text:
    No. 2299.
    Second Circuit Appeal.
    MRS. MARY THOMAS, TUTRIX v. WILLIAM M. CADY LUMBER COMPANY, INC.
    (June 6, 1925, Opinion and Decree.)

      (Syllabus by the Editor.)

    1. Louisiana Digest — Appeal—Par. 625.
    The judgment of the Trial Court as to the age of plaintiff being manifestly correct, is affirmed.
    Appeal from Thirteenth "Judicial District Court of Louisiana, Parish of Rapides, Hon. L. L. Hooe, Judge.
    There was judgment for plaintiff and de- . fendant appealed.
    Judgment affirmed.
    B. T. Dawkins, of Alexandria, attorney for plaintiff, appellee.
    Overton & Hunter of Alexandria, attorneys for defendant, appellant.
   REYNOLDS, J.

This a suit by Mary Thomas as Tutrix of ' Laura Van Dyke against William M. Cady Lumber Company, Inc., to recover compensation under the workmen’s compensation act for the death of her brother, Wesley Van Dyke.

And it is agreed by counsel for plaintiff and defendant that the only' issue in the case is as to the age of Laura Van Dyke, the beneficiary under the statute.

Under paragraphs (h) and (k) of Section 8 of Act 20 of 1914 as amended by Act 43 of 1922, Laura Van'Dyke would be entitled to compensation for the death of her brother Wesley Van Dyke only if she was under 18 years of age at the time of his death and then only until she attained the age of 18 years.

Plaintiff contends that Laura Van Dyke, was born on November 10, 1906.

Admittedly her ' brother, Wesley Van Dyke, was killed on October 6, 1922.

Compensation is therefore claimed for her from October 6, 1922, to November 10, 1924.

Defendant contends that plaintiff has not established with reasonable certainty that Laura Van Dyke was under 18 years of age at the time of her brother’s death.

OPINION

In support of her contention that Laura Van Dyke was under 18 years of age on October 6, 1922, plaintiff, on the first trial, introduced the testimony of (Bertha Robinson who testified:

(Page 12).
“Q. When was Laura Van Dyke born?
“A. On November 10, 1906.
(Page 14).
“Q. Is there anything that makes you recall when Laura was born?
“A. I remember when she was born because I nursed her. I was her nurse.
“Q. Have you any other reason to recall?
“A. I taken care of her while my mother helped my father work.
(Page 15).
“Q. Are you positive' as to the date of Laura’s birth? ■
“A. Yes, sir; November 10th, 1906.
“Q. That was the date of Laura’s birth?
“A. Yes, Sir.”
Mary Thomas testified, on the second trial, page 1.
“Q. How long has Laura Van Dyke been living with you?
“A. Eleven going on twelve years.
“Q. How old is Laura?
“A. Seventeen and will be eighteen her next birthday.
“Q. When is her next birthday?
“A. November 10 th.
“Q. Then, as I understand it, Laura will be eighteen years’ old on November 10th, 1924?
“A. Yes, sir.
“Q. When was she born?
“A. In 1906.
“Q. What date?
“A. The tenth of November.
(Page 2).
“Q. Prom whom did you receive the information as to the age of Laura?
“A. Prom my sister-in-law, Rosa Van Dyke.
(Page 3).
“Q. How did you get your information from your sister-in-law at San Antonio, Texas ?
“A. She was living at Bunkie, Louisiana, at the time, and my sister-in-law was at my home and visiting me when this child was here, and I asked her age.
“Q. You got it then from her in person?
“A. Yes, sir, not once but several' times.
(Page 4).
“Q. Have you heard Laura’s age discussed amongst her relatives and the members of her family, within the last year or so?
“A. Yes, sir, we’ve discussed it.
“Q. How many members of Laura’s family have you heard discuss it, that is, discuss her age?
“A. Please repeat the question.
“Q. I asked you how many members of Laura’s family have you heard discuss Laura’s age?
“A. I don’t know just how many. My sister-in-law and myself and my family— I guess that was about all — I don’t remember just how many.
(Page 6).
“Q. Now, did I understand you to say that you remembered the age of this child by reason of the fact that your sister-in-law had two children born on the 10th of December?
“A. No, sir, one, a boy born on December 10 — after Laura was born.
(Page 7).
“Q, You have no personal knowledge of the birth of this child, have you or not?
“A. Only what they told me.
“Q. How 'old was this child when she came to live with you?
“A. She was six years old.
“Q. When did she come to live with you?
“A. In 1913, I think it was in August, 1913, if I am not mistaken, I think it was.
“Q. In 1913?
“A. Yes, sir, I think it was in 1913.
“Q. And you say that she was six years <nd when she came to live with you?
“A. She was going on six. She came to me in August, in the summer months, and she would be six in November of that year.
“Q. In 1913, in November, she would be six?
“A. I think so.
“Q. You are sure that she wasn’t over six?
“A. No, sir, she wasn’t.
“Q. It is a fact, then, that they told you, in August, 1913?
“A. I didn’t say positively August, but in the summer months.
“Q. They told you in the summer of 1913, when she came to you, that she was already six years old? .
“A. In her sixth year.
(Page 8).
“Q. . Going on six?
“A. When .1 inquired as to her age they said she was six years old.
“Q. Then, in November, 1913, did you count her age as being six, or seven, years old?
“A. She would have been seven. She came to me in the summer months — she would have been seven.
(Page 9).
“Q. When was the first time that you told Mr. Dawkins, or anybody else, that you knew the age of this child?
“A. I don’t know what date it was, but when Mr. Dawkins got the case I told him then, as near as I could, because he asked me- how old she was — and I told him just when she was bom, and he figured it out that she was born in 1905— which was a mistake.
(Page 11)..
“Q. Is that child of your sister-in-law’s living now?
“A. Yes, sir.
“Q. How old is' that child?
“A. He will be eighteen years old in December.”
Sandy Thomas testified, page 13:
“Q. According to what members of the. family have said, what is Laura’s, present age?
“A. Well, according to the definite information I could get from her sister, she is coming eighteen.
“Q. By ‘coming eighteen’ what do you mean?
“A. Eighteen years old in November, her next birthday.
“Q. She will be eighteen years old next November — is that what you mean?
“A. Yes, sir.” * * *
“Q. I understood your wife to say that she was about six years old when she came there?
“A. Pive or six years old, I judge, from the size of her.
“Q. Gould she have been older than that, Sandy?
“A. I hardly think so, as I judge her age according to her size.”
(Page 14):
“Q. I ám trying to show that yon don’t know positively.
“A. I said I didn’t know positively.”
“Q. She could be going on nineteen, so far as you know?
“A. I could not say she is or that she is not, but I say, from the time the child came, she looked to be about five or six years old.”
Laura Van Dyke testified, page 15:
“Q. Laura,, how old are you?
“A. Eighteen in November.
“Q. You will be eighteen in November?
“A. Yes, sir.
“Q. You mean this coming November?
“A. Yes, sir, the- 10th.
“Q. November 10th, 1924?
“A. Yes, sir.” * * *
“Q. I asked you how old you were on October 6, 1922.
“A. Sixteen.” * * *
“Q. I asked you if you were fully sixteen, or not, on October 6th, 1922?
“A. I was sixteen.”
(Page 16):
“Q. You were not going on sixteen?
“A. I was going on sixteen— I would be sixteen on November 10th.
“Q. Well, how do you know your birthday?
“A. By what my people told me.
“Q. You have no record to show it?
“A. No, sir.”

Against this evidence as to Laura Van Dyke’s age, defendant introduced in evidence, over plaintiff’s objection, a school record kept for the year 1919, under the requirements of section 30 of Act 120 of 1916.

Defendant cites in support of the admissibility of this record the case of State vs. Gibbs, 153 La. 274, 95 South. 716.

A careful reading of this case shows that in it the Supreme Court was passing on the question of the admissibility and not on the weight of such a record as evidence.

We think that the district judge properly allowed the introduction of this school record as evidence and we also think he properly considered and weighed it as such.

Laura Van Dyke swore positively that she did not give her age to Susie L. Belcher, the teacher who made this record, and there is no evidence whatever in the record to show how or from whom Susie L. Belcher obtained the information on which she made the entry on the record.

According to this record, Laura Van Dyke entered the 5th A Grade of South Alexandria School in September, 1919, and her age is given as 15 years.

The district judge who heard all the evidence and saw the witnesses testify reached the conclusion- that Laura Van Dyke became 18 years of age on November 10th, 1924. All the evidence in the case convinces us that this finding of fact was correct.

It is, therefore, ordered, adjudged and decreed that the judgment of the district court be affirmed.


source: Caselaw Access Project

author: REYNOLDS, J.

license: Public Domain

text:
    No. 2355.
    Second Circuit Appeal.
    COLFAX MOTOR COMPANY, INC., v. A. E. O'QUINN. ANDREW J. BUCKNER, Third Opponent.
    (June 6, 1925, Opinion and Decree.)
    (November 2, 1925, Writ of Certiorari to Supreme Court Refused.)

      (Syllabus by the Editor.)

    1. Louisiana Digest — Judicial Sales — Par. 4, 18.
    A sale of an automobile by a constable without reading a mortgage certificate is a relative nullity.
    2. Louisiana Digest — Judicial Sales — Par. 19.
    A judicial sale • cannot be attacked in a collateral manner in a proceeding in which. the vendee is not a party.
    3. Louisiana Digest — Judicial Sales — Par. 18,. 19.
    Whereas the failure by the constable to read the mortgage certificate makes the sale relatively null, the sale cannot be ignored' by third party or attacked collaterally seizing the automobile in the hand of purchaser at previous sale. A direct action must be brought to have the sale declared null.
    Appeal from Thirteenth Judicial District Court of Louisiana, Parish of Rapides. Hon. R. C. Culpepper, Judge.
    This is an injunction suit by intervenor to prevent further proceedings by plaintiff in its suit against defendant to foreclose a mortgage on an automobile and to have the automobile decreed to be the property of intervenor and the seizure of it in plaintiff’s suit illegal and for damages for illegal seizure.

      L. R. Provosty, of Alexandria, attorney for plaintiff, appellant.
    T. F. Hunter, of Alexandria, attorney for third opponent, appellee.
   REYNOLDS, J.

This is an injunction suit by intervenor to prevent further proceedings by plaintiff in its suit against defendant to foreclose a mortgage on an automobile and to have the automobile decreed to be the property of intervenor and the seizure of it in plaintiff’s suit illegal and for damages for illegal seizure.

Intervenor claimed that he purchased the automobile at a sale made on January 3, 1925, to satisfy a judgment rendered in his favor against A. E. O’Quinn on December 17, 1924, in the Ninth Ward of Justice’s Court of Rapides Parish.

He also alleges that at the time of the execution of the mortgage in favor of plaintiff the car was situated in Grant parish and that the mortgagor was a resident of that parish; that a chattel mortgage was executed and recorded in Grant parish on November 5, 1924, but was not recorded in Rapides parish until Decembei 26, 1924; that the act recorded in Rapides parish does not purport to be a certified copy of the act recorded in Grant parish but purports to be an original instrument passed by the same notary in the presence of the same witnesses.

Plaintiff answered the intervention, denying its allegations and averring that the constable’s sale at which intervenor bought the automobile was null and void because the constable did not obtain and read a mortgage' certifiicate at the time of the sale.

It alleges that its mortgage- was properly executed and recorded both in Grant and Rapides parishes and was a valid and subsisting mortgage on the automobile at the time of the seizure and sale under intervenor’s judgment.

And in reconvention it prayed judgment against plaintiff $85.90.

On these issues the case was tried and .there was judgment in favor of third opponent decreeing him owner of the automobile in controversy and awarding him $50.00 damages and from this judgment the plaintiff has appealed.

OPINION.

Third opponent claims to be the owner of the property in controversy, a Ford automobile seized by plaintiff in a foreclosure suit against A. E. O’Quinn.

Third opponent, in support of his claim of ownership, submitted the following testimony.

A. J. Buckner testified, page 1:

“Q. You allege in your petition, to which you have sworn, that you bought a 22-horsepower Ford automobile at the Justice of the Peace sale, said .car bearing motor number 7393970, of Ward Nine in this parish. Is that true?
“A. Yes, sir.
“Q. Mr. Buckner, you also allege that the defendant in the original suit, A. E. O’Quinn — that you had obtained a judgment against Mr. O’Quinn, in Ward Nine of Rapides parish. Is that true?
“A. Yes, sir.
“Q. Was this car seized under any judgment after you obtained that judgment?
“A. Yes, sir.”
Page 3:
“Q. Was this car, after. you obtained your judgment, duly advertised for sale?
“A. Yes, sir.
“Q. Was this car sold at public auction?
“A. Yes, sir.
“Q. Were there any other bidders on it besides yourself?
“A. Yes, sir, two or three other parties bid on it.
“Q. And it was sold to you?
“A. Yes, sir, as the highest bidder.
“Q. What did you do with the car?
“A. I took it -out to my place on Chester street.
“Q. Now, after taking it out there, how long did you have it before the sheriff seized it?
“A. Some four or five days.”

E. J. Vallery testified, page 11:

“Q. On what date did Mr. Buckner obtain a judgment against Mr. Quinn.
“A. On the 16th.
“Q. On what date did you seize this car?
“A. On December 19th, 1924.
“Q. On what date did you advertise it for sale?
“A. December 22nd, 1924.
“Q. On what date did you sell it?
“A. January 3rd, 1925.
“Q. To whom did you sell it?
“A. A. J. Buckner.”
(Page 12):
“Q. Did you, in this case, sell this car at public auction, at a public sale?
‘‘A. Yes, sir.”
L. C. Huffman testified, page 13:
“Q. You have heard Mr. Buckner’s testimony — 1 don’t want to go over-the whole procedure. You sold this car to A. J. Buckner at public sale, public auction?
“A. I did.” * * *
“Q. Will you explain to the court how you sold this car?
“A. Well, the car was first advertised according to law, as far as I know, and they set the date to sell the car, between 11 and 12 o’clock, in the city court at Pineyille — I offered this car for sale to the last and highest bidder. I had three bidders on this car — Mr. Buckner was one and Mr. O’Neal, Mr. Pat H. O’Neal, was the second, and there was another man but I disremember his name — he bid on it, and Mr. Buckner was the last and highest bidder; after I called it for the third time and no one raised it, I sold the car to Mr. Buckner.” * * *
“Q. Did you advertise this car, or did Mr. Vallery advertise it?
“A. We were both together; Mr. Vallery was with me when we advertised the car, and I signed the advertisement myself; as I was constable, I signed it, in the Town Talk office.”

From this testimony we are convinced that third opponent purchased at a judicial sale made under an order of court having jurisdiction the automobile seized under plaintiff’s foreclosure suit.

Plaintiff alleges that the sale under which third opponent claims was an absolute nullity for the reason that no mortgage certificate was read by the constable at the time of the sale, as required by Article 678 of the Code of Practice, which provides:

“If they are lands, or other objects susceptible of being mortgaged, which are to be sold, the sheriff, after having declared of what they consist, as directed in the preceding article, shall also read, in an audible voice, the certificate which he shall have obtained for this purpose from the office of the register of mortgages in the parish where the sale is made, to show whether there exist any privileges or mortgages on ■ the property offered for sale; provided that in the Parish of Orleans a certifiicate from the register of conveyances, showing that the vendor had not alienated in any other way the property about to be sold by him, shall be read by the sheriff, said certificate to give a clear description of said property; and the sheriff neglecting to procure such certificate before passing any act of sale, shall be liable to a fine of not less than two hundred and fifty dollars, nor more than five hundred dollars, and costs of court, one-half for the benefit of the complainant and other half for the benefit of the State.”

Article 684 provides:

“Consequently, if the price offered in this case by the highest and last bidder is not sufficient to discharge the privileges and mortgages existing on the property, and which have a preference over the judgment creditor, there shall be no adjudication, and the sheriff shall proceed to seize other property of the debtor, if there be any.”

Under Article 678 the penalty for failing to read the mortgage certificate is a fine.

Under Article 684 the penalty provided is if the price offered is not sufficient to discharge all prior mortgages and privileges there shall be no adjudication.

The nullity provided for in Article 684 was held in Ash vs. Chemical, etc., Co., 107 La. 310, 31 South. 656, to be a relative nullity only; and to the same effect were the decisions in:

Loucks vs. Bank, 2 La. Ann. 617.

Robinett vs. Compton, Ibid. 861.

Whitehead vs. Wiley, 9 La. Ann. 214.

Southern Ins. Co. vs. Pike, 33 La. Ann. 823.

A fortiorari a sale by a constable without reading a mortgage certificate is a relative nullity.

Having found that the failure to read a mortgage certificate by the constable would render the sale only relatively null, plaintiff could not legally ignore such sale and seize the automobile in third opponent’s possession.

A judicial sale cannot be attacked in a collateral manner in a proceeding to which the vendee is not a party.

Succession of Fontelieu, 28 La. Ann. 638.

Under cover of an action for partition, attack cannot be made by a ■ plaintiff collaterally on a judicial sale.

Thibodeaux vs. Thibodeaux, 112 La. 906, 36 South. 800.

Errors and mistakes in judicial sales, when the nullity is entirely a matter of private interest, cannot be inquired into collaterally, but- a ' direct action must be brought to have the nullity declared.

Hughes vs. Edson, 129 La. 866, 57 South. 154.

Under the evidence in the case it is conclusively established that at the time A. J. Buckner had the automobile seized under execution against A. E. O’Quinn there was no chattel mortgage on the automobile in favor of Colfax Motor Company, Inc., or its assign or recorded in Rapides parish; and third opponent having had the automobile seized and sold under execution as the property of A. E. O’Quinn when there was no mortgage recorded against it in Rapides parish, his purchase at the constable’s sale conveyed him the property free from any lien and incumbrance.

It is. admitted that $50.00 is a reasonable attorney’s fee.

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


text:
    No. 2176.
    Second Circuit Appeal.
    LEE M. McBROOM v. FROST-JOHNSON LUMBER COMPANY, ET AL.
    (June 6, 1925, Opinion and Decree.)

      (Syllabus by the Editor.)
    1. Louisiana Digest — Taxation—Par. 333.
    A tax sale for taxes sold in the name of a person who did not own it is an absolute- nullity.
    2. Louisiana Digest — Prescription—Par. 12, 20; Taxation — Par. 336, 341/ 377.
    Having remained in actual open, peaceable possession as owner under title translative of property for more than ten years, he is entitled to hold same' as owner free from a null and void tax title.
    Appeal from Fourth Judicial District Court of Louisiana, Parish of Union, Hon. S. L. Digby, Judge.
    This is a suit to have an invalid tax title removed.
    There was judgment for plaintiff and defendant appealed.
    Judgment affirmed.
    Elder & Everett, of Farmerville, attorneys for plaintiff, appellee.
    Fields & Blackshear, of Farmerville, attorneys for defendants, appellants.
   REYNOLDS, J.

This is a suit by Lee M. McBroom against Frost-Johnson Lumber Company and Security Trust Company to quiet plaintiff in his possession of NE¼ of NW¼ of Section 9 Township 23 North Range 1 West, in Union Parish, Louisiana, and to have the cloud on his title caused by the recordation of a tax deed to Summit Lumber Company and its assigns of tbe above described land for unpaid taxes assessed to S. L. Tubb for the year 1904 removed.

Defendants, in answer, claimed title by reason of said tax deed and alleged that said tax deed was perfect and gave tbe tax purchaser, Summit Lumber Company, a valid title, and further alleged that plaintiff is estopped from attacking said tax deed for tbe reason that tbe same is more than three years .old.

On these issues tbe case went to trial.

There was judgment for plaintiff, and defendants appealed.

OPINION.

Tbe evidence established- that J. H. McBroom acquired tbe property in dispute by Notarial Act, duly recorded on November 23, 1903. Under tbe law tbe property was or should have been assessed to him for tbe year 1904, as be -was tbe record owner of it, and tbe assessment of tbe property to S. L. Tubb for tbe year 1904 was null and void.

J. H. McBroom • was assessed in Union parish for tbe year 1904 with 320 acres of land and bis tax receipt showing payment of taxes for that year was introduced in evidence.

Tbe property in dispute was sold in 1905 for taxes of 1904 under ■ assessment to S. L. Tubbs, at which time not S. L. Tubbs but J. H.' McBroom was tbe record owner.

It is therefore apparent that tbe tax sale to Summit Lumber Company was for taxes not properly assessed and that therefore tbe tax deed was an absolute nullity.

Slattery vs. Heilperin, 110 La. 86, 34 South. 139.

Cain vs. Herndon, 107 La. 599, 32 South. 33.

Hunt vs. Abel, 154 La. 962, 98 South. 434.

Font vs. Gulf States Land Co., 47 La. Ann. 272, 16 South. 828.

Woodfolk vs. Fonbene, 15 La. Ann. 15.

In re Baton Rouge Oil Works, 34 La. Ann. 255.

Breaux vs. Negrotto, 43 La. Ann. 427, 9 South. 502.

Charbonnet vs. State Realty Co., 155 La. 1044, 99 South. 865.

J. H. McBroom and those bolding under him remained in open, peaceable, actual, notorious possession as owners of said land after tbe tax sale; rightfully, under the impression that all taxes on same bad been paid, for J. H. McBroom held bis tax receipt for bis taxes for tbe year 1904; and the tax purchaser, Summit Lumber Company, made no effort to take possession of tbe property or any part of it.

Hence defendant’s claim of title under their purchase from Summit Lumber Company must fail.

Tbe Supreme Court, in Bartley vs. Sallier, 118 La. 93, 42 South. 657, says: “One fails in bis claim as tax owner where be has never bad possession sufficient to sustain bis title and to bring it within tbe prescriptive period of Article 233 of tbe Constitution.” (Now Article X, Section 13, Constitution of 1921.)

Plaintiff and bis authors in title having remained in actual open, peaceable possession as owners under title translative of property for more than ten years, be is entitled to hold tbe same as owner free from a null and void tax title and to have said tax title and all titles emanating from the same cancelled from the record as a cloud on bis title.

Gomez vs. Wilde, 10 Orl. App. 213.

Defendants insist that plaintiff is es-topped from setting up tbe nullity of tbe Summit Lumber Company’s tax title because it is more than three years old; but this contention amounts to nothing more than a plea of three years’ prescription in support of defendants’ title and that plaintiff cannot prevail even if, under the evidence, plaintiff and his authors in title remained continuously in actual, open, notorious possession of the land as owners, before the tax safe, at the time of the tax sale and since the tax sale.

When a tax sale is made against a person assessed who had no title to the land, the sale is null.

Delaroderie vs. Hillen, 28 La. Ann. 537.

Desorreaux vs. Moylan, 26 La. Ann. 730.

The prescription of three years under Act 105 of 1874, paragraph 5, like the prescription of five years provided in Civil Code ■ article 3543 cannot defeat an action of nullity founded upon a radical defect in a tax sale such as that the property was sold under an assessment made in the name of a person who did not own it.

Gilmore vs. Frost-Johnson Lumber Co., 139 La. 354, 71 South. 536.

Plaintiff insists that defendants are es-topped from disputing his ownership of the property because of the fact that since the date of the tax sale relied on by defendants, defendants or their authors in title purchased from plaintiff a right of way across the forty acres in dispute. Under our view of the case we have not found it necessary, to pass upon plaintiff’s plea of estoppel.

For the reasons assigned, the judgment of the lower court is affirmed.


author: CARVER, J.

text:
    No. 2089
    Second Circuit Appeal
    MRS. JEANNE LEHMAN v. REMO ABRAHAM
    (June 12, 1925, Opinion and Decree.)

      (Syllabus by the Editor.)

    1. Louisiana Digest — Party Wall — Par. 7.
    Where one makes use of a party wall for lateral support and to prevent the roof from leaking, he must pay for one-half of the wall under Civil Code, Articles 675, 676 and 677.
    Appeal from Thirteenth Judicial District Court of Louisiana, Parish of Rapides, Hon. L. L. Hooe, Judge.
    This is a suit to recover one-half the cost of a brick party wall.
    There was judgment for plaintiff and defendant appealed.
    Judgment affirmed.
    T. A. Carter, of Alexandria, attorney for plaintiff, appellee.
    G. P. Whittington, of Alexandria, attorney for defendant, appellant.
   CARVER, J.

Plaintiff sues defendant for three hundred and sixty seven dollars, being one half of the cost of a brick wall which, she claims, was made a party wall by defendants in remodeling a building on the property adjoining. Defendants deny making the wall a party wall and claim that they are not using it. From an adverse judgment defendants appeal. When Mrs. Lehman built the house of which the wall in question is a part, the adjoining lot whs vacant and was owned by one Dow. She built half the wall (about six inches of it, besides part of the foundation) on Dow’s side of the division line. The proof does not show how far this foundation extended. Subsequently Dow erected a wooden building on his lot and thereafter sold lot and building to defendants who remodeled the building about four years afterwards, putting brick walls in the front and back, lowering the side walls by cutting off part of the bottom, and changing the pitch of the roof from the front to the rear. As originally constructed, the side of the Dow building next to plaintiff’s was made of 2 x 4 studs, ceiled on Dow’s side but without weatherboarding. The studs were placed on the foundation of plaintiff’s wall, either direct or on intervening plats and rested against it; but otherwise there was no attachment between the walls. In the remodeling the witness' Ball testifies that the end of defendants front brick was placed on plaintiff’s foundation and that the roofing on defendant’s building is attached to plaintiff’s wall by means of asphalt or tar, apparently in order to make a leak proof joint. He is corroborated as to the roofing attachment by Sam Testa, who states place was made for the placing of the roofing paper and tar poured over it. These witnesses testified from inspection made shortly before the trial and their testimony is not offset by that of Israel West, who did the remodeling but had not viewed the premises since finishing the job and therefore testified not to present but to previous conditions. Leaving out of view defendants use of the foundation because of its projecting on defendant’s property beyond the permissible distance, it appears that defendants are making use of the plaintiff’s wall for lateral support to their building and also to prevent their roof from leaking. This is at least as much use as was held in Costa vs. Whitehead, et al. 20 La. Ann. 342, sufficient to render the user liable to the owner of the wall for one-half its value.

The judgment of the lower court is affirmed.


author: ODOM, J.

text:
    No. 2172
    Second Circuit Appeal
    EULICE P. BORDELON v. CHARLES LINZAY, ET AL.
    (June 6, 1925, Opinion and Decree)

      (Syllabus by the Editor.)

    1. Louisiana Digest — Pleading—Par. 62.
    A petition which alleges that the lessor and justice of the peace colluded and conspired together to .use the office of magistrate to intimidate and oppress an ignorant tenant and by threats forced him to leave the leased premises, states a cause of action against which an exception no cause of action will be dismissed.
    Appeal from the Thirteenth Judicial District Court of Louisiana, Parish of Rap-ides, Hon. L. L. Hooe, Judge.
    This is a suit for damages by a plaintiff, lessee, against the lessor and justice of the peace for illegally intimidating plaintiff to leave the leased premises. Defendants filed an exception no cause of action which was maintained. Plaintiff appealed.
    Judgment reversed and case remanded to be proceeded with according to law.
    Gus A. Voltz, of Alexandria, attorney for plaintiff, appellant.
    T. F. Hunter, of Alexandria, attorney for defendant, appellee.
   ODOM, J.

This is a suit for damages by the plaintiff, Eulice P. Bordelon, against Charles Linzay, lessor, and Percy Irion, a justice of the peace, for illegally intimidating plaintiff, lessee, to- leave the leased premises.

In the year 1922 the plaintiff leased land from the defendant, Charles Linzay, and made a crop of cotton and corn thereon during that year.

He alleged that on the 9th day of October of that year, before he had gathered his crop and before the expiration of the lease, Linzay, the lessor, ordered him to appear before Percy Irion, a justice of the peace, at Cheneyville, Louisiana.

He alleges that there was no suit filed against him by the said Charles Linzay, lessor, but that said Linzay and said Percy Irion, justice of the peace, colluded and conspired together to perpetrate a fraud upon him and to intimidate him; that he w'as notified to appear before said justice of the peace on October 11 and that he did appear and was then confronted by said Charles Linzay and that while said Irion, justice of the peace, was present, said Linzay conducted the proceedings with the consent and approval of said Irion; that none of the formalities of law were complied with, no witnesses sworn; and that he was given no opportunity to defend himself, and that when he requested information from the said Irion, the magistrate, as to the nature of the proceeding, said magistrate informed him that it was none of his business; that he was finally told by the justice of the peace that there was judgment against him and he was then and there told by both the magistrate and the lessor that he would have to vacate said Linzay’s premises at once or not later than October 16, 1922, or his furniture and other property Would be- thrown into the public highway.

That during the said trial “all forms of intimidation toward him were used by the said Charles Linzay and said Percy Irion” and “having been ordered and threatened by the said Charles Linzay and the said Percy Irion to remove from the premises at once, your petitioner proceeded to move off of the said Charlqs Linzay’s premises”.

And he further alleges that Whereas he was told by the justice of the peace that there was judgment against him and that he must move at once, he sets up that no service of papers whatever was made on him and that the pretended trial was no trial at all and that the said Charles Linzay and the said Percy Irion had colluded and conspired to use and did use the office of justice of the peace to intimidate your petitioner.

And he especially alleges, in paragraph 13 of his petition, that he is an illiterate and ignorant man, and that having been so threatened by said justice of the peace and the said Linzay he moved from the premises - of said Linzay immediately after said pretended and fraudulent trial on October 11, 1922, and that the forcing him to move has caused him great damage.

Both defendants tendered exceptions of no cause and no right of action, which were sustained by the lower court and his suit dismissed. Plaintiff has appealed.

We think the lower court erred in holding that plaintiff’s petition sets out no cause of action. Taking plaintiff’s allegations as true, which we must do for the purposes of the exception, the defendant, Linzay, had no right to demand possession of the leased premises for the reason that the term of the lease had not expired and the crops had not been gathered. The most that he could demand was that his lessee, the plaintiff here, give up the leased premises when the crops Were harvested, and not then if harvested prior to the end of the year, unless there was an understanding to that effect.

And as to the defendant, Irion, justice of the peace, he had no right to proceed without having served notice on the lessee.

But it is alleged that these defendants conspired and colluded together to intimidate the lesee, plaintiff here, and that they did use the office of justice of the peace to intimidate him and that without observing the ordinary and essential rules of practice the justice of the peace informed plaintiff that there was judgment against him and that both defendants told him that he must get off Linzay’s premises at once and that if he failed to do so his goods would be thrown into the public highway.

According to plaintiff’s allegations, which we must take as true, there was a gross and flagrant prostitution of the office of magistrate, and plaintiff specifically alleges that on account of these illegal proceedings anh on account of the threats and intimidations of both Linzay and the justice of the peace, Irion, he did leave the premises and that he was thereby damaged.

Plaintiff alleges that he was not even permitted to defend himself and that when he asked for information as to the proceedings he was told by the magistrate that it was none of his business.

Plaintiff alleges that he is illiterate and ignorant and that upon being so threatened he moved and that he has been damaged and he now seeks to recover the amount thereof.

We think that if the lessor and justice of the peace colluded and conspired together to use the office of magistrate to intimidate and oppress an ignorant tenant and by threats forced him to leave the leased premises, they should pay whatever amount the lessee was damaged on account thereof.

Counsel for defendants urges that the lessee should have appealed from the judgment and because he did not appeal he has no remedy. But if his allegations are true, there was no judgment from which to appeal.. We do'not agree with counsel on this point.

According to plaintiff’s allegations, he has been damaged and his damage resulted from' a conspiracy between defendants to illegally eject him by using the office of justice of the peace.

We think the petition sets out a cause of action.

For the reasons assigned, it is ordered, adjudged and decreed that the judgment appealed from be reversed, that the exceptions of no cause of action and no right of action filed by each of the defendants be overruled, and that this case be reinstated on the docket of the Ninth Judicial District Court of Louisiana, formerly the Thirteenth Judicial District, for the Parish of Rapides, and be proceeded with according to law.

The costs of this appeal to be paid by defendant; all other costs to await 'the final result.


text:
    No. 2184
    Second Circuit Appeal
    LEONCE LABORDE v. LOUISIANA RAILWAY AND NAVIGATION COMPANY
    (June 6, 1925, Opinion and Decree)
    (July 11, 1925, Rehearing Refused)

      (Syllabus by the Editor.)

    1. Louisiana Digest — Corporations — Par. 209.
    Under Section 9, Article 165 of the Code of Practice, “in all cases where any corporation shall commit trespass, or do anything for which an action for damages lies, it shall he liable to be sued in the parish where such damage is done or trespass committed”.
    2. Louisiana Digest — Pleading—Par. 57.
    Where plaintiff alleges the number of cross ties sold defendant and their value per tie, the allegation is direct and spe- . ciñe and an exception of vagueness direct against it will be overruled.
    3. Louisiana Digest — Pleading—Par. 62.
    Where the allegation of plaintiff’s petition, if true clearly entitles him to judgment an exception no cause of action will be overruled.
    4. Louisiana Digest — Evidence—Par. 29.
    It. is one of the first principles of justice not to presume that a person has acted illegally.
    5. Louisiana Digest — Evidence—Par. 31.
    Good faith is always presumed.
    6. Louisiana Digest — Evidence—Par. 54.
    Where one party charges another with culpable omission of breach of duty, the person who makes the charge is bound to prove it, even though it involves a negative.
    Appeal from the Fourteenth Judicial District Court of Louisiana, Parish of Avoyelles, Hon. S. A. Bordelon, Judge.

      Plaintiff sued for forty-five cents per tie for-344 ties alleged to have been taken by the defendant railroad company. Defendant after filing exceptions of want of jurisdiction and vagueness and of no cause of action, filed answer denying all the allegations of plaintiff’s petition.
    The case was tried on these issues and there was judgment for the plaintiff for the amount sued for.
    Defendant appealed.
    Judgment reduced and affirmed.
    Porterie & Bordelon, of Marksville, attorneys for plaintiff, appellee.
    Peterman, Dear & Peterman, of Alexandria, attorneys for defendant appellant.
   OPINION.

REYNOLDS, J.

The exception of lack of jurisdiction was properly overruled; for plaintiff alleged that defendant refused to accept his cross-ties and later took same without authority and appropriated them to its own use, and that said illegal and wrongful act of defendant was a trespass.

Section 9 of Article 165 of the Code of Practice provides:

“In all cases where any corporation shall commit trespass, or do anything for which an action for- damages lies, it shall be liable to be sued in the parish where such damage is done or trespass committed.”

Defendant’s exception of vagueness is not Well founded for the reason that plaintiff alleges that defendant took without authority 344 cross-ties-belonging to plaintiff and that said ties were worth 45 cents per tie. This allegation is direct and specific and if plaintiff can establish it by legal evidence he is certainly entitled to recover.

The defendant’s exception of no cause of action is not sound for the reason that if all the allegations of plaintiff’s petition are true he is clearly entitled to judgment.

This brings us to merits of the case.

We have carefully read all the evidence and we have been unable to find any evidence to establish it as a fact that the defendant took any of plaintiff’s cull cross-ties. It does show that plaintiff caught Joe Kirby and Will Garrett with some ties that the defendant company had not bought, on push cars. As to these ties, Joe Kirby testified, page 24, as follows:

“Q. Did you take any that were not branded?
“A. I had them on my push car and Mr. Laborde came and spoke to me and told me that they were not branded and so I unloaded them there and took the ones that were branded.”
And Will Garrett testified, page 26:
“Q. Were some of the ties not branded?
“A. Yes, sir, he told us they weren’t branded; we never thought of looking to see if they were branded. Some were branded and some weren’t; they were mixed up. The ones that were not branded Joe threw them off.”

Prom these facts plaintiff insists that the presumption and legal conclusion is that the- defendant company took all of the cross-ties shown by plaintiff to have disappeared. We cannot subscribe to this presumption. The Supreme Court said in the Succession of Herber, 117 La. 239, 41 South. 559:

“It is one of the first principles of justice not to presume that a person has acted illegally.”

Good faith is always presumed.

Pons vs. Yazoo and M. V. R. R. Co., 131 La. 313, 59 South. 721.

Where one party charges another with culpable omission of breach of duty, the person who makes the charge is bound to prove it, even though it involves a negative.

Baird vs. Brown, 28 La. Ann. 842.

Plaintiff claims to have had about 600 cull cross-ties on defendant railway’s right-of-way, and. lie testified that he sold about 246 to a company in Alexandria. There is no witness of plaintiff’s who made a close examination of the right-of-way and pretends to testify to how many cull ties, if any, were still on the right-of-way at the time the suit was filed, and wfe are unable to tell from the evidence of the plaintiff the number of cross-ties that were actually missing from the right-of-way of the defendant company.

The witnesses for defendant, Whitlock, Faust and Gairy, found at Rexmere 319 cull ties, or ties not marked or branded, which, with the 246 cull ties sold by plaintiff, may account for 565 of plaintiff’s 600 cull ties left on defendant’s right-of-way. So we are unable to say with any degree* of certainty how many of plaintiff’s cull ties were taken as shown by the testimony of plaintiff.

Defendant admits that it used 15 or 20 ties that were on its right-of-way that belonged to plaintiff in repairing a wreck, and defendant’s witnesses, Robert Guillory, Mr. Faust and Andrew Gairy, who walked the right-of-way from Bordelonville to one-half mile below Rexmere, found 15 ties that they thought might have come from plaintiff’s cull ties; and we are of the opinion that, from defendant’s admissions in its evidence, plaintiff is entitled to judgment for the value of 35 cross-ties • at 45 cents per tie, or $15.75.

It is therefore ordered, adjudged and decreed that the judgment of the lower court be set aside, and it is now ordered, adjudged and decreed that the plaintiff, Leonce Laborde, do have and recover judgment against the Louisiana Railway and Navigation Company for the sum of fifteen and 75-100 dollars with legal interest thereon from the date hereof.

It is further ordered, adjudged and decreed that plaintiff’s demand as to the other 309 cross-ties herein sued for be dismissed as in case of non-suit.

The costs of the lower court to be paid by defendant; those of this court to be paid by plaintiff.


text:
    No. 2220
    Second Circuit Appeal
    GEORGE C. VAUGHAN & SONS, INC., v. L. V. BURNAMAN
    (June 6, 1925, Opinion and Decree.)

      (Syllabus by the Editor.)

    1. Louisiana Digest — Pleading—Par. 40, 45.
    Under the Code of Practice 327, payment and compensation are defense that must be specially pleaded.
    2. Louisiana Digest — Pleading—Par. 41.
    Where the defendant denies plaintiff’s petition but admits that he owes plaintiff a small amount which he tenders, the answer cannot be considered a special plea of payment of compensation.
    3. Louisiana Digest — Pleading—Par. 41, 45, 113.
    Evidence of payment of compensation is inadmissable where the defendant has not made a special plea to that effect.
    Appeal from the Thirteenth Judicial District Court of Louisiana, Parish of Rapides, Hon. J. A. Williams, Judge.
    This is a suit on an open account for timber and other material. The answer filed by defendant is a denial coupled with an admission that the defendant owes plaintiff a small amount which * he tenders: There was judgment for plaintiff and defendant appealed and plaintiff filed a' motion to amend the judgment by disallowing a $20.00 additional credit.
    Judgment amended and affirmed.
    Provosty and West, of Alexandria, attorneys for plaintiff, appellee.
    T. A. Carter, of Alexandria, attorney for defendant, appellant.
   CARVER, J.

Plaintiff sues for $396.79 on open account for lumber and other material alleged to have been furnished defendant for building a house on his plantation.

Plaintiff claims a materialman’s lien on the house and one acre of ground on which it is situated.

The defense is a denial of each paragraph of plaintiff petition coupled with an admission that defendant owes plaintiff $1.49, which he tenders. He does not say-how he comes to owe this.

Annexed to the plaintiff’s petition is an itemized account of the lumber and other articles alleged to have been furnished running from September 7th to October 12th, 1920, and aggregating $696.79, but credited with $300.00 paid in December, 1920, thus leaving a balance of $396.79.

The itemized account and a sworn statement of its corrections had been recorded in the mortgage book of Rapides parish on April 25, 1921, and on the same day a copy was sent to defendant by registered mail (Scott, page 55).

On the day of trial plaintiff entered' a remittitur acknowledging further credits aggregating $207.50, one of these credits being for 100 barrels of corn at 60 cents a barrel. Deducting these credits, plaintiff’s claim was reduced to $189.29.

The District Judge gave judgment for this amount, less $20.00 additional credit for 20 cents per barrel on the 100 barrels of corn. He also recognized plaintiff’s lien on the house and acre of ground.

Defendant appealed, and plaintiff filed a motion to amend the judgment by disallowing the $20.00 additional credit.

As a witness, defendant admitted getting all the material charged, except a bill of $39.90 of October 5, 1920, which he says he did not get.

Plaintiff objected to this testimony of defendant denying that he got the $39.90 bill, on the ground that it was an effort to prove compensation, which he had not plead. But the District Judge properly overruled the objection.. It was not proof of compensation but testimony to support his denial of the fact that he had received the materials covered by the bill.

This bill is made out to Alexandria Cotton Oil Company but contains a notation as follows:

“Error chg S-B L B. Burnaman.”

The bill is approved by Mayeux, who was defendant’s carpenter, who signed other slip approvals and who defendant admits (page' 41) signed them with his implied consent.

Glaze, manager of plaintiff company, explains (page 64) that the making out Of this bill in the name of the Alexandria Cotton Oil Company was an error which was corrected as soon as discovered and that it should have been made to Burnaman.

Defendant says he did not get this bill, but it is evident he mistook what the bill was for and thought it was for heavy stuff. He says (page 33):

“I got the lumber from Vaughan Lumber Company to finish the house that I had started, bought siding, front and finishing, such as one by ten (1 x 10) door casing, window casing, and such as that. I didn’t buy. any frame stuff or heavy stuff at all. I got all except the lumber on ticket dated Ocotber 5th, 1920, marked plaintiff’s Exhibit ‘11’.”

The bill of October 5, 1920, though, is not for heavy stuff. The items are as follows:

7 window, 10 x 14, 12 lights, ________________________________ $ 4.80, 33.60

4 2 x 4_12 No. 1 Sisle 32 40.00, 1.28-

1 1 x 10-14 No. 1. S & S 12 50.00 .60

200 ft. screen mldg. 2.40

168 1-4 round................ 2.02

Total ___________________________________________________$39.90

None of this is heavy stuff, unless the 2x4 may be so called.

The testimony of Glaze, manager for plaintiff, is to the effect that all the lumber charged for, including this bill for $39.90, was sold and delivered to defendant.

The District Judge regarded this item as proven and so do we.

The main dispute is over the credits allowed by plaintiff, the defendant claiming that four tons of hay credited at $15 per ton should have been at $30 per ton and that the 100 barrels of corn credited at $60 should have been 110 ■ barrels at $1 per barrel.

Most testimony was taken pro and con as to these matters, all of which was objected to by plaintiff on the ground that they were efforts to prove payment or compensation whoch could not be doñe because payment or compensation was not plead. We think this objection should have been sustained. It is well settled that payment and compensation are defenses that must be specially plead.

Code of Practice,. 327.

6 Louisiana Digest, pages 21 and 25, verbo Pleading, paragraphs 40 and 45.

The fact that the effort was not to prove additional articles delivered to plaintiff but only bigger prices than those allowed by plaintiff does not change the fact that at last the effort was to show: payment or compensation.

If a credit of a certain amount be allowed which the debtor claims should be a larger amount, the claim is in effect a claim of additional payment which as well as any other claim of payment has to be specially plead.

In the brief of defendant’s counsel he states:

“I desire now to direct your attention to one of the bills that the Vaughan Lumber Company now has a judgment against the defendant for, and submit it to you for your consideration. The'particular bill that I wish to direct your attention to does not seem to be in the record but you will find reference to it in the record.
“You will find from the testimony, however, that the dray receipt for forty some odd dollars, made out to Burnaman. Error, ‘while the slip is not in the record the admission and testimony is in the record and yet the plaintiff has a judgment against the defendant covering that amount.”

We have checked over the slips filed in evidence and none of them are missing. They are marked, respectively, 2 to 11 corresponding, item by item, with the statement marked exhibit 12.

We think counsel must have reference to the bill of $39.90 above referred to, which bill is not absent from the record nor is the notation on it what counsel understands it to be but the .very reverse of that. He seems to understand that it was a bill made out to Burnaman but intended for some one else. Whereas it was made out to the Alexandria Cotton Oil Company when it should have been made out to Burnaman.

In counsel’s brief in another place he asks that we credit Burnaman “for the forty-six ($46.00) dollars worth of lumber returned to George C. Vaughan & Sons, Inc.” We find no testimony in the record respecting any return of lumber unless it be that Sol Weil, an account whom defendant got to audit the account, who testified, page 50:

“Q. Did Burnaman make claim for thirty-nine dollars and ninety cents ($39.90) for lumber returned?
“A. Yes, sir.”

On the report made by Weil there is only one item of $39.90 complained about which is the bill of October 5 above mentioned ; no claim being made thereon for lumber returned. Defendant himself does not testify that any lumber was returned. We are satisfied that Weil’s testimony related to the bill of October 5th.

In counsel’s brief he also complains about dray receipt or bill number covering 971 feet of lumber on the back of which is a complaint signed by Burnaman to the effect that the lumber covered by the bill had been sold him at $55.00 per 1000 and was incorrectly charged $85.00. He concludes his complaint by saying: “Change your bills and send them back and I will sign them.”

The bill, however, does not show, to be $85.00 per 1000 but $65.00, which $65.00 is written over something that was 'erased. The amount of the bill, too, $63.10, shows to be something written over previous figures. The slip bears the signature of Burnaman. It is perfectly evident that although the bill was at first rendered at some erroneous price and amount, yet on plaintiff’s attention being called to it, it was corrected, not to the $55.00 which Burnaman claimed but to $65.00 per 1000; which correction was evidently satisfactory to' Burnaman, because he then signed the bill which evidently he had not previously done.

Defendant’s counsel argues against the general correctness of plaintiff’s claim by commenting on the fact that it sued for $396.79 and, on the day of trial, entered a remittitur reducing the claim to $189.29. This is satisfactorily explained, though, by plaintiff’s manager, Glaze, who testifies that the account was $396.79 at the time of filing the lien and that the attorney who drew up the suit brought it for that amount, not knowing of the payments made between the time the -lien was filed and the time the suit was brought. Plaintiff, though, before the beginning of the trial entered a remittitur for all payments made in the meantime. We find nothing suspicious about’ all this.

This disposes of all the matters about which defendant’s counsel complains, except a letter from plaintiff showing that its claim was $336.79, which he says is a different amount from that sued for.

Defendant’s counsel is in error in thinking that this letter was written just prior to the filing of the suit. The suit was filed in January, 1923, and the letter was written November 18, 1921. At .the time it was written, the account was what the letter claimed, namely, $336.79, as follows:

Total merchandise ______________________: — $690.79

Paid, in December, 1920, $300.00

Paid, in May and June,

1921, ________________________________________$60.00 360.00

Leaving _________________________________I__________$336.79

The statement marked “Defendant 6” shows this $60.00 payment (four tons of hay) was in May and June, 1920; but the receipt for two tons of hay is in evidence and is dated June, 1921, instead of 1920. We construe the evidence of Davis to mean that the other two tons were in May, 1921, instead of 1920.

The District Judge evidently took the plaintiff’s version as to the quantity of corn, nameiy, 100 barrels, but split the difference between plaintiff and defendant as to the price. Plaintiff allowed 60 cents a barrel and defendant claimed one dollar As stated above, though, we think the evidence as to payments, other than those admitted by plaintiff, was inadmissible, wherefore we think it was error to allow the additional credit of $20.00 for the corn.

For these reasons, it is decreed that the judgment of the lower court be amended by striking out the credit of $20.00 allowed therein and that as thus amended it be affirmed.


text:
    No. 2244
    Second Circuit Appeal
    HUMBLE OIL AND REFINING COMPANY v. EDWARD MICHIELS, ET AL.
    (June 6, 1925, Opinion and Decree)

      (Syllabus by the Editor.)

    1. Louisiana Digest — Payment—Par. 21, 23.
    The court cannot presume in the absence of all proof that a check applied to the account sued on when it could have applied on another transaction especially where the real defense in the suit is inconsistent with this claim.
    2. Louisiana Digest — Appeal—Par. 625.
    The finding of the trial court on matters of fact unless manifestly erroneous are affirmed.
    Appeal from the Thirteenth Judicial District Court of Louisiana, Parish of Rapides, Hon. John A. Williams, Judge.
    This is a suit to collect a bill for gasoline and supplies alleged to have been furnished the defendant.
    There was judgment for plaintiff and defendant appealed.
    Judgment affirmed.
    T. A. Carter, of Alexandria, attorney for plaintiff, appellee.
    Gus A. Voltz, of Alexandria; attorney for defendant, appellant.
   CARVER, J.

Plaintiff sues defendants, Edward Michiels and Joseph Michiels, a partnership conducting business under the name of Central Garage and Filling Station, .for $239.70 for gasoline and other supplies alleged to have been furnishd them.

Defendant’s original answer admitted having dealt with .plaintiff but says they have paid for all they purchased, except $89.35, which they admit owing. They do not say. how much they bought or how much they paid.

They. subsequently filed a supplemental answer pleading error in making the first admission and saying the amount that they owed was only $29.85. They further say they sold out their filling station to one Glasscock on May 26, 1923, and bought nothing from plaintiff after that date.

On page 49 of the evidence plaintiff judicially admits that no sale was made after May 26, 1923.

The plantiff filed an itemized account showing purchases on six days in September, three days in October, and one day in November, 1921, totalling $254.85, without any credits. On December 5, 1921, was credited a check for $153.25, but this was charged back as unpaid on December 14, 1921.

The account then is credited as follows:

January 24, 1922 ____________________________________$ 50.00

April 8, 1922 ............................................ 50.00

July 10, 1922 ........................................... 50.00

October 2, 1922 ....................................... 50.00

But this last check was charged back as unpaid on October 22, 1922.

On November 7, 1922, is a credit of another check for $25.00.

On December 23, 1922, is a debit for 40 gallons of oil, $14.70, and December 30, 1922, is a credit of $14.70, evidently in payment of the purchase of December 23.

On January 27, 1923, March 6, 1923, and March 31, 1923, are credits of $25.00 each. Thus it appears that down to March 31, 1923, were total debits of $269.55 with total credits, exclusive of the checks unpaid and charged back, of $239.70, leaving due on March 31, 1923, $29.85.

Then the account shows debits as follows :

May 21, 1923, 340 gallons of gasoline~$59.50

May 23, 1923, 510 gallons of gasoline.. 89.35

It also appears that except for the $14.70 of December 23, 1922, there was no debit between November 8, 1921, and May, 1923, though during this time' ten checks on account had been given, two of which were charged back.

Plaintiff’s manager, Lillia, testified to the correctness of the account rendered and introduced receipts of the' Central Garage and Filling Station signed by various parties covering each item of the purchases shown on the debit side of the account.

The dispute really sifts down to the last two items. We understand defendant’s admission of indebtedness to cover the account, except these two. It is true they endeavor to dispute various items of gasoline receipted for by one Price on the double ground that Price did not sign the receipts and also that he had no authority to do so. But the evidence failed to convince the district judge of either claim and we think he made no error in this respect.

Statements were rendered them from time to time showing the amounts charged against them and instead of disputing the account they kept making partial payments on it.

We think the lower judge was correct also in holding defendants liable on the last two items. They were covered by three receipts, two purporting to be signed by one Ashton Michiels, the son of one of the defendants, and one signed as follows: “Michiels Filling Station, M.”

Plaintiff’s manager, Lillia (page 34), swears to the signatures of Ashton and says the other was signed by Joe Michiels.

Ashton testified, but did not dispute Lillia’s testimony.

Joe did not testify.

Edward, his father, testified and denied' purchasing or authorizing the purchase of the bill of May 23, but he does not deny the signatures of either Ashton or Joe and admits Ashton’s authority to purchase.

Defendant introduced other statements rendered them by plaintiff’s Houston office in August and September, 1923, on which the item of $89.35 of May 23, 1928, was not included, and that of $59.50 was put down as of date June 2, 1923, instead of May 21, 1923. But plaintiff’s manager, Lillia explains this by saying he had been prohibited from selling defendants on credit, so did not report the sale of $89.35 to the Houston office until after the other statement had been made out. The error in the date of the $59.50 item was explained, he says, by using the tank wagon delivery date on one of the statements and the invoice date on the other. In this he seems corroborated by the tank wagon receipts themselves, which show that the bill of $59.50 was receipt 640,884, and the bills for $29.75 and, $59.50, aggregating $89.35, of May 23, 1923, were receipts 640,889 and 640,891. Furthermore, he says, as shown above, that the receipt for the $59.50 bill was signed by Joe Michiels, who does not dispute this. The mistake in the date is therefore immaterial.

Beyond this, defendants’ first admission was that they owed $89.35, which manifestly was the $29.85 balance on the old account and the $59.50 shown on this bill.

It is true, they seek in their supplemental answer to withdraw this admission as made in error, but there is no proof that it was made in error, and in our opinion the error was not in making but in withdrawing the admission.

Defendants introduced a check of Alexandria Refining Company for $117.47, dated May 31, 1923, for which the account shows no credit, and defendant Edward Michiels in one place says defendants should have credit for it on the account, but he frankly admits elsewhere that he did not know whether it was given for cash purchases or to replace other checks given but not paid or as a credit on 'the account. In view of the fact that there were other transactions to which this might have applied, we cannot presume, in the absence of all proof, that it did apply to the account sued on, especially as the real defense in the suit seems inconsistent with this .claim. That defense, as shown above, is that they did not put the last two items on the account. If they did not, they would owe only $29.85.

The judgment of the lower court is therefore affirmed.


text:
    No. 2321
    Second Circuit Appeal
    FOSTER COUVILLION v. G. W. ZODER
    (June 6, 1925, Opinion and Decree)

      (Syllabus by the Editor.)

    1. Louisiana Digest — Automobiles—Par. 7; Negligence — Par. 1, 25.
    In an automobile collision where the evidence shows that both the plaintiff and defendant were negligent the plaintiff' can not recover nor can the defendant recover on a reconventional demand.
    2. Louisiana Digest — Automobiles — Par. 4 (d):
    In an automobile collision where it is shown that the speed of the plaintiff was between thirty-five and forty-five miles per hour which was against the law, the plaintiff is guilty of negligence and cannot recover for the damages done to him or his car.
    3. Louisiana Digest — Automobiles—Par. 7; Negligence — Par. 25.
    In an automobile collision where it is shown that the defendant swerved his car to the left of the road in front of plaintiff’s rapidly approaching car, and thereby caused the plaintiff to think that defendant was turning into that side, the defendant is guilty of contributory negligence and cannot recover in reconvention of the plaintiff for damages to himself or his car.
    (Civil Code, Art. 2315. Editor’s note.)
    Appeal from the Thirteenth Judicial District Court of Louisiana, Parish of Rapides, Hon. L. L. Hooe, Judge.
    In this case, Poster Couvillion sues' defendant, G. W. Zoder, for $1335.00 damages for injury caused in an automobile collision. Defendant denies liability and prays, in reconvention, for $1524.00 damages' caused by said collision.
    On this issue the case was tried. There. was judgment in favor of defendant, rejecting plaintiff’s demand at his cost,, and judgment in favor of plaintiff rejecting defendant’s demand in reeonvention. Plaintiff appealed. Defendant answered the appeal.
    Judgment affirmed.
    Peterman, Dear and Peterman, of Alexandria, attorneys for plaintiff, appellant. .
    White, Hglloman & White, of Alexandria, attorneys for defendant, appellee.
   OPINION.

REYNOLDS, J.

The question to be decided is essentially one of fact.

Plaintiff testified, page 11:

“Q. Por what distance ' is ' that road straight below the packing house, down the river?
“A. I imagine it is about a half-mile between the packing house and the first curve.
“Q. And from- the packing house toward Alexandria? .
“A. About a half-mile, may be not quite that much.
“Q. How far were you from Mr. Zoder when you first saw him?
“A. Well, I wás a good distance, I don't , know but I imagine about a • quarter of a mile I could see his car coming. ' '
“Q.- Now, I understood you to tell your counsel that when you first saw him he .Was on his left-hand side of the road?
“A. Yes, sir, when I .first saw him.
“Q. That was prior to the time that he made the turn into the gate?
“A. Yes, sir.
Page 12.
“Q. How far were you from him when he started to make the turn?
“A. Oh, when he started to make the turn I was right within twenty feet of him.”

Lee Couvillion, a brother of plaintiff, testified, page 21:

“Q. HoW far away was it when you first observed it?
“A. A pretty good distance.
“Q. Could you give an estimate as to how far you think it was away from you when you first observed it?
“A. Possibly a thousand yards.
“Q. The road is straight there?
“A. Yes, sir.
Page 22.
“Q. When you first observed him, on which side of the road was he?
“A. The river side, the left-hand side.
“Q. That would be the sam,e side as your brother’s car was on?
“A. Yes, sir.
“Q. Are you positive of that?
“A. Yes, sir.
Page 24.
“Q. Are you sure that Mr. Zoder was on the left side of the road?
“A. Absolutely the whole time.
Page 25.
“Q. I don’t think you understood me. I asked you if your brother started to swerve to the left at the time that Mr. Zoder swerved his car to the left in order to make the turn 'into the gate?
“A. He was always on the left — his car was always on the left.”

Under this testimony it appears that plaintiff saw defendant driving car on the wrong side of the road for approximately a quarter of a mile distant from the place of the accident. This should have been to him a signal reading: “Danger, Drive Slowly”; but instead of plaintiff heeding the signal he proceeded towards the 'defendant’s car coming toward him on the wrong side of the road until within from twenty to one hundred feet of defend ant at a rapid rate of speed of from thirty-five to forty-five miles an hour. (Monroe Brasher, p. 57, “To look at it from the side it was going at a terrible rate of speed”; W. P. Hudson, page 50, “I judge that the car was going at a pretty good speed from the distance that it slipped, from the way that it tore up the gravel road.)

Nowhere does the plaintiff contradict • this testimony as to the rate of speed. His counsel says that the rate of speed is of no importance, but we think it is; for when the driver of an automobile sees another automobile . approaching him on the wrong side of the road he owes it to the general public to get his own car under control, and had the plaintiff reduced - the speed of his own car to the speed of the car he was approaching (G. W. Zoder, page 34, “I Was * * * making about four or five miles an hour, I judge”) the accident would not have happened; and we think it was negligence for the plaintiff to drive his car at such a high rate of speed to within less than 100 feet of a car approaching him on the wrong side of the road.

Section 19 of A.ct 120 of 1921 provides:

“That subject to parochial and municipal regulations, every person operating a motor vehicle on any highway or road in this state shall run it at a rate of speed at no time greater than is reasonable and proper, having regard to the traffic and use of the highway or road and the safety of the public. It shall be prima facie evidence of a speed greater than is reasonable and proper as aforesaid if any motor vehicle is operated on any highways outside of an incorporated municipality at a rate of speed exceeding thirty-five (35) miles per hour for a distance greater than one-half a mile continuously. It shall be prima facie evidence of a rate of speed greater than is reasonable and proper as aforesaid if a motor vehicle is operated on any highway or street inside an incorporated town or city at a rate of speed greater than, fifteen (15) miles per hour for a distance of one-eighth of a mile, or at a rate of speed greater than ten miles an hour where the chauffeur’s view of the road traffic is obstructed whether upon approaching the intersection of highways or roads, or in traversing a railway or highway crossing intersection, or in going around a corner or curve in a street or highway.”

■ And ordinance of the Police Jury of the Parish of Rapides provides:

“Section 1. Be it ordained by the Police Jury of Rapides Parish in regular session convened, That it shall be unlawful for any automobile, truck or other vehicle of motor power, to be driven over the public roads of Rapides parish, by any person or persons, at a greater rate of speed than twenty-five (25) miles per hour; and that the speed limit on all such vehicles while passing through any of the towns and villages of Rapides parish shall not exceed the rate of fifteen (15) miles per hour.
“Section 2. Be it further ordained, That all such motor vehicles shall * * * being operated during the day or night, shall, while meeting and passing on the public roads any other motor car of vehicle of any kind, slow down to a speed of not to exceed fifteen miles per hour; and must pass on the extreme right of said highway according to the direction being traveled.”

Under the above quoted act and ordinance and the other evidence in this case plaintiff clearly is not entitled to recover.

The evidence as a whole, we think, preponderates in favor of the position of the defendant’s contention that he was driving his car on the right side of the road and that at all times plaintiff could have passed his car on the right side of the road without causing a collision.

W. C. Hudson, a witness for plaintiff, testified, page 15:

“Q. In what direction did those' tracks go?
“A. He turned to his left, or toward the river, to go into the packing house, and it looked like he • had got about half-way across the road to where Mr. Couvillion’s car hit him and knocked him around.”

G. W. Zoder testified, page 33:

“Q. When you made that turn, how' far to the left did you turn?
“A., Well, I don’t think I went in beyond the center of the road, probably the left-hand wheel of my car was possibly a little over the center of the road, just enough to give me a little turn in there.
Page 34.
“Q. Prior to the time that you made the turn, you said that you were driving down on your right-hand side?
“A. Yes, sir.
Page 35.
“Q. What is the width of the road between the ditches?
“A. Twenty-nine feet, .level ground.
“Q. What kind of road is it?
“A. Gravel road.
“Q. At the time that your car turned out, to the left, tell the court whether or not there was room for Mr. Couvillion to pass between you and the ditch on the river side of the road? •
“A. Yes, sir, I think there was, I am sure there was.
“Q. Was there ever any time' when there was not room for him to pass on that side?
“A. No, sir.

W. P. Hudson testified, page 49:

“Q. Judging from his tracks, how far to his left and your left did he turn out before turning to the right to enter the gate?
“A. Just about the center of his car was about the center of the road, as near as I could judge from the tracks.
Page 53.
“Q. Didn’t you all look at the tracks of the car, Mr. Zoder’s tracks, together?
“A. Well, we were having a general discussion of the accident as .it occurred ther.e. There 1(were several present. In fact, most of the Rapides Packing Company had gone out there, Tom Hincey and Bill Rush. I never took notes of who was present; I brought Zoder back to town in -my car.”

Monroe Brasher testified, page 57:

“Q. Taking up first the tracks of the Ford car — Mr. Zoder’s car — state to the court what they indicated as to his position in the road as he turned to make the drive into the gate.
“A. Well, I didn’t measure the exact distance, that is, with a ruled tapeline, but, judging from the eye, was on the right-hand side of the road until he got about fifteen or twenty feet before he reached the packing house gate, he swerved slightly to the left, placing his left wheel a little past the center; I don’t believe the middle of the car Would have been the middle of the road before he turned to our gate.
Page 59.
“Q. How many feet was it from the left tracks of the left-hand wheel from the ditch on the river side?
“A. Well, I consider that the road was about thirty feet, and if that be the case, the center of the road would be fifteen. I don’t think that his left wheel was over a foot from the center of the road — and that -would leave fourteen feet from his tracks to the ditch.
Page 60.
“Q. Now, the tracks that you saw extending toward Alexandria, on- which side of the road were they?
“A. Until he turned, swerved to the left to make his turn into the packing house, 'he was on his right-hand side.”

W. D. Rush testified, page 62:

“Q. Did you make an examination at that time of the tracks of Mr. Zoder’s car?
“A. Yes, sir.
* * * *
“Q. Could you state about where his left tracks w'ere with reference to the center of the road at that time?
“A. Do you mean the extreme point?
“Q. Yes, at that time that he was closest to the river side.
“A. A little nearer to the river side of the road, a little beyond the center of the road, a little nearer than they were on the other side.”

T. R. Hincy testified, page 67:

“Q. Well, if you examined Mr. Zoder’s tracks, can you tell the court what course he followed as he prepared to go into the gate?
“A. Yes, sir, I think I can. I would judge about fifteen or twenty feet before he got ‘ to the gate, when he turned into the left to make the turn into the gate— I would judge that the left-hand wheel of his car was maybe over a foot from the middle of the road when he was closest to the river side of the road, it could not have been more than a foot.
“Q. Did you gentlemen look at this together and discuss it at that time?
“A. I think everybody was looking at it. We decided that the best thing that each one of them could do was to pay their bills and call it a draw; that’s the way that we looked at it.”

From all of the testimony .we are convinced that the defendant swerved his car to the left of the road in front of plaintiff’s rapidly approaching car and thereby caused the plaintiff to think that defendant was turning into that side. This, in our opinion, was such negligence as to prevent him from recovering on his demand in re-convention.

Under all the law and the evidence we think the judgment of the District Court is correct and accordingly it is affirmed.


text:
    No. 2362
    Second Circuit Appeal
    G. W. SENTELL v. JOHN D. WOODS
    (June 6, 1925, Opinion and Decree)

      (Syllabus by the Editor.)

    1. Louisiana Digest — Prescription—Par. 65, 169, 222.
    The verbal acknowledgment of a debt and a promise to pay the same interrupted prescription on a promissory note and the interruption may be proved by parol evidence.
    2. Louisiana Digest — Appeal—Par. 625.
    The finding of the trial court on matters of fact being clearly correct is affirmed.
    Appeal from the Fourteenth Judicial District Court of Louisiana, Parish of Avoyelles, Hon. L. P. Gremillion, Judge.
    This is a suit on two promissory notes. There was a plea of prescription filed by defendant which was tried with the merits of the case.
    There was judgment for plaintiff, defendant appealed.
    Judgment affirmed.
    Albert Cox, J. W. Joffrion, of Marksville, attorneys for plaintiff, appellant.
    N. I. Normand, of Marksville, attorney for defendant, appellee.
   ODOM, J.

This is a suit on two promissory notes, one for $594.09 and the other for $154.30, both dated June 6, 1919, and both made due and payable on November 1, 1919, both executed and signed by defendant, J. W. Woods, and made payable to plaintiff, G. W. Sentell. more than five years after the maturity

The suit was filed on December 5, 1924, of the notes.

It is alleged in plaintiff’s petition that the maker of the notes had frequently acknowledged his indebtedness and promised to pay the same prior to November 1, 1924.

The only defense is that the action is barred by the prescription of five years.

The plea of prescription was tried with the merits of the case and judgment was rendered in favor of the plaintiff for the full amount sued for and the defendant has appealed.

O'PINION

The notes sued on are both prescribed on their face. They fell due on November 1, 1919, and this suit was not filed until December '5, 1924, more than five years thereafter.

But the plaintiff alleges that the debtor verbally acknowledged and promised t.o pay the debt prior to November 1, 1924, the end of the prescriptive period, and it is his contention that prescription was interrupted by the verbal acknowledgment of the debt and promise to pay the same before prescription had accrued.

Counsel for defendant concedes that if the defendant acknowledged the debt and promised to pay it prior to the end of the prescriptive period, such verbal acknowledgment interrupted prescription, for in his brief he says:

“At the very outset of argument we wish to inform your Honorable Court we are not disagreeing with the learned judge of the lower court and the plaintiff insofar as the law applicable to interruption of prescription by an acknowledgment of the debt made before prescription has accrued.”
“This appeal is taken not for the purpose of reviewing the law applicable to the case but to review the facts to ascertain whether or not the District Judge placed a correct interpretation on these facts as they appear in the note of evidence in reaching a conclusion of law.”

Our brother of the District Bench wrote a most able opinion on both the law and the facts in this case. He held that a verbal acknowledgment of a debt and a promise to pay the same interrupted prescription and that the interruption may be proved by parol evidence.

In this view of the law we concur.

See:

Silvernagle vs. Fluker, 21 La. Ann. 188.

Utz vs. Peck, 34 La. Ann. 752.

Saunders vs. Carroll, 14 La. Ann. 27.

Bernstein vs. Ricks, 21 La. Ann. 179.

Croue vs. Citizens Bank, 28 La. Ann. 449.

William H. Boultt vs. Jerome Sarpy, 30 La. Ann. 494.

Block vs. Papania, 121 La. 683, 46 South. 694.

On the question of fact, that is, as to whether there was a verbal acknowledgment of the debt, the District Judge says in his written opinion:

“In this case we have the positive and direct testimony of the plaintiff that defendant acknowledged the debt before prescription set in and promised to pay as soon as he was able. . This is sustained by the testimony of Mr. Easley. Mr. Woods was present in court, heard the testimony, had the opportunity to deny or contradict same, yet he did not take the stand. There being a preponderance of uncontradicted testimony in favor of plaintiff, hence,. in view of these facts, the court must render judgment sustaining the position of plaintiff that there was an interruption of prescription under the law.” .

We have carefully read the testimony and -heartily concur with him in his findings.

Counsel for defendant filed a supplemental brief in which he calls our attention to the fact that the District Judge in his opinion quoted and commented on plaintiff’s testimony given on his examination in chief but made no reference to his testimony given on cross-examination.

There was written on the back of each of the notes sued on the following:

“December 3rd, 1924. I hereby acknowledge this note to be past due and unpaid and promise to pay same with interest.”

This statement is not signed by the defendant.

Plaintiff, on cross-examination, said, he wrote the above on the notes and on being asked why he did so he said:

“I thought possibly he would not care to renew the notes and include the interest in the new notes. Therefore I wrote this merely to take it out of prescription.”

Counsel for defendant construes that to be an admission by plaintiff that the debt had prescribed. It is certain that the plaintiff knew that the notes were prescribed on their face, but we do not understand that he intended at any time to waive his right to claim the benefit of the interruption of the prescription on account of defendant’s verbal acknowledgment of the debt prior to the end of the prescription period.

But even if it be granted that plaintiff did think this action was barred, his thinking so cannot affect' his right to recover.

The testimony shows that prescription was interrupted; the debt had therefore not prescribed when suit was filed and the defendant cited.

The testimony makes it perfectly clear, we think, that the defendant had repeatedly acknowledged the debt and promised to pay the same prior to November 1, 1924. The plaintiff’s testimony on that point is positive, and it is corroborated by that of Mr. Easley.

The District Judge in his written opinion says that the defendant was in court and heard plaintiff’s statement to that effect and did not take the stand and deny it.

We think the case is fully made out, and for the reasons assigned the judgment of the District Court is affirmed with costs.


author: WESTERFIED, J.

text:
    No. 9089
    Orleans Appeal
    ALBERT L. LANAUZE v. A. BALDWIN & CO., LTD., AND JOHN K. EDWARDS, In Solido, Appellants
    (June 8, 1925, Opinion and Decree.)

      (Syllabus by the Court.)

    1. Louisiana Digest — Master and Servánt— Par. 166.
    A servant has no implied power to employ a substitute to do his master’s work, and when a substitute employed by a servant without authority is guilty of negligence, the master is not responsible.
    2. Louisiana Digest — Master and Servant— Par. 166.
    Where a city drummer, whose business requires him to drive an automobile belonging to his employer, permits another person to drive his car and an accident happens while the car is being so driven, the employer and owner of the car is not responsible, it appearing that the City drummer had no authority to employ or permit a substitute to drive the car and there existed no custom to that effect and no emergency.
    Appeal from the Civil District Court, Parish of Orleans, Division “C”, Hon. E. K. Skinner, Presiding.
    This is a suit for physical injuries. ' Judgment for plaintiff. Defendants appealed.
    Judgment amended and affirmed.
    P. L. Fourehy, attorney for plaintff, and appellee.
    Lemle, Moreno & Lemle, John May, attorneys for defendants, and appellants.
   WESTERFIED, J.

This is a suit for physical injuries. Plaintiff alleges that on July 14th, 1922, at about 11 o’clock a. m. he was walking across Canal street, at the intersection of Carondelet, within the traffic lines and in conformity with traffic regulations, when he was run into by a Ford automobile belonging to A. Baldwin & Co., in charge of Baldwin & Company’s agent, one A. J. Buddendorf, but being driven by John K. Edwards, with Buddendorf’s approval and consent, that the driver of the automobile ■ was grossly negligent in that traffic signals were disregarded and the automobile carelessly and negligently driven at excessive speed, that as a result of his being struck by the automobile, his skull was fractured, rendering him unconscious; that he was conveyed to the Charity Hospital where he remained about six weeks; that he still suffers great physical and mental pain and is permanently disabled. He fixes his damages at $50,000.00 and sues A. Baldwin & Company and John K. Edwards, in solido.

The District Court awarded plaintiff judgment as prayed for in the sum of $3,000.00 and both defendants have appealed.

The defendant A. Baldwin & Company avers that in no event can it be held liable for the reason that at the time of the accident, the automobile, though owned by it, was not being driven by its agent or employee.

The defendant John K. Edwards, denies plaintiff’s right to recover upon the ground that he was guilty of contributory negligence but insists that if he (Edwards) is liable, his co-defendant, A. Baldwin & Co., is also liable for the reason that though the car at the time of the accident was not being driven by Baldwin’s agent, it was at that time being operated in Baldwin’s interest and upon Baldwin’s business and was driven by Edwards with the consent of Buddendorf, Baldwin’s agent, and employee who was in the car at the time and seated besides Edwards, who was driving.

The first question to be considered is whether plaintiff is entitled to recover from either or both of the defendants.

This question presents little difficulty and is not very seriously contested. The evidence indicates that the Ford car was carelessly and negligently operated in that it either ran against traffic signals or started prematurely.

It was operated at excessive speed along the busiest thoroughfare in the City at the point where traffic was most congested and during one of the busiest hours of the day. Plaintiff was where he had a right to be and whether proceeding toward downtown as two witnesses say, or coming towards uptown as he and other witnesses say, he was within traffic lines as established by police regulations and crossing the street at a time when traffic coming and going in either direction was open. We fail to see in what respect he was negligent.

What we have said concerning plaintiff’s right to recover disposes of the question of the liability of the defendant, Edwards, who, as the driver of the automobile, is of course, liable if anybody is.

As to the liability of the defendant, Baldwin & Company, it is not so easily disposed of.

Buddendorf was Baldwin & Company’s City salesman and in furtherance of his duties he called upon Edwards, who was the President of the Edwards Motor Co., one of the Ford dealers in this City, for the purpose of interesting Edwards in the purchase of a type of Ford body sold by Baldwin & Co. Buddendorf suggested that Edwards come with him to Baldwin’s Warehouse where the Ford bodies could be seen and at the same time intimated that Baldwin & Co., might be interested in trading in the Ford car which Buddendorf was driving for a new one. Edwards got in the car with Buddendorf and took the wheel. He testified that one purpose ■ he had in mind in taking the wheel, was ' to test the condition of the Baldwin car as a prospective trade in, but that it was not necessary to drive more than a few blocks for this purpose and the accident happened many blocks away from Edward's place of business, where he first took the wheel. It might well be doubted whether Edwards was driving- upon his own or, ás a volunteer, on Baldwin’s business at the time of the accident, but in view of admissions in the record on the part of defendant’s witnesses to the effect that the car was at the time of the accident being driven in Baldwin’s interest we will consider the case in that aspect.

The question, therefore, is whether an owner of an automobile can be held liable for the negligence of one, not in its employ, driving its car with the knowledge, consent and in the presence of its agent and upon the business of the owner. Stated another way — Can an employee whose business it is to drive his employer’s car delegate his duty to another so as to render his employer liable for the other’s negligence?

The following articles of the Code are of interest here:

Art. 2316. “Every person is responsible for the damage he occasions, not merely by his act, but by his negligence, his imprudence, or his want of skill.”

Art. 2317. “We are responsible not only for the damage occasioned by our own act, but for that which is caused by the act of persons for whom we are answerable, or of the things which we have in our custody.”

Art. 2320. “Masters and employers are answerable for the damage occasioned by their servants and overseers, in the exercise of the functions in which they are employed.”

Upon the principle respondeat superior as expressed by the maxim qui fecit per alim fecit per se the master is responsible for the acts of his servant “in the exercise of the functions in which they are employed”.

Was Buddendorf’s act in permitting Edwards to drive the automobile an exercise of the function, in which he was employed? Buddendorf was a city salesman and it was necessary, or expedient, for him in the discharge of his duties to drive the car provided by Baldwin from place to place as the interest of his employer’s business suggested, but, as it seems to us, it is clear that in the absence of special authority given by his employer to permit others to drive his car or actual or presumptive knowledge of a custom of doing so, Buddendorf exceeded his authority and acted Without the scope of his employer’s business in turning the .driving wheel over to Edwards. An employer, reposing confidence in an individual, might be willing to entrust the performance of certain duties connected with its business to that individual because of his having met certain standards set by the employer or for some other reason satisfactory to the employer, but it by no means follows that such employer would entrust its business and assume responsibility for one unknown to it and concerning whose ability it is not advised whether approved of by its employee or not. An agent owes his principal the duty of personally discharging his trust.

“Delegates non potest delegari. The selection - of an agent in any particular case is made, as a rule, because he is supposed by his principal to have some fitness for the performance of the duties to be undertaken. In certain cases his selection is owing to the fact that he is considered to be especially and particularly fit. The undertaking demands judgment and discretion, which he is supposed to possess; or it requires the skill and learning of an expert, which he assumed to be; or personal force and influence are desirable, and these the agent is thought to be able to exercise, or honesty or even financial responsibility is relied upon, and this the agent selected is supposed to possess. Here is the delectus persona, and it is obvious that unless the principal has expressly or impliedly consented to the employment of a substitute, the agent owes to the principal the duty of a personal discharge of. the trust.”
“Hence it is the general rule of the law that in the absence of any authority, either express or implied, to employ a sub-agent, the trust committed to the agent is presumed to be exclusively personal and .cannot be delegated by him to another so as to affect the rights of the principal. Putting it into more specific form, an agent generally has no implied authority either to put a substitute in his place or to employ assistants on his principal’s account.”
“The principal may, of course, expressly authorize the appointment of sub-agents, the delegation of the authority or the substitution of another in the place of the agent named; and formal powers of attorney quite frequently expressly confer ‘full power of substitution and revocation’, and in terms confirm whatever the attorney named ‘or his substitutes’ may lawfully do in the premises.”
The general rule is, also as will be seen, subject to be modified by the peculiar circumstances and necessities of each particular case, from which or from the usage of trade, a power to delegate the authority may be inferred; but in the absence of such express authority or such circumstances the general rule is fixed, imperative and inflexible, resting upon ample foundation and constantly enforced by the courts.”
“The’ same rule applies to a servant as to an agent. That is to say, a servant ordinarily has no implied power to get someone else to do the work or to employ co-servants, sub-servants, or assistant servants, on his master’s account.”.
“The rule, however, is ordinarily one for the protection of the principal only, and if he is satisfied with the performance third persons cannot object.”
“It must also be kept in mind that there is no delegation where the act is so done in the presence and by the direction or consent of a party as to constitute in law his own act.”

Mechem on Agency, Yol. 1., paragraphs 305 and '306, page 224.

The general rule as expressed above admits of a number of exceptions. For example, when the employment of such agents is justified by usage or course of trade, in which case the principal is presumed to have assented to a known or established' usage or course of dealing. In contractis tacite insunt quae sunt moris et consuetudinis, Ibid. par. 318.

And when necessity or sudden emergency justifies the employment of a sub-agent:

“When necessity or sudden emergency justifies' it: — So there may be cases in which supervening necessity or sudden emergency may justify the employment of sub-agents: Thus, for example, if a railroad train in transit should suddenly' be deprived of its fireman or brakeman, the authority of the conductor to employ someone else to fill the place until the necessity was past or the company could act, would doubtless be sustained, and so it would doubtless be where the conductor himself was incapacitated and he delegated to another servant or even to a competent stranger the control of the train until' the exigency was. past or his company could act. In England it is held that the power cannot exist if the circumstances are such that the principal may be communicated with and his instructions procured. ‘The impossibility of communicating with the principal’, said Smith, L. J., ‘is the foundation of the doctrine of an agent of necessity.”

Ibid, par. 320.

Edwards was a competent driver. He was in the automobile business and had driven a car for a number of years, consequently, we are not considering the question whether an agent in permitting an incompetent person to drive his employer's automobile would be guilty of negligence for which his employer would be responsible.

Counsel cites the case of Slothower vs. Clark, 198 Mo. App. 179, 179 S. W. p. 55, and the case of Geiss vs. Twin City Taxi-cab Co., 120 Minn. 368, 139 N. W. 611. These cases are in point but with all due respect we cannot follow them. In the last cited case, the court uses the following language:

“We ■ have no disposition to question the soundness of the rule that under the doctrine of respondant superior., a master is not, generally speaking, responsible for the negligence of another, not his servant, or the application of this doctrine to a case where the negligent act is done by one without authority, employed by the agent to assist him, and not done in the presence of the servant and with his consent. But where the servant is present and consents, and consents to the performance of the act by the assistant in a negligent manner, we think the negligence is that of the servant, and that the master is responsible.”

What is meant by the agent consenting to the performance of the act by the assistant in a negligent manner, we are at a loss to understand. ' Certainly it cannot mean that the agent consented to the negligence of the assistant. Be that as it may, the case seems to turn on the presence of the agent, a condition which does not appear to us as a determinative factor.

The remaining question is hardly worth consideration since it has been repeatedly held that mere ownership of. an automobile is not sufficient to establish liability for its negligent operation.

There was a time perhaps when automobiles were regarded as ferae naturae. The man on the street or on the road regarded them as a dangerous toy of the predatory rich and this sentiment was reflected in the courts, whose decisions indicated a disposition to hold the owners responsible as possessors of dangerous instruments. Now, “everybody has an automobile and every nigger a Ford”, and the situation is different as humorously pointed out in Martin vs. Lilli, 121 N. E., 423:

“At first the courts, like horses, seemed to be afraid of automobiles and were inclined to stretch the rule of respondeat superior and to hold the owner liable on one pretext or another, whether the driver was acting for the owner or not. This departure from the reasonable and practicable rule that the principal shall respond in damages for torts of his agent only when the agent is acting for the principal soon, led to absurdities and injustice. The courts have been sitting up nights writing volumes to get back to the correct rule. Witness: Hays vs. Hogan, 200 S. W. 286, and cases therein cited, discussed, distinguished, analyzed and overruled. If the reader is not surfeited when he has examined this authority, then see Reilly vs. Connable, 214 N. Y., 586; Luckett vs. Reigard, et al., 248 Pa. St., 24; Smith vs. Burns, et al., 71 Ore. 133.”

See also Morullo vs. Pasteur, 144 La., 926, 81 South. 403; Jung vs. New Orleans Railway and Light Co., 145 La. 727, 82 South. 870; Aitkins vs. Points, 148 La. 948, 88 South. 231; Rusha vs. Coyle, 149 La. 731, 90 South. 144.

Prom the last cited case we quote the following:

‘‘The only proposition of law, and it is indeed a simple proposition, for which our decision of this case may be regarded as authority, is that the owner of an automobile is not liable for damages resulting from the ' negligence of someone else in the operation of the car, without proof or reasonable presumption that the person who operated the car was employed or authorized by the owner to operate the car.”

We conclude that the defendant, A. Baldwin & Co., cannot be held responsible to plaintiff for his injuries under the circumstances and the case as to this defendant, must be dismissed.

As to the question of quantum, we are not inclined to disturb the finding of the lower court. Cusimano vs. Spiess Sales Co., 153 La. 551, 96 South. 118.

Por the reasons assigned, the judgment appealed from is reversed insofar as it condemns the defendant, A. Baldwin & Co., Ltd., as to which defendant it is now ordered that there be judgment in its 'favor, dismissing plaintiff’s demand.

In all other respects, the judgment appealed from is affirmed.