text:
    No. 13,206
    Orleans
    GLOBE INDEMNITY CO. v. TOYE BROS. AUTO & TAXICAB CO., INC.
    (June 16, 1930. Opinion and Decree.)
    (July 23, 1930. Rehearing Refused.)

      Milling, Godchaux, Saal & Milling of New Orleans, attorneys for plaintiff, appellee.
    John P. Sullivan, David Sessler, Ben Washastrom, of counsel, of New Orleans, attorneys for defendant, appellant.
   HIGGINS, J.

This is a suit by an insurance company to recover damages from a third person for the amount it paid as compensation to an injured employee who sustained injuries as the result of the negligence of the third person.

The defenses are as follows:

First, that the petition does not disclose a cause or right of action.

Second, that there is a nonjoinder of parties plaintiff, or defendant.

Third, that the plaintiff has failed to prove its case.

Fourth, that the defendant was not negligent in the operation of its cab, and that La Barbera, the injured employee, was guilty of contributory negligence which was the proximate cause of the accident.

There was ' judgment in favor of the plaintiff as prayed for, i. e., nine weeks’ compensation at $19.50 a week paid to the injured employee and $94.10 for medical bills or a total of $269.60. Defendant has appealed.

The record shows that Anthony La Barbera was employed by S. P. Daroea, who operates a garage business in the city of New Orleans; that on January 18, 1925, at 1:30 o’clock a. m., Daroea sent La Barbera to tow in a wrecked automobile on Frenchmen street near the intersection of North Tonti street. La Barbera drove to the scene of the accident in the truck, or wrecker, and parked it in front of the disabled automobile and then stepped between the two cars for the purpose of hooking the chains to the wrecked automobile in order to tow it in. There was an electric light with a reflector attached to the top of the crane which was used to hoist up wrecked automobiles in order that they might be towed in. This light was focused on the wrecked automobile and there was also another light oh the side of the machine. While La Barbera was in this position between the automobiles, which were facing towards the lake on Frenchmen street, a Yellow cab driven by one of the defendant’s chauffeurs, proceeding out Frenchmen street in the direction of the lake, struck the rear of the wrecked automobile, forcing it forward and jamming La Barbera between the wrecked automobile and the truck. La Barbera was rendered unconscious, sustained a broken leg, broken arm, and three fractured ribs, which disabled him for a period of nine weeks. He was immediately taken to the hospital in the taxicab. The cab, after striking the wrecked automobile, ran some 150 feet to the corner, where it stopped. Daroea was insured against such loss with the plaintiff insurance company, which paid La Barbera nine weeks’ compensation at $19.50 per week, being 65 per cent of his wages, and also paid medical bills amounting to $94.10, or a total of $269.60.

The compensation insurance policy contained the following provision:

“The Company shall be subrogated in case of any payment under its policy to the extent of such payment to all rights of recovery therefor vlested by law either in this employer or in any employee, or his dependents claiming hereunder against persons, corporations, associations or societies.”

Daroca also made a' conventional assignment and subrogation to the plaintiff of any claims or rights or causes of actions against the defendant as a result of the injuries sustained by La Barbera in the accident, and particularly any rights or causes of actions in favor of the employer, Daroca, under Act No. 20 of 1914.

In support of the exception of no right or cause of action, counsel for the defendant contends:

(a) That an insurance company that issues a policy covering liability under the compensation law has no direct right of action against a third person, under article 2315, Rev. Civ. Code, to recover damages to the amount of compensation paid to an injured employee who was hurt through the negligence of a third person.

(b) That an insurer has no right of legal subrogation, under the Compensation Law or Employers’ Liability Act, at the time of the accrual of the. alleged cause of action in January, 1925, or under articles 2159-2161, Rev. Civ. Code, to the employer’s right to collect damages for the compensation paid to the employee on account of personal injuries negligently inflicted by a third person upon the employee.

(c) That at the time of the accident an insurer was barred from the right of conventional subrogation to the rights of the employer to collect damages for compensation paid from third persons who negligently inflicted injury on the employee, -because paragraph 1 of section 22 of Act No. 20 of 1914 expressly provides that such claims, or payments, shall not be assigned.

(d)That the conventional assignment was without serious or adequate consideration because it was made for “the sum of $10.00 and other consideration.”

We shall discuss all these points in their order.

We find it unnecessary to decide the first two issues raised by counsel in support of the exception of no cause of action, i. e., plaintiff has no direct right or cause of action and no legal right of subrogation, because we are of the opinion that the conventional subrogation by the employer in favor of the insurance company is valid. In the case of Carroll & Co. v. N. O., Jackson & Great Northern R. R. Co. et al., 26 La. Ann. 447, the. Supreme Court clearly indicated that if the insurance company, which paid a loss resulting from the destruction of cotton by fire while in the possession of the carrier, had been assigned the rights of the assured and shipper, the court would have recognized the conventional subrogation and enforced it against the carrier.

In the case of Bouchon v. Southern Surety Co. et al., 151 La. 503, 91 So. 854, the Supreme Court held that there was nothing to prohibit an injured employee from conventionally subrogating an insurance company to his claim against a third person whose negligence injured the employee and caused the insurance company to pay compensation under Act No. 20 of 1914. While the court held that the insurance company, under such circumstances, was not subrogated by mere operation of law to the rights of the injured employee to proceed against a third person whose negligence caused injury to the employee, the court clearly indicated that if there had been a conventional subrogation it would have been recognized and enforced. To furtheshow that it is not against public policy that the insurance company be subrogated to the same rights that the employer has against third persons causing injury to an employee through their negligence, the Legislature passed Act No. 85 of 1926, and paragraph 2 of section 23 of that act reads as follows:

"The insurer is hereby subrogated to all the rights and actions which the employer is entitled to under this act.”

We therefore hold that the conventional subrogation was legal and binding and it will be enforced unless it can be said that the provisions of Act No. 20 of 1914, the Compensation Law, expressly prohibit it, or unless the conventional assignment was without serious or adequate consideration.

We shall now consider the other two points raised under the. exception of no cause of action.

(c) In support of the contention that the compensation act expressly prohibits the assignment of claims of payments made under its provisions, counsel for the defendant refers us to paragraph 1 of section 22 of Act No. 20 of 1914, which reads as follows:

"Be it further enacted, etc., That claims or payments due under this act shall not be assignable and shall be exempt from all claims of creditors and from levy or execution or attachment or garnishment except under a judgment of court for alimony in favor of a wife or ascendant or descendant. Pees of attorneys and physicians for services under this act shall be reasonable and measured according to the workman’s station and shall be approved by the Court.’’

We do not find that this is pertinent because it refers to claims or payments due the employee under the act. It is obvious that the provision was placed in the act for the protection of the employee. The present assignment was made by the employer to the insurance company under the terms and provisions of the policy, which expressly provided that the insurance company would be subrogated to all the rights of recovery vested in the employer. It is also to be noted that the claim against the third person did not arise under Act No. 20 of 1914, but under article 2315, Rev. Civ. Code.

Paragraph 2 of section 7 of Act No. 247 of 1920 reads as follows:

“Any employer having paid or having become obligated to pay compensation under the provisions of this Act may bring suit against such third person to recover any amount which he has paid or become obligated to pay as compensation to any injured employee or his dependent; provided, that if either such employee or his dependent, or such employer, shall bring suit against such third person, he shall forthwith notify the other in writing of such fact and of the name of the Court in which such suit is filed, and such other may intervene as party plaintiff in such suit.”

As, under the above-quoted provision, the employer had the right of action which he assigned to the insurance company, and as we do not find anything in the Compensation Law or public policy prohibiting such a conventional assignment, this defense must fall.

(d) The next contention of defendant is that “$1.00 and other consideration” is not a serious and adequate consideration and cannot support the contract of assignment. We do not believe that this point is well taken, because the insurance policy itself, which was supported by an adequate consideration, i, e„ the premium paid by the assured ana the assumption of liability by the assurer, contains a provision that the insurance company shall be subrogated to all the rights of recovery vested by law in the employer upon the payment of compensation under its policy. Assuming liability under its policy and paying the compensation when it became due would be the other consideration referred to in the conventional assignment, and certainly this would be a serious and adequate consideration sufficient to support a valid contract of assignment.

As to the second defense interposed by counsel for defendant, that there is a nonjoinder of parties plaintiff or defendant because Daroca, the employer, and La Barbera, the employee, were not made either parties plaintiff or parties defendant, we do not believe it to be sound because La Barbera’s only interest in a matter of this kind would be any amount that was recovered over and above the compensation paid and medical expenses. Since he compromised that right for $750, he would not have any interest in the amount that would be paid to the insurance company for compensation and for medical bills paid by it. Furthermore, paragraph 2 of Section 7 of Act No. 247 of 1920 leaves it optional with the employee to join as party plaintiff. Daroca would not be a necessary party, because he unconditionally assigned his claim to the insurance company, and, under the circumstances, was without further interest in the matter.

We now come to the consideration of the third defense to the effect that plaintiff failed to prove his case. The first contention thereunder is that paragraph 2 of section 7 of Act No. 247 of 1920 requires the employer to notify the employee in writing of the fact that he shall bring suit against the third person causing the injury to the employee, and that the plaintiff failed to prove such notice.

The correspondence in the record in which the representative of the plaintiff effected a compromise settlement of La Barbera’s right of action for the sum of $750, reserving the plaintiff’s right to enter suit for compensation and for medical bills paid, convinces us that the employee, La Barbera, had sufficient actual notice of the filing of the suit by the. plaintiff and authorized it.

The next point defendant makes, that plaintiff failed to prove its case, is that plaintiff failed to prove wages, previous physical condition, extent of injuries, and duration of disability of La Barbera as a result of his injuries. The right of action of La Barbera for any damages over and above the compensation and medical expenses which the employer had a right to sue for under the provisions of paragraph 2 of section 7 of Act No. 247 of 1920, amending the Compensation Act, were compromised for the sum of $750. The evidence in the record clearly establishes that $19.50 per week for nine weeks was paid to La Barbera as compensation during the period of his disability and that $94.10 was paid for medical expenses in treating him for these injuries. The defendant has not offered any evidence to contradict plaintiff’s evidence to this effect, and, as plaintiff has not claimed damages for any other items, we are of opinion that the amounts sought to be recovered have been adequately proven.

As to the fourth defense, that defendant was not negligent in the operation of its cab and that La Barbera, the injured employee, was guilty of contributory negligence which was the proximate cause of the accident, the testimony of the witnesses for the plaintiff convinces us that the defendant’s chauffeur was guilty of negligence in operating the taxicab at an excessive rate of speed on a dark and rainy night, and that he was not keeping a proper lookout. But, says counsel for the defendant, the injured employee was contributorily negligent in standing between the two automobiles without having the rear light on the wrecked automobile burning. The evidence establishes that the light on the crane, some six or seven feet above the ground, was focused directly upon the wrecked automobile, and could have been seen at a sufficient distance for a prudent operator of an automobile to have stopped. In addition to the light on the crane, there was also a light on the side of the automobile. We find that the wrecked car and the truck, or wrecker, were both properly illuminated, so that they could be seen at a sufficient distance to have been avoided by the driver of the taxicab, and therefore the injured employee was free from fault.

Counsel for the defendant further contends that the $750 paid to La Barbera, the employee of Daroca, was in full and final settlement of all claims and demands whatever growing out of his personal injuries, loss, or damage sustained on January 17, 1925; but the correspondence between the insurance company and the defendant clearly shows that the settlement was for $750 cash for La Barbera, reserving to the plaintiff its right to claim the $269 for compensation and bills for medical services.

For the reasons assigned the judgment is affirmed.


source: Caselaw Access Project

author: WESTERFIELD, J. PER CURIAM.

license: Public Domain

text:
    No. 13,202
    Orleans
    WEBB v. LAMBERT ET AL.
    (May 19, 1930. Opinion and Decree.)
    (June 2, 1930. Rehearing Refused.)
    '(August 7, 1930.' Writ of Certiorari and Review'Refused by Supreme Court.)

      Johnston Armstrong and Daniel Wend-ling, of New Orleans, attorneys for plaintiff, appellant.
    P. M. Milner, of New Orleans, attorney for defendants, appellees.
   WESTERFIELD, J.

Plaintiff, a negro brick mason, brings this suit for damages said to be due to physical injuries alleged to have been sustained by reason of his having been struck in the back by a piece of timber, which, it is claimed, fell from an overhanging gallery attached to a building owned by defendants. Defendants answered admitting the ownership of the property from which the timber was alleged to have fallen, but denying any liability because “your respondents are under the belief that this plaintiff was not injured as set forth and is unjustly claiming damages from them.”

• There was judgment below in defendants’ favor, dismissing plaintiff’s suit, and plaintiff has appealed.

After a careful examination of the record, we are convinced that the judgment complained of is erroneous. The evidence presented by plaintiff seems to clearly establish the fact that he was injured by the falling of the timber from the gallery of the defendants’ property; in fact, there is nd dispute on this point. The reliance of defendants in this court is, as it was below, upon the alleged falsity of the plaintiff’s testimony; no question being made of its effect and preponderance.

We regret our inability to agree with our brother below, and we are most reluctant to disturb his conclusion upon a question of fact, but we have no alternative when a case is presented, like the present one, where it seems to us that the judgment is not responsive to evidence in the record.

The uncontroverted testimony, as it appears in the record, is that the plaintiff on April 20, 1928, was hit in the back by a piece of falling timber measuring 2"x4" x54" and weighing 16 pounds. Two eyewitnesses testified that this timber fell from a balcony attached to the building known by the municipal number 2625 Calliope street (defendants’ property). A photograph of the building is in evidence, and there appears a vacant space in the balustrade which would seem to be of the proper size to accommodate a piece of timber of the dimensions of the one which struck plaintiff in the back. At the time of his alleged injury, plaintiff was employed by Jos. Edwards, who testified that the last day he worked for him was April 19th, and that he was reported ill on the 20th. A doctor whn treated plaintiff for his injuries presented a bill which was offered in evidence, which showed that the first of a number of professional visits covered by the bill was made on April 20th. Plaintiff’s account at a neighborhood drug store showed that a number of prescriptions had been filled for him, and the first charge on this account was on April 20th.

Plaintiff’s case, as thus established, is assailed by defendants as having been manufactured, and in support of their position our attention is directed to some inconsistent statements made by plaintiff and one of his witnesses. For example, plaintiff denied having called upon an agent for an insurance company, which it seems had insured defendants’ liability in this case, and denied demanding certain payments of money on account of his injury. There is no doubt that plaintiff was mistaken in this respect, because the proof is that he did call at the insurance office and demand some money. Of course, this circumstance does not fortify his testimony, but if it be entirely rejected, his case is amply sustained by that of othei* witnesses. It is possible that plaintiff’s case is manufactured out of the whole cloth, but, we believe, extremely improbable, since it is too circumstantial and involves the co-operation of too many individuals in a nefarious enterprise for the benefit of a negro bricklayer. Besides no sufficient motive appears for such wholesale cupidity.

The evidence concerning' the quantum is not as satisfactory as it might be. It appears, however, that his injuries were quite serious and involved his incapacity to work for several months. He incurred certain expenses for doctors and drugs. He had an earning capacity of $1.50 per hour or $12 per day. On the whole we believe the sum of $1,200 to be a proper award under the circumstances.

For the reasons assigned the judgment appealed from is reversed, and it is now ordered, adjudged, and decreed that there be judgment in favor of plaintiff, Carter Webb, and against the defendants, Frank R. Lambert and Oscar M. Moroy, in the sum of $1,200.

ON APPLICATION FOR REHEARING

PER CURIAM.

We are charged .with having grievously erred in our decision of this case “because no appellate court of Louisiana, Supreme Court or Court of Appeals has ever before undertaken to disregard the findings of fact in a case where the trial judge, eminent, honorable, and of vast experience on the bench, has declared that the suit was a ‘frame-up’ and the negro witnesses lied and their testimony was impeached by- reputable white witnesses and by the very improbability of the alleged cause of injury, and reverse the judgment, disregarding the fact that the trial judge heárd -and saw the negro witnesses and estimated their credibility — and this court did not.”

We refrain from any comment upon counsel’s animadversions upon the negro witnesses, except to say that comparisons are odious. If the jurisprudence is as counsel states it to be, the fact has escaped us, for we have on occasion conceived it to be our disagreeable duty to set aside judgments, though only issues of fact were involved and the court’s conclusion reached, as it invariably is, only after able and conscientious consideration. We would have it otherwise, and as able counsel puts it, for it is only from a compelling sense of obligation and of legal necessity that we, with a keen appreciation of our disadvantage, undertake to review testimony the effect of which has been appraised by the learning, experience and integrity which characterizes the judges of our trial courts. This case happens to be one which calls for the discharge of an unpleasant duty.

The application for rehearing in this case is marked by more than the usual vehemence, indignation and criticism, a circumstance calculated to aggravate the unpleasantness which inheres in the exercise of the judicial function in the respect that disappointment and, perhaps, chagrin, must ever be the portion of at least one litigant and one lawyer. Judicial biographers should avoid applications for, and briefs in support of, rehearings as unfit material for their use.

We are asked to amend our decree so as to allow interest from judicial demand. In view of the phraseology of Act No. 206 of 1916 the amendment asked for is unnecessary.


author: HIGGINS, J.

text:
    No. 13,298
    Orleans
    WELLER ET AL. v. THE TURNERIZED ROOFING CO. ET AL.
    (July 1, 1930. Opinion and Decree.)
    (July 23, 1930. Rehearing Refused.)
    Henry & Cooper and John May, of Nev, Orleans, attorneys for plaintiffs, appellees.
    Milner & Porteous and P. M. Milner, of New Orleans, attorneys for defendants, appellants.
   HIGGINS, J.

This is an appeal from a judgment awarding compensation to the. widow and minor children of a deceased workman under the Compensation Law of this state (Act No. 20 of 1914, as amended).

Louis Weller, tAe deceased, was injured on September 19, 1928, by reason of a fall from a roof of a building upon which he was working. He fell a distance of fifteen feet and landed upon the pavement, striking his left side, hip, thigh and knee. Following the accident, Weller, with commendable fortitude, sought to resume his labors, but the foreman declined to permit him to work and ordered him to return to his home. He also attempted to return to work on each of the two succeeding days, but was not permitted to do so by the foreman. He complained of a severe pain in his hip and left leg, but continued to walk about until September 23, 1928, when he was obliged to go to bed. His condition became worse, he developed temperature, and on the advice of his physician was removed to the hospital on September 30th, where, on October 3, 1928, he died.

It is the contention of plaintiffs that Weller’s death was due to the injury which he received in the course of his employment, and it is insisted on the part of defendants that his death was due to natural causes, entirely disconnected with his accident. The issue which we are called upon to decide, therefore, is whether Weller’s death on October 3rd was due to the fall from the roof, which occurred on September 19th, some fifteen days before.

In determining questions of this sort, we have heretofore observed that we must very largely depend for guidance upon the evidence given by medical experts. In this instance, five physicians have testified, all of them men of high standing in their profession and most impressive and candid in their testimony. Superficially considered, this expert testimony would appear contradictory, but the evidence as a whole upon closer view agrees in the essential particulars. Weiler’s death was due to pneumonia. Pneumonia, all of these learned gentlemen of the medical profession agree, is caused hy the pneumococcus germ, which, we are advised, is ever present in our respiratory tract. The pneumococci, we gather from the testimony, are usually harbored by all of us without harmful results. It is only when the bodily resistance is lowered by shock, or exposure, that they are capable of infecting us with the virus of pneumonia. Sometimes the patient is afflicted with what is commonly called a cold and which, we are told by the doctors, is a low-grade infection. We do not understand, however, that influenza or coryza is ever present or necessarily ¡precedes the development of pneumonia. Consequently the somewhat conflicting evidence as to whether Weller, some clays prior to his demise, exhibited symptoms of influenza or not, is of little or no importance, since it is clear from the testimony that pneumonia may develop without coryza and all the experts agree that a violent physical shock affects the susceptibility to pneumonia. Dr. S. J. Rosenthal, for plaintiff, a practing (physician for more than eighteen years, was positive that Weller’s death was due to pneumonia superinduced by the shock which resulted from the fall from the roof. Dr, Charles W. Duval, for plaintiff, is a professor of pathology and bacteriology in Tulane University; he has wide experience and enjoys a splendid reputation, frankly and generously attested by Dr. Bradburn, defendants’ expert. He is positive that Weller’s fall was directly responsible for his death. Dr. Muir Brad-burn, for defendant, a practicing physician of seventeen years’ standing, said that any violent physical shock affects the normal resistance of the body and increases the susceptibility to pneumonia. Dr. Charles L. Eshleman, for defendant, a graduate of Tulane University, with twenty-four years of experience, indorsed the same theory of increased susceptibility to pneumonia in a state of lowered bodily resistance due to shock or trauma. Dr. H. Gessner, for defendant, who has been practicing thirty-five years in this community, and who has had considerable experience, with cases of trauma, also indorsed the statement of the other physicians to the effect that pneumonia resulted from the increased activity of the pneumococci germs due to a lowered bodily resistance and increased susceptibility to infection, which-could be due to violent physical shock or trauma.

It thus appears that all of the experts are in singular agreement upon the main features of this case. Of course, they do not agree in all particulars. For example, Dr. Duval and Dr. Rosenthal, for plaintiff, are most positive in their statement that in their opinion Weller’s death was; the direct result of the fall, while Drs. Bradburn, Eshleman, and Gessner, for defendant, do not go to this extent, but they do say, in effect, that Weller’s death might have been due to the fall, because of their adherence to the view that the development of pneumonia is always preceded by lowered vitality and a weakened bodily resistance, which they concede may be superinduced hy trauma. Dr. Bradburn, who has had unusual experience in cases of traumatic injuries, having been in charge for a number of years of the ward in the Charity Hospital where such injuries are treated, testified that in all cases of trauma, precautions were invariably and immediately taken to guard against the development of pneumonia, though, in justice to Dr. Bradburn, it must he said that he was of the opinion that traumatic pneumonia usually resulted from an injury to the chest and only occasionally, in the case of elderly people, from an injury to the hip.

The conclusion we have reached in this case does not accord with our first impression, for we confess to much incredulity when the proposition was first advanced in argument, that pneumonia, the admitted cause of Weller’s death, was due to a trauma resulting from a fall, causing injuries to the knee, hip, and thigh, but a consideration of the testimony of the medical experts, whose eminence and standing in their profession is clearly apparent from the record, compels us to yield our original views.

In the case of Colquette v. La. Central Lumber Co., 11 La. App. 140, 119 So. 714, which was brought under the compensation law for the death of an injured workman, the injury was to the deceased’s ankle and foot. He died from pneumonia. The court in allowing recovery in that case held (syllabus):

“Where the testimony of the medical experts, as to whether the deceased died as the result of injuries received or from natural cause, is conflicting and irreconcilable, and the testimony of the lay witnesses tends to corroborate the testimony of the doctors, who, were of opinion that the death was caused by the accident, the finding of the trial judge that there was causal connection between the injury and the death will not be disturbed.”

In Henderson v. La. Power Company, 9 La. App. 475, 121 So. 217, a workman was injured as a result of a tree falling on the end of an axe, which caused the blade of the axe to -strike the deceased in the forehead, inflicting a severe wound. He developed pneumonia and died and the court allowed recovery by his dependents. In the syllabus in that case it was held:

“Where injury caused by blade of axe striking employee above the right eye caused an illness which continued until bis death with pneumonia, the presumption is that the injury caused the illness or aroused the disease resulting in death and his employer is liable for the payment of compensation to his parents under Act No. 20 of 1914, the Employers’ Liability Act.”

In discussing the effect of the expert testimony in that case, the court made the following observations:

“And in so far as the expert testimony went we think it established that pneumonia had caused death, and there were not any other complications; however, all of the physicians agreed the fever which developed in the afternoon following the injury, was the result of the blow, and the evidence establishes that the illness continued until death, and considering this fact with the facts first above stated, the presumption is that the injury caused the illness or aroused the disease resulting in death, and defendant is liable (Behan v. John B. Honor Co., 143 La. 348; 78 So. 589, L. R. A. 1918F, 862; Fox v. United Chemical & Organic Products Co., 147 La. 865, 86 So. 311; Johnson v. Vernon Parish Lumber Co., 151 La. 664, 92 So. 219; Donahoe v. Scharfenstein, 154 La. 815, 98 So. 256).
“Had deceased recovered, it would hardly have been contended that defendant was not liable- for the disability, although it may have been prolonged by the disease, pneumonia, as in compensation cases, where the injury results in disability which is continuous, the law does not attempt to distinguish between that caused by the injury and that which may be more particularly attributed to disease (Caldwell v. City of Shreveport, 150 La. 465, 90 So. 763), and while there may be some distinction drawn between cases where the claim is for disability- and where the claim is for death as the result of the injury, we are of the opinion that the evidence establishes that the disease which was developed during Uie period of disability and illness therefrom could not have been aroused or contributed to by the injury or illness naturally resulting therefrom, and that the evidence in the present case does not establish such facts.”

We are of the opinion that the evidence in the record supports the findings of the trial court, and, for the reasons herein assigned, the judgment is affirmed.


author: WEBB, J.

text:
    No. 3746
    Second Circuit
    SEABURY v. ARKANSAS NATURAL GAS CORP.
    (March 24, 1930. Opinion and Decree.)
    (April 10, 1930. Rehearing Refused.)
    Julius T. Long, of Shreveport, attorney for plaintiff, appellee.
    John B. Files, of Shreveport, attorney for defendant, appellant.
   WEBB, J.

The Arkansas Natural Gas Corporation was engaged in the mining business, drilling and operating oil and gas wells, in the Tullos Field situated in this state. On or about September 26, 1928, defendant employed Tom Jarrell, who was engaged in the teaming business in that field, to haul steel pipe which had been removed from one of defendant’s wells to another, or a distance of about three-quarters of a mile. Jarrell owned the equipment, wagons, and teams, and employed the driver, his usual charge being $15 per day for each wagon and team employed, and it is stated by the representative of defendant that it was on that basis that the pipe was to be hauled. Carl Seabury was one of the drivers employed by Jarrell, and the wagon and team assigned by Jarrell to haul the pipe was driven by Seabury, who, while hauling the pipe, fell from the wagon, breaking his leg in such manner that it was necessary to amputate the limb.

Seabury brought tho present action against the Arkansas Natural Gas Corporation to recover compensation under provisions of the Employers’ Liability Act (Act No. 20 of 1914, as amended), and defendant appeals from a judgment in favor of plaintiff.

There was not any conflict in the evidence, and in addition to the facts stated above, it was shown, that Jarrell carried insurance, that plaintiff had instituted suit against him and his insurer to recover compensation, and that the action was pending at the time of the trial, and there was evidence tending to show that plaintiff worked under the direction and control of Jarrell, and the evidence also established that the steel pipe removed from one of defendant’s wells was to be used in cleaning the well to which it was being hauled, and the wells were operated by defendant as a unit.

In presenting the cause here, counsel have suggested many questions. But as we gather from the briefs, appellant contends that the facts show that Jarrell was an independent contractor engaged in a hazardous business, within the meaning of the statute, and that plaintiff could look to Jarrell alone for compensation; and further that plaintiff, having brought suit against Jarrell and his insurers, had waived any right he may have had against defendant and had released defendant from any liability which may have existed, and that plaintiff was estopped. And while plaintiff and appellee denies that the facts show that Jarrell was an independent contractor, he contends that whether he was or not, the facts show that the work undertaken by Jarrell, hauling the pipe from one of defendant’s wells to another where it was to be used in cleaning the well, was a part of the business of defendant, and that defendant was liable to Seabury under the provisions of section 6 of the statute, which reads as follows:

“That where any person (in this section referred to as principal) undertakes to execute any work, which is a part of his trade, business or occupation or which he had contracted to perform, and contracts with any other person (in this section referred to as contractor) for the execution by or under the contractor of the whole or any part of the work undertaken by the principal, the principal shall be liable to pay to any workman employed in the execution of the work any compensation under this act which he would have been liable to pay if that workman had been immediately employed by him; and where compensation is claimed from or proceedings are taken against the principal, then, in the application of this act, reference to the principal shall be substituted for reference to the employer, except that the amount of compensation shall be calculated with reference to the earnings of the workman under the employer by whom he is immediately employed.”

In Helton v. Tall Timber Lumber Co., 148 La. 180, 86 So. 729, it was said that, “Under Workmen’s Compensation Act, sec. 6, one employing an independent contractor was liable for the death of one working for the contractor, if the workman was an employee and not himself an independent contractor,” and conceding that the business of Jarrell, “teaming contractor in the oil field,” was á hazardous business, within the meaning of the statute (Durrett v. Woods, 155 La. 533, 99 So. 430), as that of “felling trees and cutting them into logs” (section 1, subsec. 2, paragraph (a), Act No. 20 of 1914), which was the business of the contractor, employee of plaintiff in the Helton case, and considering that in the Helton case, as in the present, the principal of the contractor was sought to be held liable, we think the expression quoted from the Helton case is applicable to the present case; with that view, we do not deem it necessary to consider the contractual or legal relationship of Jarrell and defendant, and as it has been expressly held, contrary to the suggestion of counsel, that the word “principal” in section 6, quoted above, includes the person engaged in the hazardous business (Clementine v. Ritchie, 1 La. App. 296; Zeller v. La. Cypress Lbr. Co., 9 La. App. 609-612, 121 So. 670), it is only necessary to determine whether the work undertaken by Jarrell was a part of the business of defendant.

While counsel has not discussed that phase of the case, the statute (section 1, subsec. 2, paragraph (a), Act No. 20 of 1914) declares that the “operation, construction, repair, removal, maintenance * * * ” of oil, gas, to be hazardous, and in the present instance it appears that the work being done by defendant and let to Jarrell was a part of defendant’s business, and we are of the opinion that the defendant was liable.

One the plea of estoppel, defendant contends, that plaintiff, having sued Jarrell and his insurer, waived any right he had against defendant, and in support of the contention cites Morgan’s La. & Tex.' R. & S. S. Co. v. Stewart, 119 La. 392, 44 So. 138, without further comment; but the decision cited does not support the position. Plaintiff had one remedy, and the right to enforce it against either of two solidary obligors (section 6, par. 3, Act No. 20 of 1914), and an action against one of the solidary obligors does not release the other (article 2095, Civil Code).

The judgment appealed from is affirmed.


author: DREW, J.

text:
    No. 3632
    Second Circuit
    BARRE v. POLICE JURY OF THE PARISH OF AVOYELLES
    (June 2, 1930. Opinion and Decree.)
    (July 5, 1930. Rehearing Refused.)

      Porterie, Bordelon & Roy, of Marksville, attorneys for plaintiff, appellee.
    N. I. Normand and L. L. Bordelon, of Marksville, attorneys for defendant, appellant.
   DREW, J.

During the early part of the year 1927, the pólice jury of the parish of Avoyelles, by proper resolution, created road district No. 5, in which it set out the boundaries of the district, levied q, special tax, and issued bonds therefor. Soon after the creation of the district the bonds were sold and an amount of $35,000 realized. On March 2, 1927, the police jury appointed a road commission, composed of citizens living in the district, to assist and advise with the police jury as the governing authority of road district No. 5 in the preparation and mapping out of the road program for the district.

The police jury and road commission did not build the road themselves but succeeded in getting the highway commission to undertake the construction of the road, the police jury turning over to the credit of the highway commission $32,000 and agreeing to furnish the right of way for the construction of the Hamburg-Big Bend route No. 585.

The police jury paid eight or ten different persons for right of way through their property, and for moving fences, chimneys, houses, etc., but did not pay the plaintiff anything for his property used in making the highway. In locating the highway it took a strip of land on the front of the plantation of plaintiff, who is a non-resident, amounting in area to 4% acres, and segregated two small plots, triangular in shape, between the road and the levee, aggregating 803/1000 of an acre, rendering same valueless to plaintiff.

The road was built during the summer of 1927, and plaintiff had knowledge of it during the latter part of 1927. On October 10, 1929, plaintiff filed this suit against the police jury for the value of his land taken by the right of way and the two small tracts rendered valueless to him. He alleges the land was worth $100 per acre, and prays for judgment accordingly.

Defendant denied all the 'allegations of plaintiff’s petition, on the theory that if any damage was done and any amount was due plaintiff that the Louisiana highway commission was the one that owed it and not the police jury.

On these issues the case went to trial in the lower court and judgment was rendered for plaintiff, fixing the acreage used by the highway at 4% acre's and that of the two small tracts that were segregated from the remainder by the road at S03/1000 of an aere and allowing plaintiff the sum of $85 per acre for these two tracts.

Defendant has appealed from that judgment and has filed in this court a plea of prescription of one year, basing the same on one allegation of plaintiff’s petition wherein he alleges that the police jury “unlawfully appropriated, without consent, authority of,' or compensation” the above described land.

Defendant contends that this allegation controls the kind of action, and that it alleges an action in tort, and is barred by the prescription of one year.

We cannot agree with the contention of defendant. The claim is in the nature of a personal action for the value of the land.

Such a demand is not one for damages ex delicto, for a tort, or wrongful entry upon the lands of the claimant; it is in the nature of a personal action for the value of lands the fee to which has been passed to the police jury by a quasi alienation. Mitchell v. N. O. & N. E. R. R. Co., 41 La. Ann. 363, 6 So. 522; Taylor v. N. O. Terminal Co., 126 La. 422, 52 So. 562, 139 Am. St. Rep. 537.

Articles 2630 to 2633 of the Revised Civil Code provide for the expropriation of property for roads by any corporation constituted under the laws of this state. The articles of the Code cited are identical with section 1479, 1480, 1481, and 1482 of the Revised Statutes. Section 1479 of the Revised Statutes was amended and re-enacted in 1886 by Act No. 117 of that year. The effect of that amendment was to give to the state, and to any political corporation thereof, the same right to expropriate lands for the public use as was given railroads and other quasi public corporations for their purposes under the procedure provided by sections 1480 and 1481 of the Revised Statutes, or, which is the same, under that provided by articles 2631 and 2632 of the Revised Civil Code, and to amend article 2630 of the Code accordingly. Since the passage of Act No. 117 of 1886, section 1479 of the Revised Statutes has been amended by Act No. 96 of 1896, Act No. 227 of 1902, Act No. 208 of 1906, and Act No. 123 of 1910, but in each of these acts the right granted the state and its political corporations by the Act of 1886 has been retained. Act No. 95 of 1921 (Ex. Sess.) deals with the same matter but is only applicable to highways that have been designated as state highways by acts of the Legislature. There is also an act of the Legislature of 1928 (No. 176), dealing with the same matter, but having been passed since the completion of the road involved in this suit, can have no effect here.

We review the law applicable to expropriating land for right of way for public roads, for the purpose of showing that the law of the state specifically sets out in what manner a police jury or other corporate body can and should acquire rights of way.

Amendment 5 to the Constitution of the United States reads, m part, as follows:

“Nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation."

Section 2 of-article 1 of the Constitution of Louisiana reads as follows:

“No person shall be deprived of life, liberty or property, except by due process of law. Except as otherwise provided in this Constitution, private property shall not be taken or damaged except for public purposes and after just and adequate compensation is paid.”
“No one can be deprived of his property unless for some * * * public utility and on consideration of an equitable and previous indemnity and in a manner previously prescribed by law.” Rev. Civ. Code, art. 497.

It can be readily seen that for the police jury to take plaintiff’s property without his consent, and without instituting expropriation proceedings, was unlawful appropriation by the police jury, and an allegation to that effect does not change the action from a personal action for the value of the land taken to one in tort.

The plea of prescription of one year is overruled.

It is unnecessary to review the evidence in passing on the merits of the case. The district judge has written an opinion which, we think, is correct. There is no denying that 4ys acres of plaintiff’s front and best land was taken in the right of way for the road, and that 803/1000 of an acre was divided into two small triangles and segregated from the remainder of the laud. The very situation of those triangular pieces, between the road and the levee, render them useless to the plaintiff and of no value to him.

The testimony as to the value of the land is conflicting, varying from $50, by one defense witness, to $100 an acre by the plaintiff and his witnesses.

The lower court fixed the value of the land at $85 per acre, and we see no reason to disturb his finding.

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


author: WESTERFIELD, J. JANVIER, J.

text:
    No. 12,006
    Orleans
    UNITED STATES FIDELITY & GUARANTY CO. v. CABRIAC
    (June 16, 1930. Opinion and Decree.)
    (July 1, 1930. Rehearing Refused.)
    (July 7, 1930. Writ of Certiorari and Review Refused by Supreme Court.)
    Spearing & Mabry, of New Orleans, attorneys for plaintiff, appellee.
    Harold A. Moise, of New Orleans, attorney for defendant, appellant.
   WESTERFIELD, J.

For the reasons assigned in the case of United States Fidelity & Guaranty Company v. James Thomas, (La. App.), 129 South. 556, decided this day, it is ordered, adjudged, and decreed that the judgment of the district court be, and it is, reversed, and it is now ordered that there be judgment in favor of R. J. Cabriac, defendant herein, dismissing plaintiff’s demand.

JANVIER, J.

(dissenting). For the reasons given in my dissenting opinion in the case of United States Fidelity & Guaranty Company v. James Thomas, 129 So. 556, this day decided, I respectfully dissent.


text:
    No. 3755
    Second Circuit
    THE SOWERS CO. v. MELTON
    (July 5, 1930. Opinion and Decree.)
    (July 31, 1930. Rehearing Refused.)
    Eugene Beck, of Winnfield, attorney for plaintiff, appellee.
    Cas Moss, of Winnfield, attorney for defendant, appellant.
   WEBB, J.

The Sowers Company obtained judgment against Charley Melton on April 10, 1926, for $88.90, with legal interest thereon from March 1, 1925, until paid, and all costs of suit.

On September 28, 1929, a writ of fi. fa. was issued for the amount of the judgment, interest, and costs of $15.50, under which the sheriff seized an automobile belonging to Melton, and he brought the present suit.

Plaintiff alleged the facts above stated, and that he had paid the judgment sought to be executed in September, 1926; that defendant had given him an order to the clerk of the court to cancel judgment, and that he (plaintiff) had neglected to have it canceled; that he had sustained damages to the extent of $150 by the seizure of the property; and that, in order to conserve his rights, it was necessary that the defendant, the Sowers Company, and the sheriff be enjoined from selling the property.

And he prayed that a rule nisi issue to the defendants to show cause why a preliminary writ of injunction should not issue, for the issuance of a restraining order pending hearing on the rule, and for the Issuance of a preliminary writ of injunction, and, on final trial, for judgment against the defendant, the Sower Company, decreeing the judgment sought to be enforced to have been paid, and ordering the same canceled, and perpetuating the preliminary injunction, and for general relief.

A rule nisi and a restraining order were issued, and the defendants, after excepting to the rule, on grounds not necessary to be mentioned, answered denying that the judgment sought to be executed had been paid, and prayed that the restraining order be recalled, the rule discharged, and the injunction refused, and for damages against plaintiff for attorney’s fees.

On trial of the rule, evidence was introduced relative to whether the judgment had been paid, and judgment was rendered recalling the restraining order, discharging the rule, and refusing to enjoin the sale of the property; and plaintiff appeals.

Defendant moved to dismiss the appeal, on the ground that this court was without jurisdiction.

It is conceded that where the jurisdiction of this court is dependent solely upon the amount involved it has jurisdiction where that amount is in excess of $100, exclusive of interest, and does not exceed $2,000, exclusive of interest (sections 29 and 10, art. 7, Const. 1921), and that, if either the amount of damages alleged to have been sustained by plaintiff, or the amount to be collected under the writ of fi. fa., which includes the principal sum of $88.90, interest thereon, and costs of suit, may be considered in fixing the amount involved, this court has jurisdiction.

But appellee urges that plaintiff- did not pray for judgment for any damages, and, eliminating any question of damages, the demand is to have the judgment decreed to have been paid, and to enjoin the execution; and appellee contends that, in such an action, neither the interest due on the principal sum of the judgment, nor the costs of suit, can be considered in determining the jurisdiction of the court, but that the principal sum of the judgment alone may be considered.

In the absence of a prayer for judgment for damages, we do not think the allegation that damages had been sustained of an amount within the jurisdiction of the court may be considered in fixing the amount involved or the jurisdiction; and, eliminating any question of daniages, and passing any question which might have been presented had plaintiff prayed for judgment for damages, the demand is to have the judgment decreed to have been paid and to restrain the execution, and the question presented is whether or not either the interest due on the principal sum of the judgment or the costs of suit may be added to the principal sum of the judgment in determining the jurisdiction of the court.

We gather from the argument that the position of the appellee is based upon the theory that the action to have a judgment decreed to have been paid and to restrain the execution is an incidental or supple-, mentary proceeding to the suit in which the judgment sought to be executed was rendered, and that an appeal from the judgment rendered in the incidental proceeding must be to the court which would have had jurisdiction of an appeal from the judgment in the principal action, and that, where the judgment sought to be executed was final, and the defendant had no right of appeal therefrom, as is conceded to have been the case in respect of the judgment sought to be executed, there could not be any right of appeal from the judgment rendered in the incidental proceeding.

There is not any decision cited in which it has heen stated that an action to have a judgment decreed to have heen paid, and to restrain the execution, is a proceeding-incidental to that in which the judgment was rendered, such as would he the case where the matter relates solely to the execution of the judgment. Klein v. Wild, 12 La. Ann. 87. But there are a number of cases in which it has been held that, where the judgment debtor seeks to enjoin the execution of a judgment on the ground that it is invalid, an appeal from the judgment rendered in such a proceeding could not he taken to the Supreme Court if it was not vested with appellate jurisdiction of the judgment the execution of which was sought to be enjoined, even though the plaintiff in such action alleged and prayed for damages in an amount within the jurisdiction of that court. Cushing v. Sambola & Ducros, 30 La. Ann. 426; Denegre v. Moran, 36 La. Ann. 423; also Marshall v. Holmes, 39 La. Ann. 313, 1 So. 610; Strain’s Heirs v. Lyons, 114 La. 646, 38 So. 483. And, as we gather from the decisions cited, the basis of the ruling was that, under the laws and jurisprudence of this state, the action of nullity, and to restrain the execution of a judgment, being vested in the court that rendered the judgment and issued execution ther.eon (articles 608, 610, 617, 619, Code Prac.; Arthurs v. Villere, Sheriff, 43 La. Ann. 414, 9 So. 126; and authox'ities cited; Schmidt & Zeigler v. Brown, 33 La. Ann. 416), all such actions must, at least as to jurisdictional matters, be regarded as incidental to the original proceeding in which the judgment was rendered under which execution was issued.

There is, of course, quite a distinction between an action by a party defendant to a judgment to annul the judgment and, as an incident, to restrain the execution, and an action to have the judgment decreed to have been paid and, as an incident, ro restrain the execution of the judgment, and there may be reasons why the former should be regarded as an incident of the original proceeding while the latter should not, or vice versa; but in either case the court in which the judgment was rendered would have original jurisdiction, and we think the decisions cited are applicable here, and that the present action must be regarded as an incident of the original proceeding, and the amount involved or jurisdiction of the court must be determined by the principal sum of the judgment the execution of which was sought to be enjoined, and not, as suggested by appellant, by the value of the property seized under the fi. fa. Lhote & Co. v. Church Extension Society, 115 La. 487, 39 So. 502, and authorities cited.

The demand in the original action was for $88.90, with interest, and costs; and, as stated, the defendant in execution, plaintiff here, did not have any right of appeal from the' judgment, even though the interest, due on the claim at the time of the suit, if added to the principal, or the costs of suit, if added to the principal, would have exceeded $100 (Wilkins v. Gantt, 32 La. Ann. 929), as the demand for interest and costs of suit, and the allowance thereof, was merely incidental to the principal demand (Nugent v. Delhomme, 2 Mart. (O. S.) 307; Saul v. His Creditors, 5 Mart. (N. S.) 569, 16 Am. Dec. 212); and we do not think that either the interest or the costs may he' considered, or added to the principal sum of the judgment whose execution is sought to be enjoined, so as to vest this court with jurisdiction.

It has been expressly decided that the interest could not be considered (Schmidt 6 Zeigler v. Brown, supra), and in Arthurs v. Villere, Sheriff, supra, it was said, in substance, that the law vesting exclusive original jurisdiction of an action to annul, or to enforce execution of, a judgment in the court which rendered the judgment, was for the purpose of avoiding conflict between courts, and, had the original suit been instituted before a justice of the peace’s court, which had concurrent jurisdiction with the district court which rendered the judgment sought to he enjoined, it would not he contended 'that the justice of the peace’s court lost control or jurisdiction if the amount of the costs of the suit added to the principal of the judgment exceeded the maximum limit of that court’s jurisdiction, or that the district court could have enjoined the execution of the judgment of the justice of the peace court on the theory that the amount involved was within the exclusive original jurisdiction of the district court.

We are of the opinion that the motion to dismiss the appeal should be sustained, and it is therefore ordered that the appeal be dismissed, at appellant’s cost.


text:
    No. 3760
    Second Circuit
    LE BLANC v. GUY
    (June 2, 1930. Opinion and Decree.)
    (July 5, 1930. Rehearing Refused.)

      Overton & Hunter, of Alexandria, attorneys for plaintiff, appellee.
    S. I. Foster, of Leesville, attorney for defendant, appellant.
   DREW, J.

Plaintiff instituted this suit against defendant in the enforcement of a contract of lease for the year 1929, and to recover certain property claimed by plaintiff in the possession of defendant. Writs of provisional seizure were issued to enforce his lessor’s lien, 'and sequestration to enforce his claim of ownership.

Plaintiff leased to defendant under verbal contract his farm for the year 1929, as he had previously done in 1928 and 1927. The rental for 1927 was a cash rental of $200; the defendant paid part of this rent; and plaintiff cai’ried him for the balance. Under the 1928 agreement, plaintiff was to receive one-fourth of the crop, and he received that portion for that year, with the exception of the potato crop, which was sold by defendant, and plaintiff credited with his one-fourth on the account defendant kept of his dealings with plaintiff. Under the 1929 contract, plaintiff was to receive one-fourth of the cotton, corn, and potatoes and one-half of the cane.

During the month of August, or the early part of September, 1929, plaintiff notified defendant that he did not expect to lease the place to him for the following year, and, as usual, when lessor and tenant decide to part ways, the trouble began. Defendant picked and ginned and sold two bales of cotton without the knowledge or consent of plaintiff, and also moved some bee equipment and hogs and beehives from plaintiff’s place to another place not owned by plaintiff, which will hereafter be spoken of as the “Lake Place.”

On September 13, 1929, plaintiff instituted this suit claiming a lessor’s lien on the crop grown on the place and all other movable property situated thereon, alleging that defendant • had removed and disposed of two bales of cotton, and had gathered two other bales which he was preparing to dispose of without accounting to plaintiff for his one-fourth; that he had good reason to believe that defendant would remove and dispose of all the property on the place on which plaintiff had a lessor’s lien. He sets out in his petition the number of bales of cotton grown on the place as five, and the number of bushels of potatoes to be 120, and corn to be 300 bushels and the sugar cane 100 tons. He had issued a writ of provisional seizure, and had seized thereunder all the movable property, together with the crops then on his place and the property that had been moved to the Lake place. 'He claims the ownership of 55 pieces of bee equipment that had been removed to the Lake place and half interest in 20 head of hogs that had been removed to the Lake place, and five beehives and 40 pounds of wax foundation. He alleges, in conformity with article 275 of the Code of Practice and Act No. 190 of 1912, that he is ■ the owner of said property, and that it lies within the power of defendant to part with, conceal, and dispose of said property, and that a writ of sequestration is necessary to protect his rights in the premises and under said writ seized the above-described property.

He further sets up an open account against defendant for balance due on 1927 rent, and other items he alleges he has furnished to defendant, and prays for judgment against defendant declaring plaintiff to be the owner of the property seqtiestered on the Lake place and for recognition of his lessor’s lien and privilege on the crop and other movables seized under the writ of provisional seizure, and that he be entitled to one-fourth of the cotton, corn and potatoes, and one-half of the sugar cane grown on the place in the year 1929, for the maintaining of both writs, and for judgment on the open account in the amount of $88.25, less a credit of $21.60.

Defendant filed a motion to dissolve the writ of provisional seizure, but the record does not disclose that it was ever tried or passed on by the lower’ court, except in the trial on the merits. We are therefore bound to assume that it was referred to the merits, and we will treat it as such. Defendant answered, admitting the quantum of the crop, as alleged by defendant, and admitted the contract of lease, with the exception that he alleges that plaintiff was to furnish fertilizer for the cane and pay half the expense of gathering it, and to furnish a mill to make it into syrup; he denied that he had removed any of the crop and that any of the property removed to Lake place was the property of plaintiff; he further alleges that plaintiff after entering into the contract, notified him that he wanted his part of the cotton in the seed, and that he had weighed out one-fourth and left it in the house for plaintiff. He alleges that plaintiff violated his agreement by not furnishing fertilizer for the cane and failed to furnish mill to grind the cane, and should not be entitled to half the cane and that the agreement should be reduced to one-fourth of the cane. He alleges that he tendered plaintiff a full bale of cotton prior to filing of the suit, which was refused by plaintiff. He sets up an account against plaintiff extending over the years 1927, 1928, and 1929, amounting to $12.75 more than the account of plaintiff against him, and prays in reconvention that he have judgment against plaintiff in that amount and dissolution of the writs of provisional seizure and sequestration, and for damages in the sum of $50 for dissolving the writs. By amended answer, he sets up an additional item of $25 for orchard he had planted on plaintiff’s place; $38.40 for honey taken by plaintiff; $4 for garden fence wire; $5 for labor in building said fence; $100 for loss of hogs seized by failure to sell or kill them while fat; and asking that the amount of attorney’s fees for dissolving the writs be increased to $100.

On these issues the case went to trial in the lower court, and judgment was rendered rejecting plaintiff’s demands on the open account and rendering judgment in favor of defendant in reconvention in the sum of $12.73. Plaintiff was recognized as the owner of, and entitled to one-fourth of, the cotton, corn, and potatoes and one-half the cane; granting to defendant judgment against plaintiff for the expenses of providing a mill, and one-half of the expense of saving the cane. Held that all hogs removed to the Lake place, with the exception of six partnership hogs, belonged to defendant, and that defendant was the owner of all other property removed to the Lake place. Further held that plaintiff should elect whether he would keep the 25 fruit trees planted by defendant and the wire around the garden, and, if he did elect to keep them, he must pay to defendant $25 for the trees and $4 for wire, otherwise defendant could remove same; that his decision must be made within thirty days. Rejected demands of defendant for honey alleged to have been taken by plaintiff and for damages alleged to have been caused by sequestration of the hogs as of nonsuit; reserving to defendant the right to sue for any damages caused him by this suit; dissolving the writs of provisional seizure and sequestration and awarding damages to defendant in the sum of $50 as attorney’s fees.

From this judgment, defendant has appealed.

PROVISIONAL SEIZURE

Although defendant in his answer denied that he had removed any of the property off the place, after plaintiff had proved conclusively that he had removed, ginned, and sold two of the five bales of cotton, and that defendant’s son had told him that he intended removing two more, he admitted that he had sold two bales of cotton and gotten the money for them, that he did so without consulting plaintiff, and did not attempt to account to him for any part of the money. He relies solely on the fact that he had weighed out one-fourth of the cotton and left it in the cotton house for plaintiff, due to the fact that plaintiff had said that he wanted his cotton in the seed. He also admitted that he had removed from the place of plaintiff to the Lake place, 16 head of hogs, 6 of which he admitted were partnership hogs of himself and plaintiff; that he had removed also beehives and bee equipment and some wax foundation, claiming it was his personal property or else borrowed from plaintiff, and that plaintiff had knowledge and gave his consent to the removal; that a part of the bee equipment, etc., was removed .nearly a year before filing the suit.

Defendant relies on case of La. Farm Bureau Cotton Growers’ Co-op. Ass’n v. Clark, 160 La. 294, 107 So. 115, 119, in which the court said:

“The defendant, in the present case, leased his plantation during the year 1924 to tenants on the share system, or for one-fourth of the cotton produced. It is evident, therefore, that, after paying advances and settling with the landlord for his one-fourth of the crop, the tenants had the undoubted right to take their part of the crop off and sell it, or to sell it in the field. * * *
“Under the laws of this state, however, the landlord has no legal control over the portion of the crop falling to his tenants working under share contracts, as the tenant and the landlord stand upon equal ■footing as to ownership in the crop pro.duced. The tenant, as well as the landlord, is equally master as to his interest, and may sell or otherwise dispose of the •same, after paying his advances and delivering to the landlord his part of the crop.”

■ -The above decision cannot be of much comfort to the defendant here, for he removed the cotton from the place and sold it 'without the knowledge or consent of the 'plaintiff and before he had delivered to the plaintiff, his landlord, his part of the ■crop. He did not give plaintiff the opportunity of being present at the weighing of the cotton or the division of the cotton— a right he most certainly had. One piece of cotton may be good and of one grade and another piece may be entirely different, and plaintiff had the right to have the division of cotton made in his presence, •if that was the contract, or he should have been given, at least, the opportunity to be present.

The fact that there was cotton in the field or in the cotton house sufficient to deliver plaintiff his one-fourth was not a compliance with the obligation of defendant, and the fact that he did move two bales of cotton off the place and sold them without accounting to plaintiff for his one-fourth is sufficient grounds for the issuing of a writ of provisional seizure under the laws of this state. And the removing from the place of any personal property was sufficient for the issuing of the writ of provisional seizure, regardless of the intention of defendant when moving it. He was putting it beyond the reach of plaintiff, who had a lessor’s lien on all property on the place, except that which is excepted by article 2707 of the Civil Code.

In Dillon vs. Porier, 34 La. Ann. 1103, the court held that:

“The landlord is not concerned with the tenant’s honest intent to pay, but in the defeat of his privilege by removal.”

In Honeycut v. Whitten, 149 La. 891, 90 So. 230, 234, the court said:

“Concluding, as we do, that plaintiff’s rights at the time of the institution of this suit were those of a lessor, it was immaterial, or the purposes of the exercise'of that right, whether the rent was due or to become due, since the right to seize the property that was subject to his privilege was the same in either case, and was dependent only upon his truthfully making the affidavit required by C. P. 287.”

In Hyman v. Hibernia Bank & Trust Co., 144 La. 1083, 81 So. 718, 721, the court said:

“When the lessor sues for his rent, whether due or not due, if he fears that the property on which he has a lien may be removed from the building, he may provisionally seize the same by virtue of his lien. C. P. art. 287. What is the basis of the right to seize for the rent not due? It must undoubtedly be tbe lien as lessor.”
“The right of lessor to provisionally seize whether rent be due or not due, is not affected by the fact that property remaining on premises (lessee having removed some) affords ample security. Lessor has the right to determine the amount of security for himself. Millot v. Conrad, 112 La. 928, 36 So. 807.

In case of Dillon v. Porier, cited supra, the court said:

“Fraudulent intent on the part of the lessee is not an essential element in such case. Nay, the best and most honest intent will not avail him, because the crucial inquiry is, not whether the tenant did or did not intend to pay his rent, but whether he intended to remove the property upon which the privilege rests of securing its payment. The lessor has good reason to believe that the lessee will remove from the premises the property upon which he has a privilege, and thereby deprive him of his lien, the sole condition for the issuance of the writ exists. The intention of the lessee in removing it may be honest. His purpose may be thus to obtain the means for paying the rent, but that in nowise impairs the right of the landlord to prevent the removal by a seizure. While on the premises, it is absolutely subject to the landlord’s claim. If removed, he has only a limited time to pursue it, and only while owned by his tenant. The law, therefore, does not require t-hat he shall concern himself about his lessee’s honest intent to pay, but only whether his intent is to remove the property and destroy the lien, whether the motive of the removal be good or bad.”

The very fact that defendant removed from the place of plaintiff two bales of cotton and sold same without the knowledge or consent of plaintiff, or without first having settled with plaintiff for his one-fourth of the cotton, is sufficient to sustain the writ of provisional seizure, not considering the other property removed from the place by defendant on which plaintiff had a lessor’s lien and privilege. The rule may seem harsh, and in some instances it is, but it is nevertheless the law and jurisprudence of this state.

The writ of provisional seizure should, have been sustained by the lower court recognizing plaintiff’s lessor’s lien and privilege on the property seized on the place owned by him and recognizing him as owner of one-fourth of the cotton, corn, and potatoes raised on that place during the year 1929, and recognizing him as owner of one-half of the cane raised.

Plaintiff paid for the seed cane, amounting to more that $21, and the defendant hauled it at a cost of $9.60. Defendant was given credit for the $9.60 in settling the account between the parties by the lower court, and is part of the judgment of $12.73. The question of fertilizer has no bearing in the case, the evidence being very conflicting as to that part of the agreement and the preponderance in favor of plaintiff. However, defendant is not asking for damages for diminution of cane crop for lack of fertilizer, and did not buy any himself. It has no bearing on the: case. As to the mill to make the cane into syrup, it is shown that the cane was hot ripe for saving until the latter part of November or December, and that on the 10th of September, plaintiff notified defendant that he had secured a mill for that purpose, and was told by defendant that he had made other arrangements. If defendant had made other arrangements; at that time of the year, he was hasty; and, when plaintiff offered to furnish him a mill at least two months before time to use it, we think plaintiff complied with that part of the agreement.'

This case was tried in the lower court before the cane was ripe for saving, and this court cannot say that plaintiff will not comply with his agreement to pay half of the expense of saving the cane before lie is put in default. He could not be put in default until tbe time arrives to save tbe cane and make it into syrup; therefore that part of the judgment of the lower court wherein judgment was rendered in favor of defendant and against plaintiff for one-half the expense of saving and grinding the cane is erroneous, and should be reversed.

The lower court rendered judgment requiring plaintiff to elect within thirty-days whether or not he would pay $25 for some fruit trees, and, if he refused to pay for them, that defendant could remove them from the place. We think that part of the judgment is erroneous. The testimony shows that plaintiff furnished defendant with 25 trees to be planted at defendant’s request, and the testimony that defendant planted other trees is very indefinite, and there is nothing certain as to what trees he planted. If he planted any, he did so without the knowledge or consent of plaintiff. The judgment as it stands would give defendant the right to dig up any 25 fruit trees on plaintiff’s place and move them off. The evidence is too indefinite and uncertain to base a judgment on, and that part of the judgment is reversed.

The claim for damages caused from the sequestration of the hogs and the claim for honey taken by defendant were non-suited in the lower court. We think this an error. Defendant failed to establish his claim for the honey, and his demands for same should have been rejected, and the seizure of hogs will be dealt with later in this opinion.

WRIT OF SEQUESTRATION

Plaintiff sequestered five beehives, with bees; 55 (pieces of bee equipment; 40 pounds of wax foundation; 20 head of hogs, all found on the Lake place, claiming same as owner, and alleged that it was within the power of defendant to dispose of, conceal, and part with said property.

The lower court found that all the property belonged to the defendant, with the exception of six hogs, which he found to be partnership hogs of plaintiff and defendant, and dissolved the writ of sequestration. However, on the trial of the case, defendant admitted that 48 (pieces of the bee equipment were the property of the plaintiff. There can be no dispute over that, and he admits that six head of the hogs were partnership hogs. It is true that in his answer he denied that he had taken any property belonging to plaintiff to the Lake place.

On the admission of the defendant that the 48 pieces of bee equipment and six hogs were owned in part by plaintiff, - we think the writ of sequestration should have been sustained as to that part of the property seized.

Under Act No. 190 of 1912, in order to sustain a writ of sequestration is to allege that it is within the power of defendant to dispose of, conceal, or part with the property in his possession that belongs to plaintiff or that plaintiff has a privilege on. This allegation was properly made by plaintiff, and it need not be supported by proof of his fear. The fact that defendant has the power to part with, dispose of, or conceal is all that is necessary to sustain the writ when ownership is proven of the property sequestered by the plaintiff. Barnett Furniture Co. v. Martel, 3 La. App. 234; Gueydan v. Ranch Co., 156 La. 397, 100 So. 541; Bomer Co. v. Shapiro, 148 La. 736, 87 So. 729; Lowden v. Robertson, 40 La. Ann. 825, 5 So. 405.

Property of joint owners may be sequestered at the instance of one of the owners for good cause. Interstate Land Co. v. Doyle, 120 La. 46, 44 So. 918; Blanchard v. Luce, 19 La. Ann. 47.

When one of the owners denies the ownership of the other in and to the property jointly owned, the writ of sequestration will issue. In the case of Adeline Sugar Factory v. Theriot, 126 La. 471, 52 So. 667, the court said:

“In cases involving ownership and possession, the fear of the plaintiff must be considered to be justified by the mere fact of the denial of his ownership, coupled with the present opportunity of the defendant to dispose of the property.”

This case was decided before the Act of 1912, and, when thought of in that light, makes it much stronger from the plaintiff’s standpoint. The court cited therein the following cases: Boatner v. Wade, 14 La. Ann. 695; Lannes v. Courege, 31 La. Ann. 74; Yun Loy Co. v. Rosser, 52 La. Ann. 1728, 28 So. 251. And holding in cases involving mere privilege some further proof was required.

The judgment of the lower court in. dissolving the writ of sequestration is erroneous, and must be reversed. The sequestration should have been sustained insofar as it applied to the six partnership hogs and the 48 pieces of bee equipment, and plaintiff recognized as the owner thereof. We will not disturb the lower court’s finding as to the five beehives with bees and the 40 pounds of wax foundation.

The lower court has attempted to adjust the difference between plaintiff and defendant in their open accounts, and has filed a tabulation of same in which he finds that defendant has a claim of $3.03 against plaintiff, plus $9.70, for hauling the seed cane, and we are not inclined to disturb his findings on these items.

Plaintiff in the past has been very kind to defendant; allowed his daughter to spend some months at his home in Shreveport while taking a business course, with no charge for board or room; and, when defendant’s wife was sick in New Orleans, plaintiff kept her in his home to recuperate, and furnished her with transportation to her home — all without charge to defendant — and, as he testifies, he did not expect defendant to charge him for every little thing that he performed for him, such as hauling one load or putting together some bee equipment, etc.; however, defendant either performed these little jobs at the request of plaintiff or with his knowledge and consent, and is legally entitled to re’cover for his work.

Due to the many phases of this case and our finding, it will be necessary to redraft the judgment.

It is therefore ordered, adjudged, and decreed that there be judgment in favor of plaintiff, Homer P. Le Blanc, and against the defendant, William J. Guy, maintaining the writ of provisional seizure sued out herein on the property seized thereunder and recognizing the plaintiff’s lessor’s lien and privilege thereon.

It is further ordered, adjudged, and decreed that plaintiff recover of defendant one-fourth of the cotton, corn and potatoes, and one-half of the cane raised on the place during the year 1929.

It is further ordered, adjudged, and decreed that the writ of sequestration sued out herein be maintained insofar as the seizure of 48 pieces of bee equipment and the six head of partnership hogs seized on the Lake place, -and the plaintiff is recognized as the owner of the 48 pieces of bee equipment and one-half interest in the six hogs.

It is further ordered, adjudged, and decreed that the defendant do have and recover judgment against the plaintiff in the sum of $12.73, with legal interest thereon from judicial demand until paid.

It is further ordered, adjudged, and decreed that all other demands of defendant in reconvention against plaintiff be rejected except the wire around the garden of the value of $4, purchased by defendant, which he has the right to remove.

It is further ordered, adjudged, and decreed that the costs of the lower court as to the writ of sequestration as provisional seizure be paid by defendant and the costs of suit as to the open account be paid by plaintiff; the costs on reconvention demand of defendant to be paid by plaintiff; costs of appeal to be ©aid by defendant and appellee.


author: ODOM, J.

text:
    No. 3770
    Second Circuit
    COX ET AL. v. ROCKHOLD (GABLE, Intervener)
    (June 2, 1930. Opinion and Decree.)
    (July 5, 1930. Rehearing Refused.)
    W. J. Hammon and H. W, Ayres, of Jonesboro, attorneys for plaintiffs, appellants.
    Moss & Moss, of Winnfield, attorneys for intervener, appellee.
   ODOM, J.

The above are separate suits, but, as the questions in each are identical and as they were tried together in the district court, we shall consider them as one.

The defendant, S. J. Rockhold, is, it seems, a contractor and builder. He owned a tract of land situated partly within and partly without the corporate limits of Jonesboro, Jackson parish, which tract he subdivided into lots. Beginning in the latter part of November, 1927, and continuing through a period of something over a year, he erected ten small residences on his tract or subdivision, each, it seems, on a separate lot. He built these houses himself on his own property and for his own account.

He employed J. P. Gable to do the plumbing work for all ten houses, and agreed to pay $215 per house for the water plumbing, including fixtures, which consisted of a bathtub, lavatory, commode, hot water tank, and kitchen sink for each house, and agreed to pay $20 additional for the gas plumbing in each house. The contract price for the plumbing in the ten houses amounted to $2,350.

The day on which Rockhold began to build these houses is not definitely fixed, but it must have been in the latter part of November, 1927, as it is shown that Rockhold’s contract with Gable, the plumber, was entered into about December 15th, and he began work on that date, there being one and probably two houses completed at that time. As Rockhold was building the houses himself and not by contract, the work seems to have proceeded slowly, so that the last of the ten houses must have been completed more than a year after the first was begun. The testimony does not show whether he was doing work or having it done on more than one house at the same time. It is shown, however, that his building program included the erection of ten houses on his subdivision, and that he made one contract with the plumber, Gable, to do the plumbing work on all ten houses at an upset rprice of $2,350, including gas plumbing and the fixtures, this being figured at $235 per house.

On March 19, 1928, some three months after the plumber had begun his work on the houses built up to that time, Rock-hold mortgaged a portion of this subdivision, including lots on which some of these houses were built, to the plaintiffs, J. E. Cox and Paul P. Stinson, for $7,000, which mortgage was recorded. In November following, he mortgaged to J. E. Cox other portions of the property, including all improvements, for $10,000, which mortgage was also recorded.

In April, 1929, plaintiffs, Cox and Stinson, brought foreclosure proceedings by executory process against Rockhold, the property mortgaged being seized and advertised for sale. But, before the date of sale, the plumber, Gable, intervened, claiming the first privilege on the buildings which he had plumbed, for the unpaid balance due him, and asked that these buildings and lots be sold separately from the other property subject to plaintiffs’ mortgages, and that the proceeds be held until further orders of the court. The court ordered a separate sale, and the proceeds held, as prayed for.

Gable, the plumber, made out a sworn statement of his account, and had it recorded on May 18, 1929, which he claims was within sixty days after the completion of the work. The claim of Gable against Rockhold for the balance due him for plumbing the houses is not contested; but the plaintiffs, Cox and Stinson, contend, first: that Gable has no privilege because his contract with Rockhold for the plumbing was not reduced to writing and no bond given; second, that a sworn statement of his account- was not recorded within sixty days after the work was completed, as required by Act 298 of 1926; third, that; if it be held that Gable has a lien, it is subordinate to theirs, having-been recorded subsequently. We dispose of these contentions in the order named:

(1) Section 2, Act No. 298 of 1926, which was in force at the time these transactions took place, provides that every. contract entered into for the construction or improvement" of any work on immovable property by any undertaker, general contractor, or master mechanic or other person undertaking such general contract with the owner, shall be reduced to writing, signed by the parties thereto, and shall be recorded before the date fixed for the beginning of the work and not more than thirty days after the date of the contract, “and such recordation shall preserve the liens and privileges which are created by this act on the building or other work of improvement, and on the land on which it is situated, in favor of every undertaker, architect, consulting engineer, contractor, master mechanic, or contracting engineer, and all sub-contractors, workmen, journeymen, cartmen, truckmen, laborers,'mechanics, or furnishers of material,” etc.

It is contended by counsel for plaintiff that this method of preserving liens in favor of those who perform work or furnish material for the improvement of real estate is exclusive; that one who contracts to do such work as plumbing houses can preserve his lien in no other way than by having his contract for doing the work reduced to writing and recorded.

The error into which counsel has fallen results from the fact that they seem to have overlooked section 12 of the same act which provides that, when the owner himself undertakes the construction of the work for his own account, and “for which no contract has been entered into, or when a contract has been entered into but has not been recorded, as and when required by this act, then any person furnishing service or material or performing any labor on said building or other work may record in the office of the Clerk of Court or Recorder of Mortgages in the parish in which said work is being done or has been done a copy of his estimate or an affidavit of his claim or an;/ other writing evidencing same, which recordation, if done within sixty days after the date of the last delivery of all material upon said property or the last performance of all services or labor upon the same, by said furnisher of material or said laborer, shall create a lien and privilege upon the building or other structure and upon the land upon which it is situated, in favor of any such person who shall have performed service or labor or delivered material in connection with the said work of improvement, as his interest may appear.”

It is manifest, therefore, that the method prescribed in section 2 of the act for creating and preserving liens, that is, by having the contract for the work reduced to writing and recorded, is not exclusive. The method prescribed in section 12 of the act “creates liens and privileges” in cases like the one here presented. Rockhold owned the land on which he erected houses for his own account, or “for the account of said owner.” He let no contract for the building Of the houses; he was his own contractor, his own builder. Gable, the plumber, did precisely what this section of the act says one shall do when he does work for the owner who undertakes the work of construction for hipiself. He made out a sworn statement of his account, and had it recorded in the clerk’s office of the parish where the work was done. Such recordation, if done in time, created a lien in his favor on the building and the lots on which they were situated.

In the case of Hortman-Salmen Co., Inc., v. White, 168 La. 1067, 123 So. 715, 716, the Supreme Court held that the method prescribed by section 12 of this act is applicable where the owner lets no contract for the erection of the building. See Jahncke Service, Inc., v. McGuire et al., 9 La. App. 698, 119 So. 765.

(2) Counsel contend that Gable’s claim was not recorded in time. He recorded a sworn statement thereof on May 18, 1929. Section 12 of the act provides that the recordation of the sworn statement “within sixty days after the date of the last delivery of all material upon said property or the last performance of all services or labor upon the same * * * shall create a lien and privilege upon the building, etc.”

The testimony shows beyond question that the last labor performed on this plumbing job was either in the month of April or May, 1929, less than sixty days previous to the date on which the claim was recorded. It was therefore recorded in time. But it is contended that the last work done was only repair work and not “the last performance of all services or labor upon the same” as contemplated under the act. In the case of Hortman-Salmen Co., Inc., v. White, supra, the. court said:

“What is meant by the statute, as relates to the recordation of claims, where no contract has been entered into or recorded, is that the claim must be recorded by the claimant within sixty days after the date of the last delivery of material, or the last service performed or labor done, to complete the work”; and that,: “The correcting of defects, which may appear from time to time in the work after the building is considered and treated as completed, are not to be counted or deemed as part of the labor contemplated by the statute, in fixing the time, nor should material or services furnished for that purpose be so regarded.”

The district judge, to whom we are indebted for a most elaborate and lucid, written opinion, in distinguishing the above-cited case from the one at bar, said:

“Before the plumbing job was accepted by Rockhold it had to be inspected by the town iplumbing inspector and receive his O. K. This was done, and some changes were made under the order of the inspector; and when the water and gas were turned on, and the plumbing was seen to function properly, the owner considered the work done according to contract and accepted it. That, according to Rock-hold’s testimony, was April 5, 1929; and Rockhold failing to settle in full the plumbing bill, Gable made up his claim shortly afterwards and placed it on file for record thirty-six days later. These are facts that are established by the testimony of both Rockhold and Gable, arid substantially supported by witnesses, J. B. Gable, J. T. Donaldson and A. L. Myers. And there is no evidence that convinces me that these witnesses swore falsely and no reason why I should not give full faith and credit to the testimony.”

Our reading of the testimony convinces us that the plumbing work was not completed until April or May, 1929. The water plumbing was put in first, but the contract called for gas plumbing also, which was not done until some time after all the fixtures were installed. The work was never finally inspected and approved until April or May. The plumber had to go over each of the houses before final inspection and approval, and at which time he not only made corrections, but did additional work to complete the contract. ■The last work done was performance of service or labor for the completion of the work and not repairs or the correcting of defects.

(3) Rockhold’s contract with Gable called for the plumbing of ten houses, and the contention is made that the work on each house should be considered as a separate contract, and that the privilege on the first house was lost because the claim was not recorded within sixty days. We again quote the district judge and approve his ruling:

.“In the case at bar there was but one contract and transaction between Gable and Rockhold, and in this one transaction a blanket contract was entered into for the plumbing of all ten of the houses Rock-hold had planned to build, and did build. The lots were a part of one plot of ground divided only by an imaginary line separating the residences and the lots on which they were built from each other, they all belonged to Rockhold, who was himself doing all the building, and the same character and extent of work was to be done in each and every one of the ten residences. The fact that the plumbing was contracted for at the rate of two hundred and thirty-five dollars per house, aggregating twenty-three hundred and fifty dollars, did not constitute ten separate contracts, independent and distinct from each other. Gable’s contract was not completed and exigible until every one of the ten houses had been plumbed in good and workmanlike manner, and the plumbing in every one of the ten houses was functioning properly.”

Counsel cite the case of Crowley Lumber Co., Inc., v. Plaffer et al., 4 La. App. 606. The case is not in point. In that case there were two houses owned by different persons and two separate contracts. The court said:

“But the evidence does not show how much of the building material went into Dr. Plaffer’s building, nor how much into Mrs. Bonnette’s building”; and: “The ownership of the defendants being separate, the privilege provided by the law, C. C. Art. 3249, cannot be in solido.”

They also cite the case of Favrot Supply Co., Inc., v. U. S. Fidelity &’ Guaranty Co., 168 La. 841, 123 So. 593. The distinction between that case and the one at bar is marked. The court found:

“There are two separate and distinct contracts for the construction of two separate and distinct buildings, each contract covering its own particular building, described and referred to therein. The two contracts were entered into by the Sixth District Building & Loan Association for the account of two of its borrowers; each contract being for the benefit and advantage of a separate and distinct borrower.”

We find no merit in plaintiffs’ contention that their mortgage primed the lien and privilege of the plumber. Section 12 of the act provides that the lien and privilege of mechanics shall be superior to all other claims against the land and improvements, except taxes and local assessments, bona fide mortgages, and vendor’s privileges, “if said vendor’s privilege or mortgage exists and has been duly recorded before the work or labor is begun or any material is furnished.”

Gable, the plumber, began work on the contract in December, 1927. One of the mortgages was recorded in March and the other in November, 1928. The work having . been commenced previous to the recordation of the mortgages, the lien is superior to the mortgages. Capital Bldg. & Loan Ass’n v. Carter, 164 La. 388, 113 So. 886; Gleissner v. Hughes, 153 La. 133, 95 So. 529.

The judgments appealed from in these cases are correct, and we affirm them, with costs in both courts.