text:
    No. 927
    First Circuit
    BONNIN v. UNION SULPHUR CO.
    (February 8, 1932. Opinion and Decree.)
    Hawkins & Pickrel, of Lake Charles, attorneys for plaintiff, appellant.
    C. R. Liskow, of Lake Charles, attorney for defendant, appellee.
   MOUTON, J.

Plaintiff alleges that while in the service of defendant company in attempting to lift and place on a rack a drill stem weighing about 300 pounds, he sprained and injured his spermatic cord, his vas deferens and his left groin; that when he attempts any physical exertion, bends over or walks, he suffers the most excruciating pains and op account of these injuries he is totally and permanently disabled from performing work of any reasonable character.

He avers that a day or two after he was injured, Dr. Lafargue treated him and sent him to Dr. Watkins of Lake Charles, who has since been attending to him.

He is asking compensation in the sum of $8,000 against defendant company.

His demand was rejected and he appeals.

The proof shows that plaintiff suffered some injury while lifting a drill pipe for defendant company. The pains he experienced as a result of the injury were not serious and it clearly appears from a large preponderance of the evidence were not excruciating at the time of the accident or since, as by him alleged. It is unnecessary for us to give a detailed analysis of the evidence that has lead us to the foregoing conclusion of facts, as it is fully supported by the record.

Plaintiff suffered no hernia, as this is clearly established. The vital issue presented is as to whether he suffered a serious sprain or injury to his spermatic cord.

Dr. Lafargue, the physician who first gave plaintiff medical attention, was asked if plaintiff was not suffering from a strain of the spermatic cord. He answered: “Well, it could be that.” Dr. Lafargue, further, in his explanation of what he had said, testified that a stretch or strain of the spermatic cord could give a pain in the region of the hernia. Testifying along that line, he said that such cases, “as a rule,” cure themselves.

Plaintiff was sent by Dr. Lafargue to Dr. Watkins in April, 1931, for treatment for his injury, which occurred in July, 1930.

Dr. Lafargue was asked by counsel for plaintiff if when plaintiff was sent to Dr. Watkins, he, Dr. Lafargue, had not written counsel that plaintiff was suffering from a strain to his spermatic cord. The doctor answered that he had not examined plaintiff at that time and had taken “his word for it.”

Dr. Watkins, to whom plaintiff had been sent by Dr. Lafargue for treatment, says, he saw him two or three times last summer “after he was injured.” At his last examination of plaintiff, he found nothing wrong with him, no abnormal condition and no “objective symptoms of any injury at all.” Only a litle nodule to the epididymis, no injury to the “spermatic cord,” and none that could disable plaintiff. Dr. Watkins could find no cause for any pain in plaintiff’s left groin, from which he avers he was suffering. He further said that he had never seen a case where any injury to the spermatic cord had resulted from a strain. An injury thereto, he says, might result from a trauma but not from a strain, and there is no proof here that the alleged strain was a result of a trauma.

Plaintiff was also examined by Dr. Bordelon about three weeks before the trial. He found an enlargement of the spermatic cord, that unless, he said, he was “hit directly upon it,” or suffered a trauma, he could not see how he could have suffered any pain up to the time of the trial. All that this doctor could find was an induration of the left spermatic cord, and the only result would have been the evidence of a scarred tissue. Dr. Bordelon could not believe that plaintiff could have been suffering from any pain when he made his examination. He had simply to take his word for it, as there were no objective symptoms to lead him to so believe.

Dr. Holcombe, testifying for plaintiff, was of the opinion that an enlargement of the left spermatic cord . might he very painful, and that it could, have been the result of a strain. Dr. Holcombe, testifying on that subject, said that the inflammation caused by the enlargement of the spermatic cord, according to the “ranking file of my experience in the office,” would, under ordinary conditions, pass off in “six months or less.” On this subject he further states that it would be very unusual for such pains to continue from an injury received “last July.” Such things, he says, “gradually fade out” and when asked if he thought that an injury received at that time to the spermatic cord could disable a man from doing any work, he answered: “That is not the regular run of cases”; that these cases “compensate themselves and there is a gradual cessation.”

The evidence shows that plaintiff, before the accident, was working in the laboratory of defendant company. He returned to his work, excepting, he claims, that after his return he was working only in the laboratory and not in the yard where he also rendered services previously.

T. B. Brown, a witness for defendant company, says that in March, 1931, plaintiff helped him to load on a truck a 600-pound slab, and on another occasion, in April, 1931, he assisted him in unloading a Kelly joint, weighing between 1,600 and 1,800 pounds. The testimony of Brown is that plaintiff made no complaint in giving him this assistance, that “he was hurt.” The proof shows that plaintiff and Brown each lifted one end at a time. Brown explained that the lifting was done by “leverage,” in his answer to a question from counsel for plaintiff.

This lifting by “leverage” we do not think was an impossible feat which the quizzing from counsel seemed to suggest.

In commenting on this phase of-the testimony, the district judge says in his opinion: “I was favorably impressed by the testimony of this witness. Brown.”

We find nothing in the record throwing any doubt on the credibility of that witness who, the trial judge believed, was testifying' to the truth.

We find no ground upon which he could be discredited and which could lead us to believe that he did not testify to what occurred. Such being the situation, it is evident, from the testimony of Brown, that plaintiff was not totally and permanently disabled from performing any work of a reasonable character and was not suffering with excruciating pains after the accident or at the time of the trial. Brown’s testimony is in keeping with the preponderance of the testimony of the physicians, which shows that the accident of which plaintiff complains never at any time incapacitated him from doing work of a reasonable character.

The fact is from the testimony of these experts, that plaintiff could not have suffered an injury to his spermatic cord from which could have resulted any disability. It even appears from the evidence of Dr. 'Holcombe, plaintiff’s expert witness, that the pains resulting from a strain to the spermatic cord would not have lasted more than six months from the date of injury; would have faded away or disappeared after that period of time.

The record shows in this suit that the accident happened July 5, 1930, and that this suit was filed June 1, 1931, nearly eleven months after the alleged injury was suffered.

The d,emand was therefore filed five months after the period of time Dr. Holcombe gave for the continuation of the pains that could have resulted from the injury, taking as true, according' to ' his opinion, that the spermatic cord could have been enlarged and seriously affected by .a . strain which is denied by the other medical experts to whose testimony we have hereinabove referred.

•The logical conclusion is therefore from the testimony of the medical experts and from that of Brown, that plaintiff was not suffering frqm any pains when he filed his suit or later when it was tried; was not disabled or incapacitated from doing work of any reasonable character upon which his demand rests and which was correctly rejected.


source: Caselaw Access Project

author: STEPHENS, J.

license: Public Domain

text:
    No. 4113
    Second Circuit
    HOMER ELECTRIC SHOP v. J. D. WALDRIP & SON
    (February 16, 1932. Opinion and Decree.)

      Truett L. Scarborough, of Ruston, attorney for plaintiff, appellee.
    H. W. Ayres, of Jonesboro, attorney for defendants, appellants.
   STEPHENS, J.

The Homer Electric Company brought this suit to recover from J. D. Waldrip & Son, an alleged commercial partnership, and the individual members thereof, J. D. Waldrip and L. B. Wald-rip, in solido, the sum of $1,128, which represents the balance due on the purchase price of an electric light plant. The plaintiff further sued for recognition and enforcement of a vendor’s lien and chattel mortgage on the light plant.

Judgment was rendered as prayed for, by default, against L. B. Waldrip. J. D. Wald-rip filed an answer and denied therein that a partnership existed between him and his son L. B. Waldrip, and, in the alternative, averred that, if the court should held that such a partnership' did exist, the purchase of the light plant was foreign to the purpose for which the partnership was organized and to the business it conducted, and that said equipment did not inure to the benefit of the partnership, and that its purchase by L. B. Waldrip in its name was unauthorized and not binding on the same. It was admitted in the answer that a “semblance of a partnership” did at one time exist under the name of J. D. Waldrip & Son, but that it was dissolved long prior to the purchase of the electric lighting equipment from plaintiff.

A trial on the issues as thus made resulted in a judgment for the plaintiff against the defendant J. D. Waldrip, and he prosecutes this appeal.

The defendant-appellant, .J. D. Waldrip, filed in this court an exception of no cause or right of action, a motion to remand, and, in the alternative, with reference to the motion to remand, a plea of estoppel, which said exception, motion, and plea will be hereinafter discussed.

The merits of this controversy were disposed of to our satisfaction, and in accordance with our own convictions, by the learned trial judge, who discusses the facts and the law applicable thereto in a written opinion with painstaking thoroughness. The opinion, which we adopt as our own on the questions involved, is as follows:

“Plaintiff alleges in its petition that it sold and delivered to J. D. Waldrip & Son for the price and sum of $1,503 one generator No. 1-1501, serial No. 338388, and one set of batteries, KKG 7 batteries; that plaintiff accepted from defendants as part of the purchase price of said property one old light plant valued in the trade at $375, leaving due on the purchase price thereof the sum of $1,128; that as an evidence of this indebtedness the defendant partnership, through L. B. Waldrip, one of the partners, executed its promissory note for said amount, payable to its own order and duly indorsed, due in 24 monthly installments of $47 each, and secured its payment with a chattel mortgage on the property sold by plaintiff to defendants. The note and chattel mortgage are each dated December 16, 1929, and are attached to and made a part of the petition.
“Service of the petition was made on the partnership and on each of its members. Answer was filed only by J. D. 'Waldrip, who denied liability on the following, among other grounds: That, in truth and in fact, a partnership never did exist between himself and L. B. Waldrip, a fact well known to plaintiff; that he (J. D. Waldrip) individually owned the filling station and garage business conducted under the name of J. D. Waldrip & Son, another fact known to plaintiff, and that L. B. Waldrip, who signed theinote and chattel mortgage, was withoqo authority to bind him in the transaction. In the alternative, defendant pleads that the buying of the equipment and the signing and indorsing of notes are beyond and foreign to the purpose and scope of the business of the partnership, and that, in any event, the sale of defendant’s old light plant by L. B. Waldrip to plaintiff, without defendant’s knowledge or consent, was illegal, null, and void, and, being so, that the whole transaction is illegal, null, and void, and defendant is entitled to the return of his old light plant or to judgment for the value thereof. He prays that plaintiff’s demands be rejected, with costs, and for judgment in reeonvention against plaintiff for the value of the old light plant, etc.
“The evidence shows that J. D. Waldrip entered into the filling station and garage business at Quitman about the year 1926, and from that time until about July 1, 1930, conducted said business, under the name of J. D. Waldrip & Son. He bought and sold gasoline, oil, cigarettes, auto parts, and other things. He charged batteries and repaired cars, and regularly employed about three people in this business. On top of the station • house or garage he had placed a large sign board w-ith the words ‘J. D. Waldrip and Son Gas-Oil — Garage’ printed thereon in Very large letters. On the roadside both north and south of Quitman he. had boards or signs erected conveying about the same information. At least one suit was filed against a debtor of the business under the name of J. D. Waldrip & Son. Statements were mailed to customers under that name. Plaintiff received one such statement for the price of a tire and issued its check, dated October 17, 1929, in payment thereof, payable to J. D. Waldrip & Son. This check bears the indorsement of defendant.
“The evidence further shows that, prior to the date upon which the note and chattel mortgage were executed, plaintiff’s salesman, C. B. Lay, stopped at this station on a number of occasions, and on each occasion found L. B. Waldrip there and, apparently, at least, in active charge of the business conducted there. On November 15, 1929, said salesman and L. B. Waldrip reached an agreement under which plaintiff was to deliver and sell to defendant partnership the light plant equipment in question, and under which plaintiff agreed to buy defendant’s old light plant and allow the sum of $375 on the sale price of the new equipment.
“The new equipment arrived during the early part of December, 1929, and immediately plaintiff had its workmen to unload and set up the new equipment and take out and ship away the old light plant then in use. On December 16, 1929, the partnership, through L. B. Waldrip, executed the note and chattel mortgage, as agreed upon theretofore, and made the basis of this suit. The new equipment was put into use as soon as it was installed.
“Later, on January 24, 1930, L. B. Wald-rip issued his own check for $47, payable to General Motors Acceptance Corporation, the holder of the note, evidently for the purpose of paying the first installment on the note. On March 5, 1930, he issued another check to the same payee for $47 in the name of J. D. Waldrip by himself, for the purpose of paying another installment. However, both checks, were turned down by the bank upon which they were drawn.
“It is further shown by the evidence that defendant J. D. Waldrip for a number of years has been employed by Davis Bros. Lumber Company as timber buyer, and that he devotes all of his time to that work. He devoted none of his time to the filling station and garage business conducted under the name of J. D. Waldrip & Son and visited it no oftener than every two weeks. Mr. Waldrip testified that he employed Billy Bond as manager of the business during the entire year of 1929. He also, testified that his son L. B. Waldrip, worked at the station some, but that he had no authority to make purchases, for the business. He did not state who, if anybody, did have that authority. Billy Bond testified that he was employed as manager and did some of the buying, but that some .of the buying was done by others. He severed his connection with the business in the early part of December, 1929, and had nothing more to do with it. It is not shown who succeeded Mr. Bond as manager, or who managed the business from December 1, 1929, until July, 1930, when defendant leased the business to W. H. Worsham.
“Defendant contends that no partnership existed between himself and L. B. Wald-rip. That may be true. But the evidence abundantly supports, the conclusion that in their business relations with the public they held themselves out as partners. They so held themselves out. to this plaintiff, and that fact alone is sufficient in law to estop them from denying the partnership relation and to render them liable for the debt sued on.
“The jurisprudence of this state is well settled that one who acts in such a manner as to induce others to believe that he is a member of a certain partnership, makes himself liable to them as a partner. Dodd Brown & Co. v. Bishop, 30 La. Ann. 1178; N. O. v. Gauthreaux, 32 La. Ann. 1126; United Chemical Co. v. Gulf, etc., 4 La. App. 623; Frankelite Co. v. Wintiler Electric Co., 9 La. App. 323, 120 So. 505; Chadick-Hayes Prod. Co. v. Pine Grove Grocery Co., 10 La. App. 471, 121 So. 348.
“Defendant further contends that one cannot plead estoppel in such cases who has not himself acted in the good faith belief that a partnership actually existed; that, in the case at bar, plaintiff knew that a partnership did not exist between J. D. Waldrip and L. B. Waldrip; that L. B. Waldrip so informed plaintiff’s salesman before and at the time the transaction in question was entered into. It is argued •that L. B. Waldrip told C. B. Lay, plaintiff’s salesman, that J. D. Waldrip was the sole owner of the business, and that the old light plant was the individual property of defendant. The testimony of Irman McConathy is pointed to as corroborating that fact.
“The evidence is .far from being convincing that L. B. Waldrip conveyed such knowledge to plaintiff’s salesman.
“The evidence is . conclusive that L. B. Waldrip was the active manager of this business from the time Billy Bond left it in the early part of December, 1929, until-it was leased to W. H. Worsham in July, 1930. If another had been ,the manager, defendant no doubt would have so stated. He should have known. While Mr. Bond testified that he was manager until December 1, 1929, I am convinced that L. B. Waldrip was also active in the management. Otherwise, Mr. Bond, as manager, would have discovered that L. B. Waldrip was about to purchase .the new light plant and equipment and certainly would have conveyed information of that fact to his employer. The failure of J. D. Waldrip to say who the manager was after December 1, 1929, until the business was leased in July, 1930, coupled with the positive and uncontradicted testimony of more than one witness that L. B. Waldrip was there, apparently in charge of the business, points to the irresistible conclusion that L. B. Waldrip was the manager during that period.
“During that period of time .the new light plant arrived at the depot and was taken out and set in operation, the old light plant was taken out and moved away, the no'te and chattel mortgage were executed, and the checks of January 24, 1930, and March 5, 1930, were issued to cover installments on the note. In the face of these facts, L. B. Waldrip says he told Salesman Lay that he had no authority to make the trade, and that he would have to see J. D. Waldrip, Eis father, the owner of the business. Irman McConathy did not hear much that was said, but he is sure that he heard L. B. Waldrip tell Lay he would have to see defendant about the trade.
“C. B. Lay positively denies that L. B. Waldrip told him anything of the kind. On the other hand, Lay says that L. B. Waldrip told him that defendant authorized him to sell the old light plant provided he could get $350 for it.
“L. B. Waldrip would have one believe that he opposed entering into this transaction from its very inception. If it were not for his actions such might be a reasonable conclusion. However, his . actions outweigh his words. His actions clearly indicate that he willingly and voluntarily entered- -into the deal with- due deliberation, accepted and used the new equipment with profit to the business, and, in good faith, undertook to pay for it. L. B. Waldrip’s action in the matter is in entire accord with C. B. Lay’s testimony. In other words, the things that L. B. Waldrip did, corroborate the testimony of C. B. Lay, re- ' suiting in the conclusion that L. B. Wald-rip was in error about conveying to C. B. Lay the knowledge that defendant owned the business and that he was without authority to purchase the new light plant equipment.
“I think the prolonged absence from and the continued inattention of defendant to the business, taken in connection with the presence of L. B. Waldrip, his son, in the business, performing duties thát only a manager would undertake to do, were sufficient .to and did lead plaintiff to believe there did exist a partnership between these parties, and that L. B. Waldrip was the manager, and that, as. a result, plaintiff did enter into the transaction in good faith.
“It is further contended that defendant , had the plant shut down as soon as he discovered it in operation and then notified plaintiff to come and get it. If the contract had been legally entered into, then these acts on the part of defendant would not in any way affect the legality of it. Then it is not shown when these things were done. Defendant should have known. Granting, arguendo, that these acts might affect the validity of the contract, if done in a reasonable time, it is not shown when he had the plant shut down. Evidently it was after March 5, 1930, for, undoubtedly, L. B. Waldrip would not have undertaken to make a payment on the note after his father had told him he was not going to pay for the plant. If so, then the plant had been in the garage and in operation for at least two and a half months. His permitting the plant to remain in his garage and to be used for that length of time can be construed in no other light than as a ratification of. the sale and contract. If he did not know it was there, it was certainly his duty to know it, under his defense in .this case. His alleged repudiation' was not made within a reasonable time. Dayton Scale Co. v. Capps. 9 La. App. 649, 120 So. 94; Redmond & Son v. Wood, 6 La. App. 389; Triangle Machine Co. v. Dutton, 13 La. App. 14, 127 So. 54.
“The final and last defense is that the transaction was beyond the authority of L. B. Waldrip and not within the scope of the business of the partnership. Charging batteries was one business carried on there. It was necessary to have power for that purpose and to have light. If the old light plant was not giving proper service, and evidently in the opinion of L. B. Waldrip it was not, it would certainly be in furtherance of the business of the concern to discard the old plant and get a new one — one that would adequately serve the purpose for which it was. used. And it would be good business to trade in the old plant and receive its full value, rather than keep it and not use it. To make such a trade would be, in my opinion, both within the authority of the manager and within the scope of and in furtherance of the business of the partnership. The fact that the old plant was the individual property of defendant and was traded off without his actual knowledge and consent makes no difference.
“It is admitted that there was no partnership in existence at the time this suit was filed. Upon the dissolution of a commercial partnership, the partners are liable in solido for the debts of the partnership. Judgment has. already been rendered against L. B. Waldrip by default and signed.
“For the reasons herein assigned, plaintiff is entitled to judgment in its favor against J. D. Waldrip for the full amount and as prayed for in the petition. And it is so ordered.’’

The exception of no cause or right of action which was presented to this court by J. D. Waldrip, -defendant-appellant, is based on the proposition that a suit against a commercial partnership and the individual members thereof, "founded on a partnership obligation, does not disclose a cause or right of action agains-t the latter. The exception is overruled as it is without merit. A commercial partnership and the individual members composing it are solidary debtors and may be sued in the same action. Civ. Code, art. 2872; Key v. Box, 14 La. Ann. 497; E. B. Hayes Machinery Co. v. Eastham, 147 La. 347, 84 So. 898; American Photo Player Co. v. Simon, 151 La. 708, 92 So. 307; Kelley Springfield Tire Co. v. Oakley et al., 18 La. App. 495, 138 So. 673; First National Bank v. Knighton Bros., 16 La. App. 407, 134 So. 706.

The motion .to remand, and, in the alternative, the plea of estoppel, filed by the defendant J. D. Waldrip, are set forth as follows:

“1st. That judgment was rendered upon default against L. B. Waldrip on the 16th day of January, 1931, and against appearer on the 12th day of February, A. D. 1931, each judgment being for the amount sued for, and that although the Homer Electric Shop, plaintiff, appellee, had alleged and insisted that the machine, the purchase price of which was in controversy, was sold to an alleged partnership of J. D. Waldrip and L. B. Waldrip, known as J. D. Waldrip & Son, and although said plaintiff, appellee, had contended and insisted that said property was not sold to L. B. Waldrip, co-defendant, it did on .the 14th day of February, 1931, cause a writ of fieri facias to issue on the judgment rendered against L. B. Waldrip and during the pend-ency of this appeal and did cause the Sheriff of the Parish of Jackson, State of Louisiana, to seize the machine, the purchase price of which is sought by this suit and which is contended .to belong to J. D. Waldrip and/or the partnership of J. D. Waldrip & Son, as the property of L. B. Waldrip and that following said seizure said property, on the, 20th day of March, 1931, was sold under said writ of fieri facias.
“2nd. Appearer shows that said seizure and sa.le of said property was tantamount to an admission that his contention that the property was sold to the aforesaid L. B. Waldrip was true and correct and that accordingly, to the end that justice and equity might be done to all parties, this record should be remanded in order that the aforesaid facts may be proven.
“3d. In the alternative, should the court not remand this suit, then and in that event appearer shows that the aforesaid seizure and sale of .the property in controversy was an admission that his contentions are not correct and that accordingly the Homer Electric Shop, plaintiff, appellee, is estopped from contending otherwise.”

Conceding the facts as thus alleged to be true, we cannot conclude therefrom, as does the mover, that the seizure and sale of the light plant was tantamount to an admission that the property was sold to L. B. Waldrip instead of the partnership.

The plaintiff obtained a final judgment against L. B. Waldrip for the full amount sued for, with recognition of its vendor’s lien and chattel mortgage against the property in question. Therefore, in seizing the property and enforcing the judgment against it, .the plaintiff did not change its position, but was merely asserting the rights, which it had prayed for in its petition and which were judicially recognized. It' is true that the mover herein owned an undivided one-half interest in the property by virtue of the admitted dissolution of the partnership, but he acquired that interest subject to plaintiff’s chattel mortgage.

If this defendant objected to that portion of the judgment against his son L. B. Waldrip which recognized plaintiff’s chattel mortgage against the property, his interest was sufficient therein upon which to base an appeal; or, if he objected to the seizure of his undivided interest in the property, his remedy was by third opposition, in the court of original jurisdiction. •

This view of the subject-matter disposes of both the motion to remand and the plea of estoppel. They are overruled, and the judgment appealed from is affirmed.


author: McGREGOR, J.

text:
    No. 4003
    Second Circuit
    CHESTINE LAND CORP. v. SCHULER
    (November 18, 1931. Opinion and Decree.)
    Aubrey M. Pyburn, of Shreveport, attorney for plaintiff, appellee.
    Jas. ~W. Jones, of Natchitoches, attorney for defendant, appellant.
   ON MOTION TO DISMISS THE APPEAL

McGREGOR, J.

This is a petitory action wherein plaintiff prays to be recognized as the owner of a certain tract of land in Natchitoches parish and to be placed in possession of the same. The defendant alleges his ownership to the same tract of land by virtue of having entered it under the homestead laws of the United States, and alleges further that, after he had thus entered the land, he made improvements thereon costing and valued at the sum of $845, all with the knowledge of, and without any objection from, the plaintiff. He prayed that the plaintiff’s . demands be rejected, and in the alternative that, if the plaintiff should be decreed to be the owner of the land in controversy, there should be judgment in reconvention in his (the defendant’s) favor for the sum of $845, the value of the improvements.

On trial of the case, there was judgment in favor of the plaintiff recognizing it to be the owner of the land and entitled to the possession thereof. There was also judgment in favor of the defendant for the sum of $510 for his improvements. Plaintiff was given thirty days in which to elect whether it would pay the amount of the judgment for the improvements or permit the defendant to take possession of and remove them from the premises.

Orders of appeal were granted to both parties; the devolutive appeal ’ bond being fixed at $150 and the suspensive “according to law.” The defendant alone perfected an appeal by making and filing a bond in the sum of $150. In the body of the bond it appears to be styled as both suspensive and devolutive. Plaintiff has filed a motion to dismiss the appeal, for two reasons, to-wit: (1) That the trial court did not fix the amount of the¡ :sus-pensive appeal bond to be given by the defendant; and (2) that the transcript of appeal lodged in this court does not contain the testimony taken on the trial of the case.

It is true that, as to the defendant, the court should have fixed the amount of the suspensive appeal bond, but the amount of the devolutive appeal bond was fixed, and the defendant made and filed a valid bond in that amount. In so far as the bond is concerned, therefore, the defendant’s appeal is certainly good as a devolutive appeal, though not as a suspensive. The transcript of appeal contains a considerable number of documents filed in evidence, on which the trial court appears to have based its judgment. We have not been told what evidence has been left out of the transcript.

While the appeal bond of the defendant refers to the fact that both suspensive and devolutive appeals were granted to him, since he has made bond in the sum fixed by order of the court for the devolutive appeal, we are not necessarily justified in concluding that he is contending for a suspensive' appeal, particularly since no appearance was made for him on the trial of the motion to dismiss, but, in order to keep the record' straight, we have decided to sustain the motion to dismiss, in so far as the defendant might be contending for a suspensive appeal.

It is therefore ordered, adjudged, and decreed that the appeal of the defendant, in so far as it may be contended for as a suspensive appeal, be, and the same is hereby, dismissed, but as a devolutive appeal it be recognized and sustained and remain on the docket of the court.


text:
    No. 4082
    Second Circuit
    TRUSSELL v. LAND ET AL.
    (January 14, 1932. Opinion and Decree.)
    (February 16, 1932. Rehearing Refused.)

      C. B. Roberts, of Jackson, Miss., attorney for plaintiff, appellee.
    Barksdale, Warren & Barksdale, of Ruston, attorneys for defendants, appellants.
   STEPHENS, J.

This is a suit to foreclose a mortgage by ordinary process. It is alleged that the indebtedness secured by the mortgage is evidenced by two promissory notes for the sums of $303 and $33.0, subject to certain admitted credits. The notes as described in the petition and filed therewith are not clearly identified by the description in the act of mortgage.

The defendant C. H. Land, the mortgag- or, assuming the position that the notes sued on were not those secured by the mortgage, filed a motion to produce the notes actually described in the instrument. On September 8, 1928, the motion was tried and sustained, and the suit dis-. missed as of non-suit. On January 9, 1931, on motion for rehearing (Judge E. L. Walker having succeeded Judge S. D. Pearce on the district bench in the meantime), the former ruling was set aside and the case reinstated. The defendant Land then filed an exception of no cause or right of action, and upon its being overruled answered the petition. He did not deny the execution of the notes sued on, but claimed additional credits thereon. He did, however, specifically deny that the mortgage was given to secure the notes. The defendant C. L. Livingstoil, co-maker with the defendant Land on the note for $330, but not a party to the mortgage contract, made no appearance.

Judgment was rendered in favor of plaintiff and against both defendants. The defendant C. H. Land prosecutes this appeal.

The motion to produce the notes described in the mortgage and the exception of no cause of action were, we think, properly overruled.

The motion to produce, if sustained, could only be enforced by the dismissal of the suit. There could be no legal justification for the dismissal of the suit, as the plaintiff was entitled to have the question tried as to whether she was entitled to judgment on the notes sued on irrespective of the question of the validity of the mortgage or collateral obligation.

The exception of no cause of action was likewise leveled at the invalidity of the mortgage. It must be conceded that the petition discloses a cause of action in that it sets up the notes as the foundation of the suit. If two separate and distinct demands be set up in the same suit an exception of no cause or right of action may lie to eliminate the one while the other is maintained. But a mortgage cannot be the foundation of a separate and distinct demand from the obligation which it purports to secure, and if a cause of action is stated as to the principal obligation, an exception of no cause of action should be overruled as to the collateral obligation even though its invalidity is apparent.

The plaintiff is the surviving spouse and legal representative of R. B. Trussell. The notes sued on were acquired by her deceased husband long prior to the execution of the mortgage purporting to secure them. The one for $303.60 is dated October 19, 1917, and is identified with a chattel mortgage as shown by the paraph on its face. The other for the sum of $330, dated October 21, 1918, is unidentified with any other instrument and bears the signatures of both the appellant Land and the defendant Livingston. The mortgage sought to be foreclosed bears date October 14, 1921, acknowledges an indebtedness of $600, and provides that “for the reimbursement of which sum and as evidence of said indebtedness he (the defendant Land) has made' and subscribed his certain promissory note of even date herewith, for the sum of six hundred dollars 2 promissory notes now on record payable to the order of R. B. Trussell.” The black letter words were written into the instrument on a typewriter; the other quoted words appear in the printed form. (The black type ours.)

The defendant Land admitted on cross-examination that at the time the mortgage was executed his entire indebtedness to Trussell was represented by the two notes herein sued on, thereby admitting that the mortgage was given to secure the indebtedness evidenced by the said notes. His explanation of his position in defense of this suit is that it was agreed between him and Trussell that the old notes were to be canceled, thereby relieving Livingston as co-maker on the note for $330; and that a new note for $600 secured by the mortgage was to be given by him as representing the entire indebtedness. He testified that Trussell did not surrender the old notes, and for that reason, he did not give the new one. He admitted that before signing he saw and read the words in the mortgage: "2 promissory notes now on record.”

A mortgage, broadly speaking, is governed by the same rules of construction and interpretation that apply to written instruments generally. The printed part of mortgages is as much a part thereof, and as strongly binds the parties thereto as the written part, but if there is an irreconcilable conflict between the two, the written part must prevail. 19 R. C. L., Mortgages, section 76.

A construction should be adopted which will sustain the mortgage as an operative and effective instrument rather than one which would defeat or destroy it. Contradictory clauses and ambiguities should be resolved against the mortgagor rather than the mortgagee. 41 Corpus Juris, Mortgages, par. 338.

In the mortgage herein sought to be enforced, there is a direct conflict in the description of the indebtedness as shown by the printed words and the written words. The printed language described the indebtedness to be secured as evidenced by a promissory note of even date, in the sum of $600; and the written language described the indebtedness to be $600, evidenced by two promissory notes now on record. The written language must prevail, but it is uncertain and ambiguous, and only becomes certain and free from ambiguity in the light of the oral admissions of the mortgagor, which were made without objection from the defendant. The defendant did object to the specific question as to whether the mortgage was given to secure the identical notes sued on, and the objection was overruled, and evidence of that fact admitted by the court, but it seems that the objection was abandoned, as the testimony on the point was developed fully by the defendant without reservation at a later stage of the trial.

We think the oral testimony, admitted without objection, should be considered, and that when considered it becomes apparent that the description written in type in the mortgage, “six hundred dollars 2 promissory nctes now on record,” referred to the notes sued on, which were the only existing instruments evidencing indebtedness as between R. B. Trussell and the defendant Land. At the time the mortgage was executed the amount due on the two outstanding notes was approximately $600, which was the amount acknowledged to be due and secured by that instrument.

We have carefully considered the credits allowed on the notes by the district judge and agree with his finding in that respect.

For which reasons assigned, we are of the opinion that the judgment appealed from is correct and should be affirmed, and it is so ordered.


author: DREW, J. McGREGOR, j. DREW, J.

text:
    No. 4197
    Second Circuit
    ALLEN v. GEORGE E. BREECE LBR. CO.
    (January 14, 1932. Opinion and Decree.)
    Argued before DREW, McGREGOR, STEPHENS, JJ.
    Vinson M. Mouser, of Columbia, attorney for plaintiff, appellee.

      Hudson, Potts, Bernstein & Sholars, of Monroe, attorneys for defendant, appellant.
   DREW, J.

This is a suit under the Workmen’s Compensation Act, and the sole question for decision is the extent of injury to plaintiff’s foot.

Plaintiff contends that he has entirely lost the use of function of his right foot and is entitled to 65 per cent of his weekly wages for a period of one hundred and twenty-five weeks. Defendant contends that, although the foot was injured to such an extent as to amount to total loss of use of function of that member for a period from October 23, 1929, to June 9, 1930, during which time compensation was paid, that on June 9, 1930, and ever since, his foot has been entirely well, and it owes no further compensation.

The lower court rendered judgment for plaintiff for 65 per cent of his weekly wages for a period of not more than one hundred twenty-five weeks, less the number of weeks previously paid by defendant, and from this judgment defendant has prosecuted this appeal.

Plaintiff was checking lumber and getting slabs straight on the slacker. In describing the slacker, we will use plaintiff’s, own words:

“Q. What kind of machinery was the slacker ?
“A. Where we get the slabs off the chain to saw.
“Q. How did the chains work?
“A. Come off from the roller and fall on the chain and the chain carries them to the saw.
“Q. Did the chains carry the lumber to the saw?
“A. The slabs.”

This, chain had spurs on it to hold the slabs. Plaintiff was caught in one of these spurs on the chain where it comes over the table and his foot was pulled under the end of the board or .side of the board. Plaintiff described the injury received in the following language: “My foot was torn — the top torn off.” All the flesh and ligaments leading to his toes, except the big toe, was. torn off.

The accident occurred on October 23, 1929, and plaintiff was confined in the Riverside Sanitarium for forty-one days. He used crutches from that time until April or May, 1930, and since laying aside his crutches, has continued to use a cane for assistance in walking. Plaintiff testified that he had not been able to stand on his foot to do any work up to the time of trial; that he could only walk three blocks with the assistance of a cane, before giving out; and, when asked what was the main disability or inconvenience with his foot, he said:

“A. It gives out. This side of my loot does, and my ankle, and it runs up in my ankle. The main part is from the ankle to the foot.”

He says, the foot gives down and there is a weakening up through his leg.

This case was tried in the lower court in April, 1931, and plaintiff testified to the condition of his foot at that time, as follows:

“Q. What is the condition of the top of your foot and toes at the present time?
“A. Scar from the injury and my toes are stiff, and my foot.
“Q. Does the scar seem to be grown to the foot?
“A. Everything is grown tight and my toes are stiff.
“Q. Your four toes are stiff?
“A. Yes, sir.
“Q. Can you put those toes on the floor? Will they straighten out?
“A. Cannot put them on the floor, no, sir, with my hand. I can put my big toe down.
“Q. Have to push the others down with your hand?
‘‘A. I can’t push them down with my hand. * * *
"Q. Are you able, Mr. Allen, to stand on your foot and use it to get about enough to do any kind of ordinary work that requires standing up and walking?
“A. Not all of the time.
“Q. How is that?
“A. Not all the time. If I had time-give me time to rest — but I couldn’t stand on my foot all day.
“Q. You state you can only stand and walk about three blocks without stopping?
“A. That’s all.”

Dr. L. A. Masterson testified that he examined plaintiff’s foot in October, 1930, about one year after the accident and injury; that plaintiff gave him a history of the case, as testified by plaintiff; and that from his examination he found the following (using his own words):

“Well, on the examination in October, 1930, he had an adherent lineal scar on the top of the right foot. This scar was say from lateral to medial, toward the toes; wide, ragged edge scar. This scar was attached to the top structures of the foot. The tendons were incorporated in the scar. He was unable to either flex his foot upward or downward, dorsal or vertical flex-ion, except his first toe. He had some motion of the big toe. There 'was some swelling of the foot at this time, and there was tenderness over the region of the scar on deep pressure. He was unable to bear his weight on his toes of the right foot, nor could he raise his weight on the toes of the right foot. He walked with a decided limp, with the aid of a cane.”

He further testified that the condition of the foot would remain permanent, permanent loss of function, and that plaintiff could not use the foot to do ordinary work, and that the pain caused by use of the foot will always remain permanent.

Dr. R. W. O’Donnell was called on by defendant to examine plaintiff. Defendant did not summon him to court and plaintiff called him and used him as his witness. Dr. O’Donnell examined plaintiff in December, 1930, and testified to his findings as follows:

“A. The conditions at the time showed considerable scar tissue on the top of the foot — right foot — and complete impaired flexion and extension of the toes of the right foot. But not involving the great toe of the right foot.
‘‘Q. Can he lower the second, third, fourth, and fifth toes to the floor?
“A. No, sir. He can’t get them to the floor but he can bend them over. He can get them on a straight line but cannot bend them.
“Q. Up and down?
‘‘A. Up and down.
“Q. So far as they are concerned they are stiff?
“A. Yes, very little motion in the toes.
“Q. Does pressure on scar tissue illicit pain? (Correction, ‘elicit.’)
“A. Not necessarily in sear tissue, but the scar tissue acts as a foreign body on the tissues below and forms pain.
“Q. Causes pain by the scar tissue acting as a foreign body and pressing on the tissues below?
“A. Yes, sir.
“Q. Would he experience pain in walking on the foot?
‘‘A. Wherever he would put pressure or strain on the scar it may cause pain.
“Q. Normal use in walking would put that pressure on there, would it, doctor?
“A. Well, if he was using his toes, 'throwing his weight on his foot, it would very likely cause some pain, because the scar is attached and doesn’t move.”

Dr. O’Donnell further testified that he considered plaintiff’s foot 25 per cent insufficient for manual labor and that he-could not do a full day’s work; that his condition was permanent and that he will always have pain in using the foot. He says plaintiff could do light work, provided he could sit down and rest when he grew tired. If he could not sit down and rest, he would play out before eight hours.

Defendant offered Dr. J. T. French, the regular physician for the defendant company, who testified that he examined plaintiff immediately after the accident. He found the skin and surface of the foot abrased and the ligaments of four toes torn loose, the four small toes.; that he treated plaintiff until June, 1930, when he considered him well. The last time he saw and examined plaintiff’s foot was with Dr. O’Donnell in December, 1930. Dr. French testified that it was impossible to say definitely as to the degree of pain in an injury of that nature, but, in his opinion, there should not be any pain. When he released plaintiff in June, 1930, he was in a condition to do ordinary work and that he so advised the defendant company. He does not think the foot will ever get any better. He further testified' that plaintiff is sixty years of age, and the injury involved nothing but the four toes on the right foot and the adhesions of the scar proper on top of the foot, and that caused a stiffness of the' toes. Dr. French sees no reason why plaintiff could not walk without a cane. On cross-examination, he testified in part as follows:

“Q. You don’t think his foot will ever get any better?
“A. No, sir.
“Q. The flesh and muscles were torn off, scrrped- off the top of the foot, weren’t they?
“A. Yes, s.ir.
“Q. Clear to the bone, so to speak?
“A. The bone was not exposed, but down almost to the bone. The skin and muscles on top of the foot are very thin. It was down to the ligaments proper.
“Q. No particular muscle left on top of that foot, is there?
“A. Granulated in by granulated tissues.
“Q. What he has there is a skeleton of a foot with skin stretched over it and the scar is fastened to all four of the toes?
“A. Yes, sir.
“Q. You notice him limp?
"A. Yes, I noticed that.
“Q. You notice the use of the cane?
“A. Yes, sir.
“Q. You are not prepared to say that he cannot walk without that cane?
“A. It’s my opinion that he can.”

The manager of the defendant company testified that he offered plaintiff a job sweeping, where he could sit down or rest for a moment, if necessary, and also offered him a job sitting down running a driller, and plaintiff refused both. Plaintiff denies that he was offered the jobs.

For reasons unnecessary to state, we have carefully reviewed the testimony of each witness in the case and are convinced that the preponderance of the testimony shows that plaintiff has totally lost the use of function of his right foot, within the meaning of the Workmen’s Compensation Act of Louisiana: We know of no better test of the loss of use of function of a member of the body, that has not been amputated, than the inability to perform ordinary labor, due to the injured member.

Plaintiff and the two doctors who testified in his behalf are corroborated, we think, very strongly by the testimony of the manager of the defendant company, who testified that after defendant’s doctor had pronounced him well, he offered him jobs that would not require plaintiff to stand on or use his foot. If he was well, there was no reason for him. to be shown such favors and there is no reason given why his own job was not offered to him.

Our interpretation of section 8, subsection 1, subd. d, par. -7, of the Workmen’s Compensation Act of the State of Louisiana, as. amended by Act No. 85 of 1926, and section 8, subsection 1, subd. d, par. 15, is that where the injury to the foot, which is not amputated, is such as to prevent an ordinary laborer from performing ordinary labor for a day of eight hours, as was his custom before the accident, he is entitled to compensation at the rate of 65 per cent of his. weekly wages lor a period not to exceed one hundred twenty-five weeks. To hold otherwise would work an extreme hardship on one who has an injured foot, as above set forth, for common reasoning tells. us that one who is disabled from performing a full day’s work of eight hours cannot secure a job at a sawmill or any other industrial plant. This doctrine, we think, is laid down in the following eases decided by this court: Dykes v. Ruddle, 14 La. App. 106, 128 So. 686; Carroll v. International Paper Co., 14 La. App. 532, 122 So. 131. And by the First Circuit Court of Appeal in the case of Wells v. New Amsterdam Casualty Co., in 11 La. App. 284, 123 So. 417.

We find no error in the judgment of the lower court, and it is affirmed, with all costs.

McGREGOR, j.

(dissenting). On October 23, 1929 plaintiff was in the employ of defendant, who was engaged in the general sawmill business. On that date he was handling slabs of timber and keeping them straight on what is known as the ‘‘slacker.” While he was performing these duties, his right foot was caught in the machinery and severe injury was inflicted upon the top of it. The skin and surface of the foot were abrased and the ligaments of the four small toes were torn loose. He wa.s immediately sent to a sanitarium, where he remained for forty-one days and received treatment. At the end of this time he was removed to his home and had to ■ use crutches until about April or May, 1929, and from then on used a cane in walking. On June 9, 1930, he was discharged by the defendant’s physician, Dr. J. T. French, and declared to be well and able to resume work. He denies that he has ever been able to do any work since the discharge and says that he cannot walk without the use of a cane. The defendant .had been paying him regular compensation for total disability up to the date of his discharge, but from that date it refused to pay any more.

The plaintiff has a foot injury pure and simple, and the law applicable to the case is section 8, subsection 1, subdivision “d,” paragraph 15, of the Workmen’s Compensation Law of Louisiana, and reads as follows:

“In all cases involving a permanent partial loss of the use of function of the member mentioned hereinabove, compensation shall bear such proportion to the amounts named herein for the total loss of such member as the disability to such member bears to the total loss of the member, provided that in no case shall compensation for an injury to a member exceed the compensation payable under this act for the loss of such member.”

The only question to be determined is the proportion of permanent loss of the use of the foot that has been suffered by the plaintiff.

Plaintiff’s right to compensation depends solely upon the proportion of disability to his foot, and not upon his incapacity to hold a job. One might have one’s foot amputated and on account of it might be wholly incapacitated for holding the job in which the injury was received, and yet compensation would be limited to one hundred twenty-five weeks. If one should suffer the total loss of .the use of a foot, that would be equivalent to having the foot amputated and the compensation would be limited to one hundred twenty-five weeks, even though the condition existing in the foot should cause total incapacity for holding the job in which the foot injury was received. Likewise, if one should suffer such an injury in the foot as to amount to the permanent loss of one-half of its use, compensation would be awarded for one-half of 65 per cent of the wages for a period of one hundred twenty-five weeks, notwithstanding the fact that the partial disability of the foot might cause total incapacity for holding the job in which the injury was received. Finally, if one should suffer an injury to the foot which for many weeks totally disabled it and then settled into a condition such as to result in a permanent partial loss of the use of the foot, compensation would be awarded on the basis and for the period of a foot injury,' and not on the inability to hold, the job in which the injury was received. In other words, compensation would be awarded for 65 per cent of the wages for the number of weeks during which the total loss of the use of the foot lasted, and for the rest of the one hundred twenty-five weeks the compensation would bear such a proportion to 65 per cent of the wages as the disability would bear to the total loss of the use of the foot.

In this case the plaintiff evidently suffered the total loss of the use of his foot from the date of the injury to June 9, 1930, or an approximate period of thirty-two weeks. At the time of the trial he was. walking with the use of a cane and was contending that he was still suffering the total loss of the use of his foot. He testified in his own behalf that he had not done a day’s work since the date of the injury and that the disability on his foot consisted of a weakening or giving down. Nowhere in his testimony ■ does' he speak of any pain in describing the condition of his foot at the time of the trial. He states that his four small toes are stiff, and that the skin on top of his foot is tight, and that consequently he cannot do any kind of ordinary work that requires, standing up and walking all the time.

Dr. L. A. Masterson, a witness for the plaintiff, testified that he examined him in October, 1930, a year after the injury and again about a week before the trial. On cross-examination he testified as follows:

“Q. The swelling has gone out of that foot, has it not?
“A. It has now.
“Q. As I understand it about the only disability in that foot is the scar tissue has grown, in mending, to the tendons of the second, third, fourth and fifth toes, and will not allow proper flexion either up or down?
“A. Yes, sir.
“Q. You think that man could do light work now, Doctor?
“A. I think he could do light work.
“Q. How long do you think he has been in that condition?
“A. Which condition?
“Q. Where he has been able to do light work?
“A. I have not seen him enough to know that.”

Dr. R. W. O’Donnell, another witness for plaintiff, on direct examination said:

“Q. With his foot in the condition it is in can he hold an ordinary job of manual labor, where it requires standing as much as eight hours a day? Standing and walking eight hours a day?
“A. I estimated his foot, to do that, was seventy-five per cent, — I consider about twenty-five per cent inefficient for manual labor.”

On cross-examination he said:

“Q. What do you estimate the disability of that foot to be, Doctor?
“A. About twenty-five per cent.”

Dr. J. T. French, a witness for the defendant, testified that he treated the plaintiff from the date of the injury, October 23, 1929, until June 9, 1930, when he discharged him as cured. He stated that the disability was total for a period of at least four months, and that from then until June 9 it was partial, and that from then to the time of the trial there was none.

■The above three physicians are the only ones testifying in the case. Of the two sworn for the plaintiff, Dr. Masterson says that he can do light work, and Dr. O’Donnell is positive that the loss of the use of the function of the foot is not more than one-fourth. That is all the expert medical testimony produced by the plaintiff. Dr. French, testifying for th'e defendant, and basing his testimony on his observation of plaintiff during the entire time that he treated him, says that he is of the firm opinion that at the time of the trial plaintiff was suffering from no disability at all in his foot. In all fairness I think that plaintiff should be bound by the testimony of his own witnesses.

In the majority opinion it is stated that plaintiff is corroborated in his contention for total disability of his foot by the fact that the defendant offered him light work —jobs that did not require him to stand on or use his foot. The testimony of the defendant on this point was given by George E. Breece, manager of the defendant company, and is as follows:

“Q. You the manager of the Breece Lumber Co. of Monroe?
“A. Yes, sir.
“Q. Please state whether or not on June 9, 1930, you offered Mr. Allen a position in sweeping out at the same salary he was getting?
“A. Offered him a job sweeping, and offered him a job sitting down running a driller and he refused to do that work.
“Q. He refused to do that work?
“A. Never worked. * * *
“Q. That job running a driller he would not have to stand on his feet?
“A. No.
“Q. And sweeping, he could rest when he wanted to?
“A. That’s, the way I do all fellows that are injured.
“Q. A one-legged man could handle a sweeping job?
“A. I don’t employ one-legged men.
“Q. If you did he could do it?
“A. No, sir, not in my plant.
"Q. And the sweeping job, Mr. Allen could rest as often as he wanted to?
“A. Yes, sir.
“Q. If he needed rest every five minutes he could sit down and rest?
“A. That was satisfactory.
“Q. If he needed rest every minute he could have done that?
“A. All he had to do was just report for work.”

My appreciation of this testimony is that the defendant was willing to make every possible concession to the plaintiff in the matter of assisting him with work. I see nothing in this offer that should be construed as an admission in regard to the disability of the plaintiff. But be that as it may, the plaintiff denies absolutely that the defendant made such an offer.

In the majority opinion it is stated in effect that where the injury to a member, if not amputated, is such as to prevent an órdinary laborer from performing ordinary labor for a day of eight hours, as was his custom before the accident, the injured party is entitled to compensation at the rate of 65 per cent of his weekly wages for a period not to exceed the period during which compensation would be due if the member were a total loss. I cannot agree to this statement of the law. It is true that it is the unbending policy of the courts to interpret the Compensation Act liberally in favor of the laborer, and this is right and fair. But there are two outstanding facts, that must be considered in this case: (1) Loss of the use of the function of the member is not measured by disability to hold the same job as was held when the injury was received, and (2) the plaintiff must actually prove his case just as is required in ordinary cases. Plaintiff produced two witnesses in his behalf— both reputable physicians whose testimony is based on recent physical examinations. One says he has lost one-fourth of the use of his foot and the other says he can do light work. The defendant’s witness, the physician who treated the plaintiff, says he thinks he has the full use of the foot. Under that state of facts, I think that the most liberal judgment that could be rendered would be for one-fourth of 65 per cent of $15 for ninety-three weeks, beginning June 9, 193Ó.

'' The opinion of the majority relies on three cases decided by the Courts of Appeal of this state.

Dykes v. Ruddle, 14 La. App. 106, 128 So. 686. In this case the court states that the testimony is conflicting as to the condition of the plaintiff’s leg. In the present case that is not true, in that there is no testimony outside of the plaintiff when testifying in his own behalf that even contends that he has lost the total use of the function of his foot. One says he has lost one-fourth, another says that he can do light work, and the last says he has the full use of the member.

Carroll v. International Paper Co., 14 La. App. 532, 122 So. 131. In that case the evidence was “conflicting and irreconcilable,” and the doubt was resolved in favor of the plaintiff. In this case I find no such condition.

Wells v. New Amsterdam Casualty Co., 11 La. App. 284, 123 So. 417. The testimony was apparently conflicting, but the court was able to reconcile it in favor of the plaintiff. In the present case no physician could be found who would say that plaintiff had lost all the use of his foot.

I cannot agree with the finding of the majority opinion, and find no support for the opinion handed down in the cases cited and relied upon. I, therefore, respectfully dissent.

DREW, J.

On January 14, 1932, judgment was rendered by this court in the above numbered and styled cause, and on February 3, 1932, the wife and children of the plaintiff, C. C. Allen, appeared by motion and showed to the court that C. C. Allen departed this life on November 28, 1.931. As the plaintiff was dead before judgment was rendered by this court, it necessarily follows that said judgment was without effect and a nullity.

In the motion above referred to, the wife and children of the deceased plaintiff, C. C. Allen, pray that they be substituted as parties plaintiff in the suit for C. C. Allen, deceased. It is therefore ordered, adjudged and decreed that the judgment of this court rendered in this case on January 14, 1932, be now set aside and annulled, and the case be replaced on the docket of this court for the purpose of trial. It is further ordered that Mrs. C. C. Allen, Bill Allen, Mrs. Mabel Jackson, Carl Allen, Clyde Allen, Mrs. Ruby Keever, and Alfred Allen, all of age, be and they are hereby substituted as parties plaintiff in this suit in the place and stead of C. C. Allen, now deceased, and are authorized to prosecute this suit and stand in judgment herein.


author: DREW, J.

text:
    No. 4179
    Second Circuit (Second Division)
    BOLT v. SUCCESSION OF BOLT
    (January 14, 1932. Opinion and Decree.)
    (February 16, 1932. Rehearing Refused.)
    (March 30, 1932. Writs of Certiorari and Review Refused by Supreme Court.)
    Herndon & Herndon, of Shreveport, attorneys for opponent, appellee.
    John B. Files and Bryan E. Bush, of Shreveport, attorneys for defendant, appellant.
   DREW, J.

William H. Bolt died in the parish of Caddo on August 21, 1929, leaving a widow and some major children by a former marriage, and two minor grandchildren; namely, A. J. James, Jr., and Emily Jane James.

The succession owed debts, and one of deceased’s sons, C. Oscar Bolt, was appointed administrator. The succession property was sold and a provisional account filed and advertised by the administrator, at which time Mrs. Mary C. Bolt, widow of the deceased, filed an opposition to said account, alleging that she was in necessitous circumstances and did not possess in her own right property to the amount of $1,000, or any portion thereof, and that she was entitled to receive from the succession $1,000, to be paid her by preference and priority over all other debts, except the expense of selling the property, as there are no vendor’s liens and conventional mortgages. She alleged that she had requested the administrator to place her claim on the provisional account and he had refused. She prays to be recognized as a widow in necessitous circumstances and to have her claim as such recognized, and the administrator ordered . to place her claim on the provisional account and that the $1,000 he paid to her in course of administration by preference over all other debts, except the expense of selling the property.

The Southern Mercantile Company likewise filed an opposition to the account alleging that the amount of its debt, as placed on the provisional account, was less than the true amount due, and likewise opposed the account of J. L. Bolt, as shown on the provisional account.

All the oppositions were tried together and, as there is no appeal from the judgment in the opposition of the Southern Mercantile Company, we are not concerned with it here.

The administrator, in answer to the op-, position of Mrs. Mary C. Bolt, denied that she was a widow in necessitous circumstances and alleged that she had received from the succession of William H. Bolt, since his death, the following amounts:

Cash, Shreveport Mutual Benevolent Association on November 27, 192'9..$229.50
Household furniture, valued at-------- 500.00
Revenues from Lot 1419, Cedar Grove Subdivision to the City of Shreveport __________________________________________ 500.00

and that she had been in possession and received the rent and revenues from Lot 1419, Cedar Grove subdivision, since January 15, 1926, amounting to more than $1,000.

The administrator further alleged that the above lot was originally acquired in the name of Mary C. Bolt, during the existence of the community between her and her deceased husband, thereby becoming community property, and that during the existence of that community, she made a simulated sale to her daughter, Mrs. Ethel G. Russon, without the knowledge or consent of her husband. That no consideration was paid for the sale and that possession remained in Mrs. Mary C. Bolt. He alleged the sale should be set aside and erased from the public records, and should be placed upon the inventory in the succession of William H. Bolt. In the alternative, if the property should be held to have been purchased with the separate paraphernal funds of Mrs. Mary C. Bolt, that the sale is null from Mary C. Bolt to Mrs. Russon, and is the property of Mary C. Bolt, and that it is worth at least $3,500. He prays for citation upon Mrs. Russon that the sale to her of Lot No. 1419, Cedar Grove subdivision, be annulled and ordered placed on the inventory of the succession of William H. Bolt, and in the alternative, that the sale be declared null and held to be the property of Mary C. Bolt, and that if she be held to be a widow in necessitous circumstances, the value of the property and moneys received from the succession since the death of her husband be deducted from the $1,000 allowed her.

Mrs. Russon appeared by counsel and filed an exception of no cause and no right of action. Mrs. Mary C, Bolt also filed an exception of no right of action to contest the title to property in the name of Mrs. Russon in this action, which is an opposition to the provisional account. Mrs. Russon then filed an exception of misjoinder and then answered, denying the deed to be a simulation and affirming the correctness and legality of her deed, alleging that she acquired same from her mother for a just consideration and that her mother acquired it -with her separate paraphernal funds.

On the day of trial and before the evidence was taken, the court made the following ruling:

“In so far as the pleadings of the administrator filed in answer to the opposition undertakes to make Mrs. Ethel G. Russon a party to the suit ■ for the ¡purpose of showing the opponent is the real owner of the property, which stands in the name of Mrs. Ethel G. Russon, the relief sought will be permitted to remain in Court, otherwise it is dismissed.”

The judgment of the lower court sustained the opposition of Mrs. Mary C. Bolt, recognized her as a widow in necessitous circumstances and entitled to the use and usufruct of the sum of $1,000, during her widowhood, less a credit thereon of $227.50, life insurance collected by her, and $20.50, the value of personal property owned by her; and ordered the administrator to place the claim on the provisional account and in due course to pay her over all other debts, except the expense in selling the property.

From this judgment, the administrator has prosecuted this appeal, and appellee has answered the appeal praying for damages for frivolous appeal.

The finding of the lower court that Mrs. Mary C. Bolt only owned in her own right a lot of household furniture of the value of $20.50, and had only received the sum of $227.50 on an insurance policy, making a total of $248, is correct, and therefore she is a widow in necessitous circumstances in the meaning of article 3252 of the Revised Civil Code and is entitled to be placed upon the provisional account for the sum of $1,000, less $248, and to be paid by the administrator in preference to all other debts, except the expense of selling the property, as the record discloses there are no vendor’s liens or conventional mortgages.

Appellant contends that Mrs. Bolt should be required to give security that she will use as a prudent administrator would the money subject to the usufruct. He relies on articles 558 and 563 of the Revised Civil Code to sustain his position, contending that the law only gives to her the usufruct of the money during her widowhood, at the end of which the money should be returned to the heirs of her deceased husband, and,. before the money is turned over to her, she should he required to give security, and, if she fails to give security, the money should be put out at interest and the interest received delivered to her, the usufructuary, in accordance with article 563 of the Revised Civil Code.

The position of appellant is untenable. In the case of Welsh v. Welsh, 41 La. Ann. 717, 6 So. 551, the court, in passing on a similar case, said:

“The only question in this case is, does the widow come within any exception which relieves her from giving security?
“The children who are of age by the former marriage have no interest in this controversy. The act of 17th March, 1852, entitled ‘An act to provide a homestead for the widow and children of deceased persons,’ which has become section 2885, Rev. St., intended to provide for the widow and minor children of a deceased person left in necessitous circumstances. It was to be paid in preference to all other debts except the vendor’s privilege and the expense of selling the property. It was a sum taken from the succession and bestowed as a bounty upon the widow and the minor children.
“The act says nothing about the giving of security by tbe widow, but it has been decided that the usufruct created by the act must conform to the laws in pari materia. Suc. of Tassin, 12 La. Ann. 885; Andrew Corner v. Cessaire Bourg, 26 La. Ann. 615.
“If the widow Welsh was the mother of a minor child, issue of her marriage with her deceased husband, in accordance with article 560 of the Revised Code, she would be dispensed with giving security. The act of 17th March, 1852, gives the widow the usufruct only, as the amount was intended for the joint benefit of the widow and the minor children.
“In the cases reported in Succession of Tassin, 12 La. Ann. 886, and Corner v. Bourg, 26 La. Ann. 615, there were minor children of the deceased by a former marriage, to whom the amount bestowed by the act would go after the termination of the usufruct enjoyed by the widow. As the widow was not the mother of the minor children, she- was not dispensed by article 560 of the Revised Code from giving security for the usufruct of the money.
“In the Succession of Tassin, 12 La. Ann. 886, the court said: ‘the general rule is that usufructuaries must give security. The burden is on the opponent to show that she falls within some exception to the rule.’
“In the instant case the opponent has brought herself within the exception. The object in giving security is to preserve and secure the money, for the person or persons to whom it descends after the termination of the usufruct. There are no minor children by a previous marriage to whom the money will descend after the usufruct ceases. It cannot go to the major children of the deceased, because it does not again return to the succession of the deceased. The money has been taken from and separated from the succession and bestowed upon the widow and the minor children. It belongs to them — the usufruct to the widow, and the usufruct to the minors. In the instant case there is no one to whom the money descends, and as the law in its provisions intended to provide for the destitute out of the fund of the succession, it is not unreasonable to interpret it to mean that when it provided for the widow and the minors its intention was that, in the absence of minors, it should go to the widow to enjoy the whole amount; but, as there is no one to whom the amount descends, it would be an idle thing for the widow to give security for its return to an imaginary claimant who can never appear.”

This decision was one interpreting the act of March 17, 1852, which is the same as article 3252 of the Revised Civil Code, prior to the amendment by Act No. 242 of 1918, which included conventional mortgages among the debts ranking the widow’s homestead. If Mrs. Bolt was the mother of minor children by deceased, she would not have to give security under article 560 of the Civil Code. However, if there were minor children of the deceased husband by a former marriage, she would have to give security. Corner v. Bourg, 26 La. Ann. 615; Suc. of Tassin, 12 La. Ann. 886; Suc. of Hunter, 13 La. Ann. 257.

In the case at bar, there are no minor children of the deceased by a former marriage; therefore she is not required to give security for the money due her, under article 3252 of the Revised Civil Code. There are two minor grandchildren of the deceased, but, under article 3252 of the Civil Code, grandchildren have no claim to the $1,000 reserved to “a widow or minor children of the deceased” and payable out of the succession. Suc. of Watzke, 139 La. 868, 72 So. 423; Suc. of Geisler, 32 La. Ann. 1289; overruling Suc. of Coleman, 27 La. Ann. 289.

The judgment of the lower court is correct. Appellee’s prayer for damages for frivolous appeal is without merit.

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


author: JANVIER, J.

text:
    No. 13,927
    Orleans
    SUCCESSION OF MANION
    (January 11, 1932. Opinion and Decree.)
    (February 15, 1932. Rehearing Refused.)
    (March 30, 1932. Writs of Certiorari and Review Refused by Supreme Court.)
    Theo. Cotonio, Jr., and Theo. Cotonio, of New Orleans, attorneys for appellant.
    H. W. Kaiser and John H. Hammel, Jr., of New . Orleans, attorneys for appellee.
   JANVIER, J.

This controversy arises on opposition to a provisional account. The account shows receipts of $1,786.68 and that the administratrix proposes to pay certain preferred claims totaling $1,372.10.

It thus appears that if the said preferred claims are paid there will remain in the hands of the administratrix $424.48. (It will be noted that there is an error of $9.90 in these figures as they appear in the account, but this is of no importance in determining the issue involved here.) The account closes with a statement to the effect that this balance is to be retained for future distribution.

Opponent is admittedly an ordinary creditor of the estate in a sum somewhat in excess of $500. Though, her opposition as filed, contained many attacks on the correctness of the account, on the trial of the opposition her counsel' conceded that the only matter in controversy is whether “his client is entitled to be paid the amount of money which is left over after the payment of the items which are mentioned on the account.” It was thus conceded that the claims in the said account which the administratrix proposed to pay are actually entitled to priority and that the respective amounts set forth are correct.

Opponent contends that since no other ordinary creditor has opposed the account and since the account itself shows a balance on hand that that balance should be paid to her. If the account had been a final one and if opponent’s claim had been recognized thereon, and if no other opposition than hers had been filed then, upon obtaining judgment recognizing her claim, opponent would have been entitled to the balance on hand or so much thereof as would have been necessary to pay her claim. But this account shows, on its face, that it is only a provisional or preliminary one and that only preferred claims are to be paid and that the balance is to he retained for future distribution and the evidence shows that the ordinary debts of the succession amount to $100,000 or more. Therefore, if the contention of opponent' he sustained she will he' permitted to receive the entire balance reserved for ordinary creditors according to the provisional account and the other creditors, whose claims total $100,000 or more, will receive nothing or will receive only their pro fata distribution of such other collections as may he made by the administratrix.

It is true that the law favors the vigilant and that persons having claims against estates should be watchful so that in a timely and proper manner they may present their claims, hut we know of no reason to permit an ordinary creditor to in this manner, force recognition on a provisional account which, on its face, purports to make payment only to preferred creditors when such action would result in the obtaining by that ordinary creditor of a preference over all others similarly situated.

Nor is Succession of Levy, 161 La. 511, 109 So. 49, authority to the contrary, and this for two reasons, first, because there the opponent, Hero, was a secured creditor and second, because the record did not show other debts hut, on the contrary, that there were on hand funds “more than sufficient to pay him in full.”

Opponent’s fear that if her opposition he dismissed the judgment will have the effect of “res judicata” and will thereafter prevent her assertion of her claim is not well founded. All that is held by our brother below is that her claim cannot be presented by opposition to the provisional account as filed. She may, of cokrse', in proper season, oppose any final account which does not recognize her or any other account which is prejudicial to her interests, or she may force the filing of an account in the event of undue delay on the part of the administratrix. But we quite agree with our brother below that the opposition by an ordinary creditor to the account, as presented here, which does not contain an attack on the correctness of the preferred claims, but only contends that the opponent should be placed on the account and paid out qf the balance, should he dismissed.

The judgment appealed from is affirmed.


author: HIGGINS, J.

text:
    No. 13,887
    Orleans
    AMERICAN HEATING & PLUMBING CO., INC., v. BETZ
    (January 11, 1932. Opinion and Decree.)
    (February 15, 1932. Rehearing Refused.)
    (March 30, 1932. Writs of Certiorari and Review Refused by Supreme Court.)

      Milner & Porteous, P. M. Milner, and Fred C. Marx, of New Orleans, attorneys for plaintiff, appellant.
    McCloskey & Benedict, of New Orleans, attorneys for defendant, appellee.
   HIGGINS, J.

Plaintiff sued defendant for the sum of $1,298, alleged to be due under a written contract dated September 26, 1927, whereby plaintiff undertook to install in defendant’s residence a one-pipe gravity steam heating system furnishing labor and material therefor, and guaranteed to heat the rooms in which radiators were to be placed to 70° Fahrenheit when the outside temperature was 20° Fahrenheit.

The petition alleges that the work was commenced on October 12, 1927, and completed on November 17, 1927; that on November 21, 1927, plaintiff offered to accept $325 cash and sixteen monthly notes of $60.80, and one for $61, all bearing 7 per cent interest covering the contract price, but that defendant refused to accept the offer; that on December 2, 1927, a bearing in the pump became overheated due to lack of lubrication, and, pending repairs, plaintiff’s men operated the pump; that on December 15, 1927, the pump again gave trouble; on December 17, 1927, the motor which propels the pump burned out; that again plaintiff’s men operated the heating system and plaintiff wired the Murdock Pump Company of Indianapolis, Ind., for another vacuum pump, which was shipped on December 22, 1927; that on each day between December 17, 1927, and January 3, 1928, while waiting the arrival and installation of the new pump, plaintiff’s employees operated the heating plant for defendant; that the pump was received on December 27, 1927, and on January 4, 1928, it was installed over defendant’s objections; that on January 15, 1928, defendant had the electric wires to the motor disconnected; that on January 20, 1928, defendant arbitrarily and illegally notified plaintiff to take out the entire heating system otherwise she would have same removed at its cost. • Plaintiff prayed for an injunction to prevent defendant from destroying the heating system and for judgment in its favor for $1,298, the full contract price.

Defendant admitted signing the contract and that plaintiff had installed a heating system in her residence, but denied liability on the ground that the system did not properly function so as to give the guaranteed heat; that it was constantly and continuously failing to work; that almost immediately upon its installation it broke down, and that the motor, pump, and vacuum tank were constantly out of order; that the radiators leaked and sprayed water over the rooms; that plaintiff’s mechanics repeatedly attempted to remedy the defects from November 17, 1927, to January 20, 1928, when defendant finally rejected the system and ordered it removed from her home; that defendant and her family suffered on account of lack of heat during the cold weather and had to resort to the use of oil and gas heaters.

The judge of the lower court granted a temporary restraining order, which was subsequently revoked, and, on the trial of the case on the merits, there was judgment in favor of defendant dismissing the suit, and plaintiff has appealed.

The sole issue, one of fact, is whether or not plaintiff complied with its obligations in installing the heating system according to the contract. Several witnesses, all employees of plaintiff, testified that the heating system was installed in accordance with the provisions of the contract, tested and tendered to defendant on November 17, 1927, and that the plant operated properly; that, upon a complaint from defendant on December 2, 1927, a mechanic was sent to examine the plant and found that the pump had become overheated for want of lubrication; that the pump was removed for the purpose of repairs, and that plaintiff’s employees continued to operate the heating system until the pump was reinstalled; that no further complaint was made until December 15, 1927, when the pump Was reported by defendant to again be giving trouble, and, upon examination, it was found that the pump had frozen and as a result thereof the motor had burned out; that it was necessary to have the motor rewired, and that plaintiff ordered a new pump from the Murdock Pump Company; that in the interim plaintiff’s men operated the heating system for defendant; that the new pump was installed on January 4, 1928, although defendant objected to plaintiff doing so; that, upon defendant’s complaint that the furnace was burning too much coal, plaintiff’s mechanics took out the condensation reservoir and reduced its capacity 50 per cent, but the mechanics admit this experiment to reduce fuel consumption was a failure; that on examining the system on January 10, 1928, af-ter the installation of the new pump, it was found that the system had been restored to proper working order. The mechanics also testified that all of the trouble was attributable to the fact that defendant’s husband and son did not lubricate the pump and motor as they were instructed to do every week; that on the two occasions when the pump was found out of order it was on account of lack of lubrication; that on the other occasions the heating system did not operate because defendant’s husband and son left in the fire chamber of the furnace clinkers, which prevented combustion, as the draft was destroyed; that the trouble with the radiators was due to the fact that some oné had turned the valve off, which prevented condensation from flowing from the radiators.

The evidence of defendant consisted of the testimony of her son, her husband, her son-in-law. and an electrician by the name of Whitely. Their testimony is to the effect that the heating system was installed by plaintiff and turned over to defendant on November 17, 1927; that on the same day it became out of order; that defendant notified plaintiff, whose mechanic examined the system and found that the pump was cracked at its base and that it was stuck, due to the fact that it was overheated, which was caused by the shaft on the pump being out of line; that the pump was taken out, repaired and reinstalled but immediately began to give similar trouble, and that it was again taken out, repaired, and reinstalled, but again gave trouble; that each time the system failed to function defendant notified plaintiff; that on December 5, 1927, the pump stuck and the motor froze, and it was necessary to take the motor out and have it rewired, but upon reinstalling it the pump would not work; that the radiators in the house leaked, and that upon complaint the vacuum tank or reservoir was taken out for the purpose of reducing its size by one-half of its capacity; that during the Christmas holidays plaintiff had to keep a man at defendant’s home for the purpose of operating the system, but even on the occasions when plaintiff’s men operated the system it failed to give heat; that it was necessary to install gas heaters and oil burners in order to maintain heat in the premises; that defendant’s husband and son operated the heating system in accordance with instructions given to them by the representative of plaintiff company; that, at the time the plant was turned over to defendant, plaintiff’s mechanic requested defendant’s son to furnish him with some lubricating oil which he used on the pump and motor; that he told defendant’s son that there was enough oil to run the system practically the whole season; that the mechanics and workmen of plaintiff were constantly attempting to repair the heating system, but in spite of their repeated efforts to remedy the defects they were unable to do so between November 17, 1927, and January 20, 1928, when defendant finally refused to accept the heating plant and ordered plaintiff to remove it from her home. Defendant’s son and husband testified that they were familiar with the operation of the heating system, and operated it according to the instructions of plaintiff’s mechanics; that the furnace was fired as the mechanics instructed by starting the fire with wood, and, after getting the proper combustion, adding coal and coke; and they strenuously denied that clinkers were left in the furnace.

After a careful reading of the record, the impression is inescapable that the heating system was constantly out of order from November 17, 1927, to January 20, 1928, due to different mechanical defects. It is significant that plaintiff, at all times during this period, had to have its workmen make the necessary repairs and install new parts and during the interim maintain the heating system by its own workmen, all free of charge to defendant. If the heating system had become out of order due to the fact that the motor and pump had not been properly lubricated by defendant’s husband and son and because the furnace had not been properly cleared of' clinkers which prevented proper draft and combustion in the fire chamber, there is no doubt that plaintiff would have refused to repair, maintain, and operate the system at its expense. We recognize that a heating contractor like plaintiff would have gone to some length to please a dissatisfied customer, but plaintiff’s conduct in this case in incurring considerable expense consisting of many hours of labor and new parts (one item alone, the pump, costing $141.75) is such as to suggest a consciousness of responsibility and a realization of fault on the part of plaintiff.

The trial court who heard and saw the witnesses came to the conclusion that plaintiff had not installed the heating system in accordance with its contract, and dismissed plaintiff’s suit. Only a question of fact is involved, and we can see no reason after a careful study of the record to disturb the findings of the trial court.