author: TALIAFERRO, J.

text:
    No. 3843
    Second Circuit (First Division)
    LUCAS v. MOREFIELD
    (November 18, 1931. Opinion and Decree.)

      Melvin F. Johnson, of Shreveport, attorney for plaintiff, appellant.
    Jackson & Smith, of Shreveport, attorneys for defendant, appellee.
   TALIAFERRO, J.

Plaintiff brings thi3 suit against defendant to recover $744, alleged balance due on his salary as bookkeeper and office manager for the first seven months of the year 1927. Said salary is alleged to have been $250 per month, making a total for the seven months of $1,750, against which there is an admitted credit of $1,006.

Defendant denies that he owes plaintiff any amount. He avers that plaintiff was employed by him many years prior to this suit at a salary of $250 per month under the terms of which employment all of plaintiff’s time would be devoted to defendant’s business; that during the month of .May, 1926, he informed plaintiff that, on account of the condition of his (defendant’s) business affairs, he would not require full time service of him, and would shortly be compelled to reduce his salary to an amount not exceeding $150 per month, and suggested that petitioner seek other employment to supplement this, salary; that subsequent to this date, he notified plaintiff that beginning with November first, 1926, his salary would be $150 per month; that plaintiff did not demur to this action, but continued to serve in said capacity until July 31, 1927. Defendant further avers that plaintiff had authority to, and did in fact, draw his own salary checks when it suited his convenience, and that contrary to their agreement he drew $250 as salary for the months of November and December, 1926, an excess of $200 of amount due him, which fact was unknown to defendant until after plaintiff left his employment.

Defendant further pleads that notwithstanding plaintiff’s entire time was engaged to him to the date his salary was reduced, yet he rendered services as bookkeeper to a Mr. R. R. Sutherland during the years 1925 and 1926 for which he was paid $1,487.50, of which defendant was. ignorant until afte’- plaintiff ceased to work for him.

Defendant reconvened against plaintiff and prayed for judgment against him for the $200 overpayment on salary account; for the $1,487.50 paid him by Mr. Sutherland, and for other amounts. However, these reconventional demands have been abandoned, and are not insisted on in this court.

The case was tried on January 29, 1929, resulting in judgment for plaintiff. At that trial, no evidence. was adduced save that of the plaintiff and of the defendant. A motion for new trial was timely filed by defendant, and granted. The case was again tried on February 6, 1930. Plaintiff’s demand was rejected and his suit dismissed. He appealed.

Plaintiff entered the service of defendant and his associates in the oil business in June, 1920. On January 1, 1925, he engaged his services to defendant alone at the salary of $250 per month as office manager and bookkeeper. At that time, the record discloses, defendant was. very prosperous as a result of his ventures in the oil fields near Shreveport. As time passed on, his business ceased to be prosperous, and as early as May, 1926, he experienced difficulty in meeting his obligations; in fact, about this time he was forced to borrow money to carry on his operations and pay bills incidental to his business activities.. In the spring of 1926, he entered the oil game in Arkansas and established an office in Camden, after which there was little to be done in the Shreveport office and plaintiff’s duties were exceedingly light. Defendant’s financial situation was discussed quite often between him and plaintiff, and defendant states that in May, 1926, he informed plaintiff that he would soon be forced to reduce his salary, and suggested that he find other employment to supplement the reduced salary. However, defendant does not contend that he actually reduced the salary of plaintiff until in October, which was .to be effective the first of the following November.

Plaintiff’s contention is that the salary was. not reduced at all but that defendant asked him to not draw more than was actually needed, due to his depleted finances, and offers this as the reason for him not drawing more than $1,006 for the first seven months of 1927, on salary account.

The testimony of plaintiff and defendant is irreconcilable. Resort is necessary to other evidence in the case in order to determine the question of fact presented.

Defendant evinced an interest in plaintiff’s welfare, on account of their long association in business, much greater than usually arises from the relation of employer and employee. In addition to the salary paid plaintiff, he was provided with living quarters in the building wherein defendant’s office was, and he was given the opportunity of investing in the oil deals sponsored by defendant, a privilege employees of the large companies do not have.

Since there is no dispute touching the terms of plaintiff’s employment to defendant prior to the asserted reduction in salary, it devolved upon defendant to corroborate his testimony to some extent in order to overcome the prima facie case made out by plaintiff. We assume the lower court held this view of the case after first trial. We think this, correct. The original contract being admitted, any change or alteration in it should be proven by a preponderance of the evidence on part of the one claiming benefits flowing from such change. A careful study of the entire record before us impels, the conclusion that the lower court has properly resolved the question of fact necessary to a decision of the issue involved. We would be reluctant to disagree with its findings, unless manifestly erroneous.

Mr. Sutherland, a mutual friend of both parties, also engaged in oil activities, representing himself, defendant and two others, as .trustee, had an office in same building as defendant; in fact, the entire building was leased by defendant. Sutherland testified that he received a salary of $125' per month to keep the books of his trusteeship, and, during the years 1925 and 1926, he paid one-half of the amount to plaintiff, to do .the actual clerical work which devolved upon him; that he only apprised defendant of these facts after he was informed by defendant that he had been forced to reduce plaintiff’s salary. This witness further testified that, some time prior to date plaintiff ceased to work for defendant, he overheard a conversation in the corridor of the building, close to his office, between defendant and another person, he assumed to be plaintiff, and immediately thereafter defendant came from the corridor to the desk of this witness and stated that, “well it has come to a show down, I am awfully sorry, but I have had to reduce Lucas’ salary because I just haven’t got the money to nay him.” It was at this time that the witness informed defendant that plaintiff was receiving $62.50 monthly from him.

This evidence was objected to as being hearsay. It was admissible, not as substantive proof, but in corroboration of defendant’s own testimony, . it having been made at a time and under circumstances not. suspicious.

S. W. Brannon, who admits friendship for both plaintiff and defendant, testified that in the early part of 1927, February or March, he discussed with plaintiff an interest held by him (witness) in a lease of land in the Pleasant Hill oil field, and that plaintiff stated that he wished to “make some money on the outside because he had had his salary cut.”

In addition to the corroborating evidence given by Sutherland and Brannon, practically all of the circumstances arising in the case and plausible inferences to be drawn from the testimony preponderate in favor of defendant. As. stated heretofore, defendant’s friendly interest in plaintiff was proven in many ways, and we have no doubt it was his intention to reinstate the original salary when his financial condition and business affairs justified such action. After defendant opened an office in Camden, Ark., plaintiff’s duties were negligible, and it is. not at all unreasonable to assume that any business man would not be willing to pay the salary thereafter as was paid prior .thereto.

For the reasons herein assigned, the judgment appealed from is affirmed.


source: Caselaw Access Project

author: STEPHENS, J.

license: Public Domain

text:
    No. 3658
    Second Circuit
    MONROE AUTOMOBILE & SUPPLY CO. v. OAKLEY ET AL.
    (January 14, 1932. Opinion and Decree.)
    P. E. Brown, of Arcadia, attorney for' plaintiff, appellant.
    Bertram F. Barnett and Ira J. McConathy, of Arcadia, attorneys for defendants, appellees.
   STEPHENS, J.

The plaintiff brings this suit against P. M. Oakley, the Rogers Service Station, a partnership, and the individual members of the partnership, D. A. Woodard and G. A. Rogers, to recover $135.36, the balance alleged to be due for merchandise sold by plaintiff to P. M. Oakley.

It is alleged that, the defendant P. M. Oakley sold his stock of goods, wares, and merchandise in bulk and out of the ordinary course of business without complying with Act No. 270 of 1926, known as the “Bulk Sales Law.” Rogers Service Station is sought to be held liable as the purchaser of said stock of goods.

The individual members of the partnership filed an exception of no cause or right of action, and the partnership a plea of prescription of one year. Both the exception and the plea were sustained and the suit dismissed except as against Oakley. The plaintiff prosecutes this appeal.

This suit is a companion of the case of Kelly Springfield Tire Co. v. P. M. Oakley et al., 18 La. App. 495, 138 So. 673, this day decided.

The only distinction between the two cases as to the issues involved is that this case presents the additional question of the interruption of prescription by citation.

In the Kelly Springfield Tire Co. case the suit was instituted admittedly more than one year after the unlawful sale. In the instant case suit was instituted within the prescriptive period, but against the Arcadia Motor Company, Inc., as the purchaser of the goods in bulk, instead of the Rogers Service Station. After the prescriptive period had elapsed, the Rogers Service Station was substituted as a party defendant by supplemental petition. D. A. Woodard is connected with both the Arcadia Motor Compay and the Rogers Service Station. He is the president of the former and a partner in the latter. This fact is relied on by the plaintiff as. a basis for its contention that the service of citation on the Arcadia Motor Company interrupted prescription as against the Rogers Service Station.

In Adams v. Citizens’ Bank, 17 La. App. 422, 136 So. 107, 109, this court, basing its decision on the case of Schwartz v. Lake, 109 La. 1081, 34 So. 96, in which the question of the distinction between the effectiveness of citation as. a basis for judgment and for the purpose of interrupting prescription was exhaustively discussed, used the following language:

“It is not sufficient for the purpose of interrupting prescription that the suit be filed and knowledge thereof conveyed to the defendant.”

It was further held in Adams v. Citizens.’ Bank that a citation which was an absolute nullity could produce no legal effect. The citation in this case, addressed to and served on the Arcadia Motor Company, Inc., was an absolute nullity, and could produce no legal effect against the partnership, the Rogers Service Station.

On motion for a new trial of the plea of prescription, the plaintiff urged that it had newly discovered and should be permitted to show that the Rogers Service Station is a subsidiary organization of the Arcadia Motor Company, Incorporated. We are of the opinion that the trial judge correctly refused to grant a new trial for the purpose of adducing such evidence, as it is immaterial.

The institution of a suit against, and the service of citation on, a parent corporation can have no legal effect on a subsidiary partnership, if any such legal relationship be possible.

For the reasons, stated in the opinion filed in Kelly Springfield Tire Co. v. P. M. Oakley et al., and the' reasons here assigned, the judgment appealed from is affirmed.


text:
    No. 3867
    Second Circuit (First Division)
    DAIRY FERTILIZER CO. v. AMERICAN INS. CO.
    (December 9, 1931. Opinion and Decree.)
    (January 14, 1932. Rehearing Refused.)
    Edward Barnett, of Shreveport, attorney for plaintiff, appellee.
    Jackson & Smith, of Shreveport, attorneys for defendant, appellant.
   TALIAFERRO, J.

Plaintiff obtained from defendant a policy of insurance on its Chevrolet truck, under which defendant company agreed to indemnify plaintiff against loss resulting from ‘‘theft, robbery or pilferage.” On August 30, 1929, the truck was left by some one on the driveway at the residence of Mr. C. V. Ratcliff, who is president of plaintiff company, in the city of Shreveport. Mr. Ratcliff instructed his yardman and chauffeur, a negro, to drive the truck ito the garage of plaintiff, but, instead of doing this, the negro drove it to Bradley, Ark., about one hundred miles distant, where it was recovered.

Plaintiff contends that, under these facts and circumstances, the truck was stolen, and that the negro’s acts amounted to theft, within the meaning and under the terms of the policy of insurance, and instituted this suit to recover the amount of damages alleged to have been inflicted upon the truck while under the control and in the possession of the alleged thief, and for expenses incurred in having the truck returned to Shreveport.

We quote the provisions of the policy bearing directly upon the issues presented by the pleadings and briefs of both sides, viz.:

“G Theft, Robbery and Pilferage (Restricted Form):
“Theft, Robbery and Pilferage, excepting by any person or persons in the Assured’s household, or in the Assured’s service or employment, whether the theft, robbery or pilferage occurs during the hours of such service or employment or not; and excepting loss suffered by the Assured from voluntary parting with title and/or possession, whether or not induced so to do by- any fraudulent scheme, trick, device or false pretense or otherwise; and excepting in any case, other than the theft of the entire automobile described herein, the theft, robbery or pilferage of tools, repair equipment, motor meters, extra tires and/or tubes and/or rims and/or wheels and/or extra or ornamental fittings.
“This policy does not insure against the wrongful conversion, embezzlement or secretion by a mortgagor, vendee, lessee or other person in lawful possession of the insured property under a mortgage, conditional sale, lease or other contract or agreement, whether written or verbal.”

Defendant denies liability to any extent for the damages claimed by plaintiff and asserts: (1) That the taking of plaintiff’s truck by the negro man and driving it to the state of Arkansas was not theft under the policy of insurance; and (2) that as the negro man was authorized by plaintiff’s own president to take possession of the truck, even though he disobeyed instructions, in doing so he was in the' service of plaintiff; and (3) that the act of Mr. Rat-cliff in delivering the truck to the negro amounted to “a voluntary parting with the possession” of the truck, and in either contingency there is no liability on part of defendant.

It will be observed from a reading of the quoted provisions of the policy that it is restrictive, not general. If an employee or other person in the service of the assured steals the insured property, there is no liability on the part of the insurer. In the instant case, it is obvious that the act of Mr. Ratcliff in directing the negro to drive the truck to the owner’s garage for safekeeping was for the benefit of his company and done in his official capacity, and technically, at least, the negro was in the service of the plaintiff. A service was being done for plaintiff by both its president and the negro. Under these circumstances, it seems to us quite clear that within the purview of the terms of the policy of insurance this negro was “in the assured’s service,” and, regardless of whether or not there was theft of the truck, within the meaning of that term, as employed in the policy, no liability attaches to defendant.

Plaintiff relies upon the case of Miller v. Newark Fire Ins. Co., reported in 12 La. App. 315, 125 So. 150, as sustaining its position. We have no criticism to offer to the court’s holding in that case, but, on the contrary, agree with that decision for the very sound reasons therein assigned, but the facts of that case are entirely different from those of the case before us. The facts of the present case are exceptional. The alleged thief was in the employment of plaintiff’s president, who had the right to engage persons to operate and drive and look after his company’s vehicles, and his acts in so doing were the acts of his company, and the persons so engaged, even though temporarily, were in the service of plaintiff company.

The reason for the stipulation .in the policy, that no liability shall attach in event the insured property is stolen by one in the household, service, or employment of the insured, is ' obvious. Persons sustaining such relationship to the insured have liberal authority to take . possession of and operate motor vehicles of the insured, and therefore the opportunity for theft of such vehicles is almost unlimited. It is against this condition and this possibility that the insurer has sought to protect itself, and has agreed only to indemnify the owner for the theft of the insured property, or for its damage while in the possession of the thief, when the theft has been committed by one not in the household, service, or employment of the insured.

In the case at bar, the' president of the insured, acting for it, assumed responsibility for delivering into the physical possession of the insured, through his own employee, its own property, and made it possible that the property be stolen by his own selection.

For the reasons herein assigned, the judgment of the lower court is reversed, annulled, and set aside, and plaintiff’s suit dismissed at its cost.


author: CULPEPPER, J.

text:
    No. 3984
    Second Circuit (Second Division)
    ARMOUR & CO., LTD., v. HICKS CO., LTD.
    (January 14, 1932. Opinion and Decree.)
    Jackson & Smith, of Shreveport, attorneys for plaintiff, appellee.
    Chris Barnett and M. T. Monsour, of Shreveport, attorneys for defendant, appellant.
   CULPEPPER, J.

Plaintiff, Armour & Company, Ltd., brought this action to recover of defendant, Hicks Company, Ltd., $413.97 as damages to plaintiff’s truck and $350 for the loss of the use of the truck while being repaired, resulting from a collision between said truck and a truck belonging to defendant, on December 21, 1928, at the intersection of Lake and Spring streets in the city of Shreveport.

The two trucks were being driven at the time by hired colored truck drivers.

Plaintiff alleges that the collision and resulting damages was due solely to the gross fault and negligence of defendant’s driver. Defendant denies any negligence whatever on its part and avers that the accident was caused wholly by the gross negligence of the driver of the plaintiff’s truck.

There was judgment for plaintiff for $413.97, the amount claimed as damages to its truck, but the claim for loss of use of the truck was rejected. Defendant appealed and plaintiff has answered the appeal praying that the judgment be amended so as to cover the full amount sued for.

Spring and Lake streets intersect at right angles near the approach to the traffic bridge connecting Shreveport and Bossier City. This approach constitutes a street or roadway running out of said street intersection, and cutting through the east or southeast corner of the twp streets mentioned; thence runs to the foot of the bridge. This approach, and the two named streets, according to the plats filed in evidence, are approximately the same width, which from the testimony of certain witnesses, is about fifty feet. A white line' marked off by the municipal authorities of the city for the guidance of traffic ran down the center of the street or roadway coming away from the bridge and, entering the intersection, ran to and intersected another similar white line which ran along the center of Lake street across the intersection.

All traffic coming from Bossier City over the bridge and entering Shreveport was supposed, under the traffic rules and rules of the road, to keep to the right of the white line when going out Lake street.

On the occasion of the accident plaintiff’s truck was being driven south on Spring street, across the intersection, keeping to the right side of the center line of that street. Defendant’s truck had just crossefl the traffic bridge from Bossier City and was negotiating the intersection from that direction and intending to cross Spring and proceed out Lake street. For this truck to have kept to its right side of the white traffic line, it would have been necessary to make a considerably larger and longer curve, through the intersection, than it would have to make by leaving the right side of the traffic line and cutting over on the left side of the line, then proceeding across.

From the great weight of the testimony, both from the witnesses and the physical facts, it is clear that defendant’s truck driver chose the shorter way across, in violation of the traffic rules, and thereby precipitated a situation from which it seems that neither he nor the driver of plaintiff’s truck could or did extricate themselves. There is apparently no other explanation as to what caused the accident than the fact that defendant’s driver very negligently left the line of traffic he was supposed to follow, and should have followed by keeping to his right around the longer curve and deliberately and unnecessarily crossed over on the left side of the line, presumably for the purpose of making time or beating someone else across. The lower court evidently thought such an act constituted negligence, and we think it was gross negligence under the circumstances.

At it is pertinently cited hy plaintiff’s counsel, in Potter v. Glassell, 146 La. 687, 83 So. 898, it was held that one who can and does not concede to another the latter’s side of the road carries the burden of showing that his fault did not cause the accident. He assumes the risk of his experiment and is required to use greater care than if he had kept on the right side of the road.

“If a collision takes place under such circumstances the presumption is against the party who was on .the wrong side.” Berry, Automobiles (6th Ed.), vol. 1, page 237.

Counsel for defendant points to the testimony of plaintiff’s truck driver, wherein the driver says defendant’s truck was right on him when he saw it, to show contributory negligence such as to bar recovery. Also, counsel points out another statement by this driver as being .significant, and that is where the driver says he saw the other truck coming. from the bridge “traveling on the wrong side of the street.” This witness says in another place that he had already gotten into Lake street (which means into the intersection), and that the front end of his car was almost across, when he first saw the other truck. Most of these were leading questions asked the witness on cross-examination, to whi.ch the witness merely answered yes. This witness,- continuing his testimony on direct examination where he says he saw the other truck traveling on the left side of the street, says:

“I seen him coming, he was traveling pretty fast, about thirty-five miles, looked like when he was going ahead I put on my brakes, and he come on and hits me. * *

He was questioned further at length by defense counsel, and ne said the distance the truck was from him when he first saw it was about twelve feet. Asked why he did not stop his truck in time to prevent the collision, he said he did try but the truck was coming too fast. In several places in his testimony this witness says he is positive defendant’s truck was coming from Bossier City, because he saw it coming around the curve. He also states he thought the truck was going to slow up. Taking the testimony of this witness as a whole, we cannot say that he acted negligently. He no doubt saw the truck coming, .but knowing it was on its wrong side of the traffic line, it would be natural for him to presume the driver of the truck would discover his error and slow down or stop to let plaintiff's truck get across. Plaintiff’s driver did in fact endeavor to stop. Sign of the skidding of his tires was seen by witnesses arriving at the scene soon after. The trial judge found no negligence chargeable to this driver. Neither do we find any, but we think he used ordinary care under the circumstances.

Defendant’s driver was duty bound to use extraordinary care by reason of-his having voluntarily and unnecessarily left the path of traffic and was proceeding on the wrong side of the street. In this duty we think he failed. This driver testifies that when he got to the intersection line he slowed down, thinking the other driver would do the same; then says he was “pulling on in” when he saw the other driver coming, about to strike, “then (he says) I begun to try to cut around get out of the way.” He says he was moving about ten miles an hour. If this be true he could and should have stopped instead of cutting around in front of the other truck.

Under the circumstances as related by this witness plaintiff’s truck driver had a right to assume that this driver was going to stop, taking for granted even what this driver says is true. But, after all, the statements of both of these witnesses may be said to contain many inaccuracies, as is many times the case with witnesses of this type. We think, and no doubt the lower court thought, that the plaintiff’s contentions were more strongly supported and corroborated than were those of defendant.

As to the quantum of damages, the amount allowed by the court for repairs seems to have been fairly well proven, and is not seriously disputed by defendant. The amount claimed for loss of use of the truck while it was being repaired appears excessive. There is evidence showing that a week should have been a reasonable length of time for the repairs to have been made, including time to obtain certain new parts which possibly had to be ordered. We think plaintiff certainly is, under the circumstances, entitled to a reasonable amount to cover such a loss. A week, at $10 per day for six days, is, we think, reasonable and not excessive.

For the foregoing reasons, the judgment appealed from is amended by increasing the amount of award to $473.97, and as thus amended the judgment is affirmed.

DREW, J., concurs.


author: TALIAFERRO, J. McGREGOR, J.

text:
    No. 3881
    Second Circuit (First Division)
    L. P. STEPHENS & CO. v. KELLOGG LBR. CO., INC.
    (November 18, 1931. Opinion and Decree.)

      L. P. Stephens, of Coushatta, attorney for plaintiff, appellee.
    Hawthorne, Stafford & Pitts, of Alexandria, attorneys for defendant, appellant.
   TALIAFERRO, J.

Defendant owned hardwood timber in the parish of Red River and contracted with one J. P. Jones to cut and haul same to Crichton station on the railroad for a certain price per thousand feet, log scale. Something in excess of 300,000 feet was. so hauled and delivered by Jones. While he was engaged in this work, he purchased from plaintiff supplies, etc., to enable him to fulfill his contract with defendant. In the early part of the year 1930, while the logs, or a goodly part of them, were at Crichton, plaintiff, becoming disturbed over the prospect of the logs being shipped away before the account due by Jones was paid, prepared to sequester them under the lien and privilege he assumed he had against them. An agreement was reached between plaintiff and defendant whereby, in order to obviate seizure of the logs, defendant committed itself to personal responsibility for Jones’ account in so far as that account enjoyed a privilege against the logs in question, and agreed to litigate the question in the district court for Red River parish. The present suit is to recover the amount alleged to be due by Jones to plaintiff on the account, with recognition of lien and privileges on the logs. The amount sued for is $226.65.

Defendant denies that it is due plaintiff any amount; denies that any part of the account sued on was for supplies, money, etc., furnished Jones to enable him 'to cut, haul, and deliver the logs in question, but does not admit the correctness of said account; denies that plaintiff has a furnish-er’s lien and privilege on the logs.

There Was judgment for plaintiff for $172.30 with recognition of a lien and privilege upon the logs, mentioned. Defendant appealed.

The first point of defense urged by defendant is that the lien and privilege created by Act No. 33 of 1882 does not apply to and should not be construed to affect logs cut and hauled by one not the owner thereof, or the agent or employee of the owner. In other words, since defendant owned the timber from which the logs in question were made and Jones was its contractor, one furnishing necessary supplies and/or money to enable Jones to cut, haul, and deliver the logs to the railroad for defendant’s account, did not have a lien or privilege on said logs to secure payment of his account.

The act of 1882, on its face, is quite comprehensive. It is unambiguous, and certainly requires no hairsplitting construction to conclude that the legislative intent was definitely expressed in the clear and concise language therein employed. The title of the act reads:

“An Act creating a privilege upon logs and forest timber, in favor of the party advancing money or furnishing supplies to enable another to deaden, cut, haul, float or raft such logs or timber.’’

The language of the act follows the title closely.

It is argued by defendant that if the Legislature had intended that the lien or privilege should be operative against logs not owned by the one cutting and hauling same, such intention could have easily been expressed. That is true. However, on the other hand, if such logs were intended to have been excepted from the intent of the act, this intent could as easily have been disclosed. It is true that privileges, common to the civil law, are in derogation of common right and are to be strictly construed; but if the language of the law conferring the lien is clear and unambiguous, if it contains no exceptions or qualifications, it should be construed and enforced as written. The act simply gives a privilege to the furnisher of supplies upon the logs, cut and hauled by the one purchasing the supplies. It is a right in rem regardless of ownership.

It is contended that if this lien is enforceable against logs of third persons it would be equivalent to the taking of property without due process of law, because the act makes no provision for the giving of notice of the existence of such liens and the owner has no means of ascertaining who has furnished the contractor to enable him to cut and haul the logs. It is conceivable that a case could arise where the timber owner could not ascertain from whom the logger had purchased supplies to enable him to operate, but it requires quite a stretch of the imagination to do so. There are risks to run in all lines of business. It is almost, if not wholly, impossible to conduct any sort of business without hazards.

By way of answer to this- line of argument advanced by defendant we might mention that the lessor’s privilege, granted by article 2707 of the Civil Code, may be enforced against the property of third persons left in the leased premises, without there being any prior notice whatever to the owner of the possible exposure of his property to the payment of the lessee’s rent obligations. Our courts have enforced this harsh privilege uniformly. To some extent the same may be said of the privilege conferred by paragraph 3 of article 3249 of the Civil Code relative to the furnishing of materials and supplies that go into a building erected on land not owned by the contractor.

The Legislature has passed many acts for the protection of those who render service or perform labor for another engaged in the business of changing the form of property of third persons. In none of these acts, so far as our examination has extended, is the lien or privilege restricted to any extent by the fact of ownership.

Act No. 10 of 1890 gives a lien or privilege to any person who shall perform any labor or service in deadening, felling, etc., any logs or timber, on such logs, or timber, and to any one cooking for a person engaged in such business, which lien shall be concurrent with that of the furnisher of necessary supplies.

Act No. 145 of 1888 creates a lien in favor of managers, mechanics, and laborers in sawmills, planing mills, etc., on the manufactured product to which their service or labor has contributed. There is no restriction of this lien on account of ownership. The right is one against the thing, the output of the service or labor rendered.

Act No. 154 of 1888 creates a lien in favor of any one advancing money or furnishing supplies to enable another to gather, pick, save, or prepare for market moss grown on trees, in this state. This act also gives to the laborers who engage in this work a privilege on the moss gathered, which lien shall prime that of the furnish-er of supplies. There is no restriction of the lien to the moss owned by the person who buys the supplies or hires the labor.

Act No. 53 of 1906 creates a lien and privilege in favor of threshermen for services rendered to any person, firm, or corporation, “on the crop of the said person, firm or corporation, which the said thresherman has threshed.” It will be observed that the privilege under this act is restricted to the crop of the one for whom the threshermen render the service. If the language of this act has any special bearing upon the lien under discussion in the case at bar, such argues in favor of the construction we have adopted. In cases where the Legislature intended that the lien should be restricted in its effect by ownership that intent has been clearly expressed; if no such restriction is declared, then it follows, as a logical deduction, that the act was intended to have general effect and not be restrictive in its operation.

This question has not heretofore been passed on by the Supreme Court or any of the Courts of Appeal, so far as we are able to discover. The nearest approach to a decision touching the question is to be found in the case of Merchants’ & Farmers’ Bank v. Fischer Lbr. Co., 136 La. 860, 67 So. 932, 933. The facts of that case are these: One D. W. Suiter was under contract with the defendant lumber company to cut and haul logs owned or controlled by it. He performed his part of the contract. Plaintiff bank honored his accepted drafts on defendant and thus furnished him money to carry on his logging operations. Defendant did not deny liability on the draft sued on, but did deny the existence of the privilege, sought to be enforced, on the logs belonging to it, which had been sequestered. The court, in that decision, said:

“The law is:
“ ‘That any person advancing money or furnishing supplies to enable another to deaden, cut, haul, float or raft any logs or forest timber, shall have privilege upon such logs or timber.’ Act No. 33 of 1882, p. 47.
“The only question before the court is whether the money represented by the draft attached to the petition of plaintiff was advanced by it ‘to enable another to deaden, cut, haul, float or raft’ the logs or forest timber sequestered in this case.”

The court held that the evidence did not establish that the money advanced by plaintiff was expended in having the logs cut and hauled which it seized.

The syllabus of the case bearing upon this Issue is as follows:

“A writ of sequestration will be dissolved where the plaintiff in writ fails to show that the money advanced by him was used to deaden, cut, haul, float, or raft the logs or forest timber belonging to another which have been seized under the writ.”

While the right of the furnisher of money to a lien on logs not owned by the logger (to whom the money was furnished) was not directly at issue, the court inferentially recognizes that such is the law.

Our conclusion is. that plaintiff had a lien and privilege on these logs of defendant, cut and hauled by Jones, and that the ruling of the lower court on this question is correct.

Defendant presses on our attention its position relative to the insufficiency'of the proof adduced in support of the account sued on. The testimony introduced to sustain the account consisted of the evidence of plaintiff’s bookkeeper and of Mr. Jones, the debtor. The testimony of the bookkeeper, who made no sales to Jones, of course, standing alone, is not sufficient to establish the correctness of the account.' He could and did only give evidence as to what his books and records disclosed. However, Jones, sworn as a witness for' plaintiff, admitted that the account was correct in detail and due by him. There is no intimation or suggestion of collusion between Jones and plaintiff. Certainly this evidence was sufficient to make out a prima facie case on the account and defendant has offered no testimony to contradict it, but simply relies on the asserted weakness of plaintiff’s testimony. The account on its face contains no entries that attract especial attention or arouse suspicion. The evidence discloses that Jones purchased his supplies daily. No charge on the account for any one day exceeds $12.50, while most of them range between $4 and $8. It is conceded that for the period the account covers, save the first four days in October, Jones was engaged in hauling and cutting defendant’s timber. We think the correctness of the account sufficiently established to base judgment upon.

Jones began work under the contract with defendant October 11, 1929, while the debits on his account with plaintiff commenced October 7th. He purchased supplies daily. Therefore, it is reasonable to assume that the supplies purchased prior to October 11th were not used while executing the contract with defendant. These amount to $27.35 and were excluded by the lower court. We agree with this conclusion. The account shows that beginning with October 11th and continuously until November 4th, Sundays excepted, Jones was charged with supplies each day.

The lower court also rejected the following named articles,, charged in the account, for the reason that same were not necessary supplies under the act of 1882, and, therefore, not secured by lien or privilege on the logs seized, viz.:

1 khaki, shirt_______________________________________________$ 1.50

1 jumper ----------------------------------------- — ....... 2.00

1 pair shoes............................................. 3.50

1 pair boy’s overalls................... 1.50

1 shirt, 2 socks_________________________ 2.00

1 pair gloves....................... 1.50

1 tie ................... 1.50

1 pair socks.......................................... .... .50

1 suit underwear............. 2.00

1 pair socks.............. *1.00

supporters 50c, tie $1.00...................... 1.50

1 coat (leather)........................................ 8.50

Total____________________________________________$27.00

It is obvious these goods were not of the class of supplies contemplated by the statute creating a lien for their security, and were properly excluded by the lower court. Plaintiff, in fact, does not complain of this ruling of the trial judge, but, in brief, ashs that his. judgment be affirmed.

Counsel for defendant, while conceding the correctness of the lower court’s decision in excluding the supplies charged on the account prior to October 11th and the articles named above, insists that the following named articles on the account should also be rejected for .the same reasons the above enumerated ones were, viz.:

1 roll cattle wire, $4.00, staples .10 — .$ 4.10

1 saw $8.50, 6 files $1.20, 1 axe $2.50.. 12.20

2 single trees $1.50, 6 cold shuts .45— 1.95

1 pr. mule shears, $1.25.......................... 1.25

12 cold shuts.............................................. 1.20

1 log chain__________________________________________________ 5.50

1 pr. trace chains.......................................75

1 pr. wagon lines______________________________________ 5.50

2 hame strings........................................ .70

1 log chain................................................. 4.50

Total__________________________________________$37.65

We have found no 'case, nor have we been cited to any, wherein the word “supplies,” as employed in the act of 1882, has been defined or construed. What might be termed supplies in one instance would not be so in another, where the facts are different.

“In the construction of statutes, words are to be taken and construed in the sense in which they are understood in common language, taking into consideration the text and subject-matter relative to which they are employed.” Martin v. Martin, 151 La. 530, 92 So. 46, 49; Civil Code, art. 14.

With regard to the statute under consideration, the supplies which must be furnished to bring into existence the privilege thereby created, must be of such character as to “enable” the person buying them to accomplish the purpose for which they are bought. Such supplies must consist of those articles of merchandise indispensable to the consummation of the particular work engaged in, whether immediately consumable, or of such nature as -to require use for a season to be consumed or rendered of no value. To fell trees and convert them into sawlogs, axes, and saws and files are indispensable; to haul logs with mules or oxen, chains and harness are also indispensable; to inclose work stock used in logging, wire or other material is necessary for fencing.

If defendant’s- construction of this law be adopted, the only supplies that would be protected by privilege on the logs cut and hauled, would consist of food for men and work stock. Such a construction would be entirely too restrictive and would in a large measure defeat the law’s purpose and intent. A contractor could have all the provisions needed to carry on logging operations, but without -the tools and implements objected to by defendant, he would be unable to fell a tree or haul a log. The fact that such supplies are not immediately consumable, we do not think controlling.

We are of the opinion that the learned trial judge ruled correctly on all the issues tendered in this case, and for the reasons herein assigned, the judgment appealed from is affirmed.

McGREGOR, J.

I dissent from that part of the majority opinion that allows a privilege for the items totaling $37.65.


text:
    No. 4096
    Second Circuit
    LOUISIANA HIGHWAY COMM. v. SPIKES
    (January 14, 1932. Opinion and Decree.)
    Argued before DREW, McGREGOR and STEPHENS, JJ.
    L. L. Morgan and A. S. Cain, Jr., of. New Orleans, and D. M. Ellison, of Baton Rouge, attorneys for plaintiff, appellant.
    Wm. H. Mecom, of Columbia, attorney for defendant, appellee.
   STEPHENS, J.

The plaintiff, Louisiana Highway Commission, has instituted this suit for the purpose of expropriating a strip of land through the property of the defendant John D. Spikes. It is alleged in plaintiff’s petition that in order to complete the construction of the Columbia-Corey Highway, State Project No. 2050, it is necessary to secure a right of way over and across the land of the defendant 200 feet wide and 616 feet long, containing 2.83 acres.

The defendant answered admitting the ownership of 11.63 acres of land through which the plaintiff seeks to' expropriáte a right of way, and averred that the taking by the plaintiff of. a strip 200 feet wide by 616 feet long in the manner proposed would operate the complete destruction of the value of the whole of his property, which he estimates to be $2,000. He prayed for a verdict in that amount.

A trial resulted .in a verdict by the jury, which was made the judgment of the court, awarding defendant $700 for the value of the land taken' and damages incident thereto.

. Prom that verdict and judgment the plaintiff prosecutes this appeal.

If it is tacitly conceded that there exists a public necessity for the • expropriation of the strip of land, the sole questions presented for consideration are:

(1) What compensation should be allowed defendant for the property, actually taken?

(2) What amount should be awarded the defendant for damages to the residue of the property caused by the work to be done and the granting of the right of way?

The property of the defendant has a, frontage of 533 feet on the gravel road known as State Route No. 14, and a depth between approximately parallel lines running at right angles to the road, of 905 feet. It consists of 11.63 acres and a small house, of little value. The right of way sought to be expropriated intersects the north line of the defendant’s property about midway between its front and rear and proceeds through it in a southeasterly direction in such manner as to segregate a triangular lot of about 1% acres on the east and an irregular lot of the remaining acreage on the west. It is. the intention of the plaintiff to construct a fill through the property of the defendant which will require 6,500 yards of dirt. The fill at its highest point will be about 4% feet above the general level of the ground. This fill will make it necessary for the defendant to construct two bridges each about 40 feet in length from his resulting property lines to the concrete road which is to be built on the right of way, in order to render his lots accessible to •the road and one to the other. As there is no obligation on the part of plaintiff to fence its right of way, the defendant will be compelled to erect approximately 1,232 feet of fence along the property lines resulting from the expropriation.

Mr. Erskins, a witness for the plaintiff, fixed the value of the land to be taken at $40 per acre. It was assessed at approximately $45 per acre. Mr. Mosely, witness for the defendant, testified that he paid $132.50 per acre for land about 400 yards from the property of defendant, but that he judged that it was about 8 feet higher. Mr. Matthews for the defendant testified that he offered the defendant $1,300 for the whole of the property, and that he considered the house worth about $175; and that after the expropriation of the right of way he did not consider the remaining property worth more than $250. Mr. Tyler for the defendant testified that the property was worth $1,500; that he offered the defendant $1,000 for it; that after it is cut up by the proposed right of way he would not want it at all; and that $250 would be a big price for it. Mr. Haney testified that he offered the defendant $1,000 for the entire property in 1929; and that after the proposed right of way is granted the remaining land would be undesirable and of little value. The defendant in his own behalf testified that he considered the property before the expropriation of the right of way worth $2,000, and the remaining lots, after, worth about $400.

In view of the admitted facts and the testimony of the witnesses, we are of the opinion that the finding of the jury and the court is a fair and conservative estimate in the aggregate of the value of the property to be expropriated, and the damage resulting therefrom. A preponderance of the evidence establishes the value of the land sought to be taken at more than $75 per acre. If that amount be accepted as the value per acre, the defendant would be entitled to compensation in the sum of $212.25 for the 2.83 acres taken. If we accept $75 as the value per acre, and $400 as the value of the residue after the taking ($400 was the highest value placed thereon), the damage to the residue, determined by taking the difference between the value thereof immediately before and iinmediately after the expropriation, would be $260. These two sums added amount to $472.25. The jury allowed $450 to cover these itpms.

In addition thereto, the jury of experts selected from the vicinage awarded the defendant $150 for fences and $100 for approaches. or bridges. These damages as to the amount are not clearly supported by the evidence, but do not appear manifestly excessive. A jury in an expropriation proceeding may consider evidence in the light of their own general knowledge of conditions and values existing in the vicinity.

“It has long been held in this state that the jury of freeholders, authorized by our laws to act in expropriation proceedings, have, to some extent, the character and authority of experts, supposed to have some personal knowledge of the matters submitted to them, and authorized to rely on their own opinions, as well as on the testimony aduuced before them. Their verdicts are, indeed, subject to review by appeal, and may be amended when manifestly inadequate or excessive; but they aré entitled to great respect, and will not he interfered with except in case of gross or manifest error.” Postal Tel. Cable Co. v. L. N. O. & T. R. Co., 43 La. Ann. 525, 9 So. 119, 120; City of Shreveport v. Youree, 114 La. 182, 38 So. 135, 3 Ann. Cas. 300; City of Baton Rouge v. Cross, 147 La. 719, 85 So. 883; Railroad Co. v. Rabasse, 44 La. Ann. 183, 10 So. 708; Railroad Co. v. McNeely, 47 La. Ann. 1298, 17 So. 798; Kansas City, S. & G. Railroad Co. v. Smith’s Heirs, 51 La. Ann. 1079, 25 So. 955.

The judgment appealed from should be affirmed, and it is so ordered.


author: McGREGOR, J. DREW, McGREGOR and STEPHENS, JJ.,

text:
    No. 4188
    Second Circuit
    HENRY v. JENKINS ET AL.
    (December 9, 1931. Opinion and Decree.)
    (January 14, 1932. Rehearing Refused.)

      Truett L. Scarborough, of Ruston, attorney for appellee Henry.
    J. W. Elder, of Ruston, attorney for appellant Trammell.
    Scarborough & Barham, of Ruston, attorneys for appellant Tatum.
   McGREGOR, J.

This is a suit on a promissory note. On February 8, 1930, Will Jenkins, a negro farm laborer, was indebted to S. E. Tatum in the sum of $175 on account of the purchase of a secondhand automobile. At that time Jenkins was a tenant on the farm of G. L. Trammell for the year 1930. An in solido note for the sum of $175, payable to S. E. Tatum, was drawn on this, date and was signed and executed by Will Jenkins and G. L. Trammell as makers. The note was made payable on October 1, 1930, and stipulated 8 per cent interest from maturity and 10 per cent attorney’s fees for collection in case of its non-payment at maturity. On the same day and in connection with the execution of the note, a written agreement with reference to the ultimate payment of the debt represented by this note was prepared and signed by the three interested parties, namely: Will Jenkins, G. L. Trammell, and S. E. Tatum. This agreement reads as follows:

“This 8th day of February
“We the undersigned agree as follows: Will Jenkins agrees to live continuously with G. L. Trammell until he has fully paid all indebtedness or move on the farm of S. E. Tatum and work the balance due out with him.
“G. L. Trammell agrees to pay S. E. Tatum the amount of note made to him ($175.00) should Will Jenkins live on his. farm during the year of 1931 and should he move with S. E. Tatum said S. E. Tatum agrees to release G. L. Trammell on note of ($175.00) signed by him and Will Jenkins. Should Will Jenkins move on the farm of any other than S. E. Tatum, he Will Jenkins, agrees to have S. E. Tatum and G. L. Trammell paid in full and in the last instance G. L. Trammell & S. E. Tatum agree to work insólido toward the collection of his. indebtedness or S. E. Tatum loses his claim against G. L. Trammell.’’
his
“(Signed) Will X Jenkins
mark
“G. L. Trammell
“S. E. Tatum
“Attest:
“E. B. Taylor
“Isiash Brown”

On August 22, 1930, over six weeks before its maturity, the plaintiff, R. W. Henry, acquired the note in due course of trade for a valuable consideration, at which time it was indorsed in blank by the payee, S. E. Tatum, and delivered to the plaintiff.

Soon after the maturity of the note, and repeatedly thereafter, the plaintiff made demand upon G. L. Trammell for payment. Failing in these efforts to collect, the plaintiff filed this suit on March 11, 1931, against Will Jenkins, G. L. Trammell, and S. E. Tatum, for the sum of $175, with interest and attorney’s fees as provided for in the note. Trammell alone appeared to answer the suit. He denied that plaintiff had acquired the note before maturity, and set out the terms of the written agreement signed by him and Jenkins and Tatum at the time of the execution of the note, and alleged that plaintiff, because of having acquired the note after its maturity, was bound by all equities existing between him, Trammell, and Tatum by virtue of this agreement. He then alleged that Will Jenkins made nothing on his farm in the year 1930 and that during the latter part of that year he proposed to S. E. Tatum, as he considered he had a right to do under the terms of the contract, that Jenkins move to his (Tatum’s) farm for the crop year 1931, and that he (Trammell) be released from liability on the note as maker; that Tatum refused to move Jenkins on his farm, and that that refusal released him (Trammell) from liability on the note; and that this release was as binding on the plaintiff as it was on Tatum because of the plaintiff’s having acquired the note after maturity, as alleged. In the alternative he alleged that, if it should be held that plaintiff was the holder of the note in due course before maturity, Tatum should be called in warranty and that he (Trammell) desired and was entitled to judgment against him for whatever sum for which plaintiff should secure judgment against him (Trammell). He therefore prayed that the' said S. E. Tatum be called in warranty, that there be judgment either rejecting plaintiff’s demand against him, or, in case judgment should be rendered against him in favor of the plaintiff, that there be similar judgment in his favor against Tatum.

The call, in warranty was issued and served on Tatum. He answered and denied those allegations of Trammell by which he sought to evade liability, and by way of reconvention asked for judgment in his favor against Trammell for the amount of the note with interest, attorney’s fees, and cost.

On the issues as thus stated, the case went to trial. There was judgment in favor of the plaintiff as prayed for. The call in warranty by Trammell against Tatum and the demand in reconvention by Tatum against Trammell were dismissed as of non-suit. Both Trammell and Tatum have appealed, and Tatum has answered the appeal of Trammell, asking the same relief that is sought in his appeal.

OPINION

The defendant Trammell has abandoned all resistance to the demands of the plaintiff and admits that the judgment is correct in so far as he is. concerned. The case is, therefore, narrowed to one question, namely: Was the defendant Trammell released from his obligation as comaker of the note of Will Jenkins because of the alleged refusal of Tatum to accept Jenkins as a tenant for the crop year of 1931?

If Trammell was released from liability as he claims, then he should have judgment against Tatum to protect him from plaintiff’s judgment against him. But if he was not so released, Tatum is entitled to judgment against him as prayed for. The lower court evidently considered that neither party had proved his demand, for both were dismissed as of non-suit. There is enough evidence in the record to decide the liability in question. There should always be as speedy an end to litigation as possible.

In his brief, counsel for- Trammell seeks to evade liability to Tatum on the ground that the contract signed and executed in connection with the note sued on contains a potestative condition,' and that, therefore, his signing the note, which was conditioned upon the said contract, created no liability between them. This question cannot be raised for the first time in this court. The entire release sought by Trammell is based on the validity of the contract and its binding effect. All the pleadings were drawn and the evidence adduced with that assumption in mind. So, he must stand or lall on his pleadings, and the evidence introduced thereunder. The sole contention of Trammell throughout the trial was. that, under the terms, of the contract, Tatum was obligated to receive Jenkins whenever he was tendered by Trammell or offered himself, and that in case he refused to accept such service he (Trammell) would be released from his obligation on the indebtedness. There is nothing in the contract that supports this contention. To begin with, it is specially stipulated that Jenkins agrees to live continuously with Trammell until Tatum is fully paid, or that he will move on the farm of Tatum and work till he pays the debt in full. Prom this statement it appears that the option rested entirely upon Jenkins. It is also agreed that if Jenkins lives on Trammell’s farm in 1931 he (Trammell) will pay the debt unconditionally, and that if he lives on Tatum’s farm Trammell will be released unconditionally from the debt. Trammell undertakes to prove that he offered to have Jenkins moved to Tatum’s farm for the year 1931, and that Tatum refused. In this effort Trammell failed to prove his allegation. Even if he had it would have availed him nothing, for there was nothing in the contract to compel Tatum to receive Jenkins as a tenant. But Jenkins stayed on Trammell’s farm as a tenant during the year 1931, and under the plain provision of the contract he was definitely bound. Even though the contract may have been invalid in the beginning because of a potestative condition, and even though this- invalidity had been properly and tiipely pleaded, it became valid and binding when the contract was performed by Jenkins remaining on the farm of Trammell during the year 1931.

For the reasons assigned, that portion of the judgment appealed from dismissing the reconventional demand of S. E. Tatum versus G. L. Trammell is annulled and reversed, and it is hereby ordered, adjudged, and decreed that there be judgment in favor of the said S. E. Tatum on his reconventional demand against G. L. Trammell for the sum of $175, with 8 per cent interest from October 1, 1930, until paid, together with 10 per cent attorney’s fees for collection on the total of the principal and interest, and all costs of this suit. It is further ordered that that portion of the judgment rejecting the demands of G. L. Trammell against S. E. Tatum be affirmed.

ON REHEARING

DREW, McGREGOR and STEPHENS, JJ.,

sitting on case.

PER CURIAM. Defendant G. L. Trammell has applied for rehearing on three grounds, viz.: (1) . That the opinion and decree are contrary to the law and the evidence. (2) That the decree will make him pay two judgments for $175 on account of one note for that amount. (3) That defendant Tatum neither appealed from the judgment nor answered the appeal, and that, therefore, no change could be made in the judgment of the lower court in his favor.

The judgment against Trammell in favor of Tatum was intended only to offset the judgment which the plaintiff has against Tatum on Trammell’s note which he, Tatum, endorsed. This judgment, of course, can be enforced only to the extent that the plaintiff may enforce the judgment against the defendant Tatum, and it is hereby ordered that the said judgment be thus restricted.

Counsel is in error in his third contention, for the record clearly shows that the defendant Tatum was granted an appeal, that he perfected it by making the necessary bond, and that he also answered Trammell’s appeal. It is. not necessary to grant a rehearing to make the restriction with reference to the judgment and it is, therefore, denied.


author: MOUTON, J.

text:
    Nos. 770 and 771
    First Circuit
    GRANTHAM v. SMITH ET AL. LORANCE v. SMITH ET AL. (Cases Consolidated.)
    (March 3, 1931. Opinion and Decree.)
    (May 5, 1931. Rehearing Refused.)
    (June 22, 1931. Writs granted by Supreme Court.)
    (November 30, 1931. Judgment of Court of Appeal Avoided and Set Aside by Supreme Court on Writs of Certiorari and Review.)

      See, also, 132 So. 810.
    Harvey E. Ellis and Frank B. Ellis, of Covington, attorneys for plaintiffs, appellees. ■
    Morgan & Simmons and Miller & Heintz, of Covington, attorneys for defendants, appellants.
   MOUTON, J.

These two cases were consolidated below for trial; judgment was rendered separately in each case according to agreement of counsel.

They will be so considered and disposed of in this court, in one opinion, which will be sufficient to deal with all the issues presented.

Mrs. Jennie Lorance is suing for herself, individually, and' for' her minor daughter, Alphonsine Lorance, and Louis Grantham, dative tutor of Wm. Louis Grantham, for his ward.

Judgment was rendered in favor of Mrs. Jennie Lorance, individually, for $345.50, with legal interest, and on behalf of her minor daughter, Alphonsine, for $3,000, with legal interest, aggregating $3,345.50 in solido against the defendants W. R. Smith, Mrs. W. R. Smith, Randolph Morgan, and R. J. Kendall.

In the other case judgment was rendered in favor of Louis Grantham, dative tutor of Wm. Louis Grantham, in solido against the above-named defendants for $3,000, also with legal interest from judicial demand.

The defendants appeal.

The demand in the two cases is for damages caused by a collision between, a Ford roadster and a Chevrolet coupe, which occurred on the state highway midway between Covington and Mandeville, .near the Pontchatalawa bridge, at about 9:45 p. m., January 19, 1929.

In the collision, Adelia Manent, mother of the minor, Wm. Louis Grantham, was killed, and Alphonsine Lorance, minor daughter of Mrs. Jennie Lorance, was severely injured.

Clark Morgan, minor son of Randolph Morgan, was driving the Ford roadster at the time of the accident from Covington to Mandeville, and R. J. Kendall was going to Covington from Mandeville in his Chevrolet coupe. In the Ford, though a two-seat car, there were four occupants, the driver, Clark Morgan, Walter Smith, minor son of Mr. and Mrs. W. R. Smith, Adelia Manent, who lost her life, and Alphonsine Lorance, minor daughter of Mrs. Jennie Lorance, who suffered serious injuries, as before stated.

Mrs. Jennie Lorance filed a motion in the district court of St. Tammany parish, where she resides, alleging that, since her marriage to Ernest Lorance, about fourteen years before, he had left her, and that during that time she had been supporting herself and her minor child, Alphonsine; that her husband Ernest Lorance, had refused to pay .the hospital bill of her daughter which resulted from the injury, and had refused to bring suit for the damages claimed by her in this suit or to join her in such suit, on behalf of her said minor child, a ward of this state. She prayed for the appointment by the court of some one to bring and prosecute the suit, whereupon she was appointed and directed by the court to institute these proceedings on behalf of her minor daughter. It was alleged by Mrs. Jennie Lorance that prescription had about run on the cause of action of her child, and that she was asking for the relief demanded, that suit might be immediately filed for the preservation of the rights of her daughter, Alphonsine.

Acting on that appointment, Mrs. Lorance filed the suit, and was met by an exception in limine by the defendants in which it is urged that she was without right or capacity to represent her minor child in this suit, and had disclosed no authority to bring and prosecute this suit, and that the minor was without authority or capacity to institute and maintain the suit, and to stand in judgment.

The defendant R. J. Kendall filed an exception of no right or cause of action before answering, and likewise the other defendants.

The exceptions were referred to the merits; later the court rendered judgment in solido against all the defendants, thus overruling the exceptions.

The authority of Mrs. Lorance .to bring the suit for her minor presents the first Question for determination.

A child remains under the authority of his father and mother until his majority or emancipation.

In case of difference between the parents, the authority of the father prevails. C. C. art. 216.

The father is, during the marriage, administrator of the estate of his minor children, and the mother in the case of his interdiction or absence during said interdiction or absence. C. C. art. 221, as amended by Act No. 197 of 1924.

During marriage, the father is clothed with the functions of the tutor in respect to the property of his child, etc. Dauterive v. Shaw, 47 La. Ann. 882, 17 So. 345.

Minors, persons- interdicted or absent, cannot sue except through the intervention or with the assistance of their tutor or curator. C. P. art. 108.

During marriage the father is administrator of the estate of his minor children and is authorized to sue on behalf of a minor son for personal injuries, without the assistance of his wife. Scarborough v. Louisiana Ry. & Nav. Co., 145 La. 323, 82 So. 286.

It is clear from the allegations of the motion by Mrs. Jennie Lorance for authorization to bring this suit, above referred to, that her husband was not absent either temporarily or permanently, and was not an interdict so as to give her the administration of the estate of her minor daughter, as provided for under the provisions of article 221, C. C., as. amended.

The father of the minor, being clothed during marriage with the functions of the tutor, was therefore the proper party to bring this suit, as a minor cannot sue except through the intervention or with the assistance of his tutor. C. P. art. 108.

The contention of counsel for Mrs. Lorance is that she had the authority to institute this suit under the ex parte appointment of the court directing her to inaugurate these proceedings.

It will be observed that the articles of the Civil Code conferring on the father the administration of the estate during marriage, and providing that his authority in case of difference with his wife shall prevail, are found under the title of the Code which treats of paternal authority.

In speaking of that authority, “la puissance paternell,” Marcadé remarks that it includes the rights of the father to administer the estate of his. minor, and to direct matters affecting his education. Marcadé, vol. 2, p. 160. On page 161, same volume, he says:

“Le droit d’aminister peut etre retiré au pére; maís par qui et pour quelles causes? C’est la toute la question. Or nous disons que le pére ne peut si le voir arracher que par l’autorité de la justice et quand il est jugé vraiment incapable ou indigne de l’exercer; nous disons que la donation qui confére l’adminis.tration á un autre que le pére est une insulte que la justice seule a le droit de prononcer.”

In the foregoing excerpt .that • author says, in substance, that this authority of the father in reference to the administration of the estate of his. minor may be. taken away from him only by the authority of justice, and after he has been pronounced incapable and unworthy of his trust, and that the gift conferring such power of administration to another would be an insult to the father that a judge alone has .the right to pronounce.

In this case there was no decree or order of the court showing that the husband, Ernest Lorance, was either incapable o,r unworthy of administering the estate of his minor child, and, under the reasoning oí Marcadé, above reproduced, the district judge had no power to authorize plaintiff, his wife, .to institute this suit by an ex parte order.'

Counsel for plaintiff refers to C. C. art. 81, which says:

“If a father has disappeared, leaving minor children born during his marriage, the mother shall take care of them and shall exercise all the rights of her husband with respect to their education, and the administration of their estate.’’

Counsel for plaintiff cites Williams v. Pope Mfg. Co., 52 La. Ann. 1417, 27 So. 851, 50 L. R. A. 816, 78 Am. St. Rep. 390, in which the court held, under provisions of article 81, C. C., that, when a husband had abandoned the matrimonial domicile, and had disappeared, the mother could appear in court on behalf of a minor child.

In the case of Koepping v. Monteleone, 143 La. 353, 78 So. 590, the court had occasion to pass upon the decision in the case of Williams, v. Pope Mfg. Co., 52 La. Ann. 1417, 27 So. 851, 50 L. R. A. 816, 78 Am. St. Rep. 390, above referred to, where it was held that the mother could sue for the minor when the father had disappeared. That decision was not overruled by the judgment rendered later in the Monteleone case; the court, however, took occasion to say that the exception taken to the capacity of the plaintiff had been urged in limine in the Monteleone case, whereas in the Pope case it had not been so pleaded.

However that may be, article 81, C. C., has no application here, as the plaintiff in her petition in which she obtained the authority to sue under the ex parte order specifically alleges, that her husband had refused to file this suit, and also to pay the bill for the expenses which had resulted from the injuries to her minor daughter.

We say the article cited and the decisions thereon do not apply, because, if he refused to sign, and to pay for those expenses, it is evident that he had not disappeared.

Counsel for Mrs. Lorance takes the position that, as the suit was instituted to cut off prescription which would have accrued in a few days, the mother had the right to institute the proceedings, for the preservation of her minor’s rights before prescription had run.

In a case reported in Legere v. Richard, 10 La. Ann. 669, the suit was instituted by a mother who was not the tutrix of her minor child, and against the wishes and consent of the tutor. The demand was in damages for personal injuries, to the child, the case here. It was held in that case that, in proceedings for the protection of either the person or property of minors, proceedings may occasionally be maintained for conservatory purposes even by those who do not legally represent the minor, but that such cases, are eminently within the discretion of the court. In that case, the court concludes by saying, that the proceedings were not of a conservatory character, being for a claim in damages, and the exception denying the right of the mother to stand in judgment was maintained.

Here the husband, who was tutor, objected to the filing of the suit by the mother, and who therefore proceeded with the case against his wishes and consent, as had occurred in the case above cited. Here the demand is likewise on a claim for damages, certainly not a conservatory proceeding, but one for the enforcement of a right that pertains to the estate of the minor, being for damages that would accrue to her if recovered.

Learned counsel for plaintiff refers to Act No. 79 of 1894 and to. decisions rendered on the provisions of that statute. State ex rel. Dartez v. Dartez, 154 La. 724, 98 So. 164; State ex rel. Taylor v. Jones, 113 La. 302, 36 So. 973. The provisions of that act, and the decisions interpreting it, have reference to cases where the physical or moral welfare of a child is sériously endangered by the neglect, abuse, or the vicious or immoral habits or association of its parents, etc., as provided for in that act. Nothing of that character appears in these proceedings in which the sole issue is as to whether the father shall be deprived by an ex parte order of his parental '•ight as tutor to enforce a claim or refuse to assert it in a judicial proceeding.

The very act to which counsel refers, No. 79 of 1894, which authorizes the Louisiana Society for the Prevention, of Cruelty to Children to intervene in such cases, concludes by saying that, in case • judgment is rendered in favor of defendant, in such proceedings, the society will not be cast for cost. Obviously, in proceedings even of that nature, the delinquent parent is referred to as a defendant against whom judgment may be rendered.

In this case the husband was not cited, never was a defendant, and, without having had an opportunity of presenting any objections or defenses, if any he had, the lower court proceeded to take away from him, without his. knowledge or consent, the paternal authority established in the interest of social order.

We are of the opinion that the exception to the capacity of Mrs. Lorance to institute this suit for her minor daughter should have been sustained.

We now pass to the consideration of her claim for the expenses she paid for medical treatment to her daughter, which were necessitated by the injury.

Evidently she considered that as a community debt, as she alleged, that her husband had refused to pay it. In that respect she was correct, as the debts contracted during marriage enter into the partnership or community of gains. C. C. art. 2403. For recovery on such a debt, the action must be prosecuted by the husband as head of the community, and the wife cannot stand in judgment. A judgment in favor of the wife alone on such a cause of action must be reversed. Cooper v. Cappel, 29 La. Ann. 213; Cowand v. Pulley, 9 La. Ann. 12; Barton v. Kavanaugh, 12 La. Ann. 332; Holmes v. Holmes, 9 La. 350; Ford v. Brooks, 35 La. Ann. 159.

In this case an exception of no right of action was filed by R. J. Kendall; also by the other defendants. As such suits must be brought by the husband, and no judgment can be rendered in favor of the wife alone, the exception should have been maintained against the claim of the wife personally. Even if such were not the proper exception, the judgment as to her must be reversed, as she cannot stand in judgment.

The other case, Louis Grantham, dative tutor for the minor son of Adelia, who was. killed in the wreck, must be discussed on other lines as the exception to the suit of Mrs. Lorance for her minor daughter and for herself, individually, has no bearing on the issues herein involved. We must say at the outset that the exception of no cause or right of action filed by all of the defendants in the suit of Louis Grantham, dative tutor, has no merit, and was properly overruled, except as to the judgment rendered against Mrs. W. R. Smith, for the reasons which will be hereafter given in the course of this opinion.

We shall first pass- on the question as to whether Adelia, the deceased, and Alphonsine, minor of Mrs. Lorance, were the guests of Walter Smith,' minor son of Mr. and Mrs. W. R. Smith, and of Clark Morgan, minor son of Randolph Morgan, at the time of the collision.

The testimony of Walter Smith on .this subject is that, while going to the post office in Mandeville, lie was asked by Adelia and Alphonsine if he would take them out on a ride to Covington. His answer was, he says, that he would, if his friend, Clark Morgan, was willing to go. He explains that he saw Clark thereafter, who consented to go.

Clark says he accepted the invitation and drove the car in company with Smith to the Manent’s house in Mandeville, where Smith got down on the sidewalk; that Adelia and Alphonsine came out ready for the trip.

Smith testifies that Adelia and Alphonsine were dressed and at the door ready to go. He admits that he had not notified them that Morgan had consented to make the trip, and, to account for the fact that they were dressed for the occasion, says he had told them “he would be around about 7:30 if he could go.” Such an explanation is not convincing, because it is not reasonable to believe that these ladies would have been at the door ready to go on the mere probability .that Morgan would consent to the proposed outing.

Mr. Louis Manent runs a grocery store in Mandeville. His dwelling adjoins his store. Ádelia and Alphonsine were living there. Mr. Manent says that Walter Smith came in the store on the night in question, and asked Adelia, “How about going to the show tonight?” She replied she did not think of going anywhere, but would ask Alphonsine if she was willing; that Alphonsine said she would ask her mother, came back, and said her mother gave her permission to go, but that they had to “come home right after the show.”

Alphonsine .testifies that she was asked by Adelia if she would go, that her mother consented, and that they dressed up for the trip, and that her mother came up to the door and said they must come right back.

Mrs. Lorance, mother of Alphonsine, was also living at the time with Mr. Louis Manent in Mandeville. She says the girls were embroidering that night in their usual home clothes when her daughter asked her for permission to go to the picture show in Covington with Walter Smith and Clark Morgan; that she consented, as is above explained by Alphonsine and Mr. Manent.

The district judge evidently believed the testimony of Mr. Manent, Mrs. Lorance, and Alphonsine, and concluded that these girls were the invitees or guests of Walter Smith and Clark Morgan, and were not engaged in a joint venture or common enterprise with Morgan and Smith in the ride to Covington. We do not see how he could have reached any other conclusion.

The record shows that Walter' Smith drove the Ford roadster day or night, as he pleased, to the knowledge of his father, and with his entire consent.

When the party left- Covington at about 9 o’clock that night to return to Mandeville, counsel for defendant say that Morgan took the wheel, at the solicitation of Adelia Manent, deceased. She is not here to testify as to whether that statement is true or not, although it is denied by Alphonsine. However that may be, the proof is that Morgan was permitted to drive with the consent of Walter Smith, who admits that he kept supervision and control of the car which Morgan was driving. As Smith exercised that supervision and control, whether Morgan took the wheel at the suggestion or request of Adelia is immaterial, and can have no legal effect on the retention of the supervision of the car by Walter Smith, so as to absolve his father, Mr. W. R. Smith, from responsibility for the acts of his minor son.

The evidence shows that the graveled roadbed proper is twenty-four feet wide where the accident occurred, and that the road from ditch to ditch is forty feet in width, including the shoulders on each side. There was therefore ample room for the safe passage of the Ford roadster and Chevrolet coupe on that road. It was testified to by several witnesses who arrived soon or immediately after the wreck that there were indications of a disturbance in the graveled roadbed where the cars met.

Some of the witnesses say that there was evidence of freshly dug up gravel and marks in the roadway. The preponderance of the .testimony shows that these marks were in the center of the road or about a couple of feet from it.

Morgan and Smith say they were driving on the right of the roadway, and were traveling at about twenty-five miles an hour.

Kendall, who was going towards Covington, the opposite way, says he was moving at the approximate speed of twenty miles an h5ur.

If these two autos had been going at the rate of speed testified to by these witnesses on such a highway, and they had been in the least attentive to what they were doing, no collision would have occurred. Some of the witnesses say that Morgan was driving at about fifty miles an hour, and one witness says he saw Kendall coming from the opposite direction just before the wreck, and that he was on the wrong side of the road, therefore in the pathway of the Morgan car.

It is known that the night was foggy and misty. Either due to that fact, or to reckless driving on one side and faulty driving on the other, the operators of the two autos, through carelessness or some other cause, met in or near the middle of the road and ran into each other. The fact is that Kendall, who was operating the Chevrolet coupe, testifies that he was traveling at the extreme end of the roadway to his right side near the edge of the ditch when the Ford roadster ran into his car. The proof shows that his Chevrolet car ran across the highway after it was bumped, and stopped on the opposite side of the road near the ditch. If he had been struck there, his car, if not overturned, in all probabilities would have found its way in the ditch, and would not have darted across the road in the opposite direction. No car could have done that; not even a Ford, which has been accused in many instances of performing amazing stunts, could have performed that feat.

No doubt, the collision was the result of .the fault or negligence of the drivers of both cars, as found by the district judge; that they were both tort-feasors for which the defendants were properly held liable in solido, with the exception of Mrs. W. R. Smith. C. C. art. 2318, says that :

“The father, or after his decease, the mother, are responsible for the damage occasioned by their minor or unemancipated children,” etc.

Under the exception filed by all the defendants of no cause or right of action, including Mrs. W. R. Smith, the exception should have been maintained as to her, as her husband was living, being a co-defendant, although it was properly overruled as to the other defendants, as hereinabove stated.

Counsel for plaintiff is demanding an increase in the amount of damages granted in his favor below. The amount allowed, we find, is fair; hence the increase asked is denied.

It is therefore ordered, adjudged, and decreed that the exception filed by defendants to the capacity of Mrs. Jennie Lorance to sue for her minor daughter, Alphonsine, under the ex parte order of the court, be and is hereby maintained, and that the judgment of the lower court overruling said exception be annulled and reversed, and that said action by plaintiff for Alphonsine be dismissed at her cost in both courts.

It is further ordered and decreed that the judgment rendered in her favor, individually, for the expenditures for the medical treatment of her daughter, be and is hereby annulled and reversed, that her demand therefor be and is hereby denied, and that she pay all cost incurred therein in both courts.

In the case of Louis Grantham, dative tutor, consolidated herewith, a proper judgment in accordance with views herein expressed will be entered separately, as was done below.

MOUTON, J. In this case it is ordered, adjudged, and decreed that the exception of no cause or right of action filed on behalf of Mrs. W. R. Smith with her co-defendants be and is hereby maintained, and that the judgment overruling said exception as it applies to her, and not to her co-defendants, be accordingly annulled and reversed: that the judgment rendered on the merits against her be annulled and reversed; that the demand of plaintiff as against her be denied and rejected; that plaintiff pay all costs as far as she is concerned in above case.

It is further ordered, adjudged, and decreed that the judgment rendered on the exception of no cause or right of action a^d on the merits as to the other co-defendants herein be affirmed at their cost.


author: McGREGOR, J.

text:
    No. 4225
    Second Circuit
    JETER v. ARCHER ET AL.
    (January 14, 1932. Opinion and Decree.)

      Modisette, Irion, Comegys & Switzer, of Shreveport, attorneys for plaintiff, appellant.
    Hugh M. Wilkinson and Fred W. Oser, of New Orleans, attorneys for defendants, appellees.
   McGREGOR, J.

Plaintiff sues the two defendants for alleged damages growing out of. a collision between an automobile in which she was riding as a guest and a parked truck belonging to Mrs. J. H. Archer, one of the defendants, and in the custody of Huey Calhoun, the other defendant. Plaintiff alleges that on the eleventh day of October, 1930, at about 7:45 o’clock p. m., she was riding in a Chrysler sedan driven by' one Will • Miller on the Shreveport-Monroe highway traveling east; that when the car in which she was riding reached a point approximately three-quarters of a mile east of the town of Calhoun on said highway, in the parish of Ouachita, it crashed into the rear end of a truck belonging to and owned by the defendant Mrs. J. ,H. Archer; that the defendant Huey. Calnoun,. while in . the. employ of Mrs. Archer, and while performing service for her in the regular course of his- employment, left' the said - truck standing on the right side of the highway, facing east, without any lights thereon and unattended; that the headlights of- the car in which she was riding were in good condition and shining; but that the driver of the said car did not see. defendant’s truck in time to avoid running into it for the reason -that there was no rear light on the truck, and for the further reason that there was another car coming from the east with bright lights that partially blinded him. It is further alleged that as a result of the collision the plaintiff suffered injuries, for which she seeks to recover damages from the two defendants in the sum of |12,800. When the sedan ran into the rear of the parked truck, it knocked it several feet off the road into, a ditch on the same side that it was parked. The body of the truck was a total wreck, while the tight side of the sedan was considerably battered. Neither plaintiff nor her companion were thrown from the car. The driver, practically uninjured, brought the car to a standstill on the highway at a point practically even with where the truck stopped in the ditch. Plaintiff was knocked unconscious. A veterinary surgeon happened on the scene of the accident almost instantly, and administered first aid. She was then taken to a sanitarium in Monroe by the driver of the sedan, as no damage was done to it of a sufficient nature to prevent him from driving it. At the sanitarium, plaintiff recovered consciousness in a few minutes, and was then carried to the home of a friend. The next day the two returned to Shreveport, the home of both.

The answer of the defendants admits the fact of the collision, the ownership of the truck by the defendant Mrs. J. H. Archer, and its operation by the defendant Huey Calhoun. It denies generally any negligence on the part of either defendant, and particularly that'at the time of the collision the rear light of the truck was not burning and plainly visible. It also denies that at the time of the collision the defendant Huey Calhoun was engaged in any service for, or performing any duties in the course of any employment by, the defendant, Mrs. Archer.. It is specially alleged that the collision was. caused primarily by the negligence of the driver' of the sedan, in that he was traveling at an excessive rate of speed, approximately fifty-five miles per hour, and that he not only was not keeping a proper lookout, but was also under the influence of whisky; that the reckless manner in which the machine was being driven and the fact that the driver was under .the influence of whisky were matters, of continuous nature and were bound to have been observed by, and known to, the plaintiff; and that therefore she was guilty of contributory negligence imputed to her from the continuing and visible conduct of the said driver, against which it was her duty to protest. It is specially alleged that the truck was parked temporarily on the extreme right side of the highway by the defendant Huey Calhoun, and that lights were burning on both the front and rear.

At the trial in the lower court, there was judgment in favor of the defendants rejecting the demands of the plaintiff, and, from that judgment, the plaintiff is prosecuting this appeal.

OPINION

The lower court found from the evidence that the plaintiff had not discharged the burden of proof with reference to her allegation that defendant’s truck was left unattended and parked on the side of the highway with no rear light burning, as required by law. The entire case hinges upon this question of fact. This court is. always unwilling to reverse the lower court on questions of fact alone, unless we find manifest error in its holding.

On the occasion of this collision, the defendánt, Mrs. Archer, was confined in the sanitarium in the city of Monroe. When she left her home in Calhoun to go to the sanitarium, she left her truck in the care and custody of the defendant, Huey Calhoun. He used it for pleasure at nights instead of an automobile. On this particular night there was an entertainment at the nearby .town, Tremont, and young Calhoun had an engagement with a daughter of J. L. Mays to take her there in this truck. Mays lives about three-quarters of a mile east of the town of Calhoun, on the south side of the highway, about twenty or .thirty feet from the edge of the road. As Calhoun reached a point even with Mays’ home, he pulled his truck as far to the right as he could, so that only the left rear wheel was on the concrete pavement, a few inches from the south side. He states positively that when he was driving along the road his lights were burning and that he turned the dim lights on when he came to a stop; that the rear light, being on the same switch, remained burning all the time. He testifies positively that he observed this rear light as he left the truck to go into the house to get his young lady friend, who was expecting him and who met him on the front porch. Miss Mays testifies that she could see from her house that the front lights and the dash light were burning. Prom the position in which the truck was parked, she could not see the rear light.

Before Calhoun had been seated in the house a car was heard by all the occupants of the home, coming at a very rapid rate from the west. When within about thirty feet of the .truck, the driver applied his brakes, but did not stop until he had run into the rear of the truck and knocked it off the road several feet and demolished the body. It is the testimony of both the driver of the ear and the plaintiff that neither of them saw the truck before they, were within a few feet of it, too late .to avert the collision. Plaintiff says there was no rear light on the truck, but her companion, the driver of the car, was, unwilling to say that there was not. When the truck came to a standstill after being knocked from the road, the headlights were still burning, while the rear light was demolished.

Not only has the plaintiff failed to prove that the rear light of the truck was not burning, but the preponderance of the testimony shows that it was. It is conclusively shown that Calhoun was. doing nothing for Mrs. Archer in the course of his employment at the time of the collision, so she cannot be held liable for plaintiff’s injuries under any theory of the case. Defendant Calhoun had a perfect right to park his car on the extreme right side of the road in the way that he did; he pulled over on the dirt shoulder so far that only the left rear wheel was just a few inches over on the concrete pavement. He set his emergency brake and left his parking lights, both front and rear, burning. He was guilty of no negligence, and plaintiff cannot therefore recover damages from him for her injuries, and the lower court was right in so holding.

The record in the case is rather voluminous. There was a great deal of testimony introduced relative to the alleged negligence of the driver of the sedan and the imputation of this negligence to the plaintiff. But since we find that neither of the defendants was guilty of any negligence and, that therefore neither of them is liable for plaintiff’s, injuries, it is not necessary to examine or to decide those questions. Neither is it necessary to discuss or determine the nature or extent of plaintiff’s injuries.'

For the reasons assigned, the judgment appealed from is affirmed, and it is ordered that the costs of both courts be paid by the plaintiff.