text:
    No. 459
    First Circuit
    NUNNALLY BROS. MOTOR CO. v. INTERURBAN TRANSPORTATION CO.
    (June 10, 1929. Opinion and Decree.)
    (June 28, 1929. Rehearing Refused.)
    (October 8, 1929. Writ of Certiorari and Review Refused by Supreme Court.)
    John B. Smullin, of Baton Rouge, attorney for plaintiff, aippellee.
    Taylor, Porter, Loret & Brooks, of Baton Rouge, attorneys for defendant, appellant.
   ELLIOTT, J.

Nunnally Bros. Motor Co. claims of Interurban Transportation Co., Inc., $160.35 in damages on account of a collision between an automobile belonging to them and a motor omnibus belonging to defendant. The machines of both were injured.

The collision occurred on Lafayette street, in the city of Baton Rouge, just north of its intersection with Main street, on or about June 13, 1928, at about 4 o’clock P. M. The weather was fair and nothing in that way prevented the parties from seeing up and down the street.

The plaintiff claims that due to the gross negligence, carelessness and want of skill on the part of defendant’s employee, driving its motor omnibus, it ran into and damaged their automobile to the extent stated.

The defendant denies the negligence, etc., alleged against its driver, and avers that the collision was due to the negligence, lack of skill and excessive speed of plaintiff’s employee, the driver of their car.

Defendant prays for the rejection of plaintiff’s demand, and setting up damages to its omnibus in the collision to the extent of $121.25, prays for judgment in reconvention to that extent against the plaintiff.

There was judgment for the plaintiff as prayed for in the lower court, and the demand of the' defendant was .refused.

The evidence shows that plaintiff’s employee had met a young lady who had arrived on a train and was taking her home. The car had passed from North into Lafayette and was going south in Lafayette street toward its intersection with Main street, intending to enter on Main street and thence continue to the place where the young lady was going. She was seated on the front seat by the driver. The omnibus with 4 or 5 passengers aboard, had stopped on Main street in front of the Louisiana Hotel. The hotel is situated on the 'north side of Main and „ forms the corner of Main and Lafayette streets. Starting up from where it had stopped in front of the hotel, its route required it to turn out of Main, swing around the corner of the hotel, and turn north into Lafayette street. There was an automobile truck parked on Lafayette street just around the corner next to the hotel, which did not become visible to the driver of the omnibus until he had reached about opposite the Lafayette street intersection and commenced to make his turn to the right and north into Lafayette street. Lafayette is only 32 feet wide between the curbing. The omnibus was 8 feet wide and 27 feet long. The street was so narrow and the omnibus so wide and long that it was necessary for it to make a short turn or detour out into Main in entering Lafayette street. In making this turn the omnibus moved very slowly, probably less than 5 miles an hour, and under brakes, with its horn sounding. It had made the turn and was proceeding northward obliquely, getting to the right side of Lafayette street, but before it had gotten straight, plaintiff’s car, coming at a rapid speed, struck the front end of the bus.

Anybody coming south on Lafayette street was ‘ bound to see this omnibus if they were looking, and to hear its horn if they had been listening.

The driver of the omnibus and several passengers seated in it, saw the Nunnally car coming towards them at a rapid speed. At the time it was first seen, the driver and some of the occupants of the omnibus estimate that it was 50 or 55 feet distant from the omnibus and in about the center of the street.

Another occupant of the omnibus says that when she first saw it, it was about a half block, or the width of three houses distant up Lafayette street, in about the center of the street.

The driver of the omnibus estimates the speed of the Nunnally car when it was first seen, at 35 or 40 miles an hour. Two of the ¡passengers, at 25 or 30 miles an hour. One of the passengers declined to estimate the speed, but testified that it came forward rapidly and without slowing down.

The driver of plaintiff’s car and the young lady with him both declare that it was going at the time, about 15 miles an hour. But the preponderance of the proof and the physical facts attending the collision justify the conclusion that plaintiff’s car was probably running 25 or 30 miles an hour. This speed, was too fast for the intersection it was approaching, and for getting by the omnibus in its immediate front. Not only was plaintiff’s car going too fast, but its driver was not looking ahead and did not see what was in the street in front of him.

The driver of defendant’s omnibus, although an employee, does not seem to be influenced by it in giving his testimony. He testified that the driver of plaintiff’s car was engaged in conversation with his companion, who was seated on the front seat by his side, and that he was not noticing where he was going.

A lady witness, occupant of the omnibus, was looking at the approach of the Oakland sedan, and testified that its driver was not looking at the time. That she saw its driver was not looking ahead toward the corner at all. That so far as she could see he was talking to his companion.

In another place this same witness, speaking of the position of the omnibus and of the view which the driver of plaintiff’s car had of the omnibus, and of his failure to stop before hitting it, says that after it had turned the corner, this man, meaning the driver of plaintiff’s car, could easily have seen it if he had been looking at what he was doing, and that at the distance she saw him, anybody could have stopped.

Another lady, passenger in the omnibus, says:

“My sister was sitting by my side; she said ‘Look!’ I looked up and saw the car coming down the street. The gentleman was driving an Oakland sedan. Just as I looked up he was looking at- the lady seated by his side; they seemed to be laughing or joking. Just as I saw him he was near the bus and it looked like he saw us at the same time I saw him. The collision was right then.”

She further says that just before the collision when she saw it, just a few feet distant from the omnibus, he was looking at the lady seated by him and driving rapidly. “It seems he first looked up and saw the bus as I saw him, just about the same time. Everybody in the .bus seemed to have noticed that he had not seen the bus.”

Another party seated in the rear of the omnibus says, that when he first saw the driver of plaintiff’s car, he was coming fast and was 20 or 25 feet distant from the omnibus looking at and talking to the young lady riding with him, and laughing. When he saw the bus he cut, but it was too late.

The testimony is convincing, that if plaintiff’s car had been on the right side of the street instead of about the center, and the driver looking and watching ahead in the direction he was going, and had had his car under control, he could and would have seen the omnibus, and could have easily passed to the right of the rear end of it without striking it. There was plenty of room in the street for him to have done so, and there was nobody coming, nor other obstruction at the time.

Under the evidence, we think the demand of the plaintiff should be rejected. As for defendant’s demand against the plaintiff in reconvention, the driver of its omnibus was not at fault, negligent or careless. The motor truck parked close to the corner on the east side of Lafayette street did not come into his view until he had come near to the intersection and the parked car, together with the width and length of his omnibus, made it necessary for him to enter' Lafayette street several feet to the west and left of the center of the street, in order to avoid striking the parked car.

The omnibus driver pursued a proper course and was swinging and turning slowly around the parked car giving notice of his approach, moving in an oblique direction northward, getting towards the east side of Lafayette, but before he was able to get straight and entirely on the eastern side, plaintiff’s car struck him.

The omnibus driver seeing the imminence of a collision, had almost come to a standstill when struck.

The fact that his omnibus was temporarily occupying and moving on a portion of the western side of Lafayette street, the left or wrong side in the direction he was going, made necessary as a result of the width and length of his vehicle and because of the space occupied by the parked car did not make him negligent. Confronted with an obstacle that required him to do so, it was necessary for him to use a portion of the wrong side of the narrow street, until he could get around it. That is what defendant’s driver was doing. As heretofore stated the fault was entirely with the plaintiff. He could not have helped seeing the slow moving omnibus if he had been looking in the direction he was going. And if he had had his car under control, he could have passed to the right of the omnibus in the direction he was going without striking it. There was plenty of room for the purpose, there was nobody coming on that side meeting him at the place, nor other obstruction to prevent his passage at the time. The collision was therefore entirely due the fault and negligence of the plaintiff and he is obliged to repair it. The item of $20.00 claimed by defendant for two days is not established, because the evidence does not show any loss sustained because of the fact that this particular vehicle was not used during that time. But the other items amounting in the aggregate to $101.25 are established and plaintiff will be required to pay same.

The judgment appealed from in favor of the plaintiff and against the defendant is erroneous. It is therefore annulled, avoided and set aside and plaintiff’s demand is refused and rejected.

The judgment rejecting defendant’s demand in reconvention against the plaintiff is erroneous and is annulled, avoided and set aside. And it is now ordered, adjudged and decreed that Interurban Transportation Co., Inc., have judgment against Nunnally Bros. Motor Co., a partnership and firm composed of Boyce Nunnally and C. F. Nunnally, on its demand against them in reconvention for $101.25, with legal interest thereon from June 13, 1928, until paid. The plaintiff and appellee to pay the costs in both courts.


source: Caselaw Access Project

author: ELLIOTT, J.

license: Public Domain

text:
    No. 447
    First Circuit
    STEVENS v. SONNIER
    (June 10, 1929. Opinion and Decree.)
    (June 28, 1929. Rehearing Refused.)
    (October 8, 1929. Writ of Certiorari and Review Refused by Supreme Court.)

      Voorhies & Labbe, of Lafayette, attorneys for plaintiff, appellee.
    Kennedy & Davidson, of Lafayette, attorneys for defendant, appellant.
   ELLIOTT, J.

This is a suit by Fred L. Stevens against J. Raoul Sonnier on six promissory notes, amounting in the aggregate to $685.

The notes were executed at Lafayette, La., on September 13, 1926, payable to The Brenard Manufacturing Co., or order, at Iowa City, Iowa, 2, 3, 4, 5, 6 and 7 months after date. They are signed, Attakapas Iron Works, by J. R. Sonnier, that being the name under which he does business, and of which he is the sole proprietor.

The plaintiff alleges that he is the holder and owner of the notes in due course for value before maturity in good faith, and without notice of any infirmity or defect in title.

The defendant denies liability on the notes; denies that plaintiff is a holder in good faith and without knowledge of the fraudulent manner in which they were ob: tained from him by the Brenard Manufacturing Co. He then sets out in his answer that he was induced by the agent of The Brenard Manufacturing Co. to agree to purchase radio sets described as, “2 Heraldyne Junior Receiving Sets; 4 Heraldyne Senior Receiving Sets and 1 Hei’aldyne De Luxe Radio Receiving Set”; said notes having been given under conditions set forth in a printed agreement entered into between him and The Brenard Manufacturing Co., a copy of which was annexed to his answer for reference.

That the radio sets were thereafter found by him to 'be practically worthless and unsalable and were shipped back to The Brenard Manufacturing Co., and were then in their possession.

That The Brenard Manufacturing Co. obtained the notes from him by false representations of fact, and thereby defrauded or attempted to defraud him, as well as various other business men in that section.

That Fred L. Stevens was merely a person interposed by the said Brenard Manufacturing Co., and was not a holder of said notes in good faith, but with full knowledge of the nature of the fraudulent transaction by which the notes had been obtained from him.

It was shown on the trial that defendant signed an agreement for Brenard Manufacturing Co., called in the agreement an order and agency agreement relative to the sale of radios. That The Brenard Manufacturing Co. subsequently sent defendant, in connection with the agreement, an obligation called a bond.

The important conditions appear to be as follows:

“Gentlemen:
“Upon your approval of this order and agency agreement, deliver to me at your earliest convenience F.O.B. factory or distributing point, the articles mentioned below, which I purchase on the terms and conditions herein set forth, and no others, all of which I have read and found complete and satisfactory, and in payment for which I herewith hand you my notes aggregating $685, which you are to. cancel and return to me if this sole and complete agreement is not approved by you.”

Then follows the agency agreement. We quote only a part of it:

“You, the Brenard Mfg. Co., hereby grant to me and .agree, as below set forth, to assist me in establishing an agency for this line in my town for a period of three years, subject to terms herein.”

Then comes a stipulation about re-orders, etc.

Then a further stipulation:

—and where I desire, you agree to accept my customer’s notes or installment paper where properly endorsed to you, and to apply .60% of each cash payment against such re-order, and the remaining 40% of each cash to be mailed to me.”

After this, a guarantee of sales.

“If my sales under this agreement do not amount to $685, you agree to either pay me the difference in cash, or repurchase the goods (purchased hereunder, if returned to you in good order; and you are to send your bond in the sum of $685 to protect me in the conditions of this agreement.”

Then, to make the last above paragraph binding, the purchaser or agent was to furnish names of persons, etc., to whom Brenard Manufacturing Co. was to send literature and who might be induced to take up the work of soliciting, etc.

The concluding clause in the agreement reads:

“In consideration of tying up territory and to protect you in your special methods and plans, and in your expenditures, this order cannot be countermanded or cancelled. No verbal or other agreement, not appearing herein, shall be binding upon you.”

The plan seems to be that the (party who enters into an agreement with The Brenard Manufacturing Co. is made their general or central agent to send in orders for radios, to bo filled after orders for same had been obtained by sub-agents or solicitors. The parties giving the order to also give notes payable in installments.. These installment notes might be forwarded to The Brenard Manufacturing Co. and credit for same obtained on the notes of the central agent. The general or central agent did not, on a casual reading of the agreement, appear to run any serious risk, because if no radio sets were sold, the sets for which he had given his own notes were to be re-purchased by The Brenard Manufacturing Co., or the goods be returned. And to insure compliance on the part of The Brenard Manufacturing Co. with this understanding, their so-called bond was given.

The order for machines by the general agent, and which had been accompanied by his own notes, however, was not subject to be cancelled nor countermanded.

In the present case and in all the others of which we are aware, there was no order after the first one.

The Brenard Manufacturing Co. detached the notes of the central agent from the order to' which they were attached by a perforated line at the time they were signed, and claims to have negotiated same before maturity, etc. But there is nothing in any of the stipulated conditions which releases The Brenard Manufacturing Co. from their implied warranty, that the radios would operate, work and perform in the way such things are understood to do, and which they were sold for the purpose of doing. And if they do not, then the maker of the notes given for the purchase price has a right under the law, Civil Code Art. 1882, Code Practice Art. 20, to set up the failure as a defense against a party who is not a holder for value in due course, before maturity in good faith. The right is redhibitory in character See Colt Company vs. Seal, 1 La. App. 418, and the cases therein cited.

So the rirst question is, whether The Brenard Manufacturing Co. could compel Sonnier io pay the notes sued on, were they the plaintiff’s instead of Stevens?

Plain áff contends that defendant has not al eged fraud. He urges that defendant’s iverments on that subject are mere legal conclusions.

Defendant’s averments are sufficient to admit evidence to show that the radios were found to be practically worthless and unsalable. For that purpose and to that extent the parol evidence was properly admitted and will be considered.

Defendant requests us to rule on an objection he urged to the admissibility of :he testimony of the plaintiff, taken by commission, on the ground that he had failed and refused to name all parties whose notes he held in the State of Louisiana, as transferee of The Brenard Manufacturing Co., and the addresses of such individuals. Plaintiff, in response, said:

“A. I haven’t any such list of parties by states, and I cannot tell without referring to all my records; and in any event, I would not care to furnish this information.”

The question was too broad and general, but the concluding remark, “in any event I would not care to furnish this information,” admits an unwillingness and reluctance which we take into account in considering his answer to the cross-interrogatory which immediately precedes the one he refused to answer.

In regard to the right of The Brenard Manufacturing Co. to compel defendant to pay, the evidence shows that defendant, after receiving the radios, tested them out in good faith and in the only way in which it could be done with the means and help he could obtain in Lafayette; and which seems would have been sufficient in regard to other makes of radios. But this Heraldyne make could not be made to work in a way that would give satisfaction. He wrote The Brenard Manufacturing Co., informing them that the machines would not work, that he wished to return them, • and asked them to return him his notes.

The testimony of the defendant, that the radios in question would not work and give satisfaction in the way they were, by implication, warranted to do, is well supported.

Mr. Loveland, questioned on this subject, testifies that when the machines were received back he had them tested out and they worked all right.

Mr. Secrest, employee and radio expert for The Brenard Manufacturing Co., also testified that these machines were properly constructed, tested out before shipment and worked all right.

But against this testimony in behalf of the plaintiff it appears that The Brenard Manufacturing Co. is under obligation to Stevens to protect him from any loss on these notes. And it is evident that they knew, and that Stevens knew, when defendant refused to pay the notes, that it was on the ground that the radios would not work nor perform in the way and for the purpose for which they had been sold.

It appears from the record that several others besides the defendant, living in the same general section of the State, had purchased the same makes of machines from The Brenard Manufacturing Co. about the same time, had found them unworkable and unsalable, and had made complaint, the same as the defendant had done.

The record discloses a situation under which it would have been reasonable for The Brenard Manufacturing Co. and Stevens to send a man to that section of the State who was well posted and informed as to the Heraldyne make of radios, to demonstrate to the defendant and others who had bought them, that they were all right and would work and perform as they ware intended to do. But they did not do that; they did nothing to show their good faith in the machines.

The Brenard Manufacturing Co. wrote letters to defendants protesting against his refusal to pay, but they and the plaintiff depend alike for recovery solely on the legal position which the law accords to a holder and owner of notes in due course, for value before maturity, in good faith and without notice of any infirmity or defect in his title to the same.

We are satisfied that the machines are and were practically worthless and unsal-l able, as claimed by defendant. We therefore hold that the title of The Brenard Manufacturing Co. to these notes was defective; that they could not have compelled Sonnier to pay same. Therefore the burden of proof is upon Stevens to show that he acquired them in due course, in good faith and before maturity, and without notice of any infirmity or defect in title, as he claims to have done. Act 64 of 1904, Sec. 59.

The Brenard Manufacturing Co. is not a corporation, but a partnership composed of Theodore O'. Loveland and James L. Records. The deposition of Theodore O. Lovelhnd and of the plaintiff Stevens was taken by commission. Mr. Loveland says in his testimony, on direct examination, that these notes were detached from the order and endorsed and sold to Fred L. Stevens, an attorney and note broker, on October 14, 1926. That his partner, J. L. Records, endorsed the notes and delivered them to Mr. Stevens. He says:

“On that day, October 14, 1926, we sold to Mr. Stevens a large number of promissory notes besides these. The total face value of the notes we sold to Mr. Stevens that day, including these notes, was $5507.33, and Mr. Stevens paid to The Brenard Manufacturing Co. for the entire lot, $4846.45. Of course he paid for these notes their proportionate share of the whole. He paid us by giving us his check on the Iowa City Savings Bank of Iowa City, which check was duly cashed by us.”

He further testified that Brenard Manufacturing Co. had no interest in these notes since October 14, 1926.

Asked by cross-interrogatory, if he had concealed from Mr. Stevens the fact that the notes were originally part of the contract between his firm and defendant, he answered:

“No, nothing was concealed from Mr. Stevens at all about that. If he had asked about it we would have told him. Nothing was said to Mr. Stevens about that at all. We just offered him a bunch of notes for sale, and after some discussion as to the amount of notes and the discount, he bought same. The Brenard Manufacturing Company advised Mr. Stevens that every note offered to him for sale would be the notes of a person or firm, having a Bradstreet and Dunn rating, sufficient to warrant the amount of the notes which they had given. The Brenard Manufacturing Co. also agreed, in the event there was any difficulty in the collection of any notes which Mr. Stevens purchased from us, that we would defray any expense of collection arising in connection with any such notes. We could not have sold the notes if we had not made such an agreement.
“That Mr. Kenderdine represented them as attorney at the time the notes were sold to Mr. Stevens but he did not have anything to do with that. That he is now their attorney and has offices on the 3rd floor of the building they own in Iowa City. That the first floor was occupied largely by their radio factory; the second floor by their offices and the third by Mr. Kenderdine’s offices. That Mr. Kenderdine had been their attorney for the (past 7 years or more. That they had sold to Mr. Stevens one hundred thousand dollars worth of notes since May, 1926.”

Mr. Stevens, in' answer to direct interrogatories, says;

“That he is an attorney at law in Iowa City, in active practice, and a dealer in commercial paper. That he had never been employed by Brenard Mfg. Co. in any capacity. That he purchased the Sonnier notes from Brenard Mfg. Co. on October 14, 1926. That the Brenard Mfg. Co. called on him and asked him if he was in position to purchase a bunch of notes; that he told them he might, if the amount of notes was not too large, and we could agree on a discount; and I did purchase a bunch of notes; included in them were the notes I have just mentioned.
“That he bought $5507.33 of notes that day from them, that being the face value, and gave his check for $4846.45 in settlement. Among those were those notes in question.
“That he knew nothing about the notes having been attached to a contract; that nothing was said to him about any difference between the makers of the notes and Brenard Mfg. Co. that might lead to difficulty in collecting same, or he would not have purchased the notes. That he purchased the notes in due course, for value before maturity and without notice of infirmity. That the notes were endorsed and delivered to him by J. L. Records on October 14, 1926; that he paid for them by check on Iowa City Savings Bank, of Iowa City, which Brenard Mfg. Co. duly cashed. That he had the cancelled check in his possession; a copy of which was attached to his answer. That he endorsed and delivered the notes over to the bank for collection. That when (payment was refused the bank notified him and he notified the bank to turn them over to G. A. Kenderdine, of Iowa City, for collection.”

Asked by direct interrogatories why he turned them over to Mr. Kenderdine for collection, his answer was that he did not wish to collect .his own paper. Further answering he said:

“Besides Mr. Kenderdine has specialized in handling wholesale collections and understands it thoroughly; and in any event the Brenard Mfg. Co. had agreed to defray any expense that I might be put to in the collection of any notes that I might purchase from them, including these notes. Therefore I turned them over to Mr. Kenderdine.”

That Brenard Manufacturing Co. were not interested in the notes since his purchase, except as endorsers. That nobody but himself, at the time of testifying, had any interest in the notes.

That Mr. Kenderdine occupied law offices on the third floor of The Brenard Manufacturing Co. building, and was the attorney for them at the time he acquired the notes. Asked if his own law practice was not largely that of a collector, and if his practice was not quite extensive in that line, his answer was, “I have a considerable practice in that line, yes, sir.”

To questions about what difficulty he had encountered in collecting Brenard Manufacturing Co. notes, he said that he had been purchasing notes from The Brenard Manufacturing Co. since May, 1926, at the rate of about ten thousand dollars a month. That the general results on the notes had been highly satisfactory. A certain percentage of them had gone into controversy, but it had been extremely small and in those eases where he had controversy, he had been successful in practically every instance. In regard to the defense which was set up, he said he had been buying commercial paper and notes of all kinds for the past twenty years or more, and that he had hardly ever known a case where a note was being defended without the same standard defense' being set up; namely, failure of consideration, misrepresentation, etc. That those were about the only defenses available against notes.

In the next question he was asked the name and address of all parties in the State of Louisiana whose notes’ he held as transferee of Brenard Manufacturing Co., and his answer was that he was not in possession of such list of parties by States; that he could not tell without referring to all his records; and that in any event he would not care to furnish the information asked for.

These answers of Messrs. Stevens and Loveland, taken altogether, indicate that the plaintiff Stevens and The Brenard Manufacturing Co. are working to the same end through Mr. G. A. Kenderdine, attorney for The Brenard Manufacturing Co.

Mr. Stevens is a practicing attorney himself, in active practice; his practice is largely that of a collector. He specializes in collections; his practice is quite extensive in that line, but he does not devote himself to the collection of the notes obtained by him from The Brenard Manufacturing Co. He obtained $5,507.33 in amount of notes in one bunch, but he sends word to the bank to turn them over to Mr. Kenderdine, an employee of The Brenard Manufacturing Co., who has offices on the third floor of their building, a convenient location for handling their notes. The testimony does not indicate that he went to see Mr. Kenderdine, or that Mr. Kenderdine ever went to see him to make arrangements about fees or costs, or to obtain authority to sue. The inference seems proper that Mr. Kenderdine knew what to do by virtue of his employment by Brenard Manufacturing Co., and acted accordingly.

The testimony leads us to the conclusion that plaintiff’s claim that The Brenard Manufacturing Co. have had no interest in these notes since the purported transaction of October 14, 1926, and that since then the plaintiff Stevens is the only party having an interest, is based on empty forms. Their understandings, method of operation, etc., justify the inference that they are working together through Mr. Kenderdine toward a common end, the defeat of the equitable defenses which the .maker of these notes had against The Brenard Manufacturing Co.. That the purported transaction of October 14, 1926, was part of the understanding which both had ultimately in view. Their arrangement is not consistent with any other reasonable conclusion.

We take cognizance of our decision in the case entitled Stevens vs. Gaude, decided in December of last year, and of the admissions and facts established without dispute, on which it was based.

See:

Hubbs vs. Kaufman, 40 La. Ann. 320, 4 So. 58;

V. & A. Meyer vs. Tax Col., 41 La. Ann. 440 (p. 443), 6 So. 679;

Raymond vs. Villere, 42 La. Ann. 488 (p. 491), 7 So. 900;

Mower vs. Kemp, 42 La. Ann. 1007 (p. 1015), 8 So. 830;

Lattier vs. Abney, 43 La. Ann. 1016 (p. 1018), 10 So. 360.

The transaction whereby Stevens claims the Sonnier notes under an endorsement by J. L. Records on October 14, 1926, together with a bunch of other notes amounting in the aggregate to $5,507.33, for which a check for $4,846.45 purports to have been paid, a copy of which check is attached to the answers of Stevens in the present case, is apparently the same transaction whereby he claimed to have acquired the Gaude notes.

We have not before us the record of the Gaude case, but the report of it, 9 La. App. 664, shows that the decision was based on the testimony of Stevens himself and of J. L. Records, the other member of The Brenard Manufacturing Co. firm, given presumably in his presence. Their testimony was first taken by commission in the manner in which that of Stevens and Loveland was taken in the present case, but afterwards it was taken again, and on the second occasion they were examined orally, by agreement between Stevens and Gaude, before a notary public in Iowa City; and G. A. Kenderdine, on this occasion, appeared as the attorney for Stevens, and W. R. Hart, attorney of Iowa City, as attorney for Gaude. Messrs. Stevens and Records were first examined in chief by Mr. Kenderdine and then cross-examined by Mr. Hart. It was brought out on the cross-examination that Mr. Kenderdine had never acted as attorney for Mr. Stevens, except for the purpose of collecting the notes of The Brenard Manufacturing Co. That he was hired, employed and paid by The Brenard Manufacturing Co. to do that work. That G. A. Kenderdine, in the exercise of his authority as the attorney for Brenard Manufacturing Co., had in that case, employed local counsel, arranged for their fees, instructed suit, advanced costs for the purpose; that Mr. Stevens had taken no hand in the matter at all.

In the present case if Messrs. Stevens and Loveland had been subjected to the same cross-examination at Iowa City which Mr. Stevens and Mr. Records underwent in the Gaude case, it seems reasonable to suppose that their admissions would have been, in the main, the same.

It is shown by the answers of Mr. Stevens in the present case, that these notes were first placed in the hands of Mr. Kenderdine for collection. Mr. Kenderdine’s employment by The Brenard Manufacturing Co. also appears. And by reference to tbe Gaude case we are satisfied tbat the Sonnier notes are claimed by Stevens under tbe same transaction whereby be claimed to have acquired tbe Gaude notes.

It was testified to by Mr. Stevens and Mr. Records in tbe Gaude case, tbat Mr. Records bad endorsed tbe notes and delivered them to tbe bank, by bis direction. In another place Mr. Stevens stated tbat he deposited them in the' bank, but upon tbe whole it did not seem tbat Mr. Stevens bad really exercised any authority over tbe notes, and tbat in taking them, be bad acted on tbe assurance of Tbe Brenard Manufacturing Co. tbat tbe makers were financially able to pay, and tbat he bad left tbe collection entirely under tbe control of Tbe Brenard Manufacturing Co., who in turn acted through their attorney, Mr. Kenderdine. Tbat fact is a reasonable inference in tbe present case, though not as clearly as in tbe Gaude case.

In deciding tbe Gaude ease we said:

“Our conclusion is tbat Mr. Kenderdine, although conducting tbe examination in Iowa City in tbe name of and ostensibly as tbe attorney for Mr. Stevens, was in fact, not bis attorney therein, nor in bis employ, nor working in bis behalf, but was .the attorney for tbe Brenard Manufacturing Company, and tbat in bringing and prosecuting suit on these notes, and in tbe employment of local counsel for tbe purpose, be was, in fact, acting for and working in the interest of tbe Brenard Mfg. Co.”

In tbe present case, tbe radios sold to Mr. Sonnier were practically worthless and unsalable. There was no valuable consideration received by Mr. Sonnier for tbe notes sued on.

Tbe burden of proof is upon tbe plaintiff Stevens to show tbat be is a bolder of tbe notes sued on in good faith and in due course. He has not shown this to our satisfaction. We are satisfied tbat be is not such.

Tbe judgment appealed from is, therefore, contrary to tbe law and the evidence, and is erroneous.

Tbe judgment appealed from herein is, for these reasons, annulled, avoided and set aside, and tbe demand of tbe said Stevens on tbe notes sued on is now refused and rejected at bis cost in both courts.


author: WESTERFIELD, J.

text:
    No. 11,026
    Orleans
    GIANGROSSO v. STRAUB
    (June 10, 1929. Opinion and Decree.)
    (July 1, 1929. Rehearing Refused.)
    (October 8, 1929. Writ of Certiorari and Review Refused by Supreme Court.)

      Theo. Cotonio, of New Orleans, attorney for plaintiff, appellant.
    Prowell, McBride & Ray, of New Orleans, attorneys for Loubat Glassware & Cork Co., Ltd., defendant, appellee.
   WESTERFIELD, J.

Plaintiff, the lessor of premises occupied by defendant, filed suit in the civil district court for the parish of Orleans and obtained an order of provisional seizure of certain personal property on the leased premises. The sheriff, in execution of the writ, attempted to sell the property. On the day of the sale a representative of the Loubat Glassware & Cork Company, Limited, called the attention of the sheriff to the fact that it was the holder of a chattel mortgage on some of the movable property which he proposed to sell. The sheriff, without any other authority to do so, segregated the property indicated by the representative of the chattel mortgage creditor, and offered it for sale separately.

The highest bid received for the property thus segregated was $100, a sum much less than the amount of the chattel mortgage. The sheriff refused to sell the property, having in his possession, as he after-wards testified, a mortgage certificate on which the chattel mortgage of the Loubat Company appeared.

Thereafter the Loubat Company filed a rule in these proceedings for the purpose of having the sheriff deliver the property, upon which its chattel mortgage rested, to the constable of the first city court, in order that it might be sold under executory process, which had previously been sued out by the Loubat Company in that court.

Counsel for the plaintiff, defendant in rule, objected to the form of procedure as summary, and in the alternative filed exception of nonjoinder, vagueness, and no cause or right of action. Further objection was made upon the ground that the sheriff acted illegally in failing to sell the mortgaged property, because no order had been obtained from the civil district court authorizing or requiring him to do so, and that plaintiff cannot be prejudiced by the illegal acts of the Loubat Company and/or the sheriff.

Following the trial of the rule, a judgment was rendered ordering the sheriff to turn the property over to the constable, and plaintiff appealed therefrom devolutively.

The action of the sheriff in refusing to sell the property is the gravamen of plaintiff’s complaint. His refusal is justified, it is claimed, by article 684 of the Code of Practice, which reads as follows:

“Consequently, if the price offered in this case by the highest and last bidder, is not sufficient to discharge the privileges and mortgages existing on the property, and which have a preference over the judgment creditor, there shall be no adjudication, and the sheriff shall proceed to seize other property of the debtor, if there be any.”

In answer to this contention, plaintiff’s counsel argues that this article of the Code, having been adopted long before the introduction of chattel mortgages in this state, can have no application. This argument is not sound, for the reasons that the Legislature must be presumed to have been familiar with the provisions of the Code relative to mortgages, when it sanctioned and adopted the chattel mortgage. All laws establishing a general practice are applicable to new statutes when pertinent, no matter what difference there may be in the time of their enactment. State vs. Judge of Second District Court, 5 La. Ann. 518; Waldo vs. Bell, 13 La. Ann. 329; Claverie vs. Waggaman, 1 McGloin, 35.

The validity of the chattel mortgage and its priority in rank is not denied. Plaintiff complains .only of the form of procedure. His final objection is based upon article 680 of the Code of Practice to the effect that, when property under seizure is offered for sale, and fails to bring two-thirds of the appraised value, the sheriff is required to re-advertise the property and sell it on a twelve-month bond. This defense was not raised by the pleadings, and was therefore not considered by the trial court, and cannot be urged upon appeal.

The judgment appealed from is, for the reasons assigned, affirmed.


author: ODOM, J.

text:
    No. 3337
    Second Circuit
    EISEL v. CADDO TRANSFER & WAREHOUSE CO.
    (July 1, 1929. Opinion and Decree.)
    (October 1, 1929. Rehearing Refused.)

      Huey P. Long, of Baton Rouge, and R. J. Neal, of Shreveport, attorneys for plaintiff, appellant.
    John B. Files, of Shreveport, attorney for defendant, appellee.
   ODOM, J.

The plaintiff was an employee of the defendant company, and while at his work in March, 1924, received accidental injuries which resulted in total disability to do work of a reasonable character. Failing to get a settlement, he brought suit under the Workmen’s Compensation Acts, and on February 4, 1925, obtained judgment awarding him compensation for 400 weeks. The defendant appealed, and this court affirmed the judgment on June 30, 1925. Defendant paid all compensation due under the judgment up to December 31, 1927.

On February 28, 1928, plaintiff brought the .present suit to have all future installments due under the judgment decreed to be immediately due and payable on the grounds that defendant had failed to pay six successive installments, as they became due, and that plaintiff is not adequately protected by insurance.

The defense is that these past-due installments were not paid because no demand was made by plaintiff, whose post office address was unknown to the defendant company, and “that .whatever payments have been made have been in quarterly payments upon demand and to the attorney for plaintiff, and that a custom had been established for the making of said payments.”

The district court rejected plaintiff’s demands and dismissed his suit. He has appealed.

OPINION.

The law is plain that if a defendant against whom a judgment for compensation has been rendered fails to pay six successive installments as they become due, “the installments not yet payable under said judgment shall immediately become due and exigible and the judgment shall become executory for the whole amount; provided, that if the employee or his dependent is adequately protected by insurance and receives payments thereunder this right shall not accrue.” Section 33, Act No. 20 of 1914, as amended by Act No. 38 of 1918.

It is admitted that defendant had failed to pay more than six successive installments of the judgment in this case when the present suit was filed, and conceded that plaintiff is not adequately protected by insurance. While the testimony shows that plaintiff did not personally call at the office of defendant and demand that these payments be made to him, yet it is shown that demand was made at defendant’s office and over telephone by plaintiff’s attorneys, and that the demands were refused.

At the time of the trial of this case and for some time prior thereto, plaintiff was absent from the state and all payments had been made to his attorneys in Shreveport, which seems to have been satisfactory with him. It is true, as alleged and now contended by defendant, that plaintiff had by custom and acquiescence waived his rights under the statute to be paid regularly each week. In the year 1927, for instance, plaintiff was paid through his attorneys $270 on January 17th, or for 15 installments; on March 29th, $216; June 23d, $252; September 15th, $234; and on December 21st, $216 — these payments covering, in the aggregate, all installments due up to December 31st of that year. During that year, however, the attorneys wrote defendant that plaintiff was demanding that his payments be made each week, and the attorneys testified that they had, personally talked with Mr. Johnson, president of the defendant company, and asked him to be prompt in making settlements, and Johnson admits that. However, after the letter was written and after these personal complaints were registered, plaintiff’s attorneys continued to accept payments in lump sums at long intervals. At the time this suit was filed, there were ten weekly payments admittedly due, and counsel for defendant argues with force that it would be wholly inequitable to permit plaintiff to take snap judgment against it and have all unpaid installments under the judgment decreed immediately payable, in view of the custom which had prevailed and acquiesced in, though reluctantly, by plaintiff. This argument seems to have appealed to our brother of the district bench who rejected plaintiff’s demands. But, whatever merit there may be in defendant’s contention, and from an equitable standpoint it has great force, the fact which is decisive of the point at issue and on which we rest our decision is that, after more than six successive payments were due under the judgment, demand was made for payment and the demand was refused; the reason given being that defendant had concluded to cease payments altogether.

Early in January, 1928, shortly after defendant made its final payment for 1927, Mr. Johnson, president of the defendant company, made a trip to College Point, Tex., where plaintiff was then residing, to ascertain whether plaintiff had regained his health and was then able to earn wages, with the view, it seems, of having the judgment set aside or the payments reduced, as the facts might warrant. He saw plaintiff on January 10th, came back to Shreveport, and, after consulting his attorney, it was decided that no more payments would be made under the judgment. This conclusion was reached prior to the date on which the present suit was filed, and was communicated to the attorneys for plaintiff.

Mr. Johnson, in the course of his examination as a witness, was asked when he saw plaintiff, and he said on January 10, 1928. He was then asked:

“That was about the time that you concluded not to pay him any more?”

And he answered:

“Well, I did not fully conclude until I came back and discussed the matter with my attorney, about the timé your suit was brought.”

And he was asked:

“A day or two before the suit was brought, you let it be understood that you had decided you were not going to pay any more?”

And he said:

“Yes, sir, I think so.”

Mr. Johnson said, however, that no demand was made for past-due installments until the filing of the present suit. But Mr. McSween testified that he had made demand, and Mr. Long said:

“Finally, when I got through with my campaign, which was about the 20th of January, 1928, I undertook to collect the money which I needed, and finally I was informed, as Mr. McSween testified on the stand, that he had decided to discontinue paying and I filed suit after they had not paid for eleven weeks.”

Even if it be conceded that the attorneys are mistaken as to the making of demand, that would not make the case any better for defendant, because it had let it become known, according to Johnson’s own testimony, that no more payments would be made, so that to make a demand would have been' a vain and idle thing. But Mr. Johnson says he had reference to future payments and not to those already due. He says, however, that he knew defendant was in arrears but did not know the exact number of weeks. But, after it was decided to cease payments, no offer was made to pay the installments already accrued, and, when this suit was filed, no tender of the amount was made and none was ever made.

In the case of Mason vs. Costanza, 166 La. 323, 117 So. 240, the court held that the failure to pay six successive installments of a workman’s compensation under a judgment must be considered in the nature of a forfeiture, and that forfeitures are not favored in law nor encouraged by courts. It was further held that the employer had. a right to make payments at its place of business, and that where the employee failed to call for his payments, after being requested to do so, he could not have all subsequent payments decreed due and payable, even though more than six installments were due. But the facts of that case clearly distinguish it from the case at bar. There the employer was always willing to pay and repeatedly requested the employee to call at its place of business for his weekly settlements, which he failed and refused to do. Here, defendant never at any time demanded that plaintiff call at its office for settlement. The suit is not defended on that ground. Mr. Johnson was asked:

“You never raised any point about wanting Eisel to come there and demand the money or anything, like that?”

And he said:

“No, sir.”

Unlike the ease cited supra, counsel for plaintiff went to the office of defendant, after telephoning, and made demand, which was refused, and not only that, the attorney was told that the defendant had concluded not to pay. It was then that his suit was filed. Even though forfeitures are not favored in law and courts should not and do not encourage litigants to claim them, yet a litigant should not complain when his adversary calls upon him to lie on a couch which he has made down for himself. In cases under the Compensation Law, where an employer has been condemned by final judgment to pay an employee weekly compensation and subsequently repudiates the obligation by refusing to pay on demand, the forfeiture must be declared when demanded under the plain letter of the law. Section 33, Act No. 20 of 1914, as amended by Act No. 38 of 1918.

For the reasons assigned, it is ordered and decreed that the judgment appealed from be reversed; and it is now ordered, adjudged, and decreed that all installments due after January 1, 1928, under that certain judgment rendered in the case of Harry L. Eisel vs. Caddo Transfer & Warehouse Co., 2 La. App. 533, No. 37,875 in the First District Court of Caddo Parish, at No. 2327 of this Court, be decreed to be immediately due and exigible, and that this judgment become executory for the whole amount with interest on the payments as the law provides; and that defendant pay all costs.


text:
    No. 3505
    Second Circuit
    WEAVER BROTHERS v. TEXAS & PACIFIC RAILWAY COMPANY
    (July 1, 1929. Opinion and Decree.)
    (October 1, 1929. Rehearing Refused.)
    Cook & Cook, and C. D. Egan, of Shreveport, attorneys for plaintiffs, appellees.
    Wise, Randolph, Rendall & Freyer, of Shreveport, attorneys for defendant, appellant.
   ODOM, J.

Plaintiffs purchased a drilling rig from the Louisiana Iron & Supply Company, in Shreveport, to be shipped over defendant’s line of railroad to Weaver’s Spur, in Natchitoches parish; a distance of approximately 100 miles. The drilling rig consisted of a boiler, about 2,000 feet of 4-inch and 500 feet of 2-inch iron piping,- together with various and sundry fixtures, attachments, and tools, including 10 4-inch “Hughes tool joints.” The outfit was loaded on a flat car in Shreveport at the supply house of the Louisiana Iron & Supply Company, which is located on the switch track of- the Yazoo & Mississippi Valley Railroad Company, and by an interchange arrangement was carried over and delivered to the defendant, which issued its bill of lading, picked up the car, and carried it to Weaver’s Spur. When the car arrived at its destination, certain portions of the shipment were missing, and this suit is brought to recover the value of the lost articles. From a judgment against it for $150, defendant has appealed.

OPINION.

We find no error in the judgment. The testimony shows beyond question that the missing items of freight were loaded on a flat car and that they were lost or removed before the car reached the place of delivery. Defendant contends, first, ■ that the car was not properly loaded, in that the items lost should have been put in wooden boxes, securely fastened and nailed to the floor of the car. Under Consolidated Freight Classification rules, freight carried in carload lots and at carload rates must be loaded by the shipper, which was done in this case. Section 4 of said rules reads as follows:

“When articles are loaded on open ears small detachable parts must be removed and placed in wooden boxes or secured within the article. Boxes must be encircled at ends with iron straps and securely attached to the article or to floor of car. Such boxes must be specified on shipping orders and bills of lading. Fragile parts not detached must be protected.”

Among the articles shipped, there were a great many which should have been placed in wooden boxes, or secured within the articles, and while it may be true that some of the lost articles were not properly secured, yet the lost items, for which plaintiffs contend that the defendant should pay, were not such, we think, as should have been enclosed in wooden boxes. They were 4-inch Hughes tool joints, made of iron, and weighed 60 pounds each. They were not such articles as are properly denominated “small detachable parts;” they were heavy, not fragile, or easily lost. Besides, they were secured and protected in the best and most practical manner. On the flat car, and as part of the shipment, there was a steam boiler 15 feet long, with a fire box 5 feet long, 4 feet wide, and about 4 feet high. The tool joints were all placed within this fire box, and the door closed and securely fastened with wire, so that it could not come open. The bottom of this fire box door was approximately 2 feet above the floor, and the tool joints and other articles placed therein about half filled the box, so that, if the door had come open, the articles, heavy as they were, would have fallen out. ' The fire box had no bottom, and the articles lay on the floor of the car. There was a space of some 6 inches under the sides of the boiler through which the tool joints might have rolled out, but that space was closed by timbers securely nailed to the floor. The missjng articles could not have been accidentally lost through the ordinary movement of the car. When the car arrived at Weaver’s Spur, after some four or five days in. transit,- the wire which fastened the fire box door had been broken loose and the joints were missing. No one knows what became of them.

Under article 2754 of the Civil Code, carriers are liable for the loss of things intrusted to their care, unléss they can prove that such loss was occasioned by accidental or uncontrollable events. No such proof was offered by defendant.

Defendant makes the further defense that there is no proof that the missing articles were ever delivered to it for shipment. Counsel does not contend that they were not originally loaded on the flat car, but that there is no proof that they were on the car when it was finally delivered to it for carriage.

As stated, the car was loaded at the supply house of the Louisiana Iron & Supply Company, located on the tracks of the Yazoo & Mississippi Valley Railroad Company, and, through an interchange arrangement not explained, was carried to defendant’s yards. M!r. Pine, who is employed by the Shreveport Joint Car Inspection and Interchange Bureau, inspected the car and found that there were no head blocks to keep the boiler from moving from one side to the other of the flat car, and he ordered the car sent back, so that the boiler might be fastened more securely. Several other bureau inspectors inspected the car and found that there were no head' blocks, but approved the loading otherwise. Homer Nicholls, an inspector of the defendant company, saw the car in the junction yards of the company, and said that the car was improperly loaded otherwise; that some of the machinery, tools, etc., were exposed, hut as to this his testimony is contradicted hy at least four other inspectors, and we conclude that he was mistaken. Neither one of the five inspectors, nor any one else so far as the record discloses, knew what became of the car after it was ordered back to have the head blocks attached, but the testimony shows that the car was later delivered to the defendant company, inspected by its agent, who accepted it, and a bill of lading was issued. The defendant’s inspector, who last examined the car and accepted it, does not state that the door to the fire box which contained the tool joints was open, or that the wire securing it had been broken, or that the articles could have rolled out. But counsel say that they could have been taken out or lost in the yards. That is possible, of course, but in view of the fact that the car was finally inspected and accepted by one of defendant’s agents, and that there was no suggestion that the shipment had been tampered with at that time, it seems reasonable to conclude that it was in the same condition then that it was when it left the'place where it was loaded.

The testimony satisfies us that the goods were delivered to defendant. They were lost, and defendant has failed to account for the loss. It must respond for their value, which is proved to be $150.

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


author: REYNOLDS, J.

text:
    No. 3515
    Second Circuit
    SYNDER v. KOLB ET AL.
    (July 1, 1929. Opinion and Decree.)
    (October 1, 1929. Rehearing Refused.)
    T. A. Carter, of Alexandria, attorney for plaintiff, appellee.

      Gus • A. Voltz, of Alexandria, attorney for W. E. Kolb, defendant, appellant.
   REYNOLDS, J.

This is a suit under the Workmen’s Compensation Act. Plaintiff alleges—

“That, on October 4, 1928, at or near Lecomte, in Rapides parish, Louisiana, while your petitioner was working in the employ of W. E. Kolb and Howard Simpson at the rate of $2.50 per day, in the occupation and position of operating a rip-saw, a piece of timber flew off said saw, striking your petitioner’s leg and breaking the same between the knee and body; and that as a result and cause thereof he believes and therefore allegés that he will be wholly unfit for the work for which he is equipped, to-wit; That of saw-milling.
“He shows that when he was employed at the .said mill, the said Howard Simpson posed as manager of the mill for the said W. E. Kolb. That since his injury your petitioner is informed and therefore alleges that he had the saw-mill leased. That from the various and counter claims of the said W. E. Kolb and Howard Simpson, your petitioner is unable to tell what the true conditions are, and for that reason brings this suit against both W. E. Kolb and Howard Simpson individually and in solido.”

He further alleges that he incurred medical expenses amounting to $128.40 in connection with attention to his injuries.

And he prayed for judgment against W. E. Kolb and Howard Simpson in solido for $9.75 a week for 300 weeks, beginning October 4, 1928, with legal interest on each payment from its maturity, and for $128.40 for medical expenses incurred.

The defendants filed separate answers.

Simpson denied that plaintiff was employed by him and alleged that the sawmill was being operated by Kolb and was owned by him and that he, Simpson, was an employee of Kolb.

Kolb also denied that plaintiff was his employee and also denied that Simpson was his employee, and alleged that he had leased the sawmill to Simpson and that Simpson was operating it for his own account and that plaintiff was Simpson’s employee.

On these issues the case was tried and there was judgment in favor of the plaintiff and against Simpson for $9.75 a week during disability, not exceeding 175 weeks, with legal interest on each payment from its maturity, and rejecting the plaintiff’s demands and dismissing his suit as against Kolb.

From this judgment the plaintiff appealed.

Neither of the defendants appealed nor has Simpson answered the plaintiff’s appeal.

OPINION.

The only complaint plaintiff makes against the judgment is that it was not also against Kolb as well as Simpson and in solido.

His counsel says, in brief:

“Judgment was rendered in favor of Synder, as prayed for, against one of the defendants, Simpson; releasing the other defendant, Kolb; and this appeal is taken for the purpose of holding Kolb responsible for the accident.”

And he asks — •

“That the judgment of the lower court * * * be annulled, reversed and set aside, in so far as Kolb is concerned, and that there * * ® be judgment in favor of the plaintiff, Tobe Synder, and against W. E. Kolb as well as against Howard Simpson.’’

Therefore the only question presented for our decision is whether W. E. Kolb is liable to plaintiff.

Kolb does not seriously contend that plaintiff was not injured as alleged by him or that his injuries did not temporarily totally deprive him of the use of his leg.

Simpson swore that at the time plaintiff was injured he was employed by Kolb and that he also was employed by Kolb as his mill foreman and that the sawmill belonged to Kolb and was being put in condition for operation after having been moved to where it was at the time of the accident from elsewhere.

On the other hand Kolb swore that he had leased the mill to Simpson and that it was being operated by Simpson and that plaintiff was Simpson’s employee and not his.

The testimony of the defendants is directly in conflict with each other on this point, but we think the circumstances show that Kolb was a principal and Simpson a contractor and liable to plaintiff in solido.

Kolb was the owner of the sawmill and was engaged in the business of operating a sawmill. He alleged, in paragraphs 10 and 11 of his answer:

“Your respondent shows that he owns a tract of timber * * * that on or about the 1st of September, 1928, respondent and one Howard Simpson, one of the defendants in this suit, entered into a contract whereby the said Simpson contracted to cut all of the timber, haul same to' the mill, and manufacture same into cross ties or lumber; that, under the terms of the contract, the said Simpson agreed to cut the said timber, haul same to the mill, and manufacture same and deliver the manufactured cross ties and lumber at Pineville and Alexandria; the said cross ties to be delivered at Alexandria and said lumber to be delivered at Pineville, Louisiana; your respondent agreeing to pay $13.50 per thousand feet, board measure, for the cross ties, delivered at shipping point on railroad, and $11.50 per thousand feet, board measure, for the lumber, delivered at shipping point on railroad.
“Your respondent shows that he owned a small saw-mill which he leased to the said Simpson at the same time that' he entered into the contract with the said Simpson for the cutting, hauling and manufacturing of said timber.
“Respondent shows that the consideration for the said lease of the said mill by respondent to said Simpson was fifty cents per thousand feet, board measure, for all ties and lumber manufactured in the said mill, to be paid by the said Simpson to your respondent.”

The evidence shows that Kolb owned the timber that was to be converted into cross ties or lumber and that he owned the sawmill at which the timber was to be so converted, and that he advanced Simpson money with which to pay the labor employed in and other expenses incurred in operating the mill, settling with Simpson therefor every two weeks and deducting the money so advanced as well as the 50 cents per thousand feet, board measure, of all cross-ties and lumber sawn, for the use of the mill.

We are of the opinion that Kolb was a principal and Simpson a contractor in the operation of the sawmill, within the meaning of section 6 of the Workmen’s Compensation Act (Act No. 85 of 1926) which provides'—

“That where any person (in this section referred to as principal) undertakes to execute any work, which is a part of his trade, business or occupation, or which he had contracted to perform, and contracts with any person (in this section referred to as contractor) for the execution by or under the contractor of the whole or any part of the work undertaken by the principal, the principal shall be liable to pay to any employee employed in the execution oí the work or his dependent any compensation under this act which he would have been liable to pay if that employee had been immediately employed by him; and where compensation is claimed from or proceedings taken against the principal, then, and in the application of this act, reference to the principal shall be substituted for reference to the employer, except that the amount of compensation shall be calculated with reference to the earnings of the employee under the employer by whom he is immediately employed.’’

Kolb was the owner of timber and of a sawmill and contracted with Simpson to operate the sawmill and convert the timber into cross-ties and lumber at the price of $13.50 per thousand feet, board measure, for the cross-ties, and $11.50 per thousand feet, board measure, for the lumber, delivered at shipping point; of these amounts, 50 cents per thousand representing the price of the use of the sawmill for the purpose and the balance representing the contract price of converting the timber into cross-ties and lumber.

Kolb was therefore liable to plaintiff as the ■ employee of Simpson for compensation for the injuries sustained by the plaintiff accidentally in the course of his employment by Simpson.

Carter vs. Colfax Lumber & Creosoting Co., 9 La. App. 427.

Plaintiff suffered temporary total loss of use of his leg by reason of the injury sustained.

Section 8, subsection 1, paragraph (d), clause 14 of the Workmen’s Compensation Act, as amended by Act No. 242 of 1928, provides that—

“in no case shall compensation for an injury to a member exceed the compensation payable under this act for the loss of such member”

and for the loss of a leg, it is provided in clause 8 of the same section, subsection, and paragraph, that the compensation shall be—

“sixty-five per centum of wages during one hundred and seventy-five weeks.”

At the time of the accident and injury to plaintiff he was earning $15.00 a week and consequently he was entitled to 65 per cent of this sum, or $9.75 a week, during disability, not exceeding one hundred and seventy-five weeks.

It is therefore ordered, adjudged, and decreed that the judgment appealed from be annulled, avoided and reversed in so far as it rejects the demands of the plaintiff and dismisses his suit as against the defendant W. E. Kolb, and it is now ordered, adjudged, and decreed that the plaintiff, Tobe Synder, do have and recover judgment against the defendant W. E. Kolb for compensation of $9.75 per week during disability, not exceeding one hundred and seventy-five weeks, with legal interest on each payment from its maturity until paid, the first payment being decreed due as of date October 11, 1928, together with all costs of suit.


author: WEBB, J.

text:
    No. 2740
    Second Circuit
    MURFF v. JAMISON
    (July 1, 1929. Opinion and Decree.)
    (October 1, 1929. Rehearing Refused.)
    Murff and Perkins, of Shreveport, attor-, neys for plaintiff, appellee’.
    Herndon and Herndon, of Shreveport, attorneys for defendant, appellant.
   WEBB, J.

Plaintiff leased to defendant agricultural lands for the years 1923 and 1925 and during the periods plaintiff advanced defendant cash and paid bills which had been made by defendant and also furnished defendant with some supplies. The accounts for the two years were kept separately, and in this action plaintiff seeks to recover judgment against defendant for an alleged balance due on the account for 1923 amounting to $289, with lega.1 interest from December 1, 1923, with recognition of a privilege on a promissory note pledged to secure the account, and for an alleged balance due on the account for 1925 amounting to $71.96, with legal interest from judicial demand.

The debit items on the account for 1923 consisted of charges for rent and cash advanced to defendant and bills paid for his account, and additional charges of a certain iper cent, of the latter items, which, if considered as interest, was in excess of the conventional rate allowed by law, and defendant contended that the item for rent was in excess of the amount agreed upon, and that the additional charges of a certain per cent, of the items for cash advanced were illegal, and also contested the correctness of some of the charges, and further .set up that plaintiff; had failed to give him credits to which he was entitled; while the account for ■ 1925 consisted of charges for supplies furnished and: cash advanced with an additional charge for the latter items,, as on the account of 1923, and defendant contested the legality of such additional charges and also set up that plaintiff had failed to give him credits to which he was entitled.

On trial the court- recast the accounts, allowing deductions on the account for 1923 áhd reducing the balance claimed from $289 to $265.25, and allowing an additional credit on the account for 1925 of $7.02 and reducing the balance claimed from $71.96 to $64.84, for which judgment was rendered in favor of plaintiff, with recognition of the privilege on the property pledged to secure the balance found to be due on the account of 1923, -and defendant appeals, urging that the court was in error in its finding that the rent charge, as shown on the account of 1923, was correct, and in allowing the additional charges for cash advanced, and in refusing to allow additional credits set up by defendant on that account, and also that the court erred in allowing the additional charges for cash advanced on the account of 1925, and in refusing to allow additional credits set up by him.

The questions presented by appellant, with the exception of the validity of the additional charges made for cash advanced to defendant and for his account, involve purely matters of fact, and from our review of the record we do not find any error in the finding of the court; and this leaves for consideration only the additional charges for cash advanced by the plaintiff.

The record, as to such additional charges, shows that the charge varied from ten to twelve per cent, of the amount advanced, being added and charged at the time the advance, loan or payment was made, and in support of the allowance of such charges plaintiff urges that he- was not in a position to furnish defendant supplies, and in order to enable defendant to obtain supplies at the lowest cash prices he had agreed to furnish him with cash with the understanding that twelve and one-half per cent, would be added.

While it may be true, as suggested, that it would be advantageous for the defendant to borrow money at a rate of interest greatly in excess of that permitted by law, and pay cash for purchases, rather than to buy on credit, yet we do not think that the additional charge of a certain per cent, of the amounts advanced can be allowed if considered as interest, and in excess of that allowed by law.

In determining whether or not a transaction is contrary to the law prohibiting a charge of interest in excess of that permitted, the question is not dependent upon the form of the contract, or the name under which the charge is made, and when it appears that the transaction is in reality a loan or advance of money, and the charge is made for the loan, it must be regarded as interest, and cannot exceed the lawful rate, although it may be that the lawful rate is regarded as insufficient to warrant the risk, and under the evidence presented here it appears that the additional charge was in _ reality for interest.

Article 2924 of the Civil Code fixes the legal rate of interest at 5 per cent, and the conventional rate at 8 per cent., and it has been repeatedly held that a rate of interest in excess of that fixed by law cannot be recovered, whether called a commission for advance, or interest.

Haven & Co. vs. Hudson, 12 La. Ann. 660.

Gilly vs. Berlin, 12 La. Ann. 723.

Chaffe & Sons vs. Heyner, 31 La. Ann. 594.

And we do not think the additional charges for interest should be allowed.

On account for the year 1923 there appear additional charges for cash advanced amounting to $32.20, and on the account for 1925 such charges amount to $13.70, which should have been deducted, and it is therefore ordered that the judgment appealed from be amended by reducing the amount allowed on the account for 1923 from $264.84 to $232.64, and by reducing the amount allowed on the acount for 1925 from $64.94 to $51.24, and as thus amended the judgment appealed from is affirmed, plaintiff to pay cost of appeal, and all other costs to be paid by defendant.


text:
    No. 2783
    Second Circuit
    ATKINS v. ANISMAN
    (July 1, 1929. Opinion and Decree.)
    (October 1, 1929. Rehearing Refused.)
    Clifton F. Davis, of Shreveport, attorney for plaintiff, appellee.
    Hugh C. Fisher, of Shreveport, attorney for defendant, appellant.
   REYNOLDS, J.

Plaintiff seeks judgment against defendant for the sum of $500 with legal interest thereon from October 20, 1924.

He alleges that he was a duly licensed realtor and' that Eugene Kelly was his duly licensed salesman, and that during the. month of October, 1924, defendant employed him, through his salesman, Kelly, to find a purchaser for certain real estate situated in the city of Shreveport, La., belonging to him, at the price of $12,000, and agreed to pay plaintiff $500 for finding him a purchaser for the property at that price; that Kelly showed the property to Mrs. Adele Miriam Conway, wife of J. McD. Dufilho, and named the price at which it was for sale, and notified defendant that he had done so, and that defendant had afterward sold the property to Mrs. Adele Miriam Conway Dufilho at that price on October 20, 1924.

Defendant admitted making the agreement with Kelly and alleges that plaintiff’s name was not mentioned in the transaction and that he was not aware that Kelly was a salesman for plaintiff; that while Kelly had the right to sell the property and earn the commission for himself or plaintiff, neither Kelly nor the plaintiff sold it; that Kelly nor plaintiff ever mentioned the name of Mrs. Dufilho to him and that he was not aware that Kelly or plaintiff was negotiating with her to sell her the property; and that during the same time one Sam Carey had authority to sell the property for him at the price named and that Carey did sell it to Mrs. Dufilho and that he paid Carey a commission of $500.

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

OPINION

The right of plaintiff to recover for the services of Kelly in finding a buyer for the property and introducing that buyer to defendant is not questioned, and the only issue before the court is one of fact, namely; did Kelly bring the property to the attention of Mrs. Dufilho. and did he inform defendant that he. had done so.

Kelly testified that defendant listed his property with him for sale at $12,000 and agreed to pay him a commission of $500 for finding him a buyer for it; and—

“Q. Did you do anything toward selling that property?
“A. Yes; I advertised the property, and solicited a buyer and learned through Mr. L. E. Jones that Dufilho was a partner— Mr. Jones was Dufilho’s ¡partner, and I was trying to sell to Mr. Jones, and he told me that Mr. Dufilho was the one to go to, and I talked it over with Mr. Dufilho and got him interested in it, interested in the Anisman house.
“Q. After you had gotten in communication with Mr. Dufilho, then what happened?
“A. I made arrangements with him to show it and showed it to him and his wife together; took them out to see the property.
“Q. Did you tell them the price of the property?
“A. Yes, sir.
“Q. After you showed them the house, what happened?
“A. I asked Mr. Dufilho if he liked it, and he said to see his wife, that if it suited her, it suited him.
"Q. Did you have any communication with Mr. Anisman while in the house that time?
“A. Yes; I called up, after we looked through the house, I called up the store and told the Anismans that I had a purchaser there looking through the house.”

J. McD. Dufilho testified that he was the person who had bought the property from defendant, testified that Kelly was the first ¡person to show him the property and that his wife was present when he inspected it and that he found on the property a Mrs. Anisman, either the wife or the mother of defendant.

“Q. After you examined the house, what notice did you give Mr. Kelly as to whether you would take the house or not?
“A. We did not give him notice; as to. whether we would take it or not; but we would let him know next day whether we would do it or not.
“Q. Did you let him know?
"A. No. I don’t think that I did. I am inclined to believe that I told Mr. Kelly that I was leaving town for a few days, and wanted to get an option while I was away.
“Q. Did Mr. Kelly get that option for you?
“A. Never heard anything more from him.
“Q. How came Sam Carey in the proposition?
“A. I came to town and called Sam Carey; called him up; because I had known him in New Orleans; and asked him to come to see me, that I was in the market for a place, and wanted to know what he had; and he came to see me.
“Q. Just state to the court what things took place between you and Sam Carey.
“A. When he came, I asked him what he had for sale, and among other places he told me of the Anisman place, and we discussed the matter and I told him that I had already seen the place, shown us by Mr. Kelly, that Kelly thought he had the exclusive right; and he said that he did not, that he could sell the place to me, and showed me the advertisement in the Sunday ¡paper previous to that, advertising the property for sale; we discussed the matter and I saw Sam Carey the next day and made an appointment with Mr. and Mrs. Anisman to go there at night, when we could look over the place and talk the matter over again and definitely see what arrangement could be made about the place.
“Q. Kelly showed you the place before Carey did?
“A. Yes, sir.
“Q. And the Anismans knew that?
“A. I don’t remember whether they knew it or not; I.told him that I had been there with Kelly.
“Q. Was that before or after closing with Anisman, that you told him that you had been there with Mr. Kelly?
“A. That was before the trade was rnadé with' Mr. Carey.
“Q. . Before Anisman made the deal?
“A. Yes, sir.”

The defendant Anisman testified:

“Q. Did Mr. Dufilho tell you that he had been to your house with Mr. Kelly?
■“A. Mr. Dufilho said that he had seen the house through Mr. Kelly; he told me that a little later on in the transaction.
“Q. That was before you paid the commission to Carey?
“A. Of course Carey was handling it; Sold the house for me.
. ,‘‘Q. ..That is not the question I asked you.’ I áskéd you if you knew about the Dufilhos; if Mr. Dufilho told you that Mr. Kei.íy has shown him the house?
“A. In the conversation, he said that he w,as trading with Kelly; that he knew him.
“Q. Dufilho said that he was trading with Kelly?
“A. Yes, sir; of course, he was.
“Q.' He told you that Kelly had shown him the house, did he not?
• “A. What was it to me that Kelly had Shown him the house.
'■ “Q;-' You deny that Mr. Kelly showed the house to Mr. Dufilho before Mr. Carey did? '
“A. I don’t know.
“Q. You know that he showed it?
• “A.- Yes; he came in and said that he had showed the house; that is all I know; said that he had a prospect that wanted an option.”

After denying that Kelly had mentioned the name of Dufilho as the person to whom he expected to sell the property, the witness said that he had sold real estate before through brokers without learning the name of possible buyers from them; that—

“It didn’t interest me; I didn’t know who he was; I would not ask them; I don’t ask them who their prospect - is;' lots of times you would ruin a sale if you did. It is not necessary * * * It is not absolutely necessary for the owner to know who it is; if I would show I was too anxious to sell, then it would ruin it; the real estate man is the one to sell; it is absolutely not necessary who their prospects are.”

The district judge who heard and saw the witnesses testify was . of the opinion that Mr. Kelly had found a buyer in Mr. Dufilho for defendant’s property and had communicated the fact to defendant, and so are we; and the defendant having sold the property to Mr. Dufilho at the price at which he authorized Mr. Kelly to sell it he owes the brokers’ commission.

“Where broker procured purchaser who bought property for agreed price directly from principal, the broker was entitled to the agreed commission.”

Grace Realty Co. vs. Noel, 156 La. 63, 100 So. 57.

Grace Realty Co. vs. Peytavin, 156 La. 93, 100 So. 62.

J. R. Grand Agency vs. Starling, 156 La. 1094, 101 So. 723.

And the fact that defendant paid a commission to Carey in the transaction does not affect plaintiff’s right to recover his commission.

Neale vs. Trahan, 153 La. 98, 95 So. 415.

Gottschalk vs. Jennings, 1 La. Ann. 5, 45 Am. Dec. 70.

The judgment appealed from is correct and is therefore affirmed.


text:
    No. 3525
    Second Circuit
    THIBODAUX v. THE SISTERS OF CHARITY OF THE INCARNATE WORD
    (July 1, 1929. Opinion and Decree.)
    (October 1, 1929. Rehearing Refused.)
    Blanchard, Goldstein and Walker, of Shreveport, attorneys for plaintiff, appellant.
    Wilkinson, Lewis & Wilkinson, of Shreveport, attorneys for defendant, appellee.
   REYNOLDS, J.

We take from appellant’s brief the following concise statement of the nature of the case:

This is an action for damages brought by the plaintiff, Paul T. Thibodaux, in behalf of his minor child, Letty May Thibodaux, against the Sisters of Charity of the Incarnate Word, a corporation domiciled at Shreveport, La., conducting a hospital commonly known as “The T. E. Schumpert Memorial Sanitarium.”

The injuries complained of resulted from burns received by the child; Letty May Thibodaux, at the time of her birth when she was placed in .a basket prepared by the employees of the sanitarium. , which contained a scalding hot water bottle.

Only one defense is urged. The defendant asserts that it is a charitable 'institution, and, as such, not liable in an action for damages, where the asserted liability is based upon an application of the ruie respondeat superior.

There are, consequently, two questions presented: First, whether or not the'defendant is in legal contemplation a charitable institution; and, second, whether, or not in this state such corporations are, exempt from liability in actions arising under the rule referred to.

Plaintiff has appealed from a judgment rejecting his demands.

Are such institutions as defendant charitable institutions within the legal meaning of this term, and, if so, are they exempt from liability for damage caused patients by the negligence of their servants?

Different courts, viewing the questions from different angles, have decided them both ways.

In Hearns vs. Waterbury Hospital, 66 Conn. 98, 33 A. 595, 31 L. R. A. 224, the court said:

“This defendant does not come within the main reason for the rule of public policy which supports the doctrine of respondeat superior. It derives no benefit from what its servant does, in the sense of that personal and private gain which was the real reason for the rule. Again, so far as the persons injured are concerned, especially if they be patients at the hospital, the defendant does not ‘set the whole thing in motion,’ in the sense in which that phrase is used as expressing a reason for the rule. Such patient, who may be injured by the wrongful act of a hospital servant, is not a mere third party, a stranger to the transaction. He is rather a participant. The thing about which the servants are employed is the healing of the sick. This is set in motion, not for the benefit of the defendant, but of the public. Surely, those who accept the benefit, contributing also by their payments to the public enterprise, and not to the private pocket of the defendant, assist as truly as the defendant in setting the whole thing in motion. But the practical ground on which the rule is based is simply this: On the whole, substantial justice ' is best served by making a master responsible for the injuries caused, by his servant acting in.his service, when set to work by him to prosecute his private ends, with the expectation of deriving from that work private benefit. This has at times proved a hard rule, but it rests upon a public policy too firmly settled to be questioned. We are now asked to apply this rule, for the first time, to a class of masters distinct from all others, and who do not and cannot come within the reason of the rule. In other words, we are asked to extend the rule, and to declare a new public policy, and say: On the whole, substantial justice is best served by making the owners of a public charity, involving no private profit, responsible, not only for their own wrongful negligence, but also for the wrongful negligence of the servants they employ only for a public use and a public benefit. We think the law does not justify such an extension of the rule of respondeat superior. It is, perhaps, immaterial whether we say the public policy which supports the doctrine of respondeat superior does not justify such extension of the rule, or say that the public policy which encourages enterprises for charitable purposes requires an exemption from the operation of a rule based on legal fiction, and which, as applied to the owners of such enterprises, is clearly opposed to substantial justice. It is enough that a charitable corporation like the defendant, whatever may be the principle that controls its liability for corporate neglect in the performance of a corporate duty, is not liable, on grounds of public policy, for injuries caused by personal wrongful neglect in the performance of his duty by a servant whom it has selected with due care; but in such case the servant is alone responsible for his own wrong. This result is. justified by the opinions in Hall vs. Smith (2 Bing. 156); Holliday vs. St. Leonard’s (11 C. B. (N. S.) 192); and Railway Co. vs. Artist ((C. C. A.) 60 P. 365, 23 L. R. A. 581), supra, substantially on the grounds above stated, and is reached, for one reason or another, by the greater number of courts that have dealt with this particular liability of a corporation for public or charitable purposes.”

And the United States Circuit Court of Appeals in the case of Powers vs. Massachusetts Homeopathic Hospital, 109 F. 294 65 L. R. A. 372,.said:

“The plaintiff was what is sometimes called a ‘paying patient’ the rate of her payment being $14 a week. Upon this ground her counsel has sought to distinguish her case from that of a patient in the hospital who pays nothing. In our opinion, the difference is immaterial. As has been said, the defendant was a charitable corporation; that is, a corporation organized exclusively for charity. That the ministrations of such a hospital should be confined exclusively to the indigent is not usual or desirable. Those of moderate means from necessity, and not a few rich people from choice, resort to great charitable hospitals for treatment, especially in surgical cases. Throughout the world this is the custom in these institutions, whether they are maintained by individual, religious, or municipal charity. From patients Who are not indigent, a payment is commonly permitted or required. Commonly, and in the case at bar quite manifestly, this payment does not make full pecuniary compensation for the services rendered. Those who make a considerable payment not infrequently receive in some respects a more expensive service than do those who make a small payment or none at all; but the payment required is usually calculated upon the patient’s ability to pay, rather than upon the whole cost of the treatment he receives. That this was the defendant’s rule appears plainly from its printed form of application, which it required all applicants to fill out alike, whether they paid something or nothing. In this form the inquiry concerning payment was stated as follows: ‘How much per week applicant can pay,’— thus indicating that the amount of the contribution was to be determined, not by the value or cost of the service rendered, but by the ability of the patient to aid the charitable purposes of the hospital. In our opinion, a paying patient in the defendant hospital, as well as a nonpaying patient, seeks and receives the services of a public charity.
“That such a hospital in its treatment of a rich patient shall be held to a greater degree of care than in its treatment of a pauper is not to be tolerated. Certain luxuries may be given the former which the latter does not get, and this for various reasons; but the degree of protection from unskilled and careless nurses must be the same in both cases. Again, it would be absurd to make the defendant’s liability for an accident, like that here alleged, depend upon the payment of that insignificant proportion of the cost of the service rendered which in some cases may properly be required from a poor man or woman. We are of opinion that this case stands as if the plaintiff had been admitted without any payment whatsoever.
“We have to determine, then, if a patient admitted to a hospital maintained for charity can recover judgment against that hospital for injuries caused by the negligence of a nurse employed therein. There is a great weight of authority in favor of the defendant in the case put, but the courts have differed so widely in their reasoning that a somewhat extended examination is necessary, both of the cases decided and of the principles upon which they rest. The liability of the defendant for which the plaintiff contends is the liability of a master for the torts of his servant. ‘The master is answerable for every such wrong of the servant or agent as is committed in the course of the service and for the master’s benefit, though no express end or profit of the master be proved.’ * * *
“One who accepts the benefit either of a public or of a private charity enters into a relation which exempts his benefactor from liability for the negligence of his servants in administering the charity; at any rate, if the benefactor has used due care in selecting those servants. To paraphrase the illustration put by the learned judge before whom this case was tried, it would be intolerable that a good Samaritan, who takes to his home a wounded stranger for surgical care, should be held personally liable for the negligence of his servant in caring for that stranger. Were the heart and means of that Samaritan so large that he was able, not only to provide for one wounded man, but to establish a hospital for the care of a thousand, it would be no less intolerable that he should be held personally liable for the negligence of his servant in caring for any one of those thousand wounded men. We cannot perceive that the position of the defendant differs from the case supposed. The persons whose money has established this hospital are good Samaritans, perhaps giving less of personal devotion than did he, but, by combining their liberality, thus enabled to deal with suffering on a larger scale. If, in their dealings with their property appropriated to charity, they create a nuisance by themselves or by their servants, if they dig pitfalls in their grounds and the like, there are strong reasons for holding them liable to outsiders, like any other individual or corporation. The purity of their aims may not justify their torts; but, if a suffering man avails himself of their charity, he takes the risks of malpractice, if their charitable agents have been carefully selected.
“We have thus indicated the grounds upon which rests, in our opinion, the defendant’s exemption from liability in this case. Though we feel constrained to differ from the reasoning followed by some other courts in reaching the same conclusion, we are not unmindful that the identity of conclusion reached, though by different roads, is a strong proof of its correctness. Doubtless a weight of authority is more overwhelming if it is identical in reasoning as well as in result, but identity of result is in itself no mean argument for its justice.”

And 'this is the conclusion reached by cur own court on the question.

We held, in Foye vs. St. Francis Sanitarium & Training School for Nurses, 2 La. App. 307, that a charity hospital is not liable to- a . patient, either pay or charity, for injuries- suffered through the negligence of ■ a nurse, where the nurse was selected with due care.

And in Demien vs. Young Men’s Christian Association, No. 7965 on the docket of .the Orleans Court of Appeal (see So. Rep.’Dig.), that court held that institutions which furnish hospital accommodations and , medical . attention to different classes .of patients, some for pay and others free of charge, not, however, for making money or profit, but for benevolent and charitable purposes exclusively, and whose entire receipts and 'revenues are devoted to such purposes, are not liable even to pay patients for the errors or negligent acts of competent nurses furnished by them to their patients, while such nurses are in the operating room, assisting the surgeon and under his orders.

And the same court reached the same result in the case of John Jordan vs. Touro Infirmary & Hebrew Benevolent Association (No. 135,097 on its docket) 123 So. —.

And the Supreme Court of Louisiana, on January 30, 1923, denied a writ of review in the case, simply stating: “Refused. The decree is correct.”

Counsel for plaintiff call our attention to Act No. 254 of 1914, and argue that it subjects nontrading corporations to the same liabilities as business corporations. We cannot concur in this view.

We do not think the title of the act sufficiently broad to warrant so holding, and, if it were, we do hot think it was the intention of the Legislature to 'abrogate .the general rule of law exempting' charitable institutions from liability for injuries suffered by patients from the negligence’ of nurses selected with due care.

Besides this, the Louisiana cases cited by us in support of the doctrine of nonliability under the circumstances' wave decided since that act was passed, and, the doctriné having been approved by the Supreme Court of Louisiana, in its refusal of. the writ of review referred to, the rule of stare decisis must be deemed applicable to the question.

On the issue of whether or not the defendant is a charitable institution, the evideuce, in our opinion, leaves no doubt that it is.

Dr. J. C. Willis, a surgeon, who operated on patients in the defendant institution as well as in other hospitals, was asked how defendant’s charges for services, compared with those of another named hospital, and he answered:

“Well, I don’t know; I could not say, because I am not familiar with what their charter requires or calls for; I will say this: I never asked them in my life to do a charitable case but that they did it willingly and cheerfully.
“Q. When specially requested to do charitable work?
“A. Yes.”

Sister Baptista testified:

“Q. What connection have you with the Sisters of Charity of the Incarnate Word, T. E. Schumpert Sanitarium?
“A. At the present time I am Sister Superior in charge; superintendent.
“Q. Do you know whether or not the Schumpert Sanitarium pays any taxes?
“A. No.
“Q. Have you ever paid any dividends?
“A. No.
“Q. Has any capital stock ever been issued?
“A. No.
“Q. What was the concern incorporated for?
“A. Solely for the care of the sick.”

She further testified:

“Well, patients who are able to pay, they pay for their rooms, whatever price room they wish to have; and patients not able to pay, we accept them as charity; take care of them.”

Asked:

“Sister, what do you do with any funds that you have, if your revenues exceed your current expenses — what do you do with the rest?”

She answered:

“Well, we have to improve and renovate the hospital; put up additional buildings; similar institutions.”

She further testified:

“Q. Now has the Schumpert Sanitarium, the Sisters of the Incarnate Word, have they ever contributed anything for the construction of any other institution?
“A. They never have had any means so far.”

She also testified that • all work necessary to be done in connection with the operation of the' hospital was performed by the sisters, and that all they received for their services .was their board, lodging and clothing.

As to the qualification of the nurses whose negligence is alleged to have caused the injuries to plaintiff’s child, she testified that Miss Omie Aurora Rambin was at the time a student nurse in her third year of study, and that Sister Lelia was a registered nurse under the laws of Louisiana, and that they were both competent.

Sister Claver testified that during the five years 1923-1928, the hospital had rendered medical service without charge to charity patients which, if charged for at current rates for such services to pay .patients, would have amounted to $33,-247.11. And that:

“Q. In addition to the charity work shown by that statement, do you serve meals to the poor?
“A. We do.
“Q. About how many do you average a month?
“A. About a hundred and fifty meals a month.
“Q. Do you get any compensation for those meals at all?
“A. None, whatever.”

Mrs. J. H. Howell testified that she was matron of the Genevieve Orphanage in Shreveport, La., a charitable institution, and:

“Q. Do you send patients from the Genevieve Orphanage to the Shreveport Sanitarium?
“A. We do.
“Q. How long have you been doing that?
“A. Ever since they opened the sanitarium in Margaret place. * * *
“Q. Is there ever any question about pay for any patient you send there?
“A. No. I have asked for statements. They said they make none.
“Q. What do you mean by that?
“A. They never send us any statements for taking the child and keeping, it until the child is well and then sent to our home well.”

John W. A. Jeter testified that he was assessor of Caddo parish, and that defendant’s property was not assessed for taxation, because it was a charitable institution, and so exempt from taxation.

The defendant corporation was chartered under the laws of the State of Louisiana on June 5, 1913, for the declared purpose that:

“This corporation is formed and its objects are hereby declared to be to hold and administer the property acquired by it under the donation inter vivos from the late Dr. John I. Schumpert as hereinbefore described, and conducting the same as a ” sanitarium for the treatment of the sick and diseased, as well as conducting therein a training school for nurses and granting and giving to them diplomas or certificates of merit, and to receive and hold any other property that they may acquire by any means, and to administer the same under such terms and conditions as may be required or may seem necessary.”

The corporation has no capital stock, and declares no dividends. The property belongs to the incorporators, who receive no pay for their services and devote their lives to the relief of the afflicted.

In McDonald vs. Massachusetts General Hospital, 120 Mass. 432, 21 Am. Rep. 529, considering what constituted a public charity, the court said:

“The corporation has no capital stock, no provision for making dividends or profits, and whatever it may receive from any source it holds in trust to be devoted to the object of sustaining the hospital and increasing its benefit to the public, by extending or improving its accommodations and diminishing its expenses. Its funds are derived mainly from public and private charity; its affairs are conducted for a great public purpose, that of administering to the comfort of the sick, without any expectation, on the part of those immediately interested in the corporation, of receiving any compensation which will inure to their own benefit, and without any right to receive such compensation. This establishes its character as a public charity.”

The defendant clearly comes within this definition of a charitable institution.

Being a charitable institution, and the nurses whose negligence is complained of having been selected with due care, the defendant was not liable to plaintiff for the injuries to his child complained of.

The judgment appealed from is therefore correct, and accordingly it is affirmed.