author: BELL, J. WESTERFIELD, J. PHELPS, Judge ad hoc.

text:
    No. 9969
    Orleans
    HAMILTON v. LOUISIANA RY. AND NAV. CO.
    (June 21, 1926. Opinion and Decree on Rehearing.)
    (January 4, 1927. Opinion and Decree of Supreme Court.)

      (Syllabus T)y the Court)

    1. Louisiana Digest — Master and Servant —Par. 154, 156; Courts — Par. 168.
    An employee of a “common carrier by railroad” who is injured while performing duties assigned to him as a member of a gang of laborers repairing a switch used largely, though not exclusively, for interstate commerce, cannot recover compensation under the Employer’s Liability Act of Louisiana, as amended by Act 244 of 1920. Under such circumstances his right of action is only under the Federal Employer’s Liability Act, and where it is conclusively shown that, prior to suit, a compromise settlement has been made with such employee, a claim for compensation, in addition to that received, must be denied under the Federal Statute.
    2. Louisiana Digest — Master and Servant —Par. 154, 156, 160 (j); Courts-r-Par. 168.
    Where á short-line, carrier operating entirely within the state and shown to be engaged in both interstate and intrastate traffic, is made defendant in suit for workmen’s compensation under the State’s Employer’s Liability Act, the prima facie presumption is that the carrier and the injured employee were engaged in interstate commerce at the time of the alleged accident. The burden of this presumption is upon the employee.
    Appeal from Civil Disrict Court, Division “D”, Hon. Porter Parker, Jurge.
    Action by Will Hamilton against the Louisiana Railway and Navigation Co.
    There was judgment for plaintiff and defendant appealed.
    Judgment reversed.
    Gordon Boswell, of New Orleans, attorney for plaintiff, appellee.
    Milling, Godchaux, Saal and Milling, of New Orleans, attorneys for defendant, appellant.
   OPINION

BELL, J.

This is a suit brought under the Employer’s Liability Act of Louisiana, Act 120 of 1914, particularly Section 30 thereof, as amended by Act 244 of 1920.

The plaintiff, a member of a gang of laborers employed by the defendant railroad, was injured in the company’s yards at New Orleans while repairs were being made by the company to a switch located within its yards. It is alleged that- on or. about -May 29, 1923, in the course of his. employment, plaintiff, with other employees, was handling heavy timbers; that-these-timbers were' being placed in a position adjacent to the switch and that- while thus engaged plaintiff’s right hand was badly crushed, causing it to be seriously and permanently injured. Recovery is predicated under the Louisiana statute, upon material averments to the effect that the defendant corporation, organized under the . laws of Louisiana and domiciled in Shreveport, Louisiana, is an intrastate common carrier by rail; that in pursuance of its business as such, the building of a switch at the New Orleans terminal of the company is wholly of an intrastate character, in which both the injured employee and his employer (the defendant carrier) were engaged at the time of the injury. It is further alleged that defendant, recognizing plaintiff’s claim for workmen’s compensation under the state statute and amendments thereto, paid to plaintiff, about two months prior to the suit, the sum of $100.00 on account of compensation due him, and that notwithstanding repeated demands for additional compensation defendant has refused to pay what is now due or later may become due under the act.

Defendant » answers by admitting that plaintiff was injured while in its employ at the place and time alleged. It avers that it is an interstate as well as intrastate common carrier by rail, and that as such it was repairing (not building) the switch in question as part of its tracks used constantly and permanently in interstate commerce, and that the work in which plaintiff was engaged when injured was work in the furtherance of interstate commerce. Defendant specifically denies that it recognized plaintiff’s claim for compensation under the state statute by paying plaintiff $100.00 as alleged, but that such payment was on the contrary made upon the assumption that plaintiff’s injury occurred while he was engag.ed or employed in relation to interstate commerce and that plaintiff accepted the payment upon that assumption, a fact which he is estopped to deny. It is finally averred that “such payment constitutes a perpetual bar to any claim whatsoever brought by the plaintiff".

There was judgment in favor of plaintiff under the state statute in the amount of weekly compensation as prayed for in the petition, subject to a credit of $100.00 previously paid and for an additional amount in the sum of $250.00 for medical attention, etc., and for costs. Prom this judgment defendant has appealed.

The paramount question for determination is whether plaintiff’s action is controlled by the Employer’s Liability Act of Louisiana, or by the Federal Statute bearing on the same subject matter.

Relative to injuries sustained by railroad employees, the Louisiana Compensation Act (Sec. 30, as amended by Act 244 of 1920) reads as follows:

“That this act shall 'not be construed to apply to any employer acting' as a common carrier while engaged in interstate or foreign commerce by railroad, provided that the employee of such common carrier was injured or killed while so employed; but if the injury or killing of an employee of a railroad occurs while the employer and employee are both engaged and employed at the time in an interstate operation or movement and said movement or operation is not controlled or governed by the laws, rule of liability or method of compensation which has or may be, established by the Congress of the United States, then this act shall govern and compensation shall be recovered thereunder * •

Section 1 of the Acts of Congress of April 22, 1908, Chapter 149, 35 Statutes at Large, 65, provides that:

“Every common carrier by railroad, while engaged in commerce between any of the several states or territories * * * shall be liable for damages to any person suffering injury while he is employed by such carrier in such commerce * *

Where the action was brought under a state statute against a carrier alleged to have been in intrastate commerce at the time and place at which he, as the carrier’s employee, was likewise engaged, the burden of affirmatively establishing these allegations is upon the employee. Philadelphia & Reading R. R. Co. vs. Polk, 256 U. S. 332; St. L. S. F. & Tex. Ry. Co. vs. Seale, 229 U. S. 156; Thaxton vs. L. R. & N. Co., 153 La. 292, 95 South. 773; Dupuis vs. L. R. & N. Co., 155 La. 593, 99 South. 709.

Without discussing in detail the evidence before us, we find from the blue print, showing the switch and main line tracks with which the switch is connected, and from the Company’s Superintendent of Terminals at New Orleans, as well as from the testimony given by plaintiff concerning the general nature of his employment and the work he was performing when injured, that the defendant, as well as plaintiff, were then engaged in commerce, largely, though not exclusively of an interstate character, in that the switch and its connections then undergoing repairs were instrumentalities of interstate commerce so closely allied with interstate traffic as to be part thereof.

We are also of the opinion under the authorities above noted that plaintiff has failed to carry the burden imposed upon him of proving the allegations made in his petition regarding the intrastate character of the work or operation obtaining, both as to himself and his employer, at the time of the accident.

The true test for determining whether an employee’s right of recovery arises under the state’s or the Federal Employer’s Liability Act is:

(a) Is the work which was being done by the employee when injured part of or closely related to interstate commerce in which the carrier was then engaged? or

(b) Is the instrument of commerce undergoing repairs habitually used for intrastate commerce?

If, under the facts adduced an affirmative answer can be given to either of these questions the Federal and not the State Act must be applied.

It is an immaterial fact that the carrier’s line of railroad lies entirely within a state or that the place of accident was in the yards at one of its terminals. St. L., S. F. & Tex. Ry. Co. vs. Seale, 229 U. S. 156; La. Ry. & Nav. Co. vs. Williams, 272 Fed. 439; N. Y. C. R. R. vs. Winnfield, 244 U. S. 147.

A careful consideration of the ruling made in Dupuis vs. L. R. & N. Co., 155 La. 954, does not lead us to the conclusion, as argued by counsel for plaintiff, that the Supreme 'Court of this state, in reversing the judgment of the Court of Appeal for the First Circuit, intended to ignore the leading ease of Pedersen vs. D. L. & W. R. R. Co., 229 U. S. 146. In the Dupuis case the Supreme Court noted that the plaintiff’s injuries had been sustained while unloading a car of piling, which was admittedly an interstate shipment hauled by a local train handling only interstate commerce, and that the plaintiff’s immedi- ■ ate employment would have ended with the unloading of the piling. The court held that these facts brought the case within the ruling announced in C. B. & Q. R. R. vs. Harrington, 241 U. S. 177.

In the unsupported case of Thompson vs. L. R. & N. R. R. Co., 9123 of the docket of this court, decided October 1, 1923, and in which the Supreme Court of this state refused a writ (December 5, 1923), we decided, upon the ruling noted in the Pedersen case, that:

“An employee injured while performing his duty as a car-cleaner upon a passenger coach shown by the evidence to. have been used at the time of the accident in interstate commerce cannot recover under the State’s Employers’ Liability Act.”

In Miller vs. M. L. & T. R. R. & S. S. Co., et al., 1 La. App. 1st Adv. Rep.) p. 270, citing our ruling in the Thompson case, we held: “The Employers’ Liability Act of 1914, as amended by Act 244 of 1920, does not apply to an employer acting as a common carrier while engaged wholly or in part in interstate commerce by railroad.”

In Porter vs. Lancaster, Receiver, 2 La. App. 47, the Second Circuit Court of Appeal, on rehearing, reversed its former decree, and upon the authority of the Pedersen case and other cited decisions of the Supreme Court of the United States, held that the state statute does not apply to an employee injured while repairing the track of a railroad engaged in interstate commerce.

In the case of “Louisiana Railway & Navigation Co. vs. Williams, 272 Federal 439”, a decision of the Circuit Court of Appeals for the Fifth Circuit, the plaintiff was a roadmaster injured in supervising some work on the railroad of the Louisiana Railway & Navigation Co. and also making an inventory, of the property and materials on the right-of-way.

The Circuit Court of Appeals held that his recovery came under the- Federal Act, saying at page 440:

“The court did not err in refusing to direct a verdict for the defendant at the conclusion of the entire testimony, on the ground that the evidence showed, without conflict, that at the time of the accident Williams was not engaged in interstate commerce, but in the exclusive business of taking an inventory of materials lying on the property of the road, all of which is in the State of Louisiana. Even if it be conceded that, had Williams been exclusively engaged in taking such inventory, he would not have been employed in interstate commerce, in our opinion, the work of Williams as a roadmaster, in supervising the keeping in repair of said track of said railway engaged in interstate commerce, constituted an employment by such carrier in interstate commerce. Under the testimony of the plaintiff, which was not contradicted, he was such an employee at the time of his injury, and was so occupied. Pedersen vs. D. L. & W. Ry. Co., 229 U. S. 146, 33 Sup. Ct. 648, 57 L. Ed. 1125, Ann. Cas. 1940, 153; Southern Ry. Co. vs. Puckett, 244 U. S. 571, 37 Sup. Ct. 703, 61 L. Ed. 1321, Ann. Cas. 1918 B, 69; Lehigh Valley R. R. Co. vs. Barlow, 244 U. S. 183, 37 Sup. Ct. 515, 61 L. Ed. 1070; New York Cent. R. R. Co. vs. Porter, 249 U. S. 168, 39 Sup. Ct. 188, 63 L. Ed. 536; Phila. B. W. R. R. Co. vs. Smith, 250 U. S. 101, 39 Sup. Ct. 396, 63 L. Ed. 869.”

We are convinced that plaintiff’s action in the case at bar is controlled by the Federal Employers’ Liability Act and that he has no right of action under the state’s statute.

It is conceded by counsel for plaintiff that if the Federal Statute controls, then the admitted payment and release regarding the $100.00 already received bars plaintiff from any further recovery for additional compensation.

It is therefore ordered that the judgment appealed from be reversed and that there now be judgment for the defendant, the Louisiana Railway & Navigation Company, dismissing -plaintiff’s suit at his cost in both courts.

OPINION ON REHEARING'

WESTERFIELD, J.

A reconsideration of this case convinces us of the error of our former decrée.

Will Hamilton, the plaintiff, an ignorant negro laborer, was employed by the defendant railroad and at the time of the accident was engaged in piling up cross-ties destined for use in connection with the repair of a switch track belonging to the defendant. Much has been said in argument, and, in brief, pro and con,. as to the use of the switch track as establishing its character as an instrumentality of interstate commerce. We will assume that it was, and that all laborers and others engaged in its repair were engaged in interstate commerce. What connection had Will Hamilton with the repair of the switch track? The day before he was injured he helped place some crossties in position on the track. What he did the day before is, we submit, of no consequence, for the true test of whether the Federal or state act applies in his occupation at the time of, indeed, at the moment of, his injury.

“Every common carrier by railroad, while in commerce between any of the several states or territories * * * shall he liable for damages to any person suffering injury while he is employed by such carrier in such commerce.” (Italics ours.)

Federal Act, Sec. 1.

“Giving the words ‘suffering injury while he is employed by such carrier in such commerce’ their natural meaning, as we think must be done, it is clear that Congress intended to confine its action to injuries accruing when the particular service in which the employee is engaged is a part of interstate commerce. * * * That he was expected, upon the completion of that task, to engage in another which would have been a part of interstate commerce is immaterial under the statute, for by its terms the true test is the nature of the work being done at the time of the injury.” I. C. R. R. Co. vs. Behrens, 233 U. S. 473.

The ultimate question therefore is, was Hamilton’s occupation at the time he was injured so closely related to interstate commerce as to form a part of it? It must be conceded that one who repairs an interstate switch track is employed in interstate commerce, with certain qualifications which need not be noted here. But is the laborer who carries the material for the repair of the track, so engaged? If the laborer who transports the crossties a short distance and places them in a convenient position for use is engaged in interstate commerce, what about the drayman* who transports the ties a longer distance and places them in position for the laborer to take them up? And what of the manufacturer? The answer is to be found in the decisions of the courts or, as Sir Edward Coke puts it, “in the gladsome light of jurisprudence”.

At the outset we disclaim any intention, and less desire, to indulge in a comprehensive review of the adjudged cases involving interstate commerce. In the first place we are too old, and though we attained the normal expectancy of life, death would inevitably find us with our pen poised and our task incomplete. No subject of constitutional law has received more attention, and, concerning which more has been written than has been devoted to a consideration of what is and what is not interstate commerce, involving as it does vital principles of our dual system of government. A veritable Sargasso Sea of printers’ ink which the troubled mariner once embarked finds himself without compass to guide him into the clear waters- of judicial consistency and legal certainty.

It is no reflection upon the learning and genius of the gentlemen who have contributed to this vast subject of jurisprudence to say that the jurisprudence can not be reconciled and no rule or formula free from confusion in application has yet been devised. The difficulty arises ex necessitate rei.

Chief Justice Marshall in Brown vs. Maryland, 12th Wheat 419, in speaking of the power of Congress over foreign commerce and its interference with the acknowledged power .of the states over their domestic affairs, said:

“The power and the restriction on it, though quite distinguishable when they do not approach each other, may yet when (like) the intervening colors between black and white, approach so nearly as to perplex the understanding, .as colors perplex the vision, in marking the distinction between them. Yet, the distinction exists and must be marked as the cases -arise. Until they do arise it might be premature to state any rule as being universal in. its application.”

Nearly one -hundred years later in the case of Industrial Accident Commission vs. Davis, 259 U. S. 182, the same court, re ferring to the relation of the employment to interstate commerce as determining the application of the Federal Employers’ Liability Act, said:

Further discussion is unnecessary, though we are besought to declare a standard invariable by circumstances or free from confusion by them in application. If that were ever possible, it is not so now. Besides things do not have to be in broad contrast to have. different practical and legal consequences. Actions take estimation from degrees, and of this, life and law are replete with examples.”

Our effort, therefore, shall be to select a case which by closest analogy fits this case — very much as a purchaser tries on hats in a hat store to get the best fit.

Defendant insists that the case of Pedersen vs. D. L. & W. R. R., 229 N. S. 146, controls. In that case it was held that an employee carrying bolts to be used in the repair of a bridge used by an interstate train was engaged in interstate commerce. The decision was not unanimous, three of the members of the court dissented, but, of course, its authority can not be questioned on that 'account, and, if we did not believe the doctrine of this case to be qualified by subsequent decisions, we should hold it to be decisive of the issues here as counsel contends. The facts are not exactly alike, for example, Pedersen was carrying bolts to the bridge which was under repair while in the case at bar Hamilton was piling up the crossties in a convenient place from which they could thereafter be put in the switch. If it be objected that this is a distinction without a difference, we answer that “trifles light as air” have influenced the courts in most of these cases as has been heretofore indicated. Nevertheless, we would not distinguish this case from the Pedersen case upon the difference in its facts alone.

In I. C. R. R. Co. vs. Behrens, 233 U. S. 473, it was held that a fireman in the employ of a trunk line railway who, as a member of a crew operating a switch engine, used to move cars of all sorts empty and loaded and destined within and without the state, was not engaged in interstate commerce because at the moment he was injured his engine was moving only intrastate cars, there not happening to be any cars in that particular train destined beyond the state, though interstate cars were waiting to be moved by the same engine.

“In short the crew handled interstate and intrastate traffic indiscriminately, frequently moving both at once and at times turning from one to the other. At the time of the collision the crew was moving several cars loaded with freight which was wholly intrastate, and upon completing that movement was to have gathered up and taken to other points several other cars as a step of link in their transportation to various destinations within and without the state.”

In Erie R. R. Co. vs. Welsh, 242 N. S. 303, the employee was held not to be engaged in interstate commerce though his connection with such commerce seems very much closer than in the Pedersen case. Welsh was a yard conductor working under a yardmaster in the employ of the Erie R. R. Just previous to his injury he had made up an interstate train, placing the freight cars in the train, destined for points beyond the state. While on his way to the yardmaster’s office for orders for the further movement of cars in the yard, he was hurt. Moreover the orders which he would have received required him to make up an interstate train. Nevertheless he was denied recovery under the Federal Act. The court in referring to the claim that the slight interval between the making up of the two trains could not affect the interstate character of his employment, said:

“Upon the strength of this it is argued that his act at the moment of his injury partook of the nature of work that, but for' the accidental interruption, he would have been called upon to perform. In our opinion, this view is untenable. By the terms of the Employers’ Liability Act the true test is the nature of the work being done at the time of the injury, and the mere expectation that plaintiff would presently be called upon to perform a task in interstate commerce is not sufficient to bring the case within the act.”

Upon the authority of the Behrens and Welsh cases we are of opinion that the plaintiff in the case at bar was not at the moment of injury engaged in interstate commerce and that consequently not barred from recovery under the state statute.

Our former decree is set aside and it is now ordered that the judgment of the District Court be affirmed.

For the written reasons on file I respectfully dissent.

(Signed) ESMOND PHELPS.

DISSENTING OPINION

PHELPS, Judge ad hoc.

Defendant operates a line of railroad with its terminal at Shreveport, Louisiana, and New Orleans, Louisiana. Its line is located entirely within the State of Louisiana but is continuously used for the transportation of freight destined to, or originating from points in other states. Plaintiff was a member of one of defendant’s track repair gangs. This gang was engaged on the day of the accident in repairing a switch track which was ' an integral part of defendant’s terminal yard at New Orleans and over which there moved each month several hundred cars of freight, a substantial part thereof being interstate shipments.

On the day of the accident and also on the day previous, plaintiff was engaged in assisting in the repair of this switch. His foreman instructed him to go, with several other members of his gang, to a point a short distance away and bring some timbers to the switch so they would be available for installation on the following morning. Plaintiff was injured while assisting in bringing these timbers to the switch.

This suit is brought to recover compensation under the Louisiana Workmen’s Compensation Act (Act 20 of 1914). That act has no application to railroad employees who are injured while engaged in interstate commerce. (Sec. 30, as amended by Act 244 of 1920). Indeed, the statute could not be made applicable in cases falling under the Federal Employers’ Liability Act. (New York Central R. R. vs. Winnfield, 244 U. S. 147. The question in each case is, therefore, whether the injured employee was at the time of the accident engaged in interstate commerce; and the decisions of the Supreme Court of the United States on this question bind the state courts and must be followed by them. (New York Central R. R. Co. vs. Winnfield, supra.)

This case, in my opinion, falls clearly under the decision of the Supreme Court of the United States in Pedersen vs. Delaware, Lackawanna & Western R. R. Co., 229 U. S. 146, in which it was held that a railroad employee who was injured while engaged in carrying to a bridge bolts to be used the next day in the repair thereof was engaged in interstate commerce at the time of the injury. In the Pedersen case no repair work had been done on the bridge but the work was to be begun the next day and the materials were being assembled by the bridge gang for that purpose. Here the repair work had been going on for two days and plaintiff had been participating therein. Plaintiff’s act in bringing the timber to the track was incidental and necessary to the repair work already begun. The case at bar is, therefore, much more, clearly within the Federal Act than was the Pedersen case. The authority of the Pedersen case has not been challenged or effected by any subsequent decisions of the Supreme Court of the United States. On the contrary, that court extended the doctrine of the Pedersen case by its decision in Philadelphia, Baltimore & Washington R. R. Co. vs. Smith, 250 U. S. 101, in. which it held that an employee of an interstate railroad whose duties were to cook the meals for a gang of bridge carpenters in a camp car which was provided and moved from place to place along the railroad line to facilitate, their work in repairing bridges, and who, at the time of his injury, was within the car on a side track and occupied in cooking a meal for the carpenters while they were repairing one of the bridges in the vicinity was engaged in interstate commerce within the meaning of the Federal Employers’ Liability Act. If an employee engaged in feeding the bodies of a gang is engaged in interstate commerce because of the interstate nature of the work of the gang, then it necessarily follows that a member of the repair gang engaged in feeding, material to his gang for immediate use in repair work already begun on an instrumentality of interstate commerce is also engaged in interstate commerce.

The decisions of the Supreme Court of the United States in cases involving the movement or repair of cars or engines are inapposite. Such equipment is not permanently dedicated to interstate commerce. Each car or engine is a separate unit which is at one time devoted to interstate and at another time devoted to intrastate commerce. The tracks of the railroad are, however, permanent fixtures and an integral part of one continuous highway of interstate commerce. They are at all times instrumentalities of interstate commerce.

The decision of the Supreme Court of Louisiana in Dupuis vs. Louisiana Railway & Navigation Co., 155 La. 953, 99 South. 709, is manifestly inapplicable. There the court held that a railway bridge foreman injured while engaged in unloading from a car piling shipped from a point within the state and intended for use at some indefinite future time in protecting a railway bridge was not engaged in interstate commerce. The court stressed the fact that “while the purpose for which the piling was intended to be used is shown, there is no proof in this record of any necessity for its immediate use for that purpose and no proof- as to when, or whether it ever would be so used.” (P. 956.) Here, the repair work had been actually begun and the timber was intended for immediate use.

For the foregoing reasons, I am of the opinion that plaintiff was injured while engaged in interstate commerce and that no recovery can be had under the Louisiana Compensation Act. I, therefore, respectfully dissent from the opinion and decree permitting recovery under the state act.


source: Caselaw Access Project

author: LECHE, J.

license: Public Domain

text:
    No. -
    First Circuit
    BROUSSARD-LABRY INC. v. PEOPLE’S BANK & TRUST CO.
    (Jan. 7, 1927. Opinion and Decree.)

      (Syllabus by the Editor.)
    1. Louisiana Digest, — Agriculture—Par. 24.
    Unless the furnisher of supplies can show in detail the nature, amount and tprice of the articles furnished for the operation. of the farm or plantation, he cannot prove the privilege on the .crop accorded by Act 93 of 1922.
    Appeal from the District Court, Parish of Vermilion. Hon. W. W. Bailey, Judge.
    ■ Action by Broussard-Labry Inc. against People’s Bank & Trust Co., et als.
    . There was judgment .for. defendant and plaintiff appealed.,.
    Judgment affirmed.
    Broussard & Sampson, of Abbeville, attorneys for plaintiff, appellant.
    Nugier & Gordy, of Abbeville, attorneys for defendant, appellee.
   LECHE, J.

The purpose of this suit is to hold defendants liable as purchasers of a farm, for the amount of a crop privilege alleged to have been affecting the crop which had been grown on said farm, although not yet harvested, when defendants bought and took possession thereof.

Plaintiff charges that it made advances to one Lessin Mouton to enable him to plant, cultivate and gather during the year 1925, crops of rice, cotton and corn, on his farm situated in the Parish of Vermilion, as evidenced by two contracts, one on January 29, 1925, and the other of July 29, 1925. That in accordance with its said agreement it made advances in money and supplies to said Lessin Mouton amounting to twelve hundred and eighty-two 81/100 dollars. That under said contracts, its said advances were used to grow crops of rice, cotton and corn, and were secured by the privilege accorded by law in favor of the furnisher of supplies, upon the crops grown by Lessin Mouton. That said advances were additionally secured by pledge and pawn in accordance with the Act of 1874, as amended by Act 93, ip. 173 of 1922, as stipulated in its said contracts of January 29, and - July 29, 1925. That -the farm 'of- Lessin Mouton was sold under executory process on August 8, 1925, and was adjudicated to J. B. Frederic, a party interposed, the real purchaser béing the People’s Bank & Trust Company of Abbeville, and that said purchaser took possession of the farm as well as of the growing and ungathered crops thereon, harvested said crops and sold the same for its own benefit, without accounting tq plaintiff, notwithstanding the fact that said crops remained affected with the plaintiff’s lien and privilege and right of pledge. Plaintiff further charges that said crops were sold for more than the amount of the privileged indebtedness affecting the same, and prays that defendant be ordered to account to it, for the proceeds of said crops and in default thereof; that defendant be condemned to pay to it the full amount of said advances with interest and costs, less the sum of one hundred and twenty 19/100 dollars received on account September 18, 1925.

The District Court refused and rejected plaintiff’s demand and it has appealed to this court.

The charge that the People’s Bank & Trust Company was the real purchaser is practically abandoned in this court, and the case is presented as one against J. B. Frederic and will be treated and considered as such.

The question in the case is whether plaintiff had any privilege at all upon the crops grown by Lessin Mouton upon his farm during the year 1925.

As before stated, the contract for advances by plaintiff to defendant, were made on January 29, 1925, and July 29, 1925. Each provided for advances in the sum of five hundred dollars; that of January was recorded two days after it had been entered into, viz: On January 31, 1925, and that of July 29th, was only -recorded September 15, 1925, after the farm had passed into the ownership and possession of Frederic. As soon as these contracts were entered into they were carried out in the following manner: Plaintiff would turn over to defendant, booklets ’ containing coupons for an amount equal to that agreed to be advanced. The coupons were then used as representatives of money and were redeemable in cash and merchandise in a store conducted by plaintiff. This system was evidently adopted for one of two purposes, and possibly for both. It dispensed plaintiff from the trouble of keeping books showing in detail the purchases made by Mouton, and at the same time it more or less limited Mouton to making all his purchases in plaintiff’s store. So that when the case was tried in the District Court, plaintiff was unable to designate and itemize the kind and quantity of merchandise it had furnished to Mouton and could not show that such merchandise consisted of supplies to cultivate his crops. Mouton as a witness says he got some cash, bought a buggy for his son, bought a couple of plows for fifteen dollars, bought clothing, coffee, tobacco, shoes, etc., but could give no definite account of what he had bought with the coupons.

Plaintiff assimilates its position to that of a commission merchant who in making advances discounts planters’ paper in a bank and places the proceeds to the credit of the planter, to be drawn by him as needed during the current year. It was held in Hewitt vs. Williams, 47 La. Ann. *750, 17 South. 269, that “where money is advanced to purchase supplies, it would be unreasonable to require the party who advances the money to inquire into the details of its disbursement. In fact, if he places. the money in bank to the credit of the borrower, he cannot control its use. He cannot, therefore, be held to a knowledge of the ultimate destination, and be required to direct its specific use. Lehman Abraham & Co. vs. Godberry, 40 La. Ann. 219, 4 South. 316.” Plaintiff quotes in support of its position the case of American Oil Co. vs. Spiller Sugar Co., 161 La. (108 S. R., p. 878). In that case it was held that one who furnishes fertilizer to grow a crop, is not bound to follow the fertilizer and see that it is actually spread on the land where the crop is planted, in order to have his privilege recognized.

Cn the other hand it was held in the case of Lochte vs. Lefevre, 128 La. 109, 54 South. 578, that “the privilege of the furnisher of supplies on the crops of the year arises only where the supplies are necessary for the operation of the farm or plantation. Such a privilege cannot be recognized in the absence of evidence showing in detail the nature, amount and price of the article furnished”. In that case the evidence showed that the groceries furnished included cigars, tobacco, whisky, preserves, jellies, pickles and canned goods, none of which were held as necessary supplies. The court further quoted as precedents, the cases of Wallace vs. Urquhart, 23 La. Ann. 469, and Stafford vs. Pearson & Williams, 26 La. Ann. 658.

In the present case, the plaintiff is not a commission merchant in the sense in which that expression is generally understood in South Louisiana. A commission merchant is one who buys and sells on commission, hut keeps no stock of supplies of his own. - The plaintiff here is simply a merchant who sells his own goods and supplies and his interest in furnishing the farmer, consists of the profits which he makes in the sale of such goods and supplies. It is within the power of the ordinary merchant, such as plaintiff is, to keep posted as to the details of the “nature, amount and price” of the articles which he furnishes as supplies. Plaintiff, on account of the system that it had adopted in its dealings with Mouton, was unable to show the “nature, amount and price” of the articles it had furnished him, and the district judge in consonance with the law as construed in the case of Lochte vs. Lefevre, held that there was no proof to justify the recognition of a privilege. We fail to find any error in that ruling.

For these reasons the judgment appealed from is affirmed.


author: LECHE, . J.

text:
    No.-
    First Circuit
    GRAY v. ELGUTTER
    (Dec. 7, 1926. Opinion and Decree.)
    (Jan. 7, 1927. Rehearing Refused.)

      (Syllabus by the Editor.)

    1.Louisiana Digest — Appeal—Par. 625; Master and Servant — Par. 160 (j).
    The finding of the trial court on a matter •of fact, namely, that the party injured •was not employed by any defendant at the time of the accident being clearly correct is affirmed.
    2. Louisiana Digest — Negligence—Par. 10, 11, 36.
    A skylight in an apartment house through which one may fall if he steps on the glass, is not such a trap as would make the landlord liable to a trespasser for damages.
    3. Louisiana Digest — Negligence—Par. 10, 11, 36.
    The owner of premises owes no duty to a trespasser save that of not wantonly injuring him.
    Appeal from District Court of East Baton Rouge Parish. Hon. Wm. Carruth Jones, Judge.
    Action by Lenora Gray against Adolph Elgutter et als.
    There was judgment for defendants and plaintiff appealed.
    Judgment affirmed.
    H. K. Strickland, Fred G. Benton, of Baton Rouge, attorneys' for plaintiff, appellant.
    C. C. Bird, Jr., Charles Holcombe, of Baton Rouge, attorneys for defendant, appellee.
   LECHE, . J.

Adolph Elgutter owns a two-story building situated and fronting east on Third Street in the City of Baton Rouge. The lower floor is occupied by a tenant who uses it to conduct a mercantile business known as the “Varsity Shop;” the upper floor or second story is divided into apartments known as the “Varsity Apartments,” and is occupied by various and several tenants. There is a hallway running almost the full length of the upper floor, which furnishes a means of ingress and egress for the tenants of the Varsity Apartments, so as to maintain the privacy of each occupant of the various apartments. This hallway is for the common use of all the tenants and a stairway leads thereto from the street. There are five separate and distinct apartments, numbered consecutively from one to five, each apartment consisting of three to. five rooms.

In apartments three and five, situated on either side of the common hallway, and about half way or the center of the building, there are skylights which furnish daylight to the Varsity Shop below, and to the hallway above. The skylight with which we are concerned in this litigation is that situated in Apartment No. 3. . If is enclosed in a shaft measuring seven feet by nine feet, which starts from the second floor of the building and extends to the roof. That part of the roof over it is of glass and so is the bottom of it, in order to permit the light of the sun above the building to penetrate to the Varsity Shop below. It is completely enclosed by a wooden partition except for a reasonable space in the wall next to the hallway, which is also glazed in order to furnish light in the hallway of the apartments. The only way to enter the skylight shaft, is by a small door which opens in a small room, called the kitchenette of Apartment No. 3. To reach the skylight room from the common hallway one must' pass through two other rooms and through three or four doors.

Apartment No. 1 consists of five rooms forming the northeast or front left corner of the building; Apartment No. 2 has three rooms and is situated at the southeast corner of the building. Apartment No. 4 contains five rooms and extends across the entire rear or west end of the building, and Apartment No.. 3, which contains five rooms, extends from Apartment No. 4 to Apartment No. 2 and is entirely south of the hall and on the south side of the building. There are no communicating doors between the apartments and entrance thereto can only be made from the hallway.

The floor plan of the Varsity Apartments would be more quickly understood if shown by a diagram but we believe that the description of it which we have attempted to give, is sufficiently explicit to enable one to understand all the pertinent facts necessary for a proper appreciation of the merits of this case.

The plaintiff, a colored woman, charges and complains that on October 20, 1923, while in the employ of John Ladas and J. H. Bailey, she was directed by Ladas acting for himself and Bailey, to go and clean up Apartment No. 3, to take down cobwebs, sweep and clean all the rooms of that apartment. That in compliance with these instructions, as was her duty, she proceeded to do her work, when suddenly, she went through the floor with a broom in her hand, then she “didn’t know nothing until next morning”. What really happened, was that she went into the skylight shaft, stepped on the glass floor, which Was insufficient to carry her physical weight, went through the skylight and fell on a showcase in the Varsity Shop below. She was painfully injured but survived the shock and her testimony was elicited in extenso on the trial of the case.

In the present suit, she sues to recover damages in the sum of five thousand and sixty-two dollars against Elgutter, owner of the building, and against Ladas and Bailey, her employers, in solido.

Her demand was refused by the trial judge, and her suit dismissed. She has appealed from that decision. , • ,■ ; .r.

Plaintiff’s testimony is contradicted by the defendants in every essential particular, save the fact that she stepped on the skylight, fell through it, and was more or less injured.

Ladas at the time of this occurrence was occupying Apartment No. 4 and he was also renting Apartment No. 2, the latter only since October 10, 1923. Bailey was renting and occupying. Apartment No. 1 since February 20, 1923. It appears beyond doubt that neither one of them was lessee of or had any control over Apartment No. 3 at the time. Elgutter says that Apartment No. 3 was closed and the door to the same locked by him and the key kept in his pocket, when R. H. Sellers the last tenant who occupied that apartment, left it. In this he is corroborated by Sellers himself.

It is not made clear how Apartment No. 3 became open, unless a Mrs. Malczweski who had occupied Apartment No. 4 before- Ladas, and who acknowledged that she had a skeleton key with which she could open the same, had opened the door and left it unlocked. It is established beyond doubt that Apartment No. 3 had been vacant for some time before plaintiff fell through the skylight and that no one save Elgutter, owner of the building, had any right to enter it.

Plaintiff is contradicted both by Ladas and by Bailey as to the time she was employed by each one of them, for she did occasionally work as house cleaner for each of them, as to the manner of her employment and as to the wages she had earned. Both Ladas and Bailey deny in the most positive manner that either ever employed her to clean Apartment No. 3, or had ever ordered her to enter that apartment for that or any other purpose.

A. mass of testimony was introduced on the trial of the case, touching facts and circumstances more or less irrelevant to the real issue, in order to impeach the credibility' of the witnesses. There is no necessity to recite in this opinion, that testimony in detail. Suffice it to say that it has fallen short' of its purpose so far as Ladas and Bailey are concerned. These two witnesses are corroborated by the testimony of Elgutter, by documentary evidence in the shape of a written lease and by other surrounding circumstances. Plaintiff’s attempt to account for her entering Apartment No. 3 and the skylight shaft, is not only unsupported by any evidence but is in direct conflict with the testimony of Elgutter, Ladas and Bailey. Elgutter had not authorized any one to enter that apartment, he had the key to its entrance in his pocket and was under the belief that it was closed and locked, though in point of fact, the door was unlocked for having as above stated, most likely been left open by Mrs. Malczweski with the skeleton key. Ladas and Bailey were not at the time of Lenora’s fall, either occupants or lessees of Apartment No. 3 and they deny having engaged plaintiff to clean or enter the same.

Under these circumstances we are constrained to hold that plaintiff acted neither as agent, employee, nor as servant of Ladas and Bailey, that she entered the skylight room to satisfy her own idle curiosity, and for no other purpose.

Plaintiff’s demand against Ladas and Bailey is founded on the principle that a master must provide his servant with a safe place to perform his work. On this part of her demand, we are of the opinion that she has signally failed to bring herself within the category of a servant or employee of Ladas and Bailey. Her claim against Elgutter, on the other hand, rests on the ground that Elgutter was at fault in keeping up on his premises, an attractive nuisance, and further admitting that she was a trespasser, that Elgutter had no right to maintain a trap as a menace to human life, even as against a trespasser.

Responsibility in damages, of those who erect or maintain instrumentalities which may injure or kill human beings, is not of universal application, but is restricted to such instrumentalities as are attractive, as are located in places which may be frequented by the [public and is applied in favor of persons lacking judgment and discretion. It originated under the doctrine commonly known as the “Doctrine of the Turn-Table cases”. Many courts in the country have refused to recognize it even in its most restrictive sense, holding that the owner of premises is not bound to insure trespassers. It has however been recognized in this state (Fincher vs. Chicago R. I. & P. Ry., 143 La. 164; Tomlinson vs. V. S. & P. Ry. Co., 143 La. 641), but we find no case where it has actually been applied. It is obvious nevertheless, that under the uncontested facts herein, the skylight was not an attractive nuisance in a place accessible to and frequented by the public, and that plaintiff is not a child, devoid of judgment and discretion. Her demand therefore against Elgutter upon this ground is not well founded.

Under the facts which we have found, plaintiff was clearly a trespasser when she entered Apartment No. 3, and her claim that even as to her as trespasser, Elgutter was at fault in maintaining a death trap upon his premises, equally lacks foundation.

The owner of premises owes no duty to a trespasser save that of not wantonly in-

juring him. Lynch vs. American Brewing Co., 127 La. 849, 54 South. 123; Morris vs. Great Southern Lumber Co., 132 La. 306, 61 South. 383; Mills vs. St. Tammany & N. O. Ry. & Ferry Co., 139 La. 286, 71 South. 511. It is not claimed or pretended that the skylight was wantonly or intentionally erected and maintained to hurt trespassers, but it is conceded that it was built for the purpose of giving light inside the building.

We do not believe that plaintiff’s demand is supported by the evidence in the record or by law and so believing, it is ordered that the judgment appealed from be, and it is hereby affirmed.


author: MOUTON, J.

text:
    No.-
    First Circuit
    DAUGEREAU v. NEW ORLEANS, TEXAS AND MEXICO RAILWAY COMPANY
    (Jan. 7, 1927. Opinion and Decree.)

      (Syllabus by the Editor.)
    1. Louisiana Digest — Pleading—Par. 96, 98.
    Where plaintiff annexes to his petition a contract and judgment, they have controlling effect, if any conflict arises between these documents and the allegations of the petition.
    2. Louisiana Digest — Pleading—Par. 62, 96, 98.
    A petition which stated that a certain amount is due but does not show a privilege which, however, is contained in annexed documents states sufficient to show the rank of the privilege and an exception no cause of action will be overruled.
    Appeal from District Court of Jefferson Davis Parish. Hon. Thos. E. Porter, Judge.
    Action by Alfred Daugereau against New Orleans, T'exas and Mexico Railway Company.
    There was judgment dismissing the suit on an exception ef no cause of action.
    Plaintiff appealed.
    Judgment reversed and case remanded for trial.
    Modisette & Adams, of Jennings, attorneys for plaintiff, appellant.
    Powell & Lecompte, of De Ridder, attorneys for defendant, appellee.
   MOUTON, J.

Plaintiff sues defendant company on various allegations in a petition of thirty-two paragraphs for the recovery of $1,226.70 with legal interest from May 30, 1925.

The demand was dismissed on an exception of no cause of action. Plaintiff appeals.

Plaintiff, on March 22, 1925, sold some standing timber to T. T. Nixon for $2,000.00 on which a balance remained unpaid.. He instituted suit against Nixon for $1,605.00, balance alleged to be due, and sequestered 2115 cross-ties on the right of way of defendant company which plaintiff averred had been cut from the timber sold to Nixon. The attorneys of defendant company on June 12, 1925, entered into negotiations with attorneys for plaintiff to have the timber released from the seizure under the sequestration. In a conference had between the attorneys of plaintiff and defendant, it was suggested, as appears from the allegations of plaintiff’s petition, that the defendant company could take the ties, with the understanding that if it should be decided that the rights of the plaintiff were superior to those of defendant, that in such event the company would pay plaintiff the price it claimed to have already paid for the ties. It is averred by plaintiff that in pursuance of the discussions between the attorneys as above stated, and as embodying the understanding reached between them, the attorneys of defendant company wrote a letter to the attorneys of plaintiff, dated August 14, Í925, in which the attorneys for defendant agreed that the railroad company would respond in the amount of the value of the ties, if upon trial, it should be found that these ties, at the time of the sequestration, belonged to the defendant Nixon or that the plaintiff, Alfred Daugereau, had a lien upon them that followed the ties in the hands of the railway company, as would more fully appear by said letter of agreement. This letter, which is annexed to the petition, after making reference to the negotiations to which we have herein-above referred, says:

“Accordingly, the New Orleans, Texas and Mexico Railway Company promises that if, after due trial, it' be found that the said cross-ties were at the time of the sequestration the property of the defendant, Tina T. Nixon, or that the plaintiff, Alfred Daugereau, held a lien on them that followed the ties into the hands of the railway company, the railway company will deposit in court, subject to the judgment' obtained by you in the aforesaid case, the sum of $1,226.70, the. price paid by the railway company to Putnam Brothers for these ties.”

The prayer of the petitioner is for the recovery of $1,226.70, the amount which the company admitted, in its letter, to have paid for the ties. There is no prayer for the recognition of any .privilege. The opinion of the district judge which maintained the exception deals almost exclusively with the question involving the existence or non-existence of a privilege. We shall direct our attention to the discussion and solution of the issuses as to whether or not it was found in the case of Daugereau vs. Nixon that the cross-ties were the property of Nixon at the time of the sequestration. We do so because the attorneys for defendant' company agreed in their letter of August 14, 1925, that if it were so found, the company obligated itself to deposit the amount it paid for these ties in the registry of the court.

Plaintiff on filing this suit annexed to his petition the contract by virtue of which he sold the timber to Nixon; and, also the judgment rendered by the court' in the case of Plaintiff vs. Nixon. By so annexing the contract and judgment they have become part of the petition, and would in law have a controlling effect if any conflict had arisen between these documents and the allegations of the petition.

The contract shows clearly that the standing timber was sold to Nixon part cash, and the balance on terms of credit. It was for the enforcement of the deferred (payments that the suit was instituted by Daugereau against Nixon. Daugereau was unquestionably the vendor and Nixon the vendee and owner. The judgment rendered in the case of Daugereau vs. Nixon was in favor of the plaintiff for $1,605.00, the unpaid balance of the purchase price for the timber, with recognition in favor of plaintiff herein of his vendor’s lien and privilege on the' cross-ties and maintaining the sequestration. It is obvious that Nixon was recognized in-that judgment as the owner of the cross-ties, otherwise it would have been impossible for the lower court to have decreed a vendor’s privilege in favor of Daugereau.

Counsel .for defendant company contends that plaintiff has failed to allege that when the ties were seized, they were Nixon’s property. The court, as we have above stated, of necessity, found that the ties belonged to Nixon as vendee, else the vendor’s privilege could not have been recognized. The court also maintained the sequestration. As it was so held by the court in the case of Daugereau vs. Nixon, and the prayer of plaintiff is for $1,226.70, the amount defendant admits to have paid for the cross-ties, a cause of action is legally set out in his petition, and entitles him to a reversal of the judgment.

It is therefore ordered, adjudged and decreed that the judgment be avoided and reversed; it is further decreed that the exception be overruled and that this case be remanded to the lower court to be proceeded with according to law; appellee to pay the costs of this appeal and the cost of • the lower court to await the decision of this case.


text:
    No-
    First Circuit
    BOURGEOIS v. DR. MARTIN
    (January 7, 1927. Opinion and Decree.)

      (Syllabus by the Editor)

    1. Louisiana Digest — Appeal—rPar. 625.
    The finding of the trial court in a matter of fact, namely, the value of land, being clearly correct, is affirmed.
    2. Louisiana Digest — Sales—Par. 70, 80, 85; Evidence — Par. 350, 352.
    In a suit for rescission of sale on account of lesion beyond moiety the value of the land must be established by the plaintiff by strong and conclusive evidence.
    Appeal from District Court, Jefferson Davis Parish. Hon. Thos. F. Porter, Judge.
    Action by Austin Bourgeois against Dr. Claude A. Martin.
    There was judgment for defendant and plaintiff appealed.
    Judgment affirmed.
    Robira & Jones, of Lake Charles, attorneys for plaintiff, appellant.
    Cline & Plauche, of Lake Charles, attorneys for defendant, appellee.
   LECHE, J.

Plaintiff sues to avoid a sale of twenty-six acres of land, which he made to defendant for five hundred and fifty dollars, on the ground that the price was vile and less than one-half of the real value of the property.

The right of action to set aside a sale for lesion is granted and regulated by Arts. C. C. 1860 et seq. The remedy given for this injury, says the Code, is founded on its being the effect of implied error or ' imposition, because in every commutative contract equivalents are supopsed to be given and received. One may only avail himself of this right of action in partitions, where the difference in the value of the portions exceeds the amount of one-fourth, and in sales of immovable property, where the price given is less than one-half of the value of the thing sold. The value must be fixed as it existed at the time when the sale took place.

The right to avoid a sale for lesion originated under the Roman law. It was at first recognized by the old French jurisprudence and then abandoned, but when the French Code was adopted it was reestablished, though in a much modified form. The compilers of our own Code, in Louisiana, with slight changes,' made it a part of our own system; hence the articles in Paragraph 10, Section 2, Chapter 2 of the fourth title in our Civil Code. Baudry-Lacantinerie, one of the most renowned among the French civil law commentators, whose opinions have always been respected and often quoted by the courts of this state, says in his “Precis de Droit Civil” that the Civil Code perhaps made a backward step in borrowing this system from the Roman law, and adopting it as part of the law of France, though modified in some of its details. The reasons given to justify lesion as a cause for the rescission of sales of immovables are very weak. The lawmaker seems to have considered that the owner who - sells his property for less than one-half its Value accepts such an unacceptable price under the influence of some moral constraint to which it is impossible for him to resist. He needs money and must have it by selling at any price. His consent thus given is considered unreasonable and the law comes to his rescue by authorizing hi'm to demand a rescission of the sale.

On the other hand, it may be said that the purchaser -has the right to assume that the ’ owner is endowed with reason, has the liberty of contract and is free to do what he pleases with his property’as long as he does not infringe upon the rights of others, but that such purchaser, under this paternalistic system, is never free of the danger of a demand on the part of the owner for rescission on account of lesion.

It is, however, the law, and courts should construe and enforce it, regardless of its wisdom or of the motives which, induced the lawmaker to adopt it. But in its enforcement proof of the value of the the property must be strong and conclusive. In the case of Demaret vs. Hawkins, 8 A. 483, the court says:

“The right to rescind a sale for lesion beyond moiety is the only restraint on the liberty of the citizen to bind himself or his property according to the dictate of his own judgment, and the evidence relied on to establish that right should be peculiarly strong and conclusive”.

Quoted approvingly in Mayard et al vs. Laporte, 109 La. 101, 33 South. 98.

In the present instance the plaintiff has at most made out merely a doubtful case, and the proof is by no means strong and conclusive. The sale was made for a price averaging a little over twenty-one dollars per acre. The bulk of the testimony is to the effect that, for agricultural purposes, the land is not worth over thirty dollars per acre. But several witnesses for the reason, as stated by them, that there was some “oil excitement” about the time of the sale, say that the land was worth from $45.00 to $50.00 per acre; one of them even said $60.00 per acre. It is conceded that these estimates are speculative. Dr. Arceneaux, Demarest, Williard and Dugas did not believe that the land was worth over thirty dollars per acre.

The trial judge, according to the recognized general rule, is better able to appreciate the credence due to the testimony of witnesses who appear and testify in his presence. He is also in a better position to know the ties of relationship and friendship by which- the witnesses may be influenced in testifying for or against the litigants, and this is especially, true in cases which depend upon opinion evidence as does the present one. Our learned brother of the. District Court believed that plaintiff had failed to produce strong and conclusive proof in support of his demand and therefore rejected the same. We see no reason to reverse his -finding.

The judgment appealed from is therefore affirmed.


text:
    No.-
    First Circuit
    SCHWING & LOSEE v. KUSHNER & SON
    (Jan. 7, 1927. Opinion and Decree.)

      (Syllabus hy the Editor.)

    1. Louisiana Digset — Appeal—Par. 625.
    The finding of the trial judge on matters of fact, credibility of witnesses, and surrounding circumstances being clearly correct is affirmed.
    Appeal from District Court of Calcasieu' Parish. Hon. Thos. P. Porter, Judge.
    Action by Schwing & Losee against E. Kushner & Son.
    There was judgment for defendants and plaintiffs appealed.
    Judgment affirmed.
    W. C., Braden, of Lake Charles, attorney for plaintiff, appellant.
    Cline & Plauche, of Lake Charles, attorneys for defendant, appellee.
   LECHE, J.

The plaintiffs are sheet metal workers and the defendants are manufacturers of dressed lumber, and the question submitted for decision in this case, is whether a particular stipulation was or was not part of a verbal contract entered into between the parties.

Defendants operate a lumber plant, and realizing that their planing mill was too small and of insufficient capacity to meet the demands in their business, bought a larger one, having double the capacity, so that they might thereby double or treble their output of dressed lumber according to their needs. It seems that it is customary and even necessary in order to efficiently operate a planer to erect in connection therewith a blowpipe, or more properly, a suction pipe system by which all the shavings and sawdust caused by the operation of the plainer, are carried away. Defendants’ small planer was thus provided and equipped, and when .they erected and put in place the larger planer which they had bought, it became necessary, to also equip it with a suction system. With this idea in view, the defendants employed plaintiffs to do the work.

The present suit is to recover from the defendants one hundred and twenty-seven dollars alleged to be the value of plaintiffs’ services in doing the work. Plaintiffs’ contention is that they were employed simply to connect the new and larger planer with the blowpipe system already atached to the small planer. Defendants on the other hand contend that plaintiffs were employed to provide them an efficient blowpipe system which could serve either of the planers, separately, or both of them together when operated at the same time. They further contend that they have no technical knowledge of blowpipes, that the junior member of plaintiffs’ firm was by the senior member thereof represented to them as an expert in that particular line of machinery, and that relying upon his skill and knowledge they entrusted plaintiffs with the work.

Plaintiffs concede that the blowpipe sys-.. tern as connected by them is insufficient to serve both of the planers when operated at the same time, and they say that they so informed the defendants. Defendants deny that any such information was ever conveyed to them.

All the parties to this litigation reside at Lake Charles, in the same community as the trial udge. In adjusting their differences much depends upon the credibility of the witnesses. The trial judge believed that the case was with the defendants and he refused and dismissed the demand of plaintiffs. Of course in eases of this kind where the truth is much involved in doubt, the safer rule is to affirm; but in this instance, it seems to us that there is additional reason why the findings of the trial judge should be affirmed.

The position of plaintiffs, that they were to -cpnnect, the new planer with the blowpitpe that had already been installed in connection with the small planer, regardless of the efficiency of the system, is not reasonable. Nor is it reasonable that defendants would have permitted the plaintiffs to do the work, if they had been warned, as claimed by plaintiffs, that the system would not be sufficient to serve both planers at "the same time. Again, it appears that the work done by plaintiffs would not even serve the larger planer, alone, or account of the faulty manner in which the connections were made.

We believe the trial judge properly disposed of all the issues in this case.

The judgment appealed from should be affirmed, and

It is so ordered.


author: ELLIOTT, J.

text:
    No. 920
    First Circuit
    HARVEY v. Y. & M. V. R. R.
    (Jan. 7, 1927. Opinion and Decree.)

      (Syllabus by the Editor.)

    1. Louisiana Digiest — Pleading—Par. 62, 71; Appeal — Par. 749.
    An exception no cause of action, referred to the merits and sustained after a trial of the case on the merits, is improperly decided where the petition stated a cause of action. Therefore, case is remanded for trial according to law.
    Appeal from District Court, Parish of East Baton Rouge. Hon. Wm. Carruth Jones, Judge.
    Action by Fletcher F. Harvey against Yazoo & Mississippi Valley Railroad.
    There was judgment sustaining an exception no cause of action after case was tried on the merits. Plaintiff appealed.
    Judgment reversed and case remanded for trial according to law.
    H. K. Strickland, of Baton Rouge, attorney for plaintiff, appellant.
    H. Payne Breazele, qf Baton Rouge, attorney for defendant, appellee.
   ELLIOTT, J.

Action on account of personal injuries received by the plaintiff in trying to get off a moving passenger train, after the platform apron had been let down over the steps.

An exception of no cause of action was referred by the court to the merits; and then after trial on the merits, the ruling was reconsidered; the exception sustained and the suit dismissed. The plaintiff appealed.

Fletcher F. Harvey alleges that he boarded defendant’s passenger train at Baton Rouge with the knowledge and consent of defendant, its agents and employees, for the purpose of assisting a sick lady relative, who had taken the train, to a' seat, and finding a place for her baggage.

That as soon as the seat had been found, but before the lady could be seated, the conductor told him that the train was moving and to get off. That upon being informed that the train was moving and told to get off, he dropped the baggage he was carrying and tried to leave the train; but before he could do so the ¡porter let down the platform over the steps, which made it necessary for him to take hold of the hand railing and step from the platform down to the bottom step of said exit, and that in doing so he got an insecure footing and was, by motion of the train, hurled against the side of the Pullman. That in order to prevent being thrown under the train, he was forced to shove himself loose and fell with violence and force to the ground, upon his knees; as a result of which he was greatly injured.

That his method of leaving the train, his fall and injury, were not due to any fault or negligence on his part; but to the fault and negligence of the railroad company, its agents and employees. That the train was started before he had time to leave it in safety; that it was defendant’s duty to hold the train a reasonable time in order that he might have opportunity to leave it in safety. That it was negligence on the part of defendant, its agents and employees to order him to get off the train after it had. started, and in not stopping it' after he was ordered to leave it, in order to enable him to leave it in safety. That the necessity of getting off as he did, was an emergency forced on him by the defendant.

If plaintiff was ordered off the train while it was in motion and after the platform apron had been let down over the steps, the train should have been held and an opportunity afforded him to leave the train with safety; and if he was injured in an emergency created by defendant, as. alleged, it was a wrongful act on the part of the railroad company, its agents and employees, and creates in plaintiff a right of action against it, because of injuries received in leaving the train, by order of defendant, after it was under headway, and after the platform apron had been let down.

Defendant’s agent and employees, who are alleged to have given the order to. plaintiff, were experienced men, who knew better than the plaintiff did, the danger of getting off at the time.

The judgment rendered shows that' the exception was referred to the merits; that the case was then set for trial and tried on the merits pursuant' to a previous assignment, when, on motion of defendant, and after hearing argument, the court reconsidered its previous ruling, referring the exception to the merits, and sustained it and dismissed the. suit. This should not have been done.

As it is, the appeal does not involve the merits of the case. We can only act on the ruling appealed from.

The petition, in our opinion, sets forth a cause of action.

The judgment appealed from is annulled, avoided and set aside.

The exception of no cause of action is overruled and the case remanded for further proceedings, as the law provides.

Defendant and appellee to pay the cost of appeal; the cost in the lower court to abide the final decision of the case.


text:
    No.-
    First Circuit
    PERKINS v. SLIMAN
    (Jan. 7, 1927. Opinion and Decree.)

      (Syllabus by the Editor)

    1. Louisiana Digest — Pleading—Par. 62, 71; Appeal — Par. 749.
    An exception no cause of action filed against a petition which alleges that plaintiff’s and defendant’s title was derived from the same source and that plaintiff’s title antedates that of defendant states a cause of action, the exception will be dismissed, and the case remanded for trial.
    Appeal from Allen Parish, District Court. Hon. Thos. F. Porter, Jr., Judge.
    Action by Floyd Perkins, et als., against Mrs. Marie Sliman.
    There was judgment maintaining an exception no cause of action filed by defendant and plaintiff appealed.
    Judgment reversed and case remanded for trial.
    Jno. B. Kent, of Oakdale, attorney for plaintiffs, appellants.
    Williams & Reed, of Oakdale, attorneys for defendant, appellee.
   MOUTON, J.

Plaintiffs allege that they are the issue of the marriage of John S. Perkins and Nettie Perkins, born, Garhington, both deceased, and their sole heirs. They allege that their father, John S. Perkins, survived their mother, and that after her death he married Mrs. Sarah F. Henington, a widow; that doing his marriage with Sarah Henington, they purchased from N. S. Ashy, a certain property situated in Oakdale, and which is fully described in their petition; that they paid for the property, took possession and made it their home.

They further allege that their father died in 1921, and that after his death, in January, 1922, his widow, and their stepmother, sold the property to Mrs. Marie Sliman, defendant. They aver that said (property belonged to the community which existed between their deceased father and his surviving wife, Mrs. Sarah Perkins, and that at his death one undivided half thereof fell to them by inheritance from their father. They aver that the succession of their father was- never opened, and that his widow took possession, and sold the property without authority of law.

Plaintiffs are asking for the ownership of an undivided half of the property as the sole heirs of their father.

The district judge maintained an exception of no cause of action filed by defendant and dismissed the suit. Plaintiffs appeal.

In the cases upon which the district judge grounded his opinion, the successful claimant was accorded the property because of his priority of title in point of time or that it was derived from the true owner as appeared in the trial of those cases. In this case, it appears from plaintiffs’ allegations that their title antedates that of defendant. Plaintiffs allege that their father and surviving widow bought from N. S. Ashy, and that his widow sold the same property to defendant without opening the succession of their father and without authority. Guided, as we must be, by the allegations of their petition, the defendant holds the property by virtue of a title derived from the same author. No conflict can arise between plaintiffs and defendant as to the source, origin or derivation of the title. The complaint by the plaintiffs involve no such issue and as a 'matter of fact, is founded on the complaint that the widow of their father has undertaken to sell to defendant, without their consent of legal authority, an undivided half of the property which belonged to them and not to her.

The property is legally described in their petition which shows the object of their demand and sets out the nature of their title with sufficient certainty to put defendant on her just defense. These substantial and sacramental requirements are clearly embodied in plaintiffs’ petition which shows a right and cause of action entitling them to a reversal of the judgment.

It is therefore ordered and decreed that the judgment appealed from be avoided and reversed; and it is further ordered that the exception of no cause of action be and is hereby overruled; that the ease be remanded to be tried according to law, the cost of appeal to be paid by appellee, those of the lower court to await the decision of the case.


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    No.-
    First Circuit
    NORTH BRITISH MERCANTILE INSURANCE COMPANY v. PATTERSON AND SHIRLEY
    (Jan. 7, 1927. Opinion and Decree.)

      (Syllabus by the Editor)

    1. Louisiana Digest — Obligations—Par. 94. Under Article 2091 of the Civil Code when several parties obligate themselves under a contract to pay the debt, • they are bound in solido.
    Appeal from Beauregard Parish, District Court. Hon. Jerry Cline; Judge.
    Action by North British Mercantile Insurance ■ Company against Patterson and Shirley, et als.
    There was judgment .for plaintiff and defendants appealed.
    Judgment affirmed.
    Robert J. O’Neal, of De Ridder, attorney for plaintiff, appellee. < ■
    Ped C. Kay, of De Ridder, attorney for defendants, appellants.
   MOUTON, J.

Patterson and Shirley entered into a contract with plaintiff company for.the issuance of policies on a commission basis. The contract is signed in the firm name of Patterson and Shirley, and individually by Nye Patterson and W. D. Shirley. Judgment was rendered against Patterson and Shirley, Nye Patterson and W. D. Shirley. Patterson made no defense. Shirley appeals.

The only question presented on appeal is as to whether appellant is liable in solido.

In the contract upon which plaintiff sues Patterson and Shirley obligated themselves to guarantee to the company the payment of all premiums they might collect or failed to collect within a certain specified period. It is clear that they bound themselves to do the same thing in the same contract, which was to turn over to the company all the premiums they might realize on the policies or failed to collect. The philosophy of the rule which, under such a contract, creates a solitary obligation is well stated in Jacobs vs. Williams, 12 R. 183, the leading case on this question, as follows:

“When several debtors bind themselves for the same debt, in the same contract, they create among themselves a kind of partnership as regards that debt; they mutually charge each other by a tacit, yet real proxy to pay it.”

Under a contract of that character the obligors are bound in solido, C. C. 2091; Teutonic National Bank vs. Wagner, 33 La. Ann. 732. If the defendants had obligated themselves in the instant case for distinct, independent or separate amounts, although in the same contract, a different rule would apply and the appellant could be held jointly, only. It is not so, however, as defendants were bound for the whole debt in the same contract which binds Shirley to a solidary obligation as was decreed below..


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    No. 933
    First Circuit
    BRADSHAW v. ROBINSON. ANDERSON LUMBER CO. & FERGUSON, Intervenors

    (January 7, 1927. Opinion and Decree.)

      (Syllabus by the Editor.)

    1. Louisiana Digest — Appeal—Par. 625.
    Finding of the trial court on matters of fact where clearly correct are affirmed.
    Appeal from District Court of Vernon Parish. Hon. Hal A. Burgess, Judge.
    Action by W. B. Bradshaw against J. F. Robinson. D. H. Anderson Lumber Company and Dan B. Ferguson, Intervenors.
    There was judgment for plaintiff and defendant and intervenors appealed.
    Judgment affirmed.
    Hardin, Hardin & Cavanaugh, of Lees-ville, attorneys for plaintiff, Bradshaw and D. H. Anderson Lumber Company, Intervenor, appellees.
    S. I. Foster and Boone & Boone, of Lees-ville, attorneys for defendant, Robinson, appellant, and Dan B. Ferguson, intervenor.
   ELLIOTT, J.

Suit on account, accompanied by allegations on which were obtained writs of attachment, sequestration, provisional seizure and garnishment.

W. B. Bradshaw advanced goods and merchandise to J. F. Robinson to enable him to cut and haul logs and piling. The logs were cut and hauled for D. H. Anderson Lumber Company, but the piling was received by Bradshaw. The defendant became indebted to the plaintiff to a considerable amount and, falling behind in his payments, plaintiff became uneasy and instituted suit, accompanying his demand with allegations on which were obtained a writ of attachment, sequestration, provisional seizure and garnishment. Exchange State Bank of Leesville was made garnishee. D. H. Anderson Lumber Company intervened in the suit through counsel that represent the plaintiff, claiming to be the owner of the logs seized. Dan B. Ferguson intervened in the suit through counsel that.represent the defendant, claiming vendor’s privilege on the logs and piling seized, alleging that he had sold the timber from which they had been cut to the defendant and had not been paid for same. Bradshaw filed an answer in the form of a general denial not verified by oath to one of the interventions, but it does not appear from the document which one it intended to deny, and we are unable to ascertain from the record; therefore disregard it. Robinson filed an answer to the demand ' of the plaintiff and to the intervention of D. H. Anderson Lumber Company; but the Ferguson intervention was not answered by either of the other parties to the suit. When the case was taken up for trial the Ferguson intervention was dismissed. Bradshaw’s total advances to Robinson amounted to $2009.37, against which credits were received from Robinson and applied to the account, both before and after the institution of the suit, reducing the amount claimed by the plaintiff at the time of the trial to $928.37, which includes an item of $137.00, which item defendant urges 'should be deducted as a further credit. Defendant filed a motion to dissolve the attachment on the ground that the allegations on which the attachment had been obtained were false and untrue, but the motion was by the court referred to the merits and appears from the evidence to have been tried therewith. The only issue between the plaintiff and defendant on the trial of the account was whether or not defendant justly owed the plaintiff the item of $137.00 which plaintiff claimed and defendant denied, and whether plaintiff was justified in obtaining the writ of attachment. With reference to the $137.00, it appears that piling to this extent was rejected by A. L. Houghten & Co. at Kansas City. The district judge held that under the evidence the plaintiff was entitled to charge the amount to the defendant. Our examination of the evidence on the subject leads us to the- same conclusion. With reference to the charges on which the writ of attachment was based, the district judge held that same were not established by the evidence. The defendant, Robinson, appealed, ■ but has made no appearance in this court. Plaintiff Bradshaw and D. H. Anderson Lumber Company did not appeal. D. H. Anderson Lumber Company has not made any appearance in this court; but Bradshaw, the plaintiff, has appeared and in his brief argues that lie filed an answer to Robinson’s appeal, but we do not find the answer in the record and therefore hold that none was filed. As Bradshaw, appellee, has not answered the appeal taken by ■ defendant., he has no standing to’ ask that the judgment appealed from by the defendant be amended or changed in his favor. We, therefore, do not consider plaintiff’s argument that, the attachment should have been sustained, nor that he is entitled to a privilege or other change in the judgment. The only question' brought up by Robinson’s appeal is that concerning the item of $137.00 already mentioned. The other questions decided -by the lower court are not before us for review. The judgment appealed from is affirmed, the cost in the lower court to be paid as directed in the lower court, the cost of this appeal to be paid by defendant and appellant.


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    No.-
    First Circuit
    WILLIAMS v. ANDERSON SANDOZ & SANDOZ, Third Opponents and Intervenors
    (January 7, 1927. Opinio and Decree.)

      (Syllabus by the Editor)

    1. Louisiana Digest — Courts—Par. 14.
    Under Section 1 of Article VII of.the Constitution of 1921 an appeal from a judgment on an' incidental demand lies ■ to the court having jurisdiction of the main demand.
    2. Louisiana Digest — Intervention—Par. 1, 13.
    A third opposition and intervention is an incidental demand.
    3. Louisiana Digest — Garnishment — Par. 6, 28.
    The funds of a justice of the peace collected for third parties but placed in ' his individual account are subject to garnishment.
    Appeal from District Court of St. Landry Parish. Hon. B. H. Pavy,' Judge.
    Action by W. B. -Williams against J. F. Anderson, Third Opposition and Intervention of Sandoz & Sandoz.
    There was judgment for plaintiff and intervenors appealed.

      Motion to dismiss appeal overruled.
    Judgment affirmed.
    Dubuisson, Perrault & Burleigh, of Opelousas, attorneys for plaintiff, appellee.'
    Sandoz & Sandoz, of Opelousas, attorneys for intervenors, appellants.
   LECHE, J.

W. B. Williams obtained a judgment against J. F. Anderson for one. hundred and eighty-one dollars. He thereafter garnisheed under a writ of fieri facias the sum of ninety and 15-100 dollars oa deposit in the Merchants and Farmers Bank of Melville in the name of Anderson, defendant. Third opponents and intervenors then appeared and alleged that of the' amount so garnisheed the sum of seventy-eight and 1.1-100 dollars belonged to them, and they prayed to be adjudged the owners of same.

The trial court refused the demand of the third opponents and intervenors, and they have appealed.

Plaintiff, appellee, moves to dismiss the appeal on the ground that the amount in contestation is below the jurisdiction of this court.

Section 1 of Article VII of the Constitm tion provides that an appeal from a judgment on an incidental demand lies to the court having jurisdiction of the main demand. A third opposition and intervention is an incidental demand. Jung & Sons Co. vs. Trosclair, 139 La. 323, 71 South. 524. The main deihand in the case involves $181.00 and is within our jurisdiction, therefore the appeal from the judgment dismissing the third opposition and intervention is also within our jurisdiction. The motion to dismiss is therefore overruled.

The defendant, Anderson, is a justice of the peace, and shortly prior to the garnishment process had rendered a judgment in favor of third opponents and intervenors against Mrs. Thomas Capps. In satisfaction of that judgment Mrs. Capps paid Anderson the sum of seventy-eight and 11-100 dollars. This amount was deposited by Anderson in the Merchants and Farmers Bank, in his own name and for his own personal account, and is said to be part of the ninety and 15-100- dollars seized by plaintiff. There is nothing to indicate that Anderson intended .to segregate the fund paid to him by Mrs. Capps for account of the third opponents and intervenors from his own personal funds. As soon as he deposited that sum to his own personal account he became the debtor of the third opponents and intervenors, and they became his creditors. If he had made a deposit in kind, or made the deposit in his own name as agent of third opponents and intervenors a different state 'of facts would be presented for decision. Money is only a representative of value, and as such it has no earmark, though it most readily takes wings. Schwan vs. Schwan, 52 La. Ann. 1190, 27 South. 678.

We believe the judgment appealed from is correct and should be affirmed, and it is so ordered.


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    No.-
    First Circuit
    FLETCHER v. WEST
    (Jan. 7, 1927. Opinion and Decree.)

      (Syllabus by the Editor.)

    1. Louisiana Digest — Obligations—Par. 35, 37.
    There is a moral duty to support a feeble-minded half-sister of one’s wife, but this duty is not enforcible by law.
    2. Louisiana Digest — Appeal—Par. 625.
    The finding of the trial court on a question of fact that there was no contract proven, being clearly correct, is affirmed.
    Appeal from District Court, Parish of Vernon. Hon. Hal H. Burgess, Judge.
    Action by W. H. Fletcher against S. R. West.
    There was judgment for defendant and plaintiff appealed.
    Judgment affirmed.
    Robert J. O’Neal, of De Ridder, attorney for plaintiff, appellant.
    Thompson & Ferguson, of Leesville, attorneys for defendant, appellee.
   LECHE, J.

This suit is upon an alleged contract said to have been entered into between plaintiff, through his wife, and defendant.

Plaintiff claims three hundred and eighty-seven dollars, balance due for support and maintenance of his wife’s half-sister, from May 1, 1921, to March 1, 1925, at the rate of ten dollars per month. He represents in his petition that defendant agreed and bound himself to pay to Mrs. Fletcher, wife of plaintiff, ten dollars per month to help support' Miss Sinie West, a feeble-minded young woman, half-sister of plaintiff’s wife. That this agreement was entered into in the year 1920, that defendant lived up to the agreement' and paid Mrs. Fletcher ten dollars per month up to and including the 1st of May, 1921. That since that time defendant did pay a merchandise bill for the benefit' of said Sinie West, amounting to sixty-three dollars, for which sum credit is given to him, leaving a balance due as aforesaid.

Sinie West is a half-sister also of the defendant and has other half-brothers and sisters. It' is admitted that she is mentally defective and unable to. care for herself. It is not shown that she has any means and it became a moral duty on the part of her nearest relatives, her half-brothers and sisters to provides for her existence. Defendant had her in his home and maintained her for some thirteen years. He then sent her to another sister, a Mrs. Guess, and only found out that she had been taken by Mrs. Fletcher, some time thereafter.

Mrs. Fletcher as a witness says that she had an interview by appointment with defendant and P. W. West, another brother, who lives in De Ridder, in which it was agreed that defendant would pay her ten dollars a month for -the support of Sinie. Both the appointment and the agreement to pay Mrs. Fletcher ten dollars per month are denied by defendant. Defendant admits that he told his brother P. W. West that he was willing to give Sinie ten dollars per month for her support, but that this was merely a gratuity and not a binding contract in favor of Mrs. Fletcher. He further says that he sent' this amount regularly for some time, but finding out that his remittances were not being used for the purpose intended, he wrote Mrs. Fletcher that he would send no more money. Mrs. Fletcher admits' that defendant made no further remittances after May 1, 1921, but she does not remember far back enough to say that she received such a letter.

This suit was only instituted in March, 1925, four years after defendant’s contributions for the support of Sinie had ceased. It is not alleged or shown that Mrs. Fletcher took Sinie into her home in consideration of the alleged promise on the part of defendant or that the. alleged contract was to remain in force for any particular time. It is true that a moral duty rests upon defendant as well as upon plaintiff and their other brother and sister, to assist in supporting Sinie, but that duty is not enforcible at law. The evidence does not seem to us to sustain the existence of the alleged contract, and defendant', though he says he is willing and ready to perform his moral duty towards his half-sister, cannot be compelled under the evidence, as we appreciate it, nor under the law, to pay three hundred and eighty-seven dollars to plaintiff. The trial judge so found and we agree with him.


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    No.-
    First Circuit
    LUKENS STEEL COMPANY v. DOHERTY
    (Dec. 7, 1927. Opinion and Decree.)
    (Jan. 7, 1927. Rehearing Refused.)

      (Syllabus by the Editor)
    1. Louisiana Digest — Sales—Par. 118, 218.
    The delivery of sheet steel in accordance with the usages and customs of the trade is sufficient compliance with the order even though it could not be used for the purposes for which it was intended due to lack of facilities of the buyer to properly shape it after received; both parties acting in good faith.
    Appeal from District Court, Parish of East Baton Rouge. Hon. Wm. Carruth Jones, Judge.
    Action by Lukens Steel Company against William S. Doherty.
    There was judgment for plaintiff and defendant appealed.
    Judgment affirmed.
    Taylor, Porter, Loret & Brooks, of Baton Rouge, attorneys for plaintiff, appellee.
    Warren O. Watson, of Baton Rouge, attorney for defendant, appellant.
   LECHE, J.

Defendant in the above cause, wishing to engage in the manufacture of concrete sewer pipe, ordered from plaintiff a lot of rolled steel plates to make molds or forms in which to cast the concrete of which such sewer pipes were to be made. Specifications as to sizes and dimensions were drawn up by S. P. Walsh, who was at the time associated with defendant, and were turned over to the plaintiff that it might fill the order. The steel was in due time shipped and delivered to defendant, who after unsuccessfully attempting to huild the. required forms or molds, refused to pay for . same. Plaintiff then instituted the present' suit to recover the amount of its claim in the sum of seven hundred and ninety-one 30/100 dollars. The defense is in substance, that the order was not filled according to specifications and that the steel could not be used for the purpose „intended.

The District Court rendered judgment in favor of plaintiff and defendant has appealed.

The salient facts pertinent to the controversy between the parties, as shown by the record, are: That' defendant had in view, a contract to supply the City of Baton Rouge with concrete sewer pipe and, for that purpose, intended to engage in the manufacture of such pipe. It is not shown whether he had any experience in making the same, but he found after due inquiry, that the molds or forms necessary to cast the pipe were quite costly, and believing that he would thereby save a considerable expense in carrying out the undertaking, he determined to buy the required material and proceed to build himself, the forms in which he would cast the concrete sewer pipe. It was then that his associate, S. P. Walsh, drew up specifications for material upon which the sheet steel, herein sued for, was rolled and furnished by plaintiff. It does not appear to what extent Walsh was interested, if at all, in the proposed building of the forms and in the manufacture of the pipe, but-that is not an issue in the case. Walsh died before the trial of the present suit and therefore defendant could not get the benefit, of his testimony.

As soon as defendant received the steel from plaintiff, he engaged a mechanic to shape the forms and weld the sheets together. It appears that the- mechanic could not succeed for the reason, as stated by him, that the sheets of steel were rolled with irregular edges, each sheet varying in width from one-eighth to seven-eighths of an inch. Thereupon defendant, believing that the specifications upon which he had based his order, had not been followed by plaintiff, complained to plaintiff and finally refused to pay. Defendant knew noting about the building of forms out of rolled sheets of steel, and the mechanic or mechanics whom he employed, were likewise inexperienced. Plaintiff’s manager and agents assuming that the forms would be sharped and welded by experienced workmen, filled the order according to the customs of the trade, and it is shown by the tet.simony of Dunn and Thorgesen, two practicdl and experienced mechanics whose expertness is not questioned, that the order was properly filled by plaintiff.

It is shown hy these experts that to shape and weld forms, out of sheet steel, .whether cylindrical or conic, is quite difficult and that it requires a great deal of skill and experience, especially on the part of the mechanic known in the trade as a “fitter up,” whose duty is to take the rolled sheets and set them up to the proper form. Then in welding the two edges, account must be taken of the contraction and expansion of the metal, whicn might cause the sheets to buckle and mar the shape which is intended to be formed. It seems that in rolling sheets of steel, owing to the varying densities of the metal, the edges will vary, that these variations can easily be offset. by., the expert' welder and that it is an accepted condition in the trade, to furnish steel in that shape.

Our apprecaition of all the evidence in the case is that both parties acted in good faith, that plaintiff filled the order in accordance with the usages and customs of the trade and that defendant is the victim of his own lack of knowledge of such usages and customs.

We believe that the judgment appealed from is correct and it is therefore affirmed.


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    No.-
    First Circuit
    CHISHOLM v. HINSON
    (December 7, 1926. Opinion and Decree.)
    (Dec. 23, 1926. Supplemental Opinion.)

      (Syllabus 6y the Editor)

    1. Louisiana Digest — Appeal—Par. 509.
    The court will not consider moot questions but will dismiss an appeal if based thereon.
    2. Louisiana Digest — Elections by the People — Par. 73.
    The provisions in Section 25 of Act 113 of 1921 amending prior acts concerning contests in general elections which were not contained in Section 27 of Act 97 of 1922 on the same subject matter are .repealed.
    Appeal from District Court, Parish of Vernon. Hon. Hal. A. Burgess, Judge.
    Action by James T. Chisholm against Wm. Joseph Hinson.
    There was judgment for defendant and plaintfif appealed.
    Judgment affirmed.
    Ferguson & Newman, of Leesville, attorneys for plaintiff, appellant.
    Hardin, Hardin & Cavanaugh, of Leesville, attorneys for defendant, appellee.
   LECHE, J.

This appeal is from a judgment deciding a primary election contest. The plaintiff, the defendant and another were candidates for the position of member of the School Board of Directors of the Parish of Vernon at the general primary election held on September 14, 1926. Neither one of them secured a majority of the votes cast at that election, and the plaintiff and defendant, having received the highest number of votes, were relegated to a second primary held on the 19th of October following. At the second primary, defendant, having been recognized as the candidate with a majority of the votes cast, plaintiff in due time filed the present contest. The trial judge after due trial and hearing on October 30, 1926, having decided in favor of defendant, the present appeal was then and there taken by plaintiff, the appeal being made returnable to this court at Lake Charles on November 4, 1926. Appellant filed the record in due time at Baton Rouge, the domicile of this court. The case was then fixed for hearing in Baton Rouge on December 6, 1926.

Appellee moves to dismiss on two .grounds, substantially: (1) That the record was not filed at the proper returning point, and (2) that the questions at issue were all decided at the general election held on November 2, 1926. Under the rules of this court, appeals from the Parish of Vernon are made returnable at Lake Charles, as provided in the order of appeal,. but appellant, through inadvertence, brought the record and filed same at Baton Rouge. Conceding, however, that this might be only an irregularity, and not fatal to the appeal, the second ground for dismissal seems to us to be well taken.

At the general election held on November 2, 1926, the defendant was declared elected and the returns of the election, as promulgated by the secretary of state, so hold. As the general election has settled all the issues involved herein, the case only presents moot questions and. the appeal should be dismissed. We so held in the case of Cole vs. Weldon, decided February 15, 1921 See also State ex rel. vs. Democratic Committee, 123 La. 384, 48 South. 1005.

During the argument of the case plaintiff’s counsel was asked whether the general election had not effectually decided the case. He stated that he thought 'not, and seemed to quote some law to sustain his contention. He has filed no brief or memorandum of authorities. We have not been able, in the short space of time within which this case must be decided, twenty-four hours, to find any statute or amendment to the primary election, law undev which a judgment reversing that appealed from would have the effect of annulling the result of a general election as promulgated by the secretary of state or setting the same at naught. We see no alternative to a dismissal of the appeal.

This appeal is therefore dismissed at the costs of contestant and appellant.

PER CURIAM:

Our attention is called by plaintiff and contestant to an alleged error in our judgment in the above matter, rendered at Baton Rouge on December 7, 1926, in order that we may, upon our own motion, correct the same in accordance with the provisions of Section 27 of Act 97, p. 178, of 1922, known as the primary election law.

The alleged error is said to consist in this, that according to Section 25 of Act 35 of 1916, as amended by Act 113, p. 242, of 1921, the election of a contestee whose name .appeared on the ticket in the general election shall become null and void if a judgment in a contest, rendered after the election, should hold that the contestant’s name instead of the contestee’s name should have appeared upon such ticket.

This provision of Act 113 of 1921 was not cited in brief or in the answer to the motion to dismiss by contestant, when the case was heard on December 6, 1926, in Baton Rouge, as will appear by the opinion heretofore rendered, but if it had been cited we are still of the opinion that it could not have affected or changed the conclusions which we then reached. The provision under discussion is notably absent from and left out of a similar section of the Act of 1922 upon the same subject matter. The Legislature evidently left it out designedly because of its retroactive effect.

There is here no question of the fairness and regularity of the general election held on November 2, 1926. At that election contestee, the defendant, was declared duly elected by a majority of the voters entitled to take part in that election. No court of justice or other branch of the government has the right or power to avoid or set aside the will of the people when fairly, and regularly "expressed. The cited provision if not repealed would be clearly unconstitutional, null and void. We therefore see no error to correct.-