text:
    No. 2634
    Second Circuit
    HAMMONS v. SOUTHERN CARBON CO.
    (December 11, 1926. Opinion and Decree.)

      (Syllabus by the Editor.)
    1. Louisiana Digest — Master and Servant —Par. 153, 160 (j).
    Plaintiff in a suit' for compensation under the Workmen’s Compensation Act, No. 20 of 1914, cannot recover unless the evidence shows that the accident was the sole, or principal cause of his disability.
    2. Louisiana Digest — Master and Servant —Par. 160 (j).
    Where the opinion of expert physicians testifying in a suit brought under the Workmen’s Compensation Act, No. 20 of 1914, differ as to whether the continuing condition of the injured employee is due to accident or disease, and no reason is given for the contention that his disability is due to the disease; his disability must have been held due to the accident.
    Appeal from the Fourth Judicial District Court of Louisiana, parish of Ouachita. Hon.-Percy Sand el, Judge.
    Action by Samuel A. Hammons against Southern Carbon Co.

      There was judgment for the plaintiff and defendant appealed.
    Judgment affirmed.
    Long & McSween, of Shreveport, attorneys for plaintiff, appellee.
    McHenry, Montgomery, Lamkin & Varakin, of Monroe, attorneys for defendant, appellant.
   WEBB, J.

Plaintiff brings this action to recover judgment for compensation under the Employers’ Liability Act. He alleged that the injuries which he sustained had permanently and totally disabled him to do any work of a reasonable character.

The contention of the defendant is that the cause of plaintiff’s disability is under the evidence attributable to disease with which he suffered at the time of the accident.

On trial judgment was rendered in favor of the plaintiff on the basis of permanent total disability to do any work of a reasonable character; and .the defendant appealed.

OPINION.

The record shows that on March 23, 1923, while plaintiff and another workman were engaged in handling a steel shaft, weighing about one thousand pounds, the shaft in some manner fell against plaintiff, striking him on the head and left shoulder, forcing him down to the ground, and rendering him unconscious for a short time.

He was taken to a hospital where he remained for- about seven days under the care of a physician furnished by the defendant who continued to attend plaintiff until the 18th of April when he was discharged by the physician, after which plaintiff returned to defendant’s employ where he remained for about two weeks.

Plaintiff was examined by the physician who treated him on the date of the accident, having at the time the benefit of a radiogram and while this examination showed contusions’ at the places where the shaft fell against plaintiff’s body, the physician did not find any bones to have been broken or other objective symptoms of injury, but he did find that the plaintiff had slight hardening of the arteries, slight enlargement of the heart, lateral curvature of the spine, and that there was inflammation of the lumbar vertebrae and a callous formation thereon, showing that the plaintiff had arthritis.

Following the accident, and until June 29, 1925, defendant paid plaintiff compensation as for total disability to do any work of a reasonable character; but' in the meantime, on May 29, June 23,' August 9 and August 13, 1923, and June 10, 1925, the defendant had plaintiff examined by physicians and acting on the reports received from the last examination it discontinued payment of compensation on the date stated, and on July 7, 1925, this suit was filed and trial had on December 1, 1925, at which time the testimony of the physicians who had examined plaintiff at the instance of defendant as well as of physicians who had examined plaintiff on November 17, 1925, at his instance, was offered.

The evidence shows that the plaintiff had suffered some from backache prior to the accident, but it does not show that he was unable to do manual labor, and he testifies that he had been doing- manual labor previous to the accident without any inconvenience, and that since the accident he had continuously suffered pain, and that he was unahle to do any work of a reasonable character.

The physicians state that he continually complained of soreness and disability, and while it is not stated by the physicians who examined plaintiff at the instance of defendant that plaintiff was disabled at the time they examined him, we gather from their testimony that he was, especially if the complaints made by plaintiff were true, and we assume that it is conceded that plaintiff was disabled at the time of the trial, as he so testified, and the testimony of all the physicians who had examined him just prior to that time was to the same effect.

We find that the evidence thus establishes that the plaintiff was able to perform manual labor prior to and on the date of the accident and that following the accident he was unable to do manual labor, and that this condition of disability continued to the time of the trial, and we conclude, these circumstances make out a prima facie right to recover.

The plaintiff, however, bears the burden of proof and the inference drawn from the facts stated is not conclusive if other facts are established which should lead to different conclusions; as it seems to be the established rule that plaintiff cannot recover unless the evidence shows that the accident was either the sole or contributing cause of his disability. (Behan vs. Honor, 143 La. 349, 78 South. 589; Fox vs. United Chemical Co., 147 La. 895, 86 South. 311; Harrison vs. Breaux Bridge Lumber Co., 1 La. App. 514; Hays vs. Caddo-DeSoto Cotton Oil Co., 1 La. App. 689.)

The evidence establishes in this connection that the plaintiff at the time of the accident had a slight hardening of the arteries, slight enlargement' of the heart, lateral curvature of the spine, and an inflammation of and a callous formation on the lumbar vertebrae or arthritis, and the physicians who examined plaintiff at the time of and immediately following the accident were of the opinion that the accident did not, cause the disability of plaintiff qr condition of plaintiff rendering him unable to' do work, but that the cause of his condition was arthritis, not mentioning the other troubles, such as hardening of the arteries, etc.

The physicians who examined plaintiff at the instance of defendant were - of the opinion that the accident could not have caused the plaintiff’s disability, while those who examined plaintiff at his instance, were of the opinion that his condition could have resulted from the injury and that they could not disassociate the condition found from the injury considering the history of the case.

The physicians for defendant, as we gather, attributed the condition of plaintiff solely to arthritis, and although they' did not so state we infer' that the disease had at the time of the accident reached such a stake that disability would have soon resulted without regard to the accident; but it does not follow that the accident was not a contributing cause to his disability, which, as we have stated, was inferentially shown by the fact that plaintiff was not disabled before the accident and has been continuously disabled since.

The physicians who examined plaintiff following the accident' did not state whether or not the contusions on plaintiff’s body caused by the shaft striking him had healed, but we assume that they had and that the physicians found no' objective symptoms of injury remaining. The plaintiff testified, however, that he suffered with pains which had been continuous since the accident, and the evidence shows that there had been a continuous soreness of plaintiff’s body since the accident.

We realize the difficulty of determining, if such was the, case, when the disability of the plaintiff, resulting from his physical condition, caused or contributed to by the accident, ended; and when his condition resulting from disease begun, when the condition is shown to have been practically continuous from the date of the accident, and conceding that in such a situation, where the experts are unanimous in their conclusions that the continuing condition of the plaintiff was not attributable to the accident, it should be held that plaintiff has not shown the disability to have been the result of the accident, we do not think this conclusion could be reached where the opinion of the experts is in conflict and where the experts who express the opinion that the disability is not attributable to the accident' fail to state the reasons for their conclusions, as in the present instance.

We reach the conclusion that the judgment appealed from was correct and it is affirmed.


source: Caselaw Access Project

author: ODOM, J.

license: Public Domain

text:
    No. 2528
    Second Circuit
    MEYERS v. HANKINS BROTHERS
    (December 11, 1926. Opinion and Decree.)

      (Syllabus by the Editor.)

    1.Louisiana Digest — Courts—Par.. 150, 152.
    Ferry boats are within the admiralty jurisdiction no matter how small even when used entirely within a. state, if used on navigable waters.
    2. Louisiana Digest — Master and Servant —Par. 154, 156; Courts — Par. 168.
    The state courts of Louisiana have no jurisdiction rationae materiae of Workmen’s Compensation Cases originating by an accident to an employee, on a ferry boat, on a navigable body of water.
    3. Louisiana Digest — Courts—Par. 150, 152.
    The United States courts have exclusive jurisdiction of all Workmen’s Compensation Cases originating by injury to an employee on a ferry boat on a navigable body of water.
    Appeal from the Tenth Judicial District Court of Louisiana, parish of Natchitoches. ■Hon. John F. Stephens, Judge.
    Action by Amanday Meyers against Han-kins Brothers.
    There was judgment for the defendant and plaintiff appealed.
    Judgment affirmed.
    J. W. Jones, Jr., of Natchitoches, attorney for plaintiff, appellant.
    S. R. Thomas, of Natchitoches, Frank Macheca, J. C. Henriques, Frank T. Doyle, of New Orleans, attorneys for defendant, appellant.
   ODOM, J.

This is a suit under the Workmen’s Compensation Act. (Act 20 of 1914, and amendments.)

Plaintiff sues for compensation at $5.68 per week for the death of her son, Pinckney Richards, who was killed while in the employ of defendants.

Paragraph 3 of the petition reads as follows :

“That as part of the said Hankins Brothers’ business and occupation of bridge construction work and in doing repairs on the highway bridge across Red River at Grand Ecore, about four (4) miles north of the city of Natchitoches, Louisiana, in said parish, they operated and run a ferry boat or flat for the purpose of cross traffic and their own employees on and across Red River at said place, and your petitioner’s son, Pinckney Richards, was employed as a laborer on said ferry boat or flat and to do among other labor service to operate by hand a pump for the purpose of keeping said ferry boat or flat free from water inside thereof.”

And paragraph 4 as follows:

“That on the said 12th day of March, 1925, your petitioner’s said son, while in the employ of said Hankins Brothers and while engaged at the actual work for which he was employed, was thrown from and fell into Red River and was drowned.”

The defendants filed an exception to the jurisdiction of the court rationae materiae, and also exceptions of no cause and no right of action.

The exception to the jurisdiction of the court rationae materiae was sustained and plaintiff’s suit dismissed and plaintiff appealed.

OPINION.

The contention of defendants is set forth in the brief filed by counsel as follows:

“The exception of want of jurisdiction, rationae materiae, filed by the defendants and maintained by the lower court, is based upon the fact that Pinckney Richards, the deceased, who was employed by the defendants to operate a [pump on board this ferry boat engaged in transporting traffic across Red River, was employed to perform a maritime service upon navigable waters of the United States and that, consequently, the state court is without jurisdiction in an action for compensation growing out of his death.”

In' support of their contention they cite:

Southern Pacif c Co. vs. Jensen, 244 U S. 205; 61 L. Ed. 1086.

Peters vs. Veasey, 251 U. S. 121; 64 L. Ed. 180.

Knickerbocker Ice Co. vs. Stewart, 255 U. S. 149; 64 L. Ed. 834.

Great Lakes Dredge & Dock Co. vs. Kierejewski, 261 U. S. 479; 67 L. Ed. 756.

State of Washington vs. Dawson, 264 U. S. 219; 68 L. Ed. 646.

Under Article III, section 2, of the Constitution of the United States, the courts of the United States were given exclusive jurisdiction of all cases of admiralty and maritime jurisdiction.

According to the petition, plaintiff’s son was employed as a laborer on a ferry boat which was engaged in carrying traffic across Red River which is a navigable stream of the United States. While doing his work on the boat he was knocked off into the river and drowned. His work consisted in operating by hand a pump to keep water out of the bottom of the ferry boat. None of his work was done on land. He was employed to work on the ferry boat and while doing his work on the boat he lost his life.

It is conceded that Red River is a navigable stream of the United States.

If plaintiff’s son was engaged in work of a maritime nature, his employment was a maritime contract and the rights and liabilities of the (parties were within the admiralty jurisdiction of the United States, so that the Workmen’s Compensation Law of Louisiana had no application.

Peters vs. Veasey, 251 U. S. 121.

A maritime contract is one which relates to navigation or transportation and commerce' by sea or on navigable waters of the United States. Work on a vessel being used upon navigable waters as a means of transportation is a maritime service and a contract to do such work is a maritime contract.

According to the allegations of the petition, plaintiff’s son was doing work on a ferry boat' engaged in transporting traffic across Red River.

The ferry boat was engaged in commerce on navigable water of the United States.

The ferry boat was a vessel.

“The work ‘vessel’ includes every description of water craft or other artificial contrivance used or capable of being used as a means of transportation on water; and if the business or' employment of a vessel appertain to travel or trade and commerce on the water, it is subject to the admiralty jurisdiction whatever may be its size, form, capacity or means of propulsion.”

1 Corpus Juris 1263, under the head of “Admiralty”.

“Ferry boats are within the admiralty jurisdiction no matter how small nor whether used entirely within a state, if used on navigable waters.”

26 Cyc. 755.

“A steam ferry boat is a vessel within the jurisdiction of admiralty though she .merely crosses and recrosses a river.”

U. S. vs. Burlington Ferry Co., 21 Fed. 331.

Murray vs. Ferry Boat F. B. Nimick, 2 Fed. 86.

The St. Louis,-48 Fed. 312.

In the very recent case of Sarah White Jones vs. Crescent City Ice Co., No. 27681, not reported, our Supreme Court, on rehearing, said.

“Here the facts which are fully set forth in the original opinion, show that the deceased was injured while actually engaged in loading the vessel with ice as a part of its necessary supplies. He was, therefore, employed in carrying out a maritime contract. His activities at the time of the accident were directly connected with the navigation, business and commerce of the sea. In these circumstances, the rights and liabilities of the parties must be determined by the admiralty courts.”

Citing all the above noted authorities and also — ■

Lawson vs. New York & Porto Rico S. S. Co., 148 La. 290, 86 South. 815.

Under the above decisions and others which might be cited,- the rule is that where an employee is working on board a vessel in navigable waters of the United States, his work is maritime service, and where he contracts to do such work it is a maritime contract; and where suit is brought' to recover compensation his rights and liabilities must be determined under the maritime law, and Workmen’s Compensation Acts have no application.

Counsel for plaintiff says the general' rule does not apply in this case because the employers, Hankins Brothers, were engaged in repairing a bridge, which work is not maritime in its nature; and he argues that in order to bring the case under the rule it must be shown that both the employer and the employee were engaged in maritime service.

But according to the allegations of • the petition the employers, Hankins Brothers, were operating the ferry boat for the transportation of traffic across Red River and employed deceased to work on the vessel. They were both, therefore, engaged in work pertaining to navigation on navigable waters.

The judgment of the lower court sustaining the exception to the jurisdiction rationae materiae is correct and is therefore affirmed.


text:
    No. 2099
    Second Circuit
    ARKADELPHIA MILLING CO. v. S. T. ANDERS AND WALKER-HOWE GROCER CO., INC.
    (December 11, 1926. Opinion and Decree.)

      (Syllabus by the Editor.)

    1.. Louisiana Digest — Appeal—Par. 691, 694.
    Where the evidence seems to sustain the finding of the district' court, and the appellant has made no appearance, the judgment is presumed to be correct, and will be affirmed by the appellate court.
    Appeal from the Second Judicial District Court of Louisiana, parish of Webster. Hon.' Robert Roberts, Jr., Judge.
    Action by Arkadelphia Milling Co. against S. T.' Anders and Walker-Howe Grocer Co., Inc.
    There was judgment for plaintiff and defendants appealed.
    Judgment affirmed.
    L. K. Watkins, of' Minden, attorney for plaintiff, appellee.
    Stewart & Stewart, of , Minden, George Wesley Smith, of Rayville, attorneys for defendants, appellants.
   ODOM, J.

Plaintiff sues defendant for $1800.00, the value of one carload of oats.

There was judgment in the district court in favor of the plaintiff and against the defendant Walker-Howe Grocer Co., Inc., and it has appealed.

Defendant S. T. Anders filed ■ an exception of no cause of action as to him, which exception was sustained by the lower court. No bill of exceptions was reserved by plaintiff tq this ruling of the court and it did not appeal. Plaintiff’s claim against Anders is therefore not before us for consideration. .

As to the claim against the other defendant, Walker-Howe Grocer Co., . Inc., we find that in and prior to September, 1920, it had in its employ a man named Roy Miller, employed as a travelling salesman to sell grain and feed in car lots. Miller, representing this defendant, took an order for a carload of oats to be shipped to Anders. This order was placed with plaintiff under an agreement between plaintiff and defendant Walker-Howe Grocer Co., Inc., to the effect that such orders were to be charged • to it, Walker-Howe Grocer Co., Inc., and might be shipped direct to its customers.

The order for the car of oats was taken by Miller, the travelling salesman, from Anders and shipped to Anders. Upon the arrival of the shipment Anders refused to receive it, claiming that he had previously cancelled the order.

It is not disputed that if Anders had accepted the shipment he would have been indebted unto Walker-Howe Grocer Co., Inc., therefor and not to plaintiff. But the contention is made by Walker-Howe Grocer Co., Inc., that previous to the date on which the car was shipped to Anders it had cancelled the arrangement which it previously had with plaintiff above referred to and that for that reason it is not liable.

Plaintiff admits that this arrangement or agreement for shipping grain and feed was - cancelled by defendant but claims that it was cancelled after this particular order was placed with and accepted by it and that there was no agreement to cancel it.

The defendant failed. to establish by satisfactory proof that the order was can-celled, and we see no reason why defendant should not be held liable. There is ample testimony in the record to support the judgment of the lower court.

Since the filing of this appeal defendant has made no appearance in this court to argue the case orally nor has it filed brief. We say in this case as was said by the court in the case of Bynum vs. Lieber, 155 La. 760, 99 South. 590:

“Considering that the evidence seems to sustain the finding of the district court, and that appellant has not deemed it necessary to appear and point out any error in that finding, we see no reason to disturb the same.

“Every judgment rendered by a court of justice is presumed to be correct, and it can scarcely be expected that this court in an appeal will seek, in the absence of assistance from the appellant, to detect errors which are not patent on the face of the record. Schwan vs. Peterman, 123 La. 732, 49 South. 486.

The judgment is affirmed with costs.


author: WEBB, J.

text:
    No. 2648
    Second Circuit
    CITIZENS BANK v. HUDSON
    (December 11, 1926. Opinion and Decree.)

      (Syllabus by the Editor)

    1. Louisiana Digest — Appeal—Par. 320; Attachment — Par. 64.
    Under Act No. 112 of 1916, a defective attachment bond must be corrected in the court of original jurisdiction and consequently, although the bond is defective on its face, this defect cannot be considered by the appellate court.
    Appeal from the Fifth Judicial District Court of Louisiana, parish of Richland. Hon. John R. McIntosh, Judge.
    Action by Citizens Bank against G. W. Hudson.
    There was judgment rendered on confirmation of default, after motion to dissolve had been filed by .defendant. Defendant appealed.
    Judgment affirmed.
    Tobin R. Hodge, of Rayville, attorney for plaintiff, appellee.
    George Wesley Smith, of Rayville, attorney for defendant, appellant.
   WEBB, J.

The Citizens Bank brought suit against the defendant G. W. Hudson and under proper allegations obtained a writ of attachment under which property belonging to the defendant was seized.

Judgment was rendered on confirmation of a default in favor of the plaintiff for the amount sued for and sustaining the writ of attachment and recognizing the privilege resulting therefrom, and the defendant has taken a devolutive appeal from that' judgment.

OPINION.

The sole ground which defendant urges for a reversal of the judgment is that the attachment bond given by the plaintiff is defective in that the bond is not for a fixed amount, the plaintiff having failed to write into the bond the amount which is fixed by law.

The defendant contends that the plaintiff was notified of this defect in the bond in the trial court' by a motion which he filed to dissolve the writ in which motion the defect in the bond and other grounds were set up as causes for dissolution of the attachment.

The record shows that the attachment bond was defective and that the motion to dissolve was filed, hut the minutes of the court do not show the motion was filed in open court, or at any time, the only reference to the motion being in a minute of date June 19, 1925, which reads as follows:

. “In this case, an exception of no cause of action was filed (evidently intended to read motion to dissolve writ of attachment, as I find no exception of ‘No cause of Action’ filed in said suit, but do find a motion to dissolve filed in June and no minute entry thereof).”

Judgment was rendered on January 28, 1925, and reads, in part, as follows:

“In the above styled and numbered cause a (preliminary default having been regularly entered against G. W. Hudson and the same not being set aside by answer, and after the lapse of more than two clear days the plaintiff having proven its demands in open court, it is ordered, adjudged and decreed that plaintiff have judgment for the amount claimed. It is further ordered, adjudged and decreed that the writ of attachment sued out herein be maintained and perpetuated and that the property attached be seized and sold and that out of the proceeds the plaintiff be paid,” etc.

The sole ground which- the defendant urges here for the reversal of the judgment is that the attachment should have been dissolved for the reason of the defect in the attachment bond, which is in the record and shows upon its face the defect presented in the motion to dissolve.

We are of the opinion that the defendant by appealing from the judgment rendered on default must be presumed to have waived his motion to dissolve the writ of attachment, and that this court must consider the cause as if no suggestion had been made before the trial court as to the insufficiency of the bond.

The fact that a defective bond was filed did not invalidate the attachment; it only furnished a ground upon which the attachment may have been dissolved after certain preliminary proceedings as provided by law (Act No. 112 of 1916) had been taken, and the defect, although apparent on the face of the record, cannot be considered by this court.

The judgment appealed from is affirmed.


text:
    No. 2827
    Second Circuit
    LINDSEY MERCANTILE CO., INC., v. LINDSEY
    (December 11, 1926. Opinion and Decree.)

      (Syllabus by the Editor.)

    1. Louisiana Digest — Bills and Notes— Par. 216, 222.
    The presumption is that a promissory note found in the possession of the maker after maturity has been paid.

      2. Louisiana Digest — Bills and Notes— Par. 216, 222.
    The burden, of proof is on the payee to prove that a promissory nqte found in ' the possession of the maker after maturity has not been (pai'd.
    Appeal from the Third Judicial, District Court of Louisiana, parish of Union. Hon. S. D. Pearce, Judge.
    Action by Lindsey Mercantile Co., Inc., against T. P. Lindsey.
    There was judgment for defendant and plaintiff appealed.
    Judgment affirmed."
    S. L. Digby, of Farmerville, attorney for plaintiff, appellant.
    H. G. Fields, of Farmerville, attorney for defendant, appellee.
   ODOM, J.

Plaintiff alleges that on January 20, 1923, defendant made and signed a promissory note made payable to it, d.ue October 1, 1923, and that ■ in some way unknown to it defendant obtained possession of the original note, and it attached to. its petition what is alleged to be a copy 'of "the nóte; and it further alleged that if the original note was delivered to the defendant by it, it was delivered through error, and that the note was never paid and the amount thereof is now owing and due.

Defendant, answered ■ admitting that he signed the note described, but alleged that he paid the note in the fall of 1923, about the time it fell due, to Mr. Newton, bookkeeper for the plaintiff company, and that the note was' then delivered to1 him by Newton.

. .There was .judgment in the district court rejecting . plaintiff’s demand anci it has appealed.

OPINION.

On the day of the trial the defendant was in possession of the original note and produced it. He swore positively that he paid the note in. the fall of 1923, about the time it fell due, and that the note was thereupon delivered to him by Mr. Newton, bookkeeper of the plaintiff company, to whom the payment was made.

The note is not marked paid, but when produced in court the signature was torn off.

There is testimony in the record that it was customary fqr farmers to tear their names off the notes when they were paid and delivered.

Defendant testified that he paid the note with cash, the proceeds of the sale of cotton which he produced in the year 1923. His testimony that he ¡possessed the cash with which to make the payment is corroborated by that of his father-in-law, W. H. Kelley.

Defendant’s father-in-law, W. H. Kelley, and his brother-in-law, Tom Kelley, both testified that in the fall of 1923, the defendant exhibited to them the original note and said he had paid it.

Mr. Newton swore that the note was not paid to him and that he did not deliver it to defendant. He says the note was in plaintiff’s file in January, 1924, and was not missed from the file until January, 1925.

His testimony that the note was in plaintiff’s possession in January, 1924, is contradicted by that of the defendant, who says he paid it- and got possession of it in the fall of 1923, and by that of W. H. Kelley and Tom Kelley, both of whom say that they saw it in defendant’s possession in the fall of 1923.

Where a promissory note is found in the maker's possession after maturity, the presumption is that it has been paid.

30 Cyc. 1268.

And when the payee of the note contends that such note was not paid, and that it got into the possession of the maker through fraud, the burden is upon him to show that' fact.

The plaintiff has failed utterly to discharge that burden in this case.

It alleges in its petition that it is unable to account for defendant’s possession of the note. Mr. Newton, the bookkeeper, says it was plaintiff’s custom on making demand for payment of notes due it to write letters to the debtor making demand and to attach the original of the note to the copy of the letter, send the original of the letter to the debtor and place the copy and the note attached thereto in its file; that it had in. its employ an inexperienced stenographer who, he thinks, probably sent the copy of the letter in this case and the note 'to the defendant by mistake.

That' explanation is wholly unsatisfactory and cannot be' accepted. That testimony is not sufficient to overthrow the presumption of payment which followed the possession of. the note by the maker after maturity, and is certainly not sufficient to overthrow the positive testimony of the. other witnesses.

The judgment of the lower court, rejecting plaintiff’s demand, is correct and is accordingly affirmed.


text:
    No. 2834
    Second Circuit
    STATE EX REL. G. M. LOMAX LUMBER COMPANY v. THIGPEN, TAX COLLECTOR, ET AL.
    (December 11, 1926. Opinion and Decree.)

      (Syllabus ty the Editor.)

    1. Louisiana Digest — Appeal—Par. .625.
    The finding of the trial court on a .question of fact, namely, the value of tim.ber being clearly correct, is affirmed.
    2. Louisiana Digest — Licenses—Par. 6, 17.
    In view of Section 21,' of Article X of the • Constitution of 1921, and Section ' 1-, of Act 140' of 1922, the amount of the license tax paid for the privilege of severing timber from land is based upon the value of ■ the timber - severed and not upon,its value when severed,.
    Appeal from the Third Judicial District Court' of Louisiana, parish • of Lincoln. Hon. S. D. Pearce', Judge.
    Action by the State, ex rel. G. M. Lomax Lumber Co. against A. J. Thigpen, Tax Collector, ,et al. Enjoining the collection of severance tax on timber.
    There was- judgment for defendant and plaintiff appealed.. ......
    judgment reversed and injunction made perpetual. ,
    ' Dhu Thompson,- of Ruston, attorney for plaintiff, appellant." : '
    Percy Saint, of .New Orleans, attorney general, and. Michael M. Irwin, of New Orleans, assistant attorney general, for defendants, appellees. ......(
   ODOM, J.

Relator is engaged in the sawmill business in the parish qf Lincoln, and during a certain period of time cut and manufactured into lumber 10,048,133 feet of pine timber.

Under the provisions of Act 140 of 1922, it made quarterly reports to W. N. McFarland, Supervisor of Public Accounts, and to the tax collector of Lincoln parish where its business was conducted, showing the amount of timber severed and paid the severance tax required by that Act, based upon a stumpage value of $2.00 per thousand feet.

The Supervisor of Public Accounts accepted the payments and issued receipts therefor, but not in full payment of the amount due, claiming that the stumpage value of the timber severed should be placed at not less than $4.00 per thousand feet.

Upon the refusal of the relator to pay the severance tax based upon a valuation of $4.00 per thousand feet the Supervisor of Public Accounts made demand for the balance which he claimed to be due and subsequently caused to be recorded in the mortgage ' records of Lincoln parish the lien and privilege on relator’s property for the balance claimed to be due, all as provided by section 11 of Act 140 of 1922.

Alleging that the tax collector of Lincoln ¡parish was about to seize and sell its property under and by virtue of said lien to -enforce the payment of said, balance which, it alleges, is not due, relator brought the present suit to enjoin and restrain - the tax collector and supervisor of public accounts from seizing and selling its property to satisfy said claim and to have . cancelled and erased from the mortgage records of Lincoln parish the lien and privilege resulting from the recordation of said affidavit.

The answer admits the contemplated seizure and sale of relator’s property as alleged, and sets up that relator is due the amount claimed and asks that plaintiff’s application for writs of injunction be denied and that they be permitted to (proceed with the seizure and sale of relator’s property to collect the amount claimed, or the sum of $401.86.

The district court gave the defendants judgment for the sum of $100.46 with interest, costs, penalties and attorney’s fees, recognizing the lien and privilege of the state, and rejecting relator’s application for injunction.

Relator appealed. Respondent answered the appeal, praying that the judgment be amended by allowing the full amount claimed by them or an amount based upon a valuation of $4.00 per thousand feet for the timber cut.

OPINION.

There are two questions presented for our determination. One is a question of fact, and relates to the value of the timber severed from the soil, relator contending that it was worth not exceeding $2.00 per thousand feet, which is made the basis of value for the payment of the tax and on which valuation relator paid the tax, and respondents claiming that the timber was worth not less than $4.00 per thousand feet, which should have been made the basis of value for the amount of the tax.

The other question is one of law, and calls for a determination of the question whether the stumpage value of the timber,' that is, its value as it stood in the forest before being cut down, or its value after being cut down and thereby severed, should be the basis for the computation of the tax.

On the question of fact, we think the findings of the district court are correct. He found that the stumpage value of the timber or its value as it stood before being cut down, was $2.00 per thousand feet. His findings were based upon the testimony of some seven or eight witnesses, all of them being competent to testify as to the value of timber, some of them being practical timber men and some of them being experienced sawmill, men in that vicinity. Their testimony, taken as a whole, shows conclusively that the timber severed by relator was not worth more than $2.00 per thousand feet. There were deeds introduced in evidence showing that in 1922, only a short while before some of the timber was cut, relator purchased the timber at a stumpage value of $2.00 per thousand feet. Respondents offered no testimony to the contrary.

Respondents offered to prove that other concerns engaged in severing timber from the soil had paid the severance tax based upon a valuation of $4.00 per thousand feet. This testimony was properly excluded upon objection by relator. The fact that some timber is worth $4.00 per thousand feet throws no light upon the value of that severed by relator. The value of timber is governed largely by its kind, quality, location and accessibility. Virgin timber is worth ordinarily more than second growth or what is called “old field” timber. Timber located near a railroad or water course Is worth more than timber of like quality situated in remote sections and not easily logged.

The testimony shows that the timber cut by relator was second growth pine situated in rough, rugged and hilly sections of the parish and quite remote from transportation facilities. Some of it had to be pulled out of the gulches with blocks and lines and could not be handled with teams at all. It was badly scattered; the ten million feet cut and reported being taken from approximately ten thousand acres of land, or an average cut of about one thousand feet per acre.. It was a very expensive logging proposition, the .plaintiff testifying that the expense of logging was almost prohibitive. All the land from which the timber was cut' had been previously cut over and the best timber removed.

The testimony shows conclusively that the stumpage value of the timber was not over $2.00 per thousand feet.

On the question of law involved, we think the court erred. He held, correctly we think, that the value of the timber as it stood in the forest or the stumpage value was $2.00 per thousand feet, but as a basis for computing the amount of the severance tax to be paid he added to the stumpage value the cost' of cutting the trees down or ' severing them from the soil, holding that the tax should be based upon the value of the timber after it was cut. He found from the evidence that it cost fifty cents per thousand feet to cut the trees down and that therefore the timber was worth fifty cents per thousand feet more when severed from the land than while standing, and he computed the tax on a valuation of $2.50 per thousand feet.

Section 21 of. Article X of the Constitution of 1921 provides that—

“Taxes may be levied on natural resources severed from the soil or water, to he paid proportionately by the owners thereof at the time of severance. Such natural resources may be classifed for the purpose of taxation and such taxes pedicated upon either the quantity or value of the. product at the time, and place where it is severed. * * *.”

Section 1 of Act 140 of 1922 provides' that—

- “Taxes as authorized by section 21 of Article X of the' Constitution of 1921 are hereby, levied upon all natural, resources severed from the soil or water; including all forms of timber. * '* * Such taxes shall be paid by the owner or proportionately by the owners thereof at the time of severance, etc.”.

And—

“On oil and gas three per centum (3%) of the gross market value of the total production thereof. On all other natural resources, two per centum (2%) of the gross market value of the total production thereof. For the purposes of this act • said gross market value of each such product or natural resource shall be computed in its unmanufactured state-' and as of the time when and at the place where it was severed or taken from the soil or water..”.

The learned judge of the district court in a written opinion said, after quoting all of section 21 of Article X of the Constitution and a part of section 1 of Act Í40 of 1922:

“Reading the above quoted provision of the state constitution, and the above quoted section of Act' 140 of 1922, either separately or together and it would be difficult to construe them to mean anything else than that the tax is due upon the severed product, which means when it shall have become a severed product, and not before it shall have become a severed product.”

And, again—

“The standing timber is not subject to the severance tax, and could not be even by legislative act without the commission of an egregious misnomer in the use of the- word, .‘severance’.” .....

As we interpret the constitutional and statutory provisions with reference to severance taxes, in so far as the tax on timber is concerned, it was not intended that the amount of the tax should be computed on the value of the timber after it is severed from the land.

It is true that there is no severance tax on standing timber, for the reason that the severance tax as permitted by the constitution and levied and required by the statute is not a ¡property tax but is an excise or license tax paid for the right or privilege of cutting or severing the timber from the land.

Gulf Refining Co. of La. vs. McFarland, 154 La. 251, 97 South. 433.

The amount of the license tax which is paid for the privilege of severing the timber from the land is based upon the value of the timber severed, not upon its value when severed as held by the district court.

According to Webster, the word “severance” in law means—

“The act of severing; division- of the provisions, rights and liabilities or the ■ like, arising under or in something; destruction of the unity of interest under or in something.”

According to Black’s Law Dictionary, second edition, page 1081, the word “severance” with reference to estates means—

“The destruction of one of the unities of a joint tenancy; it is so called because the estate is no longer a joint tenancy but is severed. The word ‘severance’ is also used to signify the cutting of crops, such as grain, grass, etc., or the separating of any of them from the realty.”

Timber, before being manufactured into lumber, must first be severed from the land. For the privilege of - sevéring it or for the act of -severing the state exacts a license tax, and under the exact language of the constitution the license tax is based on the

“* * * value of the product at the time and place where it is severed”; and, under the statute,

“* * * f0r the purpose of this act said gross market value of each such product or natural resource shall be computed in its unmanufactured state, and as of the time when and at the place where it was severed or taken from the soil or water.”

The language of the constitution and of the statute means simply that as a basis for the tax the value of the timber at the time it was severed or at the time the act of severance took place must be taken. The phrase “at the time it is severed” does not mean “at the time after it is severed” as held by the district judge.

In order that there might be no misapprehension on this point the act specifically provides that' the gross market value of each such product or natural resource shall be computed in its unmanufactured state.

The timber which relator cut had been sold to it separate and apart from the land. By the act of sale there was created a separate estate. The timber was real estate and had a market value as it stood on the land, which value is shown to be $2.00 per thousand feet. It was a natural resource of the state and for the privilege of severing it from the soil the state exacted and the relator paid two per centum of its market value. '

' For the reasons assigned, it is therefore ordered, adjudged and decreed that the judgment appealed from be reversed and avoided; and, proceeding now to render such judgment as should have been' rendered in the first instance, it is therefore ordered; adjudged and decreed that there be judgment in favor of relator G. M. Lomax Lumber Company and against respondents A. J. Thigpen, Tax Collector, and AV. N.' McFarland, Supervisor of Public Accounts, perpetually enjoining and restraining them from seizing and selling the property of relator to satisfy the amount claimed as balance due on severance tax on. the amount of timber involved in this suit; and further ordered that the lien and privilege on the property of relator resulting from the recordation of the affidavit'' of AV. M. McFarland, Supervisor of Public Accounts, in book DD, page 84, be cancelled and erased from the mortgage records of Lincoln parish, Louisiana, and that all demands of respondents against relator be -rejected. Respondents to pay all costs.


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    No. 2775
    Second Circuit
    BORDELON v. CITY OF SHREVEPORT
    (November 6, 1926. Opinion and Decree.)
    (December 11, 1926. Rehearing Refused.)

      (Syllabus by the Editor.)
    1. Louisiana Digest — Municipalities—Par. —255, 258.
    A city cannot be held responsible in damages merely by reason of the fact that it left a machine in the street which ' was so high that a child could climb to the top and fall off, thereby injuring himself.

      2. Louisiana Digest — Municipalities—Par. —Par. 262, 267; Pleading — Par. 62.
    An exception no cause of action will be sustained against a petition which merely states that plaintiff’s child was injured by reason of his having climbed to the top of a machine and fallen to the ground. The machine could not have been the proximate cause of the accident.
    Appeal from the First Judicial District Court of Louisiana, parish of Caddo. Hon. T. F. Bell, Judge.
    Action by Mrs. Lucille Bordelon against city of Shreveport.
    There was judgment dismissing the suit on exception no cause of action filed by defendant and plaintiff appealed.
    Judgment affirmed.
    T. Overton Brooks, of Shreveport, attorney for plaintiff, appellant.
    Wilkinson, Lewis & Wilkinson, of Shreveport, attorneys for defendant, appellee.
   WEBB, J.

In this action plaintiff, individually and for the use and benefit of her minor son, seeks to recover judgment against the defendant for damages resulting from injuries alleged to have been sustained by her minor son through the negligence of defendant in having left upon the public street an attractive and dangerous machine to which the child was attracted and from which he fell.

The defendant filed an exception of no cause or right of action, which was sustained and plaintiff appealed.

OPINION.

The plaintiff alleges that the machine, a ditch-digger, was dangerous; that it was attractive to children, and that it was left unguarded upon a public street, and that defendant knew that children would be attracted to the machine and that children had been playing on the machine.

Plaintiff further alleged that her son had been attracted to the machine and “was playing upon the machine, and that while so playing upon said machine he fell to the ground and fractured his left arm at the elbow”.

There is no allegation that the fall was brought about by any automatic movement of the machine or by the child’s meddling or tampering with the mechanism of the machine, and the most which can possibly be inferred from the allegations of the petition is that the machine w-as of such dimensions that a child could climb upon it and reach such height above the ground that a fall therefrom would be likely to injure him.

It is conceded as a general proposition that one may be guilty of negligence in leaving unguarded or unprotected a dangerous machine on a public street which is attractive to children and that he may be held liable in damages for injuries sustained by a child playing with the machine when such negligence is the proximate cause of the injuries.

There is, however, no allegation which in any manner connects the injuries received ,by plaintiff’s son with the alleged dangerous character of the machine, unless it may be said that any object having such height as that it would be dangerous for a child to climb upon it comes within the class of dangerous machines under the doctrine of the turntable cases.

We have not been cited to any case in which such rule has been announced, while on the other hand the general rule appears to he to the contrary.

“As a general proposition no liability is imposed by reason of injuries from articles or materials ©laced in the form of a pile — as for example, stones, railroad ties, steel girders or lumber — the perils from such instrumentalities being obvious in character.” (R. C. L. vol 20, page 89.)

It appears from the allegations of the petition that the injuries received by the child were not attributable to the mechanism of the machine, which had been placed in motion by the child, nor to any latent defect or danger, but to the fact that the child could, by climbing upon the machine, place himself in a position from which he might fall a sufficient distance to injure himself.

We are of the opinion that the allegations of the petition are insufficient to state a cause of action, as it is not alleged that the injury was in any manner attributable to any dangerous feature of the machine or to the situation in which it was left. ^

The judgment is affirmed.


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    No. 2733
    Second Circuit
    HARDOMAN v. GLASSELL-WILSON CO., INC., ET AL.
    (November 6, 1926. Opinion and Decree.)
    (December 11, 1926. Rehearing Refused.)

      (Syllabus by the Editor)

    1.Louisiana Digest — Master and Servant —Par. 160 (a), 160 (j).
    Under Section 28 of the Workmen’s Compensation Act, No. 20 of 1914, the burden of proof is on the defendant to show that the injured employee, suing for compensation, deliberately failed to use adequate guard or protection against accidents provided for him.
    2. Louisiana Digest — Master and Servant —Par. 154.
    Under Section 6 of the Workmen’s Compensation Act, No. 20 of 1914, both the contractor and the sub-contractor are liable for the payment of compensation to an injured employee.
    3. Louisiana Digest — Master and Servant —Par. 159.
    Where the proof clearly shows that the injured employee was unable to work at the time of the trial, but that his disability is temporary, there being no way of estimating how long his disability will continue, the court will give judgment under section 8, subsection 1 (a) of Act 20 of 1914 as amended, for compensation during the period of disability not exceeding three hundred weeks.
    (The recent amendment of section 8 of Act 20 of 1914 is Act 85 of 1926. Editor’s note.)
    Appeal from the First Judicial District Court of Louisiana, parish of Caddo. Hon. J. H. Stephens, Judge.
    Action by Thomas J. Hardoman against Glassell-Wilson Co., Inc., et al.
    There was judgment for plaintiff and defendant appealed.
    Judgment affirmed.
    Julius T. Long, of Shreveport, attorney for plaintiff, appellee.
    J. Fair Hardin, Alex F. Smith, of Shreveport, attorneys for defendants, appellants.
   ODOM, J.

Plaintiff brings this suit under the Workmen’s Compensation Act to recover compensation at $20.00 per week for 400 weeks for alleged permanent total disability caused by an injury wbicb he received while working for defendants on December 18, 1925.

The case was tried on February 26, 1926, and resulted in a judgment for plaintiff against defendants for $20.00 per week for not over 300 weeks. There was also judgment in favor of the Glásseli-Wilson Company, Inc., the principal contractor, against John 'Robinson, the sub-contractor, for the same amount. Both defendants have appealed.

OPINION.'

The Southwestern Gas & Electric Company contracted with the Glassell-Wilson Company, Inc., one of the defendants, to make extensive alterations in its plant at Arsenal Hill. The Glassell-Wilson Company, Inc., sublet the steel work to John Robinson, the other defendant.' The plaintiff was employed by John Robinson, the sub-contractor, at a daily wage, of $9.00. Robinson, of course, was to pay plaintiff his wages. Both of the defendants deny liability op the ground that plaintiff—

“* * *■ deliberately failed to use an adequate guard or protection. against accident provided for him.” 0

See Section 28 of Act 20 of 1914.

It is contended that there was a ladder or ladders in the building which could have been used by the plaintiff in climibing . up .the wall instead of his climbing up on the window sash- as he did. The window sash was insecurely fastened and gave way, causing him to fall to the floor.

Paragraph 2 of section 28 of the act provides:

“That in order for the employer to be relieved of the payment of coinpensátidn under this section the burden of proof shall be upon him to establish the facts relied upon.”

. Defendants have failed to discharge that burden in this case. The plaintiff was not furnished a ladder. It is true that there were ladders in the buildings, Jjut they were not furnished for plaintiff to use, and there was no suggestion by the foreman or any one else that he use- them. The testimony shows '• that plaintiff went about his work just as other laborers"did. It would, no doubt, have been safer for the plaiptiff to have used a ladder, but there is no testimony that the ladders were furnished as a protection against accidents.

The Glassell-Wilson Company, Inc., one of the defendants, contends that it. is not liable for the reason that John Robinson, the other defendant', was its sub-contractor and employed plaintiff and was to pay his wages. ■ But the Glassell-Wilson Company, Inc., is liable under section 6 of the act which specifically provides that in such cases the principal contractor is liable to the employee of the sub-contractor. Under paragraph 4 of section 6 of the act', where the principal contractor' is sued by the employee of the sub-contractor he may call the sub-contractor into the suit, and under paragraph 2 of said section 6 it is entitled to judgment against' such sub-contractor for whatever amount the principal is condemned to pay the employee.

In this case plaintiff brought suit against both the principal contractor and the sub-contractor. The principal contractor, in answer, asked that in ease judgment was rendered against it in favor of the plaintiff then that it have like judgment against its sub-contractor, and judgment was awarded accordingly. We see no error in the court’s-ruling on that point.

As to plaintiff’s injuries and the extent thereof, the testimony shows that while plaintiff was performing his duties as an employee of Robinson he fell from an-upper window to the concrete floor 'a distance estimated to be from twenty-five to thirty feet. His head and back struck the concrete- floor. This was about 3:30 o’clock in the afternoon. He was picked up and carried to a sanitarium - in an unconscious condition and remained in that condition until some time during the night.

Doctor G. H. Cassity, who attended the patient at the sanitarium, gave the following testimony as to the injuries which he found.

He said, in substance, that the patient appeared to be suffering from considerable shock, was in a low state of vitality, had low pulse, complained of pain over the right lower lumbar region and the' right foot, and pain in the right side; that he observed a large red spot about the eighth rib on the right side; that there was a bruise eight inches long and four and a half inches wide on the. posterior surface of the right side and a bruised place on the right foot. He further stated that as the patient complained of pain in the back, he was carried to the x-ray room where Doctor Barrow made an x-ray of the lower portion of the spine. The x-ray was not very satisfactory, as they Ji.ad no time to prepare the patient for it. The x-ray, however, showed a fracture of the second, third, fourth and eighth lumbar vertabrae. He also made an x-ray of the head, which showed no fracture. He said he also found- “fracture of the third, and fourth right spine transverse process”.

The doctors strapped tlie patient with adhesive tapes and quieted him with hypodermics. For two or . three days the pa: tient expectorated blood and passed blood from the bowels. He kept the patient in the sanitarium for twenty-two days, when he sent1 him home and- put him to bed and advised him to stay there, and not to take exercise. ■ Ten days later the patient went to his office, complaining of deep' pains in the chest and soreness and stiffness over the right lumbar region and right foot and of headaches.

Further referring to the x-ray, the doctor said it also appeared as if there had been a slight displacement or rotation of the fifth lumbar vertabra or lobe. He said that said fracture might cause some pressure on the lower portion of the spinal cord. He found that the reflexes of the right knee joint are tardy but could be lifted, and he said—

‘Reflexes- of the lower limbs are slow and also in the upper arm.”

He testified that plaintiff was disabled on the date of the trial and that he could not say when he would recover.

Doctor Sanderson testified that he examined plaintiff about a week before the trial and that plaintiff complained of pains in the back, soreness in the chest, numbness in the legs, headaches, some high disturbment and general nervousness, and he recommended plaintiff rest.

Doctor Crain examined plaintiff on 'February 17th. The patient,' he said, showed no outward signs of injury but he found some tenderness in , the lower part of the back; his pulse are rapid, 105, but the heart and lungs áre ndrmal; the posterior reflex is diminished in the left knee and absent in the right.' He does not think there is any ’pressure on the spinal cord. He thinks plaintiff still has some trouble with his back but the main trouble, he says, is hysteria and ,he thinks there is cause therefor. He thinks the . plaintiff should have more rest and treatment and will finally recover.

Doctor Murphy examined plaintiff and found evidence of an old gunshot wound in the neck and also a fracture Of the right transverse process, the second, third and fourth lumhar vertebrae and some local bone produced over the base of the right transverse of the fifth vertebra showing an injury in that locality. He expresses no opinion as to his present disability.

Doctor Abramson found about' the same condition as. to reflexes, fractures, etc., as did the other physicians. In his opinion (plaintiff needs rest and should recover in three months from the date of the trial.

Doctor Ragan testified that plaintiff is suffering from “traumatic hysteria” and should recover in two or three months.

As is usual in such cases, the physicians disagree as to the extent of the disability, but all who testified on that point agree that he was disabled at the time of the trial; and while some think he should recover with rest and treatment within two or three months others think there will be no further improvement and that he is permanently disabled.

Plaintiff says he is unable to work, and there is no question but that is true.

The plaintiff unquestionably received a very severe injury. Some of the physicians say it is remarkable that he was not killed. At the time of the trial he was suffering total disability, which we think is temporary, but we cannot fix a definite period over which he should receive compensation.

Inasmuch as the plaintiff received a serious injury and was at the time of the trial suffering total disability, and inasmuch as it is reasonable to assume from all the testimony that he will ultimately recover, and there being no way of estimating how long his disability will continue, judgment' awarding him compensation at $20.00 per week for not exceeding three hundred weeks is proper under clause (a) of subsection 1 of section 8 of Act 20 of 1914 as amended by Act 216 of 1924.

Chandler vs. Oil Fields Gas Co., 2 La. App. 778.

O’Donnell vs. Fortuna Oil Co., 2 La. App. 462.

Price vs. Gilliland Oil Co., 3 La. App. 175.

King vs. McClanahan, 3 La. App. 117.

Scott vs. Standard Pipe Line Co., 3 La. App 77.

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


text:
    No. 2119
    Second Circuit
    HARDEE-GLASPIE CO., INC., v. WALLACE & LANCASTER, RECEIVERS T. & P. RAILWAY COMPANY
    (November 6, 1926. Opinion and Decree.)
    (December 11, 1926. Rehearing Refused.)

      (Syllabus by the Editor.)

    1. Louisiana Digest — Carriers of Passengers and Goods — Par. 124, 132.
    A common carrier is not' liable in damages for the value of a shipment of goods burned while on its loading platform, if the agent notified the prospective shipper- that there was an embargo on the shipment, and that the railroad company could not accept the goods at that time, and no bill-of lading was issued.
    Appeal from the Twelfth Judicial District Court of Louisiana, parish of De Soto, Hon. John H. Boone, Judge.
    Action by Hardee-Glaspie Co., Inc., against C. L. Wallace and J. L. Lancaster as receivers of the Texas & Pacific Railway Company.
    There was judgment for plaintiff and defendants appealed.
    Judgment reversed.
    L. E. Colvin, of Mansfield, attorney for plaintiff, appellee.
    Wise, Randolph, Randolph & Preyer, of Shreveport, attorneys for defendants, appellants.
   ODOM, J.

Plaintiff sues for the value of cotton which was destroyed by fire while on defendants’ cotton platform at Pleasant Hill or Sodus, Louisiana.

Plaintiff alleged that the defendants, as receivers, operating the Texas & Pacific railroad, maintained a station for receiving and discharging freight and a duly authorized station agent at Pleasant Hill or Sodus, Louisiana, and that on October 5, 1922, it delivered to the defendants certain cotton to be shipped—

“* * * said delivery being effected by petitioner carrying said cotton to the station platform of the defendants at said Sodus station and depositing the same thereon, with the knowledge and consent of the said defendants, their agents and employees, all in accordance with the custom prevailing among the shippers at said station.”

.And, in paragraph seventh—

“That no objection was made by the said defendants, or their agents and employees in charge of their business at said station, to the depositing and placing of said cot-don on said platform; but on the contrary, the same was done with their consent and approval and in accordance with the custom previously prevailing, fostered and approved by the defendants, their agents and employees.”

It further alleged that on the night following the day on which the cotton was so deposited it was destroyed by fire.

Defendants especially deny, in answer, that they received the cotton for shipment as alleged by plaintiff, and especially allege that at 2:55 p. m., on the day previous to the day on which said cotton is alleged to have been so delivered there was an embargo laid on the shipment of cotton to Shreveport, Louisiana, where plaintiff alleged the cotton was to be shipped, and that plaintiff knew of said embargo at the time it alleges it deposited the cotton on the platform for shipment.

There was judgment in the District Court for plaintiff as prayed for and defendants have appealed.

OPINION.

It is well to observe that plaintiff does not seek to hold defendants liable as ware-housemen or as bailees but as common carriers.

The lower court, after reviewing the testimony, propounded this interrogatory—

“Had the relation of shipper and carrier begun at the time of the fire, so as to render the carrier liable for the loss sustained?”

And it says — :

“The court is of opinion that, owing to the custom prevailing at the station, defendant company had received the cotton for shipment and is liable therefor.”

We make these observations to show that plaintiff contended in the lower court as in this that defendants are liable as common carriers.

The testimony shows that the defendants had erected and maintained a.' platform for the reception of cotton to be shipped over its lines of road, which platform was between the main line and a spur track about 35 or 40 yards from the depot or station; that there was no other cotton platform in the village where cotton could be stored pending shipment; that it had been the custom for 25 years for merchants and others who purchased cotton to have it unloaded from the wagons to said platform; that plaintiff, a merchant, bought cotton during the cotton season and followed that same custom, and that during the afternoon of each day it made out' a bill of lading with shipping instructions for the cotton which it had placed on the platform during the day and carried it to the station agent who immediately checked the cotton against the bill of lading and if found correct signed it and delivered it to the shipper.

The testimony further shows that about 2:55 p. m., on October 4, 1922, the station agent was notified by wire that an embargo had been laid upon shipment of cotton to Shreveport during the next 48 hours;-that a,t the time the message was received by the agent, Mr., Barrow, an employee of plaintiff, was then at the station getting a bill of lading for cotton which had been delivered on the platform up to that time and that the agent mentioned the fact of the embargo to him; and while the station agent testified that he told Mr. Barrow at that 'time that- -no more- cotton would be received for shipment on account of the embargo, Mr.- Barrow testified that something was then said about the embargo but he did not recall what it was.

But regardless of what the station agent told Mr. Barrow on the afternoon of’ the 4th, it is sho.wn that Mr. Hardee, president and general manager of the plaintiff company, knew on the afternoon of - the 4th, the day before the cotton destroyed was placed on the platform, that' an embargo was on and that no more cotton would ■ be received for shipment' by defendants until the embargo was lifted,. as shown by the following testimony given by Mr. Hardee.

“Q. You knew when you placed this cotton on that platform that the agent was not receiving cotton for transportation?

“A. I knew I was not going to get a bill of lading that date, yes, sir.

“Q. And notwithstanding your knowledge of that fact you left it there?

“A. Yes, sir.

“Q. Why did you leave it?

“A. I had no place to put it and I was going to ship it the next day.

“Q. You had no platform of your own?

“A. No, sir.

“Q. You left it for your own convenience?

“A. It was the custom; we put it there always.

“Q. You admit that you had knowledge of the embargo on the afternoon of the 4th?

“A. Yes, sir.

“Q. And you say that when you talked to the agent on the 5th he told you that' he could not receive the cotton?

“A. He told me that on the evening of the 4th — yes, sir.”

On the 5th of October, the day following the day on which plaintiff was'notified that defendants would receive no more cotton for shipment on account of the 48-hour embargo, the plaintiff placed on the platform the cotton which was destroyed by fire on the morning of the 6th and for which it claimed the defendants are liable as common carriers.

As to whether the station agent did in fact receive this particular cotton, he testified that he knew, in a general way, that cotton was being placed on the platform during that day but that he had no knowledge that plaintiff had placed its cotton there; that plaintiff gave him no notice that' it had deposited the cotton on the platform for shipment and gave him no shipping instructions.

Mr. Hardee, testifying in rebuttal, said:

“Well, I think, as Mr. Keene stated on the stand, he knew in a general routine way that the cotton was going on the platform; he did not check it. He knew that it was going on as a general routine proposition but to have known it absolutely, as he stated on the stand, he would have had to check it, but' in a general routine way he knew that the cotton was going •on the platform.’’

“Q. He could not help but know that?

“A. No, sir, but he hadn’t checked it, I am sure.”

There is no intimation that Mr. Hardee, representing the plaintiff, or any of the employees of the plaintiff company told the agent that the cotton was being placed on the platform or that the agent had any actual knowledge of the fa.ct. Mr. Hardee testified, in rebuttal, that he did not notify the agent and ask for a bill of lading because—

“I didn’t see as there was any use because he had told us. there would not be any cotton shipped in tha.t forty-eight hours. Therefore we didn’t present any bill of lading.”

And he was asked — •

“Did you understand from that that you could not bring it there or that he could not ship it out?

And he answered—

‘No, sir, that he could not ship it out.”

Our Brother of the District Bench held that under the circumstances above detailed the defendants are liable as common carriers.

We do not understand that counsel for plaintiff - contends or that the court intended to hold that a common carrier is bound as such unless and until the goods are received and are at least in the constructive possession of the carrier.

But counsel contend, and it was so held by the District Judge, that due to the fact that defendants had constructed a platform on its tracks for the reception of cotton and that plaintiff had fqllowed the long established custom, sanctioned and acquiesced in by defendants, of carrying its cotton there and placing it upon the platform for shipment there was in fact a delivery of the cotton to defendants and that they are bound - as completely as if a bill of lading had been issued.

But, conceding that delivery may be thus made, under some circumstances, and that the carrier’s assent thereto may be implied from a course of dealings and a custom long sanctioned, it does not follow that the carrier is bound under the circumstances of this case.

The general rule is that the responsibility of a common carrier for goods intrusted to it commences when there is a complete delivery of the goods for the purpose of immediate shipment'. In order that there may be a complete delivery of goods .for shipment, the carrier must give assent thereto and there must he an acceptance of the goods for shipment. But such assent and acceptance need not be in express terms, it may be implied when the goods are left in the usual ©lace in accordance with the custom of the carrier to receive them. But even under such circumstances the carrier is not liable as such unless it has in some way received notice-of the presence of the goods on the platform.

In the case at bar, the testimony shows that there was no assent and no acceptance of the delivery by the carriers. They could not and did not acquiesce in the established custom relied upon during the embargo . laid against the shipping of cotton to Shreveport and plaintiff was specially so notified. It is not disputed that defendants had a right to refuse to accept cotton for shipment during the embargo.

As soon as the embargo went on the plaintiff was informed that no more cotton would be accepted for shipment until the embargo was lifted. Plaintiff says it received this information from the agent on October 4th. That plaintiff acquiesced in 'such refusal-, on the part of defendants is shown by the fact that no bill of lading was requested for the cotton put on the ©latform on the 5th for Mr. Hardee said—

“I didn’t see as there would be any use because he had told us there would not be any cotton shipped in that forty-eight hours.”

So that if it be conceded that the defendants, under ordinary circumsances, would be bound by the usage and custom relied upon by plaintiff to establish acceptance of the shipment, it is also true that such custom was specifically set aside during the embargo to the knowledge and with the acquiescence of the shipper.

But plaintiff contends that whereas it is true that it was informed that no more cotton would he shipped out during the embargo, it was not informed that defendants would not receive cotton- on its platform for shipment as soon as the embargo was lifted.

But the agent, Mr. Keene, testified that he told Mr. Hardee that defendants would not receive any cotton for shipment, and Mr. Hardee was asked (page 14 of the testimony — -

“And you say that when you talked to the agent on the 5th he told you that he could not receive the cotton?”

And he said: .

“He told me that on the evening of the 4th — yes, sir.”

The plaintiff, therefore, had knowledge not only that cotton would not be shipped out but that it would not be received for shipment.

Therefore, while it is true, as contended by plaintiff, that the agent did not refuse to permit him to deposit the cotton on the platform on the 5th of October, it knew that the cotton which it placed there on that date was not received and accepted for shipment.

Under such circumstances the defendants could be considered as no more than bailees or warehousemen. But plaintiff does not seek to hold them liable as such.

While the above is a sufficient reason for holding that defendants are not liable, there is an additional reason that even though the cotton was put on the platform by plaintiff something remained to be done by it before the cotton could be forwarded.

See:

6 Cyc. 414.

10 Corpus Juris, 224.

The testimony shows that other shippers had cotton on the same platform at the time. The plaintiff did not notify defendants’ agent of the number of bales it had ¡placed there nor the marks of the bales. There was nothing by which the agent could identify the cotton which plaintiff claims it had placed there. The agent could not ship the cotton if he had been so disposed because he could not identify it; he did not know to whom the cotton was to be shipped; he received no shipping instructions. There was therefore no completed delivery of the cotton. In order for the delivery to be complete the plaintiff had necessarily to give the agent such information as would enable him to ship the cotton.

“Failure to give shipping directions prevents a, completed delivery.”

See case note under head—

“Delivery to Carrier.”

found in 22 A. L. R. 975, et seq., where authorities are cited and reviewed. Many authorities touching the whole subject matter involved in this case are cited in the case note above referred to.

See also, L. R. A. 1916C, 608.

32 L. R. A. (N. S.) 315, et seq.

Counsel for plaintiff, in support of his contention, cites the cases of Whitehurst vs. Texas & Pacific Ry. Co., 131 La. 139, 59 South. 42, and Meyer vs. V. S. & P. Ry. Co., 41 Ann. 639, 6 South. 218.

These cases are easily distinguishable from the case at bar-, and do not support plaintiff’s contention.

In the Whitehurst case the court found the facts to be that—

“The station was not one at' which there .was • an agent; but the custom, or usual course of business, was to put freight upon this platform for shipment, and give notice of its presence there to the agent, at the neighboring station of Caspiana, some three miles off. Plaintiff had given this notice and the agent had promised to take the proper measures in the ¡premises.”

The agent failed, after receiving notice of the presence of the cotton on the platform, to give the proper orders .for its removal or protection. The cotton remaine.d on the platform for some time after it should and would have been removed if the agent had given proper orders, and while on the platform was set afire to and burned by sparks from the defendants’ locomotive.

The first section of the syllabus on that case reads as follows:

“A railroad company is liable for cotton burned on a freight platform at' a station where no agent was maintained, where the shipment could have been received on a local freight train which passed the day before the fire, but which did not stop through failure of an agent to give an order.”

In the Meyer case, supra, the facts were similar to those in the Whitehurst case. The cotton was, according to custom, loaded on a ¡platform at a station where no agent was maintained, but the agent at Monroe was notified in writing and by verbal message sent by the conductor that the cotton was there ready for shipment. The plaintiff had a man at the flag station . to flag the train and give the necessary shipping instructions:

The court said:

“On Tuesday night a freight train passed, and although flagged, failed to stop. No satisfactory explanation is given of this failure to stop and take the cotton, except that it was a through train which passes at night' and does not stop at the flag stations. Defendant’s agent swears, however, and it is not contradicted, that he usually shipped at night'. It is not shown that it was not in the power of the defendant company to transport the cotton from the time it was stored until destroyed.”

The court found that the carrier departed from its usual custom of taking cotton from this platform by the next' freight train which passed after notice of the presence of the cotton thereon.

The court said:

“The liability of the company to plaintiffs in the present case rests solely upon their failure to ship at' the proper time.”

In the case at bar, the defendants did not fail in their duty. They could not take the cotton for shipment and notified plaintiff to that effect.

For the reasons assigned, it is ordered, adjudged and decreed that the judgment appealed from' be reversed and avoided and that plaintiff’s demands, be rejected and its suit dismissed at its costs.


author: REYNOLDS, J.

text:
    No. 2121
    Second Circuit
    CHILDERS v. ADAIR, As Sheriff, et al.
    (November 6, 1926. Opinion and Decree.)
    (December 11, 1926. Rehearing Refused.)

      (Syllabus by the Court.)

    1. Louisiana Digest — Execution—Par. 130; Executory Process — Par. 68.
    Want of notice of seizure, where the property was actually seized, advertised and sold at sheriff’s sale, is an informality and does not render the sale an absolute nullity. Allen vs. Couret, 24 La. Ann. 24. Oriol vs. Moss, 38 La. Ann. 770.
    2. Louisiana Digest — Estoppel—Par. - 45.
    Under our well settled jurisprudence, . where one stands by and sees his property seized and sold under legal process without making his claim known or objecting to the proceeding, he will be bound by the sale; and a fortiorari this rule applies against one who, acts as keeper of property seized as that of another and stands by and permits the property to be sold as that of another under legal process without ohjection on his part.
    Wimbish vs. Mayer, 144 La. 865, 81 South. 373.
    3. Louisiana Digest — Action—Par. 12.
    Plaintiff has no standing in court unless he has an actual interest to be pursued.
    C. P., 15.
    Appeal from the Second Judicial District Court of Louisiana, parish of Bossier. Hon. Robert Roberts, Jr., Judge.
    Action by J. E. Childers against J. F. Adair, as sheriff.
    There was judgment for defendant and plaintiff appealed.
    Judgment affirmed.
    C. B. Prothro, of Shreveport, attorney for plaintiff, appellant'.
    Murff & Mabry; Hall & Bullock, of Shreveport, attorneys for defendants, appellees.
   STATEMENT OF THE CASE.

REYNOLDS, J.

In this case J. E. Childers, the plaintiff, claims to be the owner of certain cotton and corn seized, advertised and sold as the property of A. J. Childers by the sheriff and bid in at the sale by the defendants Elston, Prince & McDade.

Plaintiff, J. E. Childers, urges that said sale should be annulled for the reason that no notice of seizure was served on the judgment debtor, A. J. Childers.

The seizing sheriff, J. F. Adair, the judgment debtor, A. J. Childers, and the purchasers at the sheriff’s sale, Elston, Prince & McDade, were made defendants.

The defendant sheriff denied plaintiff’s right to recover judgment, on the ground that he was estopped to assert title to the property for the reason that he had received and receipted for possession of the property seized as keeper thereof and had stood by and without objection permitted the property to be advertised and sold to Elston, Prince & McDade as that of the judgment debtor, A. J. Childers.

And, in reconvention, he asked for judgment' against the plaintiff for the return of the property receipted for by him as custodian, or otherwise for judgment against plaintiff for $1000.00 as the value of the property.

Defendants Elston, Prince & McDade urged an exception of no cause of action, and, in reconvention, joined with defendant, J. F. Adair, the seizing sheriff, in asking that plaintiff be required to surrender the property received and receipted for by him as keeper, or otherwise for judgment against him for $1000.00 as the value thereof.

Defendant A. J. Childers, the judgment debtor, answered admitting the allegations of plaintiff’s petition and prayed that his suit be dismissed at his cost.

On those issues the case was tried and there was judgment rejecting plaintiff’s demand, and, in reconvention, there was judgment against him and in favor of the defendant, J. F. Adair, sheriff, requiring plaintiff, J. E. Childers, to deliver the property received and receipted for by him as keeper to the defendant, J. F. Adair, sheriff, or, in default thereof, requiring him to pay one thousand dollars with legal interest thereon from the date of the judgment to the defendant-J. F. Adair, sheriff, for the use and benefit of the defendants Elston, Prince & McDade.

Plaintiff has appealed.

OPINION.

The principal attack made by plaintiff, J. E. Childers, on the validity of the sale of the property seized, advertised and sold belonging to the defendant, A. J. Childers, is that on the face of the record the sale was an absolute nullity for the reason that no notice of seizure was served on the judgment debtor, the defendant A. J. Childers.

Under Article 15 of the Code of Practice this defense was one personal to A. J. Childers and plaintiff J. E. Childers has no standing in court to urge the same.

The judgment of the District Court rejecting plaintiff’s demand to have the sale declared a nullity is correct.

RECONVENTIONAL DEMAND.

Plaintiff, J. E. Childers, accepted the trust of keeper of the seized property under appointment by the seizing sheriff, the defendant J. E. Adair, and issued his receipt as such keeper for the property so delivered to him. When called upon by the sheriff to deliver the property to him he failed to do so. After permitting the seized property to be advertised for sale and sold to defendants Elston, Prince & McDade without objection on his part, plaintiff, J. E. Childers' urges no defense to being required to respond in accordance with his receipt as keeper of the property other than that' the sale made was an absolute nullity.

Having failed in that defense he must, under the settled . jurisprudence of this state, either surrender the property received and receipted for as keeper by him or pay the value thereof.

The judgment of the District Court so held.

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


text:
    No. 2697
    Second Circuit
    YATES v. TESSIER
    (November 6, 1926. Opinion and Decree.)
    (December 11, 1926. Rehearing Refused.)

      (Syllabus by the Editor)

    1. Louisiana Digest — Attachment—Par. 41.
    In an attachment against a non-resident the court gains jurisdiction of the action in rem, even though the bond is defective.
    2. Louisiana Digest — Attachment — Par. 63, 64.
    Act No. 119 of 1916 permits the amendment of a defective attachment bond in the court of original jurisdiction by the furnishing of new or additional bond.
    3. Louisiana Digest — Attachment—Par. 15.
    Under Act 215 of 1920, a writ of attachment is authorized against non-resident defendants on an unliquidated claim.
    4. Louisiana Digest — pleading—Par. 62.
    An exception no cause of action is properly overruled where it is possible that the evidence under the pleadings may show1 a cause of action.
    5. Louisiana Digest — Landlord and Tenant — Par. 59, 65, 66.
    Under Article 2716 of the Civil Code, it is the duty of the tenant to place hooks on the screens and, therefore, the landlord cannpt be held liable in damages for such neglect.
    Appeal from the First Judicial District Court, of Louisiana, Parish of Caddo. Hon. E. P. Mills, Judge.
    Action by Mrs. B. A. Yates and husband against Mrs. Beatrice Tessier, et al.
    There was judgment for defendants and plaintiffs appealed.
    Judgment affirmed.
    L. C. Butler, of Shreveport, attorney for plaintiffs, appellants.
    .Frank J. Looney, of Shreveport, attorney for defendants, appellees.
   WEBB, J.

The plaintiffs, B. A. Yates and wife, Wilhemina Yates, appearing individually and as the representatives of their minor child, bring this action to recover damages- alleged to have been sustained by them and by-the child'as the result of injuries süffered by the child through the alleged negligence of the defendants.

Plaintiffs allege that they had leased a portion of a house belonging to -defendants and that their child, while on a bed which had been placed by a window and which was level with the window, rolled or moved from the bed into the window and against the screen and that the screen gave way and swung out and the child fell through the opening to the ground, sustaining serious permanent injuries.

They allege that the screen had the appearance of being tightly fitted into the window frame, but, not being nailed or fastened, gave a false appearance of safety; that the condition, of the screen was known to the defendants, who had been warned and requested to repair same, and that plaintiffs were not aware of the condition of the screen and that the maintenance of the screen in its unsafe condition was negligence.

They aver that they had incurred expenses in excess of five hundred dollars for medical attention to the child and that the child, as the result of the injuries received, had sustained damages for an amount of twelve thousand dollars.

They further alleged that the defendants were residents of the state of Texas and that “they fear and believe and have good reason to fear and believe that the defendants will mortgage, encumber or dispose of the aforesaid property during the pendency of the suit and that it lies within their power to do so” and prayed for the issuance of writs of attachment and the appointment of a curator ad hoc to represent the absentees and for judgment in accordance with their allegations, and for all orders and decrees necessary and general relief.

The writs of attachment were issued on the plaintiffs giving bond in the sum of two hundred and fifty dollars, and the property was seized and service made as required by law.

The curator, ad hoc, moved, to dissolve the-attachment on the ground that the bond Was insufficient and not such as required by lq,w, and plaintiff answered the motion and tendered a bond for twelve, thousand five hundred .dollars. ,

On trial of this motion the bond tendered was permitted to be filed, and the motion to dissolve • overruled.

The curator ad hoc then filed a motion to dismiss, based upon the proposition that the writ of attachment should 'not have issued as the amount claimed was conjectural and could not serve as the basis of a positive oath, and upon the motion being overruled the curator filed' an exception of no cause of action which was overruled. The curator then filed a motion for plaintiff to elect whether their suit was based upon a contract or tort, and plaintiff elected that the suit was in tort.

The defendant then answered, denying the material allegations of the plaintiffs’ petition and alleged that if plaintiffs’ child sustained any injury it was due to the negligence of the plaintiffs.

On trial, judgment was rendered in favor of the defendants, rejecting plaintiffs’ demands, and they have appealed.

OPINION

We consider the motions, exceptions, and merits in the order named.

MOTION TO DISSOLVE

In presenting this motion, defendants apparently consolidated the motion to dissolve and the motion to dismiss, contending that the motions should' have been sustained on the following grounds:

First: That the plaintiffs having alleged other grounds for the issuance of the attachment than the non-residence of the. defendants the bond of two hundred and fifty dollars was insufficient and 'the court was without authority to allow the supplemental bond to be filed, contending that- an attachment bond cannot be amended and that the attachment having issued upon an insufficient bond the court did not acquire jurisdiction.

Second: That an attachment will not lie where the amount claimed cannot be definitely fixed.

(1) Conceding, without deciding, that the plaintiffs have alleged any legal ground for the issuance of the writ of attachment other than the non-residence of the defendants, we are of the opinion that the court was authorized under Act No. 119 of 1916 to permit the attachment bond to be amended.

“That whenever any litigant in this state shall have furnished in connection with any judicial proceedings a bond and surety, and the said bond is insufficient in, amount * * * such litigant shall have the right to correct such insufficiency * * * in the court of original jurisdiction and to. furnish new or additional bond and surety conditioned according to law * *

“That the foregoing provisions shall apply to bonds in cases of appeal and conservatory writs * *

Unless it should be held that the court did not obtain jurisdiction on the seizure made under the writ of attachment issued upon an insufficient bond.

We have not been cited to any case in which it has been held that the court could not obtain jurisdiction in an action in rem on attachment against a non-resident where there was a defect in the bond. We are of the opinion that the court was vested with jurisdiction by the seizure of the property under the writ of attachment and service of process as required by law, and the fact that the attachment may' ha,ve been issued on an insufficient bond did not have the effect of divesting the court of jurisdiction.

(2) The issuance of the writ of attachment against the defendants, non-residents, on an unliquidated claim, was authorized under the provisions of Act 215 of 1920 which declares:

“That in all suits instituted in any of the courts of this state, in which the demand is for damages arising from an offense, quasi offense or tort, where the defendant * * * is a non-resident of the state *- * * the plaintiff shall have the right to, sue out an attachment against the property of the defendant upon making affidavit and giving bond as now required by, law in suits against non-resident defendants for other causes of action. * * *”

EXCEPTION OP NO CAUSE OP ACTION

The defendants state that this exception is based upon the allegations of the petition showing that the parents placed the child in a position where it could roll or move into an open window and against a screen which was designed only to prevent insects from coming into the room and not to prevent the occupants from falling out of the window.

. Counsel argues that the allegations of the petition present the same situation as if the parents had placed their child, who was of such an age that it could not be presumed to have realized the dangerous situation, in an open window or known place of danger, and that conceding that it .was negligence in the defendants in not placing a hook upon the screen, that the act of the parents was an independent intervening cause or the proximate cause of the injury. , ,

. While we are of the opinion that the petition shows that the parents were negligent, yet conceding that the defendants were at fault in failing to fasten the screen to the frame, we conceive that it might be said, in view of the fact that the lessor cannot usually avoid responsibility for injuries sustained by a child rightfully on the leased premises as the result of his neglect to maintain the leased premises in a safe condition, by proof of negligence on the part of the paren(t, that the court, in overruling the exception and proceeding to hear the cause on the merits, took the safe course.

MERITS

The evidence establishes that the defendants leased the premises to Mrs. Siedge and that during the lease the defendants, at the request of the lessee, had another window placed in one of the rooms and that, in addition to the sash and glass, a wire screen was placed in the window; that the screen extended over the full length of the window frame, being fastened at the top of the frame with hinges which allowed the screen to swing out from the bottom; and that the screen fitted into the frame, but was not fastened with hails, hooks or otherwise.

That Mrs. Sledge sublet a part of the leased premises, which included the room in which the window in question was located, to the plaintiffs, and that they in arranging their furniture placed a bed next to the window and in such manner that one lying on the bed could roll from the bed into the window and against the screen; that Mrs. Yates and her child who was about three years of age were lying on the bed when the child got into the window and rolled or fell against the screen which swung out on its hinges and the child fell through the opening to the ground sustaining serious injuries.

The evidence further shows that the object and purpose of placing the screen in the window was ■ to prevent insects from getting into the room and that Mrs. Yates knew that the screen was not fastened with a hook.

It further appears from Mrs. Yates’ testimony that' she had pushed against the screen to test its resistance and it not giving way she concluded it was fixed in the frame with nails, although she knew that the screen in an adjoining window to which the bed occupied the same position as to the window in question was fastened with a hook which permitted it to be swung out from the window on its hinges.

The plaintiffs base their right to recover on the provisions of Articles 670 and 2322 of the Civil Code, contending that the defendants were negligent in failing to maintain the premises in a safe condition in that the screen was not fastened .in the window frame.

Conceding, without deciding, that the fact of the screen not being equipped with a hook or fastened in the frame was negligence and that it was the proximate cause of the injury sustained by the child, we are of the opinion that under the provisions of Articles 2716 of the Civil Code reading:

“The repairs, which must be made at the expense of the tenant, are those which, duriiig the lease, it becomes necessary to make:

“To the hearth, to the back of chimneys and chimney casing.

“To the plastering of the lower part of interior walls.

“To the pavement of tombs, when it is but partially broken, but not when it is in a state of decay.

“For replacing window glass, when broken accidentally, but not when broken either in. whole or in their greatest part by a hail storm or by any other inevitable accident.

“To windows, shutters, partitions,,,shop, windows, locks and hinges, and everything of that kind, according to the custom of the place.”

It was the duty of the plaintiffs to have placed a hook on the screen and not the duty of the defendants, and that the plaintiffs cannot recover aga.insc the defendants, owners (Brodtman vs. Finerty, 116 La. 1103, 41 South. 329; Moore vs. Aughey, 142 La. 1042, 78 South. 110; Harris vs. Tennis, 149 La. 295, 88 South. 912).

The judgment appealed from is affirmed.