text:
    No. 3649
    Second Circuit (Second Division)
    ALPHONSE BRENNER CO., INC., v. OWENS
    (July 16, 1931. Opinion and Decree.)
    Cook & Cook, of Shreveport, attorneys for plaintiff, appellee.

      John G. Gibbs, of Shreveport, attorney for defendant, appellant.
   CULPEPPER, J.

Plaintiff sued via ordinary' to recover $543.05 as an alleged balance due and unpaid on various and sundry sales of furniture to defendant between March 9 and October 28, 1925, inclusive, aggregating $1,369.80, a portion of which was secured- by chattel mortgages taken at time of sales and a portion sold simply on open account. Plaintiff prayed for personal judgment against defendant, for recognition and enforcement of the chattel mortgages upon the portion of the furniture mortgaged, for recognition of its vendor’s lien upon all of the furniture sold, and, further, for an order to sell the property according to law and that plaintiff be paid the proceeds by preference over all other' creditors. The suit was filed August 15, 1928. On September 8, 1928, following, defendant, who was at the- time of the sales to him, and still is, a resident of the parish of Caddo, within the jurisdiction of the court, came into court, through his attorney, and entered, as a plea in bar of plaintiff’s demands, notice that on August 21, 1927, he was adjudged a bankrupt in the federal court, and that he had been finally discharged in said proceedings. Upon submission of satisfactory proof of his alleged bankruptcy and final discharge, defendant filed a plea in absolute bar to plaintiff’s demands, alleging that his final discharge in bankruptcy operated as a discharge from all debts provable against his estate. Plaintiff took issue with defendant on the question. The plea was tried, resulting in a judgment decreeing that defendant personally was discharged but that plaintiff’s right to proceed against the property involved still continued to exist.

Notwithstanding the ruling of the court upon this question, defendant filed a further motion to dismiss plaintiff’s suit upon the grounds that plaintiff’s rights, if any, are merely in rem; that, since no personal judgment can be had against defendant, and since none of the property mentioned in plaintiff’s petition has been seized, attached, or in any way proceeded against in these proceedings, therefore there, is no defendant and no property in court against whom or which a judgment could be rendered.

The status of this particular property and that of plaintiff’s claim thereon seem to be about as follows: A portion of the furniture first sold by plaintiff to defendant was destroyed by fire, after which, plaintiff sold defendant the rest of the furniture. When defendant filed his application in the bankrupt court he listed the furniture he then had on hand, but claimed same to be exempt from sale under the law. The trustee thereupon disclaimed title, and the furniture was left in defendant’s possession. Plaintiff in the meantime filed his claim in the usual course as a creditor in the bankrupt court but apparently received nothing in the distribution of the proceeds of the sale of the other property of the bankrupt estate, and thereafter, plaintiff brought this suit in the state court. The property remained in defendant’s possession up to the filing of this suit. Defendant’s motion to dismiss was overruled by the court, whereupon defendant, continuing to litigate, filed a plea to the jurisdiction ratione materias and ratione personae, which was referred to the merits, and the case then tried on the merits, resulting in a judgment in rem only in favor of plaintiff for $209.10 with legal interest from judicial demand, and ordering the property sold. The judgment decreed plaintiff to pay all costs incurred prior to the sustaining ^of defendant’s plea in bar, and decreed defendant to pay all costs incurred subsequent thereto; the judgment to be personal against defendant as to the amount of the costs cast against him. Defendant prosecutes a devolutive appeal only.

We cannot agree with the learned defense counsel in his contention that plaintiff became owner of the property in question upon the trustee’s disclaiming title to same in the bankrupt court. In Schexnailder v. Fontenot, 147 La. 467, 85 So. 207, 209, the court in discussing the status of property disclaimed by the bankrupt court, said:

“When Schexnailder claimed his homestead and had the same set apart, it was excluded from the bankruptcy proceedings and the jurisdiction of that court as completely as if it had never been placed upon his schedules.’’

It would necessarily follow that the title of such property was never affected, but remained in .the bankrupt just as though the property had never been listed upon the bankrupt’s schedule. The fact that in the cited case the property was real and in the present case it is personal property would make no difference so far as the title is concerned.

We fail to find in the record anywhere, in the pleadings or testimony, that defendant has disclaimed title to the furniture in question. The plain inference is that he claimed title, since he was in possession and has sought to prevent plaintiff from proceeding against it. If defendant had been assuming the position, as counsel says, that he was not owner, but plaintiff was, defendant should by all means have tendered possession to plaintiff at the time he filed his plea in bar against plaintiff’s right to a personal judgment. If' he' had done so, this lawsuit would have ended •then and there.

With regard to defendant’s contention that plaintiff was .without right to proceed in rem alone, since no personal judgment could be had and the property had not been brought into the custody of the court by attachment or otherwise, we see no good reason for such right to be denied to plaintiff. Defendant has not contested plaintiff’s alleged lien against the property; on the contrary, defendant’s position, it would seem, was that plaintiff was entitled to and still held a vendor’s lien upon the property, but that plaintiff did not proceed properly to execute upon it. If defendant was the owner of the property and in possession, which he was, and if plaintiff had a vendor’s lien upon it, and that fact is conceded by defendant, plaintiff had the undoubted light to bring the suit against defendant as owner and possessor, to have the lien recognized and enforced in rem, regardless of whether a personal judgment could be had against defendant or not. Nor did plaintiff necessarily have to have the property attached or sequestered in connection with his suit. Civ. Code, arts. 3278, 3285, 3411; Schexnailder v. Fontenot, cited supra.

This, of course, is upon the hypothesis that the debt or claim against the property has not become extinguished for any reason. Defendant has advanced no grounds whereby he claims the debt has been extinguished other than the claim that part of it was paid and a portion of the goods was returned. Since defendant makes no further or additional claims as to the extinguishment of the debt, this court does not feel called upon to go beyond and outside of the defense as set up in search of any other or further grounds.

The fact that defendant made no surrender of, or offer to surrender, the property to plaintiff, so the record discloses, but continued to contest the suit, we think is the very plain and patent reason why the judge charged defendant with the costs incurred subsequent to the decree on the plea in bar. There seemed to have been hut little real differences between the parties as to the amounts of the various debits, credits and offsets; and such differences we think were correctly resolved by the trial judge. Furthermore, defendant is not complaining now as to the court’s ruling upon those questions.

In view of the fact that defendant continued to litigate voluntarily about a matter, which, according to the position he now takes, was wholly uncalled for and could only serve to incur additional useless and needless costs, and in view of the ultimate decision of the court upon the trial, we see no reason for- defendant to complain simply about having to pay costs. Judgment is affirmed.

STEPHENS, J., takes no part, is recused.


source: Caselaw Access Project

author: CULPEPPER, J.

license: Public Domain

text:
    No. 3640
    Second Circuit (Second Division)
    MANY OIL CO. v. S. H. BOLINGER & CO., INC.
    (July 16, 1931. Opinion and Decree.)
    R. A. Fraser, of Many, attorney for plaintiff, appellee.
    W. H. Scheen, of Shreveport, and Boone & Boone, of Many, attorneys for defendant, appellant.
   CULPEPPER, J.

Plaintiff, a commercial partnership, instituted suit against defendant corporation to recover the sum of $358.45 with legal interest, as balance due on alleged sales of gasoline, kerosene, and lubricating oils, to defendant under a written contract. Defendant answered, admitting the existence of the contract, but denied that the debt sued on came under the terms of the contract, or that defendant was in any way liable for the debt, and averred that the items sued for were not sold and delivered to it, but, if ever sold at all, they were sold and delivered •to other persons in which it had no interest or concern.

Prom a judgment for plaintiff as prayed for, defendant prosecutes this appeal.

Plaintiff company sues as the admitted successor to a former partnership composed of R. E. Bishop, W. I. Williams, Jr., and others. On August 7, 1922, Bishop and Williams entered into a contract with defendant, S. H. Bolinger & Co., represented by R. H. Sutton as its manager, at Many, Sabine parish, where defendant was engaged in a general sawmill, planer mill and lumber business, in which contract it is set forth, among other things, that:

“Whereas, party of first part (which was Bishop and Williams) is in the wholesale gasoline, kerosene and lubricating oils business and desires to furnish same to party of the second part (which was defendant herein) and
“Whereas, party of the second part is engaged in the lumber industry within a radius of twenty-five miles of Many, Louisiana; from party of the first part, they do enter into the following binding contract and agreement of purchase and sale, to-wit: — ”

Here follows an obligation on part of. first party to furnish second party a sufficient quantity of gasoline and oils to meet second party’s needs, and to sell same to second party at a price of one cent a gallon under the prevailing local tank wagon price. Second party binds itself to purchase from first party all of its gasoline and oils during the life of the contract, which was to be three years. First party bound itself to keep a stock of gas and oils on hand and to deliver same to the pumps located on properties of second party within a radius of twenty-five miles from Many, where second party agreed to furnish first party a tank and storage warehouse of sufficient size to meet first party’s needs. It was further agreed that liquidated damages for the violation of the terms of the contract by either party should be based upon profits previously made. It was stipulated that first party should not be prohioited from selling its products to other parties in that locality. After the contract had been signed by the defendant company, per R. H. Sutton, manager of its Many plant, it was su omitted to and signed in approval by Mr. W.. 3. Bolinger, secretary of defendant company, at Shreveport, where its domicile and general office was located.

R. H. Sutton, who executed the contract on behalf of the defendant, was the active manager of the defendant company’s business at Manv at the time purchases of gas and oil under the contract were begun, and continued as such until about the first of September, 1927, when Mr. S. H. Bolinger, vice-president of defendant company, came to Many from Shreveport and took over its management. The accounts of the sales under the contract were opened up in the name of the S. G. Bolinger Lumber Company upon the books of plaintiff. The various named mills carried on the books for which it appears that gas and oil were ordered by defendant under the contract, were as follows: Joe Rivers, Dave No. 1, Dave No. 2, Sutton & Smith Planing Mill, Roy Lumber Company, Sutton & Smith Horan Mill, and Hardwood Mill; seven concerns apparently in all. Sales for each mill were entered under the respective subtitle or name on the books, the main heading of the page of which showed the whole charged to defendant. The statement of the account as filed in evidence so indicates this manner of making the entries. At any rate, separate accounts were kept of the sales to each concern, and all of .them were charged to defendant company. The business under the contract continued in this manner for about a year and a half. The evidence is not clear as to just how many of these little mills were owned outright by defendant company,- or whether any of them were. Mr. Gleason, a member of plaintiff firm, testifying for plaintiff, says he .thinks the one called Hardwood Mill belonged to Mr. Bolinger personally. Defendant, for some reason, has not furnished the court with information as to the ownership of these various plants. Mr. Gleason, not being familiar with the real owners, was unable to furnish this information. Defendant, of course, did not appear concerned with ownerships -of ■the plants, we presume on the theory that, at least as to Dave No. 1, the concern for whose account this suit was brought, defendant entertained no interest or concern inasmuch as defendant did not own Dave No. 1. The point is this, if we knew the ownership of each and every one of the several little mills which Mr. Sutton ordered out gas and oil for, it might give us a better idea of whether he meant to confine his orders to such as were owned outright by the defendant, or in which defendant, or some stockholder or officer or employee, merely had an interest; or whether it was intended that gas and oil were to be bought for every concern which sold its output to defendant, and for which reason defendant felt an interest in assisting to the extent of guaranteeing its necessary supply of gas and oil in order to keep them all running. It would be not at all unreasonable to assume the latter was the intention of the parties to the contract, as by buying gas and oil for each unit or plant or concern, from which defendant was to derive material with which to operate its planer mill in Many, it might insure itself against uncertainties in deliveries of lumber and thus enable it to continue operating without interruption. It is certain that Dave No. 1 was owned by a corporation in which Mr. Sutton had an interest, although defendant corporation, of which Sutton was manager, had none. It appears equally certain that Mr. Sutton evidently began to order gas and oil delivered under the contract to that concern to begin with. Although Mr. Gleason declares orders for Dave No. 1 were made under the. contract, and defendant denies it in answer, no definite proof to the contrary was offered. Mr. Sutton, who was the manager for defendant at the time these alleged sales were made, did not appear and testify to deny that he as manager included his Dave No. 1 in among the other concerns for which he gave orders under the contract. The orders for Dave No. 1 were charged to defendant on plaintiff’s books. Statements seem to have been rendered regularly by plaintiff of the Dave No. 1 account shown thereon charged to defendant direct, in the same manner that the others were being charged. Defendant was bound to have known, if not at first, then later, that the Dave No. 1 account was being charged to defendant along with the other little mills.

Mr. Gleason explains how his company kept the account. Speaking of the charge sheet or work sheet, which are itemized monthly statements, Mr. Gleason says:

“These are what are called work sheets or delivery sheets of the various amounts here, Sutton & Smith, Hardwood Mill, Dave No. 1 and Dave No. 2, mills which furnished material to the Hardwood or Planer Mill here in Many, and the different parties at the different mills, that was kept simply as a matter of assistance to G. H. Bolinger and Company in charging the different accounts or different amounts to the different mills, showing the amounts used by them, and while it was all charged to S. H. Bolinger and Company, the different mills were put on here, for their assistance in separating them, so as to toll the total amount each month, and that was mailed out.”

Witness says he rendered defendant each month itemized monthly statement; that all payments on these statements were made by defendant company, and in fact no one other than defendant company was ever charged with any of these accounts, and no demand ever made upon any other person. He says sometimes he mailed these statements to defendant at Many, and at other times to Shreveport, and that after defendant began falling behind on the account he began mailing statements to both Many and Shreveport each month. Payment on the account for Dave No. 1 mill began to fall short in May, 1927, and continued falling short until up in September when the shortage reached an aggregate sum of $358.45, at which .time it seems further deliveries to that mill were discontinued. After repeated unsuccessful efforts to collect from defendant, plaintiff filed suit against defendant on this account. Defendant answered, setting up as a defense that the gas and oil representing the sales alleged on were not sold nor delivered to defendant; that if such sales were ever made at all, they were made to persons other than defendant, in which defendant had no interest or concern. The contest in this case therefore is whether gas and oil, with which .the Dave No. 1 mill was supplied, were supplied by sale under the existing contract, or were sold direct to it on its own account, and in no way connected with the contract. If these sales were made unaer and by virtue of the contract, defendant is liable; otherwise it is not.

The contract does not specify what mill plants within the twenty-five mile radius of Many were to be supplied with gas and oils. There are shown on plaintiff’s books to have been some half dozen of them, among which was the Dave No. 1, all of which appear to have been carried in the same manner, as was explained in detail by Mr. Gleason. These mills constituted small portable sawmills scattered throughout the territory within a radius of twenty-five miles from Many, and were moved from place to place. It appears from the testimony that they were principally engageu in sawing up timber which belonged mostly to defendant company, and delivering their output to defendant’s planer mill in Many.

Mr.' Cooper, secretary of Dave Lumber Company which owned and operated Dave No. 1, testified that his company had a contract at the time with G. H. Bolinger & Co., under which his company was to deliver and did deliver to the Bolinger Company the entire output of his company’s mill. Although the testimony is not clear on the point, we gather from it that Dave Lumber Company owned Dave Numbers 1 and 2, and .the company’s contract to deliver output included both mills. Mr. Bolinger, secretary o'f defendant company, testifies that Dave Lumber Company cut timber which belonged to defendant company part of the time and part of the time “we sold them the .timber, turned over to them.” He says at first, however, that Dave Lumber Company owned their own timber. He says his company bought the output. He also says his company was interested in seeing that Dave Lumber Company paid its debts, as he did not want attachments run on the lumber. Mr. Bolinger admits on cross-examination that his company had notice from time to time that plaintiff was furnishing, all these little sawmills, including Dave No. 1 and No. 2, gasoline and oil, and admits receiving bills monthly showing these several mills; also admits paying these monthly accounts sometimes, but he says “not all of them.” He admits his company made advances to .them. Yet, Mr. Bolinger, notwithstanding these admissions, permitted his company to run along for nearly two years in this manner, and, when confronted with this account, for gas and oil furnished to Dave Mill No. 1, denied his company owed it, on the ground that the sales, if made at all, were made “to other persons and to which it had no interest or concern.” This does not sound reasonable under the circumstances.

These and other circumstances, as disclosed by the record, strongly indicate that defendant company had placed Dave Mill No. 1, along with all of the rest of defendant’s little feeder mills, on the list to be furnished gas and oil under defendant’s contract with plaintiff. Mr. Cooper, secretary and stockholder in the Dave Lumber Company, testified that it was his understanding that the Dave No. 1 account had all been paid at the time the question arose regarding its payment. This statement indicates that Mr. Cooper expected Bolinger Lumber Company to pay, and thought it had paid for Cooper’s company.

Another significant fact testified to by Mr. Cooper was that his company immediately discontinued buying gas and oil from another oil concern when plaintiff began selling under its contract, ana began getting all of Cooper’s company’s oil from plaintiff; thus indicating that Cooper’s company was in on the deal.

R. H. Sutton was vice-president of Dave Lumber Company at the time he, as manager of G. H. Bolinger Lumber Company executed the contract with plaintiff. Why should he not have intended to include his mills in with the others? It would have been the natural and logical thing to do. As a matter of fact, we think, as did the judge of the lower court, that he did do it, and that Mr. Bolinger approved of it; if not directly, he approved of it indirectly. Cooper also says that the Dave Lumber Company had no special contract with plaintiff company whereby it bought its gas and oil from plaintiff; yet he says Dave Lumber Company enjoyed the benefit of the cut in the price of gas and oil along with and in the same manner as did the other little mills under the contract. For these reasons, we think the judgment of the lower court correct, and same is therefore affirmed.


text:
    No. 3715
    Second Circuit. (Second Division)
    PENNYWELL v. BAUMAN
    (July 16, 1931. Opinion and Decree.)

      Foster, Hall, Barrett & Smith, of Shreveport, attorneys for plaintiff, appellant.
    Edward Barnett, of Shreveport, attorney for defendant, appellee.
   CULPEPPER, J.

Plaintiff owned an undivided six-tenths interest in lot No. 1 of block 4, ten-acre lot 31 of the city of Shreveport. The Washburn Land Company owned all or a portion of the remaining interest. Being unable to agree on an amicable partition, the Washburn Land Company instituted a partition suit against Mrs. Pennywell, obtained a judgment as prayed for, and, pursuant to the order, obtained a commission to sell the property at public auction for cash, to effect a partition, the proceeds to be distributed, after deducting the expenses of the sale, to the several co-owners in proportion to their respective interests.

The sheriff advertised the property for sale, under the order, for March 9, 1929. The defendant appeared at the sale and bid $17,000 for the property. Mr. Marion K. Smith, attorney representing plaintiffs, was present and objected to the defendant as a bidder, because plaintiff was said to be not financially responsible. There is considerable conflict in the testimony as to whether the bid of the defendant was actually accepted by the deputy sheriff. At all events, the matter was to be further discussed later in the day, but before four o’clock. Defendant understood, so he testifies, that the property was to be then re-offered for sale, whereas plaintiff’s attorney says it was only to permit defendant to obtain the cash to make good his bid.

Defendant declined to comply with the bid, whereupon, at whose direction it is not clear, the property was re-advertised to be sold on April 27, 1929, when the property was adjudicated to plaintiff for $14,550. This suit is for six-tenths of the difference between the original bid of defendant of $17,000 and the amount bid by plaintiff, or six-tenths of $2,450.

Defendant tendered an exception of no cause and no right of action against the claim as made, which was overruled. On the trial of the case, there was judgment for the defendant, and plaintiff appeals. Defendant answers the appeal, and asks this court to sustain the exception.

The exception, we think, should have been' sustained. Plaintiff alleges that she was the owner of six-tenths of the property, and that, at the second offering, she became the purchaser, and by reason of that fact, she alleges she is “entitled to such proportional part of the proceeds, which should have been realized from the first adjudication.” ■

When plaintiff bid in the property, at the second offering, she was still the owner of this six-tenths. If she paid in the full amount of her bid, then there was returned to her six-tenths thereof less her proportion of the expenses of the sale. The result is that, as to this six-tenths, she has both the property and the price, and she is now asking that defendant contribute $1,470 additional.

In the case of Weil v. Schwartz, 49 La. Ann. 582, 21 So. 859, the Supreme Court held, citing prior jurisprudence, that the character of action brought by the plaintiff is summary and severe, and in consequence it should be confined to cases clearly coming within the provisions of the law; accordingly, it held that article 2611 of the Civil Code is not applicable to a sheriff’s sale, made under writs of fieri facias.

Plaintiff’s able counsel argue that the Weil case is not applicable to the case here because the facts of this case bring it within the rule laid down by art. 2611 of the Civil Code, which governs sales at public auction. Counsel contends that this is a sale by public* auction and cites Stockelback v. Bradley, 159 La. 336, 105 So. 363. Although it holds that article 2611 of the Civil Code applies to forced sales as well as to voluntary sales, that case is not applicable, because the purchaser in that case, at the’ second offering, was not the owner of the property.

The jurisprudence of this state is that a recovery may not be had where the owner of the property thus sold at public auction bids in the property at the second offering. We find no case where such owner has ever been permitted to recover under such circumstances. And it is upon the equitable ground that there has been in fact no change in the ownership. And that principle is applicable here. The plaintiff owned six-tenths of the property before the'sale, and she owned it after the sale. If it had not been sold she would have continued to own six-tenths of the property. This sale in no way affected this interest. It would, therefore, be inequitable to permit plaintiff, because of some paper proceedings that did not affect, in the least, the interest in the property made the basis of this proceeding, to keep the property as well as its price, and claim damages besides.

In the case of Banks v. Hyde, 15 La. 391, where the plaintiff was undertaking to recover the difference between the amount of the first bid and the amount for which it was, on the second offering, adjudicated to the plaintiff, the court said:

“The first adjudication was for nineteen thousand dollars; the second for seven thousand dollars. We cannot consider the difference as a loss to plaintiff. If it was allowed him, he would be receiving his property back, and besides, a sum of twelve thousand dollars.’’

And in the case of Municipality No. 2 v. Hennen, 14 La. 559, the same principle is announced. We quote from the syllabus: “The vendor, in prosecuting the folie enchere, cannot recover the difference between the first and last sale, if he bids in his own property.”

In the case of D’Aquin v. Armant, 14 La. Ann. 217, the court cited and followed the above cases, and observed:

“The vendor could not recover from the adjudicatee at an auction sale, the deficiency in the price of the same property, when resold a M folie enchere, if the vendor purchased at the second crying.”

But, counsel contends that a co-owner can purchase property at a partition sale, and hence the reasoning of the court in the three cases last cited does not apply. We think it does apply. A co-owner can, of course, bid in property at a partition sale, but such a bid, when accepted, in no wise changes or affects the interest owned by the bidder at the time the bid is made. It simply has the effect of vesting in the bidder the outstanding interest which he did not own.

In view of the fact that the exception was overruled and that the judge of the lower court reached the conclusion on the trial of the merits, that plaintiff was not entitled to recover, and we have reached the same conclusion on other grounds, we have simply concluded to affirm the judgment rendered below.


author: TALIAFERRO, J.

text:
    No. 3939
    Second Circuit (Second Division)
    BASS v. SOUTHERN STATES BOTTLE CO., INC., ET AL.
    (July 16, 1931. Opinion and Decree.)
    Booth & Grafton, of Shreveport, attorneys for plaintiff, appellee.
    Milling, Godchaux, Saal & Milling of New Orleans, and W. M. Phillips and C. F. Currier, of Shreveport, attorneys for opponent, appellee.
    Booth & Grafton, of Shrevepoft, attorneys for defendant in rule, appellant.
   TALIAFERRO, J.

The Southern States Bottle Company, Inc., on April 26, 1929, was placed in the hands of a receiver by the First District Court of the parish of Caddo, and B. A. Bass was appointed and qualified as receiver. Lawrence B. Fabacher, resident of city of New Orleans, held a mortgage for $17,000 against the following described property of said corporation, viz.: Lots 20, 21, 22, 23, 24, 25 and 26 of block D, Southside Park subdivision, parish of Caddo, as per map in Conveyance Book No. 50, page 503, records of Caddo parish,' La., together with all buildings, improvements, appurtenances and privileges thereunto belonging or in any wise appertaining. Said mortgage to Fabacher was recorded in Mortgage Book No. 123, page 673, of records of said parish of Caddo.

On November 25, 1929, Fabacher instituted foreclosure proceedings on his mortgage in the First District Court of the parish of Caddo; the suit being styled Lawrence B. Fabacher v. B. A. Bass, Receiver, No. 52,663 on the docket of the court, and the mortgaged property was seized by the sheriff and sold, after advertisement, to said Fabacher, on March 8, 1930. Thereafter, on May 15, 1930, said receiver obtained an order of court authorizing the sale of the remaining assets of the Southern States Bottle Company, Inc., and on June 14, 1930, made sale thereof to Earl Carey, including the following: One lot of miscellaneous machinery- used in the manufacture of bottles, including one Brown electric pyrometer No. 43,673; one Sturtevant fan; one pair of Fairbanks scales, capacity 500 pounds; two wheelbarrows; two small hand trucks; one sectional conveyer; one No. 44 glass bottle blowing machine; standard O’Neill conveyor for same; one blower motor, No. 134,630; one induction motor made by Chalirjers Manufacturing Company, serial No. 20 — G-108-611-14; one induction motor made by General-, Electric Company, No. 3775423; one lot of molds and crates, 325 crates made up, 337 molds, and one lot of miscellaneous crate material; blocks for furnace.

The receiver then petitioned the court for an order approving and homologating his action in making sale of said property and other property of the company under the court’s order. This application was opposed by Fabacher on the ground and for the alleged reason that said property was acquired by him at the sheriff’s sale under his mortgage on March 8, 1930, his allegations on the subject being:

“That upon the above described real estate and as part thereof was situated the manufacturing plant of Southern States Bottle Company, which plant together with all machinery, appliances, tools, implements, equipment, etc., and all appurtenances thereto are, under the law, immovable by nature or destination and form and constitute part and parcel of the real estate and as such affected by the mortgage held by your opponent, were covered by the seizure and sale above mentioned, were sold at the sheriff’s sale above referred to and upon your opponent’s purchase at sheriff’s sale, became the property of your opponent to the same extent as did the land upon which the same was situated.”

It is further alleged in the opposition that no title to any of said things was legally conveyed to Earl Carey by the receiver on June 14, 1930, and that the purported sale thereof should be decreed null and void, and opponents’ ownership of same recognized.

There was no dispute as to the facts. The case was tried and submitted to the court upon an agreed stipulation of facts covering the record facts and others relevant to the issue involved.

Judgment was rendered in favor of Fabacher, opponent, recognizing him to be the owner of the property described in his opposition, excepting 325 crates made up and the lot of miscellaneous crate material, and decreeing the receiver’s sale thereof to Carey null and void. Carey appealed.

There is now no real controversy over the ownership of the property described and involved in this opposition. Counsel for Carey, appellant, in brief, admits that said property was placed on the mortgaged real estate subsequent to the giving of the mortgage thereon to Fabacher, and that same was necessary for the proper operation of the bottle factory, and that since this appeal was perfected the decision in Braud’s Sugars, Inc., v. Williams Richardson Co., Limited, reported in 15 La. App. 616, 132 So. 670, was rendered, settling the issues in this suit.

• Other decisions to same effect: Bank of Lecompte v. Lecompte Cotton Oil Co., 125 La. 844, 51 So. 1010; Straus v. City of New Orleans, 166 La. 1035, 118 So. 125; Maginnis v. Union Oil Co., 47 La. Ann. 1489, 18 So. 459; New Orleans Canal & Banking Co. v. Leeds & Co., 49 La. Ann. 123, 21 So. 168.

The judgment appealed from is'therefore affirmed. . : '


author: DREW, J.

text:
    No. 3959
    Second' Circuit
    JACKSON v. WEEDEN ET AL.
    (July 14, 1931. Opinion and Decree.)
    Munholland & Munholland, of Monroe, attorneys for plaintiff, appellee.
    M. C. Redmond, of Monroe, attorney for defendants, appellants.
   ON MOTION TO DISMISS

DREW, J.

The judgment in this case was rendered and signed on July 14, 1930. Defendants in open court asked for orders of devolutive appeal, which were granted and made returnable to this court on or before August 15, 1930; the appeal bond being fixed at $100. This appeal was not perfected.

On September 27, 1930, defendants in open court asked for orders of devolutive appeal, which were granted, and the return day fixed on or before October 15, 1930, the bond being fixed at $100. On October 10, 1930, the appeal bond was filed with the clerk of the district court, but the record was not returned into this court and filed until November 12, 1930, twenty-eight days after the return day, as fixed by the court.

Plaintiff, appellee, has filed in this court a motion to dismiss the appeal based upon the above facts. The motion will have to be sustained for the reason that the oral motion for appeal was made at a term subsequent to the term at which judgment was rendered. This is not allowed by the laws of this state, and the only way in which orders of appeal could have been legally taken was by petition and citation ,on the appellee. Code of Practice, art. 573; Walker v. Martolo, 16 La. 50; Bolling v. Anderson, 10 La. Ann. 650; De St. Romes v. Macarty, 21 La. Ann. 277; Potier v. Thibodeau, 21 La. Ann. 618; Hardy v. Stevenson, 27 La. Ann. 95; Pournet v. Van Wickle, 33 La. Ann. 1108; Wheeler v. Peterkin, 38 La. Ann. 663; Trounstipe v. Ware, 39 La. Ann. 939, 3 So. 122; Schmitt v. Drouet, 42 La. Ann. 716, 7 So. 746.

It is apparent from the record that the vacation period of the Fourth District Court is from July 15th to September 15th, and that the new term began on September 15th, and the appeal was asked for by oral motion in open ■ court on September 27th, a term subsequent to the one that expired on July 15th.

There is, however, another reason for dismissing the appeal. The record was not returned into this court until twenty-eight days after the return date and the appellant has in no way attempted to or filed in this court anything to show that it was not returned through no fault of his. He has not shown that he made the necessary deposit to cover the cost of appeal, either with the clerk of the district court or with the clerk of this court, on or before the return day, or the three days of grace allowed for said filing. Therefore the appeal was abandoned. Article 587, Code Prac., and citations thereunder.

It is therefore ordered, adjudged; and decreed that the appeal taken herein is dismissed, at appellants’ cost.


author: STEPHENS, J.

text:
    No. 3643
    Second Circuit (Second Division)
    COOK v. TOOKE
    (July 16, 1931. Opinion and Decree.)
    T. H. McEachern, of Homer, attorney for plaintiff, appellant.

      McClendon & Seals, ' of Homer, attorneys for defendant, appellee.
   STEPHENS, J.

The plaintiff alleges that on the night of October 30, 1927, while driving his automobile west on the Homer-Lisbon Highway in Claiborne parish, he struck some cows and damaged his automobile; that the cows were the property of the defendant, who. negligently permitted them to run at large on the highway in violation of the police jury ordinance of-Claiborne parish. He further alleges that he was exercising due care in driving at the time of the accident, but that an automobile being driven in the opposite direction caused a heavy dust to rise which prevented his seeing- the cows until it was too late to avoid the accident. He prays for judgment against the defendant in the sum of $150 for the damages sustained.

The defendant answered admitting ■ the ownership of the cows, but denying that they were running at large on the highway, and averring that they were under his control and custody; and that the accident was caused by the high rate of speed at which' plaintiff was traveling without keeping a proper lookout ahead. The defendant reconvened for $45, which amount represents the value of two cows which were killed by being struck by plaintiff’s automobile.

A trial resulted in a judgment rejecting plaintiff’s demands and dismissing the re-conventional demand as of non-suit.

The plaintiff appeals.

The facts as disclosed by the record are as follows;

The cows of the defendant had gotten out of his pasture and into his cornfield. He had driven' them out of the cornfield into the highway, and was driving them west along the highway toward his barn when two of them were struck and killed by plaintiff’s automobile, moving in the same direction.

The plaintiff was not traveling at an excessive rate of speed under normal conditions of vision at night, but immediately before the accident a heavy blinding cloud of dust was raised by an automobile going in the opposite direction.

In the ordinance' referred to, certain animals, including cows, are prohibited from running at large within the limits of Claiborne parish. A penalty is provided against the owner of the animals for each willful violation of the ordinance.

There is not the slightest suggestion in the record that the defendant had willfully permitted the cows to run at large, therefore, he could not be convicted of having violated the ordinance. But assuming that the ordinance would be violated by one negligently permitting cows to run at large on the highway, it would avail -the plaintiff nothing here, for the reason that the evidence is satisfying that the cows were in the custody and control of defendant to such an extent that they could not be considered to be running at large in the meaning of the ordinance. The defendant had the legal right to use the highway for the purpose, and we find no negligence in the manner in which he exercised that right.

As the defendant was free from negligence, the case is disposed of; but we will add that we think the proximate cause of the accident was the failure of the plaintiff to reduce the speed of his automobile in that proportion to his lowered vision which would be consistent with its safe operation.

The judgment appealed from is affirmed.


author: McGREGOR, J.

text:
    No. 3980
    Second Circuit
    DIMMER v. DAVIS BROS. LUMBER CO., LTD.
    (July 14, 1931. Opinion and Decree.)
    Wm. J. Hammon, of Jonesboro, attorney for plaintiff, appellant.
    Theus, Grisham, Davis & Leigh, of- Monroe, attorneys for defendant, appellee. .
   McGREGOR, J.

On January 7, 1905, and for many years prior thereto, Kittie Dimmer, a negro woman, the plaintiff herein, and Prank Dimmer were husband and wife, living together as such. During the community existing between them there was acquired one 160 acres of land described as follows:

“West Half (Wy2) of the • Southwest Quarter (SW%) of Section Twenty-seven (27) and the East Half (E%). of the Southeast Quarter (SE%) of Section Twenty-eight (28), Township 17 North, Range 2 West, in the Parish of Jackson.”

On January 7, 1905, the plaintiff and her husband appear to have quarrelled, and on -that date they went to Ruston and met Dr. A. E. Simonton, who evidently was a friend to the two negroes. On this occasion Prank Dimmer executed an act of. sale to Dr. Simonton conveying the above-described land and all the personal property of every kind and description owned by him and the plaintiff, including three hogs, seven head of cattle, one hundred bushels of corn, and sixty bushels of cotton seed. Kittie Dimmer, the plaintiff, joined in this sale for the alleged purpose of “signing away all of her rights in the premises.” The consideration was apparently nominal. On the same day, and at the same time and place, before the same notary and witnesses, Dr. Simonton executed an act of sale purporting to convey the identical property to the plaintiff for approximately the same consideration. In addition to signing the first deed as vendor, Prank Dimmer signed both of them for the purpose of “authorizing his wife to sign.” The deeds were filed for record at once, but for some unknown and unexplained reason were recorded two days apart. In each deed Prank and Kittie Dimmer are referred to and treated as husband and wife. It is patent that the two deeds were simultaneously executed, and that for all intents and purposes they constitute one act — an attempted transfer of the title of the community property from Frank Dimmer, the husband, to Kittie Dimmer, the wife. It is evident that Dr. Simonton was merely an interposed party for the purpose of avoiding the appearance of the attempt to have the husband make a sale of the. community property to the wife —a thing that is prohibited by law. There was no thought of a divorce, although the couple separated on that day for an indefinite time.

After the lapse of time, how long or short we do not know, Frank Dimmer returned home to his wife, and they resumed their marital relations, and lived together for many years until Frank Dimmer’s death, which occurred about five or six years before the trial of this case.

On March 5, 1923, while he was living with his wife, the plaintiff herein, Frank Dimmer executed a deed to the defendant, Davis Bros. Lumber Company, Limited, conveying all the merchantable timber standing and growing on the land described above for ■ a consideration of $275 cash. This transaction took place and the deed was signed in the home of Frank and Kittie Dimmer, though the plaintiff denies any knowledge or recollection of it.

After the death of her husband, the plaintiff continued to live on the property and to farm it as usual. She contends •that she has only recently learned of the sale of the timber by her husband to the defendant. This suit is brought by her in the form of a jactitation- suit in which she alleges that defendant’s claim of the ownership of the said merchantable timber and the recordation of its deed to the same is a slander on her title to the said land, and that it has damaged her to the extent of $1,000. She prays for the cancellation of the inscription of defendant’s title to -the timber and for judgment for $1,000 as damages on account of the alleged slander of her title. On trial of the case in the lower court, there was judgment in favor of the defendant rejecting the plaintiff’s demands. In support of the judgment, the trial judge handed down a very able and learned written opinion. From this judgment the plaintiff has appealed.

OPINION

While the plaintiff’s petition alleges that she is the owner of the land described in the above statement of the case, -the record is clear that it is not her paraphernal property, and never was. On the contrary, when it was first acquired, it was community property, and, when the two so: called deeds of January 7, 1905, were passed and recorded, it was still community property. Plaintiff’s counsel objected to any testimony going to show that plaintiff and Frank Dimmer were husband and wife, but, since the testimony was admitted over his objection, be admits the truth of it, and declares in his brief that as a consequence -thereof “there can be no contention on behalf of plaintiff that the land was not community property.” But the fact of their marriage and of their living together as husband and wife needed no testimony to prove it. The very deeds by which plaintiff alleges she acquired -the ownership of- the property set forth in unmistakable terms this fact. The plaintiff joined in the sale of the property to Dr. Simonton as the vendor by and with the authority of her husband, and she signed the deed as vendee from Dr. Simonton by and with the consent and authority of this same husband. There was no pretense in this deed that the plaintiff was buying the property with her paraphernal funds or for her separate use and benefit. So that, after the execution and recordation of the two deeds of January 7, 1905, the property in question belonged to the community just as it did before.

If these two deeds had never been executed and recorded, it is admitted that defendant’s deed to the timber would be unquestioned. But plaintiff’s position is that, conceding that the property was community property at the time of the execution and recordation of defendant’s deed, it was standing on record in the name of the plaintiff, and that she was the only one that was competent to sign a deed and convey a legal title; to it. This contention is based solely on the case of Garlick v. Dalbey, 147 La. 18, 84 So. 441. That case cannot be used as authority for this position. In that case the community property was rightfully standing in the name of the wife. When it was sold, the wife appeared as vendor, and the husband signed to authorize her. Later on, the wife undertook to repudiate the sale and to set it aside on the ground that it was her separate property and not community property, and that the sale was really a disguised mortgage given to secure her husband’s debt — a thing she had no right to do. The defense set up against her attack was that the properly was community property. She met this defense by the contention that, when the vendee accepted a deed from her in her name as owner, aided and assisted by her husband, he (the vendee) was estopped from asserting that the property in fact was community property. The court held that, even though the deed was signed by the wife with the authority of her husband as though it were her separate property, if in fact it developed that the property was community property standing in the name of the wife, the deed as signed would legally convey the community title, and that the vendee had the right to show that the property was community and not paraphernal. The court then held that under the evidence the property had been proved to be community, though standing in the name of the wife, and that a deed signed by her with the authority of her husband properly conveyed the community title to the property. Inferentially the court did say that, when the title to community property is in the wife’s name, she is without power to convey it to her husband so that he may sell it, and held, of course, that she was the proper party to sign the deed as vendor for the' community. When the court held that the wife, could not convey the title directly to the husband in order for him to convey it to a third party, it necessarily held that what she cannot do directly she has no right to do indirectly, so that she would have nor right to sell the community property to an interposed third party for the .purpose of having this party convey' the title to her husband. This expression of the court to the effect that the wife could not transfer the title to the husband cuts both ways, and is equally authority for the position that the husband cannot transfer the- title of the community property to the wife either directly or indirectly through an interposed third party. So that this Garlick v. Dalbey case is not authority on the question as to how community property shall be transferred when the title is standing in the name of the wife. It merely holds that a deed of a certain kind does convey the title — not that another kind does not.

However, it is not necessary to decide this question in this case. It is admitted that, when the plaintiff and her husband first acquired this property in the name of the husband, it was community property. Prior to and on January 7, 1905, this community property stood in the name of Prank Dimmer, the husband. If he had undertaken to make a sale of the property directly to his wife on that day, it would have been an absolute nullity as being violation of a prohibitory law, and a sale made by him after that to another person would have conveyed a perfect title, and the vendee would have a right to ignore ■the sale to the wife as an absolute nullity. Also the property in such case would remain subject to seizure by creditors of the community without the necessity of revocation by direct action. The case of Rush v. Landers, 107 La. 549, 32 So. 95, 100, 57 L. R. A. 353, is directly in point. In the course of that decision the court said:

“But in the case at bar the putative sale from husband to wife, purporting to have been made for money in hand paid, is not valid upon its face, but is distinctly invalid, as being apparently in violation of a prohibitory law. It cannot, therefore, be said to evidence a real transaction, but leaves the title to the property, apparently, in the vendor, and subject to seizure at the suit of his creditor.”

It might be said that the above case is not applicable to the one at bar, for the reason that in this case the plaintiff never received her deed from her husband, but from Dr. Simonton. But the Supreme Court has held that, when the title of property is passed from the husband to the wife, or from the wife to the hhsband through an interposed party, it is an unlawful attempt to evade a prohibitory law, and that deeds of this kind are so absolutely null and void they may be ignored as not existing, and that it is not necessary to resort to a direct action of revocation. It is particularly held that under circumstances such as prevail in this case, where .it is apparent from. the. record that there is an interposed party between the husband and • wife, this fact does not have to be proved by testimony, but that the transaction may be ignored as never having existed. In the case of Vicknair v. Trosclair, 45 La. Ann. 373, 12 So. 486, 489, a case very similar to the one under consideration, the court said:

“It was null and void for two reasons:
“(1) The coercive influence of the husband in procuring the sale from her to Naquin.
“(2) As he was an interposed party, in order that the husband might purchase the wife’s interest, it was in fact a sale from the wife to the husband, not embraced within the exception mentioned in Civil Code, art. 2446, and was in contravention of Civil Code, art. 1790.”

In the case of Layman v. Vicknair, 47 La. Ann. 679, 17 So. 265, 268, the court said:

“In looking up titles and mortgages, parties are held to examine act by act, mortgage by mortgage, and not to place any blind faith in references to books, numbers, and papers, much less to the mere ipse dixit of a notary. * * *
. “A copy of the act of sale last mentioned being in the record, we have examined the same (as it was the duty of all parties relying exclusively ‘on the faith of the public records’ as the ground for maintaining their rights to have examined it), and in this act from Naquin to the husba&d we find it declared that the property then being conveyed was ‘the same property acquired that day before the undersigned notary of Mrs. Felix Lasseigne.’ The record would, therefore, have disclosed the fact that upon the same day, before the same notary, and before the same witnesses, the property which ostensibly passed from the wife to Naquin for cash ostensibly passed at once from Naquin to the husband.
“A record showing such facts was not of such a character as to form the basis of a claim by- any one who' dealf; with the husband or with .Trosclair (the vendee from the husband) that he had been deceived into contracting with them, through the 'condition of the public records, and that ‘his mortgage rights could not be defeated by secret equities between the original parties, of which neither the act nór the public records afforded any notice or means of information.’ We are of the opinion that when the records show on their, face, as it did in this instance, that the property once belonged to the wife, 'and that when it passed ostensibly from her it went afterwards into, the apparent ownership of the husband, any one looKing at the acts would have been, or should have been, at once placed on his guard as to the reality and good faith of the transactions.” (Italics ours.)

The above case was cited with approval in Douglass v. Douglass, 51 La. Ann. 1455, 26 So. 546. The syllabus in that case is as follows:

“1. The proof disclosing that a married woman conveyed real estate to her husband through the interposition of a third person, and without haying received any consideration therefor, the transaction is a fraudulent simulation, and violative of a prohibitory .provision of the Civil Code.
“2. In such a case, a deed from the wife to a third person, and from such third person to the husband, executed on the same day, before the same witnesses, in the same handwriting, and put on record on the same day, must be viewed as one transaction, the object of which was to devest the title of - the wife, and vest it in her husband.”

As already stated, it is patent on the face of the record that Dr. Simonton was merely an interposed party. Since he was such, the two deeds taken together are nothing more or less than an attempt of the husband to make a sale of the community property to the wife, a thing which he is prohibited from doing by the law. These two deeds of January 7, 1905, are therefore absolutely null and void, and Frank Dimmer was the only person authorized to execute a deed to any one conveying any portion of the community property the same after January 7, 1905, as he was before. After examining the record and viewing these two deeds, the defendant was fully justified in ignoring them and in dealing with Frank Dimmer as the head and master of the community, with full authority to sell all property belonging to the community as fully and freely as if the two said deeds had never been executed and recorded.

For the reasons assigned, it is hereby ordered, adjudged, and decreed that the judgment appealed from be, and it is hereby, affirmed; and that the plaintiff pay all costs of both courts.


text:
    No. 4055
    Second Circuit (Second Division)
    COOKE v. SEEGERS
    (July 16, 1931. Opinion and Decree.)
    (August 12, 1931. Rehearing Refused.)

      L. A. Newsom, of Shreveport, attorney for plaintiff, appellee.
    Wilkinson, Lewis, Wilkinson & Burford, of Shreveport, attorneys for defendant, appellant.
   STEPHENS, J.

The plaintiff sues to recover damages in the sum of. $210.50, alleged to have been sustained by him, arising out of a collision between his automobile and one operated by the defendant Weldon Seegers, a minor, and owned by the defendant Walter B. Seegers, his father. The plaintiff’s automobile at the time of the accident was driven by his wife.

The defendant answered denying negligence, and averring thht the collision was caused by the negligent driving of Mrs. Cooke, the plaintiff’s wife; and in the alternative he pleaded the contributory negligence of Mrs. Cooke as a bar to recovery. A reconventional demand was made for the sum of $16.55, which apparently has been abandoned.

The city court rendered judgment in favor of the' plaintiff as prayed for, and the defendant appeals.

At about 8 o’clock, p. m. on May 10, 1930, Mrs. Cooke, the wife of plaintiff, was driving west on Wilkinson street in the city of Shreveport, at the rate of about fifteen to eighteen miles per hour. It was dark and raining. When she had crossed the intersection with Creswell street approximately two-thirds of the way, and while maintaining the proper side of the street, she was struck broadside by the automobile of the defendant, which was being driven north on Creswell street. The result of the impact was to immediately stop the forward course of plaintiff’s automobile on Wilkinson street, and knock it some fifteen feet from the point of contact up Creswell' street, where it came to rest in a completely reversed position, with its right rear wheel over the curb on the left side of Creswell street going north. The defendant’s automobile was but slightly diverted from its course.

Weldon Seegers admitted that he did not see the plaintiff’s automobile until he “was right on her.” He testified that his lights were burning, that it was raining, and that he was on his right side of the street driving at about fifteen miles per hour.

The defendant’s automobile struck the plaintiff’s automobile broadside with such terrific force as to be convincing that it was moving at a very rapid rate of speed. The collision occurred at a point in the intersection where the plaintiff’s automobile had a legal right to be and the defendant’s had no legal right to be. The plaintiff’s automobile not only entered the intersection first, thereby acquiring the right of way, but it had passed the point of danger from traffic moving from the left on the intersecting street.

The counsel for the defendant contend that the admission, which was made by Mrs. Cooke, that she did not see defendant’s automobile until it was about to strike her own is an admission of contributory negligence, barring recovery. That contention we think cannot relieve the defendant from liability in this case. If it was negligence for Mrs. Cooke to fail to have seen the defendant’s automobile before entering the intersection, her negligence in that respect did not contribute to the accident, but occurred prior in point of time to the negligence of the defendant, which was the proximate cause of the accident. She left a point of safety and had reached a point of safety had it not been for the careless driving of the defendant in approaching the intersection and entering it at a high rate of speed, and attempting to drive to the left and in front of her. His duty was to check his speed and keep to the right. If he, had done so, the accident would not have occurred.

We think the proximate cause of the accident was the negligence of the defendant Weldon Seegers.

The amount of damages sustained is not disputed.

The judgment of the trial court is correct, and is affirmed.


text:
    No. 4035
    Second Circuit
    WHITE v. KENNEDY ET AL.
    (July 14, 1931. Opinion and Decree.)

      Dhu Thompson, of Monroe, attorney for plaintiff, appellee.
    Theus, Grisham, Davis & Leigh, of Monroe, attorneys for defendants, appellants.
   DREW, J.

Plaintiff sued for $3,732.40, alleging that on September 24, 1930, at about 6 o’clock in -the afternoon, he was driving a Ford truck west from Monroe, approximately five miles from Monroe, when there was a collision between his truck and a Chevrolet car, driven by defendant; that they were both traveling westward and driving on the right-hand side of the road, when petitioner, after sounding his horn to'.pass defendant, turned his car to the left side of the highway, and was in the act of passing, when defendant, without any previous notice or warning, suddenly swerved his car to the ■left, directly in front of petitioner’s truck; that he, petitioner, swerved his car to the left and left the road- to avoid the collision; on account of the shortness of the turn made- by defendant, he was unable to avoid the collision. He alleged negligence on the part of defendant in suddenly turning to -the left, without giving the proper signal or warning, as the cause of the accident. He itemized his damage, and asked for judgment accordingly. ;

Petitioner further alleged that defendant carried liability insurance with the Columbia Casualty Company of New York whereby the company obligated itself to pay any damage caused by the said defendant in operating his auto, and further obligated itself to defend any suit which might be filed against him because of any injury to property or person; made said company defendant; and prayed for judgment in solido against both defendants.

The Columbia Casualty Company filed an exception of no cause of action, which was overruled by the lower court and is not pressed here. Both defendants answered, admitting that the defendant Kennedy carried liability insurance with the defendant casualty company, by which said insurance company bound itself to defend this suit and respond for limited liability, in accordance with the terms of the policy. They admit the accident and deny all other allegations of plaintiff’s petition, and specially aver that defendant Kennedy, at the time and place of the accident, was driving his automobile in a prudent and lawful manner along the Dixie-Overland highway, some five or six miles from the city of Monroe, and desiring to return to Monroe, in a prudent and careful manner, after giving the proper signal, turned his automobile to cross the highway from north to south at a filling station, and at the usual turning place; and, alter he had entirely cleared the concrete and the rear wheels of his car had gone on to the neutral ground and off the concrete highway at least two feet, and while driving at a very slow rate of speed, plaintiff, driving at a high and unlawful rate of speed, and going in a westerly direction, ran into the car owned and operated by defendant Kennedy after it had entirely cleared the highway on the south; and avers that all the damage, both to persons and property, was occasioned by the gross fault and negligence of plaintiff. He prays that the demands of plaintiff bo rejected.

. The' lower court rendered judgment for plaintiff against both defendants in solido in the sum of $1,750, with 5 per cent per annum interest from judicial demand until paid, reserving plaintiff’s right to sue for damage to his truck. Prom this judgment defendants have appealed.

The highway on which the accident happened was the Dixie-Overland, at a point about five miles west of Monroe, and only a few feet west of a filling station. Plaintiff had been trailing defendant for a quarter of a mile at a distance of one hundred yards or more behind him. Neither was speeding, and both were traveling at a moderate rate of speed. Plaintiff decided to pass defendant, and sounded his horn when at a reasonable distance from defendant and again on nearing defendant’s car, as the law requires. Defendant pulled to the right of the road and slowed down, and, when plaintiff was within about forty feet, and had pulled to the left to pass, suddenly defendant made an extra short turn to the left in an attempt to turn back towards Monroe. Defendant did not hold out his hand to signal that he was going to turn nor did he give any other signal or warning that he intended to turn to the left.

Plaintiff immediately applied his brakes, as shown by the skid marks on the pavement, and cut sharply to the left to avoid the collision. He left the pavement entirely, and the collision happened just off the pavement, the right front fender and wheel of plaintiff’s ear coming in contact with the left front fender and wheel of defendant’s car. Defendant’s car was turned around and left standing facing west, and plaintiff’s car continued some thirty or forty feet and turned over in a ditch, pinning plaintiff under it and severely injuring him.

Act No. 296 of 1928 makes it the duty of one who intends to pass a ear on the right to sound his horn and thereby signal his intention to pass. This the plaintiff did. It also makes it the duty of one about to be passed, upon hearing the signal, to pull to the right and slow his speed down until the rear car has passed. Therefore, if plaintiff had given the signal of his intention to pass, and defendant had slowed down and'pulled to the right, plaintiff had every reason to believe that defendant was complying with the law and expecting him to pass. He then gave more speed to his car in his effort to pass, and, when defendant suddenly turned to the left, without any signal or warning, there was nothing plaintiff could do to avoid the collision. The evidence is conclusive •that - plaintiff gave the signal of his intention to pass and is equally as conclusive that defendant did not give any signal or warning of his intention to turn to the left.

At the time defendant turned to the left, plaintiff could not by any action of his have avoided the accident. It is clear that defendant was negligent in turning to the left without giving any warning, and his negligence was the sole proximate cause of the accident. Jameson v. Standard Oil Co., 2 La. App. 419; Succession of Brown, 2 La. App. 704; Gascon v. Rankin, 4 La. App. 269; Bonnette v. Flournoy, 9 La. App. 467, 119 So. 736; Marsh v. Singletary, 7 La. App. 436; Bloomquist v. Schenck, 14 La. App. 94, 129 So. 246.

Defendant contends that plaintiff violated ;the law in attempting to pass another car at a road intersection, citing section 15 of Act No. 296 of 1928, and is thereby barred from recovery. We cannot agree with defendant’s contention, that the accident happened at an intersection. The evidence, we think, shows that to the west of the filling station there is a road leading up to a residence; that it is not a clearly defined road, and, as testified to by defendant’s engineer witness, “no defined road there. * * * It’s a road that goes through the fence, an open gate. * * * A road back of the fence. * * * There are only tracks, no defined road. Not raised up.”

The evidence clearly shows that it is not such a road as is intended by the' act relied on by defendants, and that one in passing this point would not notice it, unless his attention was especially called to it. However, if it could be held to be such a road as is contemplated by the act relied on by defendants, it is equally clear that the attempt of plaintiff to pass at this point was not the proximate or contributing cause of the accident. Defendant was. not attempting to turn into this so-called road, neither was any car coming out of this road. Defendant was attempting to turn around in the middle of the' highway, and it was his duty to give a signal of his intention and to see that the way was clear. Section 19, Act No. 296 of 1928.

Plaintiff suffered fr¡actures of; both bones of the forearm, the radius, the big bone, slightly below the middle, the ulna, about an inch and a half towards the hand. Both bones were displaced, and were not end to end on September 25, 1930. There were two attempts made to set the arm without success, and then a stretcher was placed on the arm and kept there for twenty-nine days, during which time plaintiff suffered excruciating pain and had to be kept under the influence of opiates in order to hold him in bed. The testimony of the physicians is that a perfect end to end setting cannot be had, and that the bones will be united, although there will be a displacement, one bone with the other.

This case was tried four months after the accident, and plaintiff’s arm was then in a plaster cast, and the testimony is that he will have no use of his arm for at least eight months longer and maybe twelve months.

Plaintiff is a young man, twenty-four years of age, and was capable of earning from $4 to. $5 per day, and has been entirely incapacitated from, work for a period of at least twelve months, and will always have a knot on his arm. He expended for hospital and medical expenses, $83; doctors’ bills, $106; board and expense incurred in visiting and attending doctors and hospital for treatment, $39; he paid to labor for gathering his crop, $24.40 — making a total of $232.40.

Plaintiff has answered the appeal, praying that the judgment be increased. We think he is entitled to an increase, and that, for loss of earning capacity, pain and suffering, he is entitled to $2,000, and that he is entitled to the expense he was out in the sum of $232.40.

It is therefore ordered, adjudged, and decreed that the judgment of the lower court be amended by increasing the amount awarded to plaintiff from $1,750, with 5 per cent per annum interest from judicial demand, to $2,232.40 with 5 per cent per annum interest from judicial demand until paid, and all cost of both courts; and, as so amended, the judgment of the lower court be affirmed.


author: McGREGOR, j.

text:
    No. 3176
    Second Circuit
    MASSEY v. MURRAY
    (July 14, 1931. Opinion and Decree.)
    C. H. Lyons, of Shreveport, attorney for plaintiff, appellee.
    Dickson & Denny, of Shreveport, attorneys for defendant, appellant.
   McGREGOR, j.

This is a suit by the plaintiff, W. B. Massey, a lawyer practicing law at the Shreveport bar, against the defendant, T. W. Murray, for the value of professional services rendered in the organization of a corporation known as the Alden Oil Company, Incorporated. It is alleged that the services rendered covered a period of time from February 8, 1926, to April 27, 1926, or two months and nineteen days. The defendant is alleged to have been a non-resident and suit was therefore brought by attachment. Coupled with the attachment was a garnishment proceeding wherein the First National Bank of Shreveport was named garnishee. According to the return of the sheriff on the writ of attachment, there was seized one drilling rig, complete, one boiler, and one lot of drill pipe. The answer of garnishee shows that $611.20 belonging to the defendant was in its possession. The petition states that the services rendered were worth the sum of $1,500; that $400 had been paid on the account, so that the amount sued for is the sum of $1,100. On trial in the lower court, there was judgment in favor of the plaintiff against defendant for the sum of $600, and the writ of attachment was sustained. Just how the court' arrived at this' sum does not appear. The defendant has appealed, but the plaintiff has not answered. The plaintiff is suing the defendant personally, instead of the corporation, on the theory that he was personally employed by the defendant in the beginning and that- the defendant recognized the obligation as a personal one at different times thereafter. In his answer the defendant denied that he was ever indebted personally to the plaintiff. in any sum whatsoever but that’ the services rendered by the plaintiff were to and for the benefit of the Alden Oil Company, Incorporated. So the first question to be determined is as to whether the defendant is personally liable to plaintiff for any amount, and if so, then it must be determined how much that amount is.

In his petition the plaintiff alleged that he was employed by the defendant “to attend to all legal matters in connection with the organization and operation of the Alden Oil Company, Incorporated.” In his testimony on the trial o.f the case, plaintiff says that on February 8, 1926, defendant and one W. A. Robinson came to his office and stated that they wanted some legal work done in connection with the organization of an oil corporation. The question of the fee for the services to be rendered was raised but not agreed on for the reason that the plaintiff told them that he could not fix it in advance because he did hot know how much work would be required. He says he assured them, however, that his charge would be reasonable and in line with the price usually charged for that kind of work and that they both then and there promised him that they would pay whatever the charges should be. He also testified that the defendant on two or three occasions after-wards agreed to pay the amount sued for.

• For the purpose of corroborating his testimony on the agreement by the defendant to pay plaintiff’s claim personally, he called only one witness — -Judge Robert Roberts— who had represented some of the stockholders of xhe Alden Oil Company, Incorporated, before he was elected judge. Judge Roberts testified that he had represented four or five of the stockholders in a controversy they were having with the rest of the stockholders, among whom was defendant. The matter was finally settled by Judge Roberts’ clients selling their stock to the defendant and the rest of the stockholders for $3,000 cash, less whatever the corporation owed to its creditors. Naturally the ‘question immediately arose as to what the debts of the corporation were. On this point Judge Roberts testified:

“Something was said in ' the conference about some debt to Mr. Massey for legal services and Mr. Pritchard and Mr. Murray (defendant) remarked, ‘‘Well, we will take care of that. You won’t be expected to look after that.’ ”

The contention of the plaintiff in offering Judge Roberts as a, witness is that in this trade wherein his clients sold out to defendant and the other stockholders, they agreed that all of the debts of the Alden Oil Company were to be deducted from the price of $3,000 paid them for their stock in the company, and that when defendant and his associates said, “We will take care of that,” referring to plaintiff’s claim for the balance due on his fee, that meant that the one speaking assumed and promised to pay the debt personally and not as an obligation of the corporation. This testimony might have a tendency to show that the balance due on plaintiff’s fee was not arf obligation of the corporation, but not necessarily so. It is evident that those stockholders who were selling out their interests in the company for $3,000, less all the debts due by the corporation, wanted to hold the debts down to as small a figure as possible and when the list of debts was being prepared, it could easily happen that the defendant and those stockholders who were putting up the money and buying the interests that were being sold would eliminate certain debts from the privilege of being paid out of this fund and retain them as company debts, and at the time agree that the company should pay them. When the defendant was sworn as a witness, he stated that that was what happened; that he and Dr. Pritchard, who was associated with him, agreed that the balance due on plaintiff’s fee should be paid by the company and not included in the list of debts that should be paid out of and deducted from the $3,000 being paid for the stock being bought. On the cross-examination Judge Roberts did not say whether the defendant and his associates meant that they would take care of the balance due on the plaintiff’s fee individually or as a company. There was a written contract covering the agreement reached, but for some unexplained reason it was not introduced in evidence by either side.

At the time of this agreement when the defendant and his associates bought out the other stockholders, the defendant was represented by Mr. Allen Rendall, his attorney. Mr. Rendall. testified for the defendant and we gather from his testimony that nothing was said that would indicate whether the defendant and those purchasing with him the stock of the rest of the stockholders intended to personally recognize as an individual obligation the balance due on plaintiff’s fee. A careful reading of the testimony of Judge Roberts and Mr. Rendall fails to disclose anything that indicates that defendant promised personally and individually to pay the amount sued on or any other amount. The testimony of these two witnesses may be eliminated for the reason chat neither can or will swear what the plaintiff must prove in order to sustain his claim. So that so far as the testimony is concerned we have the plaintiff testifying that the debt is the defendant’s and that he recognized it as his and promised orally to pay it on several different occasions, while the defendant is just as positive in saying that he never did at any time recognize the debt as his individual obligation but that he always considered that whatever was due to the plaintiff was a company debt. If there were no more evidence than the testimony of these . two — the plaintiff and the defendant — the case would be with the defendant because of the failure of the plaintiff to make out his case by a preponderance of evidence. But there is other evidence in the case that strongly corroborates the defendant in his contention.

In plaintiff’s petition he says that, “he was employed by the said T. W. Murray as attorney to attend to all legal matters in connection with the organization and operation of the Alden Oil Company, Incorporated.” (Boldface type ours.) This allegation itself would indicate that the employment was for the corporation and not an individual employment. Furthermore, there was introduced in evidence an itemized statement of account rendered by the plaintiff which reads as follows:

“W. B. Massey

Attorney at Law 305 Ricou-Brewster Bldg. Shreveport, Louisiana.

April 24th, 1926.

Alden Oil Company, Inc.,

Shreveport, Louisiana, to . W. B. Massey, Dr.

To professional services rendered from February 8th, 1926, to date.________$1500.00

Less payments as follows:

Feb. 20th, 1926, by check____$200.00

Mch. 7th, 1926, by draft— 150.00

Total _________________.'.____________________________$ 350.00

Balance due ______________________________________$1150.00”

On the face of this statement it is clear that the plaintiff considered this a company debt and not an individual obligation. Furthermore, the plaintiff testifies that there were three credits amounting to $400 to be deducted from the $1,500 charged for services from the beginning to the date of the bill.. The first of these credits is a $200 check dated February 20, 1926, and signed “Alden Oil Company, Incorporated, by W. A. Robinson, President.” This was just twelve days after the charter was written by the plaintiff as attorney and passed before him as a notary public, and just two days after it had been filed and recorded in the office of the clerk of the First District Court and ex-officio recorder of Caddo parish. The next credit is a check for $50 dated February 27, 1926, and signed “Alden Oil Company, Incorporated, by W. A. Robinson, President.” And the third and -last item of credit is a draft for $150 dated March 10, 1926, and signed by W. A. Robinson, individually. Testimony in the case showed this to be company money. On the bottom left-hand corner of this draft appears the notation “On account.” So that the only written statement that plaintiff ever rendered covering the services rendered by him was against the company and not against the defendant and the first three payments made on the account were made by the company and no payment was ever made by the defendant or any other individual. One circumstance that argues strongly against the- theory that this defendant bound himself personally for the balance, of this bill is that when the company was organized it was on the basis of five thousand shares. Defendant signed for one share, another signed for one share and W. A. Robinson, who was made president, signed for four thousand nine hundred ninety-eight shares. Another circumstance favoring the contention of the defendant to the effect that the debt was a company obligation is that the Alden Oil Company, Incorporated, deeded to the plaintiff and his wife certain mineral leases for a consideration of $400 and the defendant claims that this sum was to be applied as a credit on plaintiff’s claim against the company.

But it may be contended that that portion of plaintiff’s bill that may be for services in connection with writing the charter is in fact a personal debt of those securing the services in the first instance. But it is a matter of common knowledge that while the expenses of the first organization of a corporation similar to this one is usually guaranteed by the parties, it is always intended that' these charges shall ultimately be borne by the company. In fact, a debt of this kind is often paid for in stock. But, be that as it may, the company did pay the plaintiff $400 in cash and that was surely sufficient to pay for the servicés of plaintiff in writing the charter. It is evident that from the date of the writing of the charter the plaintiff was working for the company in its operation as is indicated in plaintiff’s petition. The individual stockholders who may have been personally liable for the fee for writing the charter had a right to have the first money paid in by tbe company credited on that portion of the bill.

For reasons assigned the judgment appealed from is hereby annulled and reversed and the demands of the plaintiff are rejected,’ the costs of both courts to be paid by the plaintiff.