text:
    No. 11,898
    Orleans
    INGRAM v. CANAL BANK & TRUST CO. ET AL.
    (April 7, 1930. Opinion and Decree.)
    (May 5, 1930. Rehearing Refused.)'
    (July 2, 1930. Writ of Certiorari and Review Refused -by Supreme Court.)

      Harold A. Moise, of New Orleans, attorney for William Perry Brown, plaintiff, appellee.
    Hopkins & Talbot, of New Orleans, attorneys for Mrs. Sallie Ingram, wife of Zeb Carter, plaintiff, appellee.
    Manning W. Heard and William W. Ogden, of New Orleans, attorneys for Union Indemnity Company, defendants, appellants.
   WESTERFIELD, J.

This is an action ex delicto based upon damages sustained by plaintiff alleged to be due to false and fraudulent representations made by Harry W. Fitzpatrick and William Perry Brown in connection with the purchase by plaintiff of certain lots in the state of Florida at an auction sale conducted by Fitzpatrick & Co. in the city of New Orleans on March 27, 1926. The Canal Bank and Trust Company and the Whitney-Central Trust and Savings Bank are made parties defendant in their capacity as judicial liquidator of the Fitzpatrick firm and as administrator of the succession of Harry W. Fitzpatrick, who died shortly after the transaction complained of. The Union Indemnity Company is made party defendant as surety on the auctioneer’s bond of Harry Fitzpatrick and as surety on the real estate broker’s bond of the Fitzpatrick Company. Mrs. Fitzpatrick, the mother of the defendant Harry Fitzpatrick is also joined as defendant, as a partner in the Fitzpatrick firm. Exceptions of no cause or right of action, misjoinder and nonjoinder of parties defendant were overruled. Answers were filed in behalf of the several defendants, in which the defense is made that Harry W. Fitzpatrick individually and Harry Fitzpatrick & Co., were acting as agents for a disclosed principal, and were therefore not liable personally to third persons. There was judgment below in favor of plaintiff against each of the defendants, as prayed for, with the exception of William Perry Brown, and as to Brown plaintiff’s suit was dismissed. Of the defendants the Union Indemnity Company alone appealed. Plaintiff appealed from the judgment in favor of William Perry Brown.

This case is an unpleasant consequence of the recent extraordinary real estate boom in Florida. The record shows that one of the large operators in Florida real estate, a firm by the name of Whidden Realty Company, in some manner induced Harry W. Fitzpatrick, of the firm of Harry W. Fitzpatrick & Co. of New Orleans, to conduct an auction sale of a number of small lots of land situated on the East Coast of Florida near a town called Arcadia. A written contract was entered into between the Whidden firm and the Fitzpatrick firm whereby the Fitzpatrick firm was appointed exclusive agent for the sale of the property mentioned on a basis of 8 per cent upon the first $100,000 realized and 33j/j per cent on the excess, the Whidden Realty Company agreeing to pay $15,000 for advertising expenses. This contract was negotiated by the manager of the Fitzpatrick Company, Mr. William Perry Brown, who had been sent to Florida for the purpose of investigating the property and making inquiry as to the responsibility of the Whidden firm. Immediately following the confection of this agreement a campaign of advertising was begun in the city of New Orleans of the most unusual and seductive character. We select the following example, which appeared in large letters and covered the space of two pages in a daily newspaper:

“MR AND MRS AVERAGE CITIZEN:
“Meet us at the ANTHENAEUM Friday , — 2 p. m. — 7:30 p. m.
“We have Arranged for Your Entertainment a Spectacle Unique and Unrivaled in the Annals of Our City — A Veritable Fairyland of Tropical Flowers and Fruits from Florida Where Sunshine Reigns Always— Where Play is Monarch and Profit Is Handmaiden. You will Participate in the Free Distribution of All Prizes. Everybody Present Will Have a Chance.
“FREE $500.00 IN GOLD — FLORIDA FRUITS — BAND CONCERT — FOUR BEAUTIFUL LOTS FREE
“Somebody’s sure to Gain! Why not You? At Any Rate You Will Receive Your Share of the Generous Supply of Presents.
“ESPERANZA HEIGHTS, ARCADIA, FLA. “ON THE ‘EAST TO WEST COAST BOULEVARD’
“To Be Sold In Your Presence — One Lot or More as Desired, Friday, March 26th. At AUCTION Friday, March 26th.
“MARK WELL! These lots Are Not High-Priced, Plutocratic, Out of Reach Properties. On the Contrary — They are just the Kind of Investment Lucky Poor People Have Been Buying for a Song, and Selling for a King’s Ransom.
“YOU ALT, KNOW THE STORY.
“How Thousands of Investors of Moderate Means Took a Chance Yesterday on Cheap Sites in Many Different Parts of Florida and Today are Independent and Free from Care. What Happened Yesterday Will Take Place Tomorrow.
“COME! BE OUR GUESTS!
“Enjoy Yourselves — Win Some Free Prizes and See Sights You Cannot Buy at the Picture Show or Newsstand. Phone, Write or Wire for Pictorial and Descriptive Literature.
“HARRY W. FITZPATRICK & COMPANY ORGANIZATION
“Harry W. Fitzpatrick, Auctioneer; Wm. Perry Brown, Manager, Main 4328 & 5462; HOME OFFICE: 224 Royal St., NEW ORLEANS, La.; Branch Offices: Biloxi, Miss., Pascagoula, Miss. Mobile, Ala.”

Booklets were distributed to the number of five thousand, containing maps and pictures, interspersed with reading, matter calculated to attract purchasers. The name “Esperanza Heights,” which was given to the property, was featured in all advertising. The front page of the booklet referred to, which was illustrated with palm trees and houses with colored tile roofs midst foliage of tropical luxuriance, bore the poetical lure:

“ESPERANZA HEIGHTS
“On the ‘East to West Coast Boulevard’ “ARCADIA — FLORIDA
“Here Reality Confounds Fiction — Longfellow tell that in days gonebye Evangeline’s people found peace in the Arcadia of old. The past prophesies for the future that plenty will join peace in waiting on the footsteps of all who buy this modern Arcadia.”

On a flyleaf of this booklet, under the caption “Foreword,” the following appears:

“TRADITION tells that treasure is found at the foot of every rainbow. The history of the last two years shows that the real gold pots are concealed in every bit of Southern road and water frontage. We dare you to lose money on what you buy from us! You couldn’t if you tried!
“At our last sale in Biloxi we challenged any buyer who had failed to make profit following ‘The Fitzpatrick Way’ on the Gulf Coast for twelve months to stand up and claim five hundred dollars reward. Nobody responded.
“Now, after investigating Florida thoroughly and conscientiously, we say to you, our clientele, that we are not risking our perfect-plus record of profit-producing sales to all our buyers when we conduct this auction. We cannot transport all our New Orleans customers to Arcadia so we have ‘brought the mountain to Mahomet’ and thus Florida comes' to you.
“(Signed) Harry W. Fitzpatrick.”

In the issue of March 14, 1926, of the Item-Tribune, a daily newspaper published in the city of New Orleans, there appeared a large advertisement under the caption “Read What Harry W. Fitzpatrick Says About Florida Real Estate.” This advertisement begins as follows:

“As Harry Fitzpatrick, prominent auctioneer of New Orleans and one of the pillars of development in our country, besides being heavily interested in Florida, and therefore capable of viewing the subject in its largest aspects, says.”

Then follows a two-column quotation from which we extract the following:

"My organization is preaching invest on the Gulf Coast for safe and sure enhancement, and speculate a little, if you can spare the change, around Arcadia, Florida. We will stage a spectacular sale of land in this vicinity at the Athenaeum on March 26th, in the same spirit in which we would invite a party to accompany us to the races, or get up a pool to play the stock market. We say to our friends, ‘buy a few lots at a price that you know to be safe, and for an amount that you will never miss, in the hope, strongly backed by unusual prospects and coming development, that the few dimes you spend today will grow into many dollars on the morrow.’ ”

In the booklet also appears:

“TITLE GUARANTEED
“By a warranty deed from the Whidden Realty Company, a corporation of Florida, A Guaranteed Title Insurance Policy issued by the Florida Trust and Banking Company which guarantees the purchaser that the title to the property is clear and free of all encumbrances and the Insurance Company agrees that should the title ever be proved not good that they will be responsible to the amount of the policy. The title and abstract has been approved and passed upon by Treadwell and Treadwell, attorneys of Arcadia, Fla., and also approved by Harold Moise, attorney, Whitney Bank Building, and Sol Weiss, attorney, Maison Blanche Building, New Orleans, La.”

The auction was conducted by Mr. Fitzpatrick, with the assistance of about thirty men, who were moving through the audience from time to time, answering questions of prospective purchasers and gathering in their checks covering the down pay-, ment upon lots which had been adjudicated to them. The purchasers were entertained with music and dancing and speeches, and, according to the testimony of one of the witnesses, a thorough-bred Indian, in paint and feathers, was presented to them —for what reason it does not appear. There were quite a number of lots sold at the auction, and a number of purchasers testified on the trial of this case. Practically all of them declared that they were influenced in buying the lots by their knowledge of the reputation of Mr. Fitzpatrick and his firm. As one witness puts it, “I trusted Mr. Fitzpatrick and listened to him”; another, “Mr. Fitzpatrick said it was such a fine proposition for the people of New Orleans and that he would not mislead his people”; another, “I was dealing with the Fitzpatrick office. I know nothing of the Whiddens,” and another that she had invested in the property because of the fact that she saw the reference to the two local attorneys, Messrs. Harold Moise and Sol Weiss, whose approval -of the title appeared in the advertisements. Among the purchasers at the auction was the plaintiff, wlio invested $735.15. She, as well as the other buyers at the auction, paid her money to Harry W. Fitzpatrick, and obtained a warranty deed signed by the Whidden Realty Company. When these deeds were presented at the proper office in De Soto county, where the land was located, for recordation, it was discovered that, far Erom the title being clear, the property was incumbered, the mortgage amounting to $187,-000. This mortgage has since been foreclosed, and the purchasers at the auction have received nothing whatever for their money.

Numerous charges of fraud and misrepresentation are made in plaintiff’s petition, and it is doubtful whether some of them have been established by the proof in the record. It is conceded, however, that there was misrepresentation by Fitzpatrick, the auctioneer, in at least two important particulars: First, the title to the lots were not free of incumbrances and the Florida Trust & Banking Company, which had been represented as being willing to guarantee the title to the lots to purchasers, declined to issue its guarantee; second, the title and abstract of the property had not been approved by Messrs. Harold Moise and Sol Weiss of the New Orleans bar. In reference to the first of these misrepresentations, it is argued on behalf of the Fitzpatrick Company that they had relied on assurances of the Florida bank, and had obtained a letter from them which they distributed to prospective purchasers. This letter contained an evasive and ambiguous statement to the effect that, if the title was good, it would be guaranteed. It was so palpably disingenuous that it should have deceived no one, least of all an experienced real estate dealer. As a matter of fact, the bank held the mortgage. As to the alleged approval of the local counsel, Messrs. Moise and Weiss, it is said that assurances with respect to this matter had also been obtained in this instance, from the Whidden Realty Company.

In regard to the pretended approval of the local counsel, Messrs. Moise and Weiss, the record shows that these gentlemen were the attorneys for Mr. Fitzpatrick and his firm, and, according to the testimony of the manager of the Fitzpatrick firm, Mr. Fitzpatrick himself was responsible for that statement appearing in the literature distributed at the sale and in the advertisements. We cannot understand why Mr. Fitzpatrick should not have verified this statement by simple inquiry of his own counsel in New Orleans, particularly since he was at pains to send his manager, Brown, to Florida, to make a first-hand investigation of other statements of the Whidden firm. Both statements were false and misleading, and responsibility therefor was assumed by Fitzpatrick & Company and Harry W. Fitzpatrick on his own account.

It is argued that neither Fitzpatrick nor his firm were guilty of any fraud, and that the misrepresentations of fact appearing in the advertising and repeated at the auction were due to the deception practiced by the Whidden Realty Company and the Florida bank, and that, since Fitzpatrick disclosed his principal, there could be no personal liability on the part of himself, and/or, his firm. In support óf this argument, the efforts which were made by Mr. Fitzpatrick, subsequent to the sale and after the discovery of the fact that the purchasers of the lots had been defrauded, to compel restitution by the Whidden Realty Company, of which there is ample evidence in the record, is pointed to as demonstrating his good faith. Moreover, he is shown to have been one of the leading auctioneers and real estate men in the city, and it is said that his reputation was such as to suggest the improbability of improper conduct. Unfortunately Mr. Fitzpatrick died before the trial of this case, and we are deprived of his version of the transaction, but in our opinion it is unnecessary to hold that he was a conscious participant in the fraud which occasioned plaintiff’s loss, and we, like the learned judge of the trial court, welcome the opportunity to express our belief in his innocence of intentional wrong.

The record, however, convinces us that the Fitzpatrick firm, of which Mr. Fitzpatrick was the active head, went far beyond what was required of it in execution of any duty it owed its principal in the sale of these lots. In fact, though the name of its principal occasionally appears in an inconspicuous place in the literature and advertising concerning the auction sale, the conclusion is irresistible that Fitzpatrick & Co. with child-like faith had adopted as its own all of the representations made by the none too scrupulous land boom promoter, its principal, and added the weight of its reputation and personal assurance, without which very meager results could have been expeetéd from the sale of Florida lots in Louisiana. The whole tenor of the advertisements, the statements of Mr. Fitzpatrick at the auction, the motives given for purchases made, indicate that it was a Fitzpatrick undertaking. The purchasers were told to purchase “in a Fitzpatrick way,” and the weakest of all human frailties appealed to by the glittering words of Mr. Harry W. Fitzpatrick to the effect that “The history of the last two years shows that the real gold pots are concealed in every bit of Southern road and water frontage. We dare you to lose money on what you buy from us! You couldn’t if you tried!” and, “We are not risking our perfect plus record of profit-producing sales to all our buyers when we conduct this auction.” Gold, with no risk, without the possibility of loss, was theirs if ony they would buy the lots. What an irresistible appeal to prospective purchasers of lots in this El Dorado.

Generally speaking, an auctioneer is not personally liable to third persons where his principal is disclosed, but he must keep within the limits of his agency. He, like any other agent, may make himself personally liable by expressly pledging his own responsibility. . Mechem on Agency (2d Ed.) volume 2, par. 2344.

In Story on Agency, Ninth Edition, secs. 269, 270, we read the following:

“ * * * A person contracting as agent will be personally liable, whether he is known to be an agent or not, in all cases where he makes a contract in his own name, or voluntarily incurs a personal responsibility, either expressed or implied.”
“ * * * For if the agent contracts in such a form as to make himself personally responsible he cannot afterwards, whether his principal be or be not known, at the time of the contract, relieve himself from that responsibility.”

Our conclusion is that Harry W. Fitzpatrick and Fitzpatrick & Co. are personally liable for the effect of the misrepresentations made at the auction sale at which plaintiff purchased. the lots, the title to which was never delivered to her, and the purchase price of which she lost as a result of the misrepresentations made at that sale.

William Perry Brown, the manager of the Fitzpatrick Company, whose liability is claimed to result from his conduct as joint tort-feasor, was dismissed by the trial court. Mr. Brown was the manager of the Fitzpatrick Company. Whatever he did in connection with the sale was in that capacity, and he did not conduct the auction and assumed no personal responsibility in connection with it. Whether he was responsible for any of the misrepresentations made at the sale by reason of his failure to ascertain the true facts is a matter of no moment. He was merely one of the means employed by his employer to investigate the situation. The judgment of the trial court in his favor was correct.

But it is said that the Union Indemnity Company, defendant herein, is not liable as surety because the condition of its liability and the measure of its responsibility precludes recovery. This defendant is sued in the dual capacity as surety on the real estate broker’s bond of the Fitzpatrick Company and on the auctioneer’s bond of Mr. Harry W. Fitzpatrick. Both bonds are statutory. Act No. 45 of 1908, relating to auctioneers’ bonds, and Act No. 236 of 1920, relating to real estate brokers’ bonds. As to its liability on the auctioneer’s bond, we are referred to a provision of the statute providing that such bond is conditioned upon the faithful performance of all of the duties required by law to all persons who may employ him as auctioneer; the argument being that the plaintiff in this case, a purchaser at the auction sale, cannot be said to have employed Mr. Fitzpatrick as auctioneer, his employer being the Whidden Realty Company. Without discussing this point, we observe that it is unnecessary to the decision of this case, because the defendant surety company is unquestionably liable under its bond covering the activities of Fitzpatrick & Co. as real estate agents. The sale, advertising, and all literature were made and issued in the name of Fitzpatrick & Co. One of the statutory liabilities of a real estate broker’s bond is “to pay all damages which may result from his or from their actions as such real estate agents or brokers, and any one who may have been injured or damaged by said agent or broker by any wrongful act done in the furtherance of said business, or by any fraud or misrepresentation by said agency or broker, shall have the right to sue for the recovery of such damages before any court of competent jurisdiction.” The fact that a real estate broker sells at auction does not relieve him or his surety of responsibility any more than would be the case in a private sale. As a matter of fact, the occupations of real estate agents and auctioneers are usually combined, and sales commonly made in the pursuit of such business by auction as well as private sale.

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


source: Caselaw Access Project

author: ODOM, J.

license: Public Domain

text:
    No. 3426
    Second Circuit
    WISDOM v. LATEX IRON & STEEL WORKS, INC.
    (March 24, 1930. Opinion and Decree.)

      L. Percy Garrot, of Shreveport, attorney for plaintiff, appellee.
    W. H. Scheen, of Shreveport, attorney for defendant, appellant.
   ODOM, J.

The plaintiff was drilling oil wells in the El Dorado field, in the state of Arkansas, prior to the year 1923, and became indebted to the defendant for material and supplies. On November 12, 1926, plaintiff assigned to defendant a claim amounting to $7,500, against the Constantine Oil & Gas Company, with the understanding that such amounts as might be collected on said assignment would be credited to plaintiff’s account. Defendant collected from the receivers of the Constantine Oil & Gas Company the sum of $1,760.82. Plaintiff prosecutes this suit to collect said amount, less $762.82, which was admittedly due on the old account, leaving a balance due plaintiff, it is alleged, of $1,000.

Defendant in answer admitted that it had collected $1,760.82 on the assignment, but alleged that there was a balance due plaintiff of only $37.95, which amount was tendered in open court, with costs.

The district judge rendered judgment in plaintiff’s favor and against defendant for $669.05.

This controversy involves an accounting between these parties, and, according to our check of the accounts and the testimony, we have reached the conclusion that defendant owes plaintiff the sum of $669.53 or 48 cents more than the judgment gave him.

In reaching this conclusion, we have taken the statement rendered by defendant, showing a balance due it by plaintiff in 1923, of $2,378.45, and have deducted therefrom certain items which the testimony shows plaintiff was not due. These items are as follows:

Koury account ___________________________________ $200.00

Gossitt account ___________________________________ 100.00

Amount alleged to have been paid by defendant under certain garnishment proceedings in the State of Arkansas ________________________________________ 180.00

For invoices since 1923 ________________________ 189.53

$669.53

making a total, as shown, of $669.53.

The testimony shows that defendant had no right to charge plaintiff with the Koury account, and, further, that the Gossitt account, amounting to $100, was paid. With reference to the amount which defendant alleges that it paid for plaintiff in certain garnishment proceedings in a magistrate’s court in the state of Arkansas, we do not find any warrant for the payment of this amount. Defendant alleged that, after it collected the amounts stated above on the assignments, and while it had in its hands funds belonging to plaintiff, it was served with garnishment proceedings and ordered by the magistrate to pay to plaintiff’s creditors $180. But there is no transcript in the record of the suit in garnishment against plaintiff, and plaintiff specifically denies that he owed the attaching creditors anything at all, and says that he knew nothing about these proceedings; that he was not notified of such proceedings either by the alleged creditors or by defendant. We find in the record what appears to be the original of a judgment rendered in the magistrate’s court, in which it is ordered that the garnishee pay the constable all funds held for defendant. No amount is specified, and there is nothing to show that any amount was actually' paid to the constable. Defendant has not made such showing as will warrant the court in giving it credit for the amount which it alleges it paid.

With reference to the item of $189.53, charged to plaintiff, it must be said that there is no proof whatsoever that goods and merchandise to this amount were actually sold to plaintiff. While there are two invoices totaling this amount charged on the account which defendant presents, and while it is true that Mr. Cronk stated that the books of the defendant company showed these charges, yet Mr. Cronk was not able to testify of his own knowledge that these items were in fact sold to plaintiff. He was asked the direct question whether he knew that they were, and he said he did not, and plaintiff called in other witnesses. Plaintiff and his secretary both specifically denied that the goods were purchased, and, further, that, at the time they were charged on the account, plaintiff was not in the state of Arkansas and was no longer operating there. Clearly defendant is not entitled to credit for these amounts.

Plaintiff moved in this court to amend the judgment by increasing the amount. We find no warrant for doing so. There is an item of $302 charged by defendant which it paid to a creditor of plaintiff under garnishment proceedings in the state of Arkansas. While counsel for plaintiff contends that this charge should not have been paid, yet we' do not find that this item was seriously contested on trial of the case. Plaintiff took the stand as a witness, and did not deny that this amount was due to his Louisiana creditor, nor did he deny that the amount was properly paid.

Counsel for plaintiff contends also that the district judge erred in his computation of the interest due. He contends that defendant should not have charged 6 per cent, interest, and that, if any interest at all was due, it should have been computed at 5 per cent, instead of 6. We think interest was due, and that defendant is entitled to 6 per cent. The account was made in the state of Arkansas, and proof was made that the legal rate of interest in that state is 6 per cent. Plaintiff testified that it was understood that no interest at all should be charged on this account, but, taking the testimony as a whole, our conclusion is that it was understood between the parties that, during the time the supplies were being purchased and while payments were being made on the account, no interest was to be charged. But the account was closed in 1923, and plaintiff himself does not state that it was understood that no interest should be charged after the closing of the account.

We think the judgment appealed from is correct, and it is accordingly affirmed, with costs in both courts.


author: WESTERFIELD, J.

text:
    No. 13,106
    Orleans
    CLARK v. GRECO
    (April 7, 1930. Opinion and Decree.)
    (May 5, 1930. Rehearing Refused.)
    (July 2, 1930. Writ of Certiorari and Review Refused by Supreme Court.)
    Louis L. Rosen, of New Orleans, attorney for plaintiff, appellee.
    John C. Hollingsworth, of New Orleans, attorney for defendant, appellant.
   WESTERFIELD, J.

This is a suit by a tenant against her landlord for damages for personal injuries sustained by her by reason of a fall caused by a defective plank in the floor of the gallery of the leased premises. There was judgment below for plaintiff in the sum of $1,208, and defendant has appealed.

Since the appeal, plaintiff died, and her legal heirs, consisting of her mother, father, and seven brothers and sisters, have been made parties plaintiff by proper motion.

The defense in this ease, like that in Goldstein vs. Stone, 12 La. App. 702, 127 So. 73, decided March 24, 1930, is based upon the' theory that article 2694 of the Civil Code imposes an obligation upon the tenant to make necessary repairs in the event the landlord fails to do so. Our answer to this contention here must be the same as it was in the cited case, where we held that the article of the Code referred to confers upon the tenant the privilege, but does not impose the obligation, of making the repairs. The interesting discussing of the genesis of the codal provision referred to and its comparison with a similar article in the Code Napoleon, contained in defendant’s brief, is a tribute to the industry of counsel, but the question involved is now settled beyond controversy, whatever may have been the early jurisprudence. Shelton vs. Masur, 157 La. 621, 102 So. 813; Breen et ux. vs. Walters et al., 150 La. 578, 91 So. 50; Landry vs. Monteleone, 150 La. 546, 90 So. 919; Ciaccio vs. Carbajal, 145 La. 869, 83 So. 73; Allain vs. Frigola, 140 La. 982, 74 So 404; Brown vs. Losch, 8 La. App. 278; Evans vs. Hollander, 2 La. App. 409. The cases of Bianchi vs. Del Valle, 117 La. 590, 42 So. 148, and Brodtman vs. Finerty, 116 La. 1103, 41 So. 329, where the court held that express provisions of the Code required the lessee to repair windows, shutters, etc., and that the failure of the tenant to make such repairs would bar recovery for damages occasioned thereby, are not in point. Our conclusion is that the defendant is liable.

On the question of quantum, we adopt the views of the judge, a quo, and quote the following from his reasons for judgment:

“The plaintiff is a comparatively young negress, energetic and thrifty. She was operating at the leased premises, where the accident occurred, a rooming house, and at another location a lunch room. Her injuries were serious and incapacitated her for a period of 24 weeks or more. The proof of her financial loss in the lunch room business, occasioned by her injury, is not sufficiently definite to enable me to predicate any fixed amount of damages for same, although I believe that she did sustain some loss on this account. It is not reasonable to suppose that a woman of her' type would have conducted the lunch room unless it netted some profit. Her husband attempted to operate it after her injury but failed.
“I am of the opinion that a sum of $1,000.00 for her physical injuries, pain and suffering, is justified by the awards in other cases.
“I believe that she is also entitled to recover the sum of $168.00 which the testimony shows she paid, during these 24 weeks, to a negro girl who conducted the rooming house for her and performed the work incident to its operation.
“The testimony shows that she paid her mother, for nursing and waiting upon her, the sum of $40.00. Considering the plaintiff’s inability to care for herself, from the nature of the injury, this amount is not excessive and should also be recovered.
“For the foregoing reasons, there will be judgment for $1,208.00 in favor of plaintiff, with legal interest from judicial demand.’’

For the reasons assigned, the judgment appealed from is amended so as to have the judgment run in favor of John Clark, Mary Williams, wife of John Clark, Virginia Clark, wife of Henry Singleton, Lawrence Clark, Israel Clark, John Clark, Jr., Elvin Clark, Kidridge Clark, and Ernest Clark, heirs of plaintiff, deceased, and in other respects it is affirmed.


text:
    No. 3780
    Second Circuit
    THIEME v. COLLIER ET AL.
    (June 2, 1930. Opinion and Decree.)

      A. A. Moss, of Winnfield, attorney for plaintiff, appellee.
    A. Leonard Allen, of Winnfield, attorney for defendants, appellants.
   ODOM, J.

This is a suit to collect the balance due on a promissory note signed by A. B. Collier, a minor, and Mr. Collier, his father. A. B. Collier pleaded minority and was dismissed from the suit. M. F. Collier admitted his signature to the note, but denied liability on the ground that he was induced to sign the note through the fraudulent representations of plaintiff’s agent, Walker.

There was judgment for plaintiff and defendant appealed.

The facts are that on August 31, 1929, A. B. Collier, the minor son of M. P. Collier, purchased a new automobile from plaintiff at the price of $858, paid and to be paid as follows: The minor traded in an old car valued at $200, gave his note for $590, secured by chattel mortgage on the new car, and his personal note for $68, not secured by the mortgage. The new car was delivered to the minor, who was then living with his father and under his father’s control. Plaintiff sent the $590 to a finance corporation in New Orleans with the view of getting the corporation to handle it. The corporation refused to handle it for the reason that it had found, after investigation, that A. B. Collier, the maker, was a minor. The plaintiff’s sales manager, Walker, then took the note toM. F. Collier, the father, and told him that his principal, Thieme, could not carry the note and the corporation would not do so unless he (M. F. Collier) would sign it, and asked him to do so. The father refused at first to sign, but, upon being told that unless he signed it plaintiff would reclaim the new ear, he consented to sign it and did sign it. The installments on the mortgage were not paid as they fell due, and plaintiff foreclosed its chattel mortgage, sold the car for less than the balance due, and this suit is for the balance.

Whether the defendant M. F. Collier made any defense in the foreclosure proceedings is not shown; but when the present suit was filed, he defended on the ground that he was induced to sign the note through fraudulent representations made by Walker. The fraudulent representations complained of are these: Defendant says that when Walker .presented the note to him for his signature, he stated that the minor, A. B. Collier, had been allowed a credit of $268 on the old car, .when as a matter of fact he had been allowed only $200, and that the boy had made up the- difference by executing his personal note for $68. He says that if he had known that a credit of only $200 had been given for the old car, he would not have signed the note sued on.

As to whether Walker told M. F. Collier that a credit of $268 had been allowed for the old car is a disputed question. Walker says that he told defendant there had been a down payment of $'268, which was true. There is one portion of defendant’s testimony which indicates that this was what Walker told him. He said:

‘T said, ‘Mr. Walker how much was the first payment’ and he said two hundred sixty-eight dollars and he just kept on me to sign the note.”

He later said that he asked Walker how much he had allowed the boy for the old car and he said $268.

However, we think the defendant is not relieved of his obligation to pay the note, even if it be true that Walker did tell him that amount had been allowed for the old car.

"Fraud, as applied to contracts, is the cause of an error bearing on a material part of the contract, created or continued by artifice, with design to obtain some unjust advantages to the one party, or to cause an inconvenience or loss to the other. * * * If the advantage to be gained by the party, in favor of whom the artifice is practiced, gives him no unjust advantage, that is to say, no advantage at the expense of the other party, and this latter would neither suffer inconvenience nor loss in consequence of the deception, if the contract were performed, the artifice does not vitiate it.” Civ. Code, art. 1847.

The defendant knew at the time he signed the note that he was making himself liable for the balance due on the new car and no more. Insofar as his obligation was concerned, it was fixed. He bound himself to pay $590. The cause, motive, or consideration for his making the contract was to keep plaintiff from taking the new car from his son. He makes that perfectly clear. After reciting the conversations which took place between himself and Walker during the two or three visits which Walker made to him in his efforts to get him to sign the note, in which conversations he says Walker told him that unless he (defendant) signed the note, the plaintiff would have to repossess the new car, because the purchaser^ defendant’s minor son, could not be held for the debt, because of his minority, defendant said:

“So, I signed the note to keep them from taking the car away from the boy.”

While on cross-examination, defendant said:

“He said he allowed two hundred sixty-'eight dollars on the old car and that he would have to take the new car back if I didn’t sign the note, and rather than see the boy lose both ears, I signed the note.”

The artifice which defendant says Walker practiced upon him did not lead him into an “error bearing on a material part of the contract.” The sum and substance, the material part of the contract made between plaintiff and this defendant was that if plaintiff would not take the new car from defendant’s son, defendant would pay the chattel mortgage note of $590, and that was the only obligation that defendant assumed. He was willing to assume that obligation and did assume it, and his assumption of the obligation accomplished the only purpose intended. The fact that plaintiff allowed $200, instead of $268, for the old car caused defendant no inconvenience, loss, or injury. Plaintiff, by making the representation as to what was allowed for the old car, obtained no advantage at the expense of this defendant. If by falsely representing that $268, instead of $200, had been allowed as a credit for the old car, plaintiff had led defendant into an error through which he did or could suffer injury, hurt, or inconvenience, or which gave plaintiff an unjust advantage, defendant would have cause to complain. But the facts are that defendant suffered no injury or inconvenience. By signing the note, he got precisely what he expected. He reaped the benefit which he expected to reap. He is therefore not injured. By signing the note sued on, he did not- become liable for more than the amount of the note. He did not make himself liable for the $68 note signed by his son. That is conceded.

Under the plain letter of the Code, if the advantage to be gained in favor of the party who practices the artifice gives him no unjust advantage, “that is to say, no advantage at the expense of the other party, and this latter would neither suffer inconvenience or loss in consequence of the deception, if the contract were performed, the artifice does not vitiate it.”

Counsel for appellant has cited many cases, and among them, Succession of Drysdale, 128 La. 151, 54 So. 701; Cuselich vs. Cuselich, 159 La. 652, 106 So. 20; and Planters’ Lbr. Co. vs. Sugar Cane By-Products Co., 162 La. 123, 110 So. 172, in which our court has said that “fraud vitiates all things.” A reading of these cases, and all others in which contracts were set aside on account of fraud, discloses that the court found, as a fact, that the artifice practiced resulted in some hurt, injury, loss, or inconvenience to the other (party. “Fraud,” as the word is used in our Code and in courts of equity, as relates to contracts, “comprises all acts, omissions and concealments involving a breach of legal or equitable duty and resulting in damage to another.”

As the defendant has suffered no injury or damage from the alleged misrepresentations complained of, he cannot be relieved of his obligation to pay the note which he signed.

The judgment appealed from is correct, and is accordingly affirmed, with all costs.


author: WEBB, J.

text:
    No. 3461
    Second Circuit
    LINER ET AL. v. RIVERSIDE GRAVEL CO. ET AL.
    (March 24, 1930. Opinion and Decree.)
    (July 2, 1930. Writ of Certiorari and Review Refused by Supreme Court.)

      L. K. Watkins and R. D. Watkins, of Minden, attorneys for plaintiffs, appellants.
    Thigpen, Herold, Lee & Cousin and Alex P. Smith, of Shreveport, and M. M. More-lock of Haynesville, attorneys for defendants, appellees.
   WEBB, J.

Defendant Riverside Gravel Company, a partnership composed of M. M. Morelock, J. Y. Snyder and S. L. Herold, was engaged in taking gravel from beds along the banks of bayou Dorcheat, using for that purpose pumps, which, together with the machinery for operating same, were placed on a barge located out in the bayou. Three persons were employed on the barge, who were Elbert Walker, engineer; C. P. Sanders, pumper, and M. Walker, boatman, and there were two persons employed to clear the banks of the bayou of trees, brushes, etc., in order that the work of taking the gravel could be carried on.

Calvin Liner, a minor, above the age of seventeen years, and H. A. Walker, of about Liner’s age, were employed to clear the banks of the bayou. Liner was employed in September, 1926, and continued in defendant’s employment until January 8, 1927, when, in an attempt to place a belt on some part of the machinery which, as stated, was on the barge, he sustained serious injuries, for which he was under treatment until about July, 1927.

The present suit was filed on December 19, 1927, by J. S. Liner and Etta Liner, representing Calvin Liner, their minor son, to recover judgment for damages under the provisions of article 2315 of the Civil Code, and, in the alternative, for compensation under the provisions of the Employers’ Liability Statute (Act No. 20 of 1914, as amended).

Plaintiffs alleged, in substance, the facts as above stated, and, further, that they knew that their son had been employed by defendant and that they did not object to his working on the bank, but that on the 8th of January, 1927, their son had been ordered by Eugene Lanning, the foreman in charge of the barge, to take the place of M. Walker, for which work their son had not been employed, and their son was required to place the belt on the machinery, which was dangerous work, and that defendant was guilty of negligence in that it had not instructed their son as to the manner of doing the work, or warned him of the dang'er, and had not furnished him with a safe place in which to do the work, with the result that their son was injured; and, in the alternative, plaintiffs set forth the same cause of action for compensation under the Employers’ Liability Statute, and prayed for judgment for damages resulting from the alleged negligence of defendant, and, in the alternative, for compensation.

Defendant moved to strike out the demand for damages, which was not sustained, and it answered admitting that it was engaged in the business alleged, and that young Liner had been employed by it to clear- the banks of the bayou, and that he was injured, and otherwise denied plaintiffs’ allegations, and especially that young Liner had been ordered to work on the barge, and alleged that he voluntarily left the work he was engaged to do and went on the barge and attempted to place the belt on the machinery.

Trial was had on May 19, 1928, and plaintiffs appeal from a judgment rejecting their demand, and appellants, in presenting the cause here, as they did in the district court, urge first the primary demand for damages, an'd the demand for compensation in the alternative.

With regard to the right to claim damages, it is conceded that if the employment came under the Employers’ Liability Statute the remedy afforded therein is exclusive (section 34, Act No. 20 of 1914; Veasey vs. Peters, 142 La. 1012, 77 So. 948; Philips vs. Guy Drilling Co., 143 La. 951, 79 So. 549; Williams vs. Blodgett Const. Co., 146 La. 841, 84 So. 115), and that had young Liner been injured while engaged in the work of clearing the banks of the bayou the exclusive remedy would have been to claim compensation (Ross et al. vs. Cochran & Franklin Co., Inc., 10 La. App. 719, 122 So. 141; Labourdette vs. Doullut & Williams, etc., Co., 156 La. 412, 100 So. 547), and, as we understand, the basis of the contention that the statute is not applicable, or that the plaintiffs have the right to demand damages, is assuming that defendant ordered their son to work on the barge or place the belt on the machinery, that such work was without the scope of his duties in clearing the banks of the bayou, and that it should be held that, as to such work, there was a distinct employment, of which plaintiffs did not have knowledge and could not be held to have consented that the employment should come under the statute.

Defendant was engaged in a hazardous trade or business and plaintiffs’ son was one of its employees, and while the particular work of clearing the banks of the bayou, which was a part of the hazardous business of defendant, may have been less dangerous than other work connected with defendant’s business, all workmen employed by defendant in carrying on its business were engaged in the same employment, and if defendant directed plaintiffs’ son to do work outside of the scope of his duties, the fact that such work may have been more or less hazardous than that to which he had been accustomed to do, the employment remained the same, and the fact that plaintiffs’ son, defendant’s employee, was a minor is not of any significance (Garcia vs. Salmen Brick & Lumber Co., 151 La. 784, 92 So. 335), it not being suggested that the employment was unlawful, and we are of the opinion that the only remedy plaintiffs had was under the statute to claim compensation.

With relation to that right, plaintiffs alleged and the evidence established that the work of putting a belt on the machinery used in operating the pumps was outside of the scope of young Liner’s duties in clearing the banks of the bayou, and that fact being established, it must be conceded that plaintiffs cannot recover compensation unless the evidence established that young Liner was instructed by defendant to place the belt on the machinery, or to do work in which the work of placing the belt on the machinery was a part (Pierre vs. Barringer, 149 La. 71, 88 So. 691; Gooding vs. Beauregard Laundry Co., Inc., 9 La. App. 392, 120 So. 507; also, Gibson vs. N. O. Terminal Co., 131 La. 10, 58 So. 1015; Daly vs. H. Haller Mfg. Co., 48 La. Ann. 214, 19 So. 116; Utah Copper Co. vs. Industrial Commission, 62 Utah, 33, 217 P. 1105, 33 A. L. R. 1327).

As previously stated, the workmen employed on the barge were Elbert Walker, engineer; C. P. Sanders, pumper, and M. Walker, boatman, and those on the bank were Calvin Liner and H. A. Walker, and Eugene Lanning was the foreman. On the afternoon of the accident Elbert Walker was absent and Eugene Lanning instructed M. Walker to take his place, and plaintiffs alleged that their son was ordered by Lanning to take the place of M. Walker and that Liner was specifically instructed to place the belt on the machinery.

Calvin Liner stated that he had been instructed by Lanning to take the place of M. Walker and that C. P. Sanders had specifically instructed him to rplace the belt on the machinery, and, while both Lanning and Sanders denied that they had given him any such instructions, it is urged that the evidence of Liner is supported by the testimony of a disinterested witness who said that Lanning had stated in her presence that he had instructed him to take the place of M. Walker.

Lanning stated that he had instructed H. A. Walker to take the place of M. Walker, and denied that he had stated that he had instructed Calvin Liner to take the place of M. Walker, and M. Walker, H. A. Walker and C. P. Sanders stated that Lanning had instructed H. A. Walker to take the place of M. Walker, and the evidence shows that H. A. Walker did take the place of M. Walker, and that while M. Walker was in the act of placing the belt on the machinery young Liner came and took the belt from him and attempted to place it on the machinery.

There was not any fact established which supports the testimony of young Liner as to his having been instructed to work on the barge or to take the place of M. Walker, or that he was instructed to place the belt on the machinery, and in 'view of the direct conflict between his testimony and that of the persons who he claimed instructed him to work on the barge or place the belt on a machinery, and that the testimony of Lanning and Sanders is supported by that of M. Walker and H. A. Walker, we find that plaintiffs failed to establish that their son was instructed to work on the barge or place the belt on the machinery, and that the evidence showing that plaintiffs’ son was acting outside the scope of his duties of his employment, plaintiffs cannot recover, and the judgment is affirmed.


author: DREW, J.

text:
    No. 3778
    Second Circuit
    LOUISIANA CENTRAL LUMBER CO. v. STEPHENSON ET AL.
    (June 2, 1930. Opinion and Decree.)

      Stubbs & Thompson, of Monroe, and C. P. Thornhill, of Columbia, attorneys for plaintiff, appellee.
    Wm. R. Mecom, of Columbia, attorney for defendants, appellants.
   DREW, J.

Plaintiff sued defendants for the sum of $223, alleging same to be the value of 11,180 feet of gum and oak timber at the price of $20 per thousand, that was willfully and illegally cut and removed from the northeast quarter of southeast quarter of lot No. 9 and southwest quarter of southeast quarter of lot No. 15 of section 9, township 11 north, range 2' east, belonging to the plaintiff.

It is alleged that defendants cut and removed a total of 25,144 feet of gum and oak timber from said tract, and that plain tiff, believing that defendant had only cut 13,964 feet of timber, accepted from defendants $181.55 in settlement of that amount of stumpage, at a price of $13 per thousand; that plaintiff subsequently had the lines run by the parish surveyor, and discovered that defendant had cut and removed an additional amount of timber aggregating 11,180 feet, for which judgment is prayed for at the rate of $20 per thousand.

Defendants allege that the payment for the 13,964 feet was in full settlement of all timber cut, and deny that the timber is worth $20 per thousand, also deny cutting the timber in bad faith.

On these issues, the case went to trial, and the judgment of the lower court was in favor of plaintiff for $251.44, for the entire 25,144 feet of timber cut, at the price of $10 per thousand, subject to a credit of $181.53 paid for the 13,964 feet. From this judgment defendants have appealed, and plaintiff has answered the appeal, praying that the judgment be increased to the amount sued for.

There is no denial that plaintiff is the owner of the land and no denial that the line run by the parish surveyor is not correct. The proof is conclusive that the amount of timber cut by the defendants on plaintiff’s land is 25,144 feet.

The receipt was for a certain number of feet of timber at a certain price, and not a settlement in full for all timber cut, and in no way bars plaintiff from suing for the additional timber later discovered to have been cut by defendant. '

The evidence in the case does not justify us in holding that defendants were acting in bad faith when they cut the timher. The lower court did not so hold, and we think he was correct in holding that defendants were not in bad faith and that plaintiff is therefore only entitled to recover the stumpage value of the timber, which was correctly fixed by the lower court at $10 per thousand.

Plaintiff’s witness put on the stand to fix the value of the timber testified that it was worth $11 or $12 per thousand, and that he thought plaintiff would be willing to pay $10 per thousand for that kind of timber. Defendants’ witness testified that it was worth $5 per thousand, while the assistant manager of the plaintiff company testified that it was worth $20 per thousand. We find no error in the lower court’s hoding that the timber was worth $10 per thousand.

The 13,964 feet settled for by defendants at the rate of $13 per thousand is no part of this suit, and the court is without authority to reduce the price of that timber. The price was agreed to by the plaintiff and defendants, and we are without authority to disturb that. Plaintiff in this suit is suing for the value of the additional 11,144 feet that was later discovered to have been cut, and is entitled to judgment for that amount of timber at the rate of $10 per thousand, or $111.44. The judgment of the lower court will have to be amended, which makes it necessary to recast the judgment.

It is therefore ordered, adjudged, and decreed that the plaintiff, Louisiana Central Lumber Company, do have and recover judgment against the defendant J. C. Stephenson in the full sum of $111.44, with legal interest thereon from judicial demand until paid; defendant to "pay all costs of both courts.


text:
    No. 3769
    Second Circuit
    LOMAX v. BAKER
    (June 2, 1930. Opinion and Decree.)
    Wm. J. Hammon, of Jonesboro, attorney for plaintiff, appellee.
    H. W. Ayres, of Jonesboro, attorney for defendant, appellant.
   DREW, J.

Plaintiff, an architect, sued the defendant for $150, less a credit of $12.50, alleging that he had entered into a contract with defendant to prepare plans and specifications for a brick veneer house in the town of Jonesboro, for an agreed price of $150; that he prepared the plans, blueprints, etc., and delivered them to defendant. He further alleges that since that time he purchased from defendant a suit of clothes for $12.50, which amount was agreed to be credited on said bill of $150, leaving a balance of $137.50.

The answer is a general denial. Defendant admits that he received the plans and blueprints and had them in his possession until the day of trial several months after same were delivered to him, but contends that plaintiff made the (plans and blueprints at his own risk, and that he agreed to pay for them only provided that he build a house; that he had not built and did not know when he would; and that the price of $150 also included supervision of the building, as well as the preparing of plans and blueprints.

The lower court rendered judgment in favor of plaintiff for the amount sued for, and from that judgment the defendant has appealed to this court.

The only question in the case is one of fact and revolves around the one fact. Did plaintiff (perform the work at his own risk and expense contingent on defendant building the house or not?.

The testimony is short and is conflicting, the plaintiff testifying that there was no contingency to the contract and that the money was due upon delivery of the plans. The defendant testified to the contrary. It is true that one of defendant’s clerks claims to have overheard the defendant say to plaintiff that he' would do the work at his own risk, if he prepared the plans.

Plaintiff testified that he spent three weeks’ time preparing the plans and expended some money having them printed. The lower court undoubtedly gave credence to the testimony of plaintiff and he could better pass on the credibility of the witnesses than we can, as he saw and heard them testify and, no doubt, is personally acquainted with both plaintiff and defendant. It is a case in which the credibility of the witness would govern the decision. The lower court found for plaintiff, and we cannot say there is manifest error in his judgment. Therefore, it is ordered, adjudged, and decreed that the judgment of the lower court be affirmed, with costs.


text:
    No. 3757
    Second Circuit
    JACKSON v. HOLLOWAY
    (June 2, 1930. Opinion and Decree.)

      Hugh Tullís, of Vidalia, attorney for plaintiff, appellee.
    Gilbert P. Bullís, of Vidalia, attorney for defendant, appellant.
   WEBB, J.

Plaintiff brought this action to recover judgment for an alleged balance on the purchase price of certain movables sold to defendant, and for recognition of a vendor’s privilege on the property, which was seized under a writ of sequestration.

Defendant admitted that he had purchased the property, but denied that any amount was due, pleading that, at the time of the sale, the Willetts Wood Products Company had agreed to pay the price, and that plaintiff had agreed to accept the obligation of the Willetts Wood Products Company, and had released him, defendant, and he further pleaded that he had paid the Willetts Wood Products Company the full amount due on the purchase price and that the latter had paid plaintiff.

On trial, judgment was rendered in favor of plaintiff for the amount claimed, maintaining the writ of sequestration, and recognizing a vendor’s privilege on the property seized, to secure the judgment, and defendant appeals.

Defendant was absent from the state and unable to be present at the trial, and he complains of the ruling of the court in refusing to allow his deposition to be introduced in evidence, and urges that the ruling of the court was erroneous, and that ■the deposition, which is brought up with the record, should be considered, and, if so, that the evidence established the defense.

Prior to the trial defendant ruled plaintiff to show cause why the deposition should not be introduced in evidence, and on trial the rule was discharged, and the evidence taken on trial of the rule is not in the record, and we presume that the rule was properly discharged, and that the ruling of the court, refusing to permit the deposition to be introduced and read in evidence, was correct. Without considering the deposition of defendant, which was the only evidence offered in support of the defense, it must be conceded that the judgment was correct, and it is therefore affirmed.


text:
    No. 3767
    Second Circuit
    LOUISIANA CENTRAL LUMBER CO. v. STEPHENSON ET AL.
    (June 2, 1930. Opinion and Decree.)

      C. P. Thornhill, of Coushatta, attorney for plaintiff, appellee.
    Wm. H. Mecom, of Coushatta, attorney for defendants, appellants.
   DREW, J.

Plaintiff alleges ownership of lot 13 or northwest quarter of southwest quarter of section 10, township 11 north, range 2 east, Caldwell parish, Louisiana, together with all timber thereon, and sued J. C. Stephenson and H. E. Clark for the possession of eighty-nine sweet gum, black gum and pin-oak logs removed from said land by defendants; obtained a writ of sequestration for the logs cut and removed, and a writ of injunction restraining defendants from further cutting of the timber.

Subsequently, plaintiff filed an amended petition alleging that, in addition to the eighty-nine logs described and sued for in the original petition, the defendants had cut and removed other logs and timber aggregating 50,209 feet from said lot 13 or N¥y4 of SW% of section 10, township 11 north, range 2 east, worth $20 per thousand. The amended petition also embraced timber alleged to have been cut on other land of plaintiff, but the amendment was only allowed as to the timber cut on the land involved in this suit.

Defendants answered, admitting that the plaintiff is the owner of lot 13, township 11, range 2 east, but denied that plaintiff is the owner of the NW^ of SW1^ of section 10, township 11 north, range 2 east, alleging that lot No. 13 is situated in the NW% of SW1^ of section 10, township 11,-range 2 east, and lies west of Castor bayou and along the west bank of said bayou as shown by the government township plat; alleged that defendants had acquired and owned under title set out in detail from the government down to defendants the NW1^ of SW% of section 10, township 11 north, range 2 east, that the timber involved here was cut from said land, and denied that the timber was worth $2'0 per thousand; prays for the dissolution of the writ of injunction and sequestration, for rejection of plaintiff’s demands and in re-convention of $1,150 damages.

The lower court rendered judgment in favor of plaintiff decreeing it to be the owner of lot No. 13 or NW% of SW^i, section. 10, township 11 north, range 2 east, together with the timber thereon, and quieting plaintiff in possession of same, maintaining the writ of sequestration and injunction, decreeing plaintiff to be the owner of, and entitled to the possession of, timber sequestered,' and for further judgment in the sum of $374, the value of 34,-000 feet of timber cut and removed by defendants at $11 per thousand.

From this judgment defendants have appealed and plaintiff has answered the appeal, praying that the price of $11 per thousand feet be increased to $20 per thousand.

The lower court’s judgment as to the number of feet of timber cut and removed by the defendant is correct, and we think the price fixed for said timber at $11 per thousand is correct. In order to disturb the price fixed for said timber, we would have to hold that defendants were in bad faith in cutting said timber, which we cannot do. His author in title is a lawyer of good standing, and is seriously contesting this case on grounds that are calculated to mislead and are at least confusing. We think defendants’ author in title was in good faith and that they were also in good faith. It is true that there is evidence to show in some instances that they might not have been in good faith, but not sufficient, we think, to hold them in bad faith. This being true, there are only two remaining questions to decide in the case:

(1) Is lot No. 13 and NW% of SW% of section 10, township 11 north, range 2 east, one and the same tract?

(2) Which governs as to the location of land, the actual survey made from government field notes or the location shown on the government township plat insofar as it applies to streams?

The United States government, under the Swamp Land Act (43 USCA sec. 982 et seq.), granted to the state of Louisiana, with other lands, lot No. 13 or NW% •of SW% of section 10, township 11 north, range 2 east, containing 31.37 acres.

The state of Louisiana sold to James W. Dunn by the same description, containing 31.37 acres, and by the same description the land was acquired by plaintiff’s author in title, who, in selling to plaintiff, described the land as lot No. 13, section 10, township 11 north, range 2 east. Plaintiff duly recorded its deed in the conveyance records of Caldwell parish, La.

At a later date, plaintiff’s author sold to W. H. Mecom by quit-claim for the consideration of $10 the NWy4 of SW14 of section 10, township 11 north, range 2 east, containing eight acres, more or less.

It is clear by the description from the government down to plaintiff’s author that lot 13 and NW% of SW% of section 10, township 11 north, range 2 east, are one and the same tract, and that, when plaintiff’s author sold to it lot No. 13, he sold all he acquired when he acquired lot No. 13 or NW% of SW%- And, when he sold to defendants’ author, W. H. Mecom, the NW14 of SW%> ^e had nothing to sell, and Mecom acquired nothing. -

Defendants contend that the government plat shows that lot 13, or NW% of SW14, lies west of Castor bayou, and the land on which they cut the timber was all east of Castor bayou. The parish surveyor made a survey of this property from the original government field notes, the corners which checked by the survey, and found that Bayou Castor was nearly a quarter of a mile west of lot No. 13. The surveyor and number of other witnesses testified that there was nothing to indicate that Bayou Castor had ever been where the government plat showed it to be.

Which governs, the actual survey from government field notes or the plat?

“In cases of discrepancy between lines actually marked or surveyed and those called for in maps, plats or field notes, those marked or surveyed will control. It is by the work as executed on the ground, not as projected before execution or represented on the plat afterwards, that the actual boundaries are determined.” 9 Corpus Juris, p. 210, sec. 118.
“Where there is a discrepancy between field notes and a plat, the latter being made from the former, and the former being the better evidence as to where the line was run in the field, the plat must give way to the field notes.” Harrington vs. Boehmer, 134 Cal. 196, 66 P. 214, 215, 489; Lillis vs. Urrutia, 9 Cal. App. 557, 99 P. 992.

There was no attempt made to show that the survey made by the parish surveyor of Caldwell parish was not correct. And the legal right to show that a government plat is erroneous in the location of a water course incorrectly shown in location, said plat being made from a survey either erroneously made or never made at all, is sustained by the jurisprudence of the United States.

“The rule that where lands are patented according to an official plat, showing meander lines along or near the margin of a body of water, the ¡plat is to be treated as part of the conveyance and the water itself constitutes the boundary, does not apply when it is conclusively shown that no body of water exists * * * at or near the place indicated or where no attempt to survey tracts lying beyond the meander line was actually made.” Jeems Bayou Club vs. U. S. (La. 1923), 260 U. S. 561, 43 S. Ct. 205, 67 L. Ed. 402; and holding further that the United States cannot be estopped to question the existence of a survey by statement made in correspondence by officials of the land department. On the first question the court held:

“The defendants rely upon the rule that 'where lands are patented according to an official plat of survey, showing meander lines along or near the margin of a body of water, the plat is to be treated as a part of the conveyance and the water itself constitutes the boundary. The rule is familiar and has received the approval of this court many times. Producers’ Oil Co. v. Hanzen, 238 U. S. 325, 338, 59 L. Ed. 1330, 35 S. Ct. 755, and cases cited. But it is not absolute, as this court has also frequently decided. It will not be applied where, as here, the facts conclusively show that no body of water existed or exists at or near the place indicated on the plat or where, as here, there never was, in fact, an attempt to survey the land in controversy. Security Land & Exploration Co. v. Burns (Minn. 1904), 193 U. S. 167, 48 L. Ed. 662, 24 S. Ct. 425; Lee Wilson & Co. v. United States (Ark. 1917) 245 U. S. 24, 62 L. Ed. 128, 38 S. Ct. 21; Producers’ Oil Co. v. Hanzen, supra; Horne v. Smith (Fla. 1895), 159 U. S. 40, 40 L. Ed. 68, 15 S. Ct. 988; French-Glenn Live Stock Co. v. Springer (Or. 1902), 185 U. S. 47, 46 L. Ed. 800, 22 S. Ct. 563; Chapman & Dewey Lumber Co. v. St. Francis Levee Dist. .Ark. 1914), 232 U. S. 186, 58 L. Ed. 564, 34 S. Ct. 297.” United States Code Annotated. title 43, section 751, note 60, page 62.

The above authorities are conclusive on the subject.

The lower court found that lot No. 13 and northwest quarter of southwest quarter of section 10, township 11 north, range 2 east, are one and the same tract, and that the location of said tract of land is as located by the parish surveyor of Caldwell parish, and that it is owned by the plaintiff herein.

The judgment of the lower court is correct, and it is therefore ordered, adjudged, and decreed that the judgment be affirmed, with costs.


text:
    No. 2707
    Second Circuit
    PHILLIPS-JONES CORP. v. CASKEY
    (March 24, 1930. Opinion and Decree.)
    (July 2, 1930. Writ of Certiorari and Review Refused by Supreme Court.)
    William H. Cook, of Shreveport, attorney for plaintiff, appellee.
    R. J. O’Neal, of Shreveport, and Huey P. Long, of New Orleans, attorneys for defendant, appellant.
   ODOM, J.

Plaintiff brought this suit to collect of defendant the sum of $752.66 due on open account. The defendant in answer admitted the correctness of the account, but alleged that the said account had been paid. Enlarging his plea of payment, defendant alleged that there had been a transaction or compromise of the claim at 2'5 cents on the dollar,- and that, in accordance with that transaction and compromise, a check for 25 per cent, of the claim had been sent to and received by defendant.

As the correctness of the account is not disputed, it is necessary to consider only the question whether there was in fact a compromise and settlement of the claim and a payment thereof.

The record discloses that defendant became very much involved and owed considerably more than he was able to pay. His largest creditor employed counsel to investigate conditions and, if possible, to collect its claim. This attorney reached the conclusion, after ascertaining the value of defendant’s assets and the amount of his indebtedness, that it would be impossible for any creditor to collect anything like the full amount due, but, on the contrary, was of the opinion that defendant could arrange to pay 25 cents on the dollar of his indebtedness. The attorney was further of the opinion that, if defendant’s creditors attempted to force collection of their claims in full, defendant would be forced into bankruptcy, in which event his creditors would get but very little if anything. This attorney, representing his client and not defendant, wrote a letter to each of the creditors, including plaintiff, in which, he detailed the situation as he saw it, and suggested that the creditors agree to accept 25 cents on the dollar in full settlement of their claims. When plaintiff received this letter from the attorney, it turned the same over to its attorneys in New York City, who wrote the attorney in Shreveport that plaintiff’s claim had been turned over to them for collection, and that they were willing to cooperate with other creditors in making a settlement which would protect their client’s interest. Later on, the attorney in Shreveport, who had been endeavoring to get all creditors to settle, again wrote the attorneys for plaintiff that he had arranged for defendant to pay 25 cents on the dollar, and on April 18, 1924, wrote attorneys for plaintiff as follows: .

“April 18, 1924,
“Mr. Harold H. Strauss, 1225 Broadway, New York, N. Y.
“In re: Phillips-Jones Corporation account with Biggest Little Store.
“Gentlemen: We have about arranged to close this matter out now at 25c on the dollar, and everything is in line, with the exception of five or six very small creditors who have given us considerable trouble over nothing. We hope to have them in line within a few days.
“Please give me written authority to settle this matter off with this debtor and discharge him of further liability to you upon payment of 25c on the dollar. Upon receipt of this instruction I hope to be able to close out with you and the balance of the creditors and send you checks. My fees are being paid by the principal creditors, so there will be no charges against you.
“Sincerely yours,
“Huey P. Long.”

Plaintiff’s attorneys made no reply to this letter, but on May 24, 1924, the attorney in Shreveport who, as stated, was representing the largest creditor of defendant and not the defendant himself, wrote plaintiff’s attorneys in New York, inclosing his personal check for $188.07, which was 25 per cent, of plaintiff’s claim, stating, “which is payment in full of your account against the Biggest Little Store for $752.30.” When this letter and the check were received by the attorneys, they delivered them to plaintiff who, after keeping the check for a few days, returned it with a letter stating that the settlement was not satisfactory and that suit would be instituted for the collection of the full .amount of the claim.

There is no testimony, at all to show that plaintiff at any time agreed to accept less than the full amount of its claim. It is .argued, however, that plaintiff’s attorneys did agree to compromise the claim. However, a reading of the letters written by plaintiff’s attorneys to the attorney in Shreveport discloses that the attorneys themselves did not agree to accept the proposed settlement of 2'5 cents on the dollar. In reply to the letter of March 4th, in which the attorney in Shreveport informed all creditors that a settlement of 20 or 25 cents on the dollar could be obtained, plaintiff’s attorneys wrote the attorney in Shreveport that said letter had been turned over to them by their client and that they were willing to co-operate with him in any plan he might have to protect their client’s interest. Again, on April 14th, plaintiff’s attorneys wrote the attorney in Shreveport asking for further information, and stating that “we are willing to co-operate with you in any plan you may have to protect client’s interest.” Prom these letters the attorney in Shreveport, who was trying to make settlement for his client, who was the largest creditor, inferred, it seems, that plaintiff was willing to accept the settlement offered.

The letters referred to, 'written hy plaintiff’s attorneys, cannot, we think, be construed to mean that they unqualifiedly agreed that their client’s claim should be settled on that basis, and, as we have already stated, it is certain that plaintiff itself did not agree to' make such settlement; and it is also made clear that plaintiff did not authorize its attorney, either in writing or otherwise, to make the settlement. There was never any communication between plaintiff or its attorneys and defendant, but all correspondence was carried on between plaintiff’s attorneys and an attorney for other creditors; the purpose of the attorney in Shreveport who represented this large creditor being to effect a transaction or compromise between the creditors and the defendant.

“A contract of compromise must be reduced to writing.” Civil Code, art. 3071.
“A man to transact must have the capacity to dispose of the things included in the transaction.” Civil Code, art. 3072.

Even if it be said that plaintiff’s attorneys did agree to the settlement, the fact remains that they had no authority from their client to make such settlement. An attorney has no . right to compromise his client’s claim without express authority to do so. Liquidators of Jos. David Co. vs. Berthelot Bros., 118 La. 380, 42 So. 971; Culverhouse et al. vs. Jacob Marx, 39 La. Ann. 809, 2 So. 607; Orr & Lindsey vs. Wm. Hamilton, 36 La. Ann. 790.

It is true, however, that a settlement made by attorneys for their client is binding if ratified by receipt and acceptance of the amount agreed upon. But the testimony in this case shows that, when the check for 25 per cent, of the claim was forwarded to plaintiff, it refused to accept it and returned it.

There was judgment in the lower court for the amount sued for, and we think that judgment is correct; it is accordingly affirmed, with all costs in both courts.


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    No 3796
    Second Circuit
    BARHAM v. BROOKS
    (June 2, 1930. Opinion and Decree.)
    Madison & Madison, of Bastrop, attorneys for plaintiff, appellant.

      W. B. Clarke, of Monroe, attorney for 'defendant, appellee.
   DREW, J.

This is a suit to determine the ownership of a blue horse mule.

Plaintiff bought a blue horse mule in January, 1927. The mule had a fistula and one knee was larger than the other, and there were some scars on the other knee. It was what is known as an “outlaw” mule by mule dealers, that is, hard to handle and vicious in appearance. It was peculiarly shaped, being described as long-bodied and square. During the high water of 1927, the mule disappeared and was next seen by plaintiff in the spring of 1929, in the stable of O. O. Clark in West Monroe.

Clark had at that time sold the mule to defendant and was in the act of delivering him when seen by the plaintiff. Plaintiff instituted this suit to recover the mule. The défense is that plaintiff is mistaken in the mule, and that is the entire question to be decided in this case. There is no question of bad faith on the part of any one connected with the suit.

Plaintiff, a reputable doctor, is positive that the mule is the same mule that he lost in the fall of 1927, and produced several witnesses who had seen the mule when in plaintiff’s possession and saw it again on the day of trial, who swore positively that it is the same mule owned by plaintiff; on the other hand, it is shown by the witnesses for the defense that Mr. Clark bought the mule from a Mr. Renwick a short time before he sold to defendant, and that Renwick purchased it from a negro on his place in the fall of 1926, prior to the time plaintiff claims to have owned the mule; that the negro purchased it in the same year from an auctioneer in West Monroe. Mr. Renwick and defendant testify that the mule has never been out of the possession of Mr. Renwick since he bought it in 1926, except during the high water of 1927, when it was placed in a pasture owned by one Lieber.

Plaintiff relies on the peculiarities of the mule for being so .positive about it being the same mule that he lost; however, it cannot be contended that there is no other such mule as described in this suit. While no two mules may be exactly alike, and one could easily distinguish them if placed side by side, yet when plaintiff has not seen his mule for nearly two years, it is entirely possible that he might be mistaken in his identification upon seeing a mule with the same peculiarities after that long space of time. The greatest peculiarity about the mule is the shape — long-bodied and square — however, there are more than one so shaped.

It is needless for us to discuss the testimony in detail, as it is very conflicting. Tbe lower court rejected the demand of plaintiff, after hearing and seeing the witnesses.

The only question involved is one of fact, and there is no question of bad faith in the case, and none urged by either party.

It is a well-settled principle of law that, where only a question of fact is involved, the judgment of the trial court will not be disturbed, unless manifestly erroneous, and we cannot say that the judgment of the lower court is not correct.

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


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    No. 3706
    Second Circuit
    SMITH v. WILSON
    (June 2, 1930. Opinion and Decree.)
    Henry W. Bethard, Jr., of Coushatta, attorney for plaintiff, appellant.
    Dale, Dale & Dale, of Yidalia, and D. W. Gibson, of Harrisonburg, attorney for defendant, appellee.
   WEBB, J.

This appeal was presented in December, 1929, the judgment appealed from was affirmed on December 31, 1929 (see Smith vs. Wilson, 13 La. App. 437, 125 So. 302), and the appeal is now considered on rehearing granted on motion of plaintiff and appellant.

The suit is to annul a judgment rendered in favor of Fred R. Wilson, defendant here, against J. B. Smith, plaintiff here, in the cause of F. R. Wilson vs. J. B. Smith, No. 5490 on the docket of the Seventh judicial district court of Catahoula parish, La., in which action Wilson, under allegations that Smith was indebted to him and' that he (Smith) was a non-resident of' Louisiana, proceeded in rem, or by attachment, against the property of the debtor, situated in the parish of Catahoula.

There were two writs of attachment issued in the proceeding, one at the time the proceeding was instituted, on August 19, 1927, which was executed by the sheriff, who lost the writ and did not make any return showing the seizure of any property under the writ or service of process, and the other writ, of date April 4, 1928, was issued without any amendment of the pleadings, affidavit, order, or bond, under which the property was again seized, and under which the subsequent proceedings appear to have been based.

Plaintiff attacked the validity of the judgment, on the ground that the court had not acquired jurisdiction, urging that the first writ was abandoned and that the second writ was invalid.

In the original opinion we held that the court had acquired jurisdiction under the first writ and that the second writ was in the nature of an alias writ and the proceedings thereunder a continuation of the former proceedings, and that the court was vested with jurisdiction; but, on further consideration, we are of the’ opinion that the seizure under the second writ cannot be considered, and that the plaintiff abandoned the first writ and the proceedings thereunder.

In proceedings in rem, by attachment against the property of an absentee, it is essential that the requirements authorizing such proceedings should be strictly followed, and that the record and returns of the officer executing the orders of the court should show such compliance. Pugh vs. Flannery, 151 La. 1063, 92 So. 699, and authorities cited. Also Leblanc vs. Perroux, 21 La. Ann. 26.

There was not any return made by the officer executing the writ of attachment and process issued at the time the proceedings were instituted, and while it must be conceded that the loss of the originals of such instruments did not require that plaintiff should begin the proceedings anew and have the property again seized and process served, the record shows that plaintiff elected to take such course rather than to have duplicates of the instruments issued, and plaintiff must be held to have abandoned the original attachment and proceedings thereunder; and the second writ of attachment having been issued without a new affidavit, order, or bond, was invalid, and the court was not vested with jurisdiction under either writ. Erwin vs. Bank, 3 La. Ann. 186, 48 Am. Dec. 447; Pugh vs. Flannery, supra.

The judgment appealed from is therefore annulled and reversed, and it is now ordered, adjudged, and decreed that plaintiff, J. B. Smith, have and recover judgment against defendant, F. R. Wilson, annulling and avoiding the judgment rendered in favor of F. R. Wilson against J. B. Smith in the cause of F. R. Wilson vs. J. B. Smith, No. 5490 on the docket of the Seventh judicial district court of Catahoula parish, La.; and it is further ordered that defendant, F. R. Wilson, pay all costs.


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    No. 3744
    Second Circuit
    KROUSEL v. THIEME ET AL.
    (June 2, 1930. Opinion and Decree.)

      E. L. Walker, of Ruston, and John J. Peters, of Winnfield, attorneys for plaintiff, appellee.
    Cas Moss, of Winnfield, attorney for defendants, appellants.
   DREW, J.

Plaintiff and appellee, Richard Krousel, brought this suit against defendants, Max Thieme and L. A. Nugent, for judgment, individually and in solido, for the sum of $196.47, together, with 5 per cent per annum interest thereon from date of judicial demand, till paid, for damages sustained by reason of a collision between the automobiles of plaintiff and defendants, and the amount sued for is represented by the items of actual damage suffered to plaintiff’s car by reason thereof.

Plaintiff, appellee herein, alleges that Max Thieme on and prior to the date of the collision, December 21, 1928, owned and conducted in the town of Winnfield, a Chevrolet automobile agency under the name of “Max Thieme Chevrolet Company,” and, in the conduct and operation of such business, employed automobile salesmen charged with the duty of covering the territory in and about Winnfield for the purpose of demonstrating and selling automobiles, and that the defendant, L. A. Nugent, was so employed. That Nugent did not have any fixed or regular hours in which to begin or OiUit work, but was at liberty to and did, with the knowledge and consent of Max Thieme, work under said employment during such time and hours as said Nugent saw fit and whenever and wherever he could find a prospect or customer.

That on December 21, 1928, at about 6:20 p. m., while petitioner was returning from Baton Rouge, in his Buick sedan, he met L. A. Nugent, who was going south on the main public highway between Winnfield and Alexandria, and at a point just over in the parish of Grant; that Nugent was driving a Chevrolet automobile (Chevrolet roadster) belonging t'o Max Thieme, and was performing duties arising out of and incidental to his employment, within the scope of his employer’s business; that petitioner discovering that said Nugent was drunk, and, before meeting him, stopped his automobile on the right side of the road, as near the edge thereof as he safely could, but, notwithstanding this precaution, said Nugent ran his car into petitioner’s said automobile and damaged it in the amount sued for, and as shown by itemized bills attached to petition. That plaintiff was in no sense to blame or at fault, and the accident and resulting damage to petitioner’s car was caused solely by tbe excessive speed, carelessness, and negligent driving of said Nugent at the time, and his drunken condition.

The defendants filed separate answers, which urge the same defenses, with the exception that the answer1 of Max Thieme sues in reconvention for $350 alleged damages sustained by defendant’s automobile.

The answers deny that Nugent was on duty at the time of the accident; deny that he was drunk; and aver that all damages sustained by plaintiff were caused solely by plaintiff’s negligence and carelessness in traveling at an excessive rate of speed of 50 or 60 miles per hour, driving on the left-hand side of the road, and operating his car with bright and glaring lights. Contributory negligence is pleaded and that defendant, Nugent, was on the right-hanS side of the road and was operating his car at a moderate rate of speed.

The lower court rendered judgment in favor of the plaintiff and against the defendants in solido for the amount prayed for, and rejected the reconventional demand of the defendant, Max Thieme. Judgment was rendered against the defendant, L. A. Nugent, the driver of the car, the court holding that he was at the time of the accident acting within the scope of his employment and still on duty. From the judgment the defendant, Max Thieme, has appealed.

The most serious question in the case is whether or not Nugent was at the time of the accident performing duties arising out of and incidental to his employment. Was he still on duty? The evidence shows that Nugent was employed by his co-defendant, Thieme, as a car salesman, and that Thieme required him to report at the place of business at 8 o’clock in the morning and to remain on duty until at least 5 o’clock in the afternoon, and that on the day of the accident Nugent had checked out of the garage of defendant, Thieme, and was on his way home. He lived in Rochelle, La., in Grant parish. Thieme’s place of business was in the town of Winnfield, in Winn parish. At the time of the accident, Nu-gent was driving a car owned by Thieme, and was in the habit of being furnished with a car by Thieme to go to and from his home. He testified that he was driving a used car that had a price of $450 on it, and that he would have sold it to any one who wanted it; that if he had made a sale after he left Thieme’s place of business he would get his commission the same as if he had sold it while there; that his duties required him to go wherever there was a “prospect”; and that if he had the opportunity to sell a car at night he would do so and would receive his commission.

Thieme testified that Nugent had the right to sell cars wherever and whenever he could. It is common knowledge that an automobile salesman, working on commission, has authority to sell cars wherever and whenever he can, whether it be night or day. Nugent was driving a car owned by Thieme with authority to sell it if he could, for the price of $450 placed on it by Thieme. He testified that he would have sold it if he had found a purchaser. He traveled from his home in Rochelle, La., to Winnfield, La., and back each day in a car owned by Thieme. We are convinced that Nugent was at the time of the accident as much in the employ of Thieme as he was at any time during the day and that he was acting within the scope of his employment, and that whatever judgment is rendered against Nugent should also be rendered against Thieme..

Nugent did not appeal from the judgment of the lower court, and therefore is not before us.

The evidence in the case is conflicting. There is very strong evidence that Nugent was at least drinking at the time of the accident, if not drunk. The strongest witness for the defendants, Mr. Pete Hawthorn, who rode in the same car and on the same seat with Nugent from Rochelle to the scene of the accident, was not willing to swear that Nugent was not drinking. This court cannot say that Nugent was drunk or under the influence of whisky sufficient to mar his driving, and it is not necessary to reach a decision in the case.

Most of the witnesses in the case are honorable men, including the sheriff of Winn parish, the mayor of Winnfield, and the deputy sheriff of Grant parish, and it is strange indeed that their testimony should be so conflicting. Those who testify for plaintiff, together with plaintiff and his wife, say that plaintiff’s- car was on the extreme right-hand side of the road, and that it did not move after being struck by defendant’s car; that the left front wheel was broken down and that it did not move more than a few inches after being struck. On the other hand, the witnesses for defendants are just as positive that the cars met' in the center of the road and that plaintiff’s car moved 20 feet or more to the right after being hit; that the broken spokes were in the center of the road, and that it was plainly visible where the broken wheel had been dragged across the road. Several eye-witnesses, who were at a filling-station about 100 yards below the place of the accident, say that plaintiff had not stopped his car, and was traveling at a rapid rate of speed, and was in the middle of the road when his car was struck. The lower court undoubtedly did not give much credence to the testimony of the witnesses at the filling station. It was about dark and the road was dusty and no doubt it would have been difficult for them to have seen much of the accident. The accident happened about 20 steps after plaintiff had crossed a one-way bridge. It was necessary for him to have been in the center of the road to cross this bridge, and if he had pulled to the extreme right of the road befbre the accident it would have been necessary for him to have been traveling very slow and to have pulled to the right immediately after coming off the bridge. However, we think that immaterial to the case. If he was on the right of the center of the road, he was within his legal rights. Defendant, Thieme, complains that plaintiff was burning bright lights on his car and that they more or less blinded Nugent. Nugent traveled this road at least twice a day, going to and from his work, and knew of this one-way bridge, and knew that one crossing it necessarily had to be in the center of the road, and it was his duty, when he saw plaintiff about to cross the bridge, to have pulled to his extreme right-hand side of the road, and if the lights on plaintiff’s car were strong enough to blind him, he should have pulled to his right on the road and stopped; but instead of complying with what was his plain duty, he continued on down the road at the same rate of speed he had been traveling, and we are convinced, as the lower court was, that he ran into plaintiff’s car. Alston vs. Cooley, 5 La. App. 623.

The position of the cars after the accident corroborates, to a great extent, the testimony of plaintiff and his witnesses. The case involves purely a question of fact, and the veracity of the witnesses would necessarily have a good deal to do with the finding. The lower court found for the plaintiff, and unless we find his judgment manifestly wrong we will not disturb it. In this case we cannot say that it is.

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


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    No. 3826
    Second Circuit
    THOMAS v. WEIL BROTHERS
    (June 2, 1930. Opinion and Decree.)
    E. B. Cappel, of Alexandria, attorney for plaintiff, appellant.
    White, Holloman & White and R. C. Bauer, of Alexandria, attorneys for defendant, appellee.
   ODOM, J.

Plaintiff is a colored man, sixty-six years old, and was a common laborer on the plantation of defendant. While doing some work in connection with the building of a small garage for defendant’s manager, plaintiff fell and broke his leg. He brings this suit against defendant for damages under article 2315 of the Civil Code, which provides:

“Every act whatever of man that causes damage to another, obliges him by whose fault it happened to repair it. * * * ”

And article 2317 of the Civil Code, which provides that:

“We are responsible, not only for the damage occasioned by our own act, but for that which is caused by the act of persons for whom we are answerable. * * * ”

Plaintiff has appealed from a judgment rejecting his demands. The facts are as follows:

A man named Melady was employed by defendant as manager of its plantation. Me-lady employed a colored man, named Agullard, to construct a small, cheap garage for his own use and benefit. The defendant did not authorize the building of the garage and knew nothing about Melady’s intention to do so. But counsel for plaintiff contends that, inasmuch as the structure was being erected on defendant’s property, defendant is responsible. ■

Under the facts as disclosed, we do not find it necessary to pass upon the point raised, because it is perfectly clear that the injury which plaintiff sustained was not due to the fault or negligence of Melady, the plantation manager, or Agullard, who was employed to do the work.

On the day that plaintiff was injured, he was cutting weeds in the front yard of the premises where the garage was being built. Melady told Agullard that in case he needed any help to call plaintiff. Agullard, it seems, was 'doing the work unassisted, and, according to plaintiff’s testimony, Agullard called him and told him to help him nail on some sheeting. Plaintiff says that, in order to do the nailing, it was necessary for him to stand on something, and gives the following account of how he fell: he says that Agullard said to him:

“ ‘Now, Thomas, you get down and hand me up the roof,’ and in turning to get down the box on which he told me to stand turned and threw me off and broke my leg.”

Again, he said:

- “When the carpenter told me to get down and hand him" up the roof, I turned to get down and this foot turned and the box, and I went down and broke my leg.’’

The plaintiff testified that the box was 2% by 2% feet, and that it was strong enough to hold up his weight, and that he had been using the box and had gotten down from it on two previous occasions. The theory on which it is contended that defendant is liable is that, through his agent, he furnished plaintiff with an unsafe appliance with which to work without pointing out to him the danger. According to plaintiff’s own testimony, the box was sound and not unsafe, and that plaintiff himself procured the box on which to stand, although he says that he was told by Agullard to get it and use it. It is further apparent that plaintiff’s fall was not due to the fact that the box turned, but due to the fact that his foot turned. He says:

“I turned to get down and this foot turned and the box turned and I went down and broke my leg.”

Agullard swore positively that he did not tell or suggest to plaintiff that he stand on the box, but, on the contrary, merely told him to hand him some pieces of tin, and at the same time cautioned him not to climb, as he thought plaintiff was too old to get off the ground. He says that the walls of the garage were not more than 8 feet high, and that the pieces of tin sheeting which he told plaintiff to hand him were 8 or 10 feet long, and that there was no occasion whatsoever for plaintiff to use the box. As to the condition of the box, Agullard testified that he himself had been using it to stand on while doing some nailing, and that the box was sound and not likely to turn . over, if properly placed on the ground. The testimony shows that the - box was 2% by 2% feet, and we can see no reason why it should have turned over, unless carelessly placed. There was nothing dangerous about the use of the box. If it was so placed on the ground as to turn over, that was plaintiff’s fault.

Counsel for plaintiff cited several cases, including Porter vs. Rogers Oil & Gas Co., 139 La. 1050, 72 So. 732, holding that, if “an employer assigns a common laborer to a particular work, at a particular place, and with appliances furnished by him, he is bound to foresee the possibility of an accident which may result from the character of the work and of the appliances so furnished, and the employee has the right to engage in the work with the assurance that the employer will so do, and will protect him, accordingly, against dangers which are not obvious and of which he is not sufficiently warned, either by his employer or by his own experience.”

The cases cited are distinguishable from the case at bar. In the case at bar, there was no danger from the use of the box, except the danger of its turning over, which was necessarily obvious to plaintiff, who himself procured the box and placed it on the ground. Even if it be conceded that Agullard told plaintiff to get the box and use it, there was no necessity for him to warn plaintiff that he should be careful in putting the box down so that it would not turn over. The fact that the box would turn over if carelessly set on the ground was one as well known and obvious to plaintiff as to any one else. But, aside from this, as already stated, the plaintiff says that his foot turned, and it appears that he began to fall on that account.

The judgment appealed from rejecting plaintiff’s demands is correct and is accordingly affirmed, with all costs.