author: LeBLANC, J.

text:
    No. 867
    First Circuit
    ANDERSON v. GEORGE A. HORMEL & CO. ET AL.
    (October 7, 1931. Opinion and Decree.)
    (December 8, 1931. Rehearing Refused.)
    (January 4, 1932. Writs of Certiorari and Review Refuseu by Supreme Court.)
    Eraste Vidrine, of New Orleans, attorney for plaintiff, appellee.
    Harvey E. Ellis and Frank B. Ellis, of Covington, attorneys for defendants, appellants.
   LeBLANC, J.

This is a suit for damages for personal injuries arising out of an accident on the north end of the Lake Pontchartrain bridge in the parish of St. Tammany, in which the plaintiff, Henry G. Anderson, was struck by a Ford roadster automobile being driven by one Anthony Plescia, and sustained severe injuries, the most aggravated of which consisted of two fractures of the left arm, one between the shoulder and elbow and the other between the elbow and wrist.

Plaintiff learned that there were two companies bearing the name of George A. Hormel & Company authorized to do business in Louisiana, one George A. Hormel & Company of Austin, Minnesota, and another, George A. Hormel & Company of Texas. The automobile which ran into him bore the trade name, “George A. Hormel & Company,” and not being certain as to which the driver worked for, or whether he worked for both, he alleged in paragraph 15 of his petition, that the car belonged to both and that Plescia was an employee of both companies. Accordingly, he made them both parties defendant and obtained, a judgment against them, in so-lido, in the district court, from which this appeal was taken. In this court, their counsel complains of the judgment being in solido against the Texas company, as he contends the evidence shows that at the time of the accident that company had no representative in Louisiana and was not doing business here and there is no evidence that it ever assumed any obligations or tort liabilities of the other company. All of that would be worthy of consideration were it not for the fact that the record contains an admission by counsel, made during the trial of the case, that the allegations of article 15 of the petition were true. Counsel now says that that was not the purport of the admission made and that the record is in error in that particular, but there is nothing beyond the statement in his brief that the admission is erroneously recorded, which is not enough for us to set it aside. Assuming at this time that there was fault and negligence on the part of the driver of the automobile, the judgment was correct in holding both defendants liable in solido.

Plaintiff was in the employ of the receiver of the New Orleans-Pontchartrain Bridge Company which operates a toll bridge across Lake Pontchartrain under a franchise granted by the Louisiana Highway Commission. By the terms of this franchise the company was authorized to charge toll for all traffic going over the bridge, the toll to be regulated according to a tariff which is made part of the contract. The duties of the plaintiff were to collect tolls, answer telephone calls, communicate with the draw-bridge tenders and in general to see that the rules and regulations established by the company were carried out in and around the toll house.

Traffic over the bridge travels north and south and toll is collected only at the north end. The toll house is situated on what is called the approach to the bridge, approximately 95 feet from the end of the bridge proper. It consists of three separate structures, all under a single roof. A room 10 feet 4 inches wide stands on the extreme east and west side of the roadway and there is a span covered by their common roof of approximately 28 feet between them. Almost in the center qf this span is the third structure, a small building known as the cashier’s house. The room on the eastern boundary is designated as the office, in which the toll collector attends to all other duties save the toll collecting, which is done from the small building in the center known as the cashier’s house. On either side of this small house is the traffic lane, one on the east, for the northbound traffic and that on the west -for the southbound. The collector takes toll from traffic going both ways from this station. Both these lanes are narrow, being about 8 feet, 5 inches wide each. The plaintiff testified that his duties required him to cross the lane between the office building and cashier’s house at least five times a day and as often as ten times.

In order to regulate traffic in regard to speed and payment of tolls, there were several signs displayed in conspicuous places along the bridge and especially on approaching the toll house. One of the signs at the south end was a warning not to exceed a driving limit of 45 miles per hour. On another large sign in bold- letters were posted the bridge regulations, among which was one to' the effect that the driver should approach the drawbridges and toll house with his car under full"control. Pour hundred and twenty feet from the toll house, a sign in very large letters read: “Slow — Toll House.” A similar sign was posted on the office room of the toll house itself, and on the small cashier’s house forming the central unit of the toll house was the sign: “Stop.” The two last signs could be read from a distance of 800 feet.

Plaintiff avers and so testifies, that on the morning of March 12, 1930, he came to work at six o’clock and was seated at the desk in the office room, which is the small building on the east side, when at about 6:30, looking through the south window in said building, he saw an automobile approaching from the south, approximately 200 yards away. As was his custom, he, on seeing the automobile, immediately arose from his seat and started to go to the cashier’s house to collect the toll. To leave the office building it was necessary for him to pass through it on the west side, on the outside of which was a screen door hinged on the north side and swings from the south to the north on opening. In passing through this door, plaintiff’s face is for the moment turned away from the south and the car coming from that direction is for that short instant out of his vision. He had barely left the door and walked down the two steps leading on to the narrow path between the office and the cashier’s house when the car he had seen a few seconds before was right on him. It was too late for him to do anything before it ran into him, carried him about 55 feet and continued 75 to 100 feet more beyond the point where he fell off. All the facts would indicate that this car was going very fast as it approached the toll house. Two negroes living in a boat house in a canal near the bridge estimate that it was going anywhere from 45 to 55 miles an hour. As a matter of fact the charge of speeding is not seriously contested, the defense being rather that the driver attempted to bring the car to a stoip by applying the brakes, but they did not work. It is argued that the car being a new one, defendants cannot be charged with the defective condition of the brakes. Pleseia, the driver attempted to make some explanation about the brakes not working when he was driving over 25 miles an hour, which if such were true, made it all the more necessary for him to travel under that rate of speed so as to have the car under control upon reaching the toll house. But such explanation hardly sounds plausible and, moreover, it is shown that immediately following the accident, Mr. Jacobs, superintendent of the bridge, and Mr. Wahl, another toll collector, after having obtained his permission, drove the car in order to test the brakes and both found them to be working in good order.

We are convinced of the gross negligence of the driver of the defendants’ car and now pass to the charge of contributory negligence made against the plaintiff.

The charge is that he started across the narrow lane from the office building to the cashier’s house, without stopping to look, and in the face of obvious danger.

Mr. Jacobs testifies that it takes about four or five seconds for a person to walk from the desk where plaintiff was seated when he first saw the car, to the cashier's house where toll is taken. Plaintiff says that it took him about seven or eight seconds to walk the distance, and for the sake of argument,, let us take the maximum figure stated by him in considering his action on this occasion. Assuming that he correctly states the distance as being 200 yards that the car was when he first saw it and arose from his seat, if it was going at 45 miles an hour it would have taken eleven seconds to reach the toll house, which would have allowed him three seconds more than required for him to cross over to the cashier’s house. We must remember, however, that he had not even reached the center of the pathway before he was struck and had therefore not been gone more than four seconds, which gives a stronger impression and idea of the terrific speed at which the car was coming and of the utter disregard of the driver for the law of the state regulating the driving of automobiles and also of the rules and regulations governing the traffic over the bridge he was crossing, as they appeared posted in the numerous signs and warnings displayed along the route. It was no.t the first time he had crossed over the bridge and he had always paid toll, coming to a full stop to do so on all other occasions except one, when he slowed down enough to permit him to hand the money to the collector. He was therefore familiar with the conditions around the toll house, knew he had to pay toll and must have known that he could not pay it at the rate of speed he was going. If his brakes were not working properly, as he contends, the situation required him the more to have his car running to a degree of speed where it could be safely controlled. Thousands of automobiles passed over that bridge daily, never failing to stop or slow down to a speed where they could safely pay toll. Plaintiff’s action on this morning in starting to. walk from the office to the cashier’s house when he saw the car coming 200 yards away was no different from what he was accustomed to do at least five and sometimes as often as ten times a day. He was in what might be said to be a zone of safety, made so by the fact that this was a toll bridge, governed by rules and regulations prominently posted along its course and also by the construction of the toll house itself with its narrow traffic lanes running through. He had the right to assume that the driver of the defendant car would bring it to a stop or at least slow down sufficiently to enable him to pay toll. Had he done so, plaintiff would have had ample time to reach the cashier’s house and there would have been nq accident. Under the circumstances, we fail to see where he was guilty of contributory negligence, and are bound to hold the defendants liable for the gross negligence of their employee.

We come now to a consideration of the quantum of damages, which is . not the least difficult question to determine in the' case.

Plaintiff’s demand was for the sum of $13,105.67, of which $1,759.85 was for medical and hospital fees and traveling expenses incidental to treatment; $1,345.82 for loss of salary during the ten months and twenty-three days preceding the filing of the suit, and the remaining $10,000 was made up of four items as follows: $3,000 for pain and suffering; $3,000 for breaking of arm in two places, resulting in permanent, partial disability of 50 per cent or more; $1,500 for crushing in of ribs, cut on knee and general contusions over entire body; and $2,500 for general impairment of health. The district judge awarded the sum of $7,759.85, allowing the medical and hospital and traveling expenses in full, $3,000 for pain and suffering for all injuries, and $3,000 for loss of time, disability in arm and general health impairment. Plaintiff has answered the appeal, asking that the judgment be increased to the amount originally prayed for.

There is, and can be no dispute as to the items for doctors, hospital, drug store, traveling expenses and other bills in connection with plaintiff’s operations and treatment from the date of his injury to the time he filed suit. They were all fully proven and were correctly allowed by the trial judge. They amount, as already stated, to $1,759.85. The claim for loss of salary during ten months and twenty-three days amounting to $1,345.82 was not specifically referred to by the trial judge in his opinion. He does include loss of time in an item of $3,000, together with disability on account of impairment of arm and general health. We prefer to allow the claim for loss of salary for the period asked, and as proven, as a specific item of damages' which we think plaintiff is entitled to recover. In the case of Rogge v. Cafiero, 15 La. App. 565, 131 So. 207, we allowed a young lady stenographer three months' loss of salary at $50 per month because of an arm injury which prevented her from doing her work, and we see no reason why the plaintiff in this case should not be permitted to recover his salary likewise. The demand for $3,000 for pain and suffering is not unreasonable when we consider the seriousness of plaintiff's injuries, the number of operations he had to undergo and the length of time he was under treatment. He had two fractures qf the left arm, the one between the shoulder and the elbow being especially severe and painful, according to the testimony of several doctors who testified. He received other injuries about the body, in the face and mouth which also caused much pain and suffering. He was operated on seven different times for the serious arm fracture, six of which operations had to be performed under general anaesthesia. It is generally testified to by the physicians that there is much pain both physical and mental incidental to any operation. Plaintiff himself states that the inserting of a rubber tube through the arm on one occasion caused him the greatest pain, even worse than being struck by the car. The incisions and wound brought on by the numerous operations necessitated a daily dressing which he states was also painful. In the light of all the testimony we have on the question of pain it is hard to conceive of a case in which there could have been more than was endured by this plaintiff and he certainly is entitled to the amount asked for by him and allowed by the district judge.

The next item to be considered is the claim of $3,000 for the disability resulting from the fractured arm. The degree of disability -is variously estimated by the doctors who testified as being from 20 to 75 per cent. A careful consideration of the testimony taken as a whole, however, leads us to believe that the disability is about 50 per cent, probably a bit more. In this plaintiff’s case the disability is perhaps emphasized due to the fact that a few years prior to this accident he had the misfortune of having had his right arm broken at the wrist and he had not since had its full use and enjoyment. As a matter of fact, whereas before that accident he was right-handed he was forced to train himself to use his left hand for almost every useful purpose and in doing his work as toll collector used it exclusively. In fixing the amount we will allow under this item, we take into consideration the fact that we have already awarded him for ten months’ and more loss of salary, and will make this amount $2,000.

For the injury to his ribs, cuts on the knee and general contusions and bruises over the body and face, he had asked for $1,500, but his counsel in brief concedes that this might he excessive, which we really think it would be. We have decided to allow $350.

The last item to be considered is the claim of $2,500 for general impairment of health. We do not find much testimony with regard to this claim, but at least two of the doctors, Dr. Lacroix and Dr. Heintz, have something to say regarding the effect which a number of operations such as this plaintiff had to undergo may have on the general physical make-up of the individual. “There is always a tendency to greatly reduce the physical endurance,” says Dr. Lacroix, and Dr. Heintz considers that “the anticipation of the effect and the ordeal you have to go through” would result in breaking down the general health. Plaintiff testifies that his general health has suffered an impairment by reason of the accident, which, considering the treatment and operations he had to submit to, would seem to be a natural consequence. There is no fixed way by which to determine what this damage amounts to in dollars and cents. The impairment may not be much and on the other hand' as plaintiff grows older it may become very much aggravated. We have decided to award him $544.33 on this account, thus making the total amount he is to recover $9,000.

The judgment of the lower court, in our opinion correctly fixed and taxed as costs, the fees of the several experts who testified in the case.

For the reasons herein stated, it is ordered that the judgment appealed from be amended by increasing the amount allowed from the sum of $7,759.85 to the sum of $9,000, and as thus amended, that it be affirmed.


source: Caselaw Access Project

author: WESTERFIELD, J.

license: Public Domain

text:
    No. 13,771
    Orleans
    HEYMANN v. MATHES ET UX.
    (November 30, 1931. Opinion and Decree.)
    (December 14, 1931. Rehearing Refused.)
    (February 1, 1932. Writs, of Certiorari and Review Refused by Supreme Court.)
    Jos. A. Casey, of New Orleans, attorney for plaintiff, appellant.
    Alden W. Muller, of New Orleans, attorney for defendants, appellees.

      Stanley McDermott, of New Orleans, attorney for amicus curiae.
   WESTERFIELD, J.

This case involves the Question of whether attorneys’ fees may be collected by a money lender operating under the Small Loan Law (Act No. 92 of Ex. Sess. of 1928), a question which was decided in the affirmative by this court in Automobile Sec. Corp. v. Randazza, 17 La. App. 489, 135 So. 45. Counsel for defendant admits the Randazza case is applicable here and destructive of his position, but urges us to reconsider the question upon the ground of its public importance. The writer of this opinion was not in accord with the views expressed in the Randazza case and felt so confident of his position, that he was, for reasons given therein, impelled to dissent from the opinion of his colleagues. The matter, however, is now at rest so far as this court is concerned, since the Supreme Court, in refusing an application for review, declared the decision in that case to be correct. Any modification or qualification of the doctrine of the Randazza case must be obtained from the Supreme Court if at all.

For .the reasons assigned, the judgment appealed from is reversed, and it is now ordered that there be judgment in favor of plaintiff, Henry L. Heymann, doing business as the Home Finance Service, and against defendants, Mr. and Mrs. Theodore F. Mathes, in the full sum of $285, and with 3 yu per cent per month interest thereon from June 5, 1930, until paid, together with 20 per cent attorney’s, fees on principal and interest, and all costs; with recognition of plaintiff’s chattel mortgage, lien, and privilege upon the movable property described in act of mortgage passed before Leo Heymann, notary public, and dated May 2, 1930.


author: WESTERFIELD, J. WESTERFIELD, J.

text:
    No. 13,599
    Orleans
    FARROW v. JOHN R. THOMPSON CO.
    (June 8, 1931. Opinion and Decree.)
    (July 1, 1931. Motion to Dismiss Refused.)
    (November 16, 1931. Opinion and Decree on Rehearing.)

      Wm. R. Kinsella and Jesse C. McGee, of New Orleans, attorneys for plaintiff, appellant.
    Wm. H. Talbot, of New Orleans, attorney for defendant, appellee.
   ON MOTION TO DISMISS

WESTERFIELD, J.

Appellee moves to dismiss this appeal upon the ground that the transcript was filed too late. The motion was. filed on May 25, 1931, the day on which the case was fixed for argument a second time, it having been re-assigned for argument upon joint request of both counsel.

It is conceded that a motion to dismiss an appeal for failure to file the transcript in time may be made at any time. Jacobs v. Weaver, 167 La. 59, 118 So. 692; O’Reilly Eng. Co., Inc., v. Buckner, 5 La. App. 661. It is also conceded .that the transcript in this case was not filed in time. It is contended, however, that appellee has submitted to the jurisdiction1 of the court and is estopped on that account from urging the dismissal of the cause. The alleged estoppel is based upon the fact that counsel for appellee briefed and argued the case with opposing counsel and thereafter signed a joint motion for the re-argument of the case and also a joint motion to incorporate the testimony of three witnesses in the transcript, which had been inadvertently omitted through error of the stenographer.

We are referred to Jones v. City of Shreveport, 28 La. Ann. 835, and Campbell v. Deville, 163 La. 577, 112 So. 491. In the first of the cited cases it was held that a motion to dismiss the appeal on the ground that the transcript was not filed in time could not be considered because appellee answered the appeal and prayed for amendment of .the judgment without reservation of his right to move to dismiss. In the second case (Campbell v. Deville) the court said:

“When appellant failed to file the transcript timely, this court did not lose all right to pass on the appeal, for the appellee, by this failure, acquired the right to bring the record here and to move for the dismissal of the appeal, or to pray for judgment in the same manner as if the record had been brought up by the appellant. C. P. arts. 590 and 884. The appellee, however, did not elect to pursue either of these courses, but, instead, when the appellant did file the transcript, she availed herself of the appeal by praying for an increase in the judgment, thereby virtually joining in the appeal. This precludes her from now dismissing the appeal. Michel v. Meyer, 27 La. Ann. 173; Jones v. Shreveport, 28 La. Ann. 835; Jacobs v. Yale & Bowling, 39 La. Ann. 359, 1 So. 822; Claflin & Co. v. Lisso & Scheen, 31 La. Ann. 171.”

In the instant ease the appellee did not answer the appeal asking any amendment of the judgment, but, in briefing and arguing the case and in asking fur its re-opening for the purpose of re-argument and for the purpose of admission of testimony omitted in the transcript, without seeking dismissal of the appeal until the day fixed for the second, argument, he must be considered to have waived his right to dismiss the appeal. Perhaps, in so holding, we are going a little beyond the authority of the cited cases, but, since the law favors appeals and abhors forfeitures, the doubt should be resolved in favor of the appeal and the motion to dismiss will, therefore, be denied.

ON THE MERITS

WESTERFIELD, J.

This is a suit in which plaintiff, Mrs. Marie Farrow, sued the defendant corporation, John R. Thompson Company, claiming $15,291 as damages for physical injuries alleged to have been sustained as the result of a fall which occurred on the morning of September 30, 1929, at 11:15 a. m.

The Thompson Company operates a cafeteria or self-serving restaurant at 133 St. Charles street in the city of New Orleans and Mrs. Farrow, on the morning of the accident, was one of its customers. She had selected what food she desired and, following the custom which obtains in the defendant’s restaurant was carrying her tray to a chair with a wide arm where patrons are accustomed to eat their food. As she reached a point about half-way between the serving counter and the chair •that she intended to occupy, she slipped and fell causing the injuries of which she complains. She charges that defendant is responsible for the consequence of her accident because of its alleged negligence in permitting a gray substance, which she believes was a washing powder, to remain upon the floor and which she says caused her to slip and fall.

The defendant denied that there was any washing powder upon the floor at the time of Mrs. Farrow’s fall and disclaimed all liability.

There was judgment below in favor of defendant dismissing plaintiff’s suit and plaintiff has appealed.

We have been referred to numerous citations of authority bearing upon the question of the responsibility of a storekeeper, or a restaurant proprietor for injuries due to unusual or defective conditions in the floor of the storehouse or restaurant and we have no difficulty in finding the law to be that the owner or proprietor of such place must exercise ordinary care and prudence to keep the aisles, passageways, floor and walks in a reasonably safe condition for his customers who are on the premises by his implied invitation. Thompson Grocery Co. v. Phillips, 22 Colo. App. 428, 125 Pac. 563; Bloomer v. Smellenburg, 221 Pa. 25, 69 A. 1124, 21 L. R. A. (N. S.) 464; Langley v. F. W. Woolworth Co., 47 R. I. 165, 131 Atl. 194; Lawson v. Shreveport Water Works Co., 111 La. 73, 35 So. 390.

However, as we said in Hendricks v. Maison Blanche Company, 5 La. App. 410, in order “to maintain an action by a customer against the owner of a store for apparent defects in the building, two elements must concur, viz., fault on the part of .the master, and ignorance of danger on the part of the customer.”

The alleged fault of defendant, which forms the basis of this suit, is, as has been heretofore stated, the failure to remove the slippery washing powder from the floor, which was. of tile. It is contended that defendant knew or should have known of the presence of the soapy substance.

Before discussing the effect of defendant’s knowledge, actual or presumptive, of the presence of the slippery material upon the liability of defendant, we must first determine, as a matter of fact, whether it was there. The only affirmative testimony is. that of plaintiff, herself, who claims to have seen it for the first time after the fall, and that of a Mr. Alexander, who is apparently without interest in the case. Against this we have the statement of Mr. George, one of defendant’s witnesses, also disinterested, to the effect that he was sitting within five or six feet of Mrs. Farrow at the time she fell; that he saw her fall and was the first to run to her assistance; that he saw no washing powder or soapy substance on the floor, which had been newly cleaned; and that he noticed Mrs. Farrow’s heels and thought that a lady of her weight would be safer on lower heels implying that her fall was due to high heels, though when pressed he refused to go further and say that she tripped on her heels. In addition to the testimony of this witness, who impresses us as being very fair, the manager of the restaurant and two of his. porters, whose duty it is to mop the floor, testified that there was nothing on the floor at the time of Mrs. Farrow’s fall, except some water, which had fallen from a cup of hot water which she had obtained with her food from the serving counter.

Our conclusion is .that the judgment of the trial court is correct for the reason that plaintiff has failed to make out her case.

For the reasons assigned the judgment appealed from is affirmed.


author: McGREGOR, J.

text:
    No. 3490
    Second Circuit
    McDONALD v. CITY OF SHREVEPORT
    (November 18, 1931. Opinion and Decree.)
    (December 9, 1931. Rehearing Refused.)

      Clifton F. Davis, of Shreveport, attorney ior plaintiff, appellant.
    A. M. Pyburn, of Shreveport, attorney for defendant, appellee.
   McGREGOR, J.

This is. a suit brought by the plaintiff, Mrs. Julia McDonald, a widow, against the city of Shreveport for the sum of $1,820, which she alleges is Ihe value of certain improvements which she placed on the N. W. % of section 32, township 18 north, range 14 west, while she was in possession of the same as owner in good faith under a patent issued to her by the United States in accordance with its homestead laws. She itemizes the said improvements as follows:

70 acres at $20.00 per acre--------------$1,400.00

20 spools of barb wire at $4.50-------- 90.00

Getting out 300 posts with posts for gates and building fences-------- 80.00

Living house 14 by 20 with inclosed lower floor____________________________ 100.00

Stable and chicken house 10 by 16 100.00_

Toilet, crib, and well__________________________ 50.00

Total______________________________________________$1,820.00

It is an admitted fact that plaintiff was at one time in possession of the property described above and that she held it under a patent duly issued by the United States according to law. But the validity of this patent was questioned by the state of Louisiana and the city of Shreveport, and it is admitted in the pleadings that in a petitory action brought against her by the state of Louisiana and the city of Shreveport her title was invalidated and the state and city were recognized as the true and lawful owners of the mineral and surface rights respectively. The city of Shreveport has. taken possession of the property under this judgment, and it is now covered with water and is a part of the reservoir from which water is provided for the city of Shreveport. Plaintiff in this suit seeks judgment against the city of Shreveport for the value of the improvements placed by her on the land before the filing of the petitory action, which improvements include the cost of clearing seventy acres of land, as itemized above.

In its answer the city denies that there were any improvements of any value, but at the same time it has filed and relies upon a plea of res judicata. The lower court overruled the plea and gave judgment in favor of the plaintiff for $100. Both sides have appealed.

ON THE PLEA OF RES JUDICATA

In suit No. 36,064 in the First district court of Caddo parish, wherein the city of Shreveport was plaintiff and Mrs. Julia McDonald was defendant, the city was successful in having its title to the land described above recognized. Mrs. McDonald simply defended and sought to establish her title to the land under her United States patent. She made no claim in re-convention for her improvements, nor did she reserve her right to do so in a separate suit in case she should fail to establish her title. It is the contention of the defendant that the matter of the value of and compensation for these improvements should have been raised and settled in that suit and that, since the question was not raised, the judgment of the court recognizing the city’s title to the land carried with it the improvements, and is therefore res judicata as to the demands made in this suit. In support of its contention, the defendant cites a number of authorities.

Succession of Whitner, 165 La. 769, 116 So. 180. In that case Josephine Giles had formerly claimed in another suit certain property by virtue of an act of sale from her mother, Margaret Whitner. In addition to the said act of sale she claimed the property by virtue of her mother’s will, wherein she was named universal legatee and appointed executrix without bond and with seizin of the property. No mention of this will or any rights thereunder was made during the trial of the case, even though it was in the possession of the beneficiary. Judgment was rendered in favor of the co-heirs, brothers, and nephew of Josephine Giles, setting aside the sale as a donation inter vivos, and decreeing each heir to be the owner of his rightful portion of the property. The case was appealed to and confirmed by the Supreme Court. See Giles v. Kelly, 162 La. 512, 110 So. 738. Subsequently, in another suit, the case cited, Josephine Giles sought to have her title to the same property established under the will. The same parties and the same property were involved. Josephine Giles was in possession of the will at the time of the former trial but made no claims under or in reference to it during that trial. Therefore, the Supreme Court properly sustained a plea of res judicata. In the course of its opinion in this case the court said as follows and as quoted by defendant’s counsel:

“A final judgment of a court having jurisdiction over the parties and the subject-matter puts an end to every plea or defense made, and to every plea or defense which either of the parties might successfully have made.”

A claim for the value of improvements in the case at bar was not a plea of defense which should or could have been made on the merits of the title involved.

Counsel for defendant cites the syllabus of Shaffer v. Scuddy, 14 La. Ann. 575, in support of his contention. In the body of that decision the court said:

‘‘When an issue is made between the parties to a suit, each is presumed to adduce all the evidence in his power to enable the issue to be determined correctly.
‘‘If one of the parties neglects or does not wish to introduce a part of his evidence when it is known to him, the issue cannot, after a final decision, be again opened to enable him to do so. If this were possible, litigation would be uselessly continued. If a party has four titles, he could institute in succession four different suits, instead of having the issue of ownership terminated in one suit.”

The case at bar is not a petitory action in any sense of the term. Counsel confuses the issue in this case. If the plaintiff, Julia McDonald, were bringing a new suit and raising new issues to establish her title to the land described in her petition, the plea would be good and the citations referred to by counsel would be applicable. But in bringing this suit she recognizes the judgment of the court wherein the city of Shreveport, defendant in the present suit, was declared to be the owner of the property. She brings this suit for the value of the improvements placed by her on the land in good faith. But the defendant claims that the judgment of the court decreeing the city to be the owner of the land carries with it the improvements, if they were not sued for in reconvention by the defendant in the former petitory action. This contention places a wrong interpretation on the authorities cited. A reading of those cases discloses that all the defenses referred to are such as would affect the title to the real estate involved. It is fundamental that when the defendant in a petitory action loses he has a right to be reimbursed for his improvements (C. C. art. 508, 4th par.). Sometimes in the very nature of things demand is made by way of reconvention in the same suit, and sometimes by a new and separate action. In the case of Giles v. Kelly, 162 La. 512, 110 So. 738, 740, the court said:

“In the judgment appealed from, the district court reserved to the plaintiff the right to establish her claim against the succession ‘by a new and separate action.’ At the same time, the court ordered an inventory made ‘for the purpose of effecting a partition of the estate.’ We do not interpret the judgment to mean that the plaintiff can proceed only by an ordinary action against her co-heirs, and that during the delays incident to such proceeding, the property may be sold and the proceeds, distributed among the co-heirs, who may or may not have other property subject to execution. Such a reservation would he of little or no benefit to the plaintiff; in fact it would go without saying." (Italics ours.)

Defendant cites Pearce v. Frantum, 16 La. 414, and Town of Thibodaux v. Stark, 142 La. 382, 76 So. 806. We see nothing in those cases to support the plea.

The case of Laizer v. Generes, 10 Rob. 178, is directly opposed to the theory that the defendant in a petitory action is bound to sue for his improvements by reconvention in the suit in which the title is successfully attacked. In that suit Laizer had been evicted from property which he had purchased from Generes. He brought suit against Generes for the return of .the purchase price and the value of his. improvements. He recovered judgment for the purchase price, but the court held that demand for the improvements should be made on the party who recovered the property. In the course of the opinion the court held in effect that, while the better practice is to claim the value of improvements by reconvention in the petitory action, yet this can be done in a subsequent direct action. The language of the court on this point is:

“In the present case, however, the plaintiff ought to have demanded the value of his improvements from the party who recovered the premises, and ought not to have abandoned them until he was sued, or was paid for them. He was too hasty in quitting the premises before.
“Judgment was also correctly given for the defendant, for the cost of the advertisements, the plaintiff having engaged to pay the costs of the monition.
“The plaintiff may still claim the value of his useful improvements from the party who has recovered the premises, and taken possession of them." (Italics ours.)

To sustain the position of the defendant in this case would be tantamount .to holding that, while a defendant in a petitory action may make his demand for the value of his improvements by way of reconvention in the same suit, a plea of res judicata will be sustained against him if he does not do so. We do not feel justified in so holding, and the lower court was correct in overruling the plea.

ON THE MERITS

The law governing this case is the fourth paragraph of article 508 of the Revised Civil Code, which reads as follows:

“Nevertheless, if the plantations, edifices or works have been made by a third person evicted, but not sentenced to make restitution of the fruits, because such person possessed bona fide, the owner shall nohave a right to demand the demolition of the works, plantations or edifices, but he shall have his choice either to reimburse the value of the materials and the price of workmanship, or to reimburse a sum equal to the enhanced value of the soil.”

Under the law a successful plaintiff in a petitory action is. bound to reimburse the possessor in good faith either the cost of materials and the labor used in the improvements, or a sum equal to the enhanced value of the soil. If the enhanced value of the soil is not shown, then the only standard left on which judgment can be based is the cost of the labor and the material used. McCastle v. Chaney, 28 La. Ann. 720; Durbridge v. Crowley, 44 La. Ann. 74, 10 So. 402; Davidson v. McDonald, 131 La. 1047, 60 So. 679; Grouchy v. Williams, 161 La. 909, 109 So. 545; Roussel v. Railways Realty Co., 165 La. 536, 115 So. 742.

In this case the defendant has successfully shown that the improvements, consisting of fences and houses, had served their purpose and were valueless at the time of the trial. Under that state of facts no recovery can be had for them. But the same thing cannot be said of the expense incurred in the clearing of the land. No testimony was offered on the trial of the case as to the enhanced value of the land because of the clearing done by the plaintiff; therefore the only basis on which an estimate of the amount that the plaintiff should receive can be made is the amount spent by the plaintiff for this work. The plaintiff and two witnesses, who claim to have personal knowledge of the acres cleared, swear that it was at least seventy acres, and that no less than $20 per acre was the cost of same. On the other hand, the defendant produced two witnesses who swore that the extent of the clearing was from two to ten acres. A map of the property made by the city’s engineer shows that approximately the acreage claimed by the plaintiff was in a cleared condition. The. judge of the lower court considered that there was some merit in the plaintiff’s contention, and gave her judgment for $100. We do not know how he arrived at this amount, but it appears to us that it is not sufficient to do substantial justice.

The plaintiff was in absolute good faith. She was dealing in the first place with the government of the United States, the highest power in authority. She had a right to believe that her title was absolutely good. Believing that it was good and having faith and confidence in her country’s government, she invested her hard-earned money, that was left to her by her deceased husband, in the improvements placed on this land which she believed would be her permanent home for her remaining days. Feeling thus secure in her possession, one can well imagine her chagrin and disappointment when her title to her home was successfully attacked by the two next highest powers of government under which she was living, namely, the state of Louisiana and the city of Shreveport. Under these circumstances she felt that she was due some consideration in the matter. She made a personal appeal to the mayor of the city, who .told her bluntly that she had no rights in the matter, and ordered her to vacate the premises. The city has no moral or legal right to enrich itself at the expense of the plaintiff. She undoubtedly spent considerable sums of money clearing this land, and the city, under the testimony, is bound to have profited by it. Its own map shows the land to be cleared, not simply free of timber, and the officer of the city under whose supervision the clearing of the land used as a reservoir for •the city’s water supply was made, offered no testimony to the effect that this clearing was not done by the plaintiff. The plaintiff is very earnest in her contention that she spent as much as. $1,400 in cash on the clearing of seventy acres of the land. In .this she is corroborated by J. M. Downey and Joseph Taylor, whose testimony is unimpeached. Opposed to this direct testimony there are two witnesses, for the defendant, one who estimates the amount of cleared land at from two to three acres and the other at less than ten acres. In view of this wide divergence between the estimates of the plaintiff and defendant’s witnesses placed on the amount of acreage cleared, it is difficult to determine the truth of the matter. But, taking the evidence as. a whole and considering that defendant has not undertaken to show that the land cleared by the plaintiff had to be cleared by the city, and in view of the fact that the map submitted by the city itself shows a large area to have been cleared land instead of land simply free of timber, we are convinced of the fact that there was a relatively large tract of land cleared by the plaintiff, and we think that $500 is the least amount that she should be paid for the same.

For these reasons it is. ordered, adjudged, and decreed that the judgment appealed from be, and the same is, hereby amended so as to award the plaintiff $500 instead of $100 for her improvements; the city of Shreveport to pay the costs of both courts.


text:
    No. 3789
    Second Circuit
    MOORE v. FITZGERALD
    (January 14, 1932. Opinion and Decree.)

      Edward Barnett, of Shreveport, attorney for plaintiff, appellee.
    Robert A. Hunter, of Shreveport, attorney for defendant, appellant.
   McGREGOR, J.

On October 1, 1925, G. D. Moore, the original plaintiff herein, acquired by purchase from T. M. Vaughan the following described property:

“A portion of lot Two (2) of Smith Subdivision, of Section 16, Township 17, Range 14, as per plat in conveyance book 33, page 251, more particularly described as commencing in the SW corner of said Lot Two (2), running thence east sixty-six (66) feet, thence north to right-of-way of the V. S. & P. Railway, thence southwesterly along said right-of-way to west boundary line of said Lot Two (2), thence south along saitj western boundary line to point of beginning.” (Italics ours.)

Neither the petition nor the testimony discloses from whom or when the said Vaughan acquired the property. Plaintiff’s petition describes the said tract as being bordered on the north by a public road, but the above description, which is copied literally from the copy of the deed attached to the petition, states that it is bounded on the north by the right of way of the Y. S. & P. Railioay. So that, at the very beginning, there is an apparent discrepancy between the allegation of the petition and the attached document with reference to the question as to whether there is a public road on the north boundary of the tract alleged to be owned by the plaintiff.

Originally all of lot two of the Smith subdivision was sold by B. B. Smith to W. W. Jones, and W. C. Evans, with special reference to the original plat of the subdivision as recorded in the conveyance records of Caddo parish. The date of the recordation of this sale was April 1, 1'903, and the plat of the subdivision was recorded on the same date. As well as can be determined from a certified copy of this plat filed in evidence, it appears that the entire north boundary of the said lot two was originally along and adjoining the V. S. & P. Railway, with no road or street between.

According to the petition in this suit, Mrs. Helen K. Fitzgerald, the defendant, is .the record owner of all lot two of the B. B. Smith subdivision except the above-described strip sixty-six feet wide off the west end, which is alleged to be owned by the plaintiff. After this suit was filed, and before it was. tried, the plaintiff died. Luther Moore, testamentary executor, has been substituted as plaintiff, and is now prosecuting the suit in his representative capacity.

It is the contention of the plaintiff .that there is a public road thirty-two feet wide on the entire north boundary of lot two, but that the defendant not only refuses to admit or recognize its existence, but is fencing it and plowing it up and otherwise obstructing it. This suit was > brought by the plaintiff against the defendant to have the said road recognized. A preliminary writ of injunction was asked for to restrain the defendant from plowing this strip and from placing obstructions and fences across and in the said public road. On trial there was judgment for the plaintiff, and a preliminary writ of injunction was issued as prayed for. Prom that judgment, the defendant has appealed.

OPINION

Plaintiff and defendant trace their titles to a common author, W. W. Jones, who, on August 16, 1906, owned the entire lot two. On that date W. W. Jones sold the entire lot to John E. Murray and in the body of the deed it is described with reference to the original plat which, as stated above, was recorded on April 1, 1903, and which, as a matter of fact, shows no road between the lot and the railroad right of way. It is then stated further that the acreage contained in the lot is 11.24 acres instead of 13.42 acres, as shown by the original plat, and that a corrected map of the lot is filed with the deed and made a part thereof. From the wording of the deed, the plain inference is that this corrected map was. prepared for the purpose of showing acreage, and not for the purpose of showing a road or street on the north, for no reference of that kind is found in the deed which was recorded without the map. The original of the deed, as well as the map, if it ever existed, were lost and could not be produced at the time of the trial.

On the same day that John E. Murray acquired the' said lot two, he sold eleven acres of it to Isaac Sandford, and it was described as follows:

“Eleven (11) acres of land in Lot 2 of the Smith Subdivision, of the Parish of Caddo, Louisiana, as per map in Book 33, page 251, said lot 2 containing 11.24 acres instead of 13.42 acres shown on the map above referred to and the vendor herein conveys all of said lot 2 except the following piece of land: a piece of ground containing 24/100 acres off the west end of said Lot 2 as per map filed with the deed of W. W. Jones, to J. E. Murray, of this date.”

It will be noted that in the above deed reference is made to the map which was said to have been filed with the deed from W. W. Jones to John E. Murray but which, as a matter of fact, was never recorded and could not be found at the time of the trial. No reference whatever is made in the said deed to a road or street on the north.

On February Í3, 1908, John E. Murray sold the west end of said lot two, sixty-six feet wide, to Isaac Sandford. In this deed, reference is made to the map said to have been filed with the deed from W. W. Jones to John E. Murray, and particular mention is made of the fact that ¡the northern boundary of the .24 acres is along a public road. But nothing in this deed could be binding on the defendant, as it is not in her line of title, and she was no party to it.

On January 4, 1908, Isaac Sandford sold to A. S. Toombs what purported .to be all of lot two of Smith’s subdivision “less that portion of same given for a road way.” The description, as found in the deed, is as, follows:

“Lot No. 2 of Smith’s Subdivision of part of West half of Section Sixteen (16) Township seventeen (17) Range Fourteen (14) in the Parish of Caddo, State of Louisiana, as per map recorded in Conveyance Book 33 page 251 of the Clerk’s office of Caddo Parish, together with all buildings and improvements thereon, less that portion of same given for a roadway, and being the same property acquired by this vendor from J. E. Murray on August 16, 1906, as per deed in Conveyance Book 43 page 391, and by said Murray from W. W. Jones, as per deed in Conveyance Book 42, page 253, said land containing Eleven acres more or less.”

A careful study of this deed discloses that it was intended to convey all of lot two except the west .24 acre which had been retained by John E. Murray, but which was subsequently sold by Murray to Sandford. The reference to the roadway is meaningless, as there is nothing in any of the deeds without the alleged map to fix its location. No special reference is made to this so-called new map in this deed.

Some few months after he acquired the property A. S. Toombs died, and it was acquired by his widow, Mrs. Florence Toombs, on October 30, 1909. The description by which she acquired the property was as follows:

‘•'Lot Two (2) of the Smith Subdivision.”

Florence Toombs subsequently died, and on April 5, 1924, Mrs. Marion Beattie acquired the property under the following description :

“Lot No. 2 of the B. B. Smith Subdivision .of Caddo Parish, Louisiana, as per map recorded in the Conveyance Records of Caddo Parish, Louisiana, together with all the buildings and improvements, thereon.”

Marion Beattie died, and in the course of the administration of her succession Mrs. Helen K. Fitzgerald, the defendant, acquired the property at sheriff’s sale under the following description:

“Lot Two of the B. B. Smith Subdivision, Caddo Parish, Louisiana.”

From the last three transfers it will be seen that, dating from the year 1909 that portion of the property now owned and held by the defendant has been sold and described as lot two of the Smith subdivision without any reference to any public road ur corrected map. So far as the deeds are concerned, the defendant has title to the entire lot two, but since there is another chain of conveyances which show the plaintiff to be the owner of a strip off the west end of the lot, sixty-six feet wide, and containing .24 acre, the defendant could not be recognized as. the owner of this portion of lot two, even though her deed does describe and include it.

If, in the chain of conveyances by which the plaintiff claims the title tc the west .24 acre of lot two, there are references to a roadway being on the northern boundary of that particular tract, those references cannot be binding on the defendant if in her chain of title there are no such references. Particularly is this true since defendant’s chain of title is governed throughout by the original plat which shows no roadway, as contended for by the plaintiff.

It is argued that the so-called corrected map alleged to have been attached to and made a part of the deed from W. W. Jones to John E. Murray on August 16, 1906, shows a street or public road thirty-two feet wide on the entire northern boundary of lot two. But this map was never recorded, nor has it been shown to have been actually attached to the deed or filed. Unless that alleged map was actually filed and recorded, it was not binding upon third persons who did not buy with reference to it.

Over the objection of the defendant, there was admitted in evidence a copy of) a plat attached to an abstract covering the west sixty-six feet of lot two. In the caption of this abstract it is stated that lot two extends north to the right of way of the V. S. & P. Railway, and that the northern boundary extends southwesterly along the said right of way to .the west boundary line of the said lot two. This copy of the so-called plat carries no date showing when it was made, nor does it show that it was ever filed or identified with any deed. It shows on its face that it was made by H. E. Barnes for Isaac Sandford and not for either W. W. Jones or John E. Murray, the parties, to the deed to which it is alleged that a corrected map was attached for the purpose of showing acreage. This copy of a plat does show a thirty-two foot roadway on the north 'of lot two, but there is nothing on the face of the map to show that it was ever filed or recorded with any deed. In fact, no such map or plat was ever recorded, and therefore, it cannot, by any stretch of the imagination, or under any theory of the law, be binding on this defendant or any third parties. It would indeed be revolutionary to hold that third parties can be bound by written instruments. of any kind to which .they were not parties, and which were never placed on public record. If a strip of land thirty-two feet wide can be taken off the north end of defendant’s property . because of a map which is alleged to have been made, but which was never recorded, the same line of reasoning could deprive her of the west one-half or a.ny other portion of the property upon the simple production of a copy of a deed which some one might claim to have been executed, but never recorded.

In defendant’s line of title there is only one reference to a roadway, and that was on January 4, 1908, when Isaac Sandford executed a deed to A. S. Toombs covering all of lot two “less that portion of same given for a roadway.” There is nothing in that deed to indicate where the roadway was. In the argument of counsel for plaintiff, it is suggested that the strip sixty-six feet wide was reserved off the west side of lot two for a roadway. It could easily be that this reference to a roadway having been reserved was to this strip. The deed specially stipulates that the land being sold was the same which the vendor had acquired from John E. Murray and which Murray acquired from W. W. Jones. In those two former deeds there was no reference whatever to any roadway being on the north of the said property.

The evidence discloses, therefore, that nowhere in defendant’s, chain of title is there any reference to the roadway claimed by the plaintiff. Furthermore, the very deed by which plaintiff acquired the property states specifically that the northern boundary line of lot two extends to and along the right of way of the railroad. For some unexplained reason the plaintiff leaves a skip in his chain of title. If the deed from T. M. Vaughan, plaintiff’s vendor, states, as it does, that the line of lot two extends to and along the railroad right of way, it is to be presumed, until otherwise proved, that the deed by which Vaughan acquired the property stated .the same thing. Also, the caption of the abstraot of title of plaintiff’s portion of lot two shows that the northern boundary of the said lot two extends to and along the said railroad right of way. So that it is clearly shown by the chains of title of both the plaintiff and defendant that the northern boundary line of lot two extends to and along the railroad right of way.

Some effort was made to show the existence of this road by oral testimony. It is admitted by all that according to the original plat there was no roadway, but that lot two extended all the way to the railroad right of way. The only claim to the roadway is based on the alleged map that was said to have been attached to the deed from W. W. Jones to John E. Murray. Neither of them remembered or' knew anything about the road. Dedication of streets or roads cannot be shown by oral testimony, particularly when the alleged roads or streets, are claimed under written deeds of sale.

The plaintiff has not only failed to establish the dedication of the roadway as claimed in his petition, but the defendant has clearly shown title to all of lot two up to the railroad right of way, except a strip off the west end sixty-six feet wide, which is owned by the plaintiff.

For the reasons assigned, it is hereby ordered, adjudged, and decreed that the judgment appealed from be, and the same is hereby, reversed and annulled; that the preliminary injunction issued herein be, and the same is hereby, dissolved; that the plaintiff’s suit be dismissed as of non-suit, and that the plaintiff pay all the costs of both courts.


author: HIGGINS, J.

text:
    No. 13,821
    Orleans
    TALMADGE v. WEST ORLEANS BEACH CORP., INC., ET AL.
    (November 3, 1931. Opinion and Decree.)
    (November 30, 1931. Rehearing Refused.)
    (January 4, 1932. Writs of Certiorari and Review Refused by Supreme Court.)

      Milner & Porteous and William A. Porteous, Jr., of New Orleans, attorneys for plaintiff, appellee.
    Borah & Bloch, of New Orleans, attorneys for defendants, appellants.
   HIGGINS, J.

This is a suit for the rescission of a contract and the return of certain money ¡paid to the defendants in accordance with its terms. The petitioner alleges that on February 23, 1926, he entered into a written contract to purchase certain land, agreeing to pay the sum of $1,650 therefor; that he obligated himself to pay 10 per cent upon the acceptance of the offer, 15 per cent within sixty days and the balance in three equal annual payments bearing 6 per cent interest; that the defendants agreed tq sell the land, to gravel Harvard avenue on which some of the lots fronted; to execute a bond for deed when 25 per cent of the purchase price was paid; to execute a warranty deed to the plaintiff for the property when 50 per cent of the purchase price was paid; to. pay all taxes; and further agreed that at the time of the last payment, if the conditions of the contract were not carried out, defendants would refund the entire amount plus taxes and interest at the rate of 6 per cent; that when 25 per cent of the purchase price was paid a bond for deed was issued to plaintiff on June 10, 1926, and when 50 per cent of the purchase price was paid a warranty deed was executed in authentic form on May 11, 1928; that the vendor’s lien note securing the balance of the purchase price was negotiated to an innocent third person and that at the time of the last payment, the defendants had failed to gravel Harvard avenue and, under the provisions of the contract, plaintiff requested that his money be refunded, offering to reconvey title to the land to defendants.

Defendants filed a plea of oyer for the written documents which were produced by plaintiff and filed in the record. Both defendants then filed exceptions of no right or cause of action on the ground that the provision, in the original contract giving plaintiff the right to request the refund of the entire purchase price in the' event the avenue was not graveled at the time of the last payment, was not incorporated in the bond for deed or the warranty deed and, therefore, was waived and abandoned by plaintiff, the original contract having become merged in the warranty deed. The exceptions were referred to the merits and defendants answered presenting the same issues.

On the trial of the case on its merits there was judgment in favor of plaintiff as prayed for and defendants have appealed.

The record shows that plaintiff was solicited to buy lots of ground in a subdivision which was owned by the West Orleans Beach Corporation, Inc., one of the defendants. Johness Realty & Security Co., Inc., the other defendant, was acting as agent promoting the sale of the real estate. When the original contract was presented plaintiff refused to sign it unless the clause as to graveling Harvard avenue was inserted therein. Plaintiff and the real estate salesman who sold the lots both testified that plaintiff would not sign the original contract until the provision was placed in it. Plaintiff carried out his portion of the contract, but defendants did not have Harvard avenue graveled at the time of the last payment or at the time of the trial of the case. It is undisputed that the provision in question was not incorporated in either the bond for deed or the warranty deed.

The clause in question reads as follows:

“This agreement to purchase is accepted by the Johness Realty & Securities Co., Inc., Agents for the West Orleans Beach Corporation, Incorporated, with the understanding that at the time of the last payment, if the conditions contained herein are not carried out by the vendor, — the West Orleans Beach Corporation, Incorporated, — the Johness Realty & Securities Co., Inc., agree to refund to the purchaser the entire amount paid plus taxes and interest at the rate of six per cent, per annum, if so requested.”

The law on the subject is stated in Corpus Juris, vol. 18, p. 271, verbo “Deeds,” as follows:

“Merger of Previous Agreements. As a general rule a deed made in full execution of a contract of sale of land merges the provisions of the contract therein, and this rule extends to and includes all prior negotiations and agreements leading up to the execution of the deed, all prior proposals and stipulations, and oral agreements, including promises made, contemporaneously with the execution of the deed. This is true even where the grantor is not a party to the original contract, provided the deed is made in compliance therewith. Where, however, the deed constitutes only a part performance of the preceding contract, other distinct and unperformed provisions of the contract are not merged in it. And where a contract of sale provides for the performance of acts other than the conveyance, it remains in force as to such other acts until full performance, so also independent and collateral agreements are not merged, nor are a vendor’s or a purchaser’s covenants necessarily merged or discharged. The question of merger has also been declared to be one of construction, to be gathered from a consideration of the entire contents of the instruments, and the agreement upon which the deed is founded may be admissible or referred to to explain an uncertainty or ambiguity in the latter. But a person claiming under other representations and agreements than those embodied in the deed must make out his case by clear and certain proofs. Again the general rule is subject to the further limitation, qualification, or exception that there has been no fraud or relievable mistake, no misconception of the deed by either party, and no intent to the contrary. The merger does not take place until the deed is delivered and the consideration furnished.”

See, also, Ruling Case Law, vol. 8, par. 74, verbo “Deeds.”

In the case of Delogny v. Mercer, 43 La. Ann. 205, 8 So. 903, it appears that the owner of the land issued a prospectus, setting forth the terms of credit and the conditions of the sale. The Supreme Court held that the terms of the prospectus were to be read into the deed.

In the case of Louisiana & A. Ry. Co. v. Winn Parish Lumber Company, 131 La. 307, 59 So. 403, 409, the Supreme Court of this state cited with approval the cases of Delogny v. Mercer, supra, and Taylor v. N. O. Terminal Co., 126 La. 420, 52 So. 562, 139 Am. St. Rep. 537, in the following language:

“It has, moreover, already been sanctioned by this court, in a case in which Bermudez, C. J., as the organ of the court, referring to certain language advertising the sale of real estate and expressing the intention of the owner to leave a certain space in front of the property advertised for the use of the purchasers, held that it constituted ‘a covenant running with the land.’ Delogny v. Mercer, 43 La. Ann. 205, 8 So. 903. In a later case, in which it appeared that a railroad company had acquired land with the obligation to fence and drain it and construct crossings thereon, it was held that a servitude was thereby created in favor of the adjacent land, and that the right to enforce it passed with the title, which was about the same thing as to hold that it was covenant running with the land. Taylor v. N. O. Terminal Co., 126 La. 420, 52 So. 562, 139 Am. St. Rep. 537.”

Returning then • to the original contract and construing it in connection with the bond for deed and warranty deed, we observe that the original agreement contemplates certain successive steps of performance at future intervals or periods of time. After the plaintiff had paid 10 per cent of the purchase price upon the acceptance of the offer and an additional 15 per cent within sixty days, defendants were obliged to issue a bond for deed to him. When plaintiff paid in 50 per cent of the purchase price he was entitled to a warranty deed, which was executed in his favor. The plaintiff was then required under the express terms of the original contract to pay the other half of the purchase price in three equal annual installments bearing 6 per cent interest. Defendants had this period of time in which to construct a gravel road on Harvard avenue. The contract specifically provided that when the last payment was made if the defendants had not constructed the road, plaintiff would have the right to request a refund of the entire purchase price and any taxes that he might have paid, with interest at the rate of 6 per cent per annum.

Taking these three documents into consideration it appears to us that the execution of the bond for deed and warranty deed were not subsequent agreements intended by the parties to cover the entire subject matter and merge everything into one agreement. The execution of the bond for deed and warranty deed were simply acts of performance at different intervals in carrying out the terms of the original agreement. The original contract did not become an executed contract when the bond for deed and the warranty deed were signed and delivered, but remained an ex-ecutory contract because there were other acts of performance to be done in the future by both parties. Therefore, the failure to put the stipulation in question in the bond for deed or warranty deed could not be construed as an abandonment or waiver of it or a merger of the entire subject matter into a final agreement in the form of the warranty deed.

Counsel for defendants have cited a number of cases which in effect hold that all preliminary negotiations and agreements are to be deemed merged in the final instrument executed by the parties and that a warranty deed to land, without exception or reservations when delivered and accepted is deemed, in the absence of fraud or mistake, a complete relinquishment of conflicting reservations in any prior executory contract. Van Ness v. Mayor of Washington, 4 Pet. 232, 7 L. Ed. 842; Mott v. Richtmyer, 57 N. Y. 49-64; French v. Burnett McMillion, 79 W. Va. 639, 91 S. E. 538, L. R. A. 1917D, at page 229; Clifton v. Jackson Iron Company, 74 Mich. 183, 41 N. W. 891, 16 Am. St. Rep. 621; Horner v. Lowe, 159 Ind. 406, 64 N. E. 218; McMaster v. State, 108 N. Y. 542, 15 N. E. 417; Gayton v. Day (C. C. A.) 178 F. 249; Carr v. Miller-Morris Canal Company, 105 La. 239, 29 So. 715.

These cases are not in point because in each instance the court found from the documents before it that it was the intention of the parties to merge all preliminary matters, provisions, agreements and contracts into the final contract or deed which was delivered and accepted. In the present case the documents convince us that such was not the intention of the parties because the original contract contemplated future acts of performance after the execution of both the bond for deed and the warranty deed.

We do not believe that there is any merit in the contention of the Johness Realty & Securities Company, Inc., one of the defendants, that as it only acted as agent for a disclosed principal it is not liable, because under the above quoted provision of the contract it is clear to us that it bound itself equally with the principal to return the purchase price in the event the road was not constructed. Thus the mandatary guaranteed the faithful performance of this provision in the contract, and is liable. C. C. 3012.

For the reasons assigned the judgment appealed from is affirmed.


author: DREW, J.

text:
    No. 3751
    Second Circuit (Second Division)
    WILLIAMS v. DAVE LUMBER CO. ET AL.
    (November 18, 1931. Opinion and Decree.)
    (December 9, 1931. Rehearing Refused.)
    R. A. Fraser and Ponder & Ponder, of Many, attorneys for plaintiff, appellee.
    W. H. Scheen, of Shreveport, and Boone & Boone, of Many, attorneys for defendants, appellants.
   DREW, J.

This case is a companion case to No. 3752, on the docket of this court, entitled J. H. McNeely v. Dave Lumber Company et al., 18 La. App. 672, 137 So. 607, decided this day. The two cases were consolidated for trial in this court. Although they were tried separately in the lower court, the evidence adduced in No. 375? was by agreement used in this case. The pleadings raised the same issues, the same exceptions were filed, and the same ruling made by the lower court. The only difference in the two cases is that there are different plaintiffs and a difference in the amounts sued for. The account sued on is admitted to be correct, therefore, for the reasons assigned in No. 3752, on the docket of this court.

The judgment of the lower court is affirmed, with costs.


text:
    No. 3766
    Second Circuit
    COLEMAN v. FIDELITY FINANCE CO., INC.
    (November 18, 1931. Opinion and Decree.)
    Arthur A. LeRosen, of Shreveport, attorney for plaintiff, appellee.
    Roberts & Naff, of Shreveport, attorneys for defendant, appellant.
   DREW, J.

Plaintiff alleged the ownership of a Ford car, and that he borrowed from defendant $40, for which he executed a chattel mortgage against said car for the amount of $60.50, payable in two installments of $25.25 each. The mortgage was executed on June 15, 1928, and the notes made payable on July 15 and August 15, 1928. Plaintiff further alleged that he was unable to meet the payments when due, and requested an extension of time, agreeing to store the car until he could make the payments, and that he did store the ear, pursuant to said agreement. That defendant took the car from said storage garage, illegally converted it by selling it, and that on a later date he (plaintiff)' found a person to pay the note and upon going to defendant’s place of business for that purpose, found that the car had been sold by defendant. On account of said illegal conversion, plaintiff alleged he had been damaged in the sum of $350, the value of the car, less the amount owed thereon, $50.50, and in the sum of $200 for the loss of use of the car.

Defendant, in answer, denied the main allegations of plaintiff’s petition and alleged that plaintiff agreed to leave the car at the storage garage for defendant as a full satisfaction of the note owed by plaintiff to defendant; that pursuant to said agreement, the car was left at the storage garage where defendant afterwards took possession of it, spent $15.75 for repairs and sold the car at private sale for $60, losing $5.25. That in accordance with the agreement with plaintiff, it credited his note as fully paid and returned it to him. In the alternative and in reconvention, it prays for judgment against (plaintiff for $50.50, with 8 per cent per annum interest and attorney’s fees.

On these issues the case was tried, resulting in judgment for plaintiff in the sum of $150, less the amount of $50.50, plus interest at the rate of 8 per cent per annum from July 15, 1928, until paid. Defendant has appealed.

The record, we think, clearly shows an illegal conversion of plaintiff’s Ford car. The lower court so found and his judgment in that respect is correct. The testimony is very conflicting. However, the preponderance is with the plaintiff. The man in charge at the storage garage was under the impression, from his conversation with plaintiff and defendant, that the car was to he stored until plaintiff could raise the money to pay the note. That was undoubtedly the intention of plaintiff and is borne out as the agreement between plaintiff and defendant by defendant’s witness Peters, who testified that he tried to buy the car from defendant after it had taken possession of same and was told that it could not sell the car until it found out what plaintiff was going to do. Plaintiff’s notes were not returned to him until several weeks after defendant had sold the car. If the agreement had been for plaintiff to give the car to defendant in cancellation of the note, there is no good reason why the note should not have been marked “paid” and delivered to plaintiff at once. The most that could be made out of the claim of defendant, under the evidence, is that plaintiff pledged the car to defendant as further security for the note, which would not justify defendant in selling the car without legal process. The car was sold at private sale and was an illegal conversion, and plaintiff is entitled to the damage he sustained thereby.

The award of $150 as the value of the car, we think, is excessive and should be reduced to $100, which is the full value of the car as shown by the evidence. It is therefore ordered, adjudged, and decreed that the judgment of the lower court be amended by reducing the amount of the award to plaintiff from' $150 to $100, and as amended, that the judgment be affirmed; cost of appeal to be paid by appellant.


author: STEPHENS, J.

text:
    No. 3841
    Second Circuit (Second Division)
    HOUSTON-LONG CO., INC., v. FAIRCLOTH
    (November 18, 1931. Opinion and Decree.)

      Charles M. Roberts, of Minden, attorney for plaintiff, appellee.
    .Wallace & Hardeman, of Benton, attorneys for defendant, appellant.
   STEPHENS, J.

The plaintiff sues to recover the balance due on an installment note, amounting to $277, and for $15.10 for services alleged to have been rendered the defendant in the nature of repairs on an automobile, and further for. recognition of a vendor’s lien and privilege on an automobile alleged to have been sold to the defendant by plaintiff and for which the note referred to was given.

The defendant answered, admitting the purchase of the automobile from the plaintiff, and the execution of the note as representing the purchase price. The defendant alleged that the automobile purchased from the plaintiff was so defective that it was unfit for the purpose for which it was intended; that he had returned the automobile to the plaintiff soon after its purchase; and that the defendant had accepted it, and that the obligation to pay the purchase price which was represented by the note was thereby extinguished. The defendant denied that he owed the repair bill of $15.10.

A trial of the case resulted in a judgment in favor of plaintiff in the sum of $277, with interest and attorney’s fees, and recognizing plaintiff’s vendor’s lien and privilege on the automobile, and rejecting the $15.10 item for repairs. The defendant prosecutes this appeal.

The record discloses that one Mr. Bledsoe, representing the plaintiff corporation, sold the defendant a second-hand Chrysler sedan automobile, on April 4, 1929, with warranty that it was in good mechanical condition. The defendant executed the note sued on in consideration thereof. Immediately after the transaction was consummated by the delivery of the automobile, it developed that it had no lights; the wiring for lights was defective; the battery was too weak to turn the starter; gear shifting was difficult because of a defective differential; that the timer chain was worn out and had to be replaced, and the clutch was so eccentric in character and erratic in its operation that sometimes it would grab and cause the automobile to jump, and at other times it would slip. The automobile was in a very poor state of repair when delivered. In less than a week thereafter, it developed a tendency to lose a rear wheel. On two occasions while the automobile was being operated, the rear axle worked its way out of its housing a distance of more than a foot. It was necessary that it be hauled in a number of times during the short duration of defendant’s possession.

The defendant delivered the automobile to the plaintiff and paid one installment of $35 on his note, and took the position, which he here asserts, that his obligation was discharged. We think his position is correct and that it is supported by considerations of both law and equity.

The defendant is entitled to the relief provided by article 2520 of the Civil Code which reads as follows:

“Redhibition is the avoidance of a sale on account of some vice or defect in the thing sold, which renders it either absolutely useless, or its use so inconvenient and imperfect, that it must be supposed that the buyer would not have purchased it, had he known of the vice.”

The automobile was practically useless, or at least, its use was so inconvenient and imperfect that it must be supposed that the defendant would not have purchased it had he known of its vices. A number of the defects were not apparent upon simple inspection, and were therefore redhibitory vices. C. C. 2521. It is not disputed that the plaintiff’s agent, Bledsoe, guaranteed the automobile to be in good mechanical condition, or that he was authorized to do so. The defendant dólivered the automobile soon after its [purchase to the plaintiff, thereby restoring the seller to the situation which existed at the time of the ■ sale, and thus availing himself qf the right to maintain the redhibitory action as a defense to a suit for the purchase price.

The district judge was of the opinion that the evidence justified the rescinding of the sale because of redhibitory defects, but denied such relief on the ground that defendant had not sued for a rescission. We quote from his opinion:

“Defendant possibly offered sufficient testimony for a rescission of the sale, and the brief indicates that that was the defense, however, after careful reading of the answer I do not find any demand for rescission of the sale. Possibly if that had been the defense the defendant could be granted relief, or if defendant had defended on the ground of failure of consideration he might be granted relief.
“Under a prayer for general relief, it is sometimes possible to grant relief not specifically prayed for, but in all such cases there should be some pleading that would justify granting relief under the general prayer, and I find no pleading in the answer to justify either a rescission of the sale, or a rejection of plaintiff’s demands on the ground of failure of consideration.”

It is true, as stated by the district judge, that a rescission of the sale is not specifically prayed for, and that the allegations which appear in the answer do not distinctly give it the character of a redhibitory action, but the facts which were adduced on the trial of the case, which were not objected to, amplified the pleadings to the extent that we think a proper basis was laid for granting a rescission of the sale in response to the defendant’s prayer for general and equitable relief.

No proof was offered to support the demand for $15.10 for repairs.

It is ordered, adjudged, and decreed that the judgment appealed from be annulled, avoided and reversed except in so far as it rejects plaintiff’s demand for the item of $15.10; and that there ■ now be judgment in favor of the defendant and against the plaintiff, rescinding and setting aside the sale of the automobile and rejecting plaintiff’s demands in toto.


text:
    No. 3975
    Second Circuit (Second Division)
    FULLER v. THE TEXAS CO.
    (January 14, 1932. Opinion and Decree.)

      John B. Piles, of Shreveport, attorney for plaintiff, appellant.
    Charles H. Blish, of Shreveport, attorney for defendant, appellee.
   DREW, J.

This is a suit to have an instrument declared to be a contract of lease and to be declared to be null and void; and in the alternative, if the court should hold that the instrument is not a mineral lease, but a reservation of mineral rights, then for same tu be declared barred by ten years’ non-user, and that plaintiff be recognized as the owner of all the mineral rights in and to the described land, consisting of 480 acres.

On trial of the case, it was admitted by plaintiff and defendant that the value of the property involved was in excess of $2,000.

The value placed on the property involved by both plaintiff and defendant takes the case out of the jurisdiction of this court. Exercising the authority granted to us by Act 19 of 1912, we therefore order this case transferred to the Supreme Court of the State of Louisiana, and fix the time for appellant to perfect the transfer at thirty days from the time this judgment becomes final.


author: TALIAFERRO, J.

text:
    No. 3967
    Second Circuit (Second Division)
    FROST LUMBER INDUSTRIES, INC., v. RAINES
    (January 14, 1932. Opinion and Decree.)

      Lee & Williams, of Mansfield, attorneys for plaintiff, appellant.
    Pegues & Pegues, of Mansfield, and J. S. Pickett, of Many, attorneys for defendant, appellee.
   TALIAFERRO, J.

This suit was instituted by plaintiff to recover of the defendant the sum qf $492.60 with interest thereon at the rate of 5 per cent per annum from January 15, 1930. Plaintiff alleges that during the month of February, 1929, it purchased from one W. C. Beall a certain tract of land situated in Sabine parish, Louisiana, comprising some 2,400 acres of land, a small portion of which was in cultivation and the balance being timber land and wood land. That in the deed of transfer to plaintiff by the said Beall the following stipulation or clause was embodied:

“That sale is made subject to certain lease agreements between the vendor herein and certain tenants occupying and using portions of said property for the purpose of raising crops during the year 1929; said present tenants to be allowed to cultivate and raise crops thereon for the year 1929 but all rental due, being one fourth of all crops, to be paid by said tenants to the vendee herein, Frost Lumber Industries, Inc.”

That agreeably to the terms of said sale and purchase the rentals from said lands were deposited by the tenants thereon with the firm of Hardee & Glaspie Company, Inc., amounting to the net sum of $492.60, to the credit of the “Beall Place,” as had been done in previous years. That without authority of plaintiff, defendant collected said money from Hardee & Glaspie Co., Inc., and failed and refused to pay it over to plaintiff, and this suit is brought to recover from defendant said amount with interest, as hereinabove stated, from January 15, 1930, which is alleged to be the date the defendant received said amount from the firm of Hardee & Glaspie Co., Inc.

Answering the demands of plaintiff, the defendant claims and contends that for a number of years prior to the purchase of the property by plaintiff it was owned by W. C. Beall, of Pineville, Rapides parish, Louisiana, and that for several years prior to sale thereof to plaintiff, defendant had been employed by Beall at an agreed salary of $25 per month, in the capacity of overseer of said property with the duties of renting the cultivated portion of same, collecting the rent and stumpage for any timber sold, and looking after trespassing and forest fires thereon. That at the date of the transfer qf said property the defendant was so employed by the vendor thereof and continued to be so employed up to February 20, 1929, at which time he was advised by the said Beall that he had sold said property to the plaintiff. Defendant further contends that he was employed by the plaintiff herein to continue to oversee said property for it for the year 1929, upon the same terms as he had done for Mr. Beall, and that he continued to perform such duties during the year 1929, and that he is entitled to compensation therefor at the rate of $25 per month for eleven months of said year. He admits that he collected the sum of $492.60 from the firm of Hardee & Glaspie Co., Inc., retaining $275 as his salary for the eleven months, and endeavored to pay the plaintiff the balance of $217.60. Judgment was rendered for plaintiff in the sum of $217.60 and against it for costs. Plaintiff appealed.

It will thus be seen that the defense presented. is that the defendant had a contract of employment with the plaintiff for the period of time in question, and if this be true, he would be entitled to the amount contended for by him.

The issues presented for decision involve only questions of fact. We have carefully read and examined the evidence in the case in order to arrive at a correct conclusion with reference to whether or not there was a contract of employment between plaintiff and defendant, express or implied. It is undisputed that the defendant did actually have such employment with plaintiff's vendor for several years prior to the acquisition by the plaintiff. The compensation he was to receive therefor is clearly disclosed by the record. That this employment continued up to the 20th day of February, 1929, is likewise clearly revealed by the record; also, the duties to be performed by the defendant under such employment appear to be undisputed.

Relative to whether or not there was either an implied or expressed contract of employment of defendant by plaintiff, or whether the plaintiff assumed the contract theretofore existing between the defendant and the prior owner, Beall, the evidence may be summarized as follows:

Beall testified that upon sale of the property to the plaintiff, represented by J. O. Bice, he requested to know of the representative who would be in charge of the property for the plaintiff. That he was informed by Bice that he, Bice, would be in charge of it, whereupon Beall informed Bice that if he needed any one to assist him he could not do better than employ either of the Raines brothers. It is not disclosed that Bice, representing the plaintiff, stated tq this witness that the plaintiff would desire the employment of anyone as overseer, nor was Beall requested or invited to inform the defendant that the plaintiff desired to retain him in its services. Bice merely stated that he would see the plaintiff about matters in general concerning the property. The evidence of Beall further discloses that he had employed the defendant for the year 1929 in the capacity of overseer, providing he did not sell the place, and if he did sell the place, that same would be sold subject to the rent contracts, and that he, Beall, in the event of sale would take care of the renters. Nowhere does the evidence reveal that Beall in selling the property, agreed to take care of the defendant who had theretofore been in charge of the property as overseer. And the evidence does not disclose that the defendant was a tenant on the property, but does show that he did not reside on it. The testimony of Beall further shows that after sale of the property he settled with the defendant up to the time the property was sold.

The defendant himself as a witness stated that no direct promise was made to him by the plaintiff to continue to pay him in accordance with his prior contract with the former owner of the property, Beall, but that he thought that he was to be paid the salary by the plaintiff; and that he based his contention for salary merely upon the fact that when the representative of the plaintiff came to see him the first time, this representative told him to go ahead and finish collecting the rents and that later he, the representative, would come back and have a settlement. This was many months after plaintiff bought the property.

It appears further that under the employment of the defendant by the prior owner of the property he drew monthly on his employer for his salary, but that during the near eleven months after the purchase of the property by the plaintiff herein, defendant' did not attempt to collect any salary, and the first time he spoke to anyone connected with plaintiff about his claim for salary was when he visited the office of plaintiff, in the fall of 1929, after the rents had been paid in.

The evidence further discloses that the agents of the plaintiff looked after the timber lands and the defendant, if any service was rendered by him at all, gave his attention tq the cultivated lands, such as collection of rentals or seeing that the rentals were deposited with the firm of Hardee & Glaspie Co., Inc.

We do not think the testimony establishes either that there was a contract of employment entered into between the plaintiff and defendant, or that the plaintiff intended tq assume the contract between defendant and the prior owner of the property.

Defendant appears to have assumed from what Mr. Beall advised him that plaintiff would retain his services as overseer, but the evidence does not establish this to be true. The property had been leased to tenants before its sale, as the lease contracts were protected' in the act of sale.

To justify a holding that plaintiff assumed the obligations of Beall towards defendant, the evidence should be conclusive of such fact. It is not reasonable to assume that plaintiff would desire to retain the services of an overseer, involving a salary of nearly $300, for the simple duty of collecting rents totaling not more than $600 gross.

The trial court erred in permitting the defendant to retain the sum of $275 as salary for the employment claimed.

The defendant alleges on a contract of employment with no alternative demand on a quantum meruit, and as he has failed to establish such defense, he cannot recover on the alleged contract. However, a careful review of the testimony reveals that he may have rendered some particular, limited services to plaintiff, which are deserving of compensation, and his rights on that account will be reserved to him.

It is therefore, for the reasons herein assigned, ordered, adjudged, and decreed that the judgment appealed from be and same is hereby amended; and it is now ordered, adjudged and decreed that plaintiff do have and recover judgment against the defendant in the sum of $492.60 with 5 per cent per annum interest thereon from January 15,1930, until paid, reserving to defendant the right to recover of plaintiff any amount provable on quantum meruit; that defendant pay all costs of suit, and as thus amended said judgment is affirmed.


text:
    No. 4083
    Second Circuit
    HAMMONDS v. McCLENDON
    (December 9, 1931. Opinion and Decree.)
    (January 14, 1932. Rehearing Refused.)
    M. C. Redmond, of Monroe, attorney for plaintiff, appellant.
    W. F. Pipes, of Monroe, attorney for defendant, appellee.
   McGREGOR, J.

This is a suit brought under the Workmen’s Compensation Law (Act No. 20 of 1914 and subsequent amendments). Plaintiff was injured while he was working on defendant’s waterworks in the town of Brownville, Ouachita parish, La., on December 31, 1929, by the falling of a piece of pump machinery on his left hand. The hand was crushed and the metacarpal bone, to which the little finger is attached, was fractured. In his petition the plaintiff alleges that this injury has resulted in the permanent total disability of his hand, and he therefore brings suit for 65 per cent of his wages for a period of one hundred fifty weeks.

At the time of the injury, plaintiff was receiving wages from the defendant at the rate of $15.40 per week. Defendant admitted that plaintiff was totally incapacitated for work for a period of two weeks, and legally tendered to him, before the filing of this suit, the sum of $20.02, the amount of compensation that would be due for that time. On trial in the lower court judgment was rendered in favor of the plaintiff for the said amount of $20.02, with costs. The plaintiff has appealed, and defendant has answered .the appeal, and suggests that the judgment should be amended by taxing the plaintiff with the costs of the case, for the reason that the sum granted to the plaintiff by the judgment had been tendered to him before the filing of this suit, and was refused.

There are two questions involved in this case; namely: First, the nature of the injury, and, second, the proportion of disability. The plaintiff was totally incapacitated for a period of two weeks. After that time, he secured different jobs of work at which he earned more wages than he was receiving at the time of the injury. The defendant contended that the plaintiff was thoroughly recovered at the end of two weeks, and tendered to him the sum of $20.02 as compensation for two weeks total disability. This tender was refused by the plaintiff on the ground, as he claimed, that, even though he was able to work, his hand was disabled on account of the injury. He therefore brought this suit for compensation, alleging the total permanent disability of his hand, which, if proved, would entitle him to compensation for a period of one hundred fifty weeks. The fact that plaintiff earned wages after his injury at a greater rate than he was earning at the time of the injury does, not debar him from receiving compensation if, in fact, he has lost an appreciable proportion of the use of his hand. The evidence is conclusive that the injury received by plaintiff was in the hand, and that there will be some permanent disability in the member. The testimony of the plaintiff as to the condition of his hand at the time of the trial was frank and straightforward. He estimated that he had lost at least one-half the use of his hand on the average. Dr. B. M. Moore, a witness for the plaintiff, testified that he made an X-ray picture of the plaintiff’s hand on February 23, 1930, and that it showed an oblique fracture of the fifth metacarpal bone. He did not make such an examination that would enable him to say what the future condition would De. Dr. J. T. French, another witness tor the plaintiff, was the one that suggested that Dr. Moore make the X-ray picture. He examined this picture and also examined the plaintiff’s, hand on the morning of the tnai. it was his testimony that there was a deformity of the left little finger in the metacarpal bone, and that it was a permanent disability to the extent of 20 per cent. We take it that that had reference to the hand as a whole and not to the little finger as such, for the reason that the metacarpal bones are those that constitute the hand.

Dr. Ellis Powell, the physician that treated the plaintiff’s hand when it was. injured, testified for the defendant, and stated that, when he dismissed plaintiff as cured, he considered that there would be no permanent disability. It was his opinion, however, that, if there was any disability at the time of .the trial, it was permanent.

So, in view of the fact that the plaintiff testified himself that there was at the time of the trial actual disability to some extent, and that this was corroborated by Dr. French, the only doctor that made an actual examination of the hand since shortly after the injury was received, we find that permanent disability has been proved. Plaintiff thinks that this disability amounts to one-half, but Dr. French, who we think is better qualified to judge of this matter, places it at 20 per cent, and we prefer to accept his estimate.

Defendant takes the position that the compensation should be based on the time actually lost by the plaintiff from work. This time was two weeks, and the defendant insists that 65 per cent of his wages for two weeks is all that is due, especially since he has heen able to earn regular wages since the two weeks. But this case is governed by section 8, subsection 1, subdivision d, paragraph 15, and not by section 8, subsection 1, subdivision (a) (Act No. 242 of 1928).

For the reasons assigned, the judgment appealed from is amended so as to allow the plaintiff the sum of one-fifth of 65 per cent of $15.40 per week for a period of one hundred fifty weeks, beginning December 31, 1929, with 5 per cent interest on each weekly installment from the date of its maturity, with all costs- of both courts; and, as amended, the judgment is affirmed.