text:
    No. 4013
    Second Circuit
    STATE OF LA. EX REL. WHITE v. MASON ET AL.
    (April 9, 1931. Opinion and Decree;)
    (May 20, 1931. Rehearing Refused.)
    (June 22, 1931. Writ of Certiorari and Review Granted by Supreme Court.)
    Todd, Todd & Fraser, of Bastrop, and George Gunby, of Monroe, attorneys for plaintiff, appellee.
    Madison & Madison, of Monroe, attorneys for defendants, appellants.
   WEBB, J.

In this action, relator, J. T. White, of Morehouse parish, La., who claims the office of member of the More-house parish s.chool board, from ward 7 of said parish, under and by virtue of an appointment made and commission issued thereon by the Governor of Louisiana on October 17, 1930, seeks to obtain judgment against defendant Henry Mason, of same domicile, who claims the said office under and by virtue of an election held in November, 1926, and a commission issued thereon in due' course by the Governor of Louisiana, ousting defendant from said office and decreeing relator entitled thereto.

The basis of the action is that, at the time defendant was elected, commissioned, and sworn, he held and was discharging the duties of the office of postmaster at Gallion, of said parish, under an appointment by the Postmaster General of the United States, that defendant had immediately after taking oath of office entered into the discharge of the duties of member of the school board, while retaining the office of postmaster and discharging the duties of that office, and that since that time defendant has held and discharged the duties of both offices. And the questions presented are whether or not the offices are incompatible within the meaning of section 4, article 19, of the present Constitution; and, if so, whether the said office of member of the school board was vacant when relator was appointed and commissioned to said office.

Defendant filed exceptions of no right or cause of action, an answer, and a plea in abatement. The exceptions, and plea were overruled, and, on trial, judgment was rendered in favor of relator, as demanded, from which judgment defendant appeals.

It is conceded that the relator was appointed under the provisions of Act No. 100 of 1922, sec. 17, which provides that “all vacancies in the membership of parish school boards caused by death, resignation, or otherwise, shall be filled by appointment by the Governor”; and passing, for the present, the issue raised by the plea in abatement, it is conceded that the questions presented involve the construction of section 4, article 19, ofi the Constitution, which reads as follows;

“No member of Congress, nor person holding or exercising any office of trust or profit under the United States, or any State, or under any foreign power shall be eligible as a member of the Legislature, or hold or exercise any office of trust or profit under the State; nor shall any person hold or exercise, at the same time, more than one office of profit except that of Justice of the Peace or Notary Public. Provided, this section shall not apply to Officers in the Reserve of the United States Army, Navy, Marines, and National Guard.”

The section quoted contains two distinct general provisions — one prohibiting any person from holding or exercising an office under this state, and another office under another sovereignty; and the other prohibiting any person from holding at the same time more than one office, which provisions will hereinafter be referred to as. the first and second provisions. Both of the provisions have been contained in prior Constitutions adopted in this state, being embodied, however, in separate articles, and it is conceded that the questions presented here involve the construction of the first provision, which, with one exception (State v. Joseph, 143 La. 428, 78 So. 663, L. R. A. 1918E, 1062), has never been construed by the Supreme Court, in which there was not any ruling which affects the questions presented here.

Considering the first question presented, which is whether or not the office of postmaster and member of the parish school board are incompatible within the meaning of the first provision, there is not any suggestion that the position of postmaster is not an office under the United States or that the position of member of the school board is not a public office; but appellant contends that the office of member of the parish school board is not an office within the meaning of .the constitutional provisions.

In support of the contention that the offices are not incompatible, it is urged that, under the provisions of Act No. 100 of 1922, enacted to carry into effect the provisions of article 12 of the Constitution, which deals with public education, parish school boards are constituted bodies corporate with authority to stand in judgment, and that the members of the school board are merely officers of the corporation, and are not included in the constitutional inhibition. In support of that position, numerous decisions of the Supreme Court are cited, in which the prohibition contained in the second provision of section 4, article 19, of the Constitution, has been construed; and appellant also urges that the Legislature has construed the prohibition contained in the first provision of section 4, article 19, as not prohibiting postmasters from holding the office of member of the school board.

The legislative construction, to which appellant refers, is contained in Act No. 120 of 1916, which was enacted to carry into effect the provisions of article 248 et seq., of the Constitution of 1913, which dealt with public education, and reads as follows:

“To be a member of a school board one shall be a qualified elector in the ward from which he is elected, able to read and write, who does not hold any office or position of honor, trust or emoluments, city, parish, or state, or hold any permanent employment in any capacity by any board, department or officer, municipality, parish or state; except that of justices of the peace, notaries public, member of drainage boards, and postmasters shall be eligible to school board membership.” (Section 5.)

We do not think that the provision quoted shows the Legislature considered that either the office of postmaster or school board, member was. not included in the constitutional provision now considered, but that it indicates to the contrary. But, whatever inference may be drawn from the provision quoted from the statute relative to the construction placed upon the constitutional inhibition, the inference is not sufficient to warrant the conclusion that the Legislature construed the inhibition as not including postmasters. And Act No. 120 of 1916, having been repealed by Act No. 100 of 1922 (Knight v. Webster Parish School Board, 164 La. 482, 114 So. 104), it is not necessary to consider what was the effect of the declaration that postmasters were eligible to school board memberships.

In the decisions cited, in which the Supreme Court has construed the prohibition contained in the second provision of section 4, article 19, of the Constitution, it is held that the provision was applicable only to state offices, and did not apply to municipal offices and parish offices (Dorsey v. Vaughan, 5 La. Ann. 155; State v. Martin, 133 La. 1098, 63 So. 598), and it is urged that, under the ruling, the office of member df a parish school board is not an office under the state, within the meaning of the first provision of section 4, article 19, of the Constitution, and that the office is merely a parish or municipal office under a political corporation under the provisions of Act No. 100 of 1922, which constituted the parish school boards bodies corporate. It is evident from the cases referred to and other decisions cited by the parties (State v. Nockum, 41 La. Ann. 689, 6 So. 729; State v. Jean, 42 La. Ann. 946, 8 So. 480; State v. Taylor, 44 La. Ann. 783, 11 So. 132; State v. Titus, 152 La. 1011, 95 So. 106), that .the basis of the rulings, in which the inhibition was considered with reference to certain offices, was that such offices were not state offices, or offices established by the Constitution or created by the Legislature.

There is some distinction made between offices which are included in the prohibitions contained in the first and second provisions of section 4, article 19, of the Constitution; in that the second provision refers only to offices of profit; and appellee contends that the decisions construing the second provision, in which it is. held that only state offices were included in the prohibition, are not applicable to the prohibition contained in the first provision, as the words “under the state” used in the first provision, as applied to public offices, include all offices held under the authority of the state, or other sovereignties, citing in support of the contention Fekete v. E. St. Louis, 315 Ill. 58, 145 N. E. 692, 40 A. L. E. 650; also Wood v. Miller, 154 Ark. 318, 242 S. W. 573. We do not deem it necessary, however, to consider that question, as we are of the opinion that the office of member of the parish, school board was created by the Legislature.

While the parish school boards were constituted bodies corporate under the provisions of Act No. 100 of 1922, and given limited authority in a definite territory, the statute was enacted and the parish school boards created and provision made for the election of the members thereof in obedience to the mandate contained in article 12 of the Constitution, under which the state established a system and assumed the responsibility of public education. Nelson v. Town of Homer, 48 La. Ann. 258, 19 So. 271; State v. New Orleans, 42 La. Ann. 92, 7 So. 674. There cannot be any doubt that the boards were created to exercise a part of the' duties undertaken by the state, and which concern the entire state, and the election of the members of the board having been provided for as stated, and their terms of office and compensation provided for under the statute, we are of the opinion that the members of the parish school boards are state officers, and the offices held by them state offices (see State v. Taylor, supra), and that such offices are incompatible with the office of postmaster, within the meaning of the iiihibition contained in the first provision of section 4, article 19, of the Constitution.

The second question relates to the effect which should be given to the violation of the prohibition contained in the first provision of section 4 of article 19 of the Constitution. Both of the parties state that the provision is self-operative, but they differ as to the effect of its violation. Appellant contends that the violation did not cause a vacancy in the state office, but merely gave the state the right to proceed against him and divest him of the state office, in the event he did not, voluntarily resign the postmastership; while appellee contends that the effect was to cause a vacancy in the state office, or, in other words, that defendant holding a federal office, could not accept the state office, and that the acceptance of the state, office, being in violation of the prohibition, was void.

There has not been any decision by the Supreme Court of this state in which the effect to be given to the violation of the inhibition has been considered; and, while counsel cited numerous decisions from other jurisdictions in which the question was presented, in the majority of the cases cited the federal office was accepted after the state office, and the general rule that ■the acceptance of a second office, incompatible with the one already held, vacates the first, was applied. People v. Leonard, 73 Cal. 230, 14 P. 853; State v. Sadler, 25 Nev. 131, 58 P. 284, 59 P. 546. 63 P. 128, 83 Am. St. Rep. 575; Fekete v. E. St. Louis, 315 Ill. 58, 145 N. E. 692, 40 A. L. E. 650. It is evident, however, that the rule cannot be applied where the federal office is held at the time the state office is accepted, as the state has no control over the, federal office (Corpus Juris, vol. 46, p. 947, sec. 55), and there is some conflict in the decisions cited relative to whether or not, in the latter case, the state office is ipso facto vacated.

It must be conceded that whatever is done in violation of a prohibitory law is void (article 12, C. C.), and, although that rule is not applicable when .the validity of the acts of one who holds or exercises the duties of an office in violation of the prohibition are called in question (State v. Smith, 153 La. 577, 96 So. 127 and authorities cited), there is not any reason why the rule should not be applied .to the acts of defendant in accepting -and qualifying for the state office while holding and exercising the duties of the federal office; and, under that rule, the action of defendant, in qualifying for the state office, was without effect (see Bunting v. Willis, 68 Va. 144, 21 Am. Rep. 338), and the office was not legally filled, and was vacant in the eyes of the law (R. C. L. vol. 22, “Public Offices,” p. 437, sec. 91 et seq.).

We are therefore of the opinion that the state office of member of the Morehouse parish school board was vacant, within the meaning of the statute (Act No. 100 of 1922), which provides that the Governor shall fill all vacancies in such offices by appointment and that the appointment of relator was valid.

The plea in abatement, which was filed after issue had been joined and over the objection of relator (see Gurley v. New Orleans, 124 La. 391, 50 So. 411), was based on the allegation that the Governor had canceled the appointment of relator and recalled the commission issued thereunder. Passing the objection of relator to the plea and without relating the evidence introduced, it is sufficient to state that the evidence did not establish the allegations on which the plea was based, and that the plea was properly overruled.

The appointment of relator vested him with the legal right to the office, and the judgment recognizing him as entitled to and divesting defendant of possession of the state office is affirmed, at defendant’s cost.


source: Caselaw Access Project

author: TALIAFERRO, J.

license: Public Domain

text:
    No. 4002
    Second Circuit (Second Division)
    THE HAMILTON COMPANY v. MEDICAL ARTS BUILDING CO., INC. (UNITED IRON WORKS, INC., Intervener and Third Opponent)
    (June 11, 1931. Opinion and Decree.)
    (July 16, 1931. Rehearing Refused.)
    (October 15, 1931. Writ of Certiorari and Review Refused by Supreme Court.)

      Wise, Randolph, Rendall & Freyer, of Shreveport, attorneys for plaintiff, appellee.
    Modisette, Irion, Comegys & Switzer, of Shreveport, attorneys for intervener, appellant.
   TALIAFERRO, J.

Intervener and third opponent, United Iron Works, Inc., of Kansas City, Mo., in the month of November, 1928, sold, delivered to, and installed for, defendant, Medical Arts Building, Inc., of Shreveport, La., certain machinery and equipment for the production and application of refrigeration, for the price of $2,175 on which there was a balance due of $629.69 when this litigation began. The purchaser gave to intervener its promissory notes for the deferred part of said price, with 6 per cent interest and 10 per cent attorney’s fees in event of suit thereon, but took no mortgage to secure the notes. Nothing was recorded to give notice that the machinery and equipment were unpaid for. This machinery and equipment was shipped from Kansas. City, or other points in Missouri, and was installed in defendant’s building at intersection of Travis and Louisiana streets, during the month of January, 1929.

On July 26, 1929, defendant gave a special mortgage on its lots of ground and office building, aforesaid, to the Hamilton Company, plaintiff herein, and to C. L. Shaw Company, for $30,000, evidenced by its several notes, described in the mortgage. This act of mortgage was duly recorded in the official records of Caddo parish the day of its execution, and subsequently plaintiff acquired the notes of Shaw & Co. Defendant defaulted on its said notes, and on January 11, 1930, foreclosure proceedings were instituted thereon by plaintiff, and in due course the mortgaged property, including said refrigeration plant, was seized by the sheriff and advertised for sale.

In the meantime the United Iron-Works, Inc., was placed in the hands of a receiver at Kansas City by the federal court, and through said receiver this intervention and third opposition was filed on February 26, 1930.

Intervener alleges that the machinery and eqiUipmen-t sold by it to defendant was installed in the basement of defendant’s said office building very soon after sale and delivery thereof; that the notes evidencing the unpaid part of the purchase price were secured by a vendor’s lien and privilege on said machinery, refrigeration plant, and equipment; that same has been seized with said office building and the land whereon same is located, by the sheriff of Caddo parish, in the foreclosure suit of plaintiff, and is being advertised for sale. The prayer is that said machinery, refrigeration plant, and equipment be separately appraised and separately sold by the sheriff, and that he be ordered to hold the proceeds of such sale until the further orders of the court; that intervener have judgment against defendant for $629.69, the balance due on the price of said machinery and equipment, with interest and attorneys’ fees, and judgment against plaintiff and defendant recognizing its vendor’s lien and privilege on said property as outranking and superior to any claim of plaintiff, and ordering the judgment rendered in its favor paid out of said proceeds hy preference and priority over plaintiff and others. 'Order of court issued as prayed for requiring separate appraisement and separate sale of the property described on which defendant asserted a vendor’s lien and privilege. This litigation now is over the proceeds of sale of said property held by the sheriff.

Plaintiff answered the intervention, but defendant did not. A judgment by default was entered against it.

The answer is a general denial of the allegations of intervener’s petition, except as to those relating to the foreclosure by plaintiff and seizure of defendant’s property, including that against which the vendor’s lien and privilege is asserted, and the impending sale thereof by the sheriff. It is further averred that, if any machinery or equipment or refrigeration plant was installed in the Medical Arts Building, the same became a part of said realty and incorporated therein, and became subject to plaintiff’s mortgage; that the refrigeration plant in said building rests upon, and is securely fastened to, concrete foundations, and that same is an immovable by destination.

Under the issues tendered by these pleadings, the case was tried, resulting in a judgment rejecting intervener’s demand and dismissing its suit with costs. Intervener appealed.

The first negotiations looking to the purchase by defendant of the machinery and equipment for a refrigeration plant from intervener took place in Dallas, Tex., between their respective representatives. This was very soon followed by a written proposal of intervener, dated at Shreveport, November 10, 1928, on printed form for the purpose, wherein it proposed “to furnish certain machinery and equipment for the production and application of refrigeration as described in specifications hereto attached.” Production of refrigeration at rate of six tons per day of 24 hours, under stipulated conditions, was guaranteed. On November 15, 1928, defendant signed written acceptance of the above-mentioned proposal at Shreveport, and same was either forwarded to intervener at Kansas City or to its agent at. Dallas. The proposal with defendant’s acceptance thereon was finally approved by the vice-president of thei seller at Kansas City, November 28, 1928.

Two propositions of law arise in this case. The first is: Was the contract between intervener and defendant a Louisiana contract? If- so, as a consequence the unpaid purchase price was secured by a vendor’s privilege. The second is: Has such vendor’s privilege been lost as a result of the installation of thei machinery and equipment} in defendant’s building, for the purpose purchased, and being attached thereto for its use and benefit, no chattel mortgage securing the unpaid part of. the purchase price having been registered?

Logically, the first question to be determined is whether we are dealing with a Louisiana contract. If the contractual relation between intervener and defendant is not governed and controlled by the laws of the state of Louisiana, a finding by this court to that effect will make it unnecessary to consider the second question, for intervener will be without remedy or right to pursue the goods sold by it to defendant.

The original proposal of intervener, referred to supra, contains, the following stipulation, holding in suspense, in so far as concerned intervener, the terms and conditions of the proposal already accepted by defendant, to-wit:

‘•'This agreement is executed and signed in duplicate, hut it is understood that it shall become binding upon the seller only when approved by an executive officer of the seller at its. home office in Kansas City, Mo., U. S. A., and if not approved the payment accompanying this proposition shall be returned promptly to the seller.”

The proposal and acceptance were forwarded to intervener’s office in Kansas City, and on November 26, 1928, was approved by its vice-president, thus completing all the requirements necessary to render the contract binding on both sides.

The following pertinent stipulations are contained in the contract under discussion:

"The seller shall furnish an engineer to supervise and assist in making installation of said equipment and machinery.”
“The seller shall furnish all labor for ammonia work. Buyer to furnish labor for putting up water lines and cooling tower.”
“It is. agreed and understood that a test run of three days must be made on the plant, for tne purpose of making adjustments, if any, that may be required.”
“And it is hereby understood and agreed that a failure on the part of the buyer to reject the plant by notifying the seller in writing within three days from completion of installation above mentioned, shall conftitute an acceptance on the part of the buyer.”

The record does not disclose the date the plant was finally installed, but on January 30, 1929, defendant wrote a letter of acceptance to intervener, on form used for that purpose, to-wit:

“The undersigned this day accepts as completed according to contract and specifications, dated 10 day of Nov., 1928, the #30 machine 4x4 and Drinking Water Cooling Equipment.
“This acceptance is subject to the provisions of said contract, if any, in respect of replacing defective materials.”

Plaintiff argues that, when , the contract under consideration, was accepted by the vice-president of intervener company in Kansas City, pursuant to the suspensive stipulation therein, it became a Missouri contract, and therefore no vendor’s lien arose to protect the seller as to the unpaid portion of the purchase price, and that, when the goods were loaded on cars in Missouri, consigned to defendant on open bill of lading, the title there passed, and thereafter the goods became the property of the purchaser. This argument overlooks other conditions of the contract, suspensive in their nature, which were to be eventually executed, and could only be executed, in the state of Louisiana, where the goods were destined for installation and use, and which, until complied with, caused the contract to be executory and incomplete in respect to its fulfillment.

A contract of sale is perfected by three • concurring circumstances, viz.: The object or thing, the price and the consent. Civ. Code, art. 2439. But the perfection of the contract so as to fix responsibility of the parties to it, in the event of its final execution or non-execution, is one thing, while the actual passing of the title of the thing, the object of the contract, under conditions suspensive in their nature, is another.

It is contended by intervener that the ultimate consummation of the contract between it and defendant was suspended until all of the stipulations of the proposal, quoted supra, had been fulfilled as written, citing article 2460 of the Civil Code:

“Things, of which the buyer reserves to himself the view and trial, although the price be agreed on, are not sold, until the buyer be satisfied with the trial, which is a kind of suspensive condition of the sale.”

The case of De La Vergne Co. v. N. O. & Western R. R. Co., 51 La. Ann. 1733, 26 So. 455, in our opinion, is decisive of the issue before us as to whether the contract between defendant and intervener is a Louisiana contract, and whether the unpaid part of the purchase price is secured by a vendor’s lien and privilege.

On these questions the syllabus of that case reads:

“A contract made in New York, to be executed and consummated in Louisiana,— the acceptance of the thing forming the object of the contract being dependent upon a suspensive condition, to-wit, that after completion a stipulated test is to be' applied, which test is to be made, and can only be made, in Louisiana, — is a Louisiana contract, and the thing sold subject to the vendor’s privilege accorded by the Louisiana law.”

The contract under consideration by the court in the above-named case was signed in the state of New York, the domicile of both parties thereto. It was to be executed in Louisiana. It provided for the construction, erection, and delivery by the Delta Construction .Company (assignor of defendant) of two cotton compresses in Louisiana within a certain time and for a stipulated amount. The finished compresses, it was stipulated, were to respond favorably to certain tests set out .in the contract.

In the course of this opinion, Justice Blanchard, as the organ of the court, said:

“The contract for the presses, while made in New York, was to be executed and' consummated in Louisiana. The presses were to be erected and completed here, and there was a suspensive condition in the contract, viz. that after completion a test stipulated for in the contract was to be applied here, and the acceptance of the presses by defendant was dependent on their performance measuring up to the requirements of the test. The presses and their appurtenances remained the property of the plaintiff and at their risk until thus tested and accepted. Hence the delivery of the presses was to be accomplished here.
“The contract therefore must be held to be a Louisiana contract, and the presses subject to the lien accorded by our law to a vendor” — citing McIlvaine v. Legare et al., 36 La. Ann. 362; McLane v. Creditors, 47 La. Ann. 135-141, 16 So. 764; Overend v. Robinson, 10 La. Ann. 728; Duncan v. Helm, 22 La. Ann. 418; Maillard v. Nihoul, 21 La. Ann. 412; Carlin v. Gordy, 32 La. Ann. 1288; Scannell v. Beauvais, 38 La. Ann. 218; and Shakspeare v. Ware, 38 La. Ann. 574; Benjamin on Sales, secs. 308, 319, 651.

The syllabus in Reed McLane v. His Creditors, 47 La. Ann. 134, 16 So. 764, in part, reads:

“When it was in contemplation of both parties to a contract of sale that the property should reach the vendee in Louisiana, and while there in his possession a portion of the price would be still unpaid, it is fair to presume, in the absence of express stipulation to the contrary, that the vendee should reserve right of final acceptance for a reasonable time after its receipt, and that both parties should contract with reference to the operation of the laws of Louisiana.” .

It so happens that the goods purchased by McLane was machinery, and the seller (Curtis & Company) was domiciled at St. Louis, Mo.,' from which place most of the goods were shipped to the purchaser at Franklin, La.

In this case the question of most importance was whether .there was a vendor’s lien on the machinery sold to McLane. Counsel opposing the contention that the contract was a Louisiana contract, among other propositions, submitted to the court and argued the following:

That the machinery bought by McLane was delivered to him when it was delivered to the carrier at St. Louis, and was always thereafter at his risk and in his possession.

That the contract by the selling agent in Louisiana was merely executory, and was not an executed contract, until, under the terms of the contract, the goods were placed upon the cars at St. Louis.

That, when á sale is made in Louisiana of goods to be delivered in St. Louis, by the terms of the contract, the sale takes place in law at St. Louis, and the vendor has no privilege in Louisiana.

None of these contentions were upheld by the. court. The seller’s agent had full authority to bind his principal in respect to the sale of the machinery, and there were no suspensive conditions embodied in the contract. The court virtually held ■that as the goods, to the knowledge of both parties, were intended for use in Louisiana, and part of the price was. deferred until after the goods had reached the seller, the laws of Louisiana governed.

In Maillard v. Nihoul, 21 La. Ann. 412, the syllabus is as follows:

“In a sale of goods in New York to a merchant in New Orleans by samples presented by an agent in New Orleans, to be delivered in New Orleans in quality equal to the samples presented, the sale is not complete until the goods are delivered, and they are at the risk of the seller until delivery takes place.’’

The syllabus in Overend, Gurney & Co. v. Robinson & Olroyd et al., 10 La. Ann. 728, so far as pertinent, is:

“"Where the sale between the parties was, in New York, executory merely, with the intention that it should be consummated in New Orleans, and it was so consummated, the contract must be considered as completed in New Orleans, and the vendor’s privilege may be exercised according to the laws of Louisiana.”

With regard to contract of sale where the goods are shipped from the seller in one state to the buyer in another, the contract being executory in its nature, and containing stipulations or suspensive conditions which may not be finally discharged until after the delivery of goods to the purchaser, the laws, of the state where the conditions are fulfilled, the last act in consummation of the intention of the parties, will govern.

In the case at bar, the seller contracted with full knowledge that the purchased goods were destined for use in Louisiana; part of the purchase price was not to be paid until after the goods were delivered and installed; the notes representing the deferred part of .the price were executed in Louisiana. It was a part of the seller’s obligation to furnish an engineer to supervise in the installation of the goods sold and also furnish all labor for the ammonia work. After installation of goods, a test of three days “must” b0 made, and within this testing period the purchaser had the right to reject the plant. We do not think he had the right to arbitrarily reject the plant, but it is certain that, if the plant did not function as guaranteed, he would have had the right to. reject it, and thereafter it would have been the property of the seller.

We are informed in brief by' counsel for intervener that the judge of the lower court held the contract under consideration to be a Louisiana contract. We agree with that holding.

Having reached the conclusion that the contract between intervener and plaintiff was a Louisiana contract, and that a vendor’s lien and privilege secured the unpaid part of the purchase price of the goods sold, the next question for determination is whether such lien and privilege , has been lost to the seller as a consequence of the goods having been installed •and constituted into the refrigeration plant in the basement of defendant’s building, and attached thereto.

This question is. argued at length and ably by counsel of both sides orally and in briefs. It is not barren of difficulty. Much can, and has been, said for and against the loss of the privilege under such circumstances.

Plaintiff’s contention is that, the machinery and equipment, after being installed and being attached to defendant’s building, became immovable by destination, lost their identity, and therefore the privilege thereon in favor of the seller ceased to exist against it. It is argued that, where a, third person acquires mortgage rights against property, after becoming immovable by' destination, the law applicable thereto is not the same as respects, a case where the controversy as to whether the privilege has been lost is between original purchaser and seller. We do not agree with this position. So far as we are able to ascertain, the law is the same in both cases. The major parts of this machinery and equipment, in order to be utilized for the purposes of the plant, of which they became a part, were bolted to a concrete base, and by means of connecting pipes were attached to other pipes which ramified the entire building to conduct ice water to the offices, and which pipes were installed as the building itself was constructed. These pipes that carry water over the building are not involved in this controversy, and to remove the refrigeration plant and cooling system would not disturb them at all.

. We think this plant became an immovable by destination when attached to defendant’s building, but did not become a part of the building, and, had the building been. conventionally sold, or sold by the sheriff without a separate appraisement of the plant, the purchaser would have acquired title to the plant free of the privilege against it. Act No. 51 of 1912; Scovel v. Shadyside Co., 137 La. 918, 69 So. 745, Ann. Cas. 1917B, 178. Civ. Code, art. 468. As long as the identity of the property, which has become an immovable by destination, is preserved and it may be removed from the building, foundation, or other object to which it is attached without material injury thereto, it remains affected by the vendor’s lien, and may be seized and sold separately.

“Privileges on movable property shall exist without registration of same except in such cases as may be prescribed by law.” Constitution 1921, art. 19, sec. 19.

Civil. Code, art. 3227:

“He who has sold to another any movable property, which is not paid for, has a preference on the price of his property, over the other creditors of the purchaser, whether the sale was made on a credit or without, if the property still remains in the possession of the purchaser.”

In the well-considered case of Weiss v. Hudson Construction Co., 151 La. page 1, 91 So. 525, it was held that a vendor’s lien unrecorded was not primed by a recorded chattel mortgage placed on the property thereafter; that by the adoption of the Chattel Mortgage Law (Act No. 198-of 1918) the Legislature did not intend to avail itself of the permit reserved in the exception in the above-quoted article of the constitution.

It follows from this decision and others on same subject that, if property has become immovable by destination and its. identity is preserved, and it may be removed without material injury to building to which it is attached, and thereafter a chattel mortgage is placed on it, still the unrecorded vendor’s lien may be enforced against it to the prejudice of the chattel mortgage. A fortiori, it follows that a mortgage on the building wherein the immovable by destination is locatéd does not prime the unrecorded vendor’s lien.

The machinery and equipment involved in this suit consisted mainly of a tank, ammonia compressor, and two pumps. The other equipment included in the sale consisted of fittings, accessories, etc., needed in ^assembling and connecting the major parts and converting the whole into t the plant, a distinct unit. The evidence establishes that all of these major parts of-the plant may be removed from the building easily, but that a door or window would have to be enlarged to allow removal of the tank.

This, plant was installed quite a while after the defendant’s building was constructed, but it is not shown through what opening the tank was carried into the basement. It is shown that it. could not be taken apart and the parts removed without material injury to itself or the building.

We have reached the conclusion that, notwithstanding the fact that the plant in defendant’s building, composed of the machinery and equipment purchased from intervener, became an immovable by destination, yet its. integrity as a whole, and that of its parts, was preserved, and that its removal from the building may be accomplished with but slight injury or damage thereto.

These questions have been adjudicated by our courts in numerous decisions, some of which are not easily reconciled with others, while some have been decided by a divided court.

In the recent case of Receivership of Augusta Sugar Co., reported in 134 La. 971, 64 So. 870, it was held, by a divided court, that:

“A vendor’s privilege upon movables as machinery is not lost by their becoming immovables by destination, and it may be asserted so long as the machinery is complete in itself and can be removed without destruction. * * *
“A vacuum pan worth many thousands of dollars, around which was built a corrugated iron structure, does not lose its identity as a complete piece of machinery and become part of the building because it is necessary to open one of the walls to remove it, and hence the seller of the pan may assert his vendor’s privilege thereon as in the case of other complete articles of machinery.
“That the removal of machinery for sugar refining will disable a sugarhouse and prevent operation is no ground for the refusal of the right of the unpaid vendor to assert his privilege. * * *
. “Tanks used in connection with a sugar refinery and to store oil which were not in the sugarhouse, but were only connected therewith by pipes and can be removed without injury to. the refinery as a whole, are not immovables, and the unpaid seller of the tanks may assert his vendor’s privilege thereon.
“That it is necessary to cut the rivets and take apart iron tanks in order to facilitate removal will not prevent the unpaid seller from asserting his vendor’s privilege thereon.”

The syllabus of this case was not prepared by the court, but follows very closely the language used by the court in the opinion.

To the same effect is Carlin, Adm’r, v. Gordy, Sheriff, 32 La. Ann. 1285; Baldwin v. Sheriff, 47 La. Ann. 1466, 17 So. 883; Walburn-Swenson Co. v. Darrell, 49 La. Ann. 1044, 22; So. 310.

In the case of Pratt Engineering & Machine Co. v. Cecelia Sugar Co., 135 La. 179, 65 So. 100, wherein Chief Justice Monroe dissented and Justice O’Neil took no part, the syllabus, in part, reads as follows:

“The vendor’s privilege on sugar-house machinery continues to exist as« long as the machines remain in possession of the purchaser and their species have not been changed by incorporation with the building.”

In this opinion the court at page 183 of Pratt Eng. & Machine Co. v. Cecelia Sugar Co., 135 La., 65 So. 100, 102, says:

“The defense that the vendor’s privilege has been extinguished by the alleged immobilization of the engine and crusher is without merit. The evidence shows that these articles of machinery may be readily removed without injury to themselves or any material damage to the plant. In Carlin v. Gordy, 32 La. Ann. 1288, the court, speaking through Fenner, J., said:
‘The privileges resting on movables are, in some cases, affected- by the changes which may take place in -the nature or destination of the things. But such changes must be so radical as to create a new species of thing and destroy that species which originally existed — as, to use the illustration of Cujas, when a pine or cypress log is converted into a ship, or when wool is- converted into a garment, or when marble is made into a statue.’ ”

This case reaffirms the decision in thé matter of Receivership of Augusta Sugar Co., 134 La. 971, 64 So. 870, supra.

In Monroe Building & Loan Ass’n v. Johnston, Sheriff, 51 La. Ann. '470, 25 So. 383, the syllabus is: '

“The unpaid vendor of machinery has the right to seize and sell the machinery, although it may have been attached to, and has become part of, the immovable that is mortgaged.” Carlin v. Gordy, 32 La. Ann. 1285; Walburn-Swenson Co. v. Darrell, 49 La. Ann. 10,44, 22 So. 310.

In this case the person who held the vendor’s lien against the machinery sold by- it undertook to enforce its rights and sell the property affected by the privilege. The plaintiff, who held a mortgage on the sawmill, of which the unpaid for machinery had become a part, undertook to prevent the sale of the machinery by injunction, ( but the court ruled adversely to their contention.

In Bank of Winnfield v. Olla State Bank, 11 La. App. 640, 124 So. 621, 623, the court through Judge Odom said:

“But the vendor’s lien attaches only so long as the thing remains the property of -the vendee and in his possession. Civil Code, art. 3227. The property here in controversy remained in the possession of Paulette up to the day it was sold to the plaintiff bank and the vendor’s lien attached to it up to that date. That is tr,ue, even though Paulette did attach it to the leas’e and make it a part thereof- Dy destination, because the property retained its identity and could have been removed without material damage to the lease itself, and it has been specifically held that the vendor’s privilege exists on movables though impressed with the fictitious character of immovables by destination. * * * The. defendant bank, we think, could have pursued this property under its- vendor’s lien at any time previous to its sale by the plaintiff bank.”

In that .case the effect of the decision was that the vendor’s lien was lost because the property affected thereby was allowed sold confusedly in a mass with other property.

For the reasons herein assigned, the judgment appealed from is annulled, reversed, and set aside, and it is now ordered, adjudged, and decreed that intervener have and recover judgment against defendant, Medical Arts Building Co., Inc., for $629.69, with 6 per cent interest from February 1, 1929, and 10 per cent additional thereon as attorneys fees; and that intervener have and recover judgment against defendant and plaintiff recognizing the vendor’s lien and privilege on' the refrigeration and cooling plant and the parts and parcels thereof in the basement of defendant’s office building at intersection of Travis street with Louisiana street in the city of Shreveport, La., and on the proceeds of the sale thereof now in the hands of the sheriff of Caddo parish, which lien and privilege is hereby recognized and decreed to be superior in rank and effect to the mortgage of plaintiff; and the sheriff of Caddo parish is hereby ordered to pay over said proceeds of sale to intervener.

It is further ordered, adjudged, and decreed that the costs of -tne intervention and third opposition be paid by plaintiff and defendant.


author: WEBB, J.

text:
    No. 3971
    Second Circuit
    TERREBONNE v. ABERNATHY
    (July 14, 1931. Opinion and Decree.)
    (October 1, 1931. Rehearing Refused.)
    C. L. Wise, of Morgan City, attorney for plaintiff, appellee.
    C. A. Blanchard, of Morgan City, attorney for defendant, appellant.
   WEBB, J.

Plaintiff, R. J. Terrebonne, under a contract with the Louisiana Highway Commission, constructed a highway in the parish of Concordia; and defendant, O. L. Abernathy, claiming that Terrebonne was indebted to him in the sum of one thousand dollars for services rendered in constructing the highway, filed and had a sworn statement of the amount claimed recorded in the office of the recorder of mortgages of said parish, and notice of same served on the Louisiana Highway Commission, asserting the right to be paid by preference from the amount due plaintiff, as provided by Act No. 224 of 1918.

In the present action plaintiff alleged that he was not indebted to defendant in any amount whatsoever and that the affidavit had been filed and recorded by defendant merely for the purpose of harassing and annoying plaintiff; that the Louisiana Highway Commission was ready to settle with plaintiff for the balance due on the contract, but was prevented from doing so by reason of the action of defendant, and plaintiff prayed for judgment against defendant ordering the affidavit canceled and erased from the mortgage records.

Defendant answered admitting that he filed and had the affidavit recorded, and alleged in substance that plaintiff had employed him to superintend the work of constructing the road at a salary of $200 per month, and that the amount claimed in the affidavit was due for five months’ salary; and he prayed for judgment against plaintiff accordingly.

On trial, judgment was rendered in favor of plaintiff, rejecting defendant’s de- ■ mand, and ordering the cancelation and erasure of the affidavit from the mortgage records; and defendant appeals.

The evidence shows that there was an agreement between the parties in which defendant was to superintend the work which was to be financed by plaintiff, including the personal expenses of defendant, who was to receive one-half of the profits. It is conceded that there were nqt any profits, and while the testimony of the parties is conflicting relative to whether plaintiff agreed to pay defendant any fixed amount for his personal expenses, the record shows that during the period defendant was engaged in the work that the payrolls submitted by him included amounts for his personal expenses which were paid by plaintiff, and there was not any demand made for payment of other expenses by defendant until some time after defendant left the work, and there was not any proof showing that defendant had incurred other expenses. The circumstances, we think, support plaintiff’s contention, and from our review of the record we are satisfied that there was not any agreement that defendant would be paid any specific amount for personal expenses, and that plaintiff paid defendant all expenses incurred by hinj, and that plaintiff was not indebted to defendant in any amount.

The judgment is therefore affirmed at defendant’s cost.


author: McGREGOR, J.

text:
    No. 4005
    Second Circuit
    BAKER ET AL. v. COLBERT ET AL.
    (July 14, 1931. Opinion and Decree.)
    (October 1, 1931. Rehearing Refused.)
    Isaac Wahlder, of Alexandria, attorney for plaintiffs, appellees.
    Thornton, Gist & Richey, of Alexandria, attorneys for defendants, appellants.
   McGREGOR, J.

Roberta Baker, the widow of Charlie Baker, brings this suit for herself and for and in behalf of her three minor children, issue of her marriage with her deceased husband. On May 31, 1930, and for several weeks prior thereto, the deceased, Charlie Baker, was in the employ of the defendant, D. W. Colbert, in road construction work between Dry Prong and Verda in Grant parish. The deceased and all of the crew qn this particular job were living at the time at Colfax in said Grant parish, and it was the custom for all of them except one or two to meet at a certain filling station in Colfax every morning to be conveyed free of charge in one of defendant’s trucks to the particular point along the road where they were engaged in the said work, and to be returned to Colfax every night by the same means of transportation. Between Colfax and Dry Prong, where defendant was working his crew of men under his contract, there is a stream of water known as Bayou Darrow, and on Friday, May 30, this bayou began to be overflowed with backwater from Red river. Defendant’s truck, which usually conveyed his men from Colfax to Dry Prong, made the trip safely Friday morning, but by Friday evening the water had risen so high it was not considered safe to drive it qver the bayou. Consequently, the crew was transported in the truck to the north side of the bayou were it was stored for the night. The rest of the trip home was made by these men in the automobile of Boss ' Bannister, defendant’s foreman, who undertook to drive his car through the water in spite of its depth. The car went dead in the water and the negroes got out and pushed it to dry land and the trip home was then successfully finished. On the next morning, Saturday, May 31, according to instructions, the crew assembled at the usual time and place and prepared to go to their work in Bannister’s car instead of the defendant’s truck, as was their custom. The entire crew, including Charlie Baker, the deceased, loaded into the car and were driven to the south side of the bayou. The water had risen so high it was impossible to drive the car across, so it was parked on that side and Bannister had tbe men conveyed over in a ferryboat that was operating at the point for the convenience of the public. When they reached the north side of the stream, they loaded into the truck that had been parked there the evening before, and were driven to Dry Prong where they worked all day, Saturday, May 31st. Near the close of the day Colbert,. the defendant, brought checks to pay off all the men for two weeks’ time and left them with his foreman, Boss Bannister, to be delivered to the men at the end of the day’s work. He then left the scene to return to Colfax, but as he left he secured from Bannister permission to drive his car from the south side of Bayou Darrow into Colfax with the promise that he would drive it back to the edge of the water to meet him, Bannister, and his men in time to take them hqme after the day’s work was ended. When Bannister secured passage for his men on the ferryboat on Saturday morning, he made arrangements with the ferryman to meet them again that evening tq transport them back to the south side of the stream, and told him that he would at that time pay for both trips across.

Late Saturday evening, after he had delivered their checks fqr two weeks’ work, Boss Bannister, defendant’s foreman, had all the men loaded into defendant’s truck and they were driven to the north edge of the stream. The truck was parked or stored nearby and the men were then loaded into the ferryboat to be transferred to the south or Colfax side of the bayou, which by that time had risen to a great height. According to his agreement, the defendant was on the south side with Bannister’s car waiting to carry them on to Colfax. The waters were so turbulent and the load so heavy, the boat capsized in midstream and three men, including Charlie Baker, plaintiffs’ husband and father; and Boss Bannister, defendant’s foreman, were drowned. Defendant bore all the expense in connection ' with the death of Charlie Baker, but refused to pay any compensation to the widow for herself or for her three minor children. As a consequence of this refusal tq pay any compensation on account of the death' of deceased, the plaintiffs brought this suit for 65 per cent of $15 per week for a period of three hundred weeks. The lower court rendered judgment in their favor as prayed for, and the defendant has appealed.

OPINION

The law qf this case is plain and undisputed, so that questions of fact only are involved. The contentions of the plaintiff may be said to be fourfpld.

(1) That there was an express or implied contract of, employment of the deceased Charlie Baker and of all of the rest of the men working with defendant on this job, which included and carried with it the obligation of the defendant to transport or convey him and them to and from their labor.

(2) That under this contract the men, including the deceased Charlie Baker, husband and father of .the plaintiffs, were actually conveyed tq and from their work for a period of about three weeks immediately prior to the date of the death of the deceased.

(3) Thai at the time of the death of the deceased he was being conveyed home by the defendant through his agent and foreman, in accordance with the terms of the contract of employment.

(4)That as an emergency means of transportation over a part of the route from the scene of work to the home of plaintiffs' deceased husband and father, the defendant’s foreman, Boss Bannister, secured -the use of a ferryboat to transport the deceased and the others across Bayou Darrow, and that he exercised control over them while they were being transported over this turbulent stream.

The fact of the transportation, the means of conveyance, the manner of the death of the deceased, and the amount of the wages, $15 per week, paid to the deceased, are all admitted by the defendant, but it is his contention and defense that the transportation was a matter of accommodation for the convenience of the men, without any obligation on the part of the defendant and that, therefore, there is no liability on his part for any accident or death that may have occurred as a consequence thereof.

ANALYSIS °OF THE TESTIMONY

(1) E. Spencer, a witness for the defendant, testified that free transportation was furnished by the defendant to all the men, and that they were all given to understand that they were to meet the truck for that purpose at a certain place in Colfax each morning.

H. L. Lewis, another witness for the defendant, testified that there was a definite agreement with the defendant that all of the men should meet at a certain filling station in Colfax and be conveyed free of charge in defendant’s truck from Colfax to the scene of work every morning, and that they were to be returned in the same way at the end of each day.

Earnest Wiggins, a witness for the plaintiff, testified that the defendant conveyed the laborers, including the deceased Baker, free of charge to and from their work every day, and that that was the only way of getting to the work that any of them had.

Henry Armstead, a witness for the plaintiff, testified' that he asked the defendant for a job, and that he was told to be at the filling station and that he would be taken to and from the work in defendant’s truck. He is very definite and positive in his testimony that the defendant agreed to convey all of the men to and from their work, and that he actually complied with this agreement.

D. "W. Colbert, the defendant himself, testified that the deceased worked for him first on a job at Tioga and that he took him in his car personally each day from his home in Alexandria. He testified further that without any special contract Baker continued with him on the job at Dry Prong, where he was working at the time of his death. He states positively that his truck went to Colfax every day and night and that the men rode it to and from work, but that it was a loan or a matter of accommodation. In the course of his testimony along this line, he did not swear positively that he had no agreement with the men to transport them to and from their work, as is shown from the following extract from his testimony when he was . being examined on the trial by his own attorneys.

“Q. Armstead and Wiggins both stated that they had an agreement with you about driving them out there?
“A. I never had an agreement with any of them about transporting them out there.
“Q. Are you positive about that? ■
“A. No, I wouldn’t swear to it.
“Q. But you are up there swearing?
“A. I am not certain.
“Q. You can’t remember having such an agreement?
“A. It was not my policy. If I said anything to any of them I merely said ‘the truck is coming in at night and going out in the morning; catch it if you want to.’ That’s as far as I intended going.”

Defendant knew that the men had been riding his truck and that they had no other way to go out to the work. The evidence is conclusive that the truck made the trip each day for the sole purpose of transporting the men. It was not necessary to take it that distance each day for any other purpose. Defendant insists that he considered the use of his truck as an accommodation to the men. He states that he had purchased a tent for their accommodation, and that he was insisting on their using it so as to obviate the necessity of taking the truck in each day in order to transport them. This would indicate that he was giving this transportation as a matter of right, and not as an accommodation. He wanted to substitute the tent for the transportation as being less expensive to him.

(2) On the question of the fact of the transportation of defendant’s employees to and from their' work, counsel for defendant in their brief say:

“Every morning at about six or six-thirty o’clock one of the defendant’s employees would get the truck and take it to a certain filling station in Colfax for gas and oil, and some of the defendant’s employees who lived in Colfax, would go to this filling station and board this truck and ride on it out to the point where their labors were to be performed, and in the evening after their labors were over, were permitted to ride back on the truck.
“Such had been the custom for a period of about three weeks when the back water from Red River, which had reached a state of very high water in the meantime, reached a point on the Jefferson Highway on the north side of Bayou Darrow. The back water came up over the road for the first time on Friday afternoon, and the truck of the defendant which had been coming all the way to Colfax on Friday evening, was stor.ed on the north side or the opposite side of the Bayou from the town of Oolfax.”

This statement of counsel is an absolute admission of the fact of the transportation, and it corroborates the contention of the plaintiff to a’ large extent. Counsel are very earnest in their contention that this was a pure matter of accommodation, but the fact remains that without the transportation the defendant could not have obtained the laborers. The testimony stated above is very persuasive of the correctness■ of plaintiffs’ contention. All the witnesses testify with varying degrees of positiveness that there was a definite agreement for the free transportation, and that without it none of the laborers could have been secured. Defendant makes much of the fact that the laborers’ time of service began only from the time they actually began work each day on the job. This is not important and proves nothing.

(3) On the day of the fatal disaster, the deceased and all of defendant’s crew of men working on the Dry Prong job were conveyed in defendant’s truck from the scene of the work to the north bank of Bayou Darrow. The truck was parked or stored nearby and under the direction of Boss Bannister, defendant’s foreman, they were all loaded into the ferryboat to be crossed over the stream. Several of the men were afraid, but when the defendant’s foreman, Boss Bannister, ordered them to do so they all obeyed and got on the boat. Bannister had conducted them across this same stream that morning in this same boat and had engaged it then for the same purpose that evening. The boat was a conveyance procured and provided by the defendant through his agent and foreman just as much as was the truck which they rode •to the water’s edge. The' men were ■ in charge of' defendant’s foreman, who was directing their every movement. Defendant’s own witness,. H. L. Lewis, was .very positive in his testimony that Bannister was in control of the men and directing their movements on the boat. Earnest Wiggins and Henry Armstead, witnesses for the plaintiffs, both testified along the same • line. ■ Furthermore, the evidence is clear that the defendant himself instructed Bannister to bring the men acro.ss on the ferryboat, and told him that he would meet them on the south or Colfax side, and, . just as .the catastrophe was happening defendant actually drove up in Bannister’s car as he said he would do.

(4) For three weeks the deceased and the other men were conveyed back and forth in defendant’s truck. When the high water came, in order to continue the work, it became necessary to supplement the means of transportation with the ferryboat. This was done by Bannister, defendant’s foreman. Transportation was provided on each side of the water in the form of a truck on one side and an automobile on the other. Over and across the water the deceased was transported that morning by means of a ferryboat, and defendant’s agent and foreman made arrangements to. have him conveyed back in the same way that evening. If deceased had lost his life while the truck was being conveyed in the ferryboat (if it had been), it could certainly be said that he lost it while being transported by the defendant. If an attempt had been made to drive the truck through the water over the bridge and deceased had lost his life by the truck being washed from the bridge, it certainly would have been in the course of being transported over the stream by the defendant.

The law with reference to the liability of an employer under the Employers’ Liability Act (Act No. 20 of 1914, as amended) in cases where an employee is injured or loses his life, while being transported to or from his work, is so well settled that it is not necessary to do more than state it. Both plaintiff and defendant cite and rely upon the case of Taylor v. Gulf Refining Co. of Louisiana, 11 La. App. 270, 122 So. 162, 164, and quote extensively from it. The following rule quoted in that case as being the clearest and most comprehensive expression of the law on the point involved reads as follows:

“When the employee is injured while riding to or from his work in a conveyance provided by the employer, after the real beginning of the employment, in compliance with one of the implied or express terms of the contract of employment for the use of the employees, and is one which the employees are required, or as a matter of right are permitted to use, by virtue of the contract, the injury may be held' to have arisen out of and in "the course of the employment so as to entitle an employee to compensation.”

This same rule of law is expressed in slightly different language in 10 A. L. R. 169 in the following words:

“It is generally held that where transportation is furnished by an employer, as an incident of the employment, an injury suffered by the employee going or coming in the vehicle so furnished by the employer, and under his control, arises out' of and is within the course of the employment, within the meaning of Workmen’s Compensation Acts.”

Applying the law as above stated to the evidence adduced on the trial of the ease, the irresistible conclusion reached by us is that the deceased, Charlie Baker, lost his life while riding from his work in a conveyance provided by the defendant through his agent and foreman, Boss Bannister, after the real beginning of his employment, in compliance with the implied and express terms of his contract of employment. The conveyance was one which the deceased was both permitted and required to use by virtue of the contract. For three weeks the defendant had recognized the necessity as well as the obligation of transporting his men to and from their work every day. The preponderance of the testimony conclusively proves that it was not only an implied, but an express, contract to this effect. Since the defendant was thus under obligation to transport his men, including the deceased, while everything was normal, it was also his duty tq meet any emergency that might arise and take the necessary steps therefor. He appears to have recognized this obligation, for with his knowledge and consent, his foreman, Boss Bannister, made thg necessary arrangements with the ferryman to convey the men over the swollen Bayou Darrow. Defendant cannot avoid his liability by saying that all this transportation was a matter of accommodation on his part. It was not. If the men had had other definite arrangements of transportation and if, as a matter of convenience, defendant had permitted the deceased occasionally to ride with him or on some of his trucks, then it might be said with some degree of plausibility that it was a matter of accommodation that he was riding defendant’s truck and the ferry provided by the defendant. But such is not the ease. It was the unvarying rule and not an exception for the deceased to go to and from his work in the conveyance provided by the defendant for that purpose.

In the case of Taylor v. Gulf Refining Co. of Louisiana, cited and relied upon by both plaintiffs and defendant, the plaintiff failed to recover for the very good reason that, when the deceased lost his life by drowning, he was using a conveyance other than the one provided by the defendant. Such a state of facts does not exist in the present case. In support of their contention, counsel for defendant have "cited a number of cases.

Erickson v. St. Paul City Railway Co., 141 Minn. 166, 169 N.W. 532. In this case the defendant had a crew of men engaged in maintaining, altering, and repairing its power lines in the city of St. Paul. The men lived in various parts of the city and came to work and returned to their hqmes in any manner that they chose. The defendant did not convey them to their work, nor return them to their homes. The plaintiff in the case, on one occasion after the day’s work was over, got on the defendant’s truck to ride it in the direction of his honie because it happened to be going that way. A collision occurred, and he was injured. The court very correctly held that the transportation was purely a matter of accommodation, and that the injury was not received in the course of his employment. The case is not like the one under consideration in any particular and cannot, therefore, be used as authority in reaching a decision.

Counsel for defendant rely strongly upon the case of Nesbitt v. Twin City Forge & Foundry Co., 145 Minn. 286, 177 N. "W. 131, 132, 10 A. L. R. 165, and quote from it as follows:

“It was involved in Podgorski v. Kerwin ri44 Minn. 313, 175 N. W. 694], supra, where the court said: ‘It is a well-settled general rule that an injury suffered by an employee in going tq or returning from the employer’s premises where the work of his employment is carried on, except in special instances not here involved, does not arise out of his employment so as to entitle him tq compensation.’
“Upon this general rule some courts have ingrafted the following exception: ‘When an' employee is injured while riding to his place of work in a conveyance provided by the employer, after the real beginning of the employment, in compliance with qne of the implied or express terms of the contract of employment, for the mere use of the employees, and is one which they are required, or, as a matter of right, are permitted, to use by virtue of that contract, the injury may be held to have arisen out of and in the course of the employment so as to entitle the employee to compensation.’ ”

The facts of that case are stated by the court as follows:

“Defendant was making shells for the United States government at Stillwater, in this state, carrying on its business in two separate buildings, respectively known as the ‘upper’ and the ‘lower’ plant. A large number of men were employed in each building. Plaintiff worked at the upper plant, as a furnace feeder. He worked eight hours per day, was paid by the hour, and received pay from the time when he ‘punched in’ on' the time clock in the building where he worked. The . upper plant was located a mile or more from the end of the nearest street car line. The men employed there objected to walking from the car line to the plant when they went to work. To satisfy them, defendant put in service two of its automobile freight trucks, running them from the upper plant to the car line to carry its employees to and from their work. It was part of his contract of employment, that plaintiff, in common with other employees, should have the right to ride gratis on these trucks in going to and returning from his work. While thus riding on his way to his place of work, but before reaching it, and before the beginning of the period for which he received wages, he was injured as the result of the negligence of the driver of the truck, and brought this action to recover the general damages.”

The defendant, Twin City Forge & Foundry Co., sought to have the case disposed of under the Employers’ Liability Act, but the court refused to dp so, and approved a verdict under the general law because of the defendant’s negligence. The facts of the case are on all fours with those of the case at bar, and for that reason counsel would have us depend on it as authority to sustain their contention in the present case. But the decision turned on a' provision in the Compensation Act of Minnesota, which reads as follows:

“Not to cover workmen except while engaged in, on, or about the premises where their services are being performed, or where their service requires their presence as a part of such service at the time of the injury, and during the hours of service as such workmen." (Boldface type ours.) Minn. St. 1927, sec. 4326 (j).

In answer to the arguments of defendant’s counsel in that case, in their effort to have the case decided under the Compensation Act (the exact opposite of what counsel in the case at bar are urging), the court said:

“Defendant refers us to decisions of other .courts that fairly sustain its contention that plaintiff’s injuries were ''caused by accident arising out of and in the course of his employment.
“Donovan’s Case, 217 Mass. 76, 104 N. E. 431, Ann. Cas. 1915C, 778, 4 N. C. C. A. 549, Littler v. George A. Fuller Co., 223 N. Y. 369, 119 N. E. 554, and Scalia v. American Sumatra Tobacco Co., 93 Conn. 82, 105 A. 346, are the leading American cases and are directly in point. The weight to be given them is lessened by the fact that they were decided under statutes which do not contain the qualifying provision found in our statute and set oiit above.” (Boldface type ours.)

It will be noted that this case turned on a special provision of the Minnesota Compensation Act which is not contained in our Employers’ Liability Act and which is not contained in any of the other cases cited. Therefore, it cannot be used as authority in support of the defendant’s contention. On the contrary, a close • reading of the case shows that if it were not for this special provision of the Minnesota Compensation Act the judgment would have been the other way, and the injury would have been held to have been received in the course of the plaintiff’s employment. The facts of the case are practically identical with those of the case at bar, and, instead of being authority against the contention of the plaintiff in the present case, it really supports the same.

The Donovan case referred to above is found in 217 Mass. 76, 104 N. E. 431, Ann. Cas. 1915C, 778. The facts in the case are stated by the court as follows:

“The contest here is between Donovan, an employee of one McGreevey, and an insurance company which had insured Mc-Greevey under the provisions of St. 1911, c. 751, part 5, sec. 3, as amended by St. 1912, c. 571, sec. 17. The point in dispute is whether Donovan’s injury arose out of and in the course of his employment, within the meaning of part 2, sec. 1, of the act of 1911 above cited. See McNicol’s Case, 215 Mass. 497, 102 N. E. 697 [L. R. A. 1916A, 306]. This must be decided upon the facts found by the Industrial Accident Board in its review of- the report of the arbitration committee. St. 1911 c. 751, part 3, secs. 5, 10, 16, as amended by St. 1912, c. 571, secs. 10, 12-15.
“Donovan was employed by McGreevey in cleaning out catch-basins' at a place about two miles from his home. It had been and was his custom, in common with other employees and with the knowledge and consent of his employer, to ride to and from the vicinity of the catch-basins in a wagon furnished by his employer, the wagon meeting the employees on the street and the employer being notified if any of the employees failed to report for work at the beginning of the day. The wagon was at the service of the employees at the end of the day, and they might ride in it back to the employer’s barn if they wished. Donovan, was injured while so riding in thife wagon at the end of his day’s work, and the board has found that his transportation on the wagon was ‘incidental to his employment,’ and ‘therefore’ arose ‘out of and in the course of said employment.’ The language of this last finding is a little obscure; but we treat it, as both counsel and also-the superior court have treated it, as being an inference that Donovan’s injury arose out of and in the course of his employment, drawn from the other facts stated, including the fact that the transportation was ‘incidental to his employment.’ The question to be decided is therefore whether this inference could be drawn from those facts; for the facts themselves now cannot be inquired into. St. 1912, c. 571, see. 14.”

In the course of its opinion, in sustaining the judgment of the lower court in favor of the plaintiff, the Supreme Judicial Court of Massachusetts said:

“The finding of the Industrial Accident Board that Donovan’s transportation was ‘incidental to his employment’ fairly means in the connection in which it was used, that it was one of the incidents of his employment, that it was an accessory, collateral or subsidiary part of his contract of employment, something added to the principal part of that contract as a minor, but none the less a real feature or detail of the contract. Whatever has been uniformly doné in the execution of such a contract by both of the parties to it well may be regarded as having been adopted by them as one of its terms. Especially is this so where none of the provisions of the contract have been shown by- either party, but everything is left to be inferred from their conduct.”

Notwithstanding the fact that counsel for defendant strenuously urge that all the transportation of the deceased by the defendant was a matter of accommodation pure and simple, near the close of their brief they make the following statement:

“The only facts that are proven in this ease are that prior to the high water backing over the Jefferson Highway at a point about two miles from Colfax, this deceased had been riding on defendant’s truck from Colfax to the road job in the morning and back in the afternoon. It is clear that there was no express agreement or contract that the plaintiff should go ride on said truck between the two points. However, had there been no high water, and this deceased had been killed while riding on this truck to and from his work, we are frank to state that we believfc the Court would be justified in holding that such an accident was within the exceptions to the general rule hereinabove stated, for the reason that this defendant knew that the deceased was riding this truck and knew that the distance to the job was some twelve or fifteen miles, and that deceased could not reasonably go there and back without some means of transportation, either furnished by himself or by the defendant. However, since Bayou Darrow was only about two miles from the business portion of the town of Colfax, and the impediment to the transportation by said truck was at a point so near the town of Colfax, and o.n account of said impediment it was impossible for the truck on which deceased had been riding, to travel along the Jefferson Highway to a point nearer than two miles from Colfax, can it be said that there was any implied agreement, or any obligation whatsoever, on the part of this defendant to provide other transportation to these employees, the short distance of two miles beyond which it was impossible for the defendant’s truck to go?”

• We consider the ferryboat just as much a means of transportation, provided by the defendant, as the truck. The fact that the water to be crossed was only two miles from Colfax did not relieve the defendant of his obligation to transfer the deceased and the rest of the crew all the way from the scene of work to their home at Colfax.

For the reasons assigned, the judgment appealed from is affirmed; the defendant to pay all -the costs of both courts.


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    No. 4011
    Second Circuit
    STATE OF LA. EX REL. WIMBERLY v. BARHAM ET AL.
    (April 9, 1931. Opinion and Decree.)
    (May 20, 1931. Rehearing Refused.)
    (June 22, 1931. Writ of Certiorari and Review Granted by Supreme Court.)
    (No Syllabus)

    Todd, Todd & Fraser, of Bastrop, and George Gunby, of Monroe, attorneys for plaintiff, appellee.
    Madison & Madison, of Monroe, attorneys for defendants, appellants.
   WEBB, J.

The issues presented in the above cause are identical with the issues presented in the cause of State ex rel. J. T. White v. Henry Mason, 17 La. App. 504, 133 So. 809, this day decided, and for the reasons assigned in that cause, the judgment in the present cause is affirmed at appellant’s cost.


author: DREW, J.

text:
    No. 4047
    Second Circuit
    ABBOTT v. DUNCAN
    (July 14, 1931. Opinion and Decree.)
    (October 1, 1931. Rehearing Refused.)
    (November 3, 1931. Writ of Certiorari and Review Refused by-Supreme Court.)
    Hawthorn, Stafford & Pitts, of Alexandria, attorneys for plaintiff, appellee.
    George J. Ginsberg, of Alexandria, attorney for defendant, appellant.
   DREW, J.

Plaintiff sued for $1731.20, alleged to be due as accrued salary for services performed for defendant as an architectural draftsman. Defendant is an architect in Alexandria, Louisiana; and the period of employment for which salary is alleged to be due is from November 26, 1928, to April 3, 1930. The only difference between plaintiff and defendant is the amount of plaintiff’s weekly salary during this period.

Plaintiff, previous to the time for which he is suing for salary, had worked for defendant in the same capacity at a salary of $50 per week. In the early fall of 1928, plaintiff left defendant’s employ, either of his own accord or because of a falling off in defendant’s business, and went to Florida where he remained for one or two months. While there, he wrote defendant expressing a desire to come back to work for him, to which letter defendant replied, offering him a position at $25 per week, until such time as business was better, when his salary would be raised. Plaintiff returned and began work at $25 per week on November 26, 1928, and continued in defendant’s employ until April 3, 1930. Plaintiff contends that at the end of the second week of his employment his salary was raised to $50 per week, and continued at that salary until August 3, 1929, at which time, due to the falling off in- business, defendant cut the salaries of all his employees — plaintiff’s salary being reduced to $40 per week — and that he continued to work for $40 per week until his employment ceased on April 3, 1930.

It is admitted that during the period of plaintiff’s employment he received from defendant the total sum of $1,492.50. Other than the salary claimed, plaintiff claims $64.70, growing out of a loan transaction wherein plaintiff borrowed some money from a loan company and gave to defendant the sum of $45.65. Defendant agreed to pay all expenses of the loan, which amounted to $19.05. There is very little dispute over this item and on trial it developed that defendant had made the last payment of $13 to the loan company, thereby reducing his indebtedness to plaintiff for this item from $64.70 to $51.70, the correct amount as allowed by the lower court. Plaintiff borrowed this money at the suggestion of defendant, due to defendant not being financially able at the time to pay to plaintiff moneys he then owed him.

Plaintiff swears positively to the increase in salary; that at the end of the second week, defendant’s Wife, in the presence of her husband, told him that his old s'alary of $50 per week had again been put into effect as of that week. He offers in corroboration the testimony of a fellow-employee, Mr. Foster, who testified that at the time the salaries of the force were cut, defendant, in notifying him . that his salary would be reduced from $43 per week to $40 per week, told him that he was also reducing plaintiff’s salary to $40 per week. He further offered the testimony of another employee who was engaged after plaintiff had begun work, who testified that his salary was $38 per week and that he was given to understand that he was receiving less salary than the other members of the force. Another corroborating fact is that from November 26, 1928, until April 6, 1929 — a period of nineteen weeks — at the very beginning of plaintiff’s employment, he was paid $576, exactly $101 more than he should have received at a salary of $25 per week. This is very strong corroboration, due to the fact that the evidence clearly shows that defendant did not keep any of his help paid up. He was delinquent in paying full salary to nearly all of his employees.

Defendant and his wife, who was bookkeeper, stenographer, and you might say, office manager, both positively deny that any increase was ever made in plaintiff’s salary; that he began work at $25 per week and continued to work at that salary until his employment ended. They say that the business in 1927 amounted to more than $30,000; in 1928, about $23,-000; and in 1929, less than $10,000. This last testimony is offered to show that instead of the business increasing, there was a constant falling off in business. The record, however, discloses that the amount of money taken in by an architect does not necessarily mean that the work in the office has fallen qff. In dull times, there is a big effort made to promote jobs which require much labor and time in preparing plans, specifications, etc., and it is shown that in promotion work about one job out of a hundred ever materializes. It can be readily seen that the evidence is very conflicting.

. The judge of the lower court found for plaintiff. It is a case involving purely and simply a question of fact and the veracity of the witnesses would necessarily play a big part in determining the true facts in the case. The judge of the lower court was better qualified to pass on the veracity of the witnesses than we are. It is truly a case where the principle of law so often announced by this court must be invoked — that is, that the finding of the lower court on a question of fact, unless manifestly erroneous, will not be disturbed. In this case, we cannot say that the finding of the lower court was manifestly erroneous; therefore, the judgment must be affirmed.

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


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    No. 4039
    Second Circuit
    DUNN MERCANTILE CO., INC., v. HUDSON ET AL.
    (July 14, 1931. Opinion and Decree.)
    (October 1, 1931. Rehearing Refused.)
    (November 3, 1931. Writ of Certiorari and Review Refused by Supreme Court.)

      Tobin R. Hodge, of Rayville, attorney for plaintiff, appellee.
    Geo. Wesley Smith, of Rayville, attorney for intervener, appellant.
    W. D. Cotton, of Rayville, attorney for defendant.
   WEBB, J.

On March 12, 1930, plaintiff, Dunn Mercantile Company, Inc., entered into a contract with defendant, R. L. Hudson, to furnish him with supplies to be used in cultivating a crop on lands leased by Hudson from C. T. Payne. Hudson gave plaintiff a note for $600, representing the value of supplies agreed to be furnished, bearing 8 per cent per annum interest from maturity, October 1, 1930, and stipulating 10 per cent as attorney’s fees in event of non-payment; and in order to secure the payment of the note, Hudson, acting under the provisions of Act No. 66 of 1874, as amended by Act No. 44 of 1882 and Act No. 93 of 1922, pledged the future crop to plaintiff.

Hudson' had given C. T. Payne a rent note for $1,700, and on September 23, 1930, Payne instituted suit against Hudson for the balance due on the note, or $1,610, asserting a lessor’s privilege and right of pledge on certain movable property owned by Hudson, which included the crop grown on the leased premises, and obtained a writ of provisional seizure, under which there was seized, together with other property subject to the lessor’s privilege and right of pledge, twenty-three bales of cotton which had been stored by Hudson in a public warehouse, for which negotiable warehouse receipts had been issued, under the provisions of Act No. 221 of 1908, commonly known as the “Uniform Warehouse Receipt Act.”

Pending trial of the suit, an agreement was had between the parties, in which it was agreed that Hudson should sell and transfer the warehouse receipts, representing the cotton stored in the warehouse to S. _M. Bulley & Sons, a partnership dealing in cotton; and in pursuance of the agreement, Hudson sold and delivered the warehouse receipts to Bulley & Sons for the price of $1,276.59, which amount, together with other funds sufficient to cover the amount due on the note sued upon, was paid by Hudson to Payne, who released the seizure.

Following the release of the seizure, plaintiff on November 1, 1930, instituted the present suit against Hudson to recover judgment on the note first hereinabove referred to, with recognition of the privilege and pledge on the crop grown by Hudson on the leased premises, and obtained a writ of sequestration under which there was seized some of the crop on the leased premises, estimated as three bales of cotton, and the twenty-three bales of cotton stored in the public warehouse. S. M. Bulley & Sons intervened in the suit asserting ownership of the cotton stored in the warehouse by virtue of its purchase of the warehouse receipts, pleading that the privilege of plaintiff on the cotton was divested by the sale and that plaintiff was estopped to assert any privilege thereon.

On trial judgment was rendered in favor of plaintiff against Hudson for the full amount claimed, together with interest, attorney’s fees, and costs, sustaining the writ of sequestration, with recognition of the privilege in favor of the plaintiff on the property seized for the payment of the judgment; and in favor of intervener recognizing it as the owner of the' cotton stored in the warehouse, subject, however, to the privilege recognized thereon in favor of plaintiff, and intervener appeals.

Passing for the present the effect of the sale of the warehouse receipts, representing the cotton in question, with the consent of the lessor, whose privilege on the cotton was superior to the privilege of plaintiff (Act No. 89 of 1886 and Act No. 66 of 1874), for the purpose of paying the lessor’s privilege, on the right of plaintiff, we are of the opinion that the right or privilege of plaintiff on the cotton was not affected merely by the transfer of the warehouse receipts.

In National Bank of Commerce v. Sullivan, 117 La. 163, 41 ■ So. 480, the court said that the privilege granted to the furnisher of supplies on the crop under the provisions of article 3217, Civil Code, which is. inferior in rank to the privilege resulting from the pledge of the crop under Act No. 66 of 1874, follows the crop after it is severed from the soil into the hands of a purchaser who buys directly from the planter; and although the statement has been criticized in subsequent decisions (Brooklyn Cooperage Co. v. Cora Planting Co. 137 La. 807, 69 So. 195; and Union Seed & Fertilizer Co. v. Supple’s Sons, 139 La. 692, 71 So. 949), the rule stated in National Bank of Commerce v. Sullivan was followed in Purity Feed Mills Co. v. Moore, 152. La. 393, 93 So. 196, in which the court held that the privilege of the furnisher of supplies on a crop was superior to the rights of the holder of the warehouse receipts issued under the provisions of Act No. 221 of 1908.

Under the ruling in Purity Feed Mills v. Moore, supra, we are of the opinion that the mere fact that the cotton was deposited in a public warehouse and the receipts transferred to intervener did not prevent the privilege of plaintiff, the furnisher of supplies, from following the cotton into the hands of intervener, and while the evidence shows that plaintiff knew of the seizure made by. the lessor, and that plaintiff was advised that the cotton in question would be sold, the evidence did not show that plaintiff knew that Hudson was removing the crop and storing same in the public warehouse and receiving negotiable warehouse receipts therefor; and it cannot be implied that plaintiff consented to the action of Hudson and was estopped from asserting his privilege against intervener, the holder of the warehouse receipts.

Considering, however, the fact that the cotton in question was sold with the consent of the lessor, whose privilege thereon was superior to ‘ the privilege of plaintiff, for the purpose of paying the superior privilege, and that the lessor received the proceeds of the sale, plaintiff could not have had any cause of complaint, in the absence of proof of injury.

There it. not any suggestion that the price paid by intervener was less than the value of the cotton, and it must be conceded that if Payne had pressed the suit to judgment and sold the crop subject to the respective privileges, the lessor’s privilege would have been the first -to be paid, and the record indicates that if such course had been taken there would not have been anything left, after the payment of the lessor’s privilege and cost, to be applied on the privilege of plaintiff, furnisher of supplies.

It is evident that plaintiff did not sustain any injury, and did not have any equitable cause of complaint (Hobgood v. Schuler, 44 La. Ann. 537, 10 So. 812), and it is also evident that the lessor had the legal right to demand that the cotton in question be sold and to enforce his privilege thereon without regard to the inferior privilege of plaintiff (Montijo v. Montijo, 37 La. Ann. 703), and we are of the opinion that under the evidence showing that the cotton was sold with the consent of th'e lessee and lessor, and the proceeds applied to the payment of the lessor’s privilege which was superior to the privilege of plaintiff, furnisher of supplies, should be given the same effect as would have been the case if the lessor’s privilege and pledge had been judicially recognized, and the sale made to enforce same, and that) the cotton in the hands of the purchaser, intervener, cannot be subjected to plaintiff’s claim.

It is therefore ordered that the judgment appealed from be amended and that intervener have judgment decreeing him to be the owner of the cotton represented by the warehouse receipts, free and clear of any right or privilege asserted against same by •plaintiff, and as thus amended the judgment is affirmed, plaintiff to pay all cost of intervention and cost of appeal.

McGREGOR, J., recused.