text:
    No. 2710
    Second Circuit
    ALEXANDER, BOLTON & LEWIS INS. CO. AGENCY v. MAYER
    (June 28, 1927. Opinion and Decree.)

      (Syllabus by the Court)
    1. Louisiana Digest — Prescription—Par. 107.
    A verbal acknowledgment of or promise to pay an open account before prescription has run against it interrupts prescription.
    Bennett-Brewer Hardware Co. vs. Wake-man, 2 La. App. 376.
    2. Louisiana Digest — Appeal—Par. 625.
    When the evidence is conflicting and the issue one of fact, the appellate court will give great weight to the finding of the trial judge, and his decision will not be disturbed unless manifestly erroneous.

      Appeal from the Ninth Judicial District Court of Louisiana, Parish of Rapides. Hon. Leven L. Hooe, Judge.
    Action by Alexander, Bolton & Lewis Insurance Agency, Ltd., against Dave Mayer.
    There was judgment for plaintiff and defendant appealed.
    Judgment affirmed.
    Thornton, Gist & Richey, of Alexandria, attorneys for plaintiff, appellee.
    T. A. Carter, of Alexandria, attorney for defendant, appellant.
   STATEMENT OF THE CASE

REYNOLDS, J.

There is a suit on an open account for eight items of debit for premiums on fire insurance policies issued to defendant during the year 1920 and aggregating $325.86, less a credit of $104.61, leaving a balance claimed of $221.25.

Defendant denied liability and pleaded the prescription 'of three years. He also reconvened for $55.00. unearned premium.

On these issues the case was tried and there was judgment in favor of the plaintiff in the sum of $221.25, with 'legal interest thereon from January 1, 1921, and in favor of the defendant on his reconventional demand in. the sum of. $49.27. '

OPINION

This is a suit on an open account for the premiums on policies of insurance issued by plaintiff to defendant during the year 1920, less credit for unearned premiums on certain policies that were can-celled. Plaintiff alleges that on several occasions during the years 1921, 1922, 1923 ■and 1924 the defendant acknowledged the continued existence of the debt and promised to pay it.

The dates and amounts of the several debits, as set out in the petition and sworn to by R. C. Bolton, the secretary-treasurer of the plaintiff, are as follows:

January 27, 1920 ._...............$ 18.75
February 28, 1920.................... 45.00
March 25, 1920 ________________________ 15.00
March 25, 1920 ________________________ 7.00
March 25, 1920 ________ 28.25
October 1, 1920 ....... 140.42
October 1, 1920 ....... 28.44
Making a total- of ___________________$325.86

And the dates and amounts of the credits on the account are as follows:

October 1, 1920 _......................$ 21.87
October 1, 1920 ________________________ 6.84
October 1, 1920 ________________________ 6.25
October 1, 1920 ........ 5.42
October 1, 1920 ........................ 14.80
October 1, 1920 ________________________ 21.75
October 1, 1920 ________________________ 5.83
January 24, 1921 ____________________ 22.05
Making a total of ____________________$104.61

R. C. Bolton, secretary-treasurer of plaintiff, testified (Evidence, pages 2, 3, 13):

“Q. I hand you documents marked ‘Plaintiff 1’ and ‘Plaintiff 2’ and ask you if these statements show a true and correct itemized account of the statement of the amount which Mr. Mayer owed the Alexander, Bolton & Lewis Insurance Agency, Ltd., less the credits shown thereon?

(The documents shown witness corresponded to the debits and credits above copied.)

“A. (Witness examines statement above referred to.) Yes, sir; this statement is correct.
“Q. Is this ‘Plaintiff 2’ the only credit due against the amount?
“A. With the exception of the refund due to' the cancellation; that does not enter into this; that is a separate item of which we have a record.
“Q. That item has nothing to do with these items?
“A.- It has to do with the fifth installment which was cancelled and there is a refund due on $49.27, I think it is; I think that is the correct amount.
“Q. Well, would this account of $221.25 he subject to that additional credit?
“A. Yes, sir; $49.27.
“Q. The $49.27?
“A. Yes, sir.
“Q. These items on the account show as having been charged in January, February, March and October of 1920. Did Mr. Mayer ever state to you whether or not he owed these amounts, and whether or not he was going to pay you?”

This question was objected to by the defendant as incompetent, irrelevant and immaterial, but the objection was overruled by the court, and the defendant excepted and on his request the same objection, ruling and exception was made to apply to, all similar questions.

“A. Yes, sir.
“Q. Do you remember, approximately, the dates on which Mr. Mayer acknowledged to you that he owed these items?
“A. I cannot remember the dates, but Mr. Mayer made repeated promises to pay the account at a number of different times; in fact, I frequently saw him on the streets of Alexandria and would speak to him about the account, and he would say: ‘Well, I am not in a position to pay it now, but I am going to take care of it; and in one or two instances he said as soon as my hay is cut I will pay it out of the proceeds of my hay’.
“Q. When did he say that?
“A. He has promised it ever since the policies were due until a short time before the policies expired.
“Q. Did he admit to you owing this account and promise to pay it in 1920?
“A. Yes, sir.
“Q. In 1921 did he acknowledge it and promise to pay it?
“A. Yes, sir.
“Q. In 1922 did he acknowledge owing it and promise to pay it?
“A. Yes, sir.
“Q. During the year 1923, did he make the same acknowledgment and promise?
“A. Yes, sir.
“Q. What about 1924?
“A. Yes, sir.
“Q. The items charged on this account were not included in any notes to the Hartford Fire Insurance Agency, were they?
“A. No, sir.
“Q. Are you still positive in your mind that during each of the years, 1921, 1922, 1923 and 1924, you had a conversation with Mr. Mayer about this account, and that he acknowledged it and premised to pay you?
“A. Yes, sir.”
F. J. Blanchard, called by the plaintiff, testified, pages 13, 14, 17:
“Q. I hand you documents marked ‘Plaintiff 1’ and ‘Plaintiff 2’ and ask you if you are familiar with that account covered by that statement?
“A. Yes, sir, I am, except for the credit memorandum in 1925.
“Q. Did you ever have occasion to say anything to Mr. Mayer about this account during the years that you were working there for the Alexander, Bolton & Lewis Agency?
“A. Yes, sir.
“Q. Will you state what those conversations were, and about when?
“A. In October, 1920, the special agent for the Hartford Eire Insurance Agency wrote this farm schedule at Mr. Mayer’s place. After January, 1921, when policies were received and the account had become past due, I made trips at different intervals to Mr. Mayer’s place and requested payment.
“Q. What did Mr. Mayer say on this occasion? I mean on these occasions?
“A. Different things; that he could not pay at that time; that he did not have the money.
“Q. Did he or not say that he would pay?
“A. Yes, sir.
“Q. And that he owed them?
“A. Yes, sir.
“Q. Do you remember what years those trips covered?
“A. 1921, 1922 and 1923.
“Q. You made trips to see him in each one of those years?
“A. Yes, sir.
“Q. Did he admit that he owed it?
“A. Yes, sir.
“Q. Did you go there as a representative of the plaintiff company?
“A. Yes, sir.
“Q. I said, it is clear to your mind, notwithstanding the fact that you cannot remember even the year, that Mr. Mayer promised to pay the account?
“A. I did not say thai I could not remember the year that Mr. Mayer promised to pay the account, because he promised it each time that I went to see him.”

The defendant, Dave Mayer, testified, pages 20, 21, 22:

“Q. Mr. Mayer, how much were these notes, the principal of these notes, that you have sued on?
“A. $168.00 a year for five years.
“Q. $168.00 a year for five years?
“A. I sent to the Hartford Fire Insurance Agency every year $168.00.
“Q. Do you mean to say that there were five notes?
“A. No, sir; just one note, I think. It is on record here; and Mr. Provosty sued and got judgment for the balance of the note, and it is in the courthouse here now on record.
“Q. Are you certain that there were five installments on that note of $168.00 each?
“A. I guéss' so; it was one piece of paper and I signed it.
“Q. You did not agree to pay the first installment cash, and then give a note for the other four installments?
“A. I don’t know anything about it.
“Q. You do' not deny that the first installment on that policy was to be paid in cash; do you?
“A. I could not say; I know that I gave the nqtes for the policy.
“Q. But you don’t mean to say that this suit to which you have reference, and the note that was included therein, covered the first installment on this policy, do you?
“A. Well, that was a five-year note for $168.00.
“Q. You never told them that you did not owe the account?
“A. I don’t know what the account is for.”

It is clear from this evidence that the defendant (as is the custom with many business men) left his insurance matter entirely to his insurance agent and depended entirely on the agent to keep an account of debits and credits on account of insurance premiums.

It is also clear from the evidence that defendant owed plaintiff five installments of $168.86 each for premiums on an insurance policy issued by the Hartford Fire Insurance Company and that he closed only $675.44 in a promissory note, leaving $168.86 to be carried on open account. He paid on the note $506.58 and for the balance of $168.86 the Hartford Fire Insurance Company obtained judgment against him. No part of the debt represented by the open account sued on herein was embraced in that judgment. This was explained by defendant’s witness, Bolton, who testified, page 6:

“Q. Was that account closed by these notes?
“A. No, sir; this account of ours is not closed out by notes. This account does not represent notes at all.
“Q. You just stated that it did?
“A. I said the original policy. I shall he glad to explain that. The Hartford Fire Insurance Company issues policies on the 5-year plan, 20% payable annually; in other words, five installments. The first installment is a cash installment, due when the policy is delivered. The remaining installments are payable annually thereafter, and it is the cash installment that is due on this account, plus earned premiums on policies that were issued and later can-celled and included in this form schedule.”

On trial defendant objected to the admission of parol evidence to prove admissions on his part of the existence of the debt or promises by him to pay it. As the debt was not yet prescribed at the time of the admissions and acknowledgments the testimony was admissible.

Bennett-Brewer Hardware Co., Inc., vs. Joseph P. Wakeman, 2 La. App. 376.

Defendant claimed in reconvention, $55.00, and the plaintiff, on trial, conceded that he was entitled to. an additional credit of $49.27, and the judgment appealed from gave defendant credit for this additional amount.

The trial judge saw and heard the witness testify and gave plaintiff judgment for the amount claimed by it, and defendant judgment for $49.27 on his reconventional demand. After carefully reading the record we are convinced that the judgment of the District Court is right.

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


source: Caselaw Access Project

author: REYNOLDS, J.

license: Public Domain

text:
    No. 2953
    Second Circuit
    WALKER, JR. v. SHOLARS
    (May 13, 1927. Opinion and Decree.)
    (June 28, 1927. Rehearing Refused.)
    (July 2, 1927. Writ of Certiorari and Review Applied for.

      (Syllabus by the Court.)

    1. Louisiana Digest — Master and Servant —Par. 164, 166.
    Where the owner of an automobile places it at the disposal of a friend of his with the statement to a mutual friend of both the owner of the car and of the person at whose disposal it is placed who is to drive the car, “I want the groom (the friend at whose disposal he placed the car) to use my car in any way he cares to, and if he wants to take the car himself and go to Asheville on his wedding trip it is perfectly all right with me.” the automobile is in charge of and subject to the control of the groom, and the mutual friend driving the car is as much the agent of the groom as he is of its owner; and such owner will not be liable for injuries received by the groom in an accident to the car caused by negligent driving on the part of the mutual friend for the reason that the driver is not in the owner’s employ nor engaged in his business.
    Potts vs. Pardee, 220 N. Y. 431, 116 N. E. 78.
    2. Louisiana Digest — Master and Servant —Par. 164, 166.
    The owner of an automobile is not liable for injuries received by a person riding therein in an accident caused by negligent driving on the part of the driver where such driver is not in the owner’s employ nor engaged in his business.
    Ibid. Marullo vs. St. Pasteur, 144 La. 926, 81 South. 403.
    Appeal from the Fourth Judicial District Court of Louisiana, Parish of Ouachita. Hon. Percy Sandel,' Judge.
    Action by William 'A. Walker, Jr., against Allan Sholars.
    There was judgment for defendant and plaintiff appealed.
    Judgment affirmed.
    McHenry, Montgomery, Lamkin & Lam-kin, of Monroe, attorneys for plaintiff, appellant.
    Theus, Grisham & Davis, of Monroe, attorneys for defendant, appellee.
   STATEMENT OF THE CASE

REYNOLDS, J.

This is a suit to recover damages for injuries received by plaintiff in an accident to an automobile in which plaintiff and his bride were riding.

The automobile belonged to defendant and was being driven by a competent driver, who was a mutual friend of the owner of the car and of the plaintiff and his bride, without compensation and as an accommodation to all parities concerned.

Defendant denied liability and alleged that the journey was being made solely for the accommodation and pleasure of plaintiff and his wife and without compensation either for the use of the car or the services of the driver; that the driver was careful and competent and that the accident occurred while he was using due care and without fault or negligence on his part on a public highway in the State of Mississippi.

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

OPINION

The question for decision in this case is whether or not Mr. Allen Sholars, who placed his automobile at the disposal of plaintiff for usé on honeymoon and induced Mr. Francis Barringer, a mutual friend of himself and of the bride and groom, to drive the car as an occommodation to all persons concerned, without compensation for the use of the car or for the services of the driver, is responsible for injuries received by the plaintiff, who was riding in the car, by reason of the car turning over while rounding a double curve on a public highway in the State of Mississippi and which turning over is alleged to have been due to negigent driving on the part of the driver.

Mr. Francis Barringer, the driver of the car,, called by the plaintiff, testified:

(Record, page 10.)

“Q. Now, at whose request did Mr. Sholars agree to take them or send them in his car ?
“A. I could not definitely answer that. I know one statement that Mr.' Sholars made, and he made it to me.- He said that he had started out with the party in his car to go to Mr. Walker’s wedding, and he wanted Mr. Walker to use his car in any way that he cared to. He went further, and stated that if he wanted to take the car himself and go to Ash-ville in it on his wedding trip, it was perfectly all right with him.
“Q. You were paid nothing for that trip, were you Mr. Barringer?
“A. No, sir.
"Q. Expected nothing?
“A. No, sir.
“Q. Would not have received anything had it been offered?
' “A. No, sir.
“Q. The whole trip was being made as an accommodation and convenience of Mr. Walker and his wife, is it not true?
“A. Yes, sir.
“Q. I asked you if the drive was not being made to Memphis for the pleasure of Mr. and Mrs. Walker, it makes no difference whether you or Mr. Sholars was driving ?
“A. I think so.”

Charles Rodriguez, a witness on behalf of plaintiff, testified:

(Record, page 17.)

“Q. And in that statement, or one of them, didn’t you say: ‘We could not in any way blame Mr. Barringer as he was driving carefully and did all he could to prevent the accident’?
“A. Could you tell me who I said that to, Mr. Theus? I may have said something like that, I don’t ^remember the exact words, but I do think Mr. Barringer did everything in his power to prevent an accident. I do not think he did it maliciously or on purpose.
“Q. Now, Mr. Rodriguez, I am going to again ask you to state if you did not say to Mr. R. L. Davis after this accident, that Francis Barringer did everything he could to prevent that accident?
“A. I still say I believe Mr. Barringer did everything in his power to prevent the car from turning over.”

Miss Bishop, called as a witness for plaintiff, testified, page 20.'

“Q. About what rate of speed was Mr. Barringer driving the car at the time he attempted to turn the curve where the accident happened?
“A. I imagine between twenty and twenty-five miles.
“Q. About what rate of speed was the car going at the time it turned over?
“A. I don’t know, but he had slowed down because we were going around the curve and I had warned him.
# * *
“Q. Did you sign a statement at that time ?
“A. Yes, sir, I signed a statement, but I did not write it.
“Q. Did youread ’it?
“A. He read it to me. It was taken down in pencil.
“Q. Now, in that statement, didn’t you say, ‘We were going not over 15 miles per hour. Four miles from Shelby we come tq three' consecutive curves, at least one on the left was a steep incline. When this was reached, the car swerved and the rear wheel got off the side of the road’?
“A. Those are not my words at all.
“Q. Are these words not in a signed statement made by you?
“A. I signed the statement, but I did not write it. They were written by Mr. Nettles, representing the insurance company.
“Q. Did he read the statement to you?
“A. He read it to me. I did not read it.
“Q. If he read it, didn’t you understand the contents of it?
“A. Yes, sir. He called me to have an interview with me, and I told him the very best I could.”

Mr. Allan Sholars testified, page 60.

“Q. The facts are, you were all friends of the wedding party, and you were detained, and Mr. Barringer, at the request and consent of all parties, consented to drive the wedding party to Memphis to catch a train?
“A. It was with the consent of Mr. Walker that Mr. Barringer drove. I found that I could not go, and I selected Mr. Barringer to drive, and Mr. Walker approved that, that’s true.
“Q. You considered him a reliable driver, and competent?
“A. Yes, sir, I so considered him. I thought that he was a safe and reliable driver.”

The above quoted testimony convinces us:

1. That the defendant, Allan Sholars, did not select a reckless or careless or incompetent driver to drive the car in which plaintiff and his wife were riding.

2. That the defendant Allan Sholars did not have any control or authority over the automobile or its driver at the time of the accident to it in which plaintiff was injured.

3. That the driver of the automobile was competent and careful.

4. That the accident to the automobile was not caused by any negligence on the part of its driver.

5. That at the time of the accident the driver of- the automobile was as much the agent of the plaintiff as he was of defendant.

In Potts vs. Pardqe, 220 N. Y. 431; 116 N. E. 78, the New York Court of Appeals said:

“It has been settled by numerous authorities in this state at least when it appears, in an action against the owner of an automobile for damages sustained, that the driver was not in his employ nor engaged in his business, a plaintiff cannot recover.
“The reason underlying this rule is the general one that a party injured by the negligence of another must seek his remedy .against the person whose actual negligence caused the injury, and that such person alone is liable.”

In that case the court held that inasmuch as the automobile, at the time of the acident in which the plaintiff was injured, was not being driven by the -defendant and the chauffeur was not employed by her nor engaged in her business nor under her control she was not liable to the plaintiff for injuries received through its negligent operation, notwithstanding her presence in the car at the time of the accident.

Prom all the evidence in the case we are convinced that the judgment of the District Court is correct and accordingly it is affirmed.


author: ELLIOTT, J.

text:
    No. 4547
    First Circuit
    PAINE v. TODD
    (June 7, 1927. Opinion and Decree.)

      (Syllabus by the Editor)

    1. Louisiana Digest — Prescription—Par. 91, 167.
    The debt of a physician for visits and treatment is barred by three years’ prescription under Civil Code, Article 3538, and this prescription is not interrupted by statements mailed to the patient who did not answer.
    Appeal, from the District Court, Parish of St. Tammany. Hon. Prentice B. Carter, Judge.
    Action by R. B. Paine against Aaron G-. Todd.
    There was judgment for defendant and plaintiff appealed.

      Judgment affirmed.
    Miller and Heintz, of Covington, attorneys for plaintiff, appellant.
    Lindsey McDougall, of Covington, attorney for defendant, appellee.
   ELLIOTT, J.

Suit by a physician for visits and treatment. Defendant denied owing the account and alleged in the alternative that if any debt had existed, that it was barred by the prescription of three years.

Dr. R. B. Paine claims of Aaron G. Todd a balance of $963.00 for professional services rendered Todd, commencing December 27, 1920, and terminating July 29, 1921. The total charge was $1000.00, but credit is given for $25.00 paid at one time and $5.00 paid at another, both during the year 1921, and plaintiff further credits the account with rides in an omnibus, alleged to have been operated by defendant and his brother. These rides amounting in all to $7.00 is alleged to have been taken during the years 1920, 1921, 1922, 1923, the last qne in March, 1924. These rides added to the cash received leaves $963.00, claimed as above stated.

Defendant denies owing the plaintiff. He admits paying $25.00 at one time and $5.00 at another in 1921, but denies owing or paying any further amount and prays that plaintiff’s demand he rejected. Defendant further alleged a recent discharge in bankruptcy and pleads that if he did owe the plaintiff, that whatever he owed was discharged by his discharge in bankruptcy and he also pleaded alternatively and in addition the prescription of three years under the law, Civil Code, Article 3538. The case was taken up and partially tried on the question of prescription, but after hearing some evidence the exception was referred by the court to the merits without prejudice and the trial was proceeded with until it was finished on the merits. After hearing all the evidence, the plea of prescription was sustained and plaintiff’s demand rejected on that account. The plaintiff appealed.

The suit was filed April 17, 1926, and the defendant was cited the same day. At that time more than five years had elapsed since the last service charged for had been rendered. The plaintiff urges that the judgment sustaining the plea of prescription is erroneous. That supposing the' debt to have existed as alleged, that prescription was interrupted and prevented from barring the claim. The plaintiff testified that he sent to defendant through the mail statements of account, showing the cash credits paid and also credits for the rides taken in the omnibus operated by defendant. That defendant must, be supposed to. have received these statements and that he never at any time urged to plaintiff any objections to the amount charged, nor to the credits given him on account; that defendant’s failure to object served to interrupt prescription, citing Flower vs. O’Bannon, 43 La. Ann. 1042, 10 South. 376; Block Co. vs. Papania, 121 La. 683, 46 South. 694, and to which we add as bearing on the question Sleet vs. Sleet, 109 La. 302, 33 South. 322, and Bennett-Brewer Hdw. Co. vs. Wakeman, 160 La. 407, 107 South. 286. As the court decided the case on the question of prescription we do not consider the other defenses, and restrict our ruling, to the same question. Defendant denies that he received the statements said to have been sent him through the mail; denies that plaintiff had the right or the authority to credit him with rides as claimed by plaintiff and testifies that he never charged plaintiff with any rides, nor authorized it to be done. The evidence in the record does not' establish an interruption of prescription. Therefore if any amount was due the plaintiff as claimed by him in his petition, it is barred by the prescription pleaded against it.

Judgment affirmed. Plaintiff and appellant to pay the cost in both courts.


author: MOUTON, J.

text:
    No. -
    First Circuit
    JOHNSON v. FOREST LBR. CO.
    (June 7, 1927. Opinion and Decree.)

      (Syllabus by the Editor)
    1. Louisiana Digest — Master and Servant —Par. 159, 160j.
    Where the evidence in a Workmen’s Compensation case under Act 20 of 1914 as amended clearly shows that cancer of the liver could not be superinduced by an injury to the arm and that such injury could not have hastened the death on account of such cancer there can be no recovery for compensation on account of the injury.
    Appeal from Allen Parish. Hon. Jerry Cline, District Judge.
    Action by Alice Monk Johnson against Forest Lumber Company.
    There was judgment for defendant and plaintiff appealed.
    Judgment affirmed.
    Julius T. Long, of Shreveport, attorney for plaintiff, appellant.
    Thornton, Gist & Richey, of Alexandria, attorneys for defendant, appellee.
   MOUTON, J.

Reyland Johnson was injured in the latter part of July or in the beginning of August, 1925, while in the employ of defendant company. He died of cancer, November 24, 1925, at the Charity Hospital in New Orleans.

This suit is brought by Mrs. Alice Johnson, his surviving wife, under the Workmen’s Compensation Act. Her demand was rejected. She appeals.

In her original petition plaintiff alleged that deceased “accidentally got his left arm bruised and injured in a fall which fall also injured his nerves, heart, lungs and other parts.” On an exception of vagueness this petition was amended. In her amended petition she amplified the original pleadings and alleged that the accidental injuries she had originally averred had caused mestastasis of the right lung and carcinoma of the liver; that the said injury to his right arm either brought on all of said injuries and impairments and diseases or greatly increased, augmented and accelerated pre-existing troubles which caused his death.

Dr. J. H. Munser, professor of medicine at Tulane University, was the attending physician to Riley Johnson at the Charity Hospital from November 16 to the time of his death. He said that he died of cancer or carcinoma of the liver. As to mestastasis of the lungs which plaintiff alleges her husband suffered with, Dr. Munser explained that this was secondary cancer which had been caused by the cancer cells getting into the circulation of the lungs.

In answer to a question propounded to him, he stated with absolute positiveness that an injury to the arm of the deceased could not have superinduced cancer of the liver nor could such an injury have hastened the death of Johnson on account of such a cancer. There was not the least hesitancy or equivocation in the statement of that eminent physician that such a cause could not bring about such results. There is no expert evidence in the record which is contradictory to the opinion of Dr. Munser on this subject. This testimony was , taken in New Orleans two days prior to the trial of this case. That testimony was directed principally to the question as to whether cancer of the liver could he produced or the death of the deceased could have been accelerated by the injury he had received on his arm. The opinion of the physicians, as hereinabove stated, negatived the idea that either cancer or hastening of the disease could have resulted from an injury of that character. It seems to us, speaking as laymen, that a blow to or bruise on the arm could not possibly cause a cancer of the liver, or could have aroused the cancer cells, if at the time of the injury they were in a dormant or quiescent condition.

The proof shows that deceased was working around the dry kilns. It was shown that at times, deceased was exposed to terrific heat while in the performance of his services. Plaintiff endeavored to show that the great heat to which deceased had been occasionally subjected could have produced the cancer from which he died. It was shown by the testimony of the physicians that after many experiments to ascertain whether cancer could he produced by such a cause, the medical profession had concluded that it could not under any condition or circumstance. E. A. Smith, a fellow workman of deceased at the kiln, testified as to the manner in which deceased received his injury. He says deceased fell in a hole, was bruised by a 2x12 piece of lumber or timber that struck him on the arm, and that deceased claimed his side was hurt. His wife testifies that when he came back from a visit to the doctor after he received his injury, that she noticed “a red streak across his stomach.” Other witnesses testified that they had seen such ar streak on his side or stomach or had observed that his stomach was swollen. Such a streak or distended stomach had never been seen or noticed before the accident by his wife or any of his acquaintances, the record shows. There is no evidence to show the character of' the injury which deceased received on his side, and that it could have caused a cancer. The evidence indicates that the cancer existed at a time prior to the accident. It must therefore have been in a dormant state when the injury was inflicted. We are now referring to the injury deceased suffered to his “side” as the expert testimony makes it quite clear that the blow to his arm could not have caused or accelerated the cancer. One of the witnesses testified that this injury was on his left side, which is opposite of the side where the liver is located. Dr. Scott, while testifying for defendant company was asked if deceased had suffered a severe injury around the liver, assuming that a cancer existed at the time, if thereby it could he increased or accelerated. His answer was that it might. We have no stronger evidence than that in the record to authorize the conclusion that the cancer could have been set in motion or activated by such an injury. In the recent case of Broussard vs. The Union Sulphur Company, 5 La. App. 340, we had occasion to pass on issues in "some respects similar to those presented in the instant case. See Advance Rep., La. Courts of Appeal, Vol. 5, No. 15, p. 340, March, 1927. It was shown in that case that Mr Broussard’s shoulder was twisted or wrenched by a blow from a heavy (pipe he was carrying with others. The next morning, a lump or kernel had developed in his arm pit from which he suffered intense pains. Prom these physical facts we inferred that there was a close connection between the injury and the immediate development of the kernel under the arm. A number of physicians who testified in the case, as experts, said that this twist or wrench of the shoulder could have activated the cancerous cells, disseminating them in Mr. Broussard’s system, thus hastening his death. We held in that case that the deceased was afflicted with a dormant disease when the injury was inflicted with otherwise might never have developed; that the cells of that dormant disease had been vitalized by that accident and in a short while „ had caused Mr. Broussard’s death, citing in support of our conclusion Behan vs. John Honor, 143 La. 348, 78 South. 589; Donahoe vs. Scharfenstein & Son, 154 La. 815, 98 South. 256.

The facts of this case do not support such a conclusion, and the judgment rejecting the demand of plaintiff is therefore affirmed.


text:
    No. -
    First Circuit
    ALBANY BANK v. LACOUR
    (June 7, 1927. Opinion and Decree.)

      (Syllabus by the Editor.)

    1. Louisiana Digest — Appeal—Par. 759.
    Clerical errors made through inadvertence will be corrected to conform to the pleadings.
    Appeal from the Parish of Pointe Coupee. Hon. W. C. Carruth, District Judge.
    Action by Albany Bank against Arthur B. Lacour et al.
    There was judgment for defendants and plaintiff appealed.
    Judgment affirmed.
    Laycock, Borron & Laycock, of Baton Rouge, attorneys for plaintiff, appellant.
    M. T. Hewes, of New Roads, attorney for defendant, appellees.
   MOUTON, J.

In this case the demand is for $500.00 with interest and attorney’s fees. Through inadvertence a judgment was rendered against defendants for $1900.00 as being the main amount claimed.

The judgment will have to be corrected to conform to the pleadings.

It is therefore adjudged, ordered a,nd decreed that the judgment rendered below for $1900.00 be and is hereby reduced to the sum of five hundred dollars ($500.00) with same rate of interest and attorney’s fees on said reduced amount, as was decreed below, and as thus reduced, amended and corrected, the judgment be affirmed in all other respects.


text:
    No. 13,969
    First Circuit
    RACCA v. PARKERSBURG RIG & REEL CO.
    (May 3, 1927. Opinion and Decree.)
    (June 7, 1927. Rehearing Refused.)

      (Syllabus by the Editor.)

    1. Louisiana Digest — Master and Servant —Par. 154, 160j.
    The provisions of the Workmen’s Compensation Law No. 20 of 1914 as amended by Act 85 of 1926, Section 8, Subsection 1(d) 17 having reference to hernia are legislative measures of evidence for the guidance of courts in determining whether a real traumatic hernia, resulting' from the application of force, directly to the abdominal wall, has been sustained or not. They do not modify the law that a real traumatic hernia is compensable.
    2. Louisiana Digest — Master and Servant —Par. 154, 160j.
    In the presence of satisfactory proof that an injury was caused by sudden effort or severe strain and was not of slow development, the reason for the (provisions contained in the Workmen’s Compensation Act No. 20 of 1914 as amended by No. 85 of 1926, Section 8, Subsection 1(d) 17, are met and satisfied and the injury is compensable.
    3. Louisiana Digest — Master and Servant —Par. 154 — Laws—Par. 68.
    The legislature in passing Act 85 of 1926 amending the Workmen’s Compensation Act No. 20 of 1914, did not intend to make the attendance of a licensed physician within forty-eight hours after an injured employee receives a “ hernia an essential prerequisite to the recovery of compensation when the situation is such that there is no physician to go on the errand.
    - Appeal from the District Court, Parish of Calcasieu. Hon. Thomas F. Porter, Judge.
    Action by James Racca against Parkersburg Rig and Reel Company.
    There was judgment for plaintiff and defendant appealed.
    Judgment affirmed.
    Hobert R. Stone, of Lake Charles, attorney for plaintiff, appellee.
    McCoy & Moss, of Lake Charles, and Gordon Boswell, of New Orleans, attorneys for defendant, appellant.
   ELLIOTT, J.

Appeal from the District' Court, Parish of Calcasieu. Thomas P. Porter, Judge. Suit under Act 20 of 1914, Section 8, Subdivision 17 (Amd. Act 85 of 1926), to recover compensation on account of a hernia.

James Racca alleges that on July 26, 1926, he sustained a hernia on the left side, while working for and in the service of the defendant, Parkersburg Rig & Reel Company. That he was receiving at the time a daily wage of five dollars. He claims as compensation 65 per cent of his daily wage for twenty-six weeks and $250.00 in addition with which to pay for an operation.

Defendant admits that plaintiff was in its employment at the wage stated at. the time, but denies that plaintiff was injured as he claims while in its service and denies that he is entitled to compensation on said acoucnt. According to plaintiff he received a real traumatic hernia while working for defendant at the time stated, sat down immediately and communicated the fact to Taylor Childress, defendant’s foreman in charge of the work in which plaintiff was engaged. Plaintiff is corroborated by Elroy Johnson, a fellow workman, (present at the time. Defendant’s foreman admits that plaintiff made a complaint, but says he told him that he had strained himself. But according to plaintiff and Elroy Johnson, plaintiff. made it known to Mr. Childress in a way that he was bound to understand that he had been ruptured. The district judge was satisfied that information was given as stated by the plaintiff and we agree with the judge a quo that the information was such that there could be no mistake on the part of the foreman as to the nature of the injury that plaintiff had received. The plaintiff went home and did not return for work next morning. His testimony is that he did not return because he could not and sent word by Mr. Johnson to Mr. Tabor, defendant’s manager, informing him of his injury and the nature thereof and that he could not return to work on account of same. Mr. Johnson testifies that he communicated plaintiff’s message to Mr. Tabor next morning, and informed Mr. Tabor that plaintiff had ruptured himself the evening before. Mr. Tabor admits that he received the message. The law provides that, “Where there is real traumatic hernia, resulting from the application of force, directly to the abdominal wall, either puncturing or tearing the wall, compensation will be allowed.” It then proceeds to say that all other cases will be considered as of slow development and not compensable, being a disease rather than an accidental injury, unless conclusive proof is offered that the hernia was immediately caused by such sudden effort or severe strain: First, that the descent of the herina immediately following the cause; second, that there was severe pain in the hernial region; third, that there was such prostration that the employee-was compelled to cease work immediately; fourth, that the above facts were of such severity that the same was noticed by the claimant and communicated to the employer within forty-eight hours after the occurrence of the hernia; fifth, that there was such physical distress that the attendance of a licensed physician was required within forty-eight hours after the occurrence of the hernia.”

The evidence meets the four requirements first mentioned. As for the fifth the plaintiff did not send for nor consult a physician within forty-eight hours following the injury and defendant argues from this that his hernia is not compensable under the law. The purpose of all that is said following the provision that a real traumatic hernia will be compensated is to prevent imposition. The Civil Code, Articles 18 and 19, furnishes the rule for their understanding and application. The injury was received late in the evening, just before quitting time and plaintiff testifies that next morning his side hurt him so bad that he could not walk, could not stand on his feet, could not drive his car, that it was four or five days before he got on his feet. He further stated:

“Q. During these days, till you went to see Mr. Tabor were you able to walk around or were you in bed?
“A. Not the first four qr five days I wasn’t.”

We understand from this answer and from previous answers concerning what he did when he reached home the night he was injured that he went to bed, laid down and remained in that position for the time stated, before getting up. This fact appears in the way stated and also circumstantially, because nobody saw the plaintiff until August 3, when Mr. Tabor met him in the road near his house on his way to see Mr. Tabor and get the amount due him on acount of the work he had done. He received his pay and Mr. Tabor asked him if he didn’t want to go and see a doctor and offered to take him to see one, but plaintiff declined, stating he would see the doctor himself next morning, and he did see Dr. Watkins next morning. Questioned why he didn’t see a doctor sooner, plaintiff says that he was disabled from sending for one; that he didn’t have any money, that he had no way to go and couldn’t go very well, and didn’t have anybody else to go. Dr. Watkins corroborates plaintiff very convincingly as to the recent injury. He found plaintiff with an old hernia on his right side and a recent one on his left side. That medical treatment within forty-eight hours was not necessary; that rest is what plaintiff needed; the thing for plaintiff to do was to go to bed and rest; that if he had been called that is what he would have had him do; that an operation should be performed but not immediately; the thing was to get him off his feet and let the hernia fall back into his abdomen, etc.

According to the evidence plaintiff did just what the doctor would have had him do if called within forty-eight hours after the injury. The petition alleges and defendant states in its brief that it is about seven miles from plaintiff’s residence 'to Lake Charles, the nearest point where a physician could be obtained. It was seven or eight days after the injury before plaintiff went to see Dr. Watkins. He went, however, the next day after receiving his pay check from defendánt.

Plaintiff’s evidence as to his inability to go or send for a physician any sooner than was done is not contradicted.

Those provisions commencing with, “All other cases will be considered as of slow development and not compensable, being a disease rather 'than an accidental injury, unless conclusive proof is offered, etc., are legislative measures of evidence for the guidance of courts in determining whether a real traumatic hernia, resulting from the application of force, directly to the abdominal wall, etc., has been sustained or not. They do not modify the law, that a real traumatic hernia is compensable. And in the presence of satisfactory proof that an injury was caused by sudden effort or severe strain and was not of slow development, the reason for these provisions are met and satisfied. To hold otherwise would be in some instances unreasonable. If a man be stricken with a real traumatic hernia, such as the law defines, at a time when he is alone, of such severity that he cannot walk and nobody calls within forty-eight hours, it matters not how much a physician may be required; the attendance cannot be had; it is impossible, and it is easy to conceive of instances when such attendance cannot be procured; no matter how great the need. It is not to be supposed that the legislature intended, in the absence of an unequivocal provision in the law to that effect, that the attendance of a licensed physician must be sought within forty-eight hours as an essential pre-requisite to compensation when the situation is such that there is nobody to go on the errand.

Defendant cites in its original brief the case of Rosario vs. Heller Bros., decided by the Supreme Court of New Jersey, construing and applying an enactment in New Jersey similar to our own and in a supplemental brief the case of McPhee vs. McGinty Co., decided by the Supreme Court of Colorado in the construction and application of a similar law in the State of Colorado. We are satisfied from the evidence in this case that plaintiff is not imposing on the defendant. That his claim for compensation is based on a hernia of the kind defined in our law and received in the way alleged in his petition. We think to refuse him compensation under the circumstances for no reason except that no doctor was sent for within forty-eight hours following his injury would be to understand and apply the law erroneously. The judgment appealed from is in our opinion correct. Defendant urges in its brief that the $250.00 claimed by plaintiff for undergoing an operation should not be allowed. The district judge has provided for that matter properly. No good reason appears for any change in the decree in that respect. Judgment affirmed. Defendant and appellant to pay the cost in both courts.


text:
    No. -
    First Circuit
    WILSON v. FERGUSON
    (June 7, 1927. Opinion and Decree.)
    (June 28, 1927. Rehearing Refused.)

      (Syllabus 5y the Editor.)

    I. Louisiana Digest — Automobiles—Par. 4. 345, 377, 378.
    Under Article 233 of the Constitution 1898 and Section 11 of Article X of the Constitution of 1921 a tax title gave the purchaser civil or constructive possession of the land and the prescription of three years is sufficient to defeat the claim of another record owner of the property.
    Appeal from the Parish of Livingston. Hon. Columbus Reid, District Judge.
    Action by Maurice C. Wilson against J. B. Ferguson.
    There was judgment for defendant and plaintiff appealed.
    Judgment affirmed.
    Ellis & Ellis, of Amite, attorneys for plaintiff, appellant.
    S. S. Reid, of Amite, attorney for defendant, appellee.
   MOUTON, J.

Plaintiff claims title to the N. W. % of the S. W. % of Section 10, T. 6, S. R. 4, situated in Livingston Parish. He derives his title from Redick Sibley. He alleges that the tract to which he asserts title from Sibley is wild land, and for the past years has never been in' the actual physical possession of any one. The defendant also traces his title, though of a later date, to Sibley, the common author of the litigants, but lays no claim to the physical, actual or real possession of the property. As neither plaintiff nor defendant asserts actual possession, the claim of title is therefore beween record owners, and is governed by the provisions of Act 38, 1908, p. 38.

The defendant pleads the prescription of three years under Article 233, • Constitution 1898; and Section 11, Article 10, Constitution 1921.

The proof shows that the land which had been acquired by Theilman from Sibley, common author as above stated, was, on June 12, 1912, sold at tax-sale for delinquent taxes of 1911, assessed to Thielman, then the record owner. The land was adjudicated, at this tax-sale, to L. B. Harris, who thereafter sold to Thielman from whom John Brashear acquired and subsequently, in 1916, deeded it to defendant.

There is no contention on the part of the plaintiff of dual assessment or payment of the taxes prior to the tax-sale. He is simply claiming as record owner, against defendant, also a record owner under the tax deed. This tax title was recorded in the Parish of Livingston, -and gave defendant a civil or constructive possession of the land. This suit having been instituted far more than three years after the recording of this tax adjudication, defendant, as against plaintiff a claimant as record owner, is entitled to the property under his plea of three years prescription. Ashley Co. vs. Bradford, 109 La. 641, 33 South. 634; in re Seim, 111 La. 554, 35 South. 744.

The judgment recognizing defendant as owrifer, and rejecting plaintiff’s demand is therefore affirmed.


author: WEBB, J.

text:
    No. 2923
    Second Circuit
    STEVENS v. DEAN
    (June 28, 1927. Opinion and Decree.)

      (jSyllabus 6y the Editor)

    1. Louisiana Digest — Automobiles—Par. 4.
    Where two automobiles are driving along a highway in the same direction the forward car has the superior right.
    2. Louisiana Digest — Automobiles—Par. 4, 4a, 4d.
    One who does not violate any law in driving his automobile by reducing the speed and holding out his hand before turning to the left is not negligent.
    (Civil Code, article 2315. — Editor’s note.)
    Appeal frpm the Ninth Judicial District Court of Louisiana, Parish of Grant. Hon. R. C. Culpepper, Judge.
    Action by Miss Flora Stevens against T. Lee Dean.
    There was judgment rejecting ' demands of both plaintiff and' defendant and plaintiff appealed.
    Judgment affirmed.
    Rusca & Cunningham, of -, attorneys for plaintiff, appellant.
    W. R. Jones; C. H. McCain, of Colfax, attorneys for defendant, appellee.
   WEBB, J.

This action arises from a collision between automobiles which occurred in the day time on the Jefferson Highway where the roadway was straight, and each of the parties contends that the collision was due to the negligence of the driver of the other automobile, and sets up a claim for the resulting damages.

On trial, the demands of both parties were rejected, and plaintiff alone appeals, and defendant has not answered the appeal, and hence the only question presented is as to the right of plaintiff to recover.

Tire evidence shows that the respective automobiles were being driven on the right hand side of the road in the same direction and that the collision occurred while the plaintiff, who was driving at a speed of twenty-five or thirty miles an hour, was attempting to pass defendant’s car which was being driven at a speed of twelve or fifteen miles per hour.

The plaintiff, when at a distance of about one hundred fifty feet from defendant’s car, gave a signal by sounding the horn, and when at a distance of about forty feet she turned her car to pass to the left of defendant’s car and at about the same time the driver, of defendant’s car, after giving a signal of her. intention to pass to the left of the road so as to drive straight into a driveway of a filling station which was situated on the right side of the roadway, placed defendant’s car in such position that there was not sufficient space to the left of defendant’s car for plaintiff to pass, and the front of plaintiff’s car struck the rear of defendant's car.

The position taken by plaintiff is that the driver of defendant’s car was negligent in passing from the right side of the roadway without being sure that there was not any vehicle to the rear and about to pass.

While the drivers of automobiles are bound to maintain a look-out and observe the way to the front, they cannot be held to such observance to their rear; and where cars are being driven along the highway and in the same direction, the forward car has the superior right and cannot be said to be negligent so long as he uses the road in a lawful manner, and the evidence does not indicate that the place of the accident or the traffic was of such nature that the driver of the defendant’s car was bound to anticipate the presence of plaintiff’s car and it not appearing that she heard plaintiff’s signal, we cannot say that she was negligent in attempting to pass from the right to the left of the roadway when she had given the proper signals. See Blashfield, Automobiles, vol. 1, No. 1-4; Lumber Co. vs. Ollinger, 94 South. 177, Ala. 518).

The judgment appealed from is therefore affirmed.


author: REYNOLDS, J. WEBB, J.

text:
    No. 2712
    Second Circuit
    HOWELL v. NOAH
    (Dec. 11, 1926. Opinion and Decree.)
    (June 28, 1927. Rehearing Refused.)

      (Syllabus by the Court.)

    1. Louisiana Digest — Donations—Par. 263 Prescription — Par. 35.
    A bequest actually describing the property bequeathed, under a testament duly probated and ordered executed, constitutes a true and valid title to the property bequeathed, and ten years’ possession as owner under such instrument constitutes a perfect title good against all the world under the prescription of ten years.
    C. C. 3478; Sides vs. Nettles, 4 Rob. 170; Griffon vs. Blanc., 12 La. Ann. 6.
    Appeal from the Third Judicial District Court of Louisiana, Parish of Jackson. Hon. S. D. Pearce, Judge.
    Action by E. E. Howell, et al against Mrs. Rush Noah.
    There was judgment for defendant and plaintiff appealed.
    Judgment reversed.
    Goff & Barnette, of Shreveport, attorneys for plaintiffs, appellants.
    Wm. J. Hammon, of Shrevéport, attorney for defendant, appellee.
   STATEMENT OP THE CASE

REYNOLDS, J.

Plaintiff claims title to 308 acres of land situated in Jackson parish, Louisiana, described as the E% of SE14 of Section 19, less twelve acres off the west side; and the WYz of SW%; SE% of SW%; and N% of SE% of Section 20; all in Township 17 North, Range 3 West; and that defendant is in possession of the same as a trespasser.

They allege that S. A. Eiland, Mollie Eiland and A. H. Eiland were the sole and only heirs of Elam Eiland and his wife, Mrs. T. C. Eiland, and that they inherited from their said parents at the time of their death the land in dispute in this case.

That A. H. Eiland died in the year 1914 intestate and without issue and that they inherited his undivided one-third interest in the lands in controversy in the proportions of one-half to S. A. Eiland and the other half jointly by the other plaintiffs.

Defendant claims to have inherited the land from her mother, Mrs. G. E. Eiland, wife of A. H. Eiland, and that her mother inherited the land by the last will and testament of A. H. Eiland, and that A. H. Eiland an undivided third by inheritance from his father and mother and an undivided two-thirds by purchase from her brother and sister, S. A. Eiland and Mrs. Mollie Eiland Finley.

Defendant also filed in support of her title a plea of ten years’ prescription.

On these issues the case was tried and there was judgment sustaining defendant’s title to the property in dispute under the plea of ten years’ prescription. Plaintiffs have appealed.

OPINION

Defendant in this case relied with great confidence on what she says is a deed from S. A. Eiland and M. S. Finley and husband, W. M. Finley, to A. H. Eiland, executed under what she contends was a power of attorney to B. F. Smith.

Plaintiffs contend with equal confidence that said pretended deed and pretended power of attorney are entirely insufficient to constitute a transfer of real estate.

We have not found it necessary to pass on that question, for the reason that we find in the evidence the last will and testament of A. H. Eiland reading as follows:

“Will of A. H. Eiland
“I, A. H. Eiland, of Jackson parish, State of Louisiana, being in sound mind and understanding and wishing to make disposition of my property in prospect of my death, do make this, my last will and testament. To my wife, Griezzee E. Eiland, 308 acres of land situated in Jackson parish, Louisiana, known as the E'Yz of SE less 12 a on W side Sec. 19 WYz of SW SE of SW S2 of SE NE of SE Sec. 20 T. 17 R. 3 W.
“This will has been entirely written, dated and signed by me on this the 14th day of April, 1914.
“Attest: A. H. Eiland.
“William Grigsby.
“E. Blume, M. D.
“J. J. Causey, Jr.
“P. W. Grigsby.
“M. V. Grigsby.”

This will was duly probated before the District Judge of Jackson, parish, Louisiana, Cas Moss, on November 11, 1914, and, on the same day, the following order was signed by him:

“ORDER

“Considering the above and foregoing it is ordered that Mrs. G. E. Eiland, widow of A. H. Eiland, deceased, be confirmed as universal legatee of all the property mentioned in the will of the said A. H. Eiland, deceased; and that she be, and is hereby recognized as owner of all the real estate referred to in the petition and will attached thereto; and that she be sent into full possession of same.
“Thus done, read and signed in open court on this, the 11th . day of November. A. D. 1914. Cas Moss.
Judge of Fifth District Court.”

This will and the ordering it executed were filed for record on November 11, 1914, and duly recorded in conveyance record R at pages 653 and 654 of the records of Jackson parish, Louisiana, on November 11, 1914.

Under the evidence it appears clearly established that defendant, Mrs. Rush Noah, and her authors in title, Mrs. Griezzee E. Eiland, had actual possession as owner of the land 'in dispute for more than ten years prior to the filing of this suit under recorded title translative of property.

Under the authority of Sides vs. Nettles, 7 Robinson 170, and Griffon vs. Blanc, 12 La. Ann. 6, the defendant acquired title to the land in controversy by ten years’ prescription good against all the world.

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

ON REHEARING

WEBB, J.

This is a petitory action in which the plaintiffs, S. A. Eiland, and E. E. Howell, Mrs. Ola C. Hankins, Mrs. M.- F.Cason, and T. C. Finley, seek to obtain judgment against defendant, Mrs. Rush Noah, recognizing them as the owners and placing them in possession of certain lands situated in Jackson parish, Louisiana, and they appeal from a judgment rejecting their demands.

OPINION

The plaintiffs alleged that the property had originally belonged to Elam Eiland and his wife, T. C. Eiland, and at their death it was transmitted to their children and heirs, S. A. Eiland, one of the plaintiffs, and M. S. Eiland, represented herein by her children, E. E. Howell, O. C. Hankins, M. F. Cason and T. C. Finley, and A. H. Eiland, and on the death of A. H. Eiland his interest vested in E. A. Eiland and. the children of M. S. Eiland.

Defendant, in her answer, denied the allegations of plaintiffs’ petition and in her main defense apparently stood upon her possession, but in the alternative she alleged that if S. A. Eiland and M. S. Eiland had any interest in the property, they had sold to A. H. Eiland and the property had been acquired by defendant from A. H. Eiland.

When the cause was called for trial, however, it was admitted that S. A. Eiland, Mollie Eiland and A. H. Eiland were the children and heirs of Elam Eiland and his wife, T. C. Eiland, and that the property had belonged to the latter at the time of their death and that E. E. Howell, O. C. Hankins, M. F. Cason, and T. C. Finley were the children of M. S. Eiland, and the pleadings having admitted the death of A. H. Eiland, the defendant took the initiative to establish her defense, that is, that S. A. Eiland and M.- S. Eiland had transferred their, interest in the property to A. H. Eiland and that defendant had acquired through A. H. Eiland. '

On trial defendant exhibited and introduced in evidence, over the plaintiffs’ objection, the following documents which we 'designate as Nos. 1 and 2, which read as follows:

■ No. 1

“State of Louisiana,
“Parish of Jackson. Know all men by these presents that I, Benjamin F. Smith, a resident of the above named rparish and state, acting under power of attorney for A. H. Eiland, M. S. Finley, (Nee M. S. Eiland) and S. A. Eiland, W. M. Finley, husband of M. S. Eiland, as heirs of T. C. Eiland, deceased, for and in consideration of the sum of six hundred and thirty dollars, at two dollars per acre, my undivided interest in the estate of T. C. Eiland, deceased, the following tract or parcel of land being and lying in the parish and state aforesaid, to wit:
“38 acres in E. part of SE/!, Section 19, 80 acres W% of SW%, Section 20, 40 acres in SE14 of SW%, Section 20, 40 acres in the SWÜ of SE14, Section 20, 80 acres in the East half of the East quarter of Section 20, 40 acres in the North E. quarter of the North East half of Section 29, all in Township 17 North of Range 3 West, containing three hundred and eighteen acres, more or less, to have and to hold the above described lands with all the improvements and appurtenances thereto belonging or otherwise appertaining unto said purchaser, his heirs and assigns, to their proper use and behalf, forever, hereby warranting and defending the same against all lawful claim or claims of ourselves and of our heirs and assigns. This done and signed in the presence of S. H. Clinton and Luther Barnes of lawful age and domieilated.
“B. F. Smith, Atty.
“A. H. Eiland.
“Attest:
“S. H. Clinton.
“Luther Barnes, Jr.
“This 17th day of June, 1897

No. 2

“State of Louisiana,
“Parish of Jackson. Know- all men by these presents that we, the undersigned, A. H. Eiland, Mary S. Eiland, nee Mary S. Finley, and S. A. Eiland, now a resident of Gregg county, Texas, B. F. Smith, acting as Mrs. Finley, and S. A. Eiley as their attorney in fact heirs of Mrs. Eiland, deceased, we the said heirs have this day agreed to divide the property equally between each heir the amount of $1205.50 with the expenses of all the burial deducted. We also agree to give the said A. H. Eiland a title to all the land attached to the home place.
“Attest:
“B. F. Smith.
A. H. Eiland.
M. S. Finley.
S. A. Eiland.
W. M. Finley.
“Sept, the 23rd, 1895.

The defendant further introduced in evidence, over the objection of plaintiffs, the probate proceedings in the successions of A. H. Eiland and his wife, G. E. Eiland, mother of defendant, Mrs. Rush Noah.

S. H. Clinton, one of the subscribing' witnesses to document No. 1 was called and, over the objection of plaintiffs, was permitted to testify that he witnessed the signatures of the parties to document No. 1 and that it was intended to convey the property to A. H. Eiland and that A. H. Eiland was living on the property at the time of the death of T. C. Eiland, his mother, and at the time the document was signed and had continued to reside thereon until his death in 1914; and he also testified that Mrs. T. C. Eiland did not own any other property than the home place; and it was admitted that B. F. Smith was dead.

E. E. Howell, one of the ¡plaintiffs, was called on cross-examination and 'testified that all of the plaintiffs were above the age of thirty-one years at the time of the suit, and defendant filed a plea of prescription of ten years.

While the plaintiff objected to the introduction of the probate proceedings in the succession of A. H. Eiland and his wife, G. E. Eiland, under which the interest of A. H. Eiland in the property in controversy was transmitted to G. E. Eiland, legatee, and passed at her death to Mrs. Rush Noah, defendant, the objections are not pressed here and plaintiffs have confined their argument for the reversal of the judgment to the following grounds:

First: That the documents, Nos. 1 and 2, were not admissible in evidence for the reason that the signatures were not proven and that therefore there was not any evidence in the record showing that S. A. Eiland and M. S. Eiland had been divested of their interest in the property admitted to have been acquired by them from their parents.

Second: That if the documents were properly admitted in evidence, they do not show that the interest of S. A. Eiland and Mrs. Eiland was transferred to A. H. Eiland or any one else.

I.

We find that the testimony of S. H. Clinton, one of the subscribing witnesses to document No. 1, sufficiently proves the signatures of the parties to that instrument, and conceding that document No. 2 was not properly admitted, document No. 1 is more than twenty years old and in default of proof to the contrary it is presumed that the person appearing as their agent was authorized. (Delabigarre vs. Second Municipality, 8 La. Ann. 239; also Bowers vs. Langston, 156 La. 188, and authorities cited). And, besides, we do not think that if document No. 2 be considered it would be possible to say that it evidenced a power of attorney by S. A. Eiland and Mrs. M. S. Eiland (nee Finley) to B. F. Smith to transfer or convey any property or interest owned by them to any one, which seems to have been the purpose for which it was offered. Neither do we think it could be said to evidence a promise of sale, as no price is mentioned and the evidence indicates inferentially only that the lands described in document No. 1 were the same as or a part of the home place.

II.

Document No. 1, considered as an act evidencing a transfer of the property mentioned therein (which is not altogether the same as that claimed by plaintiffs and admitted to have belonged at one time to Elam Eiland and his wife, T. C. Eiland), is admittedly very vague and uncertain, but we do not think that the testimony of the subscribing witness, S. H. Clinton, that it was the intention of the parties to convey the property to A. H. Eiland should have been admitted.

A. H. Eiland was well known and did not need to be identified, and the evidence that he was the vendee was not admissible under the provisions of Articles 2275 and 2276 of the Code, and the only evidence which we think can be considered in determining whether or not the property described in the instrument was conveyed to A. H. Eiland is the instrument itself, and the. fact that A. H. Eiland was in possession of the property.

As to the possession of A. H. Eiland, however, the evidence shows that he was residing on the property at the time of the death of his mother, and the fact that he continued to reside thereon does not furnish much aid in construing the instrument, which does not contain any operative words of transfer, neither does it state any price unless we may .assume that the price was two-thirds of the value fixed for the total interest.

While the law requires that the transfer of immovable property must be in writing, it does not provide for any specific form when the transfer is made under an act of sale, but it is clear that the intention tp transfer must be clearly shown by the words used which must also show that the intention has been carried into effect, and the vendor as well as the vendee must be designated in such manner that they at least may be identified.

It has been said that if in any part of an instrument apt words of conveyance are used, the instrument will be construed as such; but it is also true that if such words are not used the instrument will not be given effect. (Hummelman vs. Mounts, 87 Ind. 178; also Webb vs. Mullins, 78 Ala. 111; Sharp vs. Bailey, 14 Iowa 387); but we do not find that there is any word used in the instrument in question which shows the property was conveyed to any certain person, nor does it appear that a iprice was fixed or paid by any one, and the only evidence indicating that A. H. Eiland acquired the property is the equivocal fact that he remained in possession.

The law certainly requires some degree of certainty in instruments purporting to convey immovable property, and we are of the opinion that in order to construe the instruments exhibited by defendant as evidencing a sale 'or conveyance of the interest in the property admitted at one time to have belonged to S. A. Eiland and M. S. Eiland requires a liberality of construction, if not an interpolation of words, that the law, which requires that conveyances of such property shall be in writing, does not authorize.

There is no basis for the plea of prescription; the possession of G. E. Eiland and Rush Noah- had not continued for ten years after the death of A. H. Eiland until the date of the suit, and the instruments being held to be too vague to be considered, were not, of course, translative of property and could not be the basis of prescription of ten years.

As previously stated, the plaintiffs not urging their objections to the introduction of the probate proceedings, and finding that such proceedings show on their face that Rush Noah acquired the interest of A. H. Eiland in the property, plaintiffs’ suit, as to such interest, cannot be maintained.

It is therefore ordered, adjudged and decreed that the judgment appealed from be avoided and set aside, and that plaintiffs, S. A. Eiland and E. E. Howell, O. C. Hankins, M. F. Cason and T. C. Finley, have and recover judgment against defendant, Rush Noah, recognizing them as the owners of an undivided two-thirds interest in the East half of the Southeast quarter of Section nineteen, less twelve acres off of the west side, and West half of the Southwest quarter, Southeast quarter of Southwest quarter, South half of Southeast quarter, and Northeasst quarter of the Southeast quarter of Section twenty Township seventeen North Range three West of Jackson parish, Louisiana, the proportions of one-third to S. A. Eiland and one-third to E. E. Howell, O. C. Hankins, M. F. Cason and T. C. Finley, and that they be placed in possession thereof.

It is further ordered, adjudged and decreed that defendant pay all costs.


text:
    No. 2976
    Second Circuit
    HICKS v. PARISH OF UNION, ET AL
    (May 13, 1927. Opinion and Decree.)
    (June 28, 1927. Rehearing Refused.)
    (July 12, 1927. Writ of Certiorari and Review Applied for.)

      (Syllabus by the Court.)

    1. Louisiana Digest — Master and Servant —Par. 154, 156.
    A Road District created pursuant to clause (c), section 14, Article XIV of the Constitution of 1921 and Act. No. 118 of the Legislature of 1921, is a political subdivision of the State of Louisiana within the meaning of the Employers’ Liability Act.
    2. Louisiana Digest — Master and Servant —Par. 157.
    The building and repairing of public highways is a hazardous business within the meaning of the Employers’ Liability Act.
    3. Louisiana Digest — Master and Servant —Par. 157.
    The operation of a motor tractor in the building and repairing of public highways is a hazardous occupation within the meaning of the Employers’ Liability Act.
    4. Louisiana Digest — Master and Servant —Par. 154, 160.
    The widow and children of an employee of a Road District created pursuant to clause (c), section 14, Article XIV of the Constitution of 1921 and Act No. 118 of the Legislature of 1921, killed in an accident by being thrown from a motor tractor which he was operating in building and repairing (public highways for his employer is entitled to recover compensation from the Road District under the Employers’ Liability Act.
    Appeal from the Third Judicial District Court of Louisiana, Parish of Union. Hon. 5. D. Pearce, Judge.
    Action by Mrs. Mary Hicks, individually and as natural tutrix of her minor children, issue of her marriage with Leon Hicks, deceased, against the Parish of Union, of the State of Louisiana, and Road District No. 9 of the Parish of Union.
    There was judgment for plaintiff and defendant appealed.
    Judgment affirmed.
    S. L. Digby, of Farmerville, attorney for plaintiff, appellee.
    W. J. Hammon, H. G. Fields, of Farmer-ville, attorney for defendant, appellant.
   STATEMENT OF THE CASE

REYNOLDS, J.

This is a, suit under the Employers’ Liability Act (Act No. 20 of 1914 and amendments thereto) by Mrs. Mary Hicks, individually and as natural tutrix of her minor children, J. N. Hicks, D. V. Hicks and Marie Hicks, issue of her marriage with Leon Hicks, deceased, against the Parish of Union and Road District No. 9 of said parish in solido for the death of said Leon Hicks which is alleged to have resulted from his being thrown from a motor tractor which he was operating in repairing and working a public highway in Road District No. 9 for and in the course of his employment by the Parish of Union and Road District No. 9.

She alleged that the daily wage of the deceased was $2.50 and his awerage weekly wage $15.00.

She asked for judgment against the Parish of Union and Road District No. 9 in solido for 65 per cent of his wages for a period of 400 weeks, or $3900.00, and for $50.00 for medical and hospital fees and for $100.00 for burial expenses, or a total of $4050.00.

The Parish of Union filed an exception of misjoining of parties defendant and the exception was sustained and the Parish of Union thereby eliminated from the case. No appeal was taken from this ruling and therefore the correctness or incorrectness of it is not before us.

Road District No. 9 filed an exception of no • right and no cause of action and the exception was referred to the merits.

Reserving its rights under this exception should it be overruled Road District No. 9 answered denying liability and specially alleging that neither the business of building and repairing public highways nor the occupation of operating a motor tractor in the building and repairing of public highways is hazardous within the meaning of the Employers’ Liability Act.

It further alleged that the deceased was not employed by it but was an independent contractor and was—

“operating said tractor under a written contract, and that he equipped and managed the same without a suggestion or control qf defendant other than to designate the roads over which he should operate the same.”

It is further alleged that the death of the deceased was the result of his own negligence in that—

“rigged up some contraption on said tractor to make a shade under which he was to sit”

against the advice of the defendant, and

“That said shelter or shade was no part of the equipment of said tractor, and that the said Leon Hicks * * * became entangled in the supports, wires, ropes, etc., with which he had attempted to hold said contraption over him for shelter and shade, which dragged him off of the tractor, resulting in 'the injury complained of.”

On these issues the case was tried and judgment was rendered in favor of the plaintiff and against Road District No. 9 for $2925.00, . payable in installments of $9.75 per week for a period of 300 weeks, beginning June 4, 1926, with legal interest on each installment from its maturity until paid, and for the further sum of $50.00 for medical treatment and hospital fees and the further sum of $100.00 funeral expenses with legal interest thereon from judicial demand until paid.

From this judgment Road District No. 9 has appealed.

OPINION

Three grounds for the reversal of the judgment appealed from are urged. ■

1. That the exception of no right and no cause of action should have been sustained.

2. That .the court erred in holding that the operation, of a motor .truck in the building and repairing of public highways is a hazardous occupation.

3. That the court erred in holding that the building and repairing of 'public highways . is a hazardous business.

I.

The Constitution of 1921, clause (c), Section 14, Article XIY, provides that—

“The legislature may by general law authorize the police juries to create road districts * * * and may, by general law and within the limitations and conditions herein contained, authorize road districts * * * so created, through the police jury * * * of the parish * * * as the governing authority .thereof, to incur debt and issue negotiable bonds for the purpose of opening, constructing, improving and maintaining public roads * * * ”

And Act No. 118 of 1921, ain Section 1, provides that—

“the Police Juries of the several parishes of the State are hereby authorized and empowered to create road districts * * * in the manner and subject to the limitations and restrictions herein contained.”

And, in Section' 5, that — ■

“Such road districts * * * created hereunder shall constitute public corporations, and as such shall have all the powers of public corporations * * * shall have the right and power to incur debt and contract obligations, to sue and be sued * * * to do and perform all acts in their corporate capacity and in their corporate names necessary and proper for the purpose of constructing, maintaining and improving public roads * * * ”

The Employers’ Liability Act (Act No. 20 of 1914 and the amendments thereto) provides that it shall apply to—

“Every ¡person in the service of the State, or of any parish, township, incorporated village or city, or other political subdivision, or incorporated public board or commission in this State authorized by law to hold property and to sue and be sued, under any appointment or contract of hire, express or implied, oral or written, except an official * * * and for such employee and employer the payment of compensation, according to and under the terms, conditions and provisions hereinafter set out in this Act, shall be exclusive, compulsory and obligatory * * *"

The exception of no right of action and no cause of action only questions the liability of a Road District to an employee under the Employers’ Liability Act. Under the provisions of the Constitution and laws above quoted we think it is liable and„ that therefore the exception is without merit.

It may be that the Parish of Union should not have been dismissed from the suit, but it was done on the exception of counsel representing both the Parish of Union and Road District No. 9, and as plaintiff has not appealed from the sustaining of the exception of misjoinder we are without jurisdiction to pass on the correctness of that ruling.

II-III.

As to the contentions' that the building and repairing of public highways is not a hazardous business and that the operation of a motor tractor in the business of building and repairing public highways is not a hazardous occupation, we think that both the business and the occupation is hazardous. Among the businesses, trades and occupations specifically declared to be hazardous in clause (a) of subdivision 2 of Section 1 of the Employers’ Liability Act is that of—

“excavating or grading with power machinery”

and this, we think, embraces the work of building and repairing public highways by means of motor tractors.

Besides, in Haddad vs. Commercial Motor Truck Co., 146 La. 897, 84 So. 197, it wa specifically held that the employment of operating a motor truck is a hazardous one within the meaning of the Employers’ Liability Act.

As to the contention of defendant that the deceased was not its employee but an, independent contractor, we think that the terms of the agreement under which he was working for defendant made him an employee rather than an independent contractor.

The Police Jury of Union parish advertised that as the governing authority of Road District No. 9 it would receive sealed bids

“for work on lateral public roads during the year 1926, as folows:
“Police Jury Ward No. 5.
“1 man to operate road machine; 1 man to operate Ford tractor; 4 teams and 5 men (mules or horses to weigh not less than 1050 pounds each) the bidder to furnish all pull-chains and stretchers.
“The Police Jury and Supervisors specially reserve the right to stop the work in any or all the police jury wards of the said District No. 9 at any time they deem it necessary or to discharge any of the employees, by giving written or verbal notice.
“Blank bids or any information may be obtained from O. Baughman, Secretary-Treasurer. The above bids are to be by the day. The Police Jury reserving the right to reject any or all bids.”

The deceased bid that he would drive the Ford tractor for $2.50 a day. He furnished nothing but his labor. The tractor was used' to pull the “slips” and other road-working machinery.

The deceased was an, employee and not an independent contractor.

It is also contended by defendant the accident to and death of the deceased therefrom was caused by his own negligence.

“Under the ‘Employers’ Liability Act’ the liability of an employer is not to be determined by the negligence or want of negligence.”

Garcia vs. Salmen B. & L. Co., 151 La. 784, 92 South. 335.

“Workmen’s Compensation Act eliminates the defense of contributory negligence.”

Smith vs. White, 146 La. 313, 83 South. 584; Veasey vs. Peters, 142 La. 1012, 72 South. 948; Colorado vs. Johnson Iron Works, 146 La. 68, 83 South. 381.

Defendant does not contend that the judgment appealed from is erroneous if the conclusions of law of the trial court be held to be correct.

We find no error in the judgment ap'pealed from and accordingly it is affirmed.


text:
    No. 2282
    Second Circuit
    SANITARY PLUMBING CO. v. CARNAHAN
    (April 22, 1927. Opinion and Decree.)
    (May 13, 1927. Rehearing Refused.)

      (Syllabus by the Court.)

    1. Louisiana Digest — Builders and Buildings — Par. 20, 23, 25.
    The owner of an apartment house who has contracted for certain plumbing material and work and who has in his possession part of the contract price, may contract for the correction of any defective installation and pay for the same out of the money in his possession; but he will not be allowed loss of rent of the apartment as damages while it was untenantable on account of defective plumbing When he made no effort to lease the premises and the defective plumbing could have been corrected at a cost less than the balance of the contract price still in his hands.
    2. Louisiana Digest — Builders and Buildings — Par. 25 — Damages—Par. 48, 74.
    Where a party is, entitled to the benefit of' a contract and has in his hands money that will be due the contractor on completion of the work and can save himself from loss by reason of a breach of the contract by the other party, it is his duty to minimize his loss as far as practicable and he can hold the contractor only for such damages as with reasonable endeavor and expense he could not prevent.
    Campbell vs. Miltenber, 26 La. Ann. 72; Armstead vs. Ry. Co., 108 La. 171, 32 South.' 456.
    3. Louisiana Digest — Appeal—Par. 625.
    The finding of the trial court on a question of fact will not be disturbed on

      appeal unless manifestly erroneous. Gournay vs. Prather, 4 La. App. 715.
    4. Louisiana Digest — Builders and Buildings — Par. 15, 25 — Obligations—Par. 162 —Damages—Par. 74.
    Where a party to a contract has waived a breach thereof hy the other party, he cannot thereafter recover damages for such breach.
    Tremont Lumber Co. vs. Robinson Lumber Co., 160 La. 254, 105 South. 101.
    Appeal from the First Judicial District Court of Louisiana, Parish of Caddo. Hon. J. H. Stephens, Judge.
    Action by Sanitary Plumbing Company against H. C. Carnahan.
    There was judgment for plaintiff and defendant appealed.
    Judgment affirmed.
    Bullock & Warren, of Shreveport, attorneys for plaintiff, appellee.
    Dimick & Hamilton, of Shreveport, attorneys for defendant, appellant.
   STATEMENT OF THE CASE

REYNOLDS, J.

This is a suit to recover the sum of $510.75, balance alleged to be due for plumbing material furnished and labor performed hy plaintiff for defendant on an apartment house in the city of Shreveport.

Plaintiff contracted to do the work and furnish the material for $1760.00 and has received on account of the price $1250.00.

Defendant denied liability and reconvened, for damages in the sum of $2645.00. He itemizes his damages as follows:

Loss of rent hy reason of defective work and by reason of the premises not being ready for occupancy as soon as they should be by reason of plaintiff’s default, $1930.00.

Money expended by defendant to repair damages done to the premises by plaintiff’s negligence, $60.00.

Material used hy plaintiff belonging to defendant and not paid for by plaintiff, $15.00.

Material to be furnished by plaintiff but not furnished and furnished by defendant at his own cost, $15.00.

Loss of time and inconvenience defendant was put to in supervising performance of the work in the effort to have it done promptly and properly, $250.00.

Trouble and inconvenience caused defendant and additional expense he was put to in the construction of the apartment hy reason of plaintiff’s inefficient work, $150.00.

Cost of repairing defective work done by plaintiff, $225.00

On these issues the case was tried and there was judgment in favor of plaintiff for $450.75 and defendant appealed.

OPINION

The trial court allowed plaintiff the full amount it sued for, less $60.00, and whether or not this deduction was proper is not before us to decide for the reason that plaintiff did not appeal from the judgment nor has it asked in this court that the judgment be amended.

So that the only question before the court is defendant’s reconventional demand for loss of rent and other things.

Defendant earnestly contends that he has established hy the testimony of himself and his wife and of F. A. Wolfe, J. F. Schilling, Q. O. Randall and B. F. Hill that the work was imperfectly done by plaintiff.

Neither plaintiff nor his wife is a plumber and they do not claim to have such technical knowledge as to what constitutes correct installation of plumbing as would give value to their testimony on the subject.

Their testimony that the plumbing was improperly done does not outweigh the positive testimony of the two members of the plaintiff, both of whom are experinced plumbers and both of whom testify that the work was properly done.

As to the witness F. A. Wolfe,' he was the plumbing inspector of the city of Shreveport and in that capacity he approved the plumbing as being properly installed. He testified, page 37.

“Q. I understand you to say that this work was done in a workmanlike manner?
“A. Yes, sir.
“Q. And it was completed?
“A. The job was completed, yes sir.
“Q. The job was completed?
“A. Yes, sir.
J. S. Schilling testified, page 60.
“Q. Then you do not know whether it was due to Mr. Carnahan’s fault or due to the plumber when the freeze came and the lavatories were pushed off the wall?
“A. No, I could not tell whether Mr. Carnahan cut the water off, or whether it was on or not.
“Q. That is all you found, though; the lavatories and the cut-offs.
“A. That is all I saw.
“Q. In your opinion that was all you found that could be criticized?
“A. That was all the trouble I found.
C. O. Randall testified, pages 73, 79, 81.
“Q. I will ask you whether or not the job, in your opinion was this plumbing installed in a workmanlike manner?
“A. In a workmanlike manner, yes; there was nothing wrong with the sanitary arrangement of the pipes. Whether pipes would not have drained properly I could not say that.
“Q. Both ways can be workmanlike?
“A. Both ways comply with the City Ordinance.”
B. F. Hill testified, page 92.
“Q. So that the only trouble that you found with the plumbing after February 1st was that you found the water mixed in your apartment?
“A. Yes, sir.
“Q. That was all that was wrong?
“A. Yes, sir.
“Q. Nothing else was wrong, so far as you know?
“A. No, sir.
“Q. You are not a (plumber?
“A. No, sir.
“Q. You do not know anything about plumbing work?
“A. No.
“Q. You do not know whether the work was done properly or improperly?
“A. Of course I know when a job is turned out, when it is all crossed up with hot and cold water, I know it is not right.
“Q. How long after you complained before that defect was remedied?
“A. I suppose three or four weeks; something like that.
“Q. How long after you complained before there was an attempt made to rectify the error ?
“A. Well, I don’t know; I told Mr. Carnahan about it and he claims that he tried to get them out there to fix it; so it just stayed that way for three of four weeks.
“Q. Was it put in good condition then after three or four weeks?
“A. Yes, sir.
“Q. Had no trouble with it since?
“A. No, sir.”

This evidence convinces us that defendant has failed to discharge the burden resting on him to prove the allegations of his defense that the plumbing was improperly installed.

But aside from this, the defects of installation- complained of by defendant were minor and superficial and he had in his possession more than four hundred dollars of the contract price coming 'to plaintiff on completion of the work.

The evidence shows that the defects complained of could have been corrected in three or four days, and under Article 2765 of the Civil Code defendant had the right to discharge plaintiff and have the work completed by some one else and to deduct the cost out of the funds in his hands.

Defendant did not see fit to do this but called on plaintiff to complete the work according to contract and accordingly plaintiff did so and. obtained the approval of the plumbing inspector of the city of Shreveport that the work was done in accordance with the sanitary code of the city and thereafter accepted the work as completed.

By calling on plaintiff to complete its contract and accepting the work as complete defendant waived the breach of contract by plaintiff and could not thereafter sue for damages therefor.

Tremont Lumber Co. vs. Robinson Lumber Co., 160 La. 254, 105 South. 101.

Defendant insists that plaintiff is not entitled to recognition of the lien claimed by it.

On pages 29 and 30 the following evidence is found.

“Counsel for plaintiff offers in evidence lien from H. O. Carnahan to the Sanitary Plumbing Company covering balance due of $510.75, dated June 4, 1923, recorded Mortgage Book 98, page 524, filed and recorded June 5, 1923.”
“Ordered filed, marked Plaintiff-1.”

Under this evidence plaintiff is entitled to have its lien recognized under Act 139 of 1922.

For the reasons assigned, it is ordered, adjudged and decreed that the judgment appealed fi’om be affirmed.


text:
    No. 1210
    First Circuit
    MUNSON v. SIMON
    (May 3, 1927. Opinion and Decree.)
    (June 7, 1927. Rehearing Refused.)

      (Syllabus by the Editor.)

    1. Louisiana Digest — Sales—Par. 84, 242.
    In view of Articles 2520-2529 of the Civil Code in an action to rescind the sale of a mule on account of disease it is not necessary to allege that the disease -is incurable.
    2. Louisiana Digest — Sales—Par. 79, 243.
    Where the seller guaranteed a mule to be sound for farming and three days afterwards a lameness manifested itself, it must have existed when it was sold and the sale is iproperly rescinded.
    3. Louisiana Digest — Sales—Par. 86.
    In the rescission of the sale of a mule, the price is ordered returned together with the expense incurred in feeding and taking care of the mule.
    Appeal from the Parish of East Baton Rouge. Hon George K. Favrot, Judge.
    Action by Hollis T. Munson against Victor Simon.
    There was judgment for plaintiff and defendant appealed.
    Judgment affirmed.
    Cross & Moyse, of Baton Rouge, attorneys for plaintiff, appellee.
    Benton & Benton, of Baton Rouge, attorneys for defendant, appellant.
   ELLIOTT, J.

Suit to rescind the sale of a mule on account of vices of body and to recover the price paid and expenses for preserving the mule.

The plaintiff, H. T. Munson, bought a mule from the defendant, Simon, on or about April 12, 1926, for use on his farm. He alleges that the price of the mule, $125.00, was paid at the time of purchase. That when put to work pulling a light harrow, on the third day after the sale, he discovered that it was affected with shoulder lameness to the extent that it was not fit to do the plantation work for which it had been bought. That said lameness was not due to any fault on his part. That defendant had assured and guaranteed him that the mule was free from vices of that kind. That he had tendered the mule back and requested the return. of the price, but 'defendant declined to receive it or to return the money paid for it, and turned it out on the streets of Baton Rouge. That defendant was compelled to take it up and feed it at an expense of $53.70. . He sues to rescind the sale, recover the price paid, also the sum expended for the feed and care of the mule.

Defendant denies plaintiff’s allegations; but as a witness he admits selling plaintiff the mule, but contends that the ¡price was $100.00 instead of the amount alleged by plaintiff. He also testifies that he visited plaintiff’s plantation, at plaintiff’s request, and looked at the mule. He offered to tender as evidence a conversation which he contends took place in plaintiff’s absence near plaintiff’s mule lot, between himself, Simon, and a hired man on plaintiff’s place, contending that this conversation would show that the hired man was plaintiff’s agent, and that the hired man’s statements as to the manner in which the mule received a possible injury was admissible and binding on the plaintiff. Plaintiff objected to the evidence on the ground that it was hearsay; the court sustained the objection and refused to hear the evidence. Defendant contends that this ruling was erroneous.

The ruling was correct; nothing appears from the proffer that the hired man could have been plaintiff’s agent and representative, and as such, authorized to bind him by statements made out of his (presence concerning some way in which the piule might have received an injury while in plaintiff’s possession. The testimony of the hired man, if wanted, should have been taken as the law provides.

Defendant filed in this court an exception that plaintiffs petition disclosed no right or cause of action, based on the ground that plaintiff does not allege that the disease of the mule was incurabe, citing: St. Romes vs. Pore, 10 Mart. (O. S.) 30; Reynaud & Sucko vs. Guillotte & Boisfontaine, 1 Mart. (N. S.) 227; Barthet vs. Audry, 14 La. 32; Serapurn vs. Bousquet, 15 La. 509; Lyons vs. Kenner, 2 Rob. 50; Roussel vs. Phipps, 10 La. Ann. 119.

These cases each refer to redhibitory defects in slaves; but suppose them to be applicable to animals, they are not controlling in this case.

Plaintiff’s allegations come within the provisions of Civil Code, Article 2520 and 2529.

On the merits of the case nothing indicates that the mule was injured after plaintiff bought it; the lameness manifested itself in three days after the sale, and must have existed when it was sold to the plaintiff.

The defendant guaranteed (plaintiff against vices of the kind. The condition of the mule is such that plaintiff would not have bought it if he had. known that such a defect existed.

The sale was properly rescinded, the price ordered returned, together with the expense incurred by plaintiff for feeding and taking care of the mule.

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