text:
    No. 3228
    Second Circuit
    BASS v. ROBY MOTORS CO., INC.
    (November 18, 1929. Opinion and Decree.)
    Albert P. Garland, of Shreveport, attorney for plaintiff, appellant.
    Wise, Randolph, Rendall & Preyer, of Shreveport, attorneys for defendant, appellee.
   REYNOLDS, J.

Plaintiff sues defendant for $288.56, with legal interest thereon from May 14, 1926, until paid. He alleges:

“That, on May 14, 1926, petitioner transferred and delivered to the said Roby Motors Company, Incorporated, represented by its salesman named Bense, a certain Oldsmobile coupe automobile for the price and sum of $288.56, agreeing that such sum should be applied as a credit on ‘any car’ to be thereafter purchased by petitioner from said Roby Motors Company, Incorporated, by and through its said salesman, gave petitioner a credit slip or memorandum to that effect, which will be produced on the trial hereof.”

We will interpolate here that the credit slip was produced on the trial and reads as follows:

No salesman’s verbal agreement is binding on the Company; all terms and conditions of this sale are expressed in this agreement; any promises or understandings not herein specified in writing are hereby expressly waived.
It is agreed that any used car purchased under this order is sold as is; we do not guarantee. Any adjustments or repairs made from this day on will be charged for. We do not guarantee the mileage or model.
It is agreed that any new car purchased under this order is subject to the manufacturer’s Standard Warranty, which is printed on the back of and made a part of this order, and that it is the only warranty either expressed or implied, made under this order.
It is understood and agreed that the title of ownership of car as above described does not pass to me until the final cash payment is made. I certify that the car I am trading in is free from all incumbrances whatsoever. This order is not binding unless authorized by an officer of the Company.
[Signed] Jos. G. Bass.
Address Shreveport, La. Phone No.........
Authorized by Roby Motors Co.
Salesman Benso.
Continuing, he alleges:
"That shortly thereafter and on several occasions petitioner selected a second hand automobile owued by said Roby jyiotors Company, Incorporated, for purchase by him, and demanded that the automobile so selected by him be sold to him and that he be given credit on the purchase price thereof for the above mentioned sum of $288.56, but the said Roby Motors Company, Incorporated, refused to sell him the automobile so selected, and contended that he was not entitled to any such credit unless he purchased a new or second hand automobile of a value of $1,000.00 or over.
“Petitioner further shows that the agreer ment made by him, as evidenced by the credit slip or memorandum, contained no •such condition that petitioner should be required to purchase an automobile of a value of $1,000.00 or up, at the time of signing by him; and that on the slip now in the possession of said Roby Motors Company, Incorporated, -the words and figures ‘$1,000.00 or up’ have been added by some person unknown to petitioner, and without his knowledge or consent, since he signed the same.”

Plaintiff further alleged that defendant had sold the automobile, he delivered it to some person, and for a price unknown to him, and that defendant refuses to inform him to whom or at what price it sold the automobile.

In a supplemental petition plaintiff alleged :

“That, since the filing of this petition, he has examined the carbon- copy of credit slip or memorandum mentioned in article two of his original petition, under a magnifying glass, and has observed that, under the words ‘credit on any car’, which were written by petitioner in his own handwriting, there are the figures ‘1000.00’, which are not in the handwriting of petitioner, which petitioner did not write on the original credit slip in the possession of defendant, and which were not on the original at the time petitioner signed it, and, if on the carbon at such time, petitioner did not observe it, and that at no time pri- or to March 3, 1927, did petitioner detect such figures on the carbon copy of such credit slip.”

And he further alleged that:

“Petitioner further shows that, regardless of whether the sum of $288.56 was to be a credit on any car of any price or any car of $1,000.00 or up, the contract between petitioner and defendant is null and Void for want of mutuality and for want of certainty . as to the object thereof, in that said defendant did not bind itself to sell any car and could withdraw therefrom by returning petitioner’s automobile or the sum of $288.56, and petitioner could not select and demand delivery thereunder any particular automobile.”

And he prayed that: •

“He have judgment as originally prayed for, or declaring such contract null and void, for want of mutuality and certainty as 'to object, and granting him judgment against defendant in the sum of $288.56 with legal interest from May 14, 1928.”

The defense is that the car was delivered to defendant by plaintiff to be credited at a value of $288.56 on the price of any ear plaintiff might purchase from defendant at a price of $1,000 or more, and the words and figures “$1,000.00” were on both the original and the carbon copy of the agreement when signed by plaintiff.

In the alternative, defendant alleged that it had' been compelled to pay $161.44 to secure the cancellation of a mortgage bearing on the car when delivered to it to secure the payment of an indebtedness of that amount, and it prayed that, in the event judgment should be rendered against it, it be allowed credit on the judgment by way of compensation for that amount.

On these issues the case was tried, and there was judgment rejecting the plaintiff’s demand and dismissing his suit, and he has appealed.

OPINION

At the inception of the trial, plaintiff offered parol evidence to prove the agreement between him and defendant, but the evidence was excluded on objection of defendant on the ground that it was an attempt to change, by parol evidence, a written contract between plaintiff and defendant, or to prove preliminary discussions or understandings leading up to an agreement that had been reduced to writing.

We are of the opinion that the evidence offered was competent and relevant, and that the court erred in refusing to permit it to be introduced.

The document is not a complete contract. It did not fix any time within which it should be carried out, nor any price for the new or old car that might be selected by plaintiff.

The. prohibition against admitting parol evidence against or beyond what is contained in an act, and against what may have been said before or at the time of making it, or since, relates to complete and unambiguous contracts. The document introduced in evidence is not a complete contract; neither .is it unambiguous; and, in addition, it is alleged by plaintiff to have been altered to his prejudice, without his knowledge or consent, since it was signed by him. We therefore think case a proper one for the admission of parol testimony.

It was held in Cousin v. Schmidt, 143 La. 843, 79 So. 427, that parol evidence was admissible to identify land imperfectly described in an agreement to sell and to establish the price agreed on as the price to be paid.

It is therefore ordered, adjudged, and decreed that the judgment appealed from be annulled, avoided, and reversed, and that the case be remanded to the city court of the city of Shreveport, La., and reinstated on its docket, with instructions to admit the parol evidence sought to be introduced and any other parol evidence as to the nature of the transaction between plaintiff and defendant, and for other further proceedings according to law; appellee to pay the cost of the present appeal. All other costs to await the final result.


source: Caselaw Access Project

author: REYNOLDS, J.

license: Public Domain

text:
    No. 3146
    Second Circuit
    GOODE v. NORTH SHREVEPORT REALTY CORPORATION (Two Cases Consolidated)
    (November 18, 1929. Opinion and Decree.)
    Cook & Cook, of Shreveport, attorneys for plaintiffs, appellees.
    Barksdale, Bullock, Warren, Clark & Van Hook, of Shreveport, attorneys for defendant, appellant.
   STATEMENT OF THE CASE

REYNOLDS, J.

The purpose of each suit is to cancel for breach of contract on the part of defendant an agreement on the part of plaintiff to buy and defendant to sell certain immovable property and to recover the consideration paid on the contract by the plaintiff with legal interest thereon from judicial demand.

The plaintiff, R. B. Goode, alleges that, on March 15, 1926, he and defendant, North Shreveport Realty Corporation, entered into an agreement in writing whereby he agreed to buy and it to sell three lots of ground, being lots numbered 235, 236, and 238 of Lake View extension number 1, in Caddo parish, La., as shown on a plat thereof recorded in the recorder’s office of that parish, for the price of $1,950, or $650 for each lot, payable as follows: $65 on each lot at the time of the execution of the contract, and the balance at the rate of $13 per month for each lot with interest at the rate of 7 per cent per annum on the deferred payments from the date of the contract until paid.

He further alleges that he complied with all of the obligations of the contract to be performed by him, and he had paid on account of the three lots, including the initial payment, a total of $685.

The plaintiff, Mrs. R. B. Goode, alleges that, on the same day, she and defendant entered into an agreement in writing whereby she agreed to buy and it to sell two lots of ground in the same subdivision and according to the same plat, being lots numbered 142 and 143, for the price of $1,300, or $650 for each lot, payable as follows: $65 on each lot at the time of the execution of the contract, and the balance at the rate of $13 per month for each lot, with interest at the rate of 7 per cent per annum on the deferred payments from the date of the contract until paid.

She further alleges that she complied with all of the obligations of the contract to be performed by her and had paid on account of the two lots, including the initial payment, a total of $390.

Both plaintiffs allege that at the time the contracts were entered into the lots described were unimproved and situated in an open field, and that defendant represented to them that the subdivision would be immediately improved, and that it was stipulated in clause seventh of the contracts between them and defendant that:

“It is further agreed that the seller herein will install at its own expense in the hereinafter described subdivision, graveled roads, water lines, gas lines and electric light lines, and that same will be so installed as to be accessible to the property herein described.”

Both plaintiffs also allege that, although more than 10 months had elapsed since the date of the contracts, and although they had repeatedly demanded of defendant that it comply with the obligations assumed by it in the clause quoted above, defendant ' had failed and neglected to discharge the obligations.

And both plaintiffs also allege that they would not have agreed to buy the lots but for the promises contained in clause seventh of the contracts between them and defendant, and that without graveled roads, water lines, gas lines, and electric light lines accessible to the lots they contracted to buy, the lots are worthless to them.

A plea of no cause of action was filed in each case, and, on trial, was overruled, and thereupon defendant answered. The answer is the same in both cases. It is:

“That a large part of the work of installing gravel roads, water lines, gas lines and electric light lines in the Lake View Subdivision has been done by this defendant * * * and that all of said works are works which, in their nature, require a considerable length of time for completion; and * * * that the contract referred to in plaintiff’s petition fixes no time within which said works shall be completed.
“That the representations and obligations undertaken by it in said contract of sale, as set forth in plaintiff’s petition, were with reference to the subdivision as a whole, and to the knowledge of petitioner dependent to some extent upon the sale and development of other lots and plots in the subdivision; that no residence or other buildings have yet been constructed on any of the lots in said subdivision; and that there has not been and is not now any immediate necessity for the completion of all of said improvements.
“That defendant’s plans and the progress of the works in question and the development of said subdivision have necessarily been interrupted and delayed by the death of one of defendant’s directors and : principal executive officers, which has necessitated a reorganization of the corpora- I tion, but that said reorganization has been effected and arrangements have been made to proceed with the said improvements and to complete the same within a reasonable time.’’

The prayer in each of the cases is the same — that the demands of the plaintiff be rejected.

On trial there was judgment in favor of the plaintiffs as prayed for, a separate judgment being rendered in each case.

Prom these judgments the defendant has appealed.

OPINION

In our opinion the petition in each case sets forth a cause of action, and the exceptions were properly overruled. Besides, the exceptions are not pressed in this court and apparently are abandoned.

The evidence clearly established that defendant had not done, and was not doing, even at the date of the trial, anything toward installing graveled roads, or water lines, or gas lines, or electric light lines accessible to the lots it agreed to sell the plaintiffs. In fact, defendant did not contend that the works had been installed accessible to plaintiffs’ lots, but only that they had been installed elsewhere in the subdivision, and that the installation was necessarily slow, and that the contracts between it and plaintiffs did not fix any time within which the works should be made accessible to the latter’s lots. It admits that:

“Plaintiff made various demands upon it to complete said works immediately, but alleges that said demands were unreasonable, and that it has assured plaintiff that it will proceed with the said works and complete same within a reasonable time.”

And counsel, in brief, say:

“No term having been fixed by the parties for the completion of the streets and installation of the utilities, an uncertain term must be implied. And we submit that the cause of action of plaintiff is not for the arbitrary cancellation or rescission of the contract of sale but that his cause of action is for the fixing of the term by this court, within which the defendant shall complete the streets and utilities. On the failure or refusal of the corporation to comply with the decree of the court fixing said time, then the cause of action to rescind the sale would accrue.’’

So the question presented for our determination is whether defendant is entitled to have a delay fixed within which it shall comply with its contract to install the works in question.

Defendant frankly admits that, in its answer, it “did not pray in the alternative that the court fix a time within which the streets should be built and the utilities installed, but it submits that the most plaintiffs have shown is a right to have a definite, reasonable time fixed within which the gravel roads should be built and the water lines, gas lines and electric light lines laid so as to be accessible to the lots in question.”

The articles of the Civil Code applicable to this case are as follows:

“Art. 1926. * * * On the breach of any obligation to do or not to do, the obligee is entitled either to damages, or, in cases which permit it, to a specific performance of the contract, at his option, or he may require the dissolution of the contract, and in all these cases damages may be given where they have accrued, according to the rules established in the following section.
“Art. 2047. * * * In all cases the dissolution of a contract may be demanded by suit or by exception; and when the resolutory condition is an event, not depending on the will of either party, the contract is dissolved of right; but, in other cases, it must be sued for, and the party in default may, according to circumstances, have a further time allowed for the performance of the condition.
“Art. 2050. When no term is • fixed by the parties for the performance of the obligation, it may be executed immediately, unless, from the nature of the act, a term, either certain or uncertain, must -be applied. * * «”•

Defendant advertised- that:

“The streets are being rocked and graveled so that it is possible for the lot buyer or investor to build his house at 'once with all improvements ready for him from the very start.”

And that:

“Water, Gas, Electricity, Graded and Graveled streets are all in now.”

And plaintiff R. B. Goode testified that the stipulation in clause 7 of the contract that these facilities would be installed and made accessible to the lots he and his wife agreed to buy was one of the principal inducements to them to agree to buy.the lots.

On July 12, 1926, plaintiff, R. B. Goode, wrote a letter to defendant calling their attention to the fact that nothing was being done toward complying with clause 7 of the contract, and inquiring when he might expect work on installing the improvements would be begun; and on October 6, 1926, he again brought to its attention the fact that nothing was being done in the .premises and notified them “that unless these improvements called for by paragraph 7 ■ of my contract are put in by January 1st, 1927, I shall file suit to cancel the contract and ask for a refund of the money paid to you.”

Notwithstanding plaintiffs’ demand that defendant comply with clause 7 of its contract, the defendant did nothing, and on February 9, 1927, the present suits were instituted.

If the death of the director and principal executive officer of defendant was a legal excuse for its failure to comply with its contract, that excuse ceased as .early as the month of May, 1926, for it was in that month the director and chief executive officer referred to died, and in the same month Mr. P. C. Willis, was elected to succeed him in the same offices; and there was ample time between then and January 1, 1927, for defendant to have installed the improvements had it desired to do so.

The trial -took place April 8, 1927, and Mr. P. C. Willis, president and a director of defendant, testified:

“Q. Then the failure to make these improvements up to the present time has not been on account of the intention of the company but on account of the financial inability to do so?
“A. I would offer that as largely true —yes.”

And although he also testified that, owing to change in the personnel of some of the stockholders of defendant, the defendant was now able to obtain the money needed to construct the improvements stipulated for in its contract with plaintiffs,

hie did not testify that defendant actually • had the money, or when the work would be begun or when completed.

Under the law and the evidence we do not think defendant was entitled to further delay in which to comply with the contracts on its part. We find no error in the judgments appealed from, and accordingly they are affirmed.


author: MOUTON, J. ELLIOTT, J.

text:
    Nos. 590—677
    First Circuit
    WALKER ET AL. v. BAER-THAYER HARDWOOD CO. (JOHN H. CASSIDY ET AL. Called in Warranty)
    (March 5, 1930. Opinion and Decree.)
    (April 14, 1930. Rehearing Granted.)
    (June 9, 1930. Opinion and Decree on Rehearing.)

      Ott & Rich, of Bogalusa, attorneys for plaintiff, appellant.
    Ott & Johnson, of Pranklinton, attorneys for Baer-Thayer Hardwood Company, defendant, appellee.
    Brock & Carter, of Pranklinton, attorneys for Cassidy & Sheridan, warrantors, appellees.
    Bascom D. Talley, of Bogalusa, attorney for Slush & Hannan, warrantors, appellees.
   MOUTON, J.

Plaintiffs herein, eight in number, are the children of T. P. Pornea, who died in 1914, and of Mary Pornea, his surviving widow. They allege their ownership and possession of an undivided eight-eighteenths interest in a timbered tract of land of 100 acres in Washington parish in the B. Carmen headright 45, range 2, etc. This land, they aver, is community property which belonged to their deceased father and surviving mother.

They allege that within the past six months defendant company has, without their permission or consent and over their protests, entered on this land, and has committed acts of trespass, by cutting and removing .therefrom 400,000 feet of timber worth $8 per thousand feet, footing up a total in value of $3,200 to eight-eighteenths or say the sum of $1,422.22, to which they are entitled. Reserving their rights to sue for the value of any timber cut on the land after the filing of their suit, plaintiffs pray for judgment against defendant company for $1,42'2.22, with legal interest from judicial demand.

The defendant company denies the ownership of the plaintiffs as averred, but admits that it has cut and removed from the land described in their petition 200,000 feet of timber, which defendant alleges does not exceed in value $4 per thousand.

After averring that it had purchased the timber on the land described in plaintiffs’ petition from John H. Cassidy and Daniel E. Sheridan on March 3, 1920, under a warranty deed, defendant prays that its vendors be called in warranty, that the suit be dismissed, but, in case judgment is rendered against it, for a like judgment against the warrantors.

Cassidy and Sheridan, after admitting the call in warranty and adopting paragraphs 1 to 11 «f the answer of the Baer-Thayer Hardwood Company, defendant, aver that they purchased the timber claimed by plaintiffs from Mathew Slush and Mrs. Jessie W. Hannan by virtue of a deed accepted by them January 23, 1920; that Mathew Slush and Mrs. Jessie W. Hannan acquired from Mrs. Yandalee Wilkes and her husband, S. W. Wilkes, March 2, 1905, which was confirmed by these two vendors, March 16, 1918, by a quitclaim correcting the description given in the act of conveyance. They further allege that a portion of the timber on this land was acquired by Mrs. Vandalee Wilkes from Robert Daniel, July 27, 1891, and the other from the heirs of A. McMillan prior to March 17, 1897, as shown by a judgment reinstating the title thereto.

They also aver that Mathew Slush and Mrs. Jessie W. Hannan acquired from R. D. Fornea February 9, 1920. They ask that R. D. Fornea be called in warranty, and, in a supplemental answer, after alleging that the call of R. D. Fornea had been dismissed on exception, they pray that their warrantors, Mathews Slush and Mrs. Jessie W. Hannan, non-residents, be called in warranty, through their attorney and representative, Mr. B. D. Talley, who, after filing an exception of no cause of action, with due reservation of his rights under the exception, answered, urging the plea of estoppel against plaintiffs and the prescription of ten and thirty, years.

In their answer, Mathew Slush and Mrs. Jessie W. Hannan, ask that R. D. Fornea be called in warranty and for judgment against him in case they be held responsible in warranty to Cassidy and Sheridan.

R. D. Fornea answered the call in warranty, and, after denying the petition of the plaintiffs, avers that they have no interest in the timber described in their petition, admits that he and Mrs. Mary Fornea, his mother, executed what he thought to be a quitclaim to any interest in the property described in plaintiff’s petition, but, if that title was a warranty deed, denies that he received $500, but, on the contrary, that he received $50 for the purpose of signing a quitclaim, and that, if he be responsible in any amount, it be restricted to the sum of $50.

The district judge rendered judgment rejecting the demand, from which plaintiffs appeal.

Plaintiffs, the record shows, trace their title from Robert Daniel, from whom T. P. Fornea acquired his title in December, 1885. The warrantors of defendant company, Cassidy and Sheridan, Mathew Slush, and Mrs. Jessie W. Hannan, also claim that they derive their title for a portion of the land from Robert Daniel, through Mrs. Yandalee Wilkes.

Counsel for defendant company says in his brief that the description in both the Fornea and Wilkes deeds are too vague to support a claim under either without proof dehors the calls of the deeds.

Plaintiffs and defendant company claim to have derived their titles from Robert Daniel; ¡plaintiffs through T. P. Fornea who acquired from Robert Daniel in 1885, and ■ defendant through Mrs. Vandalee Wilkes and the heirs of McMillan who acquired from Daniel in 1905, and 1917.

There were various deeds introduced in evidence, and, for the purpose of locating the land on which it was alleged the timber had been taken, several witnesses were examined in the case-

in furtherance of that purpose, T. E. Piggott, parish surveyor, was sworn as a witness by plaintiffs. He testified he had made two surveys of the land, one in 1905 or 1906 for the Wilkes from whom defendant traces its title, and the other later, in 1907, for T. P. Fornea, the alleged author in title of the plaintiffs. The surveyor said that the land he surveyed for T. P. Fornea was the same as is described in plaintiffs’ petition. He also stated, however, that he had subsequently surveyed 400 acres of land for Mrs. Wilkes, from whom defendant claims through mesne conveyances, and that these 100 acres claimed by plaintiffs were within this body of land surveyed for the Wilkes. Several witnesses, old residents of the neighborhood where the land is situated, were also examined in reference to its location. The preponderance of their evidence sustains the contention that the 100 acres were located within the 400 acres surveyed by Piggott for the Wilkes, original authors of defendant. It therefore appears that .plaintiffs failed to prove by the surveyor and their witnesses that the timber was cut from the land claimed in their petition, as a community asset from T. P. Fornea, their deceased father; on the contrary, shows that it was removed from the land which had been transferred to defendant through various sales from the original title acquired by the Wilkes from Robert Daniel, the common author of the plaintiffs and defendant.

Plaintiffs’ counsel say their suit is one in trespass for the value of timber, that they are not required, as in a petitory action, to prove title against all the world, quoting Gould v. Bebee, 134 La. 123, 63 So. 848, and Union Sawmill' Co. v. Starnes, 121 La. 554, 46 So. 649, in support of that contention.

In Gould v. Bebee, 134 La. 123, 63 So. 848, the court held that, where plaintiff claiming title to real property, seeking damages against a trespasser who does not assert title in himself or his co-trespassers, it is not necessary for plaintiff to show a ■ title ' perfect in all respects.

In Union Sawmill Co. v. Starnes, 121 La. 554, 46 So. 649, there is nothing in conflict with the foregoing rule as stated in 134 La. 123, 63 So. 848.

In this case the real defense is that the defendant company has title to the timber which it traces through the Wilkes, and consequently that plaintiffs have and could have none through their father, T. P. • Fornea, from whom they claim in the quality of heirs in community.' The defendant is therefore indirectly asserting title, and cannot be brought under the operation of the foregoing rule, where the doctrine announced is that, when a trespasser does not set up title in himself or his co-trespassers, plaintiff is not required to establish a title good in. all respects.

The trial judge found that plaintiffs had failed to make out their case with the degree of reasonable certainty necessary to support a judgment in their favor and rejected their demand.

We find no error in this finding of the district judge.

As there is no judgment against defendant, there is no necessity for us to consider the demands in' warranty.

LECHE, J., not participating.

ON REHEARING

ELLIOTT, J.

Thp exception of no right or cause of action filed herein by defendant, when this case was called on rehearing, is overruled.

A rehearing was prayed for by the plaintiffs, Mrs. Maggie Fornea, wife of J. E. Walker, Sallie, wife of Q. T. Walker, Thomas P. Fornea, Jr., Joseph R., Annie P., wife of J. W. Thompson, Edward, Lucille, wife of Less Lang, Carl E., Effie, wife of Griff Miller, Eloise, Merle, and Jack Fornea, Otho, Iddo, Jesse, and Millie, wife of Ben Hagars, Della, wife of Mert Thomas, Bonnie Lou Fornea, Edwina Seals, wife of Levi Smith, Annie Seals, wife of Dude Miley, Ida Seals, wife of Jeff ■ Jarrell, on the ground that the opinion and decree of the court was erroneous, in that the court had not taken notice of nor considered certain estoppels urged in their original brief.

The rehearing was granted, and the case has been gone over again.

The pleadings, evidence, ahd conflicting contentions of the parties are such that it is perhaps best to restate portions of the case. ‘ I

The plaintiffs allege that they are, together with Robert D. Fornea, the sole and forced heirs of Thomas P. Fornea, Sr., deceased. That the plaintiffs are, together the owners and possessors by inheritance from him of an undivided eight-eighteenths in and to the property described as follows,, to-wit:

“One hundred acres of land in B Carmen headright 45 T 2 S R 14 E; starting at old southeast corner of the above section, which is common to headrights 44 — ; 45 — ; 48, after establishing it by old field notes and remarked a sweet gum 10 inches in diameter S 9%° E 56 links. — Thence follow up old traverse on west bank of Manning Lake N 62’° W 7 chains. — Thence N 69%° W 8.40 chains. Thence N 54%° W 2.50 chains. Thence N 43° W 42 links to set stob, the point of beginning, whence a sweet gum N 18'%:° 33 links, a water oak S 20%° E 5 links. Thence continue on old traverse up lake N 43° W 3.58 chains N 30%° W 4 chains N 4%° W 10 chains N 27° E 7.50 chains. Thence N 62° E 10.50 to stob. Thence N 75%° W 43.21 chains to set stob in Muddy Drain. Thence S 29.45 chains to stob on old line. Thence S 75%° E 35.83 chains to the point of beginning. Survey by T E Pigott Parish Surveyor July 1907.”

Plaintiffs take the position that their mother, Mrs. Mary A. Fornea, widow in community of Thomas P. Fornea, was the owner and possessor of an undivided half, and that their brother R. D. Fornea was the owner and possessor of one-ninth of one-half of the above-described land, leaving eight-eighteenths which belongs to them.

Plaintiffs do not pray for recognition as owners or possessors of the land or timber thereon; their only prayer is for judgment against defendant Baer & Thayer Hardwood Company for $1,422, the alleged value of their interest in such timber as has been cut and removed therefrom, and for general and equitable relief in the premises.

Baer & Thayer Hardwood Company, for answer, denied plaintiffs alleged ownership and possession, admitted that it had cut 200,000 feet of timber from the land, alleged that it had purchased the timber from Cassidy and Sheridan, prayed that its vendors, Cassidy and Sheridan, be called in warranty, and that plaintiffs’ petition be dismissed. But in the event it was cast in the suit, that there be like judgment against its warrantors.

Cassidy and Sheridan appeared, and for answer denied plaintiffs’ alleged ownership and possession, and alleged that they had purchased the timber in question from Slush and Hannan; that Slush and Han-nan had acquired the land described' in plaintiffs’ petition as part of a tract of 400 acres' from Mrs. Vandalia Wilkes'; that said '400 acres which had been owned by Mrs. Wilkes had been part of a still larger body of land, part of which larger body Mrs. Wilkes had acquired from Robert Daniel, and part from the heirs of A. McMillian.

They alleged that Thomas P. Fornea, under whom plaintiffs claimed, had never owned the land described in plaintiffs’ petition, and that he did not own the timber thereon, for the reason that on June 27, 1907, he had sold the timber to Cranor Lumber Company. That on February 9, 1920, Slush and Hannan had acquired title to the land and timber in question by title from R. D. Fornea. They pleaded the prescription of ten and thirty years acquirenda causa in aid of their title; called Slush and Hannan in warranty, prayed that plaintiffs’ petition be dismissed, but, in case they were cast, that there be like judgment against, their warrantors.

Slush and Hannan appeared, and for answer denied plaintiffs’ alleged ownership and possession. They denied that Thomas P. Fornea, Sr., had ever owned the land described in the petition of the plaintiffs. They allege that they acquired the ownership of the land on which the timber in question is situated, as part of a tract of 400 acres, by title, from Mrs. Vandalia Wilkes. That their title from Mrs. Wilkes bears date March 2, 1905, and was duly recorded. That T. P. Fornea had by acts set out in their- answer, recognized the location of the 400-acre tract which Mrs. Wilkes had owned, and had besides frequently admitted that he did not own , the land which is now claimed by plaintiffs. That T. P. Fornea would be, if living, estopped from disputing same; that plaintiffs claiming under him were likewise estopped. That, although T. P. Fornea had never owned said land or the timber thereon, he sold the timber to Cránor Lumber Company. That said timber was subsequently adjudicated at sheriff’s sale to First National Bank of Gulfport. They urged some further defenses, which will be subsequently mentioned. They pleaded the prescription of 10 and 30 years acquirenda causa in aid of their title, but do not specify which title, and called R. D. Fornea in warranty. They ¡prayed that plaintiffs’ petition be rejected; but, in case they were cast, that they have like judgnieht against R. D. Fornea.

R. D: Fornea appeared, and for answer to the demand of the plaintiffs admitted that his mother and himself had signed a title in favor of Slush • and Hannan, which they took to be a quitclaim deed; that he had received but $50 for signing same. He prayed that the demand of the plaintiffs, as well as the call on him in warranty, be rejected.

The plaintiffs urge in their petition for rehearing that “the court erred in failing to take notice of and consider the fact that defendant Baer & Thayer Hardwood Co. claimed the right to .cut the timber on the 100 acres .of land described in petitioners’ suit omy by reason of a deed from John H. Cassidy and Daniel E. Sheridan on the 3rd day of March 1920, in which deed the said defendants had until June 27th, 1922 to- cut- the timber, and therefore the said defendant was, as to these plaintiffs, nothing more than a trespasser, as against whom plaintiffs did not have to make out a title- good in all respects” — citing Union Sawmill Co. v. Starnes, 121 La. 554, 46 So. 649, and Gould v. Bebee, 134 La. 123, 63 So. 848.

That “the court erred in considering and acting on the several calls in warranty, and in considering the chain of title set up therein, for the reason that as defendant Baer & Thayer -Hardwood Co., who cut the timber on the land, had no right under their deed from Cassidy and Sheridan to call them in warranty, as the deed on which the call is attempted to be made, itself, shows that Baer & Thayer Hardwood Co. had no right to cut the timber on the 100 acres in question after June 27th, 1922, as stated above and as shown in the deed on which this defendant seeks to call their said vendors in warranty.” These alleged errors will be considered together. Plaintiffs did not move to strike out the various calls in warranty, but argues that they should be disregarded on the ground that it appears frqm the record that defendant is a trespasser. A trespasser cannot call anybody in warranty to defend a trespass he has or is committing, but plaintiffs cannot have defendant classed and regarded as a trespasser, and, as such, denied the right to call its vendor in to defend the title which: they have warranted, merely by alleging that it is such.

The defendant produced a title which calls for the timber in question, not immediately from Cassidy and Sheridan, as alleged by plaintiffs, but from Richard P. Baer & Co. The title calls for many thousand acres of standing timber, and purports to deliver possession of the same. It. involved as a whole the sum of $280,-697.78. The title tq the timber was duly warranted and recorded. The timber was an immovable standing on the land, and was far more valuable than the land on which it stands. Richard P. Baer & Co. acquired the timber in question from Cassidy and Sheridan. The tract of land described in the petition of the plaintiffs is included in a tract of 400 acres, which was one of the tracts sold by Cassidy and Sheridan to Richard P. Baer & Co., by title calling, as a whole, for many thousands of acres of standing timber, and involved as a whole the sum of $191,118.76. The title purports to be a delivery of the timber and was duly warranted and recorded. Defendant Baer & Thayer Hardwood Company having taken over and assumed all the rights and obligations of Richard P. Baer & Co. in the title from Cassidy and Sheridan, it called Cassidy and Sheridan in warranty.

Cassidy and Sheridan produced a title from Slush and Hannan bearing date November 19, 1919, duly warranted and recorded, calling for 400 acres in the heirs of B. Carmen, headright No. 40, and in the B. Carmen headright 45, all in Tp. 2, S., R. 14 E. A detailed description which follows is omitted, the above reference being sufficient for the purposes of this decision.

The averment in plaintiffs’ petition for rehearing, that it appears from this act that Cassidy and Sheridan had only until June 27, 1922, in which to cut and remove the timber on the land, is a mistake. The act contains no such restriction.

Slush and Hannan bought this 400 acres of land with the timber thereon from Mrs. Vandalia Wilkes by title dated March 2, 1905, duly warranted and recorded and purporting to deliver the property.

It was established on the trial and the fact is admitted in plaintiffs’ ¡petition for rehearing, averment No. 7, that the 100 acres claimed by the plaintiff is included in the 400 acres known as the Wilkes tract.

It is therefore evident that defendant is not a trespasser.

It and its authors produced to the court each a warranted title duly recorded purporting a delivery of the property therein described. In such a situation it had the right to call Cassidy and Sheridan in warranty. They had the right to call in Slush and' Hannan, and they the right to call in R. D. Fornea. Each of them had the right to deny the alleged ownership and possession of the plaintiffs, set up title and possession in themselves, and to resist the action of the plaintiffs, as they have done.

They have the right to stand on their titles and (possession, and the plaintiffs, out of possession, cannot recover against defendant on the theory that it is a trespasser. Michel v. Stream, 48 La. Ann. 341, 19 So. 215; Russell v. Lang, 50 La. Ann. 37, 23 So. 113; Hornsby’s Heirs v. Mc-Dermott, 19 La. 304, page 307; LeBlanc v. Nolan, 2 La. Ann. 223.

Our former opinion and decree on this subject is correct.

The plaintiffs next allege that the court failed to consider the fact that Cassidy and Sheridan admit in their answer that T. P. Fornea sold the timber on the land described in their petition to Cranor Lumber Company; that the deed from T. P. Fornea to Cranor Lumber Company, annexed to their answer, limits the time in which the timber in question may be cut, to June 27, 1922; that Cassidy and Sheridan thereby recognize the ownership of said timber by T. P. Fornea, and the limitation of time within which it might be cut; that Cassidy and Sheridan are thereby estopped from disputing the ownership of T. P. Fornea, and that of his heirs, citing Consolidated-Progressive Oil Corp. v. Standard Oil Co., 158 La. 982, 105 So. 36.

The ¡plaintiffs do not allege in their petition any title under which T. P. Fornea owned and possessed the land described in their petition; but they opened their case by offering in evidence a title from Robert Daniel to T. P. Fornea, stating, in making the offering, that it was done with particular reference to the land described in the deed, as follows: “100 acres of land bounded north by T. P. Fornea; south by vendor; east by Manning Lake.” They do not allege any estoppel against the de-' fendant, but they contend in argument that Cassidy and Sheridan .have, by the reference made in their answer to the sale from T. P. Fornea to Cranor Lumber Company, and by having annexed it to their answer, estopped themselves, as above stated, and that defendant, claiming under Cassidy and Sheridan, is likewise estopped.

Cassidy and Sheridan allege in averments Nos. 11, 12 and 13 of their answer that, although T. P. Fornea had never owned said land, he had sold the timber thereon to Cranor Lumber Company, and that such right as, Cranor Lumber Company had under the act had been adjudicated at a sheriff’s sale to First National Bank of Gulfport. It was evidently the intention of the pleader to negative, not to recognize or admit the alleged rights of the plaintiffs.

Generally speaking, an estoppel will not be said to have been created by language contrary to the meaning of the pleader. In this case the language used should not be given the effect claimed by the plaintiffs.

The act from T. P. Fornea to Cranor Lumber Company does not state that the land therein described is the 100 acres acquired from Robert Daniel. It is probable that he intended the timber on the same, yet it may not have been, because it is evident from the boundaries of the 100 acres given in his title from Robert Daniel, also from the boundaries of the 280 acres of land, more or less, which Robert Daniel sold to Mrs. Wilkes, that Fornea owned other lands in the vicinity, and out of which the 100 acres described in the act in favor of Cranor Lumber Company might have been taken. But be that as it may, W. W. Connerly, agent for Slush and Hannan, some years after they had bought the 400 acres known as the Wilkes tract, learning that timber was being cut on it, went to the place, stopped the cutting and required the party who had done it to pay for the timber cut. It seems inferable from Mr. Connerly’s testimony that the cutting emanated from a claim to 100 acres under Mr. Fornea. A discussion therefore took place between Mr. Fornea and himself in regard to the matter. Mr. Connerly testified:

“In discussing the matter as to his claim to 100 acres of the land — this was some years after Slush and Hannan bought it— T. P. Fornea told me that he had no claim on the Slush and Hannan tract at all, nor the 100 acres mentioned therein.”

The evidence shows that, after Mrs. Wilkes had sold 400 acres to Slush and Hannan, T. P. Fornea decided to have 100 acres surveyed; the surveyor found that the 100 acres which Mr. Fornea desired him to survey was included in a tract of 400 acres which he had previously surveyed for Mrs. Wilkes. He thereupon stopped and requested Mr. Fornea to have the adjoining owners notified. Slush and Hannan, non-residents, had previous to this time bought the 400 acres from Mrs. Wilkes. They were not notified, but Fornea nevertheless caused an ex parte survey to be made of 100 acres. The 100 acres surveyed is the 100 acres on which he sold the timber to Cranor Lumber Company, and is the same described in the petition of the plaintiffs in this ease. Mrs. Wilkes was shown to have acquired from Robert Daniel by title dated July 27, 1891, “A certain tract of land containing 280 acres more or less, bounded on the north by Thomas P. Fornea and Adolphus McMillian, deceased, and on the south and west by Adolphus McMillian, together with all the buildings and improvements thereon, and being the same land acquired by vendor from Andrews, Jeff and George.”

And during the year 1890 to have acquired from the estate of Adolphus Mc-Millian, deceased, 280 acres of land described as the south half of the tract conveyed to Adolphus McMillian and R. Warren by Elizabeth Manning, bounded north by lands of D. R. Warren; east by Robert Daniel; south by lands of A. C. Harvey, and west by-. The two tracts made up a body of 560 acres, from which she sold and delivered to Adam Blackwell 200 acres, more or less, by title dated December 12, 1900, leaving 360 acres, more or less, which she subsequently sold as 400 acres to Slush and Hannan. It is evident that, on the question of title and possession, the plaintiffs had no superiority over the defendant and its authors. Plaintiffs are seemingly aware that such is the situation, but claim that Cassidy and Sheridan have, by averments in their answer, recognized plaintiffs’ right. These averments, however, when taken together, do not amount to the recognition which the plaintiffs, claim from them; but are in fact a denial of the rights alleged by the plaintiffs. No estoppel was thereby created against the defendant under which plaintiffs are entitled to proceed against it as a trespasser.

Plaintiffs’ argument on this subject is inseparably connected with the merits of the case. And the merits regarded, it does not appear that Thomas P. Pornea, Sr., ever had or claimed to have possession of any part of the 400 acres claimed by Mrs. Wilkes, and plaintiffs claiming possession under him, as his heirs, have no greater rights in that respect than he had. It is conceded that the timber in which the plaintiffs are claiming an interest is included in the Wilkes tract. Plaintiffs therefore cannot maintain an action of trespass against defendant on account of timber cut on the Wilkes tract.

In Hornsby’s Heirs v. McDermott, 19 La. 304, page 307, the court said:

“Nor do the plaintiffs show possession under his deed, so as to authorize them to maintain this action, which appears to us to be strictly neither petitory nor possessory, but in the nature of an action of trespass quare clausum fregit.”

In LeBlanc v. Nolan, 2 La. Ann. 223, the court said:

“Although, in actions of trespass, enquiry is restricted exclusively to the questions of possession, and of damages resulting from the injury complained of, yet when the defendant asserts an adverse possession, the title under which he holds may be exhibited in support of that possession. This production of title does not authorize an adjudication upon the question of property, but is admissible to show ,the beginning and the extent of the possession.”

In actions of trespass there can be no examination into title. Gardiner v. Thibodeau, 14 La. Ann. 732; Daigre v. Levin & Co., 48 La. Ann. 414, 19 So. 336; Ramos Lumber & Mfg. Co. v. Labarre, 116 La. 560, pages 583 and 584, 40 So. 898.

Plaintiffs allege, as error, that the court failed to consider and give effect to the deed which Slush and Hannan obtained from Mrs. Mary A. Fornea and R. D. Fornea on February 9, 1920, paying them $500 therefor. That said deed was a recognition on the part of Slush and Hannan of the heirs of T. P. Fornea as the owners of the land described in plaintiffs’ petition.

Slush and Hannan allege in their answer, with reference to this deed, averment No. 17, “That at the time they started to sell the land to Cassidy and Sheridan, R. D. Fornea made a certain claim to 100 acres of land in the body of land, and in order to avoid litigation and to forever set at rest any doubt about the purported claim, Cassidy and Sheridan put up $250.00 and respondent put up $250.00 and paid to the said R. D. Fornea $500.00, obtaining from the said R. D. Fornea a warranty title to the entire Wilkes or Slush and Hannan tract of land.”

B. D. Talley, M. W. Ott, J. H. Cassidy, and D. E. Sheridan testifying on the subject say, in effect, that they did not consider R. D. Fornea as having any just claim to any part of the property, but that they took title from him and Mrs. Mary A. Fornea, his mother, and paid him the money, to prevent delay and avoid breaking up the sale which was about to take place. The purchase of such a claim for such a purpose is permissible under the law. Civ. Code arts. 2451, 495, and 2443. But if nullity exists it is in the act in question and not that obtained by Slush and Hannan from Mrs. Wilkes on March 2, 1905.

The title from Mrs. Mary A. Pornea and R. D. Fornea to Slush and Hannan calls for 400 acres more or less, said in the act to be the same land which the said Matthew Slush and Mrs. Jessie W. Han-nan had acquired from Mrs. Wilkes on March 2, 1905. Mrs. Mary A. Pornea is the widow in community of Thomas P. Pornea, and the 100 acres which he acquired from Robert Daniel on December 28, 1885, was an acquisition of their community. But she does not appear in the act as his widow in community for the purpose of selling her interest as such in said land or in part of the same. R. D. Pornea is one of the nine children left by T. P. Pornea, but he does not appear in the act in the quality of heir, nor purport to sell an interest in the land as such. R. D. Pornea, examined on the subject of his interest in the 100 acres claimed by plaintiffs, did not claim any as heir of his father. He testified in effect that his father never had any interest.

Mrs. Mary A. Pornea, examined as a witness, claimed that her husband possessed 100 acres of land which he had pointed out to her, and which she took to be the land claimed by the plaintiffs. The testimony on the subject as a whole tends to bear out the claims of Messrs. Talley, Ott, Cassidy, and Sheridan, that their reason for taking title from Mrs. Pornea and R. D. Pornea was as alleged in the answer of Slush and Hannan. Under such a showing it will not be held that defendant and its authors have recognized plaintiffs’ alleged ownership and possession and estopped themselves from setting up their own.

Another alleged error in the petition for rehearing is that the court failed to consider and sustain a plea of estoppel urged against Baer & Thayer Hardwood Company, which plaintiffs allege came about in this way:

Slush and Hannan, after selling to Chssidy and Sheridan the timber on the; Wilkes tract, sold the land to R. D. Pornea by title dated January 13, 1925. Thereafter, to-wit, on April 3, 1928, R. D. Pornea and Baer & Thayer Hardwood Company entered into an agreement which states that R. D. Pornea owned 400 acres; of land which was described, and whereas Baer & Thayer Hardwood Company owned the timber on the above-described land, and whereas the right to cut and remove part of the timber described in the act had expired on June 27, 1928, that part on which the right had expired being described in the act, the description being: that of the 100 acres described in the -petition of the plaintiffs, while the right t® remove all the other timber on the above-described property would not expire until February 19, 1931. The parties then entered into an agreement under which the right to cut and remove the timber from the 100 acres mentioned was extended to February 19, 1931. Plaintiffs contend that defendant by this agreement recognized the time limit for cutting the timber, as fixed in the title from T. P. Pornea to Cranor Lumber Company; recognized the ownership of the timber thereon in R. D. Pornea, as one of the heirs of T. P. Pornea. That such recognition also established plaintiffs’ rights in said 100 acres and estopped defendant from disputing same, etc.

But the right of R. D. Pornea under this agreement with Baer & Thayer Hardwood Company was not derived from T. P. Fornea, but from Slusb and Hannan, and their right was derived from Mrs. Vandalia Wilkes. It therefore follows that the agreement in question does not concern the plaintiff; it is no ground for an estoppel in their behalf, because whatever ■right R. D. Fornea had in the timber at that time was under his title to the land from Slush and Hannan executed January, 1925. He could not have had at the time of said agreement with Baer & Thayer Hardwood Company any right in the standing timber, as heir of his father; because if he ever had any, he conveyed it to Slush and Hannan by the title which he had signed in their favor on February 9, 1920, heretofore mentioned.

Certainly no estoppel, such as plaintiffs claim, can grow out of an agreement based entirely on the rights of Slush and Han-nan, and which they had acquired from Mrs. Wilkes.

Another contention of the plaintiffs is that the court took the mistaken position that the question at issue was whether or not the timber cut was located on the land described in the petition; whereas there was no question that the timber had been cut from the land described in their petition.

The opinion of this court says in stating the case, “The defendant company * * * admits that it has cut and removed from the rand described in their petition 200,-000 feet of timber,” etc. This statement is correct.

But we later say: “It therefore appears that ¡plaintiffs failed to prove by the surveyor and their witnesses that the timber was cut from the land claimed in their •petition.” What we had in mind and should have said was that the plaintiffs had failed to prove possession of the timber claimed in their petition. The language erroneously used is withdrawn from the opinion. The opinion contains a further error in that we say: “He also stated, however, that he had subsequently surveyed 400 acres of land for Mrs. Wilkes.” The word “previously” should have been used instead of. the word “subsequently.” This mistake is likewise corrected.

The plaintiffs lastly allege that we “erred in holding that there was a controversy as to whether or not the 100 acres in question is located within the 400 acres known as the Wilkes tract.”

The opinion holds that the 100 acres claimed by the plaintiffs is part of the 400 acres known as the Wilkes tract.

Plaintiffs’ further statement in the same averment, to the effect that, even if the defendant could be permitted to trace their titles back to Robert Daniel, the title from T. P. Fornea, under whom plaintiffs claim, antedates and primes any title from the alleged common author, is not acted on for the reason that the question of title is not involved in this suit further than is necessary, as an incident to the action of trespass. The remaining part of averment No. 7 is the restatement of ¡previous matters urged by plaintiffs and acted on by us in dealing with previous averments.

We will say in conclusion that the location and boundary limits of the “100 acres of land, bounded north by T. P. Fornea; south by vendor; east by Manning Lake” belonging to the widow and heirs of Thomas P. Fornea, and that of the larger body of adjoining land on which defendant owns certain timber, and which, land formerly belonged to Mrs. Vandalia Wilkes, has evidently never been fixed and determined, as the law provides. It is not our intention, by our opinion and decree in this case, to prevent or prejudice an action for that purpose by anybody having proper interest. In this connection we have noticed that the judgment appealed from decrees defendant to be the owner of the property described in plaintiffs’ petition.

The decree is to that extent erroneous, for the reason that the question of title is not an issue in an action of trespass.

There is no prayer by the plaintiffs nor defendants for such a decree. Our decree affirming the judgment appealed from is to that extent erroneous, because the judgment appealed from should be affirmed only as amended. For these reasons that part of the judgment appealed from which reads, '“and decreeing the defendant to be the owner of the property described in plaintiffs’ petition,” is annulled and set aside, but, being correct in all other respects, it is now affirmed as corrected. Our former opinion and decree is also amended as to the matters in which we find that it contains mistakes, and it is further amended so as to affirm the judgment appealed from only as amended. And as thus amended and corrected, our former opinion and decree herein is correct, and as such it is now reinstated and made final; the same not to operate to prevent or prejudice an action for the purpose of locating and fixing the boundary limits of the two tracts of land hereinabove mentioned by anybody having a proper interest in either of said tracts.

Appellants herein to pay the cost in the lower court, appellee the cost of appeal.


author: REYNOLDS, J. DREW, J.

text:
    No. 3410
    Second Circuit
    LEE v. SOUTHERN SURETY CO.
    (July 1, 1929. Opinion and Decree.)
    (March 24, 1930. Rehearing Granted.)

      J. F. Phillips, of Shreveport, attorney for plaintiff, appellant.
    J. S. Atkinson and Alex F. Smith, of Shreveport, attorneys for defendant, appellee.
   REYNOLDS, J.

This is a suit under the Workmen’s Compensation Act. Plaintiff alleged that his right leg was broken in two places between the ankle joint and knee and his left leg bruised, skinned and otherwise injured on October 30, 1926, in an accident growing out of and in the course of his employment by F. & M. Schwartz in a hazardous occupation in Caddo parish, Louisiana, in consequence of which he was permanently totally disabled® to do work of any reasonable character, and that at the time of the accident he was earning a weekly wage of $27.50.

He further alleged that by contract between his employer and defendant Southern Surety Company the latter was obligated to indemnify the former against liability to the employees of the former arising under the Workmen’s Compensation Act, and that in pursuance of such obligation the defendant had paid him compensation at the rate of $17.06 a week until he had received from it a total amount of $647.06 and that defendant had refused to pay him anything further.

And he prayed for judgment against defendant for compensation of $17.06 a week during his disability, not to exceed 400 weeks, from and after the date of the accident, with legal interest on each installment from its maturity until ¡paid, less a credit of $647.06 already paid him by defendant.

The defendant filed an exception of no right and no cause of action, which was overruled, and thereupon the defendant, reserving its rights under its exception, answered, denying liability and alleging that defendant was no longer disabled and that it had paid him compensation as long as he was disabled and that he was not entitled to any further compensation.

On these issues the case was tried and there was judgment rejecting plaintiff’s demands and dismissing his suit and he has appealed.

OPINION

The exception of no right and no cause of action was based upon the theory that an employee is not entitled to sue the indemnitor of his employer in advance of determination of the employer’s liability. The exception was not well founded and was properly overruled.

Wyatt v. Finley, 167 La. 161, 118 So. 874; Woods v. U. S. Fidelity & G. Co., 167 La. 411, 119 So. 409.

The evidence on the question as to whether plaintiff had entirely recovered from his disability was conflicting.

Doctors A. J. Thomas and C. H. Potts gave it as their professional opinion that plaintiff was yet unable to do work of any reasonable character.

Doctors M. L. Adair, J. M. Bodenheimer and H. A. Durham gave it as their professional opinion that plaintiff had entirely recovered from his injuries and was able to do work of any reasonable character.

It would serve no useful purpose to analyze the testimony. Suffice it to say that the trial judge, who heard and saw the witnesses testify accepted as correct the opinion of the three last named physicians, and we also accept their conclusions as correct.

The findings of fact of a trial court will not be reversed on appeal unless manifestly erroneous.

Kingsley v. Schnell, 9 La. App. 325.

Besides this, the burden of making out his case by a preponderance of the evidence rested on plaintiff and he did not discharge the burden.

The testimony of Mrs. L. J. Mulcare is positive to the effect' that plaintiff is still unable to do work of any reasonable character, and we do not doubt that she is of that opinion, and the testimony of plaintiff and his wife also is to the same effect; but the testimony of these lay witnesses must yield to the physical facts that shortly before the trial plaintiff was able to walk and did walk a distance of about three miles — from Broadmoor to the office of his attorney in the Ricou-Brewster building, in Shreveport, Louisiana, and on the day of trial had walked from the levee to the courthouse — a distance of five blocks' — and that neither his leg nor ankle showed any sign of swelling when he was on the witness stand.

Under the law and the evidence the judgment appealed from is correct and accordingly it is affirmed.

ON REHEARING

DREW, J.

A rehearing was granted in this case on the application of appellant on showing to the court that it had erred in assuming that the lower court had passed on the merits of the case when in truth and in fact the lower court had only sustained an exception of no cause of action.

Plaintiff was an employee of F. & M. Schwartz, who were insured against loss by reason of injuries to their employees by the defendant, Southern Surety Company. After plaintiff received the injury of which he complains, the defendant herein paid to him compensation for about forty weeks, when it ceased its payments. In the meantime F. & M. Schwartz nad left the state of Louisiana, and plaintiff brought suit against defendant, claiming compensation. An exception of no cause of action was filed and argued. At that time the jurisprudence of this state was divided on the question of the right of an employee to sue the insurance company for compensation alleged to be due him by reaspn of injuries arising out of his employment, and the district court overruled the exception. Later the case was tried on its merits, and before decision on the merits was rendered one of the Courts of Appeal rendered a decision sustaining an exception of no cause of action in a similar suit, and tire district court, acting on the authority of that decision, rendered judgment sustaining the exception of no cause of action and rejecting plaintiff’s demands. The judgment, as signed, led this court to assume that it was a judgment on the merits of the case, when in fact the merits of the case had not been ¡passed on by the lower court. This is alleged by the’ appellant and admitted by the appellee.

The right of an employee to sue the insurer of his employer for compensation alleged to be due him for injuries arising out of his employment has been definitely settled in the affirmative in the following cases: Wyatt v. Finley, 167 La. 161, 118 So. 874; Woods v. U. S. Fidelity & G. Co , 167 La. 411, 119 So. 409.

Appellant filed in this court in due time a motion to have the case remanded to the lower court for a decision on the merits.

The district court has not passed on the merits, and this being the situation, we would have to exercise original jurisdiction to pass on the issues raised, and this we cannot do as we are vested with appellate jurisdiction only.

Hargrove v. O’Banion, 4 La. App. 421; Rayville State Bank v. Compress Co., 3 La. App. 191.

It is therefore ordered, adjudged and decreed that the judgment of the lower court be reversed, and that the case be remanded to the district court to be tried in accordance with law.

Cost of appeal to be paid by plaintiff, appellant.


text:
    No. 3224
    Second Circuit
    MONROE GROCER CO., LIMITED, v. HODGE
    (May 8, 1929. Opinion and Decree.)

      Munholland & Munholland, of Monroe, attorneys for plaintiff, appellee.
    Tobin R. Hodge, of Rayville, attorney for defendant, appellant.
   REYNOLDS, J.

Plaintiff, Monroe Grocer Company, Limited, sued to recover judgment against defendant, W. J. Hodge, on a promissory note for $2,249.40 signed by him, dated February 20, 1923, drawn payable to the order of plaintiff on November 1, 1923, and bearing interest at the rate of 8 per cent per annum from January 1, 1923, and stipulating payment of 10 per cent on principal and interest, as attorney’s fees, if placed in the hands of an attorney for collection, less the following credits, namely: January 5, 1925, $807.92; June 20, 1925, $15; July 11, 1925, $15; August 11, 1925, $15; September 30, 1925, $15; October 31, 1925, $15; November 30, 1925, $15; December 30, 1925, $15; December 31, 1925, $30; July 14, 1926, $90; July 31, 1926, $15; August 31, 1926, $15; September 30, 1926, $15; and October 30, 1926, $15.

Plaintiff alleges that the note was lost and that its loss was duly advertised. An alleged copy of the note is attached to the petition as a part thereof. In addition to the credits recited above, it bears indorsement of an additional credit of $15 under date of May 9, 1925.

The prayer is for judgment for the amount of .principal and interest and attorney’s fees owing on the note, less the credits mentioned other than that of $15 under date of May 9, 1925.

Defendant admitted execution and delivery of the note and pleaded payment. He alleged that on January 5, 1925, plaintiff received from him a stock of general merchandise in part payment of the note to the extent of $807.92, and that in further part payment of the note to the extent of $1,500 he transferred to plaintiff on November'4, 1924, lots 4, 5, 6 and 7 of block B of the town of Calhoun in Ouachita parish, La. And he further alleges that these transfers of property “and other amounts paid by your defendant prior to January 5, 1925, represented by certain chattel mortgage notes and crop lien pledges” transferred by him to plaintiff to secure the payment of the note sued on “and collected by plaintiff more than paid the note.”

In respect to the whereabouts of the note, he “avers that it has always been his custom to destroy cancelled or paid notes and that it is his recollection that the note herein sued on was returned to him by the plaintiff company on or about the day the $872.92 was paid, or shortly thereafter, and that same was destroyed, so he therefore avers on account of said belief that said note was destroyed by him when the plaintiff returned it to him.”

On these issues the case was tried, and there was judgment in favor of the plaintiff and against the defendant for the principal and interest owing on the note, less the.credits allowed by plaintiff, not, however, including the credit of $15 under date of May 9, 1925, and for 10 per cent on the balance owing on the note, as attorney’s fees.

From this judgment the defendant has appealed.

OPINION

In respect of the credits claimed by defendant for amounts alleged to have been collected by plaintiff on chattel mortgage notes and crop lien pledges deposited with it by defendant as security for the payment of the note sued on, there was a compíete failure of proof, and therefore nothing can be allowed him on that score.

And the credit of $807.92 of date January 5, 1925, being conceded by plaintiff, there remains for our consideration the claim of a credit of $1,500 of date November 4, 1924, for real estate alleged to have been transferred by defendant to plaintiff on that date.

The record shows that by an act executed before one of the deputy clerks of the clerk of the Fourth judicial district court of Louisiana in and for the parish of Ouachita defendant transferred to plaintiff for a recited consideration of $1,500 the immovable property described above. The deed was filed for record on the day it was executed, to-wit, February 4, 1924, and was signed by defendant. It was not, however, signed by any one on behalf of plaintiff accepting it.

It is contended by plaintiff that the execution of the deed and the filing of it for record was not authorized by it, and that it never subsequently accepted the transfer either expressly or by implication.

Defendant was engaged in the mercantile business in the town of Calhoun and owned the stock of merchandise he transferred to plaintiff and also the immovable property in question. He was insolvent, and plaintiff was seeking to collect the note sued on. Plaintiff was interested in the business success of S. A. Boyd & Son of Calhoun, a partnership engaged in the mercantile business there, and desired to facilitate the partnership in acquiring ownership of defendant’s stock in trade and his storehouse and lots, being the ground above described. Plaintiff did acquire the stock in trade by datien en paiement at the price of $807.92 as above mentioned, and sold it to S. A. Boyd & Son, who continued under their own name in the same store building the business formerly conducted there by defendant.

Regarding the circumstances under which he executed the deed to plaintiff and filed it for record, defendant testified:

‘‘Q. Why did you place on record a deed to the Monroe Grocer Company covering a building and four lots in the town of Calhoun? Why did you execute that deed and have it recorded?
“A. From instructions that I received from Mr. Washburn.’’'
Mr. W. M. Washburn, to whom the witness referred, was the secretary and treasurer of the plaintiff company.
“Q. What were his instructions?
“A. I owed the Monroe Grocer Company a note. Mr. Washburn had charge of the note, and he approached me to buy this Calhoun property. We agreed on the price, provided they could get the titles and things straightened up. There were some mortgages against it. So, after we got in communication with some of the heirs in regard to the condition of the title, I went to see Mr. Caspari at the Monroe Dry Goods Company with reference to a mortgage they held, and Mr. Caspari told Mr. Herring to look up the records. After a week or ten days had elapsed, Mr. Caspari, who represents the Monroe Dry Goods Company, told me that he would like to purchase the property, but I told him that Mr. Washburn had the preference. After Mr. Caspari made the proposition to purchase this property, I rang Mr. Washburn and Mr. Washburn told me that he would buy it; so I told him ‘all right,’ that I was carrying Mr. Caspari out to see the Skipper place and let him have that property to apply on the note with them. I told him that I had agreed to let the Monroe Hardware Company have what I call the Brown-lee property; so Mr. Washburn told me it was ‘all right.’ I carried Mr. Caspari out to see this property, sold it to him, and came back and did what Mr. Washburn told me to do. I had a deed made to Monroe Grocer Company for the property at Calhoun, and I made the Monroe Dry Goods Company a deed for the Skipper property.
“Q. What did Mr. Washburn tell you to do when you went around and, had this ! deed recorded?
‘‘A. Well, he told me to go ahead and have the deed drawn up and recorded.
“Q. Yes. Did you do it?
“A. I did.
“Q. Did you have the deed recorded?
“A. I did.
* * * *
“Q. Have you' exercised any control, or any acts of ownership over the house and lot occupied hy Boyd. & Son at Calhoun since you filed this deed for record?
“A. None whatever since the first of January, 1925.
“Q. Why did you stay in there until January 1st, 1925?
“A. The understanding was, when I sold him the property, that I was to have the use of the building until the first of January, 1925.
“Q. Who has exercised acts of ownership and control over this property since January 1st, 1925?
“A. I couldn’t say, unless the Monroe Grocer Company has.
‘‘Q. So far as you know, they are the only ones that have exercised any rights of ownership?
“A. As far as I know.”
S. A. Boyd testified that he was a member of the partnership of S. A. Boyd & Son and that his firm occupied the immovable property in question.
“Q. How long has your firm been in that building, Mr. Boyd?
“A. Since the first of 1925 I believe it is.
“Q. From whom did you rent that building?
“A. * * * Yes, I guess I rented it
from Mr. Washburn. No price was understood though at the time I rented it.”
He said .that he rented it in the latter part of December, 1924, and that the transaction took place in the Monroe Grocer Company’s place of business in Monroe.
“Q. When did you have your second conversation about the renting of that building?
“A. The same day I believe.
‘‘Q. Did you trade with him the second time? ■ ■
“A. Yes, sir.
‘‘Q. How much rent did you agree to pay him?
“A. Fifteen dollars; that was agreed.
“Q. Did Mr. Washburn offer to sell you the property?
“A. Yes, sir.
“Q. About how many times?
‘‘A. I don’t recollect how many times.
”Q. More than one time?
“A. Yes, sir.
SjS , * # *
“Q. Did he come to see you about it or did you go to see him about it?
“A. He came out there one time, maybe twice.
* sfi # *
“Q. Did he tell you, when you were in his office, that he had a good title to it?
“A. He told me one time that he thought he had a good title to it. * * *
“Q. Did he say anything about Doctor Hodge having any interest in that property?
‘‘A. No; I don’t remember that he did.
* * * *
‘‘Q. Did you ever * * * pay Doctor Hodge any of the rents?
“A. No, sir.
“Q. Did he ever make any demand on you for the rente?
“A. No, sir.
. “Q. Did you ask him anything about fixing the building?
“A. No, sir.
”Q. Who paid for the repair of the building, if you know?
“A. I don’t remember. Seems to me it was charged back to us and taken out of the rents.”
Prentiss Boyd testified that he was a member of the firm of S. A. Boyd & Son, and that the firm bought the Hodge stock of goods and rented the Hodge store property from the Monroe Grocer Company.
“Q. Now with whom have your transactions with reference to the building been since then?
“A. Mr. Washburn of the Monroe Grocer Company.
”Q. Has Doctor Hodge exercised any rights of ownership- over that building?
“A. No, sir.
“Q. Has lie attempted to collect any rents from you?
“A. No, sir.”
He further testified that he complained to Mr. Washburn about the roof of the store leaking, and that Mr. Washburn sent roofing material to him and instructed him to have the roof repaired.
“Q. Did you ever say anything to Doctor Hodge about repairing that roof?
“A. No, sir.
‡ ‡ $
“Q. Now, did Mr. Washburn ever talk to you about selling the building?
“A. Yes, sir. Well, yes, he did talk about selling it, once.”

He said that Mr. Washburn offered him the property for $1,300, and that Mr. Wash-burn said he did not think there was any doubt about the title being good.

Joe Hanna testified that he was the assessor of Ouachita parish, and that the assessment rolls of the parish for the years 1925, 1926, and 1927 showed lots A, 5, 6, and 7 of block B of the town of Calhoun assessed to Monroe Grocer Company, Limited, and not to any one else; that he assessed the property to the Monroe Grocer Company, Limited, because the conveyance records showed the deed from defendant to plaintiff.

Mr. Washburn testified:

“Q. When did you agree, though, to take over certain of his property?
“A. In the early part of October, 1924,
I agreed to take over the store building, provided the title was made good.
“Q. Did you make that offer in the form of a letter?
“A. No; the whole deal was verbal.
H5 ❖ ❖
“Q. * * * Now your proposition was based on the title being good and free from encumbrances, was it not?
' “A. It was.
“Q. And at what price?
“A. Fifteen hundred dollars.
“Q. Mr. Washburn, did you, as secretary and treasurer of the Monroe Grocer Company, instruct Dr. W. J. Hodge to go to the Clerk’s office and make you a deed to that property at that price?
“A. I told Dr. Hodge to go to the Clerk’s office, investigate the title and bring, me a record of the title.
"Q. Did he bring you evidence that the mortgage shown by that mortgage certificate had been cancelled?
“A. He brought me this certificate of mortgages, showing that certain mortgages had to be cancelled, and also a memorandum showing a missing link in the title.
“Q. And didn’t you afterwards secure that missing link and have it recorded in the Clerk’s office of Ouachita parish?
“A. I did.
‡ ‡ $
“Q. Mr. Washburn, haven’t you had the building repaired out there since you had the deed?
“A. Some repairs were made on the building and paid for out of the rent.
“Q. Didn’t you pay for those repairs?
“A. Yes, sir; and received the rent.
“Q. Haven’t you tried to sell that building since this deed has been recorded?
“A. I tried to negotiate a sale, yes.
“Q. You tried to negotiate a sale? For whom?
“A. For the Monroe Grocer Company, provided the title was made to the Monroe Grocer Company.”

On July 16, 1926, the Monroe Grocer Company, Limited, wrote S. A. Boyd & Son as follows:

“We enclose a memorandum showing six months’ rent due on the building at Calhoun, amounting to $90.00. It seems that we have overlooked sending you a bill each month, for this rent, and you, in turn, have overlooked sending us a check for it.
“Would like very much to make a trade with you for the building, along the lines of the offer made by the writer the early part of the year, and if you are now ready to make the trade, we can let this rent apply as a part payment. Please let us know what decision you have reached, and, in the event you have not decided to buy the building, please give us a check for the rent.”
This letter was signed: “Monroe Grocer Company, Limited, by W. M. Washburn, Secretary-Treasurer.”

Plaintiff’s acts in relation to the property after the deed was executed were acts of ownership and are explicable on no other theory than that plaintiff considered itself to he the owner of it. Washburn, plaintiff’s secretary and treasurer, says plaintiff was willing to take the property at a valuation of $1,500 in part payment of the note, conditioned on the title being good and free of mortgages. Inasmuch as defendant was insolvent and plaintiff was taking it in part payment of a debt that it might not otherwise be able to collect, and inasmuch also as plaintiff if sued by a mortgagee in a hypothecary action or claimant in a petitory action might call defendant in warranty, and if evicted from the property have a claim against him for the $1,500 at least as valuable as that represented by the note sued on, it is reasonable to believe that, as testified to by defendant, plaintiff was willing to take a transfer of the property with such title as defendant possessed. Support of this view is found in the fact that plaintiff itself took no steps to obtain an abstract of the title or a mortgage certificate or to have the validity of defendant’s title inquired into by a lawyer or to have a deed from defendant to it drawn by a notary, but left these things to be done for it by the defendant himself. As shown by quotations from his testimony, Washburn told defendant to go to the “clerk’s office, investigate the title, and bring me (Washburn) a record of the title,” and he says that defendant, pursuant to these instructions, brought him a certificate of mortgages showing certain mortgages on the property and also a memorandum showing a link in the chain of title missing. Defendant says that Wash-burn also told him to execute and file for record a deed from him to plaintiff of the property. After the deed was executed plaintiff busied itself in obtaining the missing link and having it put on record. Why it should incur this trouble and expense if it did not own the property is not explained.

The mortgage certificate referred to was dated October 20, 1924. It shows judgments recorded against a former owner of the property aggregating, exclusive of interest and costs, $311.

One of these judgments is dated September 1, 1926; the second, June 16, 1917; and the third, October 20, 1917.

The judgment in this case was rendered on December 3, 1927, more than 10 years after the date of the last judgment above mentioned.

From the fact that the property was not seized and sold under any one of the judgments and that they were allowed to prescribe, it is reasonable to suppose that they had been satisfied. Anyway, all three of them, were prescribed when the judgment appealed from was rendered.

But plaintiff insists that Washburn was without authority to make the alleged trade with defendant even if it be conceded that he did make it. It urges that corporations can be bound only by authority of their boards of directors, and that it do'es not appear that any resolution of the board of directors of plaintiff authorized Washburn to bind it in the premises, and it points to the fact that the deed, was not signed in plaintiff’s name as purchaser as proof that the transfer was never accepted by plaintiff.

Acceptance of a transfer may be shown otherwise than by the signature of the transferee to the act of transfer. Acts of dominion by the transferee over the property transferred will suffice to show it. It was said in Megason v. Boleyn Lumber Co., 140 La. 431, 73 So. 257, that the going into possession by the purchasers of land shows an acceptance of the deed by them, which supplies the absence of their signatures thereto.

And in respect of the authority of plaintiff’s secretary and treasurer to bind plaintiff in the premises, we do not understand it to be contended by plaintiff that its secretary and treasurer was without authority to do so, but only that he did not in fact do so. However, even if the former were the contention, in view of plaintiff’s acts of dominion over the property transferred it must be deemed to have consented to the transfer.

The judgment appealed from is erroneous in allowing defendant credit for rents collected by plaintiff and in not allowing him credit for the price of the immovable property. However, it is not necessary to reverse the judgment, but only to recast it.

It is therefore ordered, adjudged, and decreed that the plaintiff, Monroe Grocer Company, Limited, have judgment against defendant, W. J. Hodge, in the sum of $2,249.40 with interest thereon at the rate of 8 per cent per annum from January 1, 1923, and for 10 per cent on the amount of principal and interest, as attorney’s fees, less a credit of $807.92 as of date January 5, 1925, and also less a credit of $1,500 as of date November 4, 1924.

It is further ordered, adjudged, and decreed that defendant pay the costs of the lower court, and plaintiff those of this court.


author: ODOM, J.

text:
    No. 3812
    Second Circuit
    HAYES v. GUNTER BROS. LUMBER CO. ET AL.
    (July 5, 1930. Opinion and Decree.)
    (July 31, 1930. Rehearing Refused.)

      Pugh, Grimmet & Boatner and J. N. Marcantel, of Shreveport, and Spearing & Mabry, of New Orleans, attorneys for plaintiff, appellee.
    Lewell C. Butler, of Shreveport, attorney for defendants, appellants.
   ODOM, J.

Arthur Hayes was run over and killed by a two-ton motortruck owned by the defendant company and operated at the time by one of its servants. This suit is brought by the widow and minor children of the deceased for damages. The case was tried before a jury, which found for plaintiff, and this appeal is hy defendant from a judgment approving the verdict.

The verdict of the jury is not supported by the testimony, and must be reversed. The deceased was struck and killed ,by defendant’s truck in the daytime on a paved highway in Caddo parish just as he stepped out into the road from behind an automobile parked on the side of the road. At the time he walked out into the road he was looking down reading or looking over some checks which had just been handed him by Mr. Hamilton to pay some laborers who were working under him clearing a right of way at that point for an electric power line. He did not look either way before going into the road. At the time he went into the road, defendant’s truck was so close upon him that the driver could not avoid striking him. The acts of negligence charged against defendant’s driver are that he saw deceased in the road when he was 200 feet away, but continued to go forward without checking the speed of the truck, and without giving any warning signal, by horn or otherwise; that the truck was not in gear, was coasting down the hill noiselessly at an excessive rate of speed.

If the testimony supported the allegation and contention that the truck driver saw the deceased or could have .seen him, if he had been looking as he should, In a dangerous position in the road, in time to avoid striking him by taking all reasonable precautionary measures to save him and failed to do so, the defendant would be liable under the last cleat chance rule, even though deceased was grossly negligent in putting himself in such position of peril. But such are not the facts.

Deceased was foreman of a squad of laborers engaged in clearing the right of way adjacent to and parallel with the highway for the construction of an electric power line. On the morning of the accident he went to the scene in his truck, parked it on the right-hand side of the road going north, got out and left it. Later in the day Mr. Charles Hamilton, who was general superintendent of the work, went to the scene in his automobile, parked it on the opposite side, or right-hand side of the road going south, at a point approximately 75 feet south of where deceased had parked his truck. Hamilton called deceased to him and handed him a batch of checks with which to pay the laborers. The two had a conversation lasting some five or ten minutes, after which Hamilton left deceased, got into his automobile and started the engine. About the time he did so, he saw defendant’s truck some fifty or seventy-five yards away coming down an incline towards him from the south. Before Hamilton moved his car, the truck passed by, missing the car about five or six feet'. The truck hit deceased after it passed the car at a point near the middle of the road and north of the rear end of the parked car. Hamilton did not see the accident and knows nothing of deceased’s movements after the two ended their conversation. Hamilton was the only witness, except the coroner, called by plaintiff, and it is contended that his testimony shows that deceased, before going into the road, was standing where the truck driver could have seen him, if he had looked, could have seen him when he started towards the road at a sufficient distance to avoid the accident, if he had taken proper precautions.

Hamilton’s testimony shows that, while he was talking to deceased and when he handed him the checks, the two were standing on the east side of the highway, north of the rear end of the automobile. There is where Hamilton left deceased standing, and he does not know when deceased made his move into the road. Hamilton says that the truck driver could have seen his (Hamilton’s) movements as the road was open and it was daylight, and from this it is argued that the truck driver could have seen deceased and his movements also, and there is a portion of his testimony which, if taken alone, would indicate that he intended to leave that impression. The truck driver could have seen Hamilton, because after he left deceased he walked south from the rear on the left-hand side of the car to the door which was next to the road. That threw him out into - the road in plain view. He says the driver could have seen him, and was asked:

“Could Mr. Hayes (deceased) be seen from the top of the hill by the driver of the truck at that time?”

And he answered:

“I think he could, from where we were talking to where I left him.”

Prom this testimony, it will be noted that he is not positive. He thirties he could have been seen. Mr. Hamilton was questioned as to where the two were standing during the conversation, and where he left deceased. On page 8 of the record, he was asked:

“Where were you at the time you were talking to Mr. Hayes?”

And he said:

“Well, we were on the side of the highway, kind of behind my car.”

On page 9, he said he was getting ready to leave, and was asked:

“Where was Mr. Hayes standing about that time?”

He answered:

“Well, along about the back end of my. car.
“Q. Right there at the car?
“A. Yes, sir.
“Q. How many feet from where you were do you suppose when you got into your car?
“A. Well, was not over six or eight feet, just behind the back wheel like.”

Taking Mr. Hamilton’s testimony as a whole, and construing it liberally in favor of plaintiff, the most that can be said is that there is doubt as to just where “the two were standing during the conversation.

Now, when we turn to the testimony of the other four eyewitnesses, all doubt on this very material point, that is, whether the truck driver could have seen deceased before the very moment he walked out into the road, and as to the distance the driver was from him at that moment, is removed. Three of the colored men who were working for the deceased in the gang, clearing the right of way, were called as witnesses. Each one testified positively that he saw the accident and that deceased walked out into the highway from behind the Hamilton car immediately in front of. the moving truck when it was almost upon him; that deceased was looking down, reading, or looking over the checks which he had in his hand and that he did not look up or to the side. The truck driver was a young white man, twenty-two years old, who is vouched for as a careful, conservative driver by his employers, and testified that deceased stepped out from behind the parked car' just in front of the truck when he was only fifteen or twenty feet away; that he did not and could not see him until the moment he came into the road; that he then applied his brakes (which took effect, as evidenced by skid marks on the pavement), swerved his truck to the right as quickly as he could, but not in time to avoid the accident. This witness and the three colored men each i testified that the truck driver was sounding his horn continuously from the moment he came over the hill to about the moment of the accident, although Mr. Hamilton said that he did not hear it. We can easily understand why Mr. Hamilton did not hear the horn. He was in his car and the engine was running. The fact that the horn was blowing .is established by a decided preponderance of the testimony.

The testimony of these colored men is criticized by counsel for plaintiff, it being suggested that as they were at work at the time, or supposed to be, they probably did not see the accident. But we can imagine no reason, and none has been suggested, why these colored men should get together arid cook up a case for the defendant company composed of men whom they did not know, and for whom they had never worked, against the widow and children of the man for whom they were working, and who was almost in the act of handing them their pay checks.

Counsel in their brief say, in speaking oí the truck driver’s testimony:

“Mr. Eddington testifies * * * thpt he first saw deceased when he was aho^t thirty yards from him.”

Counsel, of course, did not intend to piislead the court. When we read the testimony referred to, we find that counsel pipe mistaken, as disclosed by the following, at pages 68 and 67:

“Q. How far were you, or how far was Mr. Hayes’ truck from you when you firpt saw him that 'morning?
“A. When I first saw him that morning?
“Q. No, just before the accident occurred.
“A. His truck was about thirty yards when I seen it.
“Q. When you first saw him?
“A. Yes, sir.”

It is .perfectly evident that the witness did not mean that deceased was thirty yards ahead when he first savr him. He was speaking of the distance of the. truck when he first saw deceased. This testimony is consistent with the truck driver’s other testimony to the effect that deceased stepped into the road about fifteen or twenty feet ahead of the moving truck, the truck which the witnesses referred to as seeing ahead of him being parked still further down the road.

The truck driver testified that he sounded his horn while coming towards deceased, and was asked if he did not tell the coroner on the day of the accident that he gave no alarm, and he said that he did not remember. The coroner was called and testified as follows:

“Well, I wrote it down as he gave it, and that he was not going very fast and he thought that he could miss him, go around him instead of sounding his horn.’’

From the coroner’s report of the accident, we emote the following:

“Carl Eddington (the truck driver) di'iving an International truck with trailer, coming from Bethany, going down grade headed towards Greenwood, was apparently driving pretty fast, just as Mr. Hayes was crossing the road and looking at the checks that he had in his hand. He says he did not sound his horn but tried to turn to the right and miss Mr. Hayes. * * * Eddington voluntarily testified and stated that he did not think he was going very fast and that he did all in his power to avoid hitting Mr. Hayes even to running into the other truck and wrecking both trucks. He said that Mr. Hayes stepped from behind the Ford car, and he did not see him until it was too late.”

There is nothing in this to indicate that Eddington testified before the' coroner that he did not sound his horn while coming down the road. It is evident that the horn was not blowing at the moment of the accident, and that was probably what the witness said, or meant to say, to the, coroner. When he saw Mr. Hayes step out in front of the truck, he at once began to manipulate it so as to avoid the accident. A further alarm could avail nothing.

We think the driver was guilty' of negligence in that he was going at approximately twenty-five miles an hour, instead of eighteen fixed by the statute, and was coasting. Even so, plaintiff cannot recover on account of the gross contributory negligence of deceased, which was the direct proximate cause of the accident. The case of Collier v. Frank Varino & Co. et ah, 153 La. 636, 96 So. 500, 501, is on all fours with this one. There> the court said:

“Even if the driver of the truck had been guilty of negligence, the contributory negligence of deceased was clearly the proximate cause of his untimely death. Placing himself, as deceased did, unexpectedly in front of the truck, its driver was deprived of the last clear chance of preventing the collision.”

Other cases in point are the following: Biagi v. New Amsterdam Casualty Co. et al., 151 La. 925, 92 So. 387; Roder v. Legendre et al., 147 La. 295, 84 So. 787; Folwell v. Demack Motor Car Co. et al., 144 La. 783, 81 So. 313.

Counsel for plaintiffs in their brief stale that if the court should hold that deceased was negligent, .plaintiffs are entitled to recover because defendant’s driver .had the last clear chance to avoid the accident. There is no room for the application of the last clear chance rule here. When deceased walked out into the road from behind the parked car, where his presence was concealed from defendant’s driver, the truck was so close upon him that it was impossible for the driver to avoid striking him.

For the reasons assigned, it is therefore ordered, adjudged, and decreed that the verdict of the jury and the judgment based thereon be, and the same are, reversed; and further ordered that plaintiffs’ demands be rejected and their suit dismissed, at their costs in both courts.