author: ODOM, J.

text:
    No. 1825
    Second Circuit
    FAULKNER v. RIVERS, ET AL.
    (February 8, 1926, Opinion and Decree)
    (March 11, 1926, Rehearing Refused)

      (Syllabus by the Editor.')

    1. Louisiana Digest — Taxation—Par. 338, 382. ■
    In order to defeat a tax title on the plea that the tax had been paid, it must be proven that the payment was made previous to the sale.
    2. Louisiana Digest — Taxation—Par. 325, 345.
    The tax purchaser does not forfeit his title by failing to take possession of the property purchased nor is he estopped from claiming the land. The transfer of ownership is effected by the tax sale.
    3. Louisiana Digest — Prescription—Par. 22.
    In order for one to acquire by the prescription of thirty years as against a tax title, they must have possessed the property for thirty years subsequent to the date on which their title was divested by the tax sale.
    Appeal from Fourth Judicial District Court’ of Louisiana, Parish of Union. Hon. J. B. Crow, Judge.
    Action by J. B. Faulkner against Margaret Rivers, et al., to be declared the owner of land.
    There was judgment for plaintiff and defendant appealed.
    Judgment affirmed.
    Elder & Digby, of Farmerville, attorneys for plaintiff, appellee. . .
    H. G. Fields, of Farmerville, attorney for defendants, appellants.
   ODOM, J.

This is a petitory action.

Plaintiff alleges that he is the owner of east half of southeast quarter of section 3, township 21 north, range 2 east, under recorded title, and that the defendants, Margaret Rivers and Eli Rivers, are in possession of said land and are trespassers thereon and refuse to surrender possession thereof to him; and he prays that he may be adjudged the owner of the land and entitled to the possession thereof.

Defendant Eli Rivers, prior to answer, filed pleas of prescription of one, three, ten and thirty years.

Defendant Margaret Rivers filed a plea of vagueness, averring that plaintiff’s demand is vague, indefinite and incomplete, and that she should not be required to answer until plaintiff set out fully the source of his title.

The court ordered plaintiff to state specifically what deeds he relied on as the basis of his title, but the record fails to disclose that he ever did so. However, the case went to trial without objection on this point.

Defendant Margaret Rivers filed a separate answer in which she denied that plaintiff is the owner of the land in question, and averred that the deeds relied on by plaintiff are without force or effect as to her.

She admitted possession of the land, and set up title in herself and her co-defendant, Eli Rivers, and alleged that they had been in possession of the land for more than thirty years, and that at the time the pretended deeds were made to plaintiff she was one of the lawful owners of the property and in actual possession thereof, and:

“That the pretended tax deed relied upon by the plaintiff as the source of his title is without any force and effect for the reason that at the time the said tax deed was made the taxes thereon had been duly paid and the same therefore is null, void and of no force and effect.”

Defendant Eli Rivers filed an answer in which he set up the saihe defenses as those of his co-defendant, with the following additional:

“That there was a dual assessment on said property at the time said deed was made.”

Defendants later filed a joint answer in which they reiterated the former pleas of ownership, possession for more than thirty years, and their pleas of prescription.

The pleas of prescription seem to have been referred to the merits.

There was judgment for the plaintiff, decreeing him to be the owner of the land and entitled to the possession thereof, from which judgments defendants prosecute this appeal.

OPINION

This appeal was lodged in this court more than three years ago but was held up, as we understand it, because no briefs were filed and the case was never argued orally. However, briefs were finally filed by counsel on both sides and the case submitted thereon.

The case was submitted with reference to- the record title of the parties in the abstract which, by agreement of counsel, was substituted for the deeds. The deeds were offered in evidence by reference only. Therefore the court has not the benefit of the recitals thereof.

The abstract filed shows only the chain of title. From it we find that the land in dispute was entered from the government in 1840 by Peter I. Harvey; he sold to James A. Harvey, according to the abstract, in May, 1852, but we conclude that the date given in the abstract is erroneous as to the year for, in December, 1842, James A. Harvey sold, by notarial act, to some parties named Hall. The chain of title from the government through the entryman ends in the last named purchasers.

From that date, 1842, when the land was purchased by the Halls, • there ■ is a split chain of title.

On April 8, 1878, Leonard B. Miller sold the land to William H. Malone, and on February 24, 1880, Wil'born H. Malone sold the land to Mrs. Susan H. Malone, and she, in turn, sold it to Eli Rivers. on January 28, 1881.

Eli Rivers, the vendee, was the husband of Margaret Rivers and the father of Eli Rivers, the other defendant in. this case, and they claim title under this deed.

On the other side, the same land was sold in 1847 hy William B. Cooper to I. A. R. VanHook; VanHook sold it in 1851 to N. D. Atkinson. One N. L. Atkinson, senior, sold it to Francis B. Atkinson in 1885. In 1916 the alleged and pretended heirs of Nathan L. Atkinson and Francis B. Atkinson sold to J. W. Elder, and through him, by mesne conveyances, the land passed to the present plaintiff.

There are various irregular and irrelevant transfers shown by the abstract, but they have no relation to or connection with the above chains of title relied on by the respective parties.

The plaintiff relies not only on the above chain of title through the Atkinsons but also upon a tax deed dated May 5, 1906, and recorded on May 24 of that year by which the sheriff and tax collector of Union parish sold the land to J. W. Elder for the taxes of 1905 due by Margaret Rivers, one of the defendants in this case, to whom the land was assessed in that year. It is upon this tax title which plaintiff mainly relies, and it is this tax title which -is attacked by the defendants in the case on the ground that the taxes on the property for the year for which it was sold had been paid and that there was a dual assessment of the land.

Counsel for plaintiff says in brief that the deed from the Atkinson heirs to Elder was only a quitclaim obtained by him long after he acquired the property from the state through the tax collector. It is the tax title, therefore, to which our attention is mainly directed.

If the title obtained by plaintiff through his tax deed were eliminated we would unhesitatingly hold that the defendants’ title is good, for the reason that Eli Rivers, husband of one of the defendants and father of the other, purchased the property in 1881, and under that recorded deed, presumably translative of property, he with his family took physical possession of the land described therein, presumably good faith and as owner, immediately thereafter, and occupied the same until his death some twenty years ago, and his family continued to occupy and possess it down to the date of the trial, and there is no proof in the record that the other claimant ever had more than that civil possession which resulted from the recordation of his deed.

But under the issues presented in this case the plaintiff’s title must prevail.

An extract from the tax rolls for the parish of Union for the year 1905 shows that this property, together with one other forty-acre tract, was assessed to Margaret Rivers, one of the defendants, for that year. The valuation placed thereon was $150.00, with state, parish and levee taxes amounting to $3.15.

On May 5, 1906, the tax collector for said parish sold the property at tax sale to J. W. Elder for the unpaid taxes of the year 1905, due by Margaret Rivers, to whom it was assessed for that year. This sale was followed by the execution of a deed by the tax collector, which was duly recorded in the conveyance records of that parish on May 24, 1906.

By reference to' the extract from the assessment rolls above referred to, we ■note that the taxes for the year 1905 were paid on May 31, 1906, but by whom is not shown.

The record does not show nor is it intimated that the property was ever redeemed from the tax sale by the tax debtor or anyone else for her. This sale ripened into title at the end of the period allowed by law for its redemption, or one year from the date of recordation of the deed.

Under all the jurisprudence, this tax deed, unchallenged and unattacked for in-formalities, must stand as a valid deed translative of the property described therein, and the presumption is that all things necessary to be done prior to and, leading up to the sale, as ■ well as the sale itself, were regular and according to law.

Therefore the plaintiff in this petitory action presents to the court a title emanating from a tax purchaser who held under a valid tax deed duly recorded.

As against plaintiff’s title thus obtained, defendants set up their title obtained in 1881 coupled with corporeal possession. But conceding that their title was good as against the world, it was wholly divested by the tax sale followed by tax deed duly recorded, which ripened into title at the end of the redemptive period.

Defendants ask the court to hold that plaintiff’s pretended tax deed relied upon as his source of title is without force or effect for the following reasons:

First, that at the time said tax deed was made the taxes on the land had been duly paid.

Second, that there was a dual assessment on the property at the time the sale was made; and,

Third, that defendants have been in actual possession of said ¡land for more than three years from the date of said deed, and that, therefore, plaintiff is estopped by his silence and • by his refusal to claim possession within the three years.

As to the first ground alleged, that of the previous payment of the taxes, the only evidence in the record of payment of taxes on the land for the year 1905 is found in the extract from the assessment rolls for that year. On that extract and as a part thereof are these words and figures: “Marked paid, 5-31-06.”

Defendants do not contend that they paid the taxes nor is there anything to show by whom they were paid; but regardless of who made the payment, reference to the date of the tax deed will show that the payment was made twenty-six days subsequent to the sale. In order to defeat a tax title on the plea that the taxes had been paid, itj must appear that the payment was made previous to the sale. 'Therefore, even if it should be contended that the defendants made the payment (and they make no such contention) that would not avail them for the reason that the taxes were paid subsequent to the sale. If, indeed, defendants paid the taxes assessed against the property for the year 1905, or if anyone else paid the taxes for them, they should have been able • to • offer some proof of that fact, and yet - they did not even take the stand and swear that such payment was made.

On the second point, that there was a dual assessment of the property for that year, the record is likewise barren of proof of such assessment. It is shown that the property was assessed for the year 1905 to Margaret Rivers. It is also shown that the same property was assessed to N. C. or N. L. Atkinson from 1870 to 1917, except the year 1905. It was the taxes for that year for which it was sold.

The tax rolls for the year 1905 were available, as is shown by the fact that there appears in the record an extract from the rolls for that year. If the property in dispute had been assessed to the Atkinson heirs or anyone else other than Margaret Rivers for that year that fact could have been easily proved. As the question of dual assessment was specially pled and made an issue by the defendants, it cannot be assumed that counsel overlooked such a vital point in the trial of the case.

Lastly, defendants urge the point that they have occupied the property for three years since it was sold for taxes and that plaintiff is now estopped from claiming the land never having taken any steps to possess it during that time.

Counsel in brief cites no authority in support of this contention. The adjudications are against him. The tax purchaser does not forfeit his title by failing to take possession.

Koen vs. Martin, 110 La. 242, 34 South. 429.

Lavedan vs. Chopin, 119 La. 1052, 44 South. 886.

The fact that the tax debtor remained in possession of the property sold did not operate to defeat the tax purchaser’s title.

In the case of Hirst vs. Xeter Realty, Limited, 138 La. 398, and many other cases, the court held that the transfer of the ownership of property is effected by the tax sale and that in the absence of proof of irregularities a tax deed must stand as a valid transfer of the property described therein.

Under the express provisions of the Civil Code, Article 496:

"The ownership and possession of a thing are entirely distinct.
“The right of ownership exists independently of the exercise of it. The owner is not less the owner because he performs no act of ownership, or because he is disabled from performing any such acts, or even because another performs such acts without the knowledge or against the will of the owner.”

And Article 3435 of the Civil Code, which provides that:

“Although the possession be naturally linked with the ownership, yet they may subsist separately from each other; for it may happen that the actual possessor is not the true owner.”

See Mitchell vs. Stream, 48 La. Ann. 345, 19 South. 215.

The fact that defendants remained in possession of the property subsequent to the sale avails them nothing so far as the issues here presented are concerned. If plaintiff relied upon prescription to maintain his title the case would be altogether different; but he relies on his tax deed to show ownership.

It unquestionably shows that.

The tax deed is not in the record. It was introduced only by reference. But under the authority of the Xeter case, supra, the court must assume that the deed was regular in form and translative of property.

But defendants attack the deed only on two grounds, and, as stated, they have utterly failed to sustain their position on either point; for there is not a syllable of proof that the taxes on the property were paid or that there was a dual assessment of the property for the year 1905. '

As the record presented to us stands, the defendants have no title. The title under which they claim was divested by the tax sale. They are, therefore, possessors without title, and in order to acquire by prescription they would have to possess for thirty years subsequent to the date on which their title was divested, which they have not done.

For the reasons assigned, it is therefore ordered, adjudged and decreed that the judgment appealed from be affirmed with costs.


source: Caselaw Access Project

author: REYNOLDS, J. CARVER, J. CARVER, J. WEBB; J.

license: Public Domain

text:
    No. 2301.
    Second Circuit
    MONROE HARDWARE COMPANY, INC., v. A. DELATTE ET AL.
    (May 9, 1925, Opinion and Decree.)
    (June 13, 1925, Opinion and Decree on Application of Warrantor for Rehearing.)
    (June 30, 1925, Opinion and Decree on Application of defendant, Ouachita Valley Camp No. 10, W.O.W., for rehearing.)
    (July 18, 1925, Rehearing Granted on Whole Case.)
    (May 7, 1926, Opinion and Decree on Rehearing.)
    (May 7, 1926, Notice of Application for Certiorari to Supreme Court on Behalf of Warrantors.)

      (Syllabus by the Editor.)
    1. Louisiana Digest — Mechanic’s Privileges —Par. 21, 23.
    Under Section 2 of Act No. 229 of 1916, where the material man filed an itemized statement of account, which was sworn to and fastened together as one document with other . necessary statements, he has complied with all the requirements of the law if he filed this statement within forty-five days after the acceptance of the work by the owner.
    2. Louisiana Digest — Mechanic’s Privileges —Par. 21.
    Under Section 2 of Act No. 229 of 1916, where the material man properly filed his affidavits and itemized accounts, the fact that the clerk failed to exactly transcribe on the mortgage records names of each item mentioned on the itemized account, but only gave in the mortgage record a list of the amounts and dates, cannot defeat the material man’s claim of a privilege.
    3.Louisiana Digest — Pleading—Par. 7.
    A prayer in the alternative for judgment against the owner of a building, and that its privilege as furnisher of material be recognized and enforced against the building is not inconsistent with a suit under Act 229 of 1916 by the material man for the purpose of collecting the amount due him from the contractor for his warrantor.

      4.' Louisiana Digest — Pleading—Par. 18, 62.
    A call In warranty by the owner of a building when sued by the material man under Act 229 of 1916, which gives in detail the amounts claimed to have a privilege as filed by the various claimants and alleges a privity of action between the owner of the building and the warrantor as to the laches of the contractor-builder, states a cause of action.
    Louisiana Digest — Mechanic's Privileges —Par. 51, 55.
    A judgment against the warrantor in a building contract bond under Act No. 229 of 1916 should not be executed until the owner of the building shall pay into the hands of the warrantor or deposit in the registry of the court would be applied on the claims of the amount which has not been paid.
    ON APPLICATION FOR A REHEARING
    6.Louisiana Digest — Builders and Buildings — Par. 7; Bonds — Par. 8.
    Under the well-settled doctrine, ' wnere a bond is given under the authority of a law, whatever is included in the bond which is not required by the law must be read out of it, and whatever is not expressed and ought to have been incorporated must be read as if inserted into it. This doctrine applies to building contract bonds under Act No. 229 of 1916.
    7.Louisiana Digest — Builders and Buildings — Par. 7, 29, 30; Evidence — Par. 7.
    Where several suits are pending brought by material men and mechanics under Act No. .229 of 1916 arising under the same building contract under the same building, the court, in deciding whether the owner has sufficient money due on the contract, but unpaid, with which to pay the claim of one material man, must take judicial notice of the other suits and the total amount due to all material men and mechanics. Therefore, the court cannot give judgment against the owner of the building on one claim without allowing him to call in his warrantor, merely because he has sufficient money due and unpaid on the contract with which to pay this single claim.
    8.Louisiana Digest — Estoppel—Par. 22 51; Pleading — Par. 40, 47.
    The defendant has the right to urge an estoppel as a reason why Warrantor’s plea of anticipated payments was not good without any special plea. Replications are not required or permitted under Louisiana Practice.
    9.Louisiana Digest — Builders and Buildings — Par. 21, 29.
    Where the contract which the owner of the building had with the warrantor of the contractor, contained the stipulation that ten per cent of the amount of the contract was to be retained by the owner, the owner having paid over nine-tenths of the amount to the contractor, will be required to deposit the amount overpaid together with the balance due to the contractor, with the court.
    10. — Louisiana Digest — Appeal—Par. 559.
    The appellate court, after having decided a restricted rehearing, cannot on its own motion grant another rehearing upon the entire case.
    11. Louisiana Digest — Builders and Buildings — Par. 29, 30.
    In a concursus proceeding to determine the amount to be paid into court by the owner in order to allow the execution of the judgment against the warrantor under a contract with the warrantor requiring one-tenth of the contract price to be withheld from the contractor in order to secure the warrantor, the burden of proof of deduction claimed by the owner for money “reserved under contract and paid out direct to material men and laborers”, and “money paid out under instructions of the Surety Company” is on the owner that such money was properly paid.
    Appeal from Fourth Judicial District Court of Louisiana, Parish of Ouachita. Hon. Percy Sandel, Judge.
    This is a suit to recover from the contractor, the owner and the warrantor, under Act No. 229 of 1916, governing building contracts.
    There was judgment by default against the contractor and the owner and warrantor denied liability.
    There was judgment for plaintiff and defendants, owner and warrantor, appealed.
    Judgment amended and affirmed.
    On a rehearing judgment again amended and affirmed.
    Blanchard, Goldstein & Walker, of Shreveport, attorneys for warrantor, appellant.
    Stubbs & Theus and W. F. Pipes, of Monroe, attorneys for plaintiff, appellee.
    M. C. Redmond, of Monroe, attorney for H. L. Thompson.
    J. M. Munholland, of Monroe, attorney for Ouachita Valley Camp No. 10, Woodmen of the World, defendant, appellant.
   REYNOLDS, J.

In this case plaintiff sues to recover from A. Delatte, contractor for the building of a lodge building, and from Ouachita Valley Camp No. 10, Woodmen of the World, owner of said lodge building, the sum of $186.71 for material furnished by it to A. Delatte and used in the construction of said building.

A. Delatte made no defense and judgment by default was rendered against him.

Ouachita Valley Camp No. 10, Woodmen of the World, filed a motion to require the plaintiff to elect, which motion was overruled.

Defendant, Ouachita Valley Camp No. 10, Woodmen of the World, and warrantor, Union Indemnity Company, denied liability on the ground that plaintiff had no privilege for the reason that it did not cause to be recorded in the mortgage records an itemized statement of its claim, as required by section 2 of Act 229 of 1916; and also denied liability on the ground that plaintiff had failed to show that the materials for which a privilege is claimed were used in the construction of the building. The warrantor further denied liability on the ground that the petition of Ouachita Valley Camp No. 10, Woodmen of the World, failed to express a cause of action against the warrantor under the terms of the bond, and alleges that Ouachita Valley Camp No. 10, Woodmen of the World, has funds in its possession due to the contractor of an amount greater than that claimed in this suit.

On these issues, the case went to trial. There was judgment in favor of the plaintiff for $176,95, with 5% per annum interest thereon from judicial demand against Ouachita Valley Camp No. 10, Woodmen of the World, with recognition of its lien and privilege, and judgment in favor of Ouachita Valley Camp No. 10, Woodmen of the World, against Union Indemnity Company for a like amount, in warranty.

Defendant, Ouachita Valley Camp No. 10, Woodmen of the World, and warrantor, Union Indemnity Company, have appealed.

OPINION.

In this case the Ouachita Valley Camp No. 10, Woodmen of the World, contracted with A. Delatte for the erection of a lodge building but it failed to record in the office of the recorder of mortgages the contract or agreement or to furnish bond within the time and condition as the law required in order to relieve the owner from liability for unpaid labor and material used in the construction of the building.

Therefore, this case comes under Act 229 of 1916.

Plaintiff’s demand is for $186.71 for material sold by it to A. Delatte for use in erecting a building for Ouachita Valley Camp No. 10, Woodmen of the World.

It offers in support of its claim the following testimony:

Prank Mayes testified, pages 3, 4, 15, 16.

“Q. Mr. Mayes, I hand you an itemized account of the Monroe Hardware Company against A. Delatte, the account sued on in this case; examine that account and state whether or not it is true and correct, and whether or not you made the sales of those articles to Mr. Delatte.
“A. I made quite a number of these sales, and the account to the best of my knowledge is correct.
“Q. Do you know to whom the goods were actually delivered?
“A. Yes, sir.
“Q. To whom?
“A. Mr. Welch.
“Q. When you knew him, what was he doing in Monroe?
“A. Working at the W. O'. W. building.
“Q. Woodmen of the World building on Jackson street?
“A. Yes, sir.
“Q. What did you actually see him doing?
“A. I saw him superintending, the work on the building. . .
“Q. You have already testified that you sold some of these articles. I hand you 17 slips designated ‘Plaintiffs 2’, and. ask you to state what those slips are, what they represent?
“A. Orders to the Monroe Hardware Company for certain materials which were ordered by A. Delatte.
“Q. By whom are the orders signed?
“A. Mr. Welch’s name is signed to them.
“Q. Do you know whether or not that is Mr. Welch’s signature?
“A. I don’t know. I didn’t’ see him sign it. All signed just alike.
“Q. How did these orders come into the possession of the Monroe Hardware Company?
“A. By laborers from the job.
“Q. Do you know where the laborers came from?
“A. No, to say just where they came from. I don’t know where they came from.
“Q. I am talking about with reference to when they called at your place of business, the Monroe Hardware Company?
“A. I would not actually see them leave the building down there — sometimes I would.
“Q. Where did you see them?
“A. On the building; there at the building.
“Q. Woodmen of the World building?
“A. Yes, sir.
“Q. What were they doing?
“A. Working for Mr. Welch.
“Q. These laborers you saw working for the Woodmen of the World or on the Woodmen of the World building, under Mr. Welch, were the same laborers that called at the Monroe Hardware Company with these orders?
“A. Yes, sir.”
Mr. Kramer testified, pages 9 and 11.
“Q. This is a suit here against A. Delatte, contractor, and Woodmen of the World, for certain material the Monroe Hardware Company sold to A. Delatte and used in the Woodmen of the World building on Jackson street. Examine what purports to be an itemized statement of the material sold and state whether or not any of that material listed there actually went into the construction of that building. Confine your answer to your own knowledge.
' “A. Yes, sir, here is an item I sold myself.
“Q. What item is that, Mr. Kramer?
“A. Two sets of front door locks.
“Q. The invoice price of those articles are what?
“A. $25.20.
“Q. Did you know Mr. Welch?
“A. Yes, sir.
“Q. You know what connection if any he had with Mr. Delatte?
“A. I know that Mr. Welch introduced himself as ■ foreman in charge of — Mr. Welch purchased the material from me. Did not directly wait on him for that building.
“Q. What, if anything, did you ever see Mr. Welch do in connection with this Woodmen of the World building?
“A. I visited the building on several occasions during the construction and I saw Mr. Welch directing the men how to — one particular occasion they were installing frames on the rear of the building, second floor.
“Q. Do you know he was in charge of ■the construction of the Woodmen of the World building?
“A. Yes,' sir, he was.

Newton J. Moore testified, pages 21, 25. 25.

“Q. I hand you what purports to be an itemized account of the Monroe Hardware Company against A. Delatte, designated as plaintiff ‘1’, and ask you to state whether or not that account is true and correct, and made from the books of the Monroe Hardware Company?
“A. It is correct.
“Q. In saying that the account is correct—
“A. Correct at the time it was made.
“Q. How is that?
“A. The statement is correct at the time it was made.

John J. Fuerriero testified, page 29.

“Q. State your name and occupation?
“A. Jno. J. Guierrero; combination stenographer and bookkeeper for Monroe Hardware Company.
“Q. I hand you herewith document marked Plaintiff T, and ask you to examine it and state what it is.
“A. Account against A. Delatte.
“Q. Did you make out that account?
“A. I made it out all right — in my handwriting.
“Q. Is that a true and correct account as shown from the books of the Monroe Hardware Company.
“A. It is correct as shown from the books; that’s my handwriting.
“Q. You state that that account is true and correct?
“A. As far as my knowledge it is.”

Defendant offered no evidence contradictory of the above; and in our opinion the evidence clearly warranted the judgment of the trial court for the amount allowed, $176.95, and sustaining the privilege claimed.

Defendant, Ouachita Valley Camp No. 10, Woodmen of the World, and Union Indemnity Company, called in warranty urge as a defense against plaintiff’s claim for a privilege that plaintiff did not have an itemized statement of its account recorded in the office of the Recorder of Mortgages as required by section 2 of Act 229 of 1916, which provides:

“Any person claiming a privilege as aforesaid shall file in the office of the Recorder of Mortgages of the parish in which the land is situated a statement setting forth the amount claimed, and the items thereof as nearly as practicable the name of the owner, the name of the contractor, the name of the clainiant and a description of the property subject to the privilege verified by' affidavit. Such statement must be filed within' forty-five days after acceptance of the work by the owner of the land on which the work was done or his trustee or agent.”

The plaintiff filed an itemized statement, as shown in the affidavit of Sam Ivy, contained in plaintiff’s filing, page 139. This statement was fastened together as one document, and complied with all the requirements of the law, taken as a whole, and was filed within forty-five days.

As to this itemized statement, C. E. Whitford testified, pages 67, 68 and 69.

“Q. Were you an employee of the Monroe Hardware Company in February, 1923?
“A. Yes,'sir.
“Q. I hand you a document heretofore designated as Plaintiff ‘6’, and ask you to state whether or not you-have ever seen that document before?
“A. Yes, sir, I have.
“Q. When you last saw it, to whom did you deliver it?
“A. To the Clerk of the Ouachita Parish Court, and I told him I wanted the lien and bills attached filed and recorded; and before doing so he told me I would have to get him two dollars before he would file and record it; therefore, I went back to the office and got two dollars and made out a bill marked filing and recording papers.
“Q. What was the name of the gentleman?
“A. John Sholars.
“Q. Did you pay Mr. Sholars?
“A. Yes, sir, I did.
“Q. What instructions, if any, did you give Mr. Sholars when you handed him this document?
“A. I gave' him instructions to file and record the paper I had there.”

John Scholars testified, pages 34, 35 and 39.

“Q. I ask you to examine Mortgage Record 97, page 531 et seq. and state whether or not the invoices or itemized accounts which are attached to that affidavit are recorded in that mortgage record?
“A. I have got a big batch of papers in one hand and a book in the othei% and I have to check this over to see how much is recorded. There is one itemized statement here recorded. According to my recollection about this — which is in my hand and which I signed — the) e was instructions written on here in my hand to record one of these itemized statements. I see in Mortgage Book 97, page 531, there is some itemized statements recorded, but if you ask me to say what part of this filing here, the original, is recorded in the mortgage record I would have to take it and check it out.
“Q. Are the itemized invoices which are attached on under the itemized statement recorded in the mortgage record?
“A. I don’t know. I never saw the mortgage record until just now, and I don’t know what is in there.
“By the Court: Check it out and see.
“A. Can I make a statement like I checked it out.
“By the Court: Yes.
“A. I want to say this: This first affidavit is recorded and the sworn itemized statement giving the date and amount is recorded. On the first statement there are about thirty-two sheets attached to that giving the date and amount and describing the articles which are not recorded; and following that is another sworn itemized statement, giving date and amount, which is recorded, according to instructions, and attached to that is a batch, of about fifty sheets describing the articles, the date and amount which are not recorded.
“Q. One clip holding them all?
“A. Yes, and I made that filing in both places in order to identify all these papers with this lien. I don’t know why I did that. I didn’t have to do that but I did that to identify all these papers to identify them all with the lien. I want to make it clear that it is the one filing.”

Under this testimony we are convinced that the itemized account as a whole was filed in the office of the Recorder óf Mort; gages and the fact that the clerk failed to actually transcribe on the mortgage records the name of each item mentioned on the itemized account but only gave in the mortgage record a list of the amounts and dates, cannot, in our opinion, defeat the plaintiff’s claim of a privilege. The names of the various items were contained on the itemized statement filed and this, in our opinion, was sufficient, under the conditions as shown by the evidence in this case.

Defendant, Ouachita Valley Camp' No. 10, Woodmen of the World, insists that its motion to require the plaintiff to elect on account of inconsistent and conflicting allegations, should have been sustained.

We have carefully read the plaintiff’s petition and as we construe it the allegations are consistent and support the prayer of the petition. Its prayer is in the alternative, and in the alternative only. It asks that if Ouachita Valley Camp No. 10, Woodmen of the World, is not held to be liable in solido with A. Delatte, the contractor, then that it be decreed t'o have a privilege on the building of Ouachita Valley Camp No. 10, Woodmen of the World. There is no inconsistency in its prayer for judgment against Ouachita Valley Camp No. 10, Woodmen of the World, and its prayer that its privilege, as furnisher of material, be recognized and enforced against the building of Ouachita Valley Camp No. 10, Woodmen of the World.

The Union Indemnity Company, called in warranty, insists that the petition of Ouachita Valley Camp No. 10, Woodmen of the World, does not express a cause of action against it, and its counsel argue with great force that Ouachita Valley Camp No. 10, Woodmen of the World, is seeking" to invoke a concursus proceeding without having first deposited in the registry of the court the balance due on the contract price.

We think the call in warranty on the part of Ouachita Valley Camp No. 10, Woodmen of the World, does express a cause of action. It gives in detail the amounts claimed to have a privilege on the building of Ouachita Valley Camp No. 10, Woodmen of the World, as' filed by the various claimants, and alleges a privity of action between Ouachita Valley Camp No. 10, Woodmen of the World, and the Union Indemnity Company as to the laches of the builder, A. Delatte.

We think the Union Indemnity Company is entitled to have the judgment herein recorded against it modified so as to restrain its execution until Ouachita Valley Camp No. 10, Woodmen of the World, shall pay into the hands of the warrantor or deposit in the registry of the court, to be applied on the claims of the privilege creditors mentioned herein, the sum of $1109.40.

It is, therefore, ordered, adjudged and decreed that the judgment of the trial court be and the same is hereby affirmed, except that part of the judgment in favor of Ouachita Valley Camp No. 10, Woodmen of the World, and against Union Indemnity Company, and that part of the judgment is so modified as to stay execution thereon until Ouachita Valley Camp No. 10, Woodmen of the World, shall pay over to Union Indemnity Company, or deposit in the registry of the District Court of Ouachita parish, subject to the privilege claims mentioned in this suit, as impart the sum of $1109.40; and that as thus amended the judgment of the lower court is affirmed. The costs of the trial court to be paid as provided in the judgment appealed from. The costs Of the appeal to be paid by the Ouachita Valley Camp No. 10, Woodmen of the World.

ON APPLICATION FOR REHEARING.

CARVER, J.

In an able brief for rehearing, counsel for -warrantor earnestly urge:

1. That the exception of no cause of action to the call in warranty should have been sustained, for three reasons, namely:

A. That the bond being in favor only of the defendant is a mere indemnity bond which cannot serve as the basis of a call in warranty, for lack of privity between plaintiff and warrantor, and on which no right of action arises until payment by defendant of the debt sued on.

B. That the call in warranty shows that defendant owes the contractor more than enough to pay the claim sued on.

C. That the call is too vague to admit proof.

2. That the proof in this record does not show the existence of any valid claim against the contractor besides the one sued on, to pay which the money due by defendant to the contractor is more than sufficient.

Before undertaking to answer these contentions, it will be well to point out that, in September, 1923, alter completion of the building, defendant’s attorney wrote the warrantor fully disclosing the situation, which was as follows:

The contract price was.,_____________$27,495.00

on which had been paid................$25,444.07

leaving due the contractor __________$ 2,050.93

Liens had -been filed amounting to $4,080.39, or, say, $2,029.46 over and above the amount due the contractor.

One of these liens, though, namely; 'that due to. Frizzell, amounting to $410.30, defendant’s attorney considered had- been filed too late.

He, therefore, suggested to the- surety company that it send $1,619.16 which, added to the $2,050.93 defendant owed, would be sufficient to discharge all the recorded liens, except. Frizzell’s.

October 9, 1923, the surety company replied to this letter, directing payment of certain liens and non-payment of others.

Its letter concluded thus:

“Should there be any suits instituted against the W. O. W. on the. last referred to liens this company will furnish attorney to defend the suits provided ‘ it' is' notified of these suits promptly.”

Defendant paid those instructed to be paid, which left $1,109.40 still due ' the contractor.

When the present plaintiff, one of those directed not paid, filed its suit, defendant answered, calling the warrantor Tn warranty.

The warrantor- filed its answer, on April 21, 1924, and in the answer evinced no disposition to repudiate the apparent assumption by it of control over the situation as shown by its letter of October 9.

It denied, categorically, for lack of sufficient information, the allegations • of plaintiffs petition in twelve paragraphs. In its thirteenth paragraph it .plead- prescription against plaintiff: The' only part of its answer referring, to the- call in warranty is contained in the -fourteenth paragraph, which, set up, as -its sole defense- against the ..call in warranty, the claim that defendant was obliged, under its contract with the contractor, to retain 10 per- cent of the' contract price until forty-five days after acceptance of the building, which amount, it alleged, was more than sufficient to pay such judgment as might be rendered against defendant in the suit.

On May 12, 1924, it sought to change front, and filed an exception of no cause of action to the call in warranty, which exception it seriously presses in its application • for rehearing.

I.

Counsel confidently urge that the case of Bain vs. Arthur, 129 La. 143, 55 South. 743, is conclusive of the first point herein urged.

We do not think so. The bond in that case was not a statutory bond given to secure the performance of the contract by the contractor. It was a mere conventional obligation given to indemnify the surety in case of loss by reason of that surety’s having signed a contractor’s bond.

The bond in this case is a statutory bond, given under Act 167 of 1912 and amendments, and so states in lines 57 and 58.

See page 89, exhibit 17.

In Macready vs. Schenck, 41 La. Ann. 456, 6 South. 517, the court dealt with a bond given by a surviving partner as liquidator of the partnership under a statute (Civil Code 1138 et seq.) requiring such bond to be made' payable to the representative of the deceased partner’s succession. The bond there was made in favor of the' judges of the court instead of' to the succession representative.

The court said:

“Under the well settled doctrine that where a bond is given under the authority of a law, whatever is included in the bond which is not required by the law, must be read out of it, and, whatever is not expressed, and ought to have been incorporated, must be read as if inserted into it, it follows that the words found in the bond by which it is made payable to the judges, of the Civil District Court, must be left out, and the words to the succession representatives, must be deemed as embodied in their place.”

Under this authority we think the bond in this case must be regarded as in favor of the material men as well as the owner, that being the requirement of the statute under which it was given.

This disposes of counsels’ contention that there was no privity between plaintiff and warrantor, and also of their claim that no right of action arises until payment by plaintiff of the claim, sued on.

As to defendant’s admission on that it still owed the contractor enough to pay plaintiff, the call also set up that there were other claims all of which together were more than sufficient to exhaust the balance due the contractor. This, in our opinion, showed that there would be liability on the bond and hence constituted a cause of action.

The claim of vagueness, we think, cannot be urged under an exception of no cause of action. Such a plea should have been advanced in .its own name and in limine. If so advanced, defendant could have cured and would have been entitled to cure its • petition, if defective on that ground, by more specific allegations.

II.

On the merits, the warrantor’s claim in this case is not that plaintiff’s claim is not established, but that defendant owes the contractor enough to pay it, and there being no proof in this record that any other claim is due, it follows that defendant cannot recover on the bond.

Other suits before the court do show other valid claims, enough to overcome the balance due the contractor.

But warrantor’s counsel say that those suits should not be regarded as evidence herein.

Taking this as correct, we do not think it entitles the warrantor to a dismissal of the call in warranty in this suit and then, in turn, to a dismissal of the call in each of the other suits for the same reason, thus making the small balance of $1109.40 serve to defeat claims amounting to much more than that.

In equity we think warrantor entitled to no more than a provision which will assure payment of this balance on valid claims whether included in this suit or other suits, so that warrantor can be held only for whatever amount may be due after defendant pays on valid claims what it should pay.

This provision can be made by requiring it to pay into the registry of the court before execution of the judgment herein rendered, a sum to be applied to this claim and to other valid claims, if any. If, on examination of the other suits, the claims therein are found valid, then they, too, must be paid out of the deposit. If not, they will be rejected.

The result of this will be that defendant can recover nothing until and unless the valid' claims exhaust the amount which it should pay but without deciding on this case that they do ■ exhaust it.

Counsel also contend that defendant is trying to provoke a concursus in an irregular way and without depositing the balance due the contractor.

We do not perceive how this course has resulted or uould have resulted in any prejudice to the warrantor. The plea comes with poor grace, considering that the warrantor, in its letter of October 9, 1923, virtually directed defendant to await suit of the lienors and promised to furnish an attorney to defend same.

The introduction of this letter was objected to by warrantor, but only on the grounds that it was incompetent, immaterial, outside of the pleadings and did not refer to payments called for by the contract. But we do not think these objections well founded. The only defense made by warrantor against the call in warranty, besides the exception of no cause of action, was that defendant should have retained more of the contract price than it did retain.

The letter accounted for part of what warrantor was claiming should . have been retained.

Counsel also objects that defendant’s contention as to this letter being a justification of payment is virtually urging an estoppel which, warrantor says, is not allowable, because estoppel was not pleaded.

Defendant did not urge this estoppel as a .ground of recovery but as a .reason why. warrantor’-s plea of anticipated ■ payments was not good. We think it had the right to do this without any plea, replications under o.ur rules of practice not being required or permitted.

Our • -re-examination, though, has convinced us ■ that there was 'error to the prejudice of warrantor in our original decision in two respects.

1. In fixing the amount of the deposit to be made by the Camp at $1109.40; and

2. In giving judgment against the warrantor for the whole of plaintiff’s claim herein instead of for the amount of that claim less plaintiff’s share of the deposit so to be made.

Under its contract the Camp should have retained 10% of the contract price, which would be $2749.50. At the time of its report to the warrantor it had only $2050.93, showing an anticipated payment to the contractor of $698.57. We think the Camp should be regarded, quo ad the surety, as still having this $698.57 on hand. This added to the $1109.40 really due the contractor will total $1807.97, which is the amount that should, in our opinion, be deposited.

We cannot ■ correct these errors, at least without the consent of the Camp, without granting a rehearing.

See Act 100 of 1896.

Reed vs. Corbin, 115 La. 137, 38 South. 942.

Inasmuch,.'though, as no one is interested in opposing 'the correction except the Camp, we think it not improper to make it with its consent.

We shall, therefore, refuse the rehearing applied for by warrantor but make the indicated changes with a reservation to the Camp of its right to apply for a rehearing which, if applied for, will be granted as of course. If not applied for, its failure to do so will be taken as consent to the correction.

For these reasons, the rehearing is réfused, but the decision heretofore rendered is modified as follows:

First: Instead of defendant, Ouachita Valley Camp No. 10, Woodmen of the World, having the right to execute the judgment herein rendered against the warrantor on depositing $1109.40, it is decreed that it shall have that right only on depositing $1807.97; out of which deposit shall be paid, pro rata, the judgment in favor of the plaintiff in this suit and such judgments as may be or may have been rendered in favor of plaintiffs in the following suits in which the warrantor herein has been called in warranty, namely:

No. 2302, Parlor City Lumber Co., Inc., vs. A. Delatte, et al.

No. 2303, C. C. Bell vs. A. Delatte et al.

No. 2304. Monroe Hardware Company. Inc., vs. A. Delatte et al.

Second: The judgment herein rendered in favor of Ouachita Valley Camp No. 10, Woodmen of the World, against Union Indemnity Company, shall be credited with the share of the plaintiff herein of such deposit.

Third: The right is reserved to Ouachita Valley Camp No. 10, Woodmen of the World, to apply for a rehearing.

Ouachita Valley Camp No. 10, Woodmen of the World, defendant, shall pay the cost of this appeal; all other costs to he paid by the warrantor, Union Indemnity Company.

Odom. Judge, recused.

ON APPLICATION FOR REHEARING.

CARVER, J.

In passing on the application of Union Indemnity Company for a rehearing we refused same but modified our original decree by ordering suspension of the Ouachita Valley Camp’s right to execute the judgment herein rendered in its favor and against Union Indemnity Company until it deposited $698.57 in addition to the $1109.40 ordered deposited in the original decree.

This being a change'in the decree prejudicial to the Camp, the right was reserved to it to apply for a rehearing which, it was stated, would be granted, as a matter of course, if applied for.

Counsel for the Camp has applied for a rehearing, praying that our original decree be reinstated and claiming that the $698.57 should not be regarded as still in the Camp’s hands quo ad the surety.

As the rights of all parties quo ad this $698.57 can be fully protected by restricting the rehearing to the question of the Camp’s obligation to deposit this additional amount vel non without entirely suspending execution of

It is decreed—

First: That a rehearing is hereby granted to Ouachita -Valley Camp No. 10, Woodmen of the World, solely on the question whether it should deposit six hundred ninety-eight and 57-100 dollars additional to the eleven hundred and nine and 40-.100 dollars previously ordered deposited.

Second: That the rehearing hereby granted shall suspend execution of the judgment herein rendered in favor of plaintiff against the Camp and in favor of the Camp against the Union Indemnity Company only to the extent of a share of said six hundred and ninety-eight and 57-100 dollars in proportion to plaintiff’s judgment herein and those rendered in favor of the plaintiffs in the following numbered and entitled cases on the docket of this court, to wit:

No. 2302, Parlor City Lumber Company, Inc., vs. A. Delatte et al.

No. 2303, C. C. Bell vs. A. Delatte et al.

No. 2304, Monroe Hardware Co., Inc., vs. H. L. Thompson et al.

Odom, Judge, recused.

ON REHEARING

WEBB; J.

In -the original opinion in this cause, the judgment of the District Court was amended by staying the execution of the judgment rendered against the Union Indemnity Company, warrantor, in favor of the defendant, Ouachita Valley No. 10, owner, until the latter had deposited, in the registry of the court the sum of eleven hundred and nine and 40-100 dollars.

The Indemnity Company, warrantor, moved for a rehearing, which was refused, but the original decree was modified so as to increase the amount which the owner should deposit in the registry of the court from eleven hundred and nine and 40-100 dollars to eighteen hundred and seven and 97-100 dollars, reserving to the owner, Ouachita Valley Camp No. 10, the right to apply for a rehearing.

The Ouachita Valley Camp moved for a rehearing, which was granted, but restricted solely to the consideration of thq question as to the amount to be deposited, the decree being as follows :

“It is decreed:
“First: That a rehearing is hereby granted to Ouachita Valley Camp No. 10, Woodmen of the World, solely on the question whether it should deposit six hundred and ninety-eight and 57-100 dollars additional to the eleven hundred and nine and 40-100 dollars previously ordered deposited.
“Second: That the rehearing granted shall suspend execution of the judgment herein rendered in favor of plaintiff against the camp and in favor of the camp against the Union Indemnity Company only to the extent of a share of said six hundred and ninety-eight dollars in proportion to plaintiff’s judgment herein and those rendered in favor of the plaintiff in the following numbered and entitled cases on the docket of this court, to-wit:
“No. 2302—Parlor City Lumber Company, Inc., vs. A. Delatte, et al.
“No. 2303—C. C. Bell vs. A. Delatte, et al.
“No. 2304—Monroe Hardware Co, Inc., vs. A. Delatte, et al.”

Subsequently a rehearing appears to have been granted on the entire case by the court on its own motion, and the cause has again been submitted.

We are of the opinion this court was without power to have granted a rehearing upon the entire case, and that' we must take notice of the limitation of our power. (In re Luckett & Hunter, 159 La.) And therefore the rehearing must be restricted solely to the consideration of the question as to whether the Ouachita Valley Camp shall make an additional deposit over and above the sum of eleven hundred and nine and 40-100 dollars, and that all other questions are foreclosed.

In considering this cause as between the Ouachita Valley Camp owner, and the Union Indemnity Company (surety on the contractor’s bond), it appears the court must have viewed the situation as if this suit and suits Nos.: 2302, Parlor City Lumber Company, Inc., vs. A. Delatte, et al.; 2303, C. C. Bell vs. A. Delatte, et al; 2304, Monroe Hardware Company, Inc., vs. H. L. Thompson, et al., has been consolidated, and concluded that as between the Camp and the Indemnity Company the proceeding should be viewed as a concursus, holding the Camp bound to account foi’ the contract price, or to be considered as having retained in its hands ten per cent of the contract price, less the amounts paid out with the consent of the Indemnity Company.

Considering the case as between the Camp and the Indemnity Company from this point of view, it appears the Camp contends the balance of the contract price remaining in its hands is six hundred and ninety-four and 53-100 dollars rather than eleven hundred and nine and 40-100 dollars as admitted in the call in warranty, which is arrived at by a comparison of the following statement:

Contract price ........... $27,495.00

Deductions therefrom:

Sliding doors......................$200.00

Paint .....................i______________ 240.00

Front door .......................... 34.80

- 474.80

Net contract price .......................$27,020.20

Cash paid contractor on estimate:

October 4, 1922____________$ 2,959.00

November 27, 1922...... 6,000.00

December 13, 1922........ 10,000.00

- 21,950.00

Reserved under contract------------$ 5,070.20

Reserved under contract and paid out as follows, direct to' mate- , rial men and laborers:

A. F. Stovall, frt. storage..$. 171.32

McGuire Sand & Gravel Co.......... 332.75

C. C. Bell, mill work________ 1000.00

Joe Bell, roofing ________________ 800.00

J. J. Brennan, plumbing____ 200.00

J. J. Brennan, plumbing____ 300.00

Electric Constr. Co_____________ 200.00

Electric Constr. Co_____________ 50.00

Electric Constr. Co_____________ 100.00

Three toilet fixtures________ 73.00

- 3,270.07

On hand at time of letter____________$ 1,843.13

And paid out under instructions of surety company:

Electrical Appliance Co.____$ 250.00

E. C. Stewart, painting.... 24.00

J. J. Brennan,, plumbing 255.00

J. G. Bell, roofing________________ 411.60

940.60

$902.53

And the testimony of Mr. Blackman, one of the officers of the Camp, which is as follows:

“Q. Mr. Blackman, it is alleged in the answer that there remains in the hands of the Ouachita Valley Camp $1109.40 after, the completion of the building. Will you please state how this balance is arrived at?
“A. At the time the building was completed we owed .the contractor $2806.43 with the following deductions: Insurance $108.00, floor color $100.00, allowance for paint $240.00; plumbing fixtures not furnished $73.00; allowance front door $34.80 * * and the items ordered paid by the insurance company leave a balance of eleven hundred and nine and 40-100 dollars.”

The camp, being held to account for the contract price, or to show that the amounts deducted from the contract price were properly made, such as for insurance $108.00, floor color $100.00, allowance for paint $240.00, sliding doors $200.00, plumbing fixtures not furnished $73.00, and allowance for front doors $34.80, and amounts paid out under the heads of “Reserved under contract and paid out . as follows direct to material men and laborers” and “Paid out under instructions surety company” were properly paid, carried the burden of proof, and as there is no evidence establishing that the deductions from the contract price had been agreed upon as between the Camp and the contractor or that the item of one hundred and seven ' and 32-100 dollars paid A. P. Stovall, as shown in the statement, was for material for which the Camp was liable, or that the item of $100.00 to the Electrical Construction Company was paid, we are of the opinion that these items, which amount to the sum of one thousand and twenty-seven and 12-100 dollars, should be added to the amount of the six hundred- and ninety-four and 53-100 dollars, making the balance of the contract price unaccounted for by the Camp seventeen hundred and twenty-twenty-one and 65-100 dollars, and deducting from this amount the sum of eleven hundred and nine and 40-100 dollars which the Camp has heretofore been ordered to deposit, leaves -a balance of six hundred and twelve and 25-100 dollars which the Camp should deposit before being permitted to proceed against the surety company.

It is therefore ordered, adjudged and decreed that the original decree as modified on the application of the Union Indemnity Company for a rehearing be amended as follows:

Instead of defendant, Ouachita Valley Camp No. 10, Woodmen of the World, having the right to execute the judgment herein rendered against the warrantor on-depositing $1109.40, it is decreed that it shall have that right only on depositing seventeen hundred and twenty-one and 65-100 dollars, out of which deposit shall" be paid, pro rata, the judgment in favor of' the plaintiff in this suit and the judgments rendered- in favor of the plaintiffs in the following suits in which the warrantor herein has been called in warranty (wherein judgments are rendered against it in favor of the Ouachita Valley Camp, namely:

No. 2302—Parlor City Lumber Company, Inc., vs. A. Delatte, et al.

No. 2303—C. C. Bell vs. A. Delatte, et al.

No 2304—Monroe Hardware Co., Inc., vs. H. L. Thompson, et al.

And that the decree, as thus amended, be and is made the judgment of this court.


author: CARVER, J. CARVER, J. REYNOLDS, J. CARVER, J. CARVER, J. WEBB, J.

text:
    No. 2302.
    Second Circuit
    PARLOR CITY LUMBER CO., INC., v. A. DELATTE ET AL. UNION INDEMNITY COMPANY
    (May 9, 1925, Opinion and Decree.)
    (June 13, 1925, Opinion and Decree on Application of Warrantor for Rehearing.)
    (June 30, 1925, Opinion and Decree on Application of Defendant, Ouachita Valley Camp No. 10, W.O.W., for Rehearing.)
    (July 18, 1925, Rehearing Granted on Whole Case.)
    (May 7, 1926, Opinion and Decree on Rehearing.)
    (May 7, 1926, Notice of Application for Certiorari to Supreme Court on Behalf of Warrantors.)

      (Syllabus by the Editor.)

    (See Monroe Hardware Company vs. A. Delatte on page 66, herein.).
    On appeal from the Fourth Judicial District Court of Louisiana, Parish of Ouachita. Hon. Percy Sandel, Judge.
    McHenry, Montgomery, Lamían & Lam-kin, attorneys for plaintiff, appellee.
    J. M. Munholland, attorney for Ouachita Valley Camp No. 10, Woodmen of the World, defendant, appellant..
    Blanchard, Goldstein & Walker, attorneys for Union Indemnity Company, warrazztor, appellant.
   ON APPLICATION FOR REHEARING.

CARVER, J.

For the reasons assigned in the opinion on the application for rehearing in the case of Monroe Hardware Co., Inc., vs. A. Delatte et al., No. 2301 on the docket of this court, it is decreed:

First: That a rehearing is hereby granted to Ouachita Valley Camp- No. 10, Woodmen of the World, solely on the question whether it should deposit six hundred ninety-eight and 57-100 dollars additional to 'the eleven hundred and nine and 40-100 dollars previously ordered ¡deposited.

Second: That the rehearing hereby granted shall suspend execution of the judgment herein rendered in favor of the Camp against Union Indemnity Company only to the extent of a share of said six hundred ninety-eight and 57-100 dollars in proportion to plaintiff’s judgment herein and those rezidered in favor of the plaintiffs- in the following numbered and entitled cases ozz the docket of this court, to wit:

No. 2301, Monroe Hardware Co., Inc., vs. A. Delatte et al.

No. 2303, C. C. Bell vs. A. Delatte et al.

No. 2304, Monroe Hardware Co., Inc., vs. H. L. Thompson et al.

Odom, Judge, recused.

ON APPLICATION FOR REHEARING.

CARVER, J.

For the reasons given in the decision denying a rehearing in the case of Monroe Hardware Company, Inc., vs. A. Delatte et al, No. 2301 on the docket of this court, it is decreed that the rehearing asked for in this case be refused, with the modification that instead of plaintiff in the call in warranty having the right to execute the judgment herein rendered on depositing $1109.40, it is decreed that it shall have the right only on depositing $1807.97; out of which deposit shall be paid pro rata the judgment in favor of the plaintiff in this suit and such judgments as may be or may have been rendered in favor of the plaintiffs in the following suits on the docket of this court in which warrantor herein has been called in warranty, namely:

No. 2301, Monroe Hardware Co., Inc., vs. A. Delatte et al.

No. 2303, C. C. Bell vs. A. Delatte et al.

No. 2304, Monroe Hardware Co., Inc., vs. H. L. Thompson et al.

The right is reserved to defendant, Ouachita Valley Camp No. 10, Woodmen of the World, to apply for a rehearing.

The judgment herein rendered in favor of Ouachita Valley Camp No. 10, Woodmen of the World, against Union Indemnity Company, shall be credited with the share of the plaintiff herein on the deposit of $1807.97

Ouachita Valley Camp No. 10, Woodmen of the World, defendant, shall pay the costs of this appeal; all other costs to be paid by the warrantor, Union Indemnity Company.

Odom, Judge, recused.

REYNOLDS, J.

In this case plaintiff established by the testimony of Felix A. Terzia and J. M. Myatt the correctness of its account sued on and that the items mentioned thereon went into and made part of the building of Ouachita Valley Camp No. 10, Woodmen of the World. The defendant offered no evidence to the contrary.

The other issues herein presented are covered by the decision of this court in case No. 2301, Monroe Hardware Company, Incorporated, vs. A. Delatte et al., and for the reasons therein expressed the judgment appealed from is affirmed, except that portion of the judgment in favor of Ouachita Valley Camp No. 10, Woodmen' of the World, and against the warrantor, Union Indemnity Company, and that portion of the judgment is amended by staying execution thereon until Ouachita Valley Camp No. 10, Woodmen of the World, pays to the warrantor, Union Indemnity Company, of deposits in the registry of the District Court of Ouachita Parish, Louisiana, to be paid on the privilege claims mentioned in this suit as unpaid, the sum of eleven hundred and nine and 40-100 dollars, and as thus amended the judgment appealed from is affirmed. The costs of the lower court to be paid as provided in the judgment appealed from. The costs of the appeal to be paid by Ouachita Valley Camp No. 10, Woodmen of the World.

ON APPLICATION FOR REHEARING.

CARVER, J.

For the reasons given in the decision denying a rehearing in the case of Monroe Hardware Company, Inc., vs. A. Delatte et al., No. 2301 on the docket of this court, it is decreed that the rehearing asked for in this case be refused, with the modification that instead of plaintiff in - the call in warranty having the right to execute the judgment herein rendered on depositing $1109.40, it is decreed that it shall have that right only on depositing $1807.97; out of which deposit shall be paid, pro rata, the judgment in favor of the plaintiff in this suit and such judgments as may be or have been rendered in favor of the plaintiffs in the following suits on the docket of this court in which warrantor herein has been called in warranty, namely:

No. 2303; C. C. Bell vs. A. Delatte, et al.

No. 2304; Monroe Hardware Co. Inc. vs. H. L. Thompson, et al.

The right is reversed to defendant, Ouachita Valley Camp No. 10, Woodmen of the World, to apply for a rehearing.

The judgment herein rendered in favor of Ouachita Valley. Camp No. 10, Woodmen of the World, against Union Indemnity Company, shall be credited with the share of the plaintiff herein of the deposit of $1,807.97.

Ouachita Valley Camp No. 10, Woodmen of the World, defendant, shall pay the costs of this appeal; all other costs to be paid by the warrantor, Union Indemnity Company.

ON APPLICATION FOR REHEARING

CARVER, J.

For the reasons assigned in the opinion on the application for rehearing in the case of Monroe Hardware Co. Inc. vs. A. Delatte et al. No. 2301 on the docket of this court, it is decreed:

Second: That the rehearing hereby granted shall suspend execution of the judgmen herein rendered in favor of the plaintiff against the Camp and in favor of the Camp against Union Indemnity Company only to the extent of a share of said six hundred ninety eight and 57-100 dollars in proportion to plaintiff’s judgment herein and those rendered in favor of the plaintiffs in the following numbered and entitled cases on the docket of this court, to wit: No. 2301; Monroe Hardware Co. Inc. vs. A Delatte, et al. No. 2303; C. C. Bell vs. A. Delatte, et al. No. 2304; Monroe Hardware Co. Inc. vs. H. L. Thompson, et al.

Odom, Judge, recused.

ON APPLICATION OF UNION INDEMNITY COMPANY FOR A REHEARING

REYNOLDS, J. Rehearing granted, granted on whole case.

ON REHEARING

WEBB, J.

For the reasons assigned in the opinion on rehearing in the case of Monroe Hardware Company, Inc., versus A. Delatte, No. 2301 on the docket of this court:

It is ordered, adjudged and decreed that the original decree as modified on the application of the Union Indemnity Company for a rehearing be amended as follows:

Instead of defendant, Ouachita Valley Camp No. 10, Woodmen of the World, having the right to execute the judgment herein rendered against the warrantor on depositing $1109.40, it is decreed that it shall have that right only on depositing seventeen hundred and twenty-one and 65-100 dollars; out of which deposit shall be paid, pro rata, the judgment in favor of the plaintiff in this suit. and the judgments rendered in favor of the plaintiffs in the following suits in which the warrantor herein has been called in warranty (wherein judgments are rendered against it in favor of the Ouachita Valley Camp), namely:

No. 2301—Monroe Hardware Company, Inc., vs. A. Delatte, et al.

No. 2303—C. C. Bell vs. A. Delatte, et al.

No 2304—Monroe Hardware Company, Inc., v. H. L. Thompson, et al.

And that the decree, as thus amended, be and is made the judgment of this court.


author: CARVER, J.

text:
    No. 2303
    Second Circuit
    C. C. BELL v. A. DELATTE ET AL. UNION INDEMNITY COMPANY, Called in Warranty.
    (May 9, 1925, Opinion and Decree.)
    (June 13, 1925, Opinion and Decree on Application of Warrantor for Rehearing.)
    (June 30, 1925, Opinion and Decree on Application of Defendant, Ouachita Valley Camp No. 10, W.O.W., for Rehearing.)
    (July 18, 1925, Rehearing Granted on Whole Case.)
    (May 7, 1926, Opinion and Decree on Rehearing.)
    (May 7, 1926, Notice of Application for Certiorari to Supreme Court on Behalf of Warrantors.)
    (See Monroe Hardware Company vs. Delatte on page 66, herein.)
    Appeal from Fourth Judicial District Court of Louisiana, Parish of Ouachita. Hon. Percy Sandel, Judge.
    ON APPLICATION FOR REHEARING.
    Randle & Shotwell, of Monroe, attorneys for plaintiff, appellee.
    J. M. Munholland, of Monroe, attorney for Ouachita Valley Camp No. 10, Woodmen of the World.
    Blanchard, Goldstein & Walker, of Shreveport, attorneys for Union Indemnity Company.
   CARVER, J.

For the reasons given in the decision denying rehearing in the case of Monroe Hardware Company, Inc., vs. A. Delatte, et al. No. 2301 on the docket of this court, it is decreed that the rehearing asked for in this case be refused, with the modification that instead of plaintiff' in the call in warranty having the right to execute the judgment herein rendered on depositing $1,109.40, it is decreed that it shall have that right only on depositing $1,807.97; out of which deposit shall be paid, pro rata; the judgment in favor of the plaintiff in this suit and such judgments as may be or have been rendered in favor of the plaintiffs in the following suits on the docket of this court in which the warrantor herein has been called in warranty, namely:

No. 2301; Monroe Hardware Co. Inc. vs. A. Delatte, et al.

No. 2302; Parlor City Lumber Co. Inc. vs. A. Delatte, et al.

No. 2304; Monroe Hardware Co. Inc. vs. H. L. Thompson, et al.

The right is reéerved to defendant, Ouachita Valley Camp No. 10, Woodmen of the World, to apply for a rehearing.

The judgment herein rendered in favor of Ouachita Valley Camp No. 10, Woodmen of the World, against Union Indemnity Company, shall be credited with the share of the plaintiff herein of the deposit of $1,807.97.

Ouachita Valley Camp No. 10, Woodmen of the World, defendant shall pay the costs of this appeal; all other costs to be paid by the warrantor, Union Indemnity Company.

ON APPLICATION FOR REHEARING

For the reasons assigned in the opinion on the application for rehearing in the case of Monroe Hardware Company, Inc. vs. A. Delatte, et al. No. 2301 on the docket of this court, it is decreed:

First: That a rehearing is hereby granted to Ouachita Valley Camp No. 10, Woodmen of the World solely on the question whether it should deposit six hundred ninety eight and 57-100 dollars additional to the eleven hundred and nine and 40-100 dollars previously ordered deposited.

Second: That the rehearing hereby granted shall suspend execution of the judgment herein rendered in favor of the plaintiff against the Camp and in favor of the Camp against Union Indemnity Company only to the extent of a share of said six hundred ninety-eight and 57-100 dollars in proportion to plaintiff’s judgment herein and those rendered^ in favor of the plaintiffs in the following numbered and entitled cases on the docket of this court, to wit: No. 2301; Monroe Hardware Company, Inc. vs. A. Delatte, et al. No. 2302; Parlor City Lumber Co. Inc. vs. A. Delatte, et al. No. 2304; Monroe Hardware Co. Inc. vs. H. L. Thompson, et al.

Odom, Judge, recused.

ON REHEARING

For the reasons assigned in the opinionj on rehearing in the case of Monroe Hardware Company, Inc., versus A. Delatte, No. 2301 on the docket of this court:

It is ordered, adjudged and decreed that the original decree as modified on the application' of the Union Indemnity Com-j pany for a rehearing be amended as! follows: I

Instead of defendant, Ouachita Valley Camp No. 10, • Woodmen of the World, having the right to execute the judgment herein rendered against the warrantor on depositing $1109.40, it is decreed that it shall have the right only on depositing $1721.65. out of which deposit shall be paid, pro rata, the judgment in favor of the plaintiff in the following suits in which the warrantor herein has been called in warranty' (wherein judgments are rendered against it in favor of the Ouachita Valley Camp), namely:

No. 2301—Monroe Hardware Company, Inc., vs. A. Delatte, et al.

No. 2302—Parlor City Lumber Company, Inc., vs. A. Delatte, et al.

No. 2304—Monroe Hardware Co., Inc., Inc., vs. H. L. Thompson, et al.

And the decree, as thus amended, he and is made the judgment of this court.


author: CARVEJt, J. CARVER, J.

text:
    No. 2304.
    Second Circuit
    MONROE HARDWARE COMPANY, INC., v. H. L. THOMPSON ET AL. UNION INDEMNITY COMPANY,
    (May 9, 1925, Opinion and Decree.)
    (June 13, 1925, Opinion and Decree on Application of Warrantor for Rehearing.)
    (June 30, 1925, Opinion and Decree on Application of Defendant, Ouachita Valley Camp No. 10, W.O.W., for rehearing.)
    (July 18, 1925, Rehearing Granted on Whole Case.)
    (May 7, 1926, Opinion and Decree on Rehearing.)
    (May 7, 1926, Notice of Application for Certiorari to Supreme Court on Behalf of Warrantors.)

      (Syllabus by the Editor.)

    (See Monroe Hardware Company vs. A. Delatte, page 66, herein.)
    Appeal from Fourth Judicial District Court of Louisiana, Parish of Ouachita. Hon. Percy Sandel, Judge.
    W. F. Pipes; Stubbs, Theus, Grisham & Thompson, of Monroe, attorneys for plaintiff, appellee.
    J. M. Munholland, of Monroe, attorney for Ouachita Valley Camp No. 10, Woodmen of the World.
    M. C. Redmond, of Monroe, attorney for H. L. Thompson.
    Blanchard, Goldstein & Walker, of Shreveport, attorneys for Union Indemnity Company.
   ON APPLICATION FOR REHEARING.

CARVEJt, J.

For the reasons given in the decision denying a rehearing in the case of Monroe Hardware Company, Inc., vs. A. Delatte et al., No. 2301 on the docket of this court, it is decreed that the' rehearing asked for in this case he refused, with the modification that instead of plaintiff in the call in warranty having the right to execute the judgment herein rendered on depositing $1109.40, it is decreed that it shall have that right only on depositing $1807.97; out of which deposit shall he paid, pro rata, the judgment in favor of the plaintiff in this suit and such' judgments as may be or have been rendered in favor of the plaintiffs in the following suits on the docket of this court in which warrantor herein has been called in warranty, namely:

No. 2301, Monroe Hardware Co., Inc., vs. A. Delatte et al.

No. 2302, Parlor City Lumber. Co., Inc., vs. A. Delatte et al.

No. 2303, C. C. Bell vs A. Delatte et al.

The right is reserved to defendant, Ouachita Valléy Camp No. 10, Woodmen of the World, to apply for a rehearing.

The judgment herein rendered in favor of Ouachita Valley Camp No. 10, Woodmen of the World, against Union Indemnity Gompany shall be credited with the share of the plaintiff herein of the deposit of $1807.97.

Ouachita Valley Camp No. 10, Woodmen of the World, defendant, shall pay the costs of this appeal; all other costs to be paid by the warrantor, Union Indemnity Company.

ON APPLICATION FOR REHEARING.

CARVER, J.

For the reasons assigned in the opinion on the application for rehearing in the case of Monroe Hardware Company, Inc., vs. A. Delatte et al., No. 2301 on the docket of this court, it is decreed:

First: That a rehearing is hereby granted to Ouachita Valley Camp No. 10, Woodmen of the World, solely on the question when it should deposit six hundred and ninety-eight and 57-100 dollars additional to the eleven hundred and nine and 40-100 dollars previously ordered deposited.

Second: That the ' rehearing hereby granted shall suspend execution of the judgment herein rendered in favor of the plaintiff against the Camp and in favor of the Camp against Union Indemnity Company only to the extent of a share of said six hundred ninety eight and 57-100 dollars in proportion to plaintiff’s judgment herein and those rendered in favor of the plaintiffs in the following numbered and entitled cases on the docket of this court, to wit:

No. 2301, Monroe Hardware Company, Inc., vs. A. Delatte et al.

No. 2302, Parlor City Lumber Company, Inc., vs. A. Delatte et al.

No. 2303, C. C. Bell vs. A. Delatte et al.

Odom, Judge, • recused.

ON REHEARING

For the reasons assigned in the opinion on rehearing in the case of Monroe Hardware Company, Inc., versus A. Delatte, et al., No. 2301 on the docket of this court:

It is ordered, adjudged and decreed that the original decree as modified on the application of the Union 'Indemnity- Company for a rehearing be amended as follows:

Instead of- defendant, Ouachita Valley Camp No. 10, Woodmen of the World, having the right to execute the judgment herein rendered against the warrantor on depositing $1109.40, it is decreed that it shall have the right only on depositing $1721.65; out of which deposit shall be paid, pro rata, the judgment in favor of the plaintiff in the following suits in which the warrantor herein has been called in warranty (wherein judgments are rendered against it in favor of the Ouachita Valley Camp), namely;

No. 2301—Monroe Hardware Company, Inc., vs. A. Delatte, et al.

No. 2302—Parlor City Lumber Company, Inc., vs. A. Delatte, et al.

No. 2303—C. C. Bell vs. A. Delatte, et al.

And that the decree, as' thus amended, be and is made the judgment of this court.


text:
    No. 2577
    Second Circuit
    BALL & BARRON v. WUNSCH
    (June 2, 1926. Opinion and Decree.)

      (Syllabus by the Editor)

    1. Louisiana Digest — Appeal—Par. 625.
    The finding of the trial court on matters of fact, namely, the employment of an architect, being clearly correct, is affirmed.
    2. Louisiana Digest — Marriage—Par. 175.
    The wife is not liable individually for the debts of the community.
    Appeal from the City Court - of Alexandria • Ward, Parish of Rapides, Louisiana. Hon. J. B. Nachman, Judge.
    Action by E. Lee Ball and C. Brril Barron against Ashton Wunsch and wife.
    There was judgment for plaintiffs and defendants appealed.
    Judgment affirmed as against Ashton Wunsch ’but reversed as against his .wife.
    K. Hundley, of Alexandria, attorney for plaintiffs, appellees.
    No appearance for defendants, appellants.
   ODOM, J.

The plaintiffs, ' who are licensed architects in the city of Alexandria, Louisiana, brought this suit to recover the sum of $222.00, which amount they allege is due them for making preliminary plans for the erection of a building for the defendants in the city of Alexandria.

Plaintiffs ask judgment against both defendants, Ashton Wunsch and wife.

The defendants resisted the demand on the ground that they did not employ plaintiffs to make such plans and that they at no time authorized them to do any work of any character for them.

There was judgment in the lower court in favor of the plaintiffs for the full amount sued for, the judgment being against both Ashton Wunsch and his wife. The defendants have appealed.

OPINION

The defendants are not representd before this court by counsel. The . attorney who represented them in. the. lower .court having failed to appear in this court to argue the case and has filed no brief.

We have carefully considered the testimony adduced on the trial of the case and are convinced that plaintiffs are entitled to recover the sum for which they sue.

They both testified that in the latter part of the year 1924 plaintiff and his wife signified to them their intention of erecting a building in the city of Alexandria, the lower story of which was to be used as a plumbing shop and the upper story as living quarters. They testified that Mr. Wunsch made repeated visits to their office and after instructing them to prepare plans for the building reappeared after the plans had been drawn and made suggestions with reference thereto and especially with reference to certain changes which he wanted made. Their testimony is corroborated by that of Mr. Larry Wilson, who testified that on one occasion he was in the office of the plaintiffs and overheard a conversation between one of them and Mr. Wunsch with reference to the plans for the building. Mr. Wilson did not recall all the details with reference to the conversation which he overheard, but he testified that the parties were examining plans and were discussing the details of the building to be erected.

The ' defendant, Mr. Wunsch, testified that he did not employ plaintiffs or either of them to prepare any plans for him, but admits that they did prepare such plans and exhibit them to him and that he went over the plans with them and made certain suggestions with reference to such plans.

Mrs. Wunsch testified positively that she had at no time authorized plaintiffs to prepare such plans, but she admits that on more than one occasion she was in the office • of the plaintiffs after the plans had been drawn up and that she looked them over but made no suggestions with reference thereto.

The plaintiff, Ball, testified positively that Mr. Wunsch had authorized him to' prepare the plans for the building, and we are satisfied that is true. It does not seem reasonable that plaintiffs would have made such plans and submit them to and discuss them with defendants if they had not been authorized to do so. We cannot imagine any reason for their spending their time and labor preparing the plans if they were not authorized to do so by the defendants.

The suggestion of defendant, Mr. Wunsch, that plaintiffs voluntarily made the plans and submitted them to him without being previously authorized to do so, does not appeal to us as being reasonable.

Plaintiffs testified that defendants suggested that they desired to erect a building to cost approximately $18,500.00, and that the customary fees charged by architects in case a building is supervised by them after making plans and specifications is 6% and that in case the plans are made and submitted and no work of supervision is done b'y them the customary fee is one-fifth of 6%, which is the amount claimed in this suit, it being conceded that the building was never erected.

We are convinced that the .judge of the lower court reached a correct conclusion on the facts. However, we think he erred in granting judgment against Mrs. Wunsch. It is alleged in plaintiffs’ petition that a community of acquets and gains existed between. Mr. Wunsch and his wife and that the contemplated building was to be erected with community funds. It is also alleged that Mrs. Wunsch, while not separated in property from her husband, owns property in her own name and right. However, the testimony of both Mr. and Mrs. Wunsch is that Mrs. Wunsch owns no property whatever and has no funds of her own. It seems that she did own a residence about eight years ago but sold it. The defendant; Mr. Wunsch, conducts a plumbing business in the city of Alexandria and his wife renders him some assistance in connection with that business by collecting bills for him; beyond that she has no interest whatever in the business more than any wife has in the business of her husband during the community.

There is no testimony whatever in the record which warrants the court in holding that she is liable on the debt. It is purely a community debt for which the husband alone is liable.

For the reasons assigned, it is therefore ordered, adjudged and decreed that the judgment appealed from be affirmed as against the defendant, Ashton Wunsch, and further ordered, adjudged and decreed that it be reversed and set aside as to Mrs. Ashton Wunsch, defendant Ashton Wunsch to pay all costs.


author: WEBB, J. REYNOLDS, J.

text:
    No. 2464
    Second Circuit
    WARD v. STANDARD LUMBER COMPANY
    (December 1, 1925, Opinion and Decree)
    (May 7, 1926, Opinion and Decree on Rehearing.)
    (June 30, 1926. Opinion on Rehearing.)

      (Syllabus hy the Editor.)

    1. Louisiana Digest — Master and Servant Par. 158.
    An employee who is injured by being struck by an automobile while crossing a ro'ad adjacent to the premises where he is working while on his way to lunch was injured while in the course of his employment, the risk of crossing being a greater hazard by reason of such employment, he can recover under the Employers’ Liability Act No. 20 of 1914.
    2. Louisiana Digest — Master and Servant —Par. 159.
    Where an injured employee is given judgment for compensation under Section 8, Subsection 1 (c), of the Employers’ Liability Act No. 20 of 1914, as amended by Act 216 of 1924, he is entitled to recover sixty-five per cent óf the difference • between what he is earning and what he was earning at the time of the accident for a period not exceeding three hundred weeks.
    3.Louisiana Digest — Master and Servant —Par. 160 (e), 160 (I).
    An error in a decree granting compensation which failed to limit the period of compensation to the period of disability is an error that does not affect the merits of the case and can be corrected without reopening the case.

      Appeal from the Eighth Judicial District Court of Louisiana, Parish of Caldwell. Hon. F. E. Jones, Judge.
    Action by.' Charles P. Ward against Standard Lumber Company for compensation.
    There was judgment for plaintiff and defendant appealed'.
    Judgment amended and affirmed.
    Long & Crow, of Shreveport, attorneys for plaintiff, appellee.-
    C. P. Thornhill, of Columbia, and Theus, Grisham & Davis, of Monroe, attorneys for defendant, appellant.
   WEBB, J.

In this action the plaintiff seeks to recover compensation under the Employers’ Liability Act for total dis- ' ability to do any work of a reasonable character, alleged to have resulted from injuries received while in the employ of the defendant.

On trial the District Court rendered ■ judgment denying the right of recovery for disability to work, but held that plaintiff had sustained serious permanent disfigurement, awarding compensation under Clause (e) of Subsection 1 of Section 8 of the statute.

The defendant appealed, and plaintiff answered the appeal praying that the judgment be amended and compensation awarded as originally prayed for.

OPINION

The .plaintiff contends he suffered injuries in two accidents, one on January 27, 1925, and the other on March 4, 1925, which had disabled him.

The evidence, we think, rather conclusively establishes that plaintiff was not disabled by the injuries received in the accident of January 27, 1925, from doing work of the character in which he was engaged at the time of the accident, as it appears that after being laid off for a short time he returned and took up the same employment, receiving the' same wages, and accepted compensation for the time lost without protest; that he made no complaint, and performed the duties of his work, putting in full time without complaint.

As to his injuries resulting from the accident of date March 4, 1925, the- physicians who examined him some five months after the accident stated that they could not find any objective symptoms which would indicate he was disabled from working at his former employment (log-setter in a sawmill), and the evidence shows that within about twenty days after the accident he returned to the defendant’s service and worked for several days and was engaged in handling the ‘‘log-carriage” at the time of his discharge, which discharge was not by reason of his incompetency but rather from his taking offense on being reprimanded for not cutting the lumber as directed.

On the other hand, the evidence shows that the injuries which plaintiff received in the accident of date March 4, 1925, were serious, being a Wound on the head and a fracture of the spine, and he states that he has suffered since with headache, backache and dizziness, and has been unable to work continuously from day to day.

The physicians who examined him stated that the wound on the head was a scalp wound and had healed, leaving, however, a scar which was permanent, and that the injury to his spine was in process of healing but had not entirely healed at the time of the examination.

One of the physicians who attended plaintiff after the accident on the 4th of March, 1925, until the 16th of April, when plaintiff was discharged from further attention, says that plaintiff had complained of dzziness during the time he was treated, but that he had ceased to make any complaint before the time he discontinued his services.

The statement of plaintif as to his inability to work continuously is corroborated by the testimony of other parties, who testified that plaintiff, who has been engaged in working for a box factory at Natchez, Mississippi, would remain off duty and in bed for several days in each week.

. Tihe evidence does not indicate that plaintiff is a malingerer; on the contrary, it indicates a willingness to worl?, and although the opinion of the physicians was that the objective symptoms did not indicate any disability, we are of the opinion that the seriousness of the wounds received by plaintiff, and his testimony as to his disability, which is in a manner corroborated by the testimony of persons who had opportunity to observe plaintiff since the accident, establishes that plaintiff is partially disabled from doing work of a reasonable character.

As to the liablity of the defendant, it is contended that the accident did not arise in the course and out of the employment for the reason that it occurred on the public highway and from, a hazard or risk to which the plaintiff, as well as all other persons who ■ used the highway, were subjected.

There is no exact rule by which it may be determined whether or not any given accident in which an .employee is injured arose, in the course and out of the employment, but the relationship of the accident to the employment must be determined with reference to the facts in each case.

The evidence in this case shows the plant or premises of defendant where plaintiff was employed was located adjacent and contiguous to the highway over which the employees had access to the premises, and that plaintiff, who was on his way to lunch at the noon hour, while crossing the highway at a point contiguous to the premises, was struck by an automobile being driven by its owner, who was an employee of defendant and fellow employee of plaintiff, and who was at the time leaving the premises on his way to lunch.

We are of the opinion that the place of the accident, being in close proximity to the place of employment and being the way over which plaintiff had access to the premises, and the time to have been when he was leaving the premises for lunch, the accident arose in the course of the employment. (Jones vs. Louisiana Central Lumber Co., 2 La. App. 260; Cudahy Packing Co. vs. Parramore, 263 U. S. 418; 68 Law Ed. 366). And that, the risk of crossing the highway, being increased by reason of its use at the time of the accident by the fellow employee of plaintiff, the plaintiff was subjected to a greater hazard by reason of the employment than would have been the case for one not thus engaged, and that the accident arose out of the employment. (Myers vs. La. Ry. & N. Co., 140 La. 937, 74 South. 256; Dyer vs. Rapides Lumber Co., 154 La. 1091, 98 South. 677; Ferguson vs. Cady-McFarlane Gravel Co., 156 La. 871, 101 South. 248.)

The plaintiff was receiving at the time of the accident twenty-four dollars per week, and the evidence shows that he is earning eight dollars per week in a similar employment. He is entitled to recover sixty-five per cent of the difference between twenty-four dollars and eight dollars for a period of three hundred weeks under Clause (c) of Subsection 1 of Section 8 of the statute, as amended by Act No. 216 of 1924.

It is therefore ordered, adjudged and decreed that the judgment appealed from be amended and that plaintiff have and recover judgment against defendant in the sum of ten and 40-100 dollars per week for a period not exceeding three hundred weeks, beginning on March 5, 1925, with five per cent per annum interest on all payments from date of maturity until paid and all costs of suit, and as thus amended the judgment appealed from be affirmed, the cost of appeal to be paid by defendant.

ON APPLICATION FOR REHEARING

REYNOLDS, J.

Defendant, in an application for rehearing, among other things, complains that our decree does not fix a time less than one year from the date of our judgment within which the defendant may cause the plaintiff to be physically examined, and in the .event of his complete recovery or decided .improvement ask for satisfaction or modification of the judgment; and plaintiff cites, in support of this contention, Rogers vs. Thermatomic Carbon Co., 157 La. 193, 102 South. 304.

This authority, we think, goes no further than to hold that the Employers’ Liability Act authorizes the trial court to render judgment for compensation for less than one year, which question is not in dispute in this case.

We do not understand the court to hold that any court has authority to order a plaintiff in whose favor judgment has been rendered to submit to a physical examination within less than a year from the date of the judgment to ascertain whether he has entirely recovered or has improved from his injuries.

The Supreme Court, in Daniels vs. Shreveport Producing & Refining Corporation, 151 La. 800, 92 South. 341, said:

“The year would have expired within a month from this date if defendant had not appealed. To reopen and remand the case now would be the same as to annul the judgment and grant a new trial. Such a proceeding, perhaps in any case coming within the provisions of the statute, would defeat the very object of Section 20; for it would deprive the judgments in such cases of all stability or value.”

Our decree herein failed to limit the period of compensation to the period of disability. This was an error that in no way affects the merits of the case and can be corrected without reopening the case.

It is therefore ordered, adjudged and decreed that our decree herein he so modified as to read:

It is therefore ordered, adjudged and decreed that the judgment appealed from he amended and that plaintiff have and recover judgment against defendant in the sum of ten and 40-100 dollars per week during the period of disability for a period of not exceeding three hundred weeks, beginning on March 5, 1925, with five per cent per annum interest on all payments from the date of the maturity thereof until paid, and all costs of suit, and, as thus amended, the judgment appealed from be affirmed.