:
    No. 10,307
    Orleans
    GUILLOT, Appellant, v. LOUISIANA RY. AND NAV. CO.
    (November 15, 1926. Opinion and Decree.)
    (December 13, 1926. Rehearing Refused.)

      (Syllabus by the Court.)

    1. Louisiana Digest — Pleading—Par. 80, 81, 90; Master and Servant — Par. 160 (i).
    After a plaintiff has discontinued his suit he can no longer re-open it for a new trial or by supplemental petition; his only remedy is to file another suit. The law upon this question applies equally to suit£ for compensation.

      Appeal from Twenty-fourth Judicial District Court of Louisiana, Parish of Jeffersos. Hon. J. Robert Rivarde, Judge.
    Action by Mrs. Wilfred Guillot against Louisiana Railway and Navigation Co.
    There was judgment for defendant and plaintiff appealed.
    Judgment affirmed.
    A. V. Coco, Paul A. Sompayrac, George Sladovich, of New Orleans, attorneys for plaintiff, appellant.
    Milling, Godchaux, Saal & Milling, of New Orleans, attorneys for defendant, appellee.
   CLAIBORNE, J.

This is an appeal from a judgment refusing to set aside an order of dismissal of this suit and to reopen the case.

The facts are as follows:

On June 26, 1924, Wilfred Guillot, plaintiff’s husband, while employed by defendant as car inspector was killed by a car running over him. On December 5, 1924, his widow, through A. Y. Coco and Paul A. Sompayrac, able and honorable attorneys, the former late attorney general, and the latter his assistant, filed suit' in the District Court for the Parish of Jefferson, against the defendant praying for a judgment for herself and her minor child in accordance with the Employers’ Liability Acts of this State in the sum of $24.39 per week for 300 weeks. The defendants pleaded that -they were a common carrier engaged in interstate commerce; that Guillot was a car inspector and therefore the State courts had no jurisdiction. Before any judgment upon this plea, the plaintiffs, through the same attorneys filed suit in the District Court of the United States against the same present defendant for $35,000 damages under the Federal Employers’ Liability Act. The defendant filed in answer and the case was taken up for trial. After the trial had proceeded two days in the taking of testimony, a compromise was agreed upon in the following words:

“I, Mrs. Wilfred Guillot, widow of Wilfred Guillot, a resident' of the Parish of Orleans, State of Louisiana, do herewith acknowledge to have received from the Louisiana Railway and Navigation Company its voucher in the amount of one thousand ($1000.00) dollars, being voucher No. 59 bearing date of May, 1925, payable to Mrs. Wilfred Guillot, Marksville, Louisiana, reading: “For and in full settlement cf juOinnent rendered in suit No. 17,880 in the District Court of the United States, Eastern District of Louisiana, in which Mrs. Wilfred Guillot is plaintiff and the Louisiana Railway and Navigation Com: pany is defendant, said suit being brought to recover damages (on) account of the death of plaintiff’s husband, Wilfred Guillot, on June 26, 1924, while acting in the capacity of car inspector for the Louisiana Railway and Navigation Co.; and I further acknowledge that I have accepted the said voucher for and in full settlement of any and all claims which I have or may have in law or in equity arising out of the death of my deceased husband, Wilfred Guillot, whose .death occurred on June 26, 1924, from injuries sustained by him at the Wye Yard of the La. Ry. and Nav. Co. in the Parish of Jefferson, State of Louisiana, and for which cause, I first caused to be instituted in. the Twenty-eighth Judicial District Court for the Parish of Jefferson, State of Louisiana, the suit entitled: Mrs. Wilfred Guillot and al. vs. La. Ry. and Nav. Co., No. 4717, of the Docket of said court, and thereafter caused to be instituted in the United States District' Court for the Eastern District of Louisiana, the suit entitled: “Mrs. Wilfred Guillot vs. La. Ry. and Nav. Co., No. 17,880 of the Docket of the said court', in which suits, however, judgment has never been rendered, but which said suits have or will be dismissed, and I herewith acquit and' discharge the said La. Ry. and Nav. Co. from all and every species of claims and demands I may have against it in the premises, and discharge it from any and all obligation that may exist in law or in equity, I having received said voucher in full compromise and settlement of all my rights whatsoever.

“(Signed) Mrs.' Wilfred Guillot.”

On June 18, 1925, the following motion was filed in the suit of Widow Guillot vs. The La. Ry. and Nav. Co., in the District Court of Jefferson Parish:

“Now comes plaintiff, through undersigned, and respectfully avers that after institution of the above entitled suit, it became evident that this Honorable Court had no jurisdiction of the same, because the whole transaction took place while deceased and defendant were engaged in commerce between the states; wherefore plaintiff moves that the above entitled suit be dismissed at her costs.

“(Signed)

A. V. Coco and Paul A. Sqmpeyrac.”

In accordance with this motion the judge signed an order dismissing the suit.

One June 11, 1925, on joint motion of plaintiff and defendant an order was filed and entered dismissing the suit in the United States District Court.

On September 15, 1925, the plaintiff, through George Sladovich, her attorney, filed a lengthy petition in the District Court for the Parish of Jefferson in her original suit, in which she alleged the nullity of the compromise under Section 8, S. 8, Sec. 36 of the Act of 1914, and prayed that the order of dismissal be set aside and for leave to file a supplemental petition in which she alleged divers causes of the nullity of said order.

The district judge issued an order calling on the defendant to show cause why the relief prayed for by the plaintiff should not be granted.

To this rule the defendant filed an exception of want of] jurisdiction rationae materiae.

The exception was maintained and the rule dismissed on October 9, 1925.

From this judgment the plaintiff has taken an appeal which presents the only question for our consideration.

It was admitted in argument that the Federal Employers’ Liability Act does not contain any provision similar to Sec. 17 of the Louisiana law requiring the approval of the court for the validity of any compromise.

In an extended brief, counsel for plaintiff, .argues and attempts to prove that the District Court of Jefferson had jurisdiction of the plaintiff’s demand for the reason that Taylor was employed on a railroad engaged in intrastate and not interstate commerce. The learned counsel may be right. But that question has been settled by plaintiff’s counsel in filing the suit in the Federal court and by dismissing the suit in the State court on the specific allegation that the “whole transaction took place while deceased and defendant were engaged in commerce between states”.

He also argues that under Sec, 18, S. 2 of the Employers’ Liability Act plaintiff had a right to amend her pleadings ’“at any stage of the proceedings”. But this does not mean after the motion and order of dismissal. For at that stage there are no longer any proceedings pending.

Article 491 of the Code of Practice provides that:

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

Art. 492: “After discontinuing the suit, the plaintiff may bring the action anew; provided he has [paid the costs of the first suit.”

It is evident that these two articles do not contemplate the filing of a supplemental or amended petition or a new trial in a suit which has been discontinued or dismissed.

It only authorizes the plaintiff to “bring the action anew”, “or a new action”.

The Supreme Court has so interpreted the two articles. In the case of Liquidators of David Co. vs. Berthetot, 118 La. 380, 42 South. 971, the syllabus thus stated the case:

“On motion of the attorneys for plaintiff the suit was discontinued in February, 1900. Plaintiff moved to vacate the order or discontiiiue and to reinstate the case in March, 1902. The motion was overruled. Right was reserved to plaintiff to bring suit under Article 492 of the Code of Practice. Held: that plaintiff’s remedy was limited to that article.”

In the same case the court said on p. 384:

“No new 'trial can be granted. The time has long since passed for a new trial. The question of the validity of the compromise before referred to does not arise at this time. We think that the suit has been discontinued beyond the possibility of giving it new life by a re-instating order,”

In the case of Bikbert vs. Meriam, 2 La. Ann. 160, the court said:

“Where an action has been discontinued it cannot be reviewed by a rule to show cause, and if such revival be allowed any judgment subsequently rendered will be null.”

• This case affirmed the opinion in Gilbert vs. Nephler, wherein the plaintiff had discontinued a suit, o and two years after-wards reinstated it by rule. The court said: “We know of no law sanctioning such a course of proceeding. When suit is discontinued, there is nothing before the court, but the party discontinuing is at liberty to bring a new action after paying the cost's of the first suit.” C. P., 492; see also Gardere vs. Foucher, 4 N. S. 352; Moore & Browder vs. Bres, 18 La. 483; State vs. Read, 52 La. Ann. 1880, 28 South. 255.

In the case of Monvoisin vs. Plant, 147 La. 464, plaintiff brought suit for physical injuries for $31,000, or in the alternative for $4160 under the Employers’ Liability Act. He compromised with defendant on payment of $3000 and discontinued the suit; subsequently he filed a supplemental petition in which hs claimed $14,050 for the same injury; on motion of Plant, the supplemental petition was stricken from the docket and plaintiff appealed. The court said:

“The ruling was correct. A plaintiff, in any stage of the suit, previous to judgment being rendered, may discontinue the suit on paying costs, and, after discontinuing the suit, he may bring the action anew; but he has no right to ingraft it upon the former proceedings. C. P., 491-492.”

It is a singular coincidence that George Sladovich, who was the attorney for plaintiff in that case, is also attorney for plaintiff in the case now under consideration.

But the plaintiff contends that Article 492 C. P., and the above decisions do not apply to compensation cases under Sec.-18, S. 4, which reads as follows:

“The judge shall not be bound by the usual common law or statutory rules of evidence or by any ‘ technica.1 or formal rules of procedure other than as herein provided.” . , , . „ -,

We do not understand that the question In this case involves a mere “technical or formal rule of procedure”. It is the application of an article of the Code of Practice defining the force and efficacy of a motion and order of dismissal; not affecting the proceedings in the case but putting an end to them. It does not deprive the plaintiff of any right, but reserves to him the right of another suit.

But if we entertained any doubt in the matter we would be governed by the opinion in the Monvoisin case cited above which was a compensation case.


text:
    No. 9333
    Orleans
    HOPKINS v. SOUTHERN AMERICAN SODA STORES, INC.
    (November 29, 1926. Opinion and Decree.)

      (Syllabus by the Court)

    1. Louisiana Digest — Landlord and Tenant — Par. 111; Insurance — Par. 27, 53.
    The lessor’s privilege upon the contents of the leased premises is superior to the claim of a fire insurance company for premiums due on a policy taken out by a receiver on the same contents.
    Appeal from Civil District Court. Hon. Wm. H. Byrnes, Judge.
    Action by S. T. Hopkins against Southern American Soda Stores, Inc.
    There was judgment for plaintiff and defendant appealed.
    Judgment reversed.
    E. M. Stafford, H. W. Robinson, J. W. Woodville, of New Orleans, attorneys for plaintiff, appellee.
    D. H. Theard, Weiss Yarrut and Stich, M. H. Manion, St. Clair Adams, P. P. Burns, Peitel & Peitel, P. S. Norman, J. C. Davey, W. E. Adolph, of New Orleans, attorneys for defendant, appellant.
   CLAIBORNE, J.

This case presents a conflict of privileges between two creditors.

The plaintiff was appointed receiver of the defendant corporation.

In that capacity he insured against loss by fire with Michel .Bros, the movable property under his charge contained in the stores corner of Dauphine and Iberville streets, leased from the Mercier Realty and Investment Co., in which the defendant carried on its business.

The receiver filed an account upon which he did not place Michel Bros, for any premiums, and by which he proposed to pay to the Mercier Realty and Investment Co., as lessor, the balance remaining in his hands after payment of the items on his account.

To this account Michel Bros, filed an opposition (89) claiming “a balance of $257 for premiums due; that this is a charge incurred by the receiver in preservation of the property, and entitles opponents to a lien and privilege on the proceeds of its sale first in rank to any and all other 1 liens”.

There was judgment (94) maintaining the opposition of Michel Bros, and ordering the payment to them of $257 “by preference and priority over all other' creditors”, and the balance to the Mercier Company. From this judgment the Mercier Company has appealed. (95.)

There is no law which makes it the duty of executors or receivers to insure property in their charge. In the Succession of Whitehead, 3-La. Ann. 396, the court said:

“The succession is debited with an amount paid for premiums of insurance by the administrator during the years of his administration, and this item is also opposed. We think .that it was properly allowed. If the administrator, in the exercise of a sound discretion, deemed this precaution necessary for the security of the property under his administration, it was his duty to cause it to be insured, and the charges for that purpose must be borne by the succession.”

In Succession of Sparrow, 40 La. Ann. 484, 4 South. 513, the court said on p. 491:

“The credit claimed for insurance on the gin house was of a like character as those for necessary repairs (for "the preservation of the plantation buildings and machinery), but the judge rejected this charge; the succession should pay it.”

See also Benton vs. Roberts, 2 R. 103.

But the opponent argues that this claim is entitled to be ranked among the “law charges” under Articles C. C. 3191 and 3197 of the Civil Code. He seems to be supported in this contention by the case of Teutonia Bank vs. Security Brewing Co., 137 La. 1046, 69 South. 833.

. But assuming that premiums of insurance taken by the receiver should be classed' as “law charges”, and as such entitled to the privilege of that class of claims, have “law charges” a preference over the les-, sor’s privilege? Art. 3258 (3225) C. C.:' “But the lessor has a preference on the price of these movables over all the other privileged debts of the deceased, such as expenses of last illness and others which have a general privilege on the movables.”

“Law charges” are classed as “General Privileges on Movables” in Ch. 3, Sec. 1, G, C. 3191 (3158).

In the case of Gauetson vs. His Creditors, 1 R. 445, the court discussed the rank of the lessor’s privilege and said:

“Article 3225 enacts that the lessor has a preference on the price of these movables over all the other privileged debts of the deceased such as expenses of the last illness, and others which have a general privilege on the movables. The debts having this “general privilege on the movables” are enumerated in Article 3158 and among them are the “law charges”. This decision was affirmed in Hoey vs. Hews, 3 La. Ann. 705; Victor Montilly vs. His Creditors, 2 R. 350; Succession of Derime, 4 R. 367; 8 Orl. App. 205.

It is therefore ordered that the judgment appealed from be reversed and set aside, and it is now ordered that the opposition of Michel Bros, be dismissed at their cost.