text:
    No. 4213
    Second Circuit (Second Division)
    PERRYMAN v. BOISSEAU ET AL.
    (December 9, 1931. Opinion and Decree.)
    (February 6, 1932. Rehearing Refused.)
    Irion & Switzer, J. O. Modisette, Charles B. Emery, and Thomas M. Comegys, Jr., of Shreveport, attorneys for plaintiff, appellant.
    W. B. Mossey, of Shreveport, attorney for defendants, appellees.
   CULPEPPER, J.

This is a suit to enforce the penalties under Act No. 150 of 1920, wherein it is made the duty of every person, individual, firm, or corporation to pay employees their wages, in event of discharge, within twenty-four hours thereafter, upon demand made for payment; and, upon the failure to make payment, such employer shall be liable to the discharged employee for the latter’s full wages from the time of demand until payment is made or tendered.

Plaintiff alleges he was. employed by the defendant R. C. Boisseau, who was acting for himself and for Falcon Drilling Company, Inc., the other defendant; the nature of the employment being that of a laborer in the drilling of an oil and gas well being drilled by defendants in Caddo parish, the well being known as “Oden No. 1.” Plaintiff alleges bis agreed wage was $4.50 per day and working seven days a week; that he worked from July 27th to August 4th, inclusive, on which last-named day he was discharged by said Boisseau; that he made immediate demand on that day and the next day for his pay, without avail. He sues both defendants for his accrued wages up to date of discharge, aggregating $40.50, also for the further sum of $4.50 for each day thereafter beginning August 5, 1930, until he is paid the full amount due him.. Plaintiff also sequestered the oil well rig and paraphernalia being used in the drilling operations to secure his alleged laborer’s lien and privilege upon same.

Both defendants joined in the same answer and made, general denial, and set up no special defenses. There was judgment for $40.50 in favor of plaintiff against both defendants in solido, and maintaining the sequestration sued out. Prom this judgment plaintiff alone appealed devolutively. Defendants have answered the appeal, praying that the judgment be set aside and plaintiff’s demands rejected.

Since the judgment is for the amount of the wages earned to the date of plaintiff’s discharge, it is evident that the court rejected the statutory penalties, as a whole, although the judgment does not so state.

The testimony fully establishes that plaintiff was employed by R. C. Boisseau at $4.50 per day; that plaintiff worked for a period of nine days, from July 27 to August 4, 1930, inclusive; that he was discharged at the close of the last-named day; that he made demand on Mr. Boisseau at the time of discharge for his pay; that he inade demand on the following day at Boisseau’s office, and on several occasions thereafter, all without avail. These facts were proved by the testimony of plaintiff himself and his brother, Cecil Perryman, and not denied by Boisseau. This defendant’s testimony consists of but a few statements, covering less than two pages of the transcript of testimony, excepting a few questions asked him by plaintiff’s, counsel on cross-examination. He merely states that the Pharis Drilling Company started the drilling of the Oden No. 1 well, drilled to a depth of 2,409, then the North Louisiana Oil & Gas Company, of which he was a stockholder, took' it over for completion; .that he had charge of the operations; that he did not employ plaintiff to work for him individually on the well; that he individually does not owe plaintiff anything; and that (quoting) “the company owes him (plaintiff) a small amount for the days, he worked.” This defendant makes no effort to explain or to inform the court of the circumstances of plaintiff’s employment, the wages to be paid, the number of days he worked, whether plaintiff was or was not discharged, and whether plaintiff did or did not make demand for his pay. On cross-examination he denied .that the defendant Falcon Drilling Co., Inc., had anything to do with the drilling of the well, or was a party to the drilling contract. He says that it did not own any of the tools and equipment.

Judge S. C. Fullilove, president of the Falcon Drilling Company, Inc., testifying for his. company, said that he did not employ plaintiff; that his "company was not engaged in the drilling of the Oden No. 1 well, nor was it engaged in the enterprise. He testified that defendant Boisseau, at first, presented the drilling contract to him and asked him to sign it and he refused, and that Boisseau had no authority to sign it for him, as Boisseau was not a member of the Falcon Drilling Company. Judge Fullilove testifies, however, that Boisseau later called on him and wanted the company to loan him casing to set in the well, and that he (Fullilove) bought the casing and delivered it to the North Louisiana Oil & Gas Company with the understanding with Boisseau, who owned the company and had charge of the drilling operations, that, if he brought in a well, he (Fullilove) was to have an interest in it. Judge Fullilove was then asked:

“Q. Your interest or the Falcon Drilling Company’s interest was contingent upon the success of the well?
“A. Yes, sir, we were to get an interest in the completed well if he got a well and he was to pay then for the casing and I would get an interest in addition to that and that is why I let him have the casing; that is my casing yet.”

From this, testimony, it is clear, we think, that the drilling of the well in question was a partnership or joint enterprise, and both parties are bound accordingly, particularly as to third persons. Graham Paper Co. v. Lewis, 1 La. App. 317; Id., 159 La. 151, 105 So. 258; 33 C. J. 841-842; Lagan v. Cragin, 27 La. Ann. 352; La. Digest “Partnership,” sec. 21.

The lower court evidently took this view of the ease due to the fact that the court held both defendants liable. We think the court was correct in so holding.

Plaintiff contends that the case comes within the provisions of the Act No. 150 of 1920, and that he should recover the penalties as therein provided.

It is contended by the defendant Falcon Drilling Co., Inc., that the testimony shows that the defendant Boisseau was not its agent and did not hire nor discharge plaintiff or otherwise deal with him; therefore it cannot be held liable for the wages covering the days plaintiff actually worked nor for the penalties, attached, if any. It is true that this defendant did not have charge of the work and did not personally hire plaintiff nor discharge him. It merely contributed the casing as a part of the material necessary in the work. No demand was made upon it for payment of the wages due. It maintained no pay office for this particular operation, nor had plaintiff looked to it for his wages. Judge Fullilove, president of .this defendant company, apparently knew nothing of the trouble plaintiff was having in trying to obtain payment. So far as. the evidence shows, the matter was never called to his attention. From his testimony it appears that he firmly believed that no obligation rested upon his company to pay or see to it that plaintiff was paid, but that Boisseau himself was the one to pay all of the expenses incidental to the work, including the wages of the plaintiff. In this, his petition is correct in so far as his being primarily liable, because Boisseau, under the agreement, was to bear all of these expenses. While under the above-cited decisions plaintiff, a third party, was not bound by any agreement as between the defendants, nevertheless plaintiff, we think, under the circumstances, should have made a demand upon the Falcon Drilling Company before he would be in position to demand more than the wages then due. He did not do this. Therefore he is not entitled to recover penalties under the statute, from this defendant.

The statute must be strictly construed as to the right to recover penalties, against which equitable defenses may be interposed. Deardorf v. Hunter, 160 La. 213, 106 So. 831; Whitehead v. Deas Co., Inc., 9 La. App. 47, 118 So. 856; Neeley v. Magnolia Gas Co., 15 La. App. 224, 131 So. 589.

As to the defendant Boisseau, we find no defense of an equitable character. This defendant employed plaintiff, discharged him, and failed and refused to pay him. Demand for payment was made upon Boisseau immediately following the discharge, and on the following day at his office, also on several subsequent occasions. On the day of the discharge, this defendant promised to pay plaintiff the next day at a certain place designated by the defendant. Plaintiff appeared at the place at the time and place designated, waited all day, and, defendant failing to appear, plaintiff sent his brother with written order to defendant’s office, and defendant again failed to pay, but promised to pay later. He was called upon later for pay, and finally refused to make payment at all. We fail to see what more could have been expected of plaintiff in making demands upon defendant.

This defendant now contends that he personally does not owe the wages claimed by plaintiff, that the work was being done by the North Louisiana Oil & Gas_ Company, and that the company owes plaintiff the wages, but, that he (Boisseau) owes him nothing. Judge Fullilove testified that the North Louisiana Oil & Gas Company was owned by Boisseau. This was not disputed by Boisseau, who was on the witness stand after Fullilove had testified and had an opportunity to deny same if it had been untrue. Counsel for this defendant contends in his brief that the work being done under Boisseau’s supervision was closed down, and the finishing of the well was taken over by “other people”; that “when work of this nature is finished, or abandoned and all the men employed upon it released for that reason, it is not a discharge within the meaning of the statute — and for that reason the plaintiff was not really discharged.” There is no evidence to show that the North Louisiana Gas & Oil Company closed down operations and the finishing of the well taken over by some one else. On the contrary, Mr. Boisseau himself testified that the well was first started by the Pharis Oil & Gas Company, which drilled to a depth of 2,409 feet; then the North Louisiana Gas & Oil Company took it over for completion. He nowhere states that this latter company closed down operations. Even if it did, which is not shown, it would not relieve Boisseau’s responsibility to pay the wages of the laborers who were discharged on August 4th. Plaintiff testified he was discharged on that date. He states that Mr. Boisseau told him “to quit work.” Asked why Mr. Boisseau told him to qiuit, plaintiff said, “They got a new crew.” Asked again how come him to quit, and he answered:

“Because of the reason that the whole bunch was laid off and he hired new men to complete the well.
“Q. Who hired the men?
“A. Mr. Boisseau was all I know. He had new men to complete the well, carrying on the drilling to completion — he got another man by the name of Neilley.”

Mr. Boisseau made no denial whatever of this testimony. Under all the facts and circumstances as disclosed by the testimony, plaintiff, we think, was discharged, and that the case as to this defendant, Boisseau, comes squarely within the statute, and precludes any equitable defense. He is therefore subject to the penalties prescribed therein. Plaintiff knew no one but Boisseau in his contract of employment; was paid by him for his prior wages; was discharged by him; and was at first promised pay for the wages due at time of discharge by him and later refused. Defendant did not tell plaintiff to look to any one else for pay; disclosed no relationship of agency, if any existed, between himself and any other person or corporation. Plaintiff, we think, had a right to assume Boisseau was his. employer, and in fact was his employer according to the view of the lower court, and in that we think the court was correct.

For the foregoing reasons, the judgment of the lower court is affirmed in so far as granting judgment against both defendants for $40.50 with interest, and rejecting the demands for the statutory penalties as against the defendant Falcon Drilling Company, Inc. Otherwise it is reversed. It is now decreed that plaintiff have and recover of the defendant B. C. Boisseau the additional sum of $4.50 per day as penalties, for seven days a week, from the 5th day of August, 1930, until said. defendant shall pay or tender payment to the plaintiff the sum of $40.50, the amount of wages earned and due at date of discharge, and legal interest thereon from judicial demand; also like interest on the amount of the penalties accrued and ito accrue from their respective dates of accrual until paid.

It is further ordered that the costs of the lower court be paid by defendants and costs of appeal by the defendant B. C. Boisseau.


source: Caselaw Access Project

author: ELLIOTT, J.

license: Public Domain

text:
    No. 892
    First Circuit
    TATE v. GUILLAUMIN
    (February 8, 1932. Opinion and Decree.)
    J. Hugo Dore, of Ville Platte, attorney for plaintiff, appellant.
    L. Austin Fontenot, of Opelousas, attorney for defendant, appellee.
   ELLIOTT, J.

Euzebe Tate claims of Odin Guillaumin $230 as damages on account of injury to mules belonging to. him which were shot and badly wounded, but not killed. He alleges that Odin Guillaumin shot them, causing him damages to the extent stated.

Guillaumin, defendant, denies shooting the mules and sets u© a claim in reconvention based on a different matter. The lower court confined its action in the case to. plaintiff’s demand on account of the alleged shooting of the mules and rejected same, taking no notice of defendant’s demand in reconvention. Defendant has not appealed nor answered the appeal. His demand in reconvention can not therefore be considered.

The evidence in support of plaintiff’s demand against the defendant is all circumstantial. There was no eyewitness to the shooting. Some facts and circumstances, developed on the trial, tend to indicate that defendant likely did it; but there are other facts and circumstances which tend to indicate otherwise. The plaintiff turned his mules out at night, and the evidence shows that they sought his neighbor’s fields and, in their effort to feed on the grass and weeds inside the fields near the fences, would reach their heads and necks over the wire and, pushing with their weight against the fence, would break the fence post, which of course injured the fence. Plaintiff had been notified of what his mules were doing and was requested to have it stopped. He should have done so, but neglected the matter.

In this instance there is circumstantial evidence which tends to indicate that another neighbor, instead of defendant, may have shot the mules.

The evidence does not establish with sufficient certainty that the shooting was done by the defendant.

Plaintiff’s demand was properly rejected.

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


author: LeBLANC, J.

text:
    No. 894
    First Circuit
    G. J. DEVILLE LBR. CO., INC. v. JAUBERT
    (February 8, 1932. Opinion and Decree.)

      Guillory & Guillory, of Ville Platte, attorneys for plaintiff, appellant.
    J. H. Dore, of Ville Platte, attorney for defendant, appellee.
   LeBLANC, J.

Plaintiff instituted this suit against the defendant for a balance due on an open account for material sold to and used by the latter in the construction of his residence on a lot of ground in the town of Eunice, parish of St. Landry. More than sixty days after the date of delivery of the last material sold, plaintiff had, on advice of its attorney, caused an affidavit and itemized account to be recorded in the mortgage records of St. Landry parish in order to preserve the lien which the law accords to the furnisher of building supplies and materials. Judgment is accordingly prayed for in the sum of $1,473, the balance claimed to be due, with 5 per cent interest and for recognition of the lien and privilege on the defendant’s property.

Defendant does not dispute the account nor the balance claimed, his defense being that among other material plaintiff sold him was a filler that was to be used in covering the joints or seams between the slabs of sheet-rock which he was using as a ceiling on the inside of his house, and that this filler turned out to be defective and was not at all what it had been represented to him as being. He alleges in his answer that not long after the job had been completed and the filler had dried, it crumbled into dust leaving unsightly cracks and crevices in the walls and ceiling of his home, causing him damages to the extent of $614.50 which he will have to pay because of the necessary repairs that have to be made. This amount, together with further damages in the sum of $600 caused by the illegal recording of a lien against his property and also damages to his good name, credit and business reputation to the extent of $10,000 because of the malicious circulation of false and slanderous statements to other of his creditors by the manager of the plaintiff corporation, he asks for in a reconventional demand which he presents with his answer.

The lower court rendered judgment in favor of the (plaintiff for the full amount claimed, with legal interest from judicial demand, dismissed the reconventional demand, ordered the lien to be cancelled and cast defendant with the costs of the main demand and the plaintiff with the costs incidental to the cancellation of the lien.

The record discloses that on a separate trial of a rule for the cancellation of the lien, defendant had already deposited in escrow in the Opelousas-St. Landry Bank & Trust Company an amount sufficient to offset the claim, and the court had in turn ordered the bank to deposit that amount in the registry of the court to stand in lieu of the lien and ordered that the latter be cancelled. The plaintiff has taken an appeal from that part of the final judgment ordering the cancellation of the lien and their counsel are now pressing us to pass upon its validity. We note, moreover, a statement in counsel’s brief to the effect that they have collected their judgment from the amount deposited in the registry of the court which stood in place of the lien on the property, so, it strikes us, as it seemed to have also impressed counsel, that any discussion as to the validity of the lien would be purely academic. It is a moot question as far as this record shows and requires no adjudication from this court in the present controversy. The only possible complaint we believe plaintiff could urge against the judgment now, is that part which condemns them to pay the costs incidental to the cancellation of the lien, but it seems to us that the amount thus involved is so small that the question which it presents might properly be disposed of under the maxim de minimis non curat lex.

Defendant appealed devolutively from that part of the judgment which condemned him to pay the balance claimed by plaintiff and which dismissed his reconventional demand.

In their brief, his counsel make reference only to the claim in reconvention for the expenses he will be put to by reason of the repairs which have become necessary, and which are estimated at $614.50. We understand that all other claims in reconvention have been abandoned. The issue, as we see it, then resolves itself into one of avoidance of a sale on the ground of redhibition and a claim for reimbursement of expenses occasioned thereby, under articles 2520 et seq. of the Revised Civil Code.

It appears from the testimony that after the defendant had decided to use sheet-rock as a ceiling in his new house, he next became interested in what sort of finish could be best used tq close the seams between the boards or slabs and cover them in such way that they would not be left visible.

It appears that there are two kinds of filler used on a job of this sort, one which is used alone and another which is covered with a tape of some kind. From the difference in price between the two it is apparent that a better job will result from the use of the filler with the tape. This is further borne out by the testimony of the several carpenters who testified for the defendant. Not only that, the latter himself took the trouble of wiring the United States Gypsum Company, at Chicago, large dealers in sheet-rock and who sold the very filler he used, to get their opinion as to which would make the better finish, and their reply could leave no doubt in his mind that he would obtain better results by using the tape. Two of the carpenters who worked for defendant on this very job of filling joints in the sheet-rock testify that they told him of the fear they had of it not holding up without using the tape. Another carpenter, whom the defendant had to make an estimate of what it would cost to repair the damage to the joints, submits his written report in which he attributes the crumbling of the filler to the failure to have used the tape. Surely there is sufficient evidence in the record on which to rest a conclusion that this defendant had all the opportunity he could desire to satisfy himself as to the quality of the filler he bought and whether it would serve his purpose as well as anything else. Indeed, it would seem that after the investigation he made himself and all the information he received, that he was better posted about it than was the manager of the plaintiff company who sold it to him. But even then, we do not find him making any complaint about the filler, but answering repeated demands made on him for payment by asking for more time in which to pay. Some of these requests for delay came at a considerably long time after he claims the cracks began to appear in the joints in his walls.

In the case of Great Eastern Oil & Refining Co. v. Bullock, 151 La. 209, 91 So. 680, we find two principles of law laid down in actions of this kind, which we think are controlling here. The first is that where the purchaser has the means of finding out for himself the qualities of the thing sold, he cannot complain of any alleged misrepresentation by the vendor. The other is to the effect that the purchaser who has knowledge of the facts he claims exists, does not complain when it is time for him to do so, that is, when payment becomes due, but on the contrary, asks for and obtains an extension of time, which the seller would not have granted had he suspected that the buyer was about to repudiate his obligation, is estopped from afterwards complaining.

Applying these two principles to the facts as we view them in this case, we are bound to hold with the district judge that, the plaintiff is entitled to recover the amount of its claim and that the defendant cannot recover on his reconventional demand.

The judgment of the lower court is therefore affirmed.


text:
    No. 897
    First Circuit
    DUPLISSEY v. THISTLETHWAITE LBR. CO., LTD.
    (February 8, 1932. Opinion and Decree.)
    S. W. Gardiner, of Ville Platte, attorney for plaintiff, appéllant.
    William Alex Robertson, of Opelousas, attorney for defendant, appellee.
   LeBLANC, J.

Plaintiff brought this suit against the defendant praying to have a certain contract alleged to exist between them annulled, and for an accounting of certain timber and logs alleged to have been cut and removed thereunder, and that judgment be rendered in her favor for whatever sum of money may be due her therefor.

In answer to a demand for oyer, plaintiff produced and filed the written contract she seeks to have annulled, and, as the contract, on its face shows that it was one entered into between the defendant with two other parties besides herself, an exception of non-joinder of parties was filed by the defendant which was sustained by the lower court. An exception of vagueness was also maintained and the plaintiff having failed to amend her petition or to make the necessary parties within the thirty days granted for that purpose by the court, judgment was rendered dismissing her suit at her cost, whereupon she took this devolutive appeal.

In this court we find the plaintiff, through her counsel, urging against the exception of non-joinder of parties, that where a contract contains distinct obligations to perform different things in favor of several ¡persons, the obligations become several and unconnected, and each obligee has his own separate and distinct remedy on the obligation created toward him individually. That no doubt is a correct statement of our law. In fact, it is almost the exact language of article 2079 of the Revised Civil Code. But the principle is certainly not applicable in this case, as that is not the nature of the contract here involved. ■ The document which plaintiff produced is in the form of a letter addressed to Charles A. Duplissey and signed by the president of the defendant company. It begins as follows: “This is to confirm purchase of the timber on lands belonging to yourself and others in Evangeline Parish, description and terms as follows: — ” Then follows the description of a single tract of land said to contain approximately 1,000 acres identified as “all lands owned by us or either of us in said above named sections.” The next paragraph fixes the terms of payment with no mention being made of any one individual. An acknowledgment of an advance payment of $1,800 in part payment is made, again without any distinction as to any one person. After the signature of the defendant company, through its president, appears the words: “Accepted and confirmed by us,” and the signatures “Chas. A. Duplissey,” “Catherine J. Duplissey” and “Mary P. A. Duiplissey,” and the contract is attested by two witnesses. A few days after its date, the contract was duly acknowledged by one of the witnesses before a notary public, as the document that had been executed by all parties thereto.

These, the vital provisions of the contract which have been quoted and referred to, indicate clearly, we think, that there are no separate or distinct obligations in favor of any one of the parties thereto. The suit is for the annulment of the contract as a whole and not for any separate or distinct obligation in favor of the plaintiff thereunder. The two other parties appear as equally interested in the contract, and they are not before the court either as plaintiffs or defendants. Their rights and interest would certainly be affected by any decree that might be rendered by the court and it follows that they are necessary parties to the suit. Ashbey v. Ashbey, 41 La. Ann. 138, 5 So.. 546; Heirs of Burney v. Ludeling, 41 La. Ann. 627, 6 So. 248; Succession of Todd, 165 La. 453, 115 So. 653.

We find the judgment of the lower court which sustained the exception of non-joinder and dismissed the plaintiff’s suit after her failure to make necessary parties, correct.

• In view of the dismissal of the suit on this exception it is unnecessary for us to consider and pass on the exception of vagueness which had also been sustained.


text:
    No. 912
    First Circuit
    McISAAC v. MOORE BROS., INC., ET AL.
    (February 8, 1932. Opinion and Decree.)
    E. L. Stewart, of De Ridder, attorney for ¡plaintiff, appellant.
    C. V. Pattison, of Lake Charles, attorney for defendants, appellees.
   LeBLANC, J.

This is a suit for compensation brought by the plaintiff against Moore Bros., Inc., and Únion Indemnity Co., both of New Orleans. The demand is for $3,900, being the amount claimed at the rate of'$9.75 per week for a period of 400 weeks. Plaintiff alleges that he was injured on July 9, 1930, when a truck belonging to Moore Bros., Inc., his employer, and in which he was riding at the time he was performing services under orders of his foreman, turned over at Ludington in the parish, of Beauregard, and he was pinned underneath it. He avers that his left shoulder and left leg were injured, and that he also suffered a hernia to his left side as a result of the accident.

The defendants each filed a separate answer, both being to the same effect," however, that the only injury plaintiff suffered was to his left shoulder, for which he was taken care of by their physician and that he was discharged as having entirely recovered and able to resume work on August 12, 1930. Both especially deny that the plaintiff is suffering from any present disability, and aver that if he has any, it does not grow out of the injury he received while in the employ of Moore Bros., Inc., and is in no manner connected therewith.

The only issue presented is the one regarding the alleged hernia plaintiff claims to have suffered as a result of his injury. The trial judge found from the testimony that plaintiff had no hernia, but held that as he was disabled during the period from July 9, • 1930, to August 12, 1930, he was entitled to compensation in the total sum of $45.91. From a judgment in his favor for that amount, plaintiff took this appeal.

Dr. J. D. Frazer, employed by defendants, and who attended plaintiff at the time he was injured, testifies that he was suffering from a dislocated left shoulder, had several bruises over the body and complained of his back and hip. Asked if he found any indications of a hernia, he answers positively no, saying, however, that he had a slightly opened inguinal ring, but no protrusion. It was his opinion that the ring was already there, perhaps from birth. He states that when he discharged plaintiff he considered that he was capable of resuming manual work and on a recent examination before the time of the trial of the case was of the opinion that he could perform hard labor.

Dr. T. R. Sartor, witness for the plaintiff, testified that the ring was a little enlarged, but not enough to permit a protrusion of the intestines. He found it to be perfectly sound and did not believe that it had been caused by the accident plaintiff was in. “I think it is more or less nature,” he says.

Dr. R. L. Love, called as a witness by the defendants, says that after a recent examination he didn’t find anything the matter with plaintiff, with reference to hernia, but that he had a slight enlargement of the left ring, of not sufficient size to cause a protrusion, nor of such nature as to prevent him from performing manual labor.' He adds that it could have been there a long time.

The foregoing comprises the medical testimony in the case, from which it seems at once apparent that plaintiff has failed to ‘ show any causal connection, as he must do in order to recover compensation, between his alleged hernia and the accident in which he was injured.

Other evidence submitted on behalf of the defendants shows, moreover, that after h'is discharge by Dr. Frazer, in August, 1930, plaintiff performed manual labor for the Long Bell Lumber Company, working off and on until as late as the month of March, 1931, and was dropped because the man he was replacing had returned to work and there was no other work to give him. His services during that time were satisfactory and were performed by him without apparent discomfort.

We find ourselves in entire accord with the views expressed by the learned trial judge and his judgment is affirmed.


text:
    No. 913
    First Circuit
    McCLINTON v. MOORE BROS., INC., ET AL.
    (February 8, 1932. Opinion and Decree.)

      E. L. Stewart, of De Ridder, attorney for plaintiff, appellant.
    C. V. Pattison, of Lake Charles, attorney for defendants, appellees.
   ELLIOTT, J.

James McClinton, an employee of Moore Bros., Inc., as a laborer on road work, was required, as a result of his employment, to distribute, place and level in the road freshly mixed cement, and for this purpose it was necessary for him to walk in the cement mixture. On July 14, 1930, some of the freshly mixed cement got into one of his boots and burned his foot very seriously.

He was receiving weekly wages at the rate of $15 per week. The Union Indemnity Company carried liability insurance for Moore Bros., Inc. Plaintiff brought suit against Moore Bros., Inc., and Union Indemnity Company for compensation at the rate of 65 per cent of his weekly wage from July 14, 1930, to January 1, 1931, and from that time, in addition $4.87% per week on account of partial disability for a time necessary in order tq make up a total of 300 weeks.

The defendants admit the employment of the plaintiff at the wages alleged, his injury and their liability for the compensation claimed from July 16, 1930, to September 2, 1930, but deny any further liability.

The lower court, giving reasons, awarded plaintiff compensation at the rate of $9.75 per week for 7 1/7 weeks, amounting to $69.61, and rejected the balance of his demand. The plaintiff has appealed.

The plaintiff testifies that he was injured on the 14th of July, 1930, and that his injury produced in him a total disability from that time to about December, 1930, and that since then he has been partially disabled.

Four witnesses called by plaintiff corroborated him as to his disability, but the physician who treated plaintiff at the time of the injury testifies that on September 2, 1930, plaintiff was entirely cured and discharged from further treatment; that since then nothing prevented him returning to work, as far as the injury received from being burned with cement was concerned.

Another physician gave testimony corroborating that of the first physician. The plaintiff bared his foot in open court, so that the court could look at what he claimed was still an existing injury resulting from his cement burns and we have the benefit of the observations of the district judge on that subject.

The evidence in the case is conflicting, due to the testimony of the physicians and that of the plaintiff and the four witnesses called by him, but the observations of the district judge support the testimony of the physician, and our conclusion is that the evidence will not justify us in interfering with the judgment of the lower court.

We are satisfied that the judgment appealed from is correct.

Judgment affirmed. Defendant and appellee to pay the costs in the lower court; plaintiff and appellant to pay the costs of appeal.


text:
    No. 918
    First Circuit
    GOOS v. PATRICK
    (February 8, 1932. Opinion and Decree.)
    M. R. Stewart, of Lake Charles, attorney for plaintiff, appellant.
    Edwin F. Gayle, of Lake Charles, attorney for defendant, appellee.
   LeBLANC, J.

Plaintiff brings this suit to recover the sum of $1,534 which he claims is due him as back pay for wages earned by him in his capacity as foreman in defendant’s Building & Novelty Shop in the city of Lake Charles, La. He alleges in his original petition that he was hired at a weekly wage of $36, and that he worked 107% weeks, thus having earned the sum of $3,870. In a supplemental petition, he alleges that he worked- 118 weeks, and that his earnings amounted -to $4,248, of which amount he has been paid by the defendant the sum of $2,714, leaving him due the balance he claims and asks judgment for.

The defense is. that plaintiff was engaged as a day laborer and was paid by the week. His first wage was at the rate of $5 per day, which later was reduced to $3.33 because of business depression, and -then again to $2.50 per day. Defendant claims that he has paid plaintiff all that is due him, and in a reconventional demand he asks, for judgment against him in the sum of $35, an amount he alleges he advanced plaintiff to enable him to have his wife taken care of during illness, and which amount he has never been repaid. Later, the defendant filed a plea of prescription to that part of plaintiff’s demand covering the wages claimed prior to the year before filing of the suit.

The judgment of the lower court was one rejecting the demand of the plaintiff and dismissing his suit. The reconventional demand of the defendant was not acted on by the court. Plaintiff appealed, and, as there is no answer filed by the defendant asking for an amendment of the judgment, we take it that the reconventional demand has been abandoned.

The sole issue is whether the plaintiff was hired, as he claims, by the week at $36, or was his employment by the day. We find no testimony in the record to support that of the plaintiff. He produced several witnesses, but not one of them could testify as to the exact nature of his employment, except the fact that he worked in the shop, and some speak of having seen his pay check on one or two occasions; but they did not know what his wages were, nor how he was paid. The defendant’s testimony on the other hand is borne out by the entries in the time book, from 'which it appears that plaintiff was hired just as were the other men who worked in the shop; his time kept in the same manner, and payments made according to the time he worked as entered in the time book. Plaintiff’s counsel invites our scrutiny of the time book for the purpose of detecting changes or erasures made therein. We have carefully inspected the entries called to our attention, and are unable to find any erasures or alterations whatever. The book seems to have been accurately kept by the same party; all entries being made, as it appears to us, in the same handwriting. There are a few corrections made, but all of these have to do with the time of some workman other than the plaintiff. Besides, there isn’t a word of testimony, save offhand remarks of the plaintiff himself, concerning any erasures.

We find no difficulty in agreeing with the trial judge that plaintiff has failed 1o establish his claim, and in holding that the suit was properly dismissed.


text:
    No. 926
    First Circuit
    CARLOCK v. CLINE
    (February 8, 1932. Opinion and Decree.)
    Hawkins & Pickrel, of Lake Charles, attorneys for plaintiff, appellee.
    Cline, Plauche & Girod, of Lake Charles, attorneys for defendant, appellant.
   ELLIOTT, J.

Thomas Carlock was employed as a laborer by W. E. Cline. His work was to stack lumber and drive a truck, in connection with a sawmill operated by said Cline. The said Carlock furnished his own truck and supplied it with gasoline and oil, etc., using the truck to haul lumber and ties for said Cline.

Carlock alleges that on or about November 7, 1930, while engaged in loading some sawed timber on his truck at the sawmill operated by Cline, he accidentally mashed and injured the third finger of his right hand, and on the next day following this injury, while stacking strips, accidentally stuck a splinter in the same finger; that said injuries resulted in the loss of his finger, and he claims compensation on said account.

He claims that he was earning at the time 50 cents per hour, working 10 hours a day, a total of $30 per week. He claims compensation for a period of 20 weeks, and, in addition, $83.50 on account of sanitarium expenses and physician’s fees.

The defendant Cline for answer denies that plaintiff was working for him when injured, or that he was. earning any wages by working for him at that time.

The lower court awarded plaintiff compensation at the rate of $16.10 per week for 20 weeks, and, in addition, $83.50 on account of hospital charges and physician’s fees. The defendant has appealed.

The loss of plaintiff’s finger is admitted. Plaintiff testifies that it resulted from injury sustained while working for defendant. The testimony of the plaintiff is corroborated by witnesses and in other ways.

The defendant offers evidence the purport of which was to show that his mill was not running at the time plaintiff alleges that he was injured, and that plaintiff was not working for him at the time his injury was sustained. The evidence on the question is. contradictory, but we agree with the lower court that the preponderance of the evidence on the subject goes to show that defendant was operating his sawmill, and that plaintiff was working for him at the time he received the injury to his finger which resulted in its loss. The finding of the lower court on this subject in favor of the plaintiff was correct.

The defendant further contends that the plaintiff is. not entitled to the amount of compensation awarded him in the lower court, on the ground that he was not earning as wages, for his labor as much as the lower court decided that he was doing.

The plaintiff was working ten hours a day and earning 50 cents an hour. He was operating his own truck and furnishing his own gasoline, oil, and the upkeep of the truck.' He is only entitled to wages, for his labor, and not for the use of the truck. The district judge accepted plaintiff’s testimony as to the amount of his expenses in operating his truck, found in the transcript page 58, note of testimony page 36. Plaintiff’s weekly expense for operating his truck amounted to $5.22, which, deducted from his weekly earnings, left $24.78 as his net earnings per week.

Now 65 per cent of this amount makes $16.10, which is the compensation to which the plaintiff is entitled for 20 weeks. He is also entitled to $83.50 as hospital expense and the fees of doctors.

We think the district judge figured the amount correctly, and that his judgment should be affirmed.

Judgment affirmed. Defendant and appellee to pay the cost in both courts.


text:
    No. 928
    First Circuit
    MaGEHEE ET UX. v. F. C. YOUMANS CONST. CO. ET AL.
    (February 8, 1932. Opinion and Decree.)
    E. L. Stewart, of De Ridder, and M. R. Stewart, of Lake Charles, attorneys for plaintiffs, appellants.
    McCoy, Moss & King, of Lake Charles, attorneys for defendants., appellees.
   LeBLANC, J.

Plaintiffs, William MaGehee and his wife, instituted this suit for compensation against F. C. Youmans Construction Company and its indemnitor, Independence Indemnity Company of Philadelphia, Pa., for the death of their son Harold, on whom they allege they were wholly dependent, as by reason of poor health they are both totally incapacitated from doing work of any character whatsoever, or from earning a livelihood. They aver that their son, who was employed by F. C. Youmans. Construction Company, was injured while digging a ditch across the Lake Charles and De Quincy highway in the parish of Calcasieu, and that he died as a result of his injuries. They aver further that he was earning wages of 25 cents per hour, working twelve hours per day and seven days per week, making a weekly average of $21, of which each is entitled to receive 32% per cent for a period of 300 weeks. They pray for judgment in favor of each in the lump sum of $2,047.50, in solido, against both defendants, with 8 per cent per annunl interest from date that compensation became due until paid.

The defendants filed a joint answer in which they admit the injury to plaintiff, although they deny the negligence charged against Youmans Construction Company. They admit that he was earning 25 cents per hour, but aver that he worked only ten hours per day when he worked full time. They both place the plaintiffs upon strict proof of the allegations of dependency, and deny that any compensation is. due them.

The district judge held that plaintiffs had shown dependency to a large extent, but not absolute and total dependency. He found that the decedent’s wages at the time of -the accident amounted to $18 per week, of which amount he contributed approximately $12 per week to the support of the family, and he accordingly rendered judgment in favor of each, the father and mother, against both defendants in solido, in the sum of $1,170, payable in 300 weekly installments, with interest as demanded. The plaintiffs have appealed, claiming in this court that they are entitled to compensation as for total dependency, and the defendants answer the appeal, contending that the amount allowed is excessive and is not supported by the evidence. They further ask for an amendment of that part of the judgment which allows a lump sum in favor of each plaintiff, as that is not the form of judgment to be rendered in cases involving dependency, except where a settlement has been agreed upon.

Plaintiffs own a tract of what is referred to as “piney woods” land, comprising about twenty acres and worth at the most $5 per acre. There was a mortgage bearing on it which, according to the husband, had “run up” to $159, and which had been reduced by the deceased son to $107.50. On the property, which is only partly fenced in, there is a five-room house, a barn, a smokehouse, and a good well. There is a milk cow which had been purchased by the deceased boy and from which the family had been getting milk up to the time her calf grew too old. The son also had a few hogs, some of which were used by the family, and the others he sold. The property at times was in cultivation, but never to the extent of more than five acres, and most of the farming was done by the son. A garden produced vegetables for the family, and it is. shown also that a few cords of wood were sold from the property which helped to defray the family expenses. The taxes on the property were paid by the decedent.

The father is sick, having some organic trouble which prevents him from doing any but the lightest kind of work. The mother is not in any too good health, and has all that she can do attending to her duties as a housewife. The deceased son furnished the groceries for the family, as shown by the testimony of Mr. Bailey, manager of the grocery department of the store with which he dealt, and that of Mr. Pruge who delivered the groceries on his orders when he left home to go to work elsewhere.

Prom the foregoing facts, it appears that, with the exception of the vegetables from the garden and the meager revenues, derived from the sale of cordwood from off the property, the family was almost entirely dependent on this son for their existence, and the only charge that might be urged against him was the use he made of the home when he worked near enough and lived there. When he worked away, he of course had to pay board and sent what was left over of his pay to his parents.

What he actually earned by the month and what he spent on himself it is very difficult to determine, due to the lack of any positive evidence. His father estimated his yearly earnings to be from $500 to $700. This is purely an estimate, with nothing very definite to sustain it. The only certain proof of any wages before us is that covering the short period of his employment by the Youmans Construction Company, defendant herein, as there is an admission in the record which, shows that for the ten days that he worked his average earnings per week amounted to' $18.66. He boarded with a sister while on that job, and either paid, or was to pay, 75 cents a day.

It may be that the decedent did not average $18 per week in cash, all through the year, but, taking into consideration the work he did in helping on the farm and his contributions in other ways, we do not think that the district judge was far off in fixing his earnings at that amount. The deduction he made of $6 per week for his personal expenses strikes us also as being fairly accurate under the evidence in the case. This, of course, leaves the balance of $12 per week as his contribution to the support of his father and mother, on which the amount of compensation fixed by the court is based. The judgment in that respect we believe is correct.

We are of the opinion, however, that the judgment as rendered for a lump sum in favor of each plaintiff is not authorized under the form of this present proceeding. The workmen’s compensation statute provides under what circumstances lump sum settlements can he made between employer and employee. See subdivision 9 of section 8 of Act No. 242 of 1928. A judgment for compensation is not of the same character as an ordinary judgment for a sum of money which becomes exigible for the whole amount as soon as it becomes final. The latter form of judgment becomes a property right which passes from the one who holds it to his heirs on his demise. A judgment for compensation in favor of a father or mother does not automatically so pass, as it is only the minor dependent children who become entitled to their share in it, and, before they can inherit that right, it strikes us that a showing of some kind would have to he made. Any action of that kind, of course, becomes necessary only in the event of the death of either parent who is receiving compensation, and requires no consideration in this case at this- time.

We deem it necessary, therefore, to amend and recast the judgment, and for the reasons stated,

It is therefore ordered, adjudged, and decreed that there be judgment herein in favor of each plaintiff, William' H. MaGehee and his wife, Mrs. William H. MaGehee, and against the defendants F. C. Youmans Construction Company and Independence Indemnity Company of Philadelphia, Pa., in solido, condemning the said defendants, in solido, to pay to each of said plaintiffs compensation at the rate of $3.90 to each, per week, for a period of three hundred weeks beginning April 21, 1931, with interest at eight per cent per annum from the due date of each payment until paid, with all costs of this proceeding.


text:
    No. 938
    First Circuit
    NAPOLEONVILLE MOSS MFG. CO. ET AL. v. TEMPLET ET AL.
    (February 8, 1932. Opinion and Decree.)

      Pugh & Lanier, of Thibodaux, attorneys for plaintiffs, appellees.
    Simmons & Simmons, of Napoleonville, attorneys for defendants, appellants.
   LeBLANC, J.

This appeal comes before us from a judgment in the lower court which sustained a plea of estoppel filed on behalf of the defendant, and dismissed plaintiff’s suit.

Aides Templet, minor son of William Templet, formerly worked for the Napoleonville Moss Manufacturing Company, a commercial partnership composed of R. I. Schwing and Alphonse Blanchard. While performing services in the course of his employment, he was injured, and on October 2'3, 1930, filed suit in the district court in the parish of Assumption, to recover compensation in the sum of $368.20.

It appears that citation in said suit was issued by the clerk of court addressed to Napoleonville Moss Manufacturing Company, “through its iproper officers” on the day that suit was filed, and the return of the sheriff shows that he made domiciliary service thereof on Alphonse Blanchard, by leaving the same with the latter’s wife, Mrs. Emily Blanchard, at his domicile in the parish of Assumption. There was no citation issued to or served on Schwing & Blanchard nqr on the Napoleonville Moss Manufacturing Company.

On October 28, 1930, William Templet, the minor’s father, who was conducting the proceeding on his behalf, filed a supplemental petition in which he prayed for an order of court to fix a date for the hearing of his complaint. Service of this petition was accepted by Alphonse Blanchard, individually, and again there was no service made on either Schwing or the Napoleon-ville Moss Manufacturing Company.

There were no pleadings filed in defense of the suit, and on November 21, 1930, judgment was rendered in favor of the plaintiff in the sum prayed for, against Schwing & Blanchard and Alphonse Blanchard, individually.

The present suit has for its purpose the annulment of that judgment, on the following grounds, to-wit:

1. For lack of citation on the Napoleon-ville Moss Mfg. Co., and on the firm of Schwing & Blanchard who were parties defendant in the suit.

2. Because the cause of action, if any, was primarily one for compensation for alleged injuries received while the plaintiff was performing services for his employer, under the provisions of the Employers’ Liability Law, Act No. 20 of 1914, and the amendments thereto, and no lump sum judgment can be rendered against an employee without his consent.

There is a third ground stated in the petition, but it appears to us to be the same as that urged under heading No. 2, stated a bit more elaborately perhaps.

Defendant first filed an exception to the citation, urging certain defects therein; but there seems to have been no action taken on this exception in the lower court, and as the matter is not called to our attention, we take it that that exception has been abandoned.

Defendant next filed the plea of estoppel on which the matter was heard and resulted as already stated in a judgment in his favor, dismissing the suit. As the estoppel pleaded was strictly against the plaintiff Alphonse Blanchard, the judgment of dismissal was as against him only, and only in so far as it sought to relieve him of the force and effect of the judgment complained of.

The plea of estoppel is quite a lengthy document, but as it recites facts which are for the most part embodied in an agreed statement of facts on which the case was tried, it is unnecessary for us to quote from it.

This agreed statement of facts covers the pleadings and the action taken in court in the former suit, very much as it has been here recited, except that it might be mentioned that the judgment was rendered on confirmation of default. It further establishes that Schwing, Blanchard’s partner, was not served with citation, because of the latter’s special request that that be not done as the partnership had been dissolved. That request was made by Blanchard of the sheriff and the latter would not take it upon himself to do so before consulting plaintiff’s attorneys in the suit. The sheriff communicated with those attorneys, and they in turn took the matter up with Blanchard, who stated to them “that he was willing that a judgment be rendered against him in the matter, as the claim was fully covered by insurance and that the insurance company would pay the claim as soon as judgment was rendered.” It was after this assurance given them, that these attorneys prepared a supplemental petition asking for the date to be set for a hearing, and replying upon them, presented Mr. Blanchard with the same and asked him to accept service and waive citation. He made no defense whatever and permitted judgment to go against him by default.

The statement of facts further establishes that prior to the filing of any proceedings in court, the indemnity company had written plaintiff’s attorneys, who are defendant’s attorneys in this suit, stating that it would pay a judgment which would show to whom the compensation should be paid, and that this letter was shown to Mr. Blanchard previous to the confirmation of the default judgment. • The judgment was then obtained, and upon being furnished with a copy thereof, the indemnity company took the position that as it was not a party to the litigation and Mr. Blanchard had not notified them of the suit as he had to do under the terms of the policy, it declined payment. Mr. Blanchard was apprised of this fact, whereupon he called on the attorneys representing the claimant and told them that he personally would take the matter up with the insurance company and that if they did not pay the judgment, he would pay it, asking them in the meantime, not to issue execution on it. These attorneys requested of him that they be notified of the result of his conference or communications with the insurance company which he agreed to do, but, instead, he filed the present suit to have the judgment annulled.

As stated by the learned trial judge, in his reasons for judgment, “it would be difficult to construct a stronger estoppel than Mr. Blanchard has manufactured for himself.” According to this agreed statement of facts, the defendant’s whole course of action in the former suit was changed from what he originally intended it to be, and that change came about only because of the influence which the representations of the plaintiff Blanchard herein exerted over him. He acted upon those representations in entire good faith and Blanchard cannot be heard now to complain about the course of action he pursued, and defeat him in it, to his injury. That is the essence of the doctrine of estoppel. McConnell v. Ory, 46 La. Ann. 564, 15 So. 424; Willis Curl v. Bank, 104 La. 548, 29 So. 234.

Plaintiff suggests in brief of his counsel that the defendant here, who is (plaintiff in the other suit, could not have suffered any injury because of the failure to cite Schwing and the Napoleonville Moss Manufacturing Company, as it is not necessary to cite all the members of a commercial partnership, meaning, we presume, that citation and service on Alphonse Blanchard was sufficient to bring the partnership into court. If that be true, the query arises: What becomes of his complaint in this suit which is based on this very want of citation and of service, as we read his petition? On the other hand, should plaintiff here be successful in annulling the judgment in the other suit on the ground that there was not proper citation and service, it seems plain to us that this defendant would suffer a grave injury, and one which was brought about solely because he acted in good faith on the representations made to him by the plaintiff. We are clearly of the opinion that the lower court correctly sustained the plea of estoppel.

We now come to the second ground bn which the judgment in the former suit is attacked, namely, that it should not have been rendered for a lump sum and have concluded that there is not any more merit in the contention made on this point than on the first, in view of the agreed statement of facts. It would be difficult to get around the proposition, urged by counsel for defendant, that the judgment was one by agreement and consent on the part of Mr. Blanchard. The compensation statute provides that the amounts (payable as compensation may be commuted to a lump settlement “by agreement of the parties after having been approved by the Court as reasonably complying with the provisions of this Act. * * *” Paragraph 9, section 8, of Act No. 242 of 1928. It is noted that the statute does not specify any form of agreement, neither does it provide that the agreement shall be in writing. _ Under the statement of facts agreed upon, it is shown by that part already quoted from, to the effect that Blanchard stated to defendant’s attorneys that he was willing that judgment be rendered against him, there was an agreement on his part to justify the court in rendering the judgment in the form that it did. Moreover, he. did not contest it in any way, and even ¡promised to pay it after it had been rendered if the insurance company would not. In this connection, the thought arises in our minds whether it was not because of the insurance company’s refusal to pay that this action in nullity was conceived and instituted. It may act as a hardship on Mr. Blanchard that he will perhaps have to pay the judgment, but it would be wholly un just and inequitable to make the claimant, who acted in utter good faith throughout on the representations he made, suffer for his laches in failing to have notified the insurance company of the pending suit for compensation.

We are convinced of the correctness of the judgment of the lower court, and it is accordingly affirmed.


author: WESTERFIELD, J.

text:
    No. 13,900
    Orleans
    CIACCIO v. CASHIO ET UX.
    (January 25, 1932. Opinion and Decree.)
    (February 15, 1932. Rehearing Refused.)
    William J. O’Hara, of New Orleans, attorney for plaintiff, appellee.
    Deutsch & Kerrigan, of New Orleans, attorneys for defendants, appellants.
   WESTERFIELD, J.

This suit results from an intersectional collision between a motor-truck and an automobile. The plaintiff, who at the time of the accident was driving his father’s Ford truck, brings this suit against Mrs. Nunsel Cashio, who was driving her Buick automobile, and against her husband, Nunsel Cashio, for physical injuries alleged to have been caused by the collision.

There was judgment in favor of plaintiff in the sum of $1,000, defendant has appealed.

The accident occurred on November 1, 1930, at about 7:45 a. m., in the intersection of Esplanade avenue and Liberty streets. Esplanade avenue is divided by a neutral ground, and plaintiff had driven from the lower driveway onto the neutral ground where he stopped, blew his horn, and entered the upper side, and had almost completed the crossing, part of his truck having passed the curb and entered North Liberty street, when he was struck in the rear by the Buick car driven by the defendant Mrs. Cashio.

Mrs. Cashio was admittedly negligent in that she was driving too fast and in not keeping a proper lookout. In her answer she fixes her speed at twenty miles per hour, and in her testimony at 30 miles per hour, but we are convinced that she was going considerably faster than that. The sole defense is the alleged contributory negligence of plaintiff, who is said to have entered the intersection at a time when to do so was imprudent because of the proximity of the Cashio automobile and the rapidity of its speed.

. The following provision of the traffic ordinance (No. 7490 C. C. S.) is of interest:

“7 Right of Way. * * *
“(d) On streets and avenues having neutral grounds and carrying street car lines, vehicles crossing such neutral grounds shall have right of way to complete the crossing of the roadway of such streets or avenues under the following conditions:
“Provided the vehicle shall come to a full stop when about to leave the neutral ground and enter the roadway, shall signal with horn, and give opportunity for approaching vehicles in the roadway to come to a stop; it being the intention of this provision to require vehicles in said roadway to stop upon receiving reasonable warning in order that vehicles standing on the neutral ground shall be permitted to complete the crossing of or turning into the roadway.”

The effect of this provision is to give the automobile leaving the neutral ground with the intention of completing the crossing the right of way over those approaching on intersecting streets, provided it shall come to a stop and signal with its horn, and “give opportunity for approaching vehicles in the roadway to come to a stop.”

There is no dispute concerning the stopping of plaintiff’s truck and the blowing of his horn, but it is said no opportunity was given Mrs. Cashio to stop because of the speed at which she was traveling and the nearness of her car to the intersection.

There is some doubt as to how far Mrs. Cashio was from the intersection when plaintiff entered the roadway. The nearest point mentioned by any of the witnesses is a half of a block, and that particular block is said to measure 175 feet. This would place her car about 87 feet distant. She says she did not hear the horn nor see the truck until just before she struck it.

In the case of Williams v. Lenfant, 15 La. App. 515, 131 So. 857, we held the driver of a Chevrolet automobile guilty of contributory negligence because he entered the roadway from the neutral ground without affording sufficient opportunity to the driver of a Packard which was approaching the intersection to come to a stop. See, also, Bannon v. Picou, 15 La. App. 511, 132 So. 390, and Betz v. Menville, 18 La. App. 359, 137 So. 773.

The determining factor in the cited cases, as in the instant case, is whether at the time the automobile left the neutral ground, after having stopped and blown its horn, there was sufficient opportunity for vehicles in the roadway to stop. It will be recalled that the Ciaccio truck had entered North Liberty street when it was struck in the rear by the Cashio car. In other words, the truck almost escaped collision. If Mrs. Cashio had -attempted to check the speed of her car when the truck left the neutral ground, she would certainly have avoided the accident. Her explanation of her failure to do so upon the ground that she did not see the truck will not excuse her, for she Should have seen it. It was broad daylight and her vision unobscured. In her answer she claimed that an approaching street car prevented her seeing the truck, but in her testimony she stated that she did not see the street car until after the accident, and other witnesses establish the fact that the street car was not between the truck and the Cashio car, but behind it. Plaintiff was justified in relying on Mrs. Cashio’s observance of the ordinance, having afforded her an opportunity to do so. Our conclusion is that defendant is liable.

Plaintiff was thrown from his truck to the ground and suffered a lacerated wound of the scalp with brush burns, small particles of gravel and dirt being embedded in the wound. He also suffered multiple lacerations of the left arm and leg, of the right hand and contusions of the right shoulder joint. He lost four weeks’ wages -at $30 per week, incurred a doctor’s bill of $55, radiologist bill of $15, and ruined a suit of clothes and a hat valued at $30. We believe the sum of $750 to be proper under the circumstances.

For the reasons assigned, the judgment appealed from is amended by reducing the amount awarded plaintiff from $1,000 to $750, and, as thus amended, it is affirmed.


author: MOUTON, J.

text:
    No. 893
    First Circuit
    FONTENOT v. TREMIE ET AL.
    (February 8, 1932. Opinion and Decree.)
    John W. Lewis, of Opelousas, attorney for plaintiff, appellant.
    J. H. Dore, of Ville Platte, and Dubuisson & Burleigh, of Opelousas, attorneys for defendants, appellees.
   MOUTON, J.

Plaintiff’s left eye was severely injured by a bottle thrown at him by Gus Prudhomme in Ville Platte November 30, 1929.

Dennis Tremie and Kossuth Fontenot were companions of Gus Prudhomme at the time of the occurrence, and all three were minors.

Plaintiff, alleging that Dennis Tremie having struck him with a stick immediately before the bottle had been hurled by Gus Prudhomme, that the aforenamed boys, who had designedly committed these acts, were confederates or conspirators, brings this suit claiming $7,500 against Ferdinand Tremie, Leonce Prudhomme and Adema Fontenot, the fathers of these boys.

Judgment was rendered below dismissing the suit, from which plaintiff appeals.

The difficulty which resulted in the damage occurred at about dusk, according to the witnesses. Plaintiff and Nolan Munier, a boy about eighteen, met Dennis Tremie, Gus Prudhomme, and Kossuth Fontenot at Guidry’s pool room or whisky joint in the town of Ville Platte, where liquor was sold to the public.

It seems that Tremie Prudhomme and Kossuth Fontenot, hereafter called defendants, were in a back room of the pool room drinking, or finishing their drinks, when plaintiff and Munier came into the room. At any rate, the proof shows that the five boys met in the pool room; whether plaintiff and his companion came in first or after being an immaterial circumstance.

Plaintiff and Munier say they were sober; defendants, admitting they had had a couple of drinks, testify plaintiff had been drinking or was drunk. These five boys, the record shows, although they did not “bunch” together, as they expressed it, had never had any trouble or difficulty of any kind, and were friendly. It is true that, when they met at the pool room, they did not speak to each other, but it is also a fact that nothing whatsoever occurred there to cause any irritation or ill feeling between them. The proof shows that plaintiff and his companion, Munier, left the pool room to go across a small cane field to a Mr. O’Conner tq get a bettle of whisky where he was operating a joint or blind tiger institution.

Munier was the one who was going to buy the whisky, plaintiff following him. Munier went in O’Conner’s home, got the bottle of whisky, plaintiff remaining at the yard gate, so testify plaintiff and Munier. After procuring the whisky, they started on their way back to the pool room, and in the cane field met the defendants, who were also going towards O’Conner’s for a bottle of whisky. It is there and then that the difficulty began which ended with the injury inflicted on plaintiff’s eye.

“He who is in fault and sues for damages resulting from that fault, cannot recover for the injuries inflicted on him.” Bankston v. Folks, 38 La. Ann. 267.

The ruling thus announced governs the issues in this case.

The question presented is one of fact, but the evidence must be analyzed that we may arrive at a proper solution of the case, under the doctrine above referred to.

Plaintiff and Munier say, in substance, that, when they met the three defendants on their way to O’Conner’s joint, one of the three defendants asked plaintiff for a drink; that the latter answered he had none; that plaintiff and Munier continued on their way; that defendants hollered at them to stop; that they stopped, defendants came on them; that Tremie picked up a stick, and struck plaintiff on the head with it; that plaintiff caught the end of the stick, Tremie hollered to stab him; and that Gus Prudhomme snatched a bottle from Kossuth Fontenot’s inside coat pocket, and struck plaintiff in the eye with the bottle.

The version given of the occurrence by defendants is substantially as follows: That when they met plaintiff and Munier, Tremie asked plaintiff if he had any whisgy left, whereupon plaintiff called Tremie a dirty hog, using also other vile words which we deem unnecessary to quote; that plaintiff kept on advancing on Tremie with his right hand in his pocket; that he tried to strike Tremie with his hand, which Tremie caught and held; that Munier came up and pulled Tremie down, and that Tremie asked for them to be taken off; that Kossuth took Munier off; and that Gus Prudhomme took plaintiff off from Tremie.

These two versions of the occurrence are clearly contradictory, and irreconcilable. According to plaintiff and Munier, defendants started the trouble, and, according to defendants, it was started by plaintiff.

It is shown that these five boys were well behaved, had good reputations for (peace and quiet, and prior to the occurrence in question had had no troubles of that character. It also appears that on the evening in question nothing had occurred at the pool room to disturb their prior friendly relations. There was therefore no cause arising from anger or enmity that could have led to the difficulty.

Plaintiff and Munier say they had not taken a drink, not even from the bottle of whisky which Munier had bought from O’Conner and which he was carrying in his pocket while returning to the pool room with plaintiff, his companion. Defendants admit they were drinking at the pool room when plaintiff came in, and say that plaintiff had been drinking. The judge in his written opinion says in part:

“There is one thing certain, they were all visiting bootlegging joints at the time of the difficulty and were all drinking.”

As there was no enmity between these parties, no ¡previous provocation when they met, the only plausible cause for the origin of the disturbance must be ascribed to overindulgence in the liquor they were selling at these whisky joints. In cases of this character arising from such conditions, it is difficult to ascertain with legal certainty from the testimony as to what really happened.

Gus Prudhomme testifies that plaintiff threw a bottle which struck him on the. shoulder, that he picked it up at his feet, threw it at plaintiff, striking him on the eye.

Plaintiff contends that the bottle was empty when it hit plaintiff on the eye, as some liquor would have been splashed on him when he was struck. Grounding his contention on the statement of plaintiff that neither he nor Munier had taken any liquor from it after it was purchased from O’Conner, counsel for plaintiff deduces the conclusion that, as the bottle with which Gus Prudhomme struck plaintiff was apparently dry, it could not have been the bottle which was still full in Munier’s pocket, and necessarily could not have been any other bottle but one which the defendants were taking over to O’Conner for the whisky they intended to get there.

Admitting that the bottle Munier was carrying in his pocket was full at the time, if it was thrown at Prudhomme, as testified to by defendants, it is .not impossible that it was broken when it struck his shoulder and that its contents or most thereof were spilled, the bottle going back to plaintiff without any liquor left or not much to be spared, so as to leave proof of its existence.

In connection with the proof revolving around this empty bottle which plaintiff contends corroborates the testimony of plaintiff and Munier that no bottle was first hurled against Prudhomme, and to the discussion qf. which counsel devotes a large portion of his brief, it is proper to .refer to the testimony of the three defendants who positively deny that they had with them an empty or any bottle when they left for O’Conner’s joint to get whisky, as they claim that bottles were furnished by O’Conner for whisky purchased at his joint, and it may be proper to remark here that there is no evidence in the record contradicting that statement as to the furnishing of bottles by O’Conner to his customers.

Let us, however, accept plaintiff’s contention that the bottle by which he was struck was empty, and, as a fact, is corroborative of the testimony of plaintiff and Munier that it was in the possession of -Prudhomme when they met, and was not hurled back 'at plaintiff, as testified to by defendants. If that be a corroborative circumstance, the record also offers a fact which corroborates the testimony of defendants in reference to the manner in which' the struggle was carried on during the difficulty.

Defendants say that, when (plaintiff . attempted to strike Tremie, the latter grappled with him, that Munier pulled him down by his shoulders, thereupon plaintiff and Munier were taken off by Kossuth Fontenot and G-us Prudhomme, as herein-above alluded to.

. Paul Soileau, a resident of Ville Platte, disinterested as far as the record discloses, says, after he had taken his supper on the day of the occurrence, he met the three defendants, and saw that Tremie had mud on his back, knees and shoulders, and was 'the only one that had any mud on his clothes. This -statement- corroborates defendants in their testimony to the effect that Tremie had been pulled down during the struggle. If the difficulty occurred as testified to by. defendants, plaintiff was the aggressor, and at fault.

In his opinion, the district judge also stated that:

“To grant the relief asked for, the Court would have to ignore altogether the testimony of the minor sons in this difficulty, Which the Court does not feel that it is justified in doing.”

The minor sons referred to are the three boys named as the three defendants herein. The court evidently concluded from the evidence of the defendants that plaintiff was the aggressor, in fault, and rejected the damages.

The only possible reason upon which counsel for plaintiff could hope to recover is based on the fact that Munier, witness for plaintiff, is no relative of the plaintiff, and has no interest in the outcome of the case. This circumstance is worthy of consideration, but likewise is the fact that the trial judge had the opportunity of hearing the witnesses, and of noticing their deportment on the. witness stand, and is also presumed to be informed of the .conditions existing in the community over which he presides. These advantages are not possessed by the appellate judges who must derive their information exclusively from the cold facts reflected in the record.

This case being one of fact, the only ground warranting' a reversal would be that the court below has fallen into a manifest error in believing the three defendants as against plaintiff and Munier.

From a full analysis of the evidence which ■ has received our closest and most careful attention, we do not find that the court has erred in believing defendants and in rejecting the demand.


author: STEPHENS, J.

text:
    No. 4196
    Second Circuit
    TREICHLINGROVA ET AL. v. LAYNE
    (February 16, 1932. Opinion and Decree.)
    Albert Sabath, of Chicago,’ Ill., and George W. Lester, of Monroe, attorneys for ‘ plaintiffs, appellants.
    George Wesley Smith, of Rayville, and Hugh T. Layne, of Monroe, attorneys for defendant, appellee.
   STEPHENS, J.

The property of the plaintiffs in Ouachita parish, Louisiana, was sold for taxes for the year 1928-to Sidney Kahn, who several months thereafter conveyed it to John J. Potts and R. Downes, Jr., residents of the city of Monroe, Louisiana. After the redemption period had elapsed, the defendant, Hugh T. Layne, attorney at law, of Monroe, Louisiana, was employed by plaintiffs, who’ were residents of the republic of Czechoslovakia, Europe, to recover the property. No attorney’s fee was agreed on for the service to be rendered. The defendant discovered irregularities in the proceedings from which the tax adjudication resulted, instituted suit for the plaintiffs herein and obtained judgment in their behalf setting aside the tax sale and decreeing them to be the owners qf the property.

The defendant then submitted a bill for his services in the sum of $1,800, less a credit of $300. After much correspondence with the plaintiffs in regard to the fee, the defendant threatened suit, and finally filed suit; attached the property, and served the plaintiffs with citation through a curator ad hoc and was granted judgment by default for the amount sued for.

This is a suit to annul that judgment upon two grounds:

(1) That defendant had been adequately compensated for the services rendered prior to the filing of the suit.

(2) That the judgment was obtained by the defendant through fraud and misrepresentation.

The defendant answered denying generally the allegations of the petition.

The case was tried before the same judge who had rendered the judgment sought to be annulled, and resulted in a judgment in favor of the defendant, rejecting plaintiffs demands. The plaintiffs prosecute this appeal.

The opinion of the district judge is quoted in full, as follows:

“This is a suit by, plaintiffs, who are both residents of the Republic of Czechoslovakia, against Hugh T. Layne, to annul the judgment rendered in the case of Hugh T. Layne v. Babetta Treichlingrova, et al., in case No. 19036 of the docket of this Court, which judgment was proved up by default on the 21st day of February, 1931.
“Petitioners allege that said judgment was obtained through fraud, ill practice and false testimony. Whatever else this record may show, it contains conclusive evidence that there was no fraud or ill practice in obtaining the judgment in the original suit against these plaintiffs. The record is conclusive that Layne demanded payment of the amount which he claimed on numerous occasions, and threatened suit if it was not paid, and the plaintiffs in this suit had ample notice that the suit was going to be filed and of the amount claimed by Layne as attorney’s fees. They likewise had ample notice after the suit had been filed of the purpose of the suit and the amount claimed by Layne, and that unless something was done about it the property would have to be sold. Layne even went so far as to ask that a mortgage be executed in his favor in order to protect his interest.
“The correspondence from Layne to the Agent and Attorney in Fact of the plaintiffs in this ease is voluminous and shows that the plaintiffs in this case were fully advised as to what Layne was doing and what his demands were. The original suit was filed on January 14th, and was not finally confirmed on default until February 21st. In the meantime the suit had not been answered and Layne was unable to obtain any satisfaction from the plaintiffs. The suit was regularly filed and served on a curator ad hoc and the proceedings 'were regular in every respect. Therefore the claim of fraud, ill practice and false swearing is totally and wholly unsustained by the evidence.
“The only remaining reason for annulling this judgment is the fact that the plaintiffs are dissatisfied with the amount of attorney’s fees claimed by Layne, and for which the judgment was rendered on default. I do not think that the plaintiffs are in a position to annul the judgment on this ground. They knew every fact which they now know before the original judgment was rendered, and it is well settled that in the absence qf fraud one cannot allege in nullity of a judgment that which was known and could have been used in defense of the original suit even though the judgment was on confirmation of default. It is none the less res adjudicata. O. P. Article 607; Succession of Lebrew, 3 Ann. 212; Mercantile Adjustment Co. v. Powers, 5 App. 285.”

' We have carefully studied the record in the case and we fully concur in the able and concise opinion of the learned trial judge, and adopt it as our own.

We do not understand the last sentence of the opinion, to-wit, “It is none the less res adjudicata,” to mean that the trial judge considered the judgment attacked to be res adjudicata as against this action, but that he was merely expressing his conviction that the subject matter of that litigation was properly and finally disposed of after having considered the action to annul on its merits.

The judgment is affirmed.


author: MeGREGOR, J.

text:
    Nos. 4262, 4263
    (Consolidated)
    Second Circuit
    RYLAND ET AL. v. BETTY JOYCE LBR. CO. (Pineville Lumber Co., Inc., et al. Interveners) PINEVILLE LUMBER CO., INC., v. MALPASS (Johnson et al., Interveners)
    (February 16, 1932. Opinion and Decree.)
    White, Holloman & White and T. F. Hunter, of Alexandria, attorneys for plaintiffs, appellants J. P. Johnson et al.
    Overton, Dawkins & McSween, of Alexandria, attorneys for defendant, appellee Pineville Lumber Company.
   MeGREGOR, J.

In the beginning these suits, consolidated for purpose of trial and appeal, involved several conflicting claims, but these have been simplified somewhat by abandonment, so that the only question left to be determined by the court is whether the laborers’ lien on lumber manufactured in a sawmill built and operated on leased premises is superior or inferior to the lessor’s lien and privilege.

Harry Malpass, a resident of Rapides parish, was the owner of a sawmill company in Pineville, La., operated under the name of Betty Joyce Lumber Company. The sawmill and all its equipment, together with the premises on which it was built, were leased from Pineville Lumber Company, Inc. Under the terms of the lease contract, which was written, the lessee began operations on April 23, 1931, and the lease was to continue for a period of twenty-three months at a rental of $100 per month, payable monthly.

Malpass, or the Betty Joyce Lumber Company, depended solely upon logs bought from others to run the mill. Several different ones furnished him logs, both by railroad and log wagon delivery. Among those who sold and delivered logs to the mill were Joseph T. Ryland, Raymond Zerbe, and Thomas. J. Tullís. Joseph Murray was employed as a foreman and general woods manager, and J. A. Walker furnished groceries. These five brought a joint suit for their respective claims and caused all the lumber and whatever equipment that belonged to Malpass • to be seized undei' a writ of attachment in suit No. 22,136 in the Ninth district court of Rapides parish, on May 18, 1931.

It appears, that Malpass soon discovered that his sawmill venture was a failure and abandoned any further operation of the mill and left for parts unknown. On May 22, 1931, the Pineville Lumber Company, Inc., from whom Malpass or Betty Joyce Lumber Company leased the sawmill and premises, filed suit No. 22,146, wherein it sought to enforce its lessor’s lien for twenty-three months at $100 per month, or $2,300.

On May 28, 1931, John P. Johnson, a laborer appearing in his own behalf for wages due him individually and as assignee of a number of other laborers, intervened in both suits Nos. 22,136 and 22,146, and prayed that his laborer’s lien on all logs, lumber, and manufactured products for wages for himself, as well as for the various. assignors named in his petition, be recognized as superior to all other claims against the defendant.

On June 23, 1931, Pineville Lumber Company, Inc., intervened in suit No. 22,136, styled Joseph T. Ryland et al. v. Betty Joyce Lumber Company, and prayed that its lessor’s lien and privilege be recognized as superior to all other claims against the defendant.

Under the writ of attachment in suit No. 22,136, Joseph T. Ryland et al. v. Betty Joyce Lumber Company, there was. seized two saws, some cross-ties and some lumber. On June 23, 1931, the plaintiffs in both suits and all the interveners appeared in suit No. 22,136 and prayed that all the property seized be sold at once by •the sheriff pending the outcome of the various claims, and that the proceeds, of the sale be held subject to the judgments thereafter to be rendered. In this petition it was admitted that no .one but the landlord was claiming a lien and privilege on the saws, and it was asked, therefore, that these be appraised and sold separately from the lumber and cross.-ties on which all the parties were pressing conflicting claims. Pursuant to this joint petition, the necessary order was signed and the property was sold for the following amounts, to-wit: Saws, $80; cross-ties, $33.35; lumber, $500.

The two cases and all the interventions were put at issue by the necessary appearances and answers. On November 5, 1931, by consent of counsel for all parties concerned, the cases, were consolidated and tried as one case.

In suit No. 22,136 judgment was rendered in favor of all the plaintiffs against the defendant in the amounts prayed for. The demands of the interveners John P. Johnson et al. were rejected. There was further judgment in favor of the intervener Pineville Lumber Company, Inc., maintaining its provisional seizure and recognizing and enforcing its lessor’s lien and privilege on all the seized property as being superior to any lien or privilege that the plaintiffs might have, and the sheriff was ordered to pay to it all the proceeds of the sale of the property by preference. and priority over the plaintiffs.

In suit No. 22,146 there was judgment in favor of the plaintiff Pineville Lumber Company, Inc., against the defendant H. Malpasss, for the sum of $2,300, payable at the rate of $100 per month on the 23d day of each month, beginning May 23, 1931, and maintaining the writ of provisional seizure and recognizing and enforcing plaintiff’s lien and privilege as lessor on all the property seized. The judgment specially declared plaintiff’s lessor’s lien ■to be superior in rank to the lien and privilege asserted in the intervention of John P, Johnson, and the demands of the intervener were rejected. It was specially ordered that the proceeds of the sale of the seized property be paid by the sheriff to the plaintiff by preference and priority over all other persons and particularly the interveners.

Orders of devolutive appeal were granted to the plaintiffs Joseph T. Ryland et al„ in suit No. 22,136, and to John P. Johnson, intervener in both suits. By consent of all parties, all appeals were combined in one record.

OPINION

It is conceded by the appellants that the lessor’s lien on the proceeds derived from the sale of the saws is superior to that of the laborers. It is also conceded that the vendor’s lien asserted by those who furnished logs to the defendant is not enforceable. Therefore the. only question before us is whether the laborers’ lien on the manufactured products of the sawmill is superior to the lessor’s lien on the same products.

The laborers.’ lien asserted in this case is derived from Act No. 23 of 1912, amending Act No. 52 of 1910 and Act No. 145 of 1888. This act provides in part as follows:

“That all managers, mechanics or laborers employed by or working in saw mills, planing mills, shingle mills, sash, door and blind factories, hoop mills, stave and box manufactories, shall have a lien or privilege on all logs, square timbers or lumbers, shingles, sashes, doors, blinds, hoops, staves, boxes and all material manufactured in the saw mills, planing mills, shingle mills, sash, door and blind factories, hoop mills, stave and box factories, where such managers, mechanics and laborers are engaged, or employed, for the payment of their salaries or wages; provided that this lien or privilege shall have no effect against bona fide purchasers of the said material, without previous notice.” (Italics ours.) Section 1.

Counsel for appellants cite the case of Security Trust Company v. Bank of Bernice (C. C. A.) 239 F. 665, 668, in support of their contention that the laborers have a lien for the payment of their wages on the lumber manufactured in a sawmill where and when they are engaged and employed. In referring to this case in their brief they say:

“In this case the court held that a laborer’s lien and privilege primed that of a holder of a chattel mortgage on part of the lumber, even though some of the laborers’ claims were for wages due after the chattel mortgage had been placed on the lumber.’’ (Italics ours.)

This statement is erroneous and inaccurate. As we interpret the ease, it holds directly the opposite. In passing upon the question as to whether any claim for labor arising subsequent to the recordation of the chattel mortgage would be superior to the chattel mortgage, the court said:

“This being true, we think the respective rights of the parties should have been limited to and worked out through the specific lumber covered by the chattel mortgage. The intervener should be charged with whatever prior liens or privileges the lumber covered by the chattel mortgage was subject to, when the intervener recorded its chattel mortgage on December 27, 1913. It was not chargeable with any lien or privilege, which the balance of the lumber then on the yard (not included in the chattel mortgage) or of logs subsequently manufactured into lumber, was subject to. We, therefore, think that the method of working out the equities of the parties through thp mass of logs and lumber that came into the receivers’ possession, instead of confining it to the lumber mortgaged in terms to the intervener was an erroneous one. The intervener lent its money on the security of certain lumber then in existence, described in its chattel mortgage. The question is what liens, if any, were on this specific lumber on December 27, 1913, when intervener took its chattel mortgage. Such, if any, as were, ranked the lien of the chattel mortgage. No subsequent ones could do so, nor could any liens, prior or subsequent, on lumber other than that described in the chattel mortgage. * *
“Under this legislation, the manufactured lumber covered by intervener’s, chattel mortgage was subject to a lien in favor of such managers, mechanics, and laborers as contributed to convert that specific lumber-from standing timber into manufactured lumber, at least as soon as the conversion was complete. At the time -the intervener’s chattel mortgage was executed and recorded, the timber described in it had been so converted, and was therefore then subject to such labor liens. The intervener, therefore,- took as its security, not the lumber, but the equity in it over and above the labor liens that had theretofore attached to it.”

If there had been no chattel mortgage on a portion of the lumber in the above-cited case, the laborers’ liens would have ranked first on all the lumber on the premises, but, since the lien created by the recordation of the chattel mortgage primed all liens subsequently arising, the lumber described in and subject to the chattel mortgage was not subject to the laborers’ lien unless there should be a surplus left after satisfying the chattel mortgage. The recordation of the chattel mortgage cannot affect a lien that has already accrued. So the recordation of this chattel mortgage could have no effect on a lessor’s lien. If the sawmill in question had been on leased premises, it could not be held that the recordation of the chattel mortgage cquíd in any manner affect the claim of the owner for his rent for the reason that the lessor’s lien would have already attached. In fact, this lien would have attached before any labor could have been performed to convert the logs into lumber. So, if the recordation of a chattel mortgage can and will defeat all subsequently arising laborers.’ liens, but cannot in the remotest degree affect the lessor’s lien already accrued, by the same process of reasoning, the laborers’ lien does not and cannot affect the lessor’s lien which attached to the logs out of which the lumber was manufactured as soon as they were placed upon the leased premises.

Counsel also cite the case In re Pleasant Hill Lumber Company, 126 La. 743, 52 So. 1010. In that case there was no question of the relative rank of the lessor’s and laborers’ liens. No lessor’s lien was involved. All the court did was to recognize the lien as provided in the statute as against ordinary creditors. The receiver was endeavoring to defeat the strict enforcement of the laborers’ lien by a so-called agreement under which he was contending that the laborers had waived their lien accorded to them by the statute, and the court rightfully refused to support him in this, contention.

Counsel rely very strongly upon article 3267 of the Revised Civil Code, which reads as follows:

“If the movables of the debtor are subject to the vendor’s privilege, or if there be a house or other work subjected to the privilege of the workmen who have constructed or repaired it, or of the individuals who furnished the materials, the vendor, workmen and furnishers of materials, shall be paid from the price of the object affected in their favor, in preference to other privileged debts of the debtor, even funeral charges, except the charges for affixing seals, making inventories, and others which may have been necessary to procure the sale of the thing.”

This article of the Code was cited in the case of Carroll Lumber Company v. Davis, 133 La. 416, 63 So. 93, in which it was. expressly held that the lessor’s lien is superior to the privilege of the furnisher of material. The question of the relative rank as between the lessor’s lien and that of laborers is not presented in the case, but by analogy the same holding would apply. Furthermore, this article of the Code does not refer to all workmen, but it is restricted to those who work on a “house” or “other work.” This “other work” is something “constructed or repaired,” and it cannot be said that lumber manufactured in a sawmill has been either “constructed or repaired.”

The rights of the laborers in this case are derived solely from Act No. 23 of 1912, and not from article 3267 of the Civil Code, which is cited by counsel. It is freely admitted that they have a privilege on the lumber manufactured in the sawmill, but, unless there is authority in the act creating the lien giving it a right superior to other liens already provided for before the enactment of this statute, those liens will be held to be superior. Article 3258 of the Revised Civil Code provides as follows:

“But the lessor has a preference on the price of these movables, over all the other privileged debts of the deceased, such as expenses of the last illness and others which have a general privilege on the movables.”

This article plainly provides that the lessor’s lien is superior to all other privileged debts. This is true in all cases except where special exceptions are made. An example of such exception is found in article 3259, which provides that:

“With regard to the crops which are subject to the lessor’s privilege, the expenses for seed and labor, the wages of overseers and managers, are to be paid out of the product of the year, in preference to the lessor’s debt. So, also, he who supplied the farming utensils, and who has. not been paid, is paid in preference to the lessor out of the price of their sale.”

Under this provision the farmers’ lessor’s lien is not outranked on anything found on the leased premises other than those items specially mentioned, viz., the product of the year and the utensils which may not have been paid for. Counsel for appellees have cited several articles of the Code and have discussed them by comparison in order to show the superior rank of the lessor’s lien. We think that article 3258 is conclusive, and that it is useless to discuss the various articles dealing with the relative rank of other general privileges.

It is contended that it is an outrageous travesty on justice for laborers to be deprived of their right to look to the product of their own hands for relief. It is a hard situation which we cannot remedy. That situation, however, is no harder than it would be if the owner of the premises and machinery were required to contribute the use of his investment solely for the sake of providing wages for those who work through choice, depending upon the hope that their employer would, through their labor, earn enough to pay wages after paying the owner for the use of his equipment. Article 3263 provides that the lessor’s. lien shall prevail even over the vendor’s lien. This, too, seems hárd, and vendors without exception condemn it as being worse than outrageous. It must be remembered that all liens are strictly construed and enforced.

Since it is clear that the law has clothed the lessor’s lien with a superior rank, it must prevail over the lien contended for by the appellants.

For the reasons assigned it is ordered, adjudged, and decreed that the judgments appealed from be, and they are, hereby affirmed; it is further ordered that the costs of this appeal be paid by the appellants, and that the costs of the lower court be paid as. decreed in the said judgments.