author: ODOM, J. REYNOLDS, J.

text:
    No. 2211.
    Second Circuit Appeal.
    BENNETT-BREWER HARDWARE CO., INC. v. JOSEPH P. WAKEMAN
    (June 13, 1925, Opinion and Decree.)
    (Rehearing Refused)

      (Syllabus by the Editor.)

    1. Louisiana Digest — Prescription — Par. 107.
    The object of Act No. 78 of 1888 amending Article 3538 of the Civil Code is not to prohibit proof of interruption of prescription of three years on open accounts by parol evidence, but to prevent such evidence, when received, having. the effect of shifting the prescription of three years applicable to those accounts to a prescription of ten years. Henry Block Co. vs. Papania, 121 La. 683, 46 South. 694.
    2. Louisiana Digest — Prescription — Par. 107.
    Act 78 of 1888 amending Article 3538 of the Civil Code changed the law by applying the prescription of three years to accounts stated or rendered and verbally or tacitly acknowledged, as well as to the open accounts to which it had previously applied. Sleet vs. Sleet, 109 La. 302, 33 South. 322.
    3. Louisiana Digest — Prescription — Par. 107.
    A written acknowledgment of an open account is not necessary to interrupt prescription under Article 3538 of the Civil Code. A verbal acknowledgment by the debtor will suffice. Harman & Stringfellow vs. Legrande, 151 La. 254, 91 South. 726.
    Appeal from Thirteenth Judicial District Court of Louisiana, Parish of Rap-ides, Hon. John A. Williams, Judge.
    This is a suit to collect, an open account.
    A plea of prescription was filed and sustained.
    Judgment reversed and case remanded for plea of prescription to be referred to the merits.
    Provosty & West, of Alexandria, attorneys for plaintiff, appellant.
    Overton & Hunter, of Alexandria, attorneys for defendant, appellant.
   ODOM, J.

Plaintiff brings this suit to recover $263.59 alleged to be due on open account for merchandise sold and delivered to defendant in the usual course of trade. Plaintiff attached to and made part of its petition an itemized account of the alleged indebtedness, showing items charged thereon in July, August, September, October, November and December, 1919, and in January, February, March, May, June, August, September and December, 1920. Following the items charged in December, 1920, the account shows items charged in June, July and October with no year being shown.

Inasmuch as these charges follow those made in the year 1920, we infer that these were made in the year 1921.

The total charges amount to $322.41.

Following these charges, we find the following credits on the account:

“1919 Oct. By cash............................$35.00
“1920 Mar. Credit mdse___________________ 6.12
Apr. Journal credit________________ 7.00
"1921 Jan. Credit mdse_________________ .70
Jul. Cash ________________________________ 10.00
Total credits ____________________________$58.82"

A balance is then struck showing the amount due to be $263.59.

It seems that on July 14, 1920, plain tiff filed a suit against defendant and we infer on that portion of the account which had been made prior to that date. , But, plaintiff subsequently had that suit dismissed as in case of non suit. The present suit was filed November 21, 1923.

On December 28, 1923, defendant filed answer denying article by article the allegations of the petition.

On March 4, 1924, .defendant filed the following plea:

“and against plaintiff’s demand, and against each and every item of the account sued-upon, respondent pleads the prescription of three years, as provided by Article 3538 of the Revised Civil Code, amended by Act 78 of 1888, page 86.
“That defendant files and urges this plea of prescription both upon the face of the papers, upon plaintiff’s pleadings and the account annexed thereto, and also upon the merits of this case, under the facts and circumstances to be shown upon the trial hereof.”

There was judgment in the lower court reading in part as follows:

“It is ordered, adjudged and decreed by the court that the said plea of prescription be maintained upon the face of the petition and annexed account, and that accordingly plaintiff’s demands be rejected for all items on its account prior to July 14, 1920.”

The court, after sustaining the plea of prescription on the face of the pleadings and the account attached thereto, then proceeded with the trial of the case on its merits as to all items shown thereon to have been charged subsequently to July 14, 1920. It, found that those items aggregated $36.65 and gave judgment in favor of plaintiff for that amount.

Plaintiff has appealed from the judgment.

Counsel for defendant in brief says:

“The position which was assumed by defendant and which was upheld by the trial judge, is as follows:
“That the prescription' of three years attached on open account item by item, and as the three-year period reaches each item on the account, that item is barred under Article 3538 of the Revised Civil Code as amended by Act 78 of 1888, and further that in order to interrupt prescription under said Article, the account must be acknowledged in writing, a note or bond given, or a suit commenced.”

As we understand the issue before this court, we are to pass only upon the question as to whether prescription on an open account can be interrupted otherwise than by. a written acknowledgment, of the account or by the giving of a note or a bond for the indebtedness.

We do not understand that there is any controversy over the question as to whether the prescription of three years applies on open accounts item by item, it being conceded, as we understand it, that each item on the account is prescribed in three years.

As we understand it, plaintiff contends that prescription on its open account had been interrupted.

Just what testimony it intended to introduce in order to show interruption of prescription on the account we are not informed. However, as the account itself shows certain credits of cash and merchandise, we infer that it proposed to show that there had been payments made on the account which were made in such a way as to interrupt prescription thereof.

And we also note that on the trial of the case on its merits, after the plea of prescription had been sustained, that plaintiff offered to prove that monthly statements of the account had been rendered to the defendant, and we infer from that that it was plaintiff’s intention to attempt to prove that the account had become a stated account.

But, as stated above, objection was made to the introduction of testimony to show an interruption of prescription on the account, which objection was sustained by the court; the court holding that there could be no interruption of prescription except by written acknowledgment or a note or a bond given.

• We are therefore to determine in this case the one' question, whether prescription on an- open account may be interrupted in any manner except by written acknowledgment thereof.

It is contended by defendant and was so held by the trial judge that Act 78 of 1888, page 86, amending Article 3538 of the Revised Civil Code', was passed to do away with all kinds of interruption of prescription except written acknowledgments and so on.

We think our learned brother of the District Court was in error in so holding.

It is our conclusion that the act referred to has no reference whatever to the interruption of prescription on open accounts.

Chapter 3, Title XXIII, of Book III of the Civil Code deals with the general subject of “Prescription”.

Section 3 of that Chapter treats

“Of the Prescription which operates a release from debt.”

In that section, beginning with article 3534 and continuing through article 3537, the Code treats “Of the Prescription of one year”.

In subsection II, beginning with Article 3538, it treats, “Of the Prescription of three years”.

Under subsection III, beginning with Article 3540, it treats “Of the Prescription of five years”.

And in another subsection we find the subject “Of the Prescription of ten years”.

And in subsection Y, we find Article 3548 which refers to “Prescription of thirty years”.

We therefore have under the general heading “Of the Prescription which operates a release from debt”, the prescription of one, three, five and ten years.

The prescription of one year operates a release from certain debts named in Article 3534 of the Code.

The prescription of three years operates a release from certain debts named in Articles 3538 and 3539.

And likewise the prescription of five and ten years operate a release from the debts named under other articles.

These are different kinds of prescription, in that they each operate a release from different kinds of debt. As, for instance, debts due Notaries, innkeepers, laborers, etc.

Now under the heading “Of the Prescription of three years” we find, in Article 3538, the following;

“The following actions are prescribed by three years:
“That on all other open accounts.”
“This prescription only ceases from the time there has been an account acknowleged, a note or bond given, or an action commenced.”

It was contended by counsel and so held by the court below that the provision that:

“This prescription only ceases from the time there has been an account acknowledged in writing, a note or bond given or an action commenced.”

means that there can be no interruption of prescription on an account except by written acknowledgment.

This language of the Code is used in con nection with a certain kind of prescription ■ — that of three years.

The prescription of three years applies to accounts and, as we understand the Code, it means that this kind of prescrip tion, this three-year prescription, shall continue to apply to debts on accounts unless and until there is a written acknowledgment thereof or a note or a bond given.

The' Code dpes not say nor does it imply that prescription cannot be interrupted except by a writing, etc., but it says “this prescription,” that is, the three-year prescription only ceases from the time there has been an account acknowledged in writing or a note or bond given.

If a note is given for the debt, then the three-year prescription ceases to apply and the case is governed by Article 3540 of the Code which treats of the prescription of five years; and if the account is acknowledged in writing, it becomes an acknowledged account and the prescription of ten years, under Article 3545 applies.

The language of the Code found in article 3538:

“This prescription only ceases from the time there has been an account acknowledged in writing”

has no reference whatever to the interruption of prescription.

The identical question here raised was raised and settled in the case of Henry Block Co., Ltd., vs. Papania, 121 La. 683, 46 South. 694.

In that - case the court specifically held the Act 78 of 1888, page 86, amending Article 3538 of the Code was not intended “to cut off -absolutely ‘interruptions’ of prescriptions”.

It has repeatedly been held that a verbal acknowledgment of a debt, whether made in the presence of the creditor or not, interrupts prescription.

It is true, also, that a payment on a debt liquidated and certain, interrupts prescription thereon; the payment being equivalent to acknowledgment of the correctness' of the account or debt.

We are not informed as to how, or by; what kind of evidence, plaintiff intended to prove that its account was not prescribed; but, as stated above, we infer that it intended to prove interruption by payment and verbal acknowledgment, etc.

The plea of prescription filed in this case was not referred to the merits and tried with the other issues, nor was there any trial of the plea separately from the merits.

The court sustained the plea “on the face of the petition and annexed account”. Later, the case seems to have gone to .trial on all items shown on the account to have been charged subsequent to a certain date and that plaintiff offered to prove that monthly statements were sent to the debtor.

This form of proof was met with the objection

“that under the Act of 1888, only written acknowledgments can interrupt prescription of accounts”.

This objection was sustained.

Under the ruling of the court, it would have been useless for the plaintiff to offer other proof to show that the account was not prescribed or that prescription had been interrupted unless he had a written ac knowledgment of the account or a note which evidently he did not have.

The ruling of the court on this point was clearly erroneous and must be reversed.

Counsel cite the case of Sleet vs. Sleet 109 La. 302, 33 South. 322, and say in brief:

“It is very clear, and we seriously doubt if counsel .will deny that the law applica ble to three-year prescription as laid down in the Sleet case is, to summarize, that open accounts prescribe item by item as the three-year period reaches them, and this prescription is only interrupted by an acknowledgment in writing, a note or bond given, or an action commenced.”

In the Sleet case the syllabus, written by the court, is as follows:

“The change in the law made by Act No. 78 of 1888, amending and re-enacting Revised Civil Code, article 3538, consists in applying the prescription of three years to accounts stated or rendered, and verbally or tacitly acknowledged, as well as to the ‘open’ accounts to which it had previously applied.” (Italics ours.)

We think the court’s meaning is perfectly clear.

What the court held, was, that under the article of the Civil Code, as amended by the Act of 1888, the three-year prescription now applies not only to open accounts, as it always did, but also to accounts which have been verbally acknowledged and accounts which have become “stated accounts” or “rendered accounts”. Formerly the ten-year prescription anplied to accounts which had been verbally acknowl edged and to accounts which had been rendered to the debtor and not denied or disputed by him.'

In other words, while the three-year prescription applies to open accounts; if the open account was verbally acknowledged, another prescription was applicable, that of ten years.

In the Sleet case the court held that under Act 78 of 1888 the three-year prescription continued to apply to accounts stated or rendered and accounts verbally or tacitly acknowledged as well as to open accounts.

So that now if a debtor verbally acknowledged an account to be correct, that account prescribed in three years from the date of the acknowledgment, and not in ten years as was formerly the case.

It is only when there is a written acknowledgment of the account of a note or a bond given that a different prescription period applies.

In the case of Henry Block vs. Papania, supra, it was specifically held that the object of Act 78 of 1888 was not to prohibit proof of the interruption of prescription by parol evidence but to prevent such evidence when received, “having the effect of shifting the prescription of three years,' applicable to those accounts, to a prescription of ten years”; and in that decision it was stated “the present decision in no wise departs from that of Sleet vs. Sleet, 109 La. 303, 33 South. 322.

For the reasons assigned, it is ordered, adjudged and decreed that the judgment appealed from sustaining the plea of presscription on the face of the petition and annexed account and rejecting plaintiff’s demand on - all items of the account prior to July 14, 1920, be avoided’ and reversed, that the plea of prescription be referred to the merits, and that the case be remanded and reinstated on the docket of the District Court of the Parish of Rapides to be tried according to law. And in other respects, the judgment appealed from is affirmed. The costs of the appeal to be paid by appellee. Other costs to await the final judgment.

ON APPLICATION FOR REHEARING.

REYNOLDS, J.

We have read with much interest defendant’s able brief for rehear ing.

If the intent of the Act 78 of 1888 was before this court as an original question, the decision would be different from that in Block vs. Papania, 121 La. 683, 46 South. 694, or else there would be a decision by a divided court.

However, under this decision we think the jurisprudence is settled as to the manner in which prescription on an open account may be interrupted and this, court must be guided by that decision as long as it remains unchanged by the Supreme Court.

In Harman & Stringfellow vs. Legrande, 151 La. 253, 91 South. 726, Chief Justice O’Niell, referring to Block vs. Papania, says:

“The court did answer the question in the affirmative, maintaining that the verbal acknowledgment of the open account had interrupted the prescription of three years. The decision, in my humble opinion, was contrary to the language of the statute of 1888; but we have no occasion for overruling it now, because it is not appropriate to the question presented in this case.

This is clear language and indication that the Chief Justice at least was of opinion that the decision in Block vs. Papania should be reversed; but until that opinion becomes the decision of the court we must be governed by the settled jurisprudence as announced in Block vs. Papania.

For these reasons the application for a rehearing is refused.


source: Caselaw Access Project

author: REYNOLDS, J.

license: Public Domain

text:
    No. 2245.
    Second Circuit Appeal.
    JOSEPH LACHENAYE v. ROBERT P. BERGERON
    (June 13, 1925, Opinion and Decree.)

      (Syllabus By the Editor.)

    1. Louisiana Digest — Sales—Par. 219.
    Where the defects complained of were discovered before the sale, the sale cannot be set aside.
    (Civil Code, Article 2521. Editor's note.)
    Appeal from Fourteenth Judicial District Court of Louisiana, Parish of Avoyelles, Hon. S. Allen Bordelon, Judge.
    This is a suit to set aside a sale of two horses for fraud and recovery of promissory notes given in payment.
    There was judgment for plaintiff and defendant appealed.
    Judgment reversed.
    G. H. Couvillon, of Marksville, attorney for plaintiff, appellee.
    •N. I. Normand, of Marksville, attorney for defendant, appellant.
   REYNOLDS, J.

This is a suit to annul, revoke and set aside the sale of two horses made by Robert P. Bergeron to Joseph Lachenaye for $125.00 and to have cancelled and returned to plaintiff two pormissory notes, one for $125.00 given by him to represent the purchase price of the two animals and the other for $9.00 given to represent interest on the debt, and to recover $2.50 expenses connected ■ with the sale paid by plaintiff; on the grounds that when the horses were sold, one had a blind eye which was observed and discussed but defendant guaranteed that the other eye was in perfect condition, well knowing that the horse was fast losing his sight and would soon be blind, and thereafter the eye “was almost completely lost, so much so that he could hardly conduct himself, and was not fit for service”. Plaintiff alleges-that defendant was in bad faith when he sold him the horses and imposed on him by making false representations. He alleges that he tendered the defendant his horses back and demanded the return of his promissory note's but that defendant refused to take back his horses or return plaintiff his promissory notes.

He prays that the sale be annulled and his notes be returned to him with $2.50 expenses of the sale, and, upon defendant’s failure to return the notes for judgment against him for $134.00 with 8% interest.

Defendant answered denying warranty of the soundness of the horse and alleged that the defect complained of was pointed out to and observed by plaintiff at the time of the sale and that the sale of the infirm - horse was part of the contract of purchase, plaintiff refusing to sell the sound unless defendant would also buy the unsound horse.

On these issues the case was tried and there was judgment in favor of plaintiff annulling the sale and ordering the two promissory notes given for the purchase price to be returned to plaintiff and in default of this being done within ten days from the date of the judgment that plaintiff recover from defendant $134.00 with legal interest thereon from date of the judgment.

From this judgment defendant appealed.

Plaintiff, Joseph Lachenaye, testified, page 1.

“Q. Did you examine the horses?
“A. Yes, sir.
“Q. At what time of the day was that?
"A. I don’t remember exactly, but between nine and ten.
“Q. Did you examine the horses?
“A. Yes. One of them, was blind in one eye, and I asked him if the other was good, and he assured me that insofar as the other eye was concerned he would guarantee it.
“Q. Could the horse see in that blind or bad eye?
“A. No, sir, not at all.
“Q. When you examined this horse, did you notice whether or not the other eye was sick?
“A. No, it did not appear sick, but it did look rather yellowish. I asked him if that eye was good, and he said he guaranteed it was good. He guaranteed me that the horse had one good eye and the other bad.

Defendant, Robert P. Bergeron, testified, page 15.

“Q. You are being sued by Joseph Lachenaye to cancel a contract of sale of two horses made last February, on the ground that one of the horses became blind. Tell the court exactly what occurred in this case, starting at the very beginning when he went to see you up to the time of the sale.

“A. At first he wanted to buy only one horse, and I told him I would not sell only one, that I had to sell both, because I would not separate them, for the fact that the big horse had already lost one eye, and he was familiar with the other. A few days before that he had water running out of one eye, and I didn’t know that he would not lose the other one. I didn’t want to separate the horses, because in the event that one went totally -blind, I could always get some use out of both of them by working them double. He looked at the eyes several times and spoke of my guaranteeing the horse’s sight, and I told him that only God could do that. I told him that I was not a horse doctor and that I could not guarantee anything. I told him the horse was liable to go blind at any time and for the further fact that he had already one blind eye and I certainly would not enter into a guarantee on the permanent sight of the other eye.”

From this evidence we are convinced that plaintiff knew at the time he bought the horses, that the one he complains of now was then blind in- one eye and had a defect in the other eye.

Plaintiff testified, page 3.

“Q. Did he say he had two horses for sale?
“A. Yes, sir.
“Q. Did you examine the horses then?
“A. Yes. He told me to examine them.
"Q. Did he go with you? A. No sir.
“Q. ■ He told you to pass by his home and see them?
“A. Yes, sir.
“Q. You came back home and did not take the horses?
“A. No, sir.
“Q. How long after that did you go and examine the horses again?
“A. Pour or five days later. I went there with my brother and son.
■ “Q. Did you see Mr. Bergeron then?
“A. Yes.
“Q. Did you examine the horses?
“A. Yes, sir.
“Q. Did you take the horses then and come home with them, the second time?
“A. Yes, after my second examination he guaranteed me the horses and I took them.
“Q. You know something about horses?
“A. Yes, a little.
“Q. You saw that this horse had a bad eye?
• “A. Yes, sir.
• “Q. You both discussed that?
“A. Yes, sir.
“Q. And he had only one bad eye?
“A. Yes, sir. *
‘Q. You say the other eye was yellow?
“A. Yes, it appeared yellow to me right in the corner.
“Q. One eye was blind and the other yellow?
“A. It was not yellow all over, no, but was yellow in one corner.”

The evidence shows that plaintiff examined the horses on two separate occasions, once when defendant was not present, and that on one of the occasions his son and brother were with him.

We think from all the evidence that plaintiff relied on his own judgment in making the purchase rather than on any representation defendant made to him and that it was the attractive price of $125.00 for the two animals that the evidence shows were worth from $175.00 to $180.00 and a sale all on credit that induced him to buy.

The defect of which plaintiff complains was, we think, such as the buyer might have discovered and in fact did discover before making the purchase and under Civil Code 2521 he cannot now annul the same.

Plaintiff alleged and he and his brother testified that defendant guaranteed the eye of the horse to be well but neither pretends to testify what the condition of the guarantee was. It might have been the forfeiture of the other horse and the return of the promissory notes given as the price of both horses, or it might have been to give a sum of money. But at any rate plaintiff does not allege what defendant guaranteed to do in case the horse’s eye went blind, and this case is not based on conditions or terms of the alleged guaranty but is based on the contention that there was at the time of the sale a redhibitory defect in one of the horses and that defendant was in bad faith and knew at the time of the sale that the horse would soon become blind.

The evidence does not, in our opinion, in any way support the contention of plaintiff that defendant was in bad. faith.

Alfred Carmouche, a horse doctor, testified, pages 5 and 6.

“Q. Do you know the biggest horse of the two?
“A. Yes, sir.
“Q. How long have you known him?
“A. About a year.
“Q. How come you to know that horse?
“A. He asked me to treat that horse for sore eyes.
“Q. Was it blind in one eye?
“A. Yes, sir.
“Q. Is that the eye that you treated, or was it the other one?
“A. The other one.
“Q. What was the trouble with that eye?
“A. Water was running in the comer of his eye and I treated it.
“Q. How long did you treat that horse?
“A. About a week.
“Q. That was before he sold it to Mr. Lachenaye?
“A. • Yes. About a ■ month before.
“Q. Was it in a very bad condition?
“A. Not so very,
"Q. Did you believe that horse was cured forever?
“A. When I took the horse to him his eye was all right, and I told him it was,, and he wanted me to guarantee that it was cured forever. Of course I could not do that, but I had done some harder work on other horses and had saved their sights, but I could not guarantee that this horse was cured forever.
“Q. Was that eye very much affected?
“A. Not so much.
“Q. You say you treated the horse about a month before the sale?
“A. Yes, sir.
“Q. You say the condition of the eye ’was that it was watery?
“A. Yes, sir.
“Q. How long did you treat that eye?
“A. About a week.
“Q. Did you treat the eye to stop the water? .
“A. Yes, sir.
“Q. After you treated the horse for a week you stopped because you thought it was cured?
“A. Yes, sir, it was cured.
“Q. And it did not need any more treatment?
“A. No. I went there to be paid and before paying me he asked me to guarantee the treatment and I told him it was- all right now, but that I could not guarantee it, because no one but God could do that.
“Q. You considered the eye to be in •perfect condition when you went for your pay?
“A. Yes, sir.
“Q. You told Mr. Bergeron it was all right?
“A. Yes, sir, it was. •

This evidence on the part of plaintiff’s witness we think unquestionably acquits defendant of any bad faith.

In our opinion plaintiff’s contention' that defendant was in bad faith and knew that the horse would soon be blind is not consistent or reconcilable with his contention that defendant guaranteed the horse’s eye to be a good, well eye.

Under all the evidence in the case, we are convinced that plaintiff has failed to discharge the burden of proof resting upon him;

It is therfore ordered, adjudged and de-. creed that the judgment of the lower court be and the same is hereby reversed and plaintiff’s demand rejected and his suit dismissed at his cost.


author: ODOM, J. CARVER, J.

text:
    No. 2291.
    Second Circuit Appeal.
    WILLIAM C. HEINE v. HILL, HARRIS & COMPANY, INC.
    (June 13, 1925, Opinion and Decree.)
    (July 11, 1925, Rehearing refused.)

      (Syllabus by the Editor.)

    1. Louisiana Digest — Master and Servant-Par. 156.
    Where, under Employers’ Liability Act No. 20 of 1914, A was engaged to apply roofing material at a specified sum per square, no particular contract being made for each job but the employer depending on him to do the work, or have it done, the fact that he was paid * by the square does not change A’s status as employee and not contractor.
    2. Louisiana Digest — Master and Servant— Par. 156.
    Where, under Employers’ Liability Act No. 20 of 1914, A was given instructions when and where to work and his employer objected to his working for others, and on this objection he abstained is an employee and not a contractor, even though he was paid at a specified sum per square.
    (Sec. 8, Subsection 1 (b) of-Act 20 of 1914. Editor’s note).
    Appeal from Thirteenth Judicial District Court of Louisiana, Parish of Rapides, Hon. John A. Williams, Judge.
    This is a suit under Employers’ Liability Act No. 20 of 1914 for compensation.
    There was judgment for defendant and plaintiff appealed. ' •
    Judgment reversed.
    White, Holloman & White, of Alexandria, attorneys for plaintiff, appellant.
    Thornton, Gist & Ritchey, of Alexandria, attorneys for defendant, appellee.
   ODOM, J.

This is ' a suit under the Workmen’s Compensation. Law.

Plaintiff sues defendant to recover $18 per week for 400 weeks commencing September 26, 1923, and for the further sum of $250 for medical services, hospital bills, etc., incurred during his illness.

He sets out as a cause of action that he was employed by defendant to put a roof on a building owned by Dave Caplan which defendant had contracted to cover, and while at work putting on said roof he fell and as a result of the fall his back was fractured, his lower spine and lower limbs completely paralysed, and that he is totally disabled to do any work of a reasonable character.

There is no dispute of the fact that while putting a roof on the said building the plaintiff fell and was injured as above set forth.

The only defence to the suit is that the plaintiff was an independent contractor and not an employee.

The lower court held that the plaintiff was an independent contractor and rejected his demand. Prom that judgment plaintiff has appealed.

OPINION.

The defendant, Hill, Harris & Co. Inc., had a contract to put a roof .on a house belonging to Dave Caplan in Alexandria, Louisiana. It employed plaintiff to do the work, and while putting this .roof on plaintiff fell and injured his back and as a result of the injury his lower spine and lower limbs are paralysed so that he is totally disabled to do work of any reasonable character.

If he is entitled to recover at all, he should recover what he sues for, to wit: $18 per week for 400 weeks, the maximum amount allowed under the law.

The only question presented for our determination is, whether plaintiff was a servant or employee of defendant or whether he was an independent contractor. If an independent contractor, he cannot recover, of course.

The defendant, Hill, Harris & Co. Inc., is engaged in a general building material business. It handles practically everything that goes into the construction of houses, and along with other material it handles a roofing material known as Bird & Son’s roofing. This is a composition roofing which is put up in rolls.

The defendant sells this roofing by the roll or “square” to the customer, to be applied by the customer, or it sells it “applied”, .that is, it sells it and takes contracts to put roofs on houses for so much per “square”, furnishing all material and labor to complete a roof and guarantees the roof it puts on of that material for a period of ten years.

The defendant does quite an extensive roofing business. Decidedly more than any other concern in Alexandria. While it sells Bird & Son roofing to any and all customers who desire it, the record shows that it makes a specialty of contract work, that is, selling the Bird & Son roof applied. It had a city salesman who went out into the city and solicited business of this kind for it. When a customer was found, it made a proposal, set out in a printed form which reads as follows:

“Job No.
“Roofing Proposal No.
“To
“Address:
“Dear Sir:
“We agree to furnish and apply._______________ Bird & Son’s______________________Roofing on________________ located at________________ for the sum of---------------complete (including) (excluding) flashings of all kind in accordance with specifications attached hereto which are a part of this agreement under the following terms and conditions. This' proposal is limited to thirty days acceptance. We agree to have application work done in accordance ■with, manufacturer’s specifications, in a neat and workmanlike manner. Work to be completed providing building is in proper condition for roofing application.”

Following the above is a printed guarantee in which it is stated that Bird & Son, Inc., guarantee its roofing material to be free from manufacturing defects, and if applied according to the specifications found on each roll will give satisfactory service for ten years.

This is signed by Hill, Harris & Co. Inc., and under the signature is the following:

“W. C. Heine does our application work.”

If this proposal is accepted by the owner of the building, defendant “books the job” and at once communicates with Heine, the plaintiff in this case, that it has secured the contract to do the work. Defendant sends all the material necessary for the roof to the building and Heine applies it.

The agreement which defendant has with Heine is as follows: He is to furnish all labor and all tools and implements necessary for putting on the roofing and he received $1.50 per square for ordinary roofing and $2.00 per spquare if built up roofing. As stated, defendant furnishes and delivers at the building all the material.

Heine worked as a laborer himself and employed whatever helpers he desired— ordinarily only one, but he had, on occasion, employed as many as two. He fixed the price to be paid his helpers, paid them when he saw fit and discharged them at will. He set his own hours of work; he could work two hours or ten hours a day or not at all on any given day if he saw fit. All he had to do was to complete the work by a certain time according to the plans and specifications furnished by the manufacturer of the roofing material. The only restriction he was under as to the application of the material was that it should be- applied according to those specifications. When he finished a piece of work he reported it to defendant with the number of squares. The defendant at once inspected or had inspected the work and if done according to the specifications it credited him on its books with the amount due him, which was $1.50 per square. He collected what was due him either when the work was completed or later as he saw fit. If there was another piece of work ready or him he went to work on it and if there was none ready he waited for another job.

In view of the above conditions, defendant contends that plaintiff was an independent contractor and not an employee of defendant.

It is pointed out that plaintiff was paid so much per square or piece for his’ work; that he furnished his own tools and implements; that he -employed his own help, fixed their wages, paid them and discharged them at will; that he worked such hours as he saw fit, and did the work not under orders from defendant, but according to specifications furnished by Bird & Son, manufacturer of .the roofing material; that defendant had no control over plaintiff; and that plaintiff was responsible to defendant only for the results, and that the means to attain the end were under .plaintiff’s control.

Defendant invokes the general rule, which is as follows:

“One who contracts to do a specific piece of work, furnishing his own assistance and executing the work either entirely in accordance with his own ideas or in accordance with a plan previously given him by the person for whom the work is done, without being subject to the orders of the latter in respect of the details of the work, is clearly a contractor and not a servant.”

In other words, a master is one who directs not only the end to be attained but also prescribes or reserves the right at any time to direct the means and methods of doing the work, and that -the question whether one is a servant or employee on the one -hand or an independent contractor on the other, turns on the point of control which is retained by the one having the work done.

In the case of Bell vs. Albert Hanson Lumber Co., 151 La. 824, 92 South. 350, Justice Provosty, as the organ of the court, said:

“The test applied in such cases usually is whether the power of superintendence and control has. been retained by the employer; but that test while useful, as a general proposition, aids little in many cases towards the solution of the problem.”

He then quotes from Ruling Case Law, volume 28, page 62, to the effect that all courts are agreed' in respect to the expression of the general rule, yet the results reached in its application to particular cases are often very contradictory and that much latitude must be conceded to the varying facts and circumstances. He states that very often the decisions have been in direct conflict “in which situation the principle of stare decisis is of doubtful value”.

In connection with and in addition to the above facts with reference to the employment of the plaintiff in this base, there are others which must be considered in determining whether plaintiff was an employee of defendant or simply an independent contractor.

Heine, the plaintiff, was an expert roofing engineer. He was engaged in this trade in the city of Alexandria and put on or applied roofing of any and all makes that the owner desired. It seems that he had considerable reputation as an expert and his services as a roofer were very much in demand. He had attracted the attention not only of the local people but the manufacturer of Bird & Sons’ roof material, or its representatives, had heard of him and had become impressed with the idea that he would be a good man to apply its roofing.

When Bird & Son, Inc., gave the defendant the exclusive agency for its roofing material at Alexandria, it recommended plaintiff as the best man to apply it. Defendant at once sought his services. Plaintiff charged $1.50 per square to apply the roofing, which defendant was willing to- pay. Defendant sought .contracts for putting on roofs complete and advertised that W. T. Heine would do the work. Heine’s reputation helped defendant build up the largest roofing business in .that community.

At the time defendant secured the agency for Bird & Son’s roofing the plaintiff was putting on roofing for any one who sought his services and he would use the kind of material furnished by the owner. But defendant objected to plaintiff applying any roofing material except Bird & Son’s for which it had the exclusive agency, and while Mr. Harris of the defendant company says that Heine could have done work for other people, using other material, if he had so desired, and that, of course, is true, yet it is a fact, as abundantly disclosed by the record, that they objected to his applying other roofing material, and that for a considerable period of time prior to the accident Heine had done no work except for this defendant.

Of course, Heine could have broken away from defendant at any time, but it is a fact that defendant took him out <5f the market insofar as employment by others was concerned.

Using Heine’s reputation and skill and the good qualities of Bird & Son’s roofing as an advertisement, defendant built up quite a business.

It did not want Heine to apply other roof material because, as Mr. Bryan, city salesman of defendant company, ■ testified, if they permitted him to do so

. “We would lose the sale of the roof, of course.”

and he was asked: (Page 43)

“And that was the particular objection that Mr. Harris had to Mr. Heine, the plaintiff in this case, applying the Palfrey roof?”

And he was asked (page 43).

“Yes, sir, and then it established a precedent, that we had him working for us and let him go out and work for others, too.”

On page 39 Mr. Bryan says that he talked with Mr. Harris of the defendant company about Heine’s doing work for others and—

“We talked about that and it was considered not to be good policy for him to apply other roofs than Bird’s, for we sold the roofs applied on the house, and guaranteed the labor and material”.

And he said—

“I don’t recall any special jobs that that conversation came up over, but it was understood and agreed that it would not be good policy”.

He was then asked if Mr. Harris instructed Heine not to put on any other roof than through Hill, Harris & Co., Inc., and he stated that on one occasion he solicited the business of putting on a roof for Mr. L. F. Brice; that Brice had bought his material from Mr. Palfrey; a competitor in the roofing business of Hill, Harris & Company, Inc., and that Mr. Brice told him that Heine was an expert and he wanted him to apply the roof but it was objected to because the roofing material was not Bird & Son’s, and he was asked:

“Who made the objection to Mr. Heine applying the Palfrey roof’”

And he said—

“Mr. Harris said that he didn’t care to have Mr. Heine apply any roofs except those that we handled.”

Mr. Harris was asked, page 67:

“Did you object to his applying roofs during the time from February to September, for anybody else?”

And he said:

“The only thing that he could have construed as an objection was this. As long as we had orders on our books for roof jobs to be applied, we naturally expected him to give us preference, and I didn’t want him to quit our jobs and go apply roofs for somebody else”.

Again, he was asked:

“Did you tell him.that?”

And he answered:

“I didn’t tell him not to do it, but he naturally wanted to comply with my request in that instance.”

And on page 69 Mr. Harris said:

“We were giving Heine the preference of all our roof contracts and expected that Heine give our work the preference. There were times that our work was delayed account of Heine doing work for outside people, and I didn’t like that for it delayed our jobs.”

Mr. L. S. Brice testified that he had purchased roof material from Palfrey and wanted Heine to apply it; that he spoke to Heine about it and Heine told him he Would have to see Hill, Harris & Co., Inc., about it; that he went to Hill, Harris & Co., Inc., and asked it to let Heine do the work and it refused and as a result he purchased Bird & Son’s roof from Hill, Harris & Company, Inc., in order to get the services of Heine in applying it. He said that he asked Mr. Harris, of the defendant company, to let Heine, the plaintiff, put the Palfrey roofing on, and that Mr. Harris would. not agree to let him do it.

Mr. Heine, the plaintiff, testified that defendant objected to his putting on roofing for any one else, and that after defendant urged the objection — which was about the month of June — he did work for no one else.

Mr. Harris testified that Heine had done work for other people, and that is no doubt true, but we find that after the Brice incident and after defendant had objected, Heine did work for no one else. Mr. Harris said he did, but he was called upon to specify some particular work but could not do so.

It is also in evidence that the Day Builders and other roofing concerns wanted Heine to put a roof on the Power House and that defendant objected. Heine did not do the work although he says he could have made something on the job and wanted to do the work.

The testimony satisfies us that while Mr. Heine did work for others for a while, he ultimately abandoned all other work and confined his energies to contracts which defendant secured and , that he worked for it exclusively.

It is perfectly clear also that defendants solicited and succeeded in building up a large roof business by advertising and holding out that Heine would do the work. They had printed on their contracts :

“W. T. Heine does our application work.”

Defendant exploited not only the good qualities of the roofing material which it was selling but the skill and reputation of Heine as well. Heine became identified with and was a part of defendant’s roof business. He was considered in connection with every contract secured by defendant. The trade understood that if they bought Bird & Son’s roofing from defendant they bought also the services of Heine to apply that roofing, and it was generally understood also that unless they bought Bird & Son’s roofing from defendant they could not secure the services of Heine for-applying it.

Under the circumstances shown by the record Heine was as much an employee of defendant as if he had been on the payroll at so much per week or month. It is true that he was not carried on the payroll as an employee. He did work by the piece. He was paid so much per square for applying the roof.

It makes no difference, however, whether he was paid by the day or week or month, or whether he was paid so much per square, for his work:

See Burt vs. Davis Lumber Co., 157 La. 111, 102 South. 87.

Bell vs. Albert Hansen Lumber Co., 151 La. 824, 92 South. 350, Dick vs. Gravel Co., 152 La. 993, 95 South. 99.

It must be noted that there was no separate contract entered into for each job. Harris of the defendant- company says that each job was a separate contract. That is true, as is shown by all the testimony, only insofar as the remuneration of Heine was concerned. He was credited on defendant’s books for the amount due him for each piece of work, and in that sense each job was a separate contract.

But the facts are that no specific contract was entered into between the defendant and the plaintiff for doing any specific piece of work. When defendant secured a roofing job all it did was to notify the plaintiff that it had the contract and Heine proceeded to do the work just as he had done work on every other contract previous to that time. Instead of his entering into a contract for each specific piece of work, his employment with defendant was continuous and, as stated, when defendant secured a contract it ordered Heine to do the work and when the work was done he was paid for his services according to the number of squares which he had put on in that particular job.

As we view it, this is a case where the defendant solicited and obtained business on the representation that it had an expert to apply the roof and when the contract was closed defendant sent its man, Heine, to do the work and when it was finished it credited him with the amount due him at so much per square.

It is contended by defendant that Heine did the work according to his own method, without being subject to the control of defendant, except as to the results of the work, and that he was, therefore, an independent contractor.

It is true that Heine was furnished specifications for applying the roofing and, being an expert, he knew more about how .to apply the material than did the defendant, and very likely he used his own judgment and method in applying it and to that extent was independent and not subject to the control of defendant. But he was independent to that extent only.

The defendant gave plaintiff, instructions when and where to work. It transferred him from one job to another, on one occasion even though the former job was not finished. It objected to his doing work for others and upon this objection he abstained. On one occasion he was applying the strips across the building and defendant had him apply them lengthwise. Brice asked him to do work for him and he told Brice to see defendant. Heine himself says that it was his wish and desire and that as a matter of fact he did at all times just what defendant wanted him to do; and while it is true that he was not under the control of the defendant insofar as the method of applying the roofing was concerned, yet in other ways he was under the control of defendant. He had ceased to do work for other people. The defendant company not only expected him to do its work and to be subject to its call for doing the work, as testified to by Mr. Bryan of the defendant company, but Heine gave the whole of his time to defendant if it should have sufficient work to occupy him during all of the time.

Mr. Harris of the defendant company states that he did not like it when Heine permitted outside work to interfere with defendant’s jobs; and it is shown that subsequently to his signifying his objection Heine gave up all outside work. Harris says they could have discharged, Heine any time and that Heine could have quit at any time.

Under such conditions we hold that Heine was an employee of the defendant company just as much so as if he had been carried on its books at a stipulated, wage or salary per month.

He was an employee under our workmen’s compensation statute. We think there is no question about it under the general law and jurisprudence of this State.

As already stated, the plaintiff, if entitled to recover any sum, is entitled to recover the full amount for which he sues. He was totally and permanently disabled. He is entitled to the maximum amount allowed under the statute, which is $18.00 per week during his disability not exceeding 400 weeks.

It is admitted that he incurred medical and hospital expenses amounting to $250.00, and he asks for judgment for that amount also.

We think the lower court erred in holding that the plaintiff was an independent contractor.

For the reasons assigned, it is, therefore, ordered, adjudged and decreed that the judgment appealed from be avoided and reversed, and it is now ordered, adjudged and decreed that the plaintiff, W. T. Heine, have judgment in his favor and against the defendant, Hill, Harris & Company, -Inc., for the sum of $18.00 per week during his disability for a period not exceeding 400 weeks, commencing September 26, 1923, with 5% per annum interest on the weekly payments from the date they are due; and judgment for $250.00 for medical and hospital expenses, together with legal interest on the same from date of expenditure. The defendant to pay all costs of this suit.

ON APPLICATION FOR REHEARING.

CARVER, J.

Defendant’s counsel earnestly urge that we erred in holding that defendant had any control over plaintiff other than in accordance with the plans and specifications, which control, they say, is the real test in determining whether plaintiff was a servant or an independent contractor, and in holding that the case is governed by the decisions in Dick vs. Gravel Company, 152 La. 993, 95 South. 99; Bell vs. Hanson Lumber Co., 151 La. 824, 92 South, 350; and Burt vs. Davis, 157 La. 111, 102 South. 87, instead of the decisions in Clark vs. Tall Timber Lumber Co., 140 La. 380, 73 South. 239; and Helton vs. Tall Timber Co., 148 La. 180, 86 South. 729.

Amongst other citations, substantially to the same, effect, they cite 26 Cyc. 1546 as follows:

“An independent contractor is one who, carrying on an independent business, contracts to do a piece of work according to his own methods, and without being subject to the control of his employer as to the means by which the result is to be accomplished, but only as to the result of the work. • Generally the circumstances which go to show one to be an independent contractor, while separately they may not be conclusive, are the independent nature of his business, the existence of a contract for the performance of a specified piece of work, the agreement to pay a fixed price for the work, the employment of assistants. by the employee who are under his control, the furnishing by him of the necessary materials, and his right to control the work while it is in progress except as to results.
“The rest of the relationship is the right to control. It is not the fact of actual interference with the control but the right to interfere which makqs the difference between an independent contractor and a servant or agent. To enlarge the test is whether the employee represents his employer as to the result of the work only or as to the means as well as the result. If the employee is merely subject to the control or direction of the owner or his agent as to the result to be obtained, he is an independent contractor. If the employee is subject to the control of the employer as to the means, he is not an independent contractor.”

Testing this case by the rule given in this citation, we find that one of the elements, namely, the furnishing of materials, is wholly absént and the others, though they are in a certain sense present yet they are so only in a qualified sense. The fixed price was true only as to laying the Bird roofing. If preparation of the old roof involving carpentry was necessary plaintiff did this and was paid reasonable compensation not fixed in advance. Each roof, of course, was a specific piece of work, but there was no special contract made each time. Defendant in obtaining orders for roofs stated in its printed blanks that plaintiff did its application work, and when it got an order for an applied roof, it simply sent the roofing material to thé building and notified plaintiff to put it on, without negotiating with plaintiff in any manner.

Plaintiff’s business was independent in the sense that he could leave Alexandria and go elsewhere or could engage in some other business there; but considering that defendant had the exclusive sale of Bird roofing, that plaintiff had specialized in putting on that kind of roofing, that defendant’s business in the Bird roofing line was almost if not quite extensive enough to occupy all of plaintiff’s time, that defendant expected if it did not require plaintiff to accord it preference in its work, and that defendant could discharge plaintiff at the end if not in the middle of any job, it seems to us that the resulting situation left plaintiff far from independent in any real sense.

These circumstances gave the defendant the power of control as to means and methods as well as results whether they gave the right of control or not. This power of control extended to the employ,ment of helpers, and plaintiff testifies:

“Q. And he didn’t have anything to do with firing them?
“A. I don’t know whether he did or not, —if he had fired them, I would have had to let them go.

Defendant seeks to minimize the control shown by shifting plaintiff from the Weil to the Milady job by saying that this was done not by order but only by request. Under the situation, though, it seems to us that there was little difference between an order and a request.

Plaintiff had to satisfy defendant or risk losing his job. Besides the domination of the situation which the circumstances above mentioned gave to defendant without an express stipulation giving it control, the printed instructions for laying the roof contain features showing control not only as to results but as to means and methods. These are as follows:

“We do not recommend laying roll roofing in a vertical direction on roofs of less pitch than 4 inches to the foot, tlut the roofing with a sharp knife and always lay the inside of the roll to the weather. * * * In cold weather set cans of cement in hot water before using. Do not set near a fire. Apply with a short stiff brush or putty knife. * * * Begin to lay roofing at the eaves. * * Use staging on steep roofs taking care not to nail into finished roofing.

Furthermore the citation from Cyc. is not nor does it pretend to be an exact formula. Other elements sometimes enter, not therein mentioned. An outstanding one in this case is the fact that essentially the pay that plaintiff received was in an economic sense mainly wages for his own labor rather than profit on the labors of others or return on capital investment.

See Dick vs. Gravel Company, supra.

Plaintiff never employed more than two assistants and seldom more than one and not even one all the time. In appraising the whole situation, his employment of so limited a number of assistants even were his control over them wholly unrestricted, is of little weight as compared to the more dominating features.

Our re-examination of the case has confirmed us in the opinion that the doctrine of the Dick, Bell and Burt cases controls rather than that of the earlier cases of Clark and Hilton. It is to be noted, too, that though the Supreme Court has mentioned the' Hilton case in subsequent decisions it hás not re-affirmed same, and in the Dick case Chief Justice O’Niell expressed the opinion that it should be expressly overruled.

Rehearing refused.


author: WESTERFIELD, J.

text:
    No. 8944
    Orleans Appeal
    PEASLEE-GAULBERT COMPANY v. HENRY S. TURNER
    (June 22, 1925, Opinion and Decree.)

      (Syllabus by the Court.)

    1. Louisiana Digest — Minors—Par. 141, 142.
    Where property of a tutor burdened with a minor’s general mortgage is sold by the sheriff at the instance of an an. terior mortgage creditor, the minor’s mortgage is referred to the proceeds and such amount as is due the tutor should be deposited in the registry of the court. Neither the under-tutor who seeks the fund on behalf of the minors nor a judgment creditor of the tutor whose judgment and the claim upon which it is based, arose subsequently to the claims of the minors, who seeks to apply the amount due the tutor to the payment of his judgment, can obtain possession of. fund.
    Appeal from Civil District Court, Hon. Porter Parker, Judge.
    This is a suit in which the plaintiff, a creditor of a tutor, obtained a judgment against the tutor and made the sheriff garnishee of funds left in his hands from the proceeds of a foreclosure sale against the tutor’s property. The undertutor filed a rule on the tutor to show cause.
    There was judgment on the trial of a rule recognizing plaintiff’s claim to the tutor’s share (one-half) of the funds in the hands of the sheriff.
    The undertutor, the plaintiff in rule, appealed.
    Judgment reversed, ordering the sheriff to deposit the funds in the registry of the court.
    Scott E. Beer, attorney for plaintiff, appellee.
    G. B. Harrison, Jr., Eugene D. Saunders, attorneys for defendant, appellant.
   WESTERFIELD, J.

Henry S. Turner acquired during his marriage certain real estate and executed his notes for the purchase price secured by vendors lien and mortgage. Mrs. Turner died and in due course Turner qualified as natural tutor causing the usual inscription to be placed in the Mortgage Office, resulting in the legal mortgage in favor of his minor children. He filed an account and fixed the share of his wards which was homologated by the court.

Turner’s vendor foreclosed upon the property which was sold and the whole price paid to the Sheriff. After satisfying the claim, of the mortgage creditor there remained in the hands of the sheriff the sum of $1,052.50.

Plaintiff, a creditor of Turner, obtained a judgment against him upon a claim arising since the death of his wife and learning of the surplus in the hands of the Sheriff made the Sheriff garnishee. Robert Dunwody, the under-tutor of the minors filed a rule against Turner, individually, and as tutor, the sheriff and the seizing creditor plaintiff herein calling upon them to show cause why the fund in the Sheriff’s hands should not be turned over to him, Dunwody, for the use and benefit of the minors. In answer to this rule plaintiff waived all claims to one-half of the fund but insisted upon its right to seize the other half -as the property of Turner, its judgment debtor.

Upon the trial of the rule the court recognized plaintiff’s claim to Turner’s share of the fund in the Sheriff’s hands and awarded judgment accordingly. Dunwody, the under-tutor and plaintiff in rule has appealed.

It was admitted in argument, as it well might be, that Dunwody had no claim for the possession of the money. An under-tutor during the administration of a tutor has not authority to receive the funds belonging to the minor, or to invest for his protection proceeds of the sale of property upon which the minors mortgage rested.

The question therefore is whether the seizing creditor is entitled to that portion of the price belonging to its judgment debtor.

It will be remembered that the plaintiffs claim arose subsequent to the dissolution of the community between Turner and his wife and therefore subsequent to the claims of the minors. The judgment was not recorded in the Mortgage Office and plaintiff has proceeded here by fi fa and garnishment. It is argued that the interest of the minors in this fund is problematical since it may develop that Turner at the conclusion of his administration would owe them nothing' and since the legal mortgage of the tutor can only be executed at the conclusion of his function as tutor— Holmes vs. Hemken 6 Rob. 51; Gibbs vs. Lun & Co., 29 La. Ann. 526. But there is no question here of the amount of the tutor’s obligation to the minor. We are considering the disposition of funds resulting from the sale of property upon which the law imposed a mortgage for the security of the rights of the minors pending the tutorship. Such funds represent the property and the minors relation thereto is assimilated to their interest in the property. There could be no question that if the property had not been sold and plaintiffs judgment recorded in the Mortgage Office the rank of the consequent judicial mortgage would be inferior to that of the legal mortgage of the minors. Of course the mortgage of the vendor outranked the minors mortgage and no objection could be .urged to its foreclosure. But when this mortgage is satisfied and there remains a surplus in the hands of the sheriff, such surplus represents the security of the minors converted, ex necessitate, from real estate to personal property: It cannot be paid to the minors since they are not sui juris, nor to the tutor, since such payment would defeat the very purpose of the law relating to the minors mortgage, nor to the under-tutor, because he has no authority to receive it and it certainly can not be given to a judgment creditor whose claim arose subsequent to the tutorship and after all laws relating to the security of minors have" come into operation. What then is to be done with it? The answer is to be found in. the jurisprudence relating to the sale of minors property to effect a partition. We are admonished that this jurisprudence relates to partition proceedings which it is agreed presents a different situation. We can not see the distinction. In both instances the question is the disposition of funds resulting from the sale of property burdened with a minors mortgage and the protection of the minors rights. Whatever may be the purpose of the sale the result is in principle the same the form of the minors security has been changed by legal process beyond the control of the minor or his representative. The minors security in his patrimony is a part of the public policy of our law. It never intended that his security should be more apparent than real and that whenever property subject the legal mortgage should be sold the proceeds might be disposed of without reference to his possible claim against his tutor whether such claims be liquidated or not. Koehl vs. Solari, 47 La. Ann. 891, 17 South. 464; Schmidt vs. Schmidt, 155 La. 102, 98 South. 854; Succession of Viard, 106 La. 76, 30 South. 246; Handlin vs. Dadt, 110 La. 936, 34 South. 881.

In Barton vs. Hickson, 134 La. 278, 63 South. 902, it was held that:

“A sale of real estate by a tutrix of her children, though made after a family meeting was duly held and duly homologated, recommending a sale free of the legal mortgage of the children and the deposit of .the price in the registry of the court until reinvested under orders of the court, passes title to the purchaser, subject to said mortgage, if he accepts title, and the tutrix cannot compel him to accept title.”

The court in deciding the case said that the Koehl vs. Solari decision and others which have followed it did not apply for the reason that “the sales there involved were for the purpose of effecting a partition.” All that was meant by this decision was a declaration in effect that a minor mortgage could not be removed by such a sale even though the proceeds were deposited in the registry of the court. The Solari and other cases in which partition sales were considered the legal mortgage could be removed and referred to the proceeds and the question was as to the proper, disposition of such proceeds. We are not here considering a sale of property burdened with a minor’s mortgage where the mortgage follows the property in the hands of the purchaser as was the situation in Barton vs. Hickman (supra), but á case where the mortgage may unquestionably be removed from the property by a foreclosure sale at the instance of a mortgage creditor with a superior lien a,nd referred to the proceeds. Originally there was only one way, other than by giving a special mortgage, by which the general mortgage of a minor could be removed from his tutor’s property and that a sale at the instance of an anterior mortgage creditor.

For interesting historical discussion of general and special mortgages antecedent and subordinate in execution by sheriff; see Robinson vs. Cosner, 136 La. 595, 67 South. 468.

“We hold that where there exists no anterior mortgage creditor urging payment the general mortgage of a minor can be removed from his tutor’s property by nothing short of a special mortgage given. after compliance with all legal requisites on the subject. Commercial Bank vs. City of New Orleans, 17 La. Ann. 194; Lecarpentier vs. Lecarpentier, 5 La. Ann. 497; Brusle vs. Hamilton, 26 La. Ann. 144.

Life Assn. of America vs. Hall 33 La. Ann. 56.

The codal provisions having been amended there is hbw as we have seen another method by which the minors general mortgage can be removed and that in the case of partition sales. See Act 86 of 1896 amending C. C. Art. 1338.

More recent legislation has further amended the code and another method of removal of the minors general mortgage exists. It is to be hoped that no further amendment is in prospect for little is left of the security originally given minors by our Code whose rights, as Justice Bermudez observed, it watched “with a jealous eye and great solicitude”.

We are of opinion that the balance in the sheriff’s hands should be placed in the registry of the Civil District Court.

It is therefore ordered that the judgment appealed from be reversed and it is now ordered that the Civil Sheriff be directed to deposit in the Registry of the Civil District Court the balance remaining in the hands of the Sheriff belonging to the said Turner defendant in rule, there to remain until the further orders of the court.

Judgment reversed.


text:
    No. 8980
    Orleans Appeal
    EDMOND L. KIMBLE, Appellant, v. MRS. HENRY J. LAGARDE
    (June 22, 1925, Opinion and Decree)

      (Syllabus by the Court.)

    1. Louisiana Digest — Damages—Par. 8, 84.
    In default of proof of actual damages, damages by implication in, a nominal amount will be allowed where there* has been a technical violation of a contract other than for the payment of money and in the absence of fraud.
    2. Louisiana Digest — Damages—Par. 8, 9.
    Where the technical violation of such a contract results in a benefit to the creditor of the contract, the same rule applies and nominal damages will' be allowed.
    Appeal from Civil District Court, Hon. Porter Parker, Judge.
    This is a suit to recover damages alleged for violation of contract. There was judgment for defendant and plaintiff appealed.
    Judgment reversed.
    H. W. Kaiser, attorney for plaintiff and appellant.
    Carbajal & Gaudin, attorneys for defendant and appellee.
   WESTERFIELD, J.

Plaintiff sues for $1000.00 upon the following cause of action:

On January 27, 1921, Mrs. Lagarde, defendant herein, entered into an agreement with plaintiff to sell him a double house on St. Mary street in this city for the sum of $7000.00. The following stipulation was in the agreement to sell:

“Said property to be leased at seventy ($70.00) dollars per month, expiring September 30, 1921. Leases to be transferred to buyer at a date of act of sale.”

On April 11, 1921, the act of sale was passed before A. R. Beary, • notary public. The certificate of the Conveyance Office in the name of the vendor was clear, no lease of any kind appearing thereon. The vendor subsequently presented plaintiff with what purported to be copies of two contracts of lease, one for each side of the house, in which it appeared that each tenant had leased for one year, expiring September 30, 1921, a side of the property for a monthly rental of $36.00. No mention was made in either of the copies handed plaintiff of any privilege of renewal. On July 9, 1921, Kimble, plaintiff herein, entered into an agreement with A. D. Gulette to sell him the property he had bought from defendant for $7000.00 for $8000.00. Shortly after this agreement was made the tenants occupying the property, hearing of the proposed sale to Gulette, notified Kimble that under their lease with Mrs. Lagarde they were entitled to renew their lease for another year upon the same terms. The tenants produced their contracts of lease and it then appeared that the copy held by the tenants contained a clause giving them the option of renewal for another year and that this clause did not appear in the copies given plaintiff by Mrs. Lagarde. It also appears that the lease had been registered in the Conveyance Office with the clause in it and was so registered when Kimble took title though for some unexplained reason it did not appear upon the certificate of the Conveyance Office attached -to the act of sale before Beary.

Gulette, hearing of the tenants’ privilege of renewal for another year, refused to take the property and plaintiff thereupon brought this suit. From an adverse judgment below plaintiff has appealed.

There is no suggestion of fraud on defendant’s part. The failure of the copies of the leases held by her and given plaintiff to contain the renewal clause is attributable to inadvertence only. There can be no doubt that defendant warranted the premises free of tenants after September 30, 1921, and that if plaintiff has been damaged because of her failure to live up to her agreement she must be held answerable therefor. The question is was plaintiff damaged?

He was deprived of an opportunity' to sell the property at a gross profit of $1000.00 to Gulette and he received only $36.00 per side, or $72.00 per month, for a period of one year, when the evidence shows the rental value for that year to have been $40.00 per side, or $80.00 per month, a difference of $96.00 for the year.

As to the loss of the profit upon the proposed sale to Gulette, defendant says the sale was not assured, but depended upon plaintiff’s proposed vendor, Gulette, getting “sufficient money to swing the deal” from the homestead. The offer of Gulette, thus conditioned, is not very satisfactory evidence of the value of the property at that time and measure of plaintiff’s loss by his failure to mahe the sale, but allowing plaintiff every advantage which this incident afforded, there is evidence in the record firmly establishing the fact that at the time of the trial of the case the property had increased in value in excess of one thousand dollars. The situation, therefore, is one in which defendant’s default in her obligation resulted in a benefit to plaintiff, for in preventing him from ' selling the property and forcing him to hold it for another year she has caused him to be benefited by the increment in value.

Art. 1934, R. C. C., reads as follows:

“Where the object of the contract is anything but the payment of money, the damages due the creditor for its breach on the amount, of the loss he has sustained, and the profit of which he has been deprived, under the following exceptions and modifications.”

The exceptions referred to do not concern us here. However, our courts have held that nominal damages are due for breach of contract without proof .of actual damages. La. Digest, Vol. 11, Verbo Damages, page 799, and authorities there cited. See also Green vs. Consol. Dairy Co., 113 La. 869, 37 South. 858.

The principle upon which these cases rests is that the failure to prove actual damage should not put the costs upon plaintiff where defendant has been guilty of a technical violation of the contract.

“In default of proof of actual damages, damage by implication remains for the technical violation of the contract when facts have been shown which would authorize the assessment of an appreciable amount in damages, if proved. In such cases the amount is inappreciable, and is given to save costs to the plaintiff.”

Judice vs. So. Pac. Co., 47 La. Ann. 257, 16 South. 816.

In the instant case not only has plaintiff proved no damage but the record shows a benefit has resulted to plaintiff. However, the same ijiile is applicable. Whatever seeming inconsistency with the provisions of our Code to the effect that in contracts, other than those for the payment of money, the damages will be limited to those within the contemplation of the parties in the absence of bad faith, this jurisprudence may present it is nevertheless the law. See Judice vs. So. Pac. Co., supra.

From Corpus Juris, Vol. 17, Verbo Damages, p. 726, we quote the following:

“Even where a benefit has resulted from the wrong done or the right violated, plaintiff can recover nominal damages, and ordinarily he is limited to such recovery.”

In Pond vs. Merrifield, 12 (Cash) Moss 181, damages in the sum of one cent was awarded for the violation of a contract which resulted in benefit to the creditor of the obligation. The syllabus in this, case reads:

“A contracted with M to erect a building in a certain time and according to certain specifications. P advanced money to M for. the purpose of completing the building, which loan was secured by a mortgage thereon and also took a penal bond from M to complete said building by a certain time and according to the' contract. The work was not done exactly according to the time or tefms of the contract and P, the mortgagee, was compelled to pay extra insurance on the building in consequence; but the extra work and labor of M on the building increased its value as a security to P, to an amount more than all the deficiencies and delay, In not exactly complying with the contract, including also the item of extra insurance. Held, that P could recover only nominal damages of M for breach of the bond.”

In Murphy vs. City of Fond du Lac, 23 Wis. 365, it was held that the.lower court erred in instructing the jury that, although dirt placed upon plaintiff’s lot may have improved its value, she would be entitled to recover as damages what it would cost to remove the same, saying, “The fact that a trespass may have benefited the property invaded cannot constitute a complete defense. The party is always entitled to nominal damages for the' vindication and protection of his right. But beyond this, except in cases where exemplary damages may be given, he is confined to his actual damages. And this being so, the incorrectness of the instruction is apparent. It assumes that the jury might be satisfied from the evidence that the placing of the dirt on the lot was really a benefit to it and increased its value, yet to be required to give the plaintiff as damages what it would cost to remove it.”

Insofar as the rental which plaintiff might have obtained which is put at $80.00 per month instead of $72.00 which, under the lease, he was forced to accept, it is evident that this loss was more than offset by the increment in the property. One witness placed upon the stand by plaintiff estimated the property to be worth $9300.00, another $8500.00, and plaintiff himself said that “at the' present rental, I would sell for- $8000.00 to $9000.00. It will be remembered' that the property cost plaintiff $7000.00 and he complains that he was de.prived of an opportunity to sell at a profit of $1000.00.

For the reasons assigned the judgment appealed from is reversed and it is now ordered that plaintiff have judgment as prayed for in the sum of thirty cents.


text:
    No. 9007
    Orleans Appeal
    LEO FELLMAN, Appellant, v. EUGENE E. ECUYER, ET AL.
    (June 22, 1925, Opinion and Decree)

      (Syllabus by the Court.)

    1." Louisiana Digest — Brokers—.Par. 17.
    A real estate agent is not entitled to a commission upon a lease confected by an owner dealing directly with the lessee, though the lessee was originally solicited by the agent and introduced by the agent to the owner, where it appears that the owner did not interfere with the agent in his effort to consummate the lease, and the agent voluntarily abandoned negotiations and left the city on his vacation.
    Appeal from Civil District Court, Hon. Hugh C. Cage, Judge.
    This is a suit by a real estate broker for a commission or brokerage based upon a lease executed by defendant.
    Judgment for defendant and plaintiff has appealed.
    Judgment affirmed.

      Hall, Monroe & Lemann, Walter J. Suthon, Jr., attorneys for plaintiff and appellant.
    Felix J. Puig, attorney for. defendant and appellee.
   WESTERFIELD, J.

This is a suit by a real estate broker for a commission or brokerage based upon a lease executed by defendant. Defendant denies all liability. There was judgment for defendant and plaintiff has appealed.

The facts as they appear to us are as follow's;

Chas. H. Rosenberg, at the time employed by plaintiff some time in July, 1919, learned through accident that the property owned by defendant known as 140 Carondelet street would be Vacant as, of October, 1919. Rosenberg also knew that W. E. Seebold, an engraver and dealer in stationery, contemplated moving his business establishment and sought to interest Seebold in the rental of defendant’s property. He called upon the father of the present defendants, the then owner of the property, and obtained permission to offer the property to Seebold upon the basis of a monthly rental of $450.00. Defendants’ father died during the negotiations and Rosenberg continued the negotiations with his son, one of the defendants herein. He arranged a meeting with Ecuyer, Seebold and himself after the death of Ecuyer, Sr., and endeavored to consummate the lease without success. See-bold, who had been paying $275 per month, was unwilling to' pay $450, and Ecuyer would make no concession. Rosenberg then endeavored to interest Seebold in other properties which he thought suitable for Seebold’s - business and Seebold, himself, sought another location at a more moderate rental. While matters were in this state Rosenberg leaves the city on a vacation and is absent about three weeks. Upon his return he discovers that Seebold has rented the Ecuyer property and upon the basis of $450.00 per month as originally offered. Rosenberg reports the situation to his employer and demand is made for a commission, which is refused.

Rosenberg had no express authority to represent Ecuyer,- but Ecuyer’s acceptance of his volunteered services implies an obligation to pay his compensation and he is liable if Rosenberg’s connection With the transaction would otherwise entitle him to a commission. Harvey vs. Winters, 8723 Orl. App. (1 La. App. 383.)

Seebold testifying as a witness for plaintiff says that Rosenberg’s effort to interest him in the property completely failed because of the rental demanded, and that he had abandoned the idea of getting the Ecuyer property and was actively engaged in seeking another location, and that Rosenberg was endeavoring to assist him; that he happened to enter the Ecuyer building for the purpose of transacting some business with a Mr. Robbert, an optician, and at that tiriie a tenant of the second floor of the Ecuyer building; that he mentioned to Robbert his desire to and difficulty in getting located and referred to the rental demanded by Ecuyer as being too high; that Robbert suggested his (Seebold’s) going to see E,cuyer himself and trying to have the rent reduced; that he (Seebold) accepted the suggestion and called upon Ecuyer, and finding it impossible to induce Ecuyer to reduce the-rent, he closed the deal upon Ecuyer’s terms conditioned upon certain repairs being made. Counsel insists that Seebold is mistaken and that he is not bound by his testimony under the rule that a party cannot impeach his own witness, citing 28 R. C. L. 643. It is also argued that Rosenberg’s testimony to the contrary being affirmative is entitled to more weight than Seebold’s negative evidence. But Seebold is without interest in this suit and we see no reason why he should not fairly state the facts. All parol evidence "is subject to qualification due to human imperfections, but where the evidence of one witness is subject only to such qualification as his capacity for accurate recollection presents and that of another is affected by his interest in the subject matter plus the normal infirmities of memory, it is but a recognition of human characteristics to say that the testimony of the former is more to be relied upon than the latter, and this is true whether the one or the other testify affirmatively or negatively. We therefore accept Mr. Seebold’s testimony at its face value.

Counsel cites the early case, Gottschalk vs. Jennings, 1 La. Ann. 5. In that case as in this the broker first introduced the purchaser and the purchaser, in that case as in this, testified that he considered negotiations abandoned and the deal off, though subsequently revived and consummated for a consideration considerably less. The broker was allowed his commission upon the price for Which the property was finally sold by another agent after the owner had taken the property out of Gottschalk’s hands.

In Barker vs. Jung, 13 Orl. App. 280, this court allowed plaintiff a commission under circumstances somewhat similar to those obtaining in the instant case. The case of Gottschalk vs. Jennings (supra) is cited among other authorities. In that case the court said: “It is true- that at the expiration of several days the brokers failed to secure Cotton as a buyer. But when they failed Jung took up the cue and consummated the sale with the purchaser.” In the cited case of J. R. Grand Agency vs. Storing, 156 La. 1096, 101 South. 723, the . agent sent the prospective purchaser to the owner for the purpose of having the owner close the sale and requested the owner to protect him in his commission. The court allowed the commission, saying:

“It is generally held that the right of a real estate broker to his commission is not affected by a sale of the property by the owner himself at a less price than that for which he had authorized the broker to sell. Where he interfered and made such sale to the broker’s customer, pending negotiations which to ■ his knowledge had been begun with the purchaser by the broker, thus preventing the broker from completing the sale.”

In the instant case the agent was not deprived of an opportunity to complete the work he had begun by the owner taking the property out of his hands nor was the purchaser sent to the owner to complete the deal. The owner’s relation to the negotiations was entirely passive. He recognized his obligation to pay plaintiff his commission if he succeeded and awaited developments. Seebold gave up the idea of renting the property and apparently Rosenberg did also, for he left the city on his vacation without, so far as the record shows, having his employer, plaintiff herein, take up negotiations or assign another employee for that purpose. The mere fact that the lease was ultimately made to See-bold who was first introduced by Rosenberg does not entitle plaintiff to a commission.

In Junk, et al., vs. Golden Ranch Sugar and Cattle Company, 122 La. 794, 48 South. 267, it was held:

“Under the facts of the case, which show that plans for sale arranged with certain persons by plaintiff fell through, and that afterwards one of the persons concerned in the former plan, together with a stranger to it, purchased the property directly from defendant, the verdict of the jury and the judgment rendered thereon are erroneous, and the same are set aside, annulled and reversed, for plaintiffs were not entitled to commission on the final sale.”

In Lewis vs. Manson, 132 La. 817, 61 South. 835, it was held:

“Where a broker has had a reasonable time to effect a sale, and he fails to do so, the principal may take negotiations out of his hands and complete them himself; and the fact that the sale was made to a customer represented by the broker, and that the sale was in some degree aided by the previous unsuccessful efforts of the broker, does not give the broker a right to a commission.”

In Harvey vs. Winters, No. 8723 Orl. App., a case in which we allowed a commission claimed by a real estate agent, we recently had occasion to review this question and to discuss the jurisprudence.

We conclude that plaintiff was not the procuring cause of the final confection of the lease and that, though he first introduced the lessor, he abandoned his efforts to bring the lessor and lessee together, left the city and his prospect. That the revival of the transaction did not result from plaintiff’s original efforts which were not continuous.

For the reasons assigned the judgment appealed from is affirmed.


text:
    No. 9043
    Orleans Appeal
    MRS. AMELIA MULL, Appellant, v. SOVEREIGN CAMP OF THE WOODMEN OF THE WORLD
    (June 22, 1925, Opinion and Decree)

      (Syllabus by the Court.)

    1. Louisiana Digest — Associations—Par. 21.
    A false statement by an applicant for fraternal benefit insurance to the effect that he had not consulted a physician for five years and was “never sick” voids’ the certificate of insurance subsequently issued by the fraternal benefit society when the application contains a clause stipulating that any false statement contained therein shall vitiate the insurance. Particularly is this true when the applicant is shown to have been suffering with tuberculosis at the time the application was executed.
    ' Appeal from Civil District Court. Hon. Hugh C. Cage, Judge.
    This is a suit for fraternal benefit insurance. There was judgment for defendant and plaintiff appealed.
    Judgment affirmed.
    Hall, Monroe & Lemann, Walter S. Suthon, Jr., attorneys for plaintiff and appellant.
    Dart, Kernan & Dart, attorneys for defendant and appellee.
   WESTERFIELD, J.

Plaintiff alleges that she is the widow of the late Abraham Braswell and the beneficiary under a certain death benefit certificate in the sum of one thousand ($1000.00) dollars, issued by the defendant, a fraternal benefit society, in the name of her late husband on February 5, 1920; that her husband died in this city on December 13, 1921, in good standing with the defendant society and having paid all dues and premiums, she prays for judgment for the amount of the certificate.

Defendant, denying all liability, specially pleads “that the late Abraham Braswell in order to induce it to issue its certificate of membership and to insure his life, made application in writing, which application under its terms and under the terms of the said certificate of membership *. * * together with the constitution, laws and bylaws, constituted the entire contract between it and the late Abraham Braswell, and * * * Said membership w’as issued on the faith of the declarations contained in said application”; that in said application deceased made false answers to certain questions, as follows:

1st. In answering “No” to the following question:

Question: “Have you consulted or been attended by any physician for any injury, for the past five years?”
Answer. “No.”

2nd. In answering “No” to the following question:

Question. “Have, you ever had any injury or disease not referred to above?”
Answer. “No.”

3rd. In not filling out and giving therein a full and complete answer to the following form contained in said application and as set forth herein, and making false answer therein as follows:

Disease or Was Recovery

Injury. Date. Duration. Complete. Never Sick.

Name and Address of Medical Attendant:

4th. By stating in said written application that he was in sound bodily health and mind, and that he had no injury or disease that would shorten his life.

5th. In answering, “I did,” to the following question contained therein:

Question. “Did you drink wine, spirits or malt liquors?”
Answer. “I did.”

6th. In answering “No” to- the following question:

Question. “Have you been intoxicated within the past year?”
Answer. “No.”

Further • answering, defendant avers that at the time the application for the certificate of insurance was executed and the answers to the interrogatories contained therein given, (January 26, 1920), deceased was not in good health but, on the contrary, was suffering from pulmonary and intestinal tuberculosis and that the false representations and warranties of plaintiff voided the certificate of insurance issued to him under the following provisions contained in the application of plaintiff:

“I hereby certify, agree and warrant that I am of sound bodily health and mind, that I am temperate in habits and have no injury or disease that will tend to shorten my life. I hereby consent and agree that this application, consisting of two pages, to each of which I have attached my signature, and all the provisions of the constitution and laws of the society, now' in force or that may hereafter be adopted, shall constitute the basis for and form a part of any beneficiary certificate that may be issued to me by the Sovereign Camp of the Woodmen of the World, whether printed or referred to therein or not.
“I hereby certify, agree and warrant that all the statements, representations and answers in this application, consisting of two pages as aforesaid, are full, complete and true, whether written by my own hand or not, and that any statements made by me for reinstatement shall be warranties, and I agree that any untrue statements or answers made' by me in this application, or in any application for reinstatement, or to the examining physician, or any concealment of facts in this application or to the examining physician, intentional or otherwise, or my being suspended or expelled from or voluntarily severing my connection with the society, or if I fail to comply with the laws of the society, now in force or hereaftre adopted, my beneficiary certificate shall become void and all rights of any person or persons thereunder shall be forfeited.”

There was judgment below rejecting plaintiff’s demand and she has appealed.

The evidence satisfies us as it did the judge of the trial court that plaintiff’s husband w’as sick when he applied lor insurance in the defendant society and that he knew of his illness, which was of a serious nature, and withheld these facts from defendant and gave false answers to the interrogatories propounded by the application blank prepared by defendant. There is some testimony to the contrary but it is given by laymen who say in effect that they knew the deceased and saw him often and observed no sign of illness and that he worked steadily at his trade of mattress maker. We can not accept this testimony as against jphysiclans, who declare that the deceased was in an advanced stage of tuberculosis when they were consulted, shortly after the application of deceased was executed and that deceased stated he had been ill for two years. Two doctors have testified to this effect and we see nothing to discredit their testimony.

Plaintiff’s counsel contends that all representations and Warranties contained in the application of deceased were waived by defendant because of a medical examination conducted by the physician of the defendant before the issuance of the certificate of insurance. In other words, in requiring deceased to submit to a medical examination by its own physician and issuing the certificate upon his report, defendant is estopped from questioning plaintiff’s state of health which was presumably satisfactory to it or the certificate would not have been issued. We do not find anything in the record which indicates that such medical examination was made by defendant’s physician and, moreover, the contract of insurance between the parties stipulates that all statements in the application are warranties and if false the contract is void.

Act No. 52 of 1906 provides that all statements purporting to have been made by an insured shall, in the absence of fraud, be deemed representations and not warranties. In consequence of this act statements made by parties applying for insurance need not be literally true but true according to the best of declarant’s knowledge and belief. Cole vs. Mutual Life Ins. Co., 129 La. 704, 56 South. 645.

This act, however, does not apply to the instant case. First, because we find decedent’s statements to have been made in bad faith, and secondly, because Section 4 of Act 256 of 1912 exempts fraternal benefit societies from the provisions of all laws relating to insurance unless such societies are specially mentioned therein.

For the reasons assigned the judgment appealed from is affirmed.


author: CLAIBORNE, J.

text:
    No. 9711
    Orleans Appeal
    HENRY J. KRUMMEL v. EXPORT TRANSFER CO., INC., Appellant
    (June 22, 1925, Opinion and Decree.)

      (Syllabus by the Court.)

    1. Louisiana Digest — Negligence—Par. 25; Automobiles — Par. 7.
    Where the evidence shows that the plaintiff was at fault in an automobile accident, he cannot recover damages suffered by him.
    (Civil Code, Art. 2315. Editor’s note.)
    Appeal from Civil District Court, Hon. Wm. H. Byrnes, Judge.
    This is an automobile damage suit, the result of a collision between an automobile and a truck.
    There was judgment for plaintiff and defendant appealed.
    Judgment reversed.
    Gordon Boswell, Milo B. Williams, attorneys for plaintiff, appellee.
    Janvier and Heller, attorneys for defendant, appellant.
   CLAIBORNE, J.

This is an automobile damage suit.

The plaintiff alleges that on November 7th, 1923, at 4:45 p. m. he was driving a Ford' automobile up Tchoupitoulas street on the Lake side thereof just above its intersection with Poeyfarre street, that at the same time and place a large motor truck belonging to defendant and in charge of its employee, Ernest White, was being driven down Tchoupitoulas street, also on the Lake side of Tchoupitoulas street in the direction of Poeyfarre street; that plaintiff noticed said truck and believed that it would swerve to its right or River side in order to. avoid plaintiff’s car; hut when the truck had approached plantiffs’ car to within one hundred feet without changing its course, plaintiff noticed that the chauffeur whs looking backwards, brought his car to a stop sounde.d his horn, and yelled to the chauffeur, hut to no avail; the truck continued its course and collided head on with petitioner’s car, shoving it back thirty feet to Poeyfarre street, and overturning it upon plaintiff, and then continued some one hundred feet before it. stopped; that plaintiff suffered severe injuries to his head, face, limbs and body; sprains of the left knee and back and the finger on the left hand; that plaintiffs’ wearing apparel was cut and covered with blood, and his wedding ring was filed in two in order to remove it; that the collision' was due entirely to the negligence of defendant’s driver in driving at an excessive speed and to the left instead of to the right.

That plaintiff suffered the following damage. Loss of wages from November 7th, 1923 to Dec. 11th, 1923.

5 weeks at $40________________________________$ 200.00 •

Wearing apparel____________________________ 37.50

Wedding ring ________________________________ 5.00

Physicial injuries____________________________ 1,500.00

Mental • anguish ____________________________ 1,500.00

Impairment of ring finger ________ 1,000.00

$4,242.50

The defendant admitted, the accident and that the truck belonged to it and was driven by its employee, Ernest White, in the course of his employment; but denied that its chauffeur was looking backwards or was driving on his left side; it averred that the plaintiff suddenly drove his car out of Poeyfarre street and turned up Tchoupitoulas. street, and in so doing ran his car into the left rear wheel of defendant’s truck without noticing its approach.

There was judgment in favor of plaintiff for $600 and new trial was refused..

Defendant has appealed.

The issues therefore are:

1st Was the defendant’s truck being driven on the right or the left side . of Tchoupitoulas street?

2nd Did it strike the plaintiff’s car while the latter was stopped and where?

3rd Did plaintiff suddenly drive out Poeyfarre street and up Tchoupitoulas street and strike defendant’s car?

It is evident that if the point of impact was the plaintiff’s left front wheel and defendant’s left rear wheel, that damage must have been done to the defendant’s left rear wheel.

A careful-reading of the record leads us to the conclusion that the preponderance of the testimony establishes the following facts:

Upon the Lake side of Tchoupitoulas street, some feet above Poeyfarre street, there was standing a cooperage wagon with wide lateral wings extending beyond the body of the wagon and other cars.

The defendant’s transfer truck was coming down Tchoupitoulas street some where about the middle of the street. It could not have been traveling upon the left side of the street, presumably because that was the wrong side, and conclusively, because if it had been so driving, it would have struck the wagon before it struck the plaintiff’s car.

The plaintiff was driving his car out Poeyfarre street in the direction of Tchoupitoulas street. When he reached Tchoupitoulas street he turned to the right up Tchoupitoulas street. Under ordinary circumstances he should have made a short turn to the right; but he could not do that owing to the presence of the wide cooperage wagon and other vehicles. He therefore must have described a wider circle in the middle of Tchoupitoulas street. He and the driver of the truck saw each other too late to stop. Hence the collision. The car with its left front wheel struck the left rear part of the truck. The truck being heavier shoved the car back towards Poeyfarre street and finally upset it.

The uncontradicted testimony is that the truck was not injured in front, but that there was evidence of a collision upon the rear left wheel.

Our conclusions are that plaintiff was at fault.

It is therefore ordered that the judgment herein be reversed and set aside; and it is now ordered that there be judgment in favor of defendant rejecting plaintiff’s demand at his cost in both courts.

Judgment reversed.