text:
    No. 540
    First Circuit
    MARTIN, SR., v. LOUISIANA PUBLIC UTILITIES CO., INC.
    (April 14, 1930. Opinion and Decree.)

      S. I. Foster, of Leesville, attorney for plaintiff, appellant.
    Thompson & Ferguson, of Leesville, attorneys for defendant, appellee.
   LeBLANC, J.

The plaintiff has predicated his cause of action on the theory that he has acquired by prescription the servitude of draining the refuse water from his private residence through a sewer that is presently being operated and maintained by the defendant in the town of Leesville.

Briefly stated as possible, the facts which gave rise to this litigation -are as follows:

More than twenty years ago the corporation owning and operating a sawmill in Leesville, also controlling the stock of the Leesville Light & Water Works Co., Ltd., constructed a sewer system under the streets of that part of town inhabited by its employees. In establishing this system of sewerage, they seem to have been actuated from a consideration of the good health and convenience of their employees. Those residents of that part of the town who were not their employees, or who did not occupy residences belonging to the company, were permitted to connect with the sewer, and a monthly charge of 50 cents was exacted from them for lavatory water service. The plaintiff, one of those who owned and occupied his own residence, was allowed to connect his drain pipe with the system. He alleges that this was done under a verbal agreement, not to pay a monthly charge but, on the contrary, free of any charge as long as he performed and carried out his contract to purchase water of the Leesville Light & Water Works Co., Ltd.

It may be mentioned here that the president of the Leesville Light & Water Works Co., Ltd., denies that his company had any special agreement with the plaintiff, but that he used the service on the same basis as every one else did.

In 1925 the Leesville Light & Water Works Co., Ltd., sold its entire properties Including its franchise with the town to one S. R. Morgan, who in turn sold it all, with the exception of the sewer system, to the defendant. Morgan attempted to operate the system but must not. have done so successfully, as in June, 1927, he permitted it to be sold for taxes due on it for the year 1926. At the tax sale on June 3, 1927, the defendant was the purchaser fcr the sum of $273.21, this being the amount • of the taxes due plus the ordinary and usual costs and expenses. The defendant then began negotiations with the town counsel and, as it particularly did not wish to operate the system, offered to donate it to the town. The offer was kept open for six months, after which period the town, having definitely decided that it would not accept, granted the defendant a franchise to operate the system under the provisions of which it was permitted to make a monthly minimum charge of $1.25 for every sewerage connection. It was upon the refusal by plaintiff to pay this charge that the defendant disconnected his pipe with the sewer, whereupon this suit was instituted to compel the restoration of the service and its maintenance without charge and, coupled with this, a demand for damages in the sum of $500.

The lower court rejected the plaintiff’s demands, and he has appealed.

No written reasons were assigned by the district judge. In his brief, plaintiff’s counsel states that he was not present in court when judgment was rendered but was informed that the suit was dismissed by the trial judge because he found that the servitude being claimed was a non-apparent servitude which could be established only by title, and could not be acquired by immemorial possession. Civ. Code, art. 766. Plaintiff, of course, had contended, as he does here, that the servitude he claims is apparent and had been acquired by possession of more than ten years. Civ. Code, art. 765.

If the plaintiff enjoyed any servitude whatever, we are inclined to the opinion that it is an apparent servitude susceptible of being acquired by ten years or more possession. Civ. Code, art. 728, defines apparent servitudes as “such as are to be perceivable by exterior works” and cites an aqueduct as being an example of one. In the sense that they are both water conduits, an aqueduct and a sewer may be said to be much .the same as far as their construction is concerned. Indeed, the Civil Code in article 860, although in a different title, having occasion to refer to works and constructions of this kind, uses the term “sewer or aqueducts” as convertible or equivalent to each other. But the more serious problem which confronts the plain- ' tiff is whether, under his own pleadings, he has any servitude at all.

“A real or predial servitude is a charge laid on an estate for the use and utility of another estate belonging to another owner.” Civ. Code, art. 647.

Having that definition before us, let us consider the allegations of plaintiff’s petition upon which he claims to have a servitude.

In article 7, he alleges that approximately eighteen years ago he entered into a contract with the Leesville Light & Water Co., Ltd., “to purchase water at a stipulated price per opening furnished to his residence and premises and that as a part— a material part of that agreement the Lees-ville Light & Water Works Co., Ltd., placed in the street passing his property its sewer line for the purpose of affording a drain and waste way for the water and sewerage from plaintiff’s property.” He further alleges his compliance with the contract for the purchase of the water.

These allegations do not strike us as disclosing a contract which imposed a charge or burden on the property of the Leesville Light & Water Works Co., Ltd., for the use and benefits of the plaintiff’s property. They impress us rather as setting out a rental agréement between the parties for the use of the sewer, the consideration being the purchase of water by the plaintiff from the Leesvilie Light & Water Works Co., Ltd., at a stipulated price per • opening. Every essential element of the contract of lease is to be found in their agreement. Under the provisions of article 2678, Rev. Civ. Code:

“All corporeal things are susceptible of being let out, movable as well as immovable * *

Therefore, this sewer was a thing susceptible of being leased. Then there was the stipulated price to be paid, and finally the' duration fixed by the parties to be for a period as long as the plaintiff purchased water from the Leesville Light & Water Works Co., Ltd. Civ. Code, art. 2684.

The contract was a verbal one, and therefore not recorded. There is nothing in the record, except plaintiff’s allegations, to show that the defendant or its vendor had any knowledge of it, and much less, assumed any obligation under it. The evidence tends rather to refute such allegations.

It is plain that under such contract if plaintiff had discontinued payment even after twenty or thirty years of enjoyment, he could not have maintained his right by prescription as “he can not change by his own act the nature and the origin of his possession.” If his possession is founded on a contract of lease, he always possesses “by the same title, and can not prescribe by any length of time.” Civ. Code, art. 3514.

Defendant had filed an exception of no cause of action which might properly have been sustained, but, as the result on the trial of the case rather strengthens us in the views we take of the matter, we will dispose of it by rejecting plaintiff’s demands on the merit.


source: Caselaw Access Project

author: ELLIOTT, J.

license: Public Domain

text:
    No. 568
    First Circuit
    PAYS v. CATELY
    (March 5, 1930. Opinion and Decree.)
    (April 14, 1930. Rehearing Refused.)

      C. A. Provost, of New Iberia, attorney for plaintiff, appellant.
    J. J. Davidson, Jr., of Lafayette, attorney for defendant, intervener, appellees.
   ELLIOTT, J.

Frank Pays claims in a petitory action against defendant and Auguste Denton, intervener, a certain lot of ground situated in the city of New Iberia, with the buildings and improvements thereon. The lot is described as situated in Frere’s addition to the city of New Iberia, and as being lot No. 1 of a subdivision of a portion of said subdivision made by D. T. Peebles, surveyor, measuring 45 feet front on Dale street by a depth of 150 feet between parallel lines, bounded north by French street, south by lot 2, east by Dale street, and west by lot No. 8 of said subdivision.

He sets up title to the lot by purchase and title from Auguste Denton, intervener, dated November 5, 1913, recorded in Book 74, folio 626, of the Conveyance Records of the Parish of Iberia.

Defendant Cately, alias Thompson, admitted possession, but only as tenant, under Auguste Denton and referred the plaintiff to him. Denton appeared, intervened, and resisted plaintiff’s demand. He alleged ownership and possession in himself and denies that he sold the property to the plaintiff. He admits signing the act set up by the plaintiff, but contends that it was not his intention to sell his property, but that he believed and intended, in signing the act, that it was a document for the purpose of securing plaintiff for money which the plaintiff had loaned him. That insofar as said act purports to be a sale, it was by him signed in error. That said act is null and void insofar as it purports to be a sale, because of his said error and want of consent.

The question in the case is whether the act declared on by the plaintiff as a sale was really intended as a sale, as it purports to indicate, or was it entered into and intended as a security arrangement in order to secure plaintiff for money loaned by him at the time, to the intervener, Denton.

The district' judge held that it was intended as an act of security.

The direct evidence and the facts and circumstances support the finding of the lower court on this subject to such an extent that there is no ground for doubt. The parties intended by the act nothing more than to secure plaintiff for some money loaned by him to Denton at the time the act was passed.

In answering Denton’s intervention, plaintiff prays, in case the act is not recognized as a sale, that he be recognized as Denton’s creditor for $815.43 with interest, on account of the loan and because of taxes paid by him on the property.

The plaintiff offered a large number of tax receipts in evidence, some of them for state and parish taxes; others for taxes due the city of New Iberia, which may relate to the property in question. But we have noticed that the description of the property is omitted from some of the receipts. In some others it is different from that stated in the act of sale. The evidence on that subject is uncertain and no judgment can be rendered on that question without more evidence.

Then again, defendant alleges and testifies, without contradiction, that he had made and that plaintiff accepted a number of payments on the property since the act was passed. The total amount paid is left uncertain by the evidence, but the total sum thus paid must he taken into account in arriving at the amount due the plaintiff.

The lower court considered this question and made proper provision in the judgment for the protection of the rights -of the parties.

The judgment appealed from is correct.

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


author: MOUTON, J.

text:
    No. 578
    First Circuit
    THOMPSON v. GOODMAN
    (March 5, 1930. Opinion and Decree.)
    (April 14, 1930. Rehearing Refused.)
    Taylor, Porter, Loret & Brooks, of Baton Rouge, attorneys for plaintiff, appellee.
    Chas. A. Holcombe, of Baton Rouge, attorney for defendant, appellant.
   MOUTON, J.

The proof shows that Goodman, defendant, an architect of the city of Baton Rouge, was employed by the Fourth District Missionary Baptist Association in reference to plans for the erection of a college in that city. Subsequently thereto, plaintiff, George A. Thompson, was employed as a draftsman by Goodman, and which was prior to the preparation of the plans and specifications for the building. Plaintiff was to be paid $100 a month, as salary, a sum equal to two-thirds of one per cent, on the contract price of all work obtained by Goodman, and for which plaintiff drew and prepared the plans as draftsman, which additional sum was payable to plaintiff when Goodman was paid for his work.

Plaintiff alleged that such was. the contract, which is admitted by defendant in his answer; but in connection with this admission, defendant avers that the agreement to pay plaintiff two-thirds of one per cent, of the contract price had no connection with and did not apply to the plans prepared for the Fourth District Missionary Baptist Association. In a subsequent paragraph of the answer, defendant alleges that the original agreement provided for the $100 per month salary, and the two-thirds of one per cent, commission on the contract price, but that this agreement was thereafter modified so that it would have no application to the work for the Fourth District Baptist Association as to which it was finally agreed that plaintiff’s compensation should be $250, which was paid to plaintiff, and was accepted by him in full settlement for the work done on the plans and drawings for the Baptist Association. It may be proper to state here that the monthly salary of $100 is not involved in this case, the issue being restricted to the claim of plaintiff for his two-thirds of one per cent, on the contract price for work obtained by Goodman.

In reference to this claim of two-thirds of one per cent, commission, defendant was asked by his counsel if it had been excluded from the agreement. Plaintiff’s counsel objected to the admission of that evidence, contending that it was at variance with the allegation in defendant’s answer wherein counsel claimed defendant had admitted that this two-thirds of one per cent, commission was agreed to in the original contract but had thereafter been changed or modified. We find that in their examination of (plaintiff as a witness by counsel for plaintiff, he was asked if the contract with the Missionary Baptist Association had been excluded by special agreement from the general agreement between him and Goodman. Plaintiff answered that it had not. This question and answer of plaintiff thereto had the effect of opening the door for the admission of that character of testimony by defendant, even if it was at variance with the answer of defendant as contended for by counsel for plaintiff.

Plaintiff claims that he was employed by defendant in the capacity of draftsman from June 6, 1924, to February 5, 1925. The contention of defendant, on the other hand, is that his employment ran from June 8, 1924, to January 8, 1925, at which time defendant says he was discharged from service.

H. L. Robinson testifies that he saw plaintiff working in defendant’s office about the 28th of January, 1925, but did not know if he was then an employee of defendant.

Mrs. Thompson, plaintiff’s wife, testifies that she was with her husband at defendant’s office on different occasions after January 5, 1925, where he was working at the time; that he ceased working there some time around the first week in February, 1925. She admits that he continued to go to the office thereafter, but only on friendly visits. Plaintiff is positive that his contract was terminated on February 5, 1925. The defendant says that (plaintiff’s work as draftsman continued until his discharge on January 8, 1925. The preponderance of the evidence is the other way and shows that the contract ended on or about February 5, 1925, as testified to by plaintiff.

Defendant in his answer denies that plaintiff alone prepared or drew the plans for the association, and that he assisted him in the drawings. It is shown that these plans were drawn after plaintiff had been employed; that he drew plans for other buildings for defendant for which he was paid two-thirds of one per cent, commission on the contract price; also, that the plans for the erection of the proposed college were drawn in his handwriting as appears from the testimony of the printer to whom they had been submitted. It is true that defendant made some suggestions in reference to the plans for the prospective college, but it is shown that suggestions of this character are usual and customary^ by architects in supervising specifications or plans devised by draftsmen for their benefit.

The petition, answer, and evidence show that this commission of two-thirds of one per cent, on the contract price for all work obtained by defendant was payable to plaintiff when defendant was paid for the work. The defendant, after alleging that the original contract was modified by excepting therefrom the plans in reference to the building of the college, alleges that plaintiff was finally paid the sum of $205, which he accepted in full settlement of the plans and drawings for the association. Further on in his answer, defendant alleges that by check for $10, dated January 8, 1925, which bears the notation “payment in full to date,” and indorsed by plaintiff, he was paid in full settlement of all amounts due by defendant for any reason whatsoever.

It is not denied in defendant’s answer, as was alleged by plaintiff, that on October 14, 1927, he had sued the Baptist Association for his services as architect amounting to $2,800 on a basis of 3% per cent, on the sum of $80,000, the lowest bid for the construction of the proposed college. It is shown that he recovered judgment in his suit for the amount demanded, which he subsequently sold for $2,000, finally realizing $1,543.30 thereon after the payment of attorney’s fees.

The contract for the compensation of two-thirds of one per cent, of the contract price stipulated in favor of plaintiff was, as before stated, payable when defendant realized payment on his work. Obviously, when this draft for $10 with notation of payment in full was given on January 8, 1925, it could not have been intended for the commission for plaintiff, which arose or became exigible only when defendant made his collection by the sale of the judgment, certainly at a date subsequent to October, 1927, the time when it is admitted he filed his suit.

As to other allegations of a payment of $205 in full, there is no check, writing, or receipt in the record for any such sum received by plaintiff, and no proof to overcome plaintiff’s denial of any such final settlement. The burden of proof to show such a settlement was on defendant, as it constituted a special defense which the record does not sustain.

Counsel for defendant in his pleadings and brief refers to the fact that defendant finally collected only $1,543.30 on his contract with the Baptist Association. He says in his brief that from the testimony of plaintiff, it seems that he would be entitled only to what defendant actually collected. The answer of defendant admits that plaintiff’s commission was based on the contract price work obtained by defendant. It is abundantly shown by the evidence also that such was the commission agreed to in favor of plaintiff, who it does not appear anywhere in the record consented to the sale of the judgment for $2,000 or to the reduction of the claim to $1,543.30, which defendant says he finally realized on his contract with the association.

Plaintiff is therefore entitled to recover his commission based on the contract price when defendant would be paid, which is established by the allegations of plaintiff’s, petition, by the answer of defendant, and the proof, but which was not to be figured on the amount defendant would actually collect for his work or realize therefrom.

Plaintiff is therefore entitled to the amount decreed, which is less than demanded, but was properly reduced by the district judge. ■

LECHE, J., not participating.


text:
    No. 563
    First Circuit
    DAIGLE ET AL. v. GROSS
    (April 14, 1930. Opinion and Decree.)
    C. A. Blanchard, of Morgan City, attorney for plaintiff, appellant.
    Martin & Martin, of St. Martinville, attorneys for defendant, appellee.
   ELLIOTT, J.

This ease was submitted to this court at our New Iberia term, which was on October 27, 1929. The judgment appealed from is not contained in the record and the transcript is not certified to by the Clerk of Court, as the law requires. Code Practice, arts. 585 and 896. The appellee moves to dismiss the appeal on said account.

The record contains a letter which indicates that the condition of the record was known to appellant at the time it was filed. He offers an explanation that it was not his fault, and requests the Clerk to lay the facts before the court.

The Code of Practice, art. 898, provides a way in which a transcript found by appellant to be incomplete, may be rectified; but the course provided was not followed.

The situation is such that we cannot act on the appeal. The defect and irregularity is imputable to the appellant. The appeal will therefore be dismissed.


author: DREW, J.

text:
    No. 2802
    Second Circuit
    WHELESS AUTO SUPPLY CO., INC. v. STEINAU
    (April 10, 1930. Opinion and Decree.)
    Craig, Bolin & Magee, of Shreveport, attorneys for plaintiff, appellee.
    Wilson & Fuller, of Shreveport, attorneys for defendant, appellant.
   DREW, J.

Plaintiff sues for the amount of $362.65, being the amount alleged to be due for work, repairs and material furnished upon two automobiles of defendant, after giving credit for $200 paid on original bill.

Defendant admits that the material and work was furnished and done, but claims that he has paid sufficient to cover the value of the work and material furnished.

The lower court rendered judgment for plaintiff in the amount sued for, and from that judgment defendant has appealed.

The case involved a question of fact only, and counsel for defendant and appellant has not argued the case. He filed a short brief in the case several days after the case was submitted to this court, 'in which he cites the case of Wheless Auto Supply Co., Inc., vs. Herold, 8 La. App. 51.6. This case is not in point. In the Herold case it was shown that he placed his car with plaintiff to do certain specific repairs at an agreed price, and that he did not authorize any other work, and the court held that Herold was bound only for that which- he had authorized.

In this case no like contention is made, and the record shows that defendant placed his car with plaintiff to be repaired as to whatever parts were needed. There is no denial that the parts claimed to have been furnished by plaintiff were furnished; neither is there any claim that the work alleged to have been done was not performed. It is admitted that no price was agreed upon, and that the bill was to be presented when the job was completed.

The defendant testifies that the car did not give satisfactory service after being repaired, but does not point out any specific thing that was wrong with it. His testimony is vague, indefinite and uncertain. His principal defense is that the bill for the work and material was more than he had intended to pay, although he had not limited the plaintiff to any certain amount of repairs.

The lower court found the defense hot well founded, and that the plaintiff had made out its case with a preponderance of testimony.

We see no good reason for disturbing the judgment of the lower court.

It is therefore ordered, adjudged and decreed that the judgment of the lower court be affirmed, with costs.


author: WESTERFIELD, J.

text:
    No. 13,121
    Orleans
    BEAL v. WARD
    (April 7, 1930. Opinion and Decree.)
    Edward J. De Verges and Lubin J. Laurent, of New Orleans, attorneys for plaintiff, appellant.
    C. A. Buchler, of Gretna, attorney for defendant, appellee.
   WESTERFIELD, J.

This is an appeal from a judgment maintaining an exception of no cause of action. Plaintiff, claiming that defendant is indebted to her in the sum of $353.50, alleges that she kept Theresa Ward, the deceased wife of Prank Ward, in her residence at 2325 Sixth Street, in the City of New Orleans, during her last illness, and that she cared for the said deceased Theresa Ward from June 15, 1925, in her own home night and day, until August 30th, 1925, the date of the said Theresa Ward’s death; that she was constantly called upon to purchase medicine and to supply the proper diet; that she paid Dr. M. C. Gaines a bill of $39.00 for professional services rendered Theresa Ward; that she also paid numerous drug hills for her account; and that the amount sued for “is a just and reasonable amount for the service rendered.”

The ground upon which the exception of no cause of action is based which, is stated in the exception, a practice we should like to see encouraged, is “that the suit of plaintiff is based upon an alleged claim for services rendered to the deceased wife of defendant during her last illness; that said claim if legally due'is a claim against the succession of the deceased and not a personal claim against this defendant, there being no allegation of any contract with this defendant to pay for the said services.”

Article 2403, R. C. C., reads as follows:

“WHAT THE COMMUNITY OWES — INDIVIDUAL INDEBTEDNESS. In the same manner, the debts contracted’ during the marriage enter into the partnership or community of gains, and must be acquitted out of the common fund, whilst the debts of both husband and wife, anterior to the marriage, must be acquitted out of their own personal and individual effects.”

Medical services are a debt of the community. Choppin vs. Harmon, 24 La. Ann. 327.

A surviving husband is personally and individually responsible for the payment of the debts of the community — a wife only when she accepts the community. Her heirs may avoid responsibility by accepting under the benefit of inventory. Landreaux et al. vs. Louque, 43 La. Ann. 235, 9 So. 32; Messick vs. Mayer, 52 La. Ann. 1175, 27 So. 815.

When the community of acquets and gains is dissolved by the death of the wife, the husband is responsible for the debts of the ’ community, and he is personally bound for their payment. The community assets, and his separate property as well, may be seized and sold for the discharge of the community debt. Hawley and Wells vs. Crescent City Bank, 2.6 La. Ann. 230; Beck vs. Natalie Oil Co., 143 La. 156, 78 So. 430.

Nor can it be contended that the plaintiff in this case was under any obligation to provoke an administration of the wife’s succession before making demand upon the husband for payment of the community obligation.

“During the existence of the community, the husband is practically the owner of the community (property, which he may sell, dispose of, and encumber, by onerous title, at will, and without the concurrence of his wife. He is personally responsible for all of its debts. At his death it enters into and forms part of his succession, to be therein administered and devoted to the payment of the community debts, which are also his personal debts. The wife has no personal liability for the debts, and has no interest whatever in an insolvent community. In case of the dissolution of such a community by the prior death of the wife, her succession or heirs have no valuable interest in the community property.
“If, as in this case, the community be admittedly insolvent, they have no interest, and, consequently, no right, to provoke its liquidation. As to the community creditors, they are under no necessity to provoke its liquidation through the medium of the wife’s succession, because it is settled they may disregard the wife’s interest, and proceed directly against the community property in the possession of the husband, contradictorily with him alone. Hawley v. Crescent City Bank, 26 La. Ann. 230; Ricker v. Pearson, 26 La. Ann. 391; Riley v. Condran, 26 La. Ann. 294.” Succession of Cason, 32 La. Ann. 790.

It follows from what has been said that the exception of no cause of action should have been overruled.

For the reasons assigned, the judgment appealed from is reversed, the exception of no cause of action overruled, and this ease remanded to the Twenty-fourth Judicial District Court for the parish of St. Charles for further proceedings according to law and not inconsistent with the views herein expressed.


text:
    No. 3359
    Second Circuit
    ANDERS-HIGHTOWER, INC., v. HUIE & SON ET AL.
    (March 24, 1930. Opinion and Decree.)
    (April 10, 1930. Rehearing Refused.)
    W. U. Richardson, of Arcadia, attorney for plaintiff, appellant.
    Paul E. Browne, Jr., and I. J. McConathy, of Arcadia, attorneys for defendants, appellees.
   DREW, J.

Plaintiff instituted this suit against Huie & Son for the sum of $539.55, alleged to be due for goods, wares, and merchandise sold to said defendant. It alleges that Huie & Son is a commercial partnership, composed of N. D. Huie, Sr., and N. D. Huie, Jr., and prays for judgment against the partnership and each of the members in solidó.

Huie & Son appeared and excepted to the petition for the alleged reason that it was not drawn in accordance with the Pleading and Practice Act of the State of Louisiana. This exception was overruled, and an answer was filed by Huie & Son, owned by N. D. Huie, Jr., pleading a general denial to each article of the petition.

The lower court rendered judgment in favor of the plaintiff and against the defendant, Huie & Son, for the sum prayed for.

Prom this judgment plaintiff has appealed, and asks this court to amend the judgment of the lower court by rendering judgment against N. D. Huie, Sr., and N. D. Huie, Jr., in solido.

The minute entries show that on April 23, 1928, a statement of evidence was submitted to the court. However, no such statement is in the record, and, in fact, there is no evidence at all in the record.

There is no certificate in the record, signed by the clerk, to show that the record is complete.

Where the record is so imperfect as to preclude an examination into the case on its merits, no motion to dismiss the appeal is filed, and there is no certificate, signed by the clerk, as to the completeness of the record, when the fault cannot be attributed to the appellant, the case will be remanded to be tried according to law. City of New Orleans vs. Lacroix, 18 La. Ann. 146; McMillan vs. Gibson, 9 La. 119.

It is therefore ordered, adjudged, and decreed, that the judgment of the lower court be reversed, and the case is remanded to be tried according to law.


text:
    Nos. 580-581
    First Circuit
    KERN v. KNIGHT ET AL.
    (March 5, 1930. Opinion and Decree.)
    (April 14, 1930. Rehearing Refused.)

      McCoy, Moss & King, of Lake Charles, attorneys for plaintiff, appellee.
    E. L. Stewart, of DeRidder, and P. ■ L. Ferguson, of Leesville, attorneys for defendants, appellants.
   MOUTON, J.

In the above-entitled cases the district judge rendered the following opinion:

“On July 21, 1928, Clebert C. Kern, husband of petitioner, Mrs. Leo Cadie Kern, and father of the minors Howart, Bertha, Robert and Marcus Kern, was run over and killed by an automobile owned by Dr. J. A. Knight, but driven by his minor son, Leo Knight, who was living with his father at the time.
“The accident happened on a dark night, while the defendant, Leo Knight, a 16 year old minor, was driving a Chrysler 70 (Dep. of Norwood) west on the De Ridder-Merryville road, which runs, at the point of the accident, in an easterly and westerly direction.
“Shortly prior to the accident, Clebert C. Kern, traveling east in a Dodge sedan, in attempting to go around another car, had a slight collision with a Ford truck, owned by Louis Fruge, and being driven in a westerly direction. Kern parked his Dodge sedan well to the right, or south of the road, a couple of feet from the ditch (Pillsbury, Tr. 23, 24, 41, 44), and Louis Fruge parked his truck, headed west, on his right, or north side of the road, with his right front wheel in the ditch, and with the rear of the truck ‘slightly angling’ toward the center of the road (Fruge, Tr. 119, 120; Sandal, Tr. 227, 228; Pillsbury, Tr. 25, 38, 45, 46). The rear end of Fruge’s truck was 54 or 55 feet east of a point opposite the front end of Kern’s Dodge sedan. A Ford roadster came west between the cars above mentioned, and the car of Hugh Hurst, which was parked well on his right or south side of the road, and 31 feet west of a point south of the front end of the Fruge truck (Pillsbury, Tr. 26, 290; Crier, Tr. 290), and parked on his right, or the north side of the road, 126 feet west of the front end of the Fruge truck. (Pillsbury and Crier, Tr. 26, 42, 290, 293, 294.) Estimating the length of the Dodge sedan and the Fruge truck at 14 feet each, there was 85 feet between Kern’s Dodge sedan and Hurst’s car on the south side of the road, and there was 126 feet between Fruge’s truck and the Ford roadster on the north side of the road.
“Other witnesses differed with Crier and Pillsbury in their estimates of the distances between the cars, but the former were unable to agree among themselves, and I feel certain that Crier and Pillsbury have located correctly the various cars. These witnesses are disinterested, intelligent, had good opportunities to fix the location of the cars, and this they did with reference to easily recognize objects on the ground, and which they testified they remembered.
“Defendants, during the trial, sought to show that Kern was injured in the first collision, and not in the second with Leo Knight. There is nothing in the record to support this contention. Moreover, Leo Knight admitted that he struck a man. The collision between the Kern car and Fruge’s car was slight, and Kern was not then injured in even the slightest degree. (Pillsbury, Tr. 24, 33, 39, 287; Crier, Tr. 77, 94; Fruge, Tr. 102, 113, 133; Henry, Tr. 143.)
“Clebert C. Kern received, two wounds, from either of which he would have died. (Dr. Love, Tr. 4.) One of the wounds was as wide as one’s hand, and cutting the right side and front of the abdomen open, it extended as a punctured wound some inches past the middle line of the abdomen. Kern’s skull was badly fractured also.
“All of the witnesses agree that, after Kern had the slight collision with the Fruge truck, he walked around, absolutely uninjured, talking and acting as any normal man. He could' not have done this had he received either of the wounds in the first collision.
“As the four cars were located on the road, there was ample space for other cars to pass between them, and one Chrysler and the Ford roadster actually went through without trouble. (Fruge, Tr. 103, 134, 126; Henry, Tr. 137, 144; Crier, Tr. 73, 76, 90; Pillsbury, Tr. 26, 37, 41, 58.) In fact, there was so much room that it was not necessary to move- from beside the Hurst car as the other cars went by (Fruge, Tr. 126), and some of the witnesses did not move from the Hurst car as the others went by (Pillsbury, Tr. 58).
“There is nothing in the record to show tbe total width of the various cars, but the court takes judicial notice of the fact, which is common knowledge, that the distance between the centers of automobile wheels is 4 feet, 8 inches. If the total width of each of these cars was 6 feet, and if the Hurst car had been directly south of the Fruge truck, there would still have been 2% feet left on each side of the Chrysler 70 coupe as it went between the Hurst and Fruge cars, for the crown of the road at that point was something over 23 feet wide. (Tr. 290, 293, 294.) The Hurst car was not opposite the Fruge truck, and there was ample room for a car to pass between them without turning in any way. (Henry, Tr. 153.)
“All four of the cars had their lights burning as they were parked on the road, at the time of the accident. The left front light of the Fruge truck was out, but the other front light and the tail-light were burning. (Pillsbury, Tr. 28, 29, 47.) Crier remembered that the head lights on the Hurst car, and the tail lights on the Fruge truck and the Ford roadster were burning. (Tr. 70.) Fruge recalled that the tail-light and one headlight on his truck were burning. (Tr. 104.) Henry also remembered this. (Tr. 104.) Smith testified that the lights on Kern’s Dodge sedan were burning. (Tr. 202.)
“Just prior to the fatal accident Kern was standing on the north side of the Hurst ear, talking with Crier, Fruge, Hurst, Mrs. Hurst, and Pillsbury. (Tr. 27, 38, 49, 87, 84, 98, 107, 138, 150.) When the Chrysler 70 coupe approached, Kern was standing in the road, with his foot on the north running board or fender of the Hurst car. (Crier, Tr. 68, 92, 98, 99.) ■
“One witness testified that Kern, at the time, had one foot (evidently his left) on the running board of the Hurst car, with his back toward the on-coming Chrysler. (Tr. 33, 34.)
“With Kern in this position by the side of the Hurst car, and with all four of the cars, in the location shown, and with the lights of all of them burning, the Chrysler was seen approaching several hundred feet away, at a rapid rate of speed. Crier, who was standing in the road with a flashlight lantern (Tr. 54), ran up the road some distance, signaling the Chrysler to stop (Tr. 29, 53, 54, 55, 71, 72), and then ran off the road (Tr. 88, 97), but it appears no attention was paid to the signals.
“The record absolutely shows that Leo Knight approached the parked cars at a highly excessive rate of speed. The defendant, Leo Knight, says that he was driving 35 miles an hour (Tr. 264), and Sandal, who was riding with him, says Knight did not slow up until he saw the truck (Tr. 229), and, according to Knight, he was then on it. Smith, who was also with Leo Knight, estimated the speed at 30 or 35 miles per hour (Tr. 198), and Crier estimated the Chrysler’s speed at 45 miles per hour, and noticed no slowing up. (Tr. 71, 90.) Fruge, Pillsbury, and Henry could not estimate the Chrysler’s speed, but said it was ‘pretty fast.’ (Tr. 29, 127, 140.)
“When Leo Knight put on the brakes, he skidded and struck the Fruge truck, knocking out its tail-light. He then skidded to the south side of the road, struck and knocked the Hurst car into the ditch, then, continuing to skid and sway toward the north side of the road, went about 80 feet farther, struck and knocked the Ford roadster into the ditch, and then continued some distance down the road.
“From the front' part of Kern’s car to the back of the Ford roadster was 194 feet, estimating the length of the Fruge truck at 14 feet. With the gas cut off, and the brakes on most of the time, the Chrysler 70 coupe struck three ears, knocked two of them in the ditch, and not only traveled the 194 feet, but rolled some yards farther before coming to a stop. This all indicates a very high rate of speed. That Knight’s rate of speed was excessive is plain, and it is equally plain that it was gross negligence to approach four lighted cars, grouped on the roadside as were these cars, at such a rate of speed. A person seeing parked automobiles on the roadside should exercise extraordinary care in approaching them, and, failing to do so, is guilty of negligence. Daigle v. Plaisance, 7 La. App. 439.
“Negligence having been shown on the part of the defendant Leo Knight, the burden then rested upon the defendants to show affirmatively, contributory negligence on the part of the deceased, in order to avoid a recovery. In the case of Buechner et al. v. City of N. O., 112 La. 599, 36 So. 603, 66 L. R. A. 334, 104 Am. St. Rep. 455, this rule was firmly and finally established, and has never since been departed from.
“There was no evidence to show any negligence on the part of the deceased, but defendants urge that since several other men, who were standing nearby and talking with the deceased, saw the on-coming car, and got out of its way, and, since there was no reason why the deceased could not have seen the Chrysler, it must be presumed that he saw it, and was negligent in not leaving the road with the others.
“There is no such presumption of law as that contended for by the defendants, as will be shown, but to indulge in an inference of fact in regard to negligence, from those set forth in the preceding paragraph, it would first have to be shown that Kern actually saw or heard the approaching Chrysler, and no such showing was made.
“Just how Kern was killed, or where he was at the exact instant he was struck, does not appear from the record. One of the witnesses, Henry, did not see the Chrysler until it was only 50 or 75 yards away. (Tr. 139.) At one time, almost immediately before the accident, Kern had his back to the approaching Chrysler, as has already been shown. Taking into consideration this fact, along with the fact that Kern’s wounds indicate he must have been struck first in the right side, it would seem that it is prohable he remained with his back toward the Chrysler until it was almost on him, and that when he turned to his right to move, he was struck and killed.
“Since the burden of showing contributory negligence is on the defendants, the law presumes the instinct of self-preservation in the deceased caused him to look and listen, and to exercise due care under the circumstances, a rule absolutely in contravention of the one contended for by the defendants. Aymond v. Western Union Tel. Co., 151 La. 184, 91 So. 671.
“Leo Knight claims that the lights from the Kern Dodge sedan blinded him, and prevented him from seeing the other, cars on the road, and that the act of Kern in leaving his car parked in a location where the lights would prevent a traveler from seeing other cars back of it, was one of negligence on the part of the deceased. In the first place, I do not believe that the lights from Kern’s car kept young Knight from seeing the other three cars and the signalling flash-light lantern. The red taillight of the Pruge truck must have been visible to one keeping a lookout, and so must the lights of the Hurst car, some 85 or 86 feet west of the Kern car. If the Pruge truck was ‘angling’ across the road, as defendants claim, then, its headlight, pointing out to the north west, and away from the road, must have been clearly visible.
“The Kern car was well to the right side of the road, and its lights could not possibly have blinded Leo Knight after he got within 75 feet of it, if he had been on his right, or the north side of the road. When 75 feet from the Kern car, Leo Knight was 130 feet from the Pruge truck, which he should have seen with his own lights, in ample time to stop, even if he had not seen the truck’s tail-light at a farther distance.
“Even if it be true that the driver of the Chrysler 70 coupe failed to see the other cars because of blinding lights on Kern’s car, this would be no defense. The Court of Appeal has decided this exact point adversely to defendant’s contention. Alston v. Cooley, 5 La. App. 623.
“It has already been shown that Leo Knight’s vision was not obstructed by the Kern car so as to prevent him from seeing the Pruge truck and other cars, all with burning lights, on the road, hut, even if his vision had been so obstructed, his conduct in driving at such reckless speed down a public road, regardless of whether or not he could see, was the grossest sort of negligence, and for which he is liable. Daigle v. Plaisance, 7 La. App. 439. In the case of Ward v. Donahue, 8 La. App. 335, the defendant sought to avoid damages for running over a pedestrian in a street, by urging that he was blinded by the light of an approaching car. In holding the defendant liable, the court said:
“ ‘It being his (the defendant’s) duty to look ahead always and having no right to assume that the street or road is clear, it follows necessarily that when the driver finds himself so blinded, from whatever cause, that he cannot see in front of him, he assumes the risk.of injuring those who may be in the street.’
“In the case of Alston v. Cooley, 5 La. App. 623, supra, the court held that, even if the blinding lights came from the plaintiff’s own automobile, that fact was no defense to defendant’s negligence.
“Dr. J. A. Knight urges that he is not liable for the acts of his minor son, for the reason that the doctor had forbidden his son ever to use the car without special permission, and that on the occasion of the accident the doctor had given no permission to his son to use the car, and did not know that his son was going to use it then.
“Leo Knight testified that he frequently drove all three of his father’s cars, and that, while his father had forbidden him to drive a car without special permission, he did so ..drive them. The doctor should have known that his son was driving his cars without permission. He had the custody of the cars, and he had control over his minor son.
“Civ. Code, articles 2317 and 2318, read as follows:
“ ‘Art. 2317. Liability for Acts of Others and Things in Our Charge. We are responsible, not only for the damage occasioned by our own act, but for that which is caused by the act of persons for whom we are answerable, or of the things which we have in our custody. This, however, is to be understood with the following modifications.’
“ ‘Art. 2318. Id. Acts of Minors. The father, or after his decease, the mother, are responsible for the damage occasioned by their minor or unemancipated children, residing with them, or placed by them under the care of other' persons, reserving to them recourse against those persons.
“ ‘The same responsibility attaches to the tutors of minors.’
“A father has it within his power to prevent his own son from driving automobiles, and since no one else has this power, the father is liable for damages done by his minor son, whether he is engaged in some undertaking with or without his father’s consent.
“The law in these cases imputes a fault to the father, which is presumed to have resulted from lack of sufficient care, watchfulness and discipline on his part, in the exercise of his parental authority.
“The Supreme Court, in interpreting article 2318 of the Civil Code, quoted above, holds it is not necessary to show the par ent’s knowledge or consent to his minor’s course of conduct, in order to hold the parent liable for his minor’s negligence. Sutton v. Champagne, 141 La. 469, 75 So. 209; Mullins v. Blaise, 37 La. Ann. 92; Rush v. Town of Farmerville, 156 La. 857, 869, 101 So. 243.
“Counsel contends that the 16-year old minor under no circumstance can be liable, even for the results of his negligence. This is contrary to the provisions of the Civil Code, which expressly provides that a minor is liable for his torts. Civ. Code, art. 1785, par. 5; Civ. Code, arts. 1874, 2227. The state, in enforcing its criminal laws, may take a 16 year old minor’s life for the commission of a capital crime. If a minor may be held responsible to this degree for the violation of the laws of his country, there is no good reason why he should not be compelled to make good the damage he does in violating the rights of others.
“The defendant Leo Knight pleads the prescription of one year, based upon the fact that a tutor ad hoc was not appointed, and service upon such tutor ad hoc was not had until one year from the date of the accident. However, Leo Knight was sued jointly with his father, and a judgment in solido was asked against them both. One of the citations, and the petition, was served before the expiration of one year, upon Leo Knight and upon Dr. Knight, his father. I am of the opinion that these services interrupted the running of prescription.
“Since Leo Knight and Dr. Knight are obligated in solido for damages done the plaintiff, service on Dr. Knight interrupted prescription as to Leo Knight. Civ. Code, art. 3552, par. 1, reads as follows:
‘“Id. (Interruption). Debtors in Solido; Heirs. A citation served upon- one debtor in solido, or his acknowledgment of the debt, interrupts the prescription with regard to all the others and even their heirs.’
"There are a number of decisions holding that the interruption of prescription as to one in solido obligor, under a conventional obligation, interrupts prescription as to the other in solido obligors. Continental Supply Co. v. Fisher Oil Co., 156 La. 101, 100 So. 64. The language of the Code is broad enough to cover tort cases, and one Supreme Court has so held. Frazier v. Hardee, 21 La. Ann. 541. In the case of Becnel v. Waguespack, 40 La. Ann. 109, 3 So. 536, the court held that service of a petition of one co-owner of land, for damages to the land, interrupted prescription as to the other co-owner.
“Clebert C. Kern was 44 years old at the time of his death. (Tr. 159.) He had a life expectancy of 25.27 years, and an earning capacity of $10,000.00 per year. (Tr. 160, 166.) Kern left four minors at his death, their names, and ages at that time, being Howart Louis Kern, age 16 years; Bertha Agnes Kern, age 15 years; Robert Joseph Kern, age 12 years; and Marcus Thomas Kern, age 6 years.
“In the case of Gray v. Foundation Co., 151 La. 7, 24, 91 So. 527, the court allowed a widow and four minors, two of whom were 15 and 19 years of age, the sum of $15,000, the widow in this case having an earning capacity.
“In Blackburn v. Louisiana Ry. & Nav„ Co., 144 La. 520, 80 So. 708, a judgment of $15,000 was given a widow and two minor children for the death of the husband and. father, who was 32 years old, earning $100; per month.
“The court allowed a widow damages in ' the sum of $10,000 for the death of her husband, who was 67 years old, and who had an earning capacity of $30.00 per week, in the case of Rose v. L’Engle, 148 La. 310, 86 So. 822.
“For the death of a husband and father 54 years old, with a life expectancy of 18 years, and an earning capacity of $150 per month, the widow was allowed $10,000 and her 13 year old child was allowed $5,000, in the case of Feely v. National Packing Co., 141 La. 903, 75 So. 837.
“In the case of Jones v. Kansas City Southern Ry. Co., 137 La. 178, 68 So. 401, a widow was allowed $5,000, a 7 year old boy $3,500, a 6 year old daughter $4,000, and a 2 year old boy $5,000. In this case, nothing was allowed for the suffering of the deceased, nor for the mental anguish of the plaintiffs, as the case was brought under the federal statutes.
“It was held in Bourdier v. Louisiana Western R. Co., 131 La. 689, 60 So. 78, that the widow of a 28 year old station foreman was entitled to $10,000 for his death. For a large list of cases showing the awards in cases similar to those above cited, and to the case at bar, see Johnson v. Hibernia Bank & Trust Co., 5 La. App. 649.
“Taking into consideration Kern’s earning capacity of $10,000 per year; his life expectancy of 25.27 years; his great suffering for many hours; the net inventory of his share of the community property amounting to $19,373; insurance in the sum of $6,000 payable to his estate, and $22,00 to his widow and all of the relevant facts bearing on the question of damages, the court will allow a judgment in favor -of the widow for $7,000, and a judgment in favor of the natural tutrix, for the benefit of the minors, in the sum of $10,000, which last named amount is to be divided among ■said minors, according to the length of their respective minorities. See Eichorn v. New Orleans, etc., Co., 114 La. 712, 726, 38 So. 526, 3 Ann. Cas. 98.”

In the foregoing opinion we find a thorough, correct, and comprehensive analysis of the facts in these consolidated cases; also a proper application of the rules of law governing the issues therein presented for solution.

An opinion by this court on the contested points presented on this appeal would result only in the repetition of what has been said by our learned brother of the district court.

Counsel for defendant is, however, so insistent on some legal points involved in the case that, notwithstanding our acceptance of the conclusions of facts and law reached below, we shall give our attention to the questions thus urged in defendant’s brief.

In referring to article 2318, Civ. Code, which holds the father, or, after his decease, the mother, responsible for the damage occasioned by their minor, counsel says: This article “does not make them jointly liable, but makes them solidarily liable.” In the opinion of the district judge hereinabove reproduced, as we understand it, Dr. Knight and his minor son, Loo Knight, were held in solido for the damages claimed, and in this respect there was no error committed by the lower court. In connection with the foregoing contention, counsel also contends that he has been unable to find where our courts have ever passed on articles 1785, 1874, and 2227 of the Civil Code, and that, as he construes these articles, the unemancipated minor cannot be held for damages resulting from his offenses or quasi offenses. In commenting on these articles of the Code, Marcade, vol. 4, p. 672, says: “Un mineur s’oblige tout aussi bien qu’un majeure par ses faits illicites” — meaning, roughly translated, that the minor is equally bound as the major for his illegal acts or for his offenses or quasi offenses. As we construe these articles, the minor is responsible individually for the damages resulting from his acts in such cases.

Another contention of counsel for defendant is that in the petition served on the defendants there is no allegation of the necessity for the appointment of a curator ad hoc. Counsel contends that such an averment was essential, and, for the want of such an allegation, his exception of no cause of action should have been maintained. Such an averment in the petition, in our opinion, was not indispensable or sacramental to the cause of action set out by plaintiff against Dr. Knight and his son, Leo, for the damages claimed against them in solido. The petition in which the damages were so claimed was served before the expiration of one year from the commission of the act complained of; and, as said below, interrupted prescription under article Civ. Code, art. 3552.

For the foregoing reasons and those given in the opinion of the district judge, the defendants were correctly held liable in solido.

We are of the opinion, however, that the judgment of $7,000 in favor of the widow should be reduced to $6,000, and the judgment in favor of the natural tutrix for the minors should be reduced to $8,000, and, as thus amended, affirmed.

It is therefore ordered, adjudged, and decreed that the judgment in suit No. 2559. district court, in favor of Mrs. Leocadie Kern, widow, be and is hereby amended by reducing it to the sum of $6,000; and that the other judgment in suit No. 2560 of' the District Court, in favor of Mrs. Leocadie Kern, tutrix for the benefit of the minors, be and is hereby amended by reducing it to the sum of $8,000; and, as thus amended and reduced, that the two judgments be and are hereby affirmed, with cost.

LECHE, J., not participating.


author: WEBB, J.

text:
    No. 2748
    Second Circuit
    McEACHERN v. ADCOCK ET AL.
    (March 24, 1930. Opinion and Decree.)
    (April 10, 1930. Rehearing Refused.)

      Atkins & Meadows, of Homer, and J. Rush Wimberly, of Arcadia, attorneys for plaintiff, appellee.
    Goff & Barnette, of Arcadia, and J. W. Elder of Ruston, attorneys for defendants, appellants.
   WEBB, J.

This is an action against an accommodation indorser of a promissory note. The note was drawn on a form in which the name of the “The Citizens’ Bank” was printed as the payee. In the note sued upon the name “The Citizens’ Bank” was stricken out and the name of plaintiff written as the payee.

Plaintiff, J. C, McEachern, was the president of the Citizens’ Bank, and Mrs. J. W. Adcock, the drawer of the note, obtained the form from plaintiff at Haynesville, La., the domicile of the bank, and she and H. L. Cleveland drove, in an automobile, from Haynesville to Gibsland, La., where the instrument was presented, by Cleveland, to W. L. Hamner, a merchant doing business at Gibsland, who wrote his name on the back of the instrument, and Mrs. Adcock and Cleveland returned to Haynes-ville, and the note was delivered to plaintiff.

Mrs. Adcock failed to pay the note, and plaintiff brought this action against Hamner, the indorser, who is the appellant here.

In answer to the suit, defendant denied that plaintiff was the holder or owner of the note, and alleged that at the time he signed the indorsement the payee was the Citizens’ Bank, and that the name of the bank was stricken out and that of plaintiff substituted as payee without defendant’s knowledge or consent; and defendant also pleaded, in the alternative, that plaintiff was indebted to the drawer of the note in an amount greater than the amount of the note, and pleaded that any amount due by plaintiff to the drawer should be credited on the note, etc.

On the day of the trial defendant offered to file an amended answer, in which he alleged that the “note was payable to the Citizens Bank and it was intended that said note should be payable to Citizens Bank and that if he had known that the payee in said note would be changed or made payable to an individual, he would not have endorsed the said note”; but the amended answer was not allowed to be filed, and the trial was had on the original answer and judgment was rendered against defendant.

Appellant urges here that the court erred in refusing to allow the amended answer to be filed, and, further, that the evidence established that the note had been altered and plaintiff substituted as the payee without defendant’s consent, and that the judgment should be reversed or the case remanded for a new trial with instructions to allow the amended answer to be filed.

As to the defense set out in the amended answer, that the note had been altered subsequent to defendant’s indorsement of it, it was merely a reiteration of the defense set up in the original answer, with the exception that, in the original answer, the charge that the instrument had been altered was made upon information alleged to have been communicated to defendant by the drawer, Mrs. Adcock, and as it is not suggested that defendant was prevented from introducing any evidence in support of the charge under the original answer which he could have introduced under the amendment, we do not think he had any cause to complain, or that defendant had any right to file an amendment to reiterate defenses made in his original answer.

Relative to the allegation in the amended answer that it was intended that the note should be made payable to the Citizens’ Bank, we presume it will be conceded that whatever may have been the intention if defendant did indorse the note made payable to plaintiff, the defense that the note was altered would fall, and as evidence was offered pro and con' relative to the charge that the note was altered, we do not think defendant was prejudiced by the refusal to allow the amended answer to be filed, and the same is true as to the allegation that defendant would not have indorsed the note had he known it was payable to an individual, as defendant was permitted to state why he would not have indorsed a note payable to an individual.

The testimony of the parties relative to the charge that the note had been altered was directly conflicting, plaintiff testifying that the name of the Citizens’ Bank had been stricken out and his name written as payee when the form was given to Mrs. Adcock at Haynesville, while defendant stated that the Citizens’ Bank was the payee when he indorsed the instrument, and Mrs. Adcock stated that the Citizens’ Bank was named as the payee when she delivered the note to plaintiff after returning with it from Gibsland, and Mr. Cleveland also said he had read the note on the return trip from Gibsland to Haynesville and that the Citizens’ Bank was named as the payee.

There is not any motive suggested that could have induced plaintiff to alter the note, and even if plaintiff had found himself in the dilemma of having advanced his funds on a note payable to the bank, there is not any reason suggested why he should have taken the course of altering the note to extricate himself rather than to have had the bank transfer the note to him; but if plaintiff did alter the note, it is not probable that he, a banker and familiar with commercial law, could have forgotten such an incident; and while the witnesses for defendant are positive, the record indicates they may have been merely in error.

Mrs. Adcock was in need of funds, and she made a very hurried trip to Gibsland to procure defendant’s indorsement, and the evidence indicates that defendant was given very little time for reflection after the instrument was presented to him for indorsement, and his answer (in which the charge that the note had been altered was made on information alleged to have been communicated to him by Mrs. Adcock) indicates that he had not paid especial attention to who was named as the payee of the note. Mrs. Adcock and defendant appear to have been under the impression that the funds obtained by Mrs. Adcock were advanced by the bank, although the evidence conclusively shows they were advanced by plaintiff, and the note was not listed among the assets of the bank. It is not improbable that the statement that the bank was named as payee arose from the erroneous impression that the bank had furnished the funds.

Be that as it may, however, from our review of the record we do not find a single circumstance which tends to support the defense that the note was altered by plaintiff, and although the majority of the witnesses stated that it had been altered, our impression is that the judgment is correct, and it is affirmed.


author: ODOM, J.

text:
    No. 2824
    Second Circuit
    DIXON ET AL. v. THE COMMERCIAL NATIONAL BANK
    (April 10, 1930. Opinion and Decree.)
    Herndon & Herndon, of Shreveport, attorneys for plaintiffs, appellants.
    Barksdale, Bullock, Warren, Clark & Van Hook, of Shreveport, attorneys for defendant, appellee.
   ODOM, J.

Plaintiffs are the sole heirs of Henry Dixon, deceased, and prosecute the present suit against the Commercial National Bank of Shreveport to recover the sum of $1,876.16, which the said Henry Dixon had on deposit to his credit in the bank when he died in December, 1917. Their demands were rejected by the district court, and they appealed.

When Henry Dixon died in December, 1917, he had on deposit to his credit in the defendant bank the above-stated sum. In the early part of 1918, one Maria Dixon Mayfield made application to the district court of Bossier parish, asking that she be recognized as the sole heir of deceased and to be placed in possession of his estate. On March 1, 1918, the court rendered judgment ex parte ordering that “Maria Dixon Mayfield be and she is hereby put into the actual, immediate and absolute possession and control of any and áll of the property, rights and credits of Henry Dixon, deceased, and especially (describing certain real estate), also any and all moneys deposited in the. Commercial National Bank of Shreveport, Louisiana.”

Three days later,- on March 4th, said Mayfield presented to the bank a certified copy of this judgment and asked that the funds on deposit to the credit of the deceased be transferred to her account, which was done forthwith. These plaintiffs were not parties to the proceeding in which Mayfield was recognized as sole heir of the deceased and ordered placed in possession of his estate and knew nothing of it until some time later. When apprised of the proceeding, they appealed devolutively from the judgment, and on January 31, 1921, the judgment was annulled by the Supreme Court (see Succession of Dickson, 148 La. 501, 87 So. 251).

Some time later, after this judgment became final, the exact date not being shown by the record in the present suit, these plaintiffs filed suit alleging that they were the sole heirs of Henry Dixon, deceased, and entitled to his estate, and alleging that, notwithstanding they were the sole heirs of the deceased, one Maria Dixon Mayfield had illegally caused herself to be sent into possession of his estate. They asked that they be allowed to recover the estate, and that the said Mayfield be enjoined from disposing of it pending the litigation. The injunction issued, but the defendant bank was not made a party. Plaintiffs’ demands were rejected by the district court, and on appeal, the judgment was reversed, the plaintiffs recognized as heirs of the deceased, and the injunction was perpetuated. See Van Dickson et als. vs. Mayfield, 158 La. 529, 104 So. 315.

It being finally settled that plaintiffs, and not Maria Dixon Mayfield, were entitled to the estate of Henry Dixon, deceased, they now seek to recover of the defendant bank the amount which deceased had on deposit to his credit at the time of his death.

As already stated, the amount in the defendant bank to the credit of deceased was transferred by the bank to the credit of Mayfield on March 4, 1918. That was done prior to the date on which plaintiffs appealed devolutively from the said ex parte judgment sending Mayfield into possession. The transfer of the funds was made by the bank upon the faith and authority of the judgment of the district court recognizing her as heir and sending her into possession, a certified copy of which judgment being presented to the bank by May-field prior to the transfer.

The present suit seems to be predicated upon the theory that the transfer of the funds to Mayfield’s account was illegal, null, and void, although there is no allegation in plaintiffs’ petition to that effect. At any rate, plaintiffs proceed against defendant as though the funds were still in the bank to the credit of deceased, which is not true. The amount was transferred from deceased’s to Mayfield’s account— nearly eight years before this suit was filed —and there has never been any proceeding against the bank to set the transfer aside. Plaintiffs have apparently ignored the transfer altogether, and there seems to be no objection to this proceeding on the part of the defendant.

As. the case is presented here, the only question for our consideration is whether the transfer of the funds to Mayfield’s account by the bank, under the circumstances, was legal, and whether the bank is protected by the ex parte order of the district court recognizing Mayfield as heir and sending her into possession. Act No. 112 of 1894 is an act “Relative to the transfer by national banks, State banks or banking associations, of any balance of deposit account of any deceased person to the heirs, executor or administrator of the same.” Section 1 of that Act reads as follows:

“That it shall be lawful for any national bank, State bank, or banking association, to transfer any balance of deposit on account of any deceased person, to the heirs, executor or administrator of the said deceased person; and the judgment of any court of competent jurisdiction, recognizing and putting the said heirs in possession, or the letters of such executor or administrator, issued by any court of competent jurisdiction, of this State, or of any other State, of the United States, shall be full and sufficient authority for the making of the said transfer which, when so made, shall be a full protection, to any such national bank, State bank, or banking association making the same; and a copy of such judgment recognizing and putting said heirs in possession, or of the said letters of executorship or administration, rendered or issued by any court of this State, duly certified, or any other State of the United States, certified according to the existing acts of Congress, shall be full and conclusive proof of the jurisdiction of the court rendering or issuing the same.”

(This act was amended by Act No. 140 of 1918, p. 239, and again by Act No. 64 of the Extra Session of 1921, p. 90. The amending acts retain the substance, but enlarge the scope, of the original act which was in force at the time this transfer was made.)

The language of this act is plain and unambiguous, and provides that a judgment of any court of competent jurisdiction recognizing and putting heirs in possession “shall be full and sufficient authority for the making of the said transfer which, when so made, shall be a full protection to any such national bank, State bank, or banking association making the same.”

It is not denied, but conceded, that a court of competent jurisdiction did send Mayfield into possession of all the estate of deceased, and especially of this deposit, and that the bank, before making the transfer, had presented to it a certified copy of said judgment. The bank therefore, under the plain letter of the law, had “full and sufficient authority for making said transfer,” which transfer, having been made, that is, upon the faith and authority of the judgment, is “full .protection” to the bank. It is therefore manifest that the transfer of these funds from the account of deceased to that of Mayfield was legal, and, even though it be true that plaintiffs, and not Mayfield, are the legal heirs of deceased, the bank is fully protected.

Counsel for appellant cite a long list of decisions holding, in substance, that an ex parte order of court, recognizing and putting heirs in possession of the estate of deceased persons, lacks the elements and essentials of the thing adjudged, and cannot be pleaded as res adjudicata. But those cases have no application here. The question here involved is not whether Mayfield owned the funds in the bank, but whether she was given the right to take possession of them under the order of court. Most assuredly, that ex parte order of court was not binding upon these plaintiffs in so far as their rights of ownership by inheritance were concerned. The judgment did not pretend to recognize Mayfield as the owner of the property of deceased as against those who might later appear and establish their rights of inheritance. The only-effect of the judgment was to place May-field in possession of the estate. The judgment sent her into possession of certain real estate which belonged to deceased. Under the judgment, she had a right to take immediate possession of the realty; but possession is one thing and ownership is quite another.

It is settled jurisprudence that an ex parte judgment recognizing one as heir of a deceased person and sending him into possession of the estate is prima facie evidence of ownership which entitles the party so recognized to full and exclusive possession until such .time as others may appear and assert and prove ownership in themselves. In the case at bar, the ex parte judgment was prima facie evidence of Mayfield’s ownership of the funds in the bank and gave her the right to take and hold possession of them as against these plaintiffs until such time as their rights of inheritance had been recognized by a court of competent jurisdiction. Plaintiffs in a later proceeding, contradictorily with Mayfield, were finally decreed to be the legal heirs of deceased and entitled to all his property. The effect of that decree was to oust Mayfield of her possession, but, up to the date of the decree, Mayfield was lawfully in possession.

In the case of Glover et als. vs. Doty, 1 Rob. 130, plaintiffs, who had been recognized as heirs of Ruth Roble, sued defendant to collect a promissory note due deceased. Defendants set up as a defense that plaintiffs were not the heirs and legal representatives of the deceased, but the court said:

“We are of opinion that the recognition of the plaintiffs as heirs, by the court of probates, furnishes at least prima facie evidence of their being so, and would have justified a payment made to them by the defendant. It is to that court that absent heirs, to whom estates have fallen in this state, which have been administered by curators, are to address themselves in order to call such curators to an account; and although such recognition would not preclude other heirs who should after-wards appear, nor even a debtor of the estate from showing that other persons are in fact heirs, yet, until such other person is named, and evidence offered to show his heirship in preference to those who may have been admitted by the court of probates, which has not been done in this case, such evidence of heirship must be held sufficient.”

The above from the Doty case was quoted by the court in the late case of Taylor vs. Williams et al., 162 La. 92, 110 So. 100, 101, and many other cases of similar import were cited. In the Taylor-Williams case, the court said:

“Although an ex parte judgment sending an heir into possession of an estate, rendered by a court of competent jurisdiction, of course, is not a basis for a plea of res judicata, or conclusive against any, one having an adverse interest in or claim against the estate, such a judgment is prima facie evidence of the right of the heir in whose favor it was rendered to take possession of the estate.”

It is therefore clear that, if Act No. 112 of 1894 had never been enacted, Mayfield could have compelled the bank to transfer the deposit to .her account and certainly such transfer would have protected it. By enacting this statute above referred to, the Legislative recognized a rule which had always existed.

The bank delivered the amount on deposit into the possession of Mayfield upon the faith and authority of the judgment recognizing her as the heir of deceased and sending her into possession. That was done before plaintiffs asserted their claims to the estate. They later appealed devolutively from that judgment, which was annulled by the Supreme Court. But that decree did not undo that which had already been done. The deposit passed out of the hands of the bank almost three years before the judgment was annulled.

After the above-mentioned judgment was annulled, plaintiffs brought suit to have themselves decreed the heirs of deceased and entitled to the possession of his estate, and coupled with their demands a prayer for injunction prohibiting Mayfield from disposing of any part of it. At the time these proceedings were served, Mayfield had on deposit in the defendant bank a portion of the funds which had been previously transferred to her account by the bank. It seems that some one connected with the bank had in some way received notice of these proceedings, and it is contended by counsel for appellant that the bank should not have permitted Mayfield to withdraw the funds to her credit. We think there is no merit in this contention. The bank was not made a party to the proceedings and had no official notice thereof. The funds in the bank were in the possession of Mayfield. The bank is not responsible for her conduct in disposing of the property after the injunction was served upon her.

The judgment appealed from is correct, and is accordingly affirmed, with all costs.


text:
    No. 3606
    Second Circuit
    PRUETT v. BRANTLEY
    (March 24, 1930. Opinion and Decree.)
    (April 10, 1930. Rehearing Refused.)

      Goff & Barnette, of Arcadia, attorneys for plaintiff, appellant.
    J. Rush Wimberly, of Arcadia, and George Wallace, of Winnfield, attorneys for defendant, appellee.
   ODOM, J.

This is a damage suit growing out of an automobile collision. Lem Hays was driving his Ford roadster south along a graveled highway, with plaintiff on the seat with him. He met defendant, who was driving a Ford touring car, going north, about three miles south of Arcadia. The two cars collided and plaintiff was injured by having his leg broken just below the thigh. Plaintiff alleged that the collision was due to defendant’s negligence in driving on the wrong side of the road. Defendant, in bar, pleaded negligence on the part of both Hays, the driver of the car in which plaintiff was riding, and on the part of plaintiff also. Defendant alleged that he was driving on his right-hand side of the road and that just before the cars met, the Hays car suddenly turned to its left across the road in front of him. Plaintiff’s demands were rejected and he appealed.

There is no dispute between the parties on one point, and that is that the Hays car, in which plaintiff was riding, did turn to its left across the road in front of defendant’s car, and that the front end of defendant’s 6ar struck the right side of the Hays car; nor is it disputed that the Hays car was on its right-hand side of the road just before the collision. Hays and Pruett both assert that it was, and Mr. McKethan, an occupant of defendant’s car, says it was, and no one denies it. But the other material points are seriously contested.

Plaintiff had only two witnesses to the collision. Hays, the driver, and Pruett, the plaintiff, who was in the Hays car. Hays testified, and his testimony is corroborated by that of Pruett, that when he saw defendant’s car approaching, it was on its wrong side of the road, or on plaintiff’s side; that he assumed that the driver of the approaching car would get over on his side, but that no move was made.to do so, and that when he saw that the approaching car would not get out of his pathway, he applied his brakes in an attempt to stop, and that when he did so, his car skidded to the left, angling across the road, which threw the right-hand side of his car in the path of the other one. He says he did not apply the brakes sooner because he thought the other car would yield his right to that side, and that he did not check his speed for the same reason.

Defendant says, and his testimony is corroborated, that Pruett stated after the collision that he “grabbed’’ the wheel and turned the car to the left. Pruett says he did nothing of the kind and denies that he ever said so.

In defendant’s car, there were three who testified, defendant, Mr. McKethan, who was on' the seat with him, and defendant’s daughter, Mrs. Hiser, who was on the back seat. Defendant says he was driving “near the center of the road,” or a little east of the center, towards his side. Mr. McKethan says that both ears were on their proper sides, but “about the center when they actually collided.” Mrs. Hiser testified that defendant’s car was running in the center of the road and refused to say whether nearer one side or the other. She said she didn’t know. Referring again to Mr. Mc-Kethan’s testimony, we note that he said that each car was on its side of the road, but he also said that they were in the center of the i;oad when they collided.

If defendant was driving on his right-hand side, the question naturally arises, why was It in the center of the road when the collision took place? Neither the driver nor any one else explains that. Considering the testimony of these three witnesses, it is clear that defendant was not over on his side of the road.

Now, plaintiff and Hays both say that defendant’s car was not in the center, but entirely over on its left-hand side or on plaintiff’s side. That, we hold, is true. In addition to . other testimony, the physical facts show it. The cars .moved but slightly, if at all, after the collision, and when they came to rest, they were both over on the west or plaintiff’s side of the road. Pruett and Hays both said so; but, if they had been the only ones, there might be room for doubt as they are both interested. But three colored men, Lewis Underwood, Will Kobb, and Claude Underwood, disinterested witnesses,. appeared upon the scene a few moments after the accident, before the cars had been appreciably moved. Each said both cars were over on that side, not over three feet from the edge of the road. They were in a car going north, to Arcadia, and drove by the injured cars on their right-hand side. One other car, possibly two, passed going north and went around on that side, and one going south did the same. This is admitted by defendant’s witnesses. It is suggested, but not proved, that these passing cars went outside of the road.

Defendant and his witnesses admit that the cars were over on the west or plaintiff’s side of the road when these other cars passed, but they say that they pulled the cars apart and in doing so rolled defendant’s car back angling southwest across the road. But the testimony shows that neither was materially moved until after the colored men got there and after the other cars had passed. In addition to this, the defendant made some very damaging admissions after the accident as to the cause of the collision. He told Hays, so Hays says, that he would pay the damage to his car — that he was at fault. Defendant told Mr. Perret and Mr. Cathey that he was at fault in that he was driving on the wrong side of the road. He told Mr. McGuire he “guessed’’ he was at fault. He told Mr. Taylor Bittle that plaintiff was not at fault. These last four witnesses are disinterested and some of them, at least, neighbors, and all of them apparently friendly to defendant.

Taking all the testimony together, the conclusion that defendant was driving on the wrong side of the road, and that his negligence in so doing was the sole cause of the collision, is inescapable.

In their pleadings, each party charges the other with negligence in exceeding the speed limit of 25 miles an hour. There is no proof of that. Hays says he was driving about 25 miles an hour and defendant and his witnesses say that defendant was going 18 or 20 miles. Mr. McKethan was asked if Hays was driving fast or slow and he said: “I would say a moderate rate of speed.’’

Defendant says the lights from the Hays car blinded him. But it is evident that the bright lights did not cause him to get on the wrong side of the road. Defendant was rounding a left-hand curve in the road while plaintiff was on a short stretch of straight road approaching the curve. Plaintiff’s lights could not have blinded defendant for more than a moment or two. In fact, defendant said on cross-examination that “lights blinded me when they turned across the road and when they were out of my face 1 was right against it.” Defendant, as stated, was going north around a curve to the left. Instead of remaining on his right-hand side of the road on the outside of the curve, he swerved to the left or inside of it, and when he got to the point where the road straightened, he met plaintiff’s car.

It is the law of the road in the United States and the well-settled jurisprudence in this state that one driving on a highway must turn to the right on meeting another vehicle coming from the opposite direction, and that his failure to do so constitutes negligence, unless, under the conditions, such move would be dangerous to himself or other inhabitants of the road. Potter vs. Glassell, 146 La. 687, 83 So. 898; Schick vs. Jenevein, 145 La. 333, 82 So. 360; Goodson vs. Schuster’s Wholesale Produce Company, Inc., 10 La. App. 486, 120 So. 689; 13 R. C. L. 286-288; Bragdon vs. Kellogg, 118 Me. 42, 105 A. 433, 6 A. L. R. 669.

The testimony shows that the graveled portion of the public road where the collision took place is 24 feet wide, and that the shoulder from the gravel to the edge is about one and one-half feet on each side, and further, that there is no deep ditch on the right-hand side going north. There were no other cars there at the time, no obstructions on defendant’s side. There was, therefore, no reason why defendant should not have turned to the right.

Defendant contends that the prime cause of the collision was the turning of plaintiff’s car to the left angling across the road. Hays, the driver of the car in which plaintiff was riding, was driving as close to the right-hand side of the road as he could with safety. He saw defendant’s car approaching from the opposite direction on the wrong side. He first assumed, as he had a right to do, that defendant would turn to his. own side. When it became evident that he would not do so, he says he applied his brakes, which caused his car to skid to the left. There was no negligence in that. Plaintiff was not driving at a reckless rate of speed, but was reasonably careful. He was on his side of the roaa and assumed that defendant would obey the law of the road and move to his own side. Having his car under reasonable control, it was not plaintiff’s duty to apply the brakes sooner than he did.

But counsel contend that plaintiff, who was by the driver’s side, interfered — took the wheel and swerved the car to the left. Plaintiff denies that he interfered. But, assuming that he did what defendant says he did, he was guilty of no negligence. Plaintiff’s being on the wrong side of the road created an emergency. If the Hays car had gone straight ahead, there would have been a head-on collision; if it had been, turned to the right, it would have gone off the road, with probable danger.

“One compelled to turn to the left and wrong side of a road to avoid a collision, because of another person’s violation of the law of the road, is not negligent.” Potter vs. Glassell, Goodson vs. Schuster’s Wholesale Produce Co., supra; Hammer vs. Connecticut Company, 94 Conn. 127, 108 A. 534; Saylor vs. Taylor, 42 Cal. App. 474, 183 P. 843; McFern vs. Gardner, 121 Mo. App. 1, 97 S. W. 972; Columbia Taxicab Co. vs. Roemmich (Mo. App.) 208 S. W. 859; Cyclopedia of Automobile Law (1927), Blashfield, Vol. 1, pages 415-16.

Defendant is clearly liable under the law and the evidence.

ON THE QUANTUM OP DAMAGE

Plaintiff’s leg was broken just below the hip. He was in a sanitarium for three weeks and the leg was in a plaster cast for eight weeks. After the plaster was removed, he went on crutches for several months, during which time he could no no work. He is a farmer, but had been working at odd times in a store, and during the school term drove a school truck. He resumed his work as truck driver, but suffers some inconvenience in performing farm liabor. His medical and hosiptal fees amounted to $327. Por his injuries and loss of time, we think an award of $2,250 will do substantial justice between the parties.

It is therefore ordered that the judgment appealed from be reversed; 'and it is now ordered, adjudged and decreed that plaintiff, Herschel W. Pruett, do have judgment against defendant, Joseph B. Brantley, for, and recover from him, the sum of $2,577, with interest from judicial demand until paid, and all costs in both courts.