text:
    No. 3906
    Second Circuit
    SIZEMORE v. KIRKLAND TIMBER CO.
    (December 23, 1930. Opinion and Decree.)
    H. W. Ayres, of Jonesboro, and J. F. Phillips, of Shreveport, attorneys for plaintiff, appellee.
    E. L. Walker, of Ruston, and Dhu Thompson, of Monroe, attorneys for defendant, appellant.
   ODOM, J.

Plaintiff alleges that he was employed as a common laborer by the defendant, and that while at work in the course of his employment he was accidentally injured, and that as a result he is now totally and permanently disabled. He prays for compensation for four hundred weeks under the Compensation Acts.

The defense is: First, that plaintiff was not employed by defendant at the time he was injured; and, second, if it should be held that he was its employee at the time, his injuries were slight, soon healed, and he was discharged by his physician as well at the end of thirty days.

From a judgment awarding plaintiff compensation for four hundred weeks, defendant appealed.

The testimony warrants the holding that plaintiff was an employee of defendant at the time he was injured.

Defendant at the time was engaged in the tie and timber business, buying and selling pilings, cross-ties, telephone poles and the like, and in buying timber to be converted into such commodities. It contends that it was purchasing these ties, pilings, etc., at so much per foot f. o. b. the cars, and that it was the duty of those from whom they were purchased to load them and to pay the expense thereof, and that it did not become the owner of them until they were loaded. Because plaintiff was injured while engaged in loading these ties, etc., on the cars, defendant contends that he was in the employ of those from whom it had purchased them. But the testimony shows that plaintiff had no contractual relations with any of these other parties, but that he was employed and directed to do the work by Prank Kirkland, a member of defendant firm or corporation, who was on the ground, and further that plaintiff was paid his days’ wages by defendant. But Prank Kirkland says he was directed by the parties from whom the ties and poles were purchased to employ laborers to do the work, pay them their wages, and charge the amounts to them, and that when he directed plaintiff and others to do the work he was acting as agent only for the vendors. He says further that the work plaintiff was engaged to do continued only until noon and that he was injured about 5 o’clock in the afternoon, so that if it be said that plaintiff was originally employed by defendant; such employment. ceased before the injury was sustained. But the testimony shows that plaintiff worked through the entire day and that he was not informed by Kirkland or any one. else that he was working for another during the afternoon. The trial judge held that plaintiff was the employee of defendant at the time he was injured, and we sustain that holding.

The fact that plaintiff was accidentally injured is not disputed, the only contention being that his injury was slight and that he soon recovered.

Plaintiff was engaged in loading cross-ties or poles on to cars along with others and while at work struck his left leg just below the knee against the end of a piece of piling, which caused a slight contusion which Dr. Simonton, who first treated him, thought amounted to but little. He discharged the patient as well at the end of thirty days — hence defendant’s contention that he had recovered. But the testimony as a whole shows that he had not recovered at the time of the trial six months later.

While Dr. Simonton testified that he found no injuries except to the outer portion of the leg just below the knee, which soon healed, and that the patient did not complain to him of any injury to the knee joint, yet the testimony of Drs. Boyce, Wright, and Harper is that there was injury to the joint itself consisting of a fracture of the semilunar cartilage of the knee. Dr. Wright made two X-ray pictures, one in December, 1929, and the other in April, 1930. He and Dr. Boyce say that the injury consists of a dislocation of the cartilages of the knee joint and they think the injury is permanent.

After Dr. Simonton had discharged plaintiff, plaintiff went to Dr. Harper of Ruston for further treatment, and Dr. Harper sent him to Dr. Wright in Monroe for examination. Dr. Wright made an X-ray of the knee, reported his findings, and sent plaintiff back to Dr. Harper for treatment. Dr. Harper put his knee in a plaster east, where it remained for five or six weeks. When this was removed he used rubber bandages, and after that hot applications, to reduce the swelling and remove the inflammation. Dr. Harper testified that when he first began to treat the injury he found the knee swollen, being considerably larger than the other, immobilized to a certain extent, sore, and that it could not be used. He testified that the inflammation extended four or five inches below the knee and two or three inches above it, and that there was hut little improvement in plaintiff’s condition the last time he saw him, which was a short time before the trial.

Dr. Blume testified that in his opinion plaintiff was a malingerer, but he was rather inconsistent in his testimony. At one time he said he thought plaintiff was deliberately faking, yet he was asked if he thought the knee was normal, and he said:

“Well, not altogether, no sir, it is swollen some.”

Dr. White did not think plaintiff was suffering from fracture of the cartilages, but said he found his leg “pided up and down the shin bone,” which he said was probably due to what is known as “vassomotor paralysis, a paralysis through the nerves and the veins, and that is the condition that would cause swelling in a joint of the knee.” He was not impressed that plaintiff was under any disability. However, he and Dr. Simonton concede that if there was a rupture of the cartilage of the knee joint as found by Drs. Boyce and Wright, the condition is serious. Dr. Simonton was of the opinion that if there had been such a rupture there would have been intense pain and a locking of the joint, and says further that the lick on the leg would not have caused such a rupture. He further said that such a rupture is caused ordinarily by strain. Plaintiff testified that not only did he strike his knee against the piece of piling, but that he jumped when he saw he was about to be injured and strained or sprained his knee, which, according to Dr. Simonton, would cause the rupture complained of.

The testimony as a whole conclusively shows that plaintiff had not recovered at the time of the trial. He was then going on crutches, and he, as well as Dr. Harper, testified that he c.ould not bear the weight of his body on that leg. Drs. Wright and Boyce testified that this disability is permanent, and the other physicians concede that if there was a rupture of the cartilages of the knee joint the condition is serious. We think that plaintiff has lost the use of his leg in so far as performing manual labor of any kind is concerned. He cannot bear the weight of his body upon it and therefore cannot stand up to work.

However, as the injury is to the leg only he cannot recover compensation for a period exceeding one hundred seventy-five weeks under section 8, subsection (d), paragraphs 8 and 14 of Act No. 242 of 1928, page 356. James v. Spence & Goldstein, 161 La. 1108, 109 So. 917; Hicks v. White-Crandin Lumber Co., 7 La. App. 73; LeBlanc v. Ohio Oil Co., 7 La. App. 721; Joseph v. Higgins Lumber Co., 12 La. App. 600, 126 So. 255.

For the reasons assigned, it is ordered and decreed that the judgment appealed from be so amended as to reduce the period during which compensation shall be paid from four hundred weeks to one hundred seventy-five weeks, and as thus amended it is affirmed, the appellee to pay cost of appeal, all other costs to be paid by appellant.


source: Caselaw Access Project

author: ODOM, J.

license: Public Domain

text:
    No. 3917
    Second Circuit
    SNYDER OIL COMPANY v. BOWMAN
    (December 23, 1930. Opinion and Decree.)

      Frank W. Hawthorne and W. Dan Files, of Bastrop, attorneys for plaintiff, appellee.
    Edward L. Gladney, Jr., of Bastrop, attorney for defendant, appellant.
   ODOM, J.

This is a suit on open account. The Snyder Oil Company conducts a filling station and sells gasoline, oils, automobile accessories, and does repair work. The defendant was engaged in selling real estate on commission, and had two men working for him, one named Blanchard and one named Prose, each of whom used an automobile. Defendant instructed the plaintiff to let these men, Blanchard and Prose, have what they needed for their cars and to charge’the items purchased and the work done to him. Between July 4 and November 30, 1928, Blanchard and Prose ran up an account with plaintiff amounting to $257.63 on which defendant paid $63.43 and this suit is for the balance.

The account itself is not disputed by defendant either in his answer or" in his oral testimony, and he admits that the account was opened in his name at his request, and that he instructed the plaintiff company to make advances to Blanchard and Prose who were working under him and that he would be responsible for such advances.

But defendant denies liability for the balance due, and sets up as a special defense that on August 16, something over a month after the account was opened, he changed his contract with Blanchard so that he was no longer obligated to pay the expenses of operating his car, and that on that date he notified plaintiff of the new arrangement and specifically told Martin, in the presence of Page, who were in charge of the filling station, that he would not thereafter be responsible for any advances made to Blanchard. Defendant paid all the indebtedness incurred by Prose and all that incurred by Blanchard up to August 16, the date on which he says he notified plaintiff to cease making the advances.

It is conceded that defendant would be liable for the balance due on the account in the absence of instructions by him to plaintiff to discontinue advances to Blanchard, as plaintiff had a right to assume that the instructions originally given by defendant would stand until notice to the contrary.

Therefore, the defense set up by defendant is special, and the burden was upon him to prove it under the general rule that one who sets up an affirmative defense must establish it. See La. Digest under the general head “Evidence,” vol. 3, sec. 53 et seq., p. 133.

Defendant failed to discharge that burden. He testified that on August 16 he went to the filling station and found Martin and Page in charge, and that he told Martin that he would no longer be responsible for oil, gasoline, etc., purchased by Blanchard. His testimony to that effect is uncorroborated. On the contrary, Martin testified positively that defendant gave him no such instructions. Defendant testified that Page was present when he gave his instructions to Martin, but Page says that no such instructions were' given. It is in evidence and not disputed that on or about December 1st, after all the items on the account had been charged, defendant wrote the plaintiff company that he would no longer be responsible for any purchases made by Blanchard, and it is shown that after that date whatever indebtedness was incurred by Blanchard was charged to him direct. Up to the time this letter was received, however, whatever was purchased by Blanchard at plaintiff’s filling station was charged to Bowman, the defendant, as per original instructions. The testimony shows that, during the period over which this account was run, defendant did on several occasions request plaintiff to so itemize or separate the items purchased by Blanchard and Prose that he could make the proper charges against them; it appearing that Blanchard an'd Prose were working for defendant selling lots on commission under an arrangement between them by which defendant was td pay half of the expenses of operating the automobiles. Andrews, the bookkeeper, testified that defendant made this request to' him, but that he did not at any time say or even suggest that he was not personally responsible for the accounts made by these parties.

On November 13, plaintiff let Blanchard have five casings and tubes valued at $100, and charged the amount to Bowman. At that time Bowman’s account was rather large, and, when Blanchard applied for the tubes and casings, Page, who was manager of the filling station, telephoned Turpin, president of the company, and asked for instructions, and Turpin told Page to get in touch with Bowman, who was then at Vicksburg, Miss., and ascertain if Bowman would be responsible for the charge. Page called Bowman over the telephone, and says that Bowman instructed him to let Blanchard have the casings and the tubes and to charge them to his account. Bowman, on the contrary, says that he did not give such instructions, but merely told Page that he thought Blanchard would pay for them. It is not likely that Page would have let Blanchard have the tubes and casings if Bowman had not instructed him to do so. The purpose of calling Bowman was to find out if he would be responsible for the purchases. The fact that immediately following the telephone conversation Page let Blanchard have them indicates that Page is correct in his statement.

As we have stated, defendant wrote the plaintiff company on or about December 1st that he would not he responsible for further advances to Blanchard. The letter was lost or mislaid and there is testimony that defendant stated in the letter that he would be home at an early date and would straighten matters out, or words to that effect. Defendant was asked about the letter, and he said:

“As I recall the purpose of that letter at that time, I was bringing an action against Blanchard for what he owed me and I wanted to get the amount exactly correct so I would have Mr. Blanchard charged with what he owed. That was the purpose of the letter.”

It is not contended that defendant in that letter denied that he was liable for the purchases previously made by Blanchard, and defendant’s explanation of the purpose of the letter indicates that he recognized his liability.

Plaintiff made out its case by proving the . account. Defendant has failed to make good his special defense.

There was judgment in the district court in favor of plaintiff for the amount sued for. Finding no error in that judgment, we affirm the same, with costs in both courts.


text:
    No. 3873
    Second Circuit
    SUMERALL v. WETHERBEE
    (November 7, 1930. Opinion and Decree.)
    (December 23, 1930. Rehearing Refused.)
    (February 2, 1930. Writs of Certiorari and Review Refused by Supreme Court.)
    Cook & Cook, of Shreveport, attorneys for plaintiff, appellee.
    Thigpen, Herold & Cousin, of Shreveport, attorneys for defendant, appellant.
   ODOM, J.

The defendant owned a producing well in the Tullos field which “sanded up” and ceased to produce, and in order to restore the well, it became necessary to pull the liner out, clean the well and replace the old liner, or a new one if necessary. He employed plaintiff to do this work and agreed to pay him $40 per day for his services, the services of one helper and the use of plaintiff’s tools. Plaintiff alleges in his petition and now contends that he worked forty-nine days under his contract and has received only $196.50, which was advanced by defendant to pay a helper, and that defendant is still indebted to him in the sum of $1763.50, for which he asks judgment.

The defendant in answer admits that he employed plaintiff “to pull the liner out of defendant’s well, known as Urania A-4 in the Tullos Field, to cleanse and reset the liner therein * * * and that he agreed to pay plaintiff the sum of Forty Dollars ($40.00) per day, plaintiff to furnish all necessary machinery, tools and labor.”

There is therefore no dispute between the parties over the question of employment and the per diem plaintiff was to receive for his services. But defendant, further answering, sets up his defense in paragraph 7 of the answer as follows:

“Further answering, defendant shows that he contracted with plaintiff for the pulling of the .liner in his well Urania A-4, plaintiff to furnish all necessary machinery, tools and labor, and plaintiff further to cleanse said well and place another liner in the hole; all of which plaintiff was to do within a reasonable time, say not to exceed ten days; and defendant was to pay plaintiff therefor Forty Dollars ($40.00) a day, plaintiff to furnish the machinery and labor.”

And in paragraph 8 of tbe answer, defendant alleges that plaintiff “failed to do the work he had thus obligated himself to do under the contract, and failed to execute what he did do in the manner and within the time reasonably understood by the parties * *

In the brief filed by counsel for defendant, they state the issue involved as follows:

“It was not merely a case of hiring and letting at so much per day, but to the contrary a case of an undertaking by Sumerall to do the particular work that the parties contemplated should be done.”

It is plaintiff’s contention that he let or hired his services to defendant at so much per day regardless of the number of days it took to do the work contemplated.

The primary question to be determined is whether this was a contract to do work by the job, as contended by defendant, or whether it was one of letting or hiring of services at so much per day. If the former, the defense may be good; if the latter, plaintiff should recover if the record discloses that he worked the number of days he says he did.

The record fails to support the proposi-. tion or defense that this was a contract to do work by the job. It is true, as contended by defendant, that plaintiff was employed to pull the liner out of the well and to insert another, if necessary. That was the job or purpose of the employment and contract; that was the end which the parties had in view. But plaintiff was not employed to do that work by the job and we think defendant’s answer clearly discloses that fact. We quote the following from defendant's answer:

“All of which plaintiff was to do within a reasonable time, say not to exceed ten days; and defendant was to pay therefor Forty Dollars ($40.00) a day, plaintiff to furnish the machinery and labor.”

The contract w,as verbal. The negotiations were not carried on between plaintiff and defendant personally. Plaintiff was represented by Mr. Bell and defendant by Mr. Carter. Mr. Bell, testifying for plaintiff, says the understanding was that plaintiff should be paid $40 per day; that defendant’s representative inquired as to the length of time it would take to complete the work and “I told him that would be hard to tell, no man could tell how long it would take to get a liner out of a well. It might take two or three days and it might take three or four months; you could not tell.’,’ Asked as to whether he made any representation about how long it would take to do the work, Mr. Bell answered: “No, sir. Wasn’t nothing like that mentioned. Only he asked me how long it would take and I told him I could not tell and no man could tell.” He further testified that the length of time it took to remove a liner from a well depended altogether upon the condition of the well and for that reason work of the kind was never undertaken by the job, and that this work was not undertaken by the job, but plaintiff was to pay so much per day.

Mr. Carter, who represented defendant in making the contract, testified that plaintiff approached him and asked to be employed to pull the liner from well No. 4 and that plaintiff said “it wouldn’t take long to pull this well * * * so I called Mr. Wetherbee back and told him about it and he said all right to go ahead and let him move on the well and start on it.” Asked if plaintiff made any remark to him about how long it would take to do the work, Mr. Carter .said: “In a reasonable time, just about as long as it took for No. 6. A reasonable time.” He was asked: “Was any talk made about the number of days?” He answered, “No, sir.”

Nowhere in Mr. Carter’s testimony does he say that the work was to be undertaken by the job. All the talk about the length of time it would take to complete the work was incidental and did not enter into the contract. In view of past experiences, the parties no doubt contemplated that the work could be completed within a few days, but the record is utterly barren of any testimony which indicates that plaintiff promised to complete it within a given time or that defendant understood that plaintiff had bound himself to complete the work within a given period. And there is nothing whatsoever to show that this was an entire contract or a contract to do work by the job.

Learned counsel for defendant say in brief:

“Plaintiff cannot recover unless he has fully performed his part of the contract. The fact that he worked for 36 days, as found by the trial judge, is not a compliance with his obligation. The fact that no time was stipulated (if we be wrong on this point, as the trial judge thought) does not excuse performance by plaintiff. He may have done all he could, yet if he did not perform his part of the contract, he cannot recover.”

And they cite the case of Picard Construction Co. v. Board of Commissioners, 161 La. 1002, 109 So. 816.

Counsel’s argument would be good and the case cited in point if as a matter of fact plaintiff had obligated himself to do this work “by the job” or had undertaken “a building or a work for a certain stipulated price.” (Civil Code, art. 2756.) But such is not the case. Article 2769 of the Code, also cited by counsel, is not in point for the same reason. The latter article, as well as the first one cited, appears in the Code under the general heading “OF THE LETTING OUT OF LABOR OR INDUSTRY” and under Sec. 3 of the general heading (Art. 2756-2777) which treats of “CONSTRUCTING BUILDINGS ACCORDING TO PLOTS, AND OTHER WORKS BY THE JOB, AND OF FURNISHING MATERIALS.” Counsel cite not only this article of the Code but numerous decisions, but none of the decisions is in point for the reason that this was not an entire contract, but one of letting and hiring of services by the day.

The district judge found that plaintiff was entitled to recover for thirty-six days. The testimony amply supports that finding. Plaintiff began work on the well in March and continued at intervals, not continuously, until August. He encountered many difficulties and misfortunes. His efforts to pull the liner resulted in failure. But defendant’s plea in answer that he was inefficient and used the wrong tools has been abandoned, or at least is not stressed in this court. While plaintiff was at work, defendant recognized the difficulties under which plaintiff was laboring and, according to Mr. Wetherbee’s own testimony, “we gave him all the assistance that we could down there * * *; he was apparently trying to do his work and I told him to go ahead and get the well cleaned out * * *. Well, the well was shut down for some little time. Just what transpired between he (him) and the production foreman, I don’t know, other than he just said that the well apparently could not be cleaned out.”

It was proved that during a portion of the time plaintiff was at work he used as helpers men who were on defendant’s payroll and it is now argued that he should not be allowed full pay for the days he was using defendant’s men. We think that is true. But the testimony satisfies us that plaintiff put in at least thirty-six full days unassisted by any except his own helpers: Plaintiff testified and introduced his timebook to show that he was at work at the well for forty-nine days. But it is clear that a portion of that time the major portion of the work was done by defendant’s men. The district judge refused to allow him credit for those days and allowed him to recover for only the days on which he worked assisted by his own helpers. We find no error in that judgment, and accordingly affirm it, with all costs.


author: WEBB, J.

text:
    No. 3847
    Second Circuit
    LEE-BAKER DRY GOODS CO., INC., v. LOUISIANA TAX COMM. ET AL.
    (November 7, 1930. Opinion and Decree.)

      Barnette & Roberts and Chris Barnette, of Shreveport, attorneys for plaintiff, appellee.
    Robert J. O’Neal, of Shreveport, attorney for defendants, appellants.
   WEBB, J.

Plaintiff, Lee-Baker Dry Goods Company, Inc., a corporation, engaged in the wholesale dry goods business in Cad-do parish, brought this action against the Louisiana Tax Commission and the taxing authorities of Caddo parish to obtain a reduction in the assessment of plaintiff’s property for the year 1929, and on trial judgment being rendered in favor of plaintiff, as prayed for, the defendants appeal.

The return of plaintiff of its property for assessment, and the assessment as made, were as follows:

Return of Plaintiff
Merchandise __________________________$174,400
Furniture and fixtures______ 5,000
Trucks and automobiles____ 1,200 $180,000
‘ Assessment
Merchandise ..........................$185,400
Furniture and fixtures________ 6,720
Trucks and automobiles____ 1,200 $193,320

and the claim for reduction is that the item of merchandise should be reduced to $174,400, and that the item of furniture and fixtures should be reduced to $5,000.

It is contended there were two inventories of the merchandise taken in the preceding year, 1928, which showed that the inventory value of the merchandise on January 1st was $205,065, and the value on November 30th $230,743.83, that plaintiff took the mean amount of the two inventories as representing the inventory value of the average stock of merchandise carried, and deducted approximately 20 per cent therefrom, to obtain the actual cash value of the merchandise, and that in arriving at the actual cash value of the furniture and fixtures, deductions were made for depreciation from wear and tear, and, due to the fact that the fixtures were installed on leased premises; but defendants, .while apparently conceding that the assessment of the merchandise could be based upon the inventory value of the average amount of merchandise carried by plaintiff (Swift & Co. v. Board of Assessors, 115 La. 322, 38 So. 1006) and that such amount could be ascertained by taking the mean amount of the inventories taken during the preceding year, contend that in the present instance the evidence established that the mean amount gf the inventories did not correctly represent the inventory value of the average amount of merchandise carried by plaintiff but that under the evidence the correct amount •was the inventory value of the merchandise of date November 30, 1928, which amount should be accepted in fixing the value of the property to be assessed, and, further, that the evidence failed to establish that any deduction should be made from the inventory value of the merchandise, or from the assessment of the furniture and fixtures.

Considering the assessment of the merchandise, it is conceded that the assessment as made is presumed to be correct (Bowman-Hicks Lumber Co. v. Reid, 169 La. 905, 126 So. 232; Mackay Telegraph Co. v. Board of State Affairs, 149 La. 397, 89 So. 249; Industrial Lumber Co. v. Oden, 147 La. 760, 85 So. 901), and where the evidence shows the contention that the assessment is not correct is based upon the value of the property which is arrived at by taking as the inventory value of the average amount of merchandise carried the mean amount of the inventories of the merchandise taken during the previous year and by deducting from such amount a certain percentage, it is incumbent upon the plaintiff to establish first that the mean amount of the inventories is the approximate inventory value of the average stock of merchandise carried and that the percentage of reduction is at least approximately correct.

Defendants offered in evidence a statement of the assets and liabilities of plaintiff as of date January 1, 1929, on which there appear the following items which are subject to taxation:

Merchandise ______________________________________$230,743.83
Furniture and fixtures.................... 12,495.73
Trucks and automobiles________________ 3,787.29
Machinery and equipment____________ 422.13
$247,448.98

and the evidence with relation to the item of merchandise shown in the inventory shows that it was taken from the inventory of November 30, 1928, with reference to which inventory the testimony of the president of the plaintiff company was as follows:

“Q. Mr. Lee, did you have more goods on hand on November 30th than you had at any other time of the year, or was that about the average that you had?
“A. We of course have more goods on hand on some other day in the year than that date; that is the average.”

We are of the opinion that the evidence shows that the inventory value of the average stock of merchandise carried by plaintiff was the amount of the inventory of date November 30th, or $230,743, rather than the mean amount of the inventories, and in arriving at the actual cash value of the merchandise to be assessed, on the method taken by plaintiff, that the amount of $230,743 should have been accepted, and in ascertaining the actual cash value of the merchandise, reference should be had to that amount as the inventory value of the average amount of merchandise carried by plaintiff.

It is conceded that the merchandise must be assessed at its actual cash value, and that the actual cash value is the price it would sell for in cash in the usual course of business (Article X, section 1, Constitution of 1921; paragraph 6, section 91, Act No. 170 of 1898; Peavy-Wilson Lumber Co. v. Jackson, 116 La. 669, 109 So. 351); and considering the provisions of section 7 of Act No. 170 of 1898 (revenue and taxation statute) which reads, “that in assessing mercantile firms the true intent and purpose of this act shall be held to mean the placing of such value upon the stock in trade, all cash, whether borrowed or not, money at interest, open accounts, credits, etc., as will represent in their aggregate a fair average on the capital, both cash and credit, employed in the business * * *” with the provision contained in paragraph 6, section 91, of the same statute, that “the words ‘actual cash value’ * * * shall be held to mean a price that any piece of real estate or personal or movable property would sell for in cash in the ordinary course of business * * *” we are of the opinion that any reduction from the inventory value of the merchandise should be based upon the value that the merchandise would sell for if the business is continued and the merchandise sold to the customers of the business in the usual manner of conducting business.

In ascertaining that price, the actual depreciation of the merchandise would, we assume, be one of the factors to be considered, and, in the present instance, depreciation appears to have been the principal basis on which a reduction of 20 per cent from the inventory price was claimed, and, as we gather from appellant’s brief, it is contended that the evidence does not show any such depreciation, and although the case was tried after the year had expired, the officers of plaintiff company were unable to give a single instance where any of the merchandise had sold for less than its inventory value.

While we are of the opinion that persons who have had experience in such business as that conducted by plaintiff are competent to give an estimate of the depreciation of the merchandise carried, although they have not kept any data of previous years’ experience, as ■ in fixing the price at which the goods should sell above the inventory value, we assume they consider such depreciation, and while such persons may also be competent to estimate the price at which a stated stock of merchandise of a certain inventory value would sell in the ordinary course of business, it is apparent that in either case the estimate would be merely approximate; and assuming that the taxing authorities based their estimate on a percentage basis, which would show that a deduction of 19.64 per cent was allowed, we do not think that the estimate df the witnesses that a deduction of 20 per cent should have been allowed is sufficient to overcome the presumption that the assessment was correct.

The evidence relative to the assessment of the furniture and fixtures, as stated above, shows that such property was listed on the statement of plaintiff’s assets and liabilities at $12,493.73, and that there was also listed machinery and equipment at $422.13, or a total of $12,915.86, which was assessed at $6,720.00; and the question presented is, whether or not the evidence establishes that the actual cash value of the property was less than the value at which it was assessed.

In support of the reduction of the assessment, evidence was introduced showing that included in the property there were office fixtures and equipment of the invoice price of $2,587.50, a sprinkling system which cost $3,600, and that the balance consisted of counters, shelving, etc.; that the fixtures, were installed on leased premises, and it was said that the property as a whole would not sell for 25 per cent of its cost. But it appears that in fixing the price at which the fixtures, sprinkling system, shelving, etc., would sell the estimate was based upon what the property would be worth if taken out of the premises and sold. We are of the opinion that in estimating the value of the fixtures the value should be fixed with reference to the lease, which the evidence shows was for a number of years and not with reference to what the fixtures would be worth if removed from the premises; and as it was not shown that the office equipment and fixtures had depreciated in value and no reference whatever being made to the machinery and equipment shown on the statement of assets and liabilities referred to above, the evidence does not show that the valuation of $6,720 placed upon the property was excessive, and the assessment should stand.

It is therefore ordered that the judgment appealed from be avoided and reversed, and that plaintiff’s demands be rejected at its cost.


author: HIGGINS, J.

text:
    No. 13,400
    Orleans
    LABOSTRIE v. WEBER
    (November 17, 1930. Opinion and Decree.)
    (December 15, 1930. Rehearing Refused.)
    Jesse C. McGeé, of New Orleans, attorney for plaintiff, appellant.
    Titche, Kiam & Titché, óf New Orleans, attorneys for defendant, appellee.
   HIGGINS, J.

This is a suit under the compensation statute brought by an employee, claiming to have been permanently disabled as a result of ah .injury sustained in the course of his employment and' asking for appropriate compensation. The record shows that the defendant, Frank Weber,. conducted a barber shop and also operated a business of furniture, moving, using for that purpose a motor truck. The plaintiff, George Labostrie, a negro laborer, was employed by defendant to drive his motor truck and to assist in loading and unloading it. However, Labostrie was not injured while discharging those duties, but while engaged at work upon the demolition of a building used by Weber to house his motor trucks, preparatory to the erection of another and more suitable building for that purpose. While so engaged, a portion of the roof of the building collapsed and some of the falling timber struck Labostrie and severely injured him.

The defenses are:

First, that Labostrie was not injured in the course of his employment:

Second, that the employer’s business was not enumerated among those occupations classified as hazardous under the Workmen’s Compensation Law.

Third, that the injury from which disability is claimed to have resulted did not arise out of or in the course of plaintiff’s employment.

Fourth, that plaintiff was an independent contractor and not an employee.

There was judgment in favor of the defendant, dismissing plaintiff’s suit, and plaintiff has appealed.

Taking up these defenses in the inverse order, we observe, with reference to Uie last defense to the effect that plaintiff is an independent contractor, that the language of paragraph 8 of section 3 of Act No. 85 of 1926, amending section 3 of Act No. 20 of 1914, reads as follows:

“A person rendering service for another in any of the trades, businesses or occupations covered by this act (other than as an independent contractor, which is expressly excluded hereunder) is presumed to be an employee under this Act. The term ‘independent contractor’ shall be considered to mean, for the purpose of this act, any person who renders service, other than manual labor, for a specified recompense for a specified result either as a unit or a whole, under the control of his principal as to results of his work only, and not as to the means by which such result is accomplished.”

Plaintiff in this case was a laborer; consequently it is obvious that he does not come within the terms of the definition given in the act of an independent contractor.

The next point we will consider is the contention that, at the time of the accident, the work upon which Weber was engaged was not incidental to or connected with his employer’s business. This contention merits scant attention, since it is very clear that a building used to house the truck used by the defendant in the prosecution of his business as a furniture mover was connected with defendant’s business, and work upon the destruction or construction of such a building are services incidental thereto.

Did Weber’s business come within the enumeration of occupations classified as hazardous under the compensation statute? Subsection (a) of paragraph 2 of section 1 of Act 20 of 1914 reads as follows:

“Every person performing services arising out of and incidental to his employment in the course of his employer’s trade, business or occupation in the following hazardous trades, businesses and occupations: * * *
“The installation, repair, erection, removal or operation of boilers, furnaces, en-g’nes and other forms of machinery.”

In considering this section, the Supreme Court, in Haddad v. Commercial Truck Co , 146 La. 897, 84 So. 197, 9 A. L. R. 1380, held that the operation of a motor truck was a hazardous occupation because motor trucks are propelled “by gasoline engines or motors, which by the use of gasoline produce their own energy or motive power. The driving of such motortrucks necessarily involves the operation of such engines.” The court then gives a definition of the word “engine,” and concludes that the operation of a gasoline engine is as much contemplated by the statute as hazardous as the operation of a stationary engine.

It follows, therefore, that an employer, who is engaged in moving furniture by means of a motor-driven vehicle, is engaged in an occupation which comes within those enumerated in subsection (a) of paragraph 2 of section 1 of Act 20 of 1914. Consequently, we find as a fact that Labostrie, by reason of his employment in the operation of a motor-driven vehicle, was engaged in a hazardous occupation. See, also, Beebe v. McKeithen Construction Co., 5 La. App. 179; Plick et al. v. Toye Bros. Auto & Taxicab Co., 13 La. App. 525, 127 So. 59.

Finally, it is contended that Labostrie was not injured in the course of his employment. This argument is based upon the fact that Labostrie was not driving the motor truck when injured. Hence it is said that his injury was not received during and did not arise out of his employment. He was attempting to remove the roof from the building, when a part' of it fell and injured him. If he had been hurt while standing still upon his employer’s premises, in a location where his business required him to go, he would, nevertheless, be entitled to recover, because, it having been established that his employer’s business was hazardous, he could recover under the Compensation Statute, whether his injuries were received while engaged in the hazardous or non-hazardous feature of his employment; no distinction being made in the act between the duties of an employee which may he said to be hazardous and those which are otherwise.

In Byas v. Hotel Bentley, 157 La. 1030, 103 So. 303, 304, the court said:

“In the present case, plaintiff’s husband was admittedly engaged in both hazardous and non-hazardous branches of his employer’s business. It was all one employment for which he received but one compensation. Therefore, it is immaterial whether his non-hazardous duties constituted his major employment to which his hazardous duties were merely incidental, or vice versa. The fact remains that the deceased met his death while actually engaged in performing duties, whether main or incidental, called for by his employment.”

See, also, Ferguson v. Cady-McFarland Gravel Co., 156 La. 871, 101 So. 248; Dyer v. Rapides Lumber Co., 154 La. 1091, 98 So. 677.

We are unable to rely upon the testimony of plaintiff and his wife as to the extent of his injury for the reason that they are shown to have indulged in misstatements of fact and are thus discredited. It sufficiently appears, however, from other testimony in the record, that the plaintiff was severely hurt. Indeed it is npt disputed. Moreover, .the medical testimony shows that plaintiff was confined to the. pharity Hospital, from May 13, 1929, to July 5, 1929, suffering from five fractured ribs, a severe concussion of the brain, a fracture of the skull, and a fracture of the parietal or collar bone, lacerated wound of the scalp, multiple brush burns and. contusions, and possible fracture of the cervicle vertebrae. It was necessary to tap the subarachnoid space to withdraw fluid in order to relieve pressure on the Spinal column. The medical testimony further establishes that the disability in cases of such injury would be from three to eight months, with probable permanent injury. Neither 'doctor had recently examined the plaintiff, and therefore were unable to say if he was still disabled from doing manual labor, as he claimed.

We feel that under the circumstances of :the case, justice will be done by awarding compensation as" of total disability for a period of 32 weeks, at 65 per cent of $15 per week.

It is therefore ordered, adjudged, and decreed that the judgment of the district court be, and it is, annulled, avoided, and reversed; and it is now ordered that there be judgment herein in favor of plaintiff, George Labostrie, and against defendant, Prank R. Weber, in the sum of $9.75 per week for 32 weeks, beginning May 13, 1929, with 5 per cent interest per annum upon each installment from its due date until paid, defendant to pay all costs in both courts.


author: JANVIER, J. PER CURIAM.

text:
    No. 13,394
    Orleans
    MAX BARNETT FURNITURE CO., INC., v. BOMARITO
    (November 17, 1930. Opinion and Decree.)
    (December 15, 1930. Rehearing Refused.)

      See, also, Max Barnett Furn. Co., Inc., v. Bomarito, 13 La. App. 73, 126 So. 254.
    McLoughlin & West, of New Orleans, attorneys for plaintiff, appellee.
    Theo. Cotonio, Sr., and Theodore Cotonio, Jr., of New Orleans, attorneys for defendant, appellant.
   JANVIER, J.

On November 17, 1926, Max Barnett Furniture Co., Inc., sued Mrs. Bomarito, praying for judgment as the holders of a certain past due promissory-note.

The prayer of the petition asked for judgment for $158.93, interest at 8 per cent from August 2, 1926, for attorney’s fees at 10 per cent on principal and interest, and for all costs. The note sued on was annexed to and made part of the petition.

No answer was filed and on December 3, 1926, a preliminary default was entered.

Nearly three years later, on October 15, 1929, judgment was rendered in favor of plaintiff as ©rayed for, subject to credits totaling $171.68, which plaintiff admitted it had received and which are shown on a list which we find in the record and to which .the judgment refers.

' This judgment was ■ signed on October 21, 1929. -

On November 8, 1929-,. a writ of fieri facias was issued and, under it, on December 12, 1929, a notice of seizure was issued to Mrs. Bomarito. In this notice the ■ amount of the judgment was stated as “$158.93, with interest and costs.” The notice eontained no reference to the credits which were mentioned in the judgment.

On December 16, 1929, Mrs. Bomarito filed a petition praying that the Barnett Furniture Company and the civil sheriff be enjoined from proceeding with the said seizure and also that the judgment to which we have referred be declared null and void for the following reasons:

"That the judgment which plaintiff secured was rendered by fraud and ill practices.
"That on October 15, 1929, the day of the rendition of the judgment rendered herein, petitioner was not indebted to the' plaintiff Max Barnett Furniture Co., Inc., in the sum of One Hundred Fifty-eight Dollars and Ninety-three Cents ($158-.93) as it is made to appear in said judgment.
"That if any one did testify in Court that One Hundred and Fifty-eight Dollars and Ninety-three Cents ($158,93) was due to said Max Barnett Furniture Cq., Inc., that such testimony was false and untrue.
“That petitioner had, prior to the rendition of said judgment, liquidated and satisfied plaintiff’s demand.”

On this petition a temporary restraining order was issued.

When the matter came up for trial on the rule for the issuance of the temporary injunction, it was agreed that the trial should be considered a trial on the merits and that the judgment to be rendered should either grant or deny a permanent injunction and should be definitive so far as the petition for nullity of the first judgment was concerned. Judgment was then rendered maintaining the validity of the original judgment, recalling the restraining order and refusing the injunction. The Barnett Company was also awarded $25 as attorney’s fees for services rendered by its attorneys in • obtaining the dissolution of the restraining order.

From the money judgment rendered on the note a devolutive appeal was .taken by Mrs. Bomarito, who has also obtained a so-called suspensive appeal from the judgment refusing the injunction and refusing to annul the first judgment. In Max Barnett Furniture Co., Inc., v. Bomarito, 13, La. App. 73, 126 So. 254, which was an application for a writ of prohibition, we held that the said judgment was not suspensive in that it did not maintain in effect the preliminary restraining order.

The two appeals are now before us and we deem it more orderly to first consider the appeal from the judgment on the note.

Defendant complains of that judgment on two grounds: That there is in the record no evidence to sustain it, and that it is uncertain in amount.

An examination of the record discloses a total lack of evidence. We find actually present in the record the note sued on and the document referred to in the judgment as showing the credits to which defendant was and is entitled, but there is no note of evidence showing that the documents were presented and offered in evidence, nor is there anything to show that any witness testified as to the fact that the note had matured by reason of the maker’s failure to pay any particular installment, nor as to the date on which’ such delinquency commenced, nor as to the time at which interest commenced to run.

It is true that the preliminary recital in the judgment is to the effect that plaintiff has produced due proof, but in view of the clerk’s certificate that the record contains all the pleadings, evidence and documents, we cannot, in the absence of such necessary evidence, indulge the presumption that it was presented below and has been omitted from the record.

“The clerk’s certificate must be held for purposes of this appeal to import full faith, and it declares that the transcript filed contains all the evidence adduced. Then none was adduced, for none appears. Hence, the judgment stands before us unsupported.”

Harrison & Bro. v. Soulabere, 52 La. Ann. 707, 27 So. 111, 112.

Nor do we believe that plaintiff’s situation is bettered by the fact that the petition is verified and contains all allegations as to the time at which the note matured and as to the time at which interest commenced to run. If the suit were one on an open account, such an affidavit might serve the purpose of making prima facie proof. C. P. art. 312.

But we find nothing in the record which authorizes us to treat the matter as a suit on an open account, in view of the fact that such obligation as may have originally existed for goods sold and delivered has been converted into one on a note.

Our attention is directed to the fact that by reference to the list of credits which is mentioned in the judgment it will appear that all but one of the payments shown thereon were made by the defendant after she had been served with the citation and with copy of the petition, and we are urged to hold that, by thus having made the said payments, after receiving knowledge of the amount claimed, defendant cannot be heard to contend that the amount claimed in the petition, which is exactly the same as that set forth in the judgment, except for the credits, is incorrect.

If the list of credits had been introduced in evidence and it had been testified that the amounts shown thereon had been paid on the dates set forth, we would have had no hesitancy in coming to the conclusion that an estoppel would have resulted. But the authorities are overwhelmingly to the effect that documents, though physically in the record, cannot be considered as evidence unless they have been formally offered. Wilkin-Hale State Bank v. Tucker et al., 148 La. 980, 88 So. 239; Jacobs Bros. Walkover Boot Shop v. Bel, 1 La. App. 14; Bilich et ux. v. Mathe, 149 La. 484, 89 So. 628; Marchand v. H. T. Coffee & Wallace & Co., 23 La. Ann. 442.

Therefore, the said document cannot be considered as evidence against defendant and, without its effect in establishing that the payments were made after defendant was served with citation and with copy of the petition, there is a complete lack of evidence to support plaintiff’s claim that the judgment is correct.

We feel that to render a judgment of non-suit would probably result in the filing of a new proceeding and that, therefore, it is preferable that the matter be remanded to the district court, in order that such evidence as is available may be introduced. C. P. art. 906; Wilkin-Hale State Bank v. Tucker et al., 153 La. 47, 95 So. 396.

The judgment of the Civil District Court rendered on October 15, 1929, and signed on October 21, 1929, is annulled, avoided and reversed, and the matter is remanded to the Civil District Court for further proceedings according to law, and not inconsistent with the views herein expressed, costs of this appeal to be borne by appellee; other costs to await final judgment.

It is further ordered, adjudged and decreed that the judgment rendered January 9, 1930, and signed January 15, 1930, recalling the restraining order and refusing the injunction prayed for and allowing attorney’s fees, be and it is annulled, avoided and reversed, all costs of injunction proceeding to be borne by Max Barnett Furniture Co., Inc., respondent and appellee.

PER CURIAM.

In an application for rehearing counsel for Max Barnett Furniture Company, Inc., suggest that the opinion rendered by us on November 17, 1930, does not set forth whether we intended merely to reverse the main judgment because of insufficient evidence or whether we intended to hold that the district court was in error in rendering judgment setting aside the preliminary restraining order.

If we have not made ourselves clear on this point it may be that it will be contended that we intended to hold that the judgment in favor of the Max Barnett Furniture Co. was obtained by ill practice, which is the ground op which the injunction was asked for. We had no such intention.

Having found that there was not in the record sufficient evidence to justify a judgment in favor of plaintiff on the main demand, we reversed that judgment. The lower court, on the rule for injunction, had held that no ill practice was resorted to in obtaining the judgment on the merits and we found it unnecessary to consider that phase of the matter, since, in rendering judgment as of non-suit, we intended to restore each of the parties to its or to her original status.

Rehearing applied for is refused.


text:
    No. 13,351
    Orleans
    BIAMI v. CO-OPERATORS FRATERNELS BENEVOLENT AID ASSN.
    (December 1, 1930. Opinion and Decree.)
    (December 15, 1930. Rehearing Refused.)
    S. S. Goldman, of New Orleans, attorney, ■for plaintiff, appellee.
    Loys Charbonnet, of New Orleans, attorney for defendant, appellant.
   HIGGINS, J.

Plaintiff brings this action to recover the amount which she alleges is due her as the holder of a death benefit certificate issued by the defendant fraternal association. The defense is that a new certificate had been issued upon the application of the deceased member in favor of another beneficiary and in lieu of the one held by plaintiff and that, therefore, the holder of the new certificate and not the plaintiff was entitled to the money claimed by the plaintiff in this suit. There was judgment in favor of the plaintiff for the sum of $135 and defendant has appealed.

On the trial of the case it was shown that the plaintiff was the surviving widow of a member of the defendant association and that a death benefit certificate on her husband’s life was issued in her favor on January 16, 1908. On June 8, 1916, on application of the deceased, a new certificate was issued in lieu of the old one, in favor óf Louise Miller as beneficiary. Upon the death of the deceased, $1 for each active member was assessed in accordance with the provisions of the death benefit certificate and the constitution and by-laws of the defendant association, amounting to the sum of $135, th'e fund for which the present suit is brought. Plaintiff is the holder of the original certificate .and Louise Miller is the holder of the last certificate. Both lay claim to the money and the company has held the funds in its possession to await the decision of the court in this matter. • .

It is the contention of the plaintiff that, as the first designated beneficiary and widow of the deceased, she had a vested interest in the death benefit certificate and, as Louise Miller is not one of the designated beneficiaries under section 6 of Act 256 of 1912 and section 90 of the bylaws, that the issuance of the second certificate is without any legal effect.

.The defendant contends that the death benefit certificate upon its face expressly provides that the member may, at any time, change the designated beneficiary of the certificate to another person and that section 90 of the by-laws, wherein the widow and orphan children are named as beneficiaries, would only be operative 'where ] the deceased failed to designate a bene-' ficiary.

It appears that the defendant is an in-, corporated fraternal and benevolent asso-' ciation and that it issued death benefit. certificates on the lives of its members in favor of a person or persons who were designated as beneficiaries in the certificate. Such associations are regulated and governed by the provisions of Act 256 of 1912. Section 6 of that Act provides:

“That the payment of death benefits shall be confined to wife, husband, relative by blood to the fourth degree, father-in-law, mother-in-láw, son-in-law, daughter-in-law, stepfather, stepmother, stepchildren, children by legal adoption, or to a person or persons dependent upon the member * * ft

Section 90 of the association’s by-laws' reads:

“At the death of an active member, each active member will be assessed the sum of fifty cents for his widow, in default of a widow to his orphans, and in default of his orphans to the one whomsoever had charge of him during his sickness and can. furnish sufficient proofs.”

It is not intimated, in fact it is not contended, that Louise Miller, the party, designated as beneficiary of the second certificate, was related in any manner whatsoever to the deceased member, or dependent upon him. The statute definitely fixes the classes of persons who are eligible to be designated as beneficiaries, and, since Louise Miller does not come within any of such classes, the designation of her as beneficiary was a nullity and in no manner affected the rights of the original beneficiary, the widow of deceased and the plaintiff in this suit.

In the recent case of the Succession of Jones, 12 La. App. 592, 126 So. 730, 731, this court quoted with approval the following language from Richardson v. District Grand Lodge No. 21, a case also decided by this court and handed down November 19, 1917, to-wit:

“Where the classes of persons to whom benefits may be paid are prescribed by statute or by the Society’s charter of incorporation, neither the Society nor a member, nor the two combined, can divert the fund from the classes prescribed; the society has not power to issue a certificate payable to a person (not) belonging to one of those classes, and the designation of a person thus ineligible as beneficiary is nugatory.”

• See, also, Chance .v. Grand Lodge Knights of Pythias, 13 La. App. 362, 125 So. 894.

Since the appointment of Louise Miller as beneficiary was a nullity, the original beneficiary remains unchanged. In the case of the Succession of Blackwell, 12 Orleans Appeal 395, it was said:

“By reason of the substitution of the new beneficiary being void, the original beneficiary remained unaffected.”

Consequently, for the reasons assigned, the judgment appealed from is affirmed.


author: DREW, J.

text:
    No. 2911
    Second Circuit
    UMBARGER v. TOWER
    (December 23, 1930. Opinion and Decree.)
    Herndon & Herndon, of Shreveport, attorneys for plaintiff, appellee.
    Jos. B. Crow, of Shreveport, attorney for defendant, appellant.
   DREW, J.

On the 29th day of April, 1926, J. C. Umbarger filed suit, alleging that on May 13, 1916, he had obtained a judgment against the defendant, Mrs. Emma E. Tower, in the sum of $388.20, with legal interest from August 1, 1913, until paid, and that said judgment had never been paid, and that he desired to have the said judgment revived before it prescribed. He alleged that the defendant was a resident of Caddo parish, La., and prayed for service and citation in accordance with the law and for judgment reviving the said judgment and giving it full force and effect for ten years from the date of the order of court reviving the same.

Defendant answered, denying that any valid judgment was ever rendered against her, and that the pretended judgment that plaintiff is attempting to revive was, is, and always has been an absolute nullity, for the following reasons:

(1) That said judgment was rendered without any citation being served upon her and without notice to her of the pendency of the suit;

(2) That said pretended suit was entertained by the First district court of Caddo parish and said judgment rendered by it without jurisdiction because defendant was at the time and before the said suit was filed and judgment rendered, a resident of the county of Harris, state of Texas, where she was regularly domiciled and where she was maintaining an established business;

(3) That no notice of judgment was ever served on her, and no notice given her that any such judgment had been rendered;

(4) That the returns of the sheriff on the pretended citation and notice of judgment, in so far as they attempt to show domiciliary service or any other sort of service on defendant, are false and untrue and contrary to the facts; and

(5) That the district court of Caddo parish, La., was without jurisdiction ratione personae et materia.

Defendant, assuming the position of plaintiff in reconvention, alleges that she has been damaged in the sum of $75 for attorney’s fees, and $150 for annoyance, mental worry, loss of time in attending court, and inconvenience on account of her property being seized under an attempt to execute the judgment, which is a nullity. She prays for the demands of plaintiff to be rejected, for the judgment sought to be revived to be decreed null and void, and for judgment in reconvention in the sum of $225.

On these issues the case was tried in the lower court, resulting in judgment for plaintiff as prayed for, and from that judgment defendant prosecutes this appeal.

Since the case was lodged in this court, the plaintiff has departed this life, and his wife and daughter were made parties plaintiff, and, since the ease was submitted in this court, the wife has departed this life, and the daughter, Miss Avonia Umbarger, has been made sole party plaintiff by petition to this court alleging that she is the sole and only heir of her deceased father and mother.

There is only one question to be decided in this case. Plaintiff contends that the domicile of defendant at the time of the filing of the original suit was in Caddo parish, La. Defendant contends that her domicile at the time was in Harris county, Tex. It is admitted that her domicile at the time of filing this suit is in Caddo parish, La. The original suit was filed on the 24th day of April, 1916. Service and citation were made on April 26th, and the return on said citation reads as follows:

“Received the within citation on the 4-24 day of April, 1916, and on the 26th day of April, 1916, served the same on the within named Mrs. E. E. Tower at her residence - miles from the Court House in the Parish of Caddo, State of Louisiana, by handing a certified copy hereof, together with a certified copy of plaintiff’s petition to Emery Tower, upon inquiry learned his name to be Emery Tower a person over the age of 14 years living in the same house with the said Mrs. E. E. Tower she being temporarily absent from home at the time of said service.
“C. G. Owen,
“Dy. Sheriff.”

On May 13, 1916, judgment by default was rendered against the defendant in the amount prayed for by plaintiff and on the 19th day of May, 1916, formal notice of judgment was served, and the return of the sheriff on said service is identical with the return made on the citation and service of petition on April 26, 1916.

Defendant moved to Caddo parish in the year 1908, first to Oil City, and later to Cedar Grove, where she constantly lived until a short time prior to the filing of this suit. On moving to Cedar Grove, she and one Emery Tower, a cousin of her former husband, erected a home together and resided in said home for many years. In fact, the defendant and Emery Tower had occupied the same house since she first moved to Caddo parish. There is no dispute over the fact that Caddo parish, La., was the domicile of defendant from 1908 until the spring of 1916.

In the spring of 1916, defendant went to Humble, Tex., where she remained until the fall of that year, being absent from Caddo parish for a period of six or seven months. She contends that she moved to Humble with the full intent of making that her home, and that by actually residing in Humble with the avowed intent of making that place her home in the future was sufficient to change her domicile from Caddo parish, La., to the state of Texas. It is true that the act of residing at Humble, combined with the intent of making that place her home, is sufficient under the law, l}ut how shall we arrive at the intent? We must take into consideration the circumstances surrounding the move and the other acts of defendant.

Defendant owned a good home in Cedar Grove, La. When she moved to Texas, she took very little of her household goods, only that which she could put in a trunk. She did not move her furniture, her dining room set, and only a part of her dishes and cooking utensils. Her home in Cedar Grove was left intact. On- arriving at Humble, where at the time there was an oil boom in progress, she leased a small tract of land and had erected thereon a three-r,o,pm oil field shack, consisting of a bedroom, kitchen and dining room. The house was, very cheaply constructed. . The man who built it described it as follows:

“Just a box house boarded up and down with battings at the cracks and the inside no finish at all that was all there was to it. The roof was covered with tar paper. The house was not painted.”

The lumber in the house was of an inferior grade and the carpenter that built it received $2.50 per day. Defendant did not own the land upon which the house was built, and the record does not show the length of time she had the land leased. She occupied this house in the oil field at what was known as “Moonshine Hill,” and took the oil field workers for boarders. The boom was not of long duration and as soon as it was over, she abandoned the house and returned to her home at Cedar Grove, where she has resided since.

Defendant founds her defense almost solely on the fact that she had built her a home in the oil fields of Texas. However, we are not much impressed with that fact. The very kind of shack that she had erected out there on property not owned by her, we think, militates against the idea that she intended to reside there permanently. When she left Texas, she did not sell, but simply abandoned the place and came back to her home.

Defendant had a sister living at Humble, and, learning of the oil boom at that place, business being dull in Cedar Grove, she no doubt went to Humble to make the boom and to pick up some quick, easy money. Her actions indicate such, to say the least. When she left Cedar Grove, she left the house intact, and Emery Tower continued tó live in the house, an Italian boy boarder continued to live there for some time, and she left her two grandchildren there with Emery Tower until some time later their father found that defendant had gone to Texas, when he got his children. She did not leave any forwarding address at the post office, and numerous witnesses in Cedar Grove testified that they never heard or knew of the defendant moving away from Cedar Grove. She failed to produce any of her neighbors as witnesses to prove her intention or their knowledge that she had left Cedar Grove.

The one witness who should have known more of her intentions at that time than i all others was Emery Tower. He was occupying the same house with her and had been since 1908, and continued to occupy the same house with her after she returned from Texas, and a few years later became her husband, and is now living with helas her husband. He is the man upon whom the service and citation were made and upon whom the notice of judgment was served, and the man who gave the information to the sheriff that she was temporarily absent from home. He above all others should and would have known if she had' intended to leave the state of Louisiana permanently and take up her domicile in Texas. He was not called as a witness, nor was his absence accounted for. He would have known if she had left the state to make her home in Texas, and, when the officer served the papers, he would have made that fact known to the officer', but instead he informed the officer that she was only temporarily absent.

The testimony offered by defendant, .mostly her relatives who should have known her intention, is that, in substance, if business remained good in Texas, she would remain, otherwise not. We take it that she intended to remain in Humble as long as the boom lasted, for, when the boom was over, business could not be good in the oil field. That is exactly what happened. As soon as the rush was over and business dropped off, she packed her trunk and returned to Cedar Grove.

After defendant had been in Humble for possibly a month, she executed a mortgage, by notarial act, says she signed it in Humble, Tex., and in that act of mortgage she declares that her domicile is in Caddo parish. She attempts to explain this mortgage, but without success.

In Succession of Simmons, 109 La. 1095, 34 So. 101, the court said:

“A change of domicile from another State of the Union to this State is brought about by the act of residing here, combined with the intention of making one’s home here, of renouncing citizenship elsewhere.
“The party who contends for a change of domicile bears the burden of proving it. The domicile of origin continues until another is acquired, animo et facto. So long as a reasonable doubt remains the presumption is it has not changed.”
“It requires a voluntary absence of two years to forfeit a domicile in this state. Civ. Code, art. 46. A change of residence does not operate a change of domicile unless combined with the intention of making one’s habitual residence elsewhere. Civ. Code, arts. 38, 41, 42.” Kinder v. Scharff et al., 125 La. 594, 51 So. 654.
“The essential fact that raises a change of abode to a change of domicil is the absence of any intention to live elsewhere (Story, Conflict of Laws, sec. 43); or, as Mr. Dicey puts it in his admirable book, ‘the absence of any present intention of not residing permanently or indefinitely in’ the new abode.” Williamson v. Ostenton, 232 U. S. 619, 34 S. Ct. 442, 58 L. Ed. 761; Gilbert, v. David, 235 U. S. 561, 35 S. Ct. 164, 59 L. Ed. 364.
“A domicile once acquired is presumed to continue until it is shown to have been changed.” Warren Mitchell v. U. S., 88 U. S. (21 Wall.) 350, 353, 22 L. Ed. 584, 585; Ballard v. Puleston, 113 La. 235, 36 So. 951; Civ. Code, arts. 38, 41 and 43.

The defendant has failed to meet the burden that is upon her to show a change of domicile, and the lower court, in holding that her domicile at the time of the filing of the original suit was in Caddo parish, La., was correct.

It is therefore ordered, adjudged, and decreed that the judgment of the lower court be affirmed, with all costs, and that Miss Avonia Umbarger be substituted as party plaintiff.


text:
    No. 3892
    Second Circuit
    THOMPSON CHEVROLET CO. (Plaintiff or Intervener) v. BLANCHARD
    (December 23, 1930. Opinion and Decree.)
    Dhu Thompson, of Monroe, attorney for plaintiff, appellant.
    W. D. Cotton, of Rayville, and Edwin L. Gladney, Jr., of Bastrop, attorneys for .defendant, appellee.
   ODOM, J.

On or about April 3, 1930, an automobile belonging to the defendant, Blanchard, was seized and ordered sold under a writ of seizure and sale in the case styled C. J. Goodwin v. "W. C. Blanchard, No. 7845, on the docket of the Fifth district court for the parish of Richland. On or prior to the date of sale this plaintiff intervened in the suit by way of third opposition, claiming the proceeds of the sale by virtue of an alleged superior lien and privilege on the automobile for labor and parts furnished in the repair of the car.

Plaintiff attached to and made a part of its petition an itemized account showing that the labor account for making the repairs amounted to $34.35 and that the value of the material and parts used in connection therewith was $78.81.

The lien and privilege the plaintiff asserts is claimed under a special statute, Act No. 209 of 1926, p. 337, which provides that those making repairs upon automobiles, trucks, etc., “shall have a lien and privilege upon the automobile, truck, or machine so repaired or for which such repairs were made or parts furnished or made and for the labor performed upon same, for a period of ninety (90) days from the date of making of such repairs or parts or performing such labor, said period to run from the last day such repairs or parts are made or labor performed when the repairs done, parts made or labor performed require more than one day to complete.” Section 1. •

Plaintiff’s itemized account, attached to and made part of its petition, shows that the first item charged thereon is dated November 16 and the last December 22. Its first step to enforce its lien and privilege was on April 25 of the following year, more than ninety days after the last item was charged.

C. J. Goodwin, plaintiff in the original suit, filed in limine an exception of no cause of action, and, from the judgment sustaining the exception, intervener has appealed.

The act above cited under which intervener claims to have a lien and privilege on the automobile repaired provides in specific terms that those making such repairs “shall have a lien and privilege upon the automobile * * * for a period of ninety (90) days * * * said period to run from the last day such repairs or parts are made or labor performed when the repairs done, parts made or labor performed require more than one day to complete.”

Intervener’s petition affirmatively shows that the last day on which labor was performed or parts furnished was more than ninety days prior to the date of its filing. It therefore follows necessarily that intervener had no privilege on the car or its proceeds when the intervention was filed and its alleged privilege asserted, and, further, that, as intervener did not pray for judgment against defendant, Blanchard, and as the only purpose of the intervention was’ to have the privilege recognized, the petition of intervention sets out no cause of action, and the judgment sustaining the exception was proper. As an alternative demand, intervener asks, in case the court should hold that it has no lien and privilege on the automobile repaired under the special statute above cited, that it be accorded the privilege allowed by law to vendors upon the parts and material furnished by it and used on the car. Under intervener’s allegations it cannot he held that it has a privilege as vendor upon the materials and parts furnished for defendant’s ear. While it is true that in paragraph 2 of the petition it is alleged that a portion of the total amount charged is for “parts' and accessories fully itemized and described on the annexed sworn account, sold and delivered to defendant by petitioner,” yet the petition when considered as a whole and in connection with the account which is made part of it shows that the parts and material were not. in fact sold to defendant, but were used in repairing the automobile. The pleading shows that the contract entered into by plaintiff and the defendant, Blanchard; was' for the repair of the automobile.

Counsel for intervener in his brief under the general head “Statement” says:

“In November, 1929, one W. C. Blanchard, the owner of a Chevrolet car, had a wreck near Delhi, Louisiana, whereby his car was partially destroyed.
“At the request of Blanchard, the plaintiff, appellant herein, Thompson Chevrolet Company, Inc., which does a general garage business, and handles the Chevrolet car at Delhi, Louisiana, sent its wrecker^ to the scene of the accident and carried the wrecked car to its place of business, where it repaired and over-hauled the car at Blanchard’s request.”

The word “repair,” when used as a verb, as defined by Webster, means to restore to a solid or good state after decay, injury, dilapidation, or partial destruction. Intervener was employed by defendant to repair this car after it had been wrecked and practically destroyed. To restore the car to solid good order, plaintiff necessarily had to use material and parts. The car could not have been repaired or restored to good order without them, and therefore the furnishing of the material and parts was an incident to and a part of the repair contract. The furnishing of parts and material used in connection with the repair of an automobile does not convert a repairman into a vendor. The relationship of vendor and purchaser does not arise under such circumstances.

The purpose of the above-cited statute is to protect mechanics who furnish labor and materials for the repair of automobiles, trucks, etc., and has reference to repair contracts only. The act contemplates that material and parts may have to be used as an incident to such contracts, and creates a lien on the car repaired not only for the work done, but for the value of the parts and materials as well. But that lien exists for a period of ninety days only. As that period had lapsed when this intervention was filed, the plaintiff or intervener has no privilege under the act.

For the reasons assigned, the judgment appealed from is affirmed, with all costs.


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    No. 3916
    Second Circuit
    MARTIN v. INTERURBAN TRANSPORTATION COMPANY, INC.
    (December 23, 1930. Opinion and Decree.)

      J. B. Dawkins, of Monroe, attorney for plaintiff, appellee.
    Hawthorne, Stafford & Pitts, of Alexandria, attorneys for defendant, appellant.
   ODOM, J.

The defendant owns and operates motorbusses for the carrying of passengers for hire over the highways of this state. On July 31, 1929, plaintiff took passage on one of its busses at Bosco, in Ouachita parish, and paid the usual fare to Monroe. Between Bosco and Monroe the bus ran off the road into a shallow ditch, causing plaintiff to be thrown from her seat against the door, and she was injured. She prosecutes this suit for damages.

Plaintiff alleged that her injuries resulted solely from the fault and negligence of the defendant company, its agents and employees, in operating a passenger vehicle which was “defectively equipped and negligently and carelessly operated.’’

Defendant in answer admitted that plaintiff was a passenger for hire on one of its busses and that the bus “met with an accident” causing the right front wheel to go into the ditch on the right-hand side of the road, but denied all of plaintiff’s other allegations.

Its defense is that it was guilty 'of no fault or negligence in the operation of the bus; that the driver lost control because the tie rod, which is part of the steering mechanism, suddenly and unexpectedly broke while the bus was on the road going not over 25 miles an hour; that, when the driver realized he was losing control, he applied the brakes and did everything in his power to hold the bus on the road, but could not do so; that the accident' was wholly unavoidable; that the tie rod was made of steel and was 1% inches in diameter and without visible defects, and, in the alternative, if it should be held that the rod was defective, the defect was latent and not such as could be discovered by the most careful inspection; that the steering mechanism and the tie rod itself were inspected by competent mechanics before the bus left on this trip and was found to be in perfect condition so far as could be seen by proper inspection.

Prom a judgment for plaintiff, defendant appealed.

OPINION

Defendant is a common carrier of passengers for hire, and plaintiff was a passenger on one of its busses. It owed to her the duty of furnishing her safe transportation to the end of her journey. In this particular respect it failed, for she was injured while in the bus on thé way.

But it does not necessarily follow as a matter of law that defendant is liable to her in damages for these injuries. Common carriers of passengers owe to them the duty of exercising the highest • degree of care for their safe transport that is reasonable and consistent with the operation and conduct of sucn business. But they are not insurers of their safety. Unless a carrier does something it should not do or fails to do something it should do, or, in other words, unless it is guilty of some fault, there can be no recovery for injuries sustained by one of its passengers. Carriers owe to their passengers the duty of furnishing for them sound and safe vehicles for their carriage, and this carries with it the obligation of using the highest degree of care, not only of selecting safe vehicles, but of constantly and vigilantly inspecting them and seeing that they are kept in repair and safe.

In suits by passengers against carriers for personal injuries sustained during passage, when the passenger proves that he was injured and that the injuries resulted from an accident due to the failure in any respect of the vehicle or means of transportation, a presumption of negligence arises against the carrier, and the burden rests upon it to show why it failed in its duty of safe transportation.

In the case at bar, the defendant showed why it failed to safely carry plaintiff to the end of her journey and why she was injured on the way. It showed that its vehicle or machinery failed; that the tie rod, a part of the steering mechanism, suddenly and unexpectedly broke; that the driver could not hold the bus on the road and it went into the ditch, causing a sudden jar or jolt which threw plaintiff from her seat against the door with such force that she was injured.

But defendant did not thereby discharge its burden. It was necessary for it to show more than that. The fact that the tie rod, a cylindrical steel bar 1% inches in diameter broke, not from contact with any other object or from any unusual strain, but while the bus was running at a moderate rate of speed on a graveled highway, creates the presumption that it was in some way defective.

The testimony amply warrants the conclusion that this rod was defective, but that fact alone does not necessarily fasten liability on defendant. But if the defect was known to defendant, or if it could have been discovered by such inspection as it was defendant’s duty to make, then defendant is liable.

The defendant operates bus lines to various points in the state with Alexandria as headquarters, from which point th.e busses leave in the morning and to which they return at the' end of the trip. When a trip is completed, the vehicle is carried to a general garage, where it is washed clean underneath with a steam washing machine, and it is inspected. The testimony shows that this particular bus was washed and inspected before it was taken out on the morning of the day on which this accident and injury took place; the inspection being made by Mr. Franklin, an experienced and competent mechanic, with the assistance of Mr. Deckert, another mechanic. The front end of the bus, after being cleaned, was jacked up, and Franklin went under it, looked at the tie rod, took hold of it, shook it as well as the wheels to see if all connections were in place and tight, and found that they were. He saw no defect in the tie rod. Deckert got into the bus while Franklin was inspecting the steering mechanism, operated the steering rod while the wheels were off the floor, and it was found that the entire machinery worked perfectly. It is shown that Franklin is an expert mechanic, and that it was his special duty to make these daily inspections, and that he had for a number of years been employed by defendant and other corporations engaged in the same line to do this kind of work. Franklin and other expert mechanics employed by motor transfer companies testified that the method of inspection practiced by defendant and made on this occasion was the same as used by others engaged in the same line of business.

It is not contended that Franklin did not' make the inspection which he says he did, nor is it claimed that there was any defect in the tie rod which could have been discovered with the natural eye. As a matter of fact, there seems to have been no crack or visible flaw in the rod. The break was clean and new. The rod itself was new, having been used only sixty days, and ordinarily such rods last indefinitely; the mechanics saying that they rarely ever break, but that they sometimes do and for reasons hard to explain. The rod was manufactured by the White Motor Company, a manufacturer of standard, high-grade motorbusses and parts used throughout the country.

The rod broke or came in two while the bus was on the graveled road, running about 25 miles an hour, without coming in contact with any other object and without any sudden jar. It is suggested by counsel for plaintiff that probably the driver lost control and the rod broke as the bus went off the road, but the testimony shows otherwise. The driver says that as he was driving along on a slight curve he felt something about the steering mechanism give way, saw he could not guide the vehicle, and at once warned the passengers to hold to their seats as he was likely to run off the road. Two of the passengers testified, touching this point, each saying that the driver shouted a warning before the bus left the road, and their testimony is not contradicted.

Just why this rod broke or came in two as it did the mechanics could not say definitely. They all said that such rods seldom break, but that they sometimes do and without any apparent cause. They advance two theories — one that it may have been rendered defective by improper case hardening at the factory; that it sometimes happens, though not often, in the process of tempering or hardening one section or portion of the rod is made extremely hard, brittle, and easily broken so that ordinary jolting on graveled roads will cause them to snap in two. The other is that the metal may have become “crystallized” or hard and brittle due to constant vibrations.

Mr. N. M. James, who operates the “James Machine Works” at Monroe, and repairs machinery of all kinds, was told the circumstances of this break and asked what, in his opinion, caused it. He said: ‘‘Well, the most common theory is what is known as crystallization of metal.” On being asked what causes crystallization of a tie rod, he said:'

“Well, there are two general things that cause crystallization in metals. One is being subjected to heat and cold several times and another is being subjected to high rate of vibration or rapid rate of being vibrated, subjected to a high-pitch vibration.”

He said it was not likely that a tie rod or parts of it would form into crystals unless the connecting joints were loose. From this it is argued that there would have been no crystallization unless the connecting joints had been loose and that an inspection would have shown that they were loose. But the testimony of Franklin shows that they were not.

We quote further from Mr. James’ testimony as follows:

“Q. Ordinarily you don’t have very many broken tie rods, do you?
“A. No sir, we run across some that are broken but it is not as a result of wear.
“Q. It is the result of a lick or blow usually?
“A. Well, we find some that are broken that apparently there is no cause for, they haven’t been hit.
■ “Q. And you can’t see any reason for it?
“A. Just breaks.”

The testimony all shows that a defect in metal caused by crystallization or hardening cannot be detected by ordinary inspection, that a mechanic cannot tell by looking at a piece of metal whether it is defective in that respect or not, and that such defects are latent, So that, conceding that the tie rod was defective in that it was hard and brittle at the point where it broke due to improper case hardening at the factory or that it had become crystallized due to excessive vibrations resulting from use, it is manifest that the defect was latent.

Common carriers are not liable for injuries to their passengers resulting from accidents due to latent defects in their machinery. Jackson et al. v. Natchez & W. Ry. Co., 114 La. 981, 38 So. 701, 70 L. R. A. 294, 108 Am. St. Rep. 366.

“The duty of the carrier as to furnishing machinery and appliances originally safe, suitable, and adequate is discharged by a purchase thereof from a competent and reputable manufacturer and an inspection to detect defects discoverable by any tests which the highest degree of care and prudence can suggest, and hence it will not be liable for injuries resulting from hidden defects which could not be discovered and provided against in the exercise of such care and prudence.” 10 Corpus Juris, p. 954, sec. 1373.

The suggestion is made that it was the duty of defendant in making the inspection to go further than to look at the rod for defects; that the rod should have been taken loose from the other machinery and its strength tested. We do not think so.

Defendant made use of the best and most approved machinery and appliances, such as are in general use and found to be safe. The rod was manufactured by the White Motor Company, a standard manufacturer of such appliances. It kept its machinery up to date. About sixty days previous to this accident the manufacturers -directed that their busses be equipped with steering devices of recent manufacture and different from those formerly used, and the new mechanism was installed in this bus. The machinery was not only in common use, but it was standard, and there was nothing to suggest that the method of construction was inherently negligent or dangerous. Under such circumstances we do not think it was defendant’s duty to test the strength of the rod before using it. It would have been going too far to say that a carrier, in order to discharge its duty to inspect, must dismantle its machinery before using it and test each part for strength when such machinery is new and of standard manufacture.

The method of inspection adopted by this defendant is the same as that used by carriers generally, and we think the inspection made in this case was sufficient, and that, in making the inspection as it did, defendant discharged its duty. The breaking of the rod was purely accidental and could not be foreseen.

A carrier is liable for injuries to its passengers only in case it is negligent in the performance of some duty imposed upon it. Frelsen v. Sou. Pac. Co., 42 La. Ann. 673, 7 So. 800; McGinn v. New Orleans R. & Light Co., 118 La. 811, 43 So. 450, 13 L. R. A. (N. S.) 601; Reems v. New Orleans G. N. R. Co., 126 La. 511, 52 So. 681; Blashfield’s Encyclopedia on Automobile Law, vol. 1, p. 280; Huddy on Automobiles, p. 194.

Counsel for plaintiff cites article 2754 of the Civil Code, which provides that “carriers and watermen are liable for the loss or damage of the things entrusted to their care, unless they can prove that such loss or damage has been occasioned by accidental and uncontrollable events,” and argues that carriers of passengers, in order to escape liability for their injuries, must make proof similar to that necessary in order to escape liability for loss or damage to goods intrusted to their care. But our Supreme Court has in several cases stated that the above-cited article refers to things and not to persons. Patton v. Pickles, 50 La. Ann. 857, 24 So. 290; Kennon v. V. S. & P. R. Co., 51 La. Ann. 1599, 26 So. 466; Aiken v. Sou. Pac. Co., 104 La. 157, 29 So. 1.

In McGinn v. New Orleans Railway & Light Co., supra, it was held, to quote the syllabus written by the court:

“The rigor of the rule announced in article 2754 of the Civil Code touching the burden of proof of carriers is to some degree relaxed in the case of damage to passengers from what it is in reference to things in their care.”

TJie general rule is stated as follows in 10 Corpus Juris, sec. 1302, p. 863:

“A carrier of passengers is not as absolutely liable for the safety of the passengers as a carrier of goods is for the safety of the goods; but it is only liable for injuries to passengers which are caused by its negligence in failing to exercise the proper degree of care, skill, and diligence for such passengers’ safety, and therefore is not an insurer of the safety of passengers, in the sense in which a carrier of goods is said to be an insurer of the safety of the goods, and hence is not liable for injuries caused by an accident which an exercise of the proper degree of care, skill, and diligence could not anticipate or prevent.”

For the reasons assigned, the judgment appealed from is reversed and avoided, and plaintiff’s suit dismissed at her cost in both courts.


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    No. 3820
    Second Circuit
    WHITE v. BEARDEN
    (December 23, 1930. Opinion and Decree.)
    Robt. M. McGehee, of Parmerville, attorney for plaintiff, appellee.
    Harvey G. Fields, of Farmerville, attorney for defendant, appellant.
   WEBB, J.

This action by Monroe White against C. M. Bearden is based on a note which was drawn by C. M. Bearden and Fordie Atkins, payable to the order of J. C. Redden, and by him indorsed in blank and transferred to plaintiff.

The defenses interposed were that defendant was an accommodation drawer for Fordie Atkins, that the note was given to J. C. Redden in part payment of an automobile, which had been returned to Redden, who agreed to cancel the note, and that plaintiff acquired the note after maturity, and with knowledge of the facts pleaded.

On trial, judgment was rendered against defendant as demanded, and defendant appeals. Neither party has made any appearance here, and there is not any assignment of errors, and from our review of the record, we find that plaintiff acquired the note before maturity, without any knowledge of any equities existing between the drawer and drawee.

The judgment appealed from is affirmed, at appellant’s cost.