text:
    No. 733
    First Circuit
    BROUSSARD v. TECHE TRANSFER CO.
    (January 26, 1931. Opinion and Decree.)
    J. E. Kibbe, of Abbeville, attorney for plaintiff, appellee.
    Burke & Smith, of New Iberia, attorneys for defendant, appellant.
   MOUTON, J.

Plaintiff, Broussard, was driving a Cadillac car from New Iberia, westward, towards Abbeville, while defendant company was having a bus towed towards New Iberia, eastward, in the opposite direction.

J. W. Trahan was driving the front bus, and Paurature was the chauffeur in the rear bus. They were the only two occupants of the two busses.

In the Cadillac were plaintiff, the driver, with Langlinais on the front seat. In the rear were seated Mrs. Lormand and her daughter, Miss Lucy.

A collision occurred at night about 8:30 between the car and the rear bus or transfer, about a mile west of Delcambre, from which resulted damages to the car, for which plaintiff recovered $243.75 in damages.

Defendant appeals.

Plaintiff, Langlinais, and the two ladies say that the front transfer had lights on, which they saw distinctly as their car advanced towards the bus. Plaintiff, the driver of the car, says “that the front transfer was in the middle of the road and that he had to swerve to his right close to the ditch not to bump the front car,’’ and that, after he passed that car, he turned to his left to resume his way on the road. He testifies that the rear car, the one being towed, had no lights on, that he did not see that bus, and collided with it as he made the turn on the highway. The other occupants of his car are all equally positive that there were no lights on the rear bus. They all got down from plaintiff’s car, and saw no lights on the towed transfer after the two busses had stopped, following the accident.

J. E. Trahan came along in his car from New Iberia on his way to Abbeville immediately after the collision and is also positive that the rear bus had no lights.

J. E. Trahan, it is shown, was going towards Abbeville, the same direction plaintiff had been traveling. The front of the two busses, after they had been stopped after the accident, necessarily pointed eastward, being the direction they had been moving. J. E. Trahan passed the front bus first and says its lights were burning, but testified that it is only after he had gone by the first bus that he saw the one in the rear, and that he noticed it only from the reflection of the lights of his own car, and that this rear bus had no lights on.

Nothing appears in the evidence to show that the occupants of the car were connections or relatives of the plaintiff or had any interest in the outcome of this litigation, nor that any such influence could have had any effect on the testimony of J. E. Trahan, a chance arrival at the scene.

Paurature and J. W. Trahan, the two chauffeurs of defendant company, both say that the lights were on the rear or towed bus before the collision, at the time of its occurrence, and after. They both say they could not travel at night without lights on the rear towed car as well as on the front bus, impliedly admitting that doing so would be in violation of the rules of defendant company and the state law regulating the operation of vehicles on the highways.

Civil Code, art. 2282, says: That the fact that a witness is “in the actual service or salary of the parties, is not a sufficient cause to consider the witness as incompetent, but may, according to circumstances, diminish the extent of his credibility.”

The two chauffeurs, J. W. Trahan and Paurature, were in the actual service of defendant company, and it may not be too severe to say that they might have been inclined not to admit they were driving a towed car without lights, as such a careless method would have been undoubtedly against the wishes of their employer, causing perhaps a dismissal from service, or, at least, a reprimand. Considerations of that character, and perhaps also the demeanor of the chauffeurs on the stand, might have been circumstances, which, in the opinion of the trial court “diminished the extent of their credibility,” and led the court to accept the statement of tne witnesses for plaintiff, including the latter, to the effect that the rear bus had no lights on at the time. Besides, we see nothing in the testimony of plaintiff’s witnesses, either in motives of interest or of any other character which could have affected their credibility. Their testimony is direct, unequivocal, harmonious, and positive on the material facts of the case, and rather convincing. The district judge evidently believed them, and there is nothing in the record that could justify us to say that he had fallen into an error in that respect. It must therefore be accepted as an established fact that there were no lights on the car the defendant company was towing. Such lights were absolutely necessary, as appears from the testimony of the two chauffeurs, and by every consideration of public safety to travelers on the highways of the state, and as required by our statutes on the subject. The defendant company was therefore guilty of gross and inexcusable negligence in not having had lights on that rear bus at the time.

It also appears from the position which the busses occupied immediately after the collision, and by the preponderance of the evidence on this point, that the front bus, and likewise the other, were traveling on the central line of the road, or, at least, at a close and dangerous proximity thereto, when the ear of the plaintiff passed the first bus before colliding with the rear transfer. The towed bus, it is shown, was tied to the other by a chain eighteen feet long by means of which it was being pulled to Iberia, its point of destination. When tied to the two busses the chain was reduced to the length of fifteen feet, according to the testimony of J. W. Trahan and Paurature. It is not unreasonable to infer that under such an arrangement that there must have been some swaying or oscillating movements in the towed transfer which kept it from moving in a straight line, and directly in the pathway of the front bus. Such fluctuating movements of the rear bus might have inclined it more than the other to pass over the central line of the roadway, and into the part of the road plaintiff was entitled to occupy, after he had passed the front transfer. If this rear bus had had its lights on, as it should have had, it cannot be doubted that plaintiff would have seen it as he passed the front bus, would have kept close to the ditch on his right side, and that he would have safely passed the second bus, as he had gone by the first on which he, and the occupants of his car, had seen the lights before the vehicles reached the crossing point on the highway.

Plaintiff had a perfect legal right to turn to his left after he had passed the front bus for the purpose of re-occupying the part of the roadway to which he was justly entitled in proceeding on his way to Abbeville. The turn he made for that purpose was not the proximate cause of the collision. Its sole proximate cause was the result of the inexcusable negligence of the two chauffeurs in thus running the towed car without lights, in the center of the road, or so near it as to be dangerous to vehicles moving on that roadway.

Counsel for defendant cites authorities Holding that, when a complainant has contributed to the proximate cause of the accident, he cannot recover damages. There is no doubt such is the rule in cases of this character, but here it is clear that, in turning to his left, plaintiff was not guilty of any negligence whatsoever, and, there being in that respect no fault on his part, it is impossible to hold that he was also responsible for contributory negligence.

The case is with the plaintiff and was properly decided in his favor with the damages allowed under the proof.


source: Caselaw Access Project

author: LeBLANC, J. LeBLANC, J.

license: Public Domain

text:
    No. 696
    First Circuit
    HUFF v. FITZSIMMONS ET AL.
    (October 8, 1930. Opinion and Decree.)
    (January 26, 1931. Rehearing Refused.)

      Miller & Heintz, of Covington, attorneys for plaintiff, appellee.
    A. J. Finney, of Covington, attorney for defendants, appellants.
   LeBLANC, J.

Plaintiff, Mrs. Bertha Perreand Fitzsimmons, wife of Creighton W. Huff, became the owner of three notes of $500 each, in the settlement of the community interests between herself and her husband, Nicholas Fitzsimmons, one of the defendants herein. One of the notes, it appears from the evidence, was paid, and this suit is brought by her to enforce collection against him and Henry B. Pruden, an indorser, on the other two.

The two notes sued on are both dated Covington, La., July 30, 1923, and are payable to the order of plaintiff, nine and twelve months after date, respectively. They both bear interest at the rate of 8 per cent per annum from date, and contain a stipulation for 10 per cent additional on the principal and interest as atttorney’s fees in the event they should be placed in the hands of an attorney for collection. They are signed by the defendant Fitzsimmons and are indorsed by Henry B. Pruden, the other defendant, and also by Mrs. Fitzsimmons, who we learn from the testimony was the mother of the defendant Nicholas H. Fitzsimmons. The note payable nine months after date bears the further indorsement of a payment of the sum of $200 made on July 31, 1924.

The plaintiff,, alleging herself to be the holder and owner of the two notes as above described, prays for judgment against Fitzsimmons and Pruden, in solido, for the full amount with interest thereon at 8 per cent from July 30, 1923, less the sum of $200 paid on July 31, 1924. It is to be noted that the 10 per cent additional on the principal and interest as attorney’s fees is not prayed for.

Both defendants plead payment of the two notes by the giving by the maker and acceptance by the holder of a note for $800 made and executed by the defendant Fitzsimmons on November 24, 1924, secured by mortgage on his undivided one-seventh interest in some property which belonged to the estate of his mother.

The district judge held that the defendants had not supported their plea of payment and rendered judgment in favor of the plaintiff for the full amount sued for with interest as prayed for, and in addition thereto he allowed 10 per cent on the full amount as attorney’s fees. The defendants have' appealed devolutively.

The plea of payment presents an issue of fact between the parties which we feel convinced the district judge has correctly decided. Not only do we think the defendants have failed to carry the burden which the law imposed on them of proving the plea, but we believe the plaintiff has supplied the preponderance of testimony to show that the mortgage notes given by defendant Fitzsimmons were never intended to serve any other purpose than as additional collateral to secure the payment of the two other notes.

The only witness for plaintiff was Mr. Fred J. Heintz, a reputable attorney who has practiced his profession before the courts of his district and other courts in the state for more than twenty years. He whs Mrs. Huff’s attorney and she seemed to have intrusted him implicitly with the handling of these notes. He says, in his testimony, that he has “held these notes in his possession almost the entire time since the making of same.” He appeared to be friendly also to the defendant Fitzsimmons, and especially so to the other defendant, Pruden, who he frankly acknowledges he was trying to assist and protect as far as possible on his indorsement. He is most positive in his testimony that it was never contemplated that he would accept the mortgage note as payment for the two notes he held which were secured by the indorsement of Pruden, who is reputed to be a mam of some means, and also by that of Mrs. M. Fitzsimmons, mother of the maker of the note, but that he took the mortgage note merely as collateral security. It would seem most unreasonable that he would have released a responsible indorsement and also another indorsement on which he could have enforced also rights against an entire succession, to accept, instead, a mortgage on an undivided one-seventh interest only in that estate. His testimony is strengthened by the fact that the defendant Fitzsimmons never demanded of him the return of the two notes he claims had been paid by the giving of this mortgage note and the further circumstances that it was only after more than two years of repeated demand on him to pay the balance due on the two notes, that defendant raised the question of payment, which is now presented as the defense to this action.

We have no hesitancy in accepting, as did the district judge, Mr. Heintz’s version, supported as it is by the attending facts and circumstances, of this transaction. We are of the opinion, however, that the judgment of the lower court, in awarding 10 per cent on the amount of the principal and interest sued on, as attorney’s fees, went beyond the prayer of the petition. Plaintiff not having demanded them cannot recover the attorney’s fees stipulated for in the notes. The judgment will therefore have to be amended.

It is therefore ordered that the judgment appealed from be amended by eliminating therefrom the 10 per cent on the amount of principal and interest allowed as attorney’s fees, and that as thus amended, it be affirmed.

ON APPLICATION FOR REHEARING

LeBLANC, J.

On application for rehearing, the plaintiff, in whose favor judgment was rendered, 130 So. 142, complains of our action in denying attorney’s fees in the sum of 10 per cent of the amount recovered, which had not been demanded in .the prayer of her petition.

It is said that the matter was not urged by the defendants either in this court or in the lower court, and the impression is sought to be given that we went out of our way to raise the question ex industria.

It is the business of an appellate court to correct any error that may appear to it in the judgment o'f the court a qua. It matters not whether the error arose from a misconception of the law or facts, or both, or through oversight of some point in the case.

In this case the judgment of the lower court awarded the plaintiff a sum for attorneys’ fees which had not been demanded in the petition. It was a judgment in excess of the amount'prayed for. It was no concern of ours whether the error was one of oversight or of misconception: we considered it our duty, on perceiving it, to correct it.

We did not think it necessary to cite authority to the effect that a plaintiff cannot recover in a judgment more than is demanded in his petition. The Code of Practice so provides, articles 156, 157. Article 553, Code Prac. further provides that “interest shall not be allowed by the judgment, unless the same have been expressly claimed. * * *” In her application before us, plaintiff attempts to draw a distinction between a demand for interest and one for attorneys’ fees, which we cannot appreciate as existing in relation to the question here presented. As further authority may be cited the cases of Merchants’ & Farmers’ Bank & Trust Co. v. Hammond Motors Co., 164 La. 57, 113 So. 763; Roussel v. Railways Realty Co., 165 La. 545, 115 So. 742; Gallagher v. Louque et al., 169 La. 362, 125 So. 272, and Sandifer v. Stephens, 8 La. App. 546.


author: LeBLANC, J.

text:
    No. 708
    First Circuit
    SCARDINO v. MAGGIO
    (December 1, 1930. Opinion and Decree.)
    (January 26, 1931. Rehearing Refused.)
    (March 2, 1931. Writs of Certiorari and Review Refused by Supreme Court.)

      Daspit, Huckabay & Blanche, of Baton Rouge, attorneys for plaintiff, appellee.
    Fred G. Benton and Charlés A. Holcombe, of Baton Rouge, attorneys for' defendant, appellant.
   LeBLANC, J.

This is a possessory action brought by the plaintiff, Lawrence Scardino, against the defendant, Joseph Maggio, his stepson, who, he alleges, has disturbed him in the enjoyment of his possession, as head and master of the community existing between him and his wife, Mrs. Annie Corona, of a certain store building and residence combined, situated - on a lot of ground forming the corner of Bayou Sara and Mayer Roads in the Third ward of the .parish of East Baton Rouge.

In his petition, plaintiff inadvertently ■alleged that he was a part owner of the property he was seeking to be restored to the possession of. This allegation on his part formed the basis of an exception of misjoinder of necessary parties filed by the defendant, on the ground that the petitioner had failed to disclose who was his co-owner.

It appears from the evidence, that the plaintiff and Anna Corona were married in September, 1926. After their marriage, they lived for nearly a year in a house on a lot across the railroad track of the Louisiana Railway & Navigation Company from the lot • on which the building in controversy was erected. Title to this latter lot was in the name of Donnie Corona, a daughter of the plaintiff’s wife. On this lot, they operated a gasoline filling station and soft drink stand. In the spring of 1927, Mrs. Annie Corona spent about $900 of her own money and about a like sum of her husband’s in erecting on this lot of ground the store and residence building, the possession of which is in contest before us. The old filling station and soft drink stand were demolished to give way to the new structure. They moved into it after it was completed and occupied it as a residence and conducted a mercantile business in the store part.

The use of the husband’s $900 in the' construction of the building did not make him a joint owner thereof. “The community of property, created by marriage is not a partnership; it is the effect of a contract governed by rules prescribed for that purpose in this Code.” Civ. Code, art. 2807. His money was used to benefit and enrich the community between himself and his wife and its use as such merely constituted a debt of that community in his favor. Denegre v. Denegre, 30 La. Ann. 275; Succession of Pierce, 119 La. 727, 44 So. 446. The building belonged to the community of which he properly alleges himself to be the head and master, and the purport of his petition is to show that he is acting in that capacity in this proceeding. Those are the controlling allegations of his petition to which the one that he is a part owner must give way, in view of his status under the law, and, without the latter, the exception of nonjoinder passes out of the case.

The record shows that on June 6, 1929, two weeks before plaintiff brought this action, Mrs. Annie Corona Scardino, his wife, and Donnie Corona, appeared before a notary public and entered into a contract of sale of the stock of merchandise and a lease of the building to Joseph Maggio, the defendant. On the theory that he was a lessee -of the building, the defendant filed an exception of misjoinder and nonjoinder of parties, contending that his lessor should have been made a party to the (proceeding with him. He cites in support of this plea, article 48 of the Code of Practice.

As that article of the Code is one which denies to the tenant the right to bring the possessory action and prescribes for him his remedy against his lessor, it would seem to contemplate a case in which the lessee or tenant is the aggrieved party endeavoring to bring the action. In this case the alleged fact is just the opposite. The tenant under the purported lease is charged with the disturbance and is made the party defendant. The provisions of the article cited would therefore not apply and the exception of nonjoinder and misjoinder of parties defendant was properly overruled.

Linked to plaintiff’s demand for possession of the building was a prayer for a rule nisi ordering the defendant to show cause why he should not be enjoined from selling and disposing of the stock of merchandise in the store. At the same time that it issued the order, the court also granted the plaintiff a temporary restraining order. The defendant now contends that this was an assertion of ownership .on the part of plaintiff which had the effect of cumulating the possessory with a petitory action, an act which is prohibited by article 55, Code Prac., and consequently there was an improper joinder of actions.

The defendant filed a motion to dissolve the temporary restraining order which was tried under certain exceptions to the petition. These exceptions were heard and tried separately and independently of the main demand for possession, and there resulted a judgment in favor of the defendant dissolving and recalling the restraining order and condemning the plaintiff to pay a sum of money in the way of damages for its unlawful issuance. That judgment was rendered July 15, 1929, and, as nothing further was done by the plaintiff in regard thereto, his claim in that respect seems to have been abandoned. After its abandonment, there remained but the one other demand, that for possession of the building. There was and could not thereafter be any joinder or cumulation of actions.

■This disposes of all the issues raised under the different pleas filed by the defendant, with the exception of those arising under the exception of no cause of action and under the answer filed by him. The same questions are presented in both the exception and the answer, and they can be disposed of together.

The principal contentions made under these pleadings are (1) that the plaintiff was not a possessor under the terms of articles 46 and 47 of the Code of Practice; (2) that the possession he claims was of a movable, and consequently, under the provisions of article 60 of the Code of Practice, the possessory action cannot be maintained; and (3) that he did not suffer a disturbance such as to entitle him to bring the action.

As already indicated by our reference to the evidence, the building which is the subject of the action was a community asset under the administration of the husband, plaintiff herein. He lived in the residence part of it, with his wife, and was actively engaged in the business conducted in the store. As head and master of the community which owned it, and charged with its administration, he can very well be held to have been in the actual possession of it.

The second point urged upon us is, perhaps the most important question appearing in the case; that is, with regard to the nature and character of the property involved. The defendant’s contention is based on the theory that the building is not an immovable because it was erected on a lot of ground belonging to someone else.

“Immovable things,” according to the Civil Code, art. 462, “are, in general, such as cannot either move themselves or be removed from one place to another. But this definition, strictly speaking, is applicable only to such things as are immovable by their own nature, and not to such as are so only by the disposition of the law.” Article 463 classifies immovables as those that are so by their nature, those that are so by their destination, and those by the object to which they are applied. Article 464, following immediately, specifically provides that “lands and buildings or other constructions, whether they have their foundations in the soil or not, are immovable by their nature.” It is noted that that article of the Code makes no distinction between buildings erected by the owner on his own property or those that are erected by him on the property of someone else. It would seem, therefore, that buildings, as a general class of property, are by their very nature immovables.

Another article in another part of the Civil Code would seem to emphasize the fact that buildings, those on the property of someone other than the owner as well as those on his own property, are immovables. We refer to article 3249 Civ. Code, on the subject of “Privileges on Immovables.” Under title 21 (article 3182 et seq.) the Civil Code treats of privileges undei our law. The first chapter is devoted to general provisions, the second to the several kinds of privileges, the third to privileges on movables, and the fourth to privileges on immovables. In the last chapter, we find article 3249, supra, which enumerates the different creditors .who enjoy the privilege on immovables, and in paragraph 3 we find that provided in favor of “materialmen.” “The above named parties” the article reads, referring to materialmen, “shall have a lien and privilege upon the building,” and it then provides for the effectiveness of the privilege if the building is caused to be erected by one other than the owner of the land. The privilege against the owner of both the building and the land operates against the building and also the lot of ground, not exceeding one acre, on which it is situated. As against the one owning only the building, it attaches to the edifice alone. Hearne v. Victoria Lumber Co., Ltd., 131 La. 646, 60 So. 22.

The discussion of these provisions will serve to bring out more clearly the point that, under our Civil Code, buildings, such as the one involved in this proceeding, are considered to be immovables. Aside from these provisions, the plaintiff finds authority to justify the possessory actiqn in the case of Lange v. Baranco, 32 La. Ann. 697, in which the Supreme Court of our state held that a market house erected by someone else on city property was an immovable, and that it was unnecessary for the owner of the building to be the owner of the land on which it was erected in order to maintain the possessory action.

This brings us finally to a consideration of the last point urged by the defendant, that there was no disturbance of plaintiff’s possession, but that he left voluntarily.

We believe that the testimony shows otherwise. The sale of the stock of merchandise and the lease made by the wife and daughter to the defendant, without the authority and consent, not even the knowledge of plaintiff, as well as their departure for New York,, was enough to justify his fears, and he left no doubt, as he says he did, because he wanted to avoid trouble. There is evidence to the effect that the defendant had taken possession of the property under his pretended lease even before the plaintiff left.

The disturbance took place some time between June 6th and June 9th, and plaintiff lost no time in bringing this action, which was filed on June 22, 1929.

The judgment of the lower court maintained his action and restored him to the possession of the store building and residence. We find no error in the judgment.' and it is accordingly affirmed."


author: ODOM, J.

text:
    No. 3909
    Second Circuit
    SMITH v. RAMBO ET AL.
    (December 23, 1930. Opinion and Decree.)
    (January 27, 1931. Rehearing Refused.)
    (March 2, 1931. Writs of Certiorari and Review Refused by Supreme Court.)

      John T. Campbell, of Minden, attorney for plaintiff, appellant.
    Goff & Goff, of Arcadia, attorneys for defendants, appellees.
   ODOM, J.

This is a petitory action by which plaintiff seeks to be decreed the owner of an undivided two-thirds interest in the S1/2 of NE^i of Section 10, Township 16 north, Range 10 west. He purchased the interest which he claims to own in this land from James Adams and Annie Campbell, wife of Henry Campbell, by notarial act, dated November 15, 1928, the deed reciting that the vendors inherited the property from their father and mother, William Adams and Winnie Adams. Plaintiff alleged and he contends that the said James Adams and Annie Campbell are two of the three sole, surviving, legitimate children and heirs of William Adams and his wife, Winnie Adams, who were married while slaves, according to slave custom, and who continued to live together and cohabit as man and wife for many years after their emancipation. He further alleges that defendants claim to own the said property and are asserting title thereto as children and Sole, surviving, legal heirs of the said William Adams, but that they are the bastard offspring of said William Adams and a woman named Julia Carley, and that they have acquired no interest in the land by inheritance.

The defendants admitted in answer that they claimed to own the said property and affirmatively alleged that they were the sole, legitimate heirs of the said William Adams and had acquired the entire interest therein from him by inheritance; and further, that plaintiff’s authors in title were illegitimate children and inherited nothing from their father. The trial judge rejected plaintiff’s demands and he has appealed.

The land involved in this suit was acquired by homestead from the United States by William Adams, a colored man, born a slave and who died intestate on February 10, 1927. William Adams was the father of two sets of children, one set —James, Annie and Dusta — being the offspring of his union with a woman named Winnie, two of whom, James and Annie, being plaintiff’s authors in title; and the other set, the defendants herein, being the offspring of his union with a woman named Julia Carley.

The defendants, or the children of Julia, were all born out of marriage. But William and Julia were married on February 21, 1913, many years after their children were born, and by the contract of marriage itself, they declared before a notary that the defendants (naming them), “are our own blood children, the issue of ourselves, and we hereby declare they are our legitimate children.”

This act of legitimation was, it seems, in exact accord with the provisions of Article 198 of the Civil Code and therefore the children thus legitimated would have the same rights as if they were born during marriage (Civil Code, art. 199), if there had been no legal impediment to the marriage of their parents at the time they were conceived.

But article 204 of the Code provides:

; “Such acknowledgment shall not be made in favor of children whose parents were incapable of contracting marriage at the time of conception.”

It is alleged and contended by plaintiff that at tbe time tbe children of William and Julia were conceived, William had a living, lawful wife- — Winnie, the mother of his authors in title, and that therefore, the children of William and Julia could not be legitimated and given the status of lawful heirs.

It is undisputed that the woman, Winnie, died long after the children of William and Julia were born, and it therefore follows that if Winnie and William were husband and wife, as is contended by plaintiff, and if their marriage had not been dissolved by a decree of court, these defendants are adulterous bastards and could not by an act of their parents be given the status of lawful heirs; and it further follows, of course, that if William and Winnie were husband and wife, according to slave' custom, such unions being recognized and sanctioned under certain conditions by our courts, then their children are legitimate and inherited the whole' of their successions.

But it is contended by defendants that William and Winnie were never man and wife, and the trial judge evidently did not think so, for he rejected plaintiff’s demands. We cannot agree with him.

William and Winnie were born slaves and were owned by Henry Shehee, who brought them from Georgia to Louisiana long before the Civil War. The testimony establishes to our entire satisfaction that this man and woman while slaves began to live together as husband and wife and that they continued to so live together until they were emancipated and for many years thereafter. An aged colored man named John Moore, probably ninety years old at the time of the trial and referred to by some of the other witnesses as “Uncle John,” testified that he was born a slave, was owned by the same Mr. Shehee and that he knew William and Winnie while they were slaves and after their emancipation up to their death. He says that, so far as he knows, they were never married by any formal, public ceremony, but that they were married while slaves according to what he understood to be the slave custom; that when the parties themselves consented to marry, William went to “Mos Henry” (referring tq Mr. Henry Shehee, their master) and asked him for Winnie and that “Mos Henry” gave Winnie to him and that immediately William took Winnie, carried her to the home of his parents and began to live with her as his wife and that they continued to live together during their slavery up to the time they were emancipated. He was asked if William had Winnie as- his wife during that time and he said that he did not know whether he called her his wife or not, but that after he asked “Mos Henry” for her, he took her and “I considered her his wife,” and "she cooked, washed and done everything for him.” He was asked how slaves married and he said:

“Some married by having a colored man to read the ceremony and read papers, and some did not.”

This witness was married to one of Mr. Shehee’s slaves and he was asked about the ceremony, and he said:

"They never had no ceremony, there is a way, know I ask Mr. Shehee for my wife, that was same as I was. married by the white folks laws. Slave laws.”

Mr. A. B. Shehee, eighty years old at the time of the trial, a son of Henry Shehee, who owned both William and Winnie, said he knew them both and that they lived together as slaves ordinarily did. With reference to slave' marriages, he said:

“Don’t think Winnie lived with William Adams’ father and mother, but the way the marriages among negroes, they called it taking up together, they would usually get the consent of the owners to do so, and if it was on different plantations, it seemed that the two owners of the different parties would agree, that was in those times they had what they called ‘patty rollers’ and a negro felt safe to go to his wife’s house Saturday night, that is about as far as marriages went during slavery.”

He said that he did not know whether his father consented to the marriage of William and Winnie or not. He was then probably not more than five or ten years old, too young to take note of such incidents.

From the testimony of Mr. Shehee and the aged colored man,. John Moore, it is clear that it was the custom — at least on the plantation where these slaves lived, for them to assume what they understood to be marital relations, or become husband and wife without any formal marriage ceremony, and from the testimony of John. Moore, it is clear that William and Winnie did assume marital relations in accordance with that custom..

There, is testimony in the record, admitted without objection, that both William and Winnie repeatedly told their children that they were married according to slave custom. Against this, however, is the testimony of Mr. Shehee that William told him during his latter years that he was never married to Winnie. While we do not doubt Mr. Shehee’s testimony, yet we attach no importance to William’s statement to that effect. for the reason that it was made not long prior to William’s marriage to Julia in 1913, and in response to’ Mr. Shehee’s remark to him that he already had pne wife. It was but natural that William should enter a denial in view of the fact that it was rumored that he was soon to marry Julia.

It appears that about the year 1875 or 1880, William began to visit the woman' Julia, and it is clear that he soon took her for his concubine. But, from the date of their emancipation ’ down to 1875, ’ and probably as late as 1880, William and Winnie lived together as husband and wife and William seems to have been faithful' to her. Shortly after William entered the land in question as a homestead, he built a small house upon it which he • and Winnie occupied together as a home. Later, he built’ another house on the land, into which Julia moved. For several years thereafter, he lived with both women — * with one about as much as with the other; but, after Winnie became old, palsied and feeble, he abandoned her altogether and she went to live with her daughter. She died about 1906, and several years later,” in 1913, William and Julia were married.

In support of their contention that William and Winnie were never married, coun-. sel lay stress upon the testimony of Mr. Shehee' that William told him that he was never married to her, and while, as stated, we do not doubt that William told him that, yet Mr. Shehee’s testimony as a whole shows that he, like others who knew the couple, understood that they were man and wife. He said:

“Well, he told me more than once, I was kindly joking him about having two wives after I heard he married Julia Carley, and -he said he never was married, and never had but one wife, I was accusing him of rhaving twp wives, he said he never had but one wife, I was joking him about marrying at his age.”

Aside from this testimony of Mr. Shehee’s, there is nothing in the record to' indicate that William ever desired or intended during the life of Winnie to repu-: díate his marital relations with her. While it is true that he kept Julia as a con-ubine for many years, yet during all thai time he constantly visited and cohabited with Winnie. We are strongly impressed that William did not intend to repudiate his marriage to Winnie. While it is true that after about the year 1880, he took Julia as a concubine and reared a large family of children by her and finally, it seems, became more attached to her than to Winnie, yet he did not marry Julia until after Winnie died. The fact that he did not marry Julia until after Winnie di.ed is a circumstance which indicates that William knew he had no right to marry Julia as long as Winnie lived.

Prom the record as brought before us, we find:

(1) That William Adams and the woman, Winnie, were born slaves and lived as such until their emancipation;

(2) That during their slavery they consented to marry;

(3) That they obtained the consent of their master and owner to marry;

(4) That immediately after they obtained their master’s consent to marry, they began, to live together as husband and wife in good faith, according to what they understood to be the slave custom of marriage;

(5) That they continued to live together in good faith as husband and wife until their emancipation; and

(6) That they continued their relation-’ ship as husband and wife by- living together for many years after their emancipation.

Having so found, we hold that William and Winnie acquired the status of married persons and that the children born of their union have the same r.ght of inheritance as if they had been born of a marriage between free persons.

Counsel for defendants rely mainly upon the holding in the case of Johnson’s Heirs v. Raphael, 117 La. 967, 42 So. 470, 471, that “while Article 182 of the Civil Code of 1825 is pregnant with the affirmation that slaves may marry with the consent of their masters, it surely contemplated some kind of a public celebration of the contract of marriage.”

We cannot follow the holding in that case that a slave union understood by the parties to be a marriage, subsequently ratified, is invalid merely because it was not clothed with “some kind of a public celebration of the contract of marriage” in view of the fact that such holding has been repudiated in later cases.

In the case of Succession of Blackburn, 154 La. 618, 98 So. 43, 44, the court upheld a slave marriage, although there was no proof of a public or any other celebration. The court, after referring to the cases in which there were “apparently contradictory expressions, some saying a ceremony was necessary (Johnson’s Heirs v. Raphael, 117 La. 968, 42 So. 470), and others that it was unnecessary (Marzette v. Cronk et al., 141 La. 437, 75 So. 107, and Wiley v. Bowman, 144 La. 186, 80 So. 243),” held as follows:

“We think the true solution and underlying basis for the recognition of a slave marriage is that there should have been a bona fide intention of the parties to assume, with the consent of their masters, the relation of husband and wife, and that this intention should have been carried out by the living together as such thereafter, in good faith, both before and subsequent to emancipation.”

In the case of Marzette v. Cronk et al., supra, the marriage of slaves was upheld where they had lived together as man and wife in another state and continued such marital relations after removing to Louisiana. In that case, there was some testimony that there was a formal marriage ceremony, but it was disregarded, the court saying:

“And, under the law of Louisiana, they acquired that status (of marriage), without the aid of either the Arkansas law or the ceremony, by living here openly as husband and wife and so holding themselves out from the time they arrived in this state until the relation was terminated by the death of Marzette.”

In a later case, that of Wiley v. Bowman, supra, the only ceremony was the joining of hands and the statement of their masters that they were married. It may be said that such was “some kind of a ceremony,” but we doubt that the court attached any importance to it, for in speaking of the case of Marzette v. Cronk, supra, the court said:

“It was held that the parties there had, under the law of Louisiana, acquired the status of married persons, without the aid of any - ceremony by living in this state openly as husband and wife and so holding themselves out from the time they arrived in the state until the relationship was terminated bj the death of one of the parties.”

Counsel for defendants in further support of their contention that a “ceremony” was necessary in slave marriages, cite the cases of Succession of Washington, 153 La. 1047, 97 So. 35, and Succession of Young, 166 La. 285, 117 So. 150. We do not find it necessary to discuss these cases further than to say that we do not think the court in either case intended to set aside the doctrine announced in the cases of Marzette v. Cronk, Wiley v. Bowman, Succession of Blackburn, supra, nor to give full sanction to the holding in the case of Johnson’s Heirs v. Raphael, supra, that some kind of public ceremony was a sine qua non to a valid slave marriage.

The record discloses that after, the death of William Adams, the court in an ex parte proceeding recognized these defendants as his sole heirs. That judgment was not binding upon the children of his marriage with Winnie as they were not made parties. Plaintiff in the case at bar, after setting out all the facts, prayed that the judgment be set aside. In that respect, he is entitled to relief.

For the reasons assigned, it is ordered and decreed that the judgment appealed from be reversed; and now ordered, adjudged and decreed that the ex parte order of the Second Judicial District Court of Bienville parish, In re Succession of William Adams and Julia Carley, No. 1758, probate- docket, rendered June 29, 1927, insofar, as it recognized'Daisy Adams Rambo et al. as the sole, legal heirs of William Adams, deceased, be and the same is set aside and annulled; and further ordered and decreed that Annie Adams Campbell, wife of Henry Campbell, James Adams and Dusta Adams, children of William Adams by his wife, Winnie Adams, be recognized as the sole, legal heirs of William and Winnie Adams; and further, that the plaintiff, W. B. Smith, be and he is hereby recognized and decreed to be the owner of an undivided two-thirds interest in the S% of NE% of Section 10, Township 16 north, Range 10 west, and entitled to possession thereof, and that the lawful heirs of Dusta Adams are the owners of the other one-third interest therein; all costs to be paid by the defendants.


text:
    No. 705
    First Circuit
    HOWELL v. KRETZ
    (December 1, 1930. Opinion and Decree.)
    (January 26, 1931. Rehearing Refused.)
    Chas. J. Mundy, of New Orleans, attorney for plaintiff, appellant.
    Hermann Moyse, of Baton Rouge, attorney for defendant, appellee.
   LeBLANC, J.

Mamie Gray, wife of Joshua Howell, died in the city of New Orleans, on September 8, 1926, leaving an estate consisting of a lot of ground in the city of Baton Rouge, which she had acquired from James D. Brown, on March 24, 1903.

On December 9, 1926, Belle Kretz, a natural child of Mamie Gray, claiming to be her sole heir, petitioned the Nineteenth judicial district court in the parish of East Baton Rouge, to be recognized as such and to be placed in possession of the estate. She set out in her petition that while the deed to the property showed that it had been purchased by Mamie Gray, as a matter of truth and fact it had been really bought in equal indivisión by Mamie Gray and her mother, Caroline Gray, and that Caroline Gray was the true and lawful owner of an undivided one-half of the said property. She further alleged that the building on the southern portion of the property had been erected by her and that it belonged to her entirely. On the same day that she presented her petition, the court, on ex parte affidavits, rendered an ex parte judgment decreeing: First, that she was the sole heir of the decedent Mamie Gray and ordering that as such she be sent and placed in possession of the estate;. second, that Caroline Gray and she be recognized as the owners in indivisión of the lot of ground in the city of Baton Rouge; and, third, that she be recognized as the owner of the cottage house built on the southern portion of the said lot of ground, the same having been built and paid for by her.

On June 13, 1927, Joshua Howell, representing himself as the surviving husband of Mamie Gray, opened her succession in the civil district court for the parish of Orleans. In his petition to the court he set out all the proceedings that had taken place in the court in East Baton Rouge parish and averred that they were null and void for want of jurisdiction on the part of that court, as Mamie Gray did not live in the city of Baton Rouge, but in the city of New Orleans, where she died and where she had made her home for more than thirteen years. In default of any legal relatives in either the ascending or descending line, or collateral relations, he claimed the property of the estate and asked to be put in possession thereof. He made Belle Kretz a party to the proceeding and had her cited to appear and assert any rights she might claim.

Belle Kretz appeared through her counsel and on June 28, 1927, filed an exception to the jurisdiction of the court ratione person®. The minutes of court of July 8, 1927, show that the exception was overruled. On March 9, 1928, a preliminary default was entered, and on March 20, 1927, it was confirmed by judgment of court which was signed on March 27, 1928.

Armed with this judgment in his favor, Joshua Howell came into the district court in East Baton Rouge parish and instituted a proceeding by rule to recover possession of the lot of ground in the city of Baton Rouge which was being held by Belle Kretz under the judgment obtained by her in that court.

In defense to the rule Belle Kretz presents all the proceedings conducted in her behalf in the Baton Rouge court, on which she relies for her title to the - property. She further pleads the nullity of the judgment rendered by the civil district court in New Orleans on the ground that that court was without jurisdiction ratione materi®, as Mamie Gray, so she alleges, had her domicile established, in the city of Baton Rouge, and this gave the district court of East Baton Rouge parish jurisdiction over her succession. She attacks the judgment of the civil district court in New Orleans also on the ground that the proceedings instituted in that court had been dismissed. She alleges that although the minutes of that court showed that the exception filed on her behalf to the jurisdiction of the court had been overruled, such minute entry was made through inadvertence, and the true and real fact was that the exception had been sustained by the court and the proceedings dismissed.

The Provident Building & Loan Association, claiming to have a mortgage and vendor’s lien on the lot of ground in controvérsy, intervened in the proceeding brought by Howell and joined the defendant in all of her claims and pretensions.

On the trial of the rule, counsel for Howell objected to the admission of any evidence relying entirely on the judgment obtained, contradictorily with Belle Kretz, as he contended, in the civil district court in New Orleans, which judgment was then more than a year old and had never been attacked. ' The objection was taken under advisement by the court and on a later date overruled. The court then, under objections again strenuously urged on the part of Howell, heard evidence on the question of domicile of the decedent and on the validity of the judgment rendered in New Orleans, and rendered judgment in favor of the defendant in rule, Belle Kretz, and of the intervener, Provident Building & Loan Association, recalling the rule and dismissing plaintiff’s suit at his costs.

Prom that judgment this appeal was taken.

The important, if not the sole, issue presented is the one .of jurisdiction, and to decide that issue it will be necessary to de- ' termine where the decedent, Mamie Gray, had her domicile, if she had a fixed domicile or place of residence in the state, as the only court that had jurisdiction to open her succession was the one of the parish in which that domicile was established. Civil Code, art. 935.

Each of the parties in this proceeding contests the other’s right to attack the respective judgment on which each rests for his or her rights in the succession of Mamie Gray. The defendant by her pleading in answer to the rule, however, places the question of jurisdiction before the court and submitted proof thereon over the objection of counsel for plaintiff.

Prom this proof it appears that the decedent was married to plaintiff, Joshua Howell, in the city , of New Orleans, on January 30, 1913. There is no question but that Joshua Howell resided and had his domicile in the city of New Orleans. When Mamie Gray married him, therefore, his domicile by virtue of law became her domicile also. “A married woman has no other domicile than that of her husband. * * *” Civil Code, art. 39. True it is that they quarreled and separated once or twice and were living apart at the time of decedent’s death, but there never was a judicial or legal separation between them. We do not find evidence of misconduct on the part of Howell or of ill treatment of his wife of such character as would justify a right on her part to establish a separate domicile. He was obliged to receive her and give her what was required for the conveniences of life, according to his means and condition, and she was bound to live with him wherever he chose to reside. Civil Code, art. 120; Birmingham v. O’Neil, 116 La. 1085, 41 So. 323; Stevens v. Allen, 139 La. 662, 71 So. 936, L. R. A. 1916E, 1115.

Aside from the fact that her marital status fixed her domicile in the city of New Orleans, we believe that the weight of the testimony shows that that city was actually her place of residence and her domicile. She rented a home there in which she lived, earned her means of living there, joined benevolent and fraternal insurance societies there, and died there. In considering what was her real intention in establishing her residence and place of domicile, we are satisfied that the acts referred to more than offset the occasional visits she made to Baton Rouge and her statements, as reported by a few friends and relatives that that city was her home.

Having concluded that the residence of the decedent, and certainly her domicile by reason of her marriage to the plaintiff, was in the city of New Orleans, the civil district court of Orleans parish was the court vested with jurisdiction over her succession. Civil Code, art. 935. It therefore follows that the court in East Baton Rouge parish had no jurisdiction ratione materias when it acted in the proceedings instituted there at the instigation of Belle Kretz, and the judgment rendered which placed her in possession of the property of the estate was an absolute nullity.

“It is quite true that an ex parte judgment of a court of competent jurisdiction, recognizing heirs and sending them into’ possession, though not conclusive, is yet prima facie evidence of their right. Taylor v. Williams, 162 La. 92, 96, 110 So. 100. But the court must have jurisdiction, and where the deceased was domiciled '.n the state the only court having jurisdiction over his succession is the court of the parish in which he had his domicile. R. C. C. art. 935, C. P. art. 929. A decree of any other court opening his succession and sending heirs into possession or appointing an administrator is null. Taylor v. Williams, supra.” Succession of Franklin, 164 La. 654, 114 So. 583.

See also Succession of Williamson, 3 La. Ann. 261; Miltenberger v. Knox, 21 La. Ann. 399; Clemens v. Comfort, 26 La. Ann. 270.

Such judgment being a nullity, the situation was the same as if none would have ever been rendered or ever existed. Alter v. Pickett, 24 La. Ann. 513. It is subject to attack by any one having an adverse interest- at any time and anywhere, and the latter is not forced to a direct action to have its nullity declared. Decuir v. Decuir, 105 La. 481, 29 So. 932. In citing this last case in State v. Nicolosi, 128 La. 836, the court said at page 846, 55 So. 475, 478;

“And, so far as nullity resulting from absence of jurisdiction is concerned, why that is a matter which in the words of this court in the case of Decuir v. Decuir, 105 La. 485, 29 So. 934, ‘may be invoked by any one at any time and anywhere.’ ”

The judgment under which Howell, plaintiff in rule, is proceeding, is an apparently valid one which places him in possession of the property of the estate and more particularly of the lot of ground in the city of Baton Rouge, and he is entitled to a writ of possession under article 630 of the Code of Practice. State ex rel. Levy v. Bondy, 15 La. Ann. 573, 77 Am. Dec. 198; Martel et al. v. Jennings-Heywood Oil Syndicate, 114 La. 903, 38 So. 612. He did not ask for the immediate issuance of the writ, but had a rule nisi issue against the defendant Belle Kretz to show cause why it should not be granted. She joined issue with him on this rule, raising the question of jurisdiction and assailing the judgment on which he rested on the further ground that it had been entered upon the minutes of the court which rendered it “through some extraordinary error and oversight on the part of” the presiding judge. By timely objection to the introduction of evidence to prove what that error consisted of, counsel for Howell protected his right against attack of that judgment in this proceeding. Mere inadvertence or extraordinary error or oversight on the part of the judge does not give rise to an annullment of a judgment in a collateral manner. Article 607 of the Code of Practice provides that “a definitive judgment may be annulled * * * where it appears that it has been obtained through fraud or other ill practices on the part of the party in whose favor it was ren: dered.” We find in the Louisiana cases cited by counsel for defendant that it is held merely that “the courts have discretionary power to determine what kinds of frauds or ill practices strike a judgment with nullity.” Miller v. Miller, 156 La. 46, 100 So. 45, 47. It is to be observed that the court distinctly' uses the words “fraud or -ill practices.” In all other cases referred to, relief seemed to have been granted under the rules of equity peculiar to the common law, which of course we can only resort to in the absence of any express law on the subject. C. C. art. 21.

The claims of the intervener, Provident Building & Loan Association, are entirely dependent upon the claims and pretensions of the defendant in rule, Belle Kretz, and as judgment shall be rendered against her, it follows that the intervention will have to be dismissed.

It is therefore ordered that the judgment herein appealed from be avoided, set aside, and reversed, and that judgment be now rendered in favor of Joshua Howell, plaintiff in rule, and against defendant, Belle Kretz, condemning her to vacate the premises known as No. - Maine street, in the city of Baton Rouge, La., the same being the lot of ground belonging to the succession of Mamie Gray, and to deliver possession of same to the said plaintiff, Joshua Howell.

It is further ordered that the intervention of Provident Building & Loan Association, intervener herein, be and the same is hereby dismissed at its cost, all other costs to be paid by the defendant in rule.


author: LeBLANC, J. PER CURIAM.

text:
    No. 680
    First Circuit
    BERRY v. GREAT SOUTHERN LBR. CO.
    (October 8, 1930. Opinion and Decree.)
    (January 26, 1931. Rehearing Refused.)
    Ott & Rich, of Bogalusa, and Tracy & Neuhauser, of New Orleans, attorneys for plaintiff, appellant.
    Ott & Johnson, of Pranklinton, attorneys for defendant, appellee.
   LeBLANC, J.

Plaintiff, Nancy Berry, brought this suit against the defendant, Great Southern Lumber Company, for compensation for the death of her brother, John Berry, on whom she alleges she was dependent. He was employed by defendant in its sawmill at Bogalusa, La.

She avers that he had no wife with whom he was living or who was dependent on him for support at the time of his injury and death, nor did he have any child or children, nor dependent parent or parents. She avers further that she was his sister and was wholly and fully dependent upon him for support, and as there were no other dependents she is entitled to be paid the compensation that is due him under the Workmen’s Compensation Law of the state (Act No. 20 of 1914, sec. 8, subsec. 2(D), as re-enacted by Act No. 242 of 1928). As a dependent sister, she claims 32% per cent of his weekly wages, which she alleges were $30.24, for the period of three hundred weeks.

The defendant admits the employment and accidental death of the deceased, avers that his average weekly wage at the time of his death and for more than a year prior thereto was $14.75, admits that he had no wife, children, or dependent parents, but denies the dependency of the plaintiff and any consequent liability for compensation to her.

After hearing evidence on the trial of the case which involved only the question of dependency, the trial judge rejected plaintiff’s claim and dismissed her suit at her costs, and an appeal was taken to this court.

The testimony reveals that this plaintiff was living at the time of her brother’s death, and for more than eleven years pri- or, at a place called D’Lo, Miss., about one hundred miles from Bogalusa. She was forty-two years of age at the time of the trial of the case in the district court and seems to have had quite a hectic career as far as her matrimonial experience is concerned, as we find from her testimony that before her first marriage she was already the mother of two boys who bore the name of Bass; she was afterwards married to a man by the name of Wright, of whom she says, “It was reported to me, he got in trouble and his brother notified me he had got killed”; and finally contracted a third marriage with Will Varno of whom, when she is asked, “Is he living or dead?” answers, “Living, I guess.” There was only one child born of her marriage with Wright, a boy named C. W. Wright, and there were two girls from her last marriage, Mary and Ruby Varno. The first two children named Bass are both men, one of them being employed by the Hibernia Bank & Trust Company, in New Orleans, and the other by the defendant herein. Her son C. W. Wright, who she says is twenty years old, lives at Bogalusa and also works for the defendant company. Her two girls live with her at D’Lo. She has another brother, Ezra Berry, who lives in the state of Ohio. She owns property at D’Lo, Miss., on which she pays $17 or $18 taxes a year, has an interest in some other property which belonged to the estate of her father and mother, and has learned the trade of “ladies’ hair-dressing,” from which, however, she says she derives very little revenues. . Her testimony is to the effect that her brother, John Berry, contributed from time to time various sums of money for her support. In the third week of August, 1927, for instance, she says he gave her $175. In January, 1928, he gave her $125, she says, and again in December, 1928, she speaks of him having given her $200.

She produced two witnesses, friends of hers, Claude Lee and John Haas. The first had a distinct recollection of having seen her brother John give her $190 some time in December, 1928, and when asked what did John have to say when he gave her that money, he replies: “He didn’t say anything,» I said what was said, I made a miration about him having so much money, he said he had been coming and doing that before, he come up there and give her support.” Haas, the other witness, raises the amounts still higher and has knowledge of two contributions of $250 each, one in January, 1928, and the other in December of the same year. On one occasion he is positive of the amount because he saw the money counted. He asked John Berry for a cigarette. Berry did not have any, so he called his sister and asked her to get the money he had just given her, and she brought out a wad, which on beholding he was forced to exclaim: “Eh! me, you’ve got a wad of it there, looked like a hundred dollars, he says it’s more than a hundred dollars, and he give the boy fifteen cents. * * * ” The money was then recounted, according to his testimony, and on being asked how much there was, he answers: “Two hundred and fifty dollars, ’scuseing the fifteen cents he taken out. I says, you’re alright, and he says T am supposed to take care - of the only sister I have, she cared for mamma, I have been doing this some time.”

We have commented on and quoted from the testimony perhaps a bit more than was necessary in an effort to convey more strongly our impression of its gross exaggeration which makes it unworthy of serious consideration. The evidence shows that John Berry, the deceased employee, was supporting a woman in Bogalusa who bore the relation of a common-law wife to him, that he paid $10 out of his wages every month for rent, paid his grocery bills regularly, and he had bought an automobile which he had to return because of his inability to meet the installments as they became due. It would be unreasonable, as said by the learned district judge, “to think that a negro man living with and supporting another family in Bogalusa, earning small wages, buying automobiles and unable to pay for the cars, would be able to give Nancy Berry living a hundred miles away, who is a large, healthy, strong woman, any such money, or for that matter any sum whatever.” He characterizes the entire testimony as pure fabrication.

We are satisfied that this plaintiff has not shown that she was “wholly and actually dependent” on her brother, as she had to be in order to recover compensation, and are convinced that her demand was properly rejected in the lower court.

ON APPLICATION FOR REHEARING

PER CURIAM.

Our opinion in this case states that “this plaintiff has not shown that she was ‘wholly and actually’ dependent on her brother as she had to be in order to recover compensation.”

On application for rehearing, our attention is directed to the fact, that under our compensation statute, it is not necessary for a sister to show that she is “wholly and actually dependent.” It is urged that if she is only partially actually dependent upon the deceased employee’s earnings, she may recover. That is correct. For partial dependency, she may recover in an amount proportionate to the sum she would receive in case she were wholly dependent. It was perhaps in following the pleadings in the case a bit too closely, that we may have used the words “wholly and actually” inadvertently.

A further consideration of the case however has not brought us to a different conclusion regarding the merits of her claim, and we are still convinced that the plaintiff has not proven any dependency which entitles her to compensation.

The application for rehearing is therefore denied.


text:
    No. 702
    First Circuit
    KOCKE v. GARNIER
    (December 1, 1930. Opinion and Decree.)
    (January 26, 1931. Rehearing Refused.)
    George R. Blum, of Donaldsonville, attorney for plaintiff, appellant.
    Ellis, Ellis & Ellis, of Amite, attorneys for defendant, appellee.
   LeBLANC, J.

In this case, we are presented with this direct question: Is the carrier’s privilege on the movables carried, accorded by paragraph 9 of article 3217, Civil Code, .restricted to any particular kind of carrier, or is it created in favor of the private as well as the common carrier?

The facts, as disclosed by the plaintiff’s petition, are to the effect that the plaintiff and defendant entered into a certain agreement under which plaintiff was to haul, carry, and transport, for the defendant, an oil well drilling rig with all its appurtenances, from Belle Helene, in the parish' of Ascension, La., to Burnside station in the same parish, and there load the same aboard cars of the Yazoo & Mississippi Valley Railroad for shipment to some point in the state of Texas. Defendant, under the agreement, was to pay the plaintiff for this work, the sum of $400. Plaintiff fulfilled his part of the agreement by transporting the drilling rig and loading it on the cars of the railroad company, and, on defendant’s failure to pay him the price agreed upon within five days, had a lien recorded in the office of the recorder of mortgages in the parish of Ascension. Defendant still neglected to pay, and, three days later, plaintiff obtained an order of sequestration and had the rig seized under the privilege which he claimed. Defendant at first filed an exception to the jurisdiction of the court ratione person®, but then appeared to bond the sequestration. The exception to the jurisdiction was later on abandoned. He then filed an exception of no cause or right of action, coupled with a motion to dissolve the writ of sequestration. The motion to dissolve was tried on the face of the papers and was sustained by the trial judge who at the same time condemned the plaintiff to pay the defendant attorney’s fees in the sum of $25 and reserve to the latter the right to claim other damages asked for in the motion to dissolve.

As the plaintiff' was entitled to the writ of sequestration if he had a privilege, we assume that the judgment of the lower court was based on the conclusion reached by it that there was no privilege. No written reasons were assigned, but we take it from the argument presented in this court that the trial judge was of the opinion that the privilege here claimed is limited to common carriers, and, as it did not appear that the plaintiff was a common carrier, he held that he did not enjoy the benefit of the law.

The article of the Code under which the carrier’s privilege arises, Civ. Code, art. 3217, par. 9, reads as follows:

“The debts which are privileged on certain movables, are the following:
* * *
“9. The carrier’s charges and .the accessory expenses, on the thing carried, including necessary charges and expenses paid by carriers. * * * ”

This article is found under, section 2, of-chapter 3, of title 21 of the Civil Code (ar-. tides 3216-3236) under the title “Of the Privileges on Particular Movables.” The same section of the same chapter in the Code of 1825 treats of the same subject-matter, and the same privilege is granted to the carrier under paragraph 9, of article 3184 of that Code. Reference to the edition of the Code of 1825 in the French tongue will show that. the language used was taken verbatim from the Code Napoleon, art. 2102, and, reads as follows:

“Les creances privílegiees sur certains meubles, sont:
(i-£ * * #
“6. Les frais de voiture et les depenses accessoires sur las chose venturee.”

One has but to compare the language quoted with that used in our present Civil Code to observe the striking similarity.

The article, being one that is transported almost literally into our law from the French Code, the views of the commentators on that Code will‘naturally be of valuable assistance in determining whether the law ever contemplated a distinction, between carriers when it came to grant them a privilege on the movables transported by them for ■ their charges. ■

Consulting a few of. them, notably- Delvincourt, Duranton, • and- Baudry-Lacontinerie, we find that certainly ’the French law made no distinction between carriers who transported goods by land and those who carried them over the water. Delvincour.t, in- his Cours du Droit Civile, volume 3, page 113, describes the business of carriage as that arising under' contracts of various forms by which a person obligates himself, for an agreed price, to transport, or have transported, an object of some kind, to -a designated place. The one so obligating himself personally, is "called “voiturier” (carrier) and the one who obligates himself to have the object transported, is a “commissionnaire” or “entrepreneur de roulage.” The provisions of the chapter which he is treating, he adds, apply in general to all those who obligate themselves to transport goods, such as “les maitres de bateau” and “les entrepreneurs de ■ voiture publiques,” which latter, he goes on to say, are, in addition, subject to special rules and regulations which form the law between them and the other citizens. Further on, in discussing the rights of the respective parties under the contract, he says:

“Outre l’action resultant de cette obligation, le commissionnaire et le voiturier ont encore un privilege pour leur remboursement, sur les objets transportes, dont ils sont saisis, privilege qui leur donne le droit de íes faire vendre, avec Tautor.isation de justice, jusqu’a ' concurrence' du prix de la voiture.” Marginal reference is made to article 2102.

It is to be noted that he mentions the privilege' as one enuring to the “Commissionnaire’’ or the “voiturier” in a general way and he does not restrict it to any particular kind or class which he had described in a preceding paragraph.

Baudry-Lacontinerie, Traite de Droit Civil, in his discussion of the “privilege du Voiturier” under paragraph 6 of article 2102, Code Napoleon, is to us a bit more explicit in making it appear that the law makes no distinction between the different kinds of carriers. We quote the following:

“La creance • privilegee sur les effets transportes est celle du voiturier, c’est a dire de celui qui (habituellement óu aceidentellement) se charge de transporter la chose, siot par terre siot par eau.”

Then, to emphasize the matter, as it appears to us, he asks the question:

“Qu’entend-on par voiturier dans Particle 2102, para. 6?”

And he answers it as follows:

“Les v'oitiiriers sont eeux qui, par profession, se chargent des transporté par terre. ou par eau; telle est 1’acception ordinaire du mot; dans la' ma'tiere des privileges il faut Tetendre a ceux que font accidentellement un transport a titre onereux. * * * ”

The privilege, we. are told further, is founded according to certain authors on the greater value that is given to the thing transported by reason of ■ the act of transportation. Indeed, the underlying reason for all privileges on particular movables is the added advantage derived by the owner of the movable or the enhanced value given to the movable itself, by- reason of the act of the one who produced that advantage or greater value. 'It is the natüre of the act producing that result which brings into existence the privilege, and not the character,, of the person who performs it; and. there is no reason, as far as we know, why the private carrier, who performs the same service and accomplishes the same results, in so far as the movable is concerned, should not be accorded the same privilege as the common, carrier.

Our law, as we view it, distinguishes between common and private carriers only because of the public nature of the business of the common carrier. The latter deal with the public as a body, and because of this they are subject to governmental regulation and control. We fail to see, however, how this distinction can in any way have any bearing on the question of privilege, if, as already stated, the consideration for the privilege is the benefit which the owner of the thing carried derives from its transportation.

In this case, the drilling rig was most probably an idle piece of machinery as long as it remained where it was at Belle Helene, but, transported to a railroad car at Burnside on its way to another destination, it became active again, as it were, and undoubtedly of greatest service to its owner than where it was. As it was the plaintiff’s act which made it of .greater service to the owner, he is, in our opinion, entitled to the privilege, regardless of the class of carrier to which he belongs.

The contention is made that the contracts between the parties in this case contemplated two different kinds of service, that is, the hauling of the machinery to Burnside and its loading there on railroad cars, and, there being no law granting a privilege for loading, the plaintiff’s claim thereto does not exist. We do not agree with this contention, as we are of the opinion that the loading of the machinery on the cars was incidental to and part of the general contract of carriage. By its very nature, the contract of carriage implies a place of destination for the goods that are transported. Here, that place was on board these railroad cars at Burnside station, and, when the plaintiff transferred them from his conveyance to these cars, he was merely completing his contract of carrying them.

As the plaintiff is entitled to the privilege he claimed, and, as he had complied with the requisites of the law, he was also entitled to the writ of sequestration, and the judgment of the lower court dissolving the same was. erroneous, and should be reversed.

It is therefore ordered that the said judgment be, and the same is hereby, set aside, avoided, and reversed, and that there be judgment in favor of the plaintiff, Elray Kocke, and against the defendant, Wade J. Gamier, maintaining the writ of sequestration herein issued, with recognition of the said plaintiff’s lien and privilege upon the property sequestered thereon.

The defendant to pay all costs.


author: WEBB, J.

text:
    No. 3054
    Second Circuit
    BAIN v. MANN & STERN
    (December 23, 1930. Opinion and Decree.)
    (January 27, 1931. Rehearing Refused.)
    (March 2, 1931. Writs of Certiorari and Review Refused by Supreme Court.)

      M. F. Johnson, of Shreveport, attorney for plaintiff, appellee.
    Thigpen, Herold & Cousin, of Shreveport, attorneys for defendant, appellant.
   WEBB, J.

Plaintiff, . H. H. Bain, doing business under the name of H. H. Bain Sheet Metal Works, brought this action against ‘the partnership of Mann & Stern, composed of George R. Mann and Eugene J. Stern, to recover judgment against the partnership and individual members, in the sum of $985 with legal interest from September 1, 1925, and defendant, being a nonresident of the State, plaintiff obtained the issuance of a writ of attachment under which certain property was seized.

Plaintiff alleged in substance that defendants were architects, and that the firm had drafted plans and specifications for the construction of a certain building; that the construction of the building was let to the Stewart-McGehee Construction Company, and had been constructed under the supervision of defendant; that the contractors had sublet the sheet metal work to plaintiff, and the plumbing work and heating and ventilating system to Robinson Brothers, who sublet- a part of the work to plaintiff.

Plaintiff further alléged that defendant had made errors and omissions in the plans and specifications, which had been changed without the authority of the owners of the building, and that defendant had ordered and directed plaintiff to conform his work to the changes, which required other work than was called for under the original plans, on which plaintiff’s' bid was based, and required a greater expense.

One of the changes related to a shaft or stack, which the original plans provided should be constructed of 22-gauge metal, which was changed to 12-gauge metal, and which was constructed and installed by plaintiff at an alleged increase of cost of $510; another related to an alleged change in the plans so as to show a ventilating shaft extending from the ceiling of one of the rooms to the floor, which work was done by plaintiff at an additional cost of $175; and another to change the course in which certain ventilating shafts should run and requiring the installation of certain fixtures, at an additional cost of $300’, which amount plaintiff alleged defendant had agreed to allow as an extra charge.

Defendant appeared by counsel and filed an exception of no cause or right of action, which was overruled and defendant reserving its rights under the exception, answered, denying that it had ever had any contractual relations with plaintiff, and alleged that if plaintiff had any claim for extras, it should proceed against the contractor or owner; that defendant’s connection with the building was solely as an architect employed by the owner, and that all work done was in connection with the erection of the building and in behalf of the owners, with their consent and approval.

On trial judgment , was rendered in favor of plaintiff for $510, with interest and cost, and otherwise rejecting his demand, from which judgment both parties appeal; defendant urging that the exception of no cause or right of action should have been sustained, and if the exception should not be sustained, that plaintiff failed to establish any of his demands, and his demands should be rejected and defendant’s rights reserved to proceed on the injunction bond to recover all damages resulting from the suit; while plaintiff urges that the judgment should be amended, and judgment rendered for the full amount demanded.

Considering the exception of no cause or right of action; while plaintiff alleged that he had been damaged to the amount claimed, we do not understand that it is claimed that the action is one in tort but that the claim is to enforce a contract. Plaintiff apparently takes the position that defendant was the agent of the owners, with limited powers, and that defendant' had exceeded its powers and rendered itself liable. (Citing Corpus Juris, Architects, vol. 5, pages 256, 257, sections 4 and 5, which read in part as follows:

“(Sec. 4) Where an architect is employed as an architect to prepare plans, or plans and specifications, for a building, and also to superintend the erection of the building, his relation to his employer extends no further than the performance of those services; his powers as agent being limited by his contract. He has authority to proceed in the usual way, and the employer may constitute him his agent generally for all purposes connected with the erection of the building; but apart from an agreement to that effect an architect is not the general agent of the owner, and has no authority to bind the owner by contracts for any work done upon or materials furnished for the structure concerning which he is employed.”
* * * * *
“(Sec. 5) An architect superintending the erection of a building has generally no authority to make alterations in the plans and specifications and bind his employer for extra work, or to make any changes in the original contract between the builder and his employer, unless the power to do so is conferred on him by the contract, either in express terms or oy necessary inference; and where an architect is authorized to order extra work "and alterations in a specified manner, the employer will not be liable unless the terms of the power are strictly complied with.”

And Articles 3010 and 3013 of the Civil Code, which read as follows:

“(Art. 3010) The attorney can not go beyond the limits of his procuration; whatever he does exceeding his power is null and void with regard to the principal, unless ratified by the latte», and the attorney is alone bound by it in his individual capacity.”
“(Art. 3013) The mandatary is responsible to those with whom he contracts, only when he has bound himself personally, or when he has exceeded his authority without having exhibited his powers.”

While there is not any allegation of the nature of the contractual relationship between defendant and the owners, other than may be inferred from the allegation that defendant had drafted the plans and specifications and supervised the construction of the building, which facts both parties apparently concede constituted defendant as the agent of the owners; but conceding that .such was the relationship existing between the owners and defendant and that defendant dealt with plaintiff as such, there is not any presumption that defendant exceeded its powers.

Under the provisions of the Civil Code quoted above, and the provis»on of article 3012 (Civil Code), which provides that, “the mandatary who has communicated his authority to a person with whom he contracts in that capacity, is not answerable to the latter for anything done beyond it, unless he has entered into a personal guarantee,” it is clear that when the agent acts for his principal, he can be held liable only when he has exceeded his authority or when he has personally bound himself, as by guaranteeing the fulfillment of the engagement entered into.

In the present instance there is not any-allegation showing the authority of the agent, which may have been much more extensive than the allegation that defendant drafted the plans and specifications and supervised the construction of the building indicates, as the owner and architects, defendant, were at liberty to contract as they pleased. We cannot assume that defendant exceeded its authority, and plaintiff having failed to allege what was the extent of defendant’s authority, we cannot say the action alleged to have been taken by defendant was in excess of their authority. The mere allegation that defendant exceeded its authority would not authorize plaintiff to proceed directly against the agent under the provisions of' the Civil Code quoted above; and considering the allegation that the installation of the ventilators, etc., in the kitchen, was at an agreed cost of $300, with the petition as a whole, it cannot be considered that defendant, the agent of the owners, either guaranteed or bound itself to pay such amount, and we are of the opinion that the petition failed to state a cause of action.

Aside from this, however, while article 2763 of the Civil Code provides that when an architect or builder undertakes to construct a house by the job, according to plans agreed upon, there cannot be any increase in the price on the ground that the plans had been changed or extended, unless he can prove the changes were made in compliance with the wishes of the owner, article 2764 of the Civil Code provides an exception when the alteration or increase was necessary and had not been foreseen, and we are of the opinion that when an error or omission is made by the architects having supervision of the work, who drafted the plans, the owner would, be bound to pay the contractor for the increased cost of the work due to such changes. (See Erskine v. Johnson, 23 Neb. 261, 36 N. W. 510.)

The judgment appealed from is therefore avoided and set aside; and it is now ordered that the exception of no cause of action be sustained, and plaintiff’s suit dismissed at his cost, and reserving all rights that defendant may have to proceed on the attachment bond.