author: ELLIOTT, J.

text:
    No. 6754
    First Circuit Appeal
    ETIENNE THIBODEAUX v. JAKE FORTNER
    (October 8, 1924, Opinion and Decree)

      (Syllabus by the Editor.)

    1. Louisiana Digest — Elections -by the People — Par. 81, 83.
    Where twenty-seven witnesses, testified that they voted for the plaintiff at. Maxie and only thirteen votes were. credited to him, still the judges will not order the box from Maxie opened and the vote recounted where it is shown that the box was never delivered to the clerk of court nor to any of his deputies and it could have been tampered with, if anybody had been disposed to do so.
    2. — Louisiana Digest — Elections by the People — Par. 81.
    The testimony of twenty-seven witnesses uncorroborated that they voted for plaintiff at Maxie where the returns showed thirteen votes for plaintiff is insufficient evidence to set aside the election.
    Appeal from the Parish of Acadia. Hon. Robt. B. Butler, Judge.
    This is a suit to set aside an election. There* was judgment for defendant and plaintiff appealed.
    Judgment affirmed.
    Chappuis & Chappuis, of Crowley, attorneys for plaintiff, appellant.
    P. S. Pugh, of Crowley, and John L. Kennedy, of Lafayette, attorneys for defendant, appellee.
   ELLIOTT, J.

This is a contest concerning the Democratic nomination for member of the School Board in the primary election held September 9, 1924, in the second ward of the parish of Acadia, between Etienne Thibodeaux and Jake Fortner and in which Jake Fortner is returned as the nominee.

The record contains some -200 pages and we have examined it as best we could in the time Which we have for doing so and writing this opinion and have examined the briefs of the attorneys. We find it only necessary to consider the attack made by the plaintiff, Thibodeaux, on the box at Maxie. The dispute concerning this box is largely on legal grounds, and if the vote at this box stands as tabulated and returned by the commissioners, the defendant, Fortner, has a clear majority over the plaintiff rendering unimportant the vote contested in the box at Robert’s Cove and the two votes at Branch.

The plaintiff alleges concerning the box at Maxie that the commissioners have returned as cast for plaintiff but thirteen votes and ninety-one for defendant, whereas in truth and in fact there were twenty-seven votes cast for him at said box and but seventy-seven for Fortner. He charges that the return of the commissioners as to this- box is false, corrupt, illegal and fraudulent.

If this charge is established by legal and competent proof this box must be disregarded and not counted, and if that be done Thibodeaux is the nominee.

The plaintiff supports his charges by twenty-seven witnesses who testified that they had voted for him at Maxie; thirteen, of course, voted for him, as he is credited with that number, but if the election commissioners honestly and truly discharged their duties as such, fourteen of them did not. The case hinges on the legal effect and weight of this evidence, and the safe care and guarding of the box after it was carried to the courthouse in Crowley. The plaintiff did his utmost to have the box opened and the vote recounted, but the district judge refused to have it done for the reasons stated in his opinion and accepted the return of the commissioners. We will consider his ruling on these two questions. The evidence shows that at the close of the election the box was closed, tally sheets and returns placed in it, and the box was then sealed. This having been done, Ivy M. Guidry, one of the commissioners, took it and carried it alone to Crowley, the parish seat. As just stated, nobody was with him • from the time he took the box at Maxie until he reached Crowley about 10 •olclock at night. On his way to Crowley with the box in his automobile he. stopped at his father’s residence and ate a lunch; while eating the box was in the automobile with no one near, it, and .it does not appear that it was under his observation,,but he was only absent a short time and returned to his automobile and drove on to Crowley, reaching there after office hours. The clerk’s office had been closed for the night and the clerk of court and his -deputies were all gone. Mr. Guidry in the company of Mr. Andrus, the parish jailer, placed the box in a room which the wit-nesses speak of as the record room on the second floor of the courthouse. The office, of the clerk of court was on the -first floor of the courthouse and Mr. Andrus, the jailer, did not have any connection with the clerk’s office, and did not represent the clerk of court officially in receiving the box. According to the evidence the room in which the box was placed. Was locked by Mr. Andrus or some other party, perhaps the janitor, during the night, -and it was locked on the night of the 9th, after the box was placed in it, but it was unlocked each morning about 6 o’clock and left open during the day. During the day anybody went into this room that wished to go and nobody observed them, and as far as we can see by the testimony nobody gave any particular attention to this box from the time it was placed in this room until it was taken in charge by an order of the court in this case, a period of about five days. It was never delivered to the clerk of court nor to any of his deputies and it could have been tampered with, if anybody had been- disposed to do so. Under the jurisprudence of this state, Marrero vs. Middleton, 131 La. 432, 59 South. 863; Koepp vs. Crawford, 138 La. 852, 70 South. 858; Reeves vs. Dean, 138 La. 896, 70 South. 871; Perez vs. Cognovitch, 156 La. 331, 100 South. 444; Advance Sheets, Southern Reporter, refusing to open this box and recount the ’votes was correct. The able counsel for the plaintiff, Thibodeaux, in his carefully prepared brief and argument at the bar, urges and has cited authorities from other states; he contends that the language in these cases decided by the Supreme Court of that we ought not follow these decisions our state is a little stronger than the primary election law requires. We feel that it is our duty to follow them as the correct interpretation of the law of this state.

The plaintiff contends that the testimony of twenty-seven witnesses that they had voted for him impeaches these returns and that the box should be opened and the ballots recounted because of their impeaching evidence. This kind of evidence is very weak and unsatisfactory in an election case. No election would be safe if the official acts of officers appointed under the law and solemnly sworn to hold an election honestly and fairly can be in this way set aside and the election rendered null and void.

The evidence of these witnesses was properly received and if it had been properly supported and corroborated and if the boxes had been delivered to the clerk of court and properly guarded we would no doubt come to a different conclusion concerning the evidence. But as it is, we do not think that the judge of the lower court erred in refusing to open the box and have the vote recounted because of this testimony. We have considered his opinion very carefully and concur with him in almost all he says and in every conclusion at which he arrives. We are of the opinion that the judgment appealed from is correct and should be affirmed. We have noticed the other contentions of the parties, but it is not necessary to rule on .them.

It is therefore ordered, adjudged and decreed that the judgment appealed from be and the same is hereby affirmed. The plaintiff and appellant to pay the costs of both courts.


source: Caselaw Access Project

author: CROW, J.

license: Public Domain

text:
    No. 1979
    Second Circuit Appeal
    VIRGIL REED v. HERSCHEL McGINTY
    (October 31, 1924, Opinion and Decree)

      (Syllabus by the Court.)

    1. Louisiana Digest — Mortgages—Par. 4.
    A purported act of sale of real property, coupled with right of redemption, will be construed to be mortgage to secure an indebtedness when the facts and attendant circumstances clearly indicate the pignorative character of the contract.
    2. Louisiana Digest — Mortgages—Par. 4.
    Where the alleged price of the sale of immovable property was vile and inadequate, and where the purported vendee failed to take possession of the prop: erty and permitted the purported ven- ' dor to remain in undisturbed possession of the property for a number of years without. the payment by him of any rents, and where the vendee received payments on the indebtedness which constituted the alleged consideration for the sale and receipted for same, the transaction will be construed to be one of security only by which the property stands hypothecated to secure the payment of the indebtedness due the purported vendee by the vendor.
    3. Louisiana Digest — Fraud—Par. 9, 10; Fraudulent Conveyances, Par. 117.
    It is not necessary for plaintiff to allege fraud, error or mistake in order for him to prove that an act purporting to be one of sale with right- of redemption is in truth and in fact a mortgage to secure an indebtedness, particularly so when resort is had to answers elicited from the defendant to interrogatories on facts and articles.
    4. Louisiana Digest — Mortgages—Par. 56.
    Where an act of sale with right of redemption is construed to be in reality a mortgage to secure a particular indebtedness, the mortgage could not, by implication, be extended so as to include other and subsequent indebtedness -of the apparent vendor to the apparent vendee; for to permit such would be to eke out a mortgage by parol or by mere application, and mortgages are so very stricti juris that they'cannot be extended by impii.cation to secure any other obligation than that expressly mentioned in the act. ' ' .
    5. Louisiana Digest — 'Mortgages—Par. 84, 85.
    Where a purported sale with right of redemption is held to be a mortgage to secure an indebtedness, the hypothecary right of the apparent vendee on or against the property covered by the act will be reserved.
    Appeal from the Fifth Judicial District Court, Parish of Jackson, Hon. R. W. Oglesby, Judge.
    This is a' suit to have an act of sale of real estate to be declared in reality a mortgage. Defendant filed an exception of no cause of action and pleas of ten years and five years’ prescription. There was judgment partly in favor of plaintiff, ordering that the plaintiff should pay all costs o of suit.
    Plaintiff appealed.
    Judgment amended and defendant' ordered to pay costs of suit.
    T. S. Price, attorney for plaintiff and appellant.
    . John H. Matthews, attorney for defendant and appellee.
   CROW, J.

On January 13th, 1913, plaintiff signed and executed an act which purports to be an absolute deed of sale to defendant of eighty acres of land situated 'in Jackson parish, and described as the. W/2 of SE% of Section 33, Township 14 North, Range 4 West, for a recited cash consideration of $208.34. On'January 24th, 1923, plaintiff filed this suit, in which he alleged that although the ‘said act purports to be one of sale, it in reality •was given and intended as' a mortgage, or an act- to secure an indebtedness due to defendant by plaintiff. He further alleged that 'he is the owner of the land, and- has been in continuous and . undisturbed . possession thereof since .the said purported deed was .executed. He also alleged that the price was wholly inadequate; and that he had executed his one certain promissory note to and in favor of defendant for the sum of $208.34, with eight per cent per annum interest from January 1st, 1913, to secure the payment whereof the said pretended act of sale was executed.

Plaintiff next alleged that he had made payments on said note as follows: $30.00, January 8th, 1916; $30.00, Oct. 11th, 1916; $33.70, Oct. 15th, 1917; $20.87, Jan. 24th, 1920. He annexed to his petition receipts signed by the defendant for the several amounts. He finally alleged that the land was well worth $800.00 at the time of the said pretended sale, and that he had offered to pay defendant the amount of the note, with accrued interest, but that defendant refused to sign a deed of retrocession to plaintiff.

Plaintiff propounded interrogatories on facts and articles, to defendant, and prayed that on final trial, the ■ said purported act of sale be decreed to be a mortgage, or security for the aforesaid indebtedness represented by the aforesaid note, and that upon the payment to defendant of the balance due thereof, defendant’s said purported and pretended act of sale be canceled and erased from the records of Jackson parish.

Defendant filed an exception of no cause of action and pleas of ten years and five years prescription. The exception and pleas were tried in limine and overruled by the trial judge.

The exception of no cause of action was based in the ground that there was no allegation of fraud, mistake or error, and that, therefore, no evidence would be admissible to vary or contradict the recitals of the deed, since, he contended, there was no written act evidencing anything to the contrary. That contention is, however, disposed of when we recall that plaintiff had propounded interrogatories on facts and articles to defendant, the answers to whiGh could and might take the place of the necessary written evidence. It is too well settled in the jurisprudence of this' State to require citation of authoritiy that a party can evoke answers to interrogatories on facts and articles, which can he used in evidence in lieu of written evidence, which may he lacking. In fact, there are two ways by which the varity or reality of a written act pertaining to real property can be assailed, viz: By the production of a counter letter, and by answers, elicited from a party to the act, to interrogatories on facts and articles.

In addition to the answers to the interrogatories which plaintiff sought to elicit from defendant, he annexed to his petition receipts signed by the defendant, which he alleged were for money paid to defendant on the said note to secure which he alleged the “pretended” deed was given. He also annexed to his petition letters from defendant in which he insisted on payments being made by plaintiff on the amount due him by defendant, and which pertained to the aforesaid indebtedness.

The plea of ten years prescription is based on Article 2568 of the Civil Code, which says:

“The right of redemption cannot be reserved for a time exceeding ten years. If a term, exceeding that, has been stipulated in the agreement, it shall be reduced to the term of ten years.”

Of course, the latter plea was interposed by defendant on the assumption that the court would probably construe the purported deed to evidence a sale, with the right of redemption. This, we do not find to be the case. It is true that defendant in his answers to the written interrogatories on facts and articles, says that he had a ’ Verbal agreement with • plaintiff when the deed was executed whereby plaintiff was to have a retrocession of the property from defendant, provided plaintiff paid the amount of the aforesaid note, interest .and taxes, within three years from the time Of the transaction. However, the preponderance of the evidence shows that such was not the real agreement between the parties. In addition to other testimony to the contrary, it is a fact, very important in construing the real intention of the parties to the deed, that plaintiff continued to remain in actual possession of the property, and frequently, to the apparent knowledge. of defendant, cut, removed and sold timber from the land. Some of the timber was manufactured into cross ties by plaintiff, and sold and delivered, in the manufactured state, almost, if not actually, in the presence of defendant.

. Another circumstance which militates against the contention that the transaction was^ intended as a sale — and a sale with right of redemption is one form of saléis that during all the period from January 13th, 1913, to January,. 1922, no rent was paid to or demanded by defendant. Then, too, on March 15th, 1920, defendant took a new note from plaintiff for $498.67, which he said covered the full amount due him on the original note for $208.34, interest and taxes. Across the face of the larger note apparently in defendant’s own handwriting, is this notation:

“This note is amt. due to l-l-2o and I am to deed him (plaintiff) 80 acres land when paid with interest.
(Signed) H. MeGinty.”

In answer to interrogatories on facts and articles, defendant said that when he took the new note, he agreed with plaintiff to deed the land back to plaintiff if plaintiff should pay the full amount of the note by January 1st, 1921. In that respect, he is contradicted by his own written statement across the face of the note.' That notation says that defendant is. to deed plaintiff eighty acres of land when the amount of the note, with interest, is paid. The note was not make payable on January 1st, 1921, the time when defendant says it was to be paid if he should deed the land back to plaintiff, but was made payable one day after date. The language of the notation indicates that the intention of both parties to the act was that the land should simply stand as security for the •payment of the debt due defendant by plaintiff. Then there was no sale with reservation of right of redemption; but the •act of purported sale was intended to be a mere pignorative contract by which the land was to stand as security for the payment of the original note.

The plea of ten years prescription is based on the fact that more than ten years 'had elapsed after the first note was executed. when this suit was instituted. However, pretermitting the conclusion above expressed that the act was never intended to be a sale .with right or redemption, and ad'mitting, for the sake of argument, that the 'transaction was originally intended' to be a sale with right of redemption, defend'ant is in no position to urge the prescrip'tion of ten years under Article 2568 of the Civil Code, because he introduces in evidence the later note of date March 15th, 1920, on the face of which he had written the stipulation that he was to deed to plaintiff the land in question when the note is :paid. That was, neither a renewal of the old obligation to' reconvey the land, or else it operated an interruption of the prescription provided by said Article of the Code. Ten years will not have elapsed since the ‘last note was given till March 15th, 1930. Hence, in either view the plea of ten years prescription was properly overruled..

Defendant also filed a plea of estoppel, based-on the allegation that plaintiff' had “rented,." leased and hired the land described in' his petition” from defendant “each and every year since the year 1913”, and especially did he so rent and lease the land for the year 1922, for the consideration of $125.00 for which he executed his promissory note payable to the order of defendant ,and in which was the stipulation that the note was given to cover the rent of the said land for said year. In support of that plea, defendant filed in evidence the record in suit numbered 2167 on the docket of this court, and styled Herschel McGinty vs. Virgil Reed, which record contained said note.

The note above referred to is found in the record and contains the stipulation: This is for rent on place I am living on for 1922 and is owned by H. McGinty”. The statement appears in the handwriting" of Mr. McGinty, or his agent Mr. Gatlin, and appears to have been signed by Virgil Reed with his mark. Virgil Reed, the plaintiff in the case at bar testifies that he did not sign the note, and has no knowledge that such a rent note was given by him. Regardless, however, of whether he signed it or not, we are of the opinion that he, being unable to read or write to any appreciable extent, did not understand that he was recognizing defendant as the owner of the land. He evidently meant, if he signed the note, that defendant had a deed to the land, or an act which purported to be a deed to the land. In view of all the testimony in the case, and in view of the conduct of the plaintiff and the defendant with reference to the entire transaction between them, we are constrained to hold that the estoppel is not well founded, and that it was properly overruled.

On the trial of the merits, the trial Judge rendered the following judgment:

“It is ordered, adjudged and decreed that the deed from' plaintiff, Virgil Reed, to defendant, Herschel McGinty, dated the 13th day of • January, 1913, and recorded in Book No. ‘Q’ at pages 313, and 314 of the Conveyance Records of Jackson Parish, ednéss 'of-plaintiff, Virgil Reed, to defendant, ness of; plaintiff, Virgil Reed, to defendant, Herschel" McGinty.”
“It' 'is' further ordered, adjudged and decreed- -that the indebtedness of the said Virgil'Reed due and owing to said Herschel McGinty, which said deed and act secures, is the ’ sum of five hundred fifty-eight and 21/100 ($558.21) dollars, including interest up to May 7th, 1923; and that said amount shall bear eight per cent annum interest from May 7th, 1923 until paid.”
“It is further ordered, adjudged and decreed that in the event plaintiff, Virgil Reed, pays .to defendant, Herschel McGinty, the full amount of five hundred fifty-eight and 21/100 ($558.21) dollars, with eight per cent per annum interest thereon from May 7th, 1923, until paid, within thirty days -from the date of this judgment, then and in, that event, the said deed and act of sale from said Virgil Reed to said Herschel McGinty, dated January 13th 1913, and recorded in Book ‘Q’ at pages 313 and 314 of the Conveyance Records of Jackson Parish, Louisiana, is hereby set aside, revoked,'rescinded and annulled, and ordered cancelled -and erased from the said Conveyance Records ■ and thereby plaintiff, Virgil Reed, becomes the owner of the E% of SE% of Section 33, Township 14 North, rtange 4 West, situated in Jackson Parish, .Louisiana, free from any lien, condition, burden or encumbrance.”
“It is further ordered, adjudged and decreed that in the event plaintiff, Virgil Reed; does not pay to defendant, Herschel McGinty, the full amount of five hundred fifty-eight and 21/100 ($558.21) dollars, with eight per cent per annum interest thereon from May 7th, 1923 until paid, within thirty days from the date of this judgment, then and in that event, the deed and act of sale from- the said Virgil Reed to said Herschel McGinty, dated the 13th day of. January, 1913, and recorded in Book ‘Q’ at pages 313 and 314 of the Conveyance Records of Jackson Parish, Louisiana, thereby becomes absolute, and thereby perfects title- and ownership of the said E% of SE% of Section 33, Township 14 North," Range 4 West, situated in Jackson Parish, Louisiana, is then deemed and decreed to be vested in defendant, Herschel McGinty,free from all condition, liens, burdens and encumbrances; and at the same time, the said hereinabove written, then, becomes cancelled and estinguished.”
“It is further ordered, adjudged and decreed that plaintiff, Virgil Reed, pay all costs of this suit.”
“This rendered May 7th, 1923; Read and signed in open court on this the 11th day of May, A. D„ 1923.
(Signed) R. W. Oglesby
Judge of Fifth District Court.”

We think the learned Judge of the lower court was correct in holding that the act of purported sale was intended to be a mere mortgage to secure an indebtness. The evidence in the record amply justifies that conclusion. In fact, it is obvious that neither party ever regarded the transaction other than one whereby plaintiff had mortgaged his land to defendant to secure the payment of the note, simultaneously executed for $208.34, with interest as therein stipulated.

For some nine or ten years, defendant permitted plaintiff to live on, use and cultivate the land, and to cut and remove valuable timber therefrom, without raising his voice in protest against the acts of plaintiff. All during that period of time, defendant continued to hold the note of plaintiff for $208.34, the exact amount stipulated in the purported deed as the consideration for the purported sale and purchase of the land. In fact, defendant admits in his answers to the interrogatories on facts and articles, that there was no other consideration for the purported sale than the amount represented by the note. As a matter of fact, defendant collected payments from plaintiff at various and sundry times, and gave plaintiff’s note credit therefor. • He explains his attitude in that regard by saying that there was a varbal understanding with Reed that if he paid the note within three years from its date, he would reconvey the land to him. But defendant continued long after the three years had elapsed to permit the plaintiff to live on and use the land, without the payment of the rent, and continued to accept payments on the note and to acknowledge receipt therefor. Such conduct on the part of defendant was inconsistent with his present position that the transaction was a real sale to him of the property in question.

Furthermore, plaintiff, while still holding on to the note (renewal note) is claiming the land also. In other words he appears in the inequitable attitude of claiming both. the thing and the price. He claims the land, but he has not offered to return the note or cancel it. It appears reasonable that if Virgil Reed had thought that he was considering or admitting that defendant was the owner of the land, he would have demanded the return or cancellation of the note.

Another thing which is indicative of the pignorative character of the purported deed, is the inadequacy of the price. The preponderance of the evidence shows very clearly that the land in question was worth more than twice the amount expressed in the deed as the consideration for the alleged sale. It has been frequently held by our Supreme Court that the conveyance of real property in the form of a salé does not vest the ownership in the apparent buyer, It the deed was really intended by both parties to be a mortgage, and such intention is usually proved by showing that the price was vile or inadequate, and that the apparent vendor remained in possession without the payment of rent., (See Parmer vs, Mangham, 31 La. Ann. 348; Crozier vs. Ragan, 38 La. Ann. 154; Howe vs. Powell, 40 La. Ann. 310, 4 South. 450.

On March 1st, 1918, defendant wrote, signed and. gave plaintiff a document reading as follows:

‘‘Reed, of Virgil Reed on his note of $208.34, with int. from Jan. 1, 1913, the following payments: Jan. 8, 1916 — $30.00; Oct. .11, 1916 — $30.00; Oct. 15th, 1917— $33.70.
This March 1, 1918.
(Signed) H. MeGinty.”

That document clearly indicates that defendant was recognizing plaintiff' as the real owner of the land, and himself as a mere mortgagee. Otherwise, he would not have continued to hold the original' note and accept payments thereon and .receipt for same.

Defendant also signed another receipt for $20.87, on Jan. 24, 1920, stating in the receipt that the money was received “on land”. Defendant admits in his testimony that the plaintiff is entitled'to credit for the latter amount.

As hereinabove stated, defendant on March 15, 1920, had plaintiff to sign a new note in favor of the former fpr the sum of $498.67. This note seems to have included the amount due on the original note to January 1, 1920, and probably taxes, which may have been paid by defendant for plaintiff. Defendant testified that at that time, he let plaintiff have some more money which was included in the latter note.

The trial Judge, after decreeing that the apparent deed was an act to • secure an indebtedness of plaintiff to defendant, then decreed that the amount of said indebtedness was $558.21, including interest up to the date of the judgment, May 7, 1923, and that said amount should bear interest at eight per cent per annum from date of the judgment. Clearly, there is error in that part of the judgment, for, after including interest up to the date of the judgment in the principal amount, he allowed interest on the total sum, which is patently the allowing of compound interest, which is prohibited by.our law.

The decree next recites that if plaintiff pays the last named amount, . with interest as aforesaid, within thirty days irom the date of .the judgment, the said deed shall be ‘“set aside, revoked, rescined and annulled, and ordered cancelled and erased from the said Conveyance Records”, etc. It then recites that on plaintiff’s failure to pay said amount within thirty days from date, of the judgment, the defendant becomes the absolute owner of the land in question, and the said deed is held to convey perfect title to defendant to the land in question, “free from all conditions, liens burdens or encubrances; and at the same timé, the said indebtedness of said Yirgil Reed to said Herschel McGinty, as is above written becomes cancelled and extinguished.”

However, equitable the two latter portions of the decree may appear, it is apparent to us that those portions of the judgment- are erroneous. In the first place, if the act of purported sale - was once a mortgage,- it will always be a mortgage, and its - character as such could not be changed by the mere failure of the plaintiff to pay the indebtedness which the mortgage was intended to secure. The plain remedy of the defendant in such event would be to bring foreclosure proceedings, and have his hypothecary right recognized on the land, and it seized and sold to satisfy the debt. Defendant does not pray, even in the alternative, that his right to proceed against the property be recognized and enforced. That right, however, should be reserved to him. Evidently the decree goes beyond the prayer of defendant’s answer.

In the second place, we think the court below erred in computing the amount due by plaintiff, and for which the land stands hypothecated by virtue of the purported deed. The trial Judge evidently took the latter note, of date March 15, 1920, as the basis for his computation. That was error; for, since the deed was in reality a mortgage to secure a particular indebtedness, the mortgage could not, by implication, be extended so as to include other and subsequent indebtedness of the plaintiff to the defendant. To permit such would be tt> eke out a mortgage by parol or by mere implication. Mortgages are so far stricti .juris that they cannot be extended by implication to secure any other obligation than that expressly mentioned, such as advances of money subsequently made, as done in the case at bar. Schadel vs. Alexander St. Martin, 11 La. Ann. 175; Durrive vs. Key, 20 La. Ann. 154; Flower & King vs. J. W. O’Bannon, 43 La. Ann. 1042, 10 South. 376; Leger vs. Leger, 118 La. 322, 42 South. 951.

It appears that although plaintiff signed the latter note of March 14, 1920, he .did not sign any sort of additional act of mortgage to secure the full amount of said note. Evidently, therefore, the mortgage could not be extended to include all the latter note. It also appears that plaintiff has had to pay $125.00, with interest, under forced sale of his property seized under a writ of fieri facias in execution of a judgment for the above amount, which should be credited on th'e note, of date March 15, 1920.

Although the trial Judge rendered judgment partly in favor of plaintiff, he decreed that plaintiff should pay all costs of the suit. That was also error, and will be corrected by us in our decree herein.

To avoid coñfusion, we shall recast- the entire decree of the lower court.

For the reasons assigned, it is ordered, adjudged and decreed that the judgment of the lower court, be, and it is, hereby amended and ' recast so as • to read as follows: It is ordered, adjudged and decreed that there be judgment in favor of plaintiff, decreeing the purported act of sale from plaintiff to defendant, of date January 13, 1913, and recorded in Book ‘Q’ at pages 313 and 314 of the Cohveyancé Records of Jackson Parish, Louisiana, to be an act to secure an indebtedness of $208.34, with eight per cent per annum from January 1, 1913, from plaintiff to defendant, less credits of $30.00 paid Jan. 8, 1916; $30.00 paid Oct. 11, 1916; $33.70 paid Oct. 15, 1917, and $20.87 paid Jan. 24, 1920; and that when the amount of said note, with all accrued interest, less the credits above indicated, shall have been paid, the purported deed aforesaid be cancelled and erased from the records of Jackson Parish.

It is further ordered, adjudged and decreed that defendant’s hypothecary right to proceed against the land described in said purported deed, to-wit: the E% of SE% of Section 33, Township 14 North, Range 4 West, be reserved, as well as his right any balance which may be due on the note to proceed in an ordinary action to collect of date March 15, 1920, after the amount due on the original note as herein determined, shall have been paid, and reserving to plaintiff the right to claim credit on the note of date March 15, 1920, for the $125.00 and interest he may have paid under the judgment in suit No. 2167, entitled Herschel MeGinty vs. Yirgil Reed, of the docket of this court.

And it is further ordered, adjudged and decreed that the defendant pay all costs of both courts.


author: PORTER, J.

text:
    No. 2137
    Second Circuit Appeal
    MATTHEW NELSON v. W. K. HENDERSON IRON WORKS & SUPPLY CO.
    (October 31, 1924, Opinion and Decree)
    (January 12, 1925, Rehearing Refused)

      (Syllabus by the Editor.)

    1. Louisiana Digest — Master and Servant — ■ Par. 160.
    Under the Employers’ Liability Act No. 20 of 1914, Section 8, Subsection 2 (g), a father can recover compensation for the death of his son if he was dependent on him to any extent. This is true even though the father, through error, signed a sworn statement that he was not dependent on his son, if the proof shows that he was dependent to any extent.
    (The recent amendment is Act 216 of 1924.)
    Appeal from the Parish of Caddo, Hon. E. P. Mills, Judge.
    This is a suit to recover compensation under Employers’ Liability Act No. 20 of 1914. The sole question is one of dependency of a father on his minor son, under Section 8, Subsection 2 (g).
    There was judgment for defendant and plaintiff appealed.
    Judgment reversed.
    M. D. Dimitry, of Shreveport, attorney for plaintiff, appellant.
    Barnette & Roberts, of Shreveport, attorneys for defendants, appellees.
   PORTER, J.

The plaintiff sued for compensation under the Workmen’s Compensation Law of this state for the death of his minor son, who was killed by an explosion while he was employed by the defendant company and in the course of his employment. The material facts disclosed by the testimony are undisputed.

At the time of the fatal accident the deceased was 20 years old. His father,, the plaintiff, is a negro preacher, and is, the pastor of two country negro churches, which paid him, both together, a salary of $40.00 per month. At the time of the death of his son he was living in Shreveport in a rented house, and his family consisted of himself; his wife, the stepmother of. the deceased; a daughter, 18 years old, and the deceased. The daughter was at school at the Lincoln Parish College, Grambling, La., and her brother, the deceased, contributed at least $20.00 per month to defray her expenses there. He also paid the same amount for hoard at his father’s house.

Shortly after the death of plaintiff’s son, the representatives of the indemnity company, which is the real defendant, secured from plaintiff the following statement:

“State of Louisiana,
“Parish of Caddo.
“Before me, the undersigned authority, personally came and appeared, Matthew Nelson, father of Ed Aubry Nelson, a resident of Shreveport, La., .who, being by me first duly sworn, deposes and says that his occupation is that of minister of the Gospel, and that he and his family were not dependent upon his son, Ed Aubry Nelson, for a livelihood.
(Signed) “MATTHEW NELSON.
“Sworn to and subscribed before me at Shreveport, La.', on this, the 13th day of October,’ 1923.
“LAWRENCE G. PUGH,
“Notary Public.”

Admittedly, the sole question is:

Was the plaintiff at the time of sthe death of his son “actually dependent upon him to any extent”?

We might say, to begin with, that we attach but little importance to the statement signed by the plaintiff. Eve,n if he had been properly advised as to his rights —which he was not — his statement was no more than a conclusion of law on his part, and is not binding upon him or the court. He testifies that he did not understand what he had signed, and that he signed it for the purpose of getting a settlement from the company. He says that after he signed the paper, the gentleman who prepared it — a representative of the indemnity company — told him that he would hear from the company in.a few days. And we think his testimony as to his purpose is true; otherwise, we should be compelled to believe that he intended to renounce, without any consideration whatever, his claim against the company. This is something that common experience teaches us rarely, if ever, happens.. Moreover, if hfe was given any information as to his rights, it is more than probable that such information was incorrect. We say this because of the testimony of defendant’s witness, Mr. Shipley, the local agent of the company that carried the insurance. He and Mr. Hupp, of New Orleans, the head of the claim department, who did not testify, were present when the document was signed, after it had been prepared by Mr. Hupp. Mr. Shipley says that he did not explain to plaintiff what dependency meant further than asking him if he looked to his son for support, which question plaintiff answered. in the negative. And Mr. Shipley, who, to his credit it may be said, is an unusually fair and candid witness, shows by his testimony that he did not himself have a very clear understanding of the matter. He does admit, however, substantially, that the phrase above quoted ought to be interpreted in the light of the facts in each case, and in this we fully agree.

Parents by the act of • marrying contract the obligation of supporting, maintaining and educating their children, and children are under the reciprocal obligation of maintaining their parents when in need. C. C. Arts. 227 and 229.

We • do not understand that the Code intends that the discharge of this reciprocal obligation depends upon a condition of actual poverty or penury .on the part of the parents or children, and we are quite sure that no such harsh or literal sense is contemplated by the Workmen’s Compensation Act.

Leaving aside the twenty dollars a month board bill, which helped to defray the plaintiff’s household expenses, the sum which the son contributed to the education of his minor sister discharged a légal and moral obligation resting upon his ■father and thus made it possible for the latter to devote more of his meagre salary to the support of himself and the rest of his family. It was a substantial, if indirect, contribution by the son to the support of his father. • '

The father’s total income was forty dollars a month. He lived in Shreveport, in a rented house, and even if he had' been required to support himself alone this amount would not have been too much. T'o say that he did not need the assistance furnished by the son is preposterous, and if he needed it, he was dependent upon the son to some extent.

This court was the first appellate tribunal in this state to interpret the phase, “actually dependent to any extent.” In the case of Hand et al. vs. Gulf Refining Co., No. 1534 in our docket, where the plaintiff, owning a farm, live stock and implements worth $7000.00, out of debt, and with a good credit, was held to be dependent upon his minor son to some extent and entitled to recover for his death. In that case, we said:

“We find that his deceased son had assisted him a short time before his death in preparing the farm for planting and cultivation that year; that he had relieved his father of the financial burden of his (the son’s) further education; that he was contributing a substantial sum to the education of a young sister, and to that extent relieving his father of that financial burden; and that out of his wages he contributed something in the way of money or clothes to his father. — Act 20 of 1914— the first workman’s compensation law, and all of its various amendments down to and including 1920 — describes the persons who are entitled to compensation, in case of the death of a workman, as ‘actually dependént to any extent’ upon the workman at the time of the accident; see paragraph 9, Section 8, page 470, Act 247 of 1920.
“The modification of the term dependent by the words ‘to any extent’ precludes the interpretation of that term in a literal or absolute s.ense. Indeed, the original act expressly recognizes ‘partial dependency.’ It provides that:
“ In all other cases questions of legal dependency, in whole or in part, shall be determined in accordance with the facts as they may be at the time of injury.’
“And in the same section and paragraph it provides for the distribution of the compensation between those who are ‘partially’ dependent — if there are none who aré wholly dependent — according to the relative extent of their dependency.’ Section 8, Subsection 2, paragraph C. 9, 52, Act 20 of 1914.”

The Supreme Court in at least two recent and well-considered opinions fully discussed the provision in question. We refer to Gregory vs. Standard Oil Co., 151 La. 228, 91 South. 717, and Hamilton vs. Texas Oil Co., 151 La. 692, 92 South. 301.

In the Gregory case, it is true that the parents of the 17-year-old minor son, for whose death they were claiming compensation, were, perhaps, in more straitened circumstances — were more nearly ' in a condition of absolute want — than is the plaintiff here. They lived on a 40-acre hill farm in Arkansas, which they rented from the owner, and worked on the half-share system. The son in the cultivation of the crops for the year, which was sufficient to meet' the current bills with a little left over to carry them through the winter. About the last of November the boy left, with his father’s consent, for the oil fields, promising to send his father $35.00 a month out of his wages. He did not send anything out of his first month’s wages, but that was explained by the fact that' he was compelled to buy clothing and equipment and to return an amount which he had borrowed when he left home for the expenses of his trip — and his death occurred before the end of the second month. The - defendant resisted payment, for the reason. that it was not,shown that plaintiff was receiving assistance from the son at the time of his death. The court said that, in addition to the work' which the hoy had performed "in making the crop, his parents had a right to rely upon the promise of the deceased to send them the above stated amount- "monthly (citing authorities from other- states), and that this constituted dependency under our statute. If noted the fact that in the interpretation of the Federal Employers’ Liability Act, which does not contain the qualifying words, “to any extent,” and under which the court said: “It might be well said that ‘dependent’ means that the beneficiary could not maintain himself without the aid of the deceased relative; that he was dependent upon him for support and maintenance; and yet the courts have consistently refused to apply such a literal interpretation. Our statute does not require that the - father and mother should be shown to be absolutely dependent on their son for. support before they can recover compensation for his death. The only requirement is that, they should be actually dependent to any extent, that is to say, to some extent.” The court affirmed the judgment which held the defendant company liable.

In the Hamilton case, above cited, the suit was for compensation for the death of a minor son, who was about 20 years old, by both parents. The father, the deceased and a younger brother were working for the same employer and they pooled their wages, which aggregated something over $400.00 per month, which was spent in paying the living expenses of the family.- The court said that it did not appear that they lived “extravagantly or beyond what was reasonably appropriate and necessary- to their station in life,” and held that a condition of dependency existed under .our statute. It said:

“Of course, a family of eight could have existed on' less than that which was earned, but we do not believe it was intended under the compensation statute that dependents should be denied its benefits, except in cases of actual want and suffering.”

A statement filed by the defendant company shews that the deceased worked four days the first week of his employment, seven days — including Sunday, on which day he worked six and one-half hours— the second week and three days the third week. He was killed the latter part of the third -day. He received 35 cents an hour, and the statement shows the total number of hours. The total amount which he received was $60.35. This, divided by 15 days — total number of days worked — gives a daily wage of $4.02 and a small fraction. The above sum multiplied by six — the number-of working days in a week — gives a weekly wage of $24.12. The plaintiff is, under the statute, entitled to 30% of this amount for 300 weeks. Because the deceased worked a few hours on one Sunday, plaintiff’s counsel appears to think the payment ought to be based on a seven-day week. We do not think so. There is no evidence to support a seven-day week contract. The fact that deceased worked . a part of one Sunday is not sufficient to prove it.

The judgment appealed from is, for the foregoing reasons, reversed and set aside, and it is now ordered and decreed that the plaintiff, Matthew Nelson; do have and recover judgment against the defendant, W. K. Henderson Iron Works & Supply Co., in the-sum of $7.24 a week during the period of 300 weeks, beginning on the 9th day of October, 1923, with legal interest on the said. amounts from maturity.


author: WESTERFIELD, J.

text:
    No. 8935.
    Orleans Appeal.
    CHARLES F. GIRAUD, Appellant, v. JAMES SHALLY.
    (Nov. 12, 1923, Opinion and Decree.)

      (Syllabus by the Court.)

    1. Louisiana Digest — Animals—Par. 14.
    No more than ordinary care is required of the owners of domestic animals and it is not negligence per se for the owner of a horse to permit it to remain unattended in a vacant lot hitched to a wagon, the wheels of which are chained.
    2. Louisiana Digest — Evidence—Par. 63, 88.
    In an action against the owner of a horse to recover damages for injuries caused by the bite of the horse, evidence tending to prove the vicious character of the horse subsequent .to the injury for which damages are claimed, is inadmissible.
    (Civil Code Articles 2315 and 2321. Editor’s note.)
    Appeal from the Civil District Court, Hon. Porter Parker, Judge.
    This is a damage suit for personal injuries.
    There was judgment for the plaintiff and defendant appealed.
    Judgment reversed.
    Jos. Sinai, attorney for plaintiff and appellee.
    Edw. S. Spiro, attorney for defendant and appellant.
   WESTERFIELD, J.

This is a suit in which plaintiff claims damages of defendant in the sum of One Thousand Forty-two and 75/100 ($1042.75) Dollars, because of his having been bitten by a horse belonging to defendant.

Plaintiff alleges that on July 29, 1919, at about 6:30 p. m., as he was returning to his home from his work while walking along Olympia Street near Palmyra, he found his pathway “obstructed by a horse harnessed to a wagon, belonging to defendant, standing across said sidewalk feeding on the grass which lay between said sidewalk and the gutter edge; that in endeavoring to get by and have said horse move aside to. permit him to do so, the said horse raised his head and bit petitioner in the groin, inflicting a severe and painful wound”. He further alleges that “the said horse was not attended by any driver, or keeper, nor was he hitched, fastened or restrained in any way, but was in fact loose and roaming free through the streets of the city”. He further alleges that his injury- was caused by no fault or negligence on his part but solely due to the fact that the defendant allowed his horse to roam about unattended, unfastened, without a driver, etc. The defendant admits the ownership of the horse and the fact that it bit plaintiff and avers “that on Tuesday afternoon, about six o’clock, July 29, 1919, defendant’s horse, hitched to a wagon, was placed by its driver (defendant’s employee) on a vacant lot, composing about 150 feet of ground, squared, situated at the corner of Palmyra and Olympia Streets, this City, in order to allow the horse to graze on the grass thereon, a custom defendant had followed for many months, without objection from anyone; that defendant’s driver kept watch on it from a position on the- sidewalk in front of defendant’s place of business on Palmyra Street, a distance of about one hundred feet away, and practically opposite to the said vacant ground, there being nothing whatever to obstruct his vision therefrom; that about fifteen minutes later, the horse had moved itself towards the sidewalk bordering Olympia Street; about this time plaintiff came along Olympia Street towards Palmyra Street, and saw the horse half-way across the said sidewalk and grazing on .the grass bordering thereon; that although plaintiff could have easily walked in front of the horse or behind the -wagon with little or no trouble, or could have taken hold of the bridle, of the horse and turned him about, he did, nevertheless, carelessly, negligently, wantonly and maliciously strike the horse several times across its head with a walking cane which he carried, causing the horse great pain and fright, bringing to it the instinct of self-preservation, and the animal, in its desire to m.ove away, brushed against plaintiff's groin, with its-'head, causing a slight scratch to said part of plaintiff’s body.”

There was judgment below in plaintiff’s favor in the sum of Two Hundred and Forty-two and 75/100 ($242.75) Dollars, and defendant has appealed.

There is no allegation in plaintiff’s petition that defendant’s horse was a vicious animal and its vicious characteristics known to defendant at the time it bit him, nor is there any proof in the record to this effect. There is some evidence admitted over the objection of defendant’s counsel, which we think should have been excluded, to the effect that the horse, after biting plaintiff, bit or attempted to bite another. This evidence we consider irrelevant, not only because not responsive to any allegation in plaintiff’s petition, but for the further reason that evidence of distemper or other vicious characteristics of defendant’s horse exhibited subsequent to plaintiff’s injury, cannot affect defendant’s liability.

Plaintiff rests his case solely upon the ground that it was negligent and “unlawful for the owner of an animal to permit the same to run at large, or to permit a horse to stand unhitched or unattended, and that, therefore, the defendant is liable and responsible to petitioner.”

The evidence convinces us that the wheels of the wagon were chained and that, consequently, while the wagon could be moved, the horse being capable of dragging it about as dead weight, it could not move freely, moreover, the horse was under the observation of the driver, who, according to the testimony, was watching the horse from a distance, of about one hundred feet. It has not.been proven that the horse was obstructing the sidewalk as claimed by plaintiff and the weight of the evidence - is to the effect that the horse’s head alone encroached upon the grass plot bordering the walk nearest to the lot on which the horse was grazing and that, therefore, there was ample room for plaintiff to pass without subjecting himself to attack by the horse. There is evidence tending to show the gentle character of the horse, the owner, hostler and a neighbor having testified to that effect,- and we are satisfied that defendant had no reason to believe his horse to be other than a gentle, peaceful animal.

Is the fact that the horse was unattended sufficient fault on the part of his owner to create liability for the injury inflicted upon plaintiff? This is the sole question in this case. In Ladrix vs. DiMaggio, 8th Court of Appeals, 167, it was held that the liability of an owner of a domestic animal for damage it might cause was not unqualified and that there was no liability unless there was fault.

In Rouseo vs. Gauche-Connor Co., et al., 8th Court of Appeal, 216, it was held that it was not fault per se for an owner or driver to leave for a short while unattended, a horse not vicious or unruly and fastened with at least ordinary care. In the case last cited, this Court makes an exhaustive review of the decisions of our Supreme Court, consequently, it would serve no useful purpose for us to repeat what was there said or to reconsider the authorities reviewed in that opinion.

The counsel for deféndant in his brief has referred us to the case of Dix vs. Somerset Coal Co., 217 Mass. 146, page 12, which is of interest. We quote the following from this case:

“This is an action of tort to recover for personal injuries caused by the plaintiff being bitten by the defendant’s horse. -It appears that the plaintiff was lawfully traveling along the sidewalk of Tileston Street, in Boston, when the defendant’s horse jumped onto the sidewalk and bit plaintiff in the arm. There was also evidence to show that the horse almost irn'me- • diately after biting the plaintiff, tried to bite a child from four to five years of age, and that, the plaintiff pushed the child away from the horse.

At the time the plaintiff was bitten the defendant’s driver was using the horse delivering coal, and had left the horse unattended in the street.” and also the following:

“As a general rule, the owner or keeper of a domestic animal is bound to exercise reasonable care to prevent injury being done by it to another. If such animal is rightfully in the place where the injury is done, unless it appears that the animal is vicious, and that that fact is known to the owner or keeper, there is no liability. This rule, however, has been held not to apply to animals that belong to a class, which, according to the experience of man, are regarded as dangerous and, therefore, the owner of such animal keeps it at his own risk. (Citing cases.) The defendant could be made liable for the plaintiff’s injury only by showing that the horse was of a vicious disposition and that the defendant had knowledge of such disposition. (Citing cases.) The fact that the horse jumped upon the sidewalk did not relieve the plain-' tiff from proving that he was of a vicious disposition and known to be such to the defendant. So far as appears by the evidence, there is nothing to show that before the attack upon the plaintiff the horse ever had exhibited any ugly or mischievous propensities or habits, if they existed. The testimony of plaintiff’s attorney in describing the conduct of the horse after the accident is not sufficient to charge the defendant with liability.”

Our conclusion is that the defendant in this case has exercised ordinary care in that he had chained the wheels of the ■ wagon to which the horse was hitched and had caused.a driver to keep the horse un-. der observation and that the fact that the horse was unattended otherwise is not a fault per se sufficient to hold the owner ■ responsible for damages caused by the bite of the horse, since he had no reason to suspect any .vicious tendencies on the part of the animal.

It is, therefore, ordered, adjudged and decreed that the judgment appealed from be set aside and reversed and it is now ordered that plaintiff’s demand be rejeoted at his cost in both courts.


text:
    No. 9111.
    Orleans Appeal.
    TRAVELERS INSURANCE CO. v. AUTOMOBILE SERVICE CO., INC., Appellant.
    (November 26, 1923, Opinion and Decree.)

      (Syllabus by the Court.)

    1. Louisiana Digest — Obligations—Par. 99; Insurance — Par. 28.
    A contract of insurance, the policy of which is issued “at the risk” of the insurer and the premium of which is to be paid by the assured “if it can” is void as containing a potestative condition.
    (Civil Code, Arts. 2024, 2034, Editor’s note.)
    Appeal from the First City Court, Hon. Leon L. Labat, Judge.
    This is a suit to collect premiums on an insurance policy.
    There was judgment for plaintiff and defendant appealed.
    Judgment reversed.
    Wm. Norman, attorney for plaintiff and appellee.
    Hugh Wilkinson, attorney for defendant and appellant.
   WESTERFIELD, J.

The plaintiff Insurance Company sues the defendant for One Hundred and Seventy-three and 53/100 ($173.53) Dollars, claimed to be due it as earned premiums on two policies of insurance. The defense is, in effect, a general denial. Plaintiff in its petition alleges, “that on January 3, 1922, it entered into a contract of insurance with defendant company for the period of one year, represented by policy contract No. F. G. 2797827, by the terms of which petitioner, among other things, obligated itself to indemnify the assured up to the policy limit against loss by reason of the liability imposed upon assured for damages on account of injuries suffered by third persons, resulting from the operation by assured of an automobile garage sales agency and service station, etc.', at 857-61 Carondelet Street, New Orleans and elsewhere in the State of Louisiana,” and “that on January 23, 1922, petitioner entered into a contract of insurance with defendant company, represented by policy UB-2946267 for the period of one year, by the terms of which petitioner, among other things, obligated itself to pay to any employee or dependent of any employee of defendant company entitled, thereto under the Workmen’s Compensation Law of Louisiana, any and all compensation due as a result of personal injuries received or death, resulting from personal injuries within the space of one year from the date of the policy contract, such contract covering all employees, whenever their entire remuneration is included in the total actual remuneration upon which the policy premium is computed.”

It thus appears that plaintiff’s suit is based upon two contracts of insurance represented by two policies, from which it might be assumed that the contracts relied upon were written contracts, i. e., the policies referred to. The record does not indicate that any exception of vagueness was filed by the defendant, though it was insisted in the argument in this Court that plaintiff’s recovery must be conditioned upon proof of a written contract. The trial Court permitted evidence to be introduced for the purpose of proving a verbal contract, and in view of the record as made up, we will consider the case as presenting the question of contract vel non.

It appears from the evidence that the plaintiff Insurance Company is represented by the Sinclair Agency, Inc.', as its local agent, and that through the said local agency, two policies of insurance similar to the policies under which premiums are claimed in this suit were issued to the defendant, which operates a garage and automobile repair shop with the understanding that the premiums should be taken out in trade, that is to say, by repairing automobiles for the plaintiff company. At the expiration of these policies, a representative of the Sinclair Agency, Inc., informed defendant that it would not or could not renew the policies upon the same basis because the plaintiff Insurance Company would not write the policies on that basis any longer. A renewal of the policies was solicited upon a cash basis and the General Manager and Secretary-Treasurer of the defendant, stated that his Company was in financial difficulties and that if these policies were renewed it would be at plaintiff’s risk and that defendant would pay for them if it could. •

“Q. Am I correct in understanding you have testified that you received these policies and that you had some kind of an agreement with somebody, who called at your office with reference to the renewals to the effect that you were at that particular time in straitened financial circumstances and you would take these policies provided you could pay for them if you could and if you didn’t pay, it would make no difference?
A. Yes, sir, that’s about the agreement I had; if I could pay for them I would, and if I couldn’t do so, it was their risk.”

By the Court:

“Q. And you had reference to these renewal policies?
A. Certainly, because the others had expired or were expiring and they would not have called on me otherwise.”

Subsequently, a “binder” or temporary policy was sent defendant and in due course the formal policies were mailed and received by defendant which retained the policies. A demand was made for payment of the premiums and payment not being made the policies were cancelled, some three or' four months after their issuance by plaintiff and this suit' is for the earned premium.

' The plaintiff offered evidence to prove that it' was not customary to have written agreements for policies of this sort sued on here and that after successful solicitation by agents,- .the assured was sent the policy and the retention of the policy by the assured was considered a contract. The custom of having a signed application attached to the policy and forming a part, indicating the acceptance of the insurance contract by the assured, which obtains in life insurance, it was argued was not indulged in in the contracts sued on. It appears, however, from a form styled “Proposal Automobile Garage Public Liability Insurance” introduced in evidence by plaintiff, that plaintiff’s witness was mistaken, for we find the following clause in the printed form referred to at bottom of the page which describes the insurance desired: “The following signature is authorized and accepted by the assured as his signature” and an examination of the copy of the policies in evidence seems also to contemplate the signature of the assured. However, that may be insurance contracts, like all other contracts, must be assented to by'the parties whether in writing, which would appear to be the most business-like method, or otherwise. It is admitted that the defendant signed no application contract or policy and therefore, we have now to consider the question of his verbal acceptance of the contract.

Under the title of. obligations, we find the following article of the Code:

“Art. 2024. The Potestative Condition is that which makes the execution of the ágreement depend on an event which it is ih the power of the one or the other of the contracting parties to bring about or to binder.”
“Art. 2034. Potestative Condition on Part of Obligor. Every obligation is null, that has been' contracted, on a potestative eondi- - tion, on the part of him who binds himself.”

Does the agreement of" defendant contain a potestative condition is the question presented by this case.

There is nothing in the record contradicting Mr. Post’s testimony and it was -admitted in argument that so far as the record disclosed, Mr. Post’s statement of the manner of his agreement to take out the insurance was correct. Counsel argued that the words “if I can” and “if I could” used by Mr. Post meant that payment would be made if there was any means of payment possible and that plaintiff was to get its money unless all available assets of -defendant were insufficient to cover the premium as demonstrated by a return of nulla bona to a writ of fieri facias in execution of a judgment in its favor. We cannot subscribe to this view. The interpretation of counsel would render meaningless the qualifications which defendant insisted upon as a condition of his acceptance of the insurance and would assimilate this contract to that of an eager customer promising prompt payment under a written agreement. Of course, no debtor can pay unless he has money or other assets with which to make payment or from the sale of. which, voluntary or otherwise, payment may be obtained. We think the defendanin this case contemplated and that his words may fairly be interpreted as meaning that it would only pay the premiums which the policies called for if it could be done without financially embarrassing it in the conduct of its garage business and that it did not contemplate its destruction by a sale under execution as a possibility consequent upon its failure to pay the premium. Defendant was a reluctant customer. It had previously paid the premium in trade and when notified that cash alone would be accepted, demurred and only finally agreed to take the insurance upon the condition that it would pay if it could and the policies were to be issued at the risk of plaintiff. If it could not pay 'it would .be all right, etc. It is obvious that defendant was to be the judge of its ability to pay, thus creating a purely potestative condition in the contract which, under the codal provisions referred to, renders the contract null. We attach no importance to the fact that the policies of insurance were not returned by defendant, nor protest made .by it upon receipt of bill for the premium, since it was only to pay “if it could”.

For the reasons assigned, it is ordered that the judgment of the First City Court be annulled, avoided and reversed and it is now' ordered that there be judgment in favor of defendant, dismissing plaintiff’s demand with costs of both Courts.


text:
    No. 2261.
    Second Circuit Appeal.
    STATE EX REL. THE BAPTIST HOSPITAL, ET AL., v. HON. J. A. WILLIAMS, JUDGE, ET AL.
    (November 12, 1924, Opinion and Decree.)

      (Syllabus by the Editor.)

    1. Louisiana Digest — Injunction—Par. 79.
    In view of Act No. 29 of 1924 regarding the issuance of injunctions, and Article 12 of the Civil Code, an injunction signed by the judge without giving the defendant opportunity, to show that it could not or would not be enjoined from doing what the writ prevented it from doing is an absolute nullity.
    2. Louisiana Digest — Apprentices — Par. b 2,
    Article 164 of the Civil Code defines apprentices as “those who engage to serve anyone in order to learn some art, trade, or profession,” and Article 170 expressly declares that bound servants or apprentices and their master may be compelled to the specific performances of their respective en- ■ • gagements. It, however, reserves the rights of both parties ' to .’¡rescind-the contract-for just cause. : '■
    3., Louisiana Dige.st — Apprentices—Par. 2„ 3.
    A' Contract in which, a woman engages in : training ór án apprenticeship' for three .years- in -a hospital for. which she is . paid very small compensation in, view ‘ of Articles 164 and 170 of the" Civil Code is a contract of apprenticeship which may be rescinded by .either party . for just cause. . -
    4.' Louisiana Digest — lnjunction-7-Par.. 125; ' Attorneys — Par. 60.
    Damages allowed for services of attorney-.-necessary to dissolve an illegal injunction are placed at the sum of $50.00.
    Certiorari and prohibition from -the Thirteenth Judicial District Court- of Parish of Rapides. Hon. John A. Williams, Judge.
    This is a suit by which a woman in training in a hospital desired..to prevent being discharged on account of her becoming married.
    There was judgment for plaintiff on the writ of injunction.
    Defendant, the relator herein, filed a petition in the Court of Appeal for a writ of certiorari and prohibition, commanding the respondent judge and Mrs. Alice Tread-why to send up to the court the record of the proceedings in the case entitled Alice Treadway vs. Baptist Hospital, et al., then pending on the docket of the Thirteenth Judicial District Court for the Parish of Rapides, to the end that certain orders issuéd and writs granted in said case be examined and their validity determined.
    Judgment declaring the injunction a nullity and allowing $50.00 damages' to the defendant for attorney fees.
    Hawthorne & Stafford, of ' Alexandria, attorneys for defendant, relator. .
   PORTER, J.

The relator, the Baptist Hospital, and J. E. Oliver, its manager filed a petition in this Court praying for a. writ of certiorari and prohibition, command-: ing the respondent Judge and: Mrs. Alice Treadway, to send up to the Court the record of the proceedings in the case entitled Alice Treadway vs. Baptist Hospital, et al., then pending on the docket of the Thirteenth Judicial District Court for the Parish of Rapides, to the end that certain orders issued and writs granted in said cause be examined and their validity determined.

The writ was issued and the entire record, together with the return of the respondent Judge and the answer of the defendant, is now before us. The plaintiff, Mrs. Treadway, has adopted the return of the Judge as her answer.

The said proceedings were begun by a petition which was filed in the said District Court by Mrs. Alice Treadway, against the relators in which the following facts are substantially alleged:

That she entered training, or an apprenticeship, for three years at the Baptist Hospital, a legal corporation domiciled at Alexandria, and conducted under the direction of the Baptist denomination, with J. E. Oliver, as manager; that she entered upon said training on the 26th of April, 1922, and that she received from the institution $15 per month and her board and room. That as a part of the compensation for her work' she was to receive lectures and training, and to be graduated from said institution as a trained licensed or professional nurse. That during the first year of her training the work was hard and laborious, the hours long, and the work at times drudgery, but that being desirous of obtaining the training and education of professional nurse she continued to perform the said duties regardless of how laborious they were. That she attended the lectures from time to time as prescribed,, and completed her course of lectures and studies and was graduated from the institution on the 12th ' of May, 1924, but that she did not receive her pin and diploma, ■ or certificate, because the three years which her contract bound her to stay at the hospital would not be up until the 1st of May, 1925, and that having completed all of her studies she is staying and working at the institution solely for the purpose of completing the time required in order that she may receive her diploma and pin. That she attaches to the petition a copy of her application and contract with the hospital and makes them a part thereof.

She alleges that she was secretly married on March 29, 1924, and has been performing her duties in said institution up until about the first of September, when she was compelled to undergo an operation for appendicitis, and has been unable to return to the hospital since the operation, but expects to do so within the next few days, and “that the said J. E. Oliver, manager of the Baptist Hospital, has threatened and says that he will dismiss your petitioner from said institution as soon as she reports for duty; assigning, as his reason the fact that she is married.”

That if she is so dismissed she will be unable to gain admittance • to any other hospital, and that the two and a half years of slavery and hard work performed by her will be a total loss; that said action on the part of said manager is equivalent to denying her the privilege of becoming a trained nurse, despite the hard work which she has done for said institution.

That marriage is honorably recognized by the laws of God and man and sanctioned .and encouraged by public policy, and that it being the only offense with which she is charged, she shows that her said marriage has not in any way impaired or hindered her from performing all of the duties incumbent upon her.

That the view taken by the manager is arbitrary, harsh and unwarranted, and that he will dismiss petitioner unless restrained by injunction. That if the said manager is permitted to carry out his threat and discharge her, without permitting her to remain the required: length of time, the two years and a half- of hard work, drudgery, hard study and self-denial, and the nominal sum of ¡j¡15 per month will amount to nothing; that the said sum is no compensation for the services rendered; th'at the training, and education constitutes the real consideration for the said services.

That the said institution had kept nurses that had married during their training, and has, on numerous occasions, admitted married ladies for the purpose of taking training, and that married nurses are working in said institution at this time.

That she is not asking for money judgment of any kind, but is simply asking the Court to protect her rights. That an injunction is necessary to protect her rights, and she asks that an injunction restraining the said manager, the board of directors, or any other person in said hospital, from discharging or dismissing her from said institution on account of her marriage, until the further orders of the Court, and that an injunction is the only way in which she can protect her interests, and that if she is dismissed from said institution it will work an irreparable injury upon her. She prays as follows:

“Wherefore, the petition and accompanying' affidavit being considered, petitioner prays that upon security being furnished in an amount with the sureties, and with the conditions required by law, that a writ of injunction issue restraining the said J. E. Oliver, or the Baptist Hospital, or the Board of Directors of the Baptist Hospital, from dismissing your petitioner from said institution on account of her marriage until the further order of this Honorable Court, she prays that the said J. E. Oliver, and the Baptist Hospital be duly cited to appear and answer hereto, and after the legal delays have elapsed, and due proceedings had, that there be judgment in favor of your petitioner, perpetuating the said injunction, and for costs and general relief.”

The petition, duly verified, was presented to the District Judge and he issued the following order:

, “Let a. writ of injunction- issue: herein as prayed for and according to law, upon petitioner furnishing a bond in the suih of. One Hundred Dollars.”

■Given under my hand at Alexandria, La., om this the 18th day of September, A. D. 1924.

(Signed) Leven L. Hooe, Judge.”

Eour days later, to-wit, on. the 22nd of September, 1924, the defendant moved to set aside' and vacate the foregoing order on the ground that it was illegal, null and void, for the following reasons:

“That said order for the writ of injunction, given and signed without notice, was improvidently granted, in violation of a prohibitory law, and should be decreed a nullity, vacated and set aside.

That Act 29 of. 1924 provides.:

‘Be it enacted by the Legislature of Louisiana, that hereafter no writ of injunction shall be issued without' notice, given as hereinafter- provided, to the opposite party or parties to be affected thereby, and without opportunity given for hearing of the opposite party.’ ”

The motion proceeds to állege, substantially, that plaintiff did not, as required by law, ask that defendant be notified of the intention to apply for a preliminary writ of injunction, and the Court was without authority, and exceeded its powers and jurisdiction, in granting a preliminary writ of injunction, and the same should be set aside as having been improvidently granted.

The motion alleges, in the alternative, that the petition discloses no cause of action, and that the writ ought to be set aside for that reason. That plaintiff is asking to force her services upon the defendant hospital, which if it be a contract of employment, as claimed, is purely one for personal services, and if violated cannot be enforced by specific performance or by injunction.

That if the contract be one of employment, the right to discharge the employe, without cause of any kind, is absolute, the remedy for the violation of such contract is not that invoked by plaintiff.

That defendants have been damaged by •the- illegal-Injunction in the sum of $100.00, as attorneys’' fees, which amount defendants are entitled to recover of plaintiffs and the bandsmen in solido. That they will be further damaged by said wrongful- injunction, for loss of time, annoyance and vexation, the right to recover which in a separate suit'should be reserved.

They pray that plaintiffs be ruled to show cause- on a- day and hour to be fixed by the Court why the order signed on the-18th of September, 1924, should not be vacated, annulled and set aside, and the injunction dissolved as having been improvidently issued without warrant of law, and in the face of a prohibitory statute; that plaintiffs and the sureties on the injunction bond be condemned -in solido to pay damages -as attorneys’ fees' in the sum of one hundred dollars, and that defendant’s right to sue for further damages be reserved, and for general relief. .

On the above motion a rule was issued to the plaintiffs to show cause on the 26th day' bf September, 1924, why the writ of injunction should not be annulled and set aside,with-attorneys’ fees as prayed for.

This motion was tried before the Hon. J. A. williams, one of the Judges of the District, at Colfax, Judge Hooe, having signed the original writ of injunction and the "order 'to show cause why it should not be set aside. And His Honor, Judge Williams, after ’. some delay, rendered the following judgment;

“This cause coming on, on motion to dissolve ’the injunction herein sued' out, the trial having been regularly had on said motion .to • dissolve, the law and the evidence being in fa-vor of plaintiff and against the. defendant;" and for the reason orally assigned;
It is ord.ered, adjudged and decreed that the motion to dissolve said writ of injunction be and 'the same is hereby overruled, and that the order signed by the Court be considered as .a preliminary writ of injunction restraining the defendants, and each of them, from proceeding to discharge the plaintiff from her present position.
It is further ordered, adjudged and decreed that the defendant Baptist Hospital show cause on the 14th day of October, 1924, at 9:30. a. m. why the said .order should not be perpetual and the defendant be forever enjoined from any further effort to dismiss or expel the plaintiff herein. It is further ordered, adjudged and decreed that the claim of attorneys’ fees on the part of defendant is denied. Reserving to the plaintiff (defendant we presume) the right to prove the same at a further hearing of this case.
Judgment read and rendered on the 10th day of October, A. D., 1924. Costs to await the final decision of this case. Judgment read and signed on the 14th day of October, 1924.”

From the foregoing judgment it appears that the defendants (plaintiffs in the .writ) were ordered to show cause why the preliminary writ -of injunction should not be perpetuated- on the 14th day of October, the same day as that on which the order or judgment was signed. This is explained by the fact that the hearing' on the rule was had on the 10th, or four days previously, and the judgment was rendered on that day.

Whereupon, counsel for defendants' filed an exception to said order, the consideration of which appears to have been postponed until the 14th, and then, some discussion having arisen over said exception, the matter was continued, after defendants had given notice of their intention to apply for the present writ, and the judge then read and signed the order which had been rendered four days before. The last note on the minutes of the court merely states that -the case was continued for further argument on the exception, we presume, by agreement of counsel. We shall not consider'. the last exceptions filed by the defendants as they have not been passed upon, but shall confine ourselves to a discussion of the motion first filed to .the effect that the first writ was improvidently granted, and that the petition disclosed no cause of action for injunction relief.

OPINION

Was the order of September 18th, 1923, improvidently granted?

The petitioner prayed “that a writ of injunction issue restraining the said. J. E. Oliver, or the Baptist Hospital, or the Board of Directors of the Baptist Hospital, from dismissing your petitioner from said institution on account of her marriage until the further order of this Plonorable Court.”

And the order, which was written at the foot- of the petition by plaintiff’s counsel, was:

“Let a writ of injunction issue herein as prayed for and according to law upon petitioner furnishing bond in the sum of one hundred dollars.”

And the writ, which was issued in obedience to this order, addressed to the Baptist Hospital, declares that:

“You are hereby enjoined, restrained and prohibited, in the name of .the State of Louisiana and the Thirteenth Judicial District Court in and for the Parish of Rapides, from dismissing or discharging •the petitioner herein, Alice Treadway, from her duties at the Baptist Hospital on account of her marriage; and you are so to remain enjoined and prohibited until the further orders of this Honorable Court.”

It is a 'matter of public knowledge that a widespread public sentiment has grown up in this country against what was popularly termed government by injunction, and in -some instances there have been demands from more or less powerful factions or parties which, if acceded to, would almost, if not entirely, have destroyed this most ancient and useful agency through which the courts administer the law. The conservative sentiment of the country, recognizing that great hardship was at times inflicted, upon persons by the ill-advised issuance. of the writ-, appears to have agreed that some additional restraints ought to be placed upon the power of the courts in this matter, and the legislature of this state, doubtless in obedience to' this sentiment and following the examples of many other states and of Congress, has recently adopted Act 29 of 1924.

The first section of that act provides in language which cannot be misunderstood:

“That hereafter no writ of injunction shall be issued without notice, given as hereafter provided, to the opposite party or parties to be affected thereby, and without opportunity given for hearing of the opposite party.”

The petition in this case, the order granted under it and the writ issued in obedience to that order make no pretense of complying with this mandatory provision of the law. No notice was prayed for and no notice was given to the relator of the application for the writ. No opportunity was afforded it to show, if it could, that it could not or should not be enjoined from doing what the writ prevented it - from doing.

Our learned brother, the respondent judge, in his return concedes that there was error committed by the judge who signed the first writ or order, but seeks, to avoid the consequence of that error by saying that it was the fault of the judge and not of the plaintiff, and that she should not be made responsible for that error.

As we conceive the law to be there is no room for sentimental or equitable consideration in the question presented.

The Civil Code declares that: “Whatever is’ done in violation of a prohibtory law, is void, although the nullity be not formally directed.” Article 12.

The respondent judge says that the act provides for the issuance of temporary restraining orders, and justifies his course in considering the original writ as merely such an order by the fact that the petition alleges irreparable injury.

It is true that the act does authorize .the judge, in certain contingencies and upon certain carefully prescribed conditions to issue temporary restraining orders. Indeed this was the primary purpose of the law, the manifest purpose of which is to keep matters in statu quo until the necessity or legality of the preliminary writ can be determined.

It was the purpose of the legislature to prohibit the issuance of preliminary writs without notice to the opposite party, and opportunity to be heard as to the necessity or legality of them; but the framers of the law foresaw that emergencies might arise where even a short delay might result in the illegal destruction of property ’or property rights, pending the notice and the hearing on it, and provision was made whereby the defendant could be restrained during the delay.

But this provision, which establishes an exception to the general rule stated in the first section of the act, is made to depend, for its validity upon certain conditions, which are that specific facts shall be made to appear by the verified petition on supporting affidavits that immediate and irreparable injury, loss or damage will result tp the applicant before notice can be served, and on hearing had on the application.

It is further provided that bond must be given — except in cases whereby law bond is not required, and that the judge shall state why the order was granted without notice, and shall describe in reasonable detail, and not by mere reference to the petition, • or other documents, the act or acts sought to be restrained, and that said order shall, by its terms expire without such time after entry, not to exceed ten days, as the court may fix.

We do not think there is any warranty for considering the writ of injunction as a restraining order, because, first on its fact it is no such thing, and second, because even if it purported to be such an order, none of the conditions prescribed, by the statute for its issuance were complied with.

It is, we think, a mere nullity, and must be set aside.

•On the exception of no cause of action we are disposed to agree with the respondent judge in overruling it.-

The petition and the document annexed to it indicates that the contract between the plaintiff and the hospital is one of apprenticeship. The petition alleges that plaintiff “entered training, or an apprenticeship, for three years”.

In another article it is alleged that “the $15.00 per month paid nurses in training. is no compensation whatever for the services they perform”. She alleges that she attaches to the petition a copy of her contract with the defendant. The document referred to is an unsigned blank form of application and rules for the admission of pupils to the school of nursing of the Baptist Hospital.

It contains among other things, the statement that a monthly allowance of $15.00 for the remainder (after two months of probation) of the first year $17.00 for the second year, and $20.00 for the third year, “will be made for laundry and.other expenses. This should not be considered as salary. The education received is counted a full equivalent for the services rendered”.

Article 164 of the Civil Code defines apprentices as “those who engage to serve any one in order to learn some art, trade, or profession”. And Article 170. expressly declares that:

“Bound servants or apprentices and their master' may be compelled to the specific performance of their respective engagements”. It, however, reserves the rights of both parties to rescind the contract for just cause.

The case of Hand vs. West, 28 La. Ann. 148, upon which counsel for defendants rely, is not applicable because the court said: “An important feature of the contract between the defendant and the minor was that he whs to have the labor or services of the minor for a fixed term, and was to pay him a certain salary or wages, in addition to the food, lodging, clothing and instruction he stipulated to give him”.

And it held, in effect, that the relation between the parties was that of master and servant, and that the contract was one for personal service.

To the same effect is Healy vs. Allen, 38 La. Ann. 867 — also cited by counsel. The theory of relator’s counsel is that the contract in this case is one for -personal service, and under the well established rule cannot' be enforced by injunction.

We hold, that, on the face of the record, the contract here involved is one of apprenticeship and hence the above cited authorities aré not applicable. We do not deem it necessary to discuss other authorities cited in relator’s brief from other jurisdictions because we regard the provision of the Civil Code, above cited, as controlling.

Because we do not know what the proof on the trial of the merits may show as to the real contract we shall leave the matter open for future proceedings in the case.

There is in the record an admission by plaintiff’s counsel that Messrs. Scott, Provosty, Dawkins, Peterman and Polk, all members of the Alexandria bar, would, if present, swear that one hundred dollars would be a fair and reasonable fee for the services involved — we presume for the dis solution of the writ.

We are disposed to think that in view of the services actually rendered, this estimate is rather high and shall allow fifty dollars.

DECREE.

It is therefore ordered, adjudged and decreed that the writ of prohibition herein issued be made peremptory. It is further ordered and decreed that the writ of injunction of date September 18th, 1924, and the order and judgment rendered pn the 10th of October, 1924, and read and signed on the 14th of October, 1924, be and the same are hereby annulled, vacated and set aside and that the exception of no cause of action be and the same is overruled. '

It is further ordered and decreed that the relator, the Baptist Hospital, do have and recover judgment in solido against the respondent, Mrs. Alice Treadway, as principal and J. A. Packer, as surety, on the appeal bond, in the sum of fifty dollars with legal interest thereon from this date, and that all costs be taxed against the respondent and plaintiff, Mrs, Alice Tread-way.