author: CARVER, J.

text:
    No. 2473
    Second Circuit
    BREWSTER & ROACH v. WILBUR HAMILTON
    (December 1, 1925, Opinion and Decree.)
    (See pp. 105 and 182 herein.)

      (.Syllabus by the Editor.)

    1. Louisiana Digest—Evidence—Par. 53, 60, 344.
    The burden of proof is on the plaintiff who alleges a verbal contract with defendant by which defendant agreed to pay for anything which his laborers should order from the plaintiff, to prove the contract. Defendant’s sworn denial of this unbusiness-like contract together with other circumstances make it necessary to give judgment for the defendant.
    2. Louisiana Digest—Appeal—Par. 564.
    Defendant who does not appeal from the • decision of the trial court or move to amend the judgment in the Court of Appeal cannot be granted any relief even though the proof justified his claim.
    Appeal from the Third Judicial District Court of Louisiana, Parish of Union, Hon. S. D. Pearce, Judge.
    This is a suit to collect the price of goods furnished to defendant and his laborers. There was judgment for plaintiff for the amount furnished defendant which defendant admitted but judgment against plaintiff for the amount of goods purchased by defendant’s laborers.
    Plaintiff appealed.
    Judgment affirmed.
    Eider, Thompson & Digby, of Ruston, attorneys for plaintiffs, appellants.
    H. E. Dawkins, of Ruston, attorney for defendant, appellee.
   CARVER, J.

Plaintiffs sue defendant for $157.50, alleged to be for goods sold and delivered to him during the years 1923 and 1924, as more fully shown by itemized accounts attached to the petition.

The accounts so attached are as follows:

One against defendant himself, $44.75.

One, Wilbur Hamilton, by Ross Hase, beginning April 2, 1923, and running to November 27, 1923, aggregating $48.10; less a credit of $26.00 without date; balance, $22.10.

One, Wilbur Hamilton, by Criss Woods, beginning April 1, 1923, and running to February 23, 1924, aggregating $72.55, without any credits.

One, Wilbur Hamilton, by Alf Hammons, beginning April 15, 1923, and running to July 3, 1923, $18.10.

Total, $157.50.

Defendant admits the $44.75 personal account but denies liability "for the rest.

At the trial, Dan Brewster, one of the plaintiffs testified as follows:

“Q. With reference to the account in suit No. 8159, Brewster & Roach vs. Wilbur Hamilton, 1 will ask you whether or not Wilbur Hamilton, the defendant, authorized your firm to deliver the goods covered by this account to persons included on the account and charge the amounts indicated against him, Mr. Wilbur Hamilton?
“A. Yes, sir.”

On cross-examination he testified:

‘‘Q. Now,- as to Mr. Wilbur Hamilton, i notice you have the names of three parties in addition to his; were those all darkies living on his place?
“A. Yes, sir, I think they were
“Q. I believe you said that he also told you to let his darkies have stuff?
“A. Yes, sir.
“Q. Where was he when he told yon that?
“A. There at the store.
“Q. Do you remember about what time it was?
“A. No sir; I don’t remember.
“Q. Do you remember who was present when he told you?
“A. Yes, sir; I think I do.
“Q. Who was present when Mr. Wilbur Hamilton told you that?
“A. Mr. J. L. Smith.
“Q. He was present when Mr. Wilbur Hamilton told you to let his darkies have anything they wanted? .
“A. Yes, sir.
“Q. When was this?
“A. Some time the last of January or early February.
“Q. Had you not at that time let some of his darkies have anything on account?
“A. No, sir; I think not.
“Q. You started at that time?
“A. Yes, sir.
“Q. Did you ever submit Mr. Hamilton a statement of what his darkies were- getting from time to time?
“A. No, sir; not until fall.”

Roach, the other plaintiff, does not claim himself to have received any authority from defendant to sell his laborers goods on his account. He testified as follows:

“Q. When did Wilbur Hamilton tell you he would pay?
“A. Wilbur hasn’t told me that.
“Q. You just charged them to him without any authority of any kind?
“A. Through Brewster.”

J. L. Smith testified that he was present when defendant told Brewster to let his darkies have supplies and charge the amount to him and that this was in Brewster & Roach’s store.

On cross-examination he testified:

“Q. Do you remember what Mr. Hamilton said?
“A. He told Mr. Brewster to let his negroes have some stuff.
“Q. Which negroes?
“A. I don’t know the names.
“Q. Were the negroes there at that time?
“A. No, sir.
“Q. Did he call the names of the negroes?
“A. No, sir.
“Q. Just said let them have some stuff, did he name the stuff he wanted them to have?
“A. No, sir.
“Q. Did he say let them have some stuff?
“A. He said let them have the stuff they need.
“Q. Are you sure that is what he said?
“A. That is what I understood.
“Q. Which did you understand; you said at first some stuff; did he say all they needed or what?
“A. I don’t remember.
“Q. You don’t remember whether he called over any items the stuff he wanted them to have or not?
“A. No, sir, he didn’t call any item.
“Q. You wouldn’t swear he didn’t?
“A. I would swear he didn’t itemize it.
“Q. Did he go on to tell them to let them have stuff now and any time they wanted it?
“A. No, sir.
“Q. What did you understand from what he said?
“A. Let them have stuff as they called for it and needed it.”

Further along he says this was in early spring and that he did not remember if any one else was present besides plaintiff and defendant and himself or not.

J. W. Haile testified that he was collector for plaintiffs and

“Q. Did you at any time talk to Mr. Wilbur Hamilton?
“A. Yes, sir.
“Q. What conversation did you have with him about his account?
“A. The first conversation I had with Mr. Wilbur Hamilton I told him I had an account against him and he said he had got a check and stated how much some $300.00 above $300.00 and when he got it cashed he would take the matter up with the boys.
“Q. Did you ever see him any more about .it?
“A. Yes, sir; later I did.
“Q. What did he say then?
“A. He said T am going to Monroe tomorrow and when I come back I will see them’.
“Q. Did he ever see you and pay the account?
“A. No, sir.
“Q. Did he make any objection to the legality of the account by reason of its being an account for goods gotten by his hands ?
“A. In one account he made some complaint.
“Q. As to the- rest he didn’t?
“A. No, sir.
“Q. Which one was that if you remember?
“A. It was a wage hand; I think may be it was Rass.”

He says he did not have an itemized account but just a statement on the day book.

He says this was a few' ’ days before Christmas. He does not state what year but we gather it was 1924.

Though Brewster says the .arrangements for the advances were made in late January or early February and that he then started the advances, the accounts themselves show that they did not begin until April 1, April 2, and April 15, respectively.

An inspection of the accounts shows that on those for Hase and Crise Woods there was a relatively small amount of provisions, $10.90 out of $48.10 on the Hase account, and $25.65 out of $72.55 on the Woods account. On the Hase account appear, amongst other items, the following:

Union suit, $3.00.

Umbrella, $2.00

5 yards of pongee, $3.75.

1 pair of hose, $1.50.

1 pair of socks, 75 cents.

The accounts run, that for Hase to November 27, 1923; that for Woods to February 23, 1924; and that for Hammons to July 3, 1923.

As shown above, Brewster testified that he did not submit to defendant a statement of what the darkies were getting until fall. He does not say which fall, but we •gather it was in 1924.

Defendant denied telling plaintiff to advance his hands and says he did so himself, giving Woods $7.50 to $10.00 every two weeks and Hammons $10.00 every two weeks, and that Hase worked for wages. He says that his first knowledge of the plaintiffs’ claim was when Haile came to collect.

The plaintiffs’ theory is that defendant gave his hands, including those working for wages and presumably paid by the week, that being the custom of the country, cart blanche to get whatever they chose without limit of time or amount, without mentioning the names of the parties so favored and without inquiring as they went along how these parties were using this extraordinary privilege; and this, too, while advancing them himself what he thought their crops warranted.

Although Brewster is corroborated to some extent we do not regard the proof sufficient to establish against defendant’s positive testimony so unusual and unbusinesslike a contract.

Brewster and Smith may be perfectly sincere in their belief that defendant gave such a blank order, but the question is not whether they understood him to do so but whether he did so; and we cannot believe, without more proof than is here presented, that he did.

As to Smith, he was testifying more than two years after the alleged conversation; was not interested in the matter talked about between Hamilton and Brewster, and may well be mistaken in his recollection of what occurred.

As to Brew'ster, his testimony shows that his recollection is not very good. As mentioned above, he stated several times the arrangement was' made in 1922, but after-wards corrected it, saying it was in 1923, as he only started in business in 1923.

He also said that he started in the advancing at the time of making the arrangements, although the accounts show that they did not begin until more than two months after the date he fixes for the arrangements.

He was also asked whether defendants or any of them had traded with his firm on the same basis for any previous year other than that shown on the account and whether they had settled up without any controversy, and he answered “Yes, sir”.

It should be stated here that this suit was consolidated for trial in the lower court with suits by the same plaintiffs against Fred Hamilton and Joe Hamilton and the defendants meant in the foregoing question were all three of the Hamiltons.

He could not have had such dealings, though, as asked about in this question in ahy previous year because all the accounts are for 1923 and.later, and he was not in business in 1922,

Although there was consolidation in the lower court and only one trial, we are rendering separate opinions in each case because the facts are slightly different in each.

As to Haile, who was collecting for the plaintiffs and who probably had other accounts besides the Hamiltons’ for collection, it is not likely that he could remember accurately what the various parties told him when he presented claims. His version of what occurred between him and each of the defendants is different from what they claim, which is but natural from persons testifying as to their recollection of conversations. The law justly regards such admissions as Haile testified to as the weakest kind of evidence.

It might be argued that plaintiffs have a numerical preponderance of testimony, having two witnesses to defendant’s one as to the contract besides such corroboration as Haile’s testimony gives. But this case, as said above, was consolidated with the other two and contracts similar to the one here involved were testified to as to the other two who denied them as does the defendant in this case. In a sense .there were three witnesses for defendant. Not, indeed, three to the precise contract itself, but to a similar contract, and we think the testimony of each of these three defendants received in this view some support from that of the other two.

The district judge decided in favor of the defendant, so far as the claims against the laborers were concerned, and we think correctly. He gave judgment against defendant for his personal account, and this is not disputed. He disallowed the plea of tender for the amount of this personal account which, the defendant says, should have been sustained, but as he does not appeal from the decision or move to amend the judgment in this court, this relief could not be granted even did the proof justify his claim, concerning which we express no opinion. Defendant also claims that inasmuch as practically all the testimony was taken concerning the laborers’ accounts, plaintiff should be taxed with the costs. This relief, too, must be denied for the reason above given.

Judgment affirmed.


source: Caselaw Access Project

license: Public Domain

text:
    No. 2472
    Second Circuit
    BREWSTER & ROACH v. JOE HAMILTON
    (December 1, 1925, Opinion and Decree.)
    (See pp. 105 and 178 herein.)

      .(Syllabus by the Editor.)

    1. Louisiana Digest—Evidence—Par. 53, 337, 344.
    The testimony in this case is not sufficient, in the face of defendant’s sworn testimony to the contrary, to prove that defendant gave the laborers on his plantation carte blanche to get whatever they chose from plaintiffs on defendant’s account while he was at the same time supplying himself.
    Appeal from Third Judicial District Court of Louisiana, Parish of Union, Hon. S. D. Pearce, Judge.
    This is a suit to collect the price of goods furnished to defendant and his laborers. There was judgment for plaintiff for the amount furnished defendant which defendant admitted but judgment against plaintiff for the value of goods purchased by defendant’s laborers.
    Plaintiff appealed.
    Judgment affirmed.
    Elder, Thompson & Digby, of Ruston, attorneys for plaintiffs, appellants.
    H. E. Dawkins, of Ruston, attorney for defendant, appellee.
   CARVER, J.

Plaintiffs sue defendant for $208.80; $149.04 alleged to be for goods sold and delivered to him and $59.76 as the amount of an account defendant owed one, McFarland which, plaintiffs claim to have purchased from McFarland with defendant’s consent and approval.

Annexed to the petition and made part thereof are three itemized accounts, namely:

Joe Hamilton, by Richard Henderson, running from March 3, 1923, to December 10, 1923, $59.76.

Joe Hamilton, by Will Gun, running from February 2, 1923, to August 11, 1923, $74.76.

Joe Hamilton, by John D. Lewis, running from May 18, 1923, to June 4, 1924, $74.28.

Of this last account, $16.25 was in 1924, and the rest in 1923.

As to the account claimed to have been bought from McFarland, no effort was made to prove any such purchase but Roach, one of the plaintiffs, testified that defendant told him to charge him, defendant, an account made by Richard Henderson that had been charged to McFarland by the plaintiffs. He testifies that McFarland was present when Hamilton told him that. Defendant denied this, and said:

“Q. This Richard Henderson, I will ask you if you didn’t in the presence of Mr. McFarland and Arthur Williams, tell Mr. Roach to charge this $44.75 to' your personal account?
“A. No, sir; I got the same account, $83.05, or something like that. I might have told Mr. McFarland I would try to pay it. I don’t know whether these two men were present or not.”

McFarland testifies:

“Q. Mr. McFarland were you present at any time when there was a conversation between Mr. Joe Hamilton and Mr. Roach and yourself about the account of Richard Henderson?
“A. No, sir; I remember a conversation between Hamilton and I but I don’t remember Williams and Roach being present.
“Q. What did Mr. Hamilton say?
“A. He said he would try to pay the negro’s account.
“Q. The negro owed you?
“A. I wasn’t responsible for the negro’s account; I paid what I was responsible for.”

Arthur Williams testified:

“Q. Were you present at any time when Mr. Joe Hamilton and Mr. Roach were discussing the account of the darkey Richard Henderson?
“A. Yes, sir; I remember one afternoon there was some discussion to this effect; he came in there and told him he had made a trade to work the negro and it seemed there was an account behind and he told him he would try to pay the account.
“Q. Told Roach he would try to pay the account?'
“A. Yes, sir; he would try to pay it and make it all right.”

As-to this item, the. proof, if admissible, seems to preponderate in favor of the defendant.

We think, however, that so far at least as that part of the Henderson account which was created before the conversation it is clear that parol proof was inadmissible.

As to the balance of the claim against defendant, Roach testified that defendant authorized him in January, 1923, to let his darkeys have stuff that year. He continues :

“Q. Do you remember what he said to you?
“A. No, not just the words.
“Q. Could you give the substance of what he said?
“A. He said anything the hands called for to let them have it and charge it to them.
“Q. You considered that a wide open gate, didn’t you?
“A. Well, he told me to let them have it.
“Q. That was for what year you say, 1923?
“A. 1923.
“Q. Did he tell you the same thing in 1924?
“A. They didn’t trade any in 1924.
"Q. Joe Hamilton’s darkies traded only for 1923?
“A. Yes. sir; 1923.”

We have seen above that some of the goods on the Lewis account were for 1924.

Defendant denies that he ever gave any authority to plaintiffs to sell his laborers anything on his account. He says that Lewis worked for wages for him in 1923, Will Gun made a crop on “halves”, and that Richard Henderson did not work for him that year but for McFarland. He says, further, that he supplied his hands himself in 1923.

An inspection of the account sued on shows very few items of provisions which, in the case of advances to farm laborers, are usually the chief items of supplies:

Haile, a witness for the plaintiffs, and their collecter, testifies that he had a talk with defendant; that the first time he talked to him he said that he did not feel that he was responsible for the Henderson account but the last time he talked to him he said that when he sold cotton he would settle it but he did not know when he would sell cotton. He says, further, that he did not have an itemized statement of defendant’s account but only a little statement in the day book and that he does not remember what Joe’s account was.

The district judge decided in favor of the defendant, and we think correctly.

The testimony is not sufficient, in our opinion, to establish, in the face of defendant’s sworn testimony to the contrary, that he gave the laborers on his plantation carte blanche to- get whatever they chose from plaintiffs on his account while he was at the same time supplying them himself with what he thought they needed and the crops they were making justified.

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


text:
    No. 2444
    Second Circuit
    J. E. DAVIS, ET AL. v. LOUISELL PINE & HARDWOOD CO., ET AL.
    (December 10, 1925, Opinion and Decree.).

      (Syllabus by the Editor.)

    1. Louisiana Digest—Appeal—Par. 625.
    The finding of the trial judge as to the fact that the fire was caused by sparks from defendants’ engine and that it was due to negligence of the defendants, being eminently correct is affirmed.
    (Civil Code Art. 2315. Editor’s note.)
    2. Louisiana Digest—Damages—Par. 106.
    The quantum of damages due to a fire caused destruction of property valued at $300.00 by the district judge, being eminently correct, is affirmed.
    Appeal from Third Judicial District Court of Louisiana, Parish of Union, Hon. S. D. Pearce, Judge.
    This is a suit for damages caused by a fire alleged to have been started by sparks from defendants’ locomotive.
    Judgment for plaintiff and defendant appealed.
    Judgment affirmed.
    Elder, Thompson & Digby, of Ruston, attorneys for plaintiffs, appellees.
    H. G. Fields, of Farmerville, attorney for defendant, appellant.
   CARVER, J.

Defendant, Louisell Pine & Hardwood Company, appeals from a judgment condemning it to pay plaintiffs $300.00 for damages caused by a fire on or about July 21, 1924, alleged to have been started by sparks from the locomotive of defendant’s log train.

On the question whether the fire did so originate and also whether this was due to defendant’s negligence, the testimony is conflicting.

Plaintiff testified that on the day of or two days before the fire he saw sparks coming from the locomotive as big as his hand or fist and that these sparks did set fire to some logs which he and a negro put out.

Plaintiff says he complained about the danger from the engine to Mr. Green, the secretaryoand treasurer of the defendant company, on the day he went to Alabama or Georgia, and that Green said he would see about it. He also says that the day after that he complained to the negro running defendant’s log train who replied that they could not keep up steam if It was screened. He further testified that on the very day of the fire and after it had occurred but before he learned of it he went to Bernice and complained to Mr. Wacker, whom he found in Green’s place, and he replied that he would see after it and have the engine screened and that he called a young man in the office and told him to see that it was screened and to put something on there to keep the fire from falling out.

The testimony as to complaints to Waeker and the negro were not contradicted at all. As to the complaint to Green, Green testifies:

“Q. Do you remember talking with Mr. Davis and agreeing with him that you would have this engine equipped with spark arrestors?
“A. Why should I, when it was already equipped.
“Q. Do you deny having this conversation with Mr. Davis?
“A. About this particular engine, I do.
“Q. The engine that he spoke of?
“A. That is the engine I deny.”

Plaintiff knew nothing of how the fire causing the damage did originate.

Clarence Pylant testified, that he heard defendant’s log train pass thirty or forty minutes before he got to the fire which was then burning from the track towards the mill site which was part of the property destroyed, having reached about sixty yards from the track, and that the ties of the track were burning on one side but not on the other.

He further testified that this was the only fire in the woods anywhere around there that he could see.

Jim Pylant corroborated the testimony of Clarence as to the fire burning from the railroad track back towards the mill; he having arrived on the scene after the fire had gotten two or three hundred yards from the track.

It is not disputed that defendant had one or more men employed to walk the track and put out fires, though the testimony is conflicting as to the fires so guarded against; some of the witnesses stating that they were fires caused by the engine and some that they were fires caused otherwise, there being at that time a drouth and frequent forest fires caused otherwise than by the engine.

A. Mizell, defendant’s engineer, testified that the only engine used in July, 1924, was a Heisler engine, equipped with a “cabbage head” spark arrestor which did riot permit ejection of sparks bigger than his finger.

W. O. McCurdy, who had been until June 1, 1924, inspector of locomotives of the State Department of Conservation, testified that he had inspected defendant’s engine between the 25th and 30th of April, 1924; that it was equipped with a “cabbage head” spark arresting device; and that this was the latest and most approved spark arrestor known.

There is also testimony showing that fires were frequent at that time.

On this evidence we agree with the district judge that the proof sufficiently shows that the fire was caused by sparks from defendant’s engine, and that it was negligence, making defendant liable for the ensuing injury to plaintiff’s property.

AMOUNT OF DAMAGES

Plaintiff itemized his damages as follows: For small pine and hardwood trees $1000.00

For dry pine or kindling wood________ 200.00

For 30,000 feet of lumber in the planer mill shed and two tramways ____________________________________________________ 600.00

For 10,000 feet of stacked lumber 200.00

TOTAL ____________________________________________$2000.00

As a witness he says the claim for stacked lumber was a mistake, there being none stacked.

He estimates the value of the trees, dry pine and lumber in the buildings and tramways at the figures above given.

Defendant’s witnesses estimated the values much lower.

As to the trees, the evidence does not show how much of the 280-acre tract belonging to plaintiff was burned over. Some of the questions would indicate that plaintiff claimed that all of it was, that is, all except 20 or 30 acres of cleared land; but we dó not find that any witness states that it was all burned over.

J. A. Poole, a witness for defendant, testifies :

“The part of Mr. Davis’ land that I looked over that was cut by the Louis ell Pine & Hardwood Co., the majority of it or half of it or better was old field pine and there was part of forty acres south of the old mill on the south side of the railroad that was in the swamp and the majority of the forty that was in Bob Mitchem’s pasture was in the woods; the rest of it was old field pine, and as to the timber burned upon it I couldn’t say I could figure any damage at all to it.”
“Q. How long have you been in the timber business?
“A. Twenty-five years.
“Q. He has a demand of' $1000.00 for standing timber injured by this fire; what damage would you say was done on the timber that you saw?
“A. I would say $100.00 would cover everything from the size of your wrist up to four inches through or eighi inches through.
“Q. Were you over that property in July?
“A. Yes, sir”

Defendant claims that the timber did not belong to plaintiff who, it appears, on March 2, 1920, contracted to sell it for $3.00 per thousand, to J. T. Cole who paid him $500.00 on account of the price.

On August 1, 1920, Cole executed a deed to J. W. Stancil covering the timber, but the oral testimony shows that Cole and Stancil formed a partnership for the purpose of operating a mill.

On April 1, 1923, Davis sold the timber to Bernice Lumber Co. for $2350.

Bernice Lumber Co. in some way not shown by the record having acquired the rights of Cole and Stancil under the timber contract given to Cole by plaintiff.

These deeds, however, only cover the merchantable timber, and we do not understand that the smaller timber, for which plaintiff claims, was covered by them.

As to the small timber destroyed, therefore, we think plaintiff had a right to recover whatever the damage was.

As to the lumber in the planer mill shed and tramway the testimony shows that it was old and inferior when used and had little value at the time it was destroyed. Some witnesses placed its value as low as §50.00 and some of them at $100.00 or more.

Defendant’s counsel claims that the lumsubstantially to the same effect, except ber in these buildings did not belong to Davis. They were constructed by Cole and Stancil. Davis and Cole both testify that Cole stated, when he acquired the option from plaintiff, that plaintiff could have the buildings when he got through with the mill site. Before cutting the timber, though, it seems that Colé sold out his rights to Stancil who sold to Bernice Lumber Co. Bernice Lumber Co. in this purchase was represented by G. W. James. Plaintiff and his son say that James stated at the time of making the purchase that the buildings belonged to plaintiff and requested the use of them until he' was through cutting the timber. James testified that he said he did not admit that plaintiff owned the houses, but he did tell him that when he got through he could have anything that was left. He says he thinks Mr. Davis is practically right about the matter, though he did not ask him for the use of the buildings as he figured they were his. He further states that in buying from Stancil he did not figure that the buildings had any value and that the $1800 he paid Stancil was the value of the timber rights.

The proof further shows that the mill operations had ceased and practically all of the timber had been cut by Bernice Lumber Company.

We got the impression that all of it was supposed to have been cut though by resurvey it appeared that there was still some timber that the Bernice Lumber Company cut after the fire in question.

Plaintiff testifies that besides the growing young timber and the buildings and tramway a lot of dry pine or kindling on the ground was burned.

On the whole we cannot say that the district judge erred in fixing the damages at $300.00.

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


author: CARYER, J.

text:
    No. 2464
    Second Circuit
    CHARLES P. WARD v. STANDARD LUMBER COMPANY
    (December 1, 1925, Opinion and Decree.)

      (Syllabus by the Editor.)

    1. Louisiana Digest—Master and Servant —Par. 160 (I).
    Under the Workmen’s Compensation Law, Act No. 20 of 1914, the appellate court, if it believes the ends of justice will be subserved thereby, will remand the case to the lower court for a new trial.
    Appeal from Eighth Judicial District Court of Louisiana, Parish of Caldwell, Hon. F. E. Jones, Judge.
    This is a suit brought by an injured employee for compensation undec the Workmen’s Compensation Law, Act No. 20 of 1914.
    Case remanded to lower court for a new trial.
    Long and Crow, of Shreveport, attorneys for plaintiff, appellee.
    C. P. Thornhill,, of Columbia, Leslie P. Beard, of Monroe, attorneys for defendant, appellant.
   CARYER, J.

In this case we are not satisfied to render any final judgment on the present state of the record—the evidence not showing to our satisfaction either that plaintiff was or was not injured to such extent as totally or partially to disable him from doing work of a reasonable character and not showing sufficiently the nature and extent of the scars which the' district judge apparently regarded as a disfigurement entitling plaintiff to compensation under subsection (e) of section 8 of the Workmen’s Compensation Law— and think that the purposes of justice will be subserved by remanding the case for a new trial.

It is accordingly decreed that the judgment of the lower court is set aside and the case remanded for a new trial.


author: REYNOLDS, J.

text:
    No. 2414
    Second Circuit
    G. ADRIAN ADAMS v. TOWN OF RUSTON
    (December 1, 1925, Opinion and Decree.)

      (Syllabus by the Editor.)

    1. Louisiana Digest—Injunction—Par. 6, 8, 10.
    Rights already lost and wrongs already perpetrated cannot be corrected by injunction.
    2. Louisiana Digest—Injunction—Par. 13, 18; Ownership—Par. 7.
    A question of ownership of land is one that must be tried by direct action and cannot be determined in an application for a writ of injunction.
    (See Code of Practice, Article 44. Editor's note.)
    3. Louisiana. Digest—Injunction—Par. 8, 9, 45.
    Under the Code of Practice, Articles 298 and 303 plaintiff must not only allege danger of irreparable injury but that the threatened injury would not be compensable in money.
    Appeal from the Third Judicial District Court of Louisiana, Parish of Lincoln, Hon. S. D. Pearce, Judge.
    This is a suit in which the plaintiff asked for a preliminary writ of injunction. The defendant filed an exception no cause of action which was sustained.
    Plaintiff appealed.
    Judgment affirmed.
    Elder, Thompson & Digby, of Ruston, attorneys for plaintiff, appellant.
    Barksdale, Warren & McBride, of Ruston, attorneys for defendant, appellee.
   REYNOLDS, J.

In this suit plaintiff asks for a preliminary writ of injunction and on final trial for judgment perpetuating it and for recognition of his ownership of the south 60 feet of lot 4 of block 58 of the Dabney Subdivision to the town of Ruston, in Lincoln parish, Louisiana.

Defendant filed an exception of no right and no cause of action to the petition. The lower court sustained the exception and plaintiff has appealed.

OPINION

Plaintiff bases his right to a writ of injunction under Article 298 or 303 of the Code of Practice and Paragraphs 2 and 4 of his petition.

Paragraphs 2 and '4 of his petition read as follows:

“2.
“That the town of Ruston has recently interfered with your petitioner’s ownership and possession of the said property by going thereon, through its agents and employees, and has erected a street thereon and has graveled the same and laid a water main and is holding the same out to the public as a street in the said town, when in truth and in fact the property has never been dedicated to the public and is solely owned by your petitioner by deeds of record.”
“4.’
“That recently • petitioner erected certain posts across the said above described land, as he had a right to do, and without right and acting under the authority and orders of the mayor of this town and the members of aldermen, one Will Risinger, the said Mayor, and Booles Breed, a member of the said Council and said commissioners of streets, went upon the said property, and over your petitioner’s protest and destroyed the said posts and are preventing the said petitioner from entering upon the said premises as the owner thereof.”

It will be noted that plaintiff does not complain that the city of Ruston is, -through its officers or employees, about to do any of the acts mentioned in Article 298 of the Code of Practice that would authorize the granting of a writ of injunction as a matter of right.

The acts complained of are accomplished facts.

Plaintiff complains not that the town of Ruston is about to take possession of his property, but that it has done so and is now in possession thereof and occupying it for purposes of a public street and that it has already gravelled the street and laid a water main in it and is holding it out to the public as a public street.

It is well settled in the jurisprudence of Louisiana, as quoted in defendant’s brief, that:

“Rights already lost and wrongs already perpetrated cannot be corrected by injunction.”

Dunham vs. Slidell, 133 La. 212, 62 South. 635.

Callan vs. Orleans Fire Dept., 45 La. Ann. 673, 12 South. 834.

Treargire vs. School Board, 31 La. Ann. 105.

Nicol vs. Railroad Co., 44 La. Ann. 816, 11 South. 34.

Davenport vs. Sterling Lumber Co., 148 La. 785, 87 South. 747.

N. O. & N. E. R. R. Co. vs. Miss. etc. R. R. Co., 36 La. Ann. 551 (561).

Wemple vs. Eastham, 144 La. 957, 81 South. 438.

Plaintiff does not allege that the city of Ruston will interfere with the use of the street as a street; his allegation is that the city will interfere with his use of it as owner.

As pointed out in defendant’s brief, the question of ownership is one that must be tried by direct action and is not to be determined in an application for a writ of injunction.

Code of Practice, Article 44.

McCall vs. Irion, 40 La. Ann. 690, 4 South 859.

Anderson vs. Carroll, Hay & Co., 23 La. Ann. 175.

Hardin vs. Wolf & Cerf, 29 La. Ann. 335.

Doherty vs. Leake, 24 La. Ann. 224.

Plaintiff does not allege that he will be irreparably injured and therefore is not entitled to a writ of injunction under Code of Practice Article 303.

The Supreme Court has often held that a petition based upon this article must 'allege not only danger of irreparable injury but that the threatened injury would not be compensable in money.

A plaintiff’s right to an injunction under this section is within the sound discretion of the court and when the lower court is vested with judicial discretion there must be a clear abuse thereof to justify the higher court in reversing its decision.

We quote the following from defendant’s brief:

“Injunction will not be granted where the apprehended injury is compensable in money.”

State vs. Brunot, 112 La. 425, 36 South. 481.

“The averment, though sworn to, that unless prevented, the apprehended act, if committed, will occasion irreparable injury, is not conclusive on the court. The showing must be such ds leaves no doubt on the character of the injury sought to be guarded against.”

Schmidt vs Foucher, 37 La. Ann. 174.

Fontelieu vs. Gates, 36 La. Ann. 833.

Crescent City Live Stock L. & S. H. Co. vs. Police Jury, 32 La. Ann. 1192.

For the reasons assigned, the judgment of the lower court is affirmed.


text:
    No. 2352
    Second Circuit
    J. M. WADE v. TRUMAN HENRY
    (December 1, 1925, Opinion and Decree.)

      (Syllabus by the Editor.)

    1. Louisiana Digest—Evidence—Par. 58, 59.
    In a suit on a promissory note where the defense is a special agreement alleged between defendant and plaintiff before the maturity of the note, the burden of proof is on the defendant to prove his special defense.
    2. Louisiana Digest—Evidence—Par. 60.
    Where the evidence of plaintiff and defendant balance and the burden of proof is on the defendant the decision must be with the plaintiff. ,
    Appeal from Third Judicial District Court of Louisiana, Parish of Lincoln, Hon. S. D. Pearce, Judge.
    This is a suit on a promissory note for face value, interest and attorney’s fees.
    There was judgment for plaintiff and defendant appealed.
    Judgment affirmed.
    C. B. Roberts, of Ruston, attorney for plaintiff, appellee.
    Dhu Thompson, of Ruston, attorney for defendant, appellant.
   REYNOLDS, J.

This is a suit on a promissory note for $135.00 dated December 28, 1923, signed by defendant, payable to the order of plaintiff or bearer on December 1, 1924, bearing 8% interest from its maturity and stipulating payment of 10% attorney’s fees if collected by judicial process, given by defendant to plaintiff to represent the price of a mule sold him, and secured by a mortgage on the animal. Plaintiff also asks for recognition and enforcement of his mortgage.

The defense is that before the maturity of the note it was agreed between plaintiff and defendant that defendant should return the mule to plaintiff and at some future date pay him $20.00 in satisfaction of the note and that plaintiff would file the note with'the clerk of the district --.ourt and ex-officio recorder of Lincoln parish and have the mortgage . securing its i ayment _ cancelled; that pursuant to su '.h agreement defendant did return the mu. to plaintiff and afterwards offered to pa.' plaintiff the $20.00 but that plaintiff refused to accept it and cancel the mortgage.

The defense is a special defense and the burden of proof was on defendant.

The question to be decided is one of fact.

Defendant swears positively that it was agreed between him and plaintiff that he should return the mule to plaintiff and pay plaintiff $20.00 as rent for the use of the mule while he had him.

Plaintiff swears equally positively that there was no such agreement.

Defendant • swears that he returned the mule to plaintiff, and the plaintiff denies that he did.

Plaintiff was asked (transcript, page 15):

“Q. Mr. Wade, you are not answering my question. Didn’t Mr. Henry carry this mule down and put him in your lot?
“A. He didn’t.
“Q. You deny that Mr. Truman Henry carried this mule down and put him in your lot?
“A. Yes, sir.”

The evidence of the plaintiff balances that of the defendant and as the burden of proof o was on defendant to make out his defense by a preponderance of evidence his defense fails.

The district judge who tried the case heard the witnesses and doubtless knew them and he rendered judgment in favor of the plaintiff, in effect holding that the mule still belonged to defendant and that defendant still owed plaintiff the amount of the note sued on.

Under the evidence we think his decision is correct, and it is accordingly affirmed.


author: REYNOLDS, J:

text:
    No. 2335
    Second Circuit
    RAYVILLE STATE BANK v. PEOPLES COMPRESS AND WAREHOUSE COMPANY, INC.; A. F. BUELOW AND COMPANY, AND GEORGE DOWNES, Warrantors
    (December 1, 1925, Opinion and Decree.)

      (Syllabus by the Editor.)

    1. Louisiana Digest—Warehouses—Par. 4, 5.
    Act No. 221 of 1908 was intended to stabilize warehouse receipts and give them the value of negotiable instruments.
    2. Louisiana Digest—Fraud—Par. 3.
    Fraud can never be presumed. It must be proven.
    3. Louisiana Digest—Evidence—Par. 351, 352.
    The evidence preponderated in favor of plaintiff’s contention that it is the bona fide holder as collateral of the tickets or warehouse receipts attached to its petition.
    4. Louisiana Digest—Warehouses—Par. 6, 11.
    The value of the cotton for which the defendant warehouse company is liable to the plaintiff is its value at the time plaintiff, holder of warehouse receipts, demanded delivery of the cotton from the defendant, but was wrongfully refused.
    5. Louisiana Digest—Appeal—Par. 564.
    Issues between warrantors not passed upon by the trial court cannot be considered in the appellate court.
    Appeal from Fifth Judicial District Court of Louisiana, Parish of Richland, Hon. John R. McIntosh, Judge.
    This is a suit for the value of eight bales of cotton which defendant failed to deliver to plaintiff, the holder of defendant’s warehouse receipts. Defendant pleads that he delivered the cotton to Buelow and Company and George Downes which it called in warranty. There was judgment for plaintiff for the value of two bales of cotton.
    Plaintiff appealed, and defendant filed a motion to amend judgment rejecting plaintiff’s demand in full.
    Judgment modified by being increased and affirmed.
    Tobin R. Hodge, of Rayville, attorney for plaintiff, appellant.
    Ellis & Ellis, of Rayville, attorneys for warrantors.
    George Wesley Smith, of Rayville, attorney for defendant, appellee.
    STATEMENT OF THE CASE
    Plaintiff, as holder of defendant’s warehouse receipts for eight bales of cotton which defendant failed to deliver on demand sues for the value thereof.
    Defendant pleads that it delivered the' cotton to Buelow and Company, a partnership which is called in warranty.
    It does not claim that Buelow & Company surrendered the receipts on obtaining delivery but says it was warranted in delivering the cotton without such surrender by reason of a course of dealing which had been pursued by the bank, Buelow & Company and one Downes where-under Downes would buy cotton sometimes for Buelow & Company and sometimes for himself and sell it to Buelow & Company, drawing on the bank when he bought and drawing on Buelow & Company when he sold to them and sometimes attaching to the drafts, bills of lading or warehouse receipts which were given back to Downes and sometimes hot attaching them but promising to furnish them afterwards.
    Buelow & Company answered admitting that they received the cotton and are liable to defendant for its value in case defendant is liable to plaintiff; but they claim plaintiff is not entitled to recover because on September 22, 1922, Downes shipped to them fifty-eight bales of cotton and drew on them through plaintiff for $600.00 with the bill of lading from the cotton attached to the draft and that they -paid the draft; that shortly thereafter, at the request of Downes, they returned the bill o'f lading for the fifty-eight bales to the plaintiff that Downes might check up his purchases against it and that it was to have been .returned to them by plaintiff after Downes had inspected it while in plaintiff’s possession but that instead of returning the bill of lading to them plaintiff illegally delivered it to Downes and that in consequence they have never received from any source more than thirty of the fifty-eight bales of cotton covered by the bill of lading.
   REYNOLDS, J:

And they aver that by reason of the illegal acts of plaintiff it not only owes them the value of the cotton represented by the eight receipts sued on but also of twenty additional bales and they pray for judgment in reconvention against plaintiff and Downes in solido for the sum of $3000.00 with legal interest thereon from September 22, 1921.

No objection was made by any of the parties to the calls in warranty.

Downes’ defense need not be stated because the case was not decided as between Buelow & Company and him; the district court holding that the proof was not sufficient to enable it to pass on their respective claims against each other.

Our jurisdiction being only appellate, we cannot decide as between these two either.

No objection seems to have been made to the action of the district court on deciding ‘the rest of the case and reserving this part for further proceedings.

The district court gave the plaintiff judgment for the value of two bales of cotton at 20% cents a pound, being the market value at the time it was delivered to Buelow & Company and rejected its claim for the other six bales.

It also gave defendant judgment against Buelow & Company for the same.

Plaintiff appealed and defendant has filed a motion to amend the judgment by rejecting plaintiff’s demand in full.

OPINION

Act 221 of 1908 was intended to stabilize warehouse receipts and give them the value of negotiable instruments.

Plaintiff sues on eight public warehouse receipts and is entitled to recover unless the defendant can establish some special defense; and the defense tendered, by Buelow & Company, is that this suit is the result of a combination between plaintiff and Downes to enable Downes to defraud Buelow & Company. It follows, therefore, that' the question on which this ease turns is whether or not the plaintiff is the bona fide holder of the eight warehouse receipts sued on.

The evidence bearing on this point is:

Tobin R. Hodge testified, page 3:

“Q. Mr. Hodge, when was—when were these tickets received by the Rayville State Bank as collateral for an indebtedness of George Downes?
“A. The Bank received a bill of lading for seven of these bales of cotton and paid for same and received the tickets some days after the cotton came to Rayville and after the bank surrendered to the Compress or the railroad company the bill of lading.”

Page 4:

“Q. Then no one except the Compress and the Rayville State Bank have ever had possession of these tickets?
“A. No one I know of.
“Q. You are positive of that?
“A. Yes. Those tickets have never been out of the Bank. Oh, they may have been out of the Bank for an hour or two. I don’t think they ever went out of the Bank for an hour even unless—I believe some of those tickets were at one time attached to a draft drawn on Buelow & Company, which draft was refused by him and they were returned to the Bank attached to that draft that he failed to pay.

Page 5:

“Q. They were owned by the Rayville State Bank?
“A. They were not owned by the Ray-ville State Bank; they were pledged to the Rayville State Bank to secure advances for the purchase of cotton.
“Q. And the Rayville State Ba'nk allowed George Downes to attach them to his draft?
“A. The Rayville State Bank itself attached them to the draft.
“Q. The draft of George Downes?
“A. Yes. George Downes’ draft payable to the Bank and drawn on Buelow and when the draft was returned and not paid the cotton tickets were returned with the draft to the Bank where they belonged.”

Page 6:

“Q . But when the Bank advanced money to Mr. Dowhes to pay for the cotton it required either compress tickets or shippers order bills of lading didn’t it?
“A. Yes, and got them and among those were these eight bales that is attached to this petition.”

George Downes testified, page 59:

“Q. The eight compress tickets that were handed—that were attached to plaintiff’s petition were pledged by you to the Rayville State Bank were they not?
“A. They were.
“Q. The note attached to petition of plaintiff and signed by you for one thousand and five dollars and seventy cents is due by you to said Bank, is it not?
“A. It is.
“Q. And said note is secured by the eight compress tickets attached to the petition?
“A. It is.
“Q. The Rayville State Bank paid for the cotton represented by those tickets along with other cotton for you did it not?
“A. It did.”

Contra, C. P Searles testified, page 65:

“Q. Please examine the eight compress tickets attached to plaintiff’s petition and state whether or not E. A. Buelow & Company ever paid for, any of the identical cotton represented by these tickets?
“A. Yes, we have paid for some of this cotton.
“Q. Just state which part of it and give the compress ticket numbers?
“A. Three two, five three three, forty thousand eight eighty, forty thousand, eight eighty-two, forty thousand eight eighty-three, forty thousand, eight eighty-five, forty thousand nine naught seven.
“Q. Making how many bales in all?
“A. Six bales of the eight.”
“Q. Were these payments made by Buelow on draft or how were they made?
“A. They were made by draft with tickets attached.
“Q. Have you the drafts in your possession?
“A. Yes.
“Q. Please let us see them.
(Witness hand the attorney the drafts.)
“Q. Were these payments made on one or more drafts?
“A. They were made on two drafts.”
“Q. Now were the six identical compress tickets attached to plaintiff’s petition that you have given the numbers of were they attached to those two drafts when the drafts; were paid by you?
“A. Yes.
“Q. What did you do with the compress tickets?
“A. Tickets were mailed back for shipment.
“Q. To whom?
“A. To Mr. Downes for delivery to the press.”

Page 72:

“Q. And you took the tickets and checked them by the invoices and found that it was correct?
“A. Yes.
“Q. And you returned the tickets to Mr. Downes and asked him to have the cotton shipped out? That is your testimony, is it?

Page 76:

“Q. How and when did you send them to Mr. Downes, you said you sent them?
“A. I sent them—
“Q. Well when?
“A. I cannot state just when they were sent; the letter stated there was twenty-two bales that accompanied the shipping order.
“Q. Well, haven’t you got any letter transmitting the eight bales to him?
“A. No, sir, not that particular eight bales. The eight bales were included in this forty-five bale shipment.

Page 97:

“Q. Well, just give that date as near as you can approximately how long has it been since you discovered this in checking your document over?
“A. We discovered this where we paid for this particular six bales; I should say in the last few weeks.
“Q. Now, Mr. Searles who in the office of Buelow & Company if anyone check compress tickets attached to drafts with invoices sent in by Mr. Downes?
“A. I check all the documents.
“Q. You did that yourself?
“A. Yes, sir.
“Q. And you know that those tickets were attached to the drafts when you paid them?
“A. Yes.
* í: *

Page 100:

“Q. And you didn’t know then that the tickets covering the eight bales in question here were missing until the last two or three weeks?
“A. No, I didn’t know the cotton really had been paid for until a few weeks ago.”

Though claiming, as shown above that plaintiff owed them twenty-two bales of cotton because of its failure to return to them a bill of lading entrusted to it and its delivery of said bill of lading instead to Downes, which bill of lading, they allege, covered six of the eight bales sued for, and though introducing some evidence in support of this claim Buelow & Company have abandoned the claim by not appealing or asking an amendment in this court and do not argue it.

Instead, they claim that the compress receipts for six bales sued on were returned not to the Bank but to Downes. If this 'be true, by sending the tickets to Downes they placed it in his power to renegotiate them; so that even if, as they claim, they had previously paid the Bank, the Bank would clearly have the right to recover on them.

From all the testimony we are of the opinion that the evidence preponderates in favor of plaintiff’s contention that it is the bona fide holder as collateral of the tickets attached to its petition. If the evidence were equally balanced, Buelow & Company would have failed to make out their defense; for fraud cannot be presumed.

Our learned Brother of the district court held that plaintiff was not entitled to recover as to six of the eight bales for the reason that Buelow & Company had actually paid for them and Downes had received credit at the Rayville State Bank for the proceeds of the same.

We cannot concur in this view for the reason that the Bank furnished Downes with the money with which to pay for the cotton and carried his account in the form of an open account or note and received from Downes from time to time warehouse receipts as collateral security the eight cotton tickets in question here being part of the cotton tickets so pledged to the Bank by Downes as collateral security; and the Bank having received them in good faith, it cannot be deprived of them unless fraud or laches is established against it and there has been no evidence introduced warranting us in holding that it has been.

In establishing the value of the cotton for which defendant is liable to plaintiff we think plaintiff is entitled to recover its value as of the time it demanded delivery of the cotton, for it was the duty of the Compress Company to hold the cotton until the receipts were presented and when the cotton was delivered to cancel the tickets so as to prevent them from being used again.

The price of cotton at the date delivery was demanded by plaintiff is shown by the evidence to have been 32 cents per pound and 32 cents per pound for 4120 pounds the weight of the eight bales called for by the tickets, amounts to $1318.40. But these tickets were attached to a note in favor of plaintiff for $1005.70, dated February 2, 1923, and ten per cent attorney’s fees as provided for in said note, and bearing 8 per cent per annum interest from its date until paid, and plaintiff is only entitled to judgment for the amount owing on the note.

It is therefore ordered, adjudged and decreed that the judgment of the lower court be amended and that plaintiff Rayville State Bank, do have and recover judgment against the Peoples Compress & Warehouse Company for the sum of $1005.70 with interest thereon from February 2, 1923, at the rate of eight per cent per annum until paid and ten per cent attorney’s fees and that the Compress receipts sued on be delivered to the Peoples Compress & Warehouse Company, Inc., and that defendant pay all costs.

It is further ordered, adjudged and decreed that defendant Peoples Compress & Warehouse Company, Inc., do have and recover judgment against E. A. Buelow & Company, for the sum of $1005.70 with eight per cent per annum interest thereon from February 2, 1923 and all costs of this suit.

It is further ordered, adjudged and decreed that the judgment of the lower court, insofar as it refused to pass upon the issues between E. A. Buelow & Company and George Downes remain as decreed by the district court.

And as thus modified, the judgment appealed from is affirmed.


text:
    No. 2305
    Second Circuit
    MRS. MARY WILSON, ET AL. v. HARRIS OIL COMPANY, LIMITED
    (November 4, 1925, Opinion and Decree.)

      (Syllabus by the Court)
    1. Louisiana Digest—Master and Servant —Par. 160 (j).
    In a proceeding under the Workmen’s Compensation law of Louisiana Act 20 of 1914 to obtain compensation for the death of a relative it is not enough to show that the death was probably the result of an accident but that such was the case must be made out to a legal certainty.
    Appeal from Second Judicial District Court of Louisiana, Parish of Webster, Hon. Robert Roberts, Jr., Judge.
    This is a suit filed by the widow and orphans of the deceased to recover compensation for his death under the Workmen’s Compensation Law. Defendant' denied liability.
    There was judgment for defendant rejecting plaintiffs’ demand and plaintiffs appealed.
    Judgment affirmed.
    L. K. Watkins, of Minden,. attorney for plaintiffs, appellants.
    Pugh and Boatner, of Shreveport, attorneys for defendant, appellee.
    STATEMENT OF THE CASE
    W. W. Wilson died December 2, 1923. On August 20, 1924, this suit was filed by the widow and. orphans of the deceased to recover compensation for this death under the Workmen’s Compensation Law.
    Defendant denied liability. There was judgment for defendant rejecting plaintiffs’ demand and plaintiffs appealed.
    Judgment affirmed.
   REYNOLDS, J.

OPINION

The only defense urged in this case that need be considered is, that there is no evidence that shows that accident complained of in any way caused or contributed to the death of the deceased. This is a question of fact that must be decided from the evidence. The district judge, who heard and probably knew the witnesses, decided this question of fact in favor, of the defendant.

Doctor R. Butler, a witness for plaintiffs/ testified, pages 51 'and 52:

“Q. Did you see the original wound; did you open it up?
“A. Yes, I opened up the wound.
“Q. What size was it, to start with?
“A. I just don’t know how to answer that but it was a small wound.
“Q. A mere abrasion of. the skin?
“A. Yes, sir.”
“Q. That was about five or sis weeks prior to the time that you heard of his death?
“A. At least that, yes, sir.”
“Q. Would you say that there was any connection between the healed up wound and the sudden death?
“A. Positively, I could not.
“Q. You-could not say that there was any cause and effect, one to the other?
“A. No, sir.
“Q. Doctor, if a man dies suddenly, as has been described relating to the death of Mr. Wilson, what would you say -Was the cause of that man’s death—the immediate cause at the time that he died?
“A. It would possibly be inflammation of the lining of the heart or rupture of a blood vessel—that could cause sudden death; the clot might lodge in the brain or some place like that and cause sudden death. It could be heart failure.
“Q. That would he heart failure?
“A. Yes, sir.”

Doctor M. S. Browning, the physician who last treated the wound on deceased’s hand, testified, pages 61, 62, 63 and 64:

“Q. Doctor, did you treat Mr. W. W. Wilson?
“A. Yes, sir.”
* * *
“Q. About how long after his first treatment did he come back for the second?
“A. I think it was the second day.
“Q. Was his hand better?
“A. Yes, sir, his hand was considerably better; his hand was practically well when he left there. He could use his hand and he showed, me in the office,—said, ‘see how limber my hand is’. It was practically well I considered.”
“Q. But the infection had gone away when .you last saw him?
“A. Oh, yes, I considered it entirely well when he came to me; of course his hand had not gotten back to normal but it was very well started on the way to normal the last time he came to me.
“Q. On the last treatment did you ask him to come back for treatment or did you discharge him?
“A. I told him there was no use to came back at all. I said ‘In a few days I consider that you can go back to work’, I think that observation was on Friday. He came back to me, I think, Wednesday, Tuesday or Wednesday and I think Friday was the last time I saw him and I told him that by Monday he would be able to resume his usual labor.
“Q. How long was that before you heard of his sudden death, doctor?
“A.- Well, I'would have to guess at that. It was something in the neighborhood of ten days or two weeks, something like that.
“Q. You have no record of it?
“A. I didn’t keep a record because he paid me cash for my services and where they pay cash I don’t put it on my book.”
“Q. In.the condition that his hand was in at the time that he left you and two weeks thereafter, without any further injury to his hand, is it your opinion that the injury to his hand had no connection with his sudden and untimely death about two weeks later?
“A. I would not think so—no, sir.
“Q. Your opinion is that there is no connection?
“A. My opinion and honest judgment is that it seems to me that if this hurt were going to cause his death at all it certainly would have done it while his hand was in the height of its infection. I would not think that his hand had any connection with his death whatever.”

Prom this testimony of the only physicians who testified in the case we are convinced that the decision of the district judge is correct.

We are convinced that the witnesses, J. T. Edwards, Mrs. Mary Wilson, P. H. Webb, John C. Baker, W. W. Baker, Mrs. W. W. Baker, Rantz Baker and Richard Baker, who testified for plaintiffs; are sincere in their belief that the injury to deceased’s hand, in October was the direct cause of his death in December; but none of them are doctors or trained nurses and their testimony in our opinion fails to overcome the testimony of the doctors, Butler and Browning, physicians of experience and high standing in their profession.

Por these reasons the judgment of the district court is affirmed.


text:
    No. 2413
    Second Circuit
    J. L. CARGILL v. B. C. OTWELL; RUSTON STATE BANK, Garnishee
    (December 1, 1925, Opinion and Decree.)

      (Syllabus by tlie Editor.)

    1. Louisiana Digest—Garnishment—Par. 14.
    Money loaned by a bank to be used in making a crop, secured by a duly recorded privilege on the crop and placed to the credit of the borrower under an agreement that it should only be withdrawn for the purpose for which it was loaned and under such supervision as might be necessary to satisfy the lender that it was not being used for any other purpose is not subject to garnishment by another creditor.
    2. Louisiana Digest—Obligations—Par. 50.
    Article 1764 of the Civil Code expressly provides that all things that are not prohibited, by law may legally become the subject of or the motive of contracts. Therefore a bank, in making a secured loan may stipulate conditions which would preclude another creditor from taking the deposits out of the control of the bank through a garnishment proceeding.
    3—Louisiana Digest—Garnishment— Par. 50, 51, 53.
    A person, when garnisheed, is entitled to every defense which he might urge against the defendant in the writ.
    Appeal from Third Judicial District Court of Louisiana, Parish of Lincoln, Hon. S. D. Pearce, Judge.
    This is a suit in which an attempt was made to garnishee a deposit in a bank.
    There was judgment for the bank denying the garnishment and plaintiff appealed. •
    Judgment affirmed.
    T. S. Price, of Ruston, attorney for plaintiff, appellant.
    Barksdale, Warren & McBride, of Ruston, attorneys for garnishee, appellee.
   REYNOLDS, J.

The question for decision in this case is, whether money, loaned to be used in making a crop, secured by a duly recorded privilege on the crop and placed to the credit of the borrower under an agreement that it should only be withdrawn for the purposes for which it was loaned and under such supervision as might be necessary to satisfy the lender that it was not being' used for any other purpose, is subject to garnishment?

Our learned Brother of the district court, Hon. S. D. Pearce, in a clear and convincing ■ written opinion held that the money was not subject to garnishment and so satisfied are we with its correctness that we adopt his judgment and most of his reasoning as our own.

“Plaintiff obtained' judgment by confession against defendant for the sum of $278.85, with 8% per annum interest thereon from January 1, 1921, and ten per cent attorney’s fees and costs; which judgment was on September 7, 1922. No part .of it having been paid, and suspecting that defendant had money on deposit in the Ruston State Bank, plaintiff caused a writ of fi. fa. to. issue on said judgment on February 26, 1925, and garnisheed the Ruston State Bank, or such funds or property of the defendant as might be in the hands, care and keeping of said bank.
“On the 6th day of March, 1925, the Ruston State Bank, through its President, D. M. Atkins, answered the interrogatories propounded to it as garnishee by the said judgment creditor. The questions propounded to the garnishee were the usual questions propounded to garnishees in such cases, consisting of three interrogatories, viz: (1) Have you in your hands or under your control any funds belonging to defendant, B. C. Otwell; (2) Are you indebted to said Otwell in any sum; and, (3) Have you at any time since service of this garnishment made any payment to said Otwell, or settlement of any kind with him. To each and every one of these questions the garnishee answered as follows: ‘No, except as hereinafter shown’. The garnishee then proceeds to make further answer explanatory of the business relation existing between it (the garnishee) and the judgment debtor, B. C. Otwell, at the time of the service of garnishment in the case, which relation it stated to be as follows:
“ ‘That the said Otwell, who is a farmer, being desirous of making a crop of cotton, corn, sugar cane and other agricultural products during the year 1925, and not having the means to secure supplies and other necessary advances necessary to enable him to do so, applied to the Ruston State Bank for a loan; that the said bank consented to extend the said Otwell the loan of a limited sum on terms and conditions that would protect the bank, the details of which were agreed upon between them. Under this agreement and contract, which was reduced to writing and signed up on February 24, 1925, the bank loaned Otwell four hundred dollars, to be placed to his credit on the books of said bank, and for which Otwell executed his promissory note for $452.00 with 8% interest from October 1, 1925, in favor of said bank, the interest being capitalized and included in the face of the note. On the same date and at the same time Otwell executed his note in favor of the bank for six hundred dollars, and secured the said note by a crop pledge in favor of the bank upon all ci’ops of cotton, corn, sugar cane and other agricultural products to be grown by the said Otwell during the year 1925 upon the following described land in Lincoln parish, Louisiana, viz: E% SE% Sec. 17 and S% NE% Sec. 25, T. 19 N„ R. 2 West, said lands belonging to S. M. Otwell who also signed said note for four hundred and thirty-two dollars as joint and solidary obligor. The said six hundred dollar note, secured by the crop pledge aforesaid, were delivered to and accepted by the bank as collateral security for the aforesaid loan of four hundred dollars extended by the said bank to the said Otwell.
“ ‘The said crop pledge and the said note for six hundred dollars the pledge was given to secure were executed and signed by Otwell before Max Bradley, Clerk of the District Court and ex-officio Notai'y Public for Lincoln parish, Louisiana, on February 24, 1925, and on the same date filed for record in the said office, the note having been paraphed by the said officer to identify it with the crop pledge; and both stipulating that they were for the benefit and security of the said bank.’
“The garnishee further answering to the aforesaid interrogatories deposes and says that at the time the bank made the said loan to Otwell and placed the same to his credit and subject to his check, it was fully understood between them that the loan was made solely and exclusive for the purpose of purchasing necessary supplies and defraying necessary expenses required in planting, cultivating and harvesting a crop during the year 1925, as contemplated in the said act of- pledge; the said money to remain in deposit in trust with the said bank, and not to be withdrawn, assigned or used by the said Otwell until and as xxeeded and as required for said purpose; and that under the said agreement and by virtue thereof the bank expressly reserved the right to supervise and control the disposition of the said fund to the end that it might, be paid out and appropriated for the particular purpose stipulated in the agreement; that the bank would not have made the loan nor credited the proceeds to defendant except under the said express agreement and that on account of the trust feature of the said agreement and of its control over the said funds they are not subject to seizure attachment, garnishment or any other legal process for any other purpose.
“It is further shown that the common debtor, Otwell, is without funds or credit and is insolvent; and that diversion of the said funds to any other purpose than the making of a crop this year will destroy said debtor’s ability to make a crop, and will also destroy the bank’s security on the faith of which the loan was made.
“The bank further claims that in the event the court sustains the said garnishment of said fundfe, then and in that event it insists that it is entitled to the right to compensate the aforesaid $432.00 note with the funds garnisheed herein.
“Upon the filing by the Ruston State Bank of its answers to the interrogatories propounded to it as garnishee hereinbefore stated, the plaintiff, J. L. Cargill, files herein a motion for judgment against the bank as garnishee ordering the said bank to deliver to plaintiff the money on deposit in the said bank to the credit of the debtor in execution, Otwell, in an amount sufficient to pay plaintiff’s said judgment and costs. And it is upon this motion .and the garnishee’s resistance thereof as hereinbefore set forth that the case is submitted to the court for decision.
“The legal questions involved in this contest are res nova in Louisiana law and jurisprudence, so far as this court - has been able to ascertain; hence the court is compelled to rely almost .wholly upon the law of other jurisdictions, and precedents of other jurisdictions in point appear to be none too numerous. There are, however, certain principles of law bearing upon allied questions in our own jurisdiction that appear to be fundamental. For example: While the lender of money upon a crop pledge to enable the borrower to make a crop is not expected or required to follow up the disbursement of the money so loaned and see to it that the money is used solely for the purpose it was loaned, probably, it is nevertheless true that if he knowingly permits the money to be used for a purpose other than and foreign to the purpose of planting, growing and harvesting of a crop, he loses his privilege upon the crop. And it is also true that the merchant selling the planter necessary plantation supplies to enable him to make a crop has a privilege on the crop to secure the payment of his account, for such articles as constitute necessary supplies for the making of the crop; but for such articles sold as do not constitute necessary supplies for that purpose the seller has no privilege whatever. And in neither of these cases does the privilege extend beyond the crops of the year the supplies were furnished, or the money loaned, as the case may be. And in the case of a crop pledge it was held by the court in the case of National Bank of Commerce vs. Sullivan, 117 La. 163, that a person advancing money to be used in the making of a crop must prove that it was so used in order to preserve his pledge, where the privilege is contested.
“Hence, in the case of a money lender, such as a bank, letting out money on crop pledges and placing the money so loaned to the credit of the borrower on the books of the bank subject to the checking rights of the borrower, it is of the most vital importance to the lender that he safeguard his interests by an agreement with the borrower by which the lender may control and supervise the disbursement and expenditure of the money loaned to the end that it may not be diverted from the purpose it was loaned for. This precaution is necessary as protection not only against the faithless _ or extravagant borrower, but also as against creditors of the borrower. And it would be indeed an unwise, improvident, and unjust legal system that would withhold its sanction from a business policy so sound and so imperatively necessary for the protection of those who are able to help and willing to help the needy and unfortunate, if in doing so that may not legally covenant for their safety and protection. Does the law of Louisiana deny to parties able to contract and capable of contracting the right of contracting in this way? I do not think it does. Such form of contracting is certainly not contra bonos mores; nor is it in contravention of any prohibitory law that the court knows of.
“Then what do we find the situation in this case to be? Considered according to the sworn statement of D. M. Atkins, president of Ruston State Bank, who personally made the contract with B. C. Otwell which is involved in this contest, the court finds that the bank loaned Otwell four hundred dollars to furnish him with the necessary supplies and means to make a crop this year; that the said loan was secured by a collateral note for six hundred dollars, which collateral note was secured by a crop pledge upon the crop to be grown by the debtor this year; all of which transactions were and are in writing and are before the court. That before making the loan the bank required of Otwell that he consent for the bank to supervise the expenditure of the money so loaned to the extent and for the purpose of seeing that it was used only for the purpose it was loaned, viz: for the buying of provisions and supplies and other things necessarily required in making a crop this year, and for that purpose and to that end that the bank should have possession and control of the funds, notwithstanding they were placed to the credit of the borrower on the books of the bank. This arrangement constitutes a form of trusteeship, which confers upon the bank the dual relation of both debtor and fiduciary to the borrower; and the existence of this fiduciary capacity in the holding of the funds and directing their disbursement imposes a limitation upon the rights of Otwell’s creditors. If the funds borrowed had been placed to the credit of Otwell on the books of the bank subject to his unrestricted right to check upon the same, then, and in that event the funds would have undoubtedly been subject to garnishment by hid creditors; but not so under the condition of things, agreement and contract sworn to by the president of the Ruston State Bank.
“If by the agreement and understanding between Otwell and the hank the former had limited and restricted the rights and uses he might make use of said funds, an attaching creditor could certainly exercise no greater right. Hence, if Otwell would have no right to draw out the funds and use them in paying Cargill’s judgment, because of the restrictions placed upon his use of the funds by the bank on making him the loan as the condition on which the loan was made, much less would Cargill as a creditor of Otwell have the right by seizure of said funds to apply them to his judgment and divert them from the use for which they were loaned.- This is a simple, self-evident legal axiom that cannot be refuted. There is no fraud agáinst .the debtor’s creditors, and no unfairness, in an agreement of this kind. Indeed, for the bank not to have had some such agreement and understanding, would have been, on the bank’s part, the grossest of shortsighted policy, as only in some such way could it have protected the. security it demanded and received from the borrower and the loan it had made upon that security; and the action of the bank in demanding this right, and of Otwell in granting it, is to be commended rather than criticized. It was the principal, if not only, saving clause in the transaction, insofar as the bank is concerned; and as it concerned Otwell, it was the only thing that made sure his means of making a crop this year and supporting his family. The principle of law announced above as axiomatic appears to be fundamental to the effect that a seizing creditor cannot acquire any greater right in the property of his debtor than the debtor himself has, as announced in Ruling Case Law, 12 vol. p. 778. And extending this principle a little further we find under the law on attachments that the relations previously established between the garnishee and a common debtor cannot be upset, or interfered with by garnishment proceedings at the instance of a prior creditor.
“This principle of law appears to be deeply embedded in the jurisprudence of other jurisdictions, as well as in text book-law; and it is by no means antagonistic to the law or jurisprudence of Louisiana, so far as this court has been able to learn, if in fact and on the contrary, it is not directly in line with our own jurisprudence. For’example, in the case of Fory vs. American National Bank, 136 L'a. 298, 67 South'. 10, it was held that:
“ ‘An agreement entered into between a bank and a depositor with said bank, that a certain deposit to be made in the future by said depositor shall be placed by the bank to the credit of a past due note of the depositor, which .note was held by the bank, is a binding agreement.’
“Under the title of Conventional Obligations in the Revised Civil Code of Louisiana the subject of contracts is very thoroughly discussed and provided for, and is the basis of our law of contract. Article 1764 of the Code-provides that:
“ ‘All things that are not forbidden by law, may legally become the subject of or the motive for contracts; but different agreements are governed by different rules, adapted to the nature of each contract, to distinguish which it is necessary in every contract to consider: 1. That which is the essence of the contract, etc. 2. Things which, though not essential to the contract, yet are implied from the nature of such agreement, if no stipulation be made respecting them, but which the parties may expressly modify or renounce, without destroying the contract or changing its description, etc. 3. Accidental stipulations, which belong neither to the essence nor the nature of the contract, but depend solely on the will of the parties.’ etc.
“Under the broad aegis of this principle of our civil law man. finds authority for and protection in every form of covenant necessary in the transaction of honest and legitimate business affairs of every day life. And probably in no other department of the law of our state in its relation to the laws of other states is there that confluent tendency . as is to be observed in the laws governing commercial contracts, the wisdom of which is manifest to every far-sighted business man, whether he be versed in the law or not. Let us see, then, what the common law text writers and courts of last resort of other jurisdictions have to say on this question.
“ Where a party has reserved to himself the right to discharge his obligation under the contract in several ways, he cannot be deprived of such right by garnishing creditors of the other party. The rule being that relations between the garnishee and defendant cannot be interfered with by garnishment.’
“ ‘Corpus Juris, 28 Yol. pp. 133, 134, citing Wase on Attachment, sec. 473, et seq., Drake on Attachment, secs. 517, 520, 593.
“ ‘When a deposit is set apart for a particular purpose according to express statutory sanction, it cannot be reached by garnishment at the instance of a general creditor;
“ ‘28 Corpus Juris, 117.
“ When the right of the principal- defendant in case of an attachment sued out against a third person as garnishee is subject to a right of the garnishee under a contract between them, the right of the garnisher is likewise subject to the right of the garnishee.
“ Wall vs. Norfolk & W. Ry. Co. (W. Va.) 64. L. R. A. 501.
“ ‘A garnishee has a right to set up any defence against attachment process which he could have done against the debtor in the principal action; and if the debtor be insolvent and owe the garnishee on a note not due, for which he has not sufficient security, he is not bound to risk the loss of his debt in answer to the garnishee process.
“ ‘Schuler vs. Israel, 120 U. S. 506.
“ Whatever rights the garnishee may have under existing contracts with the principal debtor, he is entitled to have the benefit of as against the attaching creditor.
“ ‘North Chicago Rolling Mill Co. vs. St. Louis, Ore Co., 152 U. S. 596.
“ ‘A garnishing creditor acquires no greater rights against the garnishee than his Judgment debtor would have had against him, had he sought to recover against the garnishee.
“ ‘Hoyt vs. Clemons, L. R. A., 1915 C., 167 Iowa 330, 149 N. W. 442.
“ ‘McAlmond vs. Bevington, 53 L. R. A., 597 (Wash.)
“ ‘A person when garnisheed is entitled to every defence which he might urge against the defendant in the writ.
‘“Mathis vs. Clark, 12 Am. Dec. 688;
“Weil vs. Tyler, 90 Am. Dec. 441;
“‘Whipple vs. Robbins, 93 Am. Dec. 64;
“ Walters vs. Washington Ins. Co., 63 Am. Dec. 451;
“ Webb vs. Miller, 57 Am. Dec. 189.
“ ‘In order, however, that a debt not presently payable may be reached by garnishment, it must be one which will become payable absolutely, and not dependent upon any contingency.
“ ‘28 (Jorpus Juris, 130.’
“It would seem that the above quoted authorities, representing as they do the larger body of law to the same effect, have a direct hearing upon the case' at bar and are decisive of the rights of the garnishee in this case. The point is lengthily and interestingly discussed by the United States Supreme Court in the above cited case of North Chicago Rolling Mill Co. vs. St. Louis Ore Co., 152 U. S. 596. In this discussion this august tribunal announced the following sound doctrine relative to the relation and the' rights of the garnisher and garnishee:
“ ‘The proposition here laid down is in harmony with the generally recognized principle that the rights of the garnisher do not rise above or extend beyond those of his debtor; that the garnishee shall not by operation of the proceedings against him be placed in any worse condition than he would have been in had the principal debtor’s claim been enforced against him directly; that the liability, legal and equitable, of the garnishee to the principal debtor is a measure of his liability to the attaching creditor, who takes the egoes of the principal debtor and can assert only the rights of the latter.’ Citing Towner vs. George, 53 Ill. 168; Richardson vs. Lester, 83 Ill. 55; Henry vs. Wilson, (Iowa) May 12, 1892; Huntington vs. Risdon, 43 Iowa 518.
“To the same effect is the decision of the same tribunal in the case of Schuler vs. Israel, 120 U. S. 506, the concluding paragraph of which decision reads as follows:
“ ‘As we understand the law concerning the condition of a garnishee in attachment, he has the same rights in defending himself against that process at the time of its service upon him that he would have had against the debtor in the suit for whose property he is called upon to account. And while it may be true that in a suit brought by Israel against the bank it could in an ordinary action at law only make plea of set off of so much of Israel’s debt to the bank as was then due, it could, by filing a bill in chancery, in such case, alleging Israel’s insolvency, and that if it was compelled to pay its own debt to Israel, the debt which Israel owed it, but which was not due, would be lost, be relieved by a proper decree in equity; and, as a garnishee is only compelled to be responsible for that which, both in law and equity, ought to have gone to pay the principal defendant in the main suit, he can set up all the defences in this proceeding which he would have in either a court of law or a court of equity.’
“Quoting U. S. vs. Vaughn, 3 Binn. 394; Shattuck vs. Smith, 16 Vt. 132; Ex parte Stephens, 11 Ves. 24; Drake on Attachment, sections 521 and 528.
“Coming back to the case in hand, if the garnisher, Cargill, by his attachment of the funds of Otwell in the hands of Ruston State Bank, the garnishee, has the legal right to have the funds so attached applied to the debt due to Cargill by Otwell, at once the bank’s crop pledge is destroyed and ceases to operate as a privilege upon Otwell’s growing crop. This would work the gravest hardship and injustice upon the bank, at whose expense Cargill would enrich himself; not on account of any wrongdoing on the part of the bank in its transaction with Otwell, for that was commendable, and was inspired by a generous motive as well as a business purppse; and the effect of it made it possible for Otwell, at the end of the year when the crop was harvested, to pay both the bank and Cargill, should the year prove to be a good crop year and Otwell make a good crop. The situation is pregnant with equity, and the equity is wholly with the bank; but it is not necessary for the court to base its judgment upon the equity of the case, even >if that' was permissible under Louisiana law, as is evident from the law hereinabove quoted.
“The bank (garnishee) would have been in a helpless and hopeless situation, insofar as getting relief .through the courts from the present state of affairs, but for the agreement it had with Otwell, the common debtor, at the time it made the loan, and the reservation of its supervisory right over the disbursement of the funds loaned to the end that they should be used only in the purchase of necessary supplies to make the crop of this year. And it made its position still more secure and its right of supervision more easy and manageable by retaining in its possession ■ the money loaned though placed to the credit of the checking account of its debtor. Indeed, by retaining actual possession of the funds loaned was the only way that supervision of their expenditure could have been exercised. There is no legal inhibition in the law of Louisiana against the reservation of this fight; and such reservation is certainly founded upon wisdom and the soundest business judgment, if, in fact, it is not the only safe way for the bank.
“Viewing the legal question presented to the court in this case as if does, and as hereinabove expressed in this opinion, the court is of the opinion that the funds loaned by the garnishee to the judgment debtor of plaintiff, and placed to the credit of said debtor on the books of the garnishee, under the agreement and understanding stated by the garnishee in its answers to the interrogatories propounded to it in this case as the basis upon which the said loan was made, and stipulations' upon which the money was to be disbursed, are not subject • to garnishment at the hands of a creditor of the borrower of the said funds; and that the garnishee is not required to turn over the said funds to the said creditor; nor is the said creditor entitled to have judgment against the garnishee on account of the said garnishment that the garnishee is entitled to he discharged from the garnishment, and the garnishment annulled and set aside, at the cost of the garnisher, J. L. Cargill. And it is so ordered.”

For these reasons, it is ordered, adjudged and decreed that the judgment appealed from be affirmed.


text:
    No. 2198
    Second Circuit
    R. A. SEXTON v. A. QUERBES, as Receiver, etc.
    (November 4, 1925, Opinion and Decree)
    (December 17, 1925, Rehearing Refused)

      (Syllabus by the Editor)

    1. Louisiana Digest—Master and Servant —Par. 154, 160 (e).
    Where an injured employee, under the Workmen’s Compensation Act No 20 of 1914, erroneously gives a receipt in full, thinking that he was temporarily injured, but when, in fact, his injuries were permanent, and such settlement was not approved by the court, the employee will not be bound by the receipt thus given.
    2. Louisiana Digest—Master and Servant —Par. 154.
    Where an injured employee recovers, under Section 8, Subsection 1 (e), of the Workmen’s Compensation Act No. 20 of 1914, his compensation should be paid during a period of one hundred weeks.
    Appeal from First Judicial District Court of Louisiana, Parish of Caddo.' Hon. T. F. Bell, Judge.
    This is a suit brought by an injured employee for compensation under the Workmen’s Compensation Act No. 20 of 1914.
    There was judgment for plaintiff and defendant appealed.
    Judgment amended and affirmed.
    Bullock & Warren, of Shreveport, attorneys for plaintiff, appellee.
    Barnette & Roberts, of Shreveport, attorneys for defendant, appellant.
   REYNOLDS, J.

This is a suit for $1042.00, payable in weekly installments of $18.00 per week, under the Workmen’s Compensation Law of Louisiana, for injury to plaintiff’s thumb and two fingers of his right hand.

Defendant denied liability on the ground that plaintiff claimed compensation for temporary total 'disability from February 3, 1923, to June 4, 1923, four months, and that defendant paid him for same the full amount claimed, $308.00, and took his receipt in full settlement for the injury, the receipt reading in part as follows:

“By this the employee acknowledges to have received the full amount due him under the terms of the agreement of settlement made under' the Workmen’s Compensation Law, and hereby releases and discharges the employer and its heirs, executors, administrators, successors and assigns of and from any and all causes of action, claims and demands whatsoever which he ever had, now has or may hereafter have, by reason of the said accident.”

And defendant alleges that plaintiff:

“Having accepted compensation for being temporarily totally disabled, that he cannot now recover any other compensation.”

There was judgment for plaintiff and defendant appealed.

OPINION

Defendant, in an able brief, insists that plaintiff’s receipt in full for all injury by which he was temporarily totally disabled bars him from recovery in this suit.

The settlement in which the receipt above referred to was taken was made and accepted in good faith but under an error of fact and, therefore, ' defendant is not bound by it either in law or equity.

Doctor Louis Abramson testified, page 10:

“Q. Dr. 'Abramson, you are tbe surgeon for the Union Indemnity Company, the examining physician for the Union Indemnity Company?
- “A. I am one. They send me a number of cases.
“Q. You know Mr. R. A. Sexton?
“A. Yes.
“Q. Did you have occasion to see him professionally in February, 1923?
“A. Yes, sir.
í ¡1> ‡
“Q. Well, at that time when he received this money, did you advis.e him about the condition of his hand? And what was your opinion? Just what did you advise him with reference to that?
“A. As far as I recall, I advised him his hand was going to get all right.
“Q. You thought it would at that time?
“A. Yes, sir.”

Plaintiff testified, page 7:

“Q. At the time you signed this document, did you accept the medical advice given you?
“A. Yes, sir.
“Q. And you signed it on the basis of that and on the face of that medical advice?
“A. Yes, sir.
“Q. Who was it particularly that advised you?
“A. Dr. Abramson.
“Q. What did you understand to be the nature and extent of the injuries at the time you signed this document from the medical advisers by Dr. Abramson, the company’s doctor?
“A. I understood my hand would be as well and would be in as good condition as before.”

Under this evidence it is clear that the plaintiff cannot be held to the receipt after he discovered on the first day that he attempted to resume work that his hand was permanently injured fifty per cent of its normal use.

Doctor Louis Abramson and Doctor Guy Caldwell in a letter to the Union Indemnity Company, dated October 4, 1923, estimate that the disability in -plaintiff’s hand is fifty per cent of its efficiency.

It is therefore apparent that both the doctors representing Union Indemnity Company and the plaintiff were in error as to the future usefulness of plaintiff’s hand at the time the receipt was given.

Plaintiff is therefore not bound by the receipt.

Besides this, Section 17 of Act 20 of 1914 provides:

“That the interested parties shall have the right to settle all matters of compensation between themselves. But all agreements of settlement shall be reduced to writing and shall be substantially in accord with the various provisions of this act, and shall be approved by the court. The agreement between employer and employee or his dependent shall be presented to the court upon joint petition of employer and employee or his dependent, which petition must be verified by both parties. The settlement so approved shall be immediately entered as the judgment of the court, and such judgment shall have the same force and effect- and may be satisfied as other judgments of the same court.”

In view of this provision of the law-plaintiff cannot be held to a receipt which has not been approved by the court.

In Craft vs. Lumber Co., 151 La. 281, 91 South. 736, the Supreme Court held:

“The settlement by an injured employee, without approval by the court, for $15.00, of his claim for compensation for which he was subsequently awarded $2970.00, was in violation of Employers’ Liability Act, Section 8, Subsection 9, and not binding on the employee.”

Defendant further claims that plaintiff, having received compensation for temporary total disability, cannot now recover any other compensation.

The Supreme Court, in Mack vs. Legeai, 144 La. 1017, 81 South. 694, held the contrary.

Under the evidence in the case and the law we are convinced that the judgment of the lower court is correct as to the amount allowed; hut, under the authority of Garr vs. Wyatt Lumber Co., 147 La. 685, the period for paying should be during 100 weeks; and the judgment is therefore so modified as to read, for the sum of thirteen hundred and fifty dollars payable in weekly installments of $13.50 each, beginning February 10, 1923, with legal interest on said installments from their respective maturities until paid; subject to a credit of three hundred and forty-two dollars to be applied to the first maturing installments.

Defendant is taxed with the costs of both courts.