text:
    No. 1844
    Second Circuit Appeal
    MOROTOCK MFG. CO. v. BRITT & NORRIS
    (Feb. 20, 1925, Opinion and Decree.)

      (Syllabus by the Editor.)

    1. Louisiana Digest — Sales—Par. 58.
    In view of Article 2484 of the Civil Code, where no place of delivery is specified, the delivery of merchandise consigned to the buyer to an express company by the seller in Virginia completed the sale, making the buyer in Louisiana the owner'.
    2. Louisiana Digest — Estoppel—Par. 30.
    The filing of a claim for damages with an express company by the seller of merchandise does not estop the seller from showing that the damaged goods belonged to the buyer.
    Appeal from First Judicial District Court of Louisiana, Parish of Caddo, Hon. J. H. Stephens, Judge.
    ' This is a suit to recover from the buyer the price of goods sold and delivered to the express company but damaged in transit.
    There was judgment for plaintiff and defendant appealed.
    Judgment affirmed.
    D. C.- Scarborough, Jr., of Shreveport, attorney for plaintiff, appellee.
    Dickson & Denny, of Shreveport, attorneys for defendant, appellant.
   ODOM, J.

The plaintiff is a manufacturing corporation domiciled and doing-business in Danville, Virginia.

The defendant is a commercial firm doing a mercantile business in Cedar Grove, Caddo parish.

In June, 1920, defendant ordered a bill of goods from the plaintiff amounting to $207.00.

The goods were promptly shipped by plaintiff from Danville by express, to defendant.

The goods were not received promptly by defendant who notified the plaintiff of that fact. The plaintiff filed a claim for the loss of the goods with the Express Company. The Express Company finally reported to the plaintiff that the goods were delivered to defendant. However, it later developed that the shipment reached Shreveport in badly damaged condition and was refused by defendant.

Plaintiff brings this suit for the amount of the bill. Defendant admits ordering the goods but denies liability on the ground that the goods were never delivered to it, and further pleads estoppel based'upon the fact that plaintiff filed a claim for the amount of the loss with the Express Company.

There was judgment for plaintiff and defendant appealed.

The main issue to be determined, is:

Did the title to the goods pass to defendant upon their delivery to the carrier by plaintiff at Danville, Virginia, and was plaintiff’s delivery of the goods to the Express Company at Danville, Virginia, under the circumstances a delivery of the goods to defendant?

There seems to have been nothing out of the ordinary in the transaction. A representative of the plaintiff company frequently called on defendant and took orders for goods. This order was taken in the usual course and sent by the drummer to plaintiff who . accepted it and delivered the goods to the Express Company for shipment to defendant and took the usual receipt from the Express Company. It was understood that the goods were to be shipped f. o. b. Danville, Virginia, and defendant was to pay the freight charges. The record does not disclose that defendant selected the carrier to transport the goods. Nothing seems to have been said about that when the order was made. We therefore assume that the plaintiff selected the carrier, which it had a right to do, the buyer not having designated one. The goods were delivered to the American Railway Express Company, which is the only Express Company operating at Danville. There is nothing in the record to show that the place of delivery of the goods was mentioned by either party. They were to be shipped to defendant at Cedar Grove, Louisiana.

In 35 Cyc. 172, we find the rule stated thus:

“In the absence of any provision in the contract fixing a place for delivery the general rule is that the delivery shall be made at the place where the goods are at the time of the sale, and this will usually be the place of business of the seller, or manufacturer, or of shipment.”

And the text further states that the rule may be modified by circumstances, custom of trade or the understanding of the parties that the delivery shall be made at the warehouse or place of business of the buyer.

And by the same authority it is stated that if delivery is made by a carrier, the place of shipment is ordinarily the place of delivery.

And we find it further stated (page 174):

“If the agreement is to sell goods f. o. b. at a designated place such place will ordinarily be regarded as the place of delivery.”

However, it is stated that the effect of the words f. o. b. depends on the connection in which they are used and if used in connection with the words fixing the price only it will not be construed as fixing the place of delivery.

In this .case the buyer did not fix the place of delivery. He ordered the goods to be shipped in due course, he to pay the freight.

We see no reason why the general rule should not apply in this case, which rule is that the place of delivery is where the goods are at the time of the sale. These goods were ordered by defendant in Cedar Grove through a drummer. The order was sent to plaintiff at Danville, Virginia, where it was accepted and the goods delivered to a common-carrier.

Article 2484 of the Civil Code reads as follows:

“The delivery must be made on the place where the thing, which is the object of the sale, was at the time of such sale, if not otherwise agreed upon.”

In Claflin & Co. vs. Mayer, 41 La. Ann. 1048 (1051). 7 South. 139, the court said:

“It is not doubted that purchases by order by the buyer himself become contracts of the place where the order is filled.”

See Succession of Welsh, 111 La. 801, 35 South. 913.

These goods were not ordered to. be shipped and delivered in Shreveport subject to inspection. On the day that the order was filled and the goods shipped the defendant was the owner of them and delivery of articles ordered of a manufacturer, delivery is to be made at the place they are manufactured.

In Leeds vs. Breedall, 2 Rob. 105, it was held that where no place is designated for delivery was made in Virginia.

All authorities are to the effect that unless it is otherwise stipulated, merchandise delivered by the seller to a carrier designated by the buyer or to one usually employed to transport goods from the seller to the buyer, is a delivery to the purchaser the carrier becoming the agent or bailee of the buyer.

35 Cyc. 193.

In this case the buyer did not designate the carrier but the goods were delivered by the seller to an Express Company which was the only one operating at that place; and while there is nothing in the record to throw any light upon the subject, yet we think we may assume that this was the carrier ordinarily employed to transport goods from this seller to the buyer.

Our conclusion is, that the goods became the property of the defendant when the order was accepted and filled in Virginia and that the delivery of them by the seller to the common carrier was a delivery to the defendant and they were no longer at the risk of the plaintiff.

The sale was complete; the defendant became bound for the price; and the fact that the goods were not delivered to him does not relieve him from his obligation to pay.

See Loveland vs. Dennan, 17 L. R. A. (N. S.) 1119.

ON THE PLEA OF ESTOPPEL.

The plaintiff filed a claim for the goods shipped with the Express Company. Defendant urges estoppel on this ground. He says that the plaintiff company cannot deny that it was the owner of the goods, having filed a claim with the carrier in its own name.

The filing of the 'claim might be regarded as a. circumstance tending to show that plaintiff considered' itself the owner of the goods. But it cannot, in our opinion be plead as an estoppel. We have held that the title to the goods vested in defendant and that they were delivered to it in Virginia. No act of plaintiff could, after the transaction was complete and the ownership vested in defendant change the status of the parties.

For the reasons assigned, the judgment of the District Court is affirmed with costs.


source: Caselaw Access Project

author: CARVER, J. REYNOLDS, J.

license: Public Domain

text:
    No. 1918
    Second Circuit Appeal
    AL. LOPER v. GILLIAM WHITE
    (Feb. 20, 1925, Opinion and Decree.)
    (March 17, 1925, Rehearing Refused.)

      (Syllabus by the Editor.)
    1. Louisiana Digest — Petitory and Possessory — Par. 59, 63.
    In a possessory action it is sufficient to describe the land in question in such a way as will give defendant reasonable notice.
    2. Louisiana Digest — Petitory and Possessory — Par. 63; Trespass — Par. 17, 18.
    Plaintiff cannot bring a suit charging trespass upon one piece of land and sustain it by proof of trespass upon a different piece of land.
    3. Louisiana Digest — Trespass—Par. 17, 18.
    Where, in an action charging trespass, the defense is that there was a mistake as to the land involved, the defendant should be allowed to introduce evidence for the purpose of showing that he had not been on any of the pro-p- ■ erty sued for.
    4. Louisiana Digest — Trespass—Par. 18.
    In an action charging trespass defendant should be allowed to introduce in evidence the deed of plaintiff solely for the purpose of fixing the exact location of property sued for.
    Appeal from First Judicial District Court of Louisiana, Parish of Caddo, Hon. T. F. Bell, Judge.
    This is a possessory action and one charging trespass.
    There was judgment for plaintiff and defendant appealed.
    Judgment set aside and case remanded to be proceeded with according to law.
    Herndon & Herndon, of Shreveport, attorneys for plaintiff, appellee.
    Hall, Johnson & Hall, of Shreveport, attorneys for defendant, appellant.
   CARVER, J.

This is a possessory action. Plaintiff’ alleges as follows:

1.
“That on December 30th, 1910, he purchased 86.65 acres of land in Section 17, Township 15, Range 15 and a strip of 7 acres adjoining in Section 18, Township 15, Range 15, in Caddo - Parish, Louisiana, which land was pointed out to him by the said Foster and he at once took possession of it and has been in the actual, notorious and public possession of said property as owner thereof from that time until the present having cleared the same and put improvements ’thereon.”
2.
“That within the last week or ten days Gilliam White also a resident of Caddo Parish, La., has trespassed upon said land and has taken possession thereof against the protest and wishes of your petitioner.”

Defendant answers admitting paragraph No. 1 and denying paragraph No. 2. Before answering he asked for an order to survey, alleging that he had Teased from the heirs of James Foster “that portion of Section 18, Twp. 15, R. 15, adjoining the land owned by the plaintiff and described in his petition in this case, which land leased to the defendant is described as follows: Begin 20ch. S. and 21ch. of the N. E. corner of Sec. 18, T. 15, R. 15; thence parallel road; thence W. 30 degrees and 15 minutes N. along said road to an angle in said road; thence N. 2 degrees and 46 minutes W., continuing along said road to the E. and W., continuing along said 1/2 of said Section; thence E. to the beginning, the location of the East boundary of said land the one in controversy”.

And that “the controversy in this case arises over the correct location of said line between the land of plaintiff and the tract leased to this defendant”.

The District Judge refused to order the survey.

Upon the trial plaintiff offered to prove that defendant had gone into a house of which he was in possession and torn up the floor and also cut some land, by which we presume was meant cutting the trees thereon.

Defendant’s counsel objected on the alleged ground that these doings did not occur on the land described in the petition but on other land and that the introduction of the evidence without obection might have the effect of broadening the pleadings.

It was perhaps prudent, for the reason given, for counsel to make this objection, because it might have had the effect he feared; but we think the District Judge correct in overruling the objection. To prove his case it was incumbent on plaintiff to show that the defendant had done something amounting to a trespass and to show also that this something was upon the land described in the petition; but he could not be controlled in the order of his proof and had the right to prove first whichever one of these things he chose.

Defendant thereafter offered to introduce the deed under which plaintiff held, and upon plaintiff’s objection it was ruled out. We think this ruling erroneous.

The question of title is, of course, not involved in the suit and the deed is not admissible on that ground. Perhaps it cannot show what land the plaintiff was actually in possession of, and were that the only question it would not, perhaps, be admissible on that ground; but we think it is not only admissible but necessary to show what land the plaintiff alleges himself to be in possession of; and we are clear that the proof must be restricted to trespasses upon the land described.

The plaintiff in a possessory action need not describe the land in any particular way, whether by section, township or range, natural boundaries, or otherwise; it is sufficient if he describes it in such way as will give defendant reasonable notice. It will have sufficed to say, in this case, that plaintiff was in possession of 93.65 acres in Sections 17 and 18, Township 15, Range 15, or to say a tract of land on the Spring Ridge and Keatchie road, about so many miles from some well-known point, as, for instance, Shreveport; but whatever description he chooses to use he must be held to and cannot sustain a suit charging trespasses on one tract of land by proof of trespass on another.

The allegation in this case, as we understand it, is that the land trespassed upon is that purchased by plaintiff. His deed, therefore, is virtually a part of the description he chose to use. Defendant perhaps might have demanded oyer of the .deed as an integral part of the description alleged in the petition, but certainly he has the right to complete the description referred to by plaintiff in the petition but left incomplete for lack of the deed to which reference was made.

We do not understand that the allegation as to Foster’s pointing out of the land either adds to or detracts from the description given which is clearly the 93.65 purchased, 86.65 acres in Section 17 and a strip of 7.00 acres adjoining in Section 18. The allegation in “which land was pointed out to him by Foster” and this can mean only that the land pointed out was the same land he bought. The allegation as to taking immediate possession and enjoying subsequent possession refers also not to any 93.65 acres which might float over nearly any part of the two Sections but to the 93.65 acres purchased.

Defendant also sought to prove by a surveyor that neither one of the two trespasses had occurred on the land described in the petition, but upon objection of the plaintiff the surveyor’s testimony was ruled out. Defendant’s counsel did not state in his offering but does in his brief that the house and premises whereon the alleged trespasses were committed were about half a mile from the land described in the plaintiff’s petition. We think he had a right to do this if he could. The question in the case is not whether • the defendant committed a trespass on any land in the possession of the plaintiff hut whether he committed the trespass for which he was sued, namely, one on the land described in the petition.

Plaintiff has not argued the case in this court, having merely filed a statement to the effect that the controversy has become a moot one for the reason, as he says, that plantiff not having been able to pay for the land has given it up and defendant has bought it and is in possession. These facts are not shown by the record and would not constitute any reason for affirming the judgment of the lower court if they were. The defendant has been condemned to pay the costs of the suit, which is an injustice to him if it be true, as he claims that the trespasses of which he stands convicted were not trespasses for which he was sued. The plaintiff did file a brief in the lower court, which we have read but the points he makes and the decisions he cites are not, we think, pertinent to this case. None of these points are disputed by defendant’s counsel nor is the ruling in any of the cases cited questioned by him. These points are; that where plaintiff in a possessory action annexes a deed to the petition for the sole purpose of showing possession, the action is not thereby changed into a petitory action; that possession as owner for a year or more is the only requisite to support the possessory action; that it is immaterial how ownership may have been acquired provided it is one of the methods required by law; that the prayer of the petition fixes the character of the action; and that actual possession if legal and peaceable, is sufficient to maintain the action against even the lawful owner who disturbs the possession.

The authorities cited support these points, but they do not meet the issue here, which is, as said above, that the plaintiff cannot bring a suit charging trespass upon one piece of land and s'ustain it by proof of a trespass upon a different piece.

The judgment of the lower court was in favor of plaintiff. We think it erroneous, and therefore it is decreed that said judgment be set aside and the case remanded to the lower court to be proceeded with according to law and the views expressed in this opinion. The costs of the appeal to be paid by plaintiff; those of the lower court to await the final result.

ON APPLICATION FOR REHEARING

REYNOLDS, J.

Plaintiff, appellee, makes an earnest application for rehearing herein and urges that his evidence taken in the case entitles him to a judgment.

We agree with plaintiff, appellee, that his evidence, undisputed, entitles him to a judgment, but defendant, appellant, sought to disprove plaintiff’s evidence and (not for the purpose of proving title but solely for the purpose of fixing the exact location of the. property suéd for) offered to introduce in evidence the deed to plaintiff in order that he might show that he had not been on any part of the property sued for and that he did not in any way trespass upon said property. His evidence was improperly excluded. Before he can be condemned he must have an opportunity to present his evidence and to have same considered insofar as it is legally evidence.

The application for rehearing is refused.


author: REYNOLDS, J.

text:
    No. 1770.
    Second Circuit Appeal.
    JAMES A. ROSS v. MRS. L. H. BARTLEY.
    (Feb. 20, 1925, Opinion and Decree.)

      (Syllabus by the Editor.)

    1. Louisiana Digest — Evidence—Par. 58, 59.
    Where a special defense that she signed the notes at the instance and on the request of the plaintiff, the burden of proof of this defense is on the defendant.
    2. Louisiana Digest — Estoppel—Par. 22, 24, 26.
    Defendant is not estopped from- denying that an auto was bought for James A, Ross Insurance Agency, a third party, merely because she stored the car in the name of James A. Ross Insurance Agency.
    Appeal from the First Judicial District Court of Louisiana, Parish of Caddo. Hon E. P. Mills, Judge.
    Action to recover $755.25, interest and attorney’s fees, on fifteen promissory notes. Defendant admits signing said notes, but alleges that she signed same as an accommodation maker for plaintiff, and pleads equitable estoppel.
    There was judgment in favor of plaintiff for the amount sued for, and defendant appealed.
    Judgment affirmed.
    Crain, Jackson & Johnson, of Shreveport, attorneys for plaintiffs, appellees.
    Winkinson, Lewis & Wilkinson, of Shreveport, attorneys for defendant, appellant.
   OPINION.

REYNOLDS, J.

This is a suit on fifteen .promissory notes for $50.35 each held by plaintiff, and under the plain letter of the law as to negotiable instruments plaintiff, as holder of said notes, is entitled to judgment, unless defendant can establish some special defense.

Defendant sets up as a special defense that she signed the notes at the instance and request of the plaintiff, and she swears to this fact most positively. But plaintiff swears just as positively to- the contrary. The evidence on this point is quite voluminous, but we think it would serve no useful purpose to review same in this decision.

The district judge who heard the testimony decided for the plaintiff, and; the Court of Appeal affirmed that decision but later granted a rehearing.

After reading all the evidence carefully, we are of the opinion that the testimony of the one is equal to the testimony of the other; and the burden of proof being on the defendant, who sets up a special defense, the case is with the plaintiff.

Defendant argued with great force that plaintiff is estopped from denying that the automobile was bought for the James A. Ross Insurance Agency by reason of the fact that the agent of that agency who checked defendant out allowed her to turn over the automobile as the property of the James A. Ross Insurance Agency.

This act we do not think can serve as an estoppel for defendant, for the act of having the car stored as the property of the James A Ross Insurance Agency was really the act of the defendant herself in regard to a transaction between the defendant and the James A. Ross Insurance Agency; and this agency is not a party to this suit and it is impossible for this court undfer the evidence in the case to decide the respective rights of the plaintiff and defendant insofar as the agency is concerned.

The fact of storing the car as the property of the James A. Ross Insurance Agency on the direction of the defendant did not in any way cause her to change her position relative to the purchase of the automobile. It might have reflected some light as to how plaintiff and defendant regarded the original purchase of the automobile if it had been a transaction between defendant and Mr. Ross in person. But it could not under any condition constitute an estoppel, for defendant was not thereby caused to change her position to her ■ detriment.

For the reasons assigned, the judgment appealed from is affirmed at defendant’s costs.


author: CARVER, J.

text:
    No. 1877
    Second Circuit Appeal
    OVERLAND-TEXARKANA COMPANY v. J. L. BICKLEY ET AL.
    (Feb. 20, 1925, Opinion and Decree)
    (June 6, 1925, Rehearing refused.)
    (July 13, 1925, Writ of Certiorari to Supreme Court Refused)

      (Syllabus by the Editor.)

    I. Louisiana Digest — Sequestration — Par. 25 .
    Where an automobile sequestered is released on a forthcoming bond and is used for two years by the party obtaining the release, the result of the use being to materially depreciate the value of the automobile, the bondsmen are liable on the forthcoming bond for the amount of this depreciation.
    Appeal from Twelfth Judicial District Court of Louisiana, Parish of Sabine, Hon. J. H. Boone, Judge.
    This is a suit to recover from the bondsmen on a forthcoming bond the depreciation to an . automobile, due to two years’ use contrary to the owner’s wishes.
    There was judgment for defendant and plaintiff appealed.
    Judgment reversed.
    S. D. Ponder, of Many, attorney for plaintiff, appellant.
    R. A. Fraser, of Many, attorney for defendants, appellees.
   CARVER, J.

This is a suit on forthcoming bond given to secure the release of an automobile sequestered in a previous suit between this plaintiff and Biekley, the principal on the bond, wherein the owner.ship of the automobile was in contest.

The automobile was finally adjudged to belong to plaintiff but over two years had elapsed from the time of the seizure. Pending the litigation, Biekley had used the automobile which, at its termination, had much depreciated in value. After trying to obtain a settlement with Biekley, plaintiff’s attorney obtained a writ of sequestration under which the sheriff placed him in possession of the car. In his petition for this writ, plaintiff declared that he reserved his rights on the bond.

Plaintiff’s attorney had the car appraised by an automobile dealer who appraised it at $200.00. As a further test of value, he then had it sold at public auction, after advertisement, when it brought $100.00. He gave written notice of this appraisement and of the proposed auction sale to the principal and securities on the bond, inviting them to bid, and stating that the price would be credited on the bond.

In this suit plaintiff asks for judgment for $995.00 the amount of the bond less $100.00, the price obtained at the auction sale.

Defendants plead—

1. No cause of action.

2. Estoppel.

3. Denial that the bond was broken.

1.

The exception of no cause or right of action is based on the claim that a cause of action arises only when after final judgment execution issues and is returned unsatisfied, and that in this' case the judgment only decreed ownership and possession, the writ was for possession and the return shows full and complete satisfaction.

No authority is cited in support of this proposition and it does not seem to us that the return of a damaged and almost valueless car is satisfaction of a judgment for a good one. The fact that the defendants were not notified of the application for the writ of possession containing a reservation of plaintiff’s right on the bond, is immaterial in our opinion. They do not claim to have been prejudiced thereby. Moreover they were notified of the proposed sale, thereby being afforded an opportunity to protect themselves. Furthermore, they had the' right to show, if they could that the car was worth more than it brought at that sale.

2.

The plea of estoppel is not urged in defendants’ brief and we might therefore be warranted in considering it abandoned. It is -based on plaintiff’s action in obtaining the writ of possession. We do not think the plea well founded. Plaintiff had the right and it was perhaps its duty to save what there was left of the car and its doing so injured to the benefit of the sureties instead of injury to them.

3.

ON THE MERITS.

Defendants urge that the bond was not broken, arguing that its conditions were:

1. That the car would not be sent out of the jurisdiction of the court.

2. That it would not be improperly used.

3. That it would be faithfully restored after definitive judgment.

All of which conditions, they say, were complied with.

The first one was but, in our opinion, the last two were not. We think that any use which one man makes of another’s property over his protest is an improper use. In allowing the defendant to bond property seized in his possession, the law merely acts on the necessity of the case. It is not practicable to dertermine on the instant the question of right, so the status quo is preserved by leaving the disputed object with the possessor until in the regular course that question can be determined.

But no right is thereby conferred on the possessor to make any use of the property to which he was not otherwise entitled. If he has not this right already the law does not give it to him, nor could it constitutionally give any one the right to use another’s property. The constitution forbids the taking or damaging of property except for public purpose upon compensation previously paid.

We think, also, that the obligation faithfully to restore a good car is not fulfilled by restoring one the value Of which has almost been destroyed by use.

We do not think, though, that the original value of the ear is absolutely fixed by the amount of the bond nor do we think defendants estopped from showing the true value. The car in question while worth, new and in good condition, $995.00,. had been damaged to some extent when traded for by Bickley, who was in good faith, and, moreover, was somewhat lessened in value by the mere fact that it had been used and was therefore a second hand car. We think the value paid by Bickley, $800, proper to fix as the original value. As to the value at the time of the restoration, it seems to us that the method of arriving at it pursued by plaintiff was a reasonable one. By giving notice of the sale to defendants they were afforded n opportunity to protect themselves against a sacrifice. If they did not see fit to avail themselves of this opportunity, it must have been because they thought the car of too little value to be a matter of any concern. The only other way of determining value would be by the opinion of witnesses which, in our judgment, would not be as good a test as the one adopted.

The argument that the car would have suffered depreciation if not used but stored affords no reason to release defendants from liability. Their liability results from the fact of bonding and thereby depriving plaintiff of the benefit of its property. If they had not bonded it plaintiff could have done so and in that event it and not Bickley would have enjoyed it while it was serviceable.

We do not think that the reduction in price of cars of the kind in question pending the litigation can inure to the benefit of defendants. The right of plaintiff and the corresponding duty of defendants must be determined on the basis of things as they existed on the day the car was seized. It is true it was not and because of the law’s delays, could not be determined until long afterwards what this right and duty were but when determined the judgment related back to the beginning of the litigation and amounted in effect to a decision that plaintiff had been throughout the owner and entitled to possession of the ,car. If the possession to which he had a right had not been withheld from it plaintiff could have realized the then value in such way as it pleased.

The judgment of the lower court is reversed, and it is now decreed that the Overland-Texarkana Company recover from J. L. Bickley, W. H. Pearson, 6. C. Chesser, W. F. Allen and R. L. Parrott in solido the sum of seven hundred dollars with five per cent per annum interest thereon from this date until paid and the costs of both courts.


text:
    No. 1924.
    Second Circuit Appeal.
    ROBERT S. MANDEL v. D. P. EUBANK.
    (Feb. 20, 1925, Opinion and Decree.)

      (Syllabus by the Editor.)

    1. Louisiana Digest-^ — Appeal—Par. 625.
    The judgment of the trial court on a question of fact being correct is affirmed.
    Appeal from First Judicial District Court of Louisiana, Parish of Caddo, Hon. T. F. Bell, Judge.
    This is a suit to collect a note. The defense was want of consideration.
    There was judgment for plaintiff • and defendant appealed.
    Judgment affirmed.
    Charles F. Crain, of Shreveport, attorney for plaintiff, appellee.
    J. S. Peters, of Shreveport, attorney for defendant, appellant..
   OPINION

CARVER, J.

Some time in 1920 defendant executed a note for $1,000.00, made payable, apparently, to Jones Leasing and Development Co., Inc., which note he delivered to B. E. Jones, who transferred it to plaintiff. Thereafter defendant executed new notes from time to time to take up this original note or a balance due thereon, he having made various payments. This suit is on the last note so given.

The defense is want of consideration and a plea that he was induced to give the note by the fraudulent representations of plaintiff who, he alleges, gave him for the note a certificate of stock in Jones Leasing and Development Co., Inc., representing this as a duly incorporated company, although it was not such.

.In his testimony defendant does not pretend- that Mandel made any representations, whether true or false, and, as we understand his present contention, the only basis for this claim of false representations is the fact that plaintiff signed the stock certificate as an officer of the company; that its issuance was a representation of due incorporation, which representation, the argument is, was false by reason of the fact that the company was not duly incorporated because of two defects, namely: First, a sufficient amount of stock had not been subscribed for and, second, the requisite papers were not filed with the secretary of state.

As we appreciate the evidence, the original note was not given as the price of stock in an organized company but rather in payment of a subscription for stock in a company to be organized.

The defendant’s motive in going into the transaction was not to obtain a stock certificate in a corporation perfect in form of law; it was rather to participate in a business venture known to be uncertain and hazardous, where the chance of losing what one put in was great but was deliberately taken in' the hope of obtaining large gains should the venture prove successful.

We get this as a distinct conception of the transaction from- the testimony of Eubank himself.

The proof fails to show any fraud whatever on the part either of plaintiff. or Jones. Nor does Eubank indicate any fact forming the basis of his vague suspicion. The uncontradicted testimony of the plaintiff and B. E. Jones, associates in the enterprise, is that each of them lost over $20,000.00, and there is nothing in the record to show that they ever got anything out of it. The money was chiefly spent for obtaining oil leases in Red River, Bossier, DeSoto and Morehouse parishes; some, of course, going for expenses, including advertising. The transactions took place during the well-remembered oil boom, during which so many bubbles were blown up' and pricked.

Defendant admits that he had from almost the first the same vague misgiving that he had at the time of giving his testimony, but he made payments from time to time on the original note and only made up his mind to try to avoid' payment of the last - one when he understood he might have some chance to do so by showing defects of form in the organization of the company.

We think the decision of the lower court correct and it is therefore affirmed.


text:
    No. 2136
    Second Circuit Appeal.
    ISAAC T. PLUMLEE v. AMERICAN RAILWAY EXPRESS CO.
    (Feb. 20, 1925, Opinion and Decree.)

      (Syllabus by the Editor.)

    1. Louisiana Digest — False Arrest and Imprisonment — Par. 2, 6.
    Where a corporation had information that its customers were being overcharged and there was a shortage ascribed to its employees, turns over to its attorneys the way bills and other written documents touching on this shortage and the attorneys place the information in the hands of the district attorney, who filed an affidavit against the defendant, having him arrested. Held, the company having acted on good faith based on probable cause and without malice' could not be made to pay damages for alleged false imprisonment.
    (Civil Code, Art. 2315. Editor’s note.)
    Appeal from the First Judicial District Court of Louisiana, Parish of Caddo, Hon. T. F. Bell, Judge.
    Action by Isaac T. Plumlee against American Railway Express Company for $2,000.00 damages claimed for alleged false imprisonment.
    Defendant denies liability on the ground that' it acted in good faith, on probable cause and without malice.
    There was judgment for defendant and plaintiff appealed.
    Affirmed.
    Barksdale, Bullock, Warren, Clark & Van Hook, of Shreveport, attorneys for defendant and appellant.
    Pugh & Boatner, of Shreveport, attorneys for defendant and appellee.
   REYNOLDS, J.

In this case, the plain tiff, Isaac T. Plumlee, sued the defendant American Railway Express Company, for $2,000.00 for alleged false imprisonment. Defendant denied that it caused the imprisonment of Plumlee and especially alleges that all its acts in trying to put a stop to certain dishonest practices that were being perpetrated against it and its customers were in perfect good faith, based on probable cause and without malice.

Plaintiff was arrested and placed in the parish jail where he remained for one night on a warrant sworn out by the District Attorney, L. C. Blanchard.

Prior to the date of this affidavit, J. C. Pugh, a member of the firm of Pugh & Boatner, a law firm of high reputation and unquestioned integrity, had turned over to the District Attorney certain way-bills and other written documents touching the shortage of certain of the drivers of the American Railway Express Company. Among these documents was a confession of one J. M. Shirley, one . of the drivers whose conduct with that of a -number of others was being investigated.

As to the affidavit made by him, the District Attorney, on pages 106 and 107, testified:

Q. Mr. Blanchard, did you act on your own responsibility in making these affidavits?
A. Yes, sir, I did. .1 say that Mr. Boatner for this reason: I remember Mr. Pugh came and left a lot of papers with me and we discussed the papers a while and he left and I made them.
Q. He left you to make up your mind as to what you thought about it?
A. Yes, sir.
Q. Did Mr. Pugh try to bring any undue pressure or influence to bear on you?
A. No, sir, he did not.
Q. So far as you could observe was his demeanor such as that he wanted to fairly present what he had without argument or pressure or influence or otherwise?
A. Yes, that is my recollection. He just brought it in and left it there.
Q. Did he exhibit any malice against any of these gentlemen in particular Mr. ’Plumlee, that came under your observation?
A. No, sir, not as I remember.
Q. The matter was just presented to you in the ordinary run of a day’s business and no particular notice taken of it other than your investigation?
A. No, sir, of course we have quite a number of this sort of things that come in there every day, Mr. Boatner. . . Taking an ordinary day’s run we have anywhere from one to fifty a day that come in there like these but they usually come in like bad checks and hand them to me and if I think it is all right later on I swear out a warrant myself and have them arrested.
Q. You reviewed the evidence as presented in this statement of Shirley and exercising your discretion as District Attorney, you acted on that on your own motion?
A. I did.

J. C. Pugh, as to this matter, testified, on pages 261, 262 and 264, as follows:

Q. What was the purpose of these people consulting you, what did they want?
A. Well, they came in and stated they had been bothered with shortages by larceny among the employees and that they had made an investigation and that they wanted to turn over the papers to our firm and have us to look into the matter and see just what could he done with a view of stopping it. I had them to explain to me all about these tracers and so forth because I didn’t understand them myself and I had them to explain the waybill tracers and after we went through them they showed shortages and with this evidence in hand I looked up the law on the subject and after that — I don’t know whether it was the same day or the day afterwards — but I brought them up to the District Attorney’s office.
Q. At this conference with the officers of the express company, was any decision reached as to what would be done?
A. No, sir, in fact they didn’t know what could he done. They just turned over the matter to us or rather over to me as a member of the firm of Pugh & Boatner who represented the company, for advice, and to place the matter in our hands. In fact they didn’t know what I intended to do about it or anything else.
Q. And I understand you brought the papers to the District Attorney’s office then? „
A. I brought them to Mr. Blanchard in person. • I gave him all the papers that were turned over to me and explained them to him and told him he could take whatever action he saw fit in his • official capacity as District Attorney.
Q. Was any conclusion arrived at during your conference with the District Attorney as to what should be done?
A. No, he promised me he would go through them and decide that later.
Q. Between the time the gentlemen came from the express company and gave you these papers and the time of, these arrests, what conferences or communications, if any, did you have with the officials of the express company?
A. I am positive I did not 'have any conferences with them after they turned over the papers to me. As I stated they told me they had been bothered with thefts, particularly among the drivers and what was the information, after investigation, they had secured and they turned them over you might say to the legal department. They had nothing to do with them after they turned them over to us because the responsibility was on our firm after then.

Mr. E. C. Berry, superintendent of the Louisiana Division of the American Railway Express Company, testified as to this matter, on page 237.

Q. Did you see the District Attorney?
A. I did not.
Q. Well, why did you go to Mr. Pugh’s office with the papers,- what was the purpose of your visit?
A. To secure legal counsel in the matter of that kind, we do that in all matters in which we feel that we need legal advice, and discussed it with Mr. Pugh or Mr. Boatner, who are our attorneys in Shreveport.
Q. The purpose was to get counsel so that you could act according to law?
A. Yes, sir, absolutely.
Q. Well, you just submitted the matter to his own judgment?
A. Yes, sir, absolutely.

This evidence, we think, goes to show that there was no undue activity or malice on the part of the American Railway Express Company in their effort to put a stop to certain dishonest practices that were being perpetrated upon its customers.

But counsel most earnestly insist that the confession of Shirley was not free or voluntary, and that it was obtained by the American Railway Express Company by improper methods and turned over to the District Attorney’s office in malice towards Plumlee.

This contention as to the confession of Shirley is not that it is untrue as to him but that it was not free or voluntary; and this is based alone on the testimony of Shirley himself' who admits in his evidence that he had made statements that were not true and confesses that he had retained moneys collected by him for the American Railway Express Company.

On his testimony alone we would not feel ourselves at liberty to act. Besides, his testimony is directly contradicted by Mr. Shannon, Mr. Smith, Mr. Berry and Mr. Stinson.

This confession of .Shirley was first made to Mr. Stinson, Shirley’s friend, a merchant for whom Shirley had' worked for six years, whom Shirley had sent for and who went on his bond. Mr. Stinson was in no way connected with or employed by the American Railway Express Company.

The confession was taken down by Mr. Shannon, agent of the Express Company, at the suggestion of Mr. Stinson, was signed by Mr. Shirley and witnessed by Mr. Stinson, was later turned over to Mr. Pugh and by Mr. Pugh was turned over to the District Attorney.

At this time Mr. Shirley’s transactions were being examined into along with a number of other employees of the American Railway Express Company.

Counsel for plaintiff insist that Mr. Plumlee was mentioned in the confession of Shirley and that it was because of this statement of Shirley that the District Attorney made the affidavit on which Plumlee was arrested and placed in jail. If this is true Plumlee has a grievance against Shirley, but the American Railway Express Company cannot be held responsible therefor. The confession was an admission by Shirley of his guilt- and as to him was not admissible in evidence unless it was free and voluntary. But as to Plumlee it was not admissible in evidence even if it had been free and voluntary. It was hearsay as to Plumlee and under no circumstance could it be used in evidence against him. If the District Attorney filed an affidavit against Plumlee based upon ■ the confession of Shirley that could' under no circumstances be used against Plumlee, the American Railway Express Company could not be held liable for this act of the District Attorney.

Pellifigue vs. Judice, Southern Reporte advance sheets.

The American Railway Express Company had every reason to believe at least one of its customers had been overcharged.

(See evidence of Mrs. Werner, page 188.)

Q. Who said that?
A. The negro spoke, up and says the charges are a dollar and a half,' and I said, the driver told me it was one dollar and ten cents, and the driver says, no you are mistaken, it is a dollar and fifty cents. I did not argue with him, I supposed it was a mistake, so I got the difference of forty cents and the negro handed it to him.

It was the defendant’s duty to do everything in its power legally to put a stop to this wrong being perpetrated upon its customers. In doing this it gathered all facts it could get, not with a view of having any particular individual prosecuted but to secure for its customers honest treatment. For this the Express Company should be commended and not mulcted in damages.

From all the evidence in this case we are convinced that the defendant, American Railway Express Company, acted in good faith, based on probable cause and without malice.

For these reasons, it is ordered, adjudged and decreed that the judgment appealed from be affirmed.


text:
    No. 2208.
    Second Circuit Appeal.
    SHREVEPORT LONG LEAF LUMBER COMPANY v. T. R. HUGHES, SHERIFF.
    (Feb. 20, 1925, Opinion and Decree.)
    (Rehearing Refused)

      (Syllabus by the Editor.)

    1. Louisiana Digest — Judicial Sales — Par. 23.
    Where property, under a seizure in one suit, is sold at sheriff’s sale under ex-ecutory process in another suit, the purchaser gets the property and the rents and revenues from the date of adjudication under Article 690 of the Code of Practice, even though the sheriff refused to make deed at the time because of conflicting claims.
    Appeal from First Judicial District Court of Louisiana, Parish of Caddo, Hon. T. F. Bell, Judge.
    Action to recover $1800.00, rent collected by T. R. Hughes, sheriff, between the time certain property was sold to H. P. & A. M. Gleissner at sheriff sale and the time the sheriff actually made deed to said property. Plaintiff claims said rent as the first seizing creditor under a writ of fi. fa. H. P. & A. M. Gleissner, the parties who caused executory process to issue and who bid in the property at sheriff sale, claim said rents are due to them from the date the property was seized; if not, then from the date they bid in the property; or, if not, that then, plaintiff’s judgment, on which it had fi. fa. issued, was fully paid out of the proceeds of the property sold.
    There was judgment for plaintiff and defendant appealed.
    Reversed.
    Cook & Cook, of Shreveport, attorneys for plaintiff and appellee.
    Wilkinson, Lewis & Wilkinson, of Shreveport, attorneys for defendant and appellant.
   STATEMENT.

REYNOLDS, J.

Plaintiff caused the property sold by the sheriff to be seized under a writ of fi. fa. on January 13, 1921, but did not force said property to sale.

H. P. & A. M. Gleissner subsequently caused said property to be seized under executory process and same was offered for sale at sheriff sale on August 13, 1921, and bid in by them and they 'demanded from the sheriff a deed in accordance with their bid.

The sheriff, however, refused to make a deed until the ranking of the privileges claimed by various parties was settled, and H. P. & A. M. Gleissner filed a suit to have the ranking of said liens, mortgages and privileges fixed.

Pending this litigation, and after the property was bid in by the Gleissners but before the sheriff finally made deed to same in accordance with their bid, the sheriff collected $1800.00 rent, which is the fund now in controversy; being claimed by the plaintiff as first seizing creditor and by H. P. & A. M. Gleissner, the parties causing executory process to issue and the property to be sold and under which it was sold.

OPINION.

On January 13, 1921, plaintiff caused certain property to be seized under a writ of execution as the property of D. E. Jones but did not force the same to sale. On August 13, 1921, the said property was offered for sale in a seizure made under executory process by the sheriff and bid in by H. P. & A. M. Gleissner.

At this time numerous parties were claiming to hold the first ranking privilege, each claiming the right to be paid by first preference out of the proceeds.

H. P. & A. M. Gleissner demanded of the sheriff a deed in accordance with their bid.

The sheriff, however, very properly, in view of the conflicting claims as to who was entitled to be paid by first preference out of the proceeds, refused to make deed, and H. P. & A. M. Gleissner filed suit to have the rank of the various privileges determined by the court.

The District Court decided the rank of the privileges one way and the Supreme Court decided another. The sheriff and H. P. & A. M. Gleissner were therefore right in not making settlement until the rank of the privileges was fully settled by final judgment of the Supreme Court.

During the time from the date H. P. & A. M. Gleissner bid in the property and the date the sheriff finally executed the deed to H. P. & A. M. Gleissner, the sheriff collected $1800.00 rent for the property; that was bid in by the Gleissners August 13, 1921.

Plaintiff, as the first seizing creditor, is claiming the $1800.00 on what he claims is a balance due on its judgment under which the property was first seized.

Under the decision of the Supreme Court plaintiff’s judgment, under which it had fi. fa. issued, was decreed to carry a first privilege to the amount of $8216.90 and this amount was paid by the sheriff to the plaintiff or on its order out of the proceeds of the sale made to H. P. & A. M. Gleissner.

Plaintiff’s judgment was therefore thereby fully and finally paid up to that amount.

“For extinguished obligations there is no resurrection; new ones may be created, but dead obligations rise not again.”

When plaintiff directed the sheriff to pay to the American National Bank $2873.67 out of the proceeds that the Supreme Court had decided should be paid on plaintiff’s judgment as first ranking privilege and the sheriff paid same, plaintiff was subrogated to the bank’s claim, but plaintiff’s judgment that the Supreme Court had directed the sheriff to pay up to that amount was fully paid up to that amount, and we might very well render judgment accordingly.

However, H. P. & A. M. Gleissner insist that in any event they are entitled to be paid the $1800.00 collected as rent on the property bid in by them August 13, 1921.

This contention appears to be in accordance with Article 690 of the Code of Practice which reads:

“EFFECT OF ADJUDICATION. The adjudication thus made has, of itself alone the effect of transferring to the purchaser all the rights and claims which the party in whose hands it was seized might have had to the thing adjudged.”

But plaintiff cites Lapene vs. Badeaux, 36 La. Ann. 194, in which the Supreme Court held that:

“Although the contract of sale be perfect, when 'entered into by competent parties the moment that the thing and the price are agreed upon, and although the purchaser may be considered as the owner of the property,' such vendee is not entitled to demand and obtain possession, and in default to claim rents and revenues, where the price payable cash has not been paid, but was retained without justification.”

As authority that the Gleissners did not become the owners of the property bid in by them until the sheriff actually made them a deed.

This decision, however, in our opinion is not applicable to the facts in this case.

The above quoted decision, by Chief Justice Bermudez, says in explanation of the decision:

“It is an important and significant feature in this case that the sale at which plaintiff became adjudicatee was not one made in execution of a writ issued on a money judgment and calling for a specific amount. * * * ”

In the present case, the seizure and sale were made in execution of a writ issued under executory process on a money judgment and called for a specific amount.

On their bid the Gleissners demanded title, but the sheriff refused to make deed until the rank of the various claims was fixed by judgment of the court, and when this rank .was fixed the sheriff made deed to the Gleissners under their bid of August 13, 1921, and from the proceeds of the Gleissners’ bid plaintiff was paid the full amount of his judgment, decreed by the Supreme Court to rank that of H. P. & A. M. Gleissner.

Under these conditions the Gleissners not having at any time been in default or guilty of laches of any kind received a title that entitled them to be recognized as the owners of the property from the date they bid same in at sheriff sale August 13, 1921.

Plaintiff contends that it is entitled to be paid the amount of $1800.00 collected as rent by virtue of a privilege as first seizing creditor; but the privilege of the seizing creditor is inferior in rank to the privilege of the mortgage creditor, and under Civil Code 3408

“The fruit's or income of the property mortgaged are due by the third possessor, only from the time when the notification of the order of seizure was served on him: * * *”

A fortiorari do the fruits or rents go to the mortgage creditor when the property is seized in the hands of plaintiff’s debtor.

Under Code of Practice 679 a sale of real estate is made subject to privileges and mortgages.

Article 656 of the Code of Practice requires that when the sheriff seizes property

“* * * he must take at the same time all the rents, issues and revenues which • the property may yield”.

For all of the above reasons, the; judgment appealed from must be reversed and the demands of the plaintiff are rejected at its costs in both’ courts, this February 16, 1925.


text:
    No. 1785
    Second Circuit Appeal
    BUILDERS’ SUPPLY CO. v. INDEPENDENT ICE AND COLD STORAGE CO., ET AL.
    (Feb. 20 1925, Opinion and Decree.)
    (April 11, 1925, Rehearing Refused.)

      (Syllabus by the Editor.)

    1. Louisiana Digest — Obligations—Par. 149; Sales — Par. 121.
    Where the plaintiff at all times stood ready to comply with its contract and ' to furnish the full quantity of Winnfield stone called for in the contract and defendant was not in a position to receive _ the same because the engineer or 'architect would not allow the same to be used, the defendant can not recover from plaintiff in a reconventional demand.
    Appeal from First Judicial District Court of Louisiana, Parish of Caddo, Hon. E. P. Mills, Judge.
    Action by the Builders Supply Co. against the Independent Ice & Cold Storage Co. for $795.06, balance of account for material furnished in building the Independent Ice $ Cold Storage plant.
    The defendant, Benoit Construction Company, answered admitting the correctness of plaintiff’s demand and filed a claim in re-convention for $1,700.36.
    There was judgment in favor of the plaintiff on its main demand for the amount sued for, $795.06, and for the defendant, plaintiff in reconvention, for the sum of $910.69.
    Judgment amended and affirmed.
    Blanchard, Goldstein & Walker, of Shreveport, attorneys for plaintiff, appellant.
    Crain, Benoit & Jackson, of Shreveport, attorneys for defendant and plaintiff in re-convention.
   REYNOLDS, J.

In this cause, plaintiff sues for $795.06. Defendant, plaintiff in reconvention, Benoit Construction Company, claims judgment in reconvention for $1,700.-36 for breach of contract on the part of plaintiff.

The real question in dispute is the re-conventional demand.

Defendant, plaintiff in reconvention, claims that the plaintiff, Builders Supply Company, contracted to furnish to the defendant, plaintiff in reconvention, 750 cubic yards of clean crushed stone for use in building the Independent Ice & Cold Storage plant, or a sufficient quantity of such stone to complete the building of the Independent Ice & Cold Storage Company that was being built by the defendant, the Benoit Construction Company.

Defendant, plaintiff in reconvention, claims that plaintiff breached its contract and that defendant; plaintiff in reconvention, was forced to buy other material in the open market to complete its contract with the Independent Ice & Cold Storage Company at a loss of $1,700.36.

Plaintiff alleges that it furnished a portion of the crushed stone contracted for by the defendant, plaintiff in reconventioh, Benoit Construction Company, and tendered several additional cars of the Winnfield crushed stone at the point of delivery and that the same were rejected. Plaintiff also claims that it stood ready at all times, to comply with its contract.

In passing upon the differences between the plaintiff and defendant, the first thing to be considered is the real contract between plaintiff and defendant. This contract consists of a letter or confirmation which reads as follows:

“Shreveport, La., October 28, 1919.
Benoit Const. Co.
City.
Gentlemen:
We are pleased to confirm sale to you of 1400 barrels of cement at $3.30 per barrel including sacks that may be returned in good condition for credit to point of shipment at 15c each. 750 cu. yds. of 2400 lbs. of crushed "stone at $3.15 per cu. yd. 250 barrels of bulk lime at $1.80 per barrel.
These prices are f. o. b. cars Independent Ice Co. plant. Also 1,000 cu. yds. river sand at $1.75 per cu. yd. delivered’ by teams and truck to job. We have placed your order for cement, rock and lime and are advising them that you will be ready within two weeks. Kindly give us shiping instructions as far in advance of your needs as possible so as to avoid the delay.
The above quotations are based on freight rates in effect at this time ahd these prices would be changed if the rate would be lowered or raised.
We certainly appreciate your placing your order with us and will do our best to render good service.
Very truly yours,
Builders Supply Co. Inc.
J. J. Hamiter.”
JJH/HH

It will be seen from the above letter that the real contract was to furnish crushed stone. But Mr. J. J. Hamiter of the Builders Supply Company and Mr. A. Benoit of the Benoit Construction Company both testify that the stone referred to in the above contract was to be Winnfield crushed signer

J. J. Hamiter, page 33:

“Q.. What did you sell on that occasion, Mr. Hamiter?
“A. Winnfield rock.
“Q. Did you know anything about the terms of his contract?
“A. No, sir.
“Q. Did he know he was contracting for the purchase of Winnfield stone?
“A. Yes, sir, he understood it, I am sure, that it was Winnfield rock.”

Mr. A. Benoit, page 19:

“Q. How long have you been dealing with Winnfield stone?
“A. About ten years.
“Q. You have dealt with it and know Winnfield stone for that length of time?
“A. Yes, sir, I think I used it in 1912, I think nine years it is, nine years.
“Q. When you bought this stone from the Builders Supply Company through Mr. Hamiter you knew you were getting Winnfield stone? did you not?
“A. Yes, sir, I understood that. That is the only quarry in this neighborhood, in this section of the country.
“Q. You contracted for Winnfield stone?
“A. Yes, sir, I understood it was. Of course, I don’t know but what he might have found a new quarry but there is no doubt but what we knew it was coming from there, that is the only quarry in this section of the country to get from.”

Page 19:

“Q. As a matter of fact Mr. Hamiter juát contracted to sell you so much of a certain size Winnfield stone of an amount sufficient to go into that building out there?
“A. He did.
“Q. Prom this evidence and the letter from the Builders Supply Company to Benoit Construction Company the conclusion is irresistible that the stone contracted to be furnished was to be Winnfield crushed stone.
“ ‘Did ye never read in the scriptures.
The stone which the builders rejected.
The same was made the head of the corner?’ ”

Let us, then, inquire as to the stone tendered by the plaintiff, Builders Supply Company, and rejected by defendant, plaintiff in reconvention, Benoit f Construction Company.

As to the quality of this stone, it is to be remembered that is was sold to Benoit Construction Company by the Builders Supply Company at $3.15 per cubic yard f. o. b. Shreveport, and sold in the . open market at $4.60 per cubic yard for account of the Benoit Construction Company.

As to the fitness of this stone, it is testified by Mr. Rube McKellar, page 27.

“Q. Did you purchase some Winnfield stone that had been delivered at the Independent Ice & Cold Storage plant for the Benoit Construction Company during 1919, the latter part of 1919?
“A. Yes, sir.
“Q. That was the stone that had been rejected there by the engineer in charge of that work?
“A.' I think so, yes, sir, said it had been rejected.
“Q. Was that stone in good condition?
“A. If it was not I would not have used it, I thought it was.
“Q. Was it as good as the ordinary run of that Winnfield stone?
“A. Yes, sir, except a little colored.
“Q. What do you think that color was caused by?
“A. Well, they took it off the cars — taking it off the cars, cars were very scarce and I suppose the Winnfield people were scarce of cars and threw the stuff on the ground and it got stained, it was colored that way.
“Q. Was there any appreciable amount of clay or dirt in that rock?
“A. Not that I noticed, and I have used a good deal of Winnfield rock and other kind too.”

Page 28.

“Q. Was it as good as the ordinary run of that rock?
“A. I used it for the same purpose and was glad to get it.
“Q. When you went to get that rock did Mr. Benoit want to use some of it on some other job?
“A. I hauled the rock away and Mr. Benoit sent down to get it and he said he wanted some rock himself and I told him I had bought this rock myself.
“Q. Mr. Morris was Mr. Benoit’s foreman?
“A. Morris was there and I told him I wanted all of it myself, that I needed it, he sent Mr. Deas there and I sént him away.”

Mr. R. O.‘Marks, contractor, page 30:

“Q. Did you see the stone down there?
“A. Yes, sir.
“Q. What was the condition of the stone? Mr. Marks?
“A. It was in good condition to use, we use the same stone right here in town.
“Q. Just like other Winnfield stone?
“A. Just like other stone we would get in, Yes, sir, just about the same.”

Mr. Joe McGurk, page 32:

“Q. I believe you hauled that stone for Mr. McKellar?
“A. I hauled it for Mr. McKellar, part of it.
“Q. In what condition was that stone in, Mr. McGurk?
“A. About like all other Winnfield rock that I have been hauling for the last eleven years, there is a kind of’ dust in this Winnfield rock and when it is real dry weather it is awful white, but in wet weather it stains the rock and looks muddy. In dry weather if you get a car in that has not been rained on it is just as white, but as soon as it rains on it, it gets stained, I think it is caused by crushing it, bound to be some there.
“Q. This rock was in as good condition as any rock you hauled?
“A. Yes, sir, like all other rock.
‘‘Q. You think the appearance of it was caused by stain?
“A. Yes, sir.
“Q. Would that affect the rock any?
“A. Never heard any complaint from any other contractors about it.
“Q. It did not affect the rock?
“A. No, sir, I shouldn’t think it would.”

John Morris, page 10:

“Q. Were you employed by the Benoit Construction Company in 1919 and 1920?
“A. Yes, sir.
“Q. Were you employed down there on the Independent Ice & Cold Storage Company job?
“A. Yes, sir. .
“Q. Well, do ■ you know whether or not some of the rock was rejected?
“A. Yes, sir.
“Q. What was the condition of the rock at that time?
“A. There was quite a little clay in it, the rock was a little dirty. When it .was lying on top of the car, it was raining a good deal at that time, and that that was on top of the car had the appearance of being dirty and clear as you ever saw and after it was unloaded and rained on it again it would have the same appearance again.”

Page 11:

“Q. In this particular lot that was rejected, was any of that used at all?
“A. No, sir, I don’t believe any of it was.
“Q. Had there been any of the Winnfield stone use prior to this shipment?
“A. Yes, sir.
“Q. Was that the same kind of stone, the same 'quality as this?
“A. All looks along the same line, very good average, possibly the last or rejected portion may have been a little worse than the other.”

Ed. Nield, architect, a Witness on behalf of defendant, testified, page 25:

“Q. If there is any appreciable amount of sand, clay or dirt in the aggregate does it make an objectionable concrete?
“A. Some amount — some amount is not objectionable hut a large amount is.”

Page 26:

“Q. Are you familiar with Winnfield stone?
“A. Yes, sir
“Q. Are .you familiar with the average run of that stone as used in Shreveport?
“A. I think so.
“Q. Would you say that ordinarily it didn’t have any foreign substance in it?
“A. That that I have used has not been objectionable.”

J. J. Hamiter, page 33.

“Q. Did you know anything about the terms of his contract?
“A. No, sir.”

Page 34:

“Q. Did you agree to furnish him rock that would be satisfactory to the architect in charge out there?
“A. I did not.
“Q. Would you nave done such a thing?
“A. No, sir.”

Upon this evidence we conclude that the stohe rejected by the defendant, Benoit Construction Company, was just such stone as the plaintiff was authorized to deliver under its contract.

The only other question remaining is, did the plaintiff discharge its obligation under the contract? Was the plaintiff in position and willing to furnish' stone in accordance with his agreement?

As to this, we quote the evidence of Mr. A. Benoit, page 12:

“Q. Did the Builders Supply Company furnish you rock under that agreement?
“A. They furnished me four or five cars of mighty nice rock, I recall that we put in footings with the first rock supplied which was real nice clean rock, such as we had been accustomed to getting from that source and then all at once it seemed they struck a new vein in the quarry there of an entirely different color to that which we had been accustomed to receive from Winnfied.”

Page 14:

“Did you instruct the Builders Supply Company as to what disposition, if any, to make of the rock that was rejected?
“A. My recollection is that the rock ■ had been rejected, and I wanted him to take it' away from" there and he interested himself in the matter, perhaps to help me, and got Mr. Rube McKellar and told me he sold it to Mr. McKellar and Mr. McKellar took it off and used it for sidewalks and curbs, at least he told me he-was going to use it for sidewalks and curbs, it was all hauled away from the building.”

J. J. Hamiter, page 34:

“Q. Mr. Hamiter, you were ready to continue to furnish Mr. Benoit with Winnfield rock?
“A. Yes, sir, he stopped it from the job.
“Q. Stopped you from furnishing that rock ?
“A. Yes,- sir.”

From this evidence it is clear that the plaintiff was ready and willing and in position to furnish the defendant, plaintiff in reconvention, all of the, stone he contracted to furnish from the Winnfield quarry and that the defendant was not in position to receive the same because the engineer or architect would not allow samé to be used.

As to the engineer, Mr. A. Benoit testified, page 21:

“Q. Was not this engineer on that job pretty finicky, was he not rather strict?
“A. You may call it what you please, I call it ignorance.”

Page 22:

“Q. As a mater of fact, was not your entire damage because of the action of the engineer in turning down this rock?
“A. Well, sir, the engineer was an onery cuss on general principles.”

From all this testimony we conclude that the plaintiff at all times stood ready to comply with its contract and to furnish the full quantity of Winnfield stone called for in the contract between the plaintiff and the defendant the Benoit Construction Company.

For these reasons the reconventional demand of the defendant must be rejected.

It is ordered, adjudged and decreed that the judgment appealed from be reversed, and it is now ordered, adjudged and decreed that the plaintiff, Builders Supply Company, do have and recover judgment against defendant, Benoit Construction Company, for the full sum of $795.06 with interest thereon at the rate of five per cent per annum from judicial demand until paid.

It is further ordered, adjudged and decreed that the demand of the defendant in reconvention be rejected at .its cost.

Plaintiff sued for judgment against 'the bondsmen of the defendant and against the Independent Ice & Cold Storage Company and introduced evidence entitling it to such judgment, but we fail to find in the transcript any answer on the part of either of these defendants or any minutes of the District Court showing that default had been entered against them. We are not therefore, at this time in position to render judgment against these two defendants. Plaintiff’s rights, whatever they may be, as to these two defendants, are fully reserved.

It is further ordered, adjudged and decreed that defendant pay all costs of both courts.


author: ELLIOTT, J.

text:
    No. 3306.
    First Circuit Appeal.
    NEMOURS COUSIN AND LEON J. COUSIN v. MRS. FRANCIS H. KENNER
    (Jan. 21, 1925, Opinion and Decree.)
    (Feb. 18, 1925, Rehearing Refused.)

      (Syllabus by the Editor.)

    1. Louisiana Digest — Appeal—Par. 370.
    The record shows a petition and order granting Mrs. Kenner an appeal, the order bears date August 10, 1923, and shows service ' on Leon J. Cousin through Lewis L. Morgan attorney' on August 30, 1923, which is sufficient service and citation to answer the appeal.
    2. Louisiana Digest' — Prescription — Par. 107.
    A plea of prescription of three years under Article 3538 of the Civil Code filed by defendant claiming bill for costs in a suit is prescribed, will not be maintained-’where the record shows the judgment was signed May 16, 1921, and was affirmed by the Court of Appeal, February 7, 1922, and rehearing refused March 6, 1922. Furthermore rules to tax costs was served on the defendant October 6, 1922, and on February 2, 1923. The judgment is good for ten years.
    3. Louisiana Digest — Estoppel—Par. 42; Pleading — Par. 125.
    Where the defendant contested the question of cost with the plaintiff represented by his attorney without objecting to the status of the plaintiff or attorney he thereby acquiesced to the capacity of the parties plaintiff in the motion.
    4. Louisiana Digest — Costs and Fees— Par. 6.
    Where one of two plaintiffs after judgment, but before the costs have been paid the surviving plaintiff is liable for all the costs of court under the law and therefore, he has the right to collect it all from the defendant when the defendant has been ordered to pay the costs.
    5. Louisiana Digest — Costs and Fees— Par. 42.
    In allowing costs of court only those items are allowed which have been proven. Therefore an itemized bill of costs filed by the sheriff but not sworn to, will be non-suited by the Court of Appeal.
    Appeal from the Twenty-sixth Judicial District, Parish of St. Tammany, Hon. Prentiss B. Carter, Judge.
    This appeal was taken by the defendant from a rule to fix and tax,the costs filed by the plaintiff in the lower court.
    There was judgment for plaintiff as prayed for, and defendant' appealed.
    The judgment of the lower court was affirmed as to the. costs proven but non-suited as to costs not proven.
    Morgan and Fredericks, of Covington, attorneys for plaintiff, appellee.
    H. Kenner, of New Orleans, attorney for defendant, appellant.
   ELLIOTT, J.

Mrs. Francis H. Kenner, defendant and appellant 'Was condemned to pay the cost in the above numbered and entitled cause in which Nemours Cousin and Leon J. Cousin were the plaintiffs and appellees.

After the judgment became final and was returned to the lower court for execution; the lower court on motion of Lewis L. Morgan attorney for plaintiffs granted an order against Mrs. Kenner, defendant, hearing date October 5, 1922, requiring her to show cause why the cost should not be fixed and taxed against her; which was served on October 6, 1922, but for some reason not explained by the record, hut probably because Nemours Cousin departed this life before the rule was tried; nothing was done under it that we can see.

On January 29, 1923, the lower court on motion of Lewis L. Morgan, attorney for Leon J. Cousin, one of the plaintiffs in the above suit granted another order against her for the same purpose as before; which was served on February 2, 1923, and to which she responded on June 13, 1923, alleging that' Nemours Cousin had departed this life on October 27, 1922, that he was one of the plaintiffs in the case in which she had been condemned to pay the cost, that his legal representatives were necessary parties to the rule- and were not parties and prayed that proceedings be stayed until they were made parties.

The minutes of the proceedings in the lower court shows that this exception was overruled as soon as filed and that Mrs. Kenner then immediately further excepted, urging that the rule disclosed no cause or right of action against her. The minutes show that this exception was also immediately overruled and that the trial of the rule to fix and tax the cost proceeded forthwith. The record does not contain any answer to the rule; but the minutes state that the rule to fix cost heretofore filed came on to he heard and that the evidence was heard and the matter submitted to the court. The note of evidence taken in the matter shows that both- parties Leon J. Cousin and Mrs. Kenner were represented by counsel in the taking of the evidence and that the question of cost under the rule was tried r.contradictorily and submitted to the court on June 13, 1923.

The lower court rendered judgment July 31, 1923, fixing the cost at $101.35 and taxed same against Mrs. Kenner as prayed for.

On August 10, 1923, Mrs. Kenner obtained from the Clerk of Court, the judge being absent, an order for an appeal from the judgment and on the same day gave bond with Hiddleston Kenner as surety. The appeal was filed in this court on April 11, 1923.

- On October 8, 1923, Leon J. Cousin, appellee moved the lower court to decree that the surety on the bond was insufficient and invalid on the ground that the surety did not possess the property qualifications required by law, etc. We find no answer to the motion to set the bond aside; and the record contains no evidence on the subject; but the court rendered judgment holding that the surety did not possess property sufficient for the requirements of the law and set the bond aside; upon which. Mrs. Kenner, evidently acting under the provisions of Act 112 of 1916, filed a new appeal bond with Mrs. W. O. Humphrey as surety on October 27, 1923.

We find in the record a motion by Leon J. Cousin,, addressed to this court moving the dismissal of the appeal taken as above stated, the motion states that there is no petition, order or citation of appeal. The motion hears no date; nor filing mark and according to the minutes of this court, there is no authority on the part of this court for its presence in the record; we therefore disregard the motion hut even if it had been filed with the leave of this court, the result would he the same. The record shows a petition and order granting Mrs. Kenner an appeal, the order bears date August 10, 1923, and shows service on Leon J. Cousin through Lewis L. Morgan, attorney, on August 30, 1923, and which is sufficient service and citation to answer the appeal.

The appeal bond of October 27, 1923, is not attacked and under the broad provisions of Act 112 of 1916; it serves for the order granted by the Clerk of Court on August 10, 1923, and saves the appeal. It was sufficient to file it in the record and no authorization of the court was necessary on that account.

Mrs. Kenner has filed in this court a plea of prescription in which she urges that the cost claimed against her is prescribed and barred by the prescription of three years under the law C. C. Art. 3538.

The judgment in the possessory action in which Mrs. Kenner was condemned to pay the cost now claimed against her was' signed by the district judge on May 16, 1921; the judgment was appealed to and affirmed by this court on February 7, 1922, and a rehearing refused March 6, 1922.

This judgment is good for ten years. Then again the rule to fix and tax cost was served on Mrs. Kenner, October 6, 1922, the next one on February 2, 1923. It is therefore apparent that the plea of prescription is untenable. Defendant and appellant contends in her brief that the rule sets forth no cause or right of action on the ground that it was granted to Lewis L. Morgan personally. The order is entitled “Nemours Cousin and Leon J. Cousin” vs. Mrs. Francis H. Kenner, numbered 3306 and says “on motion of Lewis L. Morgan attorney for Leon J. Cousin, on the plaintiffs in the above entitled and numbered cause and on showing to the court .that he has paid, etc.” We are urged to notice the language “he has paid, etc.”

The language refers to payments made by León J. Cousin and not by Lewis L. Morgan personally. In 'defendant’s exception thereto filed June 13, 1923, she speaks of Nemours Cousin as being on© of the plaintiffs claiming cost and of the “surviving joint plaintiff”; which can be none other than Leon J. Cousin; the plaintiff before the court. The minutes of the trial and the note of evidence shows that the question of cost was contested with Leon J. Cousin represented by Lewis L. Morgan, without objection on the subject of status. Defendant thereby acquiesced in the sufficiency of the motion. The authority cited by defendant as sustaining her position in regard to the above matter does not in our opinion make it necessary to reject plaintiffs’ demand because of the form of the proceedure.

Defendant further contends in her brief that Leon J. Cousin can not proceed against her, unless joined by the legal representatives of Nemours Cousin, etc., citing Alling vs. Woodruff, 16 La. Ann. 6.

The case cited does not govern the present situation which is not like that in the case cited.

Leon J. Cousin is primarily liable, in solido, for all the cost under the law; therefore, he has a right to collect it all from the defendant. C. C. Art. 2087; Dunbar vs. Murphy, 11 La. Ann. 713 C. P. Arts. 157, 551; Crespo vs. Viola, 152 La. 1088, 95 South, 256.

On the merits of the case the evidence shows that the amount allowed by the lower court under the item “Pees of Clerk of Court” covers and includes clerk’s costs, stenographer’s bill and fees of witnesses, all amounting to $74.65. The deputy clerk testifies that the amount is correct and there is nothing to the contrary. The item was therefore properly allowed. As for the sheriff’s cost claimed to be $26.70 we - are almost disposed to hold that this item is acquiesced in and consented to by the defendant as we do not find it contested in her brief.

However, all that the note of evidence shows on the subject is the following statement at the close of the trial.

“Counsel for plaintiff in' rule offers and files in evidence in the case an itemized statement showing the sheriff’s cost in the suit.”

The minutes showing the close of the trial contains the following:

“The rule to fix cost heretofore filed in this case came on to be heard, the evidence was heard and the matter submitted to the court and taken under advisement; itemized dill of cost to be filed dy the shervff."

The transcript contains an unsworn bill of sheriff’s cost for $28.70 filed June 13, 1923; but there is no other evidence in support of the sheriff’s cost. We are therefore constrained to hold that the sheriff’s cost is not sufficiently proved. '

It is therefore ordered, adjudged and decreed that the judgment appealed from, is correct to the extent of $74.65 allowed as above stated; .but it is ordered that the item $26.70 claimed as sheriff’s cost be and the same is hereby disallowed as in case of non-suit.

As thus amended the judgment appealed from is affirmed, the appellee to pay the cost of this appeal.


text:
    No. 14,957
    First Circuit Appeal.
    BENJAMIN STANSBURY v. THE TEXAS COMPANY AND UNITED STATES FIDELITY & GUARANTY COMPANY
    (Jan. 21, 1925, Opinion and Decree.)
    (March 3, 1925, Rehearing Refused.)

      (Syllabus by the Editor.)

    1. Louisiana Digest — Master and Servant— Par. 169, 159(a).
    An injured employee - suing under Section 8 Sub-section 1 (e) of the Employers’ Liability Act No. 20 of 1914 amended by Act 38, 1918, where the usefulness of a member or physical function has been seriously permanently impaired can recover regardless of whether the injured employee can resume work of a reasonable character or not;
    2. Louisiana Digest — Master and Servant— Par 159, 159(a).
    An injured employee suing under Section 8 Sub-Section 1 (e) of the Employers’ Liability Act No. 20 of 1914 amended by Act 38 of 1918, where the usefulness of a member or physical function has been seriously permanently impaired can recover even though the injured employee may be earning a larger wage at the time of the trial than he did at the time of the accident.
    3. Louisiana Digest — Master and Servant— Par. 154, 159 (a).
    Section 8 Sub-section 1 (e) of Act No. 20 of 1914 applies where the usefulness of any member or any physical function has been seriously permanently impaired, and consequently Section 8 Sub-section 1 (a) of the Employers’ Liability Act No. 20 of 1914 as amended by Act 38 of 1918 has no application to such a case.
    (The present amendment of Section 8 of Act 20 of 1914 is Act 216 of 1924.)
    Appeal from the Twenty-third Judicial District Court, Parish of St. Mary, Hon. James Simon, Judge.
    This is a suit under the Employers’ Liability Act No. 20 of 1914 brought by an injured employee to recover compensation. There was judgment for defendant and plaintiff appealed.
    Judgment reversed.
    C. J. Boatner, of Franklin, attorney for plaintiff, appellant.
    Paul Krainer, of Franklin, attorney for defendant, appellee.
   ELLIOTT, J.

Plaintiff, Benjamin Stanshury in the employ of The Texas Company on August 16, 1919, fell from a line shaft and suffered serious injury to his right leg. He received compensation for 20 weeks amounting to $180.00 on account of his temporary total disability as provided by the law, paragraph (a) Sec. 8 Act 20 of 1914 (Amd. Act 38 of 1918) in force at the time. He claims in this suit that the usefulness of his leg is seriously permanently impaired and that he is therefore entitled under the law, paragraph (e) of said Section 8, additional compensation for 80 weeks at $9.90 per week amounting in the aggregate to $792.00.

The defendants, The Texas Company and United States Fidelity & Guaranty Co., in their answer deny that plaintiff is entitled to the additional compensation claimed. The district judge after trial rendered judgment in favor of the defendants rejecting plaintiff’s demand.

Plaintiff has appealed. The district judge did not state his reasons for the judgment rendered, hut we conclude from the note of testimony that he did so for the reason, the plaintiff after being injured, returned to work and is able to walk about and earn as much as he did before he was injured, in fact more, because the evidence shows that he was receiving at the time of the trial larger wages than he had received previous thereto, but not in the same kind of work.

The plaintiff contends that his demand was refused because he had resumed work and was receiving wages as above stated. The defendants contend that the usefulness of plaintiff’s leg has not been seriously permanently impaired, that plaintiff has resumed work and has earned wages as above stated that the judgment appealed from is therefore correct, etc.

The paragraph (e) provides: “In cases not falling within any of the provisions-already made, where the employee is seriously permanently disfigured about- the face or head or where the usefulness of a member or any physical function is seriously permanently impaired, the court may allow such compensation as is reasonably in proportion to the compensation hereinabove specifically provided in the cases of specific disabilities above named, not to exceed 55% of wages during 100 weeks, etc.”

Defendants contend that plaintiff’s injury comes within the provisions of paragraph (a) of the Section 8 which provides, “for injury producing temporary total disability to do work of any reasonable character 55% of wages during the period of disability not however beyond 300 weeks, etc.” And that plaintiff having received his compensation recovered ability to do and resumed work of reasonable character; that they are therefore discharged from further liability, etc.

The facts of the case are not disputed as to material points. The bones of plaintiff’s leg have not and never will knit, but overlap on 2 sides with the result that his injured leg is from 1% to 2 inches shorter than the other and will always remain the same. The physicians speak of his injury as, “both lateral and antero-posterior displacement”. One of them, Dr. Crawford, says that the usefulness of plaintiff’s leg has been seriously permanently impaired. Plaintiff, corroborated by Dr. Crawford, says that certain kinds of work that he formerly could do, now tires him and if continued, hurts him to the extent that after short periods of work he is compelled to resume a sitting posture. There can be no doubt about it. It is evident from the testimony that while plaintiff can do work of a certain kind as well as he ever could, he can not perform the service for the same length of time, without resting his injured leg and will always be incapacitated to a certain extent and some things that he formerly did, he can not safely do any more.

The paragraph (a) depended on by defendant applies to temporary total disabilities. The paragraph (e) applies “where the usefulness of a member, or any physical function is seriously permanently impaired, etc.”

The evidence shows that this plaintiff was temporarily totally disabled and that same has been followed by a serious permanent impairment of the usefulness of his right leg. The law paragraph (e) for applicability, does not depend on earning capacity but the question is whether ‘‘the usefulness of any member or any physical function has been seriously permanently impaired, etc.” Consequently the fact that plaintiff is able to resume work of reasonable charaeter and is earning wages as large as he earned previous to his injury; in fact at the time of the trial was earning larger wages, does not take away his right to recover the compensation claimed. The case Quave vs. Batson-Lott Lumber Co., 151 La. 1052, 92 South. 678, appears to be applicable in- principle. In that case the injured party lost a finger bone and another one was permanently stiffened. See also Mack vs. Legeai, 144 La. 1017, 81 South. 694. Under the law and the evidence plaintiff, is entitled to recover the additional compensation claimed. The judgment appealed is therefore erroneous.

It is therefore ordered, adjudged and decreed that the judgment appealed from be annulled, avoided and set aside and it is now ordered, adjudged and decreed that plaintiff, Benjamin Stansbury, have and recover judgment against the defendants The Texas Company and United States Fidelity & Guaranty Co., in solido, the sum of seven hundred and ninety-two dollars payable weekly, the weekly payments to be computed from the week ending Jánuary 8, 1920, and to continue from thence for a period of 80 weeks; each weekly payment to draw legal interest from the time it was due until paid; that the' defendants and appellees pay the cost in both courts.


author: MOUTON, J.

text:
    No. -.
    First Circuit Appeal.
    R. R. RICHARDSON, JR. v. NATIONAL CASUALTY OF DETROIT, MICH.
    (Feb. 18, 1925. Opinion and Decree.)
    (May 5, 1925. Rehearing Refused.)

      (Syllabus by the Editor.)

    1. Louisiana Digest — Pleading—Par. 62.
    An exception no cause of action is properly sustained in a suit for insurance against a petition alleging an insurance policy covering bodily injuries resulting from external, violent and accidental event while the insured is operating an automobile, etc., but which further states that the accident for which plaintiff is suing happened in stepping out of an automobile which he was driving but had stopped when the accident occurred.
    Appeal from the Parish of Tangipahoa, Hon. Columbus Reid, Judge.
    This is a suit brought for the; recovery of insurance under an insurance policy.
    There was judgment for defendant maintaining an exception no cause of action. The suit was dismissed. Plaintiff appealed.
    Judgment affirmed.
    J. H. Inman, of Ponchatoula, attorney for plaintiff, appellant.
    Chas. Elliott, of Amite, attorney for defendant, appellee.
   MOUTON, J.

This suit is brought under an automobile accident insurance policy.

The action is grounded on the following allegations:

“That on or about the 7th day of March, 1924, petitioner in the usual course of business and in the usual and customary manner of operating an automobile, wholly through accident, viz: in stepping out of an automobile which he was driving and had stopped, petitioner painfully sprained his right knee.”

The demand, which is based on this alleged accident, is for nine days at the rate of $25.00 per week, for $25.00 per week penalty for non-payment by defendant company, and for $100.00 attorney’s fees. An exception of no cause of action filed by defendant was maintained, and the suit was dismissed.

Plaintiff appeals.

The policy which is annexed to the petition provides for indemnity for loss of time as follows: “Resulting solely from bodily injuries effected directly and independently of all other causes, by the happening of an external, violent and accidental event, while the insured is operating, driving, riding in, demonstrating, adjusting or cranking an automobile, or in consequence of being struck by, run down or run over' by an automobile, or caused by the burning or explosion of an automobile, etc.” It is obvious that plaintiff, according to the allegations of his petition above quoted, was not driving, riding in, demonstrating, adjusting or cranking his automobile, or was struck or run over by an auto or was burned by an explosion, When he sprained his knee as he stepped out of the automobile. He endeavors to show that the accident so described by him is covered by the word “operating” used in the accident policy. Plaintiff, it will be noted, avers that the automobile he was driving had stopped, and that in stepping out he sprained his knee. Evidently, if the automobile had stopped, which must be taken as true under the exception, plaintiff was certainly not “operating” the auto when he injured his knee which occurred after the auto had stopped and as he was stepping out of it. It must also be observed under the terms of the policy heretofore reproduced, that the bodily injury for which indemnity is provided, must, to entitle the policy-holder to recover, be the result of an “external, violent and accidental event while the insured is operating, etc.”

Clearly, plaintiff was not operating the auto when he sprained his knee and it is equally evident that this spraining though accidental was not caused by an external event. We therefore hold that no cause of action was alleged by plaintiff, and that his suit was properly dismissed.