author: REYNOLDS, J.

text:
    No. 2490
    Second Circuit
    SUGAR BROTHERS COMPANY, LTD., v. KILPATRICK
    (April 24, 1926, Opinion and Decree)

      (Syllabus by the Court.)

    1. Louisiana Digest — Pleading—Par. 118.
    In the absence of allegation and proof of error or fraud, plaintiff cannot recover on a contract marked “cancelled” or on a note attached thereto as collateral marked “paid”.
    Appeal from the Fourth Judicial District Court of Louisiana, Parish of Ouachita. Hon. W. F. Pipes, Judge ad hoc.
    Action by Sugar Brothers Company, Ltd., against A. K. Kilpatrick.
    There was judgment for defendant and plaintiff appealed.
    Judgment affirmed.
    Adolph Wolff, of Monroe, attorney for plaintiff, appellant.
    J. M. Munholland, of Monroe, attorney for defendant, appellee.
   STATEMENT OF THE CASE

REYNOLDS, J.

In this suit plaintiff asked for judgment on a contract in writing whereby defendant obligated himself to pay plaintiff $1200.00 provided certain policies of fire insurance were paid. The policies were paid and plaintiff is now suing for the amount nominated in the bond.

Defendant alleged payment and full satisfaction of the bond.

On these issues the case was tried before the Hon. W. F. Pipes as Judge ad hoe, who rendered judgment in favor of the defendant, and plaintiff has appealed.

The Judge ad hoc gave the following well-considered reasons for judgment:

“L. B. Kilpatrick was formerly in the grocery business at Monroe. Some time during the year 1922 his store and stock of goods burned. The property burned was insured against loss of fire for $5500.00. At the time of the fire L. B. Kilpatrick was heavily involved. He owed, approximately, $2000.00 more than his property was insured for. Soon after the fire his creditors threatened to start legal proceedings to protect themselves by seizing the insurance funds. Sugar Brothers Company, Limited, the plaintiff in this case, was one of these creditors. A. K. Kilpatrick, defendant herein, and a brother' of L. B. Kilpatrick, entered into a contract with the plaintiff guaranteeing that he would pay to the plaintiff $1200.00 on the day the insurance company paid the insurance, if the full amount of the policies were paid; and, if • the full amount were not paid, then he would pay 1656-7300 of the total amount that was paid. This undertaking was conditioned upon the payment by the insurance company of some portion of, the insurance carried by L. B. Kilpatrick. The full amount of the policies was paid, namely, $5500.00, and some time thereafter A. K. Kilpatrick gave to Sugar Bros, a cashier’s check for $1200.00. Upon receipt of this check — which was paid- — Sugar Bros, marked the note it held of A. K. Kilpatrick and the contract of guaranty paid, and delivered them to him. Subsequently the plaintiff sued A. K. Kilpatrick on the contract of guaranty, alleging that it had performed its part thereof but that the defendant had not complied with any part of the obligations therein assumed by him. The petition sets out in full the contract of guaranty of A. K. Kilpatrick, simply alleging that, the defendant owed it a certain amount, and no mention is made therein of the payment of $1200.00, nor is there any allegation in the petition explaining why the contract was. marked paid and the collateral security held by plaintiff receipted and surrendered to defendant.
“Defendant filed his answer and admited but denied, the indebtedness and plead the execution of the contract sued upon, payment. Defendant also filed a plea of estoppel on the grounds that the plaintiff had filed its proof in bankruptcy court, in the matter of the bankruptcy of L. B. Kilpatrick, alleging that it ‘has not, nor has any. person by his order, or to the knowledge or belief of said deponent, for the claimant’s use, had or received any manner of security for said debt whatever’. This case was tried before the Hon. Fred M. Odom, but was never decided by him, due to his election to the Court of Appeal. The theory on which the plaintiff bases its right to recover is that the payment of $1200.00 to it was no payment at all, since it had to pay this sum back to the bankrupt’s estate; and that the contract of guaranty of A. K. Kilpatrick was an individual obligation on his part to pay the debt of L. B. Kilpatrick. I am of the opinion that the plaintiff cannot recover on either of these grounds. He who alleges payment must prove it. C. C. 2232. The petition denies that any part of the obligations assumed by defendant have been paid, except $543.56, and how this was made the petition does not show; but from the testimony of plaintiff’s witnesses this amount was paid to it by the trustee of the estate of L. B. Kilpatrick, bankrupt. The defendant in his answer sets out that the obligations contained in the written contract were paid; that the plaintiff accepted payment and receipted the account in full, and thereupon delivered to defendant his note and the contract. Defendant contends that by accepting payment and giving receipt therefor, plaintiff is estopped.
“On page 7 of the record, the president of plaintiff’s firm testified on direct exam-nation that no part of the obligation assumed by A. K. Kilpatrick had been paid.
“On page 11 of the record he testified:
“Q. And do you know it (note) was marked paid because A. K. Kilpatrick came in and delivered a cashier’s check issued by a bank in Ruston for $1200.00 and demanded that note?
“A. What kind of cashier’s check?
“Q. Cashier’s check from Ruston?
“A. Payable to who?
“Q. Sugar Brothers. It was delivered at that time.
“A. Cashier’s cheek.
“Q. How much?
“A. $1200.00.
“Q. Sugar Brothers collected that check, did they?
“A. They did.
“Q. And delivered this contract and $1800.00 note and the $1200.00 mortgage note at the time?
“A. We did.
"Q. Anld marked the contract can-celled and the $1200.00 note paid?
“A. Seemingly we did.
“Q. Don’t seemingly, didn’t you do it and don’t you know it?
“A. I know that, hut still I didn’t see this particular note.
* * # #
“Q. You collected the check?
"A. We collected the check and marked the contract and notes paid.
* * * #
“Q. And you at the same time delivered a receipt in full to Lonnie Kilpatrick?
“A. A. K. Kilpatrick.
“Q. For Lonnie Kilpatrick’s debt?
“A. That’s right.
“Defendant proved by plaintiff’s own witnesses that the obligations assumed had been paid in full. Plantiff’s witness was then asked by his attorney what became of the $1200.00 and the attorney for defendant objected for the reason that such evidence was irrelevant and inadmissible under the pleadings and an attempt to enlarge the pleadings. This objection was sustained, and rightfully so, for when plaintiff sued on an obligation, alleging that it was unpaid, and the defendant answers alleging payment, and the plaintiff on the witness stand admits that payment was made, I think it is immaterial what became of the .funds, in the absence of a proper allegation in the petition to show what became ■ of them. The plaintiff offered in evidence the entire proceedings of the trustee for the bankrupt, L. B. Kilpatrick, in the suit in the U. S. court to recover the $1200.00 paid to the plaintiff herein. Objection was made to this offering and the objection was sustained with leave granted the plaintiff to attach the evidence to a bill of exceptions taken. I have carefully considered this evidence, even though I consider it inadmissible under the pleadings, and I believe that it explains thoroughly the intent of the guaranty contract.
“Paragraph three of the contract obligates the defendant to pay Sugar Bros. 75% of the debt L. B. Kilpatrick owes it, provided the insurance company pays the full amount of the insurance polices, to-wit: $5500.00. Payment was to be made on the date the insurance company paid the policies.
“Paragraph four of the contract provides that if the insurance company did not pay the full amount of the policies, then the defendant was to pay to Sugar Brothers 1636-7300 of the amount of the policies that the insurance company did pay.
“Paragraph five of the contract provides that L. B. Kilpatrick shall remain indebted to plaintiff in the sum of 75% of the total account, less 1636-7300 of the amount of insurance collected, if the amount collected is less than the total amount. If the insurance company paid nothing on the policies, then, under the contract, the defendant herein would owe the plaintiff nothing.
“On page 14 of the record, the president of the plaintiff firm testified as follows:
“Q. Now isn’t it a fact and isn’t it your understanding that the way the amount of this note for $1200.00 was arrived at was that it was 75°/o of the indebtedness of L. B. Kilpatrick 'to Sugar Bros.; that the insurance on the stock of merchandise and fixtures of L. B. Kilpatrick that was destroyed amounted to $5500.00, and that that $5500.00 was 75% of the indebtedness of L. B. Kilpatrick?
“A. That’s the tenor of the contract.
“Q. That’s what the contract is?
“A. Yes, sir.
“Q. And that this contract was required of A. K. Kilpatrick as security to Sugar Bros, that they would get 75% of that $5500.00 insurance?
“A. Yes.
“On page 4 of the- proceedings in the federal court, being evidence attached to the record on exception, the defendant testified as follows;
“Q. Mr. Kilpatrick, in that contract you obligated yourself to pay to Sugar Bros, in the event that the entire amount of the insurance was not paid the sum of $1636.73 of the sum or amount collected?
“A. Yes, sir.
“Q. How did you arrive at those figures? What was the reason for putting that clause in the contract?
“A. Well, I don’t know. That could possibly be explained better by Mr. Newton. My own idea of this contract was this, that if my brother’s fire insurance policies were paid I would guarantee Sugar Brothers that they would get their part of the money that was coming to them. In other words, I would pay them $1200.00 of whatever amount I guaranteed, and give them that if my brother received his money from the insurance policies; that he would not spend it instead of paying his debts. In other words, I just made a contract with Sugar Brothers, that they would get their part of whatever money was coming to them out of the insurance. And I had — we headed the figures up, and I think it amounted to the sum of those figures that Mr. Newton has down there.
“As the contract imposes no liability on the defendant, A. K. Kilpatrick, unless some part of the insurance was paid, I am of the opinion that it was the intention of the parties to the contract that A. K. Kilpatrick would pay to Sugar Bros. $1200.00 of the insurance money, and as this was done, the defendant has fulfilled his obligation to the plaintiff.
“Counsel for defendant has filed a brief in which he seriously urges that the plea of estoppel be sustained. I have decided the case on the merits, without considering this defense, as there is some doubt in my mind as to the merits of the plea.”

After reading all the evidence and the allegations in this case, we fully concur in the findings of the trial judge and make his reasons for judgment our reasons in this case, except as to the last clause, in which he says there is doubt in his mind as to the merits of defendant’s plea of estoppel, and as to this plea we express no opinion, as it is not necessary to a correct decision of the case on its merits.

It is therefore ordered, adjudged and decreed that the judgment appealed from be affirmed.


source: Caselaw Access Project

author: WEBB, J.

license: Public Domain

text:
    No. 2031
    Second Circuit
    RIDGEWAY v. GRAYSON
    (May 7, 1926, Opinion and Decree)

      (Syllabus by the Editor.)

    1. Louisiana Digest — Master and Servant —Par. 160 (a), 160 (j).
    Under the Employer’s Liability Act No. 20 of 1914 where special defense is that the injured employee was intoxicated at the time of the accident, the burden of proof is on the defendant to prove that defense.
    2. Louisiana Digest — Master and Servant Par. 160 (j).
    Where the testimony of the plaintiff, an injured employee suing for compensation under the Employer’s Liability Act No. 20 of 1914, is not in conflict with itself, there is no proven physical fact which would disprove it, and it is not impossible, it must be considered true.
    Appeal from the Second Judicial District Court of Louisiana, Parish of Webster, Hon. Robert Roberts, Jr., Judge.
    Action by Richard F. Ridgeway against C. H. Grayson for compensation. There was judgment for plaintiff and defendant appealed.
    Judgment affirmed.
    Kay and Plauche, of Lake Charles, attorneys for plaintiff, appellee.
    Thomas W. Robertson, Wilkinson, Lewis and Wilkinson, of Shreveport, attorneys for defendant, appellant.
   STATEMENT OF THE CASE

WEBB, J.

This is an action under the Employer’s Liability Act, in which the plaintiff recovered judgment in the district court for the sum of three thousand three hundred and eighty dollars, payable in three hundred weeks, beginning October 17, 1920, in equal installments of twelve and 50-100 dollars, with six per cent interest on each installment from maturity until paid, and all costs of suit.

The defendant appealed.

OPINION

The defense set up was that the injuries received by plaintiff were caused by his intoxication, and this is the sole ground which the defendant urges for the reversal of the judgment.

Ordinarily in cases which have been determined by the trial court solely upon questions of fact, we are warranted in affirming the judgment when it does not appear from the record to have been erroneous, especially when the testimony of the witnesses cannot be reconciled, as is the case presented by the transcript; but, in view of the fact that the testimony of the witnesses in this case was taken out of the presence of the court, it is urged that we should consider the testimony and weigh it, without regard to the judgment of the trial court.

In this we cannot wholly concur, as the trial court may ordinarily be presumed to have had knowledge of the antecedents of witnesses, their age, their experience, and other matters which may affect the weight to be given to their testimony, with relation to which the transcript may be silent, and in considering the testimony even in cases where the evidence was not taken in the presence of the court, we are of the opinion that we would not be warranted in disregarding the findings of fact of the trial court, where such findings are expressed or must be necessarily inferred from the judgment.

The scene of the accident was at a saw mill plant in the Parish of Webster and the evidence shows that among the buildings and appurtenances constituting the plant, there were a saw mill, planing mill, pumping station, and water trough, dolley way, and boarding house which are mentioned in the testimony.

The evidence indicates that the saw mill, was a one-story structure, the floor of which, however, was above the ground a distance of approximately seventeen feet, on which the machinery used in sawing the logs into lumber was placed, and underneath the floor the boilers were located; nearby the boilers was a pile of. sawdust and there were steps leading from the ground, where the boilers were placed, to the floor above. On one side of the saw mill, level with the floor, there was a platform the dimensions of which are not ■stated, and leading off from, connected with and at the same height above the ground (approximately seventeen feet) there was a dolley-way or platform about fourteen feet in width which extended in a direct line to the planing mill in which there was a boiler.

Near the saw mill there was located a pumping station and at a short distance from the pumping station a water trough and corral in which the animals used at the mill were penned.

In support of the defense E. R. Rolland, who was in the employ of the defendant as team-foreman, at the time of the accident, but who was not working for defendant at the time he testified, gave the following version of the incidents leading up to and following the accident.

He said that he had gone to the water trough about 11 o’clock p. m. and met plaintiff near the pump house; that plaintiff had been drinking and invited him to drink; that .he accepted the invitation; that plaintiff had two pop bottles of moonshine whiskey hid in the sawdust pile; which was consumed by them in the course of the hours;' that plaintiff became intoxicated to such an extent that he “staggered” when walking and that while they were walking on the tramway from the sawmill towards the planing mill the plaintiff “staggered” and in staggering fell from the ■ platform to the ground. That after plaintiff fell he, witness, went through the sawmill and down the steps to the ground and thence to where the plaintiff was lying.

He states that plaintiff was unconscious and after some time he was able to get him up and assisted him to reach the planing mill where he could lay down, and thence carried him to witness’ room and notified Grayson, the owner of the mill, of the accident.

Plaintiff, who says that he was employed as fireman and night watchman, his duties being to take care of the boilers and to fill the water-trough, for the mules, denies the statement of Rolland as to drinking with' him or that he had seen Rolland at any time during the hours of the night preceding the accident. He gave the following version of the incidents leading up to and following the accident:

He said that while making his rounds, when going from the sawmill to the planing mill, at a point on the sawmill platform, the string on his left shoe hung, causing him to stumble, and, in stumbling, he fell off the dolley-way near the point where it joined the sawmill platform; that the fall rendered him unconscious for a pend'd which he assumed was twenty-five minutes; that when he regained consciousness he went to the sawmill and pump house, thence to the planing mill where he first ascertained that his arm was broken, thence to the house where Rolland slept, whom he awakened, and by whom he was taken in, and that Rolland then went and notified Grayson. The plaintiff estimated that the time elapsing between the time of his fall and the time he called Rolland was fifty minutes.

The defendant in substance argues that the version of Rolland is the most satisfactory, in that the mind may rest after the acceptance of his version, while to accept the version of the plaintiff speculation must continue as to the manner in which the shoestring could have been hung so as to cause the plaintiff to stumble.

While this may be true, yet we do not think that the credibility of witnesses may be tested in that way; the testimony of the plaintiff is not in conflict with itself; there is no admitted or proven physical fact which conflicts with his testimony or which supports Holland's and while it may be the incident related by plaintiff is unusual, yet it does not appear as impossible.

Considering the testimony of these witnesses alone, we do not find anything which would entitle the testimony of the one to be preferred to that of the other; Rolland, it is true, is not interested but it is shown that he kept to himself the knowledge which he claims to have had of the accident, where the ordinary person, under like . circumstances, would have spoken of it, and while the plaintiff did very soon after the accident sign an instrument exonerating the defendant from fault, which it is argued supports the testimony of Rolland, yet it must be conceded that if the facts recited in the instrument be accepted as true, the plaintiff would be entitled to recover under the law.

The defendant contends that the evidence of Grayson and Dr. Puller, who were with plaintiff immediately after the accident, corroborates the statement of Rolland that plaintiff had been drinking.

The testimony of Mr. Grayson as to this:

■ “Q. Did he (plaintiff) have the appearance of being drunk at the' time you saw him? Smell whiskey?
“A. Well, he naturally had an odor — ; I could not say that I smelled whiskey— it smelt like whiskey.
“Q. You don’t know what it was?
“A.. No, sir.
“Q. Would you say that you smelled whiskey?
“A. I did not say that I did or did not, but he had an odor.”

Doctor Puller stated that he was of the opinion that plaintiff had been drinking by reason of the. chloroform not taking immediate effect, and that he detected an odor as if the plaintiff had been vomiting.

• Mr. Grayson is shown to have had the plaintiff sign an instrument purporting to release him from liability a short time after he came from under the influence of the chloroform which had been given him by Dr. Puller at the time he attended plaintiff, which was soon after the accident, and no doubt had Mr. Grayson been strongly impressed that plaintiff had been drinking he would have mentioned it in the release which was written by him.

The testimony of Mr. Grayson' as well as that of Dr. Puller as to the odor which the plaintiff had about him at the time he was treated by Dr. Puller, indicates that very slight if any impression was made upon them at that time, as to whether or not the odor was that of whiskey. Plaintiff’s manner did not indicate that he was under he influence of intoxicants and the testimony of these witnesses furnishes very slight corroboration of the testimony of Rolland.

The plaintiff- offered the testimony of two witnesses who had known him' for a long time, showing that they had never known' of his drinking, and while such tes* timony would he of little weight to prove that the plaintiff never drank, it does show that he was not addicted to the use of intoxicants, and the evidence indicating that the defendant prohibited the use of intoxicants by his employees, we are of the opinion that such evidence is entitled to consideration and to be weighed against the equivocal testimony of Mr. Grayson and Dr. Fuller as to the peculiar odor about the plaintiff, who was at that time in the room of another.

The defendant bore the burden of proof to establish that the plaintiff had been drinking, and that his injury was the result of his being intoxicated, and we are of the opinion that the preponderance of the evidence does not establish the defence.

The judgment is affirmed.


text:
    No 2609
    Second Circuit
    CATLETT v. HENRY
    (May 7, 1926, Opinion and Decree)

      (Syllabus by the Court.)

    1. Louisiana Digest — Reconvention — Par. 2.
    In order to entitle a defendant to institute a demand in reconvention, when both litigants reside in the same parish, it is requisite that such demand be necessarily connected with or incidental to the main demand.
    Appeal from the Fourth Judicial District Court of Louisiana, Parish of Ouachita, Hon. Percy Sandel, Judge.
    Action by Mrs. E. K. Catlett against J. R. Henry to have a judgment declared null. There was judgment for plaintiff and also for defendant in reconvention. Judgment as to plaintiff’s main demand affirmed but as to defendant’s reconventional demand reversed.
    Dawkins and Dawkins, of Monroe, attorneys for plaintiff, appellant.
    Theus, Grisham and Davis, of Monroe, attorneys for defendant, appellee.
   STATEMENT OF THE CASE

REYNOLDS, J.

The defendant herein obtained judgment against the plaintiff herein upon a promissory note in a suit wherein the service of citation was defective. The purpose of this suit is to have that judgment declared null. The defendant herein asks that the judgment be recognized as valid, and, in the alternative, that he have judgment in reconvention against the plaintiff herein for the amount of the principal and interest and attorney’s fees owing on the note sued on in the suit the judgment wherein is sought to be annulled. The plaintiff herein filed a motion to strike defendant’s reconventional demand from the pleadings on the ground that it was not connected with or incidental to the main demand. The motion was overruled and plaintiff reserved an exception.

The case was tried and there was judgment in favor of the plaintiff annulling the judgment .in- defendant’s suit against her and in favor of the defendant on his reconventional demand. for the amount of the principal and interest and attorney’s fees of the note sued on in the suit the sides out of .the state, or in the state, judgment wherein is sought to be annulled. The plaintiff appealed.

OPINION

The question to be decided is whether or not defendant’s reconventional .demand is necessarily connected with or incidental to the main demand.

In plaintiff’s demand the only question involved is, whether she was legally cited or hot in* defendant’s shit against her, and we are unable to see any connection between this demand and defendant’s reconventional for judgment against plaintiff for the amount' of the principal and interest and attorney’s fees of the note sued on in his suit against the plaintiff.

Defendant cites Andrews vs. Sheehy, 125 La. 217, in support of his contention.

In that case the litigants were residents of different states, and therefore the article of the Code of Practice in question had no application.

The question there decided was that in a suit by a non-resident to annul a judgment rendered • against him for want of citation and of jurisdiction in the court, it is not inconsistent for the party by whom such judgment was obtained to answer defending its validity, and, assuming the character of plaintiff in reconvention, réassert and pray for judgment on the original demand in the event the validity .of the, judgment attacked is. not; sustained, under Article 375 of the Code-of Practice.which provides:

“Provided, that, when ■ the- plaintiff rebut in a different parish from the defendant, 'said defendant may institute a demand in reconvention against him for any cause, although such demand be not necessarily connected with, or incidental to the main cause of action.” 1

This decision -is 1 not authority for holding that defendant’s reconventional demand for judgment against plaintiff for the principal, interest and attorney’s fees of the note sued on in the original action grows out of or is incidental to plaintiff’s suit to have the judgment rendered against her in that action .annulled for want of. service of citation.

Defendant further cites Article 20 of the Code of Practice, which reads as follows:

“He who has a right of action to claim what is due him, has a right yet more evident to use the same cause of action as an exception, in order to preserve his rights.”

Neither does this provision support defendant’s contention, as 'he is not here seeking to preserve any right under the judgment sought to be annulled. That judgment was a nullity and could give him no rights. The purpose of the reconventional demand is to have the court render a valid judgment in lieu of an invalid one. Whatever rights he may have had as owner and holder of the note sued on in the original suit he still has. By his re-conventional demand he is not seeking to have his rights as owner and holder of that note preserved but to make those rights executory, and this the court cannot do on his reconventional demand.

Plaintiff’s motion to strike out of the pleadings defendant’s reconventional demand should have been granted.

For these reasons, it is ordered, adjudged and decreed that the judgment appealed from, insofar as it decrees—

“* * * that the plaintiff, E. K. Catlett, do have and recover judgment against the defendants, J. R. Henry and Pat S. Hamilton, Clerk of Court in the Parish of Ouachita, State of Louisiana, declaring the citation in suit No. 13,333, entitled J. R. Henry vs. E. K. Catlett, not valid, null and void, and ordering the cancellation of the judgment rendered in that cause wherever the said judgment appears recorded with the Clerk and Recorder of the Parish of Ouachita”

be and the same is hereby affirmed. And that the judgment appealed from, insofar as it decrees—

“* * * that defendant, J. R. Henry, as plaintiff in reconvention, do have and recover judgment against the plaintiff, or defendant in reconvention, Mrs. E. K. Catlett, in the full sum of fourteen hundred ($1400.00) dollars, with eight (8%) per cent per annum interest from May 27, 1920, until paid, and ten (10%) per cent of all the said principal and interest as attorney’s fees”

be and the same is hereby reversed.

It is further ordered, adjudged and decreed that the portion of the judgment appealed from relative to costs of suit be amended so as to read as follows: Defendant, plaintiff in reconvention, to pay all costs of this suit.


text:
    No. 2568
    Second Circuit
    PIDGEON-THOMAS IRON COMPANY v. DREW BROTHERS
    (May 7, 1926, Opinion and Decree)

      (Syllabus by the Court.)

    1. Louisiana Digest — Sales—Par. 299, 300, 304.
    “He who has sold to another any movable property, which is not paid for, has a preference on the price of his property, over the other creditors of the purchaser, whether the sale was made on a credit or without, if the property still remains in the possession of the purchaser. So that although the vendor may have taken a note, bond or other acknowledgment from the buyer, he still enjoys the privilege.” (Civil Code, Article 3227.)
    Appeal from the Sixth Judicial District Court of Louisiana, Parish of Madison, Hon. F. X. Ransdell, Judge.
    Action by Pidgeon-Thomas Iron Company against Drew Brothers. There was judgment for defendants and plaintiff appealed.
    Judgment affirmed.
    R. K. Boney, of Tallulah, attorney for plaintiff, appellant.
    Drew and Drew, of Benton, attorneys for defendants and appellees.
   REYNOLDS, J.

This is a concursus proceeding instituted by Drew Brothers in which Pidgeon-Thomas Iron Company, the Louisiana Highway Commission and others were brought into court by legal citation.

The question in this case is as to the claim of the Pidgeon-Thomas Iron Company sold by Pidgeon-Thomas Iron Company to G. S. Thompson and which it claims went into the construction of Project Number 117-B constructed by Drew Brothers under contract with the Louisiana Highway Commission.

The district judge who tried the case, in a well considered written opinion, said of the claim:

“The claim of the Pidgeon-Thomas Iron Company is disallowed for the reasons that the evidence shows that G. S. Thompson, the man who purchased the iron in question from Pidgeon-Thomas Iron Company, was not a sub-contractor of Drew Brothers, that Thompson sold this iron to one of Drew Brothers, sub-contractors, and was paid for it in cash, and that there was no contractual relationship or privity of action between these parties.”

This is a finding of fact on the part of the trial court, and after reading all of the evidence in the ease we are convinced that the finding is abundantly established by the evidence.

Inasmuch as neither Drew Brothers nor any sub-contractor of theirs on Project Number 117-B purchased any material from Pidgeon-Thomas Iron Company, of course the company can have no claim on them or privilege on the contract price of the work for the price of material sold by that company to G. S. Thompson and bought by Drew Brothers from him in good faith and for cash, even though the material went into the construction of Project Number 117-B and the PidgeonThomas Company has not been paid therefor by G. S. Thompson.

As long as the material continued to belong to G. S. Thompson the PidgeonThomas Iron Company had a right of privilege on it for the unpaid price; and had G. S. Thompson been a sub-contractor of Drew Brothers and the inaterial had gone into the construction of Project Number 117-B and Pidgeon-Thomas Iron Company had duly recorded their claim for a privilege on the work to secure the payment of the price, the situation would be different; but when G. S. Thompson sold the material in good faith to Drew Brothers for cash, Pidgeon-Thomas Iron Company lost whatever claim of privilege it may have had on the material for the price.

Civil Code, Article 3227.

It is therefore ordered, adjudged and decreed that the judgment appealed from be affirmed.


text:
    No. 2597
    Second Circuit
    RUSHING v. SOUTHWESTERN GAS AND ELECTRIC COMPANY
    (April 10, 1926, Opinion and Decree)
    (May 7, 1926, Rehearing Refused)

      (Syllabus by the Editor.)

    1. Louisiana Digest — Master and Servant —Par. 160 (j).
    The plaintiff in a workmen’s compensation case under Act No. 20 of 1914 claiming total disability must prove that he was totally disabled from doing any work of a reasonable character.

      2. Louisiana Digest — Master and Servant' —par. 160 (j).
    The fact that the defendant offered the plaintiff, an injured employee, a line- , • man, .a position as a telephone opera- . tor which, was merely an apprenticeship does not prove that the injured eihployee was earning wages.
    3. Louisiana Digest — Master and Servant —Pat;. 159.
    An. injured employee, a lineman, who is unable to earn wages as such is entitled to compensaiion for permanent total disability under Section 8, Subsection 1 (b), as amended by Act 43 of 1922 of the Workmen’s Compensation Act No. 20 of 1914 even though he was offered a position of apprenticeship as a telephone operator by the defendant company.
    • Appeal from the First Judicial District Court of Louisiana, Parish of Caddo, Hon. T. F. Bell, Judge.
    Action by William B. Rushing against Southwestern Gas and Electric Company for compensation under the Workmen’s Compensation Act No. 20 of 1914. There was judgment for plaintiff and defendant appealed.
    Judgment affirmed.
    Julius T. Long, of Shreveport, attorney for plaintiff, appellee.
    E. W. and P. N. Browne, of Shreveport, attorneys for defendant, appellant.
   WEBB, J.

The plaintiff brought this suit to recover judgment against the defendant under the Employers’ .Liability Law for an alleged injury which produced total disability to do work of any reasonable character, and judgment was rendered in his favor upon that basis and defendant appealed.

OPINION

■ The defendant, Southwestern Gas & Electric Company, under a franchise furnishes fuel (gas) and electric lights in the City ■ df Shreveport, Louisiana, and the plaintiff •was in its employ as lineman, an occupation which required plaintiff to climb upon ladders and poles in order to string wires and repair same, and the injuries received were from falling (or jumping from a ladder that was about to fall) in which certain bones, etc., of his right leg and ankle as well as the bones of the left heel were broken and with relation to which injuries the physician who was called by the parties to make an examination said:

“In the present condition it is impossible for this man to do any work which requires him to be on his feet constantly, and it therefore constitutes almost a total disability for his present occupation.
“I feel, however, that this could be operated on and readjusted with considerable improvement, — certainly as much as fifty per cent improvement, but, I dare say, it could never be reduced to the point that he would have no permanent disability.’’

Other physicians who gave their opinion stated that plaintiff was disabled from doing work which would require him to be upon his feet and that the injuries were permanent.

The evidence also indicates that the plaintiff has full use of his body with the exception of the lower limbs, and he states he is unable to do any work and has not earned any wages since the injury was sustained.

The objection which the defendant takes to the judgment is that under the evidence the decree should have been based upon paragraph (c) of subsection 1 of section 8 of the statute, which reads:

“For injury producing partial disability to do work of any reasonable character, sixty-five per centum of the difference between wages at the time of injury and wages which the injured employee is able to earn thereafter during the period of disability, not, however, beyond three hundred weeks”

rather than upon' paragraph' '(b)' which reads:

" “For injury producing permanent total disability to do work of any reasonable character sixty-five per centum of wages during the period of disability, not, however, beyond four hundred weeks.”

The defendant’s position being stated, in part, as follows:

“It will be noted that under the section and subsection of the act under which plaintiff is bringing his suit, (sec. 8, paragraph b) it is the purpose of the statute to compensate an injured workman as fully and finally as he is compensated under paragraph (d), or under subsection 2- of said section 8, providing for compensation to the representative of deceased in case of death. In other words, the compensation granted by the section sued under herein is- designed to remunerate the workman as fully as he would be remunerated by reason of his death. The subsection in effect says to the injured workman and his employer: ‘Let the injured workman bring to the employer evidence of the condition described by him and on such evidence let the employer pay in money at the rate of $20.00 per week, for a total of 400 weeks, or a total sum of $8,000.00, as a complete and final remuneration for the incapacity declared on.’
“It is seen, therefore, that there is nothing tentative nor incomplete with regard to recovery under this portion of the statute, and as in the case of the loss of a member or death, full remuneration is granted. This being the case, plaintiff must prove his allegations with the same accuracy, strictness and finality in suing for compensation for total disability as he would if he had lost a member, or as his dependents would have to do if he had been killed.
“Viewed from this standpoint, there can be no middle ground. Plaintiff is either totally incapacitated to do any work of any reasonable character, or he is not. If he is so incapacitated, he is entitled to recovery. If he is not so incapacitated, he is not entitled to' recovery under subsection (b). ■
* * *
“According to • the allegations of plaintiff’s petition, and the brief filed by .his counsel, it would seem that plaintiff’s counsel' regards the two propositions set out above as being identical insofar as his right of recovery is concerned. But, in our opinion, there is no identity between them. ' Under the phraseology of our statute, the construction that mere inability to do the work he was doing at the time of the injury, where it is shown that other lines of employment are still open to him, is simply impossible, and in order to so construe the statute the court must needs read into it the words ‘work of the same kind and character that the injured employee was doing at the time of his injury’. So far as we have been able to find, the courts of Louisiana have not attempted to read these words into the statute, and the courts of no other state have so construed a statute similarly worded.”

As we understand it, the position taken is that the evidence does not show the plaintiff to be incapacitated from doing work of a reasonable character and of economic value, but, on the contrary, it establishes that plaintiff had been placed in a position (telephone operator at the defendant’s offices — which he voluntarily left) where he could do such work; that a workman who claims compensation under section 8 of the statute must present evidence which will enable the court to determine two distinct Questions of fact: the extent of the injury, that is, whether he has been partially or totally disabled from doing any work of a reasonable character, and also to determine the amount of the partial payments, and when the evidence shows the plaintiff can do any work of a reasonable character, the disability must- be held to ■ be partial, and if there is not sufficient evidence for the court -to determine the amount of wages which the .plaintiff can earn, the cause should be re-mantled for plaintiff to produce evidence upon this point.

While it appears that defendant’s position might involve a comprehensive consideration of the statute, this is not suggested nor do counsel review the decisions which would be pertinent as to this, and viewing the position of defendant in a restricted sense it appears that while counsel takes the view that the question of whether the plaitniff may have been totally disabled from doing any work of a reasonable character, and the question of the amount of the partial payments are distinct, yet that the evidence in support of the latter while it may not be sufficient to establish the amount of the partial payment may nevertheless show that the disability is not total, which we think in the last analysis presents the following propositions :

1. That plaintiff must prove that he has been totally disabled from doing any work of a reasonable character.

2. That; however convincing the proof may be that the plaintiff is totally disabled from doing any work of a reasonable character, it must be disregarded when the evidence shows that plaintiff is actually earning wages.

Gonceding the correctness of these propositons, the evidence does not show plaintiff to have earned any wages since the date of- the injury (which is conceded by defendant) and we come to the first contention, which is, that plaintiff bears the burden of proof and must- establish that he has been totally disabled from doing any work of a reasonable character.

The evidence establishes that the injury sustained by the plaintiff totally disabled him from performing the services of the. employment (which was such as to require the use of his lower limbs) in which he was engaged at the time of the injury, as well as the performance of any service where manual, labor is required, and that the plaintiff is uneducated and without training for any occupation which requires other than manual labor, and from this the court may presume that whatever service he may render or work which he could do would be rather in the capacity of an apprentice than as an employee.

The plaintiff having thus established a prima facie right to recover for total disability, the question is presented whether or not the evidence which shows that defendant offered plaintiff a position as operator of its telephone exchange in its office at a salary of one hundred and fifteen dollars overcame the prima facie showing and if so what weight is to be given to the declaration of the plaintiff that he was disabled from doing any work.

We are of the opinion that the evidence does not overcome the prima facie showing, for the reason, it clearly appears the position was not offered to plaintiff on the basis that he could earn the salary but from a desire to assist him in “finding himself” and of enabling him to learn another trade suitable to his crippled condition, and although the attitude of defendant was commendable the position was in its nature merely an apprenticeship and rather supports the position of the plaintiff that he was totally disabled at least to the extent, of earning wages, which, of course, is dependent upon many conditions. (Scott vs. Pipe Line Co., 3 La. App. —, 6 Ad Rpts. 80).

We recognize the fact that the mere declaration of one that he is -unable to do work of any reasonable character would sometimes be of little weight, but in this case, without regard to the declarations of the plaintiff, we are of the opinion he has discharged the burden of proof and that the weight of the evidence establishes the correctness of the judgment, and it is affirmed.


author: ODOM, J.

text:
    No. 2553
    Second Circuit
    BASS v. SHREVEPORT-ELDORADO PIPE LINE COMPANY, INC.
    (April 10, 1926, Opinion and Decree)

      (Syllabus by the Editor.)

    I. Louisiana Digest — Master and Servant —Par. 158.
    If an employee is injured after his day’s work was done while he was on his way to his home not anywhere near the place where he worked while he was being permitted to ride on a truck as a matter of accommodation, the accident did not arise out of or in the course of plaintiff’s employment, nor was it an incident thereto; and, therefore, he is not entitled to compensation under Workmen’s Compensation Act No. 20 of 1914.
    Appeal from the First Judicial District Court of Louisiana, Parish of Caddo. Hon. J. H. Stephens, Judge.
    Action by William Bass against Shreveport-Eldorado Pipe Line Company, Inc., for compensation under the Workmen’s Compensation Act No. 20 of 1914.
    There was judgment for plaintiff and defendant appealed.
    Judgment reversed.
    Herndon & Herndon, of Shreveport, attorneys for plaintiff, appellee.
    Wilkinson, Lewis & ■ Wilkinson, of Shreveport, attorneys for defendant, appellant.
   ODOM, J.

Plaintiff brings this suit under the Workmen’s Compensation Act (Act No. 20 of 1914 and amendments) to recover 65% of his wages for 100 weeks for the loss of an eye due to an accident which he alleges arose out of and during the course of his employment.

The defense is that the accident which caused plaintiff to lose his eye- did not arise out of or in the course of his employment, and that the occupation of “water-boy”, in which plaintiff is > engaged, is not hazardous under the statute.

There was judgment in favor of the plaintiff as prayed for and defendant appealed.

OPINION

Under the view which we take of this case on another branch, it is not necessary for us to decide whether the plaintiff as a “water-boy” was engaged in a hazardous occupation.

We find in the record the following agreed statement of facts.

“That for several days prior to August 2, 1924, plaintiff had been employed by the Shreveport-Eldorado Pipe Line Company as a water-boy in connection with its bunch of laborers, changing the location of a pipe line in the Broadmoor Subdivision in the town' of South Highlands; that on August 2, 1924, the plaintiff was paid off in full at noon and that thereafter he got on a truck owned by the defendant which was coming towards the city of Shreveport,' and as said truck approached Centenary College on the Harts island road 'into the city of Shreveport, the plaintiff jumped off 'while the same was in motion, and fell, and that when he did so a splinter stuck in his left eye, as a result of which he entirely lost the siglit of'his eye; that the Shre'veportEldorado Pipe Line Company, Incorporated, operates ' a line of pipe " from Smackover, Arkansas, to' the city of Shreveport, which line df pipé runs through' Broadmoor and was the line bf pipe 'being moved by the force of laborers, to which plaintiff was acting as water-boy.”

Elaborating -this statement somewhat, we, find in the record the testimony of the plaintiff and of two witnesses called on behalf of the defendant, one .of whom, Fred Crowder, was defendant’s timekeeper and paymaster, and the other, Norman House, the driver of defendant’s truck at the time the accident happened.

The testimony shows that defendant was laying an oil pipe line through Broadmoor, a residential section of the city of Shreveport, and for that purpose employed a number of laborers, among them the plaintiff. For about two years plaintiff had been employed by defendant as a ferryman to transport laborers and material across the river, but for about a week he had been employed as a “water-boy” to supply drinking water to the hands engaged in laying the pipe line.

About noon on Saturday, August 2, 1924, Fred Crowder, defendant’s timekeeper and paymaster, went out to Broadmoor, where the work was being done, and paid all the men, including plaintiff, the full amount due them up to that time, and plaintiff as well as the other laborers quit work. The work at' that place had been finished and the camp was being moved. ■ ■

The testimony shows that there was no understanding that plaintiff should return to work the following week, and it is certain that he was not to do any more work on that day.

Defendant, owned a large motor truck which it used to transport tools, and supplies to and from Broadmoor where the pipe line was being laid. This truck was not used for the purpose of carrying laborers to or from their work, nor was there any understanding- with the laborers that the employer should furnish them such transportation; but the laborers had been permitted, as a matter of accommodation, to . ride the truck on convenient occasions going to -or coming from their work.

Plaintiff explains his use of the truck as follows (Testimony, page §):

“Q. -Were you brought home every day in -the truck from Broadmoor?
“A. No, sir, not every day.
“Q. How did you get home?
“A. Well, when the. truck was not there I walked home, if I didn’t happen to catch a ride another way, and when the truck was there and we accidentally happened to catch the truck, we would ride on the truck also.”

At page 9 of the testimony plaintiff said:

“Well, of course, their hands, they had to carry them to wherever they were working at.”

And he was asked:

“Q. Why do you say that?
“A. Well, the reason I say that, they had been- in "the habit of carrying them to wherever the • job - was. Whenever you hires a man to work somewhere, you got to carry them wherever you are working at.”

But he does not testify that there was ever any agreement or understanding that he or the other laborers were to be carried by defendant to or from their work. His testimony,' as a whole, shows that when the truck háppened along he was permitted to get on it. and ride, .as a matter of accommodation.

Both of the witnesses for defendant testified that the truck was not used for the purpose of transporting the laborers, but say the laborers were permitted to ride to and from their work, provided it was convenient for them to do so, merely as an accommodation to them.

Defendant maintained no living or boarding quarters for its hands. They lived in different sections of the city and its suburbs and got to their work as best they could. However, when one of them could catch the truck and get a ride, hewhs permitted to do so.

Plaintiff testified' that on this particular occasion, after they had quit work and had been paid off, the hands were ordered to load the tools on the truck, which they did, and that then they were ordered to get on the truck, the operator of the truck saying: “All on” or “All aboard” or “Get aboard”.

And he said:

“Oh, yes, sir, paid off everybody, and then he said (referring, we suppose, to the driver): ‘Get aboard’, and we all got aboard of the truck and we all come on just like they had been picking us up all the time.”

Both the truck driver and Fred Crow-, der, the paymaster who was on the truck,say that plaintiff was not ordered to get on the ‘ truck ■ nor was anything said with' reference thereto.

However, even if any statement was made as to their getting on the truck, we think it w'as only a suggestion that the laborers who desired to ride had the' privilege of doing so.

According to plaintiff’s testimony and' that of defendant’s witnesses, the laborers were not carried to their homes on the truck but were allowed to ride to the point nearest their homes, where they got off and from which point they walked.

When the truck got to where plaintiff wanted to get off in order to walk on to his home, some one announced that he wanted to get off and the driver began to slow down, and while he was doing so and before the truck stopped the plaintiff jumped off and in some way fell, sticking, a splinter in his eye, which caused him to lose it.

Under such circumstances we do not think the accident which caused the loss of the plaintiff’s eye arose in the course of his employment. His day’s work was done and he had ceased to labor. He had been paid off and was on his way home. He was not at or anywhere near the place where he worked and was not on or near defendant’s premises. The accident did not occur during the period of his employment.

In a Corpus Juris treatise on workmen’s compensation acts, Mr. Donald J. Kiser says, at page 80:

“It has been said that in general terms an injury to an employee arises in the course of his employment when it occurs within the period of his employment, at a place where he may reasonably be, and while he is reasonably fulfilling the duties of his employment or engaged in doing something incidental thereto.”

And further, on page 81:

■ “The period of employment is not confined to the period for which wages are paid, and may extend beyond the hour of the employee’s actual labor, the relation of master and servant existing wherever the servant is under the master’s control and subject to his directions.”

In the case at bar the plaintiff was not reasonably fulfilling any of the duties of his employment, nor was he engaged in doing something incidental thereto. He was not at the time under defendant’s control nor subject to its directions. Plaintiff was not at the time working at all. He had quit work, had been paid off, and was going home. The only theory under which it could be urged that plaintiff was entitled to recover is that injuries received by laborers while on their way to or from their work may be said to arise out of and in the course of their employment.

As a general rule, the relation of master and servant ceases when the servant leaves the place of his employment at the close of a day’s work to go to his home.

In the case of Podgorski vs. Kerwin, a case decided by the Minnesota Supreme Court and reported in 175 Northwestern 694, it is said:

“It is a well-settled general rule that an injury suffered by an employee in going to or returning from his employer’s premises where the work of his employment is carried on, except in special instances not here involved, does not arise out of his employment so as to entitle him to compensation.”

And in the case of Arthur C. Nesbit vs. Twin City Forge & Foundry Co., 177 Northwestern 131, the same court said:

“As a general rule an injury suffered by an employee in going to or returning from his employer’s premises, where the work of his employment is carried on, does not arise out of his employment so as to entitle him to compensation under workmen’s compensation acts.”

We find no dissent from this general rule.

The courts, however, generally recognize an exception to the general rule as follows:

“Where the employee is injured while riding to or from his work in a conveyance provided by the employer, after the real beginning of the employment, in compliance with one of the implied or express terms of the contract of employment, for the mere use of the employees, and is one which the employees are required, or as a matter of right are permitted, to use by virtue of the contract, the injury may be held to have arisen out of and in the course of the employment so as to entitle the employee to compensation.”

In an elaborate case note found in 10 A. L. R. 169, the general rule is thus stated:

“It is generally held that where transportation is furnished by an employer as an incident of the employment, an injury suffered by an employee in going or coming in a vehicle so furnished by the employer and under his control, arises out of and is within the course of his employment within the meaning of workmen’s compensation acts.”

And in support of the text the annotator cites cases from California, Connecticut, Maryland, Massachusetts, Minnesota, New York, Wisconsin and England.

The above note is suplemented by one found in 21 A. L. R. 1223 where more recent cases are cited and reviewed to the same effect.

A reading of the cases cited, where the courts have held that an accident to an employee, while riding to or from his work, arises out of and during the course of his employment, will disclose that in such cases the transportation was furnished by the employer as an incident of the contract of employment or was part of the consideration therefor. But, so far as we have been able to find, no court has held that an employee was entitled to compensation when injured on his way to or from his work unless he was being transported by the employer under circumstances as above outlined.

The case of Lagrone vs. McIntyre Lumber Company, 1 La. App. 564, Courts of Appeal reports, is referred to in support of the theory that the injury which plaintiff in this case received happened in the course of his employment; but that case is not authority for so holding. There the court said:

“It is not denied that the injury occurred while plaintiff was riding on defendant’s handcar running on defendant’s tramroad from defendant’s corral to a boarding house at defendant’s mill run by defendant’s authority.”

The court’s holding in that case was based upon the principle laid down in the case of Provost vs. Gheens Realty Co., 151 La. 508, 92 South. 38, as follows;

“An employee going from his .work to his lodging house on the employer’s premises, where he had the privilege of sleeping as a part of the compensation for his work, was performing services arising out of and incidental to his employment in the course of his employer’s trade, business and occupation, within the Employers’ Liability Act, Section 1, Paragraph 2.”’

The principle underlying the holding in the Lagrone case is that the employee was never off the employer’s premises; he was riding on a conveyance owned by the defendant, with its consent, and was going to a boarding house furnished by the defendant for the accommodation of its employees. And while it is stated by the author of that opinion that the boarding house was not furnished as part of the consideration of the employment, yet the court took into consideration the fact that the laborers were working out in the forest, away from boarding facilities, and that had the defendant not furnished its employees with such boarding and lodging facilities it is very probable that it could not have secured laborers to operate its logging and mill plant, and that the boarding apartment was, in a sense, part of the compensation. To say the least, it is evident that the employer in the Lagrone case recognized the facilities which it furnished as necessary in the operation of its business; otherwise they would not have been furnished.

We think it may well be said that the court, in its holding in the Lagrone case, “went the limit”.

In the case at bar, the plaintiff’s work was finished for the week and he- had been paid off; he was on his way home when the accident happened, and was more than a mile from defendant’s premises. He was entirely out of his employer’s control, and was' not where he was performing' or where he could perform any service for his employer; he was riding on a conveyance not used to carry him as an incident of his employment or as part of his compensation, but he was permitted to ride on it as a matter of. accommodation; he Was not on his way to living or boarding quarters furnished or controlled by the employer as an incident of his employment or part of his compensation; he was on his way to his own home. Under such circumstances, the accident did not arise out of or in the course of plaintiff’s employment nor was it an incident thereto, and therefore he is not entitled to recover.

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

Under the authority of Lagrone vs. McIntyre Lumber Company, 1 La. App. 564,

Reynolds, J., dissents.


text:
    No. 2615
    Second Circuit
    ASHCRAFT v. LOUISIANA CENTRAL LUMBER COMPANY
    (May 7, 1926, Opinion and Decree)

      (Syllabus by the Editor.)

    ‘1. Louisiana Digest — Master and Servant —Par. 160 (g).
    Where the plaintiff, .an injured employee suing for compensation under the Employers’ Liability Act' No. -20 of 1914 ten years after the accident happened, becomes, temporarily insane, although he had worked continuously during that ten years period, a plea of prescription of one year under Subsection 1 of Section 31 of Act No. 20 of 1914 should be sustained.
    2. Louisiana Digest — Master and Servant —Par. 160 (j).
    The plaintiff, an injured employee under the Employers’ Liability Act No. 20 of 1914, bears the burden of proof to establish the fact that the wounds received by him were the cause of his collapse.
    Appeal from the Eighth Judicial District Court of Louisiana, Parish of Caldwell. Hon. F. E. Jones, Judge.
    Action by William Ashcraft against Louisiana Central Lumber Company for compensation under the Employers’ Liability Act No. 20 of 1914.
    There was judgment for defendant on a plea of prescription and plaintiff appealed.
    Judgment affirmed.
    Long & McSween, of Shreveport, attorneys for plaintiff, appellant.
    Thornton, Gist & Richey, of Alexandria, attorneys for defendant, appellee.
   WEBB, J.

On October 15, 1925, the plaintiff brought this action to recover compensation under the Employers’ Liability Act (Act 20 of 1914 and amendments) for injuries alleged to have been received while in defendant’s employment, etc., and to have caused total disability to do work of any reasonable character.

He alleges that in the month of September, 1917, while he was engaged in his employment, master mechanic and superintendent of defendant’s machine shops, and while attempting to correct defects in a welding ■ machine, the acetylene tank exploded, causing him to receive fractures of the face, head and skull, and that as a result of said wounds he became temporarily insane on June 10, 1925, and totally disabled from doing any work of a reasonable character.

The defendant excepted that plaintiff’s petition failed to state a cause of action, plead the prescriptions of one year and six months, and answered denying the allegations of plaintiff’s petition.

The exceptions and pleas being embodied in the answer, the cause was heard on the merits, and the plea of prescription sustained, and plaintiff’s demand rejected, from which plaintiff appeals.

OPINION

On trial it developed that the explosion of the acetylene tank occurred a short time prior to September 6, 1915, rather than in September, 1917, as alleged in plaintiff’s petition. However, it is contended that, regardless of the date of the accident, plaintiff is entitled to recover if the evidence establishes that he is disabled and such disability is the result of wounds received by him at the time of the explosion, and that the disability occurred within one year prior to the date of suit.

The evidence establishes that plaintiff did receive some wounds about the head and face at the time of the explosion; that he was unconscious for a period of a few minutes, and was temporarily disabled for about ten days, after which he returned to his employment,’ in which' he continued during the years 1915, 1916, 1917, 1918, 1919, 1920, 1921, 1922, '1923, 1924, and until June 10, 1925, receiving for his services the same or a larger salary than before the accident.

The evidence further establishes that within a short time after the accident, thirty or sixty days, one of plaintiff’s eyes was pulled upward, in which position it remained, and plaintiff’s wife states she wiped blood from plaintiff’s eyes and ears at the time of the accident, that he was unconscious for about one hour, and was temporarily disabled for about thirty days, and had suffered with headaches, nervousness and moody spells since the accident, finally culminating in temporary insanity in June, 1925, in which condition he remained until September, 1925.

The physicians for plaintiff were of the opinion that he was disabled at the time of the trial, but it is very difficult to determine whether they base their opinion on the condition of his eyes, which they were of the opinion caused double vision, or the history of the case showing a nervous collapse and the danger of its recurrence should plaintiff undertake employment.

The fact is that these physicians based their opinion, on an erroneous statement of the history of the case, being under the impression that plaintiff had not worked steadily since the accident, concluding that the injury to his eye had to some extent disabled him and that this partial disability became total when he ■suffered the nervous collapse; while the fact was that plaintiff had worked for more than nine years with his eye in the condition in which it was at the time of the trial without any apparent inconvenience.

We are of the opinion, however, that after the plaintiff suffered a nervous collapse, that necessarily he was disabled to some extent and that the defendant recognized this fact when it refused to permit plaintiff to take up his employment.

As to the cause of plaintiff’s illness the physicians called by him said in part:

Dr. J. D. Young:

“Q. Doctor, this man claims that some several years ago he received a shock in an explosion that caused him to bleed from the ears and eyes and finally developed into insanity in June of 1925 as you have related; do you think that your examination and physical findings coincide with that history?
“A. I do.
“Q. Could you find anything to account for it except the trouble that he mentioned?
“A. None whatever.”

Dr. E. L. Sanderson:

“Q. From the history that he gave you of this accident in 1917, could that account for the conditions that existed or occurred in June, 1925, the condition that you find at this time?
“A. Yes, taking the history as being true, then what follows would be fairly naturally the consequence.”

Dr. G. H. Cassity:

“Q. What in your opinion is the disability caused from?
“A. Well, my judgment is that it was caused by the injury. My judgment is that they gave a true history of the case, which was rather a logical history for people without a medical training to have given if it had not been true.”

The opinions of Doctors Sanderson and Cassity appear to have been based upon the history of the case which was in substance the same as shown by the evidence of plaintiff’s wife as stated above, while the opinion of Doctor Young appears to have been based upon the history of the case as stated and an examination which disclosed that there had been some disturbance of plaintiff’s nerves, and an examination of an X-ray picture made by Doctor Adair of plaintiff’s skull with reference to which Doctor Adair said:

Dr. M. L. Adair:

“Q. Doctor, did you examine the plaintiff in this case * * *; please state what you found?
“A. I did. (I found) anterior, posterior and lateral view of the skull; I found an apparent depression exostosis on the inner table of the skull that extended from the upper part of the frontal bone to the upper part of the occipital bone along the medial line of the head extending from the front to the back.
“Q. You found some evidence of a fracture?
“A. It is possible that it is the result of a fracture.
“Q. Would it be an old fracture or a recent fracture?
“A. An old fracture if it is a fracture.
* * * *
“Q. Doctor, did you find that depression that you now say is shown in these plates at the time that you first examined the plates or after you made them?
“A. I found this apparent there; understand, I am not saying positively it is a depression, I say it is a depression ex-ostosis that is not normally found in the skull, and from the history given I felt certain that a fracture was in the base of the skull. I still feel that the patient had a fracture at the base of the skull from the history, but this here is so extensive I felt a doubt of the absolute positiveness of this being a depression, except that I feel positive that it is possible that it came from a hemorrhage following a fracture of the skull forming exostosis. * * * I don’t think that anyone could say whether or not it was the result of a fracture, but still I feel it is possible, but the important part of the injury is the fracture to the base which is very apparent from the history. * * * I did not make an X-ray of the base of the skull because after the lapse of time the examination of the base of the skull would be of very little value anyway.”

The statement of the history of the case as given to the physicians was erroneous in many respects, although it appears that their opinion was based upon their conclusion that plaintiff’s skull had been fractured and that they would have been of the same opinion without regard to the time of the fracture or its immediate effects.

Other physicians called by defendant examined plaintiff and found him suffering from high blood pressure, and a test of his urine showed albumen, and they attribute his nervous collapse to these conditions, and the physicians for plaintiff admit that such conditions could be assigned as the cause of plaintiff’s nervous collapse but are inclined to attribute the conditions (high blood pressure and albumen in plaintiff’s urine) to a fracture of the skull which they assume occurred at the time of the explosion, basing their assumption on the statement of plaintiff’s wife that she wiped blood from the plaintiff’s eyes and ears immediately following the explosion, which blood is assumed to have, come from the eyes and ears and not from the bleeding wounds on plaintiff’s face which the evidence establishes existed at the time plaintiff’s wife stated she wiped blood from his eyes and ears.

The plaintiff bears the burden of proof to establish that the wounds received by him in 1915 were the cause of his collapse in 1925, and the most which the testimony indicates as to this is that if the plaintiff’s skull was fractured by the explosion in 1915 the collapse suffered in 1925 may be attributed to the fracture.

Ten years is a long period in the life of a man, and where it is shown that following the accident the plaintiff had for such a period been continuously employed in a responsible position the duties of which he had discharged without complaint to his employer of any inconvenience, we do not think that the court could be justified in attributing the cause of his disability to the accident on any such proof as is offered in this case.

We do not say, however, that even if the evidence had established that the cause of plaintiff’s, inefficiency or disability in 1925 should be directly attributable to the injuries received in 1915 that under the evidence showing that he had been continuously employed at the same or a larger salary than before the injury, that he would have the right to recover under the statute.

The judgment appealed from is affirmed.


text:
    No. 2616
    Second Circuit
    MANES v. LOUISIANA CENTRAL LUMBER COMPANY
    (May 7, 1926, Opinion and Decree)

      (Syllabus lyy the Editor.)

    1. Louisiana Digest — Master and Servant Par. 160 (j).
    The proof in a Workmen’s Compensation case under Act No. 20 of 1914 clearly shows that although the plaintiff did actually lift a Ford automobile to swing it on the rails and felt a pain across his chest in the region of his heart his illness nevertheless was caused by a progressing disease of the heart from which plaintiff had suffered many years.
    Appeal from the Eighth Judicial District Court of Louisiana, Parish of Caldwell, Hon. F. E. Jones, Judge.
    Action by Sam J. Manes against Louisiana Central Lumber Company for compensation under the Workmen’s Compensation Act No. 20 of 1914. There was judgment for plaintiff and defendant appealed.
    Judgment reversed.
    Long and McSween, of Shreveport, attorneys for plaintiff, appellee.
    Thornton, Gist and Richey, of Alexandria, attorneys for defendant, appellant.
   WEBB, J.

This quit is brought under the employers’ liability act. for. injuries, alleged to- have been received by the plaintiff while in' the employ of the defendant.'

He alleges:

“Your, petitioner, in the course of his-work and arising out of the same, under-took to lift and turn around a Ford car' in the course of supervising, looking after- and inspecting for the maintenance and repair of tram ■ roads which the said defendant used for their- logging and sawmill purposes, and by reason of the same petitioner was so strained and-exerted that he was caused serious injury to the area-in and about his heart, producing a dilated and non-compensative heart and a weakening of the muscles, linings and structures of the said heart and in and about the same, thereby lowering petitioner’s vitality and strength, causing various impairments, weaknesses and disorders to the nerves, ligaments, muscles and other vital functions and organs of petitioner’s body and system, and particularly in and about the area of the heart, lungs, chest and other vitals of petitioner’s body, so that as a result of the same, from the date of said injury, at this time and for all time hereafter, the petitioner cannot do or perform any work or labor of any reasonable kind or character, etc.”

The defendant excepted that the petition failed to state a cause of action, and at the same time answered denying the material allegations of the petition upon which plaintiff based his right of recovery.

On trial in the district court judgment was rendered in favor of the plaintiff and defendant appealed.

OPINION

The evidence establishes that plaintff had been afflicted with a progressive disease of the heart for many years, and that it had reached a critical stage prior to the date of the alleged accident.

The theory upon which plaintiff contends he should recover is that, prior to the alleged accident, his condition was not such as to prevent him from working; that nature had taken care of the diseased condition of his heart by some great change, which is referred to as “compensation”, whch had enabled him to perform the services incident to his employment, but that in lifting and turning the automobile this natural process of “compensation” had been disturbed and would no longer take place and that he was thus disabled.

The plaintiff’s case is dependent upon proof of the following facts:

First, that he lifted and turned the car, and,

Second, that he received a strain and that there was a rupture or ‘break in “compensation” as the proximate result of the strain.

The only one of these facts which was susceptible of direct contradiction relates to whether or not plaintiff lifted and turned the car, as the question as to whether he received a strain is dependent upon a subjective symptom and the effect of the strain; whether or not it caused a rupture is dependent upon circumstances or conditons following.

The plaintiff’s testimony in support of his claim is in part as follows:

“Q. What happened to you in the course of your work in September of this year, (1925)?
“A. On the 28th • day of September, I was turning, around a Ford and got a strain in turning that car around in my left breast which was caused by picking up that car* * * .”

He further said that after the car had been placed on the rails, which was about seven o’clock, in the morning, he and. a negro, George Starks, rode out over the line for a distance of about eighteen miles to Camp No. 24 where Curtis Black joined them, and from there to the end of the line; that he became hoarse at about ten o’clock and was feeling so ill when he returned to the camp he went to the home of his sister-in-law, Mrs. Williams, at about 2 o’clock, remaining there until four o’clock, when he returned home and called Doctors Gardon and Hines, and that he spit up blood and was confined to his room for about four days.

George Starks, who was present when plaintiff claims to have lifted the car, was called by plaintiff and corroborated plaintiff’s statement as to plaintiff having swung the car upon the rails; however Starks was impeached by proof of a prior contradictory signed statement, and he, Starks, on being called by the defendant, when the cause was reopened, said that he did not remember anything about the incident.

It appears that plaintiff at the time he called Starks to the witness stand, knew of the version which Starks had made in the signed statement, having had a prior conversation with him in relation thereto, in which conversation plaintiff made a veiled threat against Starks if he persisted in the narartive of circumstances contained in the signed statement.

The evidence further shows that the car which plaintiff claims to have lifted and turned, was a Ford automobile which had been equipped for use on the rails, and that when properly adjusted upon a level track it required very little physical effort to swing it on the rails, and it is admitted that the car had been brought to the track (which the evidence shows was level) and adjusted by Starks, but plaintiff says that it required considerable effort for him to swing it.

It further appears that Curtis Black, who met plaintiff at Camp No. 24 at about 8 o’clock and remained with him until noon, did not notice that plaintiff was ill, and was not informed of the alleged accident, although he inquired as to plaintiff’s health; and it also appears that plaintiff did not mention the alleged accident to the physicians who were called to attend him after he returned home.

It further appears that the manager of the defendant company had a conversation with plaintiff on the 26th of September in which he told plaintiff that he would be temporarily discharged on the 1st of October and that on the 1st of October or soon after the alleged accident plaintiff was notified he would be let out, and plaintiff, after being so notified, called upon defendant’s officers but did'not notify them of the alleged accident, although he says he called upon them with that object in view.

As to whether or not the collapse of the plaintiff was due to the alleged accident, the evidence establishes that the disease with which he was afflicted had for some months prior to September 28, 1925, reached a stage where he might suffer a collapse with or without physical exertion, and he had in fact suffered similar attacks prior to that of September 28th on at least two different occasions; and as to whether or not “compensation” was broken at the time of the trial, the evidence is conflicting, one of the physicians stating that there was no “compensation” and another that there was fairly good “compensation”.

Giving a liberal construction to the evidence, in favor of the plaintiff, ignoring the circumstances which might be considered as intention suppression of the testimony of Starks, and conceding that plaintiff did lift the car and swing it on the rails, and that he did feel a pain across his chest in the region of his heart, we do not think that the evidenc.e establishes that there was a strain or rupture, but, on the other hand, we are of the opinion that the evidence indicates, if it does not establish that the illness of the plaintiff was due to the disease with which he was afflicted.

It is therefore ordered, adjudged and decreed, that the judgment appealed from be annulled, avoided and reversed, and plaintiff’s demands be rejected at his cost.


author: WESTERFIELD, J.

text:
    No. 10,468
    Orleans
    STATE EX REL. FLEURY v. DAUENHAUER, SR.
    (April 12, 1926, Opinion and Decree)

      (Syllabus by the Court.)

    1. Louisiana Digest — Drainage—Par. 7; Parishes — Par. 23.
    Under Act 317 of 1910 as amended by Act 253 of 1920 where there is a contest for the office of Drainage Commissioner the Police Jury “shall” give the appointment to the candidate recommended by the land owners owning the greatest number of acres in the district. The fact that the drainage district is made up of a part of the land in two adjoining parishes does not change this method of selecting a drainage commissioner when the office is contested. There is nothing in Section 4 of the Act to the contrary.
    Appeal from the Twenty-fourth Judicial District Court, Parish of Jefferson, Hon. L. Robert Rivarde, Judge.
    Action by State ex rel. John E. Fleury, District Attorney, et al., against J. B. Dauenhauer, Sr. Judgment for defendant and plaintiff appealed.
    Judgment affirmed.
    Jno. E. Fleury, J. K. Gaudet and A. H. Thalheim, of Gretna, attorneys for plaintiff, appellant.
    C. A. Buchler, of Gretna, attorney for defendant, appellee.
   WESTERFIELD, J.

This is an intrusion in office suit. From a judgment maintaining an exception of no cause of action the plaintiff has appealed.

The petition alleges that Georgé Heebe, Jr., the plaintiff, was duly appointed and commissioned a member of the JeffersonPlaquemines Drainage District, comprising land situated in the Parish of Jefferson and partly in the Parish of Plaquemines on June 10, 1925, in succession to J. B. Dauenhauer, Sr., whose term had expired in May, 1924; that J. B. Dauenhauer was fully informed ■ of his appointment but “usurps, intrudes and unlawfully holds” the office; that under the law (Act 317 of 1910 as amended) it was the duty of the Police Jury of the Parish of Jefferson to fill the Dauenhauer vacancy by appointing someone as commissioner recommended to it under the terms of the law; that two petitions were circulated among land owners in the Drainage District, one by plaintiff, and one by Dauenhauer, with the result that George Heebe, Jr., was recommended by 372 property holders owning 6983.08 acres of land in Jefferson Parish alone and that Dauenhauer was endorsed by 159 property holders owning 5908.01 acres in Jefferson and 7033.80 acres in Plaquemines Parish; that George Heebe, Jr., had the majority in acres and property holders in Jefferson and that he was entitled to the appointment under Sec. 4 of Act 317 of 1910.

Plaintiff contends that the Police Jury who under the law is vested with the authority to appoint drainage commissioners upon recommendations of property holders is limited to holders of property in Jefferson Parish and not permitted to consider the recommendations of Plaquemines property holders in connection with this particular appointment. On the other hand defendant insists that it is the district and not Jefferson Parish which recommends the appointment. It is admitted in the petition that if the property holders of the district, that is to say both parishes are to be considered that Dauenhauer is entitled to the office.

Sec. 3 of the Act of 1910, originally provided that:

“Where there is a contest over the appointment of commissioners, the police jury shall give the appointment to those commissioners who are recommended by land owners owning the greatest number of acres of land in said district, or who are recommended by a majority of the resident land owners in such district, in the discretion of the police jury.”

This section was amended by Act 253 of 1920 as to the last paragraph only, and it was provided that;

“Where there is a contest over the appointment of commissioners, the police jury shall give the appointment to those commissioners who are recommended by the land owners owning the greatest number of acres of land in said districts.”

It is plain that if this section governs this case plaintiff is out of court because there is under its terms no discretion in the police jury as between the majority of property holders and the majority of acres held but the police jury must appoint the commissioner “recommended by the land owners owning the greatest number of acres of land in said districts”.

But plaintiff contends that Sec. 4 and not Sec. 3 of the act controls. This section provides that “when it becomes necessary to create drainage districts composed partly of lands situated in adjoining parishes * * * then the commissioners shall be appointed or selected as aforesaid, two by the police jury of the parish which has the greatest area in said district and one by the police jury of the other parish: when portions of three parishes are included each parish shall have one commissioner”.

Counsel pointing to this language of Section 4 argues that it must be interpreted as meaning that each parish should have one commissioner recommended by that parish alone otherwise—

“* * * if the interpretation of the act by the defendant is to be taken as correct, then no matter who the land owners of the Parish of Jefferson might recommend, and no matter if every acre of land in the district and every property owner should sign a petition recommending a resident property owner of Jefferson Parish as its commissioner, the Parish of Plaquemines, with the smallest number of property holders, but the largest acreage, would have the right to thwart the will of the people of Jefferson Parish, and add its acreage to another candidate’s from the Parish of Jefferson, and thereby dictate and control the selection and appointment of all commissioners in this district, no matter from what parish they come.”

In the first place there is no allegation to the effect that Plaquemines has the greatest acreage and that it already has two commissioners on the drainage board. But if there was such allegation and selection and appointment must be “as aforesaid” whatever parish the individual candidate is a resident of. The words “as aforesaid” must refer to Section 3 of the Act which (as amended) provides that the acreage in the district and not the majority of land holders nor the greatest number of acres in the parish making the appointment controls. Whatever incongruity the law may compel in regard to one parish dictating to another the name of its appointee we can only interpret the law as it is written and it plainly provides that the land owners holding the greatest number of acres in the district shall control the appointment of the drainage commissioner whose office is in contest here and we can not alter it.

For the reasons assigned the judgment appealed from is affirmed.


text:
    No. 10,427
    Orleans
    FELT AND TARRANT MFG. COMPANY v. SINCLAIR AGENCY, INC.
    (April 26, 1926, Opinion and Decree)

      (Syllabus by the Court.)

    1. Louisiana Digest — Garnishment—Par. 39.
    Citation in garnishment proceedings must be made in strict compliance with law. A service upon a foreign corporation through an employee not shown to be its designated agent for the service of process and no proof having been made of the absence of such designated agent and no application having been made to the court for service in “some other form” as provided by Section 11 of Act 179 of 1918, is invalid and a judgment based upon such citation is null.
    Appeal from First City Court, Division “A”, Hon. W. A. Bahns, Judge.
    Action by Felt and Tarrant Mfg. Company against Sinclair Agency, et al.' Judgment for plaintiff and defendant appealed.
    Judgment reversed.
    Arthur Ryan, of New Orleans, attorney for plaintiff, appellee.
    L. M. Janin, of New Orleans, attorney for defendant, appellant.
   WESTERFIELD, J.

This is an action to annul a judgment pro confesso against a garnishee upon the ground of want of citation. . The Sinclair Agency Inc., defendant herein, obtained a judgment against one Arthur L. Jones, an employee of the Felt and Tarrant Mfg. Company, plaintiff herein. Thereafter a fi. fa. was issued and garnishment process served upon the plaintiff company through “Arthur L. Jones its sole agent in person”. No answer to the garnishment was made and in due course a judgment pro confesso was entered against the present plaintiff.

This judgment is attacked here upon the ground that plaintiff was not legally cited.

There was judgment for defendant and plaintiff has appealed.

Plaintiff is a foreign corporation and at the time of the garnishment proceedings maintained an office in this city, which was in charge of Arthur L. Jones, the judgment debtor of defendant.

The record shows that Jones was largely indebted to the plaintiff corporation and was discharged a short while before the service of interrogatories upon him under the garnishment; Much space in the record is devoted to the establishment of this fact and much time was consumed in argument discussing the effect of this discharge in view of the fact that Jones’ name still appeared upon the office door of plaintiff as its sales manager and he continued to frequent the office of plaintiff where he was found and served by the sheriff.

In our opinion it is immaterial whether Jones was, or was not, an employee- of the plaintiff company when served with the garnishment. Nor does it matter whether Mr. O. L. Clark, an officer of the plaintiff company, who was sent from Chicago to clear up the confusion in the plaintiff’s local office caused by the discharge of Jones, knew that his company had been garnished for a debt of Jones a statement affirmed and denied by the witnesses in this case. The legal requisites for valid citation, particularly in a garnishment, must be observed..

Presumptions and conjectures have no place in this discussion. We are dealing with the “holy of holies” of the law of procedure, the basis of all judgments, the sine qua non. The principle was first announced in the first judgment ever rendered, by the greatest of judges, the Lord God of Hosts, who before the trial of our first parents and as an essential preliminary to the judgment announcing the guilt of Adam, and, decreeing the fall of man, issued citation — for it is written “and the Lord God called unto Adam and said unto him where are thou”. Prom that day to this no system of law has failed to recognize the sacredness of this principle.

The law is found in Act 179 of 1918. Under Section 6 (a) and (b) of this act “service of all legal process on any foreign corporation” is made, first upon its designated agent for the service of process and, if the agent can not be found, upon “any regularly employed agent or employee of the corporation, over eighteen years old, in any office which the corporation may have established and maintains in this State”.

Under Section 11 of this act garnishment process must be served upon a foreign corporation through its designated agent and if the agent can not be found “in the office thereof or elsewhere in the parish” upon application and proof to the court to that effect then “the court may order garnishment process served in some other form”.

It will be observed that under Section 6 in the absence of the designated agent all legal process on any foreign corporation may be served upon “any regularly employed agent or employee, etc.” While under Sec. 11 proof must be made of the absence of the designated agent and application to the court which “may order process served in some other form.”

Whatever conflict exists between the two sections and however the absence of the designated agent must appear before service on an employee can be made under Section 6 we are not called upon to discuss because insofar as garnishment process is concerned its service is prescribed in Section 11 and under that section proof must be administered of the absence of the designated agent and application to the court for service in “some other form”.

In the case at bar there is no proof whatever that Jones was the designated agent or that the designated agent was absent. As a matter of fact no allegation and no proof that the Felt and Tarrant Mfg. Company had designated an agent for the service of process at all. Nor was any application made to the Court for service “in some other form”.

Our conclusions are that no valid service of the garnishment proceedings was' made and that the judgment pro confesso based thereon is absolutely void.

It is ordered, adjudged and decreed that the judgment appealed from be reversed and that there now be judgment in favor of plaintiff the Felt and Tarrant Mfg. Company, and accordingly that the judgment rendered in the matter of Sinclair Agency Inc., vs. Arthur L. Jones, No. 125,504 of the docket of the First City Court on the - day of -, 192 — , condemning the Felt and Tarrant Mfg. Company to pay to the Sinclair Agency Inc., the sum of $100.00 with legal interest from March 12, 1924, and 25% attorney’s fees on principal and interest be and it is hereby annulled at the cost of defendants herein.


text:
    No. 2073
    Second Circuit
    HORTON v. BIENVILLE PARISH SCHOOL BOARD
    (March 11, 1926. Opinion and Decree.)

      (Syllabus by the Editor)
    1. Louisiana Digest — Parishes—Par. 47, 48, 50.
    School boards are merely agencies of the state for the administration of the system of public education, and are not liable in damages for' the injuries caused by the negligence of their employees, even though Act No. 100 of 1922 gives school boards the power to provide for transportation of school children.
    2. Louisiana Digest — Education—Par. 8; Pleading — ,Par. 62.
    A suit claiming damages from a school board for a tort committed by its employee for which it is not liable will be dismissed on exception no cause of action.
    Appeal from the Third Judicial District Court of Louisiana, Parish of Bienville. Hon. J. E. Reynolds, Judge.
    Action by W. W. and Mrs. Willie B. Horton, for the use and benefit of James B. Horton, against Bienville Parish School Board.

      There was judgment maintaining an exception no cause of action and plaintiffs appealed.
    Judgment affirmed.
    Foster R. Taylor, of Arcadia, attorney for plaintiff, appellant.
    W. D. Goff, of Arcadia, attorney for defendant, appellee.
   STATEMENT

WEBB, J.

In this action the plaintiffs, representing their minor child, James B. Horton, and for his use and benefit, seek to recover judgment for damages against the Bienville Parish School Board for injuries sustained by the child, while being transported in a hack from the public school, which he was attending, to his home.

They allege that the driver of the hack was • the agent and employee of defendant, and the injury received by the child was the result of an accident caused by the negligence of the driver.

An exception of no cause of action being filed by the defendant, it was sustained and the suit dismissed.

Plaintiffs appeal.

OPINION

School boards are merely agencies of the state for the administration of the system of public education, and. are not liable in damages for the injuries caused by the negligence of their officers, agents and employees. (Ruling Case Law, Schools, Vol. 24, Sec. 7 and 60. Also Sherman vs. Parish of Vermilion, 51 La. Ann. 880, 25 South. 538; Fisher Land & Investment Co. vs. Bordelon, 52 La. Ann. 429, 27 South. 59.)

While Act No. 100 of 1922, which in the main follows prior laws, gives to school boards great powers of administration, the powers granted nevertheless relate to the one object of public education, and we would not be warranted in reading into the statute by implication a provision rendering the school board liable for the negligence of its employees, unless such necessarily implied for other provisions of the statute, or laws relating -to the same subject.

We do not think that the provision which authorizes the school boards, in certain instances, to provide for transporting school children to and from the school, indicates that it was the intention of the Legislature to make such boards liable for the negligence of persons employed by them to drive the conveyances in which the children may be transported.

The judgment is affirmed.