text:
    No. 4077
    Second Circuit
    AMERICAN FURNITURE CO., INC., v. BISHOP
    (November 18, 1931. Opinion and Decree.)
    (December 9, 1931. Rehearing Refused.)

      Hoye Grafton, of Shreveport, attorney for plaintiff, appellee.
    Cook & Cook and C. D. Egan, of Shreveport, attorneys for defendant, appellant.
   DREW, J.

Plaintiff sued for $101.20, alleging same to be the balance due on open account, that defendant on March 22, 1928, purchased from it goods, wares, and merchandise in the amount of $329, itemizing the articles purchased, and that on February 15, 1929, defendant purchased a radio for the price of $133.70, and blankets for the price of $9.50, making a total amount of $472.20. It alleged that between the dates of March 22, 1928, and December 2, 1929, defendant paid on said account the amount of $371, leaving a balance due of $101.20, the amount sued for. Plaintiff alleged a vendor’s lien and privilege on said articles sold to defendant and prayed for a writ of sequestration. The property was seized under said writ, and defendant appointed keeper of same.

Defendant made no appearance in the case in the lower court and there was judgment by default in favor of plaintiff, as prayed for, on June 30, 1930. on March 5, 1931, defendant applied for and secured an order for a devolutive appeal to this court.

The evidence on trial of the case was not transcribed, and, the attorneys for plaintiff and defendant not agreeing on a statement of facts, the judge of the lower court was called on to prepare a statement of facts. The following is that statement:

“In this case motion was made on March 5, 1931, for a statement of facts as defendant desired to appeal devolutively from the judgment rendered.
“As the parties litigant have been unable to agree upon the facts, the Court in accordance with Article 603 of the Code of Practice is furnishing a statement of same.
“The judgment in this case was rendered on June 30, 1930, and signed and filed the same day.
“The Court cannot recall the exact case for the reasons that many cases of a similar nature have been heard since then, which is over nine months ago.
“The only thing I can say is that it has been and is the practice of the City' Court to make the plaintiffs prove their cases and I feel that this case is no exception.
“The American Furniture Company, plaintiff herein, has had quite a number of cases in the City Court and its demands have always been proven by a representative of the Company.
“I am quite sure that the entire record which included the citation, writ, return and keeper’s receipt were offered and filed and that the demands of the plaintiff were proven to the satisfaction of the Court.”

It can readily be seen that the judge of the lower court at the time he prepared the. statement of facts had little if any recollection of this particular case. When there is no error shown by the record and the evidence has not been transcribed, or the statement of facts shows no error, this court will affirm the judgment of the lower court contra when the record itself discloses error in the judgment of the lower court. Appellant does, not contend that the' judgment of the lower court is incorrect as to the amount, but complains of the judgment wherein it recognizes the vendor’s lien and privilege, maintaining t,he writ of sequestration on all of the property set out in said open account.

He contends that the writ of sequestration should have been maintained only as to the articles that had not been paid for, and that the payments made on the open account should have been imputed to the articles first purchased. We think his contention is correct. R. C. C. art. 2166; Forrey v. Strange, 158 La. 949, 105 So. 21.

The first articles purchased on March 22, 1928, as shown by the itemized account, amounted to $329, and defendant has paid the amount of $371; therefore these first articles have been paid for, and plaintiff has no vendor’s lien thereon. The remainder of the account, consisting of one radio and the blankets, amounting to $143.20, have been only partially paid for, and plaintiff is entitled tp have his vendor’s lien and privilege recognized as against them. Forrey v. Strange, supra.

Appellee answered the appeal praying that damages in the amount of 10 per cent of the amount of judgment be allowed, alleging that the appeal was frivolous. Under our finding that the judgment of the lower court is erroneous, the claim for damages for frivolous appeal will have to be denied.

It is therefore ordered that the judgment of the lower court be amended, in so far as it recognized the plaintiff’s vendor’s lien and privilege and maintained the writ of sequestration as to articles of merchandise purchased or March 22, 1928, consisting of the following articles:

1 — 507% Vanity __________________________________ $ 98.75

1 — 506 Chest ________________________________________

1 — 542 Bed ____________________________________________

1 — 912 Bench ________________________________________

1 — 602 Spring ______________________________________ 8.50

1 — United Mattress ______________________________ 20.00

1 — 099E Refrg............. 44.00

1 — 4726 Kit. Cabinet ___________________________ 49.50

1 — 20 Brk. Table ____________________________________ 25.00

1 — 2479 Fiber Rocker __________________________ 11.50

• 1 — 6 Gas Range ______________________________________ 47.50

$304.75

7 — c46 7x36 Shades ____________________________ $ 17.50

3 — c46 7x28 Shades .............................. 6.75

$ 24.25

—by reversing that part of the judgment, and in all other respects the judgment be affirmed; costs of lower court to be paid by defendant and costs of appeal by plaintiff.


source: Caselaw Access Project

author: CULPEPPER, J. STEPHENS, J.

license: Public Domain

text:
    No. 3976
    Second Circuit (Second Division)
    HARRIS v. LOUISIANA STATE NORMAL COLLEGE ET AL.
    (May 7, 1931. Opinion and Decree.)
    (June 11, 1931. Rehearing Granted.)

      M. L. Dismukes and W. Peyton Cunningham, of Natchitoches, attorneys for plaintiff, appellant.
    Thornton, Gist & Richey, of Alexandria, attorneys for defendants, .appellees.
   CULPEPPER, J.

This is. a suit for Workmen’s Compensation brought by the widow of William Harris, who was killed in a fall while painting one of the smokestacks alleged to belong to defendant Louisiana State Normal College, hereinafter referred to as the college. The petition sets out that plaintiff’s husband was earning, at the time of his death, $15 per day or $90 per week. Plaintiff prayed for service upon the college, through Y. L. Roy, its president, and through the Louisiana State Board ' of Education, hereinafter referred to as the state board, by service and citation on H. H. White, president, and T. H. Harris, secretary. It was alleged that the Southern Casualty Company of Alexandria, La., hereinafter referred to as the casualty company, was liable in solido with said defendant Louisiana State Normal College, by reason of a contract of insurance and accordingly it prayed for service on that company. Suit was filed on August 27, 1928.

The court ordered the cause to be heard on October 5, 1928. Citations were issued and service made as prayed for. On September 7, 1928, the defendants above named filed an answer, as required by the Compensation Act (Act No. 20 of 1914, sec. 18, subsec. 2, as amended by Act No. 85 of 1926, sec. 18, subsec. 2), and, in addition to setting; out their versions of the controversy, alleged substantially that the college is owned by the state of Louisiana, which conducts the college as an educational institution; that it is. not one of the occupations covered by’ the compensation laws of Louisiana. It was also alleged in the answer that the state board did not employ plaintiff’s husband.

The casualty company is alleged not to be a proper party to the suit because there were no contractual relations between it and plaintiff's, deceased husband other than such as the compensation law has read into the contract of insurance; that no cause of action lies directly against an insurance company except under certain conditions not shown by plaintiff’s petition. On the same day the answer was filed, the defendants filed exceptions, of no cause of action.

On October 4, 1928, the exceptions were tried and taken under advisement by the court. On October 17th, the exception filed by the casualty company was sustained, but overruled as to the state board and the college, with right given to plaintiff to amend her petition if she “sees fit, to allege that the Louisiana State Normal College is an incorporated public board.” No formal judgment dismissing the suit against the casualty company appears to have been signed.

On April 16, 1929, plaintiff filed an amended petition in which it sets out that the exception of no cause of action filed by the casualty company had been sustained, but overruled as to the other two defendants, and that, availing herself of the leave granted, she amended her original petition by alleging that the college was “an incorporated public board, body or commission and institution authorized by law to hold property and to sue and be sued, * * * and under the direct supervision of the Louisiana State Board of Education, an incorporated public board,” and that these two corporations and the casualty company were indebted in solido for the compensation claimed. The three defendants again excepted that the petition as amended disclosed no cause or right of action against any of them. The college and the state board also excepted to the citation.

The exceptions indicated, to the petition as amended, were tried and again sustained as to the casualty company, but as to the college and the state board were sustained only as to the amended petition, but with further leave to amend. No judgment of dismissal as to the casualty company appears to have been signed.

On October 23, 1930, plaintif-f, reciting that the exceptions to the service and citations of the petition as amended were sustained, and that the exception of no cause of action filed by the casualty company to the petition as amended had been sustained, again amended her petition, by copying, word for word, article 4 of the first supplemental petition, which was the only amendment to the original petition, and praying for service against the college, the state board, and the casualty company. Service was again made on the three defendants.

The college excepted in bar of the suit, want of capacity to be sued and tendered specially the plea of nul tiel corporation. It averred that under article 12 of the Constitution of 1921 and Act 100 of 1922 the state board conducts the college and other institutions therein named, and that the college is not a corporation or body politic, and is therefore, without “capacity to sue, to be sued or to stand in judgment.” The state board and the college joined in a plea to the jurisdiction of the court because the college is not a corporate body and that the domicile of the state board is in the parish of East Baton Rouge. The casualty company, in the meantime, had gone into the hands of a receiver, and, it was set out in a further exception, the receiver could only be sued in Rapides parish, where the receivership was pending. It further excepted that exceptions of no cause of action filed by it had been twice sustained, and that it pleaded in bar of any further proceedings these two dismissals, and that they were res judicata. All of these exceptions and pleas to the second supplemental petition were overruled, except the plea of the state board to the jurisdiction of the court was sustained “in so far as a personal judgment might be obtained against” it, but the minutes further recite:

“As the State Board of Education is domiciled in the Parish of East Baton Rouge (it) could not be properly sued in this Court to the extent of obtaining judgment against them, but the Court holds, that whatever citation made on the State Board of Education is good to the extent of whatever effect it might have of serving a citation on the Louisiana State Normal College.”

The casualty company and the college then answered the second supplemental petition reiterating, in substance, the defenses previously made. The case was then tried and judgment rendered for plaintiff against the college and the casualty company in solido, for $6.82% per week, #>not to exceed 300 weeks, but, tbe judgment continued:

“Tbe demands of plaintiff against the Louisiana State Board of Education be sustained only insofar as may be necessary in order to affect the Louisiana State Normal College.’’

Prom this judgment the defendants cast alone have appealed.

The casualty company is cast in the judgment on a petition which was twice dismissed as to it on exceptions of no cause of action. No reservation was made to amend the petition as to it, no motion for a new trial was. timely filed by the plaintiff to correct either of the rulings made sustaining the exceptions, no appeal was taken by the plaintiff and no answer to the appeal has been filed.

The attempt to amend the original petition the first time added only the allegation that the college was a body corporate.

The second attempt to amend made no addition whatever either to the original petition or to the first amended petition, except to recite that the court had given plaintiff leave to amend. The result was that the casualty company was held liable on pleadings by the plaintiff that had been twice held in the same suit to disclose no cause of action against it. Neither the first nor the second amendments should have been allowed as .against the casualty company, and the judgment against it is therefore clearly erroneous.

“A petition upon which no judgment can be pronounced does not show a cause of action; .and a petition which does not show a cause of action is, legally speaking, no petition, and hence cannot be amended. For definition of a petition, see American Sugar Refining case, 138 La. 1014, 71 So. 137. In Abadie v. Berges, 41 La. Ann. 283, 6 So. 529, the Court said: ‘The court is pownrless to authorize an amendment which would insert a cause of action when none was previously averred.’ In State v. Hackley, Hume & Joyce, 124 La. 854, 50 So. 772, the court said: ‘Unless a cause of action is alleged there is no suit, and hence nothing to amend.’ See these cases quoted with approval in Godchaux v. Hyde, 126 La. 187, 52 So. 269; Tremont Lumber Co. v. May, Assessor, 143 La. 389, 78 So. 650.”

Learned counsel for the plaintiff contends that Act 73 of 1892, granting corporate powers to the college, has not been repealed by subsequent legislation, and that its governing body must be construed as having power to sue and be sued.

The state board is created by the Constitution of 1921, and “the Legislature shall prescribe the duties df said board and define its powers.” Article 12, sec. 4. The college is declared to be one of the higher institutions of learning and is placed under “direct supervision of the State Board, of Education.” Article 12, sec. 9.

Act 100 of 1922, sec. 1, provides that the “State Board of Education shall be a body-politic, and corporate by the name and-style of the Louisiana State Board of Education, with authority to sue and defend suits in all matters relating to the public schools not within the jurisdiction of the parish school boards,, as hereinafter provided.”

Section 6 provides that the state board shall administer the affairs of the college and the other institutions therein named, and in its management and control, shall have the power to appoint an executive committee with such power as may be conferred by the state' board. Section 69 repeals all laws in conflict with the provisions thereof.

Thus it will be seen that the creation of the state board as a corporate body, and the conferring upon it of the control and managerhent of the college, the latter was left without any corporate function to perform, and thus, it ceased to exist as a corporate body. When the Legislature, pursuant to the power conferred by the Constitution, created the state board a corporate body with power to sue and be sued, and repealed all laws in conflict therewith, the transfer of such powers, including the power of direct supervision over the college, to said state board we think became complete, and the college as a corporate body, with power to sue and be sued, automatically passed out of existence. See Succession of Hutchinson (Re Medical College, Tulane University), 112 La. 656, 36 So. 639; Tulane Educational Fund’s Adm’rs v. Board of Assessors, 38 La. Ann. 292.

When, therefore, the plea to the jurisdiction filed by the state board was susained, the only remaining body that could stand in judgment was eliminated from the case, and, since the plaintiff has neither appealed from this judgment, nor answered the appeal taken by defendants, no other or further affirmative relief may be granted plaintiff on the merits, even if the record should so justify, about which it becomes unnecessary for this court to express an opinion.

If is therefore ordered, adjudged, and decreed that the judgment appealed from be reversed, and that there now be judgment sustaining the plea of nul tiel corporation on behalf of the Louisiana State Normal College, and further sustaining the defense made by the Southern Casualty Company, as made, reserving to plaintiff whatever right, if any she may have, to pursue whatever legal remedy she may have, and reserving to defendants such de-s» fenses as they may have; the plaintiff to pay the costs, of both courts.

ON REHEARING

STEPHENS, J.

After further consideration of this case on rehearing, we are of the opinion that we were in error in holding that the judgment against the Southern Casualty Company should be reversed, for the reason that the district judge allowed amended petitions to be filed and the suit continued in effect against said company after having sustained two exceptions of no cause of action in its behalf. The judgments sustaining the exceptions and dismissing the suits were not signed and the correctness of the rulings of the trial judge in these respects are not properly reviewable by this court. However, the decree in our original opinion is, not affected thereby, as clearly no judgment can be rendered against the Southern Casualty Company.

We held in the original opinion, and we think correctly, that the defendant the Louisiana State Normal College was not an incorporated public board, body, commission or institution authorized by the laws of the state to hold property, or sue and be sued. Section 1 of Act No. • 20 of 1914 therefore does not apply to the Louisiana State Normal College. As an action will not lie in favor of plaintiff and against the college, it necessarily follows that an action cannot be maintained in favor of plaintiff and against the insurer, the Southern Casualty Company.

It is therefore ordered that the decree with the reservations therein contained in. our original opinion be reinstated and made the final judgment of this court.


author: CULPEPPER, J.

text:
    No. 3923
    Second Circuit (Second Division)
    ROYAL INDEMNITY CO. v. SHREVEPORT MACARONI MFG. CO.
    (November 18, 1931. Opinion and Decree.)
    (December 12, 1931. Rehearing Refused.)
    Cook & Cook and C. D. Egan, of Shreveport, attorneys for plaintiff, appellant.
    Lewell C. Butler, of Shreveport, attorney for defendant, appellee.
   CULPEPPER, J.

This is the second time this case has." been before this court. On the former hearing, there was judgment for the defendant rejecting plaintiff’s demands, which on appeal was amended so as to non-suit the plaintiff. See Royal Indemnity Company v. Shreveport Macaroni Manufacturing Co., 11 La. App. 628, 124 So. 595. The present suit was then 'filed. The entire record in the first suit, including the pleadings, were all introduced in evidence here and additional testimony taken.

Upon the second trial, there was again judgment for defendant from which the plaintiff appeals. Defendant answered the appeal, praying that $85.83, alleged to have been paid by it through error, should be refunded.

There is no testimony justifying defendant’s claim that the payment of $85.83 claimed in the reconventional demand was erroneous. On the contrary, after the dispute arose, the president of the defendant company wrote a letter to plaintiff’s attorneys in which he stated that he felt the company owed that amount, and inclosed his check in payment, but he disputed the balance of $287.04. The reconventional demand was therefore properly rejected.

. The purpose of this suit, as in the former, is to recover premiums to the amount of $268.35, alleged to be due by defendant on a workmen’s compensation policy, issued by plaintiff to defendant on the following class of employees, at the rates indicated per $100 of pay roll, viz.:

1 (a) Macaroni Manufacturing (2002) ______________________________$4.02 per $100.00

(b) Store risks, wholesale or combined (Wholesale and Retail) (N. O. C.) (8018).................86 per $100.00

2 (a) Clerical Office . Employees (8810)________________< .06 per $100.00

5 (b) Outside salesmen, collectors and messengers (wherever engaged) who do not deliver merchandise (if any).............................16 per $100.00

(d) Chauffeurs and chauffeurs helpers (if not included m 1) wherever engaged -------------- 1.42 per $100.00

Defendant submitted and paid on statements which classified those engaged in packing macaroni under classification carried under classification of 1 (b) noted above, carrying a rate of $.86 per $100 of pay roll, whereas the plaintiff complains that packers of macaroni are properly classified under 1 (a) above indicated, carrying a rate of $4.02 per $100 of pay roll.

It appears that defendant had been carrying its compensation insurance with another company for several years, but that for the year about which this dispute arose the same agents that had written the policy in the other company wrote defendant’s policy with plaintiff. The classification of the risks in the policies was the same. Under prior policies, defendant rendered statements, and made payments in accordance with its interpretation of macaroni packers, which were accepted.

It rendered a precisely similar statement and payment to the plaintiff which was accepted, subject,. however, to be later corrected if found erroneous by its auditor under the terms of the policy. It was when plaintiff’s auditor examined and audited defendant’s pay rolls and books that the classification of the macaroni packers were changed from the classification of “store risks, wholesale or combined wholesale and retail (N. O. C.) 8018” to “Maca» roni Manufacturing 2002.” The auditor made a report, accordingly, to the plaintiff. The plaintiff then billed defendant for the difference between the rate of $4.02 per $100 and $.86 per $100 on the packers’ pay roll of defendant, which amounted to $287.04. Another item of $77.97 is also claimed, but plaintiff admits that it has not been! proven.

There are employees engaged in the machinery room, where the macaroni is squeezed out, in the cleaning room, the cutting room, and the packing room. All of these employees, were classified by defendant under the schedule “1 (a)” above noted, except those engaged in packing the macaroni in boxes' or cartons. These were classified by defendant under the schedule 1 (b), carrying a very much lower rate.

The policy contains the following provision:

“The premium is based upon the entire remuneration earned, during the Policy Period, by all employees of this Employer engaged in the business operations described in said Declarations together with all operations necessary, incident or appurtenant thereto, or connected' therewith whether conducted at such work places or elsewhere in connection therewith, or in relation thereto.”

There was introduced in evidence, without objection, the compensation manual of rates as they applied to “Macaroni Manufacturing (2002),” and “Store Risks — wholesale or combined wholesale and retail (N. O. C.), 8018.” , It is. plain that the classification in the policy was taken from the manual, because the language in both is precisely the same. This manual contains an explanatory note, reading as follows:

“When a risk, other than a contracting risk, conducts a number of separate operations which normally prevail in the business. described by a manual classification, a division of payroll will not be permitted even though such separate operations may be specifically described by other classifications of this manual, or even though they are conducted at separate locations.”

Miss Hurley, bookkeeper of defendant, stated that they did have one man employed on the second floor, where the drying room and the shipping department were located, as a salesman. She also testified that the drying room is necessary in the process of manufacture and that “putting in cartons is also necessary in its completion and putting on the market,” and that defendant “could not ship without putting it in boxes.” This testimony seems to make clear that plaintiff’s interpretation is correct.

In view of the fact that the risk undertaken was described in the precise language of this manual, even to the extent of inserting the code number of the manual, arid in view of the policy provision that the premium is based upon the remuneration earned by all employees “* * * engaged in the business operations, described in said Declarations, together with all operations necessary, incident, or appurtenant thereto, or connected therewith,” whether in the same or a separate building, there seems no other conclusion than that those who were engaged in packing macaroni in the same building where the other manufacturing operations were carried on, were engaged in an operation incident or appurtenant to, and certainly connected with, the manufacture of macaroni, rather than with its store risks, wholesale or retail. The fact that another company may have accepted the classification rendered by defendant on ai similar policy with a similar classification would not, we think, be binding on the plaintiff.

There is, in reality, no dispute as to. the amount due the defendant if the employees in the packing department be properly classified as being engaged in an operation incident to the manufacturing, rather than to the sale, of macaroni, whether at wholesale or retail, and since we have reached the conclusion that the case is with the plaintiff in that respect, it follows that the judgment must be reversed.

Plaintiff’s counsel admit, however, that an item of $77.97, alleged upon in the petition, has not been proven and should be deducted from $268.35, the gross amount sued for, leaving á balance due amounting to $185.58, which, we think, has been proven, and for which there should be judgment.

It is therefore ordered, adjudged, and decreed that the judgment appealed from be, and the same is hereby, annulled and set aside, and that there now be judgment in favor of the plaintiff, Royal Indemnity Company, and against the Shreveport Macaroni Manufacturing Company, in the sum of $185.58, with legal interest thereon from judicial demand, and that defendant pay the costs of both courts.


author: TALIAFERRO, J.

text:
    No. 3728
    Second Circuit (Second Division)
    MOORE v. OLIPHANT
    (November 18, 1931. Opinion and Decree.)
    (December 9, 1931. Rehearing Refused.)
    (January 4, 1931. Writ of Certiorari and Review Refused by Supreme Court.)
    Harry V. Booth of Shreveport, attorney for plaintiff, appellee.
    Thigpen, Herold & Cousin, of Shreveport, attorneys for defendant, appellant.
   TALIAFERRO, J.

This suit was brought by plaintiff to recover $1,966 alleged to have been loaned defendant in . amounts and on dates as follows: $500 January 14, 1921; $380 July 8, 1921; $86 October 18, 1921; $400 April 10, 1922; $300 August 20, 1925; $300 September 9, 1925.

Plaintiff alleges that from July, 1920, to March, 1927, she was employed by Saenger Drug Company, in Shreveport, working under the supervision and direction of its manager, Harry K. Oliphant, defendant herein; that while thus engaged defendant importuned her to make him the loan of $500 on'or about January 14, 1921, agreeing to pay her 7 per cent interest thereon, and stating that he would repay the money upon petitioner’s demand, allowing him two weeks’ grace to do so, and that on these terms and conditions the loan was made; that under the same terms and conditions she loaned defendant the other amounts, named above, and on the dates stated, but for none of the loans did she take any note or other written evidence.

She alleges, that defendant, during her employment with said Saenger Drug Company, on numerous occasions, to her and to others in her presence, acknowledged owing her all of said amounts; that she left said employment in March, 1927; that on or about November 1, 1925, she made first demand for payment of defendant, and he then agreed to make payment to her of the amounts due; that following this demand she made several other demands, upon him, from time to time, until March, 1927, which were invariably met with a promise to pay; that when she left the employment of said company, at her request, defendant promised to deposit the money due her, not later than July first, following, in a banking institution in the city of Shreveport, but did not do so.

Defendant admits the employment of plaintiff by Saenger Drug Company and that she was under his supervision and direction as, .manager thereof, but denies all other allegations of her petition. He specifically avers that he never at any time borrowed any money from plaintiff, and never at any time promised to pay her any money.

Judgment was rendered in favor of plaintiff for $880 with legal interest from January 14, 1921, and for $86 with legal interest from October 18, 1921. Defendant appealed.

In this court, defendant filed a plea of prescription of three years under article 3538 of the Civil Code, in bar of plaintiff’s demand.

Plaintiff produced and filed in evidence her two checks in favor of defendant, and by him indorsed, for the amounts, respectively, for which judgment was rendered by the lower court. We assume that the court concluded that plaintiff’s testimony was sufficiently corroborated by these checks as to justify a finding in her favor to that extent, but in other respects denied her relief.

PLEA OP PRESCRIPTION

This suit was filed April 3, 1928. At that' date, all of the alleged loans to defendant were very much over three years old, excepting the two of $300 each, made August 20 and September 9, 1925, respectively. It is admitted that the loans were repayable on demand, allowing two weeks grace; in other words, they were what are commonly known as “demand ' loans,” and could be called at the option of plaintiff.

Plaintiff’s contention is that as the loans were payable on demand, the current of pi-escription did not begin until after making of demand for payment, while defendant argues that prescription on a demand obligation commences with the date of its creation.

Under article 3538, Civ. Code, action to recover loan of money is barred by the prescription of three years. This prescription, of course, sets in at maturity of the loan, or, in other words, when the owner of the loan has the legal right to demand its payment or provoke suit to enforce payment.

It has invariably been held, so far as we are advised, that prescription on a note payable on demand begins to run with date of note. This was held by our Supreme Court in the cases of Darby v. Darby, 120 La. 847, 45 So. 747, 14 L. R. A. (N. S.) 1208, 14 Ann. Cas. 805; Cassou v. Robbert, 166 La. 101, 116 So. 714.

And in Harman v. Claiborne, 1 La. Ann. 342, it was held that a check payable to order prescribed five years from date.

The reason for the application of this rule to obligations evidenced by writing applies, in our opinion, With equal force to simple loans not evidenced by 'writing. We can see no reason why there should be any difference. The following cases involved loans of money, and the principle under discussion in the instant case was to some extent considered and touched upon by the court therein, viz.: Succession of Llula, 44 La. Ann. 61, 10 So. 406; Succession of Mereno, 161 La. 84, 108 So. 133; Lagarde v. Dabon, 155 La. 31, 98 So. 744.

In the last of these cases, the court remarked :

“Simple loans are prescribed * * * from the time each advancement is made.”

Plaintiff, in supplemental brief filed after submission of the case, cites some decisions from other jurisdictions holding that the statute of limitations as against demand loans and due bills payable on demand only began to run from the date a demand for payment is made, but in view of the pronouncements of our own court on this question, we do not feel authorized to accept these decisions as controlling in the présent case.

The plea of prescription is held by us to be good as against all of the items of plaintiff’s demand, save the two loans of 5:300 each, made in 1925.

Plaintiff alleges and testified that she issued to defendant a check for $300 against her account with Commercial National Bank on September 9, 1925, to cover the loan of that date she made to him, and that on August 20th previous, she made him another loan of $300, and that to cover this loan she gave him several of her salary checks and some cash money.

She filed in evidence statements of her accounts with two banks in Shreveport. These show that debits were made thereon for each of the amounts she claims defendant is due her, excepting the one for $300 of August 20, 1925. Her account with the Commercial National Bank was debited with $300 on September 9, 1925, and on next day the account of defendant with First National Bank was credited with like amount.

Plaintiff produced checks of $380 and $86 issued by her to defendant, but not the others. Her explanation of her inability to produce the other checks claimed' by her to have been issued to defendant for these loans was that she did not receive them from the bank; that her mail was sent in care of the drug company for whom she worked, and she insinuates that defendant purposely withheld It from her; that she intercepted the postman before reaching the drug store and secured from him the letter from the bank containing the two checks which were filed In evidence.

While plaintiff was in the employ of the Saenger Drug Company, defendant assisted her often in the transaction of business matters of her own. She purchased some building and loan stock which was being paid for by installments. He advised her in that matter, and he looked after the payments after she ceased to work for his company.i In April, 1927, she wrote defendant from California requesting him to keep up her building and loan stock payments of $30 per month. In August, 1927, she wrote defendant requesting that he deposit $1,800 in Commercial National Bank to her credit. He admits neither of these letters was answered by him. On her return to Shreveport the following September, she called him on the phone and asked him if he had deposited the $1,800 in the bank as requested, and he replied by asking her to come to the store as “he wanted to talk to her.” She did not comply with his request. It is passing strange that if defendant was not due plaintiff any amount why he would not have answered her letter requesting him to make deposit to her credit in a bank, denying the indebtedness, and it is equally strange that when asked about the deposit on the phone he did not deny owing her, but on the contrary requested her to come to the drug store “as he wanted to talk to her.” It seems to us that normal impulse under such conditions would have prompted an emphatic denial of liability if none existed.

In corroboration of her own testimony that defendant was due her for money loaned him, plaintiff produces two witnesses, whose evidence, though lacking in particulars, in view of all the circumstances of the case, should be given some effect in support of her contentions. One of these witnesses, while in the service of the drug company, in March or April, 1926, overheard a conversation between plaintiff and defendant wherein financial matters were discussed. He heard plaintiff ask defendant when he was going to pay her the money he owed her, and his reply was that “he could not raise it.” The other witness, an employee of the drug company, at the time, overheard defendant and a man by the -name of Causey, also an employee of the company, discussing the purchase of a drug business, and defendant stated that Mrs. Moore, plaintiff, would be taken in as a partner and given a share in the business “for what we owe her,” and in addition she would be asked to advance $500 in cash to start the business, whereupon Causey asked, “Do yon think you can get it?” to which Oliphant replied, “Well, I have gotten it before, all that I asked for.” This occurred in the spring of 1926. This witness informed plaintiff of what she had heard, to which plaintiff replied: “Those birds are not going to get any more money than they had alrea'dy gotten from her.”

Defendant, as witness, denied positively that he ever borrowed any money from plaintiff, and, of course, denied promising to pay her any amount. He produced several witnesses who stated that plaintiff told them that defendant was due her money loaned him. The amounts ranged from $600 to $26,000, but no witness was produced to testify that plaintiff ever stated that defendant was not due her any amouut.

The judge a quo in his reasons for judgment had this to say:

“This is one of those suits in which you feel that you have not got the truth, perhaps, on either side. Helen K. Moore began to work for the Saenger Drug Company in 1920. She left there in March, 1927, and went to California. In the spring of 1928 she sues Harry K. Oliphint, who was during all that time the General Manager of the Saenger Drug Company, for $1966.00, money which she claimed that she loaned Mr. Oliphint at various times from January, 1920, to September, 1925, while she was working for the Saenger Drug Company.
“When the case was closed, and. long prior to argument, I could not help having a rather firm conviction that Mr. Oliphint did owe Mrs. Moore some money that he borrowed from her, and that on the contrary Mrs. Moore was trying to hold him up for a much larger sum than he actually owed. I have gone over this record time after time since then, and while this is more a feeling or surmise than anything else, this is still the way I feel about it.”

We fully agree with the lower court’s conclusion that the record does disclose with reasonable certainty that defendant is due plaintiff some money on account of loans made to him. Practically all the circumstances of the case and the rational inferences arising from the evidence strongly lead to such a conclusion, and are persuasive to the mind.

However, we also agree with the trial judge that the evidence in the case is not sufficiently positive or corroborated to establish defendant’s liability beyond the amounts for which judgment was awarded plaintiff, and these are barred by prescription.

Two witnesses testify to having heard defendant admit owing money to plaintiff, but neither say he admitted owing her any specific amount. He could have referred to the loans for which judgment was given plaintiff.

The rule that the finding of the trial judge should not be disturbed unless manifestly erroneous finds peculiar application in this case. He doubtless knew both parties to the suit, and possibly knew the witnesses who testified at the trial. He had ample opportunity to observe their demeanor throughout the trial and to have received impressions which are not brought up in the record on appeal.

For the reasons herein assigned, the plea of prescription filed by defendant is sustained; the judgment appealed from is hereby annulled, reversed and' set aside; and plaintiff’s suit is dismissed at her cost.


text:
    No. 3925
    Second Circuit (First Division)
    BETTS v. SHREVEPORT RYS. CO.
    (November 18, 1931. Opinion and Decree.)
    (December 9, 1931. Rehearing Refused.)
    Bryan E. Bush, of Shreveport, attorney for plaintiff, appellee.
    Wise, Randolph, Rendall & Freyer, of Shreveport, attorneys for defendant, appellant.
   TALIAFERRO, J.

Plaintiff alleges that while a passenger on one of defendant’s street cars in the city of Shreveport she received personal injuries, for which she sues to recover the sum of $10,000. To be more specific, she alleges that on the day named in her petition she was riding as a passenger on a street car of the defendant company and when the car reached a certain corner in said city it came to a full stop and while she was alighting from the car she placed her foot upon the step thereof, the step having been apparently lowered by the motorman, and it gave way under her weight, causing her to fall from the step to the pavement, thereby inflicting the damages as alleged. Again, further along in plaintiff’s petition she alleges: “that all of her injuries are the result of the step not being lowered to the proper and ordinary place either by the said step and mechanism controlling said step not being in good repair and safe condition, or by the negligence of thp motorman of said car and agent of said Railways Company in not causing said step to be lowered to the proper level, so that it would be steady when your petitioner placed her weight upon same.”

The defendant company denied any fault or negligence on its part, but alleges plaintiff failed to exercise due care in descending from the step in that she did not maintain her hold on the hand hold of the car, and while wearing very high heeled pumps negligently and carelessly stepped too near the edge of the step and caught her heel on its edge, which caused her to fall. That the proximate cause of the accident was want of proper care on the part of plaintiff in alighting from the car, and in the alternative pleaded contributory negligence on the part of plaintiff in bar of her effort to recover damages from it.

There was judgment in favor, of plaintiff in the amount of $750. Defendant has appealed.

It will, therefore, be easily discerned that this ease involves merely a question of fact, and it becomes necessary to determine what was the proximate cause of the accident which unquestionably caused injury to plaintiff.

The plaintiff as a witness in her own behalf testified as follows concerning the circumstances and manner of her alighting from the street car:

“Q. Did you fall from the step or from the platform of the car?
“A. From the step.
“Q. Did you look out the door and down at the step and see that it was properly lowered before you started' to step down?
“A. No, sir; just stepped on out.
“Q. Why didn’t you do that?
“A. I usually do that, step on out when they open the door.
“Q. Was it already down?
“A. I just stepped on out like it was customary to do. I figured it was down.
“Q. When your foot reached the step was it down?
“A. I fell down’on the pavement, on the sidewalk.
“Q. What happened to the step? •
“A. It went down at least two or three inches after I stepped on it.”

The witness R. A. Geheringer, tendered on the part of the plaintiff, testified as follows, relative to what he saw at the time of the accident:

“Q. While you were there, did you see anything unusual happen?
“A. Yes, sir; I was there waiting for Miss Betts; had made arrangements to go to a show with her and as the car of the Shreveport Railway Company came up, I saw Miss Betts on the car and saw her leave the car. I saw her grab as if she was going to fall, so I went over to see and when I got there she was laying flat on her stomach.”

And this witness further testified, when being cross-examined:

“Q. Did the plaintiff in this case, state that the motorman had raised the step -.while she was getting off and that caused the fall?
“A. She did.
“Q. That is what she told you?
“A. Yes, sir; she did.
“Q. Where was it that she made the statement that she did make; that the motorman raised the step and that caused her to fall?
“A. That night.
“Q. Right there at the time?»
“A. No, I don’t think it was there.
“Q. After she got home?
“A. Yes, sir; I think it was after she had gotten home. She didn’t do much talking on the way.”

The witness Mrs. Dick Richards, tendered on the part of plaintiff, testified as follows:

‘‘Q. Did you see her when she started to fall?
“A. Naturally I was looking at her when she come off of the street ear and as I remember she was the only one that got off and I naturally noticed as she grabbed, and I knew something was giving down because I have had that happen to me.
“Q. At the time she started to fall was she on the step?
“A. She was coming down falling from the top, coming on down and I saw, her fall. Evidently she was on the second step.
“Q. And not on the top of the platform?
“A. Yes, she was down on the step.”

And again this witness testified:

“Q.. Did you recognize her?
“A. Yes, sir; she alighted from the street car and I noticed she got out, that she grabbed the bars.”

. The evidence on the part of defendant shows that at the time of the accident the motorman had opened the door* for plaintiff and she had stepped from the platform to the step; that the door is opened and the step is lowered by the motorman by one application of a lever, the door and step working togetner; that when the door is fully opened the step is horizontal and is locked. That at the time of the accident the plaintiff was wearing high heeled shoes, commonly called pumps, and that plaintiff was quite fleshy and heavy; that the door and step of the car in question were in good mechanical condition.

The defendant introduced as a witness one Billy Burleson, who gave evidence as follows:

“Q. Do you remember last December, when a lady fell from the street car over here on the corner of Marshall and Texas streets ?
“A. Yes, sir.
“Q. Where were you standing?
“A. Sir?
“Q. Where were you standing?
“A. I was. standing there at the corner.
“Q. Did you see the car stop?
“A. Yes, sir.
‘‘Q, Did you see the motorman open the door?
“A. Yes, sir.
“Q. Tell us what you saw.
“A. I saw the lady come to the platform, she was going to get off the street car, looked to me like her heel turned on the step and she fell down and I went there and tried to pick her up.”

It will be seen that plaintiff’s evidence' fixing the cause of her fall as being due to negligence on the part of the motorman in not fully lowering the step of the street car is not positively corroborated by the testimony of any other witness in the case and her version of the matter on the witness stand is in direct conflict with that made by her to Mr. Geheringer, a few hours after the accident.

Among the injuries plaintiff alleges to have been received by her as a result ’ of her fall from the street car is that to her left arm, for which she asks $1,500. The evidence clearly shows that her left arm was not, injured in the accident and she made no complaint about that limb being injured until quite a while thereafter. The physicians who examined plaintiff’s left arm state that there was a fungus growth on it which was not due to an injury or wound such as would be caused by a fall. This claim for damages was abandoned by plaintiff’s counsel in open court after the physicians had testified concerning same. Plaintiff verified her petition by subscribing to the usual affidavit. We mention these facts as they tend to reflect on the part of plaintiff a disregard of the importance of confining her case to the true happenings at the time of her accident; and, to some extent, her credibility is affected thereby.

We believe the Burleson boy’s evidence correctly shows what happened to plaintiff as she attempted to alight from the car. He was within a few feet of the place of accident and in a tetter position to observe things than any other witness. This evidence corroborates that given by the motorman touching the condition of the door and car steps after he had applied the lever in order to allow plaintiff to leave the car.

Plaintiff was accustomed to riding on defendant’s cars and knew well how they were controlled and operated with respect to taking in and permitting passengers to retire therefrom. It was her duty to observe care and caution while descending the car’s steps and especially so in view of her excessive weight and the character of shoes worn by her at the time. We do not think she observed the degree of care and caution required of her. She admits she did not look to see if the steps had been properly lowered but simply assumed them to be in proper position. Even if the steps had given down an inch or two under her weight, if she had availed herself of the hand holds beside the car’s door she would have maintained her balance and not fallen. It was her duty to observe the condition of the steps, after the door was opened, and wait until it was safe to put her weight upon them before trying to alight from the car. This is said by us as answer to plaintiff’s theory of the cause of accident; not to meet true facts, for we do not believe the steps gave to plaintiff’s weight. We believe one of the high Heels of the pumps she wore when injured caught in or slipped on the steps, causing her to lose her balance and fall.

There is no presumption of negligence on part of the 'carrier, simply from the fact of an accident.

“A carrier, street car company, is not made liable' tq a passenger merely by reason of the happening of an accident, and if it can show that the cause of the accident was something beyond its control, or was the negligence qf the passenger injured, no liability results. It is not an insurer of the safety of passengers.” Nee v. N. O. Public Service, Inc., 11 La. App. 1, 123 So. 135; Morris v. I. C. Ry., 127 La. 445, 53 So. 698, 31 L.R.A. (N. S.) 629; Bemiss v. N. O. C. & L. Ry., 47 La. Ann. 1671, 18 So. 711; DeBlanc v. T. & P. Ry. Co., 6 La. App. 433.

The law applicable to plaintiff’s situation, even if it be conceded that defendant’s agent was negligent to any extent, is well stated in the case of Wood v. J. C. & K. et al., 34 La. Ann. 1086, viz.:

“A railroad company is not liable to 5. passenger for an accident which thé passenger might have prevented by ordinary attention to his own safety, even though the agents in charge of the train were also remiss in their duty.”

In reaching our conclusion on the facts of this case we have not been unmindful of the rule which requires that great weight should be given the findings of the trial judge on such questions, and for that reason we have given mature consideration to the evidence, but are convinced he erred in resolving the facts of the case in favor of plaintiff.

For the reasons herein assigned the judgment appealed from is annulled, avoided, and reversed, and there is now judgment dismissing plaintiff’s suit and rejecting her demands with costs.


text:
    No. 3908
    Second Circuit (First Division)
    GENERAL CONTRACT PURCHASE CORP. v. DILLMAN
    (November 18, 1931. Opinion and Decree.)
    Dickson & Denny, of Shreveport, attorneys for plaintiff, appellee.
    Samuel M. Robertson, of Shreveport, attorney for defendant, appellant.
   TALIAFERRO, J.

Defendant purchased from Southern Cine Co., Inc., one Electrolux gas refrigerator for the price of $414.78, paying $37.50 cash, and executed her note to the seller for the balance of $377.28, payable in 18 monthly installments of $20.96 each. This note was secured by chattel mortgage and vendor’s lien and privilege on the refrigerator, and in due course was acquired by plaintiff before maturity. . The present suit was • filed on the note coupled with foreclosure of the mortgage and lien securing its payment.

Defendant resists the suit by alleging that the refrigerator was defective when delivered to her; that it would not refrigerate to that degree necessary to meet the purposes for which it was purchased; that the gas used to generate the cold and freezing temperature in the refrigerator, on account of defects therein, escaped into its different compartments and so affected foods kept therein for preservation as to render them unfit for human consumption.

On trial of the case plaintiff introduced the note sued on and a certified copy of the mortgage and vendor’s lien securing payment of same, all of which are in authentic form, and rested its case.

Defendant was sworn as a witness in her own behalf and an effort was made to interrogate her concerning the purchase of the refrigerator from Southern Cine Company, Incorporated. This evidence was objected to for the reason the note sued on had passed into the hands of an innocent purchaser before maturity, and such defenses as defendant had set up were cut off on that account. The objection was sustained. Defendant offered no further testimony. The case was closed in that condition and judgment rendered for plaintiff as prayed for. It is from this judgment that defendant appealed.

In this court defendant made no appearance, filed no brief and presumably has abandoned her appeal.

The record justifies the judgment appealed from and it is affirmed with costs.


author: STEPHENS, J.

text:
    No. 3716
    Second Circuit (Second Division)
    MAGNOLIA PETROLEUM CO. v. SANDLIN ET AL.
    (November 18, 1931. Opinion and Decree.)
    (December 9, 1931. Rehearing Refused.)
    Pugh, Grimmett & Boatner, of Shreveport, attorneys for plaintiff, appellant.
    J. F. Mclnnis and Coleman Lindsey, of Minden, attorneys for defendants, appellees.
   STEPHENS, J.

The plaintiff sues for a reduction of its assessment for the year 1928 in Webster parish on gas pipe line designated by it as “a gathering line,” and on oil in storage.

For the year 1928 plaintiff made the following rendition for assessment purposes of its property in Webster parish:

Oil in storage — 129,535 bbls. @ 85c $110,105 5% miles six-inch gathering line____ 19,140

The assessor of Webster parish assessed plaintiff on its property in Webster parish as follows:

Oil in storage..................... -...$132,520

6.81 miles pipe line @ $4,765 per mile -------------------------------- — ----- 32,586

The assessment of oil in storage was based on three inventories furnished by the plaintiff to the assessor as follows:

January 1, 1927........................-173,182 bbls.

July 1, 1927___________________ -.156,287 bbls.

January 1, 1928____________________________156,287 bbls.

From these figures a deduction of 20 per cent was made for b. s. and water, making the net inventories as follows:

January 1, 1927............................138,546 bbls.

July 1, 1927__________________________'_________125,028 bbls.

January 1, 1928____________________________125,028 bbls.

It is admitted that the price per barrel of oil was as follows on the dates mentioned :

January 1, 1927-____■.......................................$1.20

July 1, 1927.................................................. 1.00

January 1, 1928........................................... .85

The assessor arrived at the oil in storage in the following manner:

Jan. 1, 1927 — 138,546 bbls.- @ $1.20 $166,255

July 1, 1927 — 125,028 bbls. @ 1.00 125,028

Jan. 1, 1928 — 125,028 bbls. @ .85 106,273

The assessor then took the average, which is $132,520 as the value of the oil for assessment purposes.

Plaintiff rendered to the assessor 5% miles of pipe line, whereas he was assessed with 6.81 miles. It is admitted that 5% miles is correct. The cost per mile of the line is admitted to be $6,960. Plaintiff classes *it as “a gathering line” and depreciates it 10 per cent per year for five years, valuing it at $3,480 per mile, or a total of $19,140. The assessor classes it as “a main line” and depreciates it at 6% per cent per year for five years, and assessed it at $4,765 per mile.

The plaintiff prays that its assessment be reduced on this property to the amount as rendered. The district court gave judgment in favor of plaintiff reducing the assessment $6,242.15 for the 1 31/100 miles of pipe line, admitted to have been assessed in error, but otherwise rejecting its demands. The plaintiff appealed from said judgment.

There was offered and filed in evidence by the defendant a booklet entitled “Instructions to Assessors” which was issued by the Louisiana Tax Commission. We find the following therein with reference to six-inch pipe lines:

“The 1928 values on pipe lines are as follows: 6" Pipe Line — 6%% per annum depreciation from cost.”

With reference to oil and gas gathering lines, we quote from the instructions:

“The above lines are distinguished from standard pipe lines, for the reason- that gathering lines are constantly being moved and shifted about in conveying oil from the field of storage tanks, refineries, etc. Gathering lines cannot have the same value as a standard pipe line, and the attention of the assessors is directed to this fact because a standard pipe line valuation represents cost- of digging the trench along the right of way, labor of laying and connecting the line and the backfilling of trench transportation of oil. No values for gathering lines have been fixed by this Commission, and assessors are directed to list same at actual value. We suggest to determine actual value that a depreciation rate not greater than 10% per annum be allowed from cost of new pipe.”

The evidence shows that the line, the value of which is here in dispute, was a well laid one, and that it was prepared, painted and buried in much the same manner as a standard pipe line. The assessor therefore classified the line as a standard pipe' line, and depreciated its admitted cost-of $6,960 per mile at 6% per cent per year for five years, and accordingly valued it for assessment purposes at $4,765 per mile.

The' defendants, it appears, contend that the cost value per mile being admitted, and the line having been properly classified as a main line, and the standard rate of depreciation having been correctly applied, the value for assessment purposes is established.

The application of general rules by which values are determined for purposes of uniformity in taxation are not entitled to great weight in determining the value of a specific object. While a fixed depreeiation test tends to uniformity in establishing values, it must yield to evidence of actual depreciation of a specific object the value of which is in dispute in a suit to correct an assessment. Deterioration is not uniform or constant in objects of the same kind or character. The life of a pipe line varies in proportion to the amount of destructive chemicals in the earth through which it passes.

The assessment resulting from the application of the Louisiana Tax Commission rules is only prima facie correct. The burden is on plaintiff in this action to establish the actual value of the pipe line. This burden the plaintiff has clearly sustained. No' testimony was adduced as to the value except by plaintiff, and that testimony is uniformly to the effect that the pipe line was worth less than $3,000 per mile.

The question as tq the correct value of the oil in storage for assessment purposes may be thus stated: Should the Magnolia Petroleum Company have calculated the value of its oil in storage at 85 cents per barrel, which it was worth on January 1, 1928, or at the average price of the oil during the year previous to assessment; calculated on the price as of January 1, 1927, July 1, 1927, and January 1, 1928?

It must be conceded that ordinarily property should be assessed at its actual cash value, and according to the situation existing on January 1st of the taxable year. Act 170 of 1898, sec. 7 and sec. 20; Southern Insurance Co. v. Board of Assessors, 49 La. Ann. 401, 21 So. 913; Palfrey v. Connely, 106 La. 699, 31 So. 148; Louisiana Oil Refining Corporation v. Louisiana Tax Commission, 167 La. 605, 120 So. 23.

The defendants contend that section 7 of Act 170 of 1898 authorizes an assignment of an average value for the previous year. The pertinent part of the section reads as follows:

“That in assessing mercantile firms the true intent and purpose of this act shall be held to mean, the placing of such value upon the stock in trade * * * as will represent in their aggregate a fair average on the capital, both cash and credit, employed in the business of the party or parties to be assessed.”

Section 1, article 10 of the Constitution of 1921, provides that no property shall be assessed for more than its actual cash value, and all taxpayers shall have the right of testing the correctness of their assessments before the courts at the domicile of the assessing authority.

Section 7 of Act 170 of 1898, further provides that it shall be the duty of tax assessors to place upon the assessment list all property subject to taxation, including merchandise or stock in trade on hand at the date of listing.

This court, citing as authority, Peden Iron & Steel Co. v. Louisiana Tax Commission, 163 La. 103, 111 So. 614, 615; Swift & Co. v. Board of Assessors, 115 La. 322, 38 So. 1006; Cudahy Packing Co. v. Board of Assessors, 115 La. 326, 38 So. 1008, used the following language in the case of Baker-Lawhorn & Ford, Inc., v. Louisiana Tax Commission, 15 La. App. 189, 130 So. 642, 643:

“Although there is not any decision cited in which it has been expressly held that the mean amount of the inventories taken in the preceding year must be taken as showing the inventory value of the average stock of merchandise carried during the year the assessment is made, there are several cases' where the assessment has been based upon the mean amount of such inventories, * * * but we are of the opinion that the mean amount of the inventories is merely evidence of the inventory value of the average amount of merchandise carried, and that, where the evidence shows such mean amount is more or less than the average amount of merchandise carried, neither the taxing authorities nor the tax debtor is bound thereby (Peden Iron & Steel Co. v. Louisiana Tax Commission, 163 La. 103, 111 So. 614).”

In the case of Peden Iron & Steel Co. v. Louisiana Tax Commission, supra, the Supreme Court, speaking through Mr. Justice Thompson, reviewed the decisions above referred to, and established a method to be observed by assessors which is fair both to the taxpayer and the state, and which reconciles the provisions of the statute with the cash value clause of the Constitution. The rule is stated as follows:

“(1) We take the rule to be that, where it is not practicable to arrive at the amount of merchandise or stock in trade on hand at the time of listing the same for taxing purposes, then the assessing authorities are authorized to take as a basis for such purpose the average amount of stock on hand for the preceding year, and this method is fair both to the taxpayer and to the state.
“(2) Where, however, the amount of stock on hand at the time of listing can be reasonably ascertained, then that amount should be accepted as the basis for the assessment. This method would be strictly in keeping with the cash value clause of the Constitution and the requirement of the statute that the valuation should be of the stock on hand at the date of listing.”

This rule, expressed as it is in clear unmistakable language, solves at once in a simple, practical way a difficult assessor’s problem which is constantly arising, and the question in this case. The amount of stock on hand in the instant case at the date of listing could not only be reasonably ascertained, but was definitely determined to be 125,028 barrels, and the price on the same date being 85 cents per barrel, the proper value for assessment purposes of oil in storage was $106,273.80.

As the values as rendered by the plaintiff exceed the correct values for assessment purposes as determined in this case, the assessment should be reduced in accordance with the rendition as prayed for.

It is therefore ordered, adjudged, and decreed that the judgment appealed from be annulled, avoided, and reversed, and that there now be judgment in favor of plaintiff and against the defendant, decreeing a reduction of the assessment of plaintiff’s property in Webster parish, Louisiana, to the amount as rendered to the assessor by plaintiff, which is as follows: Oil in 'storage, $110,105; six-inch gathering line, $19,140.

It is further ordered that the defendants pay all costs of this proceeding.

DREW, J., recused.


author: MOUTON, J.

text:
    No. 887
    First Circuit
    DEPETRO v. MITCHNER
    (December 8, 1931. Opinion and Decree.)

      See 16 La. App. 321, 134 So. 273.
    R. F. Walker, of Baton Rouge, attorney for plaintiff, appellant.
    Leslie A. Fitch, of Baton Rouge, attorney for defendant, appellee.
   MOUTON, J.

In September, 1929, plaintiff instituted suit claiming damages for personal injuries suffered by his daughter, Lena Despetro, the alleged result of an automobile collision caused by the fault of defendant.

During the trial the following occurred which appears from a statement of facts in the brief of counsel for plaintiff and appellant, to-wit:

“That when the trial was begun, plaintiff introduced the testimony of three or four witnesses, by whom he attempted to establish facts at variance with those alleged in his petition; that this testimony was objected to by the defendant; that the Court sustained the objection and plaintiff’s counsel realizing, as he was informed by the Court, that if the case proceeded any further along those lines that a ’definitive judgment would be rendered against him’ offered to amend his petition which remedy was denied him by the trial court as having come too late. Whereupon counsel for plaintiff then and there moved to dismiss that suit as of non-suit. His motion was granted, the suit was accordingly dismissed.”

Civ. Code, art. 3518, provides for the legal interruption of prescription by suit. In referring to this interruption of prescription article 3519, Civ. Code, reads:

“If the plaintiff in this case, after having made his demand, abandons or discontinues it, the interruption shall be considered as having never happened.”

In the case of Dennistoun v. Rist, 9 La. Ann. 464, in interpreting article 3519 of the Civil Code, above referred to, the court said:

“Plaintiffs sued on a promissory note; and on motion of their counsel, it was ordered ‘that judgment be rendered against plaintiffs as in case of nonsuit.’ Held: that this was a voluntary discontinuance of plaintiffs’ suit under Article 3485 of the Civil Code [now article 3519], and therefore the interruption of prescription from having instituted the suit, shall be considered as never having happened, although it appeared probable from the record that the discontinuance was made with the view of reviving the suit under more favorable auspices.”

From the statement of facts, above re-, produced, plaintiff in dismissing his suit, likewise we think, intended to renew it under more favorable auspices. Even if so, this issue must be resolved against plaintiff under the further comment of the court in the case above cited, which is as follows:

“Although it is not impossible from the .matters appearing in the record that plaintiffs fearing they were not able to make out their case, and that judgment would 'therefore be rendered in favor of defendants, applied for a non-suit, not with the intention of abandoning their claim, but on the contrary, with the intention of renewing it under more favorable auspices, still, under the authority above cited, we are constrained to regard their act as a voluntary discontinuance in the .sense of article 3485 of the Civil Code.”

In the case of Davis et al. v. Young, 35 La. Ann. 739, in giving its interpretation to article 3519, Civ. Code, and in which it cites with approval the decision in Dennistoun v. Rist, 9 La. Ann. 464, heteinahove referred to, and Smith v. Gibbon, 6 La. Ann. 684, upon which that latter decision is grounded, the court took occasion to say that:

“There exists no essential difference between a discontinuance and a voluntary non-suit. A suit in which plaintiff is non-suited * * * does not interrupt prescription, whatever * * * may appear to the contrary. A voluntary non-suit is equivalent to an abandonment.”

It is therefore clear that when the original demand against defendant was non-suited on motion of counsel for plaintiff, it was equivalent to an abandonment of the suit, and did not interrupt prescription, whatever might have been the intention to the contrary. Such is the doctrine announced by the court in the decisions above cited, and which have never been overruled or modified as far as we are aware.

It must therefore be held that no interruption of prescription - ever happened in the case under the provisions of article 3519, Civ. Code.

The second suit was brought in July, 1930, in which it is alleged that the personal injuries, for which the damages are claimed, were suffered in a collision which occurred in November, 1928, more than one year prior to the filing of that suit which was therefore barred by the prescription urged p.s an exception by defendant and correctly maintained below.


author: ELLIOTT, J.

text:
    No. 841
    First Circuit
    CONSOLIDATED FLOUR MILLS CO. v. DiMARCO
    (October 7, 1931. Opinion and Decree.)
    (December 8, 1931. Rehearing Refused.)

      Leon Ford, Jr., of Hammond, attorney for plaintiff, appellee.
    Rownd & Warner, of Hammond, attorneys for defendant, appellant.
   ELLIOTT, J.

Consolidated Flour Mills Company claims «of Joe DiMarco $742.75 on account of an alleged breach or contract on part of defendant in buying from plaintiff two carloads of flour of the Lucky Leven brand.

The defendant refused to take the flour, claiming that it was not fit for maxing bread, stating in a telegram bearing date March 19, 1S30: “Flour not as represented, unable to dispose of same to trade. Will refuse to accept any additional flour.”

,In a reply telegram dated March 20, 1930, plaintiff states that Lucky Leven flour was up to standard in every way. The telegram makes a number of other statements, among them that no warranty was made of Lucky . Leven flour; that Lucky Leven was not the first grade of flour and not guaranteed to be uniform or satisfactory.

The defense may be summed up in the answer, averment No. 14, in which defendant admits agreeing to buy 420 barrels of flour from plaintiff, alleging that it was presumed that the flour would be of the quality sufficient for ordinary household use, but the claim is made that after receiving a shipment of 210 barrels, he found that a great portion of the flour was of such inferior quality' that it could not be used for bread making. The shipment referred to in the answer was a shipment made previous to the one refused. Defendant alleges loss in trade due to the inferior quality of the flour reoeived by the previous shipment to the extent of $3,150, which he claims in reconvention.

The lower court rendered judgment in favor of the plaintiff as prayed for and rejected defendant’s demand in reconvention. Defendant has appealed. ^Defendant contends in his brief that the judgment against him for $742.75 should be reversed, but there is no argument in support of his demand in reconvention, which we therefore look on as abandoned.

The suit is based on a written contract containing a number of stipulations bearing, date August 21, 1929, but shipment was not to be made until March 1, T930. The shipment was made in interstate commerce.

The evidence shows that the flour was intended for bread making for family use and must therefore have been fit for human consumption, the purpose for which it was bought by the plaintiff and sold by the defendant, unless fitness for such a purpose was waived.

The written contract contains no waiver of warranty in that respect, consequently the sale was subject to implied warranty that, the flour was fit for household use and for making bread for human consumption. See New Iberia National Bank v. Teche Canning & Syrup Co., 159 La. 946, 106 So. 451. The preponderance and the more reliable and convincing evidence is that the flour in question was a fairly good brand, good enough for the purpose for which it was bought and sold and which the parties had in mind. -

Wiley T. Hawkins, sales manager for plaintiff, testified that it came up to the required standard in the matter of quality. He is supported in his testimony by Galen Norman, a baker of Hammond, who testified on the subject and says that the flour in question was a fairly good quality; not the best, but that it made good bread when properly baked. His testimony is not disputed and may be accepted as true.

The claim of the defendant in his telegram that the shipment was not as represented is not established. It was never given a fair trial by the defendant. He refused to receive the first car, without looking at it. The defendant caused it to be sold in Hammond and the sale was made pursuant to stipulations authorizing it in the contract of the parties. The flour brought a fairly good price in Hammond, considering that it was made on a falling market. Under the contract of purchase the defendant has no ground for complaint on that account. The defendant declined to send shipping instructions as to the second car; it was therefore .not shipped out of Wichita, Kansas, but was sold there by the plaintiff under the contract by which it was bought. We cannot find from the contract that defendant has any ground for complaint on that account.

Plaintiff complains that the first car should not have been shipped. The evidence shows that it was shipped on March 15, 1930, pursuant to verbal request of defendant to Charles Starns, plaintiff’s agent in Hammond.

Defendant’s telegram not to ship bears date March 19, 1930, consequently it was too late to stop the shipment. There is no ground for complaint on that account.

Mr. Starns testified that defendant ordered the shipment made on March 15, 1930, then on March 19, 1930, wired that he did not want it; that it was his opinion at the time that defendant was trying to get out of the order because of the falling price, which opinion seems to be justified. The defendant further urges «that various charges made against him and which, combined, make up the sum of $742.75, are illegal and erroneous and should not be allowed. The contract supports the charges. Defendant contests a charge of 20 cents per barrel for selling the flour. The contract of purchase provides for this charge; it was due Charles Starns, plaintiff’s agent, for his services in making the sale. Mr. Hawkins testified that this item had been paid to Starns. The testimony of Starns is to the .effect that it has not been paid him.

It is sufficient for the decision of the present case that the charge is authorized by the contract and that the defendant owes the amount to the plaintiff. The plaintiff is therefore entitled to claim it of him in this case. As for the settlement between Consolidated Flour Mills Company and Starns, that is not a matter we can deal with in the present controversy.

The judgment appealed from is in our opinion correct. Judgment affirmed, defendant and appellant to pay the costs in both courts.


author: LeBLANC, J.

text:
    No. 876
    First Circuit
    UNION INDEMNITY CO. v. BLAISE DOWNTOWN STORAGE, INC.
    (December 8, 1931. Opinion and Decree.)
    Chas. A. Holcombe, of Baton Rouge, attorney for plaintiff, appellee.
    Breazeale & Sachse, of Baton Rouge, attorneys for defendant, appellant.
   LeBLANC, J.

On September 29, 1930, the plaintiff insured a Packard automobile belonging to Clay W. Becker, Inc., of New Orleans, La., against loss by reason of damage caused by accident. On November 10, 1930, during the life of the policy, Ginder Abbott, manager of the wholesale department of Clay W. Becker, Inc., acting within the scope of his duties as such, drove the insured automobile to Baton Rouge and stored it for the night with the defendant, who operated an automobile storage garage at No. 218 Convention street in that city. On the following morning, Abbott paid the storage charges due and went to obtain delivery of the car. While it was being removed from the floor of the elevator in the garage, it was damaged in an accident, which it is claimed was due to the defective mechanical condition of the elevator. Plaintiff paid the damages under the policy which amounted to the sum of ?340.40 and had itself subrogated to the right of action of Clay W. Becker, Inc., against the defendant, under which this suit is prosecuted.

The defense is that, Abbott himself is to blame for the accident, as he took entire control of the automobile in driving it from off the floor of the elevator after having ordered the negro employee of the garage, who was competent to handle it, out of the driver’s seat. It is denied that the elevator was defective in any way, and specifically averred that, had Abbott permitted the negro attendant to drive the car out, as the latter was able to do, it would have been taken off in safety and without any damage. It is further urged that Abbott, in taking charge of his automobile and relieving defendant from delivering it to him, by having ordered the negro boy engaged for that purpose out of it, assumed all-responsibility for damages, and therefore it is not liable.

Prom a judgment in favor of the plaintiff for the amount of the claim, defendant appealed.

The evidence shows that Abbott had driven from Lake Charles late that evening to Baton Rouge. It had been raining all afternoon, and he says that the floors in the garage were wet; this no doubt being caused by the cars driving in from the rain. It was rather cold also, and this made it a bit more difficult to start off the motor early the next morning when he went to get his car. He says that he gave instructions to store his car where it would be possible to get it out quickly as he wanted to leave early the following morning. He was at the garage between 6 and 6:30, paid the storage charges, and went for his car, which he found on the floor of the elevator in the rear end of the garage.

It is shown that, when the elevator was all the way down, its floor sank some three or four inches below the level of the main floor of the building, and, in driving an automobile from off of it, it was necessary to use a good bit more power than ordinarily to get the wheels over the rise between the two floors. Especially was it so in this case as the car had to be backed off instead of driven forward. The negro employee, Robert Hayes, seemed to be having some difficulty in starting the motor. Abbott, apprehensive that he might damage the storage battery by the grinding of the motor, told him to get out and that he would start it off himself. He did get into the driver’s seat and started the motor, and by this action defendant contends that he assumed full control over his ear and relieved its employee from responsibility. Abbott testifies however, that -the negro employee stood by directing him how to back off on account of the difference in elevation between the two floors, at which moment, the accident happened. “This the negro admits. It cannot be said, therefore, that Abbott was in entire and absolute control of the situation in such manner as to hav'e relieved defendant’s employee of all responsibility.

Conceding that he had, however, we do not think that this is -the vital issue in the case as it appears to us that the proximate cause .of the accident was the defective( mechanical condition of defendant’s elevator, on which their employee had driven the automobile.

Abbott’s statement as to how the accident occurred is not disputed. He says that as the back wheels of the car left the elevator, the weight was all to one side. This caused the starter of the elevator to trip, and it began to rise. On account of the slippery floor, the back wheels would not grip and the car would not move. The elevator carried it upwards with it until it reached the second floor of the building, when it stopped. The front end of the car was then jammed between the elevator floor and the second floor of the building, the rear end remaining suspended in ihe air as it were. The damages to the front end of the car which' resulted can readily be imagined.

We do not find any merit in counsel’s contention that, had Mr. Abbott permitted •the negro employee to back the car off the elevator, he would have done so without any trouble, as under our appreciation of the circumstances under which it happened the accident could just as well have occurred with any driver at the wheel. What really caused it was not the way in which the car was handled, but the fact that the elevator was not in good mechanical condition. Clyde Strait, building superintendent for the Louisiana National Bank in Baton Rouge, who was qualified on the witness stand as a competent elevator mechanic, expressed the opinion that an elevator that would start off as this one did was in bad mechanical shape. When asked to explain what probably happened to make it go up automatically under the conditions testified to, he states that the operating cable was in the wrong position. The fact that the elevator sank below the level of the floor of the building, he holds, would of itself indicate that it was not properly adjusted and would have a tendency to rock, thus causing it to start and stop at an unusual place. There is no contradiction of Strait’s testimony, and it is to a large extent corroborated by that of Abbott, who also testified as having had quite a bit of experience with elevators of this kind.

Counsel for defendant urges upon the court the well-known doctrine that a bailee is not an insurer of the goods that are stored with him and he is answerable only for those damages resulting from his negligence. They contend that there is nothing in the record to show that the defendant bailee in this case had knowledge of the faulty mechanical condition of the elevator, and without such knowledge there was no negligence. We readily accept the first proposition advanced by counsel, but do not agree with them in their second contention. Clearly, it is the garage owner’s duty to equip himself with safe mechanical appliances used in operating his business of storing and delivering automobiles, and further to maintain them in that condition. The' elevator used by this defendant was such an appliance. It was not in a safe mechanical condition on the morning it was being used to deliver the car that was damaged in this case. It appears to us, that the difference in the level between the floor of the building and that of the elevator, when lowered, was: of itself sufficient to suggest to the defendant, that the elevator was not properly adjusted. No attempt even was made to show that ordinary care or precaution was taken to see that the elevator was in good mechanical condition. In the absence of such showing, defendant’s negligence seems clear to us, and we are bound to hold' it liable for the 'damage occasioned thereby.

The judgment of the lower court correctly decreed it to be so for the full amount of the claim, and it is therefore affirmed.