author: ODOM, J.

text:
    No. 3590
    Second Circuit
    SHOLARS v. DAVIS
    (March 24, 1930. Opinion and Decree.)
    (June 2, 1930. Rehearing Refused.)
    Harry Puller, of Winnfield, attorney for plaintiff, appellee.
    Michel Provosty, of New Orleans, and Wm. R. Mecom, of Columbia, attorneys for defendant, appellant.
   ODOM, J.

Defendant was going from place to place and from house to house in the parish of Winn selling goods, using a motor vehicle to transport them. Not having paid a license, the tax collector brought proceedings against him by rule to show cause why he should not pay license as a peddler, under section 18, Act No. 205 of 1924, as amended by Acts No. 299 of 1926 and No. 241 of 1928.

The defense is a general denial, but is elaborated and specifically set out in paragraph 15-A of the answer, which reads as follows :

“Further answering plaintiff’s petition, respondent avers and says: That under the mode and method of transacting his business and carrying on his occupation and vocation, he is not required to pay an annual license tax; that he is not a peddler and is therefore not required to pay a peddler’s license; that the goods and wares handled and delivered by him to his respective customers or billed or booked by respondent on a certain day and date to be delivered one week later and are actually delivered to his respective customers one week from the date of taking the order therefor; that all goods and wares sold and delivered by respondent are sold under and by virtue of an order previously solicited and not delivered by respondent until he returns to his base of supplies and procures goods, wares and merchandise in accordance with the orders taken and solicited by him; that under this method of doing business he does not come within the scope of a peddler as denounced by the statutes of the State of Louisiana, especially Act 205 of 1924, as amended by Acts 299 of 1926 and 241 of 1928.”

Defendant further contends before this court that the acts under which the license is claimed are unconstitutional. The district judge, in a written opinion, after reviewing the facts, held that defendant was a peddler and subject to the license tax demanded. Defendant appealed.

OPINION

On the facts presented, we concur with the district judge.

Defendant was engaged in selling various articles of merchandise in the parish of Winn, which merchandise he carried in a motor vehicle. He went from place to place and from house to house carrying his goods with him, selling and delivering them to whomsoever would buy and in such quantities as the purchaser wanted. But the defense is that he never sold any articles without an order previously taken. He went into detail as to his system of doing business, which he said was as follows: He made trips through the country offering goods for sale, and took orders from those who wished to buy, the orders specifying the kind, quantity, and price of the goods which were to be delivered later; that after taking the orders, he sent them to the Standard Coffee Company, of New Orleans, where they were filled and the goods shipped to him, and that upon receipt of the goods, as ordered, he loaded them on his truck, delivered and collected for them.

If he did that and only that, he was not a peddler. One who takes orders for goods to be delivered on a future date is not a peddler. A peddler is a retail dealer who travels about from place to place and from house to house, either on foot, horseback, or vehicle, carrying his stock with him, exposing his goods for sale, and then and there selling and delivering them. The testimony abundantly shows that defendant was conducting that kind of business.

His chief business seems to have been that of selling coffee for the Standard Coffee Company of New Orleans, but he carried and sold many other articles of merchandise not shown to have been received from that company. He took orders for coffee and other articles, and testified that, at the time his goods were seized, he had none on hand except such as had been previously ordered, but his testimony to that effect was disproved. At the time defendant’s goods were seized, the sheriff took his order book as well, which book did not show orders for all of the goods. But at the trial, he said that was not the only order book he had. On being asked to produce his other book, he said that he would not do so, as it was his private property, or “private business.” But when the district attorney suggested to the court that he would apply for a subpoena duces tecum, defendant produced later another book showing orders, many of them bearing evidence of changes and erasures. A check of all the orders he produced, including those in the book taken by the sheriff and those in the book later produced by defendant, shows the following: 67 orders for coffee (although he had 84 packages); 1 for extract; 2 for cocoa; 1 for cold cream; 1 for tablespoons; 3 for soap; 1 for ste.el wool; 1 for forks; 1 for Flash cleaner; 1 for starch; 1 for furniture polish; 1 for a blanket; and 1 for cups and saucers.

But, in addition to the articles above listed for which he produced orders, he had on hand in the truck seventeen other articles of merchandise for which he had no orders, consisting of soap powder, ammonia powder, linen tablecloths, bread pans, coffee pot, face powder, pie filling, tea, peroxide cream, bath salts, dental cream, shaving cream, baking powder, talcum powder, heat powder, hair tonic, shampoo oil, and black pepper. He was carrying all these articles along with him. His testimony, therefore, that he carried no goods except to fill orders previously taken counts for naught. His carrying these goods around with him without orders for them leads forcibly to the conclusion that he was carrying them for the purpose of selling and delivering them, if he could. Otherwise, he would have left them at the base of supplies and not incumbered his truck with them until he had orders for them. Such, however, is only a circumstance which would not warrant a verdict that he was in fact peddling. But coupled with this circumstance is the fact that he did sell and deliver goods from his truck without orders.

Mr. J. A. McPherson testified that defendant stopped at his house on one occasion to deliver a package of coffee which his wife had previously ordered, and that he personally purchased at that time from defendant one package of Flash cleaner and a bottle of extract for which no order had been taken, and that he went with defendant to the truck and got the goods. Mr. McPherson further testified that on one occasion he was present when a man named Crip Hayes walked up to defendant’s truck and asked if he could get some coffee, and defendant told him he could, and that the coffee was then and there sold and delivered.

Mrs. Frank Varnell testified that she had a standing order for coffee, and that, when defendant came to deliver it, he would ask if she wanted anything else; that on one occasion she told him that she wanted some laundry soap, toilet soap, and baking powder, and that defendant went to his; truck, got the latter articles for which she had given no previous order, brought and delivered them to her.

M. D. Haynes testified that he purchased one package of coffee for which he paid $1, and had given no order for it, and, while it was “Standard” coffee taken from the same truck, he could not positively identify defendant as the man who sold it, although he was reasonably sure that he was.

Defendant admitted that he had on one occasion sold and delivered one package of coffee to Mr. Barnes for which he had no previous order, but said that the package was ordered by Mr. Pond, who refused to take it, and he let Mr. Barnes have it, but did not know whether it was the same package. Defendant finally admitted on cross-examination that he did have goods in his truck for which he had no orders, and in explanation said that they were goods for which orders had been given by parties who refused to take them when tendered, and that he had failed to take them out of the truck, but he failed to produce the orders and did not state who had given them.

Defendant’s intent and willingness to sell .goods for which he had no orders is evidenced, not only by the fact that he did so sell, but by the fact that, when he delivered goods for which -he had orders, he would ask the customer if there was anything else wanted at that • time, not later •on, and, if an affirmative answer was received, he would go at once, get and deliver the goods.

Counsel for defendant, who filed a most able and exhaustive brief in this court, urge the point that the making of one sale or a few isolated sales will not render one a peddler, and cite a long list of authorities in support of this contention, the leading case being that of Commonwealth vs. Ober, 12 Cush. (Mass.) 498, decided in 1853, which has been referred to in some of the more recent cases.

We have read that decision and many others in which" traveling vendors were held not to be peddlers, and find that the facts found by the court in each of them are entirely dissimilar from those in the case at bar. In the Ober case, supra, the court found:

“* * * That the defendant was the agent of a firm in Boston, manufacturers of Britannia ware, that they were accustomed to receive orders from country traders and storekeepers, which they supplied, that they send their wares' to their customers in a two-horse wagon, of which the defendant had charge, that he delivered them the goods ordered, and that he sometimes delivered to traders and store-keepers, goods of the same description, in addition to those they had ordered, that he had delivered goods in such mode in Marblehead, at the time specified, and never had any license as a hawker and peddler; but that he had never delivered any wares, except to traders, and the regular customers of his employers, that he had never retailed any goods or sold at any dwelling-house or exposed any for sale, except as above stated, but had sold, when specially requested by the customers of his principals.”

Based upon these facts, the court held:

“It seems to us that the defendant was a carrier, delivering goods to persons who had previously ordered them, but who, when the goods were brought, desired to enlarge their order, or take more than had been previously ordered, upon the same terms, in all respects, as to prices and credits. It was, in effect, a purchase of the same buyer from the safme seller, of the same commodity, to a larger amount than previously ordered. It wants the essential characteristics of carrying about for sale, offering them to purchasers, fixing the prices and terms of sale, or receiving payment, and therefore these acts were not within the prohibition of the statute.”

The case of Commonwealth vs. Farnum, 114 Mass. 267, involved the question whether a sewing machine agent was a peddler, and the court said:

“The fact that he occasionally delivered the sample machine to a purchaser, desirous of obtaining one immediately, cannot so change the character of his business as to bring him within the statute. Nor did the fact that he sold one attachment, and "one tuck-marker, capable of being attached, render him liable; it distinctly appearing that it was not his practice to make such sales. The question is to be determined on the general character and scope of his business; if this does not bring him within the statute, he is not liable for single sales of particular articles, such sales being exceptional, and not in the course of his ordinary employment.”

Following the case of City of Pomeroy vs. Rutherford, reported in L. R. A. 1916B, p. 1291 (80 Wash. 43, 141 P. 178) there is an annotation (beginning on page 1293) under the heading “Who is a Peddler,” in which numerous authorities are cited in support of the proposition that a single sale, without more, will not make one a peddler. See, also, State vs. Moorehead, 42 S. C. 211, 20 S. E. 544, 26 L. R. A. 585, 46 Am. St. Rep. 719.

In 29 C. J. p. 222, it is stated that:

“A single act of selling does not make the seller a peddler.” And in support of the text numerous cases are cited.

But the defendant made more than one sale from his stock for which he had no orders. Not only that, the circumstance of his carrying along so many articles of various kinds of merchandise for which he had no orders, coupled with the fact that when he made a delivery of goods for which he had an order, he would ask if the customer wanted anything else, not necessarily of the same kind of goods, and that, when other kinds of goods were wanted, he then and there sold and delivered them, all shows an intent and purpose to sell the goods which he had .in stock regardless of whether he had received any previous orders therefor.

We quote from 29 C. J. p. 222, as follows:

“But even where a small number of sales are shown, this will be sufficient to constitute peddling. And it has been held that a single act of selling constitutes peddling if it is accompanied with the intent to continue in such acts.”

Commonwealth vs. Reid, 175 Mass. 325, 56 N. E. 617; State vs. Webber, 214 Mo. 272, 113 S. W. 1054, 15 Ann. Cas. 983; Keller vs. State, 123 Ala. 94, 26 So. 323; Johnston vs. State, 16 Ala. App. 425, 78 So. 419.

Counsel cite numerous authorities, including the case of Crenshaw vs. State of Arkansas, 227 U. S. 389, 33 S. Ct. 294, 57 L. Ed. 565; Id., 95 Ark. 464, 130 S. W. 569, holding that persons taking orders for goods for future delivery are not peddlers. Defendant took orders for future delivery, and, if that had been all that he did, he would not be liable for a peddler’s license. But he did more than that, as the record shows. Under the facts presented, defendant was a peddler.

Counsel for defendant in oral argument and in briefs contend that the law under which this license is demanded is unconstitutional. But that question cannot be considered on appeal, for the reason that it was not raised by proper pleading either in the lower court or in this court. They filed in the lower court and again in this court an exception of no cause and no right of action, but the exception does not recite or suggest that it was based upon the theory that the law under which the license is claimed is unconstitutional. There is nothing to indicate that the question of the unconstitutionality of the act was raised or suggested in the lower court.

The district judge submitted a written opinion in which he discussed in detail the facts, but said nothing about the other point. The question was raised for the first time in this court, and then only in oral argument and in brief.

In the case of State ex rel. Curtis vs. Ross et al., 144 La. 898, at page 915, 81 So. 386, 392, the court said:

“This court will not consider a constitutional question unless it has been raised by the pleadings.”

This rule has been repeatedly and consistently adhered to. Barber vs. L. R. & N. Co., 141 La. 1059, 76 So. 199, L. R. A. 1917F, 802; People’s Fire Ins. Co. vs. Michel, 125 La. 55, 51 So. 66; Rausch vs. Barrere, 109 La. 563, 33 So. 602; Hughes vs. Bd. of Com’rs of Caddo Levee Dist., 108 La. 146, 32 So. 218; Bd. of Medical Ex. vs. Fowler, 50 La. Ann. 1358, 24 So. 809; State vs. Hennessey, 44 La. Ann. 805, 11 So. 39; State vs. St. Romes, 26 La. Ann. 753.

In Clarke Company, Ltd., vs. Petivan et al., 161 La. 1095, 109 So. 913, 916, counsel for defendant attacked an act of the Legislature as being unconstitutional, and the court said:

“No 'such defense was made in either the district court or the Court of Appeal, and is made here for the first time and only in counsel’s brief. We must decline to pass upon the question so presented, since the case is only before us for review on application of the plaintiffs.”

An exception of no cause and no right of action which does not recite or suggest that the unconstitutionality of an act is the basis of the plea is not sufficient to raise such issue. The unconstitutionality of a law must be specially pleaded. Counsel cite in brief the case of State vs. Winehill & Rosenthal, 147 La. 781, 86 So. 181, but that case does not set aside the rule that the unconstitutionality of a law is a special plea which must be raised by the pleadings. There the defendant filed in the district court an exception of no cause and no right of action, “averring that for the reasons specified in their plea, Act No. 206 of 1908 was unconstitutional.” The district judge refused to pass on the plea, because it was filed after the case was heard, and the Supreme Court held that such exceptions, based upon the unconstitutionality of a law, might be filed at any time, even in the Supreme Court, and, when so filed, should be considered. But there, counsel averred that, “for the reasons specified in their plea,” the act was unconstitutional.

For the reasons assigned, the judgment appealed from is affirmed, with all costs.


source: Caselaw Access Project

author: HIGGINS, J.

license: Public Domain

text:
    No. 13,225
    Orleans
    SALVANT v. ESTATE OF FRANK NEWFIELD, INC.
    (May 19, 1930. Opinion and Decree.)

      Ed. J. DeVerges and Lubin F. Laurent, of New Orleans, attorneys for plaintiff, appellee.
    Bond, Curtis, Hall & Foster, of New Orleans, attorneys for defendant, appellant.
   HIGGINS, J.

This is a suit for the sum of $225 damages resulting from the defendant’s float or truck colliding with the plaintiff’s parked automobile on Chartres street, this city, on January 26, 1929, at about 2 o’clock p. m. Plaintiff alleges that he parked his Oldsmobile coach automobile on the river side of Chartres street between Dumaine and St. Ann streets, and that, while the automobile was so parked, the defendant’s float or truck which was drawn by a team of horses ran into the automobile and caused the alleged damage; that the accident was the result of the negligence of the defendant in permitting its team to run on the streets without a driver or attendant.

The defendant denied liability, and averred that the horses were gentle and well broken, and that the left rear wheel of the truck or float was chained as required by the ordinance of the city of New Orleans, when the attendant or driver stopped at 224 Chartres street, for the purpose of delivering certain merchandise, that, while the said driver was in the place of business of Kelly Abadie Company at the said address, the team of horses ran away, and that therefore the accident was the result of causes beyond the control of defendant and its employee.

On the trial of the case on the merits, there was judgment in favor of the plaintiff as prayed for, and defendant has appealed.

The record shows that the plaintiff had parked his automobile as alleged in the petition, and that it was badly damaged as a result of the defendant’s float or truck running into it. It is clear that the amount of damage claimed resulted from the accident, and the estimate for the repair of it is reasonable. The evidence shows that the horses were gentle and well broken.

The question before the court is whether or not the wheels of the float or truck were properly chained or fastened when the driver left the team on the street in order to make the delivery of merchandise.

The plaintiff, having established that the alleged damage to his automobile was caused by the defendant’s team of horses running away and colliding with his automobile, made out a prima facie case. The defendant then had the burden of proving itself free from negligence and fault. Damonte vs. Patton, 118 La. 530, 43 So. 153, 8 L. R. A. (N. S.) 209, 118 Am. St. Rep. 384, 10 Ann. Cas. 862; Trenchard vs. N. O. Ry. & Light Co., 123 La. 36, 48 So. 575.

The defendant’s driver testified that he did chain the left rear wheel before leaving the team, .and that he had been gone about two minutes when he was told that the horses had run away. He immediately ran behind the team, but the collision occurred before he reached the horses; that he picked up in the' street a piece of chain about fourteen inches in length, and also his coat and the cushion which were on the vehicle at the time he left it. His testimony is corroborated by Frank Newfield, president of tbe defendant company, who testified that, when he arrived at the scene of the accident, he found his brother, Paul Newfield, there, and that he noticed a part of the chain still hanging from the rear part of the truck. Jean Jacques also corroborated the driver by testifying that the driver had put a small piece of chain about fourteen inches in length and a coat and whip at the place where the witness worked on Chartres street, but that the. piece of chain was mislaid so that the defendant was unable to produce it at the trial of the case. Paul Newfield, who was also connected with the defendant company, was not produced as a witness, and the record does not show that he was unavailable as a witness.

To rebut this evidence, Corporal William Dowry of the New Orleans police department, Robert Frost, a disinterested eyewitness, and plaintiff testified that immediately after the accident the spokes and rim of the wheel of the truck or float were examined, and that there was not any evidence of marks where it was chained; that they did not see any piece of chain hanging on the truck or float; that the policeman asked the driver if he had chained the wheel, and the driver hesitatingly said, “Yes sir.” These witnesses also testified that Paul Newfield, after coming to the scene of the accident, admitted liability, and agreed to pay plaintiff for his damage.

The traffic ordinance of the city of New Orleans, which reads as follows, was introduced as evidence:

General Traffic Ordinance 7490, C. C. S., art. VIII, sec. 6:

“No horse or mule shall be left unattended in any street or highway unless securely fastened, or unless the wheels of the vehicle to which he is harnessed are securely tied, fastened or chained, and the vehicle is« sufficient in weight to prevent its being dragged at a dangerous speed with its wheels s(f secured.”

The only direct testimony that the wheel was chained is the evidence of the colored driver of the team. The record shows that the float or truck of the defendant, after going some six blocks, collided with great force with the plaintiff’s automobile. It appears that, if the wheel had been properly chained, it would have been impossible for the team to have dragged the heavy float with any degree of speed for that distance. We also believe that, if the wheel had been chained, there would have been some evidence of marks on the spokes or rim of the wheel indicating that sufficient force or pressure had been placed on the chain to cause it to break.

We note that Paul Newfield did not appear to testify, although he was present at the scene of the accident and admitted liability. His ' brother Frank Newfield testified that, when he saw his brother, Paul, in charge, he left the scene of the accident without paying any further attention to what happened.

We find that the preponderance of the evidence is with the plaintiff that the wheel of the vehicle was not chained as required by the ordinance of the city of New Orleans. We therefore find the defendant guilty of negligence.

It is negligence for the driver of a team of horses to leave them standing on the city streets, unattended or unfastened or with the wheels of the vehicle not chained in such a way as 'to prevent the vehicle from being dragged at a dangerous rate of speed, and under such circumstances the owner will be answerable for damages caused by the animals running away. Rev. Civ. Code, art. 2321. See, also, Karstendiek vs. Jackson Brewing Co., 123 La. 346, 48 So. 958; Damonte vs. Patton, 118 La. 530, 43 So. 153, 8 L. R. A. (N. S.) 209, 118 Am. St. Rep. 384, 10 Ann. Cas. 862; Zambelli vs. Johnson & Son Company, Inc., 115 La. 483, 39 So. 501; Bull vs. Hotel Grunewald Co., 135 La. 802, 66 So. 227.

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

JANVIER, J., takes no part.


author: WESTERFIELD, J.

text:
    No. 13,287
    Orleans
    CLEVELAND v. COLUMBIA NATL. LIFE INSURANCE CO.
    (April 21, 1930. Opinion and Decree.)
    A. H. Reed, of New Orleans, attorney for plaintiff, appellant.
    Solomon S. Goldman, of New Orleans, attorney for defendant, appellee.
   WESTERFIELD, J.

This is a suit by a former employee for six weeks’ salary at the rate of $35 per week, or the sum of $210. Plaintiff asserts that the defendant employed him for a period of six months, and discharged him without cause six weeks before the expiration of the term of the contract. Defendant admits the employment, but denies any specific term. The trial court, after hearing the evidence, concluded that plaintiff had failed to establish the contract of employment sued on and, consequently, denied recovery.

We are unable to say, from our examination of the record, that the court was in error in thus disposing of the issue of fact presented.

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


text:
    No. 2805
    Second Circuit
    TERRY v. ATLANTA WHOLESALE GROCERY CO.
    (April 10, 1930. Opinion and Decree.)
    (June 2, 1930. Rehearing Refused.)

      John B. Files and W. A. Mabry, of Shreveport, attorneys for plaintiff, appellee.
    Thatcher, Browne, Porteous & Myers and Edward S. Klein, of Shreveport, attorneys for defendant, appellant.
   ODOM, J.

Plaintiff is constable of ward 2 of Caddo parish. In his official capacity, he sold at public auction a stock of merchandise and a pair of scales to the defendant company under a fi. fa. issued in the judgment entitled, “Atlanta Wholesale Grocery Company v. W. L. and I. A. Kornrumph,” the price of adjudication being $300. The price was never paid by the purchaser, and plaintiff prosecutes the present suit to recover of the purchaser this amount. It is admitted that the Atlanta Wholesale Grocery Company, a judgment creditor of the Kornrumphs, was the last and highest bidder for the property, that the same was adjudicated to it, and that it did not pay to the constable the price of the adjudication.

The only defense urged by defendant before this court is that of estoppel, it being contended that the constable, having deliv-ered the property to the purchaser without having then and there demanded the payment of the purchase price, is now estopped in this action to recover the price. The district judge overruled the plea of estoppel and rendered judgment against the defendant and in favor of the constable, as prayed for.

We think that judgment is correct. The defendant is in no position to plead estoppel as against the constable. It bid in the property at a stipulated price, which it never paid. The constable could, of course, have refused to deliver the goods until the price was paid. But the fact that he failed to do so, and let the purchaser get possession of the goods and dispose of them without demanding payment of'the price on the spot, does not debar him from pursuing the purchaser for the price of the adjudication. The plea of estoppel, in fact, is not based upon that theory. The facts upon which the plea of estoppel is based are as follows:

The Kornrumphs were indebted to various creditors and were probably insolvent. The record discloses that on March 9, 1925, there were six suits filed in the magistrate’s court, all preceded by attachment, as follows: Two by the Temple-McCoy Grain Company; one for $99.80, and one for $100. These two suits were carried to judgment on March 23d, the attachments maintained, and the privileges recognized. One by the Atlanta Wholesale Grocery Company, the defendant herein, for $100; one hy Warwick-Howe Company for $100; one hy H. H. Williams for $100; and one by T. B. Warwick for $38.04. These were all preceded by attachments and carried to judgment on March 24th. On April 7th, writs of fi. fa. were issued under each of the judgments, except those of the Temple-McCoy Grain Company, and the property of the judgment debtors was seized under fi. fa. in the name of the Atlanta Wholesale Grocery Company and advertised for sale; the sale to take place on April 18th. Whether the property was actually seized under the other writs or not is not clear from the record. But it is made clear that the property was advertised to be sold under the writ in the case of Atlanta Wholesale Grocery Company, and under that writ and advertisement it was sold and the said company became the last and highest bidder at the price of $300. The purpose of advertising the property under one writ was to save costs, it being apparently understood that each of the judgment creditors, except the Temple-Me-Coy Grain Company, should share in the proceeds of the sale. There were several bidders, but, as stated, the property was bid in by the Atlanta Wholesale Grocery Company. That company, after taking possession of the property, turned the same over to T. B. Warwick, one of the judgment creditors, and was paid the amount of its judgment. None of the other creditors participated.

It is the contention of the defendant company that the sale was made for the benefit of all the judgment creditors, but there is no testimony to show that any of them reaped any benefits of the sale, except the defendant and Warwick. Defendant contends that the constable acquiesced in this method of disposing of the goods. The constable denies that he did, and says that the purchaser agreed to pay to him the price, but that after he got possession of the goods, he refused to do so. The magistrate testified also that it was his understanding that the price should be paid to the constable and that the only purpose for advertising the goods in the name of the Atlanta Wholesale Grocery Company was to save costs. There is some testimony to the effect that the constable announced at the sale that the sale was being made for the benefit of all the creditors, but that is emphatically denied by the constable himself, and, we think, is not proved. However this may be, the fact is that the defendant company purchased the goods, got possession, and disposed of them, and failed to pay the price.

We do not think that the constable’s conduct, as disclosed by the record, constitutes estoppel to demand the price of the sale. Defendant received the property and got the benefit of it. If he has suffered any injury, it is due to his own fault in permitting T. B. Warwick to take over the goods by paying the amount of its judgment.

Counsel for defendant contend that it should not be ordered to pay the constable more than the excess of the price above the amount of its judgment. That might be true if it were not for the fact that the Temple-McCoy Grain Company had a privilege on the property for an amount in excess of the difference between the price of adjudication and the amount of defendant’s judgment. The price of adjudication should have been paid to the constable and distributed amongst the creditors, as the law provides.

The judgment appealed from is affirmed.


text:
    No. 3675
    Second Circuit
    HARRIS ET AL. v. LOUISIANA OIL REFINING CORPORATION
    (March 24, 1930. Opinion and Decree.)
    (April 10, 1930. Rehearing Refused.)
    (June 2, 1930. Writs of Certiorari and Review Denied by Supreme Court.)
    Arthur A. LeRosen, of Shreveport, attorney for plaintiffs, appellees.
    Blanchard, Goldstein & Walker, of Shreveport, attorneys for defendant, appellant.
   ODOM, J.

This is a suit under the Workmen’s Compensation laws, Act 20 of 1914, as amended by Act 85 of 1926.

Willie Harris was employed by the defendant corporation as a common laborer and, while at work in the course of his employment, was killed on June 23, 1927.

. There survived him a wife, Mary Harris, to whom he was married in December, 1923, and from whom he was never separated, either by judgment of divorce or separation from bed and board. Mary Harris is the mother of one child, Isaac, six months old at the time Willie Harris was killed. His wife brought this suit for compensation for the benefit of herself and her minor child, alleging that her child was the son of deceased, born of the marriage, and that they were both dependent upon the husband and father for support.

The defense is, first, that the plaintiff Mary Harris, the wife, was not living with her husband at the time of his death; second, that she was not dependent upon him for support; and, third, that her infant son, Isaac, was .not the child of deceased.

There was judgment for plaintiff, and defendant appealed.

OPINION

1 and 2. We take up and dispose of the defenses in the order named:

Paragraph (A), subsec, 2, sec. 8, Act 85 of 1926, reads as follows:

“The following persons shall be conclusively presumed to be wholly and actually dependent upon the deceased employee.”

Paragraph (B):

“A wife upon a husband with whom she was living at the time of her (his) accident or death.”

Paragraph (D):

“A child or children under the age of eighteen years (or over said age, if physically or mentally incapacitated from earning) upon the parent with whom he is, or they are, living at the time of the injury of such parent.”

If Mary Harris, the wife, and her child, only six months old (if it be the child of deceased), were in fact living with deceased at the time of his injury and death, they are entitled to compensation under the plain letter of the law. They are conclusively presumed to have been wholly dependent upon him. If, however, they were not living with him, their recovery depends on whether they were in fact dependent upon him, for the act provides that in all cases where there is no conclusive presumption of dependency “the question of legal and actual dependency in whole or in part, shall be determined in accordance with the facts as they may be at the time of the accident and death.”

Deceased and Mary were married in August or September, 1923, and were never divorced. During the year 1924, they lived together on the Adger plantation at Gilliam where they made a crop. In the latter part of 1924, or spring of 1925, the testimony not being clear as to the exact date, Mary left Gilliam and went to Belcher and stayed for some time with her grandfather. Just how long she stayed there is not clear, but at some time in 1925 she went to live with her mother and stepfather on the Meyer place, just south of the city, of Shreveport and since subdivided and developed into a residental section called “Dixie Gardens.” There she remained as a member of her stepfather’s family until the death of her husband in June, 1927. Just why she left her husband and the plantation at Gilliam is a controverted point. She, her mother, her stepfather, and an aunt of the deceased all say that she did not like it there and wanted to return to her mother, and that the reason her husband did not leave at the time and go with her was that he was in debt to the plantation owner and remained to make a crop and pay the debt. She says that she and her husban'd did not intend to sever their marital relations and that her husband expected to follow her back to the vicinity of Shreveport as soon as he could get released. An aunt of the deceased, with whom they were living at Gilliam, and others testified ' that as far as they knew there was no misunderstanding or breach between the two and that she gave as her reason for leaving that she did not like it there. We quote plaintiff’s testimony on this point as follows:

“He (her husband) asked my mother could I go down there and stay until he paid Mr. Adger some of the money he owed him. He owed him a balance due and he got on a disagreement so he asked my mother could I stay there with her until he paid half the debt and then he was coming to town.”

It is certain, however, that immediately after she left, her husband began to live in open concubinage with one Sallie Mae Noyd and that he kept her as his concubine until the day of his death. This led relatives and acquaintances in that vicinity to believe that there was a permanent separation between the husband and wife. The husband left Gilliam at the end of 1924, and in 1925 secured employment at defendant’s refining plant at Bossier City, just across the river from Shreveport, where he worked until his death. When he went to Bossier City, he carried Sallie Mae Noyd with him. They roomed together there for a while and later obtained quarters in Shreveport. The concubinage between them was open and notorious in the section where they lived. But, while that is true, the testimony shows beyond question that neither the husband nor the wife intended or did sever their marital relations. The husband worked at Bossier City and spent the greater portion of his time with his concubine. His wife lived with her mother and stepfather at Dixie Gardens, a short distance away, and during the time she was living there, both before the child was born and after, up to the date of his death, the husband regularly and constantly visited his wife and contributed to her support and the support of the minor child. During his visits, usually at night, the two sustained the relationship of husband and wife, occupying quarters together. These visits of the husband to his wife and their intimate relationship during the while are attested by the wife, her mother, and her stepfather. In addition to their testimony as to the visits, we find the testimony of Alfred Hogan, a colored man who worked with deceased at the refinery, who says that he frequently heard deceased ask to get off so that he could visit his wife. Eddie Davenport, another colored man, who lives in the neighborhood, saw deceased visiting his wife just before his death and knew nothing of the separation. Joe Youngblood also saw deceased in the neighborhood. These are all colored witnesses, but in addition there is the testimony of Mr. Eastman and his wife, white people, whose testimony is unequivocal, that deceased visited his wife and child regularly up to- the date of his death. Mr. and Mrs. Eastman lived or did live in Shreveport, where they conducted a restaurant. Plaintiff’s mother did laundry work for the restaurant and the family wash. The two, at times together and at others separately, made regular trips to the home of these colored people at Dixie Gardens to carry the soiled and to get the washed clothes. Mr. Eastman made his trips usually bn Sunday. He says that he found deceased with his wife and the family practically every time he went. Mrs. Eastman went there “sometimes once a week, sometimes twice a week, sometimes every Sunday.” She was asked: “Was he (the husband) down there with Mary, h'is wife, at those times?” She answered: “Well, he did not stay there all the time but he was there, back and forth, and I was there sometimes every other day, sometimes once a week and sometimes twice a week, and I couldn’t begin to tell you the times I have seen him there both before the baby was born and after.”

Asked if she had ever at any time seen ■ or heard anything indicating hard feelings or a separation between them, she replied: “No, none whatever.” Mr. and Mrs. Eastman both testified that it was always their understanding that deceased and Mary were husband and wife.

Deceased’s visits to his wife were not merely short calls and casual, but he lingered and spent the nights with her. Their conduct was such as to create the impression upon outsiders that, although physically separated the greater portion of the time, they yet were living together as husband and wife in the sense that term is ordinarily understood. They were unquestionably living together physically a portion of the time up to the date of the husband’s death. The testimony shows that he was contributing to his wife’s support and to the support of the child and, as stated, there is no evidence that either ever intended to sever their marital relations.

We think the husband and wife were “living together” as contemplated by the statute. A physical separation for a portion of the time is not “living apart,” where there is no evidence of intent on the part of either to sever the marital relations. These parties actually cohabited up to the time of the husband’s death, under conditions which should be and are regarded as constituting marital relations. It is not uncommon for men of this race to keep concubines, and that some of them do so for years without intending to abandon their wives and families is a matter of common knowledge. It was not intended, we think, that the terms “living together” as used in the statute should be construed to mean a physical dwelling together at all times under the same roof, but rather it was intended to cover cases where no break in the marital relations existed. If there is no legal separation, no estrangement, and certainly if there is actually cohabitation for a portion of the time, there is a “living together” as contemplated by the statute.

We quote the following from A Corpus Juris Treatise on Workmen’s Compensation Laws, by Mr. Donald J. Kiser, sec. 50:

. “In some jurisdictions, it has been held that husband and wife in order to be regarded as living together must be maintaining a home and living together in the same household or actually cohabiting under conditions which would be regarded as constituting a family relation; but there is authority in support of the broader view that a physical living together is not necessary so long as there is no legal separation or an actual separation in the nature of an estrangement.”

He cites Northwestern Iron Co. vs. State Industrial Commission, 154 Wis. 97, 142 N. W. 271, L. R. A. 1916A, 366 and note, Ann. Cas. 1915B, 877 and note.

Counsel for appellant cite the case of Milton vs. Long-Bell Lumber Company, decided by this court and affirmed by the Supreme Court in 165 La. 336, 115 So. 582, where it was held that a wife separated from her husband could not recover compensation. But the facts there were different. There, the parties “voluntarily chose to reside apart,” their “relations were casual,” the evidence “shows conclusively that he (the husband) had abandoned her and she had acquiesced in the abandonment.”

In the case of Books vs. Keen & Woolf Oil Company, 9 La. App. 288, 120 So. 99, we held that even though the husband had contracted an illegal marriage and was living with another woman as his wife at the time of his death, the lawful wife was not precluded from recovering compensation, and she was held to be living with her husband and actually dependent upon him for support.

Counsel lay stress upon the fact that the wife made a statement to Mr. Seacat, who represents the defendant corporation, when she appeared at his office after the death of her husband, that she was not living with him at the time he was killed, but living with her mother. That was literally true in the sense that she was living in her mother’s house and not under her husband’s roof.

It is contended that the minor, Isaac Harris, is not the child of deceased. That the child was conceived during the marriage is not disputed. “The law considers the husband of the mother as the father of all children conceived during the marriage.” Civil Code, art. 184.

This presumption ceases, however, “where the remoteness of the husband from the wife has been such that cohabitation has been physically impossible.” Civil Code, art. 189. The testimony shows that the child was born in December, 1926, and was therefore conceived during that year; and shows further that during the whole of that year the husband was living either in Bossier City or in Shreveport and the wife at Dixie Gardens, only a short distance away; and still further, that the husband and wife actually cohabited at intervals during the whole of the year 1926.

Eddie Paul, a negro man, testified that he cohabited with Mary Harris at her grandfather’s and that he was the father of the child. Mary denies that and says that her husband was its father. Eddie Paul may have visited Mary Harris, but it seems quite evident that he is not the father of the child, because he does not claim to have visited her after she left her grandfather’s, at Belcher. The testimony shows that she left there in 1925, and that the child was not born until December, 1926, more than 300 days after he claims to have visited her. The husband never, disavowed the child. On the contrary, he visited it and its mother up to the date of his death and contributed to its support. The paternity of the child is sufficiently established by the record. It is in law a legitimate child of the marriage. Civil Code, art. 184.

Our courts have gone a long way to sustain the legitimacy of a child of a wife not divorced. In McNeely vs. McNeely, Executor, 47 La. Ann. 1321, 17 So. 928, 929, the court said:

“It is in our view clear, under our Code, that the legitimacy of the child of the wife not divorced, born after the judgment of separation from bed and board, cannot be disputed, unless the suit is brought by the husband to disavow that legitimacy.” Succession of Flynn, 161 La. 707, 109 So. 395.

We have held that the mother was living with the deceased at the time of his death. As the child was with its mother, it follows that it also was living with him.

The judgment appealed from is correct and is therefore affirmed, with costs in both courts.


author: LeBLANC, J.

text:
    No. 539
    First Circuit
    CUPPLES COMPANY v. STANTON ET AL.
    (April 14, 1930. Opinion and Decree.)
    (See American Snuff Co. vs. Stanton et al.)
    S. I. Foster, of Leesville, attorney for plaintiff, appellant.
    P. L. Ferguson and L. D. Woosley, of Leesville, attorneys for defendants, appellees.
   LeBLANC, J.

In this case, the same issue is presented as in the case of American Snuff Co. vs. the same defendants, in which an opinion was this day rendered by the Court. 127 So. 633.

For the same reasons assigned in that case, it is ordered that the judgment appealed from rejecting plaintiff’s demand and dismissing its suit be, and it is hereby, reversed, and set aside; and,

It is now ordered that the defendants herein, W. L. Stanton and R. A. Dailey, be condemned in solido to pay to the plaintiff herein, Cupples Company, the sum of $149.-95 with legal interest from March 1, 1927, until paid, and the further sum of $19.75 as costs in a former suit of Cupples Company vs. Vernon Grocery Company, Inc., et al., and all costs of this proceeding.


author: WEBB, J.

text:
    No. 3696
    Second Circuit
    BIRDWELL v. GAYLE
    (April 10, 1930. Opinion and Decree.)
    (June 2, 1930. Rehearing Refused.)

      Dickson & Denny, of Shreveport, attorneys for plaintiff, appellee.
    George Thurber, of Shreveport, attorney for defendant, appellant.
   WEBB, J.

This action arises out of a collision between automobiles which were owned and being driven by the respective parties. The accident occurred about dark on a paved highway, which was twenty feet wide, with dirt shoulders on each side about four feet in width, at a point where the road was straight and where there was nothing to obstruct the vision of the drivers of the ears as they approached each other.

Plaintiff, who was driving north, alleged that he observed defendant’s car approaching around a slight curve at a rapid rate of speed, on the wrong side or east of the center of the road; that, apprehending danger, he drove his car to the extreme east side of the road, with the right wheels of the car about one foot off of the pavement; that he had almost brought his car to a stop when the collision occurred; and that the impact of the collision knocked his car backwards toward the south, wrecking the car and injuring plaintiff; and he prayed for damages resulting from the injuries received by him and damages to the car.

In answer defendant admitted the collision, and otherwise denied plaintiff’s allegations, and alleged that he had observed plaintiff approaching on the wrong side or west side of the road at a high rate of speed, and that he had driven his car over to the extreme west side of the road, but was unable to avoid the collision, ■ and he prayed that plaintiff’s demands be rejected, and for judgment in reconvention for damages resulting from injuries to his car.

On trial, judgment was rendered in favor of plaintiff, and defendant appeals.

Plaintiff’s version of the incidents preceding and .following the collision was substantially as alleged, and his statement was supported by the evidence of his wife who was in the car at the time of the accident, with the exception that she said the car was moving at a speed of about fifteen miles per hour at the time of the collision; while defendant stated that he was driving on the west side of the center of the road, and that plaintiff’s car was in the center or possibly to the west of the center of the road, and that he did not realize the danger of the collision until it was too late to take any action, and his statement was supported by the evidence of two laborers employed on his plantation who were in the car.

The evidence of plaintiff indicates that he had a more definite idea of the situation of his car just preceding and at the time of the collision than defendant, but both of the parties stated that they had observed the other’s car some time prior to the collision and that they had decreased the speed of their cars; and the evidence indicates that a very short period of time passed after either realized the danger until the impact of the collision; and, in presenting the cause here, counsel have discussed the situation as presented by the physical facts rather than the testimony of the parties who witnessed the accident.

There is, however, almost as great conflict between the witnesses as to the physical facts as between the testimony of the parties who witnessed the accident. The evidence as to the physical facts was as the testimony of the parties who witnessed the accident directed towards establishing whether the collision occurred on the east or west side of the center- of the paved road.

As stated, plaintiff said that his car was on the extreme east side of the pavement, with the right wheels on the dirt shoulder of the highway, and that the impact of the collision had thrown his ear backwards towards the south, and after the collision he identified the place by a hole in the dirt shoulder of the road which, he stated, was made by one of the wheels of the car when it was thrown backwards; and he and a number of witnesses who had arrived on the scene a short time after the accident stated that they found mud and oil on the pavement at that point, which was approximately twenty or thirty feet north of the place where plaintiff’s car came to rest after the accident and was about the distance plaintiff estimated the car had rolled after the collision; while defendant and the witnesses called by him stated that they found mud and oil and other indications that the collision had occurred at a point west of the center of the paved roadway and approximately forty or fifty feet south of the place where plaintiff’s car came to rest after the accident.

All of the witnesses agree that the initial point- of contact between the cars was the left front of plaintiff’s car and the left side of defendant’s car at a rpoint about the rear of the front wheel, which broke the axle and turned the wheel back under the car, breaking the gas line, and that after the collision the car moving forward had left marks on the pavement where the left front wheel passed, and gasoline flowed from the broken gas line; and that after the accident plaintiff’s car was lying on its side pointing to the southwest and across the center of the paved roadway, and that defendant’s car was on the east side of the highway fronting to the southwest with the rear wheels just off the pavement, and at an approximate distance of eighty feet south of plaintiff’s car.

While it may have been possible for plaintiff’s car to have been thrown backwards by the impact' of the collision, yet, if plaintiff’s car was in the position as stated by him, at the time of the collision, it could not have reached the position in which it was after the collision, unless it was thrown backwards and across the course along which defendant’s car proceeded after the collision, which we do not think was possible.

As stated, the evidence established that the left front wheel of defendant’s car was turned back under the car, breaking the gas line, and that the course taken by the car after the collision, as shown by the marks made on the pavement by the wheel and gasoline flowing from the broken gas line, curved to the left towards the east side of the highway, where it came to rest with the rear wheels off the pavement; and, considering the position of the car after the accident, it is not probable that the collision could have occurred north of the position, of plaintiff’s car- after the accident, or approximately one hundred feet north of the position of defendant’s car after the accident.

And we are of the opinion that the weight of the evidence shows that the collision did not occur north of the place where plaintiff’s' car was situated after the accident, but to' the south of that point, as stated by plaintiff and the witnesses called by him, and that plaintiffs car was not in the position at the time of the collision as stated by him.

Defendant and the witnesses called by him fixed the place of collision west of the center of the paved roadway by mud and oil found on the pavement, and the marks made by the left front wheel of defendant’s ear and gasoline flowing from the broken gas line, which, they stated, began west of the center of the paved roadway; and, while two of the witnesses called by plaintiff stated that the marks began east of the center of the highway, the preponderance of the evidence was to the contrary.

Plaintiff, seeking to recover damages resulting from the collision, on the ground that the collision was due to the fault of defendant, in driving on the wrong side, or east side of the highway, carried the burden of proof to establish the fact, and we are of the opinion he failed to do so, and that his demands should have been rejected.

And while we are of the opinion that the weight of the evidence shows that the collision occurred to the west of the center of the paved roadway, the evidence does not show that defendant could not have avoided the collision had he been maintaining a proper lookout; and, his testimony indicating that he was not keeping a strict lookout after he realized that plaintiff was driving on the wrong or west side of the center of the paved roadway, we do not think he was entitled to recover for the damage resulting from the collision.

. It is therefore ordered, adjudged, and decreed that the judgment appealed from be avoided and reversed, and that the demands of the parties be rejected, at plaintiff’s cost.


author: DREW, J.

text:
    No. 3676
    Second Circuit
    GOETSCHEL v. GLASSELL-WILSON CO., INC., ET AL.
    (March 24, 1930. Opinion and Decree.)
    (June 2, 1930. Rehearing Refused.)

      Foster, Hall, Barret & Smith, of Shreveport, attorneys for plaintiff, appellee.
    Thatcher, Browne, Porteous & Myers; Alex F. Smith and J. S. Atkinson, of Shreveport, attorneys for defendants, appellants.
   DREW, J.

Plaintiff sued the GlassellWilson Company, Inc., the Lukens Steel Company, the Lukens Erection Company, the Lukens Erecting Company, Inc., and A. B. Cowan, Jr., for damages for personal injuries claimed to have been sustained by her through the gross negligence and Carelessness of said defendants or one of their employees.

Before the case was presented on the merits, all of said defendants were eliminated from it except the Glassell-Wilson Company, Inc., the Lukens Steel Company, and the Lukens Erecting Company, Inc.

Plaintiff’s petition averred that the workmen engaged in the structural steel work of the present Caddo párish courthouse, while engaged in knocking out rivets drove a rivet with sufficient force to cause it to bound across the street and strike plaintiff, causing her serious injuries.

Many exceptions were filed and tried. These exceptions are not urged here, and have no bearing on the case as now presented on appeal.

The Glassell-Wilson Company, Inc., answered, denying that plaintiff was injured through the acts of any of its employees, and averred that it had taken the contract from the police jury of the parish of Caddo for the erection of the courthouse, but had sublet the erection of the structural steel work in same to the Lu-kens Erecting Company, Inc.

The Lukens Steel Company answered, alleging that its business was that of manufacturing iron and steel, etc.; that it had no contract of employment or otherwise in connection with the said courthouse; that it had no employees of any kind at any time engaged in said work; and that the Lukens Erecting Company, Inc., had the subcontract with the said GlassellWilson Company, Inc.

The Lukens Erecting Company, Inc., denies the allegations of plaintiff’s petition as to her injuries and as to the negligence of any of its employees; and alleges that it had entered into a contract with Glassell-Wilson Company, Inc., for the erection of the structural steel work in said building, and that it had, in turn, entered into a subcontract with Martin Rasmussen, a resident of New Orleans, La., who carried on business under the name of Rasmussen Construction Company, under which contract the said Martin Rasmussen and Rasmussen Construction Company agreed to furnish all labor and erect the steel frame work of said courthouse, and that said Rasmussen entered upon said work and completed said contract, and employed and paid his own labor; that it had exercised no control whatever over said Rasmussen or Rasmussen Construction Company or its employees; that he employed all workmen who erected said steel work, and paid and discharged them, and was in sole charge of said work, and had sole control of the workmen engaged in the work; and that it was notorious and well known that Rasmussen was erecting said structural steel, and that it is informed and believes that this fact was well known to plaintiff.

A. B. Cowan, Jr., did not answer, for the reason that an exception of no cause of action in his behalf had been sustained.

The Lukens Erecting Company, Inc., showed that there was no such company as the Lukens Erection Company, and therefore- there was no answer filed by Lukens Erection Company.

The case was tried before a jury, and at the inception of the trial plaintiff’s attorneys made the statement to the jury and the court, in order to clear up the pleadings, that the only defendants then before the court were the Glassell-Wilson Company, Inc., the Lukens Steel Company, and the Lukens Erecting Company, Inc.

The judgment of the lower court, approving the verdict of the jury, was in favor of the plaintiff and against the defendant Lukens Erecting Company, Inc., in the sum of $2,708, with legal interest from June 12, 1929 (date of verdict) and all costs of suit. As to the other defendants, Glassell-Wilson Company, Inc., and Lukens Steel Company, the judgment was in their favor, and rejected the demands of the plaintiff.

The Lukens Erecting Company, Inc., has appealed from this judgment, and the plaintiff has answered the appeal, and prays that the amount of the judgment be increased to the amount sued for, and that interest on the judgment be allowed from judicial demand as provided in Act No. 206 of 1916. Plaintiff did not appeal from the judgment rejecting her demands as to the other defendants. Therefore the only defendant before this court is the Lukens Erecting Company, Inc.

The first question for this court to determine is whether or not Martin Rasmussen was an independent contractor or a servant of the defendant.

The policy of the original contractor, the Glassell-Wilson Company, Inc., was to use all union labor, and it seems that at the time of the subletting of the steel work to the defendant an agreement was reached whereby union labor was to be used. The policy of the subcontractor, defendant herein, was one of “open shop,” and, in order to meet the requirement of the Glassell-Wilson Company, Inc., or at the request of that company, the defendant executed the following contract or agreement with Martin Rasmussen.

“This agreement, ' entered into by the Lukens Erecting Company, a corporation of Louisiana, party of the first part, and Martin Rasmussen, proprietor of and doing business as Rasmussen Construction Company, party of the second part, witnesseth:
“I. The first party has heretofore agreed to erect the steel frame work of the new Caddo Parish Court House presently being constructed at Shreveport, Louisiana, but desires to sublet said construction work to the second party.
“II. The first party will furnish all the equipment necessary for such construction work to the second party who hereby agrees to return same upon completion of the work in as good condition as received, reasonable wear and tear excepted.
“III. The second party agrees to furnish all labor, supervision and material necessary for the completion of such work and in accordance with plans and specifications therefor.
“IV. The first party shall pay to the second party the amount expended by it for payrolls and all other expenses in connection with such work, and in addition the sum of $85 per week, beginning and ending with the completion of the work.
“In witness whereof, the first party has caused this agreement to be signed in New Orleans by its duly authorized representative, this 9th day of December, 1926, and the second party has signed this agreement at New Orleans this 9th day of December, 1926.
“Lukens Erecting Company,
“R. W. Ferguson, President.
“Rasmussen Construction Company, “Martin Rasmussen.”

In the case of Dick vs. Gravel Logging Co., Inc., 152 La. 993, 95 So. 99, the Supreme Court said:

“To ascertain the nature and character of a workman’s undertaking, to determine whether he was a servant or an independent contractor, all the elements entering into the employment must be considered.”

And in 14 R. C. L. p. 78, the correct rule is set out:

“The parties cannot, however, avoids an investigation into their actual relation by the execution of a contract not representing the true situation as to the control reserved by the employer over the work.”

The Lukens Steel Company was engaged in manufacturing iron and steel and not in erecting steel. The Lukens Erecting Company, Inc., was engaged in erecting and not in manufacturing. Both companies occupied the same offices in the city of New Orleans, and both had, to a great extent, the same officers. The president of one was the general manager and president of the other, and the stockholders in the Lukens Steel Company owned a great majority of the stock in the Lukens Erecting Company, Inc. When the defendant herein would get a contract to furnish and erect the steel in a building, the Lukens Steel Company would furnish the steel. The Lukens Steel Company furnished the steel in the courthouse building in Shreveport, ' but for whose account the record does not disclose.

Defendant filed in evidence a number of bills for material made out to Rasmussen Construction Company, but, after a careful examination of all of them, we fail to find that there is any bill for the steel used in the building. Undoubtedly the steel used must have been the largest item of material used.

The agreement relied on by defendant states that Rasmussen was to furnish all material on the job. The bills filed cover only small things such as rivets, handles for sledge hammers, handles for hammers, repair work on tools, etc., gasoline, lumber necessary to be used as scaffolding, small amounts of pipe, valves, bushings, etc.; just such things as were necessary to be supplied to keep the work going on, and not material that went into the building. It was incumbent on defendant to show that Rasmussen and not it furnished the material as set out in the agreement, and in that it has failed.

Defendant agreed to furnish all equipment necessary for the construction, which included tools and appliances, and it did furnish all such equipment.

The agreement calls for Rasmussen to receive the sum of $85 per week, payable weekly, and the evidence shows that on Thursday of each week Rasmussen would call the defendant on the telephone and relate the amount of money expended for material, such as is set out by the bills above referred to, and the amount of the payroll for the week, including the $85 coming to himself, and the salary of the bookkeeper, and that defendant would immediately send him a check for the amount; that Rasmussen would deposit the check and draw out the money and pay off the labor in cash on Saturday at noon; and that he would also pay all bills of whatsoever kind that had been made by him on the job during that week. Rasmussen received nothing more than his regular weekly salary of $85. He made no commission on the other workmen or on the little material he purchased to keep the job going.

In determining the independence of a contractor, whether he or the master furnishes the appliances and tools is a matter worthy of consideration, since, as a general rule, an independent contractor furnishes the means for doing the work.

The mode of payment for the work to be done is an important element to be considered in determining whether the employee is an independent contractor. But neither is controlling by itself. 14 R. C. L. pp. 73, 74; 20 A. L. R. p. 772.

In 20 R. C. L. pp. 792, 793, there are a number of facts cited tending to prove that the person employed was a servant and not an independent contractor. Among those facts are the following:

“That the person employed received a guarantee that his remuneration, as fixed upon a quantitative basis, should not fall below a specified sum.”
“That the risk of all fluctuations in the scale of wages was taken by the principal employer, and not by the immediate employer of the men hired to perform the stipulated work.”
“That the relationship of master and servant had existed between the employer and the person employed before the latter undertook the work in question.”
“That the person employed did not receive any profit on the work, or on _ the daily wages of the workmen hired by him.”

All four of the. above facts are pertinent to this case.

Rasmussen received a guaranty of $85 per week, and the risk of fluctuation in the scale of wages was taken by the defendant. In paragraph 4 of the agreement, defendant agreed to pay to Rasmussen each week the amount expended for payrolls, without any specific amount being stated. Rasmussen did not receive any profit on the work or on the daily wages of the workmen hired by him; and for six or eight months prior to the signing of the agreement Rasmussen was in the employ of defendant as foreman, and, immediately upon finishing the job designated in the agreement, he continued in the employ of defendant as construction foreman, and, according to the testimony of an officer of defendant, he was so necessary to the company in its construction work that it could not spare his time for him to come to the trial of this case and give his testimony. He did not testify in court or by deposition.

We might add to the above facts the fact that defendant furnished all tools and appliances, and the mode of payment as heretofore set out.

In Shea vs. Reems, 36 La. Ann. 966, the court said:

“Where a person with his horse and wagon is employed by another to perform services for the latter at a fixed wage of so much per week and certain additional commissions, the payment of wages establishes the relation of master and servant, implies subjection of the latter to the control and direction of the former, and gives rise to the responsibility of the master for the servant’s negligent injuries in the course of his employment.” Holmes vs. Tennessee C., I. & R. Co., 49 La. Ann. 1471, 22 So. 403; Dick vs. Gravel Logging Co., supra.

In the subcontract between Glassell-Wilson Company, Inc., and the defendant herein, there is a clause inserted wherein the defendant bound itself to begin to deliver the work of erecting the steel within four weeks and to complete the job in eight weeks. In the agreement between the defendant and Rasmussen there is no time specified, and it is inconceivable to think that defendant would have sublet the work without binding its subcontractor to complete the work within the same time.

There is no time specified for beginning or completing the work in the agreement between Rasmussen and defendant. The indemnity bond for protection of the workmen was paid for by the defendant. There is no proof that, when the work was complete, the defendant accepted same from Rasmussen, or that it was necessary. It is shown that all money expended each week was furnished by the defendant, and that no amount was held back until the completion óf the job, as is customary when dealing with independent contractors.

The record does not show whether Rasmussen received the same salary from defendant before entering into the agreement as he did during the time of the agreement, or whether his salary was the same after he completed the courthouse work or was more or less. This evidence was peculiarly within the knowledge of ¡he defendant, an,d was material to the case. If Rasmussen received a greater salary while working under the agreement with defendant than before, it would have been greatly in favor of defendant; otherwise, if the salary had been the same before the agreement was entered into and the same since completing the courthouse job, it would have been greatly against the defendant.

Failure of plaintiff to produce this iestimony and the failure of Rasmussen to testify in the case, although in the employ of defendant and subject to its orders, leads us to assume that testimony of this character and Rasmussen’s testimony would have made against the defendant.

“The test of the relationship is the right to control. It is not the fact of actual interference with the control but the right to interfere that makes the difference between an independent contractor and a servant or agent.” 26 Cyc. 1547; Dick vs. Gravel Logging Co., supra; Moffet vs. Koch, 106 La. 371, 31 So. 40.

The test is, not whether the employer exercises control, but whether he has the right to exercise control. According to the testimony of Mr. Ferguson, president of defendant, he does not exercise control over Rasmussen at any time, although he is employed as a foreman. His testimony is as follows:

“Q. Now, Mr. Ferguson, you said something a little while ago about Mr. Rasmussen being in Houma?
“A. I said that he might be in Houma, but he would only be there an hour or so to get one contract started and then would be back in New Orleans.
“Q. He goes where you, as president, tell him to go?
“A. Not necessarily.
“Q. Who does he work under?
“A. He works under me,- but he keeps the works going; he is supposed to direct the work.
■ “Q. You do not tell him what to do?
“A. Only in the way of order tell him when he starts a job and when it should be completed and he uses his own judgment as to how to handle it.
“Q. You do not direct him?
“A. No, sir; not that closely.”

Corporations perform their duties through their agents and employees, and it is readily seen that Mr. Rasmussen is the agent and employee through whom the defendant performs its construction work.

The evidence shows that the defendant did not interfere with Rasmussen in the manner of handling the erection of steel on the courthouse job, and that it does not interfere with him now except to tell him when to start a job and when it should be completed. According to the testimony of the president of defendant, he runs a job as though it were his own; hires the workmen and discharges the workmen, the same as he did on the courthouse job in Shreveport. However, that does not mean that the defendant has not the right to interfere with the manner in which he handles the- job.

Can any one doubt that, if Rasmussen had loafed on the job and delayed the delivery of the steel work on the courthouse, or if his payroll had been exorbitant, the wages paid being greatly in excess of the schedule of wages ¡prevailing at that time, that defendant would not have interfered? It had the right to interfere and exercise control. There is no proof to the contrary and no allegation in the pleadings to the contrary. Defendant alleged and proved that it did not exercise control over him, but not that it did not have the right to exercise control, which is the test.

The burden of proof was on defendant to prove that the work was performed by an independent contractor and not by any employee. 14 R. C. L. 78; E. C. Taylor Co. vs. N. Y. & C. Mail S. S. Co., 159 La. 381, 105 So. 379, 381.

The testimony, in our opinion, fails to show with reasonable certainty that Rasmussen and Rasmussen Construction Company was an independent contractor.

In the language of the court in the case of Rheinwald vs. Builders’ Brick Co., 168 App. Div. 425, 153 N. Y. S. 589, we say, common sense and regard for the actualities should be potent on this issue, rather than technical distinctions and elaborate refinements. Rasmussen really was a foreman for the defendant, the same as he was before entering into the agreement, and the same as he was after completing the job under the agreement. The sum which he received each week for his duties as foreman or superintendent of the job was, in an economic sense, wages, and not proiits. He had no helpers on whose work he made a profit.

This suit was filed on the 27th of December, 1927, and the first disclosure that defendant was claiming that Rasmussen was an independent contractor was in the answer filed on the 28th day of April, 1928, after the twelve-month prescriptive period had run. If the defendant was serious in its contention, it seems to the court that it would have disclosed to the plaintiff before suit, or certainly immediately after suit was filed, that Rasmussen was the party liable and not it. This it failed to do. The agreement between defendant and Rasmussen was not of record, and plaintiff could not have had knowledge of its existence. It was plainly the duty of defendant to make known that Rasmussen was an independent contractor if he in fact was.

In the case of E. C. Taylor Co. vs. N. Y. & Cuba Mail S. S. Co., supra, the court said:

“It was plainly the duty of this defendant to have made known to plaintiff company the fact that the rails were unloaded by an independent contractor, if such was the fact.”

In that case the court cites the case of Branson vs. Wirth, 17 Wall. 32, 20 L. Ed. 566, wherein the court held:

“When one by his acts or representations, or by his silence when he ought to speak out, intentionally or through culpable negligence induces another to believe certain facts to exist and to act accordingly, he is estopped.”

There is no plea of estoppel filed in this case, but the court will not be impressed with the good faith of the defense where the defendant has so signally failed in its duty to plaintiff. The contract with Rasmussen was clearly a subterfuge. Defendant’s policy was that of “open shop,” and it could use the contract with Rasmussen as a shield for employing union labor. The rule governing such contracts is properly stated in 39 Corpus Juris 37, sec. 2, at page 28:

“And the mere fact of nominal employment by an independent contractor will not relieve the master of liability where the servant is in fact in his employ. Where an independent contractor is created or is operating as a subterfuge an employee will be regarded as a servant of the principal employer.”

Plaintiff, a lady about thirty years of age, while walking on Marshall street in tbe city of Shreveport, on the side opposite the courthouse, was struck by a flying rivet that had been driven out of the steel work then in progress on the new courthouse building. The workmen were on that day knocking out defective rivets, and, to use the parlance of the steel workers, they were “shooting rivets.” There was no other work of that kind going on in that immediate vicinity and no other possible way for the rivet to have shot across the street, unless it was caused by this work. In “shooting rivets” they use a hammer driven by compressed air, and the evidence shows that one other rivet came across the street after the plaintiff was struck.

Plaintiff was struck by the rivet on the calf of the leg; her stocking was slightly torn, and her leg cut enough to cause the blood flowing from the wound to attract attention. The wound itself was not serious. Plaintiff turned and retraced her steps for a short distance, and went into a jewelry store where her husband was working. She was very nervous, and was carried to a sanitarium, where she was treated and sent to her home, due to the crowded condition of the sanitarium at the time. She was highly nervous that night, necessitating the attention of a doctor, who administered opiates to her in order to quiet her. The next day she was taken to the sanitarium, and remained in the sanitarium for a period of ten days, during which time she suffered from a hemorrhage of the uterus, and she had been very nervous and unstrung from that day until the time of the trial. At the time she was injured she weighed around one hundred and forty pounds and weighed at the time of the trial about one hundred and fifteen pounds. All doctors who testified said she was not a well woman. However, some of the doctors do not think the injury she received had anything to do with her condition. Others attribute her condition to shock from the said injury.

The evidence shows that she was a healthy, robust woman before she received the injury, that she was immediately taken to the sanitarium, and that she has been a sick woman ever since. She was injured by the carelessness of the employees of .the defendant. The jury saw the plaintiff and heard the testimony before arriving at their verdict, and we are reluctant to disturb the verdict of a jury unless the same is clearly erroneous; and the district judge gave his approval to the verdict of the jury when he signed the judgment.

While we do not feel justified in increasing the judgment, as asked for by plaintiff, we likewise do not feel justified in reducing the judgment.

Plaintiff has asked that the judgment be amended by allowing legal interest from judicial demand instead of from date of verdict of the jury.. We think that she is entitled under the law to have the judgment bear interest from judicial demand until paid.

It is therefore ordered, adjudged, and decreed that the judgment of the lower court be amended by allowing interest at the legal rate from judicial demand, until paid, instead of from date of verdict of the jury, and, as so amended, that the judgment of the lower court be affirmed; appellant to pay cost of appeal.


text:
    No. 3750
    Second Circuit
    SOLOMON v. FAGGARD
    (March 24, 1930. Opinion and Decree.)

      Rusca & Cunningham, of Natchitoches, and H. W. Bethard, Jr., of Coushatta, attorneys for plaintiff, appellee.
    Lee & Williams, of Mansfield, attorneys for defendant, appellant.
   DREW, J.

This case was consolidated with case No. 3748, styled Mrs. Laura Wilkerson vs. A. G. Faggard (La. App.) 127 So. 5, and for reasons as to liability see No. 3748.

Plaintiff 'sues for himself and as legal representative of and for the use and benefit of his two minor children, namely, Louise, age three, and an infant whose name is not given.

He prays for judgment for himself in the sum of $200 for doctor’s bills and medicine for his wife and children; $50, that he was forced to expend for servant’s hire during the time his family was incapacitated; $150 expended in hiring a car in his business during the time his car was in a garage for repairs; $73.50, for repairs to his car after the wreck.

For the benefit of his minor children:

Physical pain and suffering borne by his daughter, Louise, on account of injuries received in said accident, the sum of $2,000; for mental pain and anguish suffered by minor, Louise, $250; and $350 for suffering and mental anguish of infant unnamed.

The lower court awarded him judgment in the sum of $200 for medical attention and service; $30 for servant’s hire; and $73.50 for damages done to his automobile. We see no reason for disturbing that part of the judgment.

The lower court rejected the demand as legal representative of and for the benefit and use of the unnamed infant, and we see no reason to disturb that judgment.

The lower court awarded him, as legal representative of and for the use and benefit of minor, Louise Solomon, the sum of $500. Dr. Huckaby, a defense witness, testified that the little girl, Louise, was badly hurt; that she was in a semi-conscious state for some time after the accident; had a knot on her head and he advised that it be X-rayed.

Dr. Reed testified that she was bruised on both sides of the body and stomach, face, and head; that she had gravel punctures on the skin of the face; and that she received internal injuries which caused her to spit up blood, and her nose bled freely at various intervals. These injuries caused her to have severe headaches and pains in the back and stomach for quite a while afterwards. He visited her off and on for about two months.

Her mother and father testified that the child cannot engage in children’s play without pain; that she frequently cries with pain in the head and stomach. Mrs. Solomon testified:

“She cries with her head all the time, and the doctor has to give her some rest medicine, she has a deep sunken place on top of the head, looks like it is mashed in, and a ruptured navel. She has a stiff place across the stomach, she cries with her stomach nearly all the time. If she eats most anything, that crowds her stomach, she complains that it hurts her, and her head aches, she has not really gotten her right mind, since we were in the wreck. She will be out and playing and she’ll suddenly sit down and cry.”

The accident happened on the 11th of November, 1927, and this case was not tried until February, 1929, more than a year after the accident when the testimony was given.

We think the judgment in favor of Joe Solomon, as legal representative of and for the use and benefit of the minor, Louise, should be increased to $1,000.

Defendant filed an exception to the authority of plaintiff to sue for his minor child, which exception was overruled by the lower court and has not been urged here. We think the ruling of the lower court was correct on this exception.

It is therefore ordered, adjudged, and decreed that the judgment of the lower court in favor of Joe Solomon for the sum of $303 against the defendant, A. G. Faggard, be affirmed; and the judgment rejecting the demand of Joe Solomon against the defendant, A. G. Faggard, for the use and benefit of the infant minor, unnamed, be affirmed; and the judgment in favor of Joe Solomon, as legal representative of and for the use and benefit of the minor, Louise Solomon, and against the defendant, A. G. Faggard, in the sum of $500, be increased to the sum of $1,000, and, as thus amended, that the judgment of the lower court be affirmed:


text:
    No. 3698
    Second Circuit
    DOMINICK v. HAYNES BROS. ET AL.
    (March 24, 1930. Opinion and Decree.)
    (April 10, 1930. Rehearing Refused.)
    (June 2, 1930. Writs of Certiorari and Review Refused by Supreme Court.)

      C. B. Prothro, of Shreveport, attorney for plaintiff, appellant.
    Spearing & Mabry, of New Orleans, and Pugh, Grlmmet & Boatner, of Shreveport, attorneys for defendants, appellees.
   DREW, J.

This is an action for damages to plaintiff’s truck, received in a collision with defendants’ ear. Plaintiff alleges, and the facts show, that at the location of the collision the highway was obscured by a heavy smoke from burning grass on the roadside. ■ The petition further alleges, and the facts show, that before entering the smoke both drivers were stopped by road guards and instructed to turn on their lights, drive slowly, and keep to the right side of the road. Plaintiff’s car was going north on the road and defendants’ car was coming south on the same road. The smoke obscured the road for several hundred feet and the collision occurred about midway. Plaintiff alleges that the collision was due solely to the negligence of defendants in operating their car on the wrong side of the road. Defendants deny liability and plead contributory negligence in bar of plaintiff’s recovery.

The road was what is known as a macadam or hard surface road, eighteen feet wide, with three-foot shoulders on each side of the macadam. Both cars were burning their headlights and both cars were traveling at about the same rate of speed, that is, fifteen or twenty miles an hour, too fast under the circumstances. The driver of defendants’ car testified that he could not see, was blinded by the smoke, and the driver of plaintiff’s car testified that he could not see defendants’ car, although its lights were burning, until it was ready to collide with his car. It is clear that neither driver could see but a few feet ahead. It is true that the collision occurred on plaintiff’s side of the road, the left wheel of defendants’ car being about two feet over the center of the road on plaintiff’s side. However, there were seven feet of macadam and three feet of gravel shoulder from that point to the ditch on the right-hand side of the road and sufficient room for plaintiff to have turned to the right and missed defendants’ car if he could have seen it. Both parties undoubtedly entered the smoke on their right side of the road. The testimony shows that the dense smoke across the road only lasted for a few minutes and that a very short time after the accident the smoke had cleared away to a great extent. It was negligence for both drivers or either of them to enter the smoke screen that prevented them from seeing any appreciable distance ahead. It was al*o negligence to drive at a rate of speed of fifteen miles per hour after having entered the smoke.

The facts of this case, including the [width of the road and all, are very similar to the case of Castille vs. Richard, 157 La. 274, 102 So. 398, 37 A. L. R. 586, in which the court held:

“Drivers of automobiles on. narrow road approaching in opposite directions, who failed to stop until impenetrable cloud of dust raised by third automobile in passing one of them had subsided, held negligent."

The court in this case held both parties negligent and rejected their demands.

“It is the duty of the driver of an automobile to stop his car when his vision is entirely obscured by a temporary obstruction, such as a cloud of dust or smoke screen. When failure to do so would jeopardize the safety of others, then he must remain at a standstill until the obstruction has come to an end." Blashfield’s Encyclopaedia of Automobile Law, vol. 1, p. 370.

The law of comparative negligence is not recognized in this state, and when one by his own acts of negligence contributes to the accident he is barred from recovery.

The lower court held that the plaintiff was guilty of contributory negligence and rejected his demands. We see no error in the judgment.

It is therefore ordered, adjudged, and decreed that the judgment appealed from be affirmed.

Cost of appeal to be -paid by plaintiff, appellant.


author: JANVIER, J.

text:
    No. 13,300
    Orleans
    J. C. WOLF, INC., v. KLEIN BROS., INC.
    (May 19, 1930. Opinion and Decree.)
    Weiss, Yarrut & Stich, of New Orleans, attorneys for plaintiff, appellee.
    Cahn & Cahn, of New Orleans, attorneys for defendant, appellant.
   JANVIER, J.

This is a suit on an open account for $249.93, for goods alleged to have been sold and delivered. The defense s'et up in the answer is that the account was extinguished by the acceptance of checks payable at future dates, which checks were not due at the time of the filing of the suit.

Plaintiff’s evidence shows that the checks referred to in the answer were given in payment of a note for $i,100 and had no connection whatever with the open account sued on.

Defendant offered no evidence at all either in support of its contention or in rebuttal of the testimony of plaintiff.

From a judgment rendered in favor of plaintiff, as prayed for, defendant has appealed, but has filed no brief with us, nor has its counsel favored us with oral argument. Plaintiff has answered the appeal asking that the penalty for delaying recovery by taking a frivolous appeal be awarded. It is very evident that the appeal was asked solely for the purpose of securing delay, and therefore plaintiff is entitled to the penalty prayed for.

It is therefore ordered, adjudged, and decreed that the judgment appealed from be and it is amended by awarding to plaintiff and appellee 10 per cent of the amount thereof as damages for frivolous appeal and, as thus amended, affirmed.


author: REYNOLDS, J.

text:
    No. 3706
    Second Circuit
    SMITH v. WILSON
    (December 31, 1929. Opinion and Decree.)
    (January 31, 1930. Rehearing Granted.)
    Henry W. Bethard, Jr., of Coushatta, at torney for plaintiff, appellant.
    Dale, Dale & Dale of Vidalia, and D. W. Gibson, of Harrisonburg, attorneys for defendant, appellee.
   REYNOLDS, J.

This appeal is from a judgment rejecting appellant’s demand for the annulment of a judgment rendered by the district court of Catahoula parish in case on its docket numbered 5490 and entitled Fred R. Wilson vs. J. B. Smith.

The judgment was in rem against certain described land and based on substituted service.

The contention of appellant is that the land was never legally seized, and consequently the court never acquired jurisdiction.

The suit was tried on the face of the record in the suit of Wilson against Smith, together with an affidavit of the sheriff as to what he did under a writ of attachment alleged to have been issued therein and not returned by him because lost.

Only questions of law are involved, and the facts on which they turn undisputed and few. These facts are as follows:

August 19, 1927, appellee filed his petition alleging that appellant was indebted to him in a named amount, was a nonresident of the state, and that he owned certain land, describing it; and he asked that an attachment issue and the land be seized thereunder, that an attorney to represent the absentee be appointed, and that on trial there be judgment fixing the amount of his debt, sustaining the attachment, decreeing him a privilege on the land by reason of its seizure, and ordering it sold for the satisfaction of the judgment.

On the same day a bond was filed, and the clerk of court signed an order for a writ of attachment to issue and appointing R. R. Reeves, an attorney at law, to represent the non-resident. '

Reeves duly accepted the appointment, but did not file any pleading or take any other action in the suit.

The record does not ■ show that at that time any writ of attachment or any citation was issued and executed, but the affidavit of the sheriff, referred to, states that:

“Suit in the above case was filed August 19, 1927. On the same day a bond in due form for $250.00 was filed. An order for a writ of attachment was signed the same day. On the same day a writ of attachment was issued. On the same day R. R. Reeves, attorney at law, was appointed to represent the absentee, J. B. Smith. On the same day a certified copy of the writ of attachment and citation was posted on the principal front door of the room of the court house in Harrisonburg, La. Soon after the 19th of August, 1927, the prop-' erty described in the petition was attached and taken into my possession, which attachment was never released, and the writ, while I cannot find same, and it was lost, was never endorsed by me as returned. The plaintiff never ordered me to return the writ.”

The minutes show that on November 10, 1927, judgment by default was entered. On April 2, 1928, judgment by default waá again entered. On April 4, 1928, a writ of attachment and a citation were issued. It is this citation and writ and the proceedings, had in execution thereof on which the judgment assailed is based.

The minutes further show that on June 9, 1928, “the default previously taken was, on motion of counsel for plaintiff, set aside, and a new judgment by default taken”; and that on November 26, 1928, judgment by default was again entered. On December 3, 1928, the case was tried on the merits and judgment rendered and signed.

The judgment recites among other things, that:

“An attachment issued against the defendant on the 4th day of April, 1928, and, on the 14th day of April, 1928, the writ was executed by the sheriff of Catahoula parish going upon and attaching and taking into his actual possession the following described lands. * * * ”

And appellant contends that whatever proceedings were had under the writ of attachment and citation of August 19, 1927, were abandoned, and any jurisdiction acquired by the court was lost in consequence, and that, the judgment assailed being founded upon the writ of attachment and citation of April 4, 1928, it is null, for the reason that a new writ could not legally issue on the old affidavit and bond and order; that the old affidavit and order and bond had become functus officio by reason of' the issuance of the old writ of attachment; and that neither the old affidavit nor bond nor order, could be called in aid of the second writ; and he cites us to the cases of Erwin vs. Bank, 12 Rob. 227; Erwin vs. Bank, 3 La. Ann. 186, 48 Am. Dec. 447; Pugh vs. Flannery, 151 La. 1063, 92 So. 699, in support of these contentions. We have examined the cases, and do not think they go as far as contended for by appellant.

The affidavit of the sheriff shows that on August 19, 1927, a writ of attachment and citation were issued to him and that he duly executed them, but that he lost the writ of attachment, and therefore never returned it. The writ having been issued and levied, we think the court acquired jurisdiction, and it was not deprived of its jurisdiction by the loss of the writ and the sheriff’s inability to return it. Under the circumstances, the writ of April 4, 1928, was in the nature of an alias, and therefore the old affidavit and bond and order were sufficient to support it. The new writ and the proceedings under it were a continuation of the old, which were not abandoned.

Appellant’s only contention being that the court was without jurisdiction, and that contention being found untenable, it follows that the judgment appealed from is correct.

It is therefore ordered, adjudged, and decreed that the judgment appealed from be affirmed.