author: WESTERFIELD, J. CLAIBORNE, J.

text:
    No. 9530.
    Orleans Appeal.
    LORENZO CLEMENTINE v. HUGH RITCHIE
    (Application for a rehearing.)
    (May 19, 1924. Opinion and Decree.)
    (October 6, 1924. Rehearing Refused.)
    (October 6, 1924. Bell, J. Dissents.)
    (October 17, 1924. Concurring Opinion.)

      (Syllabus by the Court.)

    T. Louisiana Digest — Master and Servant, Par. 154, 156.
    One whose business, trade or occupation consists of the building and selling of houses is a principal within the meaning of Section 6 of the Compensation Law and is liable for compensation due any employee engaged in the construction of the houses whether such employee be directly engaged by him or not.
    2. Louisiana Digest — Laws—Par. 26, 27 28, 29 — Master and Servant — Par. 154.
    Section 6 of the Compensation Law as thus construed is not repugnant to the constitutional provisions requiring every act to contain but one object which must be expressed in its title ; and prohibiting the taking of property without due process.
    Appeal from Civil District Court, Hon. Hugh C. Cage, Judge.
    This is a suit for compensation unde the Employers’ Liability Act No. 20 of 1914. There was judgment for defendant and plaintiff appealed.
    Judgment reversed.
    Fd. Rightor, attorney for plaintiff and appellant.
    Daniel Wendling, attorney for defendant and appellee.
   WESTERFIELD, J.

The plaintiff, a negro carpenter, was injured in the course of his employment while working for a contractor by the name of Willis. Willis, at the time of plaintiff’s injury was engaged in the execution of written contract with the defendant, Ritchie, under which Willis undertook to do all the carpenter work on a certain building which Ritchie was erecting on land belonging to him.

Ritchie was engaged in the business of building and selling houses, and this suit is brought against him under the provisions of Section 6 of Act 20 of 1914 (as amended), known as the Workman’s Compensation Act, which provides that the principal shall be liable for any compensation due an employee 'engaged in the execution of the work, whether such employee was directly engaged by him or by a subcontractor.

The defendant contends that the section referred to can have no application to him, because the word principal, as used in the act, means principal contractor and since he is not a contractor and builds for his own account, he cannot be held to be within the intendment of the law. In the alternative, defendant avers that if the act be susceptible of the interpretation contended for by plaintiff, it is void, because it is in conflict with Section 2 of Article 1, Section 16 of Article III and Section 15 of Art. IV of the constitution of Louisiana of 1921, in that the act is broader than its title contains more than one object, and is a taking of property without due process.

There was judgment below in defendant’s favor dismissing plaintiff’s suit and plaintiff has appealed.

The learned judge of the trial court was of opinion that the only construction of the Act which would free it from constitional objection was to hold that it had no application to one who undertakes any work for his own account, as defendant in this case does, thus limiting the provisions of the act to those who undertake the execution of works for others, or contractors, and, since the act was easily susceptible of such construction, applying a familiar rule, he adopted the construction which would save the act from constitutional invalidity.

The Section of the act, reads as follows:

“Section 6. Be it further enacted, etc. That where any person (in this section referred to as principal) undertakes to execute any work, which is a part of his trade, business or occupation or which he had contracted to perform, and contracts with any person (in this section referred to as contractor) for the execution by or under the contractor of the whole or any part of the work undertaken by the • principal, the principal shall be liable to pay to any employee employed in the execution of the work or his dependent any compensation under this act which he would have been liable to pay if that employee had been immediately employed by him; and where compensation is claimed from or proceedings are taken against the principal, then, in the application of this act, reference to the principal shall be substituted for reference to the employer, except that the amount of compensation shall be calculated with reference to the earnings of the employee under the employer by whom he is immediately employed.
2. Where the principal is liable to pay compensation under this section, he shall be entitled to indemnity from any person who independently of this section would have been liable to pay compensation to the employee or his dependent and shall have a cause of action therefor.
3. Nothing in this section shall be construed as preventing an employee or his dependent from recovering compensation under this act from the contractor instead of from the principal.
4.A principal contractor, when sued by an employee of a sub-contractor or his dependent, shall have the right to call in that sub-contractor or any intermediate contractor or contractors as defendant or co-defendant.

We cannot agree with our brother of the District Court in his opinion in this case. We think this section of the law plainly discloses a purpose to make a principal, who undertakes any work for his own account as a part of his trade, business or occupation, liable for compensation due any employee engaged upon the work. It will be observed that paragraph 2 of the section declares that where the principal is liable under this section, he shall have a cause of action against any person who independently of the section, would have to pay the compensation and that paragraph 4 provides that “a principal contractor” when sued by an employee of a sub-contractor, shall have the right to call such sub-contractor or any intermediate contractor as defendant or co-defendant.

There is, therefore, two distinct provisions, one giving a principal a right of action against any person who but for this section of the .act would be liable and another giving a principal contractor the right to call in any sub-contractor or intermediate contractor. If the word principal referred to principal contractors only, why these two provisions? And, moreover, why not say principal contractor and why use the word “principal” at all? The purpose of the act in this regard is further illustrated by paragraph 3, wherein provision is made permitting injured employee or defendant to sue “the contractor instead of the principal.”

Of course, a doctor, or a lawyer, who builds a home would be a principal, but the doctor and lawyer would not be engaged in the occupation of building and selling homes as was the plaintiff in this case.

The learned counsel for plaintiff, after calling our attention to the fact that Section 6 of our law is almost identical with the corresponding section of the' English law, cites the following authorities:

“Honnold on Workmen’s Compensation, Vol. 1, page 127, Section 30, speaking of the word principal, says:
“The principal is a person who undertakes to do work for either himself or another, which forms part of his particular trade or business and has engaged a contractor to do part or all of this work.”

Harper . on Workmen’s Compensation, page 499, Section 242, referring to the corresponding provision of the Illinois act, says:

“The provision, therefore, would not apply to the owner of a lot of land who hired other persons to build a house for him for his own personal use and whose business may be that of teaching school or practicing law.”

At page 500, Harper says:

“The construction given to the language of the English act also is that if a person carrying on a business which is within the act employs a contractor to do any part of the work, such person should be compelled- to compensate the injured workman of the contractor, but he should not be so liable if the work executed by the contractor was merely ancillary or incidental to and was no part of the process of the trade or business carried on by the person employing the contractor."

Bradbury on Workmen’s Compensation, (3rd edition), page 264, says:

“The Workmen’s Compensation Laws have created entirely new relations between principals and principal contractors and the employees of contractors and sub-contractors. Under many of the compensation acts principals and principal contractors are liable directly to the employees of contractors and sub-contractors.”

John Chartres, in Judicial Interpretation of the Workmen’s Compensation Law, a work on the English act, at page 2, heading “Principals”, says:

“The principal is a person who has undertaken to do work, that is contracted to do work for another person or else is doing on his own account work which forms part of his particular business.”

Our conclusions are that the word "principal” as used in the act under discussion is not limited in its meaning to principal contractors, but includes any principal who undertakes any work as a part of his trade, business of occupation.

Nor do we think the act as we construe it, unconstitutional upon any of the grounds urged by defendant.

The constitutional requirement that every act shall have but one object which shall be indicated in its title, does not require that every detail in the act shall be forecast by its title. It is sufficient if .the subject of the legislation be cognate, the object being to prevent unrelated subjects being dealt with in the same statute and to have the title of the act declarative of its purpose.

“The constitutional requirement that each statute shall have only one object does not mean that a statute shall not deal with more than one branch of the same subject.” Cirello vs. City, No. 25,566, Supreme Court of Louisiana.

The purpose of this act is declared to be “An act prescribing the lability of an employer to make compensation for injuries received by an employee.”

The principal is an employer in the same sense in which the principal contractor is an employer and the fact that the employer is not the direct employee of the principal makes such employee none the less an employee. The question- of the liability of an employer for compensation due to injuries sustained by workmen over whom he had no direct control, or of imposing a liability without fault involves the third ground upon which the statute is assailed, the question of “due process”. Counsel in his brief, declares:

“It would he monstrous to hold, in a case like the one at bar, that the plaintiff could recover against Ritchie, who had no voice in the selection of the men, whom he cannot contral or discharge, nor superintend. Ritchie, the defendant, might see defective scaffolds, defective ladders, or incompetent men; and yet, if he should make complaint about it, should ask for the remedying of these defects or the discharge of these men, he could be told by the party using these instrumentalities, or. hiring these incompetent men, to mind his own business, and' be run off the job; but, when the employee is injured, he and not the employer, is called upon to pay.”

The word “monstrous” in this connection, though somewhat intemperate, is perhaps, not altogether inappropriate particularly if we ignore the opprobrious significance and regard it as relating to size, for the authority which sustains the Workmen’s Compensation Law, is' indeed monstrous. It is the Nth power of all governmental authority, the least limitable and most exacting. It is a more exhalted exercise of sovereignty than the right of eminent domain under which what is taken is paid for and “embraces power over everything under the sun, and the line that separates its legal from its illegal operation cannot be easily drawn.”

In the case of Phillip Hosch vs. Louisiana Box Company, No. 9245, Orl. App. we said:

“When it is remembered that thi's act controverts long established principles of law in that it imposes upon the employer responsibility without fault or negligence on his part, may even be said tó amount to a taking of property without due process, and can only be justified under the police power, the most potent attribute of all governmental authority, the conclusion is irresistable that economic reasons of the most compelling sort and public policy of the most vital import supports its enactment. This is the more evident since every civilized country in the world as we believe has enacted this legislation. Among the most important economic purposes to be subserved we conceive to be that of preventing injured workmen becoming public charges, and to that end it imposes upon industry the burden of maintenance of injured employees which is of course ultimately passed to the consumer.”

It was at first held that so radical a departure from previous conceptions of the rights of property as guaranteed by the Fourteenth Amendment as a compulsory Workmen’s Compensation Law could not be sustained even by reference to the police power, but the settled jurisprudence is now to the contrary, moreover, elective compensation laws, such as the Louisiana law, have always been sustained.

For the reasons assigned, the judgment appealed from is reversed and it is now ordered that there be judgment in favor of plaintiff and against the defendant in the full sum of Two Hundred Twelve & 82ylOO ($212.82) Dollars, with interest thereon from judicial demand until paid, with costs of both courts.

ON APPLICATION FOR REHEARING

CLAIBORNE, J.

The plaintiff is a carpenter; he was employed to do some work as such on a building belonging to the defendant; while so engaged he fell and was injured. He sues the defendant under the Workmen’s Compensation Law. The defense is:

1. That defendant was putting up the building for himself and therefore is not liable.

2. That the defendant was not employer of plaintiff and that plaintiff was not the employee of defendant, and therefore the defendant is not liable.

1. Act 20 of 1914 p. 44 S. 2, extends its benefits to every person performing services arising out of and incidental to his employment in the course of his employer’s trade, business, or occupation in the following hazardous' trades, businesses and occupations, p. 45 line 23: “Work in any of the building or metal trades in the erection, construtction of any building or structural appurtenances”.

The plaintiff was therefore performing services in an occupation designated as hazardous by the statute.

The defendant in his answer “admits that his business was that of building or constructing houses”, and he testifies that his occupation is to “build houses and sell them over”.

He was building at the time of the accident six; houses; he gave the contract for the carpenter work to one Hayes Willis for $325, for each house; and the slating and the plumbing to different contractors; Willis employed the plaintiff. Inasmuch as the defendant was constructing these houses as “part of his business or occupation” and not as an accident, as a dwelling or other building for himself he came under the provisions of the Workmen’s Compensation Act of 1914, Hicks vs Meridian Lumber Co., 152 La. 975, 9 South. 903.

This liability is made clear by Section 6 of Act 38 of 1918 p. 52 quoted in the opinion herein. But it is said that the defendant herein is not an “employer” but the “owner”, and that the title of the Act of 1914 relates only to “the liability of an ‘employer’ and that Section 6 of Act of 1918 making ‘owners’ or other employers liable, who had not employed the workmen, is unconstitutional as violative of Sec. 16 of Article III of the Constitution of 1921.”

The Workmen’s Compensation Act must receive a liberal interpretation; Dick vs Gravel Logging Co., 152 La. 994, 95 South 99. The word “employer” used in the title of the act means the builder, the person employing the contractors, mechanics, or laborers, who are to construct the building. It is customary for the owner of land constructing a building upon it to entrust the construction to a contractor and others. In that case the contractor employs all the sub-contractors, mechanics and laborers. He is the employer. But nothing prevents the owner from dispensing with the services of a .contractor and acting in that capacity himself. In that case he is the “employer himself”, and all those employed by his contractors are employees protected by the provisions of the Act. If that definition of the words “employer” and “employee” is correct, then falls the objection of unconstitutionality made by the defendants.

But admitting that this difinition of the word “employer” is too liberal, then I am of opinion that the objection of constitutionality of Sec. 6 has been answered by the decision of my colleague.


source: Caselaw Access Project

author: PORTER, J.

license: Public Domain

text:
    No. 2131.
    Second Circuit Appeal.
    MRS. E. H. KELLER v. JOS. REID GAS ENGINE COMPANY.
    (October 31, 1924, Opinion and Decree.)

      (Syllabus by the Editor.)

    1. Louisiana Digest — Damages—Par. 104,
    Where a lady 69 years old was bruised about the body and sustained a fractured rib; held $1000.00 sufficient quantum- of damages for pain and suffering and injury, mental and physical.
    (Civil Code, Art. 2315. Editor’s note.)
    Appeal from the First District Court, Parish of Caddo, Hon. E. P. Mills, Judge.
    This is a damage suit for personal in juries growing out of an automobile collision.
    Judgment for plaintiff and defendant appealed.
    Judgment amended and affirmed.

      Miss Carrie Keller, and Wallace, Lyons & Peters, all of Shreveport, attorneys for plaintiff and appellee.
    Bullock & Warren of Shreveport, attorneys for defendant and appellant.
   PORTER, J.

This is one of the series of cases referred to in our opinion this day handed down in the case of Miss Adelaide Keller vs. this defendant, No. 2130.

As the .three persons were injured as a result of the same collision, while they brought separate actions, they were consolidated for the purpose of taking testimony. We fully considered and discussed the facts and the law in the said case No. 2130, and we adopt in this opinion what was said in that case.

The only additional matter necessary to consider here is the quantum of damages allowed by the District Court to this plaintiff.

Mrs. Keller, a widow, is the mother of Miss Adelaide Keller and Miss Carrie Keller, the plaintiffs in the other cases. She was thrown from the car by the force of the collision, and fell on the edge of the road near the ditch. She was greatly shocked by the fall, and evidently believed —for a time ’at least — that she was fatally injured. She was picked up by a passing automobile, and brought to the sanitarium.

She sues for $5,000.00 for “pain, mental anguish and nervousness”; for $20.00 for ex-ray pictures, and $19.50 sanitarium fees. The District Court allowed $1,500.00 for pain, etc., and the two last mentioned items —or a total of $1,539.50.

The defendant Company — the appellant— charges that this amount is excessive, and the appellee answered the appeal and prayed for an increase of the judgment.

The plaintiff was 69 years old at the time of the accident. Dr. Abramson, who treated her for the injuries received at the time of the accident, and who knew her and was her physician for a considerable time prior to the accident, says that she had been in “bad health for a long time”, was nervous, and inclined to be feeble. He says he does not think he had treated her for ten or twelve months preceding the accident. She was bruised about the body by the fall, but not, as appears from the testimony, very seriously. The principal injury which she sustained was a fractured rib. Referring to this injury, the physician was asked: “How (was) the condition or how much displacement was there in her case, was it a green fracture?” A. “No, sir. I think there was a good deal of displacement in her case as well as I recall, and caused a good deal of pain. It was what I would term just between a medium injury and a severe injury.” The usual treatment was administered, and she left the sanitarium the following day, and was confined to her bed at her home for some three weeks. Dr. Abramson visited her, as he says, three or four times during that period. He says she was sitting up and “I went there to see her occasionally— I would think three or four weeks after the accident.” He says her condition was not such as to require daily attention of a physician. He says he prescribed, at first, codine and aspirin, and' later cut out the codine.

It is not contended that plaintiff sustained any permanent injury — and we think that as a matter of common knowledge— a good many of us have had fractured ribs —that such an injury, except, perhaps, where other complications are present, does not produce severe or acute pain.

On this point, Dr. Abramson, who, by the way, is a most reputable physician, and certainly not a hostile witness, says:

“Q. Now the pain that she would feel afterwards, that is, after the setting of the fractured ribs, would be rather a mild pain, and not excessive pain?
A. Yes, sir, as a rule, but I couldn’t make a definite statement as to that. Of course, it would depend upon the wound of the parts. * * * ”
Q. It was such a pain that the moderate use of aspirin and codine would relieve to some extent?
A. Yes, sir, I think so.”

We are satisfied that $1,500.00 is excessive, and out of line with the precedents established by the Supreme Court in cases of this character, and that $1,000.00 will fully compensate the plaintiff for the pain and suffering, and injury, mental and physical, which she endured. See on this point, Brook vs. Motor Transportation Co., 156 La. 286, 100 South. 428, and authorities there cited.

It is therefore ordered and decreed that the judgment appealed from be amended by reducing the same to $1,037.50, and that, as thus amended, it be affirmed. The costs of this appeal to be taxed against the appellee.


author: CROW, J.

text:
    No. 2170.
    Second Circuit Appeal.
    JAMES A. KENNER v. STANDARD OIL COMPANY OF LOUISIANA.
    (October 31, 1924, Opinion and Decree.)

      (Syllabus by the Editor.)

    1. Louisiana Digest — Master and Servant Par. 159.
    When under the Employers’ Liability Act No. 20 of 1914, Section 8, Subsection 1 (a), the employee was strained or ruptured while lifting and carrying a sack of cement, was operated upon, and after the operation suffered pain which caused him to be unable to do work such as he was accustomed to do, of any reasonable character; held, defendant liable to pay compensation during the period of plaintiff’s disability not exceeding 300 weeks, whether plaintiff’s condition was superinduced by the injury or only accelerated by it.
    (Act 20 of 1914, Section 8, Subsection 1 (a), was recently amended by aci 216 of 1924. Editor’s note.)
    Appeal from the First District Court, Parish of Caddo, Hon. J. H. Stephens, Judge.
    This is a suit for compensation under Act 20 of 1914, the Employers’ Liability Act.
    Judgment for plaintiff and defendant appealed.
    Judgment amended and affirmed.
    Huey P. Long, of Shreveport, attorney for plaintiff and appellee.
    T. M. Milling, F. L. Hargrove and Albert Garland, all of Shreveport, attorneys for defendant and appellant.
   CROW, J.

This is an action for compensation under the Workmen’s Compensation Act for injuries alleged to have been sustained by plaintiff in performing services arising out of and incidental to his employment and in the course of defendant’s business, trade or occupation.

Plaintiff was employed by defendant to work on and about an oil well belonging to defendant, and situated in Claiborne Parish. On or about the 27th day of February, 1923, while performing services arising out of and in course of his employment, plaintiff was strained or ruptured while lifting and carrying a sack of cement. The result was a hernia in his right side. He was operated on by Dr. Hendricks, who said he operated on plaintiff for the defendant company. He said he found plaintiff suffering from “a relaxed inguinal ring with a bulging of one and a half inches, and the operation was low down in the abdomen and had a pathologic appendix, and it was removed through the hernia incision”. He also testified as follows:

By Court:

Q. “Now when you operated on this man, did you find any evidence of the beginning of hernia?”
4,. “Yes,, sir.”
Q. “In all probability, that was due to some violence?”
A. “Yes, trauma may cause hernia, when one is relaxed, for instance walking along and making a misstep might produce hernia, sudden lifting.”
Q. “Sudden lifting, for instance, could produce it, if relaxed?”
A. “Yes, sir, anything that increases the abdominal pressure.”
Q. “And a traumatic hernia may be caused from a blow or injury?”
A. “Yes, sir.”
Q. “Violence ' from the outside?”
A. “Yes, sir.”

On re-direct examination, he said:

Q. “Stooping over, and raising up, straining at the stool, may cause hernia, with a relaxed ring?”
A. “Yes, sir, with a relaxed ring any of those things might cause hernia.”
Q. “Anything that increases the pressure?”
A. “Yes, sir, for instance coughing, twisting, straining at the stool, or anything that increases the pressure, has a tendency to produce it.”

Later on, it was found that plaintiff was suffering considerable pain in his right side and in the right spermatic cord, which rendered him unable to do work, such as he was accustomed to do, of any reasonable character. He instituted this suit to recover compensation as for permanent partial disability to do any work of a reasonable character, and alleged that the difference between the weekly wages- he was receiving at the time of the injury, and that which he is able to earn since the injury, is $24.02, and that, therefore, he is entitled to have judgment rendered' in his favor for sixty per centum of that difference, or $14.41, for a period of 300 weeks.

Judgment was rendered in his favor by the District Court for $4,300.00, payable in 300 weekly payments at the rate of $14.40 per week, beginning the 6th day of March, 1923, and running thereafter until the expiration of the said period of 300 weeks, with interest on each weekly payment from date due until paid at the rate of five per cent, per annum, less the sum of $316.29 previously paid to plaintiff by defendant. Defendant has appealed to this court.

OPINION.

From a patient and careful reading of the record, including the able briefs of counsel, we are of the opinion that the findings of fact of the trial judge are entirely correct, and in accord with the preponderance of the evidence. Several physicians and surgeons testified as to plaintiff’s condition, and there is no reasonable doubt from their testimony, as a whole, but that plaintiff was injured by the strain incident to his lifting the sacks of cement and carrying it, and that plaintiff was still suffering therefrom at the time of the trial, and to the extent that he was disabled, partially, if not totally, from doing work of a reasonable character.

It appears from the testimony of the physicians that, following the operation on plaintiff by defendant’s surgeon, Dr. Hendricks, there was' a constriction of the ring encircling the right spermatic cord, and slightly above the scrotum. There was also, according to the testimony of Mr. Sanderson, who was appointed by the court to examine plaintiff and report on his condition to the court, some rigidity in the right inguinal region. His report to the court, made in writing, and found in the record, is as follows:

“In compliance with your request, I have this day examined Mr. James A. Kenner, and will say that I find no evidence of hernia except an old scar which would indicate that he has been operated on for hernia. The lower end of this scar is exceedingly tender, which tenderness goes on down into the scrotum. There is no doubt in my mind that the painfulness is there.
“I am still of the opinion, as before, that there was some injury of the cofd or other structures in that region and that the cord having been misplaced in the operation, with subsequent constriction, has aggravated ■ and perhaps made permanent his original injury. The objective signs are almost negative. Yours truly, E. L. Sander-son, M. D.”

During the progress of the trial, the District Judge appointed Dr. A. P. Crain to examine plaintiff and submit his report on his findings. Dr. Crain made the examination in compliance with the order of the court, and reported' as follows:

“Pursuant to your appointment, I have this day examined Mr. James A. Kenner. I find 'apparently a great deal of tenderness of the scar and the cord where it enters the scrotum. The ring through which the cord passes to the 'scrotum is a little tight, possibly constricting same. Very truly yours, A. P. Crain.”

It is true, Dr. I-Iendricks said he found a pathologic condition of plaintiff’s appendix when he operated on him for the hernia, but he said it was merely a case of chronic appendicitis, not acute. Appendicitis, it appears, often results from a trauma. It is possible that condition was due to plaintiff’s injury. However, be that as it may, we are convinced from the whole evidence in the record, that plaintiff’s condition was superinduced by the injury he received, or at least was accelerated by it. If only accelerated by the injury, defendant is, nevertheless, liable under the authority of Fox vs. United C. & O. Products Co., 147 La. 865, 86 South. 311; Johnson vs. Vernon Parish Lbr. Co., 151 La. 664, 92 South. 219; Hicks vs. Meridian Lbr. Co., 152 La. 975, 94 South. 903; Geo. Tullier vs. A. O. Phaneuf, No. 1971 Court of Appeals, Second Circuit of Louisiana, decided January, 1924, a case very similar to the one here.

The judge a quo, however, while properly appreciating the fact, made a slight error of law, and hence we will have to amend the judgment so as to allow plaintiff compensation for and during his disability, not to exceed 300 weeks. McCrady vs. Sebastian, 150 La. 459, 90 South. 760; Sweeney vs. Black River Lumber Co., 150 La. 1061, 91 South. 511; Daniels vs. Shreveport Producing & Refining Corp., 151 La. 800, 92 South. 341.

It is therefore ordered, adjudged and decreed that the judgment of the District Court be, and it is hereby amended so as to allow plaintiff judgment against defendant for $14.40 per week, beginning the 6th of March, 1923, and continuing for and during the period of plaintiff’s disability, not to exceed 300 weeks, with interest on each weekly payment from date of maturity thereof until paid, less the sum of $316.29, already paid, and that, as thus amended, said judgment be, and it is affirmed. The costs of the District Court are to be paid by the defendant, and those of the appeal by plaintiff.


text:
    No. 2169.
    Second Circuit Appeal.
    COMMODORE P. HARWOOD v. STANDARD OIL COMPANY OF LOUISIANA.
    (November 6, 1924, Opinion and Decree.)
    (January 19, 1925, Opinion and Decree on Re-hearing.)

      (Syllabus Toy the Editor.)

    1. Louisiana Digest — Master and Servant— Par.' 159 (a).
    Where an employee’s shoulder was injured causing a bony growth to form at the top of the shoulder joint, which has a tendency to obstruct or lock the arm in the upward movement, the employee can recover under Employers’ Liability Act No. 20 of 1914, Section 8, Subsection 1 (c), as amended by Act 43 of 1922.
    (Note: The recent amendment is Act 216 of 1924. Editor’s note.)
    2. Louisiana Digest — Master and Servant— Par. 160 (a), (j).
    Under Employers’ Liability Act No. 20 of 1914 the trial judge in refusing a new trial did not abuse his discretion under Section 18, especially- in view of the fact that under Section 20 after one year the whole question- of fact is subject to review.
    3. Louisiana Digest — Appeal—Par. 707.
    Judgment corrected as to credits due defendant which were omitted inadvertently.
    Appeal from the First District Court, Parish of Caddo, Hon. J. H. Stephens, Judge.
    - This is a suit to recover compensation for - injury producing partial disability under Employers’ Liability Act No. 20 of 1914, Section 8, Subsection 1 (c).
    Judgment for plaintiff and defendant appealed.
    Judgment affirmed.
    Huey P. Long of Shreveport, attorney for plaintiff and appellee.
    T. M. Milling, F. L. Hargrove and Albert Garland of Shreveport, attorneys for defendant and appellant.
   PORTER, J.

The plaintiff claims, under the Workmen’s Compensation Law of this State, compensation at the rate of $18.00 per week for 400 weeks, beginning on the 14th day of September, 1922, as for permanent disability to do work of any reasonable character:

While working as a “roustabout” for the defendant around one of its wells in Haynesville, the plaintiff was accidentally thrown against the fly wheel of a gas engine and ' received injuries on the head and right shoulder.

The answer avers that defendant has advanced plaintiff the “sum of $594.00, to be applied against such compensation as the said plaintiff might be entitled to”. It also alleged that the plaintiff had worked for it from January 9, 1922, to March 12, 1923, at the rate of $135.00 per month, and that he received- for this work $287.42. It is admitted in the answer that plaintiff was, at the -time of the accident, receiving $135.00 as wages.

The trial in the District Court resulted in a judgment for the plaintiff, decreeing that he was totally disabled from September 7, 1922 (the date of the accident), until January 3, 1923 — a period of seventeen weeks — and that he was entitled to $18.00 per week for that time — all of which had been paid — and that, in addition, he was entitled to $6.68 per week (for partial disability) for a period not to exceed 283 weeks, the first payment being due on the 20th of March, 1923, subject to a credit of payments for 16 2/3 weeks between January 3, 1923, and March 3, 1923, of “surplus wages”. The judgment stipulated the usual interest on the payments from maturity. The defendant has appealed, and as there is no answer to the appeal, we are powerless to increase the judgment in favor of plaintiff, even if the evidence justified it. Counsel for plaintiff says in his brief that he prefers to exercise his right to have the judgment reviewed at the expiration of a year, rather than ask for an increase.

OPINION

It is stated in defendant’s brief that the District Judge fixed the compensation in accordance with sub-section C of Section 8, as amended by Act 43 of 1922, that is:

“For an injury producing partial disability to do work of any reasonable character, sixty per centum of the difference between the wages at the time of the injury and the wages which the injured employee is able to earn thereafter during the period of disability, not, however, beyond 300 weeks.”

The testimony of the physician and surgeons who testified in the case for the defendant shows that, as a result of the injury to the shoulder, a bony growth had formed at the top of the shoulder joint, which has a tendency to obstruct, or lock, the action of the arm in the upward movement; that the arm, while as strong as it ever was when used backward and forward, could not be used with facility, at least, when an attempt is made to raise it higher than the shoulder. The plaintiff says he can use his arm fairly well in the manner indicated, but that he has no strength in it. We think that this constituted a partial disability, which justifies the judgment.

We imagine the principal motive which prompted the appeal was some alleged information to the effect that plaintiff was able to perform labor of a reasonable character, and was, in fact, at, or shortly before the trial, and for a considerable time prior theretofore, actually engaged in work which paid him wages equal to or greater than those which he earned at the time of the accident. This information was obtained by it after the trial, but before the judgment was signed, and a motion based upon it was filed and over-ruled.

The plaintiff, after his failure to secure the kind of a settlement with the defendant Company to which he thought he was entitled, left defendant and went to Texas, and he testified that he worked for several oil companies there, among them the Tidal Oil Company, for which he did some cleanupi work on the lease, and also picked up trash around the rig and cleaned up.

Defendant’s attorneys wrote to the manager of the Tidal Oil Company, enquiring about the work which plaintiff had done for it, and received the following letter:

“This man worked for some time in the connection gang, laying 2-inch pipe and doing general lease work, then was transferred to the gang setting gas engines and connecting them up at the individual wells, and now I understand he is tending the air compressors in one of our stations Which applies air for flowing certain of our wells.
“I have heard Harwood commended by the men working with him, and he is said to be a reliable and intelligent man, and all of his work here has been satisfactory. I have talked with him on numerous occasions, and while he never mentioned any disability to me, some of the men who roomed with him advise me that his right arm is injured in some manner, making it hard for him to use it much when necessary to raise it on a level with his shoulder or higher, but that he seems to have a fair use of it when carried somewhere near the natural position. Harwood appears to me to be a little above the average run of labor in the oil fields in intelligence, as regards the capacity in which he has been employed by us, which probably more or less offsets his physical disability. We have paid him wages of $4.50 per day of nine hours and $5.00 per day when working 12 hours.”

This letter was annexed to the motion for a new trial which is otherwise in due form. The pertinent facts stated in the letter are all hearsay, and it might be impossible to confirm them by the testimony of the witnesses who are in a position to do so, even if the new trial were granted — though this, of itself, would not be a fatal objection to granting the new trial. But the letter itself tends to corroborate the plaintiff as to the injury to his shoulder, and to justify recovery under another part (Sub-section E, Section 8) of the Act.

At any rate, in view of • the familiar rule that the trial Court has a very broad discretion in the matter of granting continuances and new trials, we should hardly be warranted in holding that such discretion had been .abused in this case.

This is particularly true in this case where the judgment is not conclusive except for the period of a year, after the expiration of which the whole question of fact is subject to review.

The judgment appealed from is affirmed.

ON MOTION FOR REHEARING

The surmise of the organ of the court as to defendant’s motive for appealing is immaterial and so is the slight discrepancy between the testimony of the doctors and his statement of that testimony.

We do not think the District Judge abused his discretion in refusing to grant a new trial. Aside from the question of due diligence, we do not think the testimony! of the doctors as given or the statements in Igleheart’s letter, if proven, or both together, sufficient to invalidate the finding of the District Judge, which was, we think, that at the time of the trial, and since recovering from total disability, the plaintiff’s condition, due to the accident, was one of partial disability, entitling him, during its continuance but not exceeding 283 weeks, to compensation under Subsection (c) of Section 8 of the Compensation Law.

We also think that the original opinion, fairly construed, bases his right of recovery on that subsection and not on Subsection (e), and this we now formally hold.

But the defendant is entitled, we think, to certain credits which the judgment (probably through inadvertence in drafting it) does not seem to allow. This, though, can be corrected without a rehearing and for the sáke of clearness we shall recast the judgment.

It is accordingly decreed that the judgment originally • rendered herein and also the judgment of the lower court be set aside, and that instead thereof judgment be now rendered in favor of Commodore P. Harwood and against Stahdard Oil Company of Louisiana, as follows:

1st. For seventeen weeks compensation for total disability at eighteen dollars per week, the first payment being decreed due September 14th, 1922, with five per cent per annum interest on each payment from maturity thereof.

2nd. For compensation during partial disability but not exceeding two hundred and eighty-three weeks at six and 68-100 dollars ($6.68) per week, the first of these payments being decreed due March 20th, 1923, with five per cent per annum interest on each payment from maturity thereof, subject to credits as follows:

1st. Five hundred and ninety-four dollars paid by defendant from time to time with allowance of interest at five. per cent per annum on the respective payments from the time each was made; and,

2nd. One hundred and two and 77-100 dollars surplus wages paid plaintiff between January 3, 1923, and March 13, 1923, with allowance of five per cent per annum interest on the respective weekly installments thereof from the time each was paid. It is further decreed that this judgment shall be subject to the contract between plaintiff and his attorney, Huey P. Long, under which the said Long is entitled to one-third of all sums awarded plaintiff.

It is finally decreed that defendant pay the costs of the lower court and plaintiff those of appeal. Rehearing refused. The right is reserved to plaintiff to ask a rehearing on the question of the credits herein allowed.


text:
    No. 1944.
    Second Circuit Appeal.
    EXCHANGE NATIONAL BANK v. PALACE CAR COMPANY; W. A. STEVENSON, Third Opponent.
    (November 6, 1924, Opinion and Decree.)

      (Syllabus by the Editor.)

    1. Louisiana Digest — Chattel Mortgages — Par. 3.
    Where a chattel mortgage under Section 2 of Act 198 of 1918 incorrectly describes the motor number of an automobile to be mortgaged so as to make it impossible to identify the automobile, the mortgage has no effect as to an innocent third purchaser.
    2. Louisiana Digest — Judgment—Par. 215.
    No one is bound by a judgment of which he is not a party. Consequently he can attack it collaterally.
    3. Louisiana Digest — Execution—Par. 98.
    One does not have to enjoin the illegal sheriff’s sale of his property in order to claim it. An intervention under Code of Practice, Art. 400, is sufficient.
    (See in re Immanuel Presbyterian Church, 112 La. 348; 36 South. 408.)
    4. Louisiana Digest — Execution—Par. 108.
    A sale, pending a third opposition, if the opposition be sustained, is null.
    Appeal from the First District Court, Parish of Caddo, Hon. E. P. Mills, Judge.
    This is a suit in which an automobile was incorrectly described in a chattel mortgage and sold pending an intervention filed by third opponent claiming to be an innocent purchaser.'
    . Judgment for Third Opponent; and plaintiff and defendant appealed.
    Judgment affirmed.
    Dickson & Denny, of Shreveport, attorneys for plaintiff and appellant.
    J. H. Prank Gaskill, attorney for defendant and appellant.
    Cook & Cook, of Shreveport, attorneys for W. A. Stevenson, Third Opponent and appellee.
   PORTER, J.

The plaintiff Bank obtained judgment on a note executed by the defendant Company, and secured by a chattel mortgage on several automobiles. It alleged that its said mortgage covered a “certain 6-48 wire-wheel roadster, bearing Motor No. 50795, said automobile being manufactured by the Moon Motor Car Company”, and prayed for ' a . writ'-JOf"’ sequestration of said car, which was sequestered and advertised for sale.

W. A. Stevenson intervened, and- by third opposition claimed the ownership of the said car, and prayed that he be decreed the owner thereof, and that the Sheriff be ordered to restore the same to his'possession. He did not enjoin the sale, however, and the Sheriff proceeded to sell the car and applied the net proceeds to the plaintiff’s judgment.

The third opposition was subsequently tried and sustained, the judgment decreeing that plaintiff’s chattel mortgage did not attach to the seized car, and ordering the Sheriff to restore it to the third opponent. The plaintiff Bank has appealed.

It cannot be successfully disputed, that the Palace Car Company took the car in dispute to Claiborne Parish, and placed it in the hands of Baucum and Stewart, to be sold, and that Dr. Stevenson, third opponent, bought it in good faith, and, paid a sound price for it.

The first question is whether the chattel mortgage attached to it was described in the mortgage as “One 6-48 wire-wheel 'roadster, Motor No. 50795, said car being' manufactured by the Moon Motor Car Co.”' The motor number of the car in controversy is 43075. When Dr. Stevenson purchased the car in Haynesville, the clerks of the District Courts of Claiborne and Caddo Parishes, where .the mortgage was recorded, were called up by phone and were asked if there was any mortgage on the car, described by the correct motor number's, and both replied in the negative. It is clear, we think, that the car was not. described in the mortgage, so as to make it possible to identify it (Section 2 of Act 198 of , 1918) and hence that as to an innocent . third purchaser, it can have no effect.

The principal ground upon which plaintiff’s attorneys appear to rely is a,n exception of no cause of action and a plea of estoppel which they filed.

The first exception is founded upon the proposition that at the time the judgment appealed from was rendered, the matters at issue had been settled by a final judgment in favor of the plaintiff, and, hence, that said judgment cannot be collaterally attached, while the plea of estoppel rests upon the familiar rule that one who stands by, without protest, and sees his property sold, cannot afterwards attack the sale.

In answer to the first exception, it suffices to say that the intervenor is an utter stranger to the suit in which the first judgment was rendered, and is therefore not bound by it. Moreover, the third opponent’s contention is that that judgment, which enforced the plaintiff’s privilege on a “6-48 wire-wheel roadster, bearing Motor No. 50795, has no reference to third opponent’s car, which bears motor number 43075.

And as to the plea of estoppel, it is without merit, because the third opponent was, at the very moment of the sale, protesting in the most solemn manner (by a suit in court) against the sale of his property. The logic of counsel’s argument on this plea is that a third person whose property is about to be sold for the debt of another, must either enjoin the sale, or forever thereafter hold his peace. The law is not so. It expressly authorizes the identical proceedings which the third opponent followed in this case. Code of Practice, Art. 400.

The judgment is correct, and is therefore affirmed.


text:
    No. 1915.
    Second Circuit Appeal.
    ROBINSON-SLAGLE LUMBER CO., LTD., v. A. C. WATERMAN, APPELLANT
    (November 7, 1924, Opinion and Decree.)

      (Syllabus by the Editor.)

    1. Louisiana Digest — Pleading—Par. 2, 44.
    The allegation that plaintiff sold the materials to be used in, and that they were used in the construction of the build: ing on the leased premises, is certainly not a conclusion of law, and the failure of the defendant to deny it is tantamount to an admission of its truth.
    2. Louisiana Digest — Mechanic’s Privileg —Par. 20.
    Art. 3274 of the Civil Code refers exclusively to the preservation of privileges as against third persons. Where no third parties are involved no registry is necessary.
    (See Act 300 of ■ 1914, page 612 Editor’s note.)
    Appeal from the First District Court, Parish of Caddo, Hon. E. P. Mills, Judge.
    This is a suit for balance due on building materials and recognition of lien and privilege.
    Judgment for plaintiff and defendant appealed.
    Judgment affirmed.
    Thatcher & Webb, of Shreveport, attorneys for plaintiff and appellee.
    Dickson & Denny, of Shreveport, attorneys for defendant and appellant.
   PORTER, J.

The plaintiff company sued the defendant on open account for a balance due for building materials sold to defendant, and used by him in the construction of á certain described property, which defendant had leased from a third party. The balance claimed is $468.50, with legal interest from January 1, 1922.

The petition prayed for recognition of plaintiff’s lien and privilege on the lease, and the building constructed thereon.

The plaintiff recovered judgment,' as prayed for, and the defendant has appealed.

Counsel for plaintiff, in their brief, say that the amount of the judgment is not disputed, but that defendant has appealed because he contends that plaintiff has no privilege on the property, and that the pleadings are not sufficient to justify proof of the same. Article 5 of the petition is as follows:

“Petitioner further represents that all of said materials was sold and delivered to the defendant to be used, and that same was used by defendant in constructing a building on the said leased premises, and that petitioner .has a lien and privilege on said lease and building erected by the defendant to secure the amount due on said materials.”

The answer to this article is as follows:

“Denies paragraph 5, for the reason that same is a conclusion of law.”

The allegation that plaintiff sold the materials to be used in, and that they were used in the construction of the building on the leased premises, is certainly not a conclusion of law, and' the failure of the defendant to deny it is tantamount to an admission of its truth. But even if we •are wrong in this statement, defendant’s attorney offered and filed in evidence á certified copy of an affidavit by a representative of the plaintiff company, setting forth the fact that the materials were used in the construction of the building on the leased property. It was probably the purpose of the counsel in filing this document to show that it was not recorded within the time prescribed by law, but it was offered and filed without any restriction, and we are not warranted in restricting it.

The next contention which counsel urges is that plaintiff’s lien was not served or recorded within the time prescribed by law. Counsel doubtless refer to the law as set forth in Art. 3274 of the Civil Code. This article refers exclusively to the preservation of privileges as against third persons, and no third parties are involved here, and no registry was necessary. Roberts vs. Hyde & Mackie, 15 La. Ann. 51. At all events, it took effect from the date of its registry. C. C. 3274.

We think that the pleadings and the evidence are sufficient to warrant that part of the judgment which awards plaintiff a privilege on the lease. If the defendant did not own the lease, and had no connection with it, he ought to have alleged and proved those facts. The lease contract is in evidence, signed by defendant, and no denial of the signature is made, and it has about a year and a half yet to run.

The judgment is affirmed.


text:
    No. 1980.
    Second Circuit Appeal.
    SOUTHERN ATHLETIC CLUB v. JAMES O. FOSTER, ET AL.
    (November 13, 1924, Opinion and Decree.)

      ('Syllabus by the Editor.)

    1. — Louisiana Digest — Appeal—Par. 594, 693, 694.
    The judgments of the district courts are presumedly correct, and appellate courts are justified in affirming them on the strength of that presumption itself when counsel do not, either by brief or argument, make an appearance to set forth the specific grounds of complaint which they could urge against the conclusions of the trial, judge. .
    2. Louisiana Digest — Appeal—Par. 607.
    A judgment rendered on default is, in the absence of any note of evidence, statement of facts or assignment of errors, presumed to have been rendered on sufficient evidence, and the judgment of the trial court will be affirmed on appeal.
    3. Louisiana Digest — Appeal—Par. 512.
    Where appellant makes no appearance and appeal is taken for delay, damages are allowed for frivolous appeal.
    Appeal from the First District Court, Parish of Caddo, Hon. E. P. Mills, Judge.
    Judgment fbr plaintiff on default and defendant appealed.
    Judgment amended and affirmed.
    Bullock & Warren, of Shreveport, attorneys for plaintiff and appellee.
    F. A. Blanchard, of Shreveport, attorney for defendants and appellants.
   CROW, J.

A moneyed judgment in favor of plaintiff and against defendant, for $424.56, with five per centum per annum interest thereon from May 2, 1923, was rendered on default in the District Court of Caddo Parish. Within the delays allowed by law, the defendants, against each and all of whom judgment had been rendered in solido, appeared in the District Court where they moved for and obtained orders of appeal to this court.

The appeal was perfected by filing the required suspensive appeal bond, and the case was fixed for argument in this court on October 10, 1924, and later continued by this court till November 7, 1924, when the case was submitted by counsel for appellee, appellant’s counsel not appearing.

Counsel for appellant have not appeared in this court, either in person or by brief, or otherwise. No assignment of errors is presented nor statement of facts filed in the record.

We can, therefore, do nothing but dismiss the appeal or else affirm the judgment of the lower court.

The plaintiff, appellee, has filed timely in this court a motion for an award by this court of' ten per centum of the amount of the judgment as damages for frivolous appeal. We are disposed to award the damages as prayed for by appellee; for we think the appeal was taken purely for delay.

(See Code of Practice, Arts. 602, 603, 896, 897, 907.)

The following authorities in support of the judgment are pertinent.

1. Where the appellant assigns no error, and does not argue, either orally or in brief, in support of his appeal, the judgment appealed from will be presumed to be correct, and it will be affirmed.

Board of Commissioners vs. Bank, 135 La. 763; 66 South. 187.

2. The -judgments of the district courts are presumedly correct, and appellate courts are justified in affirming them on the strength of that presumption itself when counsel do not either by brief or argument, make an appearance to set forth the specific grounds of complaint which they could urge against the conclusions of the trial judge.

Freyhan vs. Berry, 49 La. Ann. 306, 21 South. 911; Barber Asphalt Paving Co., 49 La. Ann. 1608, 22 South. 995; Alexandria Cooperage Co. vs. R. R. Commission, 127 La. 1085, 54 South. 359.

3. A judgment rendered on default is, in the absence of any note of evidence, statement of facts or assignment of errors, presumed to have been rendered on sufficient evidence, and the judgment of the trial court will be affirmed on appeal.

Park vs. Concordia Land & Timber Co., 154 La. 31, 97 South. 272.

The judgment of the lower court is, for the reasons assigned, amended by awarding damages to plaintiff and against defendants in solido in the sum of ten per centum of the amount of the judgment of the District Court, and as thus amended, said judgment is affirmed.


text:
    No. 1774.
    Second Circuit Appeal.
    THE TEXAS COMPANY v. FAIR OIL CO., INC., Appellant.
    (November 13, 1924, Opinión, and Decree.)

      (Syllabus by the Editor.)

    1. Louisiana Digest — Appeal—Par. 625.
    This case involves only a question of facts and accordingly the judgment of the' lower. court, not being clearly erroneous, was affirmed.
    Appealed from the First District Court, Parish of Caddo, Hon. J. H. Stephens, Judge.
    Judgment for plaintiff and defendant has appealed.
    Judgment affirmed.
    Hampden Story and Chas. H. Blish of Shreveport, attorneys for plaintiff.
    Wilkinson, Lewis & Wilkinson, of Shreveport, attorneys for defendant.
   CROW, J.

This is an action on an open account for gas alleged to have been furnished by the plaintiff to defendant during the months of February, March and April of the year 1921. The gas was furnished defendant at its drilling sites in Red River Parish. The defense is that the amount of the gas bill for the months mentioned above was excessive, due to incorrect registering of plaintiff’s meter. Defendant admits owing plaintiff a part of the amount claimed, but made no tender of payment of any amount to plaintiff. It claims that the gas bills for said months jumped up from an average monthly amount of $137.50, to an average of $288.36, per month, without any apparent cause therefor ^except that the meter was not working accurately.

There was a trial of the case in the District Court, and judgment was rendered in favor of plaintiff as prayed for; that is, for $865.08, with five per cent, per annum thereon from judicial demand until paid. Defendant has appealed to this court and asks for a reversal of the judgment.

OPINION.

There is only a question of fact involved in this appeal and we are, therefore,, disposed to give much weight to the decision of the trial judge. However, we have read with care the entire record, -including the briefs of able counsel for both parties, and we are unable to find error in the finding of the District Judge.

About the only circumstance which appears to us to corroborate the theory of defendant to the effect that the meter was over-registering is that the amount of the monthly gas bills was more than double what it had been for previous months for gas consumed by defendant.

That, however, is explained in part only by the fact that the rates for gas had been increased about the beginning of the period during which defendant declined to pay the bills. The discrepancy is further explained by the fact that plaintiff’s field inspectors who examined and tested the meter during the latter part of January, 1921, found and removed a large quantity of trash which had accumulated in the meter and closed the “proportional” on the valve, evidently causing the meter to register too low before the removal of the trash.

Two or three witnesses, appeared and testified for plaintiff to the effect that the meter was thoroughly tested by them and a report of their findings made to the plaintiff company. In that respect they are corroborated by their written report filed in the record.

Only two witnesses testified, and that by deposition, for defendant, namely, Mr. A. L. Sneed, President, and Mrs. J. L. Sneed, Secretary-Treasurer, of the defendant company. They base their defense on the fact that they had been informed by their field foreman, B. A. Jones, that plaintiff company’s inspector had filed away parts of the meter about the latter part of January, 1921, immediately following which, they say, the gas bills increased enormously. They say frankly that they cannot say from their own knowledge that the meter was filed. They did not produce their field foreman or seek to take his testimony by any sort of proceeding. They do not even attempt to explain why they do not furnish the court with his testimony. The presumption is that his testimony would not be favorable to their contention.

The said two witnesses for defendant were asked on cross-interrogation' to produce and file bills for gas furnished them for previous months; and they both said they were left in the hands of their attorney. However, the bills were not presented by anyone nor was any explanation given concerning them, except as mentioned above. The court is, therefore, without the information which said bills might contain.

On the whole, we think the preponderance of the testimony is in favor of plaintiff, and that the judgment of the lower court is correct.

It is accordingly affirmed at the cost of appellant.


text:
    No. 1780.
    Second Circuit Appeal.
    P. G. WILLIS, ET AL., Appellant, v. W. J. THOMASON, ET AL.
    (November 13, 1924, Opinion and Decree.)

      (Syllabus by the Editor.)

    1. Louisiana Digest — Estoppel— Par. 45; Execution — Par. 83, 140.
    As between the parties to a sale under foreclosure of a mortgage, such parties are estopped to attack the sale collaterally, but as to creditors and all other third persons, a sale made solely in foreclosure of a mortgage does not pass any property except that which was covered by the mortgage. Such persons (creditors and other third parties) are not estopped to attack such sale collaterally.
    2. Louisiana Digest — Mortgages—Par. 58, 59; Executory Process — Par. 4.
    In executory proceedings, only “the property subject to the privilege or mortgage” can be seized and sold.
    Appeal from the First District Court, Parish of Caddo, Hon. J. H. Stephens, Judge.
    This is an injunction suit to enjoin the sale of automobiles and trucks. The injunction was dissolved with damages and plaintiff appealed.
    Judgment affirmed.
    Wilkinson, Lewis & Wilkinson, of Shreveport, attorneys for plaintiffs and appellants.
    Thatcher & Webb, of Shreveport, attorneys for defendants and appellees.
   CROW, J.

The defendants in this cause issued execution under a judgment which they had obtained against the Paramount Petroleum Company, Inc., and had seized as the property of said company there under a Dodge Touring Car, a Reo Truck, an Olds Truck and a G. M. C. Truck. The said property having been advertised for sale, plaintiffs herein filed this injunction suit to restrain the sheriff, and the defendants herein from selling said seized property alleging that they (plaintiffs herein) were the owners thereof by virtue of a purchase thereof at a sheriff’s sale in the suit entitled W. Nelson et al. vs. Paramount Petroleum Company, Inc.

Defendants herein answered by alleging, in, substance, that the alleged sale of the said property by the sheriff to plaintiff was a mere nullity for the reason that the said property was not included in the act of mortgage in foreclosure of which said property was seized and attempted to be sold.

The case was tried in the District Court and there was judgment in favor of defendants herein rejecting plaintiffs’ demands and dissolving the wirt of injunction with damages in favor of defendants for $100.00 attorney’s fees. From that judgment the plaintiffs have appealed to this court.

OPINION.

The plaintiffs, P. C. Willis, W. A. Nelson and M. E. Singleton, appear herein as “Trustees under appointment by the bondholders of the Paramount Petroleum Company, Inc.”, and claim that they are the owners of the automobile and trucks above described. In support of their claim of .ownership they offered in evidence nothing but the pleadings, act of mortgage, order for executory process and the writ of seizure and sale in the proceeding entitled W. A. Nelson et al. vs. Paramount Petroleum Company, Inc., No. 31,267 on the docket of the District Court for Caddo Parish. The return of the sheriff on said writ of seizure arid sale shows that the car and trucks in question were seized and sold by him to the plaintiff. However, since there was no judgment behind the seizure and sale of said property but only an order of seizure and sale under executory process, the only question we are called on to decide is whether or not said property was described and comprehended in the act of mortgage in foreclosure of which the car and trucks were seized and sold or attempted to be sold. There is also presented for our consideration the question of law whether defendants could attack the sale of the property in question by the sheriff, collaterally, or whether they would be driven to a direct action to annul said sale.

Taking up the last above question first, we will say that, as between the parties to a sale under foreclosure of a mortgage sufch parties are estopped to attack the sale collaterally, but as to creditors and all other third persons, a sale made solely in foreclosure of a mortgage does not pass any property except that which was covered by the mortgage. Such persons (creditors and other third parties) are not estopped to attack such sale collaterally. (See Jones vs. Lake, 43 La. Ann. 1024, 10 South. 204; Dauchite Lbr. Co. vs. Lane & Bodley Co., 52 La. Ann. 1937, 28 South. 232; Coguenhem vs. Trosclair, 137 La. 989, 69 South. 800.)

The authorities cited in the brief of counsel for appellant to the effect that sales made by sheriffs cannot be set aside except in a direct action to annul such sales are not applicable here. They were suits in which some party or his heirs or assigns sought to collaterally attack sales made by-sheriffs, or else were cases in which there had been a final judgment rendered in an ordinary proceeding (via ordinaria) and execution issued thereunder. The situation is different in the case at bar. The sale here was made under executory process (via executiva). In executory proceedings only “the property subject to the privilege or mortgage” can be seized and sold. (C. P. 734, Coguenhem vs. Trosclair, 137 La. 989, 987, 69 South. 800. In the latter cited authority, the Supreme Court, among other things, said:

“The said foreclosure proceeding was by executory process; and the only property that can be seized and sold in an executory process is the property covered by the mortgage that is being foreclosed.”

Further on in the same case the court said:

“We prefer to adhere to the rule that in a sale made in foreclosure of a mortgage, property not covered by the mortgage does not pass.”

The primary reason why property not included in a mortgage or covered thereby cannot be seized and sold under executory process is that in such instances there is no real judgment behind the seizure; only an order to seize and sell certain specifically described property covered in the authentic act of mortgage. The sheriff is totally incompetent to seize and sell any property under executory process that is not covered by the mortgage or privilege. Such a seizure and sale of property not covered by or included in a mortgage is an absolute nullity.

The only question remaining is whether the property in question was covered by the mortgage in foreclosure of which it was attempted to be seized and sold.

Plaintiffs’ counsel admit that the said property was not specifically described in the act of mortgage, but they contend that the car and trucks were immovable by destination and consequently embraced in a mortgage which covered certain real property in the nature of lands and oil refineries, either already existing or in course of construction on the lands.

However, at the time of the seizure, one or both of the refineries had not been constructed and could, therefore, not operate. The burden was on' plaintiffs to show that the automobile and trucks in question were included in the act of mortgage. Bank of LeCompte vs. Lecompte Cotton Oil Co., 125 La. 853, 51 South. 1010. This they did not do. The automobile and trucks were not destined for the improvement or service of the land on which they were found. (C. C. 468.) They had none of the attributes of immobility by destination.

Again the same owners of the automobile and trucks, in a later act of mortgage to one Mrs. Flemming, recognized that said personal property was not covered by the former mortgage in foreclosure of which the same was seized and sold, or attempted to be seized and sold, by specifically designating said personal property as movable property and mortgaging it, with other property included in the first mortgage aforesaid.

The property in question, it is plain to us, was never included in or intended to be included in the act of mortgage in foreclosure of which the attempted seizure and sale of the property in question were made.

The judgment is correct, and it is accordingly affirmed.


text:
    No. 2129.
    Second Circuit Appeal.
    TOMMY LAWSON, ET AL., v. PHILIP DENEGRE, ET AL.
    (November 13, 1924, Opinion and Decree.)

      (Syllabus by the Editor.)

    1. Louisiana Digest — Appeal—Par. 594, 694.
    The judgments of the district courts are presumedly correct, and appellate courts are justified in affirming them on the strength of that presumption itself when counsel do not, either by brief or argument, make an appearance to set forth the specific grounds of complaint which they could urge against the conclusions of the trial judge.
    Appeal from the First District Court, Parish of Caddo, Hon.. T. F. Bell, Judge.
    This is a possessory action coupled with ' an injunction. It was dissolved with damages. Plaintiff appealed.
    Judgment affirmed.
    W. B: Massey, of Shreveport, attorney for plaintiff and appellant.
    Lewell C. Butler, of Shreveport, attorney for defendant and appellee.
   CROW, J.

Plaintiffs instituted this, a possessory action, coupled with writs of injunction against defendants to restrain the latter from disturbing the former in their alleged possession of certain real property situated in Caddo Parish and from trespassing thereon.

Defendants filed a motion to dissolve the writs of injunction which was tried and sustained by the lower court, which also awarded damages to plaintiffs in the sum of one hundred dollars, for attorney’s fees for procuring the dissolution of the writs

Plaintiffs have appealed to this court; but counsel for appellants has not presented any argument, either orally or hy brief, in this court, nor has he filed any assignment of errors.

Without further discussion of the record, the judgment will be affirmed. The following authorities in support of our action in the premises will, however, be mentioned:

1. Where the 'appellant assigns no error, and does not argue, either orally or in brief, in support of his appeal, the judgment appealed from will be presumed to be correct, and it will be affirmed.
Board of Commissioners vs. Bank, 135 La. 763. 66 South. 187.
2. The judgments of the district courts are presumedly correct, and appellate courts are justified in affirming them on the strength of that presumption itself when counsel do not, either hy brief or argument, make an appearance to set forth the specific grounds of complaint which they could urge against the conclusions of the trial judge.
Freyhan vs. Berry, 49 La. Ann. 306 21 South. 911; Barber Asphalt Paving Co. 49 La. Ann. 1608, 22 South. 955; Alexandria, Cooperage Co. vs. R. R. Commission, 127 La. 1085, 54 South. 359.

For the reasons assigned, the judgment of the District Court is affirmed at the cost of appellant.


author: BELL, J.

text:
    No. 9735.
    Orleans Appeal.
    SOUTHERN HARDWOOD & WOODSTOCK CO., LTD., v. SEVEN ELEVEN AUTO COMPANY, INC., ET AL.
    (December 15, 1924, Opinion and Decree.)

      (Syllabus by the Court.)

    1. Louisiana Digest, Appeal, Par. 512.
    Where the defendant, as appellant, puts at issue by general denial, a suit upon open account, and fails, without legal cause or excuse, to appear in person or by counsel at trials of the suit, in either lower or appellate court; the maximum amount of damages allowed by law to appellee will be granted, when duly prayed for.
    Appeal from First City Court for the City of New Orleans, Sec. “B”, Hon. Val. J. Stentz, Judge.
    This is a suit on an open account.
    Judgment for plaintiff and defendant appealed.
    Judgment affirmed with damages for frivolous appeal.
    Milling, Godchaux & Milling, attorneys for plaintiff and appellee.
    Prowell McBride, attorney for defendant and appellant.
   BELL, J.

This is a suit on open account for goods alleged to have been sold and delivered by plaintiff to defendant, Seven Eleven Auto Company, Inc., for the price and sum of $184.73.

This defendant, after citation, appeared and answered the suit by filing certain exceptions and pleading a general denial. Notice of trial seems to have been legally served upon this defendant, and the record shows that judgment was taken against this defendant, who was not present in person or through counsel. The testimony offered in proof of the sale and delivery of these goods to the defendant is ample and justifies the judgment as prayed for.

At the trial of this case on appeal, defendant was again absent and' unrepresented by counsel. The case was twice fixed for hearing in this court and no legal reasons given for the absence of the appellant or its counsel.

Appellee has prayed in this court for ten per cent, damages on the amount of the judgment awarded by the trial court for frivolous appeal herein taken. ' We think the damages asked for should be granted to the maximum amount. On the -face of the récord, there seems to have been, no justification for the appeal and failure of appellant or its counsel to appear before this court would justify the conclusion that the appeal was taken only for delays.

It is, therefore, ordered, that the judgment appealed from be affirmed, with' ten per cent, damages for frivolous appeal on the amount of the judgment appealed from, at appellant’s costs in both courts.


author: PORTER, J. ODOM, J.

text:
    No. 2006
    Second Circuit Appeal
    GRAHAM PAPER COMPANY v. SAVERY M. LEWIS
    (November 16, 1923, Opinion and Decree.)
    (March 17, 1925, Opinion and Decree on Rehearing.)
    (Ordered to Supreme Court on Certiorari and Review.)
    (Reported in Louisiana Reports, Vol. 159, p. —; 105 South. 258)

      (Syllabus by the Editor.)

    1. Louisiana Diaest — Partnership—Par. 1, 3, 4.
    Where parties are associated by contract for the conduct of a business venture, and where each contributes a portion of the capital, whether it be in tangible property, such as money or goods, or intangible property, such as services, and where the parties share the profits in definite proportions, the business is a partnership, and the parties are bound, particularly as to third persons, ' accordingly.
    2. Louisiana Digest — Partnership-^Par. 1, 4, 5, 7, 8.
    In this case there was a contract to engage in a business venture, the publication of a newspaper, and there. were three partners, each of which furnished one-third, which constituted the capital of the concern, and they agreed to share as co-owners the profits which might . accrue. It is a perfect illustration of the contract of partnership. The fact that they employed one of their members, at a stated salary, to manage the business does not change the status, of their contract.
    3. Louisiana Digest — Partnership—Par. 8, 82, 83.
    In view of Articles 2801 and 2825, etc., of the Civil Code, a partnership formed ■ for the purpose of publishing a newspaper is a commercial partnership in which each partner is bound in solido for the debts of the partnership.
    ON A REHEARING
    4. Louisiana Digest — Appeal—Par. 573.
    Judgment corrected as to credit allowed defendant on .account.
    Appeal from the Parish of Lincoln. Hon. J. B. Crow, Judge.
    This is a suit against one partner for a debt of the partnership. There was judgment for defendant and plaintiff appealed.
    Judgment reversed.
    Writs of the certiorari and review taken to the Supreme Court where the judgment was amended and affirmed.
    (Reported 159 La. —, 105 Southern 258.)
    S.D. Pearce, of Ruston, attorney for plaintiff, appellant.
    J. B. Holstead, Dhu Thompson, of Ruston, attorneys for defendant, appellee.
   PORTER, J.

The plaintiff Company sues the defendant on open account for $796.37, and legal interest from January 1st, 1921, on the allegation that he was a member of a commercial partnership, which operated under the- name of the Ruston Leader, and to which firm the goods charged on the account were sold.

There is an alternative allegation in the petition that, upon the dissolution of the partnership, the defendant assumed the payment of its debts.

The defense is a general denial, with certain special averments to the effect: ,

1. That the business conducted was not a 'partnership at all.

2. That if it was, it was not a commercial partnership, and defendant is liable for only his share of the debts.

It is also alleged that certain payments .were made on the account which are not credited thereon, and the alternative demand is that if defendant is held for any amount, the said credits should be deducted.

There was judgment in the District Court, rejecting the demand, and the plaintiff Company has appealed.

The vital, if not the only, question in the case is, whether the contract, hereafter to be described, and to which defendant was a party, was one of partnership. There is no dispute about the account, except as to the credits just mentioned.

We assume that the learned District Judge concluded that the evidence did not prove. a partnership. He did not han'd down any written reasons for the decree, except the formal reason expressed therein.

The facts, which appear principally from the allegations of defendant’s answer, from his testimony, and from that of his attorney, are as follows:

For some twenty years, the defendant was the owner of and conducted a newspaper and general printing business in the Town of Ruston, under the name of Ruston Leader. In the summer of 1920, defendant’s health failed, and he was advised to cease his active work, and take a rest.

Acting upon this advice, he, on or about the first ot August 1920, entered into a' written contract with Ted E. E. Enloe and J. Boatner Carter, both residents of Ruston, whereby he sold to each of them a one-third interest in the said newspaper, material and business. This sale was entirely on a credit, and we are not ad-, vised as to the price or terms of it.

The contract further provided that Enloe should edit the paper and manage the business, and should receive $250.00 per month as a salary for those services.

It was agreed that after deducting the above salary to Enloe, and all other expenses of the business, the parties to the contract were to share equally in the profits.'

The defendant testifies that he did not intend at the time the contract was made to enter into partnership, and that he was advised by his counsel at the time that the stipulation for the sharing of profits would not subject him to the liabilities of a partner, and he is corroborated by his counsel, Judge Holstead, who dictated the agreement.

The business was conducted by Enloe from the date of this agreement — about the first of August, 1920 — until the first of the following January. It was not a success. It not only failed to earn any profits, but debts accumulated, and the defendant saw that, unless something was done, the business would shortly go to pieces.

A settlement was made by which Enloe and Carter retroceded to him the interests which they held, and no part of the pur-, chase price of which had been paid to him by either of them. . This transfer was likewise in writing, but we know little about the details of it. It is admitted by the defendant that he paid Enloe $800.00, and assumed the payment of certain debts shown by a list furnished him by Enloe, upon which list was an account of $32.00, due the plaintiff Company. He says that he paid Enloe the amount just stated in order to avoid the delay of litigation with Enloe, and that he agreed to pay the debts just mentioned, because they were mostly due to the employees of the paper, and to people in the town, and that the effect of a refusal would have been injurious to the good name of the business. The evidence does not disclose what, if anything, was paid by Carter.

The court has not had the benefit of either of the above mentioned written contracts. The defendant testifies that he thinks he gave them to his counsel, and his counsel, while not able to say that this was true, declares that he has made diligent, but vain search for them. The defendant says he, also, has been unable to find them, after diligent search.

Several documents — copies of the Ruston Leader containing the validictory of the defendant and the salutatory of Enloe, and some letters in which Enloe ordered goods were filed in evidence by defendant, for the purpose, we assume, of showing that the defendant had no connection with the business during the period over which the account runs, and that Enloe was the sole proprietor of it.

In the issue of August 11th, 1920, there is a card signed by defendant, the caption of which, in bold type,. is:

“Ruston Leader changes hands. Ted Enloé, an experienced newspaper man, takes over entire business.”

In the body of the article, is this paragraph :

“I am writing this article for the purpose of giving public notice that I am out of the newspaper business. Mr. Ted Enloe takes over the entire newspaper and job printing plant, and will control the editorial and business management, and responsibility of the Daily and Weekly Leader.”

The paper of the week following, August 18th, 1920, contained an announcement signed by Enloe, and beginning with these words:

“In purchasing, the Ruston Leader, it has been with the belief that, etc.”

The rest of the article throws no light upon the point at issue.

Several letters in which goods are ordered are filed in evidence. One of these, dated October 14th, 1920, (the contract was entered into in August, 1920) is headed, in bold type, “Ruston Leader”, and, in much smaller type, there are the words: “Savery M. Lewis, Proprietor”.

Two others, dated Nov. 24th, 1920, and Dec. 3rd, 1920, show in .the same kind of type, the same heading, with the words: “Ted E. E. Enloe, Proprietor”. The first of these letters is signed: “Ted P. P. Enloe”. and “M. G. R.”. and the other, simply “Ruston Leader”.

Three copies of the paper, August 11th, August 18th, and October 6th, 1920, all carrying these words near the top of the first column of the editorial page: “Ted P. P. Enloe, Editor and Publisher”.

We do not regard these documents as important, for three reasons. (1) If they were entitled to show that the defendant was no longer interested in or connected with the business, they were admittedly untrue, because he held a one-third interest, and was entitled to share the. profits of it, (2) It is not necessary for a partner, to be liable as such that he should have any active control of the business, and, (3) the documents taken all together, do not fully sustain the contentions of the defendant.

. Neither Enloe nor Carter testified in the case. Enloe had disappeared, and there is no evidence as to the whereabouts of Carter.

The Civil Code contains these provisions on the subject of partnership:

.“Art. 2801. Partnership is a syllagmatic and commutative contract made between two or more persons for the mutual participation in the profits which may accrue from property, credit, skill or industry, furnished in determined proportions by the parties.”
“Art. 2813. A participation in the profits of a partnership carries with it a liability to contribute between the parties to the expenses and losses. But the proposition, like that of the profits, may'be regulated by the stipulation of the parties, and, where they make none, is provided for by law.”
"Art. 2814. A stipulation that one of the contracting parties shall participate in the profits of a partnership, but shall not contribute to losses, is void, both ' as it regards the parties and third persons, etc.”
“Art. 2805. Partnership must be created by the consent of the parties.”

A controversy raged in the Courts throughout the United States and England for more than a century over the question whether a sharing in the profits of a business alone was sufficient to constitute a partnership, and the jurisprudence was hopelessly conflicting on the question. It was definitely settled in this state in favor of the negative of the proposition by the cases of Chaffraix vs. Price, 29 La. Ann. 185, and Chaffraix & Agar vs. Lafitte & Co. 30 La. Ann. 631. The doctrine of these cases, and others like them, is that where a party receives, in lieu of a salary, a definite portion of the profits of a business, but who has no proprietory interest in the property which comprises the capital of the business, he is not a partner', and the contract is not one of partnership.

But there has never been any conflict, in this State, at least, over the proposition that where parties are associated by contract for the conduct of a business venture, and where each contributes a portion of the capital, whether it be in tangible property, such as money or goods, or intangible property, such as services, and where the parties share the profits in definite proportions, the business is a partnership, and the parties are bound, particularly as to third persons, accordingly.

Learned counsel for the defendant cites the cases of McWilliams vs. Elder, 52 La. Ann. 995, 27 South. 352; Collom vs. Browning, 49 La. Ann. 1257, 22 South. 744; Bluefields S. S. Co. vs. Ferresas, 133 La. 424, 63 South. 96; Chaffraix & Agar vs. P. H. & T. 28 La. Ann. 93; and 29 La. Ann. 1002. Those, and a number of other cases like them, were where a definite portion of the profits were received as compensation for services, and, hence, the contract was not one of partnership. . The McWilliams-Elder case is an illustration of the ruling principle in all of them. He was employed by the defendant to manage her plantation and store, and was to receive one-half of the net profits of the store business. Among other points decided was that the contract was not one of partnership.

One of the essential elements of partnership is the mutual contribution of capital by all the parties. It is true that capital may consist of services to be performed, but in the case just referred to, the defendant was to receive, presumably, full compensation for his services out of the profits, and could not be said to furnish any part of the capital.

These cases have no application to the one at bar, because Enloe’s salary was entirely separate and apart from the profits. His salary came out of the gross, proceeds of the business, and, in addition, he was to receive one-third of the profits, which, it was contemplated, would be yielded by his one-third interest in the property which he contributed.

The Courts have drawn a clear distinction between the obligations of members of such associations as between themselves and third persons, and have frequently held that as betw'een themselves, they may not be bound as partners, but may be as to third persons. We do not deem it necessary to discuss this feature of the case, because we are of the opinion that the contract here was a partnership as between the members as well as to third persons. There was a contract to engage in a business venture; the parties each furnished one-third of the property which consisted the capital of the conoern, and they agreed to share, as principals, as c.o-oioners, the profits which might accrue. It • is' perfect illustration of the contract of partnership.

■ The fact that they employed one of their members, at a-stated salary, to manage the business, is not significant. It is a matter of common knowledge that members of partnerships are frequently employed in the conduct of the firm’s business. It is rather the: rule than the exception. A casual reading - of some of the cases, such as Murrell vs. -Murrell & Puller, 33 La. Ann. 1240, and Leonard vs. Sparks, 109 La. 548, 33 South. 594, is calculated to convey the impression that the contract itself must not only contain all of the essential features of a contract of partnership, but that the parties must actually consent, and intend to form a partnership. And this appears to be the view entertained by defendant’s counsel, as expressed in his brief.

But this is a too literal interpretation of the decisions and of Article 2805 of the Civil Code.

The true doctrine, as we understand it, is, that the parties must consent and intend to make the contract, but when thus made, it is the sole prerogative of the Courts to affix to it the legal rights and obligations which, by law, flow from it, and when, from its terms, it falls within the classification of a particular contract, the intention to make such a contract will be conclusively presumed.'

This doctrine is clearly stated in Amacker vs Kent, 144 La. 553, 80 South. 717, where the late Chief Justice Monroe, as the organ of the Court, said:

“What the parties to a contract may haYe agreed upon is a question of fact; whether their agreement, such as it may be, is one which constitutes them the partners of éach other, is a question of law, about which the'bontractants are not infrequently mistaken.”
“And the same rule is emphasized and elaborated in Cameron et al. vs. Ry. Co., 108 La. 99, 32 South. 208. The American and-English Encyclopedia of Law, Vol 22, page 26, thus states- the proposition.”
“The intent which is controlling is the intent to contract for those things which the law declares constitute a partnership. If the parties intend to enter into such a contract; and actually do so, they will be partners, although they may have intended to avoid this consequence, or may even have expressly stipulated that they are not to be partners.” See Cooly vs. Brown, 29 La. Ann. 345 and McDonald, etc. vs. Millandon 5 La. 403.

This is a general rule, and has been applied to other contracts than those of partnership. In Buckley vs. Whited & Wheless, 104 La. 125, 28 South. 922, where the contract under consideration was held to be one of sale, it was said:

“Parties are at liberty to make contracts so long as they are legal, and to agree to accidental stipulations but where they actually make a contract with fixed legal essentials, they are powerless to control the legal effects of the contract itself. The contract being made, the law governs the results.” (Citing authorities.)

The above language was approvingly quoted in Paving Co. vs. St. Louis Cypress Co., 121 La. 152, 46 South. 193, which was also a contract of sale.

In a number of cases, the contract was held to be one of partnership, despite the express stipulation to the contrary in the written contract. Coley vs. Brown, 29 La. Ann. 345 Cameron vs. Ry. Co., 108 La. 99, 32 South. 208.

The business conducted in this case was a general newspaper and job printing business. The goods purchased consisted of print paper, paper for letter and note heads, and bill heads, card board, etc. The desired matter was printed on this paper and it was sold. It was a commercial partnership under the express terms of Article 2825 of the Civil Code, which this defines one of the purposes of a commercial part-' nership:

“For the purchase of any personal property, and the sale thereof, either in the same state or changed by manufacture.”

The undisputed testimony shows that Enloe paid a draft drawn by the plaintiff on the Rus ton Leader of date December 1st, 1920, for $140.00, this draft being paid December 7th, 1920, and that he paid a similar draft, $123.38, on November 11th, 1920. The defendant is entitled to credit for these two drafts, which total $268.38.

It is therefore ordered, adjudged and decreed that the judgment .appealed from be reversed and set aside. It is further ordered and decreed that there be judgment in favor of the Graham Paper Company, and against Savery M. Lewis, in the sum of seven hundred ninety-six and 37/100 ($796!37) dollars,. with five per cent per annum interest from January 1st, 1921, less a credit of $268.38, and that the costs be taxed against defendant.

(Crow, Judge, having rendered the judgment appealed from, takes no part.)

ON REHEARING.

ODOM, J.

This case was decided by our predecessors on this bench with the late Judge porter as the organ- of the court, a rehearing was granted by them and the case was submitted at Monroe on April 24, 924. The present members of the court only a few days ago had their attention called to the fact that it had not been disposed of.

On rehearing we have two questions to determine, one presented by counsel for plaintiff, appellant, who points out that the court erred in allowing credit on account sued on .and the other presented •by counsel for defendant, who strenuously urges that the court erred in holding that a commercial partnership existed between the defendant, Enloe and Carter.

Our- examination of the record convinces us that the court was in -error in allowing. credit on the account for the two payments made by Enloe, one on December 10, 1920, for $140.40, and one on or about November 15, 1920, for $123.88.

These payment were made by Enloe to apply on the account .which was due, defendant, but we find that they. ;wer.e both credited on the account. Attached to the testimony of Paul H. Dean taken by commission is a statement marked “exhibit -A” which he swears is correct. -This statement shows items charged to defendant beginning on August 18, 192Q, and ending December 14th of the same year, amounting to the sum of $1060.65. On this statement are shown credits of $123.88 paid on November 15, 1920, and of $140.40 paid on December 10, 1920, making a total of $264.28. This amount taken from the total amount of the account of $1,060.65 leaves $796.37, which is the amount sued for. .

This suit was not filed until, August 30, 1921,” some six months after these payments were made and of course the credits had been allowed at the time the suit was filed.

We find one statement in the record showing a balance of $796.37 due and setting out the items which make up that amount. It is indentical as to items and dates with the one attached to Dean’s testimony, except that the first item shown on it is for $6.13, date October 6, 1920. The Dean statement begins with an item of $56.16, date August 18, 1920.

Examining the statement carefully we find that in the month of August, 1920, defendant is charged with $56.16 .on August 18th, $36.87 on August 23rd, and $30.85 on August 26th, making a total of items charged in August of_ $123.88. .That is the exact amount paid by Enloe on November 15th. The statement also shows that defendant is charged with $140.40 on September 13th, and that is the exact amount paid by Enloe on December 10th.

These August and September debits having been taken care of by the November and December payments, of course were not shown on the account sued on in August, T921. The statement at that time showed á balance of $796.37 due. The organ of this court found this statement showing the balance due and also found these payments of November and December and gave credit for them on the amount sued for. ' He overlooked the fact that these payment's took care of items of indebtedness not shown on the account sued on but were sho’wn on the other statement attached to the testimony of Dean.

On the other question involved, that is, as to whether there existed a commercial partnership betweeen defendant S. M. Lewis, Enloe and Carter and as to the liability of the defendant for the whole amount Of the debt, we adhere to the original opinion. We have carefully reviewed the law and after having done so we are not disposed to add to or take anything therefrom.

For the reasons assigned, our original decree is amended so as to read as follows: It is therefore ordered, adjudged and decreed that the judgment appealed from be reversed and set aside: It is further ordered and decreed that there be judgment in favor of Graham Paper Company and against Savery M. Lewis in the sum of $796.37 with 5% per annum interest from January 1, 1921, until paid, and that the costs be taxed against defendant.