text:
    No. 3211
    Second Circuit
    CARTER v. COLFAX LUMBER & CREOSOTING CO. ET AL.
    (November 8, 1928. Opinion and Decree.)
    (December 19, 1928. Rehearing Refused.)

      J. W. Jones, Jr., of Natchitoches,' attorney for plaintiff, appellee-.
    Pujo, Bell and Hardin, of Lake Charles, attorneys for defendant, appellant.
   ODOM, J.

Plaintiff brings this "suit for compensation under the Workmen’s Compensation Law, as finally amended by Act 85 of 1926. He alleges that the Colfax Lumber and Creosoting Company owns and operates a sawmill 'at Colfax, Louisiana, and that it employed Tom, Matkins to cut and deliver on the railroad cars at or near Clarence station, in Natchitoches Parish, Louisiana, certain logs belonging to them, at a stipulated price per thousand feet; that he was employed by the said Matkins to assist in the cutting and loading said logs on the railroad, and that, while so employed, he suffered an injury to his right leg, which injury has totally and permanently incapacitated him to perform labor of a reasonable character, and he asks full compensation for 400 weeks.

Plaintiff bases Ms right to recover compensation from the Colfax Lumber and Creosoting Company on Section 6, Act 85 of 1926, which reads as follows:

“That where any person (in this section referred to as principal) undertakes to execute any work, which is a part of his trade, business or occupation or which he had contracted to perform, and contracts with any person (in this section referred to as contractor) for the execution by or under the contractor of the whole or any part of the work undertaken by the principal, the principal shall be liable to pay to any employee employed in the execution of the work or his dependent any compensation under this act which he would have been liable to pay if that employee had been immediately employed by Mm; and where compensation is claimed from or proceedings are taken against the principal, then, in the application of this act, reference to the principal shall be substituted for reference to the employer, except that the amount of compensation shall be calculated with reference to the earnings of the employee under the employer by whom he is immediately employed * *

One of the defendants, Tom Matkins, made but a nominal defense, and, as he has not appealed from the judgment rendered against him, the same is final as to him.

The question befQre this Court is whether the Colfax Lumber and Creosoting Company is liable to plaintiff.

The defense which it makes is that there were no contractual relations between it and the plaintiff; that it had a contract with Tom Matkins to purchase logs from him at so much per thousand feet, delivered on the railroad, and that it did purchase and pay for the logs which were being loaded by the plaintiff at the time he wás injured, and that, under the law and jurisprudence, the plaintiff was in no sense its employee.

In support of that contention, its counsel cite and rely upon the case of West vs. Martin Lumber Company et al., 7 La. App. 366, and the case of Morrison vs. Weber-King Mfg. Company, 6 La. App. 388. In the case of West vs. Martin Lumber Company et al., supra, it was held that under Section 6 of the Workmen’s Compensation Law, as amended by Act 85 of 1926, a lumber company is not liable to pay . compensation for the employee of ■ a person from whom it purchased logs, the relation of master and servant being nonexistent. To the same effect is the holding in the case of Morrison vs. Weber-King Mfg. Company. These cases would be sufficient authority to support defendant’s contention and relieve it of liability if the facts showed that it was the purchaser of the logs from Tom Matkins. In the West vs. Martin Lumber Company et al. case, supra, the Court found as a fact that the lumber company was a purchaser of a commodity prepared and .supplied by another; that the sale of the logs was only made and perfected after the logs were hauled to the place of delivery, were scaled and the price agreed upon. In the Morrison vs. Weber-King Mfg. Company case, supra, the Court found as a fact that the defendant had contracted to buy the saw logs, delivered on the skidder at its mill, for a consideration of $10.00 per thousand and that the defendant had no interest in the logs as owner, or otherwise, until they were delivered and paid for at its mill, and that it was simply buying a commodity which was owned, prepared, transported and delivered by a man named Robinson.

The facts in the case at bar, clearly distinguish it from the two cases cited and relied upon by the defendant. The defendant, Colfax Lumber and Creosoting Company, owns and operates a sawmill at Colfax, Louisiana. As a part of its business in operating this sawmill, it was, and had been for a number of years, its custom to buy timber and to employ Tom Matkins, its co-defendant, to cut, log and load said timber on the railroad. The testimony is not clear on the point as to whether it had any other persons to log timber in the vicinity where the timber involved in this litigation was situated, but we infer that practically all of the timber which defendant had purchased in that vicinity had been cut and logged for the defendant by Tom Matkins. The testimony shows that for a period of some two or two and one-half years Matkins had owned his own logging outfit, had cut, hauled and loaded logs for the defendant, and that his compensation therefor was generally $10.00 per thousand feet. Matkins, according to his testimony, considered all along that he was an employee of defendant company for that purpose. The defendant’s custom, it appears, was to buy standing timber and take in its own name a deed therefor, and then to employ Matkins to log the timber for it. Under such circumstances, we think it clear that under Section 6 of Act 85 of 1926, the defendant would be liable for compensation to an employee of Matkins who was employed to execute contracts which were a part of defendant’s business.

But, the defendant, Colfax Lumber and Creosoting Company, attempts to draw a distinction between such cases and the case at bar, the distinction being that Tom Mat-kins himself purchased this particular timber from the owner, Airey, and that it agreed to pay Matkins $20.00 per thousand for the timber loaded on the cars.

The testimony of Mr. Lagrone, Manager of the defendant lumber company, is to the effect that he agreed to pay Tom Mat-kins the stipulated sum of $20.00 per thousand for timber loaded on the railroad track; that he had nothing whatever to do with the purchasing of this timber from Airey, owner thereof; and that his dealings with Matkins, with reference to this particular timber, were as.follows: The company paid to Airey, the owner of the timber, $10.00 per thousand feet for the stump-age and $10.00 per thousand feet to Matkins for the cutting, logging and loading of said timber; that his ledger shows that he charged Matkins with the stumpage of the timber at $10.00 per thousand, which it paid Airey, and $10.00 per thousand, which it paid Matkins for handling the logs, and that it gave him credit for the logs, delivered, at $20.00 per thousand. Lagrone further testified that the agreement that $10.00 per thousand should be paid to Matkins, and a like sum to Airey for the stumpage of the timber, was made at a conference between the three in his office at Colfax, Louisiana.

The testimony of Matkins, with reference to the transaction, is that he went to Airey and arranged with him for his timber at $10.00 per thousand; and, while his testimony is somewhat conflicting as to whether he was representing the defendant company in the purchase of the timber, his testimony, as a whole, shows that, while he personally made arrangements with Airey for his timber at $10.00 per thousand, he was, in doing so, making the purchase for the defendant company and that he was, in effect, acting as its agent. On that point, he stated that he Had been the agent and in the employ of the defendant company for several years, and was asked if he had bought the Airey timber for it, and he answered:

“A. I didn’t say that, did I?"

He was then asked:

“Q. You were their agent and representative, were you not?
“A. Yes, sir, I was working for them at the time I bought it.
“Q. And you were after getting them what timbers you could?
“A. Yes, sir.
“Q. And you got these timbers for them?
“A. Yes, sir.
“Q. And you shipped them where they instructed you to ship them?
“A. Yes, sir, I shipped them to Fred Bremen Lumber Company.
“Q. And you didn’t have anything to do with paying for the stumpage?
“A. No, sir.
“Q. The paying for the stumpage was looked after and attended to by the Colfax Lumber and Creosoting Company altogether?
“A. Yes, sir.
“Q. And you were paid $10.00 per thousand to cut them and put them on the railroad cars?
“A. Yes, sir.”

On further examination by Mr. Hardin, attorney for defendant company, he stated that he was present when a check was issued to Airey by the defendant company for the stumpage, and that he carried Mr. Airey to the office of the lumber company for the purpose of getting his check; and he was' asked:

“Q. Why did you carry him there?”

And he answered:

“A. Well, there was a little confusion come up about the scale and I told him I would carry him down there and settle up with him and turn the job loose.”

He further testified that he did not turn the job loose because all differences were settled.'

The testimony of Mr. Airey, with reference to the transaction, is that after some of his timber was cut and scaled by a man of the name of Caldwell, presumably representing the defendant company, he went to the Colfax Lumber and Creosoting Company’s office, accompanied by Mr. Matkins, for the purpose of receiving pay for the stumpage, and that he was paid by the company. He testified that when the logs were cut, they were scaled by Mr. Caldwell, and the. scale ticket delivered to Mr. Matkins, and he stated:

“These checks in payment of these timbers were issued on the scale ticket of the inspector at the time of the scalage and they were branded by the inspector, Mr. Caldwell, and this scalage ticket that he left on the ground with Mr. Matkins was the cash order or the same as a cash order to the Colfax Lumber and Creosoting Company for the money.”

With reference to the testimony of Tom Matkins, it is noted that, while on direct examination, he was asked by whom he had been employed for the last two or three years, and he stated, by the Colfax Lumber Company; and, asked in what capacity, he stated that he was hauling by the thousand; and was asked the following:

“Q. They were to pay you $10.00 to haul Airey’s timber?”

And he answered;

“A. Yes, sir.”

Taking the testimony as a whole, construing it altogether, our conclusion is that the defendant lumber company was not purchasing this timber from Tom Mat-kins at so much per thousand, but that Matkins was an employee of the defendant lumber company to log this particular timber, at so much per thousand feet, and that the defendant company was logging its mill through Matkins, as an employee. As we have already stated, Matkins said that he bought the Airey timber for the defendant company, and it is admitted that the stumpage price was paid to Airey by the defendant. We can see no essential difference between a case of this kind and a case where the stumpage was purchased by the defendant under a deed and Matkins employed to cut and log it.

The District Judge correctly held, we think, that the defendant logging company is liable to the plaintiff who was employed by Matkins.

We think it unnecessary to discuss the case further, as the District Court awarded compensation in accordance with the testimony which is clear as to the plaintiff’s injuries and the extent of his disability.

For the reasons assigned, it is ordered, adjudged and decreed that the judgment appealed from is affirmed, with costs in both courts.

REYNOLDS, J., dissents.


source: Caselaw Access Project

author: WEBB, J.

license: Public Domain

text:
    No. 3308
    Second Circuit
    REICHLER, FAIRLEY AND POSSOIT v. SOUTHWESTERN GAS & ELECTRIC CO.
    (November 8, 1928. Opinion and Decree.)
    (December 19, 1928. Rehearing Refused.)
    (January 28, 1929. Writ of Certiorari and Review Refused by Supreme Court.)
    Vernis Morgan and George Naff, of Shreveport, attorneys for plaintiffs, appellants.
    Wilkinson, Lewis & Wilkinson, of Shreveport, attorneys for defendant, appellee.
   WEBB, J.

The plaintiffs, J. P. Reichler, J. A. Fairley, and Vernon Possoit, instituted suit against the defendant, Southwestern Gas & Electric Company, to recover compensation for disability alleged, to have resulted from injuries received by them while employed by the defendant and arising in the course of and out of their employment. The injuries were alleged to have been received at the same time and under the same circumstances, and the defenses set up to the suits being practically the same, they were consolidated, and on trial judgment being rendered against plaintiff they joined in an appeal.

Plaintiffs were painters in the employ of defendant, and, on or about August 17, 1927, they were engaged in painting the inside of a steel tank, and they allege that while in the course of the work they inhaled poisonous fumes given off from the paint, which is alleged to have contained coal tar and creosote, causing them to become dizzy and burning the nasal passages and respiratory organs, which had resulted in causing them to become nervous, weak and unable to breathe normally, and totally disabling them to do any work of a reasonable character, to which defendant excepted that the petitions failed to state a cause of action, which was referred to the merits, and defendant then answered, alleging that plaintiffs had not made any complaint to any officer or agent of the company within six months after the alleged accident, and denying that plaintiffs had received any injury or that they were disabled.

Each of the plaintiffs stated that on the date alleged and while they were engaged in painting the tank with a paint containing coal tar and creosote, they had inhaled the fumes, causing them to become dizzy, and one of their number, Mr. Reichler, to become asphyxiated, rendering it necessary for them to quit work for some minutes, after which they returned to the work and completed the painting.

They each stated that several days after they had inhaled the fumes they expectorated blood and mucus and that since they had suffered with shortness of breath and periods of suffocation and that their condition had gradually grown worse until about the time of the suit, on January 27, 1928, when their condition (was such that they could not follow their occupation or stand confinement in any close place and were unable' to do a day’s work due to shortness of breath, nervousness, and their weakened condition, which conditions continued and existed at the date of the trial, in March, 1928.

Plaintiffs produced a sample of the paint which they claimed had been used by them in the work, which was analyzed by a chemist and found to contain coal tar or pitch, which would give off poisonous fumes of such character, if inhaled, as would cause the nasal passages and respiratory organs to become irritated, and they also produced radiographs of their bronchial tubes and lungs which showed a fibrous condition of those organs which the physicians called by plaintiffs stated was sufficient to produce the ailments of which plaintiffs complained and to partially disable them, and which condition the physicians stated could have been produced by inhaling poisonous fumes of the character given off by paint having the base of the sample produced by plaintiffs and analyzed by the chemists, but the physicians also stated that the condition of the respiratory organs of the plaintiffs could have been produced by disease, such as heart trouble, influenza, and pneumonia.

On the other hand, defendant produced witnesses who testified that the paint used in the work was not of the character of that of the sample produced by the plaintiffs, and, an analysis of samples of the paint scraped from the tank which was made hy chemists representing defendant as well as the chemist representing plaintiffs showed it was an entirely different paint from that of the same produced by plaintiffs and concededly would not give off fumes which would ordinarily tend to cause any irritation of the nasal passages and respiratory organs but would, as other fumes from paints, sometimes cause dizziness, which would pass away without leaving any effect, and defendant also called physicians who did not regard the condition of plaintiffs’ respiratory organs as revealed by the radiographs as serious as those called by the plaintiffs, and while they concurred with the physicians called by the plaintiffs as to the cause of the condition, that is, that it could . have been produced by inhaling poisonous gases of the character which would be given off by fumes from paint such as the sample produced by plaintiffs, as well as diseases, such as a decompensating heart, tuberculosis, influenza, and pneumonia, they were of the opinion that the condition was the result of such diseases, as their examination showed that Fairley had a decompensating heart, and the radio-graph revealed that he had had tuberculosis, and concededly both Reichler and Possoit had influenza before the radio-graphs were taken, having been treated by one of the physicians during their illness with that disease, and Possoit also admitted that he had had pneumonia.

The preponderance of the evidence concededly established that the paint used by the plaintiffs was not of the- character of the sample produced by them, nor of such character as that the fumes given off therefrom would ordinarily cause more than a temporary dizziness, and the physicians agreed that where the fumes were sufficient to have caused such an irritation as to result in the fibrous condition of plaintiffs’ respiratory organs, there would be immediate disability lasting for several days, which was admittedly not the case ' in the present instance, as the plaintiffs continued in their employment with defendant from the date of the alleged accident until the 24th of December, 1927, when they were let out, due to the fact that defendant did not have any work for them, and during that period, from the date of the alleged accident to December 24, 1927, plaintiffs apparently were able to do their same work as before, at the same wages and without any complaint insofar as the record shows.

The theory of the plaintiffs that they had received an accidental injury by their respiratory organs being burned or "irritated by poisonous fumes given off from the paint which they were using, was, we think, disproved by the evidence establishing that the paint used by them would not ordinarily have a tendency to cause such injury, and by the evidence showing that if such injury had been sustained that immediate disability would have followed, which was admittedly not the case, and while it may be that the defendants were disabled to some extent, as they testified they were, the evidence shows that if such was the case, that the cause of their disability resulted from diseases with which they had been afflicted, which the evidence does not show was attributable to or aggravated by any injury received in their employment.

~The judgment appealed from is therefore affirmed at plaintiffs’ cost.


text:
    No. 3300
    Second Circuit
    NEWMAN v. VELLA
    (January 21, 1929. Opinion and Decree.)
    Joffrion and Joffrion, of Marksville, attorneys for plaintiff, appellant.
    W. E. Couvillon, of Marksville, attorney for defendant, appellee.
   WEBB, J.

Plaintiff, S. W. Newman, alleging that a three-fourths interest in a crop of fifteen acres of corn belonging to him had been seized and sold by defendant, Lucas Vella, in the suit of Lucas Vella (defendant here) versus S. W. Newman (plaintiff here) on the docket of the District Court for the parish of Avoyelles, over his, Newman’s protest, in which he claimed that the property was exempt from seizure and sale under the homestead law, (Const. 1921, Art. 11), brought this action to recover damages alleged to have been sustained, and he appeals from a judgment sustaining an exception of no right or cause of action and dismissing his suit.

The claim that the property was exempt is based upon the constitutional provision (section 1, article XI, Constitution of 1921) which grants to—

“Every head of a family, or person having a mother or father or a person or persons dependent on him or her for support”

the- right to claim an exemption of certain designated property of a value not exceeding two thousand dollars, among'which property, where the claimant is a farmer, there is included the necessary corn, fodder, etc., for the current year, and the only questions presented by counsel are whether or not the petition shows that plaintiff was the head of a family with a person or persons dependent on him for support, and, if so, whether the exemption attached to the property seized and sold.

While the plaintiff does not specifically allege that he was either the head of a family or that he had persons dependent on him for support, he does allege that he “was a married man with dependents” and considering that allegation with other allegations, that he did not own other property, and with the recognized rule that a family may consist of the husband and wife alone (Homestead, R. C. L., vol. 13, page 552, No. 12), and the .law which recognizes the husband as the head of the family and the obligation of the husband to support the wife, we think the petition shows that plaintiff1 was the head of a family, within the meaning of the provision, granting the homestead exemption to every head of a family, and that it was not essential for him to allege that his wife was dependent on him for support, as the presumption is that she was so dependent (see Garner vs. Freeman, 118 La. 184, 42 So. 767, 118 Am. St. Rep. 361).

Relative to the question of whether the petition shows that the property was exempt from seizure and sale, the petition is somewhat vague as to the nature of the property seized; that is,‘whether it was plaintiff’s right in the crop, or an undivided interest therein. However, in argument and brief counsel apparently concede that the property was the undivided interest of plaintiff in the crop, and while conceding that it is well established that the homestead exemption does not attach to the undivided interest of the claimant in real estate (Bank vs. Stansbury, 110 La. 301, 34 So. 452, and authorities cited; Caire vs. Hickox, 136 La. 803, 67 So. 887), it is contended that the rule should not he applied to movables or the interest of a tenaht in a crop of corn cultivated by him under a lease contract.

One of the reasons given why the homestead exemption does not attach to property owned in indivisión is that the claimant cannot designate any certain part of the property as belonging to him, and as the same is true of movables as well as immovables, there does not appear to he any reason why the general rule should not he applicable to the one as well as the other, and it being conceded that the property seized was the undivided interest of plaintiff in the crop, and it not being suggested that the seizure was ineffective, the partition made after that time to which the seizing creditor was not a (party, could not affect his rights or render the portion of the crop thus set aside for plaintiff subject to the exemption, as the rights of the parties, and the question as to whether the exemption attached must be determined as of the date of the seizure (Borron vs. Sollibellos, 28 La. Ann. 355; Cole vs. LaChambre, 31 La. Ann. 45; Bank vs. Stansbury, 110 La. 301, 34 So. 452; Garner vs. Freeman, 118 La. 188, 42 So. 767, 118 Am. St. Rep. 361).

The petition showing that the property seized and sold was an undivided interest, the homestead exemption did not' attach to such property, and plaintiff cannot recover damages alleged to have resulted from a seizure and sale of such property.

The judgment appealed from is therefore affirmed.


text:
    No. 3342
    Second Circuit
    STATE OF LOUISIANA EX REL. McCLANAHAN, SHERIFF, v. RIDGEWAY
    (December 19, 1928. Opinion and Decree.)

      Harry Fuller, of Winnfield, attorney for plaintiff, appellee.
    C. P. Thornhill, of Columbia, attorney for defendant, appellant.
   WEBB, J.

The plaintiff, sheriff of the Parish of Caldwell, seized certain goods and merchandise belonging to defendant, Ridgeway, constituting his stock from which he was ¡peddling, while traveling in a motor- vehicle in the said parish, and delivered the seized property to the District Court of Caldwell Parish, and following, the Sheriff proceeded by rule against defendant to recover judgment for the amount alleged to be due the State and Parish for peddler’s license, together with a penalty or fee of twenty-five dollars, and for recognition of a privilege for the amount claimed on the merchandise seized and in the custody of the Court.

Defendant excepted to the citation on the ground that the Sheriff was interested to the extent of the penalty claimed, and that the service of the rule made by him through his deputy was void, under the provisions of Article 772, C. P., which being overruled, he alleged that he was a resident of and domiciled in the Parish of Ouachita, and that the Court was without jurisdiction ratione personae, which was tried and sustained as to the demand for personal judgment.

Following defendant answered, pleading in effect a general denial, and the cause being tried and submitted, judgment was rendered for the amount prayed for, the judgment being restricted, however, as to its effect to the ¡property seized and in the custody of the Court, from which judgment defendant appealed, urging that the Court erred in overruling his exception to the citation and in failing to sustain the exception to the jurisdiction.

The exception to the citation was based on the theory that the Sheriff had an interest in the penalty, ■ and, therefore, that under the provisions of Article 772; of the Code of Practice, reading:

“The coroner is appointed to perform the duties of the sheriff, where that office is vacant, either by the death, resignation, or removal of the incumbent, until a successor has been appointed.
“The coroner also discharges the duties of the sheriff, whenever the latter is interested in a cause.”

The citation was void.

The statute, paragraph (B), Section 18, Act 205 of 1924, as amended by Act 299 of 1926, provides that the sheriff, or other officer, seizing the merchandise of one engaged in ¡peddling, who should fail to produce his license on demand, should receive a fee of $25.00, to be paid out of the merchandise seized. But the general law, Act 156 of 1920, which provides for the salaries to be received by the sheriff, provides that he shall account for all fees allowed him by law to the parish, and the fee which he claimed, we think, was one for which he would have to account, as it was due by reason of the performance of a duty imposed upon the Sheriff by law, and therefore it cannot be said that the Sheriff was interested in the cause within the meaning of the law, requiring that in such cases service should be made by the coroner.

The exception to the jurisdiction was based upon Article 162, of the Code of Practice, which provides that one must as a general rule be sued before the Court having jurisdiction over the place of his domicile.

However, there áre many exceptions to the general rule, dependent upon the nature of the action, and in the present instance, there were three causes of action: one for the license due the State, one for the license due the Parish, and another for the fee due the Sheriff. The latter was due by reason of the Sheriff having made the seizure of the merchandise of the defendant and delivering it into the custody of the Court, and was payable out of the property; and we are of the opinion that the demand for payment of the fee or penalty was properly brought before the Court having jurisdiction over the place where the property was seized and custody of the property out of which the payment was'to be made. As to claim for licenses due the Parish and State, the evidence shows that defenda'nt was conducting the occupation for which the licenses were claimed in the Parish of Caldwell, and in default of evidence showing that he was also carrying on the occupation in the parish of his domicile, or that he had paid the license in such parish, we are of the opinion that the claim for the State license, as well as the Parish license, was properly instituted in the Parish of Caldwell.

“A person may be compelled to pay a license tax in any parish where he is carrying on his profession or calling, whether it be his domicile or not, unless he can show payment in the parish of his domicile.” Copella vs. Carradine, Sheriff, 19 La. Ann. 305.

In the present instance while the judgment was in rem bearing only against the property seized and in the custody of the Court, the action was for a personal judgment for the amount of the license taxes, and plaintiff, having acquiesced in the judgment, defendant did not have any cause to complain.

The judgment appealed from is therefore affirmed.


text:
    No. 3454
    Second Circuit
    SHERWOOD v. TICHELI
    (January 21, 1929. Opinion and Decree.)

      Hudson, Potts, Bernstein and Sholars, of Monroe, attorneys for plaintiff, appellant.
    McHenry, Montgomery, Lamkin and Lester, of Monroe, attorneys for defendant, appellee.
   WEBB, J.

This action, which arises out of the same automobile collision as that considered in the cause of Mrs. S. B. Sherwood versus the same defendant, No. 3453 on the docket of this court, and this day decided, (120 So. 107), is brought by S. B. Sherwood, individually and as the representative of his minor child, Mary L. Sherwood. Damages are claimed on behalf of S. B. Sherwood for repairs of the automobile, alleged to have been incurred by plaintiff, and expenses for physicians’ fees, sanitarium charges, and radiographs made to ascertain the extent-nf injuries sustained by Mrs. Sherwood and Mary L. Sherwood, and for injuries sustained by Mary L. Sherwood. On trial the demands of plaintiff being rejected as to all ■ of the claims, with the exception of the claim for- re■pairs of the automobile, plaintiff appeals.

The claim on behalf of Mary L. Sherwood was based on the allegation that she had sustained a fracture of the skull, which would in time cause serious trouble, but the preponderance of the evidence does not show that her skull was fractured, nor does the evidence show that the child has suffered any injury, but, on the contrary, it shows that she has been normal in every respect since the accident, and even if the evidence had shown that a fracture of the skull had been sustained, it is conclusively shown that it had healed, and there could not be any allowance for damages for future disability, which may or may not occur, when, the injury did not produce any present disability. Louisville S. R. Co. vs. Minogue, 90 Ky. 369, 14 S. W. 357, 29 Am. St. Rep. 378; Briggs vs. New York Cent. & H. R. Co., 177 N. Y. 59, 69 N. E. 223, 101 Am. St. Rep. 718.

Relative to the claim for expenses incurred by the plaintiff for physicians’ fees and charges for radiographs, the evidence shows that the charges were principally for services rendered in connection with examinations made with the view of obtaining evidence of the extent of the injuries sustained by Mrs. Sheriwood and Mary L. Sherwood to be used in the actions brought by them to recover damages, and it is impossible to distinguish the expenses incurred by plaintiff for the attendance and services of physicians for treatment of his wife and child, and those incurred in furtherance of the actions for damages, and the Court properly refused to allow anything on the claims for alleged expenses; however, as the evidence shows that some expense was incurred by ¡plaintiff for the attendance and services of physicians who were called to attend his. wife and child following the a-ccident which may he distinguished from the expenses incurred in furtherance of the actions for damages, we think the plaintiff’s right to recover for such expenses should have' been reserved, and that the judgment should be amended so as to preserve plaintiff’s right to claim such expenses, and the judgment appealed from is amended so as to reserve to plaintiff his right to claim such expenses, and as amended it is affirmed at appellant’s cost.


author: ODOM, J.

text:
    No. 3315
    Second Circuit
    LAVIGNE v. LA. RY. & NAV. CO.
    (November 8, 1928. Opinion and Decree.)
    (December 19, 1928. Rehearing Refused.)
    (January 28, 1929. Writ of Certiorari and Review Refused by Supreme Court.)
    Harry V. Booth and Hoye Grafton, of Shreveport, attorneys for plaintiff,, appellant.
    ' Wise, Randolph, Rendall & Freyer, of Shreveport, attorneys for defendant, appellee.
   ODOM, J.

On May 26, 1927, George Lavigne brought suit against the Louisiana Railway & ■ Navigation Company for $21,-500.00, for personal injuries. Issue was joined by answer of the defendant on June 11, and the case went to trial on June 28, following. After the testimony had all been introduced and before judgment had been rendered, T. R. Hicks, on October 11, 1927, presented an application to the court setting up that he had purchased from the plaintiff, Lavigne, “all his right, title and interest in this suit, as will more fully appear by notarial act hereto annexed and made a part hereof, and he shows that he should be substituted as party plaintiff herein. Wherefore, he prays that an order issued by the Court, substituting him as party plaintiff herein, with all the rights of his vendor, the said George Lavigne.” On the same day, the Judge of the District Court signed an order as follows:

“That T. R. Hicks be and he is hereby substituted party plaintiff herein.”

The document referred to; in Hicks’ application to be substituted as party plaintiff in -this suit and under which he had alleged that he purchased the plaintiff’s rights therein, and which 'was annexed to and made a part of his application, is notarial in form and reads as follows:

“State of Louisiana,
“Parish of Caddo.
“Before me, the undersigned authority, personally came and appeared George Lavigúe, who declared unto me that he does by these presents grant, bargain, sell, convey and assign unto T. R. Hicks all his right, title and interest in that certain suit on the Civil Docket of the First Judicial District Court in and for Caddo Parish, Louisiana, entitled George Lavigne vs. The Louisiana Railway & Navigation Company, bearing No. 45,803, on the docket of said Court, for and in consideration of the sum of Three Hundred, Fifty-eight and 82-100 ($358.82) Dollars, cash in hand paid, receipt of which is hereby acknowledged.
“Further conveying unto the said T. R. Hicks any and all his rights incidental to said suit of any nature whatsoever.
“Geo. Lavigne.
“WITNESSES:
“Hoye Grafton,.
“B. Cudd.
“Harry V. Booth, “Notary Public.”

On October 14, three days later, the defendant, Louisiana Railway & Navigation Company, in open court, tendered to the said T. R. Hicks the sum of $358.82, with five per centum interest thereon, this being the amount which the said Hicks paid for Lavigne’s right, and asked for judgment releasing it from the suit and dismissing the same. The amount was deposited in open court, subject to the order of the said Hicks. The defendant railway company made this offer of payment and tender in pursuance of the provisions of Article 2652 of the Civil Code, which reads as follows:

“He against whom a litigious right has been transferred, may get himself released by paying to the transferree the real price of the transfer, together with interest from its date.”

On October 17, the motion of defendant for judgment releasing it was argued before the Court and submitted on briefs to be filed. While the said motion was pending, the said T. R. Hicks, on October 18, filed what he termed an “answer” to the said motion in which he alleged that he was engaged in the grocery business in the city of Shreveport, and, during the months of July and August, 1927, he sold to the said George Lavigne groceries and meats on open account totalling the sum of $358.82; and that, whereas the said Lavigne did execute a notarial -act transferring the said suit to him for the purported consideration of $358.82, cash in hand paid, yet the consideration was not in fact paid in cash, but was to cover the amount of Lavigne’s indebtedness to him; and he prayed as follows:

“That this motion be set down for trial, and that upon trial hereof the notarial act before mentioned be reformed so as to show the true and correct consideration thereof, whereupon the defendant’s motion be dismissed.”

On the following day, October 19, Hicks filed a supplemental answer in which he alleged:

“Your mover further shows that the said notarial act evidencing a payment of cash was made through error and inadvertence and due to no fault on the part of your mover; that said instrument does not, as written, represent the true and actual contract between the parties and that the same should be reformed in order to show the actual agreement.”

In neither of the so-called answers to the defendant’s motion and application to be relieved from the suit was Lavigne, Hicks’ vendor, made a party, nor was there any request on the part of Hicks that he be brought into Court.

On October 22, the said George Lavigne, who had transferred his claim to Hicks, filed in Court what he termed a “supplemental petition” in which he alleged that, whereas the notarial act of transfer recited a cash consideration of $358.82, yet, as a matter of fact, he transferred the claim to Hicks in satisfaction of a debt which he was due him; and he further set up that, subsequent to the institution of his suit against the railway company, some of his other creditors had obtained judg•ment against him and were about to seize all of his rights in the said lawsuit; and that his attorney advised him that the only way.he could protect himself in the. premises, and protect the said T. R. Hicks, was to execute an instrument that would give the said Hicks security for his .account; and that, in accordance with the above advice by his attorney, he executed and signed the notarial act above referred . to; and he prayed that the said Hicks and the said Louisiana Bailway & Navigation Company be ruled to show cause why the said notarial act should not be declared null and void insofar as the same purports to be a sale of said suit.

The defendant railway company filed an exception' Of no cause of action as against Lavigne’s application, and, as against Hicks, it prayed estoppel. There was judgment in the lower court sustaining the exception of no cause of action and sustaining the plea of estoppel, and ordering that the defendant railway company be released from the suit. T. B. Hicks alone appealed.

OPINION.

The only question before the Court, .therefore, is whether T. B. Hicks, who purchased the rights of Lavigne in the said lawsuit, which is conceded to be a litigious right, is estopped to deny his judicial allegations to the effect that* he purchased the said litigious right for a cash consideration.

Under the plain letter of Article 2652, the defendant railway company had a right to have itself released by paying to Hicks the real price of the transfer, together with interest from the time of the payment. In order to avail itself of that right, it tendered and deposited the full amount which Hicks alleged that he had paid for the claim. After the amount was thus tendered, and, while defendant’s motion to be released was pending after argument, T. B. Hicks, the purchaser of the litigious right, attempted to avail himself of one of the exceptions contained in Article 2654 of the Civil Code, with reference to' the right of the party against whom a litigious right has been transferred, to-wit:

“When such right has been transferred to a creditor as a payment for a debt due to him.”

At the time the defendant railway company applied to be released from the lawsuit by paying to the transferree the real price of the transfer, its right to do so had fully accrued under the Article of the Code. It acted under this right and attempted to avail itself ’of this right. Under the pleadings and conditions, as they appeared at that time, and under the plain letter of the law, there was but one judgment the Court could render and that was to order Hicks to accept the tender, and the defendant released. Hicks had alleged in his application to be substituted as party plaintiff that he had purchased the lawsuit for $358.82, which he had paid in cash. Confronted with this situation and 'in order to extricate himself therefrom, Hicks sought to have the notarial act under which he purchased the suit “reformed”, so as to show that, as a matter of fact, he had not paid cash for the claim, but that he was a creditor of Lavigne and that the transfer had been made to him in satisfaction of his claim, and thereby reap the benefit of Article 2654 of the Civil Code, which provides that:

“The provisions of Article 2652 do not apply * * * (2) when such right has been transferred to a creditor as a payment for a debt due to him.”

In his efforts to have the said notarial act “reformed”, he did not make Lavigne a party, which, we think, would have been necessary in order to reform the document.

But, aside from that, we think the District Judge correctly held that Hicks, under the circumstances, was estopped to deny his judicial allegations that he had purchased the claim for a cash consideration. In order to avail himself of his right to be substituted as party plaintiff in this suit, he judicially alleged the fact to be that he had paid cash for the claim, and filed the notarial act evidencing the transfer. The general rule is that “he who judicially asserts a fact as a basis of a right, can not afterwards change his position and assert the contrary.”

F. & T. Insurance Co. vs. DeBlanc, 31 La. Ann. 100;

Folger vs. Palmer, 35 La. Ann. 743;

Bender vs. Belknap, 23 La. Ann. 764;

Walker vs. Walker, 37 La. Ann. 107;

Succession of Frazier, 33 La. Ann. 593;

State of La. ex rel. Breaux vs. Judges of Court of Appeal for Parish of Orleans, 34 La. Ann. 1220;

Denton vs. Erwin et al., 5 La. Ann. 18;

Delop vs. Windsor et al., 26 La. Ann. 185;

Gridley et al. vs. Conner, 4 La. Ann. 416.

In Gaudet vs. Gauthreaux, 40 La. Ann. 186, 3 So. 645, it was held that the law holds parties to their allegations of record and does not permit them to falsify what they hav.e solemnly declared to be a fact.

“The judicial confession is the declaration which the party, or his special attorney in fact, makes in a judicial proceeding.” C. C. 2291.

Hicks alleged in one of his so-called answers to defendant’s motion to be relieved, that the stipulations in the said notarial act with relation to the cash payment were inserted through error, but he did not state whether of law or of fact. If one of law, he can not be relieved; and it is inconceivable that his allegations were made in error of fact, because, being a party to the act, he knew the real consideration for the transfer. An error of fact is one “which proceeds either from ignorance of that which really exists, or from a mistaken belief in the existence of that which has none.” C. C. 1821.

Counsel for Hicks has cited many authorities which he thinks support his contentions and, among them, the case of Farley vs. Frost-Johnson Lumber Company, 133 La. 497, 63 So. 122, L. R. A. 1915A, 200 Ann. Cas. 1915C, 717, where the late Justice Provosty cited and reviewed practically all the cases relating to judicial estoppel, and finally concluded that Weaver & Johnson, the warrantors, were not concluded by the allegations made in a former suit which had in no way been acted upon by the plaintiffs. There is also cited the case of Maddox vs. Robbert, 158 La. 394, 104 So. 183. These cases, as practically all others which might be cited, turn on the particular state of facts under consideration. As was stated by Justice Provosty in the case of Farley vs. Frost-Johnson Lumber Company, supra, our jurisprudence on the question of judicial estoppel is in an unsatisfactory condition. It suffices to say, however, that the Court has never said that there is no such principle in our law as judicial estoppel. Under the circumstances of the present case, we think Hicks is judicially estopped to deny that he purchased this litigious right for a cash consideration.

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


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    No. 3439
    Second Circuit
    McBRIDE v. NATURAL GAS & FUEL CORPORATION
    (January 21, 1929. Opinion and Decree.)
    Julius T. Long, of Shreveport, and A. Leonard Allen, of Winnfield, attorneys for plaintiff, appellee.
    Thompson and Ferguson, of Leesville, attorneys for defendant, appellant.
   WEBB, J.

Plaintiff, William C. McBride, while in the employment of defendant, Natural Gas & Fuel Corporation, sustained an injury in which his lower jaw was fractured, resulting in some retrusion of the lower jaw and facial disfigurement, and the loss of all of his lower and two of his upper teeth, which disabled him for a period of eight weeks, for which period he was paid the maximum compensation of twenty dollars per week, but plaintiff having resumed his work after the period of disability, at the same wages as he received before the accident, defendant refused to pay further compensation, and plaintiff instituted suit for additional compensation, and -judgment being’ rendered in his favor for the maximum weekly com-pensation of twenty dollars, for a period not exceeding one hundred and eight weeks, beginning on August 4, 1927, with legal interest on the weekly payments from maturity, subject to a credit of one hundred sixty dollars, compensation paid during the period of disability, defendant appeals from the judgment, urging that the court erred in allowing the maximum weekly' compensation, and in fixing ’ the period of compensation at one hundred and eight weeks.

It is conceded that the loss of the teeth was a serious, permanent impairment of a physical function within the meaning of paragraph 16, subdivision (d), subsection 1, section 8 of the Employers’ Liability Law (Act No. 20 of 1914, as amended by Act No. 85 of 1926), but it is contended that, due to a malformation, or retruding lower jaw, plaintiff did not have normal ability to chew his food before the accident, and that the retruding jaw caused some facial disfigurement, and that those facts should be considered in determining the extent of the impairment of the physical function resulting from the loss of his teeth, and of the facial disfigurement noticeable after the accident.

The evidence does not indicate that plaintiff, had any trouble in easing, or that there was any noticeable disfigurement of his face prior to the accident, and although it may be that the malformed jaw may render it impossible for the impairment resulting from the loss of the teeth to be remedied, to the usual extent by the use of false teeth, such condition would not be of any significance in determining the extent of the impairment of the function resulting from the accident, and as the evidence does not show that the malformed or retruding jaw caused any noticeable disfigurement of the face which became noticeable after the accident, we do not think the original malformation could be a factor, in determining the extent of the disfigurement.

The trial court saw the plaintiff and was in a better position than we are to determine the extent of the facial difigurement, and the evidence showing that the impairment of plaintiff’s ability to eat, as the result of the accident, can only be remedied to a very limited extent, we cannot say that the court erred in allowing the maximum weekly compensation; but in view of the right to compensation, coming under paragraph 16, subdivision (d), which provides that the period of compensation shall be one hundred weeks, and the provision of paragraph 18 of the same subdivision, which provides for the deduction of any payments made for disability where compensation is allowed under subdivision (d), the period of compensation should have been for one hundred weeks, subject to credit of one hundred sixty dollars, or a deduction of eight weeks, for compensation paid during the period of disability (Wallace vs. Natural Gas & Fuel Corporation, 8 La. App. 614).

It is therefore ordered that the judgment appealed from be amended, fixing the period of payment of compensation for a period not exceeding one hundred weeks, less eight weeks, the payments beginning on September 29, 1927, and bearing legal interest from maturity, and that as thus amended the judgment is affirmed, plaintiff to pay cost of appeal.


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    No. 3313
    Second Circuit
    RUSTON FOUNDRY & MACHINE SHOP, LIMITED, v. LIEBER
    (January 21, 1929. Opinion and Decree.)

      Lamar Polk, of Alexandria, attorney for plaintiff, appellee.
    T. A. Carter, of Alexandria, attorney for defendant, appellant.
   ODOM, J.

Plaintiff brings this suit against the defendant to recover $166.70, for goods and merchandise sold and delivered to him and for services rendered.

It is admitted in answer that the amount sued for is due the plaintiff, but defendant alleged that he was entitled to a credit of $117.52, as per the itemized account filed. The defendant filed a plea of prescription of three years in bar of two items on plaintiff’s account, and plaintiff filed a similar plea as to all items on defendant’s account, except one. There was judgment in the lower court in favor of plaintiff for $138.94, less a credit of $24.00. The defendant appealed and plaintiff has answered the appeal, asking that the judgment be amended so as to allow plaintiff the full amount sued for.

OPINION.

The judgment appears to be correct. Two items on plaintiff’s account, one amounting to $6.60 and one for $21.16, are prescribed on the face of the account. The total of these items, or $27.76, was deducted by the lower court from the amount sued for, leaving a balance of $138.94. The court also gave defendant credit for $24.00, which amount was admitted to be due defendant by plaintiff by witnesses called for plaintiff. This latter amount was not credited on the account attached to plaintiff’s petition, as it should have been.

The only defense urged by defendant was that plaintiff was due him the sum of $117.52, which he plead as a set-off against plaintiff’s account. Counsel for plaintiff suggests that defendant could not properly plead his account as a set-off against the amount claimed by plaintiff. Whether he could or could not do so need not be discussed or decided by us, for the reason that defendant failed to prove his account. His account consists of three main items: one, for $14.25, for work done on an automobile, and another, for $30.97, for certain materials furnished plaintiff by defendant for certain cars which were owned by it. But the witnesses called for plaintiff emphatically deny that they had ordered any such work done, or ordered the materials. Defendant testified that he had furnished the materials and had done the work, but he had no written orders for the work' or the materials, but said something about a “phone” order. However, as stated, the witnesses for plaintiff specifically deny any indebtedness whatever to defendant.

Another item on defendant’s account is for the over-hauling of one Chevrolet car, and furnishing parts and labor for the same, amounting to $48.30. While it is not denied that defendant did the work and furnished parts for the Chevrolet car, yet the testimony shows that the said car belonged to one Gremillion, who was an employee of the plaintiff company. The plaintiff company was in no way liable for work done on Gremillion’s private car.

The other item on defendant’s bill is $24.00, which plaintiff admits to be due and for which the lower court gave credit.

We do not pass on plaintiff’s plea of prescription for the reason that, as already stated, defendant failed to prove his account.

For the reasons assigned, it is ordered and decreed that the judgment appealed from be affirmed, with costs in both courts.


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    No. 3346
    Second Circuit
    INDUSTRIAL ACCEPTANCE CORP. v. HODGE
    (December 19, 1928. Opinion and Decree.)
    O. A. Easterling, of Monroe, attorney for plaintiff, appellant.
    Smith & McGregor, of Rayville, attorneys for defendant, appellee.
   WEBB, J.

The plaintiff, Industrial Acceptance Corporation, holder and owner of a promissory note drawn by defendant, T. R. Hodge and secured by a chattel mortgage on an automobile, foreclosed, via executiva, and, after crediting the price at which the automobile was sold, less cost of foreclosure, instituted the present suit to recover the balance remaining due on the note, to which suit the defendant, in substance, pleaded that the foreclosure proceedings were had under an agreement that the plaintiff would purchase the automobile at the foreclosure sale for the account of defendant, and would sell same and deduct from the price the cost of the foreclosure proceedings and credit the balance on the note, and that as the automobile. had not been sold and the agreement complied with, the action was premature, and defendant further pleaded that, the plaintiff had carried insurance on the automobile protecting it from damages incident to' collisions, and that while the automobile was in defendant’s possession it had been damaged in a collision, for which plaintiff had collected some amount which should have been credited on the .note.

On trial, judgment was rendered in favor of the plaintiff for the amount claimed, less two hundred seven dollars (which it is suggested the plaintiff had collected from the insurance company by reason of the damages sustained by the automobile while in the possession of defendant), and the plaintiff appealed, urging that the court erred in allowing the credit of two hundred seven dollars, while defendant urges that the plea of prematurity filed by him should have been sustained, and plaintiff’s suit dismissed.

The defendant carried the burden of proof to establish the defense that the purchase of the automobile at the foreclosure sale was made under the agreement alleged or in effect for his account, and we concur in the finding of the trial court that the evidence offered failed to establish the defense, and, further, we do not find in the record any evidence establishing that the plaintiff had collected from the insurance company any amount over and above the amount which was paid by the plaintiff through the insurance company for the repairs resulting from the injuries sustained by the automobile from a collision while in the possession of the defendant, and we are of the opinion that the amount paid for said repairs should not have been deducted from the note.

It is therefore ordered, adjudged and decreed that the judgment appealed from be amended so as to strike therefrom the credit of two hundred seven dollars, and, as thus amended, the judgment is affirmed.


text:
    No. 3328
    Second Circuit
    HARRISON v. CARLISLE ET UX
    (November 8, 1928. Opinion and Decree.)
    (December 19, 1928. Rehearing Refused.)
    (January 28, 1929. Writ of Certiorari and Review denied by Supreme Court.)
    John G. Gibbs; Vernis Morgan, of Shreveport, attorneys for plaintiff, appellant.
    Wilkinson, Lewis & Wilkinson, of Shreveport, attorneys for defendants, appellees.
   WEBB, J.

The plaintiff, Mrs. Emma Harrison, brought this action against the defendants, Dr. E. A. Carlisle and his wife, Mrs. E. A. Carlisle, to recover damages for personal injuries resulting from plaintiff having been struck by an automobile driven by Mrs. Carlisle, and recovered judgment against Mrs. E. A. Carlisle, her demands being rejected as to Dr. E. A. Car-lisle, from which judgment plaintiff appeals, urging that the amount of the judgment be increased, and that judgment should be rendered against Dr. Carlisle, to which defendant, Mrs. Carlisle, answered, urging that the judgment against her should be reversed and plaintiff’s demands rejected.

The accident occurred in the day-time at the intersection of Louisiana and Texas Streets, which intersect at right angles; Louisiana Street running north and south and Texas Street east and west. The automobile driven by Mrs. Carlisle entered the intersection from the north on Louisiana Street, and the collision occurred on the cross-walk on the south of the intersection, over which Mrs. Harrison was walking, at a point shown by the evidence to have been approximately ten or twelve feet from the curb at the southwest corner of the intersection.

Defendants denied plaintiff’s allegations, and alleged that the car driven by Mrs. Carlisle had entered the intersection on the green light and had reached the center of Texas Street when the caution signal came on and that she continued to drive over the intersection in a careful manner, and had cleared the intersection, with the exception of the sidewalk on the south, when the plaintiff, while the caution signal was still displayed, stepped from the curb at the southwest corner of the intersection onto the cross walk and thence in the path of the automobile and in such close proximity thereto that it was impossible for Mrs.' Carlisle to avoid the collision.

The uncontradicted testimony of several witnesses established that the automobile driven by Mrs. Carlisle entered the intersection on the green light and that it had reached a point about the center of Texas Street, the roadway of which is forty-eight feet in width, when the caution signal came on, and there is not any evidence showing that the speed at which the car was driven, twelve or fifteen miles per hour, was illegal, and the testimony of the witnesses is conflicting as to whether Mrs. Harrison entered the intersection from the southeast or southwest corner, and whether on the green or yellow light. We find that the preponderance of the evidence establishes that she entered the intersection from the curb at the southwest corner and while the caution signal was displayed.

There were five persons, including Mrs. Carlisle, who testified that Mrs. Harrison entered the intersection from the curb at the southwest corner, while two persons, including Mrs. Harrison, stated that she entered the intersection from the curb at the southeast corner, and the number of witnesses testifying as to whether Mrs. Harrison entered the intersection on the green or yellow light is equally divided.

There was at the intersection an automobile semaphore by which the traffic was regulated on the display of signals, the “stop”, “go”, and “caution” signals being given by the display of red, green, and amber lights, respectively, and with reference to which an ordinance of the city of Shreveport provides:

“That when a red light is displayed at any intersection, vehicles on the streets along which, and on to which it is displayed, shall stop before entering the street intersection, and before passing the property line at such intersection and before entering the cross walk, and pedestrians shall stop on sidewalk or curb before entering the driveway or entering the cross walk leading from one curb to the opposite curb.
* * *
“That when a green light is displayed at a street intersection, traffic shall move forward into the intersection and on the street along which the green light is displayed. Traffic as here used shall include both vehicles and pedestrians.
“That upon the display of an amber or yellow light at any street intersection, all pedestrians and vehicles approaching the intersection shall stop before entering the intersection and remain at attention until the yellow light ceases to be displayed, and vehicles shall stop back of the property line and pedestrians shall stop on the curb or sidewalk, but those vehicles which are within the intersection at the time the yellow light is first displayed, shall continue to leave the intersection as though the green light were still on. Pedestrians who have left the curb and sidewalk at the time the yellow light is first displayed shall proceed as though the green light were on and leave the intersection at once. The bell is rung at the same time the amber or yellow light is displayed and has the same significance as the yellow light.”

Plaintiff alleged, in substance, that Mrs. Carlisle had driven her automobile into the intersection when the red light was displayed, and that she was driving at an excessive rate of speed, and without having the car under control, and that plaintiff, who had entered the intersection on the cross walk from the southeast corner, on the green light, was struck by the automobile while she was walking across the intersection.

But accepting the uncontradicted testimony showing the position of the automobile at the time the caution signal was displayed as correct, and the fact, as established by the evidence, that the caution signal was displayed for five seconds, it appears certain that the collision occurred while the caution signal was displayed, and considering the point where the collision concededly occurred, or ten or twelve feet from the curb at the southwest corner of the intersection, we think they support the version of the defendants, showing that Mrs. Harrison entered the intersection on the caution signal from the southwest corner, thus placing herself in the path of the automobile, and considering that Mrs. Carlisle had driven into the intersection on the proper signal and had the right to proceed and clear the intersection, and that the evidence does not show that she was driving at an illegal rate of speed, we are of the opinion that the plaintiff failed to establish any negligence on the part of Mrs. Carlisle.

Aside, however, from this, the evidence establishes that Mrs. Harrison was not paying any attention whatever to ^he vehicular traffic, and was clearly guilty of negligence in this respect as well as in attempting to cross on the caution light and we are of the opinion that the plaintiff’s negligence was the proximate cause of her injuries (Collins vs. Varino, 153 La. 636, 96 So. 500; Roder vs. Legendre, 147 La. 295, 84 So. 787).

The judgment appealed from is therefore annulled, avoided and reversed, and it is now ordered that plaintiff’s demand be rejected at her cost.


author: DART, J. ad hoc.

text:
    No. 10,467
    Orleans
    N. O. PUBLIC SERVICE, INC., v. STEWART
    (December 10, 1928. Opinion and Decree.)
    (January 7, 1929. Rehearing Refused.)

      Dufour, Rosen and Kammer; A. V. Wolff, of New Orleans, attorneys for plaintiff, appellee.
    Bond, Curtis and Hall, of New Orleans, attorneys for S. J. Stewart, defendant, appellant; B. Y. Wolf, of New Orleans, attorney for Wolf Electric Works, Inc., defendant, appellant.
   DART, J. ad hoc.

Plaintiff suing as the successor of the Receiver of the New Orleans Railway & Light Company, engaged in furnishing light and power to the inhabitants of New Orleans, seeks from defendant Stewart the return of three secondary line transformers described in the petition that were placed by said Receiver about October 1, 1920, on the premises of the McCardle Company in New Orleans, alleging that defendant wrongfully removed the same in the month of May, 1923, and is in possession thereof or is exclusively possessed of the knowledge of the present whereabouts of the same. In the alternative judgment is sought for $1,875.00, the value thereof. The salient allegations around which this contest had chiefly raged is that the said transformers belonged to the railway organization and were so placed as part of plaintiff’s distribution system and solely for the purpose of serving secondary power to the consumer, and that at no time did plaintiff sell or authorize any one to sell the same. It is also alleged that after the installation of said transformers, the McCardle Company’s plant was transferred to Beane Bros., by whom a new engagement for power was made with the Receiver and the transformers continued to be used by the latter to supply said new consumer.

Stewart answered in substantially a general denial coupled with, the affirmative defense that he purchased the transformers for $195.00 on May 25, 1923, at a public auction sale of the plant of the McCardle Company made by an auctioneer after advertisement of said sale in the New Orleans Times-Picayune. He alleges that m making said purchase he acted in good faith and believed he was acquiring good and clear title to said transformers. That he had no knowledge of plaintiff’s alleged ownership until the plaintiff made demand on him for their return in the late summer of the same year, which he declined. He pleads further that plaintiff is estopped because it knew or should have known of the proposed sale as advertised and took no steps to prevent the same. He further avers that in no event should he be held liable for more than “the actual value of the transformers,” to-wit, $1175.00. He pleads also that the purchase was made by him in joint account with Wolf Electric Works, Inc., who repaid him one-half the purchase price. That in June, 1923, he acquired his co-owner’s share for $375.00 and paid ’ the said price on July 12, 1923. That on June 29, 1923, he sold the said transformers “to one of his customers” and gave an order on the Fitzpatrick Company (the auctioneer) and/or the owners and occupants of the said premises authorizing the delivery of same to his vendee. He prays for the dismissal of plaintiff’s suit and for citation of the auctioneer and of the Wolf Company as his warrantors to defend this action and in the alternative should any judgment be rendered against him for similar judgment over against the auctioneer for $195.00 and against the Wolf Company for $277.50.

The Wolf Company filed exceptions which will be noticed later and these being overruled answered joining the defendant against plaintiff, but saying they should be relieved from liability on the call in warranty because Stewart was guilty of bad faith- in inducing them to sell their interest for $375.00 when he had in truth and fact already sold the transformers for $1125.00 and concealed that fact from them.

Fitzpatrick Auction Company answered admitting the advertisement of the Mc-Cardle plant and the adjudication of the transformers to Stewart, which they believed to be the property of the McCardle Company. They pleaded further that they were acting solely in their capacity as auctioneers and- did not warrant the title to said property and had no interest in the transaction other than their commission.

The lower Judge rendered judgment in favor of plaintiff against defendant Stewart for $1175.00 and in favor of Stewart against the Wolf Company for $277.50 and rejected the demand against the auctioneer. Appeals are before us prosecuted by Stewart and by the Wolf Company. Stewart has answered the latter appeal praying for an increase in the judgment to $375.00.

The answer filed in this Court by Stewart asking an increase in the judgment against Wolf Company is without merit because the judgment below was for the exact sum claimed in his call in warranty against that company and if the judgment in plaintiff’s favor is correct, defendant has received under his call all that he claimed.

Wolf Company urged below and here an exception that defendant’s call in warranty is premature and that no right is 'granted in law to call the vendor of personal property in warranty when the purchaser is only threatened with eviction but has not been actually evicted. In support of this position, counsel cites Levy vs. Railways Company, 35 La. Ann. 615, and Harver vs. Pecot, 104 La. 136, 28 So. 936. We think the privity in contract between defendant and exceptor brings the case within the rule in Muntz vs. R. R. Co., 114 La. 437, 38 So. 410. We have been referred to no authorities to sustain the second proposition that the right to call in warranty a vendor of an interest in movable property may not be exercised until after actual eviction occurs and our research has developed none. The exception was properly overruled.

It is conceded in defendant’s brief and was also conceded in argument by his learned counsel that the testimony shows certain transformers were placed on the McCardle premises by the plaintiff or its predecessors, but counsel argues there is no testimony to show what became of these transformers except that at the auction sale of May, 1923, all of the property “belonging to the plant” was sold, including these transformers. Considering the physical situation as it was created by plaintiff in the erection of the transformers and as it is proved to have existed at The time of the auction, it would not be stretching inferences to assume, that the transformers sold at auction were the ones originally installed by plaintiff especially as there is no evidence in the record showing any changes in the place or substitution of other transformers, but be this as it may, we have carefully considered the evidence and we are satisfied as was the Judge below that the transformers, sold at auction are the same transformers originally installed by plaintiff and its predecessors.

, It is strenuously urged here in brief and argument (though we do not find it set up in the answer) that the transaction between the owner of the transformers and McCardle was a deposit. It is urged that under C. C. Art. 2961, the depositor’s right to reclaim the thing is circumscribed by the condition that the thing at the time it is reclaimed must exist in kind in the hands of the depositary or his assigns, and if the latter have disposed of the thing and the price remains due, the depositor must look to the price, and to the preference and privilege thereon carried in his favor in C. C. Arts. 2962 and 3223. Learned counsel in their brief say:

“As it is fundamental that one is not entitled to both the thing and its price, it follows that the Code by giving to the depositor a privilege or preference on the price of the thing deposited denies him the right to reclaim the thing from the hands of the innocent purchaser from the depositary.”

We have been greatly interested in this proposition, but under our appreciation of the facts developed by the record, there was no deposit of these transformers within the purview of the statutes governing Voluntary Deposit. The facts are that the McCardle Company applied to the Receiver of the power company for electric power to be furnished for and used in the operation of the plant, and to be paid for as used by the consumer. To supply this power the Receiver erected a frame on the premises of the applicant inside the property line but outside of the buildings of the plant, between the buildings and the fences on Saratoga Street. On this frame, the Receiver installed metal boxes containing three transformers to receive, transform and distribute the high current of the main line into the low pressure current asked for and required in McCardle Company’s operations. This mechanical agency in the delivery of electric power between furnisher and consumer is a familiar sight in New Orleans hoisted on poles or frames contiguous to the high tension lines from which via the transformer, the consumer receives his light and power. It is >a part of the distribution system of every furnisher of light and power and it is not “deposited” with the consumer. He could not take care of it even if he so desired. It is put there for another purpose, viz., as an active agent of the line company to transmit and deliver power and light. We are of the opinion that the transaction between the Receiver and McCardle Company was an engagement by the former to sell power to be delivered through the instrumentalities of the seller, that the placing of the transformers within the property lines of the consumer was an incident of this service, and did not give the latter any right over the same. The transformers remained at all times the property of the Receiver and there is no proof showing that he sold or authorized the sale of the same or that plaintiff, his successors in title, authorized the same.

In this connection we should note that after the Receiver’s contract with Mc-Cardle Company, the plant came into possession of Beane Bros., and that a new contract was made by the Receiver with the latter. How and when the new consumer disappeared from the scene is not shown, and under our findings herein perhaps that problem is not material to the case.

Plaintiff’s petition charges defendant with having wrongfully and improperly removed the said transformers or caused them to be removed from said plant and converted to his own use. Defendant as we have shown contends that he purchased the same at a public auction prominently advertised and that he believed when so purchasing, that the transformers were the ' property of the McCardle Company. In brief, his counsel says that there is no proof to indicate any bad faith on Stewart’s part and he says further that in the argument in the lower court, counsel for plaintiff conceded defendant’s good faith. Plaintiff’s brief on this point does not make the concession in so many words, but it does say that at the trial defendant •proved all the affirmative allegations of his answer except knowledge by plaintiff of the proposed auction sale.

Having found as we do that the transformers were the property of plaintiff and that the McCardle Company had no title to the same, and having found further that the latter company did not have physical possession of the property as depositary or otherwise, the case falls within the provisions of C. C. 2453 as interpreted and construed in a long line of decisions of the Supreme Court recently reviewed in Freeport & Tampico Fuel Oil Corporation vs. Lange, 157 La. 217, 102 So. 313, at pp. 224 et seq. But if for the purpose of argument we concede that the fact that the transformers were within the fence lines of the McCardle plant tended to create the appearance of possession in that company, the defendant’s case under the facts would not be in any better state as is illustrated by the case of Campbell vs. Nicholls, 11 Rob. (La.) 16-18.

Defendant, however, insists that this rule has no application here because he purchased the transformers at public auction in good faith, that is, not knowing plaintiff owned the same and believing that they formed part of the plant of the Mc-Cardle Company.

It is not contended that plaintiff was notified of this sale but it is argued that the published advertisement of the same, was sufficient to put plaintiff on notice or at least on guard. This advertisement is the second of a half dozen printed in sequence in two-column width in a morning newspaper. The headlines indicate a “public auction sale at McCardle Cotton Company’s plant,” naming the location. The type graduates in size from the largest at the top of the notice to the smallest at the bottom. The transformers are not mentioned until near the end of the advertisement, where there appears in small type the words “75 K. V. A. transformer, motors up to 50 H. P/’ Assuming but not deciding that one is bound to read everything that appears in a newspaper, there is nothing in this advertisement to .suggest to a . corporation dealing with Beane’ Brothers that it is contemplated to sell at McCardle’s (plant the three transformers in question here but aside from this the proof convinces us that plaintiff had no knowledge of the proposed sale before it occurred and that it was only in August, three months afterwards that rumors of the removal of the transformers reached the ears of the plainitff’s officials.

Article 2603, Civil Code, provides that the sale by auction whether made at the will of the seller or by direction of the law is subjected to the rules hereinafter mentioned governing all such sales alike and Article 2620 says the sale on execution transfers the property of the thing to the purchaser as completely as if the owner had sold it himself; but it transfers only the rights of the debtor such as they are, and in the absence of statutes or decisions establishing a contrary rule in voluntary sales we cannot extend to the latter a wider liberty or meaning than is prescribed for judicial sales.

The only qualification we have found of the rule that the sale of a thing belonging to another person is null, C. C. 2453, is that which is found in Article 3507 under the title of “Prescription of Movables.” This says:

“If however the possessor of a thing stolen or lost bought it at public auction or from a ¡person in the fyabit of selling such things the owner of the thing cannot obtain restitution of it without returning to the purchaser the price it cost him.”

Without splitting hairs on the nature or character of the conduct of . those who permitted the auctioneer to sell the transformers, it is certain the result to the owner was as effectual as though they were actually stolen or lost. But they were not in that category when defendant acquired them at the sale, and if this were all there is in this case we would be compelled to affirm the judgment.

It appears that after plaintiff discovered the removal of the transformers, they called qn defendant Stewart and demanded the return of the same, together with meters, instrument-transformers and connections belonging to plaintiff and bought by Stewart at the same- sale. He admitted possession of these last named things and after some discussion returned same to the plaintiff; as to the three transformers he said he had sold the same but positively refused to give the name of the purchaser, or to state the present location of the things. When he filed his answer to this suit he ¡preserved the same reticence in his pleading, confining himself to the statement that on June 29, 1923, he sold the transformers to “one of his customers.” Nearly a year after filing this answer he •amended the same, averring that he sold the property to Citizens Light & Power Company and that it remained in possession of said company until on or about January 1, 1926, at which time all the property and effects of the Citizens Company were transferred to plaintiff herein, which is now in possession of the said transformers, and by reason of such ownership and possession this suit should be dismissed. The result is that from August 1923, to the date of this answer plaintiff was kept in ignorance of the name of Stewart’s assignee and of course, in ignorance of the location of the [property.

We find nothing in the record controverting the statement made in this answer that plaintiff has now come into possession of the transformers but we understood the learned counsel for plaintiff to admit this in argument. While defendant has done everything in his power to prevent plaintiff from repossessing the things in issue, we are nevertheless faced with the fact the disputed property has by chance or otherwise come back into the possession of the true owner, and without any aid or assistance from the defendant. This suit has for its object the return of the things or their value. It may well be that these transformers in their condition when recovered had no commercial or other value, but we find no proof in the record to assist us in determining this fact. The same situation governs as to the price or other costs and expenses that plaintiff has incurred or ¡paid to get back its property, ,or as to losses sustained by plaintiff through the deprivation of the things during the period after August, 1923.

We are earnestly pressed by plaintiff’s counsel to maintain the award made by the lower. Judge which seems to be predicated on the value placed on the transformers by defendant in his original answer, but if we are correct in this assumption the state of the record does not furnish any guide to fix the value at that sum.

The equities of plaintiff’s case are very appealing and we think justice requires us to afford it an opportunity to make the proof indicated in this opinion.

It is therefore ordered that the judgments appealed from in favor of plaintiff and against the defendant and in favor of defendant against the Wolf Electric' Company, Inc., be and they are hereby reversed, and the case is now remanded to the court below for further proceedings and judgments in accordance with the views expressed in this opinion, costs of the District Court to abide the final decision under this remand, the costs of appeal on the main case to be paid by plaintiff, appellee, and those on the call in warranty by defendant, Stewart, appellee therein.


author: REYNOLDS, J.

text:
    No. 3364
    Second Circuit
    STEVENS v. LONE STAR GAS CO.
    (January 21, 1929. Opinion and Decree.)

      R. W. Oglesby, of Winnfield, attorney for plaintiff, appellee.
    Moss and Moss, of Winnfield, attorneys for defendant, appellant.
   STATEMENT OF THE CASE.

REYNOLDS, J.

Plaintiff, F. L. Stevens, sued defendant, Lone Star Gas Company, to recover judgment for the amount of the principal of five promissory notes with legal interest on each of them from its maturity until paid and 10 per cent additional as attorney’s fees.

The notes are all signed by defendant, are all dated February 2, 1927, and all are endorsed in blank by The Brenard Manufacturing Company, to the order of which they all are drawn payable. Four are for the sum of $65.00 each and are made payable, respectively, three, four, five and six months after their date, and the fifth is for the sum of $35.00 and is made payable seven months after its date. All five notes contain the stipulation that “in case of default in payment I agree to pay payee’s reasonable attorney fees.”

Plaintiff alleges he acquired the notes for value before their maturity in due course of business.

The defense is—

“* * * that the signing of said notes was obtained through fraud, error and mis_representation by plaintiff’s agent; also denies liability thereon for the reason that the merchandise purchased was not sale-able, worthless, and could not be disposed of by defendant at all; and that there is a failure of consideration; and that plaintiff had knowledge of the character of business done by Brenard Manufacturing Company, and had handled notes taken by it in the course of its business on different occasions. The defendant returning to said Brenard Manufacturing Company' the merchandise when same was found to be worthless and in a few days after same was received by them; that plaintiff was used as a go-between to collect said notes, and under the law defendants had the right to urge all equities against the collection of said notes that they would have had if the Brenard Manufacturing Company had brought the suit.”

On these issues the case was tried and there was judgment in favor of the plaintiff and against the defendant for $295.00 with legal interest thereon from September 2, 1927, until paid, and the costs of suit, and the defendant appealed.

OPINION.

We will first consider plaintiff’s contention that he was a purchaser for value before maturity in due course; for if he was, the defenses pleaded by defendant become immaterial.

The notes have all the characteristics of negotiable instruments and we do not understand defendant to contend otherwise.

Defendant’s contention is that plaintiff is an alter ego of The Brenard Manufacturing Company and that therefore he is entitled to prove as against plaintiff the defenses set up.

The only evidence as to the character of plaintiff’s title is that of the plaintiff himself whose deposition was taken under deposition.

Pie testified that he was fifty years of age, an attorney at law by profession and engaged in active practice of the law in the city of Iowa City, Iowa, and that he was also a dealer in investments and commercial paper; that The Brenard Manufacturing Company was a partnership composed of Theodore O. Loveland and James L. Records, both residents of Iowa City, and that .he had known both individuals for more than twenty years; that he had never owned any interest of any sort in The Brenard Manufacturing Company, and that he had never been employed either by The Brenard Manufacturing Company or either of the partners in any capacity whatever; that he had never borrowed any money from or loaned any money to The Brenard Manufacturing Company or either of the partners, and that he was not related in any way to either Loveland or Records; that there was not and never had been any connection between him and The Brenard Manufacturing Company or either of the partners or any of it or their enterprises; that the only business dealings he had with The Brenard Manufacturing Company was the purchase from it of certain promissory notes from time to time.

He further testified that he purchased the notes in controversy here from The Brenard Manufacturing Company on March 18, 1927. That Mr. Theodore O. Loveland informed him that he had some notes for sale and asked him if he was in position to buy them and that after some discussion between them as to the number of the notes and their face value and the discount at which they were offered for sale he bought them; that he knew, in a general way, that the notes had been given to The Brenard Manufacturing Company in payment for goods sold by them to the makers of the notes, but had no idea what particular merchandise they represented the price of, except that he knew The Brenard Manufacturing Company were dealers in phonographs and phonograph supplies and radios and radio supplies.

He further testified that none of the notes sued on here were attached to any contract; that when he purchased the notes he was not aware of any dispute between The Brenard Manufacturing Company and defendant about them, and that he would not have bought them had he known of any such dispute.

He also testified that on March 18, 1927, he purchased from The Brenard Manufacturing Company promissory notes, of which those in controversy here formed part, aggregating $5,384.66 and paid therefor $4,850.00. That he paid the price by check on the Iowa City Savings, and he attached to his deposition an exact copy of the check and marked it “Exhibit 1.”

In answer to cross-examination he stated that he was not related either by blood or marriage with Theodore O. Loveland or James L. Records. That the first notes he had purchased from The Brenard Manufacturing Company was in the year 1926, and that he had never gotten any notes from The Brenard Manufacturing Company except by buying them outright and paying real money for -them, and that he had never brought suit on any note that he had gotten from The Brenard Manufacturing Company which he had not purchased from that company outright and which was not his own property.

He further testified that he had- never made a collection for The Brenard Manufacturing Company and that there was not any suit by him pending anywhere in Louisiana on. a promissory note obtained by him from The Brenard Manufacturing Company for which he had not given value or for the purpose of making a collection for The Brenard Manufacturing Company.

There is no evidence in the record even contradicting the testimony of plaintiff.

By Section 52 of the Negotiable Instruments Law. (Act No. 64 of 1904):

“A holder in due course is a holder who has taken the instrument under the following conditions:
“1. That it is complete and regular on its face;
“2. That he became the holder of it before it was overdue, and without notice that it had been previously dishonored, if such was the fact;
“3. That he took it in good faith and for value;
“4. That at the time it was negotiated to him he had no notice of a,ny infirmity in the instrument or defect in the title of the person negotiating it.”

The plaintiff possessed all these qualities quoad the notes.

Section 24 of the Act provides that—

“Every negotiable instrument is deemed prima facie to have been issued for a valuable consideration.”

And Section 28 that—

“Absence or failure of consideration is matter of defense” only against any person not a holder in due course.

We are of the opinion that the plaintiff acquired the notes sued on before maturity in due course for value and that the defenses set up by defendant cannot be interposed to them. And this conclusion renders it unnecessary for us to consider these defenses.

The judgment appealed from does not allow' attorney’s fees and in brief plaintiff has asked us to amend the judgment so as to allow attorney’s fees of 10% on the amount of the judgment. But plaintiff has neither appealed from the judgment nor answered defendant’s appeal and we are powerless to amend the judgment in his favor.

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


text:
    No. 10,500
    Orleans
    DALTON v. NATIONAL LIFE, HEALTH AND ACCIDENT INS. CO.
    (December 10, 1928. Opinion and Decree.)
    (January 7, 1929. Rehearing Refused.)

      L. R. Hoover, of New Orleans, attorney for plaintiff, appellee.
    W. W. Wright, of New Orleans, attorney for defendant, appellant.
   DART, J. ad hoc.

The defendant was condemned in the court below to pay the plaintiff $257.00 and this appeal is prosecuted from that judgment.

The plaintiff’s petition alleges that on August 2, 1920, the board of directors of the defendant corporation passed a resolution to assess the stockholders of the corporation ten per cent on the amount of stock owned by them in the corporation and in accordance with said resolution the plaintiff advanced to defendant the sum of $207.00 on August 2, 1920, and the sum of $50.00 on March 19, 1921. That said advances were duly entered on defendant’s books and have been and are carried thereon as an obligation of the corporation. That said assessment and loan was made without any definite term for repayment and under the law is due and payable on demand. By supplemental petition, plaintiff alleged that on April 19, 1920, he advanced and loaned the defendant $206.87 by giving his personal check to a bank to cover overdrafts and money due said bank by the defendant. That on August 2, 1920, defendant repaid said loan by giving plaintiff a check for said sum and plaintiff In paymient of the assessment due the defendant by reason of the resolution of the Board endorsed said check and returned same to defendant with thirteen cents additional, making the full sum of $207.00 advanced on August 2, 1920.

The answer of the defendant admitted the levy of the assessment and otherwise denied the allegations of the petition and for further answer said that plaintiff is no longer a stockholder of the corporation and that any rights he may have had passed with the sale of his stock. It is further alleged that the assessments have been wiped out by the action of the stockholders and the board of directors.

Plaintiff testified that he was secretary of the defendant company during the years 1919, 1920 and 1921. That the assessment was made by the Board because of the financial embarrassment of the corporation and to meet its obligations. The resolution of assessment was drawn for the Board by the lawyer of the corporation, accompanied by his opinion that the payment of the same must be voluntary and could not be enforced legally. Plaintiff, as secretary of the company, was the medium through which the notice of the assessment and the advice of counsel was communicated to the stockholders. Some of these paid the assessment, including the plaintiff, and others refused to pay it. Plaintiff, in his official capacity and under advice of counsel, opened an account on the books, calling it the “Assessment Account,” “and each entry was made separate in- the Cash Book and at the end of the month it was credited in the Ledger to the ‘Assessment Account.’ We carried it as a liability up to the time I left the Company.” He further says, “the first assessment had not produced enough cash and those members (present * * * just made another assessment ipso facto as a matter of fact to take care of the obligations pending,” and under this second assessment paid $50.00 more. He adds further that at the meeting in the office of the company “it was expressly stated this assessment was voluntary.”

Plaintiff remained with the company until June 21, 1922, when he sold out his stock, receiving therefor $25.00 per share, the par value being $10.00. In December, 1924, he made demand on the company for the return of the sums paid by him under the assessments and in May, 1925, instituted this suit therefor.

We think the testimony establishes that the money plaintiff here seeks to recover was paid voluntarily as an assessment, and that it was in no sense a loan to the corporation. The resolution of the Board, and the testimony of plaintiff himself shows that it was an assessment, that no stockholder was bound to pay it and that any payment made by the stockholder was a voluntary contribution to the welfare of the company, which in plaintiff’s own words, was in a condition of “financial embarrassment.”

An assessment in corporate practice has but one meaning, it is a demand upon stockholders for payments above the par value of their stock to meet the money demands of creditors of the corporation. An assessment may be levied under the authority of a statute, or it may be voluntary. We have, for instance, a statute which recognizes the principle of voluntary subscription where the capital of an insurance company is impaired. Act 24 of 1890, page 18.

There is no doubt that under our law an assessment cannot be levied, on full paid capital stock either by the stockholders or by a board of directors, nor is there any doubt that stockholders of a corporation may become creditors of the same as is illustrated in the cases cited by plaintiff’s learned counsel.

Cotton Seed Oil Co. vs. Refining Co., 108 La. 74, 32 So. 221; Villere vs. N. O. Pure Milk Co., 122 La. 717, 48 So. 162.

But there is nothing in any of this doctrine to prevent stockholders agreeing among themselves to levy an assessment, for the corporate benefit, and this was recognized by the Board and was communicated to the stockholders by the secretary, the plaintiff herein, acting under the advice of the counsel of the company, an eminent and respected member of this bar now deceased. Under his advice the Board levied the assessment as a voluntary contribution which it called upon the stockholders to make.

The language used in the resolution brings the case within well-settled principles of corporation law.

“It scarcely needs judicial authority to the proposition that stockholders can agree that assessment may be levied on their stock. * * * Stockholders may voluntarily assess themselves for the betterment of the corporation, but such assessments are not debts against the corporation, but are regarded as assets. * * * Even a statute [prohibiting assessments on fully paid stock could not prevent the stockholders themselves from making a valid contract for an additional assessment. * * * hut payment made on a voluntary assessment cannot be recovered back from the corporation.”

Thompson on Corporations, Sec. 4828, p. 734, Edition 1927.

“It may happen that when stockholders or members of a corporation have paid in full into the treasury of the corporation their required contribution to its capital stock or capital, so that their shares or membership are paid for in full, the corporation may have need of further funds. In such a case the stockholders or members may undoubtedly contribute any additional sums they may choose, although the capital stock of a corporation cannot be increased without legislative authority.”

Fletcher, Cyclopedia of Corporations. Sec. 4270, p. 7518, Vol. 7.

“Such contributions when made become assets of the corporation and do not create debts against it in favor of the stockholders.”

Ibid, Note 91.

In the somewhat analogous case of contributions by directors of a bank to make good an impairment of its capital stock, the Supreme Court of Louisiana has held that these contributions must be regarded as gifts and the bank is under no obligation to return them.

Wright vs. Gurley, 133 La. 745, 63 So. 310; Kennedy vs. Young, 136 La. 674, 67 So. 547, L. R. A. 1915D, 935; Interstate T. & Bk. Co. vs. Irwin, 138 La. 325, 70 So. 313.

The plaintiff herein as secretary of the company was in ¡position to know, and did know the financial embarrassment of the corporation. His monetary investment in its stock and his official position was a double urge to do his bit, not only to tide over its financial embarrassment, but to prevent the losses that would ensue should the corporate S.O.S. bring no relief. He knew that others perhaps just as deeply interested had failed to come to the rescue, 'but every instinct of self interest also called him to make the voluntary contribution. He was in position to frame the resolution so as to call for a loan from the stockholders instead of a voluntary contribution, but how would that have aided the corporation in its embarrassed condition? That course would certainly not have reduced the obligations of the corporation or freed it from its financial embarrassments. The very form in which he entered the contribution on the books, “Assessment Account” is a convincing answer to his present contention that he lent the money to the company. Borrowed money would scarcely require such an entry.

We are not indifferent to the fine gesture of the stockholders who made this voluntary contribution, but we cannot make contracts for them that they failed to make at the time they came to the rescue, and we are fortified in our conclusions by the lapse of time that plaintiff allowed to intervene before ¡presenting this claim. It was not made while he was in 'office, or while he was a stockholder, but only after he ceased for more than two years to have any interest in the corporation.

Holding these views, we are constrained to reverse the judgment below and to enter judgment here dismissing and denying plaintiff’s suit with costs in both courts.

For the reasons assigned, the judgment appealed from is reversed, and it is now ordered, adjudged, and decreed that there be judgment in favor of defendant, dismissing plaintiff’s suit, with costs in both courts.