text:
    No. -
    First Circuit
    DIXON v. EULA LUMBER CO.
    (January 7, 1927. Opinion and Decree.)
    (March 8, 1927. Rehearing Refused.)

      (Syllabus by the Editor)
    1.Louisiana Digest — Master and Servant —Par. 158.
    An injured employee suing for compensation under the Workmen’s Compensation Act No. 20 of 1914, who had been four or five years at hard labor without a truss before developing a large hernia; held to have proven the injury sustained in the course of his employment.
    2. Louisiana Digest — Master and Servant —Par. 160 (e), 160 (I).
    Where the evidence does not show that the injured employee suing for compensation under the Workmen’s Compensation Act No. 20 of 1914, because of a large hernia, is entitled to compensation for permanent total disability or permanent partial disability, nor the difference between the wages that he is able to earn and those received at the Ume of the injury, the case will be remanded for trial on these points.
    3. Louisiana Digest — Master and Servant ■ —Par. 160 (e), 160 (k), 160 (l).
    ■ Under Section 21 of the Workmen’s Compensation Act No. 20 of 1914, as amended by Act 247 of 1920, where the trial court did not consider the agreement between the injured employee and the attorney, the case will be remanded .for the purpose of considering the reasonableness of this contract under the act.
    Appeal from the District Court, Parish of Vernon. Hon. Hal A. Burgess, Judge.
    Action by Willis E. Dixon against Eula Lumber Company.
    There was judgment for defendant and plaintiff appealed.
    Judgment reversed and case remanded to lower court for new trial.
    Fern M. Wood; Hardin, Hardin & Cavanugh, of Leesville, attorneys for plaintiff, appellant.
    Thompson & Ferguson, of Leesville, attorneys for defendant, appellee.
   ELLIOTT, J.

Willie Dixon, a negro man about 34 years old, employed by Gulf Lumber Company as blacksmith’s helper, alleges that, while helping defendant’s blacksmith carry a heavy piece pf iron, he stumbled and fell, straining and injuring himself, producing hernia. That his injury renders him a permanent total disability to do work of any reasonable character. He claims 65 per cent of his daily wage of $8.25 per day for four hundred weeks. Defendant admits that plaintiff was in its employment as blacksmith’s helper and received wages as alleged, but denies that plaintiff received the injury while in his service. In the alternative and in case it appeared that plaintiff had received the injury while in its service, it then denied that the injury was a total disability. It alleged that the injury was not a disability. From a judgment rejecting his demand the plaintiff appealed.

It is established that the plaintiff, on or about October 10, 1925, helped defendant’s blacksmith, Mr. Downs, carry a bar of iron, between 8 and 10 feet long, 7 inches wide and 2 inches thick. Plaintiff, testifying about the matter, says he kinder stumbled, that the end he was carrying hit him in the right side in the groin, hurting him, and that he told Mr. Downs about it after they had put the iron down. That he afterwards noticed that a knot had come, which, every once and a while, would come down. The plaintiff continued working for four or five days and then quit, going to Homer, which he says was his home. While there he consulted Dr. Featherstone, who, after examination, put a truss on him. Pie then wrote Mr. Downs, informing him of the injury he had received while helping him carry the iron. Mr. Downs turned the letter over to Mr. Green, another employee of Gulf Lumber Company, who wrote plaintiff to come back and be examined by the physician of that company. Defendant urges that the evidence does not establish with reasonable certainty that plaintiff received the injury while in its service. We find that the fact is established. Mr. Downs remembered that plaintiff, op or about October 10, helped him carry a bar of iron of the length, breadth and thickness stated by the plaintiff, and that the plaintiff complained at the time that he had hurt himself in doing so. Mr. Downs testified that plaintiff did not stumble, because he would have felt the jar; but his denial that plaintiff stumbled does not establish that palintiff did not stumble, as plaintiff says he did, because the evidence shows that it was about dark at the time and Mr. Downs adds as part of his statement that he was "not paying attention to the matter, that plaintiff was always hurting a finger or stumbling. Defendant alleges in its answer that plaintiff had been in its employ performing manual labor for several years. Plaintiff testified that he had been working fqr defendant for four or five years and had been helping Mr. Downs since March 9. We conclude that he refers to March 9, 1925, and if so he was helping Mr. Downs about seven months previous to receiving the injury; we are satisfied that such was the case. Ndw, if plaintiff had a hernia of the size described by all the physicians, at the time he came on defendant’s works, he could hardly have performed the work he was employed to do for four or five years without a truss. If he had been wearing a truss for such a length of time the truss could hardly have escaped the notice of his fellow employees in their sleeping quarters; while if he had not worn a truss his condition would have been a matter of such general observation and knowledge on the work that it would have been proved on the trial. With or without a truss, his condition could hardly have escaped the notice of Mr. Downs during seven months; in fact, the exigencies of his labor would have .made, it almost a matter of necessity to speak of it to Mr. Downs, and the fact would have been proved, on the trial.. If the injury had been received at Homer, either during his visit there after October 10 or on some previous occasion, the fact would have been found out and proved on the trial. Plaintiff’s testimony as to the time and occasion on which the injury was received is supported by his complaint to Mr. Downs and by the fact that he was soon afterwards found in the condition in which he is. We are satisfied that plaintiff received the injury in the service of defendant and as alleged in his petition,

On the question of disability, plaintiff testifies that a truss does him but little good; admits that he can do light work, but claims that he can not walk far and that to stand up for two or three hours at a time hurts him. He claims that * he is in pain all the time on account of his injury and that he is constantly growing worse. That he never had any trouble about work until, he was injured; that he only knows how to do common labor; that the work of a blacksmith’s helper is heavy, and that his injury has disabled him altogether for heavy work.

Two physicians called by plaintiff, apparently without interest in .the result, testified that his hernia was very large, so large that it could not, in their opinion, be held by a truss. That his injury incapacitates him for work that requires Stooping or lifting. That the strain on his back is calculated to cause him pain. That some men with hernia as large as plaintiff’s can do reasonable manual labor, while others can do but very little. That they never knew of a man, able to do heavy manual labor, with si hernia as large' as plaintiff’s; one of them excepted farm labor, which he believed was lighter and easier for a man with hernia than the work of a blacksmith’s helper.

Six other, physicians, called by the defendant, testified that plaintiff had a complete hernia. That they had never known a man to be totally incapacitated to do manual labor by hernia. That plaintiff could, in their opinion, do the work of a blacksmith’s helper, if properly fitted with a truss, and they claimed that they could fit him with one which will hold his hernia and enable him to do such work as he has been doing, without pain or discomfort. One of these physicians, Dr. Carroll, defendant’s chief surgeon, had examined plaintiff in November following his return from Homer. He found him with a well-developed hernia at that time and advised an operation. Dr. Carroll had himself sustained a hernia some twenty-eight or thirty years ago. He had done hard work afterwards, hut was very careful about running, jumping and turning somersaults. That some men with hernia might lift as much as they ever could, and some might not; it depended a good deal on the individual. That some men with hernia suffered pain, while others did not.

Mr. Kenesson, defendant’s master mechanic, had suffered a hernia about thirty years ago. He had been a blacksmith and says that his hernia did not prevent him from doing all kinds of blacksmith work. That- he had lost only four or five days during the last twenty-five years on account of his hernia. He was not doing hard work at the time of testifying, because he had been foreman of the machine shops for the last four or five years, and this position did nqt require him to do heavy work. Two other men with hernia, one 70 and the other 69 years of age, were called by defendant and testified apparently without interest in the result. The man of 70 had sustained his hernia about thirty years before. He had been a blacksmith, and for about twenty-five years after receiving the injury had worked at his trade. He testified that the work had been awful severe on him at times. He got along at other times without suffering. But he never was in the same condition afterwards as before; was never as capable of handling himself afterwards as before. It affected his earning capacity because he could not do heavy lifting after he was ■injured, and as time went by it got worse and worse. He had given up manual labor some years before testifying, and one of the principal reasons for doing so was the hernia.

The man of 69 had been a farmer all his life. He had sustained the hernia about five years ago. He continued to work on his farm after receiving the injury, but it disabled him to some extent. It did not annoy him as long as his truss was properly adjusted, but he could not lift like he used to do.

Plaintiff’s demand is supported by Craft vs. Gulf Lumber Co., 151 La. 281, 91 South. 736, and Ruling Case Law, Vol. 28, Section 86, p. 797.

In the case, in hand we are satisfied from the evidence that the hernia sustained by the plaintiff at the time stated, constitutes in him a serious and permanent disability, unless it is removed by an operation. We are further satisfied from the evidence that if it can not be held in proper position by a truss and without pain or unreasonable discomfort and loss of physical capacity for manual labor, that it constitutes in him a permanent total disability to do work .of any reasonable character, and that plaintiff is entitled to compensation as the law provides on that subject. And if it does not constitute in plaintiff a permanent total disability, that plaintiff is. thereby rendered a permanent partial disability to do work of any reasonable character, and in that case he should be compensated as the law provides on that subject. The judgment rejecting plaintiff’s demand is erroneous, contrary to the law and the evidence, and must be on that account annulled, avoided and set aside. But the question of plaintiff’s physical capacity for work, due to the hernia and the strength he can safely exert, with, and without a truss, is left by the evidence in doubt and uncertainty to such an extent that we are unable to satisfactorily decide from the record, as now made up, whether plaintiff’s injury should be classed as a permanent total disability or as a permanent partial disability to do work of any reasonable character. It seems to us that the physicians holding the opinion that plaintiff’s hernia could be held by a truss, and that they could fit him with one that would hold it and thereby enable him to do work of any reasonable character, such as he had done previous to the injury, without pain or unreasonable discomfort and without danger, should have been given an opportunity to fit a truss on the plaintiff and to show the court, by a practical test, to the extent that same can be established, the effect in the plaintiff, as regards his capacity for manual labor. A remand of the case is also necessary because even if it should be found that plaintiff had sustained a permanent partial disability his compensation can not be fixed for the reason that there is no evidence in the record showing the difference between his wages at the time the injury was received and the wages he has been able to earn thereafter. The rights of the parties are fixed by Act 20 of 1914, Section. 8 (Amd. Act 216 o.f 1924), in, force at the time the injury was received.

The judgment appealed from is, therefore, annulled, avoided and set aside. The case is remanded to the lower court for a new trial; the new trial to be limited and restricted to the inquiry whether the hernia, sustained by the plaintiff at the time hereinabove mentioned, constitutes in him a permanent total disability or a permanent partial disability to do work of any reasonable character during the period of disability. The case is reopened for new evidence, helpful toward showing the real condition of the plaintiff, due to hernia, and accomplishing the object of the remand. Judgment to be then rendered, proper to the disability established. The court to also consider and act on the fee ■arrangement between the plaintiff and his attorneys as provided by Act 20 of 1914, Section 21 (Amd. Act 247 of 1920). That the defendant and appellee pay the cost in both courts.


source: Caselaw Access Project

author: REYNOLDS, J.

license: Public Domain

text:
    No. 2269
    Second Circuit
    NATIONAL SAFE & LOCK CO. v. DAVIS
    (April 8, 1927. Opinion and Decree.)

      (Syllabus by the Court)

    1.Louisiana Digest — Citation and Appearance — Par. 7, 21.
    The provision of Article 180 of the Code of Practice that “if the' defendant «reside at a greater’ distance, the afore said .delay shall be increased by one | day for every ten miles that his residence is distant from the place of holding the court before which he is cited to appear,” has no application to a defendant residing out of the state cited through a curator ad hoc.
    West vs. Wilson, 4 La. 220.
    2. Louisiana Digest — Citation and Appearance — Par. 7, 21; Laws — Par. 68.
    Act 77 of 1904 does not amend Article 180 of the Code of Practice so as to make it applicable to a defendant residing out of the state cited through a curator ad hoc.
    3. Louisiana Digest — Attachment—Par. 89; Citation and Appearance — Par. 7, 21.
    Article 267, 607 and 614 of the Code of Practice have no application to a judgment rendered in an attachment suit against a non-resident of the state cited through a 'curator ad hoc,, and the defendant had knowledge of the ipendency of the action in ample time to have defended it on the merits had he seen fit to do so.
    Appeal from the City Court of the City of Shreveport, Louisiana. Hon. David B. Samuel, Judge.
    Action by National Safe & Lock Company against R. C. Davis, doing business as Davis Safe Company.
    There was judgment for defendant and plaintiff appealed.
    Judgment affirmed.
    R. C. Chandler, of Shreveport, attorney for plaintiff, appellant.
    C. B. Prothro, of Shreveport, attorney for defendant, appellee.
   STATEMENT OP THE CASE

REYNOLDS, J.

This is a suit by the National Safe & Lock Company, a foreign corporation domiciled in the state of Ohio, against R. C. Davis, doing business as the Davis Safe Company, to annul a judgment rendered against it as National Safe Company on July 22, 1924, in an attachment suit, No. R962 on the docket of the City Court of Shreveport, entitled Davis Safe Company vs. National Safe Company, wherein the plaintiff here, defendant there, was cited through a curator ad hoc, M. A. Taylor, of the Shreveport bar, the citation only allowing him twelve days in which to answer the suit.

Plaintiff alleged that it was not indebted to the defendant here, plaintiff there, in the sum sued for or in any other sum; that the seizure was wrongful; that on account of its being a non-resident the curator ad hoc should have been allowed fifteen days in which to answer; that the attached property sold for less than its actual value; and it prays judgment annulling the judgment rendered against it.

In the alternative, it prayed that it have judgment against the defendant, R. C. Davis, doing business as Davis Safe Company, in the sum of $148.20, the amount of the judgment rendered against it in his favor, and for $41.80, amount of costs collected from it in that action, and in the sum of c$50.00 attorney’s fees incurred by it, and in the sum of $235.00, difference between the actual value of the property seized and sold under the attachment and the sale price thereof. ■

R. C. Davis as Davis Safe Company filed an exception of no right or cause of action, which was sustained by the court, and the plaintiff appealed.

OPINION

Plaintiff contends that the curator ad hoc should have been allowed fifteen days in the citation served on him in which to answer the suit.

We do not think so.

The Supreme Court, in the case of West vs. Wilson, 4 La. 220, held that;

“The provisions of the Code of Practice on the subject of citation do not apply to persons «residing but of the state.”

This decision, since 1831, has constituted the settled jurisprudence of Louisiana, and, in our opinion, the amendment of Article 180 of the Code of Practice by Act 77 of 1904, adding the words, “the delay in no case shall exceed fifteen days,” does not make that article applicable to service of citation on non-residents through a curator ad hoc.

Plaintiff claims the right to sue to annul the judgment under Articles 267, 607 and 614 of the Code of Practice.

Article 267 provides:

“The absent debtor, against whom judgment has been so rendered, may, within two years after such judgment, obtain the reversal of the same, if he prove that the distance at which he lived from the place where the attachment was obtained has prevented his being apprised of the proceedings against him, and that the plaintiff has availed himself of his absence to obtain payment of a debt either already paid in totality, or partly discharged, or which did not exist.”

And Article 614 provides:

“A judgment may be reversed, if it has been rendered on an attachment against a person absent, and who had.no knowledge of 'the action having been brought against him, if such person show that he w“as not indebted, either for the whole, or for part of the sum for which the judgment was obtained and his property sold.”

It will be observed that the condition present to the right to claim relief under Article 614 is that the defendant shall not have had notice of the pendency of the suit against him.

Under the allegations of plaintiff’s petition the curator ad hoc was served on June 10, 1924, and by letter of that date he notified plaintiff of the pendency of the suit and plaintiff communicated with the curator ad hoc on June 16, 1924. Judgment was not rendered until June 22, 1924.

The articles of the Code copied above have no application to plaintiff’s case for the reason that plaintiff had notice of the pendency of the action in ample time to have defended it on the merits had he desired to do so.

Neither is plaintiff entitled to relief under Article 607 of the Code, which provides :

“A definitive judgment may be annulled in all cases where it appears that it has been obtained through fraud or other ill practices on the part of the party in whose favor it was rendered; as if he had obtained the same by bribing the judge or the witnesses, or by producing forged documents, or by denying having received the payment of a sum, the receipt of which the defendant had lost or could not find at the time, but has found since the rendering of the judgment.”

The condition present to the right of plaintiff to relief under this article is that the judgment was obtained by fraud or other ill practice, and (plaintiff does not allege in his petition that either the defendant or the. curator ad hoc was guilty of fraud or other ill practice in obtaining the judgment.

Under all the allegations of the plaintiff’s petition we think it failed to express a cause of action.

The judgment appealed from is therefore affirmed.


author: WEBB, J.

text:
    No. 2213
    Second Circuit
    GIDDENS v. WESTERN CASUALTY CO.
    (April 8, 1927. Opinion and Decree.)

      (Syllabus by the Editor)

    1. Louisiana Digest — Insurance—Par. 167, 172.
    The answer of an insurance company which is, in effect, a general denial, admits some 'character of notice, and unless a special defense, that the illness of insured was not covered by the policy, or that notice and proof of loss were not timely given to the insurance company is pleaded, these questions cannot be considered on appeal.
    2. Louisiana Digest — Insurance—Par. 181.
    Where the evidence shows that the illness of the plaintiff, the insured, began after the policy was in effect, and this is not contradicted by the part of the “Final Proof Page” admitted in evidence, the fact that the illness was covered by the policy must be considered proven.
    3. Louisiana Digest — Insurance—Par. 139.
    Under Act No. 310 of 1910 the right to’ recover an amount in excess of that called for by an insurance policy and attorney’s fees is given to the assured or his representative and does not apply to the beneficiary.
    Appeal from the Eleventh Judicial District Court of Louisiana, Parish of Red River.
    Action by Evie Giddens against Western Casualty Company.
    There was judgment for plaintiff and defendant appealed.
    Judgment affirmed.

      Nettles & Bethard, of Coushatta, attorneys for plaintiff, appellee.
    N. B. Carstarphen, of Shreveport, attorney for defendant, appellant.
   WEBB, J.

L.' B. Giddens held a policy of date July 24, 1923, in the Western Casualty Company insuring him against injury by accident and disability from illness, and subsequent to the date of the policy he became ill and died on November 28, 1923.

The policy, insofar as it relates to illness, provided that for:

“Disability resulting from illness which is contracted and begins during the life of the policy and after it has been maintained in continuous force for thirty days,” the insured should be paid the sum of one hundred dollars' per month during the period which he is necessarily confined within the house and regularly visited by a physician; and it also provided that where the premium had been paid quarterly in advance the amount du’e should be increased to the extent of five per cent.

It also provided that written notice of sickness on which any claim for disability should be made should be given within ten days after the commencement of disability and that proof of loss in case of claim for loss of time from disability should be made within ninety days from the termination of the period for which the insurer was liable.

The present action is brought by Mrs. Evie Giddens, who alleges that she is the widow of L. B. Giddens, against the Western Casualty Company, in which she alleges she is the beneficiary (which is admitted by defendant) and that her husband had been confined to his home for three months prior to his death, for which the defendant was indebted to her in the sum of three hundred and fifteen dollars, the indemnity provided by the policy, plus five per cent, under the provisions for advance payment of premiums, and that she had given the defendant notice of the illness of her husband and of his death, and demanded payment of indemnity .for disability from the illness preceding his death, and that .payment had been refused, and that she was entitled to receive as a penalty the further sum of six hundred and thirty dollars for failure of the defendant to pay an additional amount of two hundred and fifty dollars as attorney’s fees, for all which amounts she prayed for judgment with interest and cost.

The defendant admitted that the policy had been written by it and that notice had been given of the illness of the assured on September 3, 1923, and on September 1,0, 1923, and otherwise denied plaintiff’s allegations and alleged that the illness resulting in disability for which indemnity was claimed was contracted and began prior to the expiration of thirty days from the date of the policy and was not covered by the contract.

On trial judgment was rendered in favor of plaintiff as prayed for, and defendant appeals.

OPINION

The defendant urges several grounds on which it is contended that the court erred in rendering judgment for plaintiff, among which we note the following:

First: That the evidence does not show notice to have been given as provided by that paragraph of the policy reading as follows:
“Written notice * * * of sickness on which, claim may be based must be given - to. the company * * * within ten days after the commencement of the disability from such sickness.”

Second: That the evidence does not establish that proof of loss was giyen as provided under that paragraph of the policy reading as follows:

“Affirmative proof of loss must be furnished to the company * * * , in case of claim for loss' of time from disability within ninety days * * * after the termination of the period for which the company is liable.” .

Third: That the evidence fails to show that the illness with which the insured suffered began subsequent to thirty days from the date of the policy and that the insured was not protected against illness prior to that date, under the policy which reads 'in part as follows:

“* * * the insured is accepted as a policy hqlder of this company, and is insured (from noon, July 24, 1923,) against * * * disability resulting from illness which is contracted and begins during the life of this policy and after it has been maintained in continuous force for thirty days.”

Fourth: That the plaintiff was not in any event entitled to the penalties (increased indemnity and attorney’s fees) under the statute.

Considering these contentions and matters appearing in the record relevant thereto in the order stated:

(1-2) The answer filed by defendant, while in effect a general denial, admitted that some character of notice was given and' set up a special defense that the illness of the insured or disability resulting therefrom was not covered by the policy, and it did not plead that notice and proof of loss were not timely given,, and we do not think it can raise ¡such questions on appeal.

“The objection that proof of loss was not given cannot be raised under an answer containing a general denial • and specific defenses not referring to proofs of loss.” • • ' ■

R. C. L., Insurance, Vol. 14, No. 593, p. 1434.

Aetna Life Ins. Co. vs. Bethel, 140 Ky. 618, 131 S. W. 527.

Knickerbocker Life Ins. Co. vs. Schneider, 100 U. S. —, 25 Law Ed. 694.

(3) The evidence which was admitted clearly shows that the illness of which the insured suffered and which caused him to be disabled began on or about August 28, 1923, or more than thirty days after the date of the policy, and it appears to be conceded that, although the cause of illness may have antedated the date when the policy became effective, that if the disease did not manifest itself until after such time the insurer would be liable. (Cohen vs. North American Life & Casualty Co., 185 N. W. 939); and the real cause of defendant’s complaint appears to be that the court did not permit it to introduce in evidence a sheet designated as “Final Proof Page”, which purports to have been signed by the insured, his employer and a physician, in which the illness of the insured is stated to have begun prior to the expiration of thirty days from the date of the policy.

The defendant did not allege that such sheet had been filed with it; neither did it show on the trial the manner in which the document came into its possession, nor any other circumstance which directly connects, the document with the policy; nor did it prove the signature of the insurer or of his employer, and the physician who signed the instrument stated that the date given by him,-as shown by the instrument, was erroneous, . and that the true date of the beginning of the illness of the insured was as stated by the plaintiff.

The policy does not require that the irwsured, in making proof of loss, shall submit a certificate of the attending physician, and we think that it was permissible to show that the physician had made an error in his statement, even though such statement made by him had been shown to be a part of the final proof submitted by the insured; (Leman vs. Manhattan Life Ins. Co., 46 La. Ann. 1189, 15 South. 388; Connecticut Mut. Life Ins. Co. vs. Schwenk, 94 U. S. 593, 24 Law Ed. 294; Home Benefit Assn. vs. Sargent, 142 U. S. 691, 35 Law Ed. 1160); and the evidence not warranting the admission of the document as a whole there was, in fact, no evidence in conflict with that offered by plaintiff which showed that the illness of the insured began after the policy was in effect.

While under some circumstances we think that the document which was not filed in evidence, but which appears in the record, would of itself be sufficient to warrant the cause being remanded (La. Dig., Appeal, No. 729, et seq.), such is not the case here, as it may relate to the question of defendant’s liability on the policy, as the defendant was apprised by the document, which appears to have been in its possession, of sources from which it could have obtained evidence to rebut that offered by plaintiff as to the date when the illness of the insured began, and did not attempt to offer any evidence' other than the document, which, as a whole, appears to have been properly rejected.

(4) The statute under which the plaintiff claims the right to recover an amount in excess of that called for by the policy, and attorney’s fees (Act No. 330 of 1910) has been held tq be applicable only as to the assured (Canal-Commercial Bank vs. Employers L. A. Corp., 155 La. 722, 99 South. 542; Brown vs. Continental Casualty Co., 161 La. 229, 108 South. 464), and the plaintiff not appearing as the representative of the assured, we do not think she could recover any amount than that due on the face of the policy.

But, on the other hand, if the plaintiff could be considered as the representative rather than the beneficiary of the insured, as alleged and admitted, we think that the document hereinabove referred to as “Final Proof Papers”' appearing in the record, although not filed as a whole, would require that the cause be remanded to ascertain whether or not the insurer, being in possession of such document, could be said to have acted upon just and reasonable grounds in refusing to pay under the policy for a risk which the document indicated was not covered by the policy.

Considering the case as presented, we are of the opinion that the plaintiff is entitled to recover the amount stipulated under the policy, during the illness of the insured, but as beneficiary she cannot recover penalties under the statute.

It is therefore ordered, adjudged and decreed that the judgment appealed from be amended by reducing the amount allowed plaintiff to three hundred and fifteen dollars, with legal interest from November 28, 1923, until paid; the plaintiff to pay the costs of the appeal, and defendant all other costs; and that as thus amended the judgment appealed from is affirmed.


author: LECHE, J.

text:
    No.--
    First Circuit
    LEBOURGEOIS v. LYON LUMBER CO.
    (February 12, 1927. Opinion and Decree.)
    (March. 8, 1927. Rehearing Refused.)

      (Syllabus by the Editor)

    1. Louisiana Digest — Master and Servant —Par. 158.
    An employee killed by lightning while under a tree near the place where he was at work and where he had gone for shelter to eat his lunch at the noon hour was killed by an- accident arising out of and in the course of his employment, as ¡provided by the Workmen’s Compensation Act No. 20 of 1914 and amendments.
    Appeal from the Parish of Livingston. Hon. Columbus Reid, Judge.
    Action by Mrs. Noah Lebourgeois against Lyon Lumber Company.
    There was judgment for plaintiff and defendant appealed.
    Judgment affirmed.
    M. C. Rowne, of Springfield, attorney for plaintiff, appellee.
    Leslie P. Beard, of New Orleans, attorney for defendant, appellant.
   LECHE, J.

Plaintiff and her children were dependents of Noah LeBourgeois; who was killed by lightning • on July 8, 1925, while working for the defendant company. She sues for compensation under the Employers’ Liability Act and from a judgment in her favor defendant has appealed.

Defendant has made no appearance in this court either by brief or by oral argument, but we understand from the pleadings that the sole question at issue is whether death by lightning is such an accident as entitles the employee’s dependents to compensation under the statute.

T'he employee was, at the time, under a tree very near the place where' he was at work in the woods, and he had gone there for shelter to eat his lunch, at the noon hour. These facts are all admitted.

Although the instrumentality causing death had no connection with the work which the employee was performing, and although the employee was not actually at work at the time, the accident, nevertheless, occurred during the course of the employment and as a result of the employment. Dyer vs. Rapides Lumber Company, 154 La. 1093, 98 South. 677; Myers vs. La. R. & N. Co., 140 La. 937, 74 South. 256. The question involved must then be decided against the defendant. Travino Gasea vs. Texas Pipe Line Co., 2 La. App. 483.

For these reasons the judgment appealed from is affirmed.


text:
    No. 2183
    Second Circuit
    JACKSON, KISER & MEYER v. SHREVEPORT PRODUCING & REF. CORP.
    (April 8, 1927. Opinion and Decree.)

      (Syllabus by the Editor)

    1. Louisiana Digest — Evidence—Par. 211, 337.
    An instrument offered in evidence without any valid objection is properly considered by the court.

      2. Louisiana Digest — Estoppel—Par. 37.
    Where A is responsible for a fire causing damage to B’s property, a compromise settlement between A and B without notice to A that B had assigned his claim to the insurer will be a bar to any claim which the insurer may have against A under an assignment by B to the insurer of all his rights thereunder.
    Appeal from the First Judicial District Court of Louisiana, Parish of Caddo. Hon. E. P. Mills, Judge.
    Action by Jackson, Kiser & . Meyer against Shreveport Producing & Refining Corporation.
    There was judgment for defendant and plaintiff appealed.
    Judgment affirmed.
    Dickson & Denny, of Shreveport, attorneys for plaintiff, appellant.
    John B. Files, of Shreveport, attorney for defendant, appellee.
   WEBB, J.

The plaintiff, Jackson, Kiser & Meyer, a 'partnership engaged in the business of writing fire insurance, alleges that it had executed a policy in favor of Steele & Lindley covering certain automobiles and that the property insured had been damaged by fire caused by the fault and negligence of the defendant, Shreveport Producing & Refining Corporation; that it was obliged to pay and. did pay the insured, Steele & Lindley, the damage sustained by the property, and that plaintiff was expressly and legally subrogated to the rights of Steele and Lindley against defendant to the amount paid; and it brought this action to obtain judgment against defendant accordingly.

The defendant answered, pleading a general denial, and in the alternative that it had adjusted and compromised any and all claims that Steele & Lindley could have against it as the result of any negligence on its part; and on trial judgment was rendered against plaintiff, rejecting, its demands with costs, 'from which judgment it appeals.

OPINION

The only ground which plaintiff urges for the reversal of the judgment is that the court erred in considering the instrument under private act evidencing the compromise agreement and settlement between defendant and Steele & Lindley, which was offered in evidence without the signatures of the parties being proven; while defendant contends that the judgment was correct on various other grounds going more or less to the failure of plaintiff to establish its case.

The only objection made by plaintiff to the introduction of the instrument under private act which evidenced the compromise agreement was that it was irrelevant, and the objection was not sustained, and the instrument was offered in evidence; but the signatures were not proven and it is urged that the signatures not having been proven the instrument could not be considered.

The instrument having been offered in evidence without any valid objection, we think it was properly considered (Otto Knoop Lmbr. & Realty Co. vs. Durning, 10 Or. App. 312), and.it not being shown that the defendant haR any notice of any assignment which may have been made by Steele & Lindley to plaintiff at the time of the compromise settlement, the settlement was a bar to any action by Steele & Lindley or their assigns, if notice was necessary and the compromise settlement included the claim alleged to have been assigned to plaintiff.

Counsel do not claim that defendant could not compromise with Steele & Lindley for any claim which Steele & Lindley may have had against it so long as defendant was unaware of any assignment of such claim by Steele & Lindley to plaintiff or others; nor is it argued that the claim assigned to plaintiff by Steele & Lindley was nqt included in the compromise settlement between defendant and Steele & Lindley; and conceding that plaintiff had a valid assignment as between it and Steele & Lindley and that defendant was responsible for the fire, we are of the opinion that the compromise settlement made by defendant with Steele & Lindley without knowledge or. notice that the latter had assigned its claim to plaintiff was a bar to any claim by plaintiff under the assignment.

The judgment appealed from is therefore affirmed.


text:
    No. 2206
    Second Circuit
    LOUISIANA IRON & SUPPLY CO. v. GALLOWAY
    (April 8, 1927. Opinion and Decree)

      (Syllabus by the Editor)

    1. Louisiana Digest — Sales—Par. 216, 218.
    Were the seller of second-hand pipe to be used for the special purpose of laying a pipe line to convey oil informs the buyer that he does not want to sell the pipe without inspection, and some inspection of the pipe was made ■ by the representative of the buyer before delivery, the seller did not expressly warrant the pipe as fit for a pipe line but merely gave the warranty implied by law.
    2. Louisiana Digest — Sales—Par. 222, 232.
    Articles 2545 and 2531 of the Civil Code have reference to damages to be paid by the seller who knows the vice of the thing he sells and omits to declare it, but do not apply to latent defects in the material sold.
    Appeal from the First Judicial District Court of Louisiana, Parish of Caddo. Hon. T. F. Bell, Judge.
    Action by Louisiana Iron & Supply Company against James Galloway.
    There was judgment for plaintiff and defendant appealed.
    Judgment affirmed.
    Cook & Cook, of Shreveport, attorneys for (plaintiff, appellee.
    Galloway & Johnson, of Shreveport, attorneys for defendant, appellant.
   WEBB, J.

In this action plaintiff, Louisiana Iron & Supply Company, a partnership, sought to obtain judgment against defendant, James Galloway, for the sum of six hundred and thirty-eight and 36-100 dollars with interest, the balance due on the price of a quantity of two-inch pipe sold by plaintiff to defendant.

Defendant admitted the sale and the price, and sets up in defense that the pipe was sold to him with an express warranty against defects and for the express purpose of being used in constructing a pipe line for conveying fuel oil a distance of about two miles to a point where defendant was drilling or was about to begin drilling a well, and that the pipe was defective, and after the pipe line had been laid and when oil was attempted to be pumped through the line, the defects, consisting of holes and splits, appeared in the pipe, rendering it impossible to deliver oil to the place where the well was to be drilled, and the line had to be repaired by taking out several hundred feet of the pipe, of the sale value or price of fifty and 40-100 dollars, and that the delays incident to the repairs, during which time defendant was unable to drill, had caused defendant to sustain a loss of two hundred dollars, the rental which he was paying on the drilling outfit, and the cost of repairing the line and hauling additional pipe of two hundred and seventeen and 50-100 dollars, and that by reason of the defects a quantity of oil of the value of forty and 50-100 dollars was lost, which amounts, aggregating five hundred and eight and 40-100 dollars, he sought to have deducted from the balance due on the price.

On trial judgment was rendered against defendant in the sum of six hundred and twenty-three and 96-100 dollars, with interest, as prayed for, and defendant appealed.

OPINION

The evidence shows that defendant, who was about to begin drilling a well, desired to construct a pipe line of about two miles in length for the purpose of conveying fuel oil to the place where drilling operations- were to be conducted, and that he called upon plaintiff, which appears to be a dealer in pipe, with the view of purchasing such quantity of two-inch pipe as he thought necessary to construct the line, and that at the time he informed plaintiff, who was represented by one of the partners, of the length of the line and of its purpose, and that the pipe would be subjected to considerable pressure, and was informed by plaintiff that it had on hand a lot of second-hand pipe of the size desired and at the' price of nine cents per foot, and defendant states that plaintiff inormed him that the pipe was “as good as new”, while defendant states that he informed plaintiff that the pipe was good and “looked like new” but he would not sell it to plaintiff unless inspected.

Following these negotiations, defendant, represented by his employee, called at plaintiff’s place to get the pipe and the pipe, as delivered, was inspected by the representative of defendant, and one of the members of plaintiff partnership, and the quantity of pipe alleged and admitted to have been sold was delivered to defendant.

Defendant had rented a drilling outfit at forty dollars per day, which appears to have been placed in position at about the same time the pipe line was constructed, and, all being ready, defendant attempted to pump the oil through the line, but no oil reached the place where the drilling operations were to be carried on, and defendant inspected the pipe line and found that the oil was escaping from the line through holes in the pipe where it had rusted and where it had given way or split under the pressure from the pump, and plaintiff then proceeded to repair the line, taking our five hundred and sixty feet of the pipe which had split, and driving pegs into holes in other parts of the line, which work consumed some days and involved considerable expense, and some oil escaped from the pipe, and the drilling operations were delayed, while the rent of the drilling outfit continued. The, evidence does not show with any degree of certainty the exact time it required to repair the line nor the expense qf repairs. nor the amount of oil which escaped.

While from this -preliminary statement of the evidence ’it -may appear that the cause should he remanded in order to permit plaintiff to offer additional evidence as to the amount of the damages, we do not think this necessary for the reasons hereafter stated.

It is apparent that the claim made for the return of the price of the pipe found to be defective is for the reduction of the price, and it appears from the judgment this claim was allowed, in that the evidence shows that five hundred and sixty feet of the pipe was defective, and that plaintiff had furnished defendant With,four hundred feet additional pipe, leaving a balance of one hundred and sixty feet at nine cents per foot, which is accounted for in the judgment, which is fourteen and 40-100 dollars less than the amount claimed, and as plaintiff did not appeal nor answer the appeal that item is settled.

'The other items appear to be considered by the parties as relating solely to the damages sustained by the defendant, and as arising from the loss sustained as an incident to the loss of time during which the pipe line was being repaired and expenses incident to the repairs, and defendant contends that he is entitled to have such damages set off against the balance due on the purchase price, and no question is raised as to the form of the demand.

The defendant apparently basis his right to damages on the following positions:

First, that there was an express warranty that the pipe sold was suitable to be used in the construction of a pipe line such as defendant desired to construct, and that the line would serve the purposes for which it was constructed, and it being found that the line as constructed with the pipe did hot accomplish the purpose of its construction, plaintiff should be held to respond for the damages incident to putting the line in condition.

Second, that the plaintiff, being a dealer in pipe and having sold same, must be held to have been aware of its defects and liable not only for the return or reduction of the price but also for all damages sustained by defendant which could be directly traced to the use of the defective pipe in constructing the pipe line.

Considering these positions in their order.

I.

We assume that this contention is based upon the evidence, which shows that defendant had informed the plaintiff of the use for which he desired the pipe, that is, “to construct a pipe line two miles in length which would be subjected to considerable pressure”, and upon plaintiff having told him that “he had some pipe of the size desired which was as good as new”.

The plaintiff was a dealer in pipe; it was not engaged in the business of building pipe lines nor other construction work, and we do not think it could be said from the conversation between 'the parties that plaintiff had warranted that the pipe line, such as defendant desired, could be constructed with two-inch pipe, or that the conversation indicated that plaintiff intended to extend in any manner the warranty which would be placed upon him as a seller of pipe.

On the other hand, it being stated by one of the members of plaintiff firm that he had told the defendant that “he did not want to sell the pipe without inspection” which was not denied by defendant) and the evidence showing there was some inspection of pipe by the representative of defendant prior to delivery, indicates that plaintiff was rather attempting to restrict any warranty which might he imposed on it by law, rather than to extend such warranty.

Aside from this, however, pipe is a material which may be used in constructing many different works where the damages which might result from the use of defective pipe or material would be as to the amount dependent upon the work in which it was used, and the mere fact of a dealer having knowledge that the article which he sells and which could be used in the construction of many different works would be used in one work rather than another to which it was by nature adapted does not indicate that the dealer had in contemplation the damages which might result from such special use rather than the damages which might result from the use of the pipe in any other work to which it was adapted, and we do not think, from any point, of view, under the evidence, it could be said that the plaintiff had expressly warranted the pipe for any purpose, or that there was any warranty beyond that implied by law.

II.

In this contention the defendant argues that plaintiff, being a dealer in pipe, must be held to have had knowledge of the latent defects in the pifpe and that it is responsible for the damages sustained by the defendant incidental to the repair of the pipe line, which became necessary by reason of the defects in the pipe, basing his position on Article 2545 of the Civil Code, which reads as follows:

“The seller who knows the vice of the ¡thing he sells and omits to declare it, besides the restitution of the price and repayment of the expenses, is answerable to the buyer in damages.”

And upon the illustrations cited on Doyle vs. Fuerst & Kraemer, 129 La. 838, 56 South. 906, from Mourion and Pothier, where it is said that an artisan, manufacturer or dealers who sells casks in which wine is to be stored warrants the casks to be suitable for that purpose, and would be liable in damages which might result from the loss of the wine by reason of the latent defects in the cask.

The article quote'd seems to give the right to recover damages only in case the seller knows of the defects and fails to advise the purchaser of same (Barclay vs. Conrad, 7 La. 261; Peterkin vs. Martin, 30 La. Ann. 894; Iberia Cypress Co. vs. Van Scholtin, 121 La. 72, 46 South. 105; Article 2531, C. C.); but conceding that a dealer in articles which are in themselves complete and designed for a special purpose who sells such an article which is affected with latent defects which render it useless or of less value, may be held for damages which may be sustained by the purchaser as the result of latent defects in addition to the return of reduction of the purchase price, we do not think the exception can be applied to one who sells material even though the seller knows the purpose for which the material will be used.

The judgment made full allowance for the material shown to be defective and which was not used by the defendant, and the judgment is affirmed.


author: CLAIBORNE, J.

text:
    No. 9873
    Orleans
    DUROCH, Appellant, v. CAILLOUET
    (April 11, 1927. Opinion and Decree.)
    (May 9, 1927. Rehearing Refused.)
    (July 12, 1927. Writs of Certiorari and Review Denied in Supreme Court.)

      (Syllabus by the Gourt)

    1. Louisiana Digest — Office and Officer— Par. 1. — Exemptions from Seizure— Par. 2.
    All employees engaged- in the public service are officers within the meaning of Article 647 of the Code of Practice.
    2. Louisiana Digest — Exemptions from Seizure — Par. 11.
    Salaries of officers are exempt from seizure.
    Appeal from Twenty-eighth Judicial District Court. Hon. P. E. Edrington, Judge.
    Action by Mrs. P. Duroch against P. E. Caillouet, et al.
    There was judgment for defendant and plaintiff appealed.
    Judgment affirmed.
    Chas. J. Mundy, of New Orleans, attorney for plaintiff, appellant.
    L. Robert Rivarde, of New Orleans, attorney for defendants, appellees.
   CLAIBORNE, J.

The issue in this case is whether the fees of a sheriff’s keeper are exempt from seizure.

The facts are as follows: On January 6th, 1922, the plaintiff obtained against the defendants a judgment for $6100.00 with interest and attorney’s fees. On March 8th, 1922, the plaintiff issued execution of said judgment. By virtue thereof the sheriff seizéd in his own hands $220, being ' an amount due defendant, P. E. Caillouet, as sheriff keeper’s fees, in Suit No. 1026. On .May 8th and October 9th, 1922, the plaintiff called on the sheriff by rule to show cause why he should not turn over said fees to her. The sheriff answered “that the sum of $250 alleged to be due as keeper’s fees are not susceptible of seizure because sheriff’s fees are exempt under the law from seizure”. On November 5th, 1923, the judge maintained the sheriff’s answer and dismissed the rule. From this judgment the plaintiff has appealed.

The plaintiff has argued that the sheriff has no right to set up vicariously the plea of exemption. We think he has a sufficient interest in protecting the rights of his employees to entitle him to plead the exemption. Being bound to know that the fees are exempt from seizure he might have made himself liable to his employee by failing to plead the exemption, suffering judgment to go against him, and by paying the amount without resistance.

The sheriff had a duty to plead that the plaintiff had 'no right to defendant’s money in his hands.

Under repeated decisions of this court any employee in a public office is a public officer. 4 Orl. App. 169; 5 id. 77; 9 id. 26; Wheeler vs. Board of Fire Comm’rs, 46 La. Ann. 734, 15 South. 179.

In the recent case of Fisher vs. Dubroca, the Supreme Court decided that the salary of an officer is exempt from seizure.


text:
    No. 2618
    Second Circuit
    HARRIS v. DOBSON BROS.
    (January 28, 1927. Opinion and Decree.)
    (February 24, 1927. Rehearing Refused.)

      (Syllabus by the Court)

    1. Louisiana Digest — Master and Servant Par. 154, 156.
    One who loads railroad ties into railroad cars for a, fixed price for each tie loaded, working when and how he pleases and not subject to the dictation of him for whom the loading is ■ done, is an independent contractor, and not an employee of the person for whom, the work is being done.
    Appeal from the Tenth Judicial District Court of Louisiana, Parish of Natchitoches. Hon. John F. Stephens, Judge.
    Action by W. C. Harris against Dobson Brothers, et al.
    There was judgment for plaintiff and defendants, Dobson Brothers, appealed.
    Judgment reversed and suit dismissed.
    J. W. Jones, Jr., of Natchitoches, attorney for plaintiff, appellee.
    J. O. Gunter, of Natchitoches, attorney for defendants, Dobson Brothers.
    Phanor Breazeale, of Natchitoches, attorney for defendant, appellant, International Creosoting and Construction Company.
    WEBB, J., concurs.
   STATEMENT OF THE CASE

REYNOLDS, J.

This is a suit under the Employers’ Liability Act (Act 20 of 1914 and amendments) by W. C. Harris against Dobson Brothers, a commercial partnership composed of R. R. Dobson and E. P. Dob-son, domiciled in Natchitoches Parish, and the International Creosoting & Construction Company, hereinafter referred to as the “company”, a foreign corporation domiciled . at Texarkana, Tex.

The petition was filed July 1, 1925.

It alleges that Dobson Brothers is a commercial partnership composed of Ross R. Dobson and Eugene P. Dobson and that the International Creosoting & Construction Company is a foreign corporation domiciled at Texarkana, Texas, and doing business in Louisiana, and that plaintiff:

“* * * was an employee of the said Dobson Brothers and the said International Creosoting & Construction Company to load ties into cars on the tracks of the Louisiana & Arkansas Railway Company at Chestnut, Louisiana, for a price of three (3) cents for pine and gum ties and four (4) cents for white oak and red oak ties. * * * That, while so employed, he shows that on the 31st day of December, 1924, and while carrying on his shoulder a crosstie to be placed in the said cars the running board used by your petitioner and others in carrying ties to said cars were creened and your petitioner’s feet slipped and your petitioner fell to the ground and the tie being carried by your petitioner fell on his left leg and broke the bone of said leg about half-way between the knee and hip joint, thereby severely injuring your petitioner’s leg and causing great impairment thereof permanently. That said injury and impairment has been up to date and will be a temporarily total injury for at least a period of fifty-two (52) weeks, beginning on the 31st day of December, 1924, and- for which they owe your petitioner in solido 65% of his weekly wages, or the sum and for the weekly compensation of twenty-three and 40-100 dollars per Week for said stated period; and that said injury and impairment will be a temporarily partial injury or disability for a period of at least fifty-two weeks beginning at the end of. your petitioner’s temporary total disability, or on December 31st, 1925, and for which they owe your petitioner the sum of or the weekly compensation of seventeen and 55-100 dollars per week for at least a period of fifty-two weeks, or the difference between what he will be able to earn at said' time and that which he was earning at the time of the injury, which your petitioner alleges said difference will be four and 50-100 dollars per day.”

He also claimed surgical and medical expenses of $100.00.

The prayer is for judgment for $23.40 a week for 52 weeks, beginning December 31, 1924, and for $17.55 per week for an additional 52 weeks, beginning December 31, 1925, and for the $100.00 for medical and surgical bill's.

Endorsed on the petition is an order signed by the District Judge on July 1, 1925, commanding the defendants to show cause before him at 10 o’clock A.M. on June 25, 1925, why judgment should not be rendered against them in favor of the petitioner as prayed for.

' On July 2, 1925, ordinary citation for both defendants was issued to the sheriff of Natchitoches parish.

Service was had on Dobson Brothers on July 3, 1925.

On July 7, 1925, the sheriff returned the petition and citation unserved as to the ‘company” for the reason that:

“After diligent search I was unable to find any domicile of the International Creosoting & Construction Co. or any legal representative of said company in Natchitoches parish, La.”

On July 8, 1925, the District Judge signed an order directing that service on the “company” be had by delivering the petition and citation to the secretary of state.

Ordinary citation, dated July 7, 1925, was thereupon issued:

“To International Creosoting and Construction Co.
“Thru Secretary of State,
“Of the Parish of East Baton Rouge.”

And sent to the sheriff of the Parish of East Baton Rouge.

The citation directs:

“You are hereby cited to appear in the office of the clerk of the said court, in the town of Natchitoches, of the parish aforesaid, and comply with the demands contained in the petition, of which a copy accompanies this citation, or deliver your answ’er thereto in writing in said office in ten days after the service hereof, with one additional day for each ten miles between your residence and the office of said clerk.”

The sheriff of the parish of East Baton Rouge made return that:

“On the 9th day of July, 1925, I served said copies on the within named International Creosoting & Construction C^. through Secty. of State in the Parish of East Baton Rouge, Louisiana, by handing • said copies to R. H. Flowers, Asst. Secty. of State in person in the office of the Secty. of State.”

On July 11, 1925, defendants, Dobson Brothers, filed an answer denying the allegations qf the petition and specially denying that plaintiff was employed by them,.

On July 20, 1925, the “company” filed an exception to the jurisdiction of the court ratione personae, alleging that it was a foreign corporation and that it was not doing and had not done any business in Louisiana.

And, reserving its rights under the exception to the jurisdiction of the court ratione personae, should that exception be overruled, the “company”, on the same day, filed an exception to the citation.

And, reserving its rights under this execution also, should it be overruled,' the “company”, on the same day, filed an answer in which it reiterated that it was a foreign corporation domiciled in Texarkana, Texas, and that it had not done and was not doing business in Louisiana, denied the allegations of the petition and specially denied that plaintiff was its employee.

It also filed a plea of prescription, alleging that the first notice it had of the alleged accident to plaintiff was a letter dated at Chestnut, Louisiana, July 13, 1925, written and signed by defendants, Dobson Brothers, more than six months after the alleged accident to plaintiff, and that, therefore, any right of action which plaintiff might have had against him for his alleged injuries was lost by reason of his failure to notify it thereof within six months after the accident happened.

On July 20, 1925, filed a motion for judgment against defendants on the face of the petition, alleging:

“That he filed suit in the above numbered and styled cause on the 1st day of July, 1925. That service was made on the defendants in said petition as follows:
“On Ross R. Dobson ahd.Eugene F. Dob-son on the 3rd day of July, 1925.
“On the International Creosoting & Con-' struction Company on the 9th day of July,’ 1925, by the Secretary of State.
“That* neither Ross R. Dobson individually, Eugene P. Dobson individually, nor the International Creosoting & Construe- ’ tion’ Co. has made any appearance ’ nor filed an answer on this date, July 20th, 1925; that more than seven days have elapsed since the service on either the defendants mentioned above; all of which he directs the attention oí: this Honorable Court.”

The minutes of court show that on July 24, 1925, hearing on the motion' for judgment on the face of the petition was continued till the next day.

On July 25; 1925, the exceptions to the jurisdiction ratione personae and citation were heard and both were overruled and thq “company” excepted, and the trial of the case on its merits was begun, and the trial, not being completed, it was continued to the 28th of July, 1925, on which date it was concluded, and the case taken under advisement.

On December 23, 1925, the District Court rendered judgment in favor of the plaintiff and against the International Creosoting & Construction Company for $8.77 per week for forty-three weeks, beginning December 31, 1924, and for $2.03 per week for not more than two hundred and fifty-seven weeks, beginning October 31, 1925, with legal interest on each installment from its maturity. Plaintiff’s demands as against Dobson Brothers were rejected and his motion for judgment on the face of the petition Was overruled.

The “company” applied for and was denied a new trial, and it appealed. The plaintiff also' appealed. Dobson Brothers did not appeal.

Plaintiff has answered the “company’s” appeal and asked that the judgment be amended so. as to give him judgment against both the “company” and Dobson Brothers in solido for $23.40 per week for 52 weeks, beginning December 31, 1924, and for $17.55 per week for 248 weeks, beginning. December 31, 1925, and for $150.00 medical expenses.

OPINION

ON MOTION FOR JUDGMENT

The motion was filed on July 20, 1925. Its basis is:

“That neither Ross R. Dobson individually, Eugene P. Dobson individually, nor the International Creosoting & Construction Co., has made any appearance nor filed an answer on this date, July 20th, 1925; that more than seven days have elapsed since the service on either of the defendants. * * *”

The record shows that on July 11, 1925, nine days before plaintiff filed his motion, Dobson Brothers filed an answer fully putting at issue the allegations of his petition.

The record also shows that on the very day plaintiff filed his motion, July 20, 1925, the International Creosoting & Construction Company filed four separate pleas, namely: an exception to the jurisdiction of the court ratione personae, an exception to the citation, a plea of prescription, and an answer fully denying the allegations of plaintiff’s petition.

With these pleadings in the record undisposed of the District Court would have erred had it not overruled the motion.

The Code of Practice, Article 180, and the terms of the citation served on the secretary of state allowed the “company” ten days, exclusive qf the day of service and of that on which the delay expired, in which to answer. As service on the secretary of state was made on July 9, 1925, the “company’s” time to answer did not expire until July 20, 1925, and as its pleas were filed on July 20, 1925, they were filed in ample time.

Passing over the other defenses interposed by defendants, we come at once to the question of whether or not the relation of employer and employee existed between plaintiff and defendants or either of them.

As to this he himself testified:

Testimony, page 67:

“Q. Where did the I. C. Company get the ties that you loaded?
“A. I do not know; I never seek to find that out.
“Q. You never heard anybody say?
“A. No, sir; I do not know anything about that.
“Q. You did not know about that?
“A. Not about that.
“Q. Did they have them made in the woods?
“A. I do not know; they were on the track when I saw them.
“Q. You do not know how they got on the track?
“A. No, sir; I do not know.
“Q. You never did see anybody haul them and put them on the track?
“A. I was not keeping up with that.
' Testimony, page 68:
“Q. Why do you say you were loading I. C. ties?
“A. Because their brand was on them. We did not load a tie except that has their brand.
sfc s}: s}:
“Q. Did you load any other ties that were shipped to some other company besides the I. C.?
“A. I did.
“Q. Did you load any ties belonging to any other company besides the International Creosoting & Construction Company?
“A. Yes, sir; I loaded for other people.
“Q. Who did pay you for loading for other companies?
“A. R. S. Brown; Rube Brown.
* * * *
“Q. How many cars did you load in the month of December, 1924?
“A. I do not know for sure; I could not tell exactly liow many.
Ht H* ❖
“Q. How many in November, 1924?
“A. I do not know.
“Q. Do you know how many you loaded any month during 1924?
“A. I have never kept up with it.
“Q. Do you know how many you loaded in 1924?
“A. No, sir.
“Q. Was it one?
“A. It was more than one.
“Q. Was it fifteen?
“A. Well, I will say it was something like twenty-five cars.
“Q. How many days did it take you to load any one car?
“A. It took me and my partner to load a car one day.
“Q. How much money d'id you get in cash for loading any one car of ties — not how much per tie?
“A. Average six dollars per day.
“Q. How much did you get for loading a car?
“A. Six dollars.
“Q. You worked not exceeding twenty-five days during the year 1924, according to this, loading .ties for the International Creosoting & Construction Company at Chestnut?
“A. Yes, sir; that is right.
“Q. How many days did you • load ties for other parties during 1924?
“A. I loaded at Saline for Mr. Cooper; I do not know where his firm is; I loaded something like twenty-five or thirty for that company at Saline.
“Q. Did you load anywhere else during 1924?
“A. Yes, sir; I loaded at Lucky.
“Q. How many did you load there?
“A. I loaded fifteen cars there. .
“Q. About sixty-five cars that you loaded during the year 1924 at the best?
“A. Yes, sir.
“Q. Taking you one day to the car?
“A. Yes, sir.
“Q. And making an average of $6.00 per car?
“A. Yes, sir.
“Q. What was your agreement with Dobson Brothers at Chestnut when there was a car to be loaded?
“A. Whenever I was down there, if there was a car to be loaded, he would tell me and I agreed to load for so much per stick.
“Q. You agreed to load a car for so much a stick?
“A. Yes, sir.
Testimony, page 72;
“Q. That was your contract with them, to load that car, whether it took you one ihour or one day or one week or month, you were to load that car at so much a stick?
“A. Yes, sir.
“Q. That was your contract or agreement with Dobson Brothers?
“A. Yes, sir.
“Q. Who paid you for loading the ties?
“A. My understanding was -
“Q. Answer the question; never mind your understanding; who paid you the actual money for loading the cars at Chestnut?
“A. He handed me . the money, and where it came from I dp not know.
“Q. And that was your agreement, to load the car. It was not by the ween or day or one day or two days; it was to load the car, was it not?
“A. Yes, sir.
“Q. And when the car was loaded he paid you the amount per stick for the number of sticks you put in the car?
“A. Yes, sir.
“Q. Pid it take you more than, one day to load a car sometimes?
“A. No, sir, unless it rained.
“Q. Then it did take you more than one day,?
“A. Sometimes.
“Q. Did you ever start a car in the morning and the rain stop you, and you start the next morning and finish?
“A. Yes, sir.
“Q. Did you ever start a car and not finish it until the next day?
“A. I have started it and finished it the next day about an hour.
“Q. Had you been working by the day you would have been paid by the day?
“A. I suppose if I had been working all the time I would have been docked for that time.
* * * *

Testimony, page 7.4:

“Q. What did you understand when you took a contract?
“A. I understood he was to pay me so much a stick.
“Q. Whether you finished the car or not?
“A. Yes, sir; that was my understanding.
Testimony, page 53:
“Q. Did you ever load any ties at' Skidder?
“A. Yes, sir; I loaded some.
“Q. Who did you load for; whose ties were they?!
“A. They were branded in the I C brand.
“Q. Did you load any at Strange
“A. Yes, sir; I loaded some up there.
“Q. You were the loading contractor for those stations, were you not?
“A. Not altogether.
“Q. Who else had contracts besides, yourself?
“A. I didn’t consider it was any contract. They knew I could load ties and had been following it for some time, and they would say the ties are there and the company would pay for them.
“Q. When you saw a load of ties to be loaded out, you would go to the depot and order • out the cars ?
“A. No, sir.
“Q. Did you go to Mr. Dobson and tell him to have the car ‘spotted’ for you?
“A. After he inspected them, I would tell him to order a car, if I was at leisure.”

Plaintiff alleged that he was employed by both Dobson Brothers and the “company”. Both of them denied this. The burden was on him, therefore, to prove the fact. We do. not think he has discharged this burden. His testimony as to the conditions under which he worked convinces us that he was not the employee of either defendant but an independent contractor. He was a professional loader of ties by occupation. He labored for others who had ties to he loaded as well as for defendants. He worked on such days and during such hours as he pleased. He was not under obligation to load any given number of ties in any fixed space of time. Neither of the defendants had any control over the manner in which or the time when he should do his work. He was not paid for his services by the hour, day or week, but so many cents for each tie he loaded; and. this whether the' number he loaded amounted to a carload or not; three cents each for pine and gum ties and four cents each for white oak and red oak ties. When he saw ties stacked along the railroad right-of-way ready for shipment, if he was at leisure he would request Dobson Brothers to have a car “spotted” for him to load them in. He says “they (meaning Dobson Brothers) knew T could load ties and had been following it for some time’, and they would say, the ties are there and the company (meaning the International Greosoting & Construction Company) would pay for them”; and thereupon he proceeded to load the ties intp the car in his own way and taking his own time. This does not show a relationship of employer and employee between him and the defendants or either of them. On the contrary, it shows him to have been an independent contractor; on a small scale, it is true, but nonetheless an independent contractor.

Finding that the relationship of master and servant did not exist between plaintiff and defendants, or neither of them, it becomes unnecessary for us to consider the other defenses set up by defendants.

For the reasons assigned it is therefore ordered, adjudged and decreed that the udgment appealed from be avoided and reversed and that plaintiff’s demands be rejected and his suit dismissed at his cost.


text:
    No. 2931
    Second Circuit
    NEDDAM LBR. CO. v. BAKER
    (May 13, 1927. Opinion and Decree.)

      (Syllabus by the Court)

    1. Louisiana Digest — Appeal—Par. 625.
    The finding of the. trial court on an issue of fact will not be reversed unless manifestly erroneous.
    Wood vs. Kansas City Ry. Co., 4 La. App. 23.
    2. Louisiana Digest — Automobiles — Par. 4 (b).
    One traveling on a public highway has the right of way over .one entering the highway from a private road. Landreneau vs. Chapman, 4 La. App. 402.
    3. Louisiana Digest — Automobiles — Par. 4 (b).
    Where the driver of a four-up mule team hitched to a log wagon approaches a public' highway at right angles on a private road and observes an automobile moving at a rapid speed on the public highway, it is negligence for the driver of the four-up mule team to enter and block the public highway immediately ahead of the approaching automobile without first making sure that the driver of the automobile is aware of his intention to do so, in time to avoid a collision.
    Landrenau vs. Chapman, 4 La. App. 402.
    Hudson vs. Jackson Brewing Co., 4 La. App. 549.
    Lopez vs. Schique, 114 La. 1004, 38 South. 810. '
    Appeal from the Third Judicial District Court of Louisiana, Parish of Lincoln. Hon. S. D. Pearce, Judge.
    Action by Neddam Lumber Company, Inc., against John A. Baker.
    There was judgment for defendant and plaintiff appealed.
    Judgment affirmed.
    Dhu Thompson, of Ruston, attorney for plaintiff, appellant.
    Barksdale, Warren & McBride, of Shreveport, attorneys for defendant, appellee.
   STATEMENT OP THE CASE

REYNOLDS, J.

This is a suit to recover $400.00 damages for the loss of two mules rendered valueless by being run into by an automobile driven by defendant’s minor son.

Defendant filed an exception of no right and no cause of action.

He also specially urged that he was not responsible for the acts of his minor son for the reason that his son did not reside at his home and had not been ' placed by him under the control of any .other person.

He further denied liability and alleged that the negligence of plaintiff’s employee was the proximate cause of the accident.

The exception was referred to the merits and, after trial on the merits, judgment was rendered in favor of the defendant and the plaintiff appealed.

OPINION

The first two grounds of defense appear to present merit, but we have not found it necessary to pass upon them for the reason that the case on the merits is clearly with the defendant.

The question to be decided on the merits is, whose fault was the proximate cause of the accident?

Our learned brother of the District Court, Hon. S. D. Pearce, who tried the case and saw the witnesses • and heard them testify, in his reasons for judgment in a written opinion said, in part:

“The negro teamster of plaintiff admits that he saw the approaching automobile before he got upon the graveled highway, and virtually admits that he knew there would be a collision unless the driver of the car stopped it before reaching the crossing; at the same time admitting that he could have stopped his team before the collision occurred, had he not thought the car would be stopped. The fact that he came upon the graveled highway from a private dirt road imposed upon him the duty of stopping and assuring himself that no vehicle was approaching on the highway near enough at hand to reach the crossing before he could clear it, constitutes such negligence and lack of caution as legally precludes his employer from recovering in this suit.”

This finding of fact by the trial court is -well supported by the testimony of the driver of plaintiff’s mules, James Gardner, who testified, pages 77, 78, 80:

“Q. Where .were you when you saw' him?
“A. Coming from the hill — we were dumping on the hillside and I was turned and coming down and I saw him.
“Q. And he was running about as fast as he could?
“A. Yes, sir.
“Q. And where was he next?
“A. When the leaders struck the graveled road, I seen him about one-half the distance.
“Q. And you thought you could beat him across?
“A. I figured he would stop.
“Q. You figured he would stop and let you across?
“A. Yes, sir.
“Q. There Wasn’t anything to keep you from stopping and letting him across, was there ?
“A. Anybody else would have thought that he was going to stop.
“Q. Wait a minute — there was nothing to keep you from stopping arid letting him by?
“A. There was nothing to keep me from stopping?
“Q. That’s the question.
“A. Anybody — looked to me like -
“Q. Wait a minute — you answer my question.
“A. I could have stopped if I hadn’t figured he was going to stop.
“Q. But you could have stopped?
“A. Yes, sir, I guess I could — I figured everybody else would have do.ne the same idea, though — that he would stop or slow down.
“Q. Then when your lead mules got to the edge of the graveled road you figured you could beat him on across, isn’t that it?
“A. He was one-half the distance up the road and I figured and I knowed if he stayed on the side of the road that he was on I would have been across.
“Q. If he had stayed on his side?
“A. He would have hit the back end of the wagon I expect.”

From all the testimony in the record we are convinced that the judgment of the District Court is right and accordingly it is affirmed.


text:
    No. 2408.
    Second Circuit
    HARVEY v. NORTH LOUISIANA SANITARIUM
    (December 11, 1926. Opinion and Decree.)
    (January 28, 1927. Rehearing Refused.)
    (March 11, 1927. Writ of Certiorari and Review Denied by Supreme Court.)

      (Syllabus by the Editor)

    1. Louisiana Digest — Master and Servant —Par. 164.
    The evidence showing that it is not within the scope of the employment of the trained nurses of a sanitarium to watch the progress of the patient’s labor and to call the physician when her symptoms indicate the necessity of his presence, the sanitarium cannot be held liable in damages for failure of nurse to watch patient closely and call physician before childbirth.
    2. Louisiana Digest — .Mandate—Par. 47, 49, 78.
    Where the evidence in a damage suit fails to show that a trained nurse connected with a sanitarium was authorized to make a contract for the sanitarium, such authority will not be presumed, and the sanitarium will not be held liable for damages for alleged negligence of the nurse.
    Aippeal from the First Judicial District Court of Louisiana, Parish of Caddo. Hon. J. H. Stephens, Judge.
    Action by Mrs. Rosa Lee Harvey, et al., against North Louisiana Sanitarium, Limited, et al.
    There was judgment for defendant and plaintiffs appealed.
    Judgment affirmed.
    Robertson & Gibbs, of Shreveport, attorneys for plaintiffs, appellants.
    Thigpen, Herold, Lee & Cousin, of Shreveport, attorneys for defendant, appellee.
   WEBB, J.

The plaintiffs, Mrs. Rosa Loe Harvey and her husband, D. G. Harvey, brought this action against the North Louisiana Sanitarium, Ltd., and' Dr. W. B. Heidorn, to recover damages alleged to have been sustained by them as the result of the alleged negligence of defendants in treating and attending upon Mrs. Harvey, while she was a patient at the sanitarium operated by the North Louisiana Sanitarium, Ltd., giving birth to a child, and attended by Dr. Heidorn.

In the course of the trial, ¡plaintiffs took a nonsuit against Dr. Heidorn, continuing the trial as against the North Louisiana Sanitarium, Ltd., which resulted in a judgment in favor of defendant, plaintiffs' demands being rejected, and they appealed.

OPINION

The record establishes that Dr. Heidorn had been engaged by D. G. Harvey to attend his wife during her expected confinement; that during the evening of January 13, 1924, Mrs. Harvey began to suffer pains, and Dr. Heidorn, being notified, by agreement between D. G. Harvey and Dr. Heidorn, Mrs. Harvey was carried to the sanitarium operated by the defendant, where Dr. Heidorn met her, and had a room assigned, to her, where he examined her in order to ascertain the progress of her labor.

The room wh'ch was assigned to Mrs. Harvéy was on the third floor of the building, on which floor there were other rooms occupied by other patients, all of whom were under the care of Miss Waldron, a nurse in the employ of the defendant, who, with other nurses, in charge of patients on other floors, were under the supervision of Miss Gibson, a nurse in the employ of defendant.

The examination made by Dr. Heidorn of Mrs. Harvey was in the presence of D. G. Harvey and Miss Gibson, and after he had completed the examination, he informed plaintiffs that Mrs. Harvey’s labor-had just begun and that he would not be-needed for two or three hours, and in the: meantime he would go to another ¡part of' the building and retire, and he then instructed Miss Gibson to watch the patient closely and call him when she (Miss Gibson) thought he was needed.

After giving these instructions (which was at about 11 o’clock P.M.) the physician left the room and Miss Waldron attended the patient until about twenty minutes past two o’clock A.M., when Miss Gibson' (who had called at the room from time to time to ascertain the condition of the patient) had Miss Waldron call the physician, and, although the latter hurriedly responded, he did not reach the bedside of Mrs. Harvey until tlie child had been partially born.

A number of physicians testified that, in childbirth, there are several stages of labor, the first being indicated by pains suffered by the patient which increase in severity and occur at shorter intervals as that stage draws to a close, or culminates in the second stage, which is marked by certain objective symptoms; and then the third stage, in which the child is delivered; that it is not necessary nor the custom of physicians to be present during the first stage, or until that stage is about to culminate in the second stage, although they all agree that, in some cases, no appreciable distinction, in (point of time, exists in the occurrence of the stages of labor.

The plaintiffs, after alleging the circumstances relative to Mrs. • Harvey being carried to the sanitarium, the examination by the physician, and his leaving the room after giving the instructions to the nurse, alleges that, after the physician had left, Mrs. Harvey’s pains increased in severity and occurred at fréquent 'intervals, and that she and her husband requested the nurses to call the physician, and they failed, refused and neglected to do so, and the physician failed and neglected to attend his patient, resulting in Mrs. Harvey suffering unnecessary pain, and causing the passages leading from the womb to be lacerated, causing her illness to be prolonged and restoration to health to be delayed, and an unusual expense for services of physicians and nurses, and that they were entitled to recover as follows:

Mr. D. G. Harvey: “For shock and mental suffering suffere.d by petitioner * * * because of the neglect of his said wife * * * the sum of one thousand dollars; for .trained nurse, medical service and medicines * * * as the result * * * of said negligence * * * five hundred dollars.”
Mrs. Rosa Lee Harvey: “For pain, shock and suffering, fifteen hundred dollars; for lacerations and other injuries * * * two thousand dollars; for injuries to her health * * * five hundred dollars.”

The defenses interposed by the defendant are that the defendant is not liable, the evidence establishing that the negligence, if any, was committed in the performance of a duty outside of the scope of the nurse’s employment; that it does not show any negligence, and, if so, that the injuries complained of resulted from such negligence, and that the evidence does not establish any amount of damages, of which defenses we find it necessary to consider only the first.

Counsel state that D. G. Harvey’s action is based upon a contract, or his right of action arises ex contractu, while the action of Mrs. Harvey is based upon a tort and arises ex delicto, while the defendant contends that they have no right' to recover as against it.

The evidence does not show what are the general duties of the nurses, nor what were their duties under or incident to the implied obligations of the defendant to the plaintiffs, arising from the circumstance of Mrs. Harvey having been assigned to a room in the institution operated by defendant, in which' the patients were (where a special nurse was not engaged, as in the instant case) under the care of the nurses or employees of the defendant; but, if the duty assumed ..by the nurse, as the instructions given by the. physician seem to imply, and which also appears to be the position taken by the plaintiffs under their allegations, was to determine the [progress of the patient’s labor and to call the physician when her symptoms indicated the necessity of his presence, it is stated by the president of defendant company, who is a physician, that such duty is not in the scope of the nurse’s employment, that in such an undertaking the nurse would be practicing medicine, for which she was neither authorized nor qualified, and there was no testimony offered which is in conflict with this evidence, unless it be that which establishes it was the custom of physicians at all of the hospitals in childbirth cases to follow the course taken by Dr. Heidorn.

Counsel contend that the evidence showing the nurse was acting without the scope of her employment, it follows the defendant cannot he held responsible, as the court cannot, in the absence of evidence showing what were the duties of the nurse, assume that the nurse, in undertaking to determine the progress of the patient’s labor, was acting in the course of her employment, that the duty was an incident of any obligation of the defendant to the plaintiffs, in the face of the testimony which shows the act of the nurse was one which she was not authorized to do, and of the evidence showing that the physician was not an employee of the defendant, but if such assumption should be made, that the evidence shows the duty undertaken by the nurse was one which the physician was employed to perform, and that he alone was authorized to discharge, and that the defendant is not liable for the act, or negligence of the nurse in performing a service which relates to exclusive duty of the physician in the treatment of his patient, where such service is performed' at the instance of the physician; that as to such services the nurse is the servant of the physician, and must follow his instructions, and where, as in the- present instance, the negligence charged is alleged and shown to -have related solely to the performance of such service, the hospital cannot be held responsible and that to do soi would be in effect to hold the hospital responsible to' the plaintiffs for the. negligence, torts or incompetency of their employee, over whom the defendant had no control, and who was not connected with the management of the institution.

It is conceded that the defendant is not liable for the negligence or torts of its employees committed without the scope of their employment, and without considering the forceful suggestions of counsel for the distinction which might be made, we are of the opinion that the evidence fails to establish that the act which the nurse is alleged to have negligently performed was within the scope of her employment, and the evidence, also failing to show that . the nurse was authorized to make a contract for the defendant, or to show facts from which such authority could be presumed, we are of the opinion that the judgment appealed from is correct, and it. is affirmed.


text:
    No. 2235
    Second Circuit
    HICKS & RICHARDSON CO., LTD., v. GEARREALD
    (April 8, 1927. Opinion and Decree.)

      (Syllabus hy the Editor)

    1. Louisiana Digest — Taxation—Par. 283. Under Section 11 of Article X of the Constitution of 1921 and prior Constitutions of Louisiana the term “delinquent” means the actual owner at the time and to whom the notice of delinquency in payment of taxes is issued.
    Appeal from the Eleventh Judicial District Court of Louisiana, Parish of Red River. Hon. J. W. Jones, Jr., Judge.
    Action hy Hicks. & Richardson Company, Limited, et al., against J. I. Gearreald.
    There was judgment for defendant and plaintiffs appealed.
    Judgment reversed.
    L. E. Colvin, W. M. Pollock, of Mansfield, attorneys for plaintiffs, appellants.
    Murff & Mabry, of Shreveport; Nettles & Bethard, of Coushatta, attorneys for defendant, appellee.
   WEBB, J.

In this action, filed on June 27, 1921, plaintiffs, Hicks & Richardson Company, Limited, et als., alleging title to lands situated in the parish of Red River by mesne conveyances from the United States through the State of Louisiana, seek to annul a ta,x sale and deed thereunder made by the sheriff and tax collector of Red River parish to defendant, J. I. Gearreald, of date June 19, 1918, recorded July 5, 1918, volume 27, page 20, of the conveyance records of Red River parish, under an assessment of the property for the year 1917 in the name of Roach Rogers, and to be. decreed the owners of the property.

The tax sale and deed is alleged to have been 'null on several grounds, among which were that the title to the property was in the State of Louisiana on the 1st of January, 1917, and that notice of delinquency was not given to the owners of record prior to the date of sale.

The defendant filed an exception of no cause of action and a motion to have the plaintiffs elect between the grounds of nullity alleged, which were overruled, and thereafter plaintiff filed an amended petition reiterating the allegations of the original petition, but pleading the failure to give notice of delinquency in the alternative, and defendant answered.

The cause was submitted on an agreed statement of facts and judgment was rendered in favor of defendant, rejecting plaintiffs’ demands, from which judgment plaintiffs appeal.

OPINION

While defendant urges that his motion to elect should have been sustained, yet he did not in his answer to the petition as amended reserve his rights under the motion; and besides we do not think there was any conflict between the grounds upon Which the plaintiffs alleged that the tax sale was null; but if so, the last allegation of nullity was for failure to give notice of delinquency, which is the only ground we deem it necessary to consider.

As to this ground, the parties admit that the tax sale was made under an assessment against Roach Rogers for the year 1917 on the date alleged in plaintiffs’ petition; that Roach Rogers was the owner of record on January 1, 1918, and until January 30, 1918, when the plaintiffs became the owners of record and were in possession at the time of the tax sale, and that the only notice of delinquency which was given prior to the sale was to Roach Rogers on May 2, 1918. '

The defendant does not contend that notice of delinquency is not necessary, but he contends that as Roach Rogers, in whose name the property was assessed, was the record owner on January 2, 1918, the notice was properly given to him, citing in support of his contention Article 233 of the Constitution of 1913 and Sections 50 and 51 of Act 170 of 1898 and the decision in Reeker vs. Dupuy, 161 La. 392, 108 South. 782.

The article of the Constitution cited, as well as the same article of the Constitution of 1898 and Article 210 of the Constitution of 1879 and Section 11 of Article 10 of the Constitution of 1921 provide that before advertisement and sale of property for taxes the tax collector should give notice to the delinquent in the manner provided by' law, and Sections 50 and 51 of Act 170 of 1898 provide that the notice shall be given on the 2nd of January, or as soon thereafter as possible, following the year in which the assessment is made; and the defendant takes the position that the notice required must be given to the person who appears as the owner of record on January 2nd of the year following the assessment without regard to who may aippear to be the owner of record on the date the notice is actually given.

While no decision is cited in which the court has specifically said that notice addressed to the owner of record as of date January 2nd following the year the assessment was levied would not he sufficient where the owner of record on that date was not the owner of record when the notice was given, yet there are many decisions in which it has been said that notice must he given to the owner of record at the time of the notice. Parish vs. Bertron, 46 La. Ann. 356, 15 South. 60; Adolph vs. Richardson, 52 La. Ann. 1155, 27 South. 665; Geddes vs. Cunningham, 104 La. 306, 29 South. 138; In re Lafferenderie, 114 La. 6, 37 South. 990; McCrory vs. Bradford, 130 La. 212, 57 South. 892; Adsit vs. Park, 144 La. 934, 81 South. 430; Jones vs. Curran, 156 La. 1055, 101 South. 415; Wilkerson vs. Wyche, 158 La. 596, 104 South. 381.

In Wilkerson vs. Wyche, 158 La. 596, 104 South. 381, supra, the court said:

'“In issuing the notice 'in question the tax collector followed Sections 50 and 51 of Act 170 of 1898, which provide that notice of the proposed tax sale shall be given to the ‘taxpayer’. Arricie 233 of the Constitutions of 1898 and 1913, which was in force at the time of the tax sale, required, however, that such notice should he given to the ‘delinquent’. It is now too well settled to admit of argument that the term ‘delinquent’ means the actual owner at the time' the notice is issued"

(Italics ours.)

And we do not think there is any conflict in the expression used by the court in that case and that used in the case of Recker vs. Dupuy, 161 La. 392, 108 South. 782, cited by defendant; especially when it is considered that the tax deed in the case cited by defendant was annulled for the reason that the notice was not given to the owner of record at the time of the issuance of the notice and that the prior decisions of the court, and especially Wilkerson vs. Wyche, supra, were cited by the court as sustaining the decision; and we conclude the tax sale should have been annulled.

While the defendant did not specifically pray for judgment for the amounts paid out by him at' tax sale nor amounts subsequently ¡paid by him for taxes assessed against the property in event the sale should be annulled, yet it was admitted by the parties that defendant had paid taxes assessed against the property for the years 1920 to 1923 inclusive, and there appear tax receipts showing payment of taxes on January 1, 1922, of twenty-one and 60-100 dollars; on January 19, 1923, of nineteen and 50-100 dollars; and on December 18, 1923, of twenty-three and 10-100 dollárs, and under the provisions of Article 233 of the Constitution of 1913, providing the judgment annulling a tax sale shall .not have effect until the price of the tax title and all taxes paid, together with ten per cent per annum interest thereon, shall have been paid to the tax purchaser, we think judgment should be rendered in favor of the defendant for the amount of taxes shown to have been paid, and reserving the right of defendant to claim an additional amount paid by him at the tax sale and any other taxes which have been paid on the property subsequent to the trial.

It is therefore ordered, adjudged and decreed that the judgment appealed from be annulled, avoided and reversed, and it is now ordered, adjudged and decreed that the plaintiffs, Hicks &” Richardson Company, Limited, J. T. Richardson, Lucille Richardson and Eva Richardson have and recover judgment against defendant, J. I. Gearreald, recognizing and decreeing them to be the owners of Lot five (5) of Section three (3) and Lots six (6) and seven (7) of Section four (4), Township fourteen (14), Range twelve (12) West, of Red River parish, Louisiana, in accordance with their title, and that that certain tax sale and tax deed thereunder made by T. M. Brit-tin, sheriff and ex-officio tax collector of the parish of Red River, Louisiana, to J. I. Gearreald of date June 29, 1918, as the same appears filed and of record on page 70 of volume 27 of the conveyance records in the Recorder’s Office of Red River parish, Louisiana, be decreed null and void and the inscription be cancelled and erased; and it is further ordered, adjudged and decreed that defendant have and recover judgment against plaintiffs in the sum of sixty-four and 20-100 dollars, with 10 per cent per annum interest on twenty-one and 60-100 dollars thereof from January 1, 1922, and like interest on nineteen and 50-100 dollars thereof from February 19, 1923, and like interest on twenty-three and 10-100 dollars from December 18, 1923, until paid, and that the inscription of the tax deed be not can-celled until payments of the said amohnt and interest.

It is further ordered that the defendant’s right to claim the amount of the price paid at the tax sale and for any other taxes paid on the property during the pendency of the suit, together with interest thereon, be reserved.

It is further ordered, adjudged and decreed that defendant pay all costs of this suit.