text:
    No. 2501
    Second Circuit
    WARREN v. FROST-JOHNSON LBR. CO.
    (May 22, 1928. Opinion and Decree.)

      (Syllabus by the Editor.)

    1. Louisiana Digest — Timber—Par. 3, 10.
    Where the parties to a contract did not agree as to the method of measuring timber, this having been omitted, the rule fixed by Act 263 of 1918 will govern.
    2. Louisiana Digest — Constitutions and Constitutional Law — Par. 21; Laws — Par. 26, 37.
    “No one has a right to attack a statute as unconstitutional unless he can show that its enforcement against him has violated or will violate his constitutional rights.” Therefore, defendant, who is not being prosecuted criminally, cannot raise a constitutional question about Act 263 of 1918 because of its containing a penal clause.
    Appeal from the Eleventh Judicial District Court, Parish of DeSoto. Hon. Hal A. Burgess, Judge.
    Action by John M. Warren againt Frost-Johnson Lumber Company.
    There was judgment for plaintiff and defendant appealed.
    Judgment affirmed.
    Parsons and Colvin', of Mansfield, attorneys for plaintiff, appellee.
    Lee and Bell, of Mansfield, attorneys for defendant, appellant.
   ODOM, J.

The defendant company employed plaintiff to cut and haul the timber on a certain tract of land at an agreed price of $4.75 per thousand feet.

There is no substantial disagreement between the parties as to the number and size of the logs cut and hauled, but plaintiff contends that the timber was to be scaled with what is known as the “Scribner-Doyle” stick or by the standard rule adopted by the legislature in Act No. 263 of 1918, while defendant contends that it was to be scaled by the “Doyle-Scribner” stick or rule which was used by it, which latter stick or rule underscales the "Scribner-Doyle” by 10% on an average.

The lower court gave plaintiff the amount due under the “Scribner-Doyle” rule, and defendant appealed.

As plaintiff did not get judgment for the full amount claimed, he moved in this court for an amendment of the judgment.

OPINION.

We shall not go into all the details as to the number and size of the logs delivered by plaintiff to defendant, because we find, as a matter of fact, that the District Judge was correct in his finding on that point.

The real controversy between these litigants is whether the logs should have been scaled by the “Scribner-Doyle” rule as claimed by plaintiff, or the “Doyle-Seribner” as claimed by defendant.

The testimony shows that the “Scribner-Doyle” rule or standard adopted by the state, scales, on an average, 10% higher than the “Doyle-Scribner” rule which was used by defendant.

The defendant contends, first, that even though the State has fixed, by legislative enactment, a standard measurement for logs, the parties had the right, by agreement, to waive that rule and that they did waive it in this case; and, second, if the court should hold that they did not waive that rule, then Act No. 263 of 1918, fixing the standard, is unconstitutional.

On the first point we find, as a matter of fact, that the parties did not waive the rule. The testimony shows that when the negotiations were opened with reference to the'cutting and hauling of the timber, nothing was said about the scale-stick to be used. But that point seems to have been raised before the contract was finally closed.

Plaintiff testified that he was told that the defendant company would use the “regular” or “standard” scale-stick, and that nothing was said about either “Scribner-Doyle” or “Doyle-Scribner” sticks; and, furthermore, he knew nothing whatever about scale sticks.

Mr. Claude McCrocklin, representing the defendant, who made the contract with plaintiff, testified on his examination in chief, that before the contract was finally closed plaintiff asked "how are you scaling?” and “I said, ‘we are scaling with our method of give and take fractions, scale the narrow end with a “Doyle-Scribner stick * * *” ’ He asked if that was what we used, and I said that was all we need.”

But, on cross-examination, he was asked if he was positive that he mentioned the “Doyle-Scribner” stick, and he said, “No, sir, I would not say the ‘Doyle-Scribner’ stick;” “the stick we used.”

He was further asked, “do you know whether Mr. Warren knew then what was meant by ‘the stick we used,’ and he replied, 1 do not know, sir’.”

It is therefore clear that it was not agreed that the “Doyle-Scribner” stick should be used.

It is argued on behalf of defendant that the plaintiff having agreed to a scale by the stick used by defendant, he is bound by a scale made with the “Doyle-Scribner" stick, as that was the one used by it.

Tha.t would, no doubt, be true if the plaintiff had known what stick was being used by defendant. But he did not.

A standard rule for the scaling of saw-logs having been adopted by the state, by legislative act, the plaintiff was warranted in assuming, as. he says he did, that defendant was using that standard.

The state having adopted a standard of measurement and the contracting parties not having agreed upon any particular rule or standard, we hold that the standard fixed by the state should control.

Using that standard, the plaintiff is entitled to the amount awarded by the District Judge.

But defendant says Act No. 263 of 1918 is unconstitutional. It is not necessary for us to pass upon that question, for the reason that defendant has not properly presented it in its pleadings.

“No one has a right to attack a statute as unconstitutional unless he can show that its enforcement against him has violated or will violate his constitutional rights.”

.6 R. C. L. 89.

2 R. C. L. Supp. 21.

State of Connecticut vs. Tihon Senchuk, et al., 96 Conn. 605, 115 Atl. 33 (20 A. L. R. 1515).

It is not alleged nor is it argued by defendant that the enforcement of the standard measurement of saw-logs adopted by the state by said act would violate any of its constitutional rights. It is not alleged that the “Scribner-Doyle” rule is not in fact the correct standard or that its application would discriminate against defendant as a purchaser of logs. If the use of said rule in the measurement of saw-logs will show the correct amount of timber, and it is not suggested that it will not, defendant has no ground to complain.

Defendant says, in its answer, that said statute is null and void—

* * f01. the reason that it is a penal statute and all crimes in the State of Louisiana are statutory, and that said act does not contain a definition of what constitutes the Scribner-Doyle scale, nor was such scale known to the common law.”

If defendant were being prosecuted criminally for violating the provisions of the act, the point which it raises would be pertinent. But this is not a criminal prosecution.

Plaintiff testified that he was charged $4.00 for one sack of oats which he did not get and that defendant agreed to give him credit for that amount, which was not done. His testimony on that point is not disputed. We therefore find it necessary to amend the judgment appealed from to that extent.

It is therefore ordered, adjudged and decreed that the judgment appealed from he so amended as to increase the award from $116.90 to $120.90 and as thus amended, it is 'affirmed with costs in both courts.


source: Caselaw Access Project

author: ODOM, J.

license: Public Domain

text:
    No. 2979
    Second Circuit
    CANNON v. MENGEL & BROTHER CO.
    (February 3, 1928. Opinion and Decree.)
    (March 14, 1928. Rehearing Refused.)
    (May 7, 1928.' Writs of Certiorari and Review Denied by Supreme Court.)

      (Syllabus by the Editor.)

    1. Louisiana Digest — Negligence—Par. 11.
    Where the night engineer at a saw mill told the night watchman not to allow boys to remain on the boilers, but these boys after being told by the night watchman to do so, slept on the “dutch oven” of one of the boilers; the boys were either trespassers or licensees, they were not invitees.
    2. Louisiana Digest — Negligence—Par. 8, 11, 12.
    The only duty that the owner of the saw mill owes to trespassers or licensees is not to wilfully or wantonly disregard their safety.
    3. Louisiana Digest — Negligence—Par. 8, 9, 10, 11.
    Where one boy was killed and another injured by steam while they were asleep on the “dutch oven” of a boiler of a saw mill where they were either trespassers or licensees, the slight negligence of one of the employees in removing the “spider bolts” while hot water and steam remained in the boiler is not such wilful or wantonly disregard of the safety of the boys, whose presence he did not know which would hold the saw mill company liable.
    Appeal from the Fifth Judicial District Court, Parish of Richland. Hon. John R. McIntosh, Judge.

      Action by Mrs. Nellie Cannon against C. C. Mengel & Brother Company.
    There was judgment for defendant and plaintiff appealed.
    Judgment affirmed with costs.
    Matthew C. Redmond; L. F. Grigsby, of Monroe, attorneys for plaintiff, appellant.
    George Wesley Smith, of Rayville, attorney for defendant, appellee.
   ODOM, J.

On the night of November 4, 1923, Elmer and Roamy Fields, two boys, both minors, went to the saw mill plant of the defendant in Rayville, Louisiana, climbed up on what is called the “dutch oven” of one of the boilers, and went to sleep. Late in the night, and while they were asleep, steam and hot water escaped through the man head of the boiler, scalding them so badly that Elmer died and Roamy is crippled.

These boys were the grandchildren of Mrs. Nellie Cannon, the plaintiff, who brings this suit in her capacity as tutrix of Roamy Fields, who survived the accident. She asks for a large sum for the death of Elmer Fields, for the use and benefit of the brother, Roamy, and for damages in behalf of said Roamy Fields for injuries received by him and for his pain and suffering.

She alleges that said boys were invited to go upon defendant’s premises, get on the “dutch oven” and go to sleep, by the employees and agents of defendant, and that hot water and steam were permitted to escape from the boiler by and through the gross fault and negligence, of defendant’s employees.

Defendant answered, denying that its agents and employees were guilty of any negligence, and alleged that said Fields boys were trespassers upon its premises, they having gone into the engine room and upon the boiler without the invitation or consent of any of defendant’s employees who had authority to give such consent, and that said boys were invited and permitted upon defendant’s premises by one Wave Cannon, uncle of the boys, said Cannon being night watchman whose duty it was to keep trespassers off the. premises, and that said Wave Cannon violated instructions of the defendant by permitting said boys to remain; that said boys were orphans, both parents being dead, and looked to the said Wave Cannon, their uncle, for advice, shelter and protection, and that on this occasion he took charge of them and permitted them to go into the engine room and upon the boiler, where they were injured, and that he assumed all risks; and alleged that even if it be held that its employees were guilty of some negligence in permitting hot water and steam to escape from the boiler, it discharged toward said boys all the duty it owed to them under the circumstances.

The District Judge rejected plaintiff’s demands and she prosecutes this appeal.

OPINION.

The fact that hot water and steam escaped from the man-head of the boiler and scalded Elmer Fields to death and badly injured the other boy, Roamy, while they were asleep on the “dutch oven,” is not disputed. Elmer Fields was so badly scalded and burned that he died shortly after being carried to a sanitarium, and the other boy, although he survived, suffered intensely for a long period and is probably permanently injured.

But primarily, of course, the court must determine whether the defendant is liable for these injuries and damages. The lower court found and held that defendant was not at fault and rejected plaintiff’s demands.

The facts, briefly stated, are that the Fields boys, Elmer aged 15 and Roamy about 13, were orphans, their father and mother both having died when the boys were small children. They had lived with and been reared by their grandmother, Mrs. Nellie Cannon, who being a widow herself had lived with her daughters and sons-in-law. At .the time of this accident she was living in Rayville with her daughter, Mrs. Reed, and the younger of the two boys, Roamy Fields, was living in that family. The older boy, who was about fifteen years old, possibly a little older, was well grown and developed for his age and was working at the time as a saw mill hand at Dehlco, a short distance south of Rayville. On this occasion he left Dehlco, after work hours, and went to Ray-ville where he joined his younger brother. The two ate supper at a restaurant and then attended a minstrel show, the older boy paying the expenses. After the. show, the two went to the home of their uncle-in-law, Reed, Where Roamy lived, to go to bed. Reed, it seems, did not like the older boy and for that reason refused them admission to the house. It was a cold night, and not having a place to stay or sleep they sought their uncle, Wave Cannon, who was night watchman at defendant’s mill plant. Whether they went to him to get permission to sleep in or around the mill is not disclosed, but as he was their mother’s brother and the only relative they had to whom they might appeal after being turned away by Reed, presumably they looked to him for advice and protection.

When they got to the mill premises, they stopped at the engine room and found Paul Reed (not their uncle-in-law) in charge as night engineer. Wave Cannon, their uncle, was out on his rounds. He soon came in and when it came time for him to make another round, as he was required to do every hour, the younger boy went out with him. When they got back they found the older boy, Elmer, at the engine room with Paul Reed.

As to what took place and was said at the engine room when the boys first reached there and when Wave Cannon and the younger boy got back is of importance as it bears upon the status of the boys upon the premises; whether they were there and remained with Reed’s consent or invitation, or whether- they occupied the premises over his protest — in other words, whether they were invitees or trespassers upon the premises.

Paul Reed was the night engineer and had full charge and control of the engine house and boilers at night. It was his privilege and duty to keep trespassers away from the engine room. Wave Cannon, the uncle of the boys, was night watchman, whose duty it was to go over the entire mill property every hour, punch the clocks, keep trespassers away and report fires.

Reed, the night engineer, Cannon, the night watchman, and all other employees of the defendant company had specific and positive instructions not to permit any persons other than employees to loiter around or trespass upon the property, and it was expressly understood that no one should be permitted to remain at night or sleep in the engine room.

Roamy Fields, who survived the accident, testified that when he and his brother reached the engine room Paul Reed, the night engineer, invited them to sit down, and Wave Cannon and Roamy Fields both say that Reed not only invited the boys to stay but told them to get up on the boilers and go to sleep, which they did.

Reed emphatically denies this. He says he told the boys and told Cannon that they must not remain on the premises, that such was against the rules of the company, and says he told Cannon to take the hoys to the office, which was steam heated, and let them stay there, but that Cannon insisted that they would, be safe on the boilers and that they be ¡permitted to stay there during the night. He says he did not give his consent to their remaining in and around the engine room and boilers, and that he did not attempt to forcibly eject them because they were nephews of Cannon who had charge of them and that he did not want a personal encounter with Cannon.

We do not think Reed, the night engineer, invited the boys to come or remain on the premises or that he voluntarily consented thereto. His passive acquiescence under the circumstances is not equivalent to an invitation. Certain it is that the boys were not invitees of the company. They were there over the protest of the general manager. Cannon invited the boys to remain, but in doing so he not only exceeded his authority but he violated specific instructions. It was his duty as night watchman to keep trespassers off the premises. His invitation to the boys was not binding upon defendant.

The boys knew they were violating the rules of the defendant company. They were well grown and well developed for their ages. Elmer himself was a saw mill hand. They were therefore upon defendant’s property not as invitees but without any business there; they were not servants of the company and stood in no contractual relation with it. They were upon the premises for their own interest and convenience. They had no business with any employee of defendant, except their uncle, Cannon, and they sought him only for assistance in getting a place to sleep. They were therefore either trespassers or licensees upon the property, and in as much as the law makes no distinction between trespassers and licensees in so fár as the property owner’s duty to them is concerned, we shall not attempt to say whether these boys were trespassers or licensees. They unquestionably fall in the one or the other class.

As to the duty of the owner of the premises toward trespassers and licensees, the general rule is stated as follows in 20 R. C. L., page 59, section 53:

“No distinction is to be drawn, according to the general use of the terms, between persons coming within the description of ‘licensees’ and those who are trespassers. Doubtless for some purposes a licensee has greater rights than a trespasser, but in this situation they are upon an equality. The obligation owed to all such persons as are upon the premises without right is the same, merely not to wilfully and intentionally injure them; or, as it is sometimes expressed, not to injure them after becoming aware of their presence. To warrant a recovery for an injury, a trespasser must show that it was wantonly inflicted, or thatothe owner or occupant being present, could have prevented the injury by the exercise of ordinary care after discovering the danger.”

The law is similarly expressed by other text writers.

In the case of Forshee vs. Grant, 152 La. 303, 93 South. 102, the plaintiff entered the back room of defendant and while there sat down upon the head of a barrel which had on it concentrated lye and he was injured. The court found that plaintiff was not an invitee but had entered in the hope of getting a bucket of beer, and the court said:

“Having entered the wareroom without invitation, expressed or implied, the defendant owed plaintiff no greater duty than to see that he was not wantonly or purposely injured. And even if the employees of defendant waited upon plaintiff instead of putting him out of the wareroom, it was no place for loitering and the empty whiskey barrel, standing over in the corner with other barrels, boxes and junk, was in no sense an attractive nor an inviting and convenient place for repose and rest.”

In stating that the owner owes no duty to one upon his premises without invitation, express or implied, except to see that he is not wantonly or wilfully injured, the court in the cas.e cited, supra, held in line with the jurisprudence of other states.

Our own court has repeatedly held that the owner of premises does not owe to trespassers the same duty that it owes to those lawfully thereon.

Dorsey vs. K. C. P. & G. Ry. Co., 104 La. 478, 29 So. 177.

Reary vs. L. N. O. & T. Ry. Co., 40 Ann. 32, 3 South. 390.

Candiff vs. L. N. & T. Ry. Co., 42 Ann. 477, 7 South. 601.

Holmes vs. Crowell & S. Lumber Co., 51 Ann. 352, 25 South. 265.

These boys being trespassers or licensees upon defendant’s property were not entitled to the same degree of consideration and protection as they would have been if they had been lawfully upon the premises as employees or invitees. But they were unquestionably entitled to some consideration, and if the facts warrant a holding that the employees of defendant were so grossly careless in the operation of the machinery as to indicate a wanton and wilful disregard of their safety after 'their peril was discovered, or if any of the defendants or their agents or employees, being present, could have saved them after their peril was discovered and failed to do so, ¡plaintiff is entitled to recover.

The boys went to sleep on the “dutch oven” on top of the boiler. This was not a dangerous 'place. As evidence of- that fact, Paul Reed, the engineer, who was thoroughly familiar with machinery, went to sleep at the same place and was there when the hot water and steam escaped through the man-head. The danger arose only when the assistant to the night engineer attempted to prepare the boilers to be cleaned out on the following morning.

It is not contended that it was negligence to permit the boys to get upon the boilers and go to sleep. But plaintiff’s contention is that there was negligence in handling the machinery after they got on the boilers. The facts pertinent to the issue of negligence as alleged by plaintiff, are these.

The defendant used five boilers in the operation of its saw mill, numbered 1, 2, 3, 4 and 5. These boilers were all connected with steel framing and ¡pipes. It was customary to wash and clean the inside of the boilers on Sunday, and it was necessary in order to do so to let the boilers cool on the Saturday night previous. The steam and water were let out through the mud valves and then the man-head was removed so that the boilers could be washed. Reed, the night engineer, ordered Bob McDuffie, his helper, to prepare boilers 3, 4 and 5 to be cleaned, but told him not to disturb boilers 1 and 2. Bob McDuffie misunderstood him and after preparing boilers. 3, 4 and 5 proceeded to prepare the other two as well. The boys as well as Reed were on boiler number 2. In - order to open the man-head it was necessary to remove a large metal plate which covered it. This metal plate was held in place by a metal bar called the “spider” which is fastened to the boiler by bolts called “spider bolts.” The metal plate covers the man-head from the inside and is held in ¡place by pressure from within, so that when the pressure from within is removed the plate falls in of its own weight, provided the bolts are first removed. If the bolts are not first removed, the “spider” remains in place, even after the pressure from within is removed by letting out the water and steam through the mud valve.

On this occasion Bob McDuffie, the helper, removed the “spider bolts” from boiler number 2, where the boys were sleeping. On doing so, he discovered that there was still steam and water in the boiler and that the man-head could not, for that reason, be removed. He then started down a ladder to the ground, intending to open the mud valve, whereupon Wave Cannon, who happened to be there at the time and who understood what was being done, opened the valve. After the lapse of some fifteen minutes the pressure was sufficiently removed for the cap over the mud valve to fall in. When that happened, hot water and steam blew out through the mud valve and enveloped the boys and they were scalded.

Plaintiff contends that Bob McDuffie was negligent in removing the “spider bolts” while hot water and steam remained in the boiler, that the water and steam should first have been drawn and the bolts removed later, and there is testimony in the record to the effect that the latter course was the proper and prudent method to pursue. There is testimony that there was danger of the plate over the man-head falling in and léaving the man-head open in case the bolts were removed. However, there is testimony that this would not necessarily follow.

Our conclusion is that McDuffie should have first opened the mud valve and let the water and steam out and then removed the bolts, and that in failing to pursue that method he was guilty of some negligence. Although we think the negligence slight.

There was no wilful or wanton disregard of the safety of the boys. McDuffie, who is a colored man, no doubt made a mistake, but his mistake was not unnatural. Wave Cannon, the uncle of the boys, is a white man and had worked about saw mills and boilers for many years, and is presumed to know how to proceed in such cases. The testimony shows that he opened the mud valve for McDuffie. It would therefore seem that he anticipated no danger to any one. Certainly McDuffie anticipated no danger, for Paul Reed, his superior, was also asleep with the boys.

The boys were in no danger until the man-head was opened. It was then too late to save them.

Under the law cited and quoted and under the circumstances, we do not think the defendant is liable.


author: REYNOLDS, J.

text:
    No. 2573
    Second Circuit
    CROSS v. BERNSTEIN
    (March 14, 1928. Opinion and Decree.)
    (May 22, 1928. Rehearing Refused.)
    (July 2, 1928. Writ of Certiorari and Review Denied by Supreme Court.)

      (Syllabus by the Court)

    1. Louisiana Digest — Acts—Par. 23, 31, 33; Sales — Par. 211.
    Where a land owner sold to one person “a portion of lots 10, 11, 12 and 13 according to a map of 10-acre lot 31 made by W. R. Devoe, surveyor, March, A. D., 1875, and recorded in Book V of conveyances, page 338, recorder’s office, Caddo parish, Louisiana, the portion of said lots described as follows: 50 feet of each of said lots next to and adjoining the Texas & Pacific railroad, the dimensions of said land herein conveyed being 50 feet by 160 feet between parallel lines: being the same land now occupied by Gallilee Church”: and thereafter sold to another person “a portion of lots 10, 11, 12 and 13 according to a map of 10-acre lot 31 made by W. R. Devoe, surveyor, March, A. D., 1875, and recorded in Book Y of conveyances, page 338, recorder’s office, Caddo parish, Louisiana, the portion of said lots being all not heretofore sold by this vendor to John R. Jones, as per record in Book Y of conveyances, page 483; same known as Gallilee Church property, and being that portion of said lots next to the alley which divides said lots from property of John Caldwell;” both sales having been duly recorded in the conveyance records, the first purchaser will be held to have acquired all land described in his act and as shown by the map referred to and the second purchaser to have acquired only what remained of the lots described after satisfying the first purchaser’s claim.
    2. Louisiana Digest — Surveyors and Surveys — Par. 5; Acts — Par. 33.
    A “railroad” when given as a boundary of a tract of land sold, will be construed to mean the right-of-way and not the steel rails on the right-of-way.
    Int. & G. N. Ry. Co. vs. Anderson, 59 Texas 654.
    Appeal from the First Judicial District Court, Parish of Caddo. Hon. T. F. Bell, Judge.
    Action by C. L. Cross against E. R. Bernstein.
    There was judgment for defendant and plaintiff appealed.
    Judgment reversed.
    Barksdale, Bullock, Warren, Clark & Van Hook, of Shreveport, attorneys for plaintiff, appellant.
    Wise, Randolph, Randall and Freyer, of Shreveport, attorneys for defendant, appellee.
   REYNOLDS, J.

This is an action to establish the boundary between land owned by plaintiff and land owned by defendant, one of whom owns one part and the other of whom owns the remainder of lots 10, 11, 12 and 13 of 10-acre lot No. 31 on a plat of survey made in March, 1875, by W. R. Devoe, and recorded in Book V at page 338 of the conveyance records of the parish of Caddo, Louisiana.

The land in question is situated in the City of Shreveport.

Both parties deraign title to their respective properties from a common author, namely, W. H. Wise, who, by act dated November 9, 1880, recorded the same day in Book Y at page 482 of said records, sold to the author of plaintiff’s title a part of said lots under the following description:

“A portion of lots 10, 11, 12 and 13 according to a, map of 10-acre lot No. 31 made by W. R. Devoe, surveyor, March, A. D., 1875, and recorded in book V of conveyances, page 338, in the recorder’s office of Caddo parish, Louisiana. The portion of said lots described as follows: 50 feet of each of said lots next to and adjoining the Texas & Pacific railroad: the dimensions of said land herein conveyed being 50 feet by 160 feet between parallel lines; being same land now occupied by Gallilee church.”

and who, by act dated January 3, 1882, recorded the same day in Book Z at page 582 of said records, sold to the author of defendant’s title the remainder of said lots under the following description:

“A portion of lots 10, 11, 12 and 13 according to a map of 10-acre lot No. 31 made by W. R. Devoe, surveyor, March, A. D., 1875, and recorded in Book Y of conveyances, page 338, in the recorder’s office of Caddo parish, Louisiana. The portion of said lots being all not heretofore sold by this vendor to John R. Jones as per record in Book Y of conveyances, page 483. Same known as Gallilee church property, and being that portion of said lots next to the alley which divides said lots from property of John Caldwell.”

Plaintiff alleges that the boundaries of his property are as follows: Beginning at the junction of the southerly line of lot 13 with the westerly boundary of the right of way and thence along said westerly boundary southward 160 feet to the southwest corner of lot 10 or the junction of the southerly line of lot 10 with the westerly boundary of the right of way, thence westerly, along the southerly line of lot 10, 50 feet, thence northerly, by a line parallel to the westerly boundary of the right of way, 160 feet, to the southerly line of lot 13, and thence along the southerly line of lot 13, 50 feet to the westerly boundary of the right of way, the place of beginning.

Defendant alleges that the boundary between the two properties is where a certain fence, formerly stood and which fence, he alleges, was in existence prior to the year 1880 and continued to be in existence until removed by ¡plaintiff about six months prior to the filing of this suit.

Between the boundary claimed by plaintiff and that claimed by defendant lies a strip of ground extending 160 feet from the north line of lot 13 to the south line of lot 10 and having a width of 12.00 feet on its north line and 7.8 feet on its south line.

Defendant further alleges that he and his authors in title have been in adverse possession of this strip of ground, as owners, since the year 1882, and he pleads the prescription of 10 and 30 years in bar of any claim the survey to be made might show plaintiff had to this strip.

A survey of the property claimed by plaintiff and that claimed by defendant was made by H. E. Barnes and H. H. Jenkins, surveyors, who made a plat and proces verbal of the survey and returned it into court.

The proces verbal recites:

“We located the line between lots 13 and 14 of ten-acre lot 31, ¡per map- recorded in Book V page 338. This map only shows a portion of ten-acre lot 31, but by the use of map in book O, page 969, we have the distance shown for the depth of lots facing Texas avenue 150 feet and the alley in the rear of same 20 feet. We therefore set a stake at the corner of lots 13 and 14 on the alley. The deed to C. L. Cross calls for 50 feet of lots 13, 12, 10 and 11 adjoining the V. S. & P. right of way. Therefore the intersection of the right of way line with the line between lots 13 and 14 became the starting point. To fix this point, we find deed recorded in Book L page 536 calls for the Y. S. & P. having 75 feet from the center of main line. We therefore laid off this 75 feet and set stake op the line between lots 13 and 14. Thence measuring the resulting depth of lot 13, after fixing the alley corner from .Texas avenue and the rear corner from the main line of V. S. & P. R. R. we find 95.75 feet; of which we laid off 50 feet to Cross, and 45.75 feet to Bernstein. We thence established the south line of lot 10 of ten-acre lot 31, and by the same method of measurement from the railroad, we found a resulting depth of 92.9 feet; of which we laid off 50 feet to Cross, and 42.9 feet to Bernstein; thus fixing a line parallel to the right of way and 50 feet therefrom. This line, which is marked A-B on plat attached hereto and made a part hereof, shows the building owned by Bernstein to be 11.0 feet over the line and the existing fence between the two properties to be 12.0 feet east of stake A and 7.8 feet east of stake B. Our survey is made from the 75 foot right of way line of the V. S. & P. Ry. Co. and the line to be established depends on the location of the right of way line.”

On these issues the case was tried and there was judgment establishing the boundary along the old fence line, as contended for by defendant, and plaintiff appealed.

OPINION.

In 1880 W. H. Wise owned and was in possession of lots 10, 11, 12 and 13 of ten-acre lot No. 31 according to plat of survey made by W. R. Devoe, surveyor, in March, • 1875, recorded in conveyance record V • at page 338 of the public records of Caddo parish, Louisiana.

This map was filed in evidence, and it shows these lots to be bounded on the east by the right of way of the Texas & Pacific Railway Company or of the Vicksburk, Shreveport & Pacific Railway Company. It shows • the lots to have a width of 40 feet each but does not show their depth. It shows them to be bounded on the east by the right of way in question and on the west by an alley.

The survey made by Barnes and Jenkins shows the lots to be bounded on the east by the right way and on the west by the alley and to have a width of 40 feet each; and it shows the depth of lot 13 on its northern line to be 95.75 feet and the depth of lot 10 on its southern line to be 92.9 feet.

On November 9, 1880, by act recorded the same day, Wise sold to John R. Jones a strip of the eastern side of the lots 50 feet wide, as per description copied above. He added to the description: “Being the same land now occupied by the Gallilee church.”

By act dated September 2'4, 1888, recorded the same day in Book 6 at page 367 of the conveyance records of Caddo parish, Jones sold the same property to the Gallilee Colored Baptist Church, by the same description, to which he added: “And being the portion of said lots now occupied by said Gallilee Church and being the same property acquired by this vendor from Wm. H. Wise, as per act of sale recorded in conveyance book Y page 482 of- said recorder’s office.”

On January 3, 1882, by act recorded the same day in book Z at page 582 of said records, William H. Wise sold to Jesse Johnson the remainder of lots 10, 11, 12 and 13, as per description above copied.

By act dated August 6, 1885, recorded the same day in book 3 at page 16 of said records, Jesse Johnson sold to Scott Williams

“* * * all that portion of 10-acre lot 31 of the city of Shreveport, Louisiana, as per map of said 10-acre lot recorded in book of conveyances Y page 338 of the recorder’s office of Caddo parish, Louisiana, not heretofore sold by W. H. Wise to John R. Jones as ¡per deed in Book Y page 483, together with the buildings and improvements thereon. Being the same property now occupied by the said Scott Williams as a residence.”

By act dated , November 16, 1887, recorded the same day in book 4 page 786 of said records, Jesse Johnson sold to Harry Roberson

“* * * all that portion of lots 10 and 11 of 10-acre lot 31 of the city of Shr’eveport, Louisiana, as per map of said 10-acre lot recorded in conveyance book V page 338 of the recorder’s office of Caddo parish, Louisiana, not heretofore sold by W. H. Wise to John R. Jones as per deed recorded in book Y page 483 of said recorder’s office, together with all the buildings and improvements thereon.”

Defendant acquired the property purchased by Williams and Roberson through mesne conveyances and by the same descriptions.

The survey made by Barnes and Jenkins shows that the property occupied by the Gallilee church did not embrace all oí the land claimed by plaintiff, to-wit: fifty feet off of each of the lots 10, 11, 12 and 13 next to and by a line parallel to the right of way, and that it did embrace a part of the right of way, approximately 37 feet east and, west by approximately 156 feet north and south; that part of the land claimed by plaintiff and not occupied by the church being the strip of ground lying between the fence claimed by defendant as the boundary and the line fixed by the survey of Barnes and Jenkins as the boundary.

Defendant contends that the statement in the sale from Wise to Jones “being the same land now occupied by Gallilee church” controls that part of the description in the sale “a portion of lots 10, 11, 12 and 13 of 10-acre lot. No. 31 * * * the portion of said lots described as follows: 50 feet of each of said lots next to and adjoining the Texas & Pacific railroad: the dimensions of said land herein conveyed Being 50 feet by 160 feet between parallel lines” and that as the church did not occupy any -land west of or beyond' the fence, Wise did not intend to sell nor Jones to buy any land beyond or west of the fence, and that inasmuch as defendant’s author in title, Jesse Johnson, bought all of the lots except the part thereof sold by Wise to Jones, Jones intended to sell and Johnson to buy up the fence, and that therefore the fence is the boundary between the property of plaintiff and that of defendant.

We cannot concur in this view. If the argument were sound, it would put Wise in the position of intending to sell and Jones of intending to buy a part of the right of way of the railway company, since, as stated above, the Gallilee church was occupying a part of the right of way.

The first description of the land sold in the sale from Wise to Jones is particular and the second description, if it be called such, is a general one, and it is well settled that a specific or particular description is not controlled by a general one.

“A specific or particular description in a deed is not controlled by a general description, stating that the land specifically described is the same land as was acquired by a patent to the vendor, as the latter description is not sufficient to put third persons on notice of just what land has been conveyed.”

Bender vs. Chew, 129 La. 849.

At the time of the sale by Wise to Jones the Gallilee church had never owned the property it occupied and was occupying it as a mere licensee.

Defendant complains that the surveyors in making the survey under order of court exceeded the authority given them by Articles 841 and 845 of the Civil Code and went outside of the respective titles o.f the parties and located the northwest corner of lot 13 from other sources, and that it was error for them to take into consideration the western boundary of the right of way of the railroad as shown on the Devoe map in locating the eastern boundary of lots 10, 11, 12 and 13.

In our opinion there was no greater reason for the surveyors to take as a starting point the corner contended for by defendant than there was for taking the line of the right of way, for the reason that both are shown on the Devoe map. The map shows the right of way to be the southeast boundary of the lots, and in establishing the boundary between contiguous properties all proof possible should be brought to bear on the question of its true location.

Bergeron vs. Babin, 2 La. App. 605.

Defendant insists that there is a marked distinction between the words “right of way” and the word “railroad.”

In our opinion, when the word “railroad” is used to describe a boundary of land, it means the railroad right of way. Steel rails alone do not constitute a railroad any more than a right of way does. All property essential to the operation of trains constitutes a railroad and not any individual part of railroad property.

“ ‘Railroad’ in its ordinary acceptation, fairly includes all the structures which are necessary and essential to its operation, and as used in a congressional grant in aid of a construction of a railroad has a more extended signification than ‘track’ or ‘roadway,’ and includes station houses, etc.”

Words & Phrases, vol. 7, page 5901.

“In common parlance a railway consists of the road and the rolling stock. The former includes everything that is immovable or affixed to the soil, such as station houses, round houses, platforms, water tanks, and machine shops. The road cannot be operated without these, or considered constructed until they are built. A license to take material for the construction of a railroad should not be confined to material necessary for the construction of the mere track.”

Ibid.

“The word ‘railroad’ shall be held to include, in addition to the track of said railroad, including the rails, couplings, spikes, ties, bridges, culverts, tunnels, cuts, fills, embankments, and the land owned by the right of way of such railroad, all the structures, fixtures, improvements, and buildings of said railroad owned thereon or used in connection therewith.”

Ibid.

There is no evidence showing when or by whom or for what purpose the fence around Gallilee church was built nor any suggestion that it was intended to mark the boundary between the property sold by Wise to Jones and that sold by him to Johnson. The probabilities are that it was built by the church authorities to keep trespassers away from the church and the church congregation not then owning the land and being mere licensees and having no. interest to erect the fences on any particular lines erected them where they pleased.

The law and the evidence convinces us tht the boundary between the property of plaintiff and the property of defendant is as fixed by the survey made under order of court by the surveyors, H. E. Barnes and H. H. Jenkins, and it is therefore ordered, adjudged and decreed that the judgment appealed from be annulled, avoided and reversed, and it is now ordered, adjudged and decreed that there be judgment in favor of the plaintiff, C. L. Cross, and against the defendant, E. R. Bernstein, fixing and establishing as the boundary line between their respective properties the line “A”-“B” as shown on the proces verbal and plat' or1 survey made by them under order of court in this suit, which plat and proces verbal are made part of this judgment by reference. Defendant to pay all costs.


author: MOUTON, J.

text:
    No.-
    First Circuit
    MARTEL v. ROVIRA
    (May 8, 1928. Opinion and Decree.)

      (Syllabus by the .Editor)
    1. Louisiana Digest — Action—Par. 12.
    Where more land was seized than was owned by defendant, he cannot complain of the. excess seized because he has no. interest in the matter.
    2. Louisiana Digest — Execution—Par. 33, 65.
    The undivided interest of an owner in a tract of land is intangible and incorporeal, and in such a case service of the notice of seizure on the debtor is sufficient although actual seizure is impossible.
    3. Louisiana Digest — Injunction—Par. 15; Execution — Par. 82, 83, 85.
    The judgment debtor had no ground for injunction because of the premature execution of the judgment from which he could have perfected his right by a timely appeal.
    Appeal from the Parish of St. Mary. Hon. James D. Simon, Judge.
    Action by J. Sully Martel against Edwin J. Rovira.
    There was judgment for defendant and plaintiff appealed.
    Judgment affirmed.
    J. Sully Martel, of Franklin, attorney for plaintiff, appellant.
    Borah, Himel, Block and Borah, of Franklin, attorneys for defendant, appellee.
   MOTION TO DISMISS.

MOUTON, J.

Under the ruling of the Supreme Court in this case we think plaintiff has a right of appeal, and the motion to dismiss is therefore denied.

MERITS.

In execution of a judgment obtained by Rovira against Martel, the Sheriff seized the undivided interest of the latter in a tract of land in the Parish of St. Mary. Martel applied for an injunction to arrest the sale under the seizure. The Court ordered defendant, seizing creditor, to show cause why a preliminary writ of injunction should not be granted, and at the same time issued a restraining order compelling the Sheriff to desist from selling the property pending the application for the injunction.

The restraining order was signed June 10, 1927, while the sale was advertised for June 11, 1927, and was therefore not consummated as advertised.

The injunction and restraining order were obtained by plaintiff on the following grounds:

(a) That plaintiff was warrantor for part of the land seized which he had sold to Stafford, Feitel and Cherry; and that more of the undivided interest had been seized than he owned.

(b) That the seizure was illegal because the Sheriff had not taken actual possession of the property.

(c) That the writ of fi. fa. had been issued prior to the expiration of ten (10) days from service of the notice of judgment.

On an exception of no cause or right of action levelled against the petition for the issuance of the temporary injunction, the restraining order was dissolved, and judgment was rendered against plaintiff and his sureties for an amount less than twenty per cent (20%) of the amount of the judgment that had been enjoined.

Plaintiff was not called under his obligation of warranty to Stafford, Feitel and Cherry to protect their property from an illegal seizure, unless he appeared as their agent. He could not voluntarily champion their rights, and arrest the sale. This duty rested upon his vendees. Vance vs. Noel, 143 La. 479, 78 So. 741; Connell vs. Bernhardt Paint Co., 163 La. 590, 112 So. 495; Champomier vs. Washington, 2 La. 722. Their silence might he taken as an acquiescence in the seizure. Nor can plaintiff complain that more land was seized than he owned. The proprietors that owned the excess land might complain, but not the plaintiff, who cannot champion their rights. Gusman vs. Leopold, De Poret, 33 Ann. 336.

In the case reported in Martel vs. Jennings-Heywood Oil Syn., 114 La. 903, 38 So. 612, the court said that a judgment recognizing a joint owner’s right in property, cannot be enforced by means of the writ of possession. It would be impossible says the Court, for the Sheriff to execute such a writ. For the same reason it would be impossible for the Sheriff to take actual possession of an undivided interest in a tract of land. Such an interest is an ideal or abstract right, and cannot be actually seized. The right of inheritance for instance, is an intangible, incorporeal thing that can be conceived only by the understanding; and the only way such a right can be seized is by service of the notice of seizure on the owner of the right. Billeaudeaux vs. Manuel, 159 La. 149, 105 So. 256; Heirs of W. E. Fly vs. Eli Noble, 37 Ann. 667. The undivided interest of an owner in a tract of land is likewise intangible and incorporeal, and in such a case service of the notice of seizure on the debtor is sufficient. Actual seizure in this case was not possible, and could not be effected.

The third and last complaint of the plaintiff is that the fi. fa. was issued within ten (10) days from notification of the judgment. This right is in the interest of the defendant and us it does not affect public order he may waive it. C. P. 567; Regan vs. Washburn, 39 Ann. 1071, 3 So. 178. This delay is granted the judgment debtor to consider whether or not he will take a suspensive appeal. Even when he takes a devolutive appeal, his right to suspend the judgment may be, considered as waived. Legget & Bros. vs. Potter, 9 La. Ann. 309. Thq judgment creditor may take the risk of a premature execution, and if not suspended by a suspensive appeal, the execution will be given effect. Regan vs. Washburn, 39 Ann. 1074-5, 3 So. 178. Plaintiff had therefore no ground for injunction because of the premature execution of the judgment, from which he could have perfected his right by a timely appeal.

The restraining order was properly set aside and judgment was correctly rendered against defendant and his sureties.


author: WEBB, J. Per curiam.

text:
    No. 3172
    Second Circuit
    LeSUER v. RUMBAUGH, ET AL.
    (March 14, 1928. Opinion and Decree.)
    (May 28, 1928. Rehearing Refused.)

      (Syllabus by the Editor)
    1. Louisiana Digest — Master and Servant —Par. 154, 160 (e).
    Under the Workmen’s Compensation Act Section 20 of Act 20 of 1914, as amended, regarding time for modification and review of judgments, the judgment pronounced must be in accordance with the law as it stands at the time of the judgment.
    Appeal from the First Judicial District Court, Parish of Caddo. Hon. Robert Roberts, Judge.
    Action by Gordon Le Suer against O. E. Rumbaugh, et al.
    There was judgment for plaintiff and defendants appealed.
    Judgment reversed.
    George T. McSween, of Shreveport, attorney for plaintiff, appellee.
    . Cook and Cook, of Shreveport, attorneys for defendants, appellants.
   WEBB, J.

The plaintiff was injured in May, 1926, he instituted an action to recover compensation under the Employers’ Liability Act (Act No. 20 of 1914) on November 4, 1926, and judgment was rendered in his favor on February 12, 1927, from which the defendants appealed, and the judgment was affirrñed on June 27, 1927. _ .

On August 27, 1927, the defendant filed a rule on plaintiff to show cause why the the judgment should not be modified, to which the plaintiff, defendant in rule, filed exceptions of no cause of action and prematurity, which were submitted on the face of the record, and the exceptions of prematurity being sustained and the rule discharged, defendants, plaintiffs in rule, appeal.

Relative to modification and review of the judgments, the statute in effect at the time of the injury or disability was as follows:

“That a judgment of compensation may be modified at any time by subsequent agreement between employer and employee or his dependent, with the approval of the Judge of the court that rendered the judgment sought to be modified, or any time after one year after said judgment of compensation shall have become operative, it may be reviewed by the Judge of the court that rendered the judgment sought to be modified upon the application of either employer or employee, on the ground that the incapacity of the employee has. subsequently diminished or increased,” etc. (Sec. 20, Act No. 20 of 1914; Amd. Act No. 38 of 1918).

And at the time of the suit and date of the judgment, the statute provided:

“That a judgment of compensation may be modified by subsequent agreement between the parties, with the approval of a Judge of a court which rendered the judgment sought to be modified, at any time after six months after said judgment of compensation shall have been rendered by the Judge of the trial court it shall be reviewed by a Judge of the court that rendered the judgment sought to be modified upon the application of either, party, on the ground that the incapacity of the employee has been subsequently diminished or increased, or upon the ground that the judgment was obtained through error, fraud or misrepresentation * * * .” (Sec. 20, Act No. Í4 of 1920, Amd. Act. No. 85 of 1926.)

The appellant, while recognizing the universal rule that laws, in default of a clear expression to the contrary, should not be given retrospective operation, urges that the provision for reviewing judgments rendered under the statute relates to the remedy and that the general rule is not applicable, while, as we understand, the appellee urges that the provision is not remedial, but, if so, the matter relates to the right itself, and is indistinguishable therefrom, and that appellee having been injured at a time when the statute entitled him to a judgment for compensation which could be modified only after one year from the date the judgment became operative he had a vested right which could not be affected by subsequent legislation.

Conceding that the plaintiff acquired a vested interest in the right of action given under the statute, the right of action was to recover compensation during the period of his disability, and not a right to recover compensation beyond the period of his disability, and we do not think appellee could be said to have had a vested interest only in the right to recompensation during the period of his disability.

The provision fixing a period within which the judgment under the statute could not be modified, was not to provide for compensation beyond the period of disability, but, we think, was merely to determine a time in which the conditions existing at the date of the judgment wouldt be presumed to continue, and considered in its most favorable view, we think that such period should be determined by the period fixed under the statute at the date of the judgment.

The judgment pronounced in any proceedings must be according to the law as it stands at the time of the judgment (Cooley, Const. Limit., 8th ed., page 756) and the statute at the time of the rendition of the judgment (which was conclusive of all matters and defenses available at that time) providing that it should so remain for a period of six months thereafter, after which time it could be modified, and it appearing that such period of time had elapsed since the rendition of the judgment, when the action was instituted to modify it, we think that the pleas of no cause of action and prematurity should have been overruled.

We do not think that this ruling would be inconsistent with the decision cited by counsel, Daniels vs. Shreveport Producing & Refining Corporation, 151 La. 800, 92 So. 341, or that it is, in so far as the judgment sought to be modified is concerned, giving retrospective operation to the statute.

The judgment appealed from is therefore annulled, avoided and reversed, and it is now ordered that the exceptions of no cause of action and prematurity be overruled, and the cause remanded for further proceedings and according to law.

ON APPLICATION FOR REHEARING

Per curiam.

Rehearing refused. We think this case is controlled by the principle announced in the following cases:

Smolen vs. Industrial Commission, et al., Supreme Court of Illinois, December 23, 1926; 154 N. E. 441, (324 Ill. 32).

Arnold & Murdock Co. vs. Industrial Commission, 314 Ill. 251, 145 N. E. 342, (40 A. L. R. 1470).


author: WEBB, J.

text:
    No. 2484
    Second Circuit
    LEA v. EXCHANGE NATIONAL BANK
    (May 22, 1928. Opinion and Decree.)

      (Syllabus by the Editor)

    1. Louisiana Digest — Deposit—Par. 7.
    Where one borrows property which he is unable to restore through his negligent care, he should at least account for the value of the property at the date of the deposit in default of proof that the value of the property had depreciated through causes not attributable to his fault, and was of less value than at the time of the deposit.
    Appeal from the City Court of Shreveport. Hon. David B. Samuel, Judge.
    Action by Allen C. Lea against Exchange National Bank.
    There was judgment for plaintiff and defendant appealed.
    Judgment affirmed.
    J. M. Grimmet, of Shreveport, attorney for plaintiff, appellee.
    C. H. Lyons, of Shreveport, attorney for defendant, appellant.
   WEBB, J.

The plaintiff, A. C. Lea, filed this action to recover judgment against defendant for the restoration of certain furniture loaned by him to defendant, or its value, and defendant appeals from a judgment awarding plaintiff the amount alleged as the value of the furniture, subject to the right of defendant to restore certain pieces of the furniture at a value fixed in the judgment, the aggregate to be credited on the judgment, and defendant appealed.

The evidence conclusively establishes that plaintiff had loaned the defendant the furniture described in the petition, and that, with the exception of a few pieces, defendant cannot restore it, and both parties concede their rights should be determined under the law relative to deposit (C. C., Tit. XIII, Arts. 2926, et seq.) under which defendant was bounded to preserve the thing deposited and restore it to the plaintiff on demand (C. C., Arts. 2928, 2944; Whatley vs. Austin, 1 Rob. 21), and in default of ability to restore the property, that under the pleadings defendant should account for its value; but defendant contends that the value must be determined as of the date of the demand for restoration, and the value of the property at the date of the deposit cannot serve as the basis to determine the value at the date of the demand for restoration, and, if it may be considered, that the evidence does not establish with legal certainty the value of the property at the date of the deposit.

Considering the contentions in an inverse order, the evidence as to the value of the property at the date of the deposit was the estimate of its value made at approximately that time, by a dealer in the class of furniture deposited, and as there was not any evidence in conflict therewith, we think that such evidence was sufficient to fix the value of the property at the time of the deposit.

The evidence further establishing that defendant had parted with the possession of the property, and, with the exception of a few pieces, it was impossible for it to make restoration, and it appearing that defendant did not know when it parted with possession of the property or into whose possession it had passed, it was impossible for plaintiff to have established the value of the property at the time of the demand, and conceding it was incumbent upon plaintiff to establish the value of the property at such time, he should not be held in default for failure to produce evidence which it was impossible for him to procure by reason of the fault of defendant in failing to retain possession of and preserve the deposit.

The contractual obligation of defendant was to preserve the property and restore it when demanded, and while defendant, if it had preserved the property and offered to return it when demanded, could not be held responsible for deterioration or depreciation, which may have followed from a prudent use of the property for the purposes for which it was destined (it being loaned for such use) or from a decrease in the market value of the property (Berard vs. Boagni, 30 La. Ann. 1125) yet when the defendant in violation of its obligation to preserve the property has rendered it impossible for the plaintiff to fix the value of the property solely with reference to the date of the demand for its restoration, we think that the value of the property at the date of the deposit should be accepted as the value at the date of the demand for restoration in default of any evidence showing that the property had deteriorated or that its market value had decreased.

The obligation of defendant to preserve and restore the property was fiduciary in its nature and in event of its inability to restore the property, through its negligent care, we think tha't it should at least account for the value of the property at the date of the deposit, in default of proof that the value of the property had depreciated through causes not attributable to its fault, and was of less value than at the time of the deposit.

Plaintiff, A. C. Lea, died pending the appeal, and his wife and daughter having been made parties, the judgment appealed from is amended so as to substitute Mrs. L. B. Lea and Miss L. B. Lea, as parties plaintiff, and, as amended, the judgment is affirmed at defendant’s cost.


text:
    No. 3266
    Second Circuit
    UNION MOTOR CO., INC., v. WILLIAMS, ET AL.
    (May 22, 1928. Opinion and Decree.)

      (Syllabus by the Court)

    1. Louisiana Digest — Constitution and Constitutional Law — Par. 11.
    “District Courts * * * shall hold continuous sessions during ten months of the year * * * In each district composed of more than one parish, the judge shall sit alternately in each parish, as the public business may require.”
    ■ Section 43, Article VII, Constitution of Louisiana.
    2. Louisiana Digest — Courts—Par. 57.
    Under the rules of the Third Judicial District Court of Louisiana, that court is in session continuously from the first Monday in September each year until the end of the month of June the following year.
    3. Louisiana Digest — Citation and Appearance — Par. 7.
    “The delay to be expressed in the citation consists of ten days, to be counted from the time the citation has been served, which are allowed the defendant to comply with the demand'of the petition * * * ”
    Code of Practice, Article 180.
    4. Louisiana Digest — Judgment—Par. 31, 35, 38.
    “If the defendant do not appear either in person or by his advocate after the delay provided by law, the plaintiff may take a judgment by default against him.
    Code of Practice, Article 310.
    5. Louisiana Digest — Judgment—Par. 40, 41, 42.
    “If two days (whether judicial or 'nonjudicial, but exclusive of Sundays and legal holidays) after the first judgment has been rendered, the defendant neither appear nór file his answer, definitive judgment will then be given for the plaintiff, provided he prove his demand * * * ”
    Code of Practice, Article 312.
    Appeal from the Third Judicial District Court, Parish of Union. Hon. S. D. Pearce, Judge.
    Action by Union Motor Company, Inc., against W. L. Williams, et al.
    There was judgment- for plaintiff and defendants appealed.
    Judgment affirmed.
    Dhu Thompson, of Ruston, attorney for plaintiff, appellee.
    H. G. Fields, of Farmerville, attorney for defendants, appellants.
   STATEMENT OF THE CASE

REYNOLDS, J.

This is an appeal from a judgment refusing to set aside as prematurely rendered a judgment by default and the judgment of confirmation entered thereon.

On December 28, 1927, plaintiff, Union Motor Company, Inc., a corporation, brought this suit against the defendants, W. L. Williams, Harris Williams and Ernie Williams, seeking judgment against them in solido on two promissory notes for $905.24 with interest thereon at the rate of 8 per cent per annum from January 1, 1927, until paid, and 10 per cent on the amount of principal and interest as attorney’s fees. Citation, addressed to each of the defendants, was issued the same day and personal service on each of them was had on December 30, 1927, about thirty miles from the court house in Union Parish.

On January 23, 1928, on motion of counsel for plaintiff judgment by default was entered against all three defendants.

On January 26, 1928, a judgment confirming the default, in words and. figures as follows, was read and signed in open court:

“Union Motor Company, Inc. No. 8932 vs. In the Third District Court, Union parish,
“W. L. Williams, et al. Louisiana.
“In this cause, a judgment of default having duly and regularly entered against the defendants, and two clear days having elapsed thereafter without the same being set aside, or answer filed, the plaintiff having proven its demand in open court, and the law and the evidence being in favor thereof, It is ordered, adjudged and decreed that the default heretofore entered herein be now confirmed and made final, and that there be judgment in favor of the plaintiff, Union Motor Company, Inc., and against the defendants, W. L. Williams, Harris Williams and Ernie Williams, in solido, for the full and true sum of nine hundred and five and 24-100 ($905.24) dollars with eight per cent, per annum interest thereon from January 31st, 1927, until paid, and ten per cent additional on the amount thereof as attorney’s fees, and for all costs of this suit.
“Thus done, read and signed in open court on this the 26th day of January, A. D. 1928.
(Signed) “S. D. Pearce,
“Judge.”

On the same day, January 26, 1928, the defendants moved to set aside the judgment by default and the judgment of confirmation and for a 'new trial, on the following grounds:

“That the judgment rendered herein was prematurely rendered on a default taken the first day of court, with no intervening term, and in contravention to the rules of this court.
“That this suit was filed in December, service made December 28th, and the first day of the next term of court was on January. 23rd, Monday being the first day of said court; and that under the rules of this honorable court a default shouxd have been taken on the 24th or any day thereafter, and that the said default and confirmation were premature, (and) illegal, and the judgment is illegal.
“That the judgment rendered herein is contrary to the law and the evidence; that there should not have been judgment rendered in solido against your defendants.”

A trial was had on the motion and there was judgment overruling it and the defendant appealed.

OPINION

Defendants concede, in their brief, that—

“the time the defendant has to answer rules of course, both in vacation and term time.”

and that—

“whenever tha1) delay expires without any answer having been filed a default may be taken”;

but contends that a default may not be taken—

“on the first day of the term”

even though the delay for answering have then expired, and that—

“the default * * * was entered * * * and taken * * * on the first day of a regular term of court, as fixed by the court following the induction of the presiding judge of that court into office.”

The constitution, section 43 article VII, requires that—

“District Court, * * * shall hold continuous _ sessions during ten months of the year ‘ * * * In each district composed of more than one parish, the judge shall sit alternately in each parish, as the public business may require.”

The rules of the Third Judicial District Court were filed in evidence and they show, amongst other things, the following:

“Farmerville, Union Parish, Louisiana,
“December 15th, 1924.
“Court met this date pursuant to adjournment, with the following officers present:
“Hon. S. D. Pearce, Judge.
“W. J. Hammons, District Attorney.
“Joe Ramsey, Dy. Sheriff.
“W. B. Dawkins, Dy. Clerk of Court.
“Order I.
“SESSIONS OF THIRD DISTRICT COURT
“It is ordered that the sessions of the Third District Court of the state of Louisiana shall be as follows:
“Beginning with the first Monday in January of the year 1925, and each year thereafter, the court will hold continuous sessions, except during the months of July and August of each year, which two months shall constitute the vacation period of the court; and during the remaining ten months the sitting of the court, shall alternate between the parishes of Lincoln, Jackson and Union, and the regular sittings shall be as follows:
“Beginning on the third Monday of each month, except vacation months, and continuing for one week, if necessary, the court shall sit in Union parish.
“The fourth week of each month, except vacation months, and the remainder of the time prior to the beginning of the next monthly round, shall be given to the transaction of the business of the court of either of the parishes which may be carried over from that parish for lack of time at the regular sitting to dispose of it, consideration to be given to the more urgent needs of the public business.”

The minutes of the Third Judicial District Court of Louisiana while sitting in and for the parish of Union at the sitting immediately preceding that at which the default was taken and of that at which the default was taken reads as follows:

“Farmerville, Union parish, Louisiana,
“December 21, 1927.
“Court met this date pursuant to adjournment, with officers present as before. Minutes of December 20th read and approved.
“Whereupon court adjourned until 10:00 o’clock A. M., Monday, January 23rd, 1928.
“Read and approved this the 23rd day of January, A. D. 1928.
“Attest:
“W. B. Dawkins,
“Dy. Clerk of Court. S. D. Pearce, Judge Third District of Louisiana.”
“Farmerville, Union parish, Louisiana.
“January. 23rd, 1928.
“Court met this date pursuant to adjournment, with the following officers present:
“Hon. S. D. Pearce, Judge.
“Wm. J. Hammon, District Attorney.
“Joe Ramsey, Dy. Sheriff.
“W. B. Dawkins, Dy. Clerk.
“Minutes of December 21st read and approved.
“No. 8932. Union Motor Co., Inc., vs. W. L. Williams, et al.
On -motion of plaintiff’s counsel, case is defaulted.
“Whereupon court adjourned until 9:00 o’clock A. M. to-morrow morning.
“Read and approved this the 24th day of January, A. D. 1928.
“Attest:
“W. B. Dawkins, S. D. Pearce,
“Dy. Clerk of Court. Judge Third District of Louisiana.”

In Carr vs. Louisiana Central Lumber Co., 137 La. 419, 68 So. 747, the question was, whether a default taken upon failure to comply with a rule to show cause made returnable on a day not within a regular term of court was valid, and the Court said:

“Our opinion, however, is that the district court was in session during the proceedings complained of, and that the judge had authority to order the preliminary default entered in this case.
“Article 117 of the constitution provides that the district courts shall hold continuous sessions during ten months of the year, and that, in districts composed of more than one parish, the judge shall sit alternately in each parish as the public business may require. The Thirtieth Judicial District, in which this suit is pending, is composed of two parishes, Caldwell and La Salle. Section 3 of - Act No. 163 of 1898, carrying out the provisions of the constitution of 1898, provides:
“ ‘That it is the intent. and meaning of article 117 of the Constitution that district courts shall always be open and the proceedings held to be in open court, while the judge is on the bench, and that the fixing of sessions in districts composed of more than one parish shall not affect the authority or duty of the judge to sit at any time in any of the parishes of his district when the public interest may require it.’
“In the case of State vs. Freddy, 118 La. 468, 43 South. 53, affirming State vs. Winters, 109 La. 3, 33 South. 47, the proceedings were held valid, under the above quoted provisions, of the Constitution and statute of 1898, where the district judge, out of a regular term, ordered the jury commissioners to draw a special jury and tried the defendant for the commission of a felony.
“In the case of State vs. Thompson, 121 La. 1051, 46 South. 1013, it was held that the designation of certain terms for civil business and other terms for criminal business was merely a matter of convenience; that the district court was always open * * * ”

To the same effect is Lawrason vs. Swartz, 132 La. 511, 61 So. 382.

Our conclusion is that under the law and the rules of the Third Judicial District Court of Louisiana the. default and judgment entered thereon in this case were valid and consequently the judgment denying defendants’ application for a new trial was correct, and accordingly it is affirmed.


author: ELLIOTT, J.

text:
    No.-
    First Circuit
    SLOANE v. FRANCHEBOIS
    (May 8, 1928. Opinion and Decree.)

      (Syllabus by the Editor.)

    1. Louisiana Digest — Evidence—Par. 69, 72.
    Previous difficulties aid in understanding the motives, conduct, apprehensions, impulses and acts of the parties which resulted in and precipitated the shooting. Therefore, previous difficulties between the parties and communicated threats can be proved and taken into account.
    2. Louisiana Digest — Homicide—Par. 30,34.
    Whenever a man undertakes self-defense, he is justified in acting on the facts as they appear to him. If without fault or carelessness he is misled concerning them and defends correctly according to what he thus supposes the facts to be, the law will not punish him, though they are in truth otherwise, and he has really no occasion for the extreme measure.
    3. Louisiana Digest — Homicide—Par. 27, 32; Death by Wrongful Act — Par. 3.
    Where the parties in a shooting affray had previous difficulties and knew each other to be enemies, it was the fault of one of the parties although unarmed but immediately followed by a son with drawn pistol to approach an enemy, thus provoking the difficulty which caused his death.
    Appeal from the Parish of St. Landry. Hon. B. H. Pavy, Judge.
    Action by Mrs. Julia Sloane against Mrs. Bernadette Franchebois, individually, and as natural tutrix.
    There was judgment for defendant and plaintiff appealed.
    Judgment affirmed.
    L. Austin Fontenot and H. G. Brunson, of Opelousas, attorneys for plaintiff, appellant.
    Dubuisson, Perault and Burleigh, of Opelousas, attorneys for defendant, appellee.
   ELLIOTT, J.

As John Childs walked up toward Joseph Cormier who was standing at the end of the table on which the voting in the primary election of April 9, 1924, at Plaquemine Point in the Parish of St. Landry was in progress, said Cormier drew his pistol and killed him.

Mrs. Julia Sloane, widow of John Childs, in her capacity of widow, claims of Bernadette Franchebois, widow of Joseph Cormier, individually, and as natural tutrix of his children, $12,150.00 in damages on account of the death of said Childs at the hands of said Cormier.

She alleges in her petition that said killing was without just cause or provocation and that her husband in no way contributed to the affray which led thereto.

Defendant admits that plaintiff’s husband lost his life at the hands of her husband, but she. alleges that John Childs and Thomas Childs set upon her husband without cause, reason or provocation, a short time before the difficulty in which their husbands were both killed, and inflicted upon him a number of knife wounds of a serious nature. That John Childs was the aggressor and if not the aggressor that he was at fault, both in the difficulty in which respondent’s husband was stabbed, and in the one which plaintiff’s and respondent’s husbands were both killed, and that the plaintiff is barred from recovering damages for any wrong resulting from her husband’s own fault. The demand of the plaintiff was rejected in the lower court, and the plaintiff has appealed.

The evidence shows that when John Childs was killed, the shooting continued between Joseph Cormier and Joseph Castille on one side and Thomas Childs and Getty Childs on the other, until Getty Childs was shot down and badly wounded. Thomas Childs and Joseph Cormier were both killed. Jean B. Richard, a bystander, was wounded by a ball which struck him and felled him to the ground. Arville Richard, another bystander, and Joseph Castille were wounded.

The defendant was allowed to prove on the trial, a, cutting affray at Bourque’s Store, which had taken place between Joseph Cormier and John and Thomas Childs on August 23, 1924, in which Joseph Cormier received four or five wounds at the hands of John and Thomas Childs. Both the Childs were cut by said Cormier but their wounds were not serious. Joseph Cormier was badly cut. The surgeon who treated him testified that two of his wounds were three inches in length, while another deep and dangerous wound in the back required fifteen sutures.

The defendant was also permitted on the trial to prove a previous difficulty between Thomas Childs and Joseph Castille which had occurred in the neighborhood about a year before. Castille was a tenant on the place of Cormier at the time. In this difficulty, Thomas Childs, according to Castille, threatened his life. He also testified that Thomas Childs at the same time made threats against Cormier which he communicated to Cormier.

The plaintiff objected to the above on the ground that these previous difficulties were not connected with the suit on trial and had no bearing on the issue involved, and contends that the evidence should not have been received nor considered.

The evidence shows that Thomas Childs commenced the difficulty at Bourque’s Store by approaching Cormier and kicking him without previous warning. Cormier asked him what was the matter, upon which Thomas Childs answering, replied: “Remember when you hit me when I was a child. Now I am a man like you.” The evidence does not show which was the first to open and draw his knife, but they both drew knives and commenced cutting each other. John Childs was present when the cutting commenced and immediately drew his knife and joined Thomas Childs in cutting Cormier, cutting him, a witness says, in the side and back.

Joseph Cormier was one of the commissioners at the election at Plaquemine Point. He left home to attend the election accompanied by Lucien and Joseph Castille. Lucien, father of Joseph Castille, was not armed, but Joseph Cormier and Joseph Castille both went to the election armed.

John Childs had also been appointed as one of the commissioners but did not attend in time to serve. He left home to come to the poll about half past ten o’clock and arrived there about eleven o’clock a. m. He was not armed and was in his shirt sleeves, but he was accompanied by Thomas Childs and Getty Childs who were also in their shirt sleeves, but both of whom were armed. Their pistols were carried in scabbards which were held in place around their waists by a belt and strap over the shoulder, but under their shirts.

These previous difficulties showed the mental attitude of John Childs and Joseph Cormier toward each other when they left home on the morning of the election, at which they each had good reason to expect they would be close to each other. They also tend to indicate the reason why Joseph Cormier went to the election armed, and why John Childs, although himself unarmed, was accompanied by Thomas Childs and Getty Childs, both of whom were armed. Likewise they tend to indicate the likelihood that Cormier was apprehensive of being again attacked by John and Thomas Childs. The parties lived in the same neighborhood and two witnesses testified that thqy expected a difficulty between them such as occurred, when they would meet.

These previous difficulties aid in understanding the motives, conduct, apprehensions, impulses and acts of the parties which resulted in and precipitated the shooting. In such a situation and for purposes of the kind, previous difficulties between the parties and communicated threats can be proved and taken into account.

Greenleaf, Vol. I, chap. V, section 101, etc. Whigmore, Yol. 1, Chap. 11, Subject: Evidence to prove human quality or condition. Sections 246, 247, 248, pages 306 to 317. The evidence was properly received and taken into account.

The election was being held in a small house which had been built for a garage and had no floor. It stood near a road and was entered by a double doorway which fronted the road. The table on which the voting was being done was two or three feet inside the building and in front of the doorway. When a party came to vote, he, had to come up in front of the doorway, and in order to prevent crowding in such small quarters, the officers holding the election had roped off a space ten or twelve feet just outside the doorway, leaving in it an opening in front of the doorway through which the .voters could come to the table and get their ballots. When John, Thomas and Getty Childs arrived, instead of entering the passageway and proceeding to the table through the opening left for that purpose, they each stepped over the rope as they came to it, John Childs leading the way, speaking pleasantly to an acquaintance as he did so. Getty tarried a moment near the inside of the rope, but John Childs, followed by Thomas Childs, walked straight towards Joseph Cormier who was standing inside the garage at one end of the table. He said nothing to Cormier and the evidence indicates that he had nothing in his hand, but the position of his hands at the time, does not appear. When he got up close to Cormier, the exact distance not being shown, but evidently within about three feet, Joseph Cormier, without saying anything, suddenly drew his pistol and shot him. Some of the witnesses outside the building estimate that Thomas Childs was ten or twelve feet behind, as his father stepped over the rope and walked toward the table. Other witnesses outside state that he was only four or five feet behind him, and they are supported by a witness who was inside the building, and who was looking at Thomas Childs at the time his father was shot. This witness says that he was only four or five feet from Cormier at the time, and that John Childs was in between them, consequently Thomas Childs must have been as close as two or three feet behind his father at the time he entered the doorway and advanced toward Cormier.

Stepping over the barrier instead of • going through the opening left in it, tends to indicate a previous resolve on something other than the mere right of suffrage.

As Thomas Childs stepped over the rope barrier, he was seen to place his hands in his bosom. His pistol was concealed in his bosom and it was necessary for him to put his hand in there in order,, to get it. It therefore seems that he either got hold of or made ready to get his pistol immediately after getting over the rope barrier, because it was in his hand and pointing toward Cormier when he got within four or five feet of him.

Mr. Thibodeaux is clearest as to the facts in connection with the shooting. He was one of the commissioners of the election. He says that he was inside the building standing at the side of the table within a few feet of Joseph Cormier and John and Thomas Childs and looking right at them. His statements carry the conviction of sincerity and truth. We accept his testimony that Joseph Cormier was inside the building in which the election was being held and standing at the head of the table, and that John Childs came through the double doorway, walked straight toward Cormier,' facing him, and that when he goj; within three or four feet of Cormier, Cormier suddenly drew ,his pistol and shot him. That John Childs dropped to the ground the moment he was shot. That the fall of John Childs disclosed Thomas Childs to his view, standing with a pistol already pointed at Cormier, only four or five feet distant from him. That Thomas Childs shot Cormier, the report of his pistol following so close after the report of Cormier’s pistol that the two shots seemed almost like one. The testimony of this witness, that Thomas Childs was standing either in or just outside the doorway at the time his father was shot is corroborated by the fact that the bodies’ of John and Thomas Childs after they were killed, were both lying near the doorway almost side by side.

The other commissioners also saw the commencement of the shooting from the inside of the building. They saw Joseph Cormier shoot John Childs, but did riot see Thomas Childs. They say that Joseph Cormier immediately went outside after shooting John Criilds, and as he did they heard further shooting. One of them says that the shooting inside and that outside were practically all at the same time, and all agree that the bodies of John Childs and of Thomas Childs were both lying, immediately after the shooting, near the doorway, and almost side by side.

The other commissioners did not see all that the witness Thibodeaux saw, probably because of their angle of vision at the time, or for some other reason. None of them denied the facts testified to by Mr. Thibodeaux; they simply said they didn’t see it, etc.

The witness, Thibodeaux, says that after Thomas Childs shot Cormier, and Cormier shot him, that they changed their positions; that the shooting continued, but he did not see the balance of it.

Witnesses outside of the building say that Cormier came outside shooting; that Getty Childs was shooting at him from a distance of eight or ten feet from the doorway.

Plaintiff contends that John Childs in his shirt sleeves, walked peaceably and unarmed toward the ballot box for the. purpose of voting. That he saia nothing to Cormier; was not making any hostile demonstration, and that Cormier had no right to shoot him. But we are satisfied from the evidence that at the time Joseph Cormier shot John Childs, he could and did no doubt, see Thomas Childs also advancing behind John Childs prepared to’ shoot, and believed that John Childs and Thomas Childs designed to attack him, and that his life was in immediate danger at their hands.

The facts and circumstances justify the presumption that John Childs knew that his sons were armed against Cormier. We feel that it would be unreasonable to doubt knowledge on his part that Thomas Childs was following right behind him with a pistol in his hand prepared to shoot Joseph Cormier where he stood. Cormier knew that they were his enemies and he saw them coming toward him at close quarters in a place from which there was no way to get out except by going over them; one of them was armed with a pistol and prepared to shoot; the foremost for all he knew, for the purpose of shielding or aiding the one behind in the attack. In such a situation Mr. Cormier, likely not fully recovered from his wounds received at their hands seventeen days before, could not be expected to wait and see what they were going to do. Under such a showing if Cormier had been prosecuted for having killed Mr. Childs, he could have reasonably urged that he had done no more than his safety appeared to require.

In Bishops New Criminal Law, General and Elementary, that author says, Chapter XIX, Section 303, pp. 173 and 174:

“What is absolute truth no man ordinarily knows. All act from what appears, not from what is. If persons were to delay their steps until made sure beyond every possibility of mistake that .they were right, earthly affairs would cease to move, and stagnation, death and universal decay would follow. All, therefore, must, and constantly do perform -what else they would not, through mistakes of facts. If their minds are pure; if they carefully inquire after the truth, but are misled, no just law will punish them however criminal their acts would have been, if prompted by an evil motive and executed with the real facts in view.
“A wrongful intent being the essence of every crime, it necessarily follows, that whenever one without fault or carelessness, is misled concerning facts, and thereon acts as he would be justified in doing were they what he believes them to be, he is legally innocent the same as he is innocent morally.
“The rule in morals is stated in Wayland to be that if a man knows not the relations in which he stands to others, and has not the means of knowing them, he is guiltless. If he knows them or has the means of knowing them and has not improved these means, he is guilty. The legal rule is neatly enunciated by Baron Parke thus: The guilt of the accused must depend on the circumstances as they appear to him. This doctrine prevails likewise in the Scotch law as it necessarily must in every system of Christian and cultivated law.”

Again, Section 305:

“If in language not uncommon in the cases, one has reasonable cause to believe the existence of facts which will justify a killing, or in terms more nicely in accord with the principles in which the rule is founded, if without fault or carelessness he does not believe them, he is legally guiltless of the homicide, though he mistook the facts. And so the life of an innocent person is unfortunately extinguished. In o.ther words and with reference to the right of self-defense, and the not quite harmonious authorities, it is the doctrine of reason, and sufficiently sustained in adjudication, that notwithstanding some decisions apparently adverse, whenever a man undertakes self-defense, he is justified in acting on the tacts as they appear to him. If without fault or carelessness he is misled concerning them and defends correctly according to what he thus supposes the facts to be, the law will not punish him, though they are in truth otherwise, and he has really no occasion for the extreme measure.” See also Section 844. 865 and 874, and Yol. 2, Sec. 645. Blackstone, Vol. 4, Subject: Homicide, Chapter 14, Section 183, page 135. Ruling case Law, Vol. 13, Subject: Homicide, Sections 124, 125, pages 819, 820 and 821. State vs. Swift, 14 La. Ann. 827; State vs. Chandler, 5 La. Ann. 489; Succ. of Roth, 31 La. Ann. 320.

John Childs must be presumed to have been aware that the same motives that had prompted his sons to come to the election armed, had also likely caused Cormier to do likewise, and that to approach him as he did, with Thomas Childs following close behind with a pistol in his hand, was calculated to create an irresistible apprehension in Cormier’s mind that his life was in great and immediate danger at their hands. He advanced ahead of Thomas Childs, and it seems to us under all the facts and circumstances of the case that it cannot be supposed that Thomas Childs would have had a pistol if his father merely designed to vote and return as he had come, but that it was to attack Cormier again. The conduct of John Childs must therefore be regarded as wrongful in the extreme, and to have precipitated the act of Cormier which cost John Childs his life. Under the evidence John Childs was at fault in bringing on the difficulty and therefore his widow cannot justify a recovery under the law, Civil Code, Art. 2315, based'on said act of Cormier, when her husband was himself at fault in causing the act, even though defendant’s husband was not justified under the law in what he did. Vernon vs. Bankston, 28 La. Ann. 710; Bigney vs. Benthuysen and “The States,” 36 La. Ann. 38; State ex rel. Levet vs. Lapeyrollerie, et al., 38 La. Ann. 267; Childs vs. Lockett, 107 La. 272, 31 So. 751; Massett vs. Keff, 116 La. 1108, 41 So. 330; Bonneval vs. American Coffee Co., et al., 127 La. 58, 52 So. 426; Hingle vs. Myers, 135 La. 383, 65 So. 549; Fontenelle vs. Waguespaek, 150 La. 317, 90 So. 662; Lide vs. Parker, C. C. A., Vol. 6, pages 648 and 649.

We agree with the District Judge in his conclusions on the law and the facts.


author: LECHE, J.

text:
    No.-
    First Circuit
    ASSOCIATED MILLS CO. v. SMITH
    (May 8, 1928. Opinion and Decree.)

      (Syllabus by the Editor.)

    1. Louisiana Digest — Evidence—Par. 351.
    Where plaintiff, suing on an open account fails to prove his case with any degree of certainty or by ■& preponderante of evidence his demands must be rejected.
    Appeal from the Parish of Calcasieu. Hon. Thomas F. Porter, Judge.
    Action by Associated Mills Company against L. Smith.
    There was judgment for defendant and plaintiff appealed.
    Judgment affirmed.
    Milling, Godchaux, Saal and Milling, of New Orleans, and McCoy, Moss and King, of Lake Charles, attorneys for plaintiff, appellant.
    Robt. R. Stone, of Lake Charles, attorney for defendant, appellee.
   LECHE, J.

Plaintiff sues for three hundred and eighty-two 50-100 dollars, alleged to.be due by defendant on an open account. Its demand was rejected by the trial court and it has appealed.

Plaintiff, a manufacturer’s • agent, located in the City of New Orleans did a large business with the defendant, a local merchant domiciled in the City of Lake Charles. Most of the sales made by plaintiff to defendant were transacted by one Watkins, a salesman or employee of plaintiff. In the fall of 1921, differences came about between plaintiff and defendant and it is conceded that these differences arose from the fact that Watkins, who had collected large sums of money from defendant, .was charged to have failed to account, or at least was believed to have failed to account to plaintiff for these collections. In order to adjust the whole matter, plaintiff balanced defendant’s account and charged the difference which its books showed as being due by defendant, to profit and loss.

The date of this adjustment is very important. It appears that after the date in question plaintiff continued to do business with defendant and sold him several invoices of goods and merchandise. It also appears that plaintiff received several sums of money from defendant, and the imputation of these payments if applied to the account as it stood prior to the adjustment, would confirm approximately the correctness of plaintiff’s claim in the present suit, but' if applied to the sales made by plaintiff to defendant, after the adjustment, would show that defendant had fully paid up all that he owed to plaintiff.

F. F. Weller, who owned the business known as the Associated Mills Company, says that the business went into liquidation at some indefinite time shortly after the close of these transactions in the fall of 1921, and that all the books' and papers of the concern were turned over to the attorneys of the liquidator. The present suit was filed in May, 1922, but was only tried partly in June, 1924, partly in January, 1926, and submitted in October, 1926. Weller, the only witness in the case, testified in June, 1924, and in January, 1926, and there are several important matters that he could not remember. In fact it was for the. purpose of giving him an opportunity to refresh his memory that the taking of his testimony was continued, on June 30, 1924. In January, 1926, Weller again testified and. offered in evidence, the books and papers of the plaintiff concern. On his first examination, Weller says that the adjustment was made on November 18, 1921, and the entry in plaintiff’s ledger shows the same date, but counsel in argument contend that although the entry was made of that date, the adjustment was in reality made on September 26, 1921, and they advance plausible reasons for this contention on their part. Weller further says that Watkins turned over to the ■plaintiff, as received from defendant, on November 15, 1921, the sum of one hundred and fifty dollars, and that he made a criminal charge against Watkins on December 22, 1921.

It is unlikely that if an adjustment had been made on September 26, 1921, on the supposition that Watkins was then guilty of fraud towards plaintiff, and this to the knowledge of defendant, that either of the parties would have entrusted him with the power to collect and receive any further sums of money after that date. It clearly appears that the price of the merchandise sold by plaintiff to defendant after November 18, 1921, was fully covered by the payments made by defendant to plaintiff subsequent to November 18, 1921.

After due consideration and summing up the facts, as we can best gather them, we are of opinion that plaintiff has failed to prove its case with any degree of certainty or by a preponderance of evidence. The trial judge was of that opinion, and we fully agree with him in his findings.

For these reasons the judgment appealed i from is affirmed.


text:
    No.-
    First Circuit
    COKER v. HARPER, ET ALS.
    (May 8, 1928. Opinion and Decree.)

      (Syllabus by the Editor,)

    1. Louisiana Digest — Marriage—Par. 135, 154.
    Under Civil Code Art. 2402 the produce of the reciprocal industry and labor of both husband and wife is an asset of the community.
    2. Louisiana Digest — Marriage—Par. 163, 265.
    Suits for the recovery of community assets must be prosecuted, in the name of the husband, as head of the community; the wife is not competent to stand in judgment therefor.
    Appeal from the Parish of Vernon. Hon. Hal A. Burgess, Judge.
    Action by Mrs. Sarah Coker against Mrs. Ran Harper, et als.
    There was judgment for plaintiff and defendant appealed.
    Judgment reversed and exception maintained.
    M. C. Pickrel, of Oakdale, attorney for plaintiff, appellee.
    L. D. Woosley, of Leesville, .and C. E. Hardin, of Lake Charles, attorneys for defendant, appellant.
   MOUTON, J.

William Philips died without forced heirs, leaving his estate to his wife who subsequently died, her succession going to her collaterals, the defendants.

The demand is brought by Mrs. Sarah Coker in her individual name for services rendered as a nurse to William Philips during his last illness, and to Mrs. Philips for a year prior to her death.

The produce of the reciprocal industry and labor of both husband and wife, is an asset of the community. C. C. 2402. Ford vs. Brooks, 35 La. Ann. 157, the Court said that revenues from the labor and industry of the wife necessarily fall into the community. This doctrine is imbedded in our jurisprudence, and no citations are deemed necessary to support it. Suits for the recovery of such community assets must be prosecuted in the name of the husband, as head of the community; the wife is not competent to stand in judgment therefor, and a judgment in her favor alone in such cases will be reversed, Mitchell vs. Dixie Ice Co., 157 La. 383, 102 So. 497, and numerous decisions therein cited.

The defendants filed an exception to the effect that plaintiff is a married woman, the wife of William B. Coker. The proof shows that such is the fact, and that the earnings plaintiff claims, if she is entitled thereto, necessarily fall into the community. There is nothing in plaintiff’s petition or in the evidence to relieve her of he.r disability to sue or to take her case out of the fatal grasp of the exception, and it must therefore be held that she was not competent to recover judgment against defendants.

It is therefore ordered, adjudged and decreed that the exception be maintained; it is further ordered that the judgment appealed from be avoided and reversed, and that the demand of the plaintiff be' dismissed at her cost.