author: REYNOLDS,

text:
    No. 2549
    Second Circuit
    WAHLER v. COLLINS
    (May 7, 1926. Opinion and Decree.)

      (Syllabus by the Court.)

    1. Louisiana Digest — Bills and Notes— Par. 194, 242; Obligations — Par. 153, 154.
    The clause in a promissory note: “And then ten per cent attorney’s fees should this note be collected by law, or placed in the hands of an attorney for collection after maturity”, is a stipulation providing for liquidated damages in the event it becomes necessary to collect the note by law, or to place it in the hands of an attorney for collection after maturity, cannot be allowed where the maker has not been put in default by having the note presented to him for payment at the place designated therein for payment.
    Civil Code, 2126, provides: “Whether the
    principal obligation contain or do not contain, a term in which it is to be fulfilled, the penalty is forfeited only when he who has obligated himself either to deliver, to take, or to do, is in default.”
    2. Louisiana Digest — Bilis and Notes— Par. 194, 242; Obligations — Par, 153, 154, 178.
    Where a note providing for the payment of ten per cent attorney’s fees in the event it is placed in the hands of an attorney for collection after maturity is made payable at a designated bank and the holder places it in the hands of an attorney before making demand for payment of it either on the maker or at the bank designated, attorney’s fees are not owing and will not be allowed where the makers of the note, immediately after being sued on it, make a legal tender to the plaintiff or his attorney of the full amount of the principal and interest, and all costs incurred, but not attorney’s fees; especially so when the evidence on trial shows that the makers of the note had offered to pay it before its maturity and were able and willing to pay it at maturity on presentation and demand for payment.
    Article VI, Section 70, Act 64, of the Acts of the Legislature of 1904. (Negotiable Instruments Act.)
    3. Louisiana Digest — Tender—Par. 1, 4.
    Where a promissory nóte is, by its terms, payable at a specified bank, and the maker is willing and able to pay it there at its maturity, such ability and willingness are equivalent to a tender of payment upon his part.
    Negotiable Instruments Act, supra.
    4. Louisiana Digest — Bilis and Notes— Par. 207, 242.
    Before the makers of a note,- stipulating for the payment of ten per cent attorney’s fees if collected by law, or placed in the hands of an attorney for collection, after maturity, has been put in default by presentment of the note for payment to him in person or at the place designated therein for payment, attorney’s fees are not owing and will n'ot be allowed.
    C. C. 1933, 2116.
    State ex rel. Sweeney ys. Yoorhies, 40 La. Ann. 2, 3 South. 460.
    Hepp ys. Commagere, 10 Rob. 526.
    Llórente vs. Gaitrie, 6 Mart. (N. S.) 624.
    McIntosh vs. Gastenhofer, 2 Rob. ’ 403.
    Leeds & Co. vs. Passman, 17 La. Ann. 32.
    State vs. Judge of Second District Court, 16 La. Ann. 390.
    Gobert vs. Municipality No. 1 and .City of New Orleans, 11 La. Ann. 300.
    Appeal from the Fifth Judicial District Court of Louisiana, Parish of Richland. Hon. John R. McIntosh, Judge.
    Action by A. K. Wahler against Dr. Nash Collins, et al.
    There was judgment for defendant and plaintiff appealed.
    Judgment affirmed.
    Ellis & Ellis, of Rayville, attorneys for plaintiff, appellant.
    Tobin R. Hodge, of Rayville; J. M. Munholland, of Monroe, attorneys for defendant, appellee.
   STATEMENT OP THE CASE

REYNOLDS,

J. Defendants purchased from one John M. Mitchell a plantation in Richland parish, Louisiana, for the price of $21,826.97, paying $12,826.97 in cash and for the balance of $9000.00 giving their solidary promissory note dated June 30, 1924, payable to their own order one year after its daté at the Bank of Delhi, Delhi, Louisiana, and by them endorsed in blank, bearing interest at' the rate of five per cent per annum from its date until paid, and stipulating payment of ten per cent attorney’s fees if collected by law or placed in the hands of an attorney for collection after maturity,, and secured by vendor’s privilege and Special mortgage On the property sold.

Plaintiff acquired the note before maturity from John M. Mitchell.

Plaintiff brought suit on the note against defendants on July 17, 1925. He alleged that he became the owner of it in due course, before maturity and for value; that it was given in part payment of certain described lands, as shown by copy of the act of sale attached and made part of his petition, and that it was unpaid notwithstanding “amicable demand for payment”. He prayed for judgment for the amount of the principal and interest owing on the note and for ten per cent attorney’s fees on the whole and that his vendor’s privilege and special mortgage on the land be recognized and the property sold to pay the debt, interest, attorney’s fees and costs.

Defendants answered denying that amicable demand for payment had been made and alleging, amongst other things:

“That said note, as stipulated on the face thereof, is payable at the Bank of Delhi, in Delhi, • Louisiana, and further represent that respondents háve at all times, from a short time prior to its maturity to the present time, had ' the money in the Bank of Delhi with which to pay the same upon presentation. Further represent that no demand was made upon respondents for the payment of said note until the filing of the suit, and further represent that it had not at any time been presented for payment. •
“That immediately upon being advised of the filing of the suit, and before service thereof-, respondents ■ made ■ legal tender of the amount of the note, including principal, $9000.00, interest, $485.00, to Richland State Bank, which institution refused to receive the same, and' informed ■your respondents that said note was then in the hands of Ellis & Ellis, attorneys, for collection, and thereupon respondents tendered said sum to Ellis & Ellis, alleged attorneys for plaintiff herein, who refused to receive the same. * * * Thereupon respondents deposited said sum and the accumulated interest in the Bank of Delhi to the credit of A. K. Whaler or the owner of said note. 'Now, your respondents further represent that the accrued court costs are as follows: Amount due the clerk, $11.55; amount due the sheriff, $6.48; that the interest-to this date, namely, September 21, 1925, is $553.75, and principal $9000.00, and that your respondents neither legally nor equitably owe the attorney’s fees * * * and that they have deposited in the Bank of Delhi to the order of plaintiff, principal, interest, and court costs as hereinabove set forth, namely, $9571.78. * * * Wherefore they pray that said amount be decreed by the court full payment and satisfaction of all sums due the plaintiff and to any other person or persons, and that plaintiff’s suit be dismissed at his cost.”

' On these issues the case was tried and there was judgment in favor of the plaintiff and against defendants in solido for $9000.00 with 5 per cent per annum interest from June 30, 1924, to September 21, 1925, and sheriff’s costs, $6.48, and clerk’s costs, $11.55, being court costs up to September 21, 1925, with recognition of plaintiff’s vendor’s privilege and special mortgage on the land to secure the payment thereof, and taxing the plaintiff with all court costs incurred subsequent ito September 21, 1925.

From this judgment the plaintiff has appealed.

OPINION.

The only question in the case is whether of not defendants owe the attorney’s fees.

■ It is not contended ’by plaintiff that the note was presented to either of the defendants or at the Bank of Delhi at its maturity and demand for payment made, -or that such presentment and demand was made before placing it in the hands of attorneys for collection. His whole contention is that the note was presented to Doctor Nash Collins by Mr. Fred Morgan and payment demanded by him at the instance of Attorneys Ellis & Ellis.

Fred Morgan, as a witness for plaintiff, testified positively that he did present the note to Doctor Nash Collins at the Bank of Delhi and demanded payment of it.

Doctor Nash Collins, as a witness for defendants, swore just as positively that they did not present the note to him and demand payment of it, and Doctor Nash Collins is corroborated in this by Mrs. Audrey Arrendey, an employee in the Bank of Delhi, who heard the conversation between Fred Morgan and Doctor Nash Collins in; the Bank of Delhi during which the demand for payment is alleged to have been made.

Plaintiff argues with great earnestness in brief that Fred Morgan is the only wholly disinterested witness who testified in the case. We have not been so impressed.

• Mr. Morgan, who is the cashier of the Richland State Bank, did not receive the note for collection from the owner thereof in due course but received it from- the plaintiff’s attorneys. In his interview with Doctor Collins he did not tell him that the note had been placed in his hands by plaintiff’s attorneys but, on the contrary, led him- to believe that the note was held by the Richland • State Bank for Collection and that it would be satisfactory to that bank if the note were paid the next day, Saturday, or the following Monday; when, as the evidence shows, at that time suit was actually being prepared in the office of the attorneys and citation was served on defendants on that same day.

Doctor Nash Collins testified, page 73:

“Q. State what happened, what was said by Mr. Morgan and what was said by you?
“A. On/ the seventeenth of July, about ten o’clock in the morning, Mr. Morgan phoned me at my residence and said that he was over in Delhi and wanted to see Mr. Wollank, but that Mr. Wollank was not in town, and asked me if I was coming up to the bank; I told him that I didn’t intend to, because I was going down in the country on a call, but I would come up and see him; he said it would take only a few minutes; when I went to the bank Mr. Morgan told me that the note of Mr. Wollank and myself had been sent to the Richland State Bank for collection and that he was just coming over to Delhi and he brought the note along, and that he said that as Mr. Wollank was not in town that he supposed that I would prefer to await his return to pay same, and I asked Mr. Morgan then if it would be satisfactory for us to pay the note Saturday or Monday, that was the next day or the following Monday; he said that it would, that would be satisfactory, and that was about — that was all that was said about the note.
“Q. Well, what if anything -?
“A. Well, wait, then Mr. Morgan did not demand payment and he did not present the note; Mr. Morgan said that he had the note, and after this conversation I asked Mr. Morgan if he would let me see it; he showed it to me to get the amount that we would have to pay the next day. When Mr. Wollank returned, he returned in about fifteen minutes, the train come in, I told Mr. Wollank then that Mr. Morgan had this note for collection, his bank, and that I had told him that we would pay it the next day, come over here to pay it. We were prepared to pay it, if Mr. Morgan 'had made the demand on me to pay it, I would have paid it personally; we had the money; we didn’t ask him' for any extension; we just asked him if it would be satisfactory to pay the note the next day when Mr. Wollank returned; I had the money to pay the note; we did not ask"him for any time; we just asked him if it would be satisfactory to pay it the next day.
‡ ‡ ‡
“Q. Now, Doctor Collins, did anyone communicate with yourself and Mr. Wollank in regard to this note * * *?
“A. Judge, the note has never been presented to me for payment or demand of payment made by anyone. Mr. Morgan just simply said he was coming to Delhi; he talked so unconcerned about it, I thought maybe he was over there on a pleasure trip, just- put the note in his pocket if we wanted to pay it it would be all right, if we didn’t want to pay it it would be all right. * * *
“Q. Did anybody make any demand for the payment of that note either verbally or written? * * *
“A. There has nobody ever made demand on me for the payment of the note.”

Mrs. Audrey Arrender testified, pages 80 and 81:

“A. I heard Doctor Collins ask Mr. Morgan if it would be satisfactory to him to take up the note Saturday or the following Monday.
“Q. Now what did Mr. Morgan say?
“A. Mr. Morgan said it would be satisfactory to take the note up Saturday or the following Monday.”

There is much conflict between the testimony of Fred Morgan and that of Doctor Nash Collins. The district judge who heard and saw the witnesses testify accepted the testimony of Doctor Collins as corroborated by that of Mrs. Arrender, and we see no reason to disagree with his findings.

It is therefore ordered, adjudged and decreed that the judgment appealed from be affirmed.


source: Caselaw Access Project

author: ELLIOTT, J.

license: Public Domain

text:
    No. 7841
    First Circuit
    HOLMES AND BARNES v. SHAWNEE MILLING COMPANY
    (April 1, 1926, Opinion and Decree.)

      (Syllabus by the Editor.)

    1. Louisiana. Digest — Courts—Par. 9.
    Under Civil Code Article 9, property -within the limits of the state of Louisiana belonging to the resident of another state is subject to the laws of this state,'and therefore an error in a draft can be corrected in order to determine the title to certain movable property.
    2. Louisiana Digest — Attachment—Par. 80.
    An attaching creditor has no greater rights in the property attached than the debtor had at the moment of the seizure.
    3. Louisiana Digest — Error and Mistake— Par. 5.
    A draft can be reformed for mutual error, participated in by the drawer only where such error is established.
    4. Louisiana Digest — Pleading—Par. 7; Bills and Notes — Par. 193.
    A suit as owner is not inconsistent with a suit as pledgee, because a pledgee may treat a negotiable draft as his own, sue on it as owner, and recover to the extent of his interest.
    5. Louisiana Digest — Bills and Notes— Par. 219; Error and Mistake — Par. 5, 18.
    The burden of proof is on the one who endorsed a draft “for collection” that this was done in error.
    6. Louisiana Digest — Attachment — Par. 162.
    Attorney’s fees for dissolving an attachment are not allowed unless proven.
    Appeal from the District Court, Parish of East Baton Rouge, Hon. W. C. Jones, Judge.
    Action by Holmes and Barnes, Ltd., against Shawnee Milling Company. The Bank of Topeka, intervenor and third opponent, to have the wording of a draft corrected and rendered effective as reformed. There was judgment for plaintiff and the intervenor appealed.
    Judgment affirmed except the attorney’s fees were disallowed.
    Taylor and Porter, of Baton Rouge, attorneys for plaintiff, appellee.
    L. A. Himes, of Baton Rouge, attorney for defendant, appellee.
    Bank of Topeka, intervenor and third opponent, Laycoek, Borron and Laycock, of Baton Rouge, attorneys for third opponent.
   ELLIOTT, J.

Shawnee Milling Company of Topeka, Kansas, drew a sight draft on Holmes & Barnes, Ltd., of Baton Rouge, Louisiana, for $1075.00 payable to the order of the Bank of Topeka, for collection to the account of the drawer, attaching to the draft a bill of lading as security, issued to Shawnee Milling Co., for 500 barrels of meal consigned to Holmes & Barnes, Ltd., the drawee. The Bank of Topeka endorsed the draft and sent same with the bill of lading attached to Louisiana National Bank of Baton Rouge to be collected, the proceeds to be remitted to the Bank of Topeka. Holmes & Barnes, Ltd., paid the draft, received the bill of lading, and obtained the meal; but at the same time attached the price in possession of Louisiana National Bank, to the extent of $825.00 alleging that same was the property of Shawnee Milling Co., and that the said milling company was indebted to it to that extent. Shawne^ Milling Co. made no appearance in the case.

Louisiana National Bank appeared but only to claim protection upon delivery of the funds to the party held entitled thereto.

The Bank of Topeka of Topeka, Kansas, intervened in the suit and opposed plaintiff’s demand. It alleges in its petition of intervention that while said draft recites that it is drawn' in favor of the Bank of Topeka “for collection”, in truth and fact the draft was not handled for collection but was purchased by intervenor for value in due course, together with the bill of. lading attached. That the appearance in the draft of the words “for collection” was by error caused by the use through oversight of a. printed form of collection draft in general use.

The plaintiff answered the intervention and denied the allegation of the Bank of Topeka, alleging that the money seized belongs to Shawnee Milling Co. its debtor.

The district judge for written reasons rendered judgment in favor of the plaintiff as prayed for. The Bank of Topeka has appealed.

The plaintiff expresses doubt in its brief that error in a draft, such as intervenor alleges in this case, can be corrected, even if it exists for the reason that the court here has not jurisdiction in personem over the drawer. Property within the limits of the State of Louisiana belonging to a party resident of another state, is subject to the laws of this state, C. C., Art. 9. When the right and title to such property as is in question here and it is necessary to correct an error, such as is alleged, in order that the title to the property may be determined, the court here has authority to act. If an error of the kind could not be corrected, then there is no use for the courts.

There is no merit in plaintiff’s further conteation that even if there is error in • the draft, such as intervenor alleges, it can not be corrected to the prejudice of an attaching creditor of the drawer, who has seized the proceeds before the error is discovered. The law protecting a bona fide purchaser of real estate, buying on the faith of the recorded title has no application to this case. Neither is plaintiff’s rights the same as that of a note who has acquired same for value, before maturity in due course, without notice of error in the wording.

It is well settled that an attaching creditor has no greater rights in the property attached than the debtor had at the moment of the seizure. Smith vs. Duncan and Jackson, 1 Mart. (O. S.) 26; Executors of Liddell vs. Rucker, 13 La. Ann. 570; Wilson and Company vs. Lizardi, 15 La. 255; Deloach vs. Jones, 18 La. 447; Frazier vs. Willcox, 4 Rob. 517; Bach vs. Goodrich, 9 Rob. 391; Goodhue vs. McClarty, 3 La. Ann. 56; Cammack, Squires and West vs. Floyd, 10 La. Ann. 351; Robertson, Hudson and Pullman vs. Scales and Gibson, 15 La. Ann. 545; Ober, Nanson and Company vs. Matthews, 24 La. Ann. 90; Block, Britton and Company vs. Barton, Miller and Company, 27 La. Ann. 89; Fort Pitt National Bank vs. Williams, 43 La. Ann. 418, 9 South. 117; Kern vs. Day, 45 La. Ann. 71, 12 South. 6; Grisby Const. Company vs. Colly, 124 La. 1071, 50 South. 855.

The right of an attaching creditor is similar'to that of the holder of a judicial mortgage, C. C., Art. 3328. The plaintiff therefore acquired the right and title of Shawnee Milling Co. to the proceeds of the draft as the same existed at the moment of the attachment and no more.

Plaintiff further contends that interven- or’s petition does not allege mutual error m the part of Shawnee Milling Co., and intervenor. We think intervenor’.s allegations • and prater sufficient to justify its demand/ It' is true, intervenor did not on the trial move for a default, nor offer evidence against defendant, hut plaintiff does not' urge- that as an ' objection and stands - in defendant’s place and rights; we therefore take up the questions which concern the merits of the controversy.

The record shows close and frequent dealings between Shawnee Milling Co. and the Bank of Topeka. The draft follows in the matter of form their general course of dealing.

The cashier of the Bank of Topeka testifies that the’ words “for collection” used in the draft, were sometimes stricken out of the drafts obtained from defendant and sometimes not. This course of conduct weighs against -the alleged error in the draft in hand. The cashier and discount teller of the Bank of Topeka both testify that the Bank of Topeka purchased this draft and that the words “for collection” appearing in it are there by error and oversight due to the use of a printed blank in general use by the bank. But their evidence also shows that their bank did not purchase it in the sense that current money was paid for it, but that the bank received it at the same time with some other drafts and gave defendant credit for a sum which included it at its face value. That defendant checked out this draft, but we understand from the evidence that, there was no check against this particular draft but that an amount was checked out which included it. ’ That defendant’s ’checking account was considered overdrawn at the time the deposit was made and continued to remain overdrawn.

It does not appear from the evidence of the cashier and discount teller that the Bank of Topeka intended at the time this draft was received from defendant’s bookkeeper to make it different from the other drafts received from defendant at the same' time; but that it was received to be collected for account of defendant,' in the form in which it was drawn without any particular arrangement in regárd to it. It was drawn “for collection” and intervenor endorsed it in the same way and it is a proper inference from the evidence of intervenor’s witnesses that defendant was expected to pay interest on the amount of the draft; this one just like the others, from the time they were deposited until they were paid.

The endorsement “for collection” just as it was drawn and charge if interest is not in harmony with the purchase and error alleged by intervenor. The fact that only the cashier and discount teller were called on to testify indicates that the draft was received by them in the form drawn, without special arrangement of any kind.

The testimony of the bookkeeper of Shawnee Milling Co. taken by intervenor, does not support the conclusions of intervenor’s cashier and discount teller. The fact that defendant’s bookkeeper was the only party connected with defendant called on to testify indicates that- there was no special arrangement made concerning this draft that it was drawn in the usual form and deposited in the ■ general routine. Defendant’s bookkeeper testifying in the case says he does not remember making any particular transaction with the Bank of Topeka concerning this, draft and does not know of any being made. The inference from what he says on the subject is that there was no error on part of defendant in drawing and depositing the draft for collection as was done. He* declined to say the Bank of Topeka acquired an interest in the draft and bill of lading. Asked in a direct interrogatory if the words “for collection" were in the' draft through error’ his answer is in effect in the negative because instead of answering the question he explains that he did not say that the Bank of Topeka acquired full ownership of the draft and does not know what arrangement the bank had with Shawnee Milling Co. about the matter. Asked if it was not a fact that he had no idea how the words “for collection” came to-be in the draft and that it .was only called to his attention after the proceeds had been attached and his answer is, in effect, that all the drafts were . deposited by him to the account of Shawnee Milling Co, in the regular routine of business. That he had been a student of accounting and that the words “for collection” on a draft means just what it says. Further testified that to the best of his recollection the Bank of Topeka charged Shawnee Milling Co. interest and exchange on every draft deposited by him.

The proper deduction from the testimony of defendant’s bookkeeper, the only party connected with defendant whose testimony was taken by intervenor is that there was no error in the wording of the draft and that it was not purchased, but deposited with intervenor for collection.

The alleged error and.purchase is not established and certainly there was none established on the part of Shawnee Milling Co. The draft could be reformed for mutual error, participated in by the drawer, but the error is not established.. There was certainly no mutual error, consequently the reform prayed for by intervenor can not be granted. Davega and Company vs. Crescent Mutual Insurance Company of New Orleans, 7 La. Ann. 228; Gaudet vs. North Rivers Ins. Company, 156 La. 719, 101 South. 118; Brodie vs. Atlas Assurance Company, 158 La. 695, 104 South. 620.

Intervenor urges in an alternative argument that -it makes- no difference' as to its rights, whether the draft was -purchased or the amount loaned by intervenor to defendant. That if- it wa¡? not a purchase, then the credit received by defendant . was a loan and the. draft and bill of lading attached was delivered to -intervenor in. pledge as security for .the loan. That if the facts and circumstances do not show a purchase, then they- do. show a loan and pledge to intervenor as . security for the loan', perfect by delivery, and that same can not be defeated by plaintiff’s subsequent attachment. That intervenor’s suit as owner, is not inconsistent with.a pledge, because a pledgee may treat a negotiable draft as his own, sue on it as owner and. recover to the extent of .his .interest.

The holder of a negotiable noté' or draft as pledgee, may sue on it as owner. Dibble vs. Leppert, 47 La. Ann. 800, 17 South. 309; Fidelity and Deposit Company vs. Johnson, 117 La. 880, 42 South. 357. But a loan or pledge can not exist without an agreement and intent to that effect-express or implied. The fact that defendant delivered the draft with bill of lading attached to intervenor for collection, received credit for its face value, checked out the amount of the credit, its cheeking account being overdrawn at the time; that intervenor sent the- draft with bill of: lading attached for presentation, it .was duly presented and paid, does not of itself create a loan and pledge when there is not. a word said by any of the witnesses from, which it can be inferred that intent to loan or ■ pledge existed. ■ The alternative argument urged with persuasive force by-inter venor is not supported by any evidence and therefore can not be entertained.

Returning to the subject of error, intervenor’s endorsement on the back of the . draft is for collection. - The burden of . proof to show the error is on intervenor, Ober, Nonson & Co. vs. Matthews, 24 La. Ann. 90. The error is not established and it follows that intervenor possessed the draft for defendant.

We -are satisfied from the evidence that the real understanding between Shawnee Milling Co. and the Bank of Topeka was, that- the bank received the draft for collection, just as it .was drawn; but was to become the owner of the proceeds, if such proceeds were realized and collected. But at- the -'time the attachment was effected these proceeds had not been received by the Bank of Topeka and were therefore still the property of Shawnee Milling Co., and as such liable to attachment by plaintiff on account of the amount due it by the defendant.

Intervenor cites Stricker vs. Singleton, First National Bank of Union Springs, intervenor; a case decided by this court several years ago. The original opinion of this court is not in the record of the case and we have not a certified copy; but a copy which we take to be a true one is annexed to intervenor’s brief.

In that case this court held that the evidence warranted finding that the .transaction between intervenor and defendant was in the nature of a loan, made by discounting a draft which was secured by the pledge of a bill of lading. That the respective rights of a pledgee of a bill of lading and of the drawee of a draft attached thereto, when after taking up the draft and obtaining the bill of lading and goods; it is found that there is a shortage in the goods shipped was therefore to be determined.

In the case cited the court found that Singleton’s draft had been discounted, a loan made to him by- First National Bank of Union Springs and that the relationship of pledgor and pledgee existed between them. The litigation which we now have in hand does not justify such a conclusion.

In the case cited Singleton shipped peas to Strieker from another state and drew on him a draft with bill of lading attached for an amount greater than was due him under the shipment with Bank of Union Springs as payee. Singleton received credit from the bank for the amount of the draft although the peas were short and the shortage was not discovered by Strieker in this state until he had paid the draft, upon which Strieker attached the funds up to an amount sufficient to cover the shortage. The funds were in this state at the time of the attachment and the case in that respect is like the one we have in hand. Whether the amount of the draft was the result of an honest or an intentional overdraft; the judgment enabled Singleton to keep the amount of the draft to which he was not entitled to the injury and, prejudice of the drawee. The property attached was within the limits of this state, C. C., Art. 9, and Singleton could not and did not pledge more peas than he had shipped; therefore the excess called for by the draft was not pledged and the attachment should have been sustained.

The case cited does not appear to be a proper guide for the decision of the present" case.

. The judge of the lower court considered the present case very colsely as shown by the opinion in the record. We have come to the same conclusion as did the judge a quo.

The judgment appealed from is- correct except'thalt we do not .think the $10.0.00'at-torney’s • fees claimed by the .plaintiff should 'have been allowed under the law; Attorney’s fees amouhting to $100.00 in favor of the plaintiff is included in the judgment. appealed from. -

The judgment appealed from will be amended by disallowing. the $100.00 allowed .¿s attorney’s fees and as thus amended, the judgment. is affirmed. Intervenor to pay the cost of its intervention. Defendant the cost of the main demand and plaintiff and appellant the cost of the appeal.


author: MOUTON, J.

text:
    No. -
    First Circuit
    PARKER v. CITIZEN FIRE INSURANCE COMPANY OF MISSOURI
    (June 26, 1926, Opinion and Decree.)
    (July 7, 1926, Rehearing Applied for.)

      (Syllabus by the Editor.)

    1. Louisiana Digest — Insurance—Par. 177.
    Parol proof is admissible to show that the answers in an application for insurance were falsely and fraudulently inserted by the agent of the insurance company.
    2. Louisiana Digest — Insurance—Par. 72.
    An insurer cannot avoid its policy because of mis-statement in the application, material to the risk, but due to mistake or negligence of its agent and not to fraud of bad faith of the insured.
    3. Louisiana Digest — Insurance—Par. 29.
    Where the parties have entered into a contract for fire protection and there is error or fraud on the part of the underwriter, the .agreement -Will be: reformed so as to conform to the intern ,tion of the parties. ,"
    Appeal from the Parish of' Washington)' Hon. Prentiss B. Carter, Judge.
    Action by John Wilson Parker against Citizen Fire Insurance Company of Missouri. There was judgment for plaintiff and defendant appealed.
    Judgment affirmed.
    Bascom D.. Talley, of Bogalusa, attorney for plaintiff, appellee.
    Jno. C. Hollingsworth, of New Orleans, and Miller and Richardson, of Bogalusa, attorneys for defendant, appellant.
   MOUTON, J.

In February, 1924, plaintiff made an application to defendant company for the insurance of a dwelling house, barn,. etc., situated in Washington Parish. The application was taken by F. C. Lee, the local agent of defendant company, was sent by him to the domicile of the .company at Atlanta, Georgia, from where the policy was subsequently issued to plaintiff. The application remained with the company.

Among the questions propounded to the plaintiff in the application which formed part qf the policy, were as to whether he was the sole owner of the property, as to the existence of an encumbrance on it, and as to whether it was occupied by plaintiff, the owner. The answers of plaintiff thereto as appear in the application, were that he was the owner, occupied it as such, and that there was no encumbrance on the property. It is evident that these representations in the application were material to the risk, and if false, would operate an avoidance or forfeiture of the policy. Brignac vs. Pacific Mutual Life Insurance Company, 112 La. 574, 36 South. 595; Gonsoulin vs. Equitable Life Assurance Soc. of United State, 152 La. 865, 94 South. 424; Murphy vs. Royal Ins. Co. of Liverpool, 52 La. Ann. 775, 27 South. 143.

The proof shows that the property was an asset of the community which had existed between plaintiff and his first deceased wife, and at her death, that half had passed to his minor children. The half ownership of these minors, it is shown, had been adjudicated to the plaintiff at the time the insurance was applied for and the policy issued. The contentions of the plaintiff are that the answers in the application that there was no encumbrance on the property, and that plaintiff occupied the dwelling hereinabove referred to, were inserted therein falsely and fraudulently by F, C. Lee, the agent of the company. The determination of these questions presents the .vital issue in the case. Judgment was rendered for plaintiff in the amount claimed for the destruction of the property by fire.

Defendant appeals.

Plaintiff . naturally relied on parol evidence to show that the fraud by him alleged had been committed by the company’s agent. The defendant contends that parol evidence is inadmissible to attack the verity of a contract of insurance. As a general proposition in the absence of allegations of fraud or error, this is unquestionably the rulé. In support of this contention defendant company cites 183 U. S. 364, 46, Law Edition 236, where the court recognizes this principle. In that very decision the court said that “it is the knowledge of ,the inconveniences that attend oral evidence that has led to the custom of putting -important agreements in writing, and to the legal doctrine that protects them where so expressed, and-where no fraud or mutual mistakes- exist from being changed ox modified, etc,”

• It is distinctly Tecognized there that where fraud or mistake exist, a modification of- the written instrument by párolis permissible. We therefore hold that the parol proof offered by plaintiff to show that the answers in the application were inserted therein fraudulently, was properly admitted. See also Lippincott vs. Insurance Co., 3 La. 546; Brent vs. Reeves, 3 La. 5; Delogny vs. Smith, 3 La. 418; Danega & Co. vs. Crescent Mutual Insurance Co. of NeW Orleans, 7 La. Ann. 228; Gaudet vs. North River Ins. Co., 156 La. 719. 101 South. 118.

The proof shows plaintiff was not living in the house upon which he took insurance, at the time he made' the application. His son was living there with his family. It is shown that Lee, the agent of the company, had, prior to the making of the application for the insurance, inspected the house of the plaintiff in which his son was then living; that he had, on that occasion, met plaintiff’s son and therefore knew he occupied it. Plaintiff was then living about a mile away from there in a home belonging to his second wife. It was there the application was taken.

Plaintiff says he told Lee that the interest of the minors in the property had been adjudicated to him, that it was encumbered with a mortgage and that his son was living in it with his family. He says Lee replied such matters were immaterial, and were of no effect either as to plaintiff or the company. , Plaintiff said that Mizell and his son ■ were present when this conversation was going on between him and Lee, both of these parties testify that plaintiff made .those disclosures to Lee.

The record shows, that plaintiff is a man of little education, can barely read, and can write with still more difficulty than he can read. The answers were undoubtedly insertéd, as they appear in the application, by Lee, in whom plaintiff, it seems, had placed implicit confidence!

It is undoubtedly true and that Lee knew that plaintiff’s son and not plaintiff, was living in the house upon which the insurance was being "taken. As he knew this to be true, it is impossible to believe that he would have put in the application that plaintiff was occupying the house if he intended to make an honest return to his company. It is inconceivable also that plaintiff could have deceived him in respect to this vital fact, even if plaintiff, himself, had inserted -the answer thereto as appears in the application.

Counsel for defendant company says that Lee could have had no motive in thus making these false entries in the application. The company could not locate Lee, he did not appear as a witness, and we have no information as to the basis for the remuneration for his services to the company. It is possible he was working on a commission basis, or under some other arrangement, but however, this may be, he must unquestionably have been interested in getting insurance policies for the defendant. Evidently, he had some interested motive in obtaining the policy . in question,' and from the evidence, we are of the opinion, as the district judge must obviously have believed, that this agent, Lee, falsely and fraudulently inserted the answers in the application.

This application, it must be noted, though the policy was delivered to plaintiff, remained in the possession of defendant company at its home office in Georgia, which accounts for plaintiff not making any complaint as to these false answers until about the time suit was being instituted when he was afforded'the opportunity of seeing a copy of the application in the hands of his attorney, and there related ■ to him the disclosures he had made to Lee when the application was prepared. This" statement from plaintiff to his attorney resulted in this suit.

In the case of Eames vs. Home Insurance Co., 94 U. S. 621, 24 L. ed. 298, it was held that it is no objection that the application does not truly set forth the title of the insured and the encumbrances on the property, and the insurance in other companies, when all the facts were fully communicated to the agent of the company, and were known to him, and where he wrote out the answers in the application. The court held in that case that the insurance company was bound by the act of-its agent. Here, all the important facts and material to the risk in reference to the title, encumbrance on the property, and its occupancy, were communicated to the agent who falsified the answers so as to secure the policy for his company.

The insurer can not avoid its policy because of mis-statement in the application, material to the risk, but due to mistake or negligence of its agent-and not to fraud or bad faith of the insured. This was so held in Ben-Hartoz vs. Mut. Ins. Assn. of Iowa, 196 N. W. 844. In this case no fraud or bad faith was practiced by the insured ■as it is shown that he gave a correct statement of the facts material to the risk. The fraud was on the part of the agent of defendant company who made the false entries Of which plaintiff justly complains. In cases of this character the general rule is that insurance companies are bound by the acts of their agents who .undertake to write the answers for the applicant, and lead him to believe that the contract is effective.

Defendant received the premiums on the policy in question in this suit, is bound by its .terms, and- is, equitably estopped under the circumstances of the- case from relief by a plea in avoidance or forfeiture.

In such cases where the parties have entered into the contract for fire protection and where there is error or fraud on the part of the underwriter, the case here, the agreement will be reformed so as to conform to the intention of the parties. Danega & Co. vs. Crescent Mutual Ins., Co., 7 La. Ann. 228; Gaudet vs. North River Ins. Co., 156 La. 719, 101 South. 118.

The policy was reformed by judgment below, decreeing defendant company liable for the amount claimed. Finding no error in this judgment, it is therefore affirmed with costs.


author: LECHE, J.

text:
    No. -
    First Circuit
    BURNS v. WEBER KING LUMBER COMPANY
    (June 5, 1926, Opinion and Decree.)
    (July 8, 1926, Rehearing Applied For.)

      (Syllabus of the Editor.)
    1. Louisiana Digest — Master and Servant —Par. 159.
    An injured workman suffering from hernia causing total disability due to an accident in the course of his employment is entitled to compensation under Section 8, Subsection 1 (b) of the Workmen’s Compensation Act No. 20 of 1914 during the period of disability not exceeding four hundred (400) weeks.
    2. Louisiana Digest — Appeal—Par. 625; Master and Servant — Par..160 (I).
    The finding of the trial court as to matters of fact in a workmen’s compensation case under Act No. 20 of' 1914 unless clearly erroneous will be affirmed.
    Appeal from the Parish of Yernon, Hon. Hal. A. Burgess, Judge.
    Action by W. R. Burns against Weber King Lumber Company. There was judgment for plaintiff and defendant appealed.
    Judgment affirmed.
    F. M. Wood, of Leesville, attorney for plaintiff, appellee.
    Hardin and Cavanaugh, of Leesville, attorneys for defendant, appellant.
   LECHE, J.

Defendant appeals from a judgment condemning it to pay compensation to plaintiff at the rate of eight 58-100 dollars per week during the period of his disability not exceeding four hundred weeks.

Plaintiff was working for defendant, dumping slips of earth and rock in the process of levelling and preparing an earthen embankment for the laying of a railroad track. He says that while performing this labor on July 10, 1925, he felt a sudden jar and considerable pain, that he became so sick he was unable to resume his work and had to lie down until quitting time on that day. He was then taken to the physician regularly employed by the defendant company, who told him he had a hernia and who provided him with a truss.

The defense is that plaintiff had long previously been suffering with hernia and therefore that the injury had not been inflicted during the course of his employment by defendant, and defendant also complains that the trial judge erred in holding that plaintiff was totally disabled.

Plaintiff is positive that he had not suffered with hernia before he was hurt on July 10, 1925, and that so far - as he knew, no member of his family and none of his ancestors had ever been afflicted with hernia. This last statement was elicited from him for the reason that one of the medical experts who testified in the case was of opinion that hernia was of hereditary origin. The eight physicians who testified on the trial, disagreed in many respects but they all more or less thought that a latent or incomplete hernia might exist without the patient’s knowledge and might suddenly be much aggravated by a physical strain or by a physical shock. Defendant’s regular physician discounted this theory in the present case, for the reason that if any enlargement of the hernia had taken place, there would have been local indications of the enlargement when he first examined plaintiff. Of course, in a question of this kind, much weight should be given to the opinion of experts, but where the victim whose, testimony seems to be frank and sincere, is in conflict with a theory advanced by an expert, that testimony can not be for that sole reason, completely ignored.

Plaintiff is corroborated by surrounding facts and circumstances as to the time and the manner in which he was hurt. It is shown without contradiction, that he was hurt while performing arduous labor, that he was compelled to quit his work and to lie down and that his foreman had him brought to the defendant’s physician, and that his capacity to labor was much if not totally impaired.

The case is not free from doubt, but we see no reason to set aside the finding of facts by the trial judge. So far as the amount allowed by the trial court for compensation is concerned, it appears to be in consonance with the facts, and if hereafter found to be erroneous it may, under the terms of the compensa) ion' law, be modified as justified by changed- conditions.

We believe the judgment appealed from is correct and should be affirmed, and,

It is so ordered.


text:
    No. 22,918
    First Circuit
    GOURNAY v. PRATHER
    (December 8, 1925, Opinion and Decree)
    (January 28, 1926, Rehearing Granted in part)

      (Syllabus by the Editor.)

    1. Louisiana Digest — Pledges—Par. 16.
    Under Section 1 of Act 66 of 1874 as amended by Act 93 of 1922, a pledge of property which is made after the money has been advanced is valid and enforceable by a judgment.
    2. Louisiana Digest — Appeal—Par. 625, 630.
    The judgment of the trial court on questions of fact, namely, credits allowed to the defendant, where erroneous, will be corrected.
    Appeal from the Thirteenth Judicial District Court, Parish of Si. Landry, Hon.. B. H. Pavy, Judge.
    Action by S. A. Gournay against Arthur Prather; L. O. Wade, Intervenor. There was judgment for plaintiff and intervenor. Defendant appealed. ' :
    Judgment amended and affirmed.
    R. L. Garland, of Opelousas, attorney for plaintiff, appellee. .

      . P. R. Sandoz and H. C. Brunson, of Opelousas, attorneys for defendant, .appellant.
   ELLIOTT, J.

On November 20, 1922, S. A. Gournay entered into a written contract with Arthur Prather, whereby Arthur Prather bound himself to farm a certain plantation belonging to Gournay for the year 1923. Prather was to furnish all his seed, rice, tools and implements to make a rice crop, also fuel and labor necessary to make levees and material and maintain the lake levee so as to hold sufficient water, maintain fences, do the hauling, pay all expenses and deliver one-third of the rice in warehouses and the other crops to Mr. Gournay in his barn, clear of all expenses.

Mr. Gournay was to advance Mr. Prather seed rice, 200 barrels of corn, tools, implements, gas, oil and 'money to pay labor hired to make the crop, etc.

The contract stipulated that Mr. Prather was to secure Mr. Gournay for advances by executing a bill of sale covering his crops and a chattel mortgage on his Pordson tractor, wagons, implements, three mules and a horse.

Mr. Prather proceeded in due time to the planting and cultivation of the crop and Mr. Gournay, to advance him on the same.

Later Mr. Prather at the instance of Mr. Gournay bought out the interest of Adam Naquin .in a crop; Mr. Gournay advancing the money for the purpose.

Mr. Gournay’s advances reached $1372.00 and he desired further security. This had been previously agreed to. The parties accordingly went before James Hammers, Notary Public, on August 29, 1923, and Mr. Erather executed an act in which he acknowledged himself to be indebted to Mr. Gournay • at that time .in the sum of $1372.00 “for money advanced by S. A. Gournay to Arthur Prather to enable said Prather to plant, cultivate and harvest his crops of rice, cotton, corn, potatoes, etc., for the present year”. He executed a note in favor of Mr. Gournay for the amount and secured the note, mortgaged to Mr. Gournay certain movable property belonging to him and pawned and pledged to Mr. Gournay his share of the crops grown on the plantation leased from Mr. Gournay; also his share of the crops grown, which had been purchased for Mr. Naquin and authorized Mr. Gournay in the act to take actual possession of said crops as soon as matured and gathered. To dispose of same and apply the proceeds'to the satisfaction of said note, etc.

At the time this act was passed and security given, Mr. Gournay had advanced Mr. Prather $443.26 over and above the sum stated in said act and evidenced by said note; but Mr. Gournay was not aware that it had been done; consequently the sum was not included in the note and security mentioned.

During the months of October and November, 1923, the parties became each dissatisfied with the other. Mr. Prather claims that the sums advanced him by Mr. Gournay ha'd been exhausted. That further advances were necessary to enable him to gather his crops and that Mr. Gournay refused to advance him any further. That being refused by Mr. Gournay he was compelled to solicit assistance from Mr. L. O. Wade.

Mr. Gournay claims that Mr. Prather mismanaged and wasted the money he had advanced ■ him. That the sums advanced and as indicated by the note, had same been properly expended, were sufficient for all purposes and that he was justified in refusing to advance further sums. He further claims that Mr. Prather when called on to settle' with him for the advances refused to do so and contrary to the agreement, set forth in the act of pledge, sold the cotton without his consent and delivered the rice to warehouses, taking receipts for the- entire crop and the shares of each, in his own name, and kept the .receipts in violation of the contract of pledge.

This suit by Mr. Gournay against Mr. Prather resulted and Mr. Prather’s interest in all the rice stored in warehouses as well as that in the fields were seized by provisional seizure.

L. O. Wade intervened in the suit, claiming to be a privileged creditor with privilege on the rice, etc., to the extent of $437.10 for advances to Mr. Prather to enable him to harvest the same.

Mr. Prather concedes the demand of Mr. Wade.

The district judge rendered judgment in .favor of Mr. Gournay for $1372.00, the amount due on the note with interest and attorney’s fees; recognized the pledge which Mr. Prather had granted him as above stated, also the chattel mortgage, granted at the same time; ordered that the pledge and mortgage be enforced, that the proceeds of the crops pledged to Mr. Gournay be paid to him with rank of privilege due to the pledge, and by preference over all others to the extent required to satisfy the note. He also recognized Mr. Gournay’s claim as a privilege to have effect after the note had been paid and concurrent with a like privilege recognized in behalf of Mr. Wade.

He also recognized Mr. Wade as a creditor to- the extent of $437.10 as claimed in his intenvention with privileges as fur.nisher. of supplies concurrent with Mr; Gournay after-the note had, been paid.

Mr. Gournay and Mr. Wade appealed.

The record shows contests resulting from the provisional seizure, which are not controverted on appeal. We will therefore not mention them.

Mr. Prather contends on appeal that he is entitled to a credit of $161.85 instead of $111.85 as allowed in the lower court against Mr. Gournay’s bill or account for $443.26 over and above the note.

- The evidence bears out the' contentions Of Mr. Prather to this respect.

He paid Mr. Gournay a check for that gum; Mr. Gournay admits receiving the check but claims that he gave back to Mr. Prather $50.00 of the amount, thus reducing the payment to $111.85; Mr. Prather denies that Mr. Gournay gave him back $50.00 of this amount. The burden of proof to show this return is on Mr. Gournay. The evidence supports the contentions of Mr.. Prather; that he did not give him back $50.00 of the sum paid. Mr. Prather is therefore entitled to a credit for the sum of $161.85 instead of $111.85 as allowed in the lower court.

Mr. Prather also claims a credit of $61.50 for corn raised, part of the crop purchased from Adam Naquin, which he delivered to Mr. Gournay and not allowed by the judgment appealed from. In this matter the evidence supports Mr. Prather. He is positive that he delivered the corn to Mr.- Gournay; Mr. Gournay is uncertain and was unable to say that it was not done. This credit will be allowed,, also a further credit of $15.00 for seed cane and $2.20 on account of error in charging for oil; making a total difference of $128.70 in the credits allowed in the lower court and which added to the credit for disk .harrow, leaves Mr. Prather indebted to Mr. Gournay on account, over and above the note, in the sum of $108.71. Mr. Wade urges on appeal that the pledge which Mr. Prather executed in favor of Mr. Gournay is null and- void because the advances covered by the. pledge had been already advanced, citing Bank vs. Sullivan, 117 La. 163, 41 South. 480. This decision was rendered in 1906. It is not the law now. Section 1 of Act 66 of 1874 was amended by Act 93 of 1922 and according to the law as amended, the judgment sustaining the pledge is correct. The contract between Mr. Gournay and Mr. Prather does not specify how much money was to be advanced for the purpose of paying hired labor. Mr. Prather claims that he needed further advances to enable him to harvest his crop and that Mr. Gournay wrongfully refused to grant him further ádvances and thereby compelled him to seek assistance from Mr. Wade.

Mr. Gournay claims that the advances he made were sufficient, had same been properly expended, etc. The evidence does not enable us to say which is right, but we are satisfied that the claim of Mr. Wade was properly allowed by the district judge. He made advances as he' claims to have made.

The judgment appealed from is correct in all respects, save as to the" credits allowed Mr. Prather. Mr. Prather is entitled to credit against the bill or account filed against him by Mr. Gournay for $443.28 over and above the note, for $355.65 instead of as fixed by the judgment of the lower court, to be applied of date October 1, 1923, and as thus amended and corrected the judgment appealed from is affirmed.

The plaintiff and appellee to pay the cost of the appeal; the defendant the cost in the lower court. ’


author: WESTERFIELD, J.

text:
    No. 9992.
    Orleans.
    LOUIS A. MAGENDIE, SR., v. CONSTABLE FIRST CITY COURT OF NEW ORLEANS, ET AL.
    (April 13, 1925, Opinion and Decree.)

      (Syllabus by the Court.)

    1., Louisiana Digest — Constitutional Law— Par. 26.
    Sec. 5 of Act 29, 1924, which reads as follows: “No appeal shall be allowed from any order granting, continuing, refusing or dissolving a restraining order; but where, upon a hearing a preliminary writ of injunction shall have been granted, continued, refused or dissolved by an interlocutory order or decree, or an application to dissolve an injunction shall have been refused by such order or decree, a devolutive, but not a suspensive, appeal may be taken as a matter of right from such interlocutory order or decree; provided, however, etc., etc.,” is not in conflict with Sec. 29 of Art. YII of the Constitution of 1921.
    2. Louisiana Digest — Constitutional Law— Par. 26.
    In addition to the usual presumption of constitutionality of the Acts of the Legislature considerations of personal modesty, futility and inexperience in the administration of justice influence an intermediate appellate court in favor of the maintenance of their constitutionality.
    Writ of mandamus, certiorari and prohibition.
    Paul W. Maloney,' relator.
    Relator’s application for writs of prohibition mandamus and certiorari denied.
   WESTERFIELD, J.

Relator seeks by mandamus to compel the- judge of Div. “A” 'oD the Civil District Court to grant Him a suspensive appeal froni an order dissolving a temporary restraining order and refusing a preliminary injunction. Section 5 of Act 29 of 1934 reads: , •

“No. appeal, shall be allowed from any order granting, continuing, refusing or dissolving a restraining order; but where upon a hearing a preliminary writ of injunction shall have been granted, continued, refused or dissolved by an interlocutory order or decree, or an application to dissolve an injunction shall have been refused by such order or decree, a devolutive,' but not a suspensive, appeal may be taken as a matter of right from such interlocutory order or decree; provided, however, etc., etc.” -

Relator attacks the Constitutionality of the Act of 1924 upon the ground that Sec. 29 of Art. YII of the Constitution of 1921 gives the right of appeal in all cases. This Article is as follows:

“Section .29. The Courts of .Appeal, except as otherwise provided in this Constitution, shall have appellate jurisdiction only, which jurisdiction shall extend to all cases, civil and probate, of which the Civil District Court for the Parish of Orleans, or the District Courts throughout the State, have exclusive original jurisdiction, * * * (Black letters ours.)

We have been referred to no authority holding that this article of the Constitution is susceptible of this construction and for our part do not think so.

Section 1 of Art. VII is of interest in this connection:

“ * * * In. all cases when there is an appeal from a judgment on a reconventional or other incidental demand, the appeal shall lie to the Court having jurisdiction of the main demand. If there be no right of appeal on the main demand, the appeal shall lie to - the Court having jurisdiction of the reconventional demand.”

In the case of Allen Nugent & Co. vs. G. W. Kory, et al., 32 La. Ann. 1126, Chief Justice Bermudez observes:

“The right of appeal is a Constitutional and valuable one, which should always be entertained with favor whenever it exists." (Black letters mine.)

We interpret this remark as meaning that in all cases where the Constitution grants the right of appeal a liberal construction should be indulged to the end that the right of appeal be encouraged and favored. This view is supported by the fact that Chief Justice Bermudez in the opinion we havé cited has based his opinion upon the authority of State ex rel. Durand vs. Judge, 30 La. Ann. 285, where we find the following expression:

“The right of appeal is a precious one and it should be favored and aided by the courts.”

As pointed out by the learned respondent judge, “the law (not the Constitution) provides for suspensive appeals and denies suspensive appeals * * * i. e., judgments appointing ' tutors, administrators, syndics, curators, etc.”

The Act assailed amended the provisions of the Code of Practice which gave the right to a suspensive appeal from a judgment dissolving a preliminary writ e* injunction. Whether the change was wise or otherwise, we are not called upon to determine. The legislature is presumed to have acted within the Constitution and all doubts must be resolved in favor of the Constitutionality of the act. Moreover, as an intermediate court, whose judgment is subject to review by the Supreme Court, every consideration of personal modesty as well as expediency in the administration of justice suggests the propriety of allowing the Supreme Court the exclusive prerogative of impeaching the legislative will except in extreme cases of patent unconstitutionality.

For the reasons assigned the alternate writs of prohibition, mandamus and certiorari heretofore issued are recalled and relator’s application is denied at his cost.

CLAIBORNE, J. For reasons given in Paul vs. Tabony, 1 La. App. 543, I respectfully dissent.


author: ELLIOTT, J. LECHE, J.

text:
    No. 4157.
    First Circuit
    WALTER V. BROCK, Tutor, v. JOHN H. FRIEND
    (June 30, 1925. Opinion and Decree.)

      (Syllabus by the Editor.)

    1.Louisiana Digest — Pleading—Par. 67.
    An exception of lis pendens will not be maintained where the children sue separately from the wife in an action for damages under Article 2315 of the Civil Code.
    2. Louisiana Digest — Automobile—Par. 4, 4 (d).
    One who either invites or allows another to ride in his automobile owes the duty of using reasonable or ordinary care for his safety.'
    3. Louisiana Digest — Automobile—Par. 4, 4 (d).
    Where in an automobile accident it is shown that the driver and owner was grossly negligent in driving the auto-' mobile too fast around a curve thereby ■ causing a wreck and death of an occupant of his car, he will be held liable for the resultant damages.
    Appeal from the Twenty-Second Judicial District, Parish of Washington, Hon. Magee W. Ott, Judge,
    This is a suit for damages under Article 2315 of the Civil Code for death of the father brought by the tutor for the minor children.
    There was judgment for plaintiff and defendant appealed.
    Judgment affirmed.
    J. Vol. Brock and O. H. Garter, of Franklinton, attorneys for plaintiff, appellee.
    Miller & Miller and Miller & Richard, son, of Bogalusa, attorneys for defendant appellant.
   ELLIOTT, J.

Walter V. Brock, tutor oi Leslie, Mildred and Freddie Brock, minor children of Dr. Fleet W. Brock, alleging that Dr. Fleet W. Brock, father of the children, was killed on the 21st of August, 1923, as the result of the reckless, heedless conduct and fault of the defendant, John H. Friend, in driving his automobile in which Dr. Brock was riding by the invitation of said Friend.

That said children were living with their father at the time he was killed at his place of residence in Washington Parish; that said Friend while driving .his car in a careless, negligent manner and at a high rate of speed ran into a ditche, whereby the car was wrecked and Dr. Brock was thrown from the car and killed; that the death of Dr.. Brock was caused solely by the careless, negligent and recklessly fast driving of said Friend.

He claims of- the defendant $10,000.00 damages for and in behalf of said minors on account of the death of their father.

Defendant excepted, pleading is pendens and no cause of action, both of which were overruled in the lower court.

.- Defendant then answered denying plaintiff’s allegations.

The above case and that entitled Mrs. Mattie Hale Brock vs. John H. Friend, No. 4119 on the docket of the court were consolidated and tried together. - - -' ■

The record, of the suit No. 4119 shows that Mrs. Mattie . Hale Brock filed suit against John H. Friend, May 20, 1924, claiming $10,000.00 for herself as the widow of Dr, Brock, on account of his death by the negligence of defendant.

The evidence shows that Dr. Brock had been married twice: ' After the death of his first wife Mrs. Maud Brock, he married Mrs. Mattie Hale Brock. He left at his death the three children above named, born of his marriage with his first wife.

The law C. C. Art. 2315 (Amd. Act 159 of 1918) provides that where “the deceased leaves a surviving spouse together with minor children the right of action shall accrue to both the surviving spouse and minor children”. Therefore the right of action on account of the death of Dr. Brock, having accrued to both the widow and .the children, both have the right to sue, as was done. The exception of lis pendens was properly overruled.

Coming now to the merits of the case, plaintiff alleges that Mr. Friend invited Dr. Brock to ride with him. Mr. Friend testified on this subject as follows:

“Q. What did you say to him at-Slidell?
■ “A. I told him yes he could ride with me if he wanted to.
“Q. You did not object to it?
.“A, No, sir.
“Q, When you left Slidell who occupied the front seat of your car?
■ “A. 'Dr. Brock and myself.
“Q. The other man you mentioned, where was he?
“A. In the back seat.”

This shows that Dr. Brock was lawfully riding in Mr. Friend’s automobile with the consent of Mr. Friend, and the obligations of Mr. Friend as the owner and driver of the car must be judged accordingly.

The evidence shows that Mr. Friend did not exercise reasonable care for safety of Dr. Brock.- His driving was heedless, recklessly fast, and when he entered a sharp curve in the road he was running so fast that he could not guide nor control his car.

Mr. Friend, speaking of the matter' himself says:

“Q, How did the wreck occur?
“A. It is a very sharp curve there and instead of taking the inside of the curve I was on the outsidd. My back wheel got off the gravel in the soft mud, I drove that way 200 feet. I was trying to pull the car in the road. I Was not uneasy. I did not think the car was out of my control, and the wheel struck a bump on the side there and the pressure pulled the car around this way and the car turned over.”

Other witnesses testify to the tracks of the car in the ditch on the side of the road at the beginning of the curve.

Two witnesses, R. J. Joyner and Sam Wilson, speaking of the speed he was running before he reached the curve, say that they never saw a car going so fast before, and estimated his speed at over 60 miles an hour; and Mr. Joyner that the roaring of the car continued as it went into the curve. The unusual speed of the car- was noticed by a Mr. Parker, who lived near the curve. He says that knowing it could not make the curve, he watched to see the outcome, and as it entered the curve the wheel went down in the dump run (meaning ditch) 35 or 40 feet, and as they came out on the bank the car turned over twice changing ends; the rear end pointing down the road from which it had come; that the car pitched Dr. Brock forward up, out of it as it turned over and he came down head first; that the others were also pitched out distances of 30 or 40 feet from the car.

The fact that the car rolled over twice and changed ends, pitching the occupants out with the force and violence mentioned by tbe witnesses. shows conclusively that the car was running at great speed at the time - it over-turned.

: The case Jacobs vs. Jacobs, 141 La. 272, 74 South. 992, contains pertinent language on the subject of the duty which the driver of the automobile owes to a party riding with him by his invitation; and in this case Dr. Brock may be considered to have been doing the same, at least he was riding by the perihission of Mr. Friend and with his consent.

The court says in the body of the opinion pp. 236;

“With regard to the care due by the driver of an automobile for the safety of a passenger riding as his guest, we do not recognize the distinction referred to in some jurisdictions between gross or wilful negligence and the ordinary negligence or imprudence referred to in the provisions of our Civil Code Arts. 2315, 2316. We agree * * * that a guest in an automobile is entitled to demand that his host shall exercise ordinary care for his safety in driving the car, and that the latter’s liability is not confined to acts of gross negligence or wilful recklessness, etc.”

The second clause of the syllabus reads:

“Although an invited guest of the driver of an automobile, being a mere licensee, is not entitled to the consideration due by a carrier to a passenger for hire; he is nevertheless entitled to the benefit of the provisions of the Civil Code, that any act of negligence or imprudence that causes injury to another obliges him who was at fault to pay for the injury.”

Clause 7—

“The responsibility of the driver of an automobile for the safety of his guest in the car, is not limited to his duty to abstain from acts of gross or wilful negligence, but demands that he avoid the ordinary negligence or imprudence referred to in the Civil Code.”

• Some of the other portions of the syllabus and opinion also have bearing.

- In Ruling Case Law Vol.. 4, -Subject Carriers, ; p. '■ 10.52, Seo. 502 we .find-’ the following. expression: ■

' «is * who goes upon ’thp. vehicles k * isj of a carríér’ * * *) * * * by invitation express or implied is lawfully ther'e, ¡ ánd the carrier owes him at least the duty of using, reasonable or ordinary care "for; his safety.” ...

And., same author Vol. 22, Subject Railroads, p. 929,. Sec. 174:

* * * “* * * as to one who is on its vehicles by'its invitation, express or implied, it owes the duty of .using reasonable, or ordinary care for his safety, etc.” "

Mr. Friend’s speed in rounding the curve was far in excess of that provided for by Act 120 of 1921, Sec. 19.

The death of Dr. Brock was due solely to the .fault and imprudence of Mr. Friend in driving his car on the road at a speed beyond his control and it over-turned as the result of its excessive speed in rounding a curvé.

In acting as he did he took no care for the safety of Dr. Brock. He owed him. the duty of reasonable care while riding in his car by his express permission.

The judgment appealed from is correct.

The plaintiff filed an answer to the appeal praying that the amount allowed by the lower court be increased. We do not think that.the amount should be increased.

Judgment affirmed.

DISSENTING OPINION

LECHE, J.

I can find no evidence to sustain the statement that Dr. Brock was a guest of Mr. Friend. A guest is one who is present by invitation. Dr. Brock was neither asked nor invited to enter defendant’s automobile. He was not, however, a - trespasser because his presence, resulting from his own conduct and action, was. not objected to by the defendant. He was a mere licensee. He therefore assumed all the risks incidental to a fast automobile trip. He knew that defendant would drive fast with a view of reaching Bogalusa with the least possible delay. Defendant owed him no duty, except not to injure him by willful, wanton or reckless conduct. 1913 A. 893, Ann. cases.

Defendant may have been imprudent, but he was not guilty, of wanton or gross carelessness; his own life and his automobile were at stake. He rounded a curve on loose gravel, his automobile skidded and the accident followed. I do not believe that he is liable under the law.


text:
    No. 4119.
    First Circuit
    MRS. MATTIE HALE BROCK v. JOHN H. FRIEND
    (June 30, 1925, Opinion and Decree.)

      (Syllabus by the Editor.)

    1.Louisiana Digest — Death by. Wrongful Act — Par. 6. Laws — Par. 72.
    Under Article .2315 of the Civil Code the widow has the right of action for the death'of her husband. Therefore, the widow’s right of action is not lost if she remarries.
    Appeal’ from the Twenty-Second Judicial District, Parish of Washington, Hon. Magee W. Ott, Judge.
    This is a suit to recover damages for the death of husband and father. There was judgment for plaintiff and defendant appealed.
    Judgment affirmed.
    J.Vol Brock and O. H. Carter, of Franklinton, attorneys for plaintiff, appellee.
    Miller & Miller and Miller & Richardson, óf Bogalusa, attorneys for defendant, appellant.
   ELLIOTT, J.

Mrs. Mattie Hale Brock as widow of Dr. Fleet W. Brock brought suit against John H. Friend, defendant, for $10,000.00 damages, on account of the death of Dr. Fleet W. Brock, as stated in case No. 4157 just decided.

Her petition contains the same allegations as to recklessness, fault, negligence and fast driving on the part of defendant Friend, as is set forth in the petition in suit No. 4157 against the same defendant.

Dr. Brock was killed August 21, 1923, and on December 25, 1923, plaintiff was married to Hunter Magee. Her suit was not filed until May 20, 1924.

Defendant excepted to her right of action on the ground that she was not,the widow of Dr. Brock at the time she instituted suit; therefore she had no right of action. The district judge overruled the exception. The defendant then answered, urging the same defense that he urged in suit No. 4157.

The district' judge rendered one judgment in both1 suits ‘ against Mr. Friend for $5,000.00 which he apportioned" between the widow and the minor children, awarding $4,250.00 tó the minors and $750.00 to the plaintiff. Defendant appealed.

The defendant contends that by plaintff’s pf actipn as widow of Dr. Brock, before marriage she forfeited and lost her right she instituted suit as his widow on account of his death, and that she had no right of action at the time she filed suit.

■We are not as well satisfied about .her right of action, at the present time, as we would like to be: Hubgh vs. Railroad 6 La. Ann. 495, 496; Succession of Robertson 28 La. Ann. 832, and others of like merit; Chivers vs. Roger 50 La. Ann. 57, 23 South. 100; Huberwald vs. Railroad 50 La. Ann. 477. 23 South. 474; Blackstone Vol. 4 Chap. 23 pp. 247, 248, Secs. 314, 315; but the matter depends on our Civil Code Art. 2315 (Amd. 159 of 1918).

* The law provides that- the widow shall have the right of action;. The plaintiff ■ is exercising the right of action created by the law in . her favor, as the widow of Dr. Brock at. the time of his death.

Her action was not forfeited because of her marriage to Hunter' Magee.

The statute does not provide for a forfeiture of the action on account of a subsequent marriage. We therefore conclude that the district judge properly sustained her right of action.

As concerns the fault, imprudence and reckless driving of the defendant Friend^ this case is based on the same facts existing in the suit No. 4157 and must be decided in the same way.

Mrs. Brock answered the appeal. praying that the amount apportioned to her by the district judge be increased to the amount claimed in her petition. We have considered her demand in this respect, and have decided not to increase the amount.

Judgment affirmed.


author: REYNOLDS, J.

text:
    No. 2152
    Second Circuit
    COCHRAN vs. PELICAN WELL TOOL AND SUPPLY COMPANY
    (June 30, 1926. Opinion and Decree.)
    (Oct. 4, 1926, Rehearing Refused.)
    (Nov. 3, 1926. Writs of Certiorari and Review Denied by Supreme Court.)

      (Syllabus by the Court)

    1. Louisiana' Digest — Tender—Par. 1, 6.
    A previous tender is not a condition precedent to defendant’s pleading in its answer a redhibitory defect in a suit for the purchase price of a bailing line that is wholly and entirely worthless when defendant has notified plaintiff that the line is being held subject to defendant’s order and when the cost of returning it to defendant would exceed the value of the line. •
    Nicol vs. Jacoby 157 La. 758, 103 South. 33.
    Hawkins vs. Brown, 3 Rob. 310.
    State vs. Haekley, Hume & Joyce, 124 La. 854, 50 South. 772.
    Holcomb & Hoke Mfg. Co. vs. Theodore, 1 La. App. 445.
    Appeal from the First Judicial District Court of Louisiana, Parish of Caddo. Hon. J. H. Stephens, Judge.
    Action by Joseph W. Cochran, et al., Liquidators, against Pelican Well Tool and Supply Company.
    Wilkinson, Lewis & Wilkinson, of Shreveport, attorneys for plaintiffs, appellees.
    Crain, Jackson & Johnston, of Shreveport, attorneys for defendant, appellant.
   STATEMENT OF THE CASE

REYNOLDS, J.

This is a suit by the liquidators of the Williamsport Wire Rope Distributing Company to recover $284.00 from Pelican Well Tool and Supply Company on open account.

The only item in dispute is one bailing line ordered by defendant from Williams-port Wire Rope Distributing Company for its customer, Gerald M. Ponton, and received by him at the express office and carried to the Lloyd Harris Drilling Company’s lease and which line defendant alleges was worthless.

Defendant denied liability on the ground:

“That the said line was sold by the said Williamsport Wire Rope Distributing Company through its local agent to the defendant at the time alleged as a bailing line; that said line was purchased by defendant for a regular customer of defendant, Gerald M. Ponton, and was immediately delivered to the said Gerald M. Ponton; that the said Gerald M. Ponton, promptly upon receipt of said line, attempted to use the same for the purpose for which it was designed and sold;“that notwithstanding the exercise of all .care and prudence the said line could not be used as a bailing line or for the purpose for which it was sold, but that oh account of defective and faulty construction said line was wholly worthless and useless for the purpose for which it was intended and purchased. That said fact was notified immediately to your petitioner, who in turn promptly notified the local representative of said Wililamsport Wire Rope Distributing Company, viz.; A. B. Geren, and that said representative, acting in his capacity as such representative, made an examination of said line a short time after its sale and advised your petitioner and the said Gerald M. Ponton to hold said line subje'ct to his order or the order of the Williamsport Wire Rope- Distributing Company. It further avers that the- said representative advised your petitioner that the said Williamsport Wire Rope Distributing Company would replace the' said line.”

On these issues the case was tried and there was judgment in favor of the plaintiff and against defendant for the amount sued for, and defendant has appealed. The right of defendant to sue for diminution of the purchase price was reserved to it.

OPINION

The first question to be decided in this case is, was the bailing line in question worthless?

G. M. Ponton testified, pages 5, 6, 7, 8, 9, 11, 14, 15, 25:

“Q. What efforts did you make to use the bailing line after it arrived?

“A. After we unwrapped it and rdlled it on our drum to attach to the bailer, we started in with the bailer probably fifty feet when the line started to wind up, twist on itself and twirl, and it twisted so that it pulled the bailer up to the crown block.. After that we took the bailer off and unwrapped the twist and pulled it out through the wood thirty-five hundred feet with two teams of mules and then pulled it in with the engine, and in that way we thought we would keep it from twisting, but it didn’t help' it at all, and when we rerun -it the very same thing happened.

H« *}c *

“Q. Why did you cut off that three hundred feet?

“A. It snarled so we. couldn’t get it off of the floor. It wound around two of the men and came near killing them there on the floor; wound around them so that we had to cut it for that reason alone.

“Q. To save their lives?

“A. Yes, sir.

* * * *

“Q. Well, I will ask you to state whether or not that line was of any value whatever as a bailing line?

“A. No, sir; it was absolutely defective as a bailing line and could not have been used as a bailing line in any, well or under any condition.

“Q. You say that it- could not be used for a bailing line at all under any condition?

“A. No, sir.

“Q. Why do you state that?

“A. It snarled so badly you could not use it. When a line snarls like that it is impossible to use it.

“Q. Well, what did this line do when you put this twelve-hundred-pound bailer on it?

“A. Well, it lifted it up about fifty feet in the well up to the crown block.

“Q. Have you ever used that line since that first time?

“A. No, sir, we wrapped it up on the roll over there ready for delivery to the Williamsport Wire Rope Distributing Company or the Pelican or whoever wanted it.

“Q. Now, did you ever talk to any representative of the Williamsport Wire Rope Distributing ■ Company about this line?

“A. Yes, sir, Mr. Geren; he came over to the lease to look at it. I don’t know exactly what'he did; it was shortly after that, I imagine about the second week in September, that he came there to the lease and looked at it and heard our story, and he reported to the company that he' himself would report to the Pelican, at least he proposed that his company replace the line.

“Q. How long did you wait for the company to replace it?

“A. I think it was February, 1923 — no, January, 1923.

“Q. Did the ’company ever replace it?

“A. No.

“Q. Did you have to buy another line?

“A. Yes, sir, I had to buy another .line.

“Q. Have you any interest in this case whatever ?

“A. No, sir. * * *

“Q. Did the Pelican people replace that line?

“A. Yes, sir, they replaced it.

“Q. They did not render you an additional bill for it?

“A. No, sir.

“Q. Just what did Mr. Geren say to you?

“A. He said that he was proposing to the_ company to replace the line. I don’t think he said any more at the time. He said most likely that he would replace it all; that is all I remember of the conversation; but he left the impression that it would be replaced anyhow.

“Q. As a matter of fact, Mr. Geren said he would advise his company about it and ask for an adjustment and he thought they would do what was right?

“A. No, sir, I think he was a little more definite than that. He felt in his own min'd that it should be replaced and he was more definite than that.

“Q. What is the present condition of that line?

“A. Well, it is in as good shape as it ever was.

“Q. Now, were you personally present there at the derrick at the time this line was tested?

“A. Yes, sir.

“Q. When it was first used?

“A. Yes, sir.

“Q. Did you see it when it kinked?

“A. Yes, sir.

“Q. Now you stated that you are a mining engineer and have been connected with oil production for a good many years?

“A. About fifteen years.

“Q. Now you know how to handle a rotary rig?

“A. Yes, sir.

’ “Q. And you were actually present at all times when this, line was being used?

“A. Yes.

“Q. Well, I will ask you to state whether or not that line was properly handled on those occasions?

“A. Yes, sir, it was handled perfectly as far as I know.

“Q. Now could the snarling or twisting have taken place in it because of the manner it which it was being handled?

“A. No, it was impossible to keep it from snarling.

“Q. Mr. Ponton, where. did that line kink?

“A. From one end to the other.

■ “Q. -Well, what use could it be put to?

“A. Well, take it out and throw it away, it kinked so bad, it pulled the bailer out.

“Q. Now, is it not a fact that pulling it through the woods from one end to the other the full length of the line would injure it?

“A. No, sir, it is the best thing you can do.

“Q. The best thing that could possibly be done?

.■ “A. Yes, sir.

“Q. That is the ideal treatment?

“A. Yes, sir, the only treatment we know of.”

T. D. Sedberry testified, pages 18 and 19:

“Q. Did you get in touch with Mr. Geren?

f( A '"Voq CS1V

“Q-. What did he do?

“A. Well, he went over, I don’t know the exact date, but shortly afterwards he came back and called the office and told me in his opinion the line was defective and that he had written his home office at Tulsa, Oklahoma, recommending a new line.

“Q. Did you explain to Mr. Geren, who represented the Williamsport people, the position you were placed in in the matter?

“A. Yes, sir, I. told him that Ponton said the line was defective, that it was worn out and that we were not going to charge him anything for that line and would replace it, if he requested, with a new line.

“Q. Did you subsequently replace it?

“A. Yes, sir, after waiting three or four months for the Williamsport people to make an adjustment on it.

“Q. Did you take the matter up in • the meantime with the representative of the Williamsport people?

“A. Yes, sir, several times.

“Q.- What did you tell him?

“A. Well, we told him that Mr. Ponton would naturally want a new line and we wanted them to replace it with one of their lines and if they did not we would have to replace it with another line of a different make, but we thought it was only fair to give them an opportunity to make their line good.

“Q. Did you tell him what disposition you had made of the other line?

“A. Well, after we saw that they were not going to make the line good we told them that the line was there subject to their orders and it was theirs not ours.

“Q. Now the line that was bought, was it a drilling line or a bailing line?

“A. A bailing line.

“Q. It was bought as a bailing line?

“A. Yes, sir.”

A. B. Geren testified, pages 26, 27, 28, 29, 30, 31:

“Q. Mr. Geren, did you tell either Mr. Ponton or Mr. Sedberry that the line or drilling cable involved in this suit was defective?

“A. I don’t believe that I made the direct statement that it was defective. I probably told Mr. Sedberry that it looked bad.

“Q. Whether or not it was defective, in such condition that it would kink or snarl, it would have had to be taken from the reel in order to tell that?

“A. No, sir, you could not state from the outside inspection of a line that it would not kink or give trouble.

“Q. Now, Mr. Geren, didn’t you tell Mr. Sedberry after you had gone there and examined the line after Mr. Ponton had attempted to use it, didn’t you tell Mr. Sedberry in your opinion the line should be replaced by your company?

“A. I told Mr. Sedberry that I had taken the matter up with the company and would ask for an adjustment.

“Q. Did you ask for an adjustment or replacement?

“A. I asked for an adjustment.

“Q. What kind of an adjustment?

“A. Well, to satisfy the customer.

“Q. Now did you see any. of this line there that was kinked seriously?

“A. Yes, sir.

“Q. How much did you see?

“A. Well, I couldn’t state the exact length, but it was coiled around the spool and stretched out over the ground and that part was kinked pretty bad.

“Q. That was the piece they cut off?

“A. Yes, sir.

“Q. You wouldn’t call that a good line, would you?

“A. Of course if it was ruined it could not be called a good line.

“Q. Was that ruined?

“A. Yes, sir, that part was ruined.

“Q. You don’t know how it was ruined?

“A. No, that was something I could not tell, not being on the ground at the time the line was taken out.

“Q. Now the balance of the line was wound around the spool there?

“A. Yes, sir.

“Q. Now, did Mr. Sedberry tell you that the line was there for you at any time that you wanted it?

“A. I don’t remember whether he told me that or not. Of course, we didn’t want the line after we sell it, because that is something the company does not do, take back a bailing line once they have sold it.

“Q. In other words, with the company the question of giving the purchaser another line is not the custom and you were not interested in this line?

“A. No, sir, I was not interested in that line.

“Q. Would not move it?

“A. No, sir.”

We are convinced by the testimony that the bailing line was entirely worthless for the purpose for which it was manufactured and sold and we are also convinced that the defendant never intended to purchase nor the Williamsport Wire Rope Distributing Company to sell a bailing line that was worthless for use as such, and that,. therefore, there was never a completed contract between the Williamsport Wire Rope Distributing Cqmpany and the defendant; the line remained the property of the Williamsport Wire Rope Distributing Company and defendant does not owe the price thereof; that the defendant is under no other obligation to Williamsport Wire Rope Distributing Company than to hold the line subject to its orders, especially since the evidence shows it is not worth what the transportation charges on its return would be and the Williamsport Wire Rope Distributing Company or its liquidators, the plaintiffs, would not receive it if sent back.

It is therefore ordered, adjudged and decreed that the judgment appealed from be avoided and reversed and that plaintiffs’ demands be rejected at their cost.


author: CARVER, J. ODOM, J.

text:
    No. 2202
    Second Circuit
    HALL vs. EXCELSIOR STEAM LAUNDRY COMPANY, LTD.
    (November 4, 1925, Remanded for New Trial.)
    (June 30, 1926. Opinion and Decree.)

      (Syllabus by the Editor.)

      1. Louisiana Digest — Appeal—Par. 745.
    Where the transcript and plat contained therein to which much of it refers is not sufficiently clear' for one to understand the crucial effects of the case, it will be remanded for a new • trial.
    2. Louisiana Digest — Damages—Par. 39.
    The amount of medical expenses, bills for nurses and other expense during the wife’s 'illness is allowed the husband for damages resulting from an automobile collision which caused his wife’s insanity.
    Appeal from the First Judicial District Court of Louisiana, Parish of Caddo.
    Action by John T. Hall against Excelsior Steam Laundry Company, Ltd.
    There was judgment for plaintiff and defendant appealed.
    Judgment affirmed.
    Bullock & Warren, of Shreveport, attorneys for plaintiff, appellee.
    Wilkinson, Lewis & Wilkinson, of Shreveport, attorneys for defendant, appellant.
   CARVER, J.

We have read and reread the testimony in this case and tried our best to get from it and the plat to which much of it refers a sufficiently clear understanding qf the crucial facts to enable us to dispose of it on the present record, but all to no avail.

One of the witnesses locates the cars on the' plat by the letters W and X. We find what appears to be a W but are not sure whether it is or not. We find several crosses which ' may have been intended for X’s but do not know which, if any of them, is the X meant by the witness.

Another witness locates the cars by the letters A, B and D. We find several A’s, a B and what seems to be a D, but are not sure that it is. If so, it is hardly the D to which the witness refers.

The testimony of these witnesses is unintelligible without proper location of the letters on the plat, and this location we are unable to make although we have examined the plat under a strong light and with a magnifying glass.

We have concluded that the purposes of justice require that the case be remanded for a new trial.

We suggest that on the new trial each witness make his marks on a different blueprint and that the marks be made so that they will show.

'Por’ these reasons it is decreed that the verdict of the jury and the judgment of the lower court thereon be set aside and the case remanded for a new trial.

ODOM, J.

This is ’ a suit by John' T. Hall, the husband of Mrs. Blanche E. Hall, to recover $12,376.83, and he alleges, as a cause of action, that a truck tdriven by one of defendant’s employees ran into an automobile driven by his wife, causing great, injury to her which resulted in insanity.

He‘asked for $10,000.00 for the loss of his Wife’s love; affection and companionship, and $2376.83 for medical expenses, bills for nurses and other expenses during his wife’s illness, which, he alleges, resulted from the accident and injury.

The case was tried by a jury which rendered a verdict for plaintiff for $2376.83.

Defendant appealed.

The facts in this case are identical with those in the suit between 'the same parties styled John T. Hall,. administrator, vs. Excelsior Steam Laundry Company, Ltd., No. 2201, this day decided. It is not necessary to here restate the facts and our findings.

■ In that case plaintiff was awarded $5000.00 damages for the pain and suffering endured by' Mrs. Hall as a result of the collision.

In this case the plaintiff asks to be reimbursed the amount of expenses incurred by him incident to his wife’s illness and insanity. The amount of his claim does not seem to be contested and the jury awarded to him the amount of his bills. That award is correct. The jury, however, rejected the other- item of his demand. , Considering the two cases together in all their phases, we have concluded to affirm the judgment in'this case a.s we ' did in the other.' ‘

Por the reasons assigned in the case of John T. Hall, Administrator, vs. Excelsior Steam Laundry Company, Ltd., No. 2201, this day decided, it' is therefore ordered, adjudged and decreed that the verdict of the jury and the judgment of the court based thereon are affirmed, defendant to pay all costs.

REYNOLDS, J., recused.