author: ELLIOTT, J.

text:
    No. 337
    First Circuit
    PERROUX ET AL. v. MURRAY-BROOKS HARDWARE CO., LTD.
    (November 10, 1928. Opinion and Decree.)
    Williams and Blackshear, of Oakdale, attorneys for plaintiffs,' appellees.
    Thornton, Gist and Richey, of Alexandria, and Albin Provosty, of New Roads, attorneys for defendant, appellant.
   ELLIOTT, J.

Joseph Webster Perroux, employed by Henry W. Frith in the operation of the ferry which crosses the Atchafalaya River at Melville on the Jefferson Highway, lost the little finger on his right hand while engaged in making fast the end of a rope to a truck belonging to the defendant, Murray-Brooks Hdw. Co., Ltd., the other end of which had already been made fast to the axle of another truck belonging to defendant. The two trucks were used by the defendant for the purpose of transporting dynamite from its place of business in Lake Charles, to Plaquemine. The dynamite was loaded in trailers. One trailer heavily loaded with dynamite was attached to each truck. The truck drivers, both negroes, employed by defendant, reached the ferry on December 3, 1926, just before day, on their way to Plaquemine, and were ferried across in safety.

The plaintiff, Perroux, and Joe Wiltz another employee of Mr. Frith, operated the ferry at night. Amilcar Wiltz and Matt Perroux, also in his employ, operated it during the day. Amilcar Wiltz and Matt Perroux had arrived at the ferry while it was on the west side of the river, but their time for work not having commenced, they both got in the boat and crossed to the other side for the purpose of getting coffee.

The operation of a ferry is classed as a hazardous occupation, under the Employer’s Liability Act of Louisiana, Act No. 20 of 1914 as amended.

The plaintiff Perroux was paid by his •employer, Mr. Frith, twenty dollars ($20.00) per week for twenty weeks, as compensation, on accpunt of his injury, and $42.00 in addition on account of his physisian’s fees and medical expenses, making a total of $442.00. Mr. Frith is a party plaintiff, and the prayer of the petition is that $442.00 of the sum recovered of defendant as damages, be paid to him.

The incline from the edge of the river to the top of the bank on the east side, is quite steep. The truck called the “White” driven by Charlie Porter, leading, left the ferry first and pulled its trailer to the level ground on the top of the bank. The truck called the “Ford” driven by Leroy Victor followed with its trailer, but after proceeding a short distance up the incline, it could go no further and stopped, its engine died, and it commenced a backward movement toward the ferryboat and the river. Upon this, the plaintiff Perroux, Amilcar and Joe Wiltz rushed forward and chocked its wheels with blocks of wood, and the movement was stopped.

The plaintiff Perroux alleges that his duties consisted principally in the operation of said ferryboat, assisting vehicles to embark thereon and disembark therefrom, and in clearing the ways from the landing point to the upper bank or terminus of said highway, on each side of the river.

The plaintiffs further allege that Charlie Porter, driver of the “White” truck, after ascending to level ground on top of the bank, disconnected his trailer, backed down the incline close to the Ford and requested the plaintiff Perroux to make fast the rope to the rear end of the White truck and to the axle of the Ford; that such assistance was necessary due to the fact that there were only two employees of defendant present, and on account of the incline it was necessary for each of them to stay on their trucks and at their wheels, in order to hold fast their brakes. That the plaintiff was not a volunteer in the matter of tying the rope. That he took the rope as requested, fastened it to the Ford truck, and then began tying it to the White, but before he had finished doing so, the driver of the Ford truck suddenly and negligently and without warning to the plaintiff Perroux released the foot-brake, which held same, and stepped from the machine. That due -to this act on the part of defendant’s employee, the Ford truck jumped the chocks behind its wheels and began rolling rapidly down the incline, suddenly taking up, in its progress backward, the slack in the rope, and in so doing, his little finger was caught by the rope and jerked from his hand.

They further allege that the Ford truck was overloaded, in poor mechanical condition and had no emergency brake. That defendant, its agent and employee, Leroy Victor, was grossly careless and negligent in releasing the foot-brake and leaving the truck without warning to the plaintiff Perroux, who was down under the rear end of the White truck at the time, working in the dark, making the rope fast to it. That the driver of the Ford truck was incompetent and not licensed, etc. He claims $300.00 on account of his physical pain and suffering, $3000.00 on account of the loss of his finger and permanent impairment of the use of his hand, $42.00 on account of physician’s fees and medical expenses and $250.00 on account of loss of salary while unable to work. The petition contains other averments which we do not deem it necessary to mention.

The defendant excepted that plaintiff’s petition disclosed no cause of action. This exception was overruled and it then answered denying all the above mentioned allegations. It further alleged in defense that the occurrence was due to the negligence of the plaintiff, Perroux, or was an unavoidable accident.

That the plaintiff, Perroux, undertook voluntarily and without request from defendant’s drivers to assist defendant’s truck ascend the bank as part of his duties as ferryman. That it was the duty of the plaintiff, Perroux, in connection with his work, to block the wheels of the Ford while the rope was being tied to the White truck. That the blocks either rolled out or were too small. That plaintiff Perroux was guilty of contributory negligence in ■placing the blocks, or in using blocks that were too small, and could not recover on that account. That it was the duty of said Frith, lessee of the ferry rights, and of his employees, to maintain and keep the approach from the ferryboat to the top of the bank in good condition. That the approach was not in proper condition. That the bad condition of the incline was the proximate cause why the Ford truck was unable to ascend the incline without assistance. That plaintiff could not recover on that account.

The exception of no cause of action, was, we think, properly overruled.

The record shows the employment of the plaintiff Perroux as alleged in the petition. That Murray-Brooks Hdw. Co., Ltd., sent out the two trucks from its place of business in Lake Charles, in this State, each carrying a load of dynamite, and driven by said Porter and Victor, as above stated for delivery at Plaquemine. That they arrived at the ferryboat on December 3, 1926, before day, and' while' it was still dark. That the Ford truck stopped on the incline, not because of any bad condition of the incline, due to the negligence of the plaintiffs Frith and Perroux, but because its engine was not powerful enough to pull its load up the hill.

The contract under which Mr. Frith operated the ferry did not require him to lower the grade of the incline.

The evidence does not justify defendant’s contention that it was the duty of the lessee Frith and his ferryman and employees to assist defendant’s truck after it had safely left the ferryboat, and taken the ascent on the highway in the resumption of its journey. Both of defendant’s employees had to remain in their trucks to hold their brakes and in that way hold their trucks in position on the incline. Therefore it was a proper, necessary and humane act on the part of the plaintiff Perroux and the other ferryman present to rush forward and chock the wheels of the Ford, and to further assist by making fast the Ford to the White truck, so that the White could pull it with its trailer to the level ground on top of the bank.

We are satisfied from the testimony on the subject and the corroborating physical facts and circumstances, notwithstanding conflicting and contradictory statements, that Leroy Victor seated in his truck with his foot on the brake, obtained a rope from his truck and threw it to the plaintiff Per-roux for the purpose of having him tie it to the Ford, and then to the White truck, and by means of which the White was to pull the Ford with its trailer to the top of the bank. We are satisfied that one of defendant’s drivers requested the plaintiff Perroux to do the tying, and while he was down under the rear end of the White, working in the dark, engaged in making it fast, that Leroy Victor, without notice to Mr. Perroux, stepped out of his truck, and upon which it immediately jumped the blocks, and commenced rolling rapidly down the hill, forcibly and violently jerking the slack out of the rope before Mr. Per-roux had an opportunity to disengage his hands from it, with the result that his finger was caught in the rope and jerked off.

But suppose the plaintiff Perroux went to defendant’s assistance without having been expressly requested to do so, the immediate danger and peril, due to the dynamite in the backing truck, made his act proper, and renders defendant just as responsible for its negligence, which caused plaintiff’s injury, as if the request had been made.

It is our conclusion that if defendant’s driver had remained in his truck and kept his foot on the brake, together with the chocks behind the wheels, he would have continued to hold the truck on the incline until Mr. Perroux had finished the work of making fast the rope to the White truck, and reached a place of safety.

The evidence shows that the defendant had hauled dynamite over the same route on previous occasions, with the same truck, and that its engine had not been able to ascend this incline with the load it was required to pull. It was an ordinary precaution for defendant to take a rope along on these trips, yet defendant’s previous experience justified it in taking the rope along for the purpose for which it was used on the present occasion. It was evidently aware that it would need assistance in order to ascend the incline. Defendant was therefore responsible for the occurrence in question, and as it sent only the two drivers with the trucks, it was responsible for the situation that made it necessary for plaintiff Perroux to go to their assistance.

Leroy Victor, driver of the truck, present as a witness for defendant on the first day of the trial, was not called, and on the second day, he was not in Court. The witness Porter says that he called for him but he was not at home. Victor was in position to testify directly as to the matters pertinent to the case. It does not appear that the defendant made any effort to procure his testimony.

The preponderance of the evidence is also to the effect that the Ford truck was not equipped with an emergency brake. It had a foot brake, but we regard it as gross negligence to send out this truck with a load of dynamite, not provided with an emergency brake, knowing that it would likely stop on this incline, and be required to be held by it in position until it could be assisted by the other truck.

We think that plaintiff was injured as a result of the gross fault and carelessness of defendant, its agent and employees, in the way stated, and that defendant is responsible for all the damage thereby sustained.

The defendant contends that the judgment appealed from should be credited with $250.00 on account of wages received by the plaintiff Perroux following his injury.

The evidence does not justify the conclusion that Mr. Frith paid the plaintiff Per-roux wages while paying him compensation, but suppose he did, we do not see that defendant is entitled to the credit which he claims.

The plaintiff Frith paid the plaintiff Per-roux $400.00 in compensation and $42.00 in addition, on account of physician’s fees and medical expenses. The lower court allowed Perroux $300.00 on account of physical pain and suffering, $1250.00 on account of the loss of his finger and impairment of the use of his hand, a total of $1592.00, and ordered that the $442.00 which had been paid him by Mr. Frith, be returned to Mr. Frith out of the same. The balance of the sum claimed as damages and the $250.00 claimed as salary, were rejected.

The judgment appealed from is, in our opinion, correct.


source: Caselaw Access Project

author: MOUTON, J.

license: Public Domain

text:
    No. 338
    First Circuit
    ROBERTSON ET AL. v. POURCIEAU
    (November 10, 1928. Opinion and Decree.)
    Bouanchaud and Kearney, of New Roads, attorneys for plaintiff, appellee.
    M. T. Hewes, of New Roads, attorney for defendant, appellant.
   MOUTON, J.

Plaintiffs, alleging that they sold 19,706 feet of lumber to defendant, demand a balance against him of $396.00, with legal interest from April 9, 1927. The defense is, in substance, that defendant bought 100,000 feet of lumber to be delivered at his mill according to specified grades and prices; that although plaintiffs had in their yard at their mill a sufficient amount of lumber to comply with their contract, they have wilfully refused to deliver a portion thereof to which defendant was entitled and have thus actively violated their agreement; that as a result of this violation of the contract, defendant has suffered damages in the sum of $1155.15.

The defendant admits owing a balance of $350.95 on the account, but avers that he refused to pay that amount which he is holding as a set off and partial payment of the sum he is claiming in reconvention.

Plaintiffs and defendant had severai interviews in reference to the agreement for the lumber. At the fourth conference, it was finally agreed, that plaintiffs would deliver to defendant 100,000 feet of lumber which they were to manufacture from logs in their yards. The lumber was to be seventeen per cent tank, forty per cent select and forty-three per cent common.

Fifty-three thousand seven hundred and ninety feet of the lumber were delivered, and upon receiving a note from defendant to discontinue delivery, plaintiffs ceased to deliver. After receiving this note plaintiffs asked payment of the sum of $725.15 from defendant which he declined to pay though he had made three payments for lumber previously delivered. Upon defendant refusing to pay, a contention arose between the parties in reference to the ownership of the lumber, defendant claiming that he was the owner of 100,000 feet by virtue of a purchase, and plaintiffs contending to the contrary.

David Robertson, one of the plaintiffs who graded the lumber and loaded it for defendant’s mill, says that plaintiffs had a mere order from defendant to deliver 100,000 feet of lumber with the distinct understanding that defendant had the right to stop further delivery of the lumber whenever he saw fit, with the same right being reserved to plaintiffs.

W. F. Robertson, father of David Robertson, testifies that such was the condition of the agreement. He says, when the agreement was made his son in giving reasons for the reservation, said it should be mutual, otherwise it would be a one-sided arrangement.

On his first examination defendant said he did not recall that plaintiffs had reserved this right to cancel the contract. He says the only reservation he (defendant) made was that he would have the right to cancel if the lumber was not graded according to the Louisiana Cypress Rules. When the parties entered into the agreement the only persons present were the two plaintiffs and defendant. Although defendant merely says that he does not recall if plaintiffs made the reservation, it may be implied that his answer carried a denial that, any such condition was agreed to in the contract. However that may be, we have here the testimony of two witnesses against the evidence of one on that question, with no fact or circumstance in the record suggestive of any prevarication on the part of these plaintiffs.

No doubt, the lower court believed these witnesses, and we find no ground upon which we might base a disbelief in their credibility.

Defendant first refused to pay, claiming that the lumber was burdened with a mechanic’s lien. Plaintiffs forthwith swore out an affidavit to the effect that no such lien existed. The proof is that the claim due the mechanic was for work done in the construction of plaintiffs’ mill. The lien did not exist as it could under the statute have effected only the products of the mill. The defendant’s refusal had therefore no legal ground upon which it could rest, even if the affidavit was not in compliance with his request.

David Robertson testifies that defendant refused to accept further deliveries because the Parish of Pointe Coupee was then menaced with high water. Defendant denies that. As we read the record the fear of the overflow we think was the reason which prompted the refusal by defendant to pay. The fact is that defendant had under the agreement the right to stop further deliveries of lumber at his option, and in sending the note to plaintiff to cease delivery, he merely exercised the privilege with which he was invested under the terms of his contract. Plaintiffs had a similar right and acting in compliance with the note, stopped further delivery, of which defendant has no legal cause to complain, and no ground for a reeonventional demand.

The court properly rendered judgment for plaintiffs for $367.59, after making correct deductions.


author: REYNOLDS, J.

text:
    No. 2938
    Second Circuit
    WALKER v. MEYER
    (March 14, 1928. Opinion and Decree.)
    (May 22, 1928. Rehearing Refused.)
    (December 5, 1928. Decision of Court of Appeal reversed and suit dismissed by the Supreme Court on Writ of Certiorari and Review.)
    Albert P. Garland, of Shreveport, attorney for plaintiff, appellant.
    Dimick and Hamilton, of Shreveport, attorneys for defendant, appellee.
   STATEMENT OF THE CASE

REYNOLDS, J.

This is a suit by Joe K. Walker as transferee of George Bickham to recover from Abe Meyer one thousand dollars as a commission he alleges defendant contracted to pay to Bickham if he would consummate a trade between him, Meyer, and W. P. Stiles for the exchange of certain real estate owned by Meyer for certain real estate owned by Stiles.

Plaintiff alleges that he is a duly licensed real estate broker and that Bickham was a duly licensed real estate salesman employed by him.

Bickham wrote defendant as follows:

“Shreveport, Louisiana.
“February twenty-fourth, 1926.
“Mr. Abe Meyer,
“Shreveport, La.
“Dear Sir:
“Referring to the sale of your Eagle Bend Plantation: I have been working continuously for the past three months on the sale of this place, but, as you know, owing to the caving banks of Red River at this point, also proposed new levee, which will adversely affect the value of this place, the damage of which cannot be estimated at this time, I have been unable to make sale or get an offer from any one at any price.
“For your consideration, submit the following property on which we can probably work out a trade, delivering same free of all incumbrances, although at present there is a $10,000 mortgage on the Shreveport property.
“No. 1604 Park Avenue, twenty-one room hotel, furnished, which I have had for sale at $16,500.00 and which should rent easily for between $125.00 and $150.00 per month, which I could have done several times, hut have no authority to rent the place.
“Your very truly,
“GEORGE BICKHAM.”

On the same page and immediately below his signature, Mr. Bickham wrote, to he signed by Mr. Meyer, the following agreement:

“Mr. Geo. Bickham.
“In case you are able to consummate trade, I will protect you on one thousand dollars commission.”

To this Mr. Meyer added:

“If I won’t have to pay any difference & the property is cleared of mortgage.”

and then added his signature:

“Abe Meyer.”

The property 1604 Park Avenue, Shreveport, Louisiana, was owned by W. P. Stiles and Bickham procured his consent to exchange that property for defendant’s plantation on the terms stipulated by defendant and an hct of exchange of the two properties was executed by Stiles and tendered to defendant who refused to complete the exchange. Whereupon this suit follows.

The defendant filed an exception of no cause of action to the petition, which exception was tried and overruled.

Defendant then answered denying liability and specially alleging:

“Further answering plaintiff’s petition defendant shows that George Bickham presented him with the letter referred to in plaintiff’s petition in which Bickham stated that he could ‘probably work out a trade’ for a piece of property on Park Avenue but which property was not definitely described as to the size of the lot, or the ownership thereof, and other essentials; and that said letter did not fix definitely the terms upon which a trade could be made, and it was not intended definitely to fix the terms of a trade, or close a trade, because at that time Bickham merely hoped to be able to work out, or consummate a trade, and it was agreed that in the event a definite trade was offered defendant should inspect the property and accept or reject it.
“Further answering, defendant shows that when the aforesaid letter was presented to him it contained thereon a memorandum written by the said Bickham, in the following words, to-wit:
“ ‘Mr. George Bickham. In case you are able to consummate trade, I will protect you on $1000.00 commission;’ that said words meant and were intended to mean and were construed by the parties as meaning that Bickham would he paid a commission in the event the property which might he offered in exchange, and the terms which might he offered, proved acceptable to defendant; and that defendant informed the said Bickham that he would not even care to discuss a trade on any property upon which he had to make any payment or assume any mortgage, so he added to the memorandum written by Bickham the words: ‘If I wont have to pay any difference and the property be cleared of mortgage;’ the intention of said words in connection with the memorandum being and having been interpreted by the parties to mean, that when Bickham tried to work out a trade or consummate a deal defendant would not consider any offer of any property upon which he would have to pay any difference or assume or pay any mortgage or encumbrance.”

Defendant further alleges that Bickham afterwards admitted that defendant was not liable for the commission and promised to destroy the letter referred to; and he further alleges that Bickham did not disclose to him that he was acting for plaintiff and that he, defendant, would not have done business with plaintiff; and, further, that plaintiff was also the agent of Stiles in the transaction and could not earn a commission from defendant.

On these issues the case was tried and there was judgment rejecting plaintiff’s demand and dismissing his suit and he has appealed.

OPINION

Whether defendant was ignorant that Bickham was acting not for himself but for plaintiff is immaterial.

The serious question is whether the letter from Bickham to defendant and the latter’s endorsement thereon, copied above, bound defendant to pay the agreed commission on Stiles’ consent being obtained by Bickham to make the exchange on the terms stipulated by defendant.

That Bickham did obtain Stiles’ consent and that Stiles was ready, willing and able to execute the exchange on his part is not questioned by defendant.

Defendant’s contention is that the letter did not bind him to make the exchange even if Stiles was willing to make it on the conditions proposed nor to pay the commission in the event he declined to make the trade.

The language of the letter is clear and unambiguous and in our opinion bound defendant to pay Bickham the agreed commission on his obtaining Stiles’ consent to make the exchange on the conditions named by defendant, to-wit: The property to be freed of mortgages and defendant not to pay any “boot”.

Defendant’s addition of the words: “If I wont have to pay any difference & the property is cleared of mortgage” to the agreement Bickham sent him to be signed clearly shows that defendant intended to bind himself to pay the commission if Bickham should obtain Stiles’ consent to make the exchange on these conditions.

Over plaintiff’s objection defendant was permitted to testify that at the time he signed the letter it was agreed between him and Bickham that he had the right to inspect the Stiles property and to refuse to make the exchange even though Stiles should be willing to make it on the terms proposed in the letter.

We think this evidence should have been excluded. The agreement was plain and unambiguous and parol evidence of a contemporaneous agreement limiting or modifying it was inadmissible.

Civil Code, Art. 2276.

Defendant also contends that the agreement between himself and Bickham was a personal one and not assignable. If so, Bickham carried it to completion on his part and the exchange was not made only because defendant refused to make it on his part.

Defendant further insists that plaintiff and Bickham also represented Stiles and therefore could not represent him also. We do not think they did. Stiles did not employ either plaintiff or Bickham to represent him. Stiles had agreed in the event he acquired defendant’s property to list it with plaintiff for sale, but that was in no way detrimental to defendant.

Defendant agreed to pay Bickham a commission of one thousand dollars if he obtained Stiles’ consent to exchange properties with him and Bickham did. obtain Stiles’ consent. That the exchange was not effected was due to no fault of Bickham or Stiles but solely because defendant refused to make it. Bickham earned the commission and plaintiff as his assignee is entitled to recover it.

It is therefore ordered, adjudged and decreed that the judgment appealed from be-annulled, avoided and reversed, and it is now ordered, adjudged and decreed that plaintiff, Joe K. Walker, do recover judgment against defendant, Abe Meyer, for the sum of one thousand dollars with legal interest thereon from judicial demand and all costs.


text:
    No. 324
    First Circuit
    CULBERTSON v. COUSIN
    (June 12, 1928. Opinion and Decree.)
    (June 30, 1928. Rehearing Refused.)
    (November 26, 1928. Judgment affirmed by Supreme Court on Write of Certiorari and Review.)
    Miller & Heintz, of Covington, attorneys for plaintiff, appellee.
    Huddleston Kenner, of New Orleans, attorney for defendant, appellant.
   ELLIOTT, J.

C. Harry Culbertson brought suit for $79.84 against Lawrence A. Cousin; alleging that same was due him on account of cord wood sold by him to the defendant.

The defendant, for answer, denied owing the plaintiff.

He next pleaded as an exception, the prescription of three years as a barrier to plaintiff’s action.

He next appeared and filed a supplemental answer, alleging against the plaintiff a demand for $228.40 in reconvention, for wood hauled on plaintiff’s account, less a credit of $28.45; and prayed for judgment in said amount against the plaintiff in reconvention.

The lower court, without ruling on the plea of prescription, rendered judgment in favor of the plaintiff as prayed for, and rejected defendants demand in reconvention. The defendant appealed.

It cannot be determined from the order of appeal nor from the appeal bond, whether the appeal is from the judgment in favor of the plaintiff on account of the cord wood, or whether it is from the judgment rejecting defendant’s demand in re-convention. We solve the question in favor of the defendant, that the appeal is from the judgment which rejects his demand in reconvention. As the lower court did not rule on the plea of prescription, and as that plea was directed against plaintiff’s demand, on account of cord wood, the appeal does not bring up that question for review.

When the defendant started to take testimony concerning his demand in reconvention, plaintiff objected, on the ground that the demand came too late. The objection was good. Code Practice, Arts. 153, 328. But as the lower court did not rule on the objection it must have been abandoned. Supposing to the objection to have been abandoned, the burden of proof was on the defendant to establish his demand. He testifies that the amount is due him for hauling wood. The plaintiff testifies that he has paid the defendant all he ever owed him for hauling.

The district court held with the plaintiff in the matter.

The facts and circumstances disclosed by letters exchanged between the plaintiff and defendant do not indicate the existence of any indebtedness on the part of the plaintiff to defendant, on that account or otherwise.

We are unable to say that the lower court erred in rejecting defendant’s demand.

Defendant and appellant to pay the cost in both courts.


author: WESTERFIELD, J.

text:
    No. 11,315
    Orleans
    THE ELECTRICAL SUPPLY CO. v. DANIELS
    (December 10, 1928. Opinion and Decree.)
    (January 7, 1929. Rehearing Refused.)

      Milling, Godchaux, Saal and Milling,, of New Orleans, attorneys for plaintiff, appellee.
    Jackson and Allen, of New Orleans, attorneys for defendant, appellant.
   WESTERFIELD, J.

This is a suit on a promissory note in the sum of $187.83. Defendant pleaded failure of consideration, alleging that the note was given in part payment of the purchase price of a certain twenty-five inch Ilg Universal Blower, a ventilating fan, which, it is alleged, proved to be unfit for the use for which it was intended.

The record shows that the defendant was the proprietor of several small restaurants, known as “Short Order” restaurants, the kitchen and dining room being in the same room. The blower was purchased with the idea of removing' the hot air from the stove in order to reduce the temperature in the restaurant and increase the comfort of the patrons, and it is defendant’s contention that the plaintiff guaranteed that the particular fan purchased by defendant, would accomplish that result. The fan in question was a product of the Ilg Manufacturing Company, which was shown to have been in the business of manufacturing such fans for a period of about fifty years. It was purchased by defendant, who called at plaintiff’s store and after making credit arrangements, purchased the fan. It was thereafter delivered to defendant’s restaurant, and installed by a contractor who had no connection with plaintiff.

The catalogue of the Ilg Manufacturing Company, from which defendant evidently made his selection, contained a statement that the fan purchased by defendant, would remove 2200 cubic feet of fresh air per minute.

The fan, as installed, did not prove satisfactory but whether it removed 2200 cubic feet of air per minute or not, is impossible to say. There is no proof that plaintiff guaranteed the fan to be sufficient for defendant’s purpose, particularly when installed by someone else. Following complaints made by defendant, a representative of the manufacturing company, called at his place of business and inspected the installation. He advised defendant that, as set up, the fan could not possibly function properly and that there was need of a larger hole in the roof to permit of a larger pipe being used. Permission was asked of the landlord to make the larger opening and refused.

It seems to us that defendant’s difficulty was due to the improper installation of the fan, which appears to have been a standard article. The contractor employed by defendant, when asked concerning the products of the Ilg Manufacturing Company, stated that he had always used their products and that they had always proven satisfactory.

We do not believe that this case is controlled by the principle announced in the cases cited by defendant, Bohanon vs. Stewart, 4 La. App. 150; Brown-Roberts Hardware and Supply Company vs. Mounger, 5 La. App. 479; Diamond Music Company vs. Lamazou, 5 La. App. 113; Hutchison Bros. vs. Byrd & Jolliff, 6 La. App. 367.

In the cited case there was proof establishing the unfitness of the thing sold for the use for which it was intended and there was no question of improper installation of machinery. For example, in the last cited case, a vendor of a radio set sold upon the understanding that it would “get” out of town stations, was denied recovery of the balance due on the selling price of the radio, because the evidence showed the radio to be incapable of more than local activity. There was in that case a special warranty, which is not true of the case at bar.

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


text:
    No. 3005
    Second Circuit
    LAWTHROP v. E. P. McKENNA BROKERAGE CO., INC.
    (November 8, 1928. Opinion and Decree.)
    Robertson and Gibbs, of Shreveport, attorneys for plaintiff, appellee.
    Dickson and Denny, of Shreveport, attorneys for defendant, appellant.
   STATEMENT OF THE CASE

REYNOLDS, J.

Plaintiff sold to defendant a carload of sweet potatoes f.o.b. Bokohoma, Oklahoma, to be transported to Shreveport, Louisiana.

Defendant denies liability on the ground that the

“Carload of sweet potatoes arrived in Shreveport in apparent good condition, but that the potatoes had a latent, hidden and inherent defe.ct, which could not be ascertained from ordinary inspection; that defendant received the shipment; that the defect with which the potatoes were affected was that they had been frost-bitten before they were dug, and this defect could not be detected until the ¡potatoes were cooked or until such time that they began to decompose and decay.”

On this issue the case was tried and there was judgment in favor of the plaintiff and defendant appealed.

OPINION

The potatoes were sold f.o.b. Bokohoma, Oklahoma, to be transported to Shreveport, Louisiana, by the carrier and there delivered to the purchaser; and the only question presented by the record is, were the potatoes sound when loaded in the car at Bokohoma, Oklahoma, or' were they then frost-bitten?

Three witnesses, Buck Clawdis, J. R. Dreker, and C. S. Lawthrop, Jr., saw the potatoes when they were loaded, and testified that they were not then frost-bitten or otherwise damaged; and their testimony is uncontradicted.

The potatoes left Bokohoma, Oklahoma, January 9, 1926, and arrived in Shreveport, Louisiana, January 11, 1926. On their arrival, or soon thereafter, they were inspected by Mr. Clark White, a representative of defendant, who, three days after the car arrived in Shreveport, Louisiana, told Mr. C. S.- Lawthrorp, Jr., plaintiff’s son—

“That he personally inspected the potatoes that day and they were all right.”

Mr. E. P. McKenna, the manager of the defendant company’s business, testified that when the car arrived in Shreveport, Louisiana, he was in New Orleans, and that he called up the representative of his company, Mr. Clark White, on the telephone, and that

“Mr. White told me the potatoes were apparently all right, and he had inspected the potatoes the day they arrived, which I presume was the 11th of January.”

The potatoes were permitted to remain on the railroad track in Shreveport, Louisiana, in the car in which they arrived, for ten days and were then reshipped to Fort' Worth, Texas, and from that place to Wichita Falls, 'Texas. On their arrival at Wichita _ Falls, Texas, they were found to be frost-bitten.

The fact that the potatoes were found to be frost-bitten on their arrival in Wichita Falls, Texas, is not proof that they were in that condition when loaded in the car at Bokohoma, Oklahoma.

A half dozen potatoes were taken out of the car while it was in Shreveport and these were found to be frost-bitten, and it is contended by defendant that this proves that all of the potatoes were then in that condition and were in that condition when they were put in the car at Bokohoma, Oklahoma. But the half dozen potatoes were not taken out of the car until it had stood in the railroad yards at Shreveport for several days. Their condition is not proof that the potatoes were damaged on their arrival in Shreveport or when loaded in the car at Bokohoma, Oklahoma.

The burden was on defendant to establish the defense pleaded that the potatoes were frost-bitten before being put in the car at Bokohoma, Oklahoma, and this it failed to do.

The trial judge was of this opinion and we think the evidence justified the conclusion.

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


text:
    No. 3033
    Second Circuit
    GEORGE v. CADDO TRANSFER AND WAREHOUSE COMPANY, INC.
    (November 8, 1928. Opinion and Decree.)

      Drew and Drew, of Minden, attorneys for plaintiff, appellant.
    Barnette and Roberts, of Shreveport, attorneys for defendant, appellee.
   STATEMENT OF THE CASE

REYNOLDS, J.

Plaintiff sues defendant to recover damages for personal injuries alleged to have been sustained by him in alighting from a motor bus operated by defendant on which he alleges he was a passenger.

Defendant denies that plaintiff was a passenger on its bus and alleges that he was a trespasser, and, in the alternative, denies negligence on its part and alleges negligence on the part of plaintiff.

On these issues the case was tried and there was judgment rejecting plaintiff’s demands and dismissing his suit and he has appealed.

OPINION

Two defenses are interposed by defendant to plaintiff’s demands, namely: that he was not a passenger but a trespasser on its bus; and, in the alternative, that if he was a passenger and if it was negligent that plaintiff also was negligent and that his negligence was the sole cause or at least contributed to the accident in which he was injured and that his negligence bars recovery by him.

The view that we take of the second or alternative defense renders it unnecessary that we consider the other.

Plaintiff was riding in one of defendant’s busses from Gibsland to Minden on December 20, 1925. The bus reached Minden at about seven o’clock at night.

Testifying in his own behalf the plaintiff said:

“When they got' over here at Minden they stopped in the road and let a white fellow out. Johnnie (the bus porter) opened the door and let the white fellow out, and Johnnie got back in. I says ‘I don’t want to stop in town, can I stop over here in Warsaw, or do I have to go up in town?’ He says ‘Yes, he will stop anywhere.’ When we got to the church, there 'is where I wanted to get out'. They were pulling even with the hill, coming around by the school house, and he (the bus porter) pulled the cord and the bus just done that way (witness making jerking motion with his arm) just like it stopped right now. I was sitting this way and Johnnie was here and this the door that he opened. So he pulled the cord and the lights come on right now and I took my package and Johnnie got up and opened the door and stepped back and I stepped out with this foot on the running board and stepped out with this one on the ground, and that is all I know about it ❖ *
“Q. What did Johnnie say when he opened the door?
“A. He never said anything * * *
“Q. Did he tell you that was your stop?
“A. He got up to give the signal to stop, and said: ‘This is the place you want to get out?’ And I said: ‘Yes,’ and he got up and pulled the cord and stepped back.
“Q. Did you think that the bus had stopped?
“A. Yes, sir; with the stop they made I thought it had stopped.
"Q. Did you hear the brakes being applied?
“A. Yes, sir; a terrible stop being put on. I know a motion for a stop.
“Q. You thought that the motor bus had stopped?
“A. Yes, sir; I thought it had stopped. It slowed down just as though it had stopped.” (Boldface type ours.)

David Stephens, the bus porter, testified:

“Q. Now, when you got over to Minden that night, who was the first one that said something about getting off — you or Wiley George?
“A. Wiley George.
“Q. What did Wiley George say?
“A. He says that he wanted to get off just up the hill there in front of the church.
“Q. Yes.
“A. Well, he and I were seated or sitting in the smoker. Only two seats back there. One is a long seat- — •
“Q. (Interrupting) Just a minute. I will let you tell that in a minute. Did he tell you where he wanted to get off?
“A. He told me where he wanted to get off;
“Q. Well, later on, did he say to you: ‘Here is where I want to get off.’
“A. He says: ‘Here is where I want to get off.’
“Q. When he said that, what did you do?
“A. I pulled the cord.
“Q. What did the bus do?
“A. The bus stopped — coming to a stop.
“Q. All right. What did Wiley George do?
“A. He didn’t do anything. Just asked for his package.
“Q. Yes. What did he do about getting off or anything?
“A. Well, the lights come on.
“Q. What does that mean, when the lights come on?
“A. He pulls the lights on for me to get the luggage out of the back.
“Q. What did Wiley George do about getting off?
“A. Wiley George was still sitting while I got the package and when I' was over the hack of the seat to get the package he goes between this junk seat — it is supposed to be eighteen inches. He comes by. I moved my feet for him to come by while I was getting the package, and when I come up with the package he had got out of the door, and I reached for him like that (witness making a reaching motion with his arm) but I was too late to catch him.
“Q. Who opened the door?
“A. He opened the door himself.
“Q. From where you were sitting, could you reach the door to open it?
“A. No, sir; I could not, at that time. No, sir; I did not even see him when he got up, because I was getting his package up from the back seat.
“Q. Did he ever get hold of his package?
“A. He never did get hold of his package until I gave it to him on the outside.
“Q. When he opened the door, what happened?
“A. When he opened the door, he stepped out, and I reached for him, but I was a little late in reaching.
“Q. Did you say anything?
“A. ‘Just wait a minute;’ that was all I had time to say.”

As stated by the District Judge, in an extensive review of the law and facts of the case, although a carrier is bound to exercise the utmost care in receiving passengers, conveying them to their destination and setting them down safely, yet there are certain acts of caution which passengers must exercise in order to free themselves of negligence. And the evidence in this case shows that plaintiff failed to exercise that degree of care the law required of him as a passenger under the circumstances, and this failure precludes- recovery by him in this action.

The plaintiff knew or by the exercise of his senses might' have known that the bus had not stopped and that it was dangerous for him to attempt to alight from it.

As said by our Supreme Court in Morris vs. Illinois Cent. R. R. Co., 127 La. 445, 53 So. 698, 31 L. R. A. (N. S.) 629:

“A passenger who has every reasonable opportunity to ascertain whether a train from which he is about to alight is still in motion fails to assure himself that the train has stopped sufficiently to permit him to alight without danger, cannot hold the railroad responsible for injuries received while getting off the moving train. The fact that the. flagman fails to notify a passenger who has left the coach and is standing on the step that the train is moving and that it is dangerous to attempt to alight while the train is in motion, will not charge the company with negligence because the passenger is on the step ready to alight; does not warn the flagman that he will do' so while the train is in motion and at a time when it is dangerous to do so.”

What is said here about passengers on railroad trains is equally applicable to passengers on motor busses.

We have carefully read the evidence and considering the law applicable thereto was convinced that the judgment of the trail court is correct and accordingly it is affirmed.


text:
    No. 3155
    Second Circuit
    DESOTO v. MAGNOLIA PIPE LINE COMPANY, INC.
    (November 8, 1928. Opinion and Decree.)
    George T. McSween, of Shreveport, attorney for plaintiff, appellant.
    Pugh, Grimmet and Boatner, of Shreveport, attorneys for defendant, appellee.
   STATEMENT OF THE CASE

REYNOLDS, J.

This is a suit under the Employers’ Liability Act.

Plaintiff alleges that on February 28, 1927, while employed by defendant at a weekly wage of $31.50 a metal tank under which he was working fell on him — ■

“Mashing and brusing his body almost all over and particularly cutting a deep gash across the right eye, breaking petitioner’s nose, dislocating his right arm and shoulder, mashing, bruising and fracturing the ribs on the right side, as well as spraining, bruising and tearing petitioner’s back and causing injuries to petitioner’s kidneys, heart and lungs and all his vital internal organs.”

And that—

“As a further result of the said accident he has a deep, long and unsightly scar across his right eye-brow that will permanently disfigure him. That his nose is broken and permanently disfigured; that he constantly suffers pain in the said right side and leg to such an extent that he has been, is now and will for the balance of his life-time be unable to earn a living with his labor.”

He further alleged that defendant had paid him compensation for three weeks after the accident and had refused to pay him anything further, and he prayed for judgment against it for compensation at the rate of $20.00 per week during disability, the first payment to be decreed due as of March 7, 1928, with legal interest on each payment from the date of its maturity, and for further judgment against defendant for the sum of $250.00 as for necessary medical expenses.

In answer defendant admitted the accident and injury but denied that it was as serious or permanent as alleged by plaintiff and averred that he had fully recovered from his injuries; and it alleged that plaintiff was only slightly bruised about the right side and suffered some minor bruises about the face, and that all of his injuries have ceased to exist and that he no longer was suffering from any disability on account thereof.

It further alleged that plaintiff’s disability by reason of the injuries received in the accident terminated on March 24, 1927, that it had paid him compensation of $20.00 iper week for three weeks beginning with the date of. the accident, as alleged by plaintiff, and that it had tendered him a further sum of $20.00 as compensation up to March 24, 1927, but that plaintiff had refused to accept it.

On the day of trial the defendant deposited in the registry of the court subject to the order of plaintiff the $20.00 tendered by it to and refused by him, and after the case was tried but before judgment was rendered therein the plaintiff withdrew the amount from the registry of the court and paid it to the court reporter who reported the testimony in the case to be credited on her hill for services in that connection.

On the issues presented by the petition and answer the case was tried and there was judgment in favor of the plaintiff and against the defendant for the sum of $20.00 and costs of suit and the plaintiff has appealed.

OPINION

The ¡plaintiff utterly failed to prove any disability extending beyond the space of time for which the defendant paid and the judgment appealed from awarded him compensation, and wholly failed to prove any difference in his earning power subsequent to date on which defendant alleged he ceased to be disabled as compared with such power before the accident; and the only question in the case worthy of serious consideration is whether, as a result of the accident, the plaintiff “is seriously permanently disfigured about the face or head” within the meaning of clause 16 of paragraph (d) of subsection 1 of section 8 of Act No. 85 of 1926.

Plaintiff was injured on February 28, 1927, and this suit was filed on April 9, 1927. The trial took place on May 5, 1927.

He was asked how long he had remained in bed after the accident, and he said:

“I stayed around in bed better than a week. Of course. I was up part of the time, you understand.
“Q. Went up town too, did you not?
“A. I was up town about a week after I got hurt.
“Q. Mr. DeSoto, the injury was to your right side, was it not?
“A. Yes, sir; well, both sides. It hurt both sides.
“Q. The collar bone was not broken, was it?
“A. I don’t know whether it was broken or not.
“Q. Mr. DeSoto, would you not know if you had a broken rib or broken ribs? You would know it, would you not?
“A. Well, I don’t know If I would or not. I have been hurting all over. Something is wrong with it somewhere now.”

Plaintiff was asked if he had been injured in an accident while working for another employer previous to his entering the employment of defendant and he answered that he had, and that he had been examined by a physician and had radio-graphs of his body made.

“Q. Why did you have that examination made, Mr. DeSoto?
“A. My back kept hurting, that is why I had it made. My back kept hurting, and it hurt for a long time after I had that picture taken; it was a long time after-wards.
“Q. Did you not consult your lawyer about bringing a suit against them? (His former employer.)
“A. No, sir. Now you are getting on to the examination that I had Dr. Hewitt in Mansfield to make. He examined me and he said that my kidneys were bad, right after I got hurt * * * and he treated me, and my back got all right. But listen! After I went back to work for the Magnolia (his former employer) I could not stand up without using a belt under my clothes to protect my back.
“Q. That was caused by the first accident, you think?
“A. That is right.”

Regarding the scar above his right eye, he testified:

“Q. That scar above your right eye, there; isn’t that scar healed up?
“A. Well, I don’t know.
“Q. Isn’t that scar much better now than it was three months ago?
“A. Well, certainly.
“Q. You can hardly see it now, can you?
“A. No, you can hardly see it. If you look over my head you can’t!”

Doctor L. S. Huckaby testified that he examined plaintiff immediately after the accident of February 28, 1927, and that he found that plaintiff

“Had a laceration over his right eye, and his leg just below the knee was bruised, and I believe his right or left side. I think it was his right side. I am not sure about that, but it was one of his sides. At that time I figured he had a broken rib, but I found out later that it was not broke. The x-ray showed that it was not broke.
# * *
“Q. Doctor, in your opinion, how long would it take this plaintiff to fully recover after that date?
“A. Well, I figured that he recovered within two weeks after the accident.
“Q. Doctor, I will ask you if, in your opinion, you can state whether the plaintiff had recovered on the 24th of March, 1927?
“A. Yes, sir; he had.
“Q.' Doctor, was his nose broken?
“A. No, sir; it was not. We thought it was, at that time, because when he came in, you see, he had this laceration over the eye, and of course naturally he was bloody over his face * * * At that time I put packing at each side of his nostrils but the next morning I removed that, and after this he told me himself — the next morning, that his nose was broken when he was a kid and had been crooked all the time, ever since then.”

Doctor Huckaby further testified that he had known the plaintiff about twenty years, and—

“Q. Doctor, how long did plaintiff stay in bed after the accident?
“A. He stayed in bed one day.
“Q. Now, what have you to say about this plaintiff’s condition? Would you say that his nose had been broken at the time of this accident?
“A. No, sir.
“Q. Was there any dislocation of the arm at the shoulder?
“A. No, sir; there was not.
“Q. Were the ribs fractured?
“A. * * * When I seen the x-ray I did not see any signs where there • had been a fracture at all.
“Q. How about his kidneys; were they impaired?
“A. No, sir.
“Q. His lungs?
“A. No, sir.
“Q. Any other vital organ?
“A. No, sir.
“Q. Doctor, look at the plaintiff; would you say that he is disfigured, that is, his nose?
“A. No, sir; not any more than before. * * *
“Q. . If his back had been sprained, how long would it have taken that condition to be rectificed?
“A. Well, if he had had a sprained back he could no.t have gotten up on the second day of the accident.
“Q. Was he up on the second day after the accident?
“A. Yes, sir; he was up sitting before the stove when I went to see him that morning. ^
“Q. You can see the scar now, can you not, doctor?
“A. Well, it is not what you would term a scar; it is more a discoloration of the skin than a scar.
“Q. There is a discoloration of the skin extending up from the outside of the _ eyebrow, extending upward toward the middle of the forehead?
“A. Well, up toward the middle, yes.
“Q. About one inch and a half long?
“A. No, sir; at the time it wasn’t but about one inch long. I taken two stitches and that was all.”

The plaintiff was also examined by Doctor W. S. Harmon on March 6, 1927, and again on the day before the trial, and Doctor Harmon testified that the plaintiff was not suffering from any disability.

In regard to the scar, he was asked :

“Q. Doctor, would you regard that as an unsightly scar?
“A. Well, I do not think so. No. sir, I would not.
“Q. Doctor, looking at plaintiff from where you are sitting, would you say that his nose is crooked?
“A. No, sir; I would not.
“Q. Has his nose been broken, doctor?
“A. Not that I can tell.”

Doctor S. C. Barrow testified that he had examined plaintiff three times on three different occasions and made x-ray photographs of his body each time. The first examination was on September 6, 1926, the second on March 6, 1927, and the last on May 4, 1927. That the first and second examinations disclosed nothing abnormal and that the third disclosed an old fracture of the collar bone that had properly healed. Asked if this collar bone could have been fractured on February 28, 1927, he said it could not.

So far from showing that at the time of the trial plaintiff was disabled to do work of any reasonable character by reason of the injuries received by him in the accident the evidence rather shows that he was not then laboring under any disability; and as to the nature and extent of the scar on his forehead, the evidence shows that this is slight and insignificant and such as not to be noticed on casual observation.

In our opinion the District Judge, who saw and heard the witnesses testify, did not manifestly err in his findings of fact, and as the defendant has not appealed nor answered the plaintiff’s appeal but asks that the judgment appealed from be affirmed, it is accordingly ordered, adjudged and decreed that the judgment appealed from be affirmed.


text:
    No. 3101
    Second Circuit
    ELIX v. GLASSELL-WILSON COMPANY, INC.
    (November 8, 1928. Opinion and Decree.)
    George T. McSween, of Shreveport, at•torney for plaintiff, appellant.
    Alex F. Smith, of Shreveport, attorney for defendant, appellee.
   STATEMENT OF THE CASE

REYNOLDS, J.

This is a suit under .the Employers’ Liability Act.

Plaintiff alleges that he was employed .by defendant and while in the performance of his duties fell a distance of fifteen to twenty fqet from a ladder onto a concrete floor and received injuries to his right ■ side, arm, intestines, kidneys, lung, heart and all his vital internal organs.

Defendant admitted that plaintiff was .efnployed by it but denied the other allega•tions of the petition.

On these issues the case was tried and there was judgment rejecting plaintiff’s demands and dismissing his suit and he has appealed.

OPINION

Plaintiff testified that while working for defendant on the court house in Shreveport, Louisiana, he fell from the third to the second floor, a distance of from fifteen to twenty feet, and struck on his right side, and that he was carried to a hospital and remained there about two weeks and then returned to work and after working two hours stopped because of having “trouble with my (his) stomach.”

Asked what injuries the fall caused him, he said:

“It occasioned swelling in the knee, stiffening, soreness on the inside, kidneys upset. All the machinery on the inside ruined.”

The accident occurred on February 9, 1927, and the suit was filed on February 19, 1927, or ten days after the accident. The trial took place on March 18, 1927, or a month after the suit was filed and two months and ten days after the accident.

Doctor Louis Abramson testified that he had made a physical examination of plaintiff a few days before the trial, and that:

“Q. Just state the result's, what you found to be the matter with him. What was his condition? State the results of your examination or investigation?
“A. The only thing I found,' insofar as the examination that I made is concerned, he had chronic gonorrhea.
“Q. I will ask you whether or not, in your opinion, this affliction or disease antedates the accident which happened on February 9th of this year?
“A. Well, I couldn’t say positively about that, whether it did or not, but my impression is that it did.”

The plaintiff had testified:

“Q. Now you say that' your kidneys were injured. How do you know that?
“A. They are sore.
“Q. Did you pass any blood?
“A. Yes, sir, I did.
“Q. This blood was passed from your kidneys? s You know that?
“A. I suppose that is where it come from. It come out of there somewhere.”

And, as to this, Doctor Abramson testified:

“Q. Now, doctor, assuming that this negro passed blood, and that blood showed up in’ the analysis of the urine by — I don’t know what kind of process?
“A. Microscopic?
“Q. Microscopic process. Would you say that the injury caused that or that the gonorrhea caused that?
"A. Well, it is almost a constant attendant of gonorrhea — blood in the urine. So I could not tell whether either one caused it.”

No other witnesses than these two testified in the case.

The plaintiff was asked:

“Q. What are you doing now, Osborn?
“A. Not doing anything.
“Q. You are not working?
“A. No, sir.
"Q. Have you tried any more since the time that you tried to work?
“A. I have been taking treatment from the doctor.
“Q. Oh, yes, Dr. Stamper?
“A. Yes, sir; he has been treating me.
“Q. What kind of treatment?
“A. I don’t know what kind of medicine he is using, but the last treatments evidently they looked into the kidneys and the bladder and they dilated it — I guess •that is what they call it; I don’t know what it is, and then they got some pulse from somewhere.
“Q. What?
“A. Pulse.
“Q. Pus?
“A. Yes, sir. Pus.”

Plaintiff did not summon Doctor Stamper to testify as to the nature of his ailment and offered no excuse for not doing so.

The evidence fails to show ■ any causal relation between any disability from which plaintiff may have been suffering at the time of or before the trial and the accident that befell him, but, on the contrary, indicates that plaintiff’s disability, if any, is the result of chronic gonorrhea from which he was suffering.

We have carefully read the record and cannot say that the District Judge erred in holding that the plaintiff failed to make out his case by the preponderance of the evidence required of all plaintiffs, those suing under the Employers’ Liability Act as well as others.

The judgment appealed from is affirmed.


text:
    No. 3198
    Second Circuit
    SUCCESSION OF HAWK OPPOSITION OF MRS. SADIE HAWK
    (November 8, 1928. Opinion and Decree.)
    A. S. Drew, of Minden, attorney for plaintiff in opposition.
    B. F. Barnette, of Arcadia, attorney for defendant in opposition.
   STATEMENT OF THE CASE

REYNOLDS, J.

This is a proceeding by rule by Mrs. Sadie Hawk, widow of Willie A. Hawk, deceased, against G. L. Hawk as administrator of the succession of the deceased, alleging that she was, at the time of the death of her husband, in necessitous circumstances, and demanding to be paid one thousand dollars out of his succession as widow in necessitous circumstances pursuant to Article 3252 of the Civil Code.

The administrator, defendant in rule, denied that the widow was in necessitous circumstances or that she was so at the time of her husband’s death and alleged that she was a school teacher by profession and was at the time of her husband’s death and had been since then engaged in teaching and earning enough money to maintain herself in her usual condition and station in life.

On these issues the ease was tried and there was judgment rejecting her demand and recalling and dissolving the rule and she has appealed.

OPINION

Plaintiff in rule contends that whether she was a widow in “necessitous circumstances,” within the meaning of Article 3252 of the Civil Code, or not, must be determined from her pecuniary condition at the time of her husband’s death and not thereafter, nor from her ability to earn a living.

Our learned brother of the District Court gave no reasons nor cited any authority for his judgment, nor has able counsel for the administrator cited us to any authority supporting it, and we do not know of any.

The widow herself testified:

“Q. At the time Of .your husband’s death, December 25th, 1925, did you own any real estate?
“A. No.
“Q. Own any personal property?
“A. No.
“Q. Did you own anything of any value?
“A. Did not.
“Q. You owe money at this time?
“A. I do.
“Q. That is money contracted for after the death of your husband?
“A. Yes.
“Q. Are you able to pay this money back?
“A. No.
“Q. At the time of your husband’s death, were you forced to borrow money?
“A. I was.
“Q. Has that money been paid back?
“A. No.
“Q. Have you any other income besides your teaching?
“A. No.
“Q. Have you any income from property ■ or stock or anything of that nature?
“A. I have not.
“Q. Your income depends on what you make teaching school?
“A. My income is teaching school.
“Q. Have you got any other income than $60.00 per month for six months per year?
“A. I have not.”

She further testified that she paid her husband’s burial expenses out of her own ■ earnings and that these expenses amounted to about $120.00, and that she owed at the time of the trial approximately $450.00 that she had borrowed and used for necessary living expenses.

' The testimony of the plaintiff in rule is not contradicted and under the facts proved by her she was entitled to judgment.

“We are of opinion, that the rights granted the widow or minor children of a deceased person, by virtue of the Homestead Act of 17th of March, 1852 (now forming part of Article 3252 of the Civil Code) vest in them at the time of the death of said deceased, in the event they come within its provisions at that moment of time; their condition then in pecuniary matters, and not at any subsequent time, is to be the test of their rights to any claim under the Homestead Act.” (Boldface type ours.)

Gimble vs. Goode, 13 La. Ann. 352.

“The opponent insists, upon the authority of McCoy’s case (26 La. Ann. 686) that the condition of the widow at the time the claim is made must' determine her right. This is in direct conflict with the dictum of Gimble vs. Goode, (13 La. Ann. 352); also Succ. of Marx (27 La. Ann. 99), that the right of the widow arid of. the minor children of a decedent to the portion secured to them under the Act of 1852, vests in them at the moment of the death of the deceased, and not at any subsequent time, is the test of the rightfulness of their claim. We think this is the sounder doctrine * *

In our opinion it therefore follows that the pecuniary condition of the plaintiff in opposition at' the moment of her husband’s death determines her right to demand and receive out of his succession the thousand dollars allowed by Article 3252 of the Civil Code, and as the evidence clearly shows her circumstances at that time were necessitous the judgment' appealed from is erroneous and must be reversed.

It is therefore ordered, adjudged and decreed that the judgment appealed from be annulled, avoided and reversed, and it is now ordered, adjudged and decreed that the plaintiff, Mrs. Sadie Hawk, have judgment recognizing her as the widow of Willie A. Hawk, deceased, in necessitous circumstances, and entitled to receive out of his succession one thousand dollars in accordance with Article 3252 of the Civil Code.


author: ODOM, J.

text:
    No. 3248
    Second Circuit
    MEARES v. DIXIE CREAMERIES, INCORPORATED
    (November 8, 1928. Opinion and Decree.)
    Craig, Bolin and Magee, of Shreveport, and A. S. Drew, of Minden, attorneys for plaintiff, appellee.
    Blanchard, Goldstein and Walker, of Shreveport, attorneys for defendant, ap pellant.
   ODOM, J.

The plaintiff in this suit was in charge of an ice truck, delivering ice on one of the streets in South Highlands, City of Shreveport, and, while standing on the ground at the rear end of his truck, another truck, owned by defendant and operated by one of its employees, ran against him, knocked him against the ice truck, which resulted in the breaking of both his legs just below the hips, and inflicted other injuries upon him. This was on August 19,' 1926.

The case was tried before a jury in December, 1927, resulting in a verdict and judgment in favor of the plaintiff for $20,-000.00; from this verdict and judgment, the defendant has appealed.

The defendant admits liability, but contends that the amount awarded is excessive; while, on the other hand, the plaintiff moved in this Court to have the judgment amended by increasing the award.

OPINION

The testimony shows that plaintiff was caught between the two trucks; that both legs were crushed and broken just below the hips; that he was bruised about the face and head and at many other places on the body; and that his urethra was ruptured.

Plaintiff was carried to a sanitarium, where he remained under the care of physicians and nurses for about seven months, after which he was sent to his home, where he remained in bed about four weeks. For the first few days, after the accident, plaintiff was in a precarious condition, the physicians being doubtful as to his. recovery. When he rallied from the shock, the physicians set his legs. For the first four or five months, there was but little, if any, improvement in the condition of his legs, the fractures not healing as expected, and the physicians suspected that the patient was suffering from tuberculosis, so he was finally removed to the roof of the sanitarium, which is specially prepared and equipped for the care and treatment of tubercular patients. Plaintiffs’ legs showed considerable improvement and the fractures began to heal rapidly. During the seven months that plaintiff was in the sanitarium, he underwent some five or six operations, and, the physicians and nurses say, he suffered greatly at times. '

As a result of his injuries, plaintiff was at the time of the trial in December, 1927, about a year and four months after the injury, able to walk fairly well without the use of crutches, although it seems that he carried them along to be use'd in case he needed them. Plaintiff testified that he was able to drive an automobile over rough roads; to climb a flight' of stairs, although he said in doing so he had Ip "catch hold of the railing to brace himself; to walk very well on level ground, but was unable to do manual labor of any kind, and that he still suffered some pain, especially from his right leg. The testimony shows that at the time of the trial, plaintiff’s nervous system was somewhat below par, the physicians attributing that condition to the weakened condition of the body, resulting from the injury and his long confinement; but they thought this nervous condition would pass away. It' is shown that his knee and hip joints are somewhat stiff, with one leg slightly shorter than the other. At the time of the trial, there was a sore on one of plaintiff’s legs which was discharging. .Dr. Abramson attributed that condition to the fact, as he thought, that there was a small fragment of bone working towards the surface, but he said that condition should be relieved within sixty or ninety days. The testimony shows that, as a result of the rupture to the urethra, there remained a scar which restricted the flow of the urine, and that it became necessary to dilate the urethra every four or five days by inserting a steel sound. Dr. Rougon testified that this condition was permanent and that it would probably be necessary to dilate the urethra at intervals of a few months throughout plaintiff’s life.

The plaintiff also claims that, as a result of this accident, he has been rendered impotent, but he failed to make satisfactory proof of that fact.

We are satisfied from the testimony that plaintiff will suffer considerable inconvenience and partial disability to do manual labor, due to the slight stiffness of his joints; and his earning capacity will be diminished to some extent.. But he is, by no means, wholly incapacitated. There is no doubt that, as a result of the accident, the plaintiff has undergone great pain and suffering.

We are indebted to counsel on-both sides for their industry in collating cases showing amounts awarded by our Supreme Court- in personal injury suits. We have carefully noted them all. It would sub-serve no useful purpose to cite them here.

Our conclusion is that for plaintiff’s suffering and injuries which he has sustained, he is entitled to an award of twelve thousand ($12,000.00) dollars. This, we think, is in line with amounts awarded in other cases for similar injuries and suffering.

The testimony shows that the plaintiff incurred expenses in the way of hospital and medical bills amounting to $4,073.98. He should recover this amount, in addition to the $12,000.00, as above stated.

Counsel for plaintiff contend that he should also recover the amount of compensation which his employer paid him during disability, in addition to the award for pain, suffering and injuries. We do not think so, but think this should be included in the $12,000.00.

For the reasons assigned, it is therefore ordered, adjudged and decreed that the judgment appealed from be amended so as to reduce the amount to $16,073.98; and that, as thus amended, it be affirmed, the appellee to pay costs of the appeal.


text:
    No. 3174
    Second Circuit
    DEMOSS v. POLICE JURY OF BOSSIER PARISH
    (March 14, 1928. Opinion and Decree.)
    (May 22, 1928. Rehearing Refused.)
    (June 4, 1928. Judgment of Court of Appeal reversed by Supreme Court on a writ of certiorari review.)
    Murff and Perkins, of Shreveport, attorneys for plaintiff, appellee.
    R. H. Lee, of Shreveport, attorney for defendant, appellant.
   ODOM, J.

The plaintiff brings this action against the Parish of Bossier for damages to his crops caused by cattle which got into his field after a fence had. been torn down in order to widen a public road, it being alleged that the fence was torn down by the road contractors by order of the highway engineer working for and under orders of the Police Jury.

The Police Jury- tendered an exception of no cause of action, which was overruled by the lower court. Upon trial, judgment was rendered in favor of plaintiff, and defendant, the Police Jury, has appealed.

OPINION

In the year 1926 the Police Jury of Bossier Parish let a contract to Burt & Byrd, road contractors, to repair a certain public road, the work, it seems, to be done under the supervision of J. R. Wendt, the highway engineer. It was a local or parish and not a state project.

The public road for some distance runs along the edge of the plantation of Mr. Bolinger. At that place, in order to repair the road and build it up to grade, it was necessary to widen it, and Bolinger, the owner of the adjacent land, gave the Police Jury permission to use from his land' whatever additional right of way was necessary, with the understanding, it seems, that his fence was to be moved back and reset without expense to him.

The fence was moved back and reset by the road contractors at their expense. After the fence was moved back and reset by the contractors, they discovered that in order to get the necessary dirt to raise the dump to the specified height, still more width was necessary, and they so informed Wendt, the engineer. Wendt got permission from Bolinger, the land owner, through an agent, to take more of his land for the road. This necessitated a second removal of the fence. Wendt, the engineer, ordered the contractors to again remove the fence. They did so, but this tirhe failed to reset it. This left the field and the crops therein exposed to depredation by stock.

The Bolinger plantation was leased by him for 1926 to the plaintiff, DeMoss, who had the field adjacent t'o the road planted to cotton and corn. Cattle got into the field and destroyed plaintiff’s crops. He prosecutes this suit against the Police Jury to recover the amount of his loss and damage.

It is alleged and admitted that J. R. Wendt was employed by the Police Jury as highway engineer and that the public road was being repaired by the Police Jury under his supervision and that he ordered the fence removed and in doing so he was acting as an employee and agent of the Police Jury.

But there is no allegation, nor is there any suggestion of proof, that the Police Jury, as a body, by ordinance or otherwise, ordered the removal of the fence; nor is there any allegation or proof that any of the members of that body gave such order.

Conceding that plaintiff’s crops were damaged by stock on account of the removal of the fence, in the manner and under the circumstances above set forth, the question which we are called upon to decide is whether the Parish of Bossier is liable for such damage.

Our conclusion is, and we hold, that it is not.

Police Juries are state agencies. They represent the state in purely local matters. They possess no powers and no authority except that which is expressly delegated to them by the state.

Under Section 2743 of the Revised Statutes, as amended by Act No. 202 of 1902, the state delegated to Police Juries the power to make all such rules and regulations as they may deem expedient as to the “making and repairing of roads, bridges,” etc. They are not required to make and repair roads but may do so. Their duties in that respect are purely discretionary. When they make or repair public roads, they do so as agents of the state and exercise only governmental functions.

“Except in a few jurisdictions, it is the rule that counties are not subject to liability for torts, in the absence of statutes which either expressly or by implication impose such liability upon them.”

15 Corpus Juris, page 568, Section 272.

And the text writer proceeds:

“More strictly speaking, a county, when exercising governmental functions and acting as an agency of the state, is not liable, in the absence of statutes imposing liability, for its failure to perform a duty or for its negligent performance of a duty, not even when the duty is imposed by statute.”

In the case of Gaudet vs. Parish of Lafourche, 146 La. 363, 83 So. 653, our Supreme Court quoted approvingly the following from the opinion in the case of Bankins vs. Police Jury of Calcasieu Parish, 116 La. 639, 40 So. 925:

“The two cases above cited (in the Bankins case, to wit: King vs. Police Jury, 12 (La.) Ann. 858, and Sherman vs. Parish of Vermilion, 51 (La.) Ann. 880, 25 South. 538) are in accord with the great weight of authority in other jurisdictions to the effect that ‘counties, being subdivisions of the state and instrumentalities of government exercising authority given by the state, are no more liable for the acts or omissions of their officers than the state itself.’
“Some courts hold that counties are liable under the common law, where they are charged with a specific duty, and provided with the means of enforcing it, for a negligent breach of duty, ‘but the very decided weight of authority is that there is no liability unless it is created by statute.’ Elliott, Roads and Streets (2nd Ed.). Sec. 53.”

In the case of Sherman vs. Parish of Vermillion, supra, approved in Gaudet vs. Parish of Lafourche, supra, it was held that parishes are not responsible for damages caused by negligence of Police Juries in matters in which they have discretion, and the reason given was that:

“they represent the state, and not the taxpayers, by whom the damages, if allowed, would have to be paid.”

In the case of Fischer Land & Improvement Co. vs. Bordelon, President of Police Jury, 52 La. Ann. 429, 27 So. 59, the Court held, quoting the syllabus:

“A parish is an involuntary corporation vested with a portion of the political powers of the state, and exercises only a quasi, legislative authority. It is not liable in damages for torts or trespass committed upon the property of individual citizens to whom it sustains no private relations. In this respect the parochial differs essentially from the municipal corporation.”

In the- Fischer case, supra, the Court specifically held that the rights, powers, duties and liabilities of a parish and its governing officers differ materially from those of a city, the parish organization being “created almost exclusively with a view to the policy of the state at large” whereas a municipal corporation is created “mainly for the interest, advantage and convenience of the locality and its people.”

Learned counsel for plaintiff, in brief, cite the case of Bright vs. Bell, 113 La. 1078, 37 South. 976, in support of their contention that the parish is liable. That case has no application whatever to the point involved in the case at bar.

In that case neither a municipal nor a parochial corporation was involved. That suit was against the individual members or commissioners of the Metairie Road, authorized under ordinance of the city of New Orleans to “maintain and embellish the roadway and sidewalks of the Metairie Road.” .

Counsel in their brief cite the case of Houston vs. Police Jury of the Parish of St. Martin, 3 La. Ann. 566, in support of their contention that the Parish of Bossier is liable in the case at bar. There the Court said:

“From the examination of the evidence, we have come to the conclusion that there was neglect on the part of those for whose acts the parish is responsible, and that the parish is bound to repair the damage caused thereby.”

That case has not been followed or cited in late decisions, aná in so far as it announced the principle, if it in fact did so, that a parochial corporation is liable in damages for the torts or neglect of its officers, the holding has been repeatedly and consistently repudiated.

It is argued on behalf of plaintiff’s case that Police Juries, acting for parishes, have no right to take private property for the building of roads, without due process of law, and that is unquestionably true.

Section 3369 of the Revised Statutes provides that roads shall be laid out by a jury of freeholders who shall assess the damages and:

“All damages assessed by the said jury to any individual through whose land the road may run shall be deemed a parish charge, and be paid by the treasurer of said parish.”

And, in Section 3370, it is provided that:

“Whenever any individual through whose land a road laid out as aforesaid shall pass may be dissatisfied with the decision of the freeholders laying out the same, either as to the course the same is to take or to the damages to him assessed, he may have an appeal to the District Court for the parish in which the said road lies * * * ”

But it must be borne in mind that DeMoss, the plaintiff, does not own the land through which this road passes, and which was taken by the Police Jury, nor did he own the fence which was torn down. The land and the fence were owned by Bolinger, who gave his consent to the taking of the land and the removal of the fence. The Police Jury had full authority to take the land and tear down the fence. That was conferred by the land owner.

Plaintiff’s claim against the parish is not for destroying the fence. That did not belong to him. But the burden of plaintiff’s complaint is that the parish, through Wendt, its engineer, pulled the fence down and neglected to reset it and thereby exposed his crops on land which he had leased from Bolinger. In substance, he charges the officers or agents of the parish with neglect of duty which resulted in damage to him. He cannot recover, because the parish is not liable for damages resulting from the neglect of its officers.

Counsel urge the point that there is a difference between a case where damages result from an active trespass committed by the officers of a parish and a case where damages result from a mere passive neglect of their duties.

Conceding, for the sake of argument, and without so holding, that there is force in the suggestion, that will not avail plaintiff under the circumstances of this case, because the parish committed no trespass upon the property of plaintiff.

A trespass is a transgression or wrongful act, or the going beyond one’s right.

The parish, in this instance, did nothing except' what it had a lawful right to do. It tore down a fence, but that was Bolinger’s fence and he authorized the parish to tear it down. So the act of the parish was lawful.

DeMoss, the plaintiff, was Bolinger’s tenant. The parish was under no obligation to maintain a fence around DeMoss’ crops. That duty devolved upon Bolinger, the lessor.

Article 2703 of the Civil Code provides:

“The lessor is not bound to guarantee the lessee against disturbances caused by persons not claiming any right to the premises; but in that case the lessee has a right of action for damages sustained against the person occasioning such disturbance.”

This case, however, does not fall under that article, for the reason that the disturbance, if such it may be called, was not caused by “persons not claiming any right to the premises.”

The parish not only claimed the right, but in fact had the right to go upon the leased premises and tear down the fence. That right was given by Bolinger, the owner of the land. Plaintiff’s crops were not destroyed in the building of the road. The fence was left down, and the cattle destroyed them.

The Parish of Bossier is not liable for the damage which plaintiff claims. •

For the reasons assigned, the judgment appealed from is reversed and avoided, and plaintiff’s demands are rejected, and his suit dismissed, at his cost in both courts.

ON SECOND CONSIDERATION

On our first consideration of this case, we sustained the defendant’s exception of no cause of action and dismissed plaintiff’s suit. The Supreme Court ordered the case up on a writ, (18 So. 700), reversed our judgment, holding that as a matter of law the Police Jury is liable for whatever damage plaintiff may have' sustained to his crop on account of the destruction of the fences, and remanded the case to this court in order that we might fix the quantum of damage.

The testimony shows that when the fence around plaintiff’s field was pulled down and destroyed- by the Police Jury, cattle depredated upon plaintiff’s crops and destroyed 7,000 pounds of cotton in the field and 180 bushels of corn. It is shown that 7,000 pounds of seed cotton would yield 2,333 pounds of lint, and 4,666 pounds of seed. The Court found that the lint cotton was worth fifteen cents per pound and that the seed were worth $30.00 per ton. The cotton and the seed were, therefore, worth $417.00. But, from this amount should be deducted' a reasonable amount ¿or the picking thereof, or $1.00 per hundred pounds for the seed cotton, amounting to $70.00, leaving a net value for the cotton of $347.00. To this, should be added $180.00, value of the corn destroyed, making a total loss for the crop of $527.00. This does not take into consideration the claim which the plaintiff made for expense in guarding the crop. We are not informed whether the Judge in the lower court took that item of expense into consideration in fixing the amount due plaintiff. Our conclusion is that whereas plaintiff no doubt expended some amount for guarding the crop, yet he did not make it plain as to the exact sum. The District Judge rendered a judgment in favor of plaintiff for $530.00. That is only $3.00 more than we figure the damage to the crop, but we shall not amend his judgment to correct that slight error.

Counsel for the Police Jury argues that the plaintiff was not- the owner of an entire interest in the crops destroyed, the same having been produced by tenants. The testimony shows that the tenants were “croppers” or “half hands.” The whole of the crop belonged to DeMoss at the time it was destroyed, because no division of it had been made. (See Holmes vs. Payne, Sheriff, et al., 4 La. App. 345, and authorities there cited.)

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


text:
    No. 3263
    Second Circuit
    ACHEE v. WILLIAMS ET AL.
    (November 8, 1928. Opinion and Decree.)
    (December 19, 1928. Rehearing Refused.)
    L. Percy Garrot, of Shreveport, attorney for plaintiff, appellee.
    Lyons and Prentiss, of Shreveport, attorneys for defendant, appellant.
   STATEMENT OF THE CASE

REYNOLDS, J.

Plaintiff, B. E. Achee, recovered judgment in the District Court of Caddo Parish, Louisiana, against W. B. Williams for the sum of $1092.00, less a credit of $326.10, with interest on the balance of $765.90 from June 23, 1923, until paid, and 15 per cent on the amount of principal and interest, as attorney’s fees. From this judgment Williams appealed suspensively to this court, and defendant C. H. Lyons became surety on his appeal bond. This court affirmed the judgment appealed from (Achee vs. Williams, 6 La App. 316). On October 6, 1927, $400.00 was paid on the judgment, being the proceeds of the sale of property of the judgment debtor under fi. fa. issued upon the judgment, which fi. fa. also returned that the sheriff was unable to find any other property belonging to the judgment debtor out of which the balance of the judgment could be made. Thereupon the judgment creditor obtained a rule on the surety on the appeal bond, defendant C. H. Lyons, to show cause why judgment should not be rendered against him for the amount of the balance owing under the Judgment. The rule was heard and on January 14, 1928, judgment was rendered in favor of the plaintiff in rule, W. B. Achee, and against the defendant in rule, C. H. Lyons, for the sum of $1092.00, less credits aggregating $326.10, with interest at the rate of 8 per cent per annum on the balance of $765.90 from June 10, 1923, until paid, and 15 per cent on the amount of the balance of principal and interest, as attorney’s fees, and all costs of suit, less $400.00 paid on October 26, 1927.

From this judgment defendant in rule, C. H. Lyons, appealed suspensively. Plaintiff in rule, W. B. Achee, has answered the appeal and asks that the appeal be decreed frivolous and that a penalty of 10 per cent on the amount owing on the judgment be imposed on the appellant as for a frivolous appeal.

OPINION

Defendant in rule, C. H. Lyons, has not appeared in this court nor filed any brief pointing out any error in the judgment appealed from. Nevertheless, we have read the record and it does not show any error in the judgment.

Plaintiff in rule, W. B. Achee, asks that. defendant in rule, C. H. Lyons, be decreed to pay 10 per cent on the amount owing on the judgment as for frivolous appeal; but inasmuch as the judgment appealed from bears interest at the rate of 8 per cent per annum and awards him 15 per cent on the amount of principal and interest owing thereon, as attorney’s fees, we do not think that plaintiff in rule is entitled to the penalty prayed for.

Mercantile Adjustment Agency vs. Palmisano, 2 La. App. 443; Citizens D. & I. Co. vs. Brennan, 5 La. App. 402.

Since the foregoing was written, we have been favored with a brief by the appellant, and, though delay in which to file it was not asked for nor granted, ,it has been read and considered by us.

The brief alleges two grounds of error, namely:

1.

“Not even a copy of the purported judgof the Court of Appeal was offered in evidence, and there is no evidence to show that such a judgment, if rendered, has been recorded in the records of the clerk of the District Court.”

2.

“There is no evidence to show that the sheriff, before he returned the writ, made a demand upon the surety to point out property belonging to the defendant; this showing is essential to entitle plaintiff to judgment against the surety; and can only be shown by the return itself.”

I.

We find at the end of the record a certificate, under the hand and seal of office of the clerk of the court a quo, in words and figures as follows, to-wit:

“State of Louisiana,
“Parish of Caddo.
“Office of the Clerk of Court.
“I, E. W. Goetz, Jr., deputy clerk of the First Judicial District Court of the state of Louisiana, in and for the parish of Caddo, do hereby certify that the within and foregoing pages, numbered, consecutively, 1 to 134, inclusive, do contain, so far as a thorough and diligent' search of the records of the court show, a true, correct and complete transcript of all the proceedings had and documents filed to date upon the trial of the cause wherein B. E. Achee is plaintiff and appellee, and W. B. Williams is defendant and C. H. Lyons is surety on former appeal bond, and appellant, instituted in this court and bearing file number 35,934.
“In testimony whereof, I have hereunto set my hand and affixed the seal of said court, at the city of Shreveport, Caddo parish, Louisiana, on this the 2nd day of March, A. D., 1928.
“E. W. GOETZ, JR.
"(SEAL) “Deputy Clerk.”

Pages 88 to 93, both inclusive, of the record are made up of a copy of the opinion and judgment of this court rendered in case No. 2221 on its docket entitled B. E. Achee versus W. B. Williams, prepared by the clerk of this court to accompany the record on appeal back to the court from which the appeal originated, pursuant to Act No. 233 of 1908.

This copy is certified as follows:

“I certify the above and foregoing six pages to contain a true and complete copy of the judgment rendered by the Court of Appeal, Second Circuit, on April 8, 1927. Rehearing was refused May 13, 1927.
“ALBERT E. EWING,
“Clerk of the Court of Appeal, Second Circuit, state of Louisiana.”

It would appear, therefore, that appellant is in error in supposing the record does not contain proof of such a judgment having been rendered.

The record on appeal, of which this judgment forms a part, comes to this court from the office of the clerk of the same court that' rendered that judgment. Necessarily, then, the copy of the judgment incorporated in the record must have been filed in his office; otherwise it could not have gotten into the record.

It is true the copy does not bear any endorsement of the clerk showing that it was filed and recorded in his office, but since it affirmatively appears that there was such a judgment and that a certified copy of it was in the clerk’s office, we must presume that. it was filed and recorded, in the absence of evidence to the contrary.

The Supreme Court, in the oase of Thomas vs. Goodwin, 120 La. 504, 45 So. 406, where a practically similar question was under consideration, and where it was not shown that such a judgment had been rendered and a certified copy of it deposited in the office of the clerk of the District Court, said:

“If it had been shown that such judgment had been rendered, and that a certified copy had been filed in the district court, we should probably have presumed, in the absence of evidence to the contrary, that the clerk had performed his duty in that respect.”

II.

The sheriff returned on the writ of fieri facias:

“Received the within writ on June 24, 1927, and demanded payment of the judgment or sum of W. B. Williams and C. H. Lyons, and, upon their failure to pay, and finding no property belonging to W. B. Williams, called upon said parties to point out property belonging to W. B. Williams, and they failed to do so. I thereupon return this writ to the Clerk of Court this the 2nd day of Sept. 1927. M. Martin, Deputy Sheriff.”

We find that it does appear from the record and by the sheriff’s return on the writ of fieri facias that before returning the writ the sheriff demanded of the appellant Lyons that he satisfy the writ or point out property belonging to the judgment debtor Williams out of which it could be made and that he, Lyons, failed to do either.

Subsequently an alias- writ of fieri facias was issued upon the judgment under which the sheriff seized and sold as the property of the judgment debtor an automobile for the sum of $400.00 and the amount credited on the judgment.

Appellant Lyons apparently contends that the appellee Aehee, after the return of the alias writ not wholly satisfied, should again have demanded of appellant that he pay the balance owing on the judgment or point out property of the judgment debtor out of which it could be made, as a condition precedent to, his right to maintain the rule to show cause. '

We do not think he should. Having made the demand once, as shown by the sheriff’s return, appellee discharged his duty once and for all.

Moreover, we think the defenses interposed by appellee are such as should have been 'presented in limine litis and not having been so presented must be deemed to have been waived. They amount to no more than a plea of prematurity and it is well settled that such pleas must be filed before issue joined and that default cuts them off. Appellant made no appearance in the lower court and the proceedings against him were by default.

We find no error in the judgment appealed from aftd accordingly it is affirmed.


text:
    No. 3311
    Second Circuit
    WILLIAMS v. CITY ELECTRIC SHOP INC., and N. P. TANNER, AS MARSHAL
    (November 8, 1928. Opinion and Decree.)
    Harry V. Booth, of Shreveport, attorney for plaintiff, appellant.
    N. B. Carstarphen, of Shreveport, attorney for defendants, appellees.
   REYNOLDS, J.

By this action the plaintiff, Mrs. J. A. Williams, seeks to be adjudged the owner of certain radio ápparatus seized as the property of Joseph Williams by the defendant, N. P. Tanner, as Marshal, under a fi. fa. issued upon a judgment recovered by the defendant, City Electric Shop, Inc., against Joseph Williams, and to perpetually restrain the defendants from selling the property under the writ. She alleges that the apparatus was donated to her by Joseph Williams and that it has a deep sentimental value not measureable in terms of money. She further alleged that she had been damaged in the sum of $50.00 by the seizure.

A temporary restraining order was issued, and on the hearing as to whether or not a temporary injunction should be granted, the case was tried and submitted on the merits, and there was judgment recalling the preliminary restraining order and rejecting plaintiff’s demands and dismissing her suit, and she appealed.

OPINION

This court is without jurisdiction of an appeal ratione materiae where it does not affirmatively appear from the record that the amount or value involved is more than $100.00 and not more than $2000.00.

Constitution of 1921, article VII, section 29.

And where it does not so appear it is our duty to dismiss the appeal ex proprio motu.

Louisiana Digest, vol. 1, verbo Appeal, section 26.

Plaintiff alleges the property seized to have a sentimental value not measureable in money. Its actual value might be either above our maximum or below our minimum or within our jurisdiction. There is no way for us to ascertain positively and we are not at liberty to make any assumption as to the actual value.

Plaintiff alleges that she was damaged to the extent of $50.00 by the seizure, but this amount alone is not sufficient to bring the appeal within our jurisdiction.

The appeal must therefore be dismissed for want of jurisdiction, and it is so ordered. '