author: MOUTON, J.

text:
    No. --
    First Circuit
    COBB BROS. GROCERY CO. v. BURKE
    (June 28, 1927. Opinion and Decree.)
    (See page 577, De Ridder Grocery Co. v. Clarke.)

      (Syllabus by the Editor.)
    1. Louisiana Digest — Payment—Par. 3. Payments to an adjustment company made after the account had been withdrawn by the creditor but before notification qf that fact to the debtor are valid but those made after notification are illegally made.
    Appeal from Vernon Parish. Hon. H. A. Burgess, District Judge.
    Action by Cobb Brothers Grocery Company against T. M. Burke.
    There was judgment for plaintiff and defendant appealed.
    Judgment affirmed.
    S. I. Poster, of Leesville, attorney for plaintiff, appellee.
    Hardin, Hardin & Cavanaugh, of Lees-ville, attorneys for defendant, appellant.
   MOUTON, J.

Plaintiff placed an account for collection against defendant in the hands of the Mobile Adjustment Service Company, which extended the time of payment thereon ' to defendant. This extension was without authority, and the plea of pre-maturity filed by defendant was properly overruled. Defendant paid $35.00 on the account to the Mobile Adjustment Company in installments of $5.00 each. The two last payments were made April 24, 1926, and May 22, 1926.

Plaintiff withdrew the collection of the account from the Mobile Adjustment Company, September 16, 1925, but did not notify defendant of this withdrawal with notification not to continue payments to said adjustment company until March 10, 1926. The payments of $25.00 made prior to this notification are valid, but the two on April 24, 1926, and May 22, 1926, which were subsequent thereto, were illegally made. The district judge rendered judgment for plaintiff subject to a credit of $25.00 on the account. No briefs were filed in this case by either side, but after going carefully over this record, finding no error in the judgment, it is therefore affirmed with cost.

ELLIOTT, X The authority, “In consideration of the services to be performed hy Mobile Adjustment Service, the undersigned hereby assigns to Mobile Adjustment Service the following described claims, with full power and authority to settle same and the undersigned hereby agrees to pay Mobile Adjustment Service a commission on each claim as soon as colected, satisfactoriy setted, or withdrawn, according to terms printed opposite.” And the statement at the bottom of the sheet, “Immediatey notify us of any settement made on these accounts,” when taken athogether, shows that Mobile Adjustment Service had no authority, except that of a collector, which could be withdrawn as was done, effective as to the debtor from notice of the withdrawal. As for the word “assigns” used in the agreement, see explanation in concurring opinion in De Ridder Grocery Co. vs. Varis Clark, this day decided.


source: Caselaw Access Project

author: ODOM, J.

license: Public Domain

text:
    No. 2561
    Second Circuit
    OSWEGO STATE BANK v. MAURER
    (April 8, 1927. Opinion and Decree.)
    (May 13, 1927. Rehearing Refused.)
    (July 12, 1927. Writ of Certiorari and Review Denied hy Supreme Court.)

      (Syllabus by the Court)

    1.Louisiana Digest — Bills and Notes— Par. 116, 128.
    The maker of a negotiable instrument is cut off from all equities as between himself and the original holder when such instrument has passed into the hands of third persons in due course.
    2. Louisiana Digest — Bills and Notes— Par. 183, 184, 189.
    The payment of a debt evidenced by a negotiable instrument hy the principal debtor to a holder in due course discharges the instrument.
    3. Louisiana Digest — Bills and Notes— Par. 185, 189.
    Where a holder in due course of original drafts subsequently accepts new or substitute draft in lieu of the original and collects the new -or substitute drafts when due, and applies the proceeds to the payment of the debt, the original drafts are discharged.
    4. Louisiana Digest — Bills and Notes— Par. 130, 199.
    Where two negotiable instruments are identical except as to date of issue and date of maturity, both issued to represent the same debt, the one issued as a substitute for the other, the holder of both, who has knowledge of the facts, can collect one hut not both of the drafts, where consideration was paid for only one.
    5. Louisiana Digest — Bills and Notes— Par. 233, 236.
    Evidence held to show that plaintiff in possession of two drafts paid consideration for only one, had knowledge that the second draft was issued as a substitute for the first and accepted the second draft with knowledge of all the circumstances, and collected the seco.nd draft, the proceeds of which paying in full the debt due to it by the principal debtor.
    Appeal from First Judicial District Court of Louisiana, Parish of Caddo. Hon. T. F. Bell, Judge.

      Action by Oswego State Bank against Mrs. L. M. Maurer.
    There was judgment for plaintiff and defendant appealed.
    Judgment reversed and suit dismissed.
    Barksdale, Bullock, Warren, Clark & Van Hook, of Shreveport, attorneys for plaintiff, appellee.
    Frank J. Lowney, of Shreveport, attorney for defendant, appellant.
   ODOM, J.

This is a suit on a negotiable instrument in the form of a draft for acceptance, drawn by the Pearl Roller Mill Company, on the defendant, Mrs. L. M. Maurer, accepted by her, and delivered to the drawer.

The drawer of the draft transferred it to the Oswego State Bank, a Kansas banking corporation, for a valuable consideration, before maturity, which bank is plaintiff in this suit.

The defendant refused to pay the dra|t and this suit followed.

Defendant admits that she accepted the draft, but denies liability, and sets up various grounds of defense, the chief of which is that subsequent to the acceptance of the instrument sued on she, through an arrangement with the drawer of the draft, accepted another one, for the same amount, which 'was substituted for the original, which substituted draft was paid by her at maturity to the plaintiff bank; that the second or substituted draft was delivered by the drawer to the plaintiff bank to take the place of the original which had been transferred to plaintiff for value, and that her payment 'of the second draft to plaintiff satisfied her obligation.

There was judgment for the plaintiff and defendant appealed.

OPINION

The defendant purchased a carload of flour from the Pearl Roller Mill Company, of Oswego, Kansas, the consideration being $1757.85.

On January 2, 1924, the Pearl Roller Mill Company drew two drafts on defendant, payable to its order, one for $876.00, payable February 1, 1924, and one for $881.85, payable on March 3, 1924;' the two drafts covering the amount due for the flour.

These drafts were forwarded to the First National Bank of Shreveport, Louisiana, to be presented to Mrs. L. M. Maurer for acceptance and delivery to the drawer.

She accepted them promptly, and they were returned to the mill company.

Upon receipt of the drafts, the Pearl Roller Mill Company transferred them to the plaintiff bank, the bank paying therefor the face of the drafts, less a discount of 8% and one-tenth of 1% exchange.

This transfer took place previous to the maturity of the drafts, and without any knowledge on the part of the bank that the drafts were subject to any defect or infirmity; so that the bank was a holder in due course.

The drafts seem to have gone into the hands of the bank on January 14, 1924.

Two days later, on January 16, 1924, the defendant, Mrs. Maurer, wrote the Pearl Roller Mill Company as follows:

“We note that you have dated acceptances from date flour was shipped out of Oswego, Jan. 2d. We expected to date these from date car was received which was Jan. 12th and have made our arrangements accordingly. As a great favor to us, will you arrange with the First National Bank to re-date this paper 30 and 60 days from arrival date, making it Feb. 12th and March 12th. Thanking you to give this matter attention, and for courtesies already extended, we are,
“Yours very truly.”

On January 19, 1924, the Pearl Roller Mill Company wrote Mrs. Maurer as follows:

“Replying to your favor of recent date, we note that you wish to have your papers that are due February 1st and March 3rd made payable 30 days after arrival of car, and as these papers are out of our hnds at the present time, we are making up a new set of acceptances, one for $876.00 due February 12 and one for $881.85 due March 12; these taking care of your car of flour and also giving you the additional time on same. We are sending these papers through the hank to the First National Bank of Shreveport, and would ask you to please sign same when presented, as in this manner we can give you the additional time that you desire; and in the meantime we will have your other papers recalled and will mail to you when received here.”

The new or substituted drafts were dated January 19th, 1924, one due February 12th and the other March 12th, 1924, and are for the identical amounts as the originals. These drafts were presented to Mrs. Maurer by the First National Bank of Shreveport, accepted by her and by the bank delivered to the drawer or sent to the Oswego State Bank, the testimony not making this point clear.

On February 1st, 1924, one of the original drafts, the one for $876.00, due on that date, was presented to Mrs. Maurer for payment by the First National Bank of Shreveport. She refused payment on the ground that a new draft had been substituted for this one. The draft was protested and returned.

On February 9, 1924, the Pearl Roller Mill Company wrote Mrs. Maurer as follows:

“We find that the bank has protested your paper which was due February first and for which we have received other papers. We had instructed our bank to recall this paper but through some oversight they failed to do so, and we have absorbed this protest fee ourselves and are herewith enclosing you the paper marked ‘renewed’. Regretting the error, and awaiting your further favors, we are,
“Yours truly.”

The protested draft was forwarded to Mrs. Maurer marked on its face “renewed”.

On February 12, 1924; the new or substituted draft for $876.00, dated January 19, 1924, and due February 12, 1924, was paid by Mrs. Maurer through the First National Bank of Shrevevport and the draft delivered to her.

On March 12,' 1924, the new or substituted draft for $881.85, dated January 19, 1924, and due March 12, 1924, was likewise paid by Mrs. Maurer through the First National Bank of Shrevevport and delivered to her.

Notwithstanding the promise of the Pearl Roller Mill Company in its letter of January 19, 1924, that:

“We will have your other ipapers recalled, and will mail to you when received here,”

and the statement in the letter of February 9, 1924, that:

“We had instructed our bank to recall this paper (referring to the original draft) but through some oversight they failed to do so,”

the original draft for $881.85, dated January 2, 1924, and due March 3, 1924, was never returned to Mrs. Maurer.

But, long after this draft was due and long after the new or substituted draft was due and paid, or, on June 23, 1924, the plaintiff bank wrote Mrs. Maurer as follows:

“We have today sent to the First National Bank, your city, your trade acceptance to the Pearl Roller Mill Company, $881.85, due March 3. If this is not paid upon presentation, it will be necessary for us to turn it over to an attorney' for collection.”

This was the first intimation Mrs. Maurer had that this draft was outstanding and had not been recalled and taken back by the Pearl Roller Mill Company.

In the meantime the Pearl Roller Mill Company had gone out of business, and the plaintiff bank had gone into the hands of a receiver.

The defendant, having refused to pay the draft, this suit followed on July 26, 1924.

Plaintiff’s theory and contention is that the draft sued on was acquired by it in due course and has not been paid.

If that be true, defendant is liable.

It is conceded that defendant acted in good faith all through, that she paid the debt for' which she was bound; and counsel for plaintiff, in oral argument before this court, stated that to force her to pay the amount sued for will work a great hardship upon her; but he justifies the suit upon the technical ground that plaintiff is the holder of a negotiable instrument in due course which has not been paid, and that defendant is in law cut off from all equities.

The District Judge held with the plaintiff, and, in the course of a written opinion, he said:

“This is merely another case of too much trust. Mrs. Maurer is undoubtedly the sufferer, but it is a situation which she has brought upon herself by signing duplicate drafts, knowing at the time that the other drafts were outstanding and were negotiable.”

We were, at first, much impressed by the argument of counsel for the plaintiff and the conclusion of the learned District Judge, but a thorough consideration of the record has convinced us that the plaintiff cannot recover under the testimony adduced.

Citation of authority is unnecessary to support the proposition that the maker of negotiable instruments is cut off from all equities as between himself and the original holder, when such instruments have passed into the hande of third persons in due course

But it is also true that once such instruments have been paid by the maker to such third person it is discharged.

And that is what took place here.

The plaintiff unquestionably became the holder of the draft sued on and its companion draft, in due course. It paid full value therefor to the Pearl Roller Mill Company on January 14th. On that date . Mrs. Maurer owed the amount represented by the draft. She was bound to pay the draft in the hands of the holder, regardless of any equities which may have existed between her and the Pearl Roller Mill Company.

The Pearl Roller Mill Company transferred the plaintiff its- interest in the drafts. The bank, upon the purchase of the drafts from the mill company, became the creditor of Mrs. Maurer for the amount thereof, and no more. The bank’s only right against her was to force payment of the drafts. It follows necessarily that if the debt represented by the drafts has been paid by defendant to plaintiff, it has no right to pursue her further.

We find that the testimony shows that the- debt has been paid b'y defendant.

The testimony of J. W. Marley, taken by commission, is that he was cashier and vice-president of plaintiff bank in January, 1924, and that the discount register of the bank shows that on January 14, 1924, the draft for $881.85, due March 3, 1924, this being the draft sued on, as well as the companion draft of $876.00, due February 1, 1924, were discounted by the bank.

These were the original drafts executed by defendant, and were taken over by the bank from the Pearl Roller Mill Company.

There is no testimony to show, and, in fact, no intimation, that the (plaintilf bank ever purchased from or discounted for the mill company any other draft executed by defendant. He specifically states that he knew nothing of any other draft having been purchased by the bank and that the records and books of the bank show no transaction with reference to the second set of drafts.

Mr. Marley was the one man, and the only man who testified in the case who was in position to know what transactions had taken place between the mill company and the bank. He testified that he personally handled the bills of exchange with the mill company.

We accept his testimony, therefore, as proof that the bank acquired only the original drafts and did not acquire by discount or otherwise the substituted or second drafts.

And yet the unchallenged and indisputable testimony is that both of the second or substituted drafts, which were identical with the first ones, except as to date, went through the mill company into the hands of the plaintiff bank and were paid to it by Mrs. Maurer, the debtor.

Now if, as is shown by the testimony, the plaintiff did not acquire by discount or purchase of the mill company the second or substituted drafts,- upon what basis or theory did it hold and collect them?

As above stated, it is undisputed that the new or substituted drafts were held and collected by the plaintiff bank.

The only rational conclusion is that when the mill company received the new drafts it delivered them to the plaintiff hank to take the. place of the first ones, and that as the mill company had accepted the new drafts as substitutes for the old ones the plaintiff bank accepted them from the mill company for the same purpose.

In other words, the new drafts were accepted by the bank to take the place of the old ones.

As evidence of this fact, the plaintiff bank made no protest when the defendant refused to pay the draft for $876.00 dated January 2, 1924, and due February 1, 1924, notwithstanding it had forwarded same to Shreveport for collection.

But, on the contrary, it forwarded to the same bank for collection the new draft for the same amount, which was paid by the debtor, and the proceeds remitted to it. When the other new draft, for $881.86, fell due, it was likewise sent to Shreveport for collection and paid by the debtor and the proceeds remitted by the collecting bank to plaintiff.

We note that the new drafts, both of which were collected by plaintiff, were presented for payment and were paid on the very date they were due, which is shown by the stamp of the collecting bank.

We note, also, that the original draft for $876.00, payment of which was refused, was presented for payment on the date it was due.

We note, further, that Mr. Marley, cashier of the plaintiff bank, testified that the bank always sent out these items for collection several days before they were due.

It being the bank’s custom to send out these items for collection several days before they were due, which custom is shown both by the fact that they did so send them out and by the testimony of Mr. Marley, how did it happen that the draft sued on remained in the hands of plaintiff three months and twenty days after its maturity before any demand was made for its payment?

No attempt was made by plaintiff to explain this delay.

It takes no stretch of the imagination to conclude that when the bank collected the new drafts and credited the proceeds to the mill company’s account, its claim had been paid, the transaction closed, and it pursued Mrs. Maurer no further.

The officers of the bank understood the situation.

But subsequently, the exact date not being shown, the bank went into the hands of a receiver, and it was the receiver, J. R. Stallings, who resurrected the old draft and brought suit to collect if

We have no doubt that the failure to surrender the draft sued on when the others were received was due to an oversight on the part of the officers of the bank.

Let us note another instance which stands out in the record.

The plaintiff bank acquired the original drafts on January 14, 1924. The second or new drafts were dated January 19, 1924, and were promptly forwarded to the mill- company. The new drafts were endorsed in blank; precisely as the first ones were, and were promptly delivered to' the bank by the mill company; as they bear the bank’s endorsement on January 31, 1924, we assume that they were delivered to the bank on that date.

The first of the original drafts to. mature was due on February 1, 1924, and had already been forwarded for collection.

We think the inference is clear enough that when these second drafts were delivered to the plaintiff on January 31, 1924, the mill company instructed the bank to recall the draft which it had already sent out for collection, for the mill company wrote Mrs. Maurer, on February 9, 1924, as follows:

“We had instructed our bank (referring 'to the plaintiff) to recall this paper, but through some oversight they .failed to do so.”

In a previous letter, dated January 19, 1924, the mill company had written Mrs. Maurer that the original papers were out of its hands but that upon receipt of the new drafts—

“We will have your other papers recalled and will mail to you when received here.”

There is no question but that plaintiff bank had full knowledge of the transactions between Mrs. Maurer and the mill company.

In the mill company’s letter to Mrs. Maurer it said:

“We are sending these papers through the bank to the First National Bank of Shreveport.”

While there is other testimony in the record as to who forwarded the. secon.d drafts to the First National Bank of Shreveport for Mrs. Maurer’s acceptance, yet from the statement in the mill company’s letter to the effect that they were forwarded through the bank, we accept it as a fact that the plaintiff bank forwarded the papers.

In the absence of any testimony to the contrary, we must assume, that there was no controversy between the mill company, and the. bank and that the bank was willing to accept the new drafts in lieu of the old ones, or at least was willing to surrender them.

But the patent fact as disclosed by the record is that plaintiff purchased from or discounted for the mill company only two drafts, one for $876.00 and the other for $881.85.

These identical items of indebtedness have been collected by. the plaintiff bank from Mrs. Maurer, the defendant, and her obligation to the bank therefor discharged.

The testimony of Mr. Marley, who was cashier and vice-president of the bank at the time these transactions took place, was specific that the bank purchased from the mill company only two drafts, and that he knew nothing whatever about the second set of drafts.

So that, if in fact the new or second set of drafts were not taken in lieu of the first drafts, the plaintiff paid no consideration whatever f,or the second drafts.

And yet the testimony is that the plaintiff bank collected the second set of drafts.

Plaintiff introduced in evidence two sheets purporting to be copies of the discount record of the plaintiff bank.

If these records prove anything, they put plaintiff out of court. Let’s see.

Sheet marked “Plaintiff’s 2-A” shows the following with reference to the draft sued on:

“Date of Draft — 1-2-24.
“Our No. — 541.
“Drawer or Maker — Shreveport Bakery & L. M. Maurer.
“Where Payable — P. R. Mill Co.
' “When Discounted — 1-14-24.
“When Due — 3-3-24.
“Amount — $881.85."

Above these notations, written on the sheet, is the following certificate:

“State qf Kansas.
“Labette County.
“I, John E. Wagner, assistant receiver of the Oswego State Bank, of Oswego, Kansas, hereby certifies that the following is a true and correct copy of the Discount Register of said bank, as it pertains to the item of the Shreveport Bakery, amount $881.85, now being litigated.”

This certificate is sworn to by Mr. Wagner.

. As is indicated by the dates, this is one of the original drafts.

On sheet marked “Plaintiff’s 2-2” is the following:

“Date of Draft — 1-19-24.
“Our No. — 542.
“Drawer or Maker — Shreveport Bakery, L. M. Maurer, Prop.
“Where Payable — P. R. Mill Co.
“When Discounted — 1-29.
“When Due' — 3-12-24.
“Amount — $881.85.”

Following this record entry and written on the same sheet is the following sworn certificate:

“State of Kansas.
“Labette County.
“I, John E. Wagner, assistant receiver of the Oswego State Bank of Oswego, Kansas, hereby certifies that the above is a true and correct copy 'of the Discount Register of said bank as it pertains to the item of the Shreveport Bakery, amount $881.85, now being litigated.”

This refers to one of the second drafts.

The two drafts referred to are identical, except as to dates. Wagner refers to each as “now being litigated”. But they are not each being litigated. It is only the first draft, dated January 2, 1924, due March 3, 1924, which’is in litigation.

So that if Wagner’s certificates prove anything, they prove that the two drafts evidence one item of indebtedness, $881.85, the amount “now being litigated’’. His certificates are identical as to each draft. He refers to each as “now being litigated”.

If Wagner’s understanding is correct, that is, ’that the two drafts were given to evidence the same item of indebtedness (and that is unquestionably true) the plaintiff is in a bad plight before the court, for it is undisputed that the defendant’s debt to the bank of $881.85 was paid on March 12, 1924, long before the suit was filed.

Where, as in this case, two instruments are given to evidence the same debt, the^ holder of them who has knowledge of that fact and who has, as in this case, given consideration for only one of them, can collect one but not both.

The testimony and all the circumstances, viewed as a whole, show that the plaintiff had knowledge when it accepted the new drafts from the mill company that they were given as substitutes for the first ones.

It paid nq consideration for the new drafts, but accepted them in lieu of the first ones.

Having collected the new drafts, under such circumstances the old ones were dead instruments.

Of course, if the plaintiff bank had become the holder of both sets of drafts, for a valuable consideration before maturity, the case would be different; but there is no testimony that the plaintiff was the holder of both sets of drafts in due course, in the sense that it paid consideration for each of them.

The testimony satisfies us, taking into consideration all the circumstances, that the bank had full knowledge of the fact that the mill company had taken the second drafts as substitutes for the first ones, and that, as a matter of fact, the first drafts were without consideration.

Plaintiff’s suit is without merit.'

For the reasons assigned, it is ordered, adjudged and decreed that the judgment appealed from be reversed and plaintiff’s suit dismissed at its cost in both courts.


text:
    No. 2896
    Second Circuit
    CATER v. MAGNOLIA PIPE LINE CO.
    (June 28, 1927. Opinion and Decree.)
    (July 25, 1927. Rehearing Refused.)

      (Syllabus by the Court.)

    1. Louisiana Digest — Master and Servant Par. 159.
    binder the Workmen’s Compensation Act, where the injury which the employee received was to the great toe, but where the testimony shows that the injury to the toe has extended to and involved the use of the foot so as to produce disability to perform labor of a reásonable character, plaintiff will be awarded compensation based upon the loss of the use of a foot and not upon the loss of the use of a toe.
    (The recent amendment of Act 20 of 1914 is Act 85 of 1926. — Editor’s note.)
    Appeal from the First Judicial District Court, Parish of Caddo. Hon. J. H. Stephens, Judge.
    Action by John C. Cater against Magnolia Pipe Line Company.
    There was judgment for plaintiff and defendant appealed.
    Judgment affirmed.
    Long & McSween, of Shreveport, attorneys for plaintiff, appellee.
    Pugh, Boatner & Grimmet, of Shreveport, attorneys for defendant, appellant.
   ODOM, J.

Plaintiff was employed as a common laborer by the Magnolia Pipe Line Company at $4.00 per day, working at times six and. at times seven days per week. While assisting in the unloading of a generator weighing 800 pounds from a wagqn it fell on his right foot, breaking the bones in the great .toe.

He brings this suit under the Workmen’s Compensation Act, alleging that by said accident he has been totally disabled to. do work of a reasonable character, and prays for judgment granting him compensation at $15.60 per week for the period of his disability, not exceeding 400 weeks.

The lower court found that the injury had produced partial disability to labor and fixed his compensation under paragraph (c) of Subsection 1 of Section 8, Act No. 216 of 1924, at $9.10 per week for not to exceed 125 weeks, this being 65% of the difference between What he was earning at the time he was injured, and what he was found to be able to. earn thereafter; the period of 125 weeks being fixed because under paragraph (d) of Subsection 1 of Section 8 of the. act he could not draw compensation fqr a longer period if he had suffered a total loss of the use of the foot.

Defendant appealed. ¿Plaintiff moved to amend the judgment so as to allow compensation as prayed for.

There is no dispute as to the plaintiff’s injury, except as to the extent thereof. While at work plaintiff had the bones of the great toe on the right foot broken and crushed. The net results of the injury were described by two. physicians, Doctor M. L. Adair, a radiologist, who made an x-ray of the foot about the time of the trial in October, 1926, some eight months after the injury, and Doctor E. L. Sander- . son, who examined plaintiff’s foot about ' the same time. ,. ,

Doctor Adair said the radiograph showed an old fracture of the proximal phalanx of the great toe with no. evidence of union.

“The distal end of the fracture of the proximal phalanx being upward and backward towards the proximal end of the phalanx.”

He was asked about a small bone which could be felt between the great toe and the one next to. it, and he. said:

“It don’t show any bone in between there but under the distal end there is two" sesomoid bones there and that point that you speak of I cannot make out any bone there except the normal end— the little distal end from the contact with the other — and you feel it under the surface of the big toe, under the proximal phalanx.”

He said that the x-ray showed no other fracture.

Doctor Sanderson testified:

“The great to.e appears drawn up, and behind this great toe there appears' to be a bone formation that is very tender to the touch. I judge it to be a fragment of the broken phalanx.”

He testified that plaintiff cannot put on an ordinary shoe “with that curl there, or crook”.

In answer to questions propounded to lim by the court, Doctor Sanderson said:

“No, it is not stiff. There seems to be a false joint underneath the toe. The large toe, that has segments or joints, or two phalanx and the others have three, and the great toe is like the. thumb and has two. And that has the original joint and then there seems to he a false joint where it was broken so the proximal phalanx of the great toe is what we would call a false joint there, non-union of the fracture. The toe is not stiff. The tendency of the joint is to cause the fragment to be upward and backward rearing the toe up, and the tendon pulling it back.”

He further said that he found no injury except to the great toe.

Under the above testimony defendant contends that plaintiff should be awarded compensation for twenty weeks only, for the statute provides that for the loss of a great toe the employee shall receive compensation at 65% of his wages for twenty weeks.

If the testimony as a whole showed that plaintiff had suffered no injury except the loss of a great toe, counsel’s petition would be well taken; but there is other testimony which must be considered in connection and along with the above.

The testimony shows that the injury to the toe has extended to and affected the use of the foot, so that on the date of the trial, some eight months after the date of the injury, he was disabled and incapacitated to do the work he formerly did, by reason of the fact that the injury had extended to and affected the foot.

Plaintiff testified that he was treated by physicians over a period of about two months, when he was discharged. He then tried to do the same kind of work but found that he could not stand long at a time; that he could not walk without severe pain, and could not carry a load; that standing gave him constant pain. He tried for three weeks to do the same kind of work and had to quit, and finally got employment at a filling station at $40.00' per month, and was doing that in order to pay off a debt.

Here is what the physicians say:

Doctor Adair, in addition to his testimony, as quoted above, was asked:

“Q. If a man had a great toe amputated, would that relieve his condition, do you think — would that be your testimony?
“A. I think he would have a more workable foot with that loose fragment off of the end there. I don’t know, of course, that it would stop all the trouble, but I would think that he would have a more workable foot with the amputation of that loose fragment of bone there.”

And he further said:

“I would think that any work that involved the work of the foot it would be painful as it is now.”

Doctor Sanderson said:

“I think he would have pain with' the use of the foot as it is now. * * * I don’t know that the weight would affect it as much as the movement in walking. The movement of the great toe is really the part that is used in walking.”

He further said the condition is permanent.

While the injury which plaintiff received was to the great toe, yet the testimony makes it perfectly clear that the injury has involved the use of the foot to such an extent that plaintiff is at least partially disabled to do work of a reasonable character, such work as he was capacitated to do and was doing prior to the accident.

This case, in our opinion, falls squarely Within the holding of the Supreme Court in the case of James vs. Spence & Goldstein, Inc., 161 La. 1108, 109 South. 917.

In that case the plaintiff’s injury was to the fingers of the right hand, and it was urged by counsel for the defendant that he should be paid compensation- based upon the loss of the fingers. The court found that as a result of the injury the plaintiff was unable to bend or move the middle finger and able to move the other fingers but slightly. The thumb was not involved — the hand and arm were not involved, except as a result of non-use.

The cburt said:

“As a result of the injury plaintiff is unable to close his hand, and, hence, is unable to hold in, it a tool of any description or anything at all. * * * Be that however as it may, we are clearly of the opinion that the evidence shows that the fingers alone are injured.”

But because the injury involved the use of the hand, the court declined to fix compensation as for the total loss of the fingers.

The court said, page 1113:

“That plaintiff’s case falls within Subsection (c) seems to be clear. His fingers, with the exception of his thumb, are so crippled that he is unable to close his hand or to grip anything. His injury has unfitted him for the only two occupations he knows anything about, that of carpentering and that of farming.”

Under these conditions the court fixed .he plaintiff’s compensation at 65% of ,he difference between what he was earnng and what he was able thereafter to 3arn, but limited the period of recovery o one hundred and fifty weeks, because .hat is the maximum period allowed under ,he statute for the total loss of the use of a hand.

In the case at bar, plaintiff’s injury was to the great toe, but that injury has so nvolved the foot as to disable him, but only partially. His case falls within paragraph (c), Subsection 1 of Section 8, of the statute.

But under the holding in James vs. Spence & Goldstein, Inc., supra, the period over which he may receive compensation must be limited to one hundred and twenty-five weeks, as that is the maximum period over which he could receive compensation for the total loss of the use of a foot.

The lower court found that he was.earning at the time he was injured $24.00 per week and that he was subsequently able to earn $40.00 per month, or $10.00 per week, and it fixed his compensation at 65% of the difference, or $9.10 per week, for one hundred and twenty-five weeks, and allowed for $42.00 for expenses incurred and gave credit for the amounts already paid him.

That judgment is correct, and is there-ore affirmed, with costs.


text:
    No. 2151
    Second Circuit
    SHUFF v. LIFE & CASUALTY INSURANCE CO. OF TENNESSEE
    (April 8, 1927. Opinion and Decree.)
    (May 13, 1927. Rehearing Refused.)
    (July 11, 1927. Writ of Certiorari and Review Granted by Supreme Court.)

      (Syllabus by the Court)

    1. Louisiana Digest — Insurance—Par. 45.
    Where a life and casualty insurance policy specifically provides that no obligation is assumed by the company prior to the date thereof, and not then unless the insured is in sound health, the company is not bound if the insured is not in sound health on said date, even though the policy is made out and mailed prior to the date it bears, and at a time when the insured is in sound health.
    2. Louisiana Digest — Insurance—Par. 45.
    Where a life and casualty insurance policy [provides that no obligation is assumed by the company prior to its date, the policy takes effect on the date it bears and not on the date it was made out and mailed.
    3. Louisiana Digest — Insurance—Par. 22.
    A life and casualty insurance company is not bound by the acts of one of its solicitors beyond the scope of his authority.
    4. Louisiana Digest — Insurance—Par. 20.
    A life insurance policy is a contract between the parties, who are bound according to its specific provisions.
    Appeal from the First Judicial District Court of Louisiana, Parish of Caddo. Hon. J. H. Stephens, Judge.
    Action by Robert H. Shuff against Life fe Casualty Insurance Company of Tennessee.
    There was judgment for defendant and plaintiff appealed.
    Judgment affirmed.
    Foster, Looney, Wilkinson & Smith, of Shreveport, attorneys for plaintiff, appellant.
    Blanchard, Goldstein & Walker, of Shreveport, attorneys for defendant, appellee.
   ODOM, J.

Plaintiff has appealed from a judgment rejecting his demands in an action on an insurance policy on the life of his son, Marion Eli Shuff, for th.e sum )f $1000.00, under which policy plaintiff is the beneficiary. 0

Defendant, in answer, admitted that it ssued the policy under which the suit was brought, and that the policy was in existence and had been actually delivered to the deceased several days (prior to his death; but it denies liability thereunder, its principal defense, and the only one which it is necessary to state, being that he policy specifically provided that the company assumed no obligation prior to ■he date of the policy and none then uness the insured on' said date was alive and n sound health, it being contended that >n the date of the said policy the insured ivas not in sound health but, on the conrary, was in a sanitarium, having undergone a serious operation.

STATEMENT OP THE PACTS

The insured under this policy, Marion E. Shuff, and P. P. Roper, were both' solicitors for the defendant company in the city of Shreveport. They were roommates and close friends. It was agreed between them that Roper should take Shuff’s application for a thousand-dollar policy on his life with the defendant company and that Shuff should take an application for a policy on the life of Roper’s baby and that Roper should pay Shuff’s premiums and Shuff should pay the premiums on the policy on the life of Roper’s baby.

Shuff made application for the policy on-November 24, 1922.

, He was examined by a physician on the following day and found to be in good health. The application with the physician’s certificate was forwarded to the home office of the company at Nashville, Tennessee, and accepted by the company and the policy made out and signed.

The policy is dated December 4, 1922.

It was evidently written prior to that date, for it was sent to the solicitor, Roper, by mail and was in his hands on December 4 th..

The policy was sent to Roper to be dedélivered to Shuff, a,s. it was the rule of the company to send all policies to the solicitor who had taken the application to be delivered to the insured.

Policies were delivered on Monday, as the premiums were payable weekly on that day. In order that the policy might be received by the solicitors and delivered on Monday they were made out by the company and mailed to the solicitors during the latter part of the previous week, but bore date as of the following Monday, the day on which they were to be delivered.

According to the rules of the company and under its specific instructions to the solicitors, no policy was to be delivered unless the insured was in sound health on the date of delivery. This rule was understood by both Shuff, who was himself a solicitor, and Roper, the solicitor, who received the application and to whom the policy was sent for delivery.

The policy on its face provides that:

“No obligation is assumed by the company prior to the date hereof, nor unless on said date the insured is alive and in sound health.”

The. policy also stipulates in its face that it is subject to the conditions stipulated on the reverse side thereof and that the. same are made part of the contract. On the reverse side of the policy there is printed, under the head, “Limitation of Insurance”, the following:

“Within one year from date of issuance of this policy, the liability of the co_mpany under same shall be limited under the following conditions, to the return of the premium thereon: * * *
“(2) If the insured before its date has been rejected for insurance by this or any other company, order or association, or has been attended by a physician for any serious disease or complaint; * *

It will therefore be noted that the policy in its face and also on the reverse side thereof mentions specifically the date of the policy and not the date of its delivery.

On Saturday, December 2, 1922, two days prior to the date of the policy, the insured was stricken with appendicitis and immediately consulted a physician who ordered him to a sanitarium. He underwent an operation at the sanitarium on December 3, 1922, one day before the date of the policy. He remained at the sanitarium until the date of his death, December 19, 1922.

The policy was in the hands of Roper, the solicitor, on December 4th. Roper understood that he was not permitted under the rules of the company to deliver the policy unless the insured was in sound health, and for that reason he held up delivery until the 8th, on which date he saw the insured at the sanitarium, and at the insured’s request he delivered the policy to the insured’s sister-in-law and gave as his reason for doing so at that time that the physician in charge told him that Shuff was out of danger, and could be carried home in a week.

The physician says he did not tell Roper that, and further testified that Shuff was in a critical condition from the date on which the operation was performed.

OPINION

The policy is dated December 4, 1922. It specifically provides that:

“No obligation is assumed by the company prior to the date hereof, nor unless on said date the insured is alive and in sound health.”

The insured was alive on said date, but not in sound health. Two days prior thereto he was stricken with appendicitis and underwent an operation on the 3rd of December, one day previous to the date of the policy.

It is conceded that the policy was made out and mailed by the company to Roper, the solicitor, prior to the date which it bears. Whether it was placed in the mails prior to the date on which the insured was stricken or while he was in sound health is not clear; but we think the testimony warrants that conclusion.

It is plaintiff’s contention that the contract was complete and the obligation of the company attached not on December 4th, the date thereof, but on the date the policy was deposited in the mails by the company; and he cites the cases of Chapman vs. Mutual Life Ins. Co., 146 La. 665, 83 South. 887, and Coci vs. New York Life Ins. Co., 155 La. 1065, in support of that contention.

In those cases it was held. that the policies were delivered to the insured when they were deposited in the mails addressed to the local agent.

But those cases are not in point and do not support plaintiff’s contention for obvious reasons.

In both of the cited cases the date of the delivery of the policy was material.

In the Chapman case the application for the policy, which was by its terms made a part thereof, specifically provided that:

“The proposed policy shall not take effect unless and until the first premium shall have been paid during my continuance in good health, and unless also the policy shall have been delivered to and received by me during my continuance in good health.’’

(Italics, ours.)

The application for the policy was dated September 20, 1915, was accepted by the company, and the policy issued. The policy itself was dated September 20, 1915, bearing the same date as did the application, and the future premiums were to be paid on that date. But the policy was not to take effect unless the first premium was paid and unless it was delivered while the insured was in good health. The first premium was paid by Jeter, the agent, on September 20, 1915, and the policy was mailed to him at Shreveport and was received on October 1st. On those dates the insured was in sound health. So that the date of the delivery of the policy became and was a material issue to be determined.

It was not provided that the policy was to take effect on September 20, 1915, the date thereof, provided the insured was then in good health, but provided that he should be in good health when delivered. So that under the application, which was made part of the policy, the obligation of the company came into existence not on the date of the policy provided the insured was on said date in sound health, but provided he was in sound health on the date of the delivery thereof.

The application was accepted, the first premium paid- and the policy made out, all while the insured was in sound health. The court held that delivery, as between the company and the insured, took place when the policy was placed in the mails.

In the Coci case, supra, the application, which was made part of the policy, contained the stipulation that:

“The insurance hereby applied for shall not take effect unless the first premium is paid and the policy is delivered to and received by me during my lifetime and in good health.”

The application was accepted, the first premium paid, and the policy issued and mailed to the local office in New Orleans, all while the insured was in good health, but was not actually handed to the insured until after the insured had been stricken with the malady from which he died.

The court, after stating that the jurisprudence generally is not in harmony with its holding, held, as it did in the Chapman case, that, under the circumstances, delivery of the policy took place when it was deposited in the mails.

The difference between those cases and the one at bar is this: in those cases the contract provided that the policy should not take effect unless the first premium was paid and the policies delivered while the insured was in good health.

In the case at bar the policy specifically provides that it shall not take effect unless the insured is in good health on the date thereof, to-wit: December 4, 1922, or, to quote from the policy:

“No obligation is assumed by the company prior to the date hereof, nor unless on said date the insured is alive and in sound health.”

There is not a line, not a word, in the policy with reference to the delivery thereof. Under the specific terms of the policy the company obligated itself to pay the insured $1000.00 in case of his death, not if he was alive and in sound health when the policy was delivered, but on condition that he should be alive and in sound health on December 4, 1922; and under specific arrangements with its solicitors the policy was not to be delivered until December 4, 1922, and not then unless the insured was in sound' health.

On that date the insured was alive but admittedly not in sound health. On that date he was in a sanitarium in a serious condition, having undergone an operation for appendicitis on the day previous.

Can it be stated that the court should hold that this policy took effect from' the date on which it was placed in the mails by the company in Nashville, Tennessee, when it provides in specific terms that it shall take effect on December 4, 1922, and not then unless the insured is on said date in sound health?

To so hold would be, in effect, to recast and rewrite the contract between the company and the insured; which the court cannot do.

A policy of insurance is a contract between the parties which is binding upon them as written.

Counsel for plaintiff next contend that knowledge of the agent is notice to the company, and that the company, through Roper, its solicitor, waived the conditions of the policy by delivering it when the insured was not in sound health.

In support of their contention they cite:

Union National Bank vs. Manhattan Ins. Co., 52 La. Ann. 36, 26 South. 800.

Richards vs. Springfield F. & M. Ins. Co., 114 La. 800, 38 South. 563, and cases from other jurisdictions.

None of them support the view that the insurer in this case became bound because of the fact that Roper delivered the policy with knowledge of Shuff’s condition.

In the case of Union National Bank vs. Manhattan Ins. Co., 52 La. Ann. 36, 26 South. 800, supra, the company sought to avoid the policy on account of a breach of warranty, and the court held that the company, having full knowledge of all the facts, and having, with such knowledge, accepted the premiums paid by a third person, could not be heard to set up its avoidance because of the alleged breach. of warranty.

The case of Richards vs. Springfield F. & M. Ins. Co., 114 La. 800, 38 South. 563, involved a fire policy. The policy was issued by the local agent who, said the court:

“Had full power to make the contract of insurance, to fill in the blanks, and to attach or indorse on the policy other provisions, agreements, or conditions. He was intrusted by the non-resident company with blank forms of policy, and the assured had no notice of the mandate, other than that conveyed by the policy itself, and the nature of • the agent’s employment. '
“The power to make and complete contracts differentiates such agents from solicitors and other intermediaries between the assured and the company.
“Agents, whether local or general, with power to contract, represent the company within the territorial limits to which they are assigned. ■ Their knowledge is imputed to the company, and their acts bind the company within the scope of their employment.”

The distinction between those cases and the one at bar is seen at a glance. Here, Roper was not the agent of the company but a mere solicitor. He had no power or authority to make a contract or to alter it. Not only did the company’s solicitors not have authority to alter or change the contract hut the superintendent and assistant superintendent had no such authority, for the policy in its face provides, under the head, “Alterations and Waivers”, as follows:

“Agents (which term includes superintendents and assistant superintendents) are not authorized to make, alter or discharge contracts or waive forfeitures. * * Any erasure or alteration made herein except by endorsement signed by the president, secretary, actuary, or other officer of the company, shall be void.”

See Dominick vs. Detroit F. & M. Ins. Co., 147 La. 549, 85 South. 236.

Not only did Roper have no authority to bind the company, under the terms -of the policy itself, but when he delivered the policy he violated specific instructions of the company. He and all of the other solicitors had explicit instructions not to deliver any policy unless the insured was in sound health on the date of the delivery.

. In a letter which Roper wrote to the company, which was admitted in evidence by consent, he stated that he had made a mistake. On receiving the policy, on the 4th of December, he carried it to the sanitarium where Shuff was in bed. He did not deliver it then, because Shuff was not in sound health, but did deliver it four days later, assigning as his reason for doing so that Shuff’s physician had told him he was out of danger. The physician denies this.

More than that. Shuff knew that he had no right. to the policy, for he, like Roper, was a solicitor for the company and knew the rule.

The company received no premium on the policy and waived nothing. In a premium receipt book carried by Roper and introduced in evidence, we find that he credited a payment of $1.00 on December 4th and the like amount on December 11th, December 18th and December 25th. These premiums were not sent to the company, for the reason, as we understand it, that the first premiums paid were to be retained by the solicitor as his commission.

The appearance of the book indicates that all these credits were made at one and the same time. These amounts, if paid (and we - doubt it), were not sent to the company. According to the bookt/ one payment was made six days after Shuff’s death, which occurred on December 19th.

The plaintiff made no alternative demand for the return of the premiums which he alleges were paid.

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


author: ELLIOTT, J.

text:
    No.-
    First Circuit
    BLANCHARD v. ESTATE OF HY GARLAND
    (March 8, 1927. Opinion and Decree.)
    (May 3, 1927. Rehearing Refused.)

      (Syllabus _ by the Editor)

      ,1. Louisiana Digest — Taxation—Par. 322— Registry — Par. 7.
    In view of Aót 170 of 1898, Section 53, a redemption of a tax title not recorded until several years later can have no effect against a third purchaser who purchased prior to the recordation of the redemption and after the time had passed in which to redeem the land under the tax title.
    2. Louisiana Digest — Taxation—Par. 275.
    Tax sales are under the law, legal proceedings in invitum, not based on consent or judicial process but dependent on what the assessors and tax collectors have done, and not what they may have intended to do.
    3. Louisiana Digest — Taxation—Par. 326
    A tax purchaser in possession under the tax title based on the assessment acquires the entire tract included in the adjudication; even such parts as may not have ' been particularly described but which are included in the general description of the thing sold.
    4. Louisiana Digest — Taxation—Par. 345— Possession — Par. 6.
    Marsh land is not susceptible to cultivation nor habitation; and, therefore, the owner can only exercise over it such possession as is practicable which, under present conditions, is to watch over it and pay taxes on it.
    5. Louisiana Digest — Taxation—Par. 325, 326. .
    An area of 24 acres correctly described in a tax title is as much a part of the description of the property sold as the government subdivision.
    6. Louisiana Digest — Taxation—Par. 360.
    Act 140 of 1890, which authorized tax collectors to correct errors of description in assessments and tax title gives the purchaser of land previously sold at a tax sale a right to have the matter of description of the land against former owners corrected.
    Appeal from the Parish of St. Mary. Hon. James D. Simon, Judge.
    Action by C. A. Blanchard against Estate of Hy Garland and Emmet Alpha.
    There was judgment for plaintiff and defendants appealed.
    Judgment affirmed.
    G. A. Blanchard, of Morgan City, in person, attorney for plaintiff, appellee.,
    R., L. Garland, of Opelousas, attorney for Estate of Henry L. Garland, defendant, appellant.
   ELLIOTT, J.

Action to correct alleged errors of description in tax title.

C. A. Blanchard alleged that Henry L. Garland was, on August 20, 1921, the owner of the E% of the W% of the of the SE% of Sec. 2, T. 17, S. R. 9 E., containing 240 acres of land situated' in the parish of St. Mary.

The plaintiff alleges that he is now the owner and possessor of said land by purchase at a tax sale made on June 23, 1923, for delinquent taxes due thereon assessed against Emmet Alpha for the year 1922. That said land was, at said time, recorded in the name of Emmet Alpha as owner thereof, in the conveyance records of the parish of St. Mary. That said Alpha was the owner of said land based on an assessment against Henry L. Garland on account of said land, for the year 1920, and by virtue of a tax sale from said Garland to said Alpha, based on said assessment, said tax sale bearing date March 20th, 1921.

That the tax title from Emmet Alpha to petitioner was recorded June 23rd, 1923, and that in favor of said Alpha from said Garland, on August 23, 1921, in the conveyance records of the parish of St. Mary.

Emmet Alpha made no appearance and judgment by default was entered and con- ' firmed against him. The estate of Henry L. Garland appeared and excepted to plaintiff’s petition on the ground that it disclosed no cause or right of action. The exception was over-ruled and the estate then answered, admitting the tax sale to Emmet Alpha to the extent shown by the assessment and tax title; but alleged that it had been redeemed before the expiration of the time provided by law. The tax sale to plaintiff was also admitted to the same extent, but it is alleged that the assessment and tax title against Garland, as well as that against Alpha, calls for only 40 acres of said land, and the plaintiff has no right to alter said assessment and tax titles so as to include land belonging to the estate of Henry Garland which has not been assessed nor sold for taxes. The record shows that the widow and heirs of Henry L. Garland redeemed the tax sale made to Emmet Alpha by act of redemption executed April 15, 1922; but the act was not recorded in the conveyance records of St. Mary parish until July 30, 1925.

The claim of the widow and heirs of Garland -to have paid the taxes on said land for the years 1923-4-5 is not good because not made until January 7, 1925; and what they did at that time, can have no effect, for the reason that the taxes had already been paid by Blanchard.

The land in question stood on record in the name of Henry L. Garland in the conveyance books of the parish of St. Mary at the time of said assessment against Garland, and tax sale from him to Emmet Alpha; and stood on record in the name of Emmet Alpha at the time of said assessment against Alpha, and tax title from him to Blanchard. The alleged redemption can therefore have no effect on plaintiff’s title. Act 170 of 1898, Sec. 53, Becker et al vs. Dupuy, 161 La.

Defendants contend that a tax title cannot be corrected so as to include land not assessed nor adjudicated at the tax sale. That is correct.

Ramos Lbr. & Mfg. Co. vs. Labarre, 116 La. 559, pp. 580 and 581, 40 South. 898.

Guillory vs. Elms, 126 La. 560, 52 South. 767.

Roussel vs. Ry. Realty Co., 132 La. 379, 61 South. 409, 833.

Bowers vs. Anderson, 56 Miss. 597.

Keepfer vs. Force, 86 Ind. 81.

Nelson vs. Davis, 36 Ill. 265.

Cooley on Taxation, 2nd Ed., Chap. 15 XV, pp. 514.

Blackwell on Tax Titles, 5th Ed., Vol. 2, Sec. 1078, pp. 1036.

Ruling case law, Vol. 26, Sec. 370, pp. 421.

Tax sales are under the law, legal proceedings in invitum, not based on consent or judicial process, but dependent on what the assessors and tax collectors have done, and not what they may have intended to do.

But it is also well settled that a tax purchaser in possession under his tax title based on- his assessment and failure to pay taxes, can show that although the description in the assessment and tax title may omit some parts of a tract of land, if the assessment and tax title as a whole includes and identifies the whole tract of land, as the tract owned by the tax debtor, and assessed and sold for taxes, the tax purchaser acquires under the assessment and adjudication the entire tract included in the adjudication; even such parts as may not have been particularly described, but which is included in the general description of the thing sold.

Act 140 of 1890.

Geddes vs. Cunningham, 104 La. 306, 29 South. 138.

Muller vs. Mazerat, 109 La. 116, 33 South. 104.

In re Lockhart, 109 La. 740, 33 South. 753.

New Orleans Land Co. vs. Natl. Realty Co., 121 La. 200, 46 South. 208.

Gouaux vs. Beaullieu, 123 La. 684, 49 South. 285.

Weber’s Heirs vs. Martinez, 125 La. 663, 51 South. 679.

In re Perrault’s Est. 128 La. 453, 54 South. 939.

Bannetta vs. Busbey, 131 La. 681, 60 South. 76.

Newman vs. Gleason, 132 La. 561, 61 South. 620.

Pourcian vs. Angelloz, 134 La. 1006, pp. 1007, 64 South. 888.

Landry vs. McWilliams, 35 La. 655, 65 South. 875.

Board of Com’rs vs. Concordia Land & Timber Co., 141 La. 247, 74 South. 921.

Hollingsworth vs. Schauland, 155 La. 825, 99 South. 613.

Robinson-Slagle Lbr. Co. vs. Ruby, 156 La. 179, 100 South. 965.

Pierson vs. Costell Land & Harbor Co., 159 La. 158, 105 South. 274.

The land in question is marsh land not susceptible to cultivation nor habitation. The owner can only exercise ’ over it such possession as is practicable. About all that can be done in the way of possessing it under present conditions is to watch over it and pay taxes on it. See Arts 1924 and 2247.

The Supreme Court considered the question as to what acts are necessary in order to constitute possession of low swamps and marsh lands in:

Ranson vs. Long, 13 La. Ann. 523.

Barrow vs. Wilson, 38 La. Ann. 209.

Michel vs. Stream, 48 La. Ann. 341, pp. 346, etc., 19 South. 215.

Chamberlin vs. Abadie, 48 La. Ann. 587, 19 South. 574.

South La. Land Co. vs. Riggs Cypress Co., 119 La. 193, 43 South. 1003.

McHugh vs. Albert Hanson Lbr. Co., 129 La. 680, pp. 684, 56 South. 636.

According to plaintiff’s testimony he has exercised over it as much possession as could be reasonably maintained under present conditions.

In such instances the possession of the former owners is ousted by that springing from the last title, and is by the title, vested in the title owner.

Carey vs. Cagney, 109 La. 77, 33 South. 89.

Ashley vs. Bradford, 109 La. 641, 33 South. 634.

Slattery vs. Kellum, 114 La. 282, 38 South. 170.

So the question is, does the assessment against Henry L. Garland and tax title from him to Emmet Alpha comprehend ahd include the tract of 240 acres that he owned at the time; or does it pass title to but 40 acres?

The E% of the WVz and the W% of the SE% of Sec. 2, T. 17, S. R. 9 E., are Government subdivisions, making together a tract of 240 acres.

The description in the assessment against Garland is as follows:

“Acres 240; Ey2 of of SE% Sec. T 17 S. R 9 E', F. W. Marsh Class B; 240 acres, Value $400.00;” and the description, in the tax title from Garland to Alpha follows that in the assessment.

The description in the assessment against Alpha is as follows:

“240 acres; Ey2 of of SE%, Sec. T. 17, S. R. 9 E; Fresh W. Marsh, Class B, 240 acres, value $720.00;” and the description in the tax title from Alpha to Blanchard follows that in the assessment.

The area, 240 acres, stated in the assessment against Garland and the tax title from him to Alpha is as much a part of the description of the property sold as the Government subdivision. The area named enters into the valuation of the property assessed as much as does the Government subdivision. And the tax title from Garland to Alpha is based on the area 240 acres, as much as it is on the Government subdivision. The same is true as regards the area 240 acres, stated in the assessment against Emmet Alpha, and the tax title from him to plaintiff.

The assessment against Garland, and the tax sale from him to Alpha reasonably identifies the land adjudicated to Alpha as the 240 acres belonging at the time to Garland. Garland owned the 240 acres of land and did not own any other land in the parish of St. Mary. The assessment against Alpha and tax sale to Blanchard reasonably identifies the land sold to Blanchard as the same that Alpha had acquired from Garland.

Act 140 of 1890 authorizes tax collectors to correct errors of description in assessments and tax titles as to lands comprehended in the adjudications.

In Pourciau vs. Angelloz, 134 La. 1006, pp. 1007, 64 South. 888, the Supreme Court held that a tax collector could correct a tax deed so as to conform in the matter of description with the land that had been adjudicated by him at a tax sale. Blanchard must therefore be held to have acquired by his title from Emmet Alpha the 240 acres of land which Alpha had acquired in the tax sale from Henry L. Garland; and Emmet Alpha must be held to have acquired under the assessment against and tax title from Garland the 240 acres of land which Garland owned, composing - the tract above mentioned.

As for the exception, we think plaintiff had right and cause of action under the law 140 of 1890 for the purpose of correcting his tax title to the land, in the matter of description against former owners who dispute his right and title and claim ownership in themselves.

The judgment appealed from is correct.

Judgment affirmed, defendant and appellant to pay the costs in both courts.


text:
    No. -
    First Circuit
    NETTERVILLE v. POLICE JURY OF BATON ROUGE
    (May 23, 1927. Opinion and Decree.)
    June 28, 1927. Rehearing Refused.)

      (Syllabus by the Editor.)

    1. Louisiana Digest — Obligations—Par. 10, 12.
    In view of Articles 1916 and 1918 of the Civil Code although the law does not create a legal presumption, there arises from the facts and circumstances, one of these simple presumptions, from which the court may exercise its discretion that there appeared an implied assent to the contract.
    2. Louisiana Digest — Obligations—Par. 10, 12, £6.
    Where the evidence showed that plaintiff received $2.50 per day for his work as foreman and he thereafter made a contract with his employer which was to be on a “sound basis,” will be considered an implied assent on his part to accept $2.50 per day un'der the contract.
    Appeal from the Parish of East Baton Rouge, Hon. G. Favrot, Judge.
    Action by John P. Netterville against Police Jury of Baton Rouge, et al.
    There was judgment for plaintiff and defendant contractors appealed.
    Judgment affirmed.
    Leslie A. Pitch, of Baton Rouge, attorney for plaintiff, appellee.
    John Fred Odom, District Attorney of Baton Rouge, attorney for defendant Police Jury.
    H. K. Strickland and Charles A. Holcombe, of Baton Rouge, attorneys for defendant contractors, appellants.
    Cross & Moyse, and D. J. Sanchez, of Baton Rouge, attorneys for intervenors, appellees.
   MOUTON, J.

Womack, Leblanc and London, a partnership, entered into a contract with the Police Jury of East Baton Rouge to build a public road for that Parish. They furnished bond to secure the payment of laborers, furnisher of materials, etc. Plaintiff alleges that he was employed by the contractors aforesaid as a workman and timekeeper on the road they had contracted to build at $2.50 per day, and as such, he worked from October 5, 1925, to November 29, 1925, thus earning a total of $120.00, upon which he received in part payment the sum of $14.00, leaving a balance in his favor of $106.00. He filed an affidavit of his account in the office of the recorder of the Parish of East Baton Rouge. In these proceedings he provoked a concursus, and claims a lien on funds in the hands of the defendant Police Jury. This appeal is taken from a judgment recognizing his privilege for thé amount claimed.

The contention of Womack, Leblanc and London, contractors, is that plaintiff has failed to show he had a contract with them ;that if he has any claim, it arises on a quantum meruit, and that under such a demand, he has no right to a lien or privilege under the provisions of Section 3, Act 224, 1918. In order that we may properly solve the issue thus presented it becomes necessary to determine the question as to whether plaintiff had or had not entered into a contract with the contractors to do the work upon which his demand is grounded.

Plaintiff was employed by London, one of the members of the contracting partnership, to scatter gravel on the road they were building, run the camp and supervise the hired hands. The record shows he was acting as foreman. Plaintiff testifies that before he was employed by London on this public road, he had been working for London on aonther job, for which he was getting $2.50 per day.' He says when London engaged his servvices nothing was said about the compensation he was to receive, but that he thought it would be at the same price for which he had been working on the other job. Counsel for defendants asked him if he predicated his claim on what he thought he should have; to which he answered, no, but on wat he considered a “sound basis.” Obviously, te basis to which he made reference was the amount of $2.50 per day for which he had been previously working. There is nothing to indicate that the work plaintiff had been doing for London, individually, was different in character to that in which he was employed to do on the road defendants were building. It is shown by the testimony of a laborer plaintiff had employed, n his capacity of foreman, that he was paid $2.00 per day for his work. We refer to this because it is reasonable to infer from what this laborer was receiving that there was nothing unreasonable in the employment of plaintiff at $2.50 per day. Such being the facts, it is but fair to presume that London simply transferred plaintiff to the work in question at the same price he had been paying him in his former employment, which plaintiff properly characterized as being on a “sound basis.” In the North Central Tex. Oil Co. vs. Gulf Ref. Co., 159 La. 405, 105 South. 411, in the course of the opinion, and in making reference to Article Civil Code 1916, the Court said “Actions without words, either written or spoken, are presumptive evidence of a contract when they are done under circumstances that naturally imply a consent to such contract.” The circumstances are such here, that we are forced to imply that plaintiff was put on the job for the contracting partnership by London at $2.50 per day, the same price he had been receiving in his prior employment. Article Civil Code 1918, says that: “Where the law does not create a legal presumption of consent from certain facts, then as in the ' case of other simple presumptions,' it must be left to the discretion of the Judge whether assent is to be implied from' them or not.” In this case, from the facts shown, the law does not create a legal presumption, but there arises from the facts and circumstances, one of these simple presumptions, from which the Court in the exercise of its discretion, concluded that there appeared an implied assent to the contract by which defendants and plaintiff were mutually bound. The presumption upon which the trial court rested its finding, we find, to be sufficiently weighty, precise and consistent to support the conclusions reached below.

Plaintiff is therefore entitled to the lien which he claims. The view we have taken ’of the case does away with the necessity of deciding whether plaintiff would have been- entitled to a lien if he had sued on a quantum meruit.


author: REYNOLDS, J.

text:
    No. 2504
    Second Circuit
    MAY v. YELLOW CAB CO.
    (Feb. 24, 1927. Opinion and Decree.)
    (April 8, 1927. Rehearing Refused.)
    (May 23, 1927. Writ of Certiorari and Review Granted by Supreme Court.)

      (Syllabus by the Court.)

    1. Louisiana Digest — Master and Servant —Par. 164 — Pleading—Par. 62,
    In a suit against a master to recover damages for alleged negligent acts of his servant the burden is on the plaintiff to allege and prove that the acts complained of were done by the servant within the scope of his employment.
    Godehaux vs. Texas & .Pacific Ry. Co., 144 La. 1041, 81 South. 706; Valley vs. Clay, 151 La. 710, 92 South. 308; Moore vs. Day Builders’ Supply Co., 3 La. App. 575.
    Appeal from the First Judicial District Court of Louisiana, Parish of Caddo. Hon. F. X. Ransdell, Judge.
    Action by Lawrence L. May against Yellow Cab Company, Inc.
    ' There was judgment for plaintiff and defendant appealed.
    Judgment reversed.
    Foster, Hall & Smith, of Shreveport, attorneys for plaintiff, appellee.
    Pugh, Boatner & Irwin, of Shreveport, attorneys for defendant, appellant.
   STATEMENT OF THE CASE

REYNOLDS, J.

Plaintiff sues defendant to recover $421.60 damages to his automobile caused by its being driven into a truck belonging to defendant which, he alleges, defendant’s servant had left standing in the middle of a street in the city of Shreveport without a tail light or other warning sign at night and during a heavy rain.

He alleges, in paragraph 3 of his petition, that—

“Your petitioner shows at the time of said collision that the truck ' belonging to the Yellow Cab Company, Inc., was operated and being driven by an employee of the said Yellow Cab Company, Inc.”

Defendant answered denying Lability. There was judgment in the lower court in favor of the plaintiff for $250.00, less a credit of $50.00, and defendant appealed.'

OPINION

Defendant a'sks for a reversal of the judgment appealed from solely on the' ground that plaintiff neither alleged nor proved that defendant’s servant at the time of the accident was acting within the scope of his employment.

■In able oral argument and brief counsel for ¡plaintiff contend that presumptively defendant’s servant at the time of the accident was acting within the scope of his employment and that if he was not it rested upon the defendant to allege and prove it as a special defense.

We cannot concur in this contention.

The only right of action that plaintiff had against defendant for damages sustained by him through the negligent acts of its servants flows fromArticle 2320 of the Civil Code which reads, in part, as follows:

“Masters and employers are answerable for the damage occasioned by their servants and overseers, in the exercise of the functions in which they are employed.

This article prescribes the only condition under which a plaintiff has a right of action against a master to recover damages caused by the negligent act of his servant; and the plaintiff in this action could not recover without alleging and proving that at the time of the accident defendant’s servant was acting within the scope of his employment.

The law applicable. to this case is fully set forth in Godehaux vs. Texas & Pacific Ry. Co., 144 La. 1041, 81 South. 706, wherein the Supreme Court reviewed our jurisprudence on the question of the master’s liability for the negligent acts of his servant and said:

“It is not enough, however, to support the doctrine of respondeat superior, that the quarrel that resulted in _ the tort committed by the servant arose' from and out of the business which he had authority to transact, and that he was acting within the scope of his employment at the moment when he stepped aside from the business of his master to commit the wrongful act on his own behalf and without regard for the business of the master. The responsibility of the master for a tort committed by his servant does not depend upon whether the tort was committed in the course of the employment: the test is whether the tort. was committed within the scope of ' the employment.”

And in the case of Valley vs. Clay, 151 La. 710, 92 South. 308, the Supreme Court again reviewed our jurisprudence on the question and said:

“In order to render the owner liable, the chaueur must have acted within the scope of his employment. Berry on Automobiles, 1032, 1085, 1092; Huddy on Automobiles, p. 809, No. 627. The maxim of ‘respondeat superior’ has been considered and applied by us in a number of cases, some of which are as follows: Williams vs. Pullman Palace Car Co., 40 La. Ann. 87, 3 South. 631, 8 Am. St. Rep. 512; McDermott vs. Am. Brewing Co., 105 La. 124, 29 South.; 498, 52 L. R. A. 684. 83 Am. St. Rep. 225; Dyer vs. Rieley, 28 La. Ann. 6; Gerber vs. Viosca, 8 Rob. 150; Etting vs. Comm. Bank of N. O., 7 Rob. 459; Graham vs. St. Charles Ry. Co., 47 La. Ann. 1656, 18 South. 707; 49 Am. St. Rep. 436; Queen vs. Schwann, 119 La. 495, 44 South. 275; Richoux vs. Mayer, 29 La. Ann. 828; Vara vs. Quigley Con. Co., 114 La. 262, 38 South. 162; and Godchaux vs. T. & P. Ry. Co., 144 La. 1041, 81 South. 706. The rule, as laid down in all of these cases, is that, for the master to be liable, the injury must have been caused by some act expressly or by reasonable implication within the scope of the agent’s employment. IE the service be performed inan unlawful manner, the master is liable, so long as the thing done forms a part of the servant’s duties. Nash vs. Longville Lumber Co., 148 La. 943, 88 South. 226.”

In the case of Moore vs. Day Builders Supply Co., 3 La. App. 575, this court held that—

“The master is not responsible for the tortious acts of his servant committed outside of the scope of the servant’s employment. It therefore follows that a petition that does not allege that the act of a servant complained of was committed within the scope of his' employment does not express a cause or right of action against the master.”

Under the allegations of the third paragraph of plaintiff’s petition and the authorities above cited we are convinced that plaintiff is not entitled to recover from the defendant in the absence of allegation and proof that defendant’s servant at the time of the accident was acting within the scope of his employment; and we have therefore found it unnecessary to review the evidence and pass upon the merits of the case.

For the reasons assigned, it is ordered, adjudged and decreed that the judgment appealed from be avoided and reversed and plaintiff’s demends rejected and his suit dismissed at his cost.


text:
    No. 2944
    Second Circuit
    BURNAMAN v. WEIL BROS. & BAUER
    (June 28, 1927. Opinion and Decree.)

      (Syllabus by the Court)
    1. Louisiana Digest — Appeal—Par. 625. When .the question involved is, what is the ' reasonable price for hauling cotton seed from a cotton gin to a cotton seed oil mill; the finding of the trial court will not he disturbed unless manifestly erroneous.
    Jefferson Shipbuilding Co., Inc., vs. O. M. Gwin Const. Co., 1 La. App. 768.
    Appeal from the Ninth Judicial District Court of Louisiana, Parish of Rapides. Hon. Leven L. Hooe, Judge.
    Action by A. B. Burnaman against Weil Brothers & Bauer.
    There was judgment for plaintiff and defendant appealed.
    Judgment affirmed.
    G. P. Whittington, of Alexandria, attorney for plaintiff, appellee.
    R. C. Bauer, of Alexandria, attorney for defendant, appellant.
   STATEMENT OF THE CASE

REYNOLDS, J.

This is a suit to recover judgment for $112.87 as the reasonable value of hauling 112,870 pounds of cotton seed from defendant’s Clio plantation to the oil mill of the Red River Cotton Oil Mill Company in Alexandria, Louisiana, being at the rate of $2.00 per ton.

Defendant denied that $2.00 per ton was the reasonable value of the hauling and alleged that the hauling was not worth exceeding $1.00 per .ton.

On the issues the case was tried and there was judgment in favor of the plaintiff as prayed for and the defendant appealed.

OPINION

' The sole question for decision in this ease is whether five cents per hundredweight or ten cents per hundredweight should be fixed as the reasonable value of hauling 112,870 pounds of cotton seed from defendant’s Clio plantation to the oil mill of the Red River Cotton Oil Mill Company in Alexandria, Louisiana, in September, 1926.

The witnesses who testified on the question differ widely in their estimates of the value of the work.

The lower court, however, accepted the value put upon the hauling by plaintiff and his witnesses, and we have found no reason for disturbing its conclusion.

The plaintiff, A. B. Burnaman, testified, pages 3, 4, 5, 6, 15 16:

“Q. Mr. Burnaman you allege in your petition that that hauling of these seed is well worth ten cents (10c) a cwt. Is that correct?,
“A. Yes, sir.
“Q. On what do you base that?
“A. On the expense of operating the
truck, and the price that I had to pay at
my own gin, and paid others.
“Q. Have you hauled seed from gins in that vicinity?
“A. Yes, sir.
“Q. And your basis to Weil Bros. &
Bauer was the basis that you charged to others?
“A. Yes, sir; and the proportion of mileage; on the proportion of mileage.
“Q. You stated that you were hauling seed for others, and that upon that basis you made your price of 10c per cwt. Who else were you hauling for?
“A. For Mr. Ben Cooper and Mr. Belgard.
“Q. How much farther is it from Mr. Ben Cooper’s place to the Red River Oil Mill than it is from the Clio?
“A. It is three, miles and a half from the Clio to Mr. Ben Cooper’s place by the speedometer.
“Q. How much farther is it from Mr. Belgard’s to the Red River Oil Mill Company than from Clio?
“A. It is three miles from Mr. Cooper’s to Belgard’s. It is 7.2 (seven and two-tenths) miles from Clio to the Red River Oil Mill.
"Q. Did you get the same price for hauling Mr. Cooper’s seed that you did from Mr. Weil?
“A. No, sir; I got $2.25 per ton.
“Q. And you understood that you were to get $2.00 per ton from Mr. Weil, did you?
“A. No, sir; I did not have any understanding; but that is the lowest price that is paid, by any gin around there.
“Q. Could you haul Mr. Weil’s seed at the price mentioned without losing money on it?
“A. I could not. It costs $9.35, actual expense, to drive one of these trucks with the help that they put on at Mr. Melady’s suggestion, and charges me $1.50 for the help.
“Q. What rate did you charge Mr. Cooper for hauling?
“A. Well, Judge, it was $2.00 from Clio —Weil Bros.; $2.25, Cooper; $2.50 to Belgard. It is three and a half miles from Clio to Cooper, and three miles from Cooper to Belgard.
“Q. Were you able to make more trips from Clio than you were from Mr. Cooper’s or Mr. Belgard’s?
“A. You could if you would just go and come; but you have to stand at the oil mills about the same length of time; sometimes there are three, sometimes may be four trucks ahead of you.”

Ben Cooper testified, page 9:

"Q. During the fall of 1926 did you employ Mr. Alonzo B. Burnaman to haul seed from your gin?
“A. Yes, sir.
“Q. Can you state' what price per ton you paid him for hauling that seed?
“A. Yes, sir; I can.
“Q. What price was it?
“A. It was $2.25; in fact, I contracted with Mr. Burnaman. I had an understanding personally with him. I talked it over with him.
“Q. Did you consider that a fair price for handling those seed?
“A. Yes, sir, I did; I thought that he was making money at it. In fact, I was paying him more than I could have hauled it for myself; but I wanted my men at home.”
W. B. Belgard testified, pages 13, 15;
“Q. What did you pay for moving seed from your gin to the Red River Oil Mill at Alexandria to Mr. Burnaman?
“A. Two dollars and a half ($2.50) per ton.
“Q. Did you employ anyone else to move your seed?
“A. I have a truck, but at that time the Red River Oil Mill' would sometimes get overstocked and pushed for space, and they would not let us haul regularly.
•Jí ‡ •i'
“Q. What do you consider that it cost you to move seed from your gin to the Red River Oil Mill when you used your own truck?
“A. I could not say exactly, but I think it was about $1.75 per ton; something like that.
“Q. That was actual expense?
“A. Yes, sir.
“Q. Did that allow anything for your depreciation?
“A. No, sir; that was the actual cost of labor.
“Q. You are familiar with the distance between the Clio gin and the Red River Oil Mill, and the general conditions surrounding it; now would you consider $2.00 a ton a fair price for hauling seed from Clio to Alexandria to the Red River Oil Mill, you furnishing your truck, gasoline, oil, etc. ?
“A. I think that it would he fair.
“Q. Would you consider $2.00 a ton excessive?
“A. I don’t know as I would; I suppose that would be reasonably fair from Clio to Alexandria, $2.00.
“Q. Would you be willing to haul seed from Clio to Alexandria for $1.00 per ton?
“A. No, sir; I would not make anything at it at that price.
“Q. And you consider that it is fair to charge $2.00 to haul six (6) or seven (7) miles, and $2.50 to haul twelve (12) or thirteen (13) miles?
“A. Well, the most of the labor was in the loading and unloading of the seed and not in the distance.”
W. P. Hathorn testified, pages 31, 32:
“Q. You have cotton seed hauled from your gin to the Red River Oil Mill, do you?
“A. Yes, sir.
“<$. How far is it from your gin to the Red River Oil Mill?
“A. About fifteen miles.
“Q. During the year 1926, what did you pay for hauling cotton seed to the gin?
“A. $1.75 and $2.25; the $2.25 was the price that we made, the price made by me; and the $1.75 was the price made by some negroes.
“Q. And the $2.25 was the highest price paid by you during the year?
“A. Yes, sir.”

Mack Spikes testified, pages 25, 26, 27, 28:

“Q. Mr. Sikes, you hauled seed to the Clio gin?
“A. Yes, sir.
“Q. How long?
“A. About two months.
“Q. What were you paid?
“A. Mr. Melady paid me a dollar ($1.00) a ton.
* * * *
“Q. Did you have any other occupation at that time, or were you out of work?
“A. I was out of work.
“Q. Did you haul seed for anybody else around there?
“A. No, sir.”
Louis Thiels testified, pages 26, 27, 28:
“Q. Did you haul seed for the Clio plantation?
“A. Yes, sir.
“Q. What were you paid to haul seed from the Clio' gin to the Red River Oil Mill?
“A. A dollar (1.00) a ton.
“Q. By agreement between yourself and Mr. Melady?
“A. Yes, sir.
"Q. Was your truck being put to any other use at the time that you started to hauling that cotton seed?
“A. No, sir.
“Q. Did you have help?
“A. Yes, sir; Mr. Melady furnished me help.
“Q. And paid you a dollar ($1.00) a. ton for hauling the seed?
“A. Yes, sir.
* * * *
“Q. Did you have any other employment when you were hauling these cotton seed?
“A. No, sir.”

Alphonse Thiels testified, pages 28, 29, 30:

“Q. Mr. Thiels, were you hauling cotton seed for the Clio gin?
“A. Yes, sir.
“Q. What were you paid?
‘A. A dollar ($1.00) a ton.
“Q. Why did you quit hauling?
“A. I had other wprk to do.
“Q. What work?
“A. In the fields.
“Q. What did you get for working in. the fields?
“A. Nothing.”
A. G. Melady testified, pages 21 and 24:
“Q. Mr. Cooper’s place is about three miles from Clio, is it not?
“A. Yes, sir; I always called it three and a half miles from my place, a quarter of a mile.
“Q. And Mr. Belgard’s place is about six miles above Clio? •
“A. Well, I judge he is about six and a half miles, I judge.
“Q. You state that you are familiar with the hauling of cotton seed by truck; I will ask you, where is the principal expense connected with the handling of seed? Is it in the actual running from the gin to the cotton mill, or in the loading of the seed at the gin and the unloading at the oil mill and standing in line awaiting your turn?
“A. That depends upon how it is at the oil mill; sometimes you have to wait there, and may be there are times that you don’t have to wait at all; it depends on how you get your loads and if the seed house is convenient. They have what they call seed chutes- at the gin and they dump the seed into the truck.”

From all of this evidence it seems clear to us that the price of $1.00 per ton for hauling cotton seed from Clio plantation to the Red River Oil Mill at Alexandria charged by Spikes and Thiel is not a fair guide in. arriving at the value of such hauling. They were not shown to have had any experience in operating trucks in the hauling business as a business. They were out of work when they accepted the hauling at the price of $1.00 per ton. Neither, from their evidence, appears to have allowed for interest on the amount invested in the truck with which the hauling was done, nor for its upkeep or depreciation; and they only did hauling at times when their regular farm work did not require their .attention.

W. P. Hathorn, who ginned for the public in summer, called as a witness for defendant, fixed 2.25 as a reasonable price for hauling cotton seed from his gin to the Red River Oil Mill at Alexandria, in spite of the fact that there were persons who were willing to haul from time to time at 1.75 per ton. This, in our opinion, is proof that the price at which individuals, not regularly engaged in the hauling business, were willing to haul at, from time to time, is not evidence of the true value of such work.

Mr. Ben Cooper and Mr. W. B. Belgard, who operate cotton gins in that part of the state, gave it as their opinion that the hauling of cotton seed from Clio plantation to the Red River Oil Mill at Alexandria at that time of the year was worth $2.00 per ton. Mr. Cooper, practically three miles further from the oil mill, paid $2.25 per ton for hauling seed from his gin to the oil mill, and Mr. Belgard, about three miles further, paid $2.50 per ton for hauling cotton seed between his gin and the oil mill.- This evidence we think establishes that the difference of three miles in the haul is worth a difference of twenty-five cents in the hauling price per ton; that it was worth twenty-five cents per ton more for hauling Mr. Cooper’s cotton seed and therefore it would be forth twenty-five cents per ton less for hauling Mr. Burnaman’s Clio gin, which is only three miles shorter distance. The evidence establishes, we think, that the price for the hauling of cotton seed is fixed by a system of zoning. Under the evidence the railroad fixed a price for hauling in accordance with a zoning system, and the minimum charge it made for hauling cotton seed any distance was $1.20 per ton, and the railroad company’s price for hauling cptton seed from Clio plantation to the Red River Oil Mill at Alexandria was $1.50 per ton. And the gin at Clio received from the oil mill a credit of $1.50 per ton on all seed delivered by the gin to the mill. If it was worth $1.50 per ton to haul cotton seed in carload lots by railroad, we think the price of $2.00 per ton for hauling the same distance by truck is reasonable.

R. A. Dainwood testified, pages 6, 7, 8:
“Q. Mr. Dainwood, are you employed by the Red Riv'er Oil Company?'
“A. Yes, sir.
“Q. In what capacity?
“A. Assistant manager.
* :s * *
“Q. Mr. Dainwood, are you familiar with the prices allowed by the oil mill for the hauling of seed, to the owners of the seed?
“A. Yes, sir.
“Q. That price is paid from their gin to your mill?
“A. Yes, sir.
“Q. Mr. Dainwood, is it the policy of the Red River Oil Mill to allow certain amounts to ginners for moving the seed from their plants to the Red River Oil Mill?
“A. Yes, sir, it is, when they move them with trucks.
# * i?C
“Q. Please state to the court some prices that you allow ginners on Bayou Rapides for that class of service?
“A. Six cents (0.6c) per hundred is the lowest railroad rate; it is based upon the mileage.
“Q. What is the amount you allowed Mr. Ben Cooper for his hauling?
“A. Seven cents (0.7c), I think; I am not sure but I think that we allowed him that.
“Q. Have you such -a basis for the Clio gin?
“A. Yes, sir.
“Q. Will you state what that rate is?
“A. Seven and a half cents (0.07y¡c).”

After reading all the evidence we have reached the conclusion that the judgment of the trial court is correct and, accordingly, it is affirmed.