author: ODOM, J.

text:
    No. 3185
    Second Circuit
    RITCHIE GROCERY CO., INC., v. USSERY ON OPPOSITION OF ELMER F. YANCEY
    (June 28, 1928. Opinion and Decree.)
    (July 14, 1928. Rehearing Refused.)

      B. T. Dawkins, of Alexandria, and "W. C. Roberts, of Alexandria, attorneys for plaintiff, appellee.
    C. H. McCain, of Colfax, attorney for third opponent, appellant.
   ODOM, J.

The Ritchie Grocery Company, Inc., obtained a judgment against P. M. Ussery on April 12, 1927. On June 9th following, it procured the issuance of a writ of fi. fa. under said judgment and on June 10th the Sheriff seized an automobile at Georgetown as the property of the judgment debtor.

On June 11th, E. F. Yancey filed with the Sheriff an affidavit setting up that the car seized was his property and not the property of Ussery. Later on Yancey intervened in the suit by way of third opposition, setting up that he had purchased the automobile from Ussery on or about January 1, 1927, paying therefor $385.00 cash and, in addition thereto, had assumed the payment of notes secured by chattel mortgage on the car amounting to $414.63, and that the car had been delivered to him in due course.

The Ritchie Grocery Company, Inc., in answer to the intervention, alleged that the car seized was the property of Ussery and was in his possession when seized; that there had not been a sale from Ussery to Yancey; and that even if there had been a form of sale gone through with between the parties that such alleged or purported sale was fraudulent, without consideration, without delivery, and was a simulation and made with the intent and purpose of placing the property beyond the reach of Ussery’s creditors^

There was judgment in the District Court •rejecting intervenor’s demands and dismissing his intervention at his cost. He appealed.

OPINION

Both Yancey and Ussery testified that the sale of the car was verbal and took place in Ussery’s store at Georgetown on or about January 1, 1927; that Yancey paid Ussery $385.00 in cash at the time of the sale and that Yancy agreed to assume and pay the notes against the car, amounting to $414.63, and that the car was at once delivered to Yancey and that he had been in possession thereof ever since and that it was in his possession when seized.

Yancey testified, and his testimony is not disputed, that he at once made application to the Commercial Credit Company, which owned the notes Ussery had given for the purchase price of the car, to have Ussery’s interest in the car transferred to him and to have himself substituted as debtor, which application was approved by said Credit Company, and that he subsequently paid the nine notes due.

Yancey filed in evidence a written instrument, dated January 8, 1927, signed by the Credit Company, addressed to him, in which it is recited, among other things:

“We wish to advise that we have approved your application for transfer of the interest of P. M. Ussery to you, in consideration of which you hereby agree to stand responsible for the following payments, to be made on the following dates.”

Then follows a stipulation that the terms of the original contract with Ussery are to remain in full force and effect and binding upon Yancey and setting out the amounts and dates on which the nine notes fell due.

There were no witnesses to the sale by Ussery to Yancey and no direct testimony to contradict their statements as to the sale, the payment of the cash and the delivery of the car.

So that unless the surrounding circumstances are such as to destroy the effect of the positive testimony that there was a bona fide sale and delivery of the car, the court must hold that the car was the property of the intervenor and was illegally seized as the property of Ussery.

In cases of this kind courts are warranted in disregarding the direct and positive testimony of the interested parties where the record is otherwise loaded with facts and circumstances which cast such taint and suspicion upon the transaction as to make it unbelievable that there was in fact a bona fide sale. But the circumstances which are alleged to throw doubt upon the verity of the sale should be carefully weighed and should be strong if the court is to hold, in effect, at least, that the parties to the sale have deliberately perjured themselves.

A reading of the record in this case has convinced us that there was in fact a sale and delivery of the property in controversy.

It is disclosed that Yancey is the son-in-law of Ussery and that they lived together in the same house during a portion of the time from the date on which the car was sold to the date on which it was seized.

Due to that intimate relationship, counsel say, and they cite authorities in support of the proposition, that the burden was upon Yancey, the intervenor, to establish the verity of the transaction.

Granting that the point is well taken, we hold that Yancey discharged that burden.

As already stated, it is not disputed that Yancey assumed and paid the balance due on the car, amounting to $414.63. But, as to the initial cash payment of $385.00, which Yancey and Ussery say was made, it is suggested that in all probability Yancey did not have that much money, and that if he did, it is not probable that he would have kept it in his pocket or lying around the house.

Yancey was a telegraph operator living on the outskirts of the village of Georgetown, where living expenses, no doubt, were no more burdensome than they are in rural sections. His family consisted of a wife only, and he received from $140.00 to $150.00 per month. His wife owned the house they were living in, having purchased it two years before they were married. He says their living expenses were nominal that he bought no “highpowered meat” but ate bacon. His father-in-law and mother-in-law lived with him and contributed their share of the household expenses. A sister-in-law also lived with them, but she was conducting a filling station of her own and contributed also.

We see no reason why Yancey could not have saved something from his salary under such conditions, as he says he did.

Now, as .to the probability of his having as much as $385.00 in -cash. He says his wife had some of the money and he had the balance. That is not improbable, when it is considered that they lived in what might be termed a rural section. It is not shown that there was a bank in Georgetown or at Woodsworth, the other small station where he worked a portion of the time. People who live in towns and cities where there are banks usually keep their money in them, but those in rural sections do not always use banks.

It is alleged and argued that the car was seized while in the possession of Ussery. The testimony does not warrant that holding.

In June, when the car was seized, Yancey was at work at Woodsworth, a short distance away, where, it seems, that he and his wife were temporarily residing. He took his wife in the car and drove to Georgetown to visit Ussery who was living in Mrs. Yancey’s house. When he stopped the car at the house, the Sheriff seized it.

The residence where the car was seized was called “Uncle Pete’s” house, “Uncle Pete” being Ussery. But Ussery did not own the place; he lived there, but it was owned by Yancey’s wife and had been occupied by both Ussery and Yancey. The car was in Yancey’s possession the day it was seized, he having carried 1 it from Woodsworth to Georgetown, and it was seized on his wife’s property.

It is argued that Ussery had possession of the ear from the date of the sale to the date it was seized. The basis for that argument is that Ussery did use the car at times. It is natural that he should. They were all living in the same house and the car was kept on the premises until Yancey moved to Woodsworth, and after that Mrs. Yancey made frequent visits to see her father at Georgetown, carrying the car with 'her. It was always at Ussery’s service when not in use by the Yanceys.

We are convinced that there was a delivery of the car to Yancey and that he possessed it all the while.

It is further argued that Yancey could not have made the payments on the car with his own funds and taken care of his other expenses.

Why not? He was paying $20.00 per month on an old Ford, $46.07 on the car in controversy, his living expenses were about $25.00 per month, plus about $6.00 for gasoline; total, $97.00. He was earning $140.00 per month. He had left $43.00 per month. He bought a house at Woodsworth for $100.00. He made two or three small payments on it and borrowed $85.00 from his mother to pay the balance and he still owes that. For two months previous to his purchase of the house at Woodsworth he leased it at $8.00 per month. With all these items he was living well within his means.

Counsel cite the case of Weil vs. Scarbrock et al., 156 La. 159, 100 South. 290. The “suspicious circumstances” there were much stronger than those here. In that case, a father sold to a minor son cattle worth $5040.00. The initial payment was $1500.00, which the son claimed he had saved over a period of years and put in a tool-box. But he was a minor working for his father for $20.00 per month and his board. The second payment of $1270.00 was made by the boy two months later with money which he claimed to have earned by butchering and selling cattle to undisclosed persons. The third payment of $1270.00 was made by the boy with money which he claimed to have borrowed from a relative. The relative was a farmer who did not draw the money, $2000.00, from a bank, although it was shown that he kept an account at the bank. There were other suspicious circumstances about these payments. In addition, the Court found that the father continued to exercise all rights of ownership over the cattle, had them dipped in his own name, sold cream in Alexandria and collected the price thereof, and the Court said:

“In fact he (the father) at all times, in acts and in conversation, treated said cattle as his own.”

Small wonder it is that the Court held that there was no sale by the father to the son.

In view of the positive testimony of Yancey and Ussery, whose reputation for truth and veracity is not assailed, that there was a sale for a consideration which was paid, and in view of the fact that Yancey had an income sufficient to enable him to save the amount of the initial payment on the car and to make the subsequent payments as well as pay his other expenses, we cannot hold that there was not a bona fide sale of the car, and we have found that there was delivery.

Ussery’s store burned a few days after the car was sold and it is intimated that he was insolvent, but there is no proof that he was.

The District Judge has not favored us with a statement of his reasons for rendering the judgment which he did. As we see it, he manifestly erred.

For the reasons assigned, it is ordered, adjudged and decreed that the judgment appealed from be reversed, and it is now ordered adjudged and decreed that the Whippet car seized by the Sheriff of Grant Parish in the suit of Ritchie Grocery Company, Inc., versus P. M. Ussery, No. 6734, is the property of the intervenor, F. F. Yancey, and further ordered that the Sheriff of said parish release said seizure and deliver the property to said Yancey; all costs of this suit to be paid by the seizing creditor.

It is further ordered that whatever rights the intervenor had or has to claim damages be reserved to him.


source: Caselaw Access Project

author: WESTERFIELD, J.

license: Public Domain

text:
    No. 11,486
    Orleans
    CHETTA v. DICKS
    (July 7, 1928. Opinion and Decree.)
    (August 12, 1928. Rehearing Refused.)
    (October 3, 1928. Writ of Certiorari and Review denied by Supreme Court.)
    Theo. Cotonio, of New Orleans, attorney for plaintiff, appellee.
    L. R. Hoover, of New Orleans, attorney for defendant, appellant.
   WESTERFIELD, J.

Judgment was signed in this case on March 27, 1928.

Motion for and order granting suspensive appeal was signed on March 30, 192'8, making appeal returnable to this Court on Aipril 27, 1928. On that day an extension of time for filing transcript until May 29, 1928, was obtained from this court, but transcript was not filed until May 30, 1928.

Appellant moves to dismiss appeal on ground that transcript was filed too late.

It is well settled that no days of grace are allowed on an extension of time.

See Brown vs. Hart, 4 La. App. 502.

Richardson vs. Henderson Refining Co., 4 La. App. 663, and cases there cited.

Appeal is dismissed.


text:
    No. 2420
    Second Circuit
    HARRIS ET AL. v. HENDERSON LAND, TIMBER & INVESTMENT CO., INC.
    (March 14, 1928. Opinion and Decree.)
    (November 8, 1928. Opinion and Decree on Rehearing.)
    Murff & Perkins, of Shreveport, attorneys for plaintiffs, appellees.
    Pugh 'Sc Boatner, of Shreveport, attorneys for defendant, appellant.
   ODOM, J.

Plaintiffs, Lawson Harris, Albert Faulkner, Lucinda House, Willie House Dickson and Jodie House Epps, allege that they own undivided interests in the southeast quarter of the southwest quarter and the southwest quarter of the southeast quarter of Section 4, Township 19, North Range 15 west, of Caddo Parish, Louisiana, which land is now claimed by the defendant, the interests claimed by plaintiffs being as follows:

Lawson Harris, an undivided one-sixteenth.

Albert Faulkner, an undivided one-sixteenth; and

Lucinda House, Willie House Dickson, and Jodie House Epps, an undivided one-forty-eighth interest each.

It is alleged that the plaintiff, Lawson Harris, is the son of Jane White, that plaintiff, Albert Faulkner, is the. only son and sole heir of Buthenia White Faulkner, who was the daughter of Jane White, and that Lucinda House, Willie House Dickson and Jodie House Epps are the children and sole heirs of Peggie White House, a daughter- of said Jane White, and that said Jane White was the mother of eight children, each of whom, either directly or by representation, acquired, by inheritance, an undivided interest in the property of which she died possessed.

It is also alleged that Jane White married Ad Martin in 1888 or 1889, and that during the marriage of Ad Martin made homestead entry of the above described land and made his final proof previous to the death of his wife, Jane, but that patent issued after her death, and that said property became an asset of the community between Ad and Jane Martin, so that at her death her children inherited the one-half thereof.

Defendant, in answer, denied, generally, all the allegations of plaintiffs’ petition, and put at issue, specifically, the legitimacy of the plaintiff, Lawson Harris, and of the mothers of the other plaintiffs, and set up that it acquired said land by mesne conveyance from Ad Martin, the homesteader, and that the property was not community but was owned by Ad Martin individually.

There was judgment in the lower court for plaintiffs, recognizing them as owners of said land in indivisión with defendant in the proportion of one-sixteenth to Lawson Harris, one-sixteenth to Albert Faulkner, and one-forty-eighth to Lucinda House, Willie House Dickson, and Jodie House Epps, each.

Defendant appealed.

OPINION

The following points are either conceded, admitted or proved beyond question.

1.That Jane White married Ad Martin 1888 or 1889.

2. That during his marriage with Jane, Ad Martin made homestead entry of the land in question, made final proof before her death, and that patent 'issued after her death.

3. That the property was owned by the community which existed between him and his wife, Jane.

4. That Ad Martin sold, after the death of his wife, Jane, the entire interest in said land, to defendant’s author in title.

5. That Jane White was the mother of several children when she married Ad Martin, three of whom were Lawson Harris, one of the plaintiffs, Bertha White House, the mother of Albert Faulkner, another plaintiff, and Peggie White House, the mother of the other three plaintiffs.

6. That Albert Faulkner is a legitimate child and the sole heir of his mother, Bertha White House, and that Lucinda House, Willie House Dickson, and Jodie House Epps are legitimate children and the sole heirs of their mother, Peggie White Epps.

Therefore, the only controverted point is, whether plaintiffs inherited any interest in the land from Jane White Martin.

Plaintiffs are direct descendants of Jane Martin, but they do not claim to be issue of her marriage with Ad Martin, but specifically allege “that they are not children or grandchildren of Ad Martin, but are of Jane Martin.”

From the fact that these plaintiffs are direct descendants of Jane Martin, it does not follow, as a matter of law, that they inherit from her. If they are legitimate descendants, they inherit, of course.

The testimony makes it clear that Bertha White, the mother oí Albert Faulkner, and Peggie White, the mother of Lucinda House, Willie House Dickson and Jodie House Epps, where legitimate children of Jane White Martin by a former marriage with John White. Jane White Martin was probably born a slave. That she was married to John White, is clear enough. There seems to be no record evidence of that fact, but William Hill, an aged colored man, who does not know how old he is but says he was born a slave and was about grown when the war between the States closed, says he was present at the marriage of John White and Jane; that they were married by a minister of the Gospel “who stood up before them and read a book.” He does not know that a license was issued (and there seems to be no record of any) but recalls definitely that they were married in his presence and in the presence of others whose names he does not remember, as they have all “died out.”

This is sufficient proof of the marriage. Oliphant vs. Louisiana Long Leaf Lumber Co., 163 La. 601, 112 So. 500.

Another witness, Gus Marshall, who married Jane’s youngest sister, says John White and Jane were married, although he did not witness the ceremony.

These and other witnesses say that after John White and Jane were married they lived together as husband and wife, were recognized as such, and reared their children in the community where they were married.

William Hill testified that there were born of the marriage between John and Jane White the following named children: Buthenia, Elvina, Peggie, William and John. These children, it seems, were born during the marriage, except John, who was born six days after his father’s death.

The testimony shows that there were two children born of the marriage between Ad Martin and Jane White whose names were Lonzo and Elijah. Jane White Martin, therefore, had seven legitimate children, five as issue of her marriage with John White, and two' as issue of her marriage with Ad Martin.

While the testimony shows that Lawson Harris, one of the plaintiffs, was a son of Jane White Martin, it fails to show that he was a legitimate child. He was not born of or during either marriage.

William Hill, who seemed to know all the children of the former marriage, named them, but did not name Lawson. John White, a son of Jane by her first husband, said Lawson was his brother, that his mother always claimed him as her son, but specifically stated that he was not born during or out of the marriage with John White, Sr.. The witness said that he himself was the youngest of the White children and was born six days after his father’s death, and that Lawson was born several years after he was. Asked why Lawson went by the name of Harris, the witness said he did not know but it was probably because he had a different father.

There is testimony that while Lawson is Jane’s child, yet she did not rear him. He was reared by his grandmother. Sarah Jane White’s testimony makes it perfectly clear that Lawson was not the son of John White, Jane’s first husband. There is no testimony to show that he was Jane’s child by her second marriage. Not only that, but it is specifically alleged that he is not the son of Ad Martin. Lawson Harris’ mother was married but twice, first to John White and then to Ad Martin. He not being a child of either marriage, is not legitimate, and cannot inherit from his mother.

Testimony was introduced tending to show that he. was acknowledged by his mother. Even so, he cannot recover, because his mother had seven legitimate children.

“Illegitimate children, though duly acknowledged, cannot claim the rights of legitimate children.”

C. C. Art. 206.

“Natural children are called to the legal succession of their natural mother, when they have been duly acknowledged by her, if she has left no lawful children or descendants.”

O.C. Art. 918.

The Judge of the lower court erred in holding that Lawson Harris inherited an interest in said land from his mother, Jane.

Our finding is, that Jane White Martin had seven legitimate children who inherited directly or by representation her one-half community interest in the land in controversy, and that Bertha White Faulkner, the mother of Albert Faulkner, and Peggie White House, the mother of Lucinda House, Willie House Dickson and Jodie House Epps, were two of her seven legitimate heirs.

Proceeding now to render such judgment as should have been rendered in the first instance, it is, for the reasons assigned, ordered, adjudged and decreed that the judgment appealed from be and the same is hereby reversed and avoided, in so far as the same recognizes Lawson Har.ris as an heir and entitled to inherit from Jane White Martin, and his demands are rejected. It is further ordered, adjudged and decreed that Albert Faulkner, the sole surviving heir of Bethenia White Faulkner, be and he is hereby recognized and decreed to be the owner of an undivided one-fourteenth 'interest and that Lucinda House, Willie House Dickson and Jodie House Epps, the sole surviving heirs of Peggie White House, be and they are hereby recognized and decreed to be the owners each of an undivided one-forty-second interest in and to the southeast quarter of the southwest quarter and southwest quarter of southeast quarter of Section 4, Township 19, North Range 15, West in Caddo Parish, Louisiana.

It is further ordered and decreed that the rights of the plaintiffs herein recognized as owners of undivided interests in said land to sue for the use of said property and the timber cut and removed therefrom, be reserved, and that the demands of Ad Martin, intervenor, be rejected at his costs. Defendant to pay all other costs.


text:
    No. 3186
    Second Circuit
    ARENDER v. GRANT TIMBER & MANUFACTURING CO., INC.
    (June 28, 1928. Opinion and Decree.)
    (November 8, 1928. Rehearing Refused.)

      Kennon and Kitchens, of Minden, attorneys for plaintiff, appellant.
    White, Holloman and White, of Alexandria, and A. L. Burford, of Texarkana, Ark., attorneys for defendant, appellee.
   ODOM, J.

A. W. Arrender was employed as a teamster by the defendant company.

On April 19, 1926, while at work and in the course of his employment, he was accidentally injured. He died on December 9th, following, or seven months and twenty days after the injury.

His widow, Mrs. Kate Arrender, for the use and benefit of herself and minor children, prosecutes this suit for compensation under the provisions of the Workmen’s Compensation Law (Section 8 of Act No. 20 of 1914, as finally amended by Act No. 216 of 1924 and Section 8, general paragraph 2, Act No. 85 of 1926), which provides that:

“Por injury causing death within one year after the accident there shall be paid to the legal dependents of the employee * * * a weekly sum as hereinafter provided.”

Plaintiff alleges that her husband never fully recovered from said injury and that his death was due thereto.

The defense is that the injury neither caused nor contributed to the death of the deceased, but that he died from Bright’s disease from which he had been suffering for some time prior to the accident.

Plaintiffs’ demands were rejected by the lower court and she appealed.

OPINION

Plaintiff’s husband lived seven months and twenty days after he was injured, and during that time he went back to work for the same company, did manual labor for several months, and drew practically the same wages as she was getting when injured.

This fact, in connection with other circumstances which we shall refer to later, has 'given rise to the contention by defendant that the injury neither caused directly nor contributed to the death of plaintiff’s husband.

On the other hand, plaintiff contends that her husband never fully recovered, and that even if it be true that the injury was not the direct cause of his death, and if it be found that he finally died from the effects of a disease which he had at the time of the injury and which was progressive in it's nature and developed to a critical stage months after the injury, the injury accelerated and aggravated the disease, caused it to progress more rapidly and hastened the inevitable result, and that under such conditions and circumstances she is entitled to recover.

There is no point more clearly and firmly established by our jurisprudence as well as that of other states than this, that in suits for compensation under Workmen’s Compensation Acts for death or disability, if it be shown that the injury complained of hastened death from a disease from which the employee was suffering and from which he would ultimately have died, or if such injury aroused and caused to become active a dormant disease or quickened and accelerated an active, progressive disease from which disability results, it will be held that such death or disability was due to the injury and compensation will be awarded.

Behan vs. Honor Co., 143 La. 348, 78 So. 589, L. R. A. 1918F, 862; Craft vs. Lumber Co., 151 La. 281, 91 So. 736; Hicks vs. Meridian Lbr. Co., 152 La. 975, 94 So. 903; Donahoe vs. Scharfenstein & Sons, 154 La. 815, 98 So. 256; Durret vs. Woods, 155 La. 533, 99 So. 530; Hooper vs. Standard Ins. Co., 166 Mo. App. 209, 148 S. W. 116; Connell vs. U. S. Sheet & Window G. Co., 2 La. App. 93; Becton vs. Deas Paving Co., 3 La. App. 683.

But in such cases there can be no recovery unless the evidence establishes with some degree of certainty that there was some connection between the accidental injury and the death or disability as the case may be.

On this point the plaintiff has failed to make out her case.

The deceased was between fifty and sixty years of age and had been employed for something like three years by defendant, most of the time as a teamster, and drew or was drawing at' the time he 'was injured $3.50 per day, and had worked regularly. He was driving a “four-up” team through the woods when one of the rear wheels of the wagon struck a bush or sapling and jerked it down upon his head and shoulder. He was picked up in an unconscious condition and carried to his home and a physician summoned. On the following day he was carried to Alexandria, and placed in a sanitarium where he remained for eight days, during a portion of which time he was irrational. He was carried back to his home where he remained in bed for one week, but, according to his wife, was sick for five weeks from the date of the injury. But she is probably mistaken as to the time, for he was injured on April 19th and went back to work in May.

The testimony shows that he worked six days in the last half of May, twenty-four and one-half days in June, nineteen days and six hours in July, twenty-four days in August, seven hours in September, nine days in October, and one day and three hours in November. During this period, that is, between the time he went back to work in May and the time he quit in November, the mill for which he was working was moved to Arkansas and he moved with it and worked there. He subsequently moved back to Louisiana and worked at Minden for the same company. Considering the time he lost in moving twice, he evidently lost but little time, if any, from sickness. When he was injured he was receiving $3.50 per day as a teamster. He returned to work as a “swamper” at $3.00 per day. His duty as a "swamp-er” was to use a club ax and cut out rights of way and help load logs on the wagons. He quit work in November and died December 9th.

In support of her contention that deceased never recovered from the injury, plaintiff introduced testimony tending to show that while he worked several months after the injury he was not' able to perform heavy manual labor, and cites the fact that after the injury he drew only $3.00 per day whereas before he drew $3.50.

We are not impressed with this theory. Using an ax, cutting down trees, and loading logs requires strenuous physical exertion more so than driving a four-mule team, in which process the driver usually rides one of the mules, as deceased seems to have been doing when injured.

Plaintiff also brought on witnesses who swore that deceased complained of pains in his head and neck after he went back to work. But this is disputed by other witnesses who worked with him and who said they heard no such complaints.

In support of its contention that the injury had no connection with the death and that the death was due to a disease which was not in the least accelerated by the injury, defendant cites the fact that deceased went back to work after the injury, and did hard manual labor for several months, and called several physicians who testified hs to the deceased’s condition at the time he was injured and as to the cause -of death.

Dr. D. V. Donaldson, who attended deceased about 10 o’clock in the morning of the day he was hurt, said he was told that deceased had been injured by a bush or sapling, but he paid but little attention to that, but found later some evidence of a lick on the head and neck, and that the patient was under shock caused by the blow. He went back the following day and found that the patient had not made satisfactory progress and he called in Dr. Packer of Alexandria. He and Dr. Packer had the patient sent to a sanitarium where they made an examination and found that the patient’s then condition was caused by nephritis or acute Bright’s disease and they treated him for high blood pressure. He did not think the blow was sufficient to cause any serious results.

Dr. Packer said that upon examination he found evidence "of a minor injury on the top of the right shoulder and the top of the head,” but did not think the injury was sufficient to produce the condition in which he found the patient. He took his blood pressure, which was extremely high, examined his urine, the kidneys, and had a chemical analysis of his blood made. The chemical examination o'f the blood showed:

“* * * a retention of urinal nitrogen more than three times the normal amount. This showed that it must have accumulated over a long period of time. The P. S. T. test, kidney function test, showed the first hour forty, for the second hour ten, or fifty total in two hours; normally it would be eighty-five, or more than one-third of the whole kidney tissue destroyed.”

In speaking of the patient’s condition, Dr. Packer said that in his opinion the injury had nothing to do with his condition, as it was slight or of a minor nature; and the findings show:

<■* * * much of a chemical condition — that is, the Bright’s disease would explain every condition the patient had, without resort to supposition that a minor injury had anything to do with his disability.”

He was asked what he had to say as to whether the injury was a—

“ * * * moving or accelerated cause of the death of Mr. Arender.” and he said—
“My opinion is that it had absolutely nothing to do with it.”

and that if the patient had received a brain injury, it would have produced different results — ■

"* * * a possible paralysis on one side.”

He gave it as his opinion that the patient’s convulsions were caused by uremia.

Dr. F. R. Hill said, conceding that the patient had Bright’s disease, the blow or injury was not a moving or accelerating cause of his death, and that if the injury had amounted to anything it would have had its effects at once.

“I could see no connection between the injury and his death.”

He said uremia .and high blood pressure usually brought on convulsions, and—

“After uremic convulsions and the progression to that' stage, usually from six r onths to two years, a person will die.”

Dr. R. O. Simmons was called in consultation while the patient was in the sanitarium in April. He says he made a thorough examinatiion and found he was unconscious, pulse pounding, and—

“I found that he had a slight little brush wound, if I mistake not, on the back of his right shoulder, I think his right shoulder, and he had a little bruised place on the back of his head — slight.”

He saw that the blood count and blood pressure were taken, looked over the urinalysis,, and—

“I fully made up my mind that the m -n was a very sick man for some time previous to my seeing him * * * My opinion was that this man was suffering from chronic nephritis of a very advanced stage, probably had it for a number of months or possibly a number of years * * * He had blood pressure * * * 280 * * * or 140 * * * diastolic * * * urine showed some blood.”

And in summing up his diagnosis, he said:

“He was suffering from a chronic 'nephritis that had been aggravated by a general toxin, as a result of an increased urina in the urine. In other words, he was poisoned; had a general poisoning.”

Which, he said, means Bright’s disease.

Asked what was the cause of the convulsions, he said:

“Due to uremic poisoning, to a profound intoxication in the blood.”

Asked whether the blow could have caused the convulsions, he said:

“Well, my opinion is this, that if he received a sufficient blow to have caused these convulsions, already having been a doomed man with his suffering from revere kidney lesion, I think he would have died right away; within a few days at the outside.”

Dr. J. B. Benton attended the patient during his last illness. He found him suffering from high blood pressure and chronic Bright’s disease of advanced stage.

Dr. A. B. Creed saw the patient the day he died and said that the cause of death was—

“Cerebral hemorrhage, apoplexy, ruptured blood vessel.”

None of the physicians who saw and treated the patient were impressed that the wound on the head, neck or shoulder was of a serious nature. The x-ray showed no injury to the skull or brain. These physicians were of the opinion that the shock from the wound may have had something to do with bringing on the convulsions immediately following, but that the effect of the shock soon passed and had no connection with his ultimate death.

Dr. Reagan and Dr. Crutsinger were called by plaintiff as experts. They did not see the patient. They were asked hypothetical questions in which the condition of the patient from the date of' the injury to the date of his death was exaggerated or overstated, and asked whether the injury had any connection with the death, Dr. Reagan finally said:

“I will answer this in this way. That is the sound medical reasoning everyone has and we know that an injury may «aura death after a year but certainly within less than a year it is well to give the injury due consideration as a cause of the trouble.”

Dr. Crutsinger, after hearing a detail of the wound and the patient’s condition, by counsel -for plaintiff, said:

“* * * the accident is undoubtedly involved in that death.”

Dr. Benton, who attended the deceased in November previous to his death in December, found the patient suffering from chronic Brights’ disease and high blood pressure of long standing, and said, from the history of the case he had received, he thought the blow on the head was a factor in the death but did not believe it was the direct cause; and asked if the April 19th injury hastened his death, he said, “Yes, sir, I do.”

The testimony of the last physicians named was purely technical, based not upon what they knew from personal examination but from what they were told as to the conditions.

We think the opinion of the physicians who personally attended the deceased and knew his condition from first hand information is entitled to more weight than that of those who never saw him.

Our conclusion, reached from reading and considering all the testimony, is that the injury of April 19th had no connection whatever with the death on December 9th.

Judgment affirmed with costs.


text:
    No. 2134
    Second Circuit
    BRENARD MANUFACTURING CO. vs. GIBBS
    (June 2, 1928. Opinion and Decree.)
    R. L. Garret, of Shreveport, attorney for plaintiff, appellee.
    Scheen & Blanchard, of Shreveport, attorneys for defendant, appellant.
   ODOM, J.

Plaintiff brought this suit to recover of defendant $844.00, and set up as a cause of action that it is the holder and owner of twelve promissory ‘notes aggregating that amount, all executed and signed by defendant and made payable to plaintiff, which notes are attached to and made párt of the petition.

Plaintiff amended its original petition by setting out that the notes sued on were given for the purchase price of graphaphones- or music boxes ordered by defendant from plaintiff under a certain order or agency contracts which were signed by defendant and sent to plaintiff at Iowa City, Iowa, for approval as stipulated therein, and that after approving said order the goods ordered were delivered to defendant by delivery to a carrier in' Iowa City, Iowa, as provided in the order, and it attached- said orders to and made them part of the amended petition.

Defendant, in limine, tendered an exception to the suit, alleging that plaintiff was conducting business in this State in violation of law and that therefore plaintiff has no right of action.

No action seems to have been taken on this exception by the Court.

Subsequently defendant filed answer, reserving his rights under the exception, and admitted that he signed the notes sued on but denied by the indebtedness on the grounds that the notes were secured by fraud and without consideration, and he especially alleged that plaintiff’s representative had agreed that if defendant would sign the contract and the notes sued on, he, plaintiff, would place a salesman in the territory who would make sales of the machines, but that no salesman appeared and “that on account of the said failure of the agreement and contract the said machines were never taken out of the railroad and the same were returned to the plaintiff at the place they claimed to have consigned the saihe; that they were duly notified of the failure to carry out the agreement and contract and the true consideration of the said note, and the plaintiff refused and failed to carry out the contract and agreement, and therefore the said notes were without consideration and were secured by fraud and your defendant has nothing in value therefor.”

There was judgment for plaintiff as prayed for and defendant appealed.

OPINION

The contract which defendant signed reads in part as follows:

“The Brenard Manufacturing Co.,
“Iowa City, Iowa,
“Gentlemen:
“Upon your approval of this order and agency contract deliver to me at your earliest convenience, P. O. B. factory or distributing point, the articles mentioned below, in payment for which I herewith hand you my notes aggregating $422.00 which you are to cancel and return to me if agreement is not approved by you.”

(There were two of these contracts or orders, and two sets of notes.)

Then follows a description of the articles ordered and a clause granting to defendant the exclusive agency for plaintiff’s line of “Golden-Throated” - Claxtonola phonographs in that territory for three years and a clause with reference to discount, etc., and the following:

“If any sales under this contract do not amount to $422.00 (the value of the goods ordered and the aggregate amount of the notes accompanying the contract) you agree to either ¡pay me the difference in cash or repurchase these Claxtonolas and records if returned to you in good order and you are to send your bond in the sum of $422.00 to protect me in the conditions of this contract'.
“To make the last above paragraph binding upon you I agree to furnish within thirty days of date hereof 50 names and addresses of persons who may be interested in securing Claxtonolas to whom you are to send appropriate advertising matter * * * You are to have the right to send a special salesman into my territory at any time to do field work and promote the sale of Claxtonolas through my agency * * * In order to protect you in your special methods and plans and in your expenditures this' order 'cannot he countermanded.”

This, and one other contract like it, together with the notes sued on, were forwarded immediately to plaintiff company at its home office in Iowa City, Iowa, and was accepted on the same date received and the goods shipped promptly by express. When the goods arrived defendant refused to accept them and in order to prevent a sale of them by the express company they were returned to the shippers at their request according to the testimony of Mr. Loveland, a member of the plaintiff firm, and are being held subject to defendant’s orders.

According to defendant’s testimony, given on the trial of the case, he refused to accept the goods and remove them from the express office, and he was asked:

“Q. Well, when these machines came down there you refused to receive them, absolutely?
“A. Yes, sir; until the man came. That' was the agreement with me. I wasn’t to take them until he came back. 'I wasn’t supposed to get them out of the express company's office until they furnished a helper.”

And he said the agent or helper did not return. He also testified that he would not receive the goods because the plaintiff did not' send him the kind of a bond they agreed to send and “I sent the little old certificate he sent me back and told them I was supposed to get a bond, get a guarantee from them.”

And he was asked:

“Q. They hadn’t complied with the contract as to these material features?”

And he said:

“A. No, sir.”

Plaintiff objected to the above and all similar testimony on the ground that parol testimony is inadmissible under Article 2276 of the Civil Code to vary or alter the written contract, and the Court admitted it subject to the objection, and said:

“But you cannot vary, alter or amend the contract sued on.”

It will therefore be observed that defendant resists payment of the notes on three grounds, to-wit:

1. On the ground, as set out in' the exception filed in limine, that plaintiff is a non-resident of the State and was doing business in this State in violation of Act 64 of 1918.

2. That said notes and contracts were obtaining through fraud.

3. On the ground that plaintiff failed to furnish the bond required by contract.

4. On the ground that plaintiff failed to send the salesman into the territory to sell the phonographs.

I.

Taking up these defenses in the order named, we find that Act 64 of 1918 is a penal statute providing that no persons shall carry on or transact' any business in this State under an assumed name or any name other than his own, without registering with the Clerk of Court a certificate showing the name under which such business is or is to be conducted and the names of the persons owning or transacting such business with the post office address of such persons; and, in Section 5, that any person or persons conducting or transacting any business who shall fail to comply with, the provisions of the act shall he guilty of a misdemeanor and subject' to a fine of not less than $25.00 nor more than $100.00 and each day such person or firm continues such business shall constitute a separate offense. This is the only penality which the act provides. There is nothing in the act to indicate that in case a person or firm should violate its provisions his or its business transactions are stricken with nullity.

The testimony shows that the plaintiff firm is a commercial partnership domiciled at Iowa City, Iowa, and composed of Theodora O. Loveland and James L. Records, both domiciled at that place. So far as the record discloses these parties did not comply with Act 64 of 1918 by registering and defendant' contends that their failure to do so strikes with nullity the business transacted in this State.

But the jurisprudence of this and other States is the other way. In construing similar statutes our courts have held that the purpose of such enactments is to prevent a firm from obtaining credit on the strength o"f an unauthorized name and not designed to prevent the organizers of it from recovering from a debtor.

Wolfe vs. Joubert, 45 La. Ann. 1100, 13 So. 806, 21 L. R. A. 772; Kent vs. Majoiner, 36 La. Ann. 259.

And in the case of In re: Pelican Insurance Co., 47 La. Ann. 935 17 So. 427, the Court said:

“The debtor of such a partnership or firm cannot plead the nullity of his engagement on account of the creditor’s violation of the Statute where the only penalty fixed by the Statute for, its violation is making it a misdemeanor and subjecting the offender to a fine.”

In the case of Smith vs. Williams, 152 La. 948, 94 South. 859, the Court had under consideration Act 64 of 1918, the act invoked by defendant in this case, and it said:

“It is a general rule that in the absence of statute to the 'contrary a person may transact business and execute his contracts under any name he may choose to adopt, provided * * * no fraud is committed.”

(Citing 29 Cy. 270 and L. R. A. 1915 D 981 note.)

“And whether there was any fraud committed in this case is a matter of defense, but does not arise on the exception of no cause of action.”

But in cases where there is a statute, on the subject it was stated that the courts are divided “as to whether or not the business so done is or is not so stricken with nullity as to (preclude any recovery in such cases.”

(Citing Hunter vs. Big Pour Auto Co., 162 Ky. 778, 173 S. W. 120; L. R. A. 1915D 987, where it was held that no recovery could be had, and said:

“But as said in the note to that case the weight of authority is the other way; and among the courts holding to the contrary are those of Louisiana."

And the cases- of Kent vs. Majoiner, Wolfe vs. Joubert, and In re: Pelican Insurance Co., supra, are cited:

The jurisprudence is therefore settled in this State that under Act 64 of 1918 the business' engagements and contracts entered into by a foreign person or partnership in this State are not stricken with nullity, and a person obtaining credit from such a person or partnership cannot escape liability under such contracts merely and solely on account of the fact that such person, partnership or firm failed to comply with the provisions of said statute.

Therefore, if the defendant in this case avoids the effect of his contracts he must do so on other grounds.

II.

The defendant, in answer, sets up that the notes and the contracts were obtained by fraud and that they are therefore without consideration and are of no effect.

But he failed to plead or testify to any act on the part of the agent representing the plaintiff which discloses fraud.

An allegation of fraud by the pleader is but a conclusion reached by him. In setting forth the facts on which he based the allegation of fraud the defendant alleged, in answer, that the plaintiff’s agent stated to him an experienced salesman would be sent in the territory to sell the talking machines, and that such salesman did not appear. He does not charge that the agent concealed or suppressed any material fact or that he made any misrepresentation with reference to the kind or quality of the goods in order to induce him to sign the notes and contract.

“As a general rule, in order to constitute actionable fraud, the false representation must relate to a matter of fact and such fact must be one which exists in the present or which has existed in the past.”

12 R. C. L. 244, Sec. 14. And—

“Since a fraud must relate to facts then existing or which have previously existed, the general rule is that fraud cannot be predicated upon statements promissory in their nature and relating to future actions nor upon the mére failure to perform a promise or an agreement to do something at a future time, or to make good subsequent conditions which have been assumed. Nor, it is held, in such non-performance alone even evidence of fraud. Reasons given for this rule are that a mere promise to perform an act in the future is not, in the legal sense, a representation and a failure to perform it does not change its character. Moreover, a representation that something will be done in the future or a promise to do it from its nature, cannot be true or false at the time where it is made. A failure to make it good is merely a breach of contract which must be enforced by an action on the contract, if at all. And as in the case of promises, it is generally held that mere assertions on intentions or declarations of future purpose do not amount to fraud.”

12 R. C. L. 254, Sec. 21.

See 20 Cyc., p. 20.

In the case of Cage vs. Lewis, 68 111. 604, it was held that a false representation as to a matter of intention, not amounting to a matter of fact, although it may have influenced the transaction, is not a fraud in law.

And in Milwaukee Brick Co. vs. Schoknecht, 108 Wisc. 457, 84 N. W. 838, it was held that no statement as to what would be done in the future constitutes fraud.

It therefore follows that if plaintiff’s agent said everything that defendant says he did, he perpetrated no fraud upon defendant.

III-IV.

Defendant testified that plaintiff failed to furnish him the bond required by the following clause of the contract:

“If any sales under this contract do not amount to $422.00 you agree to either pay me the difference in cash or repurchase these Claxtonolas and records iff returned to you in good order and you are to send your Bond in the sum of $422.00 to protect me in the conditions of this contract.”
“To make the last above paragraph binding upon you I agree to furnish within thirty (30) days of date hereof 50 names and addresses of persons who may be interested in securing Claxtonolas with whom you are to take up corespondence,” etc. ,

It seems that plaintiff did send its bond, but defendant says was not the kind of bond that he expected, and he was permitted to testify, over plaintiff’s objection (the testimony being admitted subject to the objection) that plaintiff’s agent told him the bond was to be signed by a surety company.

The contract does not stipulate that a bond with surety should be furnished.

An instrument does not necessarily have to be signed by a surety in order to be a bond.

9 C. J., page 10, paragraph 7.

The contract further stipulates:

“You are to have the right to send a special salesman into my territory at any time to do field work and promote the sale of Claxtonolas through my agency.”

It does not require that a salesman shall be sent for that purpose.

Defendant contends that plaintiff’s agent agreed that a salesman should be sent, and he was permitted to give testimony to that effect as well as with reference to the kind of a bond which was to be furnished, all over plaintiff’s objection.

It is clear that such testimony was not admissible. The contract is clear and unambiguous on these points. Plaintiff was not induced through fraud or duress to sign the contract and the notes nor did he do so in error of law or fact.

The (parol testimony which defendant gave with reference to the understanding between him1 and the plaintiff’s agent had the effect of changing, enlarging, altering and modifying the contract and was against or beyond what was in the act.

C. C., Art. 2276.

Such testimony having been admitted over plaintiff’s objection, cannot be considered by us.

In the case of Davis vs. Bierce, 114 La. 663, 38 So. 488, the Court held that where a writing—

“* * * although embodying an agreement is manifestly incomplete and not intended by the parties to exhibit the whole agreement but only to define some of its terms, such parts of the actual contract as are not embraced within its scope may be established by parol evidence.” (Syllabus.)

The Court in that case further held that the rule prohibiting the introduction of parol testimony to vary, contradict or enlarge a written contract is not violated by allowing parol to be given—

“* * * as to a distinct, valid, contemporaneous callateral agreement between the parties which was not reduced to writing, when the same is not in conflict with the provisions of the written agreement.”

The Court in plain terms recognized the rule that parol evidence is not admissible against or beyond what is contained in the written act, as set out in Article 2276 of the Code, saying:

“It is a recognized ‘rule of evidence’ throughout the United States.”

and cited many authorities, and the Court said further:

“The test of admissibility in such cases is whether the evidence offered tends to alter, vary or contradict the written contract or only to prove an independent collateral fact about which the written contract is silent.”

In the case at bar, the contract is not silent on the two ¡points at issue. It provides that a bond shall be given and that—

“You (the plaintiff) shall have the right to send a special salesman into my (defendant’s) territory at any time to do field work and promote the sale of Claxtonolas throughout my (defendant’s) agency.”

Clearly, the testimony that plaintiff, through its agent, obligated itself to send the salesman into the territory enlarges and goes beyond tbe terms of tbe written instrument.

See:

Hafner Mfg. Co. vs. Lieber Lbr. & S. Co., 127 La. 348, 53 So. 646; Brenard Mfg. Co. vs. M. Levy, Inc., 2 La. App. 577, 109 So. 43.

For. the reasons assigned, tbe judgment appealed from is affirmed.


author: REYNOLDS, J.

text:
    No. 2760
    Second Circuit
    CITIZENS BANK & TRUST CO. v. WALKER
    (December 11, 1926. Opinion and Decree.)
    (January 28, 1927. Rehearing Refused.)
    (March 28, 1927. Writ of Certiorari and Review denied by Supreme Court.)

      Dhu Thompson, J. W. Elder, both of Huston, and S. L. Digby, of Parmerville, attorneys for plaintiff, appellee.
    W. J. Hammon, of Jonesboro; Theus, Grisham & Davis, of Monroe, attorneys for defendants, appellants.
   STATEMENT OF THE' CASE

REYNOLDS, J.

The Citizens Bank & Trust Company sues E. L. Walker and the sureties on his bond as Clerk of the District Court of Jackson Parish, Louisiana, for $1,000.00 with 8 per cent per annum interest thereon from January 1, 1925, until paid, and 10 per cent on the principal and interest, as attorney’s fees, for a loss alleged to have been sustained by it by reason of an alleged neglect of official duty.

Plaintiff alleges that on February 10, 1919, E. L. Walker was the duly elected, qualified and acting Clerk of the District Court of Jackson Parish, Louisiana, and ex officio Notary Public, and Mrs. Robbie D. Ramsey his duly appointed and acting deputy, and that on said date W. S. Willhite, by act before her as such deputy clerk and ex officio Notary Public, mortgaged to W. H. Cook 120 acres of- land, more or less, situated in Lincoln Parish, Louisiana, being N% of SW% and SE% of NW% of Section 22, Township 17 North Range 3 West, to secure the payment of a certain promissory note for $1,000.00, signed by W. S. Willhite and Mrs. Alice Willhite, dated at Jonesboro, Louisiana, February 10, 1919, payable to the order of .W. H. Cook two years after its date, bearing interest at the rate of 8 per cent per annum from its maturity until paid and stipulating payment of ten per cent atorneys’ fees if placed in the hands of of an attorney for collection, and that she, to identify the note with the mortgage, endorsed thereon:

“Ne Varietur.
“Identified with an act of mortgage executed before me this 10th day of Feby. 1919.
“Robbie D. Ramsey,
“Dy. C. D. C. & Ex-officio Notary Public.”

It is further alleged that the interest on the, note had been paid up to January 1, 1925.

And it is further alleged that on August 3, 1923, the payee endorsed the note “Without Recourse. W. H. Cook,” and sold and delivered it to plaintiff for its face value.

It is further alleged that the deputy clerk and ex officio Notary Public failed to file the mortgage for record until 3:35 o’clock, P. M., on November 29, 1922, and that the mortgage was not recorded until November 29, 1922.

It is further alleged that by act dated October 3, 1919, filed for record on October 4, 1919, and recorded on November 28, 1919, W. S. Willhite sold the mortgaged property to W. F. Willhite, and that because of the failure of the deputy clerk and ex officio Notary Public to seasonably file the mortgage for record it lost its rank to the sale and was thereby rendered worthless.

It is alleged that the mortgaged property was worth $1,800.00 and that plaintiff has been damaged by the defendant’s neglect of official- duty in the amount of the principal, interest and attorney’s fees owing on the note.

And it is specially alleged:

“That it acquired said note from the said W. H. Cook in the good faith belief that it was a good and valid first mortgage note secured by a first mortgage on one hundred and twenty (120) acres of land situated in Jackson Parish, Louisiana, as it was represented to be by the said Cook, and as was indicated and evidenced by the paraph .across the face of the said note, as herein alleged, and as is fully shown by the paraph on said note, hereto annexed and- made a part hereof. And that at the time that it was acquired petitioner had no knowledge or information of the fact that said note was not as it was represented to be by the said W. H. Cook, and as it appeared to be by the paraph hereinbefore mentioned, a good and valid mortgage note.
“That' acting on the good faith of the paraph across the face of said note, it acquired the same from the said W. H. Cook, paying him face value therefor, with the restrictive endorsement ‘without recourse’; and that had it not been for the paraph across the face of said note, indicating that the same was secured by mortgage, it would not have accepted the said note without the unqualified endorsement of the said W. H. Cook, solely upon his representation.”

It is also alleged that plaintiff did not learn “until the early part of the year 1925” that the mortgagor had sold the land after granting the mortgage and before the mortgage had been filed for record and that in consequence thereof the mortgage had been rendered worthless; and

“That about the time it discovered that the rights under the act of mortgage had been lost as a result of the failure and neglect of the said clerk * * * to record the same * * * that the maker thereof, W. S. Willhite, was adjudged a bankrupt, which was in the spring of 1925, and has since received a discharge as such bankrupt, and that there is now no possibility of collecting any part of the indebtedness from the maker, W. S. Willhite, or from his property.”

The defendants filed an exception of no cause of action and it was sustained by the Court and plaintiff’s suit dismissed and it has appealed.

OPINION

If plaintiff has a right of action against defendants for indemnity it will only arise after it shall have exhausted its remedies to compel payment by Willhite and Cook.

Dwyer vs. Woulfe, 40 La. Ann. 46, 3 So. 360; Smith vs. Moore, 9 Rob. 65; Morano vs. Shaw, 23 La. Ann. 379.

In Dwyer vs. Woulfe, the plaintiff, holder of a note secured by mortgage on real estate passed by Castell, Notary, sued the maker and the succession of the Notary and the surety on his official bond for indemnity against possible loss of the debt by reason of the Notary having delayed filing the mortgage for record until after he had filed for record another mortgage on the same property passed by him securing another debt.

The District Court dismissed the suit on an exception of no cause of action and the Supreme Court affirmed the judgment, saying:

“The plaintiff has already recovered judgment against Woulfe, the drawer. She does not allege that execution has been issued and returned nulla bona against him; or that the succession of Castell is insolvent, and that, in consequence, the surety on the latter’s bond has become liable to her for the amount of the note * * * »
. “On the assumption of the Notary’s liability, it' is only, if the property does not satisfy the debt, or the drawer of the note and the succession of the Notary fail to pay it, that the surety on the latter’s official bond oan be called upon for indemnity, under the terms of the obligation which he has signed.”

In Smith vs. Moore, the plaintiff, a vendee of a purchaser of real- estate at sheriff’s sale, having been evicted under a duly recorded mortgage not disclosed by the mortgage certificate furnished to the sheriff for the sale, sued the Recorder of Mortgages for indemnity for having given an erroneous cértificate in consequence of which plaintiff’s vendor was induced to purchase property, charged with an incumbrance not made known at the time of the sale.

The defense was that the plaintiff, not being the purchaser at sheriff’s sale, but having acquired the land afterwards, had no right to maintain the action.

The lower court sustained the defense and the Supreme Court affirmed the judgment, saying:

“The sale is with warranty, and all the rights and privileges to which the purchaser was entitled under the sheriff’s deed, passed to the vendee. But the right of action against the recorder of mortgages for having given an imperfect and erroneous certificate, whereby Bemis had been deceived and induced to purchase property charged with incumbrances not made known at the time of the sale, is not in our opinion a real action following the property, nor is it an action which accrued to the vendor in virtue of the sheriff’s deed; but is a personal one which arose from acts which preceded the sale, and entered into his motives for become the purchaser. The gist of the action against the recorder is, the error into which the purchaser was led by the false certificate, and to such an action it would, perhaps, be a good "defense that the purchaser was fully aware of the existing incumbrances, although they may have been omitted in the certificate. To make out such a defense, the recorder would be entitled to all legal evidence, and especially to resort to the conscience of the plaintiff by interrogatories on facts and articles. Of this means of defense he is deprived by permitting the action to be brought in the name of the vendee, between whom and the recorder there is no privite.”

Morano vs. Shaw, was the same kind of a case and the Supreme Court said:

“The act of omission by the recorder of mortgages which is complained of, if it give rise to an action at all, it is a personal action, and not in the character of a real action which follows the property. There is no liability on this defendant in the nature of a warranty. There is no privity between him and Morano. See the case of Smith vs. Moore, 9 Rob. 65. If liable on account of the omission complained of, the recorder would only be answerable in a personal -action to the person purchasing the property.”

Plaintiff alleges that Willhite has been discharged in bankruptcy and that therefore it is impossible now to make the debt out of him or his property; but it does not allege that Cook is insolvent or even that it had demanded payment of him and been refused.

Conceding, without deciding, that the general allegation that Willhite has been discharged in bankruptcy, without alleging that he had scheduled as liabilities his ex-contractu obligation on the note in question and his ex-delicto liability by reason of his having sold the mortgaged property without reservation of the rights of the mortgagee thereon under the unrecorded mortgage, and that Cook or plaintiff had been duly notified of the filing of Willhite’s proceedings in bankruptcy, is sufficient' to excuse plaintiff from suing Willhite, the petition fails to show that plaintiff made any effort whatever to compel Cook to indemnify it, not even that it requested him to do so.

When Cook transferred the note to plaintiff he thereby warranted both the existence and validity of the mortgage securing its payment, and this notwithstanding the transfer was “without recourse”; and he was bound to indemnify the plaintiff by reason of the loss of the security.

Templeman vs. Hamilton, 37 La. Ann. 754; and other cases cited in the syllabus.

And not only was he liable to plaintiff under the implied warranty but also under an express warranty, for the petition alleges that:

“* * * it acquired said note from the said W. H. Cook in the good faith belief that it was a good and valid first mortgage note secured by a first mortgage on one hundred and twenty (120) acres of land situated in Jackson Parish, Louisiana, as it was represented to be by the said Cook.” (Italics ours.)

The judgment of the District Court- sustaining the defendant’s exception of no cause of action to the plaintiff’s petition is right and accordingly it is affirmed.

ODOM, J., concurs in the decree.


text:
    No. 3260
    Second Circuit
    SMITH v. HAAS
    (June 28, 1928. Opinion and Decree.)
    (November 8, 1928. Rehearing Refused.)
    Barksdale, Bullock, Warren, Clark and Van Hook, of Shreveport1; Porterie, Bordelon and Roy, of Marksville, attorneys for plaintiff, appellant.
    Overton and Hunter, of Alexandria; W. E. Couvillion, and Bordelon and Normand, of Marksville, attorneys for defendant, appellee.
   STATEMENT OP THE CASE

REYNOLDS, J.

This is a suit by Mrs. Theodosia Self Smith, widow of Robert Hill Smith, in her own behalf and also on behalf of her minor child, Robert Hill Smith, <5f whom she is the duly confirmed and qualified natural tutrix, against W. D. Haas, to recover damages alleged to have been sustained by them in the death of 'Robert Hill Smith, who was slain by the defend'ant, W. D. Haas.

She alleges that the said W. D. Haas did wilfully, feloniously and with malice aforethought kill and murder the deceased.

The defendant filed an exception of no cause of action, which, however, appears not to have been passed on.

Defendant also filed an answer setting up:

“ * * * that on December 20, 1926, respondent, as president of the Union Oil Company, Inc., superinduced thereto solely by business reasons and in the interest of said company, and for causes deemed sufficient by respondent, requested the said Smith to resign as manager of said company, and, upon the refusal of the said Smith to do so, respondent proceeded to issue a call for a meeting of the hoard of directors of said company to act upon said subject matter; that, thereupon, the said Smith, unjustly infuriated by respondent’s request and action, and in desperate mood born of his financial difficulties and embarrassment, proceeded to vituperate your respondent, and to declare his intentiion of killing your respondent, paying no heed to respondent’s remonstrances, and refusing to listen to reascn; that, finally, the said Smith, with a reiteration of his threat against respondent’s life, undertook to carry his threat into execution by reaching for a loaded revolver lying in an open drawer immediately in front of and within the easy grasp of the said Smith, with the manifest purpose of - then and there taking the life of your respondent; that, thereupon, your respondent beholding his life in imminent danger, and acting solely in self defense, quickly drew a pistol and fired rapidly twice at the said Smith, inflicting a mortal wound upon the said Smith when and while the said Smith was continuing in the act of undertaking to slay your respondent.
“That, as aforesaid, respondent acted solely in defense of his life and person in taking the life of the said Smith; that, at the time respondent fired the fatal shot, said Smith had formed and expressed the design of taking your respondent’s life, was committing an assault upon respondent, and was undertaking then and there to execute said design with the means at hand and opportunity so to do; that the said Smith, and not respondent, was the aggressor; that respondent could not have safely retreated when and while the said Smith was making said assault upon him; that when -respondent fired, as aforesaid, he was acting under the real and honest belief, and had reasonable grounds to believe, that he was in imminent danger of his life being taken, or of great bodily harm being inflicted upon him by the said Smith; and that said homicide was both justifiable.”

A jury was prayed for by defendant and ordered by the Court and on these issues the case was tried before the Court and jury. The jury returned a verdict: “We, the jury, find fo'r the defendant, Dr. Haas, rejecting the demands of the plaintiff; 10 in favor of defendant, 2 in favor of plaintiff.”

Upon this verdict a judgment was rendered and signed by the Court rejecting plaintiff’s demands and dismissing her suit at her cost, and she has appealed.

Defendant has filed in this court an exception of no cause of action.

OPINION

EXCEPTION NO CAUSE OP ACTION

The exception is founded upon the theory that the petition only presents conclusions of law and does not contain averments of facts.

We canot concur in this contention.

Allegation III reads as follows:

“That, on December 20, 1926, at and in the said Parish of Avoyelles, Louisiana, the said W. D. Haas did wilfully, feloniously and with malice aforethought, kill and murder petitioner’s said husband.”

This language is equivalent, we think, to charging that defendant intentionally slew the deceased and without legal justification or excuse; and such averments, if proved, would have entitled plaintiff to judgment.

ON THE MERITS

The vital issue in the case is whether the slaying of the deceased was without legal justification or excuse or, as defendant avers, was necessary in defense of his own life.

Defendant was president of the Union Oil Company, Inc., and the deceased the manager of its mill at Bunkie, Louisiana.

The deceased wrote the defendant the following letter.

“Bunkie, La., December 16, 1926.
“Dr. W. D. Haas,
“Bunkie, La.,
“Dear Sir:
“The following entries should be made on the books of the Union Oil Co., Inc., crediting my account as follows:
“Use of auto and expense of operating same 12 mos. @ $50.00 per month____$600.00
“$50.00 per month additional salary 1925-26 __________________________________________________ 600.00
“5% net profits for year 1925-26 on $12,113.05 ________________________________________ 605.65
“Total ____________________________________________________$1805.65
“At the same time I wish to advise that I shall expect the same salary to be paid me for the season of 1926-27.
“I have pointed out to you that the ■above was nothing but fair and equitable. I have also made it a point to learn the salaries being paid to managers at other mills. The above is less than is being paid to mill managers of the same class and investment.
“Yours Very Truly,
(Signed) “Hill SmiUi.”

This letter is imperious and indicates a determination on the part of the deceased to exact of the company of which defendant was president credits that were not conceded him and to fix his own salary for the current business-year; and while it would not have justified violence on the part of defendant, it did warrant him in saying to deceased, as he did,

“If you feel that way, if that is your attitude, you should resign.”

The deceased refused to resign, whereupon defendant told him that he would call a meeting of the board of directors of the company and present the matter to them.

At this point first arose the probability that deceased would resort to violence toward defendant or words were used by deceased indicating an intention to provoke a personal encounter between him and defendant.

A. A. Keller, a witness on behalf of plaintiff, testified:

“Q. What was Mr. Hill Smith’s position as relates to the desk at which he was sitting, was it toward the desk or toward Dr. Haas? In what direction was he facing to the best of your recollection?
“A. * * * I paid no particular attention to them other than seeing them in there. I thought they were having some sort of a meeting in there until after awhile a little argument started up and I heard Mr. Smith, ‘Doctor, you didn’t treat me right’; and there is where I began to pay some attention to the argument.
* ❖ * S?S
“Q. Just tell the jury in your own narrative way the scene that you saw and the conversation that you heard between them.
“A. Well, when Dr. Haas spoke to Hill and told him about carrying him all through these hard times he finally said, ‘Well, we can settle that matter right now'.’
“Q. Who said that?
“A. Dr. Haas said, ‘We can settle the matter right now.’ And Hill Smith turned around and said, ‘Well, I am unarmed, and I know that you always pack a gun.’ And then Dave spoke up and said,- — no, there was something else before that. Doctor said something about wanting Hill’s resignation, and Hill spoke up and said, ‘Well, I am not going to resign,’ and the Doctor said, ‘Well, Í am going to call a meeting of the board of directors and force your resignation,’ and Hill spoke up and said, ‘Well, if you do, I will make it hot for you.’ And about the time he said that, then Dave spoke uip and «aid, ‘Hill, you and I have been friends a long time, but,’ he said, ‘You have threatened his life, and I will make it a personal matter between you and I.’ And I said, ‘This is no iplace for me,’ and I left.
“Q. Now, what was the first thing that ; m heard?
“A. The first thing that I remember of the conversation between Hill and Dr. Haas was that Hill said, ‘Doctor, 'you haven’t treated me right.’ That is when I first taken notice.
* * #
“Q. Now, when the Doctor said he was going to call a meeting the board of directors and, as you expressed it, force his resignation, what did Hill Smith then say to the Doctor?
“A. He said, ‘If you do, I will make it hot for you.’
* * * *
“Q. Now, when Dave Haas spoke *o Hill Smith he used the expression, ‘You have threatened my fathers’ life’ Did he not?
“A. He did use that expression.
“Q. ‘You have threatened my father’s life’?
“A. I don’t know whether he said ‘my father’ or pointed to him.
“Q. Did Hill Smith deny that he had threatened his life?
“A. He didn’t say a word to Dave, but turned arour 1 on his stool and looked at him straight in the face.- I don’t know now whether he answered him or not. Right at that time I left the office.
* * * *
“Q. Well, didn’t he say something about ‘Young man, you have made an awful threat.’
“A. Yes, sir, he said, ‘You have made an awful threat.’
“Q. Dr. Haas told Hill Smith that?
“A. Yes, sir.
“Q. Therefore, while you were there you heard Dr. Haas say to Hill Smith, ‘That is an awful threat you made, young man,’ and you heard Dave Haas say to Hill Smith, ‘You have threatened his life,’ meaning his father?
“A. Yes, sir.
“Q. And Hill Smith did not say he had not?
“A. He didn’t say a word, just looked at him.”

Alvin Martin, a witness on behalf of plaintiff, testified:

“Q. Did you hear any conversation between them?
“A. When I went in, Dr. Haas and'Mr. Hill were talking. I do not know what they were talking about. I heard Mr. Hill say, ‘You have not treated me right.’ ”

This testimony of these two witnesses considered in connection with deceased’s letter to defendant, shows an intention on the part of deceased to compel acceptance by defendant of his demands, and corroborates the testimony of defendant and his witnesses that defendant killed deceased necessarily in defense of his own life.

The defendant, W. D. Haas, testified:

“I went into the office for the purpose of having some letters written calling a meeting of the board of directors. As I walked in I saw Mr. Mikell and Mr. Smith. I spoke to them, said ‘Good evening,’ and as the purpose of my calling the board together was predicated on a letter I had had from Mr. Smith, I walked up to him and spoke to him. I said, ‘Hill, I received your letter this morning. I am surprised and disappointed that you should write me a letter like that. If you feel that way, if that is your attitude, you should resign.’ ‘Well,’ he said, ‘will not.’ I said, ‘Very well, if you will not resign, I will call the board together and lay the matter before them.’ ‘Then,’ he said, ‘if you do that, you have got to kill me or I will kill you.’
$ $
‘‘I don’t know how long we had been there but I hadn’t said anything more to him nor had he said anything more to me. Then a man walked in from behind me, walked in front of me, pulled the drawer open and put a pistol in the drawer, gave it a shove to — didn’t push it to, and then turned around and walked out or went out. For a moment I couldn’t realize just what it was and I stood there for a second. This was a serious situation, gentlemen, as I realized it. The man had threatened my life and was sitting there with a pistol in his reach. Then I spoke up,' and I said, ‘Hill, you have threatened my life,’ and before I could finish the sentence he said, ‘Yes, and I mean it.’
“Q. How did he reach for the pistol?
“A. With his right hand. In reaching for it he" moved himself off the stool as he reached.
“Q. I was just going to ask you did he remain seated?
“A. He moved off the stool as he reached out but he was as close to the drawer as I was anyway.
“Q. Then you were saying to him, ‘Hill, you have threatened my life,’ and before you could get any further he said, ‘Tes, and I mean it?’
“A. He did.
“Q. And then what was his movement first relative to the stool?
“A. He moved off the stool and grabbed for the pistol.
“Q. With his right hand reaching for that pistol into the drawer?
“A. Yes, s’r.
“Q. And you shot him?
“A. I shot him.
“Q. Where did you have your cun?
“A. In my hip pocket.”

Dave Haas testified:

"Q. Now, when you got into the office, following your father, did you hear anything said, and if so, what did you hear?
“A. I heard the Doctor say, ‘Hill, I received your letter. I am surprised and disappointed.’
“Q. Did Smith make any reply then and there to that remark?
“A. No, sir.
“Q. What was next said, and by whom?
“A. The Doctor said, ‘I want your resignation. We cannot go on in business like this.’
“Q. Did Smith make any reply to that?
“A. He said he would not give it.
“Q. Then what was said after he said he would not give it?
“A. The Doctor said he would call a meeting of the board of directors and ask for his resignation.
“Q. What reply, if any, did Smith make to that remark?
“A. Smith said, ‘If you do I will kill you or you will have to kill me.’
“Q. Please state how he said that?
“A. Very emphatically.
“Q. Did the Doctor make any reply to that threat?
“A. He did.
“Q. What did the Doctor say?
“A. He said, ‘Young man, do you realize what a serious threat you have made?’ Smith said, ‘Yes, and I mean every word of it.’
“Q. What did the Doctor say to that?
“A. He said ‘All right, we will settle it right now.’
“Q. Then what did Hill say?
“A. He said he was unarmed.
* * * $
“Q. Now, did you and Mikell proceed to seal the letters?
“A. We did. That is, he signed them and I sealed most of them as he would sign them. I would fold them and put them in the envelope and seal them as he signed them, the most of them.
“Q. Well, how long did that take you, about?
“A. About a minute.
“Q. Now, did anything happen as you were finishing the last letter? Or about that time?
“A. As I sealed the last letter, I heard the Doctor say, ‘Hill, you have threatened my life’; Hill said, ‘Yes, and I mean it.’ I turned quickly, saw Hill off the stool with his right hand in the drawer where the pistol was, heard two shots in rapid succession, and saw Hill fall, striking the adding machine, knocking it down to the floor.
“Q. Now, at the time you heard the Doctor say, ‘Hill, you have threatened my life,’ and Hill’s statement, ‘Yes, and I mean it’ — at that time you had your back to both of them.
“A. Yes, sir.
“Q. Now, I believe you stated that you immediately turned around?
“A. I did.
“Q. Did you turn quickly?
“A. Yes, sir.
“Q. And as you did so, you saw what?
“A. I saw Hill off the stool with his right hand in the drawer where the pistol was.
“Q. Then two shots were fired?
“A. Yes, sir.”

Under this testimony there is no escape from the conclusion that the deceased, at the time he was shot, was reaching to grasp a loaded pistol nearby for the purpose and with the intention of attempting to take the life of defendant with it and that it was necessary for defendant to shoot him to prevent him from accomplishing his purpose.

Plaintiff insists that the testimony of defendant and his son, Dave Haas, is unreasonable and unworthy of credit. . We are unable to take that view of it. Their veracity was not impeached nor was it weakened on cross-examination or otherwise discredited. Neither is it inherently improbable, and in the absence of sufficient reason for disbelieving it we are bound to give it credence. Witnesses testified that defendant was a truthful, law abiding honorable man, and we can imagine • no reason why he should have killed the deceased, except it was to prevent the deceased from killing him, and no sufficient other reason is suggested by plaintiff. There is no proof in the record that defendant entertained any ill feeling toward the deceased. On the contrary, it appears therefrom that defendant and deceased were good friends. The deceased owed his position as manager of the mill to defendant’s good will and as president of a local bank defendant had been instrumental in procuring loans of money by it to deceased.

The finding of fact by a jury is entitled to great weight and should not be set aside unless manifestly erroneous. We have read the record carefully and cannot say that it does not support the jury’s' findings.

But plaintiff insists that he was prejudiced in the composition of the jury, and complains that B. P. Dupuy, Henry W. Frith and F. C. Fullilove were tendered her as competent jurors, that they were incompetent, that she objected to them on that ground, that her objection was overruled and she was compelled to exhaust on them her right of peremptory challenge to exclude them from the jury.

We find ourselves unable to consider the question presented owing to the fact that it does not appear from a bill of exceptions.

“If one of the parties call on the court to express an opinion on the point of law arising in the cause, such opinion may ve excepted to.”

Code of Practice, Article 487.

“The party excepting to the opinion of the court must draw a bill of exceptions, in which the question of fact or law, on which such opinion has been demanded, shall be concisely set forth, as well as the grounds of the exception so taken ‡ ‡

Code of Practice, Article 488.

“This bill of exception must be exhibited to the adverse party, who may object to any error in the statement therein contained; it' shall then be presented to the court, who, after correcting it, if erroneo.us, shall sign the same, and direct the clerk of file it among the records of the suit.”

Code of Practice, Article 489.

But even if the question was properly presented, we are unable to see how plaintiff was prejudiced by being compelled to exhaust her right of peremptory challenge in order to exclude the persons named from the jury, unless it appeared that she objected to. at least one person thereafter tendered her as a juror, on the ground of incompetency, and her challenge was overruled, and we do not understand plaintiff to contend that any juror subsequently accepted was challenged by her for cause.

We find no error in the judgment appealed from and accordingly it is affirmed.


text:
    No. 3239
    Second Circuit
    HEARD ET AL. v. NOBLE AMERICAN CREOSOTE WORKS, INC., INTERVENOR AND THIRD-OPPONENT
    (June 28, 1928. Opinion and Decree.)
    (November 8, 1928. Rehearing Refused.)
    Henegan and Gaharan, of Jena, attorneys for plaintiffs, appellees.
    Moss and Moss, of Winnfield, attorneys for intervenor third-opponent, appellants.
   STATEMENT OF THE CASE

REYNOLDS, J.

Plaintiffs, Agnes Heard, Jeff Heard, John Heard and Jim Heard, sued defendant, James P. Noble for the sum of $1107.51, and interest thereon at 5 per cent per annum from judicial demand, as the price of certain timber sold by them to him to be converted into cross-ties and paid for at the price of $3.00 per thousand feet, board measure; the footage to be ascertained from the scale of the ties when manufactured.

They alleged that they had sold him timber from which he had manufactured about 16,000 ties and that he had failed to pay for the timber contained in 12,197 of the ties which were then on the right of way of the Louisiana & Arkansas Railway Company at or near the town of Jena, Louisiana, and that $1107.51 was owing to them for the price of the timber contained in the 12,197 ties.

They further alleged—

“* * * that the said James P. Noble has agreed to sell the above described cross-ties to the American Creosote Works of Winnfield, Louisiana, and in fact is informed and on such information alleges that the purchaser has made and advanced payment to the, said Noble on said cross-ties and your petitioner verily believes that the said cross-ties will be removed from the Parish of LaSalle before this suit can be prosecuted to judgment.”

And they prayed for judgment' against James P. Noble for $1107.51 with legal interest thereon and that a writ of provisional seizure directing the sheriff to seize the 12,197 cross-ties and hold them subject to the orders of the Court.

A writ of provisional seizure issued and the ties were seized.

Defendant, James P. Noble, filed an answer admitting the correctness of plaintiffs’ demand and consenting that judgment might be rendered against him as prayed for by them.

The American Creosote Works, Inc., filed an intervention and third-opposition, alleging:

“ * * * the said James P. Noble, defendant in this suit, sold and delivered to your petitioner said cross-ties on the days and dates as follows, to-wit:
“March 15th, 1927________________________________________ 1180
“March 23rd, 1927_______________________________________ 1011
“March 31st, 1927_______________________________________ 707
“April 11th, 1927________________________________________ 1296
“April 18th, 1927________________________________________ 1101
“April 25th, 1927________________________________________ 1139
“May 4th, 1927_____________________________________744
“May 11th, 1927________________________________________ 1174
“May 26th, 1927________________________________________ 1857'
“May 31st, 1927________________________________________ 398
“June 7th, 1927________________________________________ 788
“June 17th, 1927________________________________________ 1172
“July 1st, 1927________________________________________ 1323
“Total __________________________________________ 14890
“That your petitioner shipped two thousand six hundred ninety-three (2693) of said cross-ties, leaving twelve thousand one hundred ninety-seven (12197) on the side track of the L. & A. Railroad Company on what is known as the ‘Y’ in the town of Jena, Louisiana; that your petitioner paid the said James P. Noble for said cross-ties and stamped them with the American Creosote Works brand or mark, and had no notice at the time of purchasing said ties that there was any stump-age due or privilege claims of any nature whatsoever on said- ties, and that plaintiffs have no lien or privilege of any kind upon the same.”

And it prayed that' it be decreed to be the owner of the ties and that the seizure be released and the ties restored to its possession.

The plaintiffs answered the intervention and third-opposition and denied the allegations thereof and prayed that the intervention third-opposition he dismissed.

On these issues the case was tried and there was judgment in favor of the plaintiff, appellee, and against the intervenor third-opponent, appellant, rejecting the demands of the latter and dismissing its intervention third-opposition.

Intervenor third-opponent appealed.

OPINION

The ties seized under the writ of provisional seizure in this action were seized under a writ of provisional seizure issued in the suit of Martin Francis versus James P. Noble, in which suit the American Creosote Works, Inc., intervened and filed a third opposition, No. 3240 on the docket of this court and this day decided.

In that case the plaintiff sought to assert a laborer’s privilege on the ties in controversy to secure the payment of wages earned by himself and others who had assigned their claims to him in making the ties.

In that case we held that the defendant, James P. Noble, had sold and delivered thé ties to the intervenor third-opponent before the ties were seized and that intervenor third-opponent had bought them in ignorance of the claims of the laborers, and that consequently the asserted privilege had been lost before the seizure.

The reasons assigned by us in that case for holding that the asserted privilege had been lost require us to hold in this case that the privilege asserted by the plaintiffs was lost before tbe ties were seized under tbe writ of provisional seizure in tbis action.

For tbe reasons assigned, it is ordered, adjudged and decreed that tbe judgment appealed from be annulled, avoided and reversed, and it is now ordered, adjudged and decreed that there be judgment recognizing intervenor third-opponent to be the owner of the twelve thousand one hundred ninety-seven (12,197) ties seized under the writ of provisional seizure herein and ordering the writ of provisional seizure dissolved and the ties to be restored to the possession of the intervenor third-opponent.

It is further ordered, adjudged and decreed that the plaintiff, appellee, pay all costs of this suit.


author: LECHE, J.

text:
    No. 342
    First Circuit
    SHELTON v. PENTECOST
    (November 10, 1928. Opinion and Decree.)
    (December 4, 1928. Application for Rehearing not entertained for being filed too late.)
    Taylor and Parker, of Baton Rouge, attorneys for plaintiff, appellee.
    W. O. Watson, of Baton Rouge, attorney for defendant, appellant.
   LECHE, J.

Plaintiff prays for damages from defendant, in the sum of five hundred dollars, for forcibly and illegally entering his home and tortiously taking therefrom a lot of household furniture. The District Court rendered judgment in his favor for two hundred dollars and the present appeal from that judgment was taken by defendant.

The facts appear to be that plaintifl, who resides in the Parish of Livingston, purchased at different times from defendant, who conducts business in the City of Baton Rouge .under the firm name of Union Furniture Company, household furniture, bedding and other articles usually kept in a home for the comfort and convenience of its occupants. These sales were made partly for cash and partly on easy terms of credit payable monthly. Some of the articles were fully paid for and others were only partly paid for. Defendant says that at the time of the trespass plaintiff owed him forty-one dollars.

Some time in July, 1927, plaintiff with his wife and child or children, went to North Louisiana to visit his wife’s family. The date of his departure is somewhat in doubt. Plaintiff says that he left on Thursday, July 14th, but other witnesses say that he left earlier than the 14th. He says that when he left, he asked his father to come and nail the doors and windows of the house. This is corroborated by the father, who says that he did nail the doors and windows of the house, and that when he did so, the contents of the house were intact, just as they were when the son went away.

It appears .further that on Sunday, July 17th, two employees of defendant went to the plaintiff’s home in a truck, that they took forcible possession of all the contents of the house, including articles already paid for in full, and other articles which had not been purchased from defendant, that they removed the same and disposed of them by selling some of them to neighbors of plaintiff and hauling the remainder to defendant’s ¡place of business in Baton Rouge.

Defendant excuses the acts of his employees on the ground that they were informed by plaintiff’s neighbors that plaintiff had abandoned his home and its contents and had gone away, that the house had a leaky roof, that the doors and windows were wide open and that unless they took away the furniture and household goods, the same would be ruined by exposure to the weather, and that defendant would have no recourse against plaintiff to secure and collect' his claim for forty-one dollars.

Several months after this event, plaintiff, who had been kept away by the illness of. his child, returned to Livingston and found the home which he had previously occupied denuded of its contents and had to seek shelter elsewhere for himself and family.

Such are the salient facts disclosed by the record.

Even if we view the testimony in a light most favorable to defendant, it is obvious that defendant committed a trespass, that his conduct is neither justifiable nor even excusable and that he usurped the function of a court of justice, thereby rendering himself liable in damages for the humiliation, inconvenience and trouble to which he subjected the plaintiff.

It matters not how dilapidated the house may have been, it was plaintiff’s home, and its material condition did not' take away from its sacredness. It matters not that the furniture may have been of little value, it nevertheless was as useful and as necessary to the comfort of plaintiff’s family as if it had been ornate and expensive.

Defendant virtually concedes in argument that he encroached uipon the rights of plaintiff, but says that plaintiff has failed to prove the amount of his damages. It appears abundantly from the evidence that plaintiff was humiliated, inconvenienced and placed to trouble, and the amount of damage to which he is entitled is not in the nature of vindictive or punitory damages, but is within the discretion of the Court. C. C. Art. 1934, paragraph 3.

The District Court fixed the damage at two hundred dollars and this estimate appears to be fair and just.

The judgment appealed from is therefore affirmed.


author: CLAIBORNE, J.

text:
    No. 11,581
    Orleans
    LEMIEUX v. MORALES
    (July 2, 1928. Opinion and Decree.)
    (August 13, 1928. Rehearing Refused.)
    (October 3, 1928. Write of Certiorari and Review denied by Supreme Court.)

      Henry J. Rhodes, of New Orleans, attorney for relator.
    Brian and Brian, of New Orleans, attorneys for respondent.
   CLAIBORNE, J.

The defendant applied for a prohibition.

He alleged that the plaintiff had obtained a judgment' against him for $500 with legal interest from judicial demand, July 18, 1927, until paid; from this judgment defendant obtained a suspensive and devolutive appeal “upon mover furnishing bond with good and solvent surety in the sum of $1000 for the devolutive appeal and for the suspensive appeal as required by law.”

The defendant furnished bond “in the sum of seven hundred and fifty dollars for the suspensive appeal and one hundred dollars for the devolutive appeal, total $850.”

On April 24, 1928, plaintiff caused to be served upon the defendant notice that the above bond was insufficient as to substance and as to solvency of surety.

On May 10, 1928, the plaintiff filed a motion in which she recited the above judgment, and appeal bond and notice and reiterated that said bond was insufficient in amount and substance to suspend the execution of the judgment, and that .although more than two judicial days had elapsed since the service of said notice, the appellant had not filed an additional bond, and she concluded by praying that the order for a suspensive appeal be rescinded and the suspensive appeal dismissed.

On May 18, 1928, the defendant filed an additional bond “in the sum of $750 plus $200 to cover interest and costs, plus $100 to cover devolutive appeal.”

On June 12, 1928, judgment was rendered rescinding the order for a suspensive appeal and setting aside said appeal.

In this court the defendant has filed a petition praying for a prohibition against the execution of said judgment and for a mandamus maintaining her suspensive appeal. She alleged that the judgment dismissing her suspensive appeal was erroneous; that the judgment against her is for $500 only, “while the collective bond furnished by her amounts to $850.”

' Neither in her petiton for a prohibition nor in the argument does her counsel refer to the additional bond filed on May 18, 1928. It is evident that this second bond was filed too late.

Nor do we construe the first bond sufficient in amount for a suspensive appeal. The bond declares specifically, and the surety has signed expressly, a bond for $750 only, for a suspensive appeal. Defendant has proceeded in the manner indicated for a suspensive appeal, and insists in this proceeding upon the validity of her suspensive appeal. Yet her surety has signed in express terms for a bond of $750 only, for a suspensive appeal, and $100 only, for a devolutive appeal.

It is evident therefore that the bond for the suspensive appeal is for $750 only, and that her surety could not be held for any greater amount.

This is not a “collective” bond as denominated by the appellant. It might have been “collective” and sufficient if it had been for the total amount of $850, but not for a separate amount of $750 for one appeal and $100 for the other.

Tile words “total $850,” only refer to the aggregate sum of the two bonds added together.

The authorities relied on by defendant, Poland vs. Chicago, St. L. & N. O. R. Co., 42 La. Ann. 293, 7 So. 899; Watts vs. Collier, 140 La. 101, 72 So. 822; Bernheim vs. Pesson, 143 La. 610, 79 So. 23; Grant vs. Succ. of Grant, 159 La. 537, 105 So. 611, are not in point as an examination of those authorities will show.

In Watts vs. Collier, 140 La. 101, 72 So. 822, the appellant cumulated two amounts of $52.50 and $75 into one bond for $130 which was held good.

The bond should have been for $500 and nearly one year’s interest at 5%, at least $520, plus one-half thereof, or $260, total $780. Act 289 of 1926, page 521.

The appellant has suggested the rule de minimis. In the case of State ex rel. Pelletier, 112 La. 564, 36 So. 864, a suspensive appeal from the judgment of $91.85, was dismissed for a shortage of $32.91 in the bond. In that case it was said the maxim “de minimis does not apply.”

Writs denied.


text:
    No. 3050
    Second Circuit
    LYONS v. FORD
    (March 14, 1928. Opinion and Decree.)
    (November 8, 1928. Opinion and Decree on Rehearing.)
    Barnette & Roberts; M. T. Monsour, of Shreveport, attorneys for plaintiff, appellee.
    Harry Y. Booth, of Shreveport, attorney for defendant, appellant.
   ODOM, J.

This case is before the Court without any note of evidence. When the case came up for argument in this Court it was agreed by counsel on both sides that the case be remanded to the lower court for completion of the record and for such other (proceedings as might be deemed proper.

It' is therefore ordered that the case be remanded to the lower court for completion of the record and for such further proceedings as may be deemed proper.