text:
    No. 3316
    Second Circuit
    CARTER v. MO. PAC. R. CO. ET AL.
    (January 2, 1929. Opinion and Decree.)

      J. B. Nachman and T. A. Carter, of Alexandria, attorneys for plaintiff, appellee.
    Hudson, Potts, Bernstein & Sholars, of Monroe, and Hawthorn & Stafford, of Alexandria, attorneys for defendant, appellant.
   STATEMENT OF THE CASE.

REYNOLDS, J.

Plaintiff, Mrs. Sallie Webb Carter, as administratrix of the succession of William H. Carter, deceased, sued the defendants, Missouri Pacific Railroad Company and Texas & Pacific Railway Company, under the Federal -Employers’ Liability Act (45 USCA Secs. 51-59), for judgment against them in solido in The sum of $43,000, for the use and benefit of herself and her two minor children, issue of her marriage with the deceased.

She alleged that defendants were interstate and intrastate carriers by railroad, and that her husband was employed by them as an inspector .and repairer of cars at their yards in the city of Alexandria, La.

She furth'er alleged that her husband was killed through the negligence of the defendants on December 26, 1926, while performing duties for them in furtherance of interstate commerce.

She also alleged that at the time of his death he was 42 years old, and earning an average of $156 a month, and had a life expectancy of 27.45 years, and that she and her children were living with and dependent on him for support.

Of the $43,000 demanded, $300 is claimed for the burial expenses of the deceased and $42,700 for damages alleged to have been sustained by the widow and children.

Various acts of alleged negligence are specified, but, in the view we take of the ease, it is not necessary to enumerate them.

In the alternative, plaintiff alleges that, if the duties the deceased was performing at the time of his death were not in furtherance of interstate commerce, and, on that account, she1 is not entitled to the benefits of the Federal Employers’ Liability Act, then she is entitled to judgment against the defendants in solido under the state Workmen’s Compensation Act (Act No. 20 of 1914, as amended) for $20 a week for 300 weeks, beginning with the date of the death, with legal interest on each payment from its maturity until paid, and for the further sum of $300 for the burial expenses of the deceased; and she alleges that he was earning $5.20 a day or $36.40 a week at the time of his death, that he was employed by defendants as an inspector and repairer of cars, and was accidentally killed while performing duties arising out of and in the course of his employment, and that defendants were informed of his death at the time it occurred.

And she prayed for judgment againqi the defendants in solido under the Federal Employers’ Liability Act for the use and benefit of herself and her two minor children in the sum of $43,000, with legal interest thereon from judicial demand; and, in the alternative, in the event she was not entitled to the benefits of the Federal Employers’ Liability Act, she prayed for judgment against the defendants in solido under the state Workmen’s Compensation Act for the use and benefit of herself and her two minor children for compensation of $20 a week for 300 weeks, beginning with, the date of the death, with legal interest on each payment from its maturity until paid, and for $300 for the burial expenses of the deceased.

The defendant Texas & Pacific Railway Company denied that the deceased was in its employ.

The defendant the Missouri Pacific Railroad Company answered, admitting that the deceased was in its employ in the capacity of car inspector, and that he was killed by a train of cars being moved by a locomotive operated by it running over him, and alleged that it was without knowledge or information sufficient to form a belief as to whether the deceased was performing or attempting to perform an act within the scope of his employment, and therefore denied that he was; or whether any act he was performing or attempting to perform was in furtherance of interstate commerce, and therefore denied that it was; or whether the deceased was related to plaintiff or her minor children in the manner alleged, and therefore denied that he was;' or whether plaintiff or her childrefl were dependent on him for support, and therefore denied that they were; or whether the deceased was of the age alleged,.and therefore denied that he was.

And defendant the Missouri Pacific Railroad Company categorically denied the various acts of alleged negligence, and alleged that the decedent was at the time of his death and had been for a number of years engaged in railroad work, several years of which had been spent in employment in the yards at Alexandria; that the decedent was entirely familiar with the layout of tracks and the method of handling trains and switching the same and movements thereof in the yards at Alexandria; that he was entirely familiar with the rules regulating service of employees operating and working in said yards, and especially familiar with the rules requiring employees engaged in repairing cars or equipment in said yards and on tracks that might be used by movement of trains or cars there-over or thereupon to properly protect themselves while working in, around, under, or about any cars or equipment thereon, with proper warning flags indicating the presence of such employee, in order to prevent other employees moving trains or parts of trains or locomotives or cars in such a way as to injure or interfere with them while performing such duties; that, if the deceased was, at the time he was killed, engaged in repairing any car on the track on which the switch engine was being operated at the time, but which is especially denied, he failed to make his presence known by any of the ordinary methods provided and required by the rules of the employment under which he was acting, and thereby assumed the risk of danger incident to his undertaking any such work of repair under such circumstances, and was wholly in fault, and. his death was due wholly and only to his own want of care, negligence, and failure to observe the ordinary precautions required to be taken under such circumstances and the proximate cause of his death was his own fault, carelessness and negligence, and as the result of his assumed risk, if it occurred as alleged in plaintiff’s petition, which is especially denied.

On these issues the case was tried, and there was judgment rejecting plaintiff’s demands and dismissing her suit as to the defendant Texas & Pacific Railway Company, and in favor of the plaintiff, as administratrix of the succession of William H. Carter, for the use and benefit of herself individually and for her minor children, against the defendant the Missouri Pacific Railroad Company, for $17,725.49, with legal interest thereon from judicial demand.

From this judgment, the defendant the Missouri Pacific Railroad Company appealed.

The plaintiff did not appeal, nor has she filed in this court any answer to the defendant’s appeal asking any amendment of the judgment in her favor.

OPINION.

Plaintiff could not maintain the action under the Federal Employers’ Liability Act without proving that the deceased, at the time of his death, was performing or attempting to perform some act, in the course of' his employment that was in furtherance of interstate commerce. She alleged that he was, and defendant denied it, and it was incumbent on her to prove it. She introduced no evidence tending to show what the deceased was doing or attempting to do at the time of his death. Neither was it shown that the train or the locomotive and ears that ran over deceased and killed him, or any of them, was engaged in an interstate operation at the time. The evidence shows that the deceased was in the course of his employment by defendant. Work had been done on a car, and a nut had been screwed on a bolt as far as it could be done with the fingers, and the wrench and other tools of the deceased and nuts were scattered around his lifeless body where it was found under a car. But there is no evidence tending to show that the work done or attempted to be done was connected in any way with interstate commerce.

It follows, therefore, that the district court erred in awarding plaintiff judgment under the Federal Employers’ Liability Act.

However, though not entitled to recover under that act, plaintiff was entitled to judgment under the state Workmen’s .Compensation Law.

The defendant admitted that the deceased was in its employ, and that he was killed in an accident arising out of and in the course of his employment, and tbe record shows all facts necessary to entitle plaintiff to judgment under the state law proved.

But the defendant insists that, inasmuch as the plaintiff neither appealed nor answered its appeal, this court is powerless to award her judgment in the Louisiana Law.

We are not cited to any law or sufficient reason in support of this contention, and we know of none. Plaintiff asked for judgment under the state law in the alternative, and proved all facts necessary to entitle her to it, and we do not think she lost her right to recover because the district court applied the federal when it should have applied the state law to the facts.

The Code of Practice, art. 905, provides:

“When, the Supreme Court reverses the judgment of an inferior court, it shall pronounce on the case the judgment which the lower court should have rendered, if it he in possession of all the facts and testimony to enable it to pronounce definitively.” Lumpkin vs. Reiser Mach. Shop, 120 La. 597, 45 So. 518.

The judgment, in so far as it is in favor of the plaintiff and against the defendant, is correct, and is incorrect only in so far as it is founded upon the federal instead of the state law and awards her a larger sum of money than she is entitled to. And while this conclusion requires that the judgment be reversed and a new one in favor of the plaintiff rendered by us, the new judgment will really be in defendant’s favor, as it will reduce the amount of the award, and only technically in plaintiff’s favor.

Section 8 of the Louisiana Workmen’s Compensation Act, as amended by Act No. 85 of 1926, provides, among other things:

“2. For injury causing death within one year after the accident there shall be paid to the legal dependents of the employee, actually and wholly dependent upon his earnings for support at the time of the accident and death, a weekly sum as hereinafter provided. * * *
“(A) The following persons shall be conclusively presumed to be wholly and actually dependent upon the deceased employee:
“(B) A wife upon a husband with whom she was living at the time of her (the) accident or death. * ® *
“(D) A child or children under the age of eighteen years. * * ® In case there are both surviving wife and child or children, * * ■ * the compensation due under this act- shall be paid entirely to the surviving * * * wife for the common benefit of such wife * * * and the child or children. * * *
“(E) Payment to such dependents shall be computed and divided among them on the following basis: * * *
“(G) Where there is a surviving widow, widower and child or children, entitled to compensation, the compensation above described shall be paid entirely to the widow or widower for the common benefit of such widow or widower and child or children, and the appointment of a tutor shall not be necessary. * *
“(J) Where payments of compensation have been made to the employee before his death, the compensation for dependents as provided for in this Section shall begin on the date of the last of such payments and shall not continue for more than three hundred weeks from the date of the accident. * * *
“3. The term ‘wages’ as used in this act is defined to mean the daily rate of pay at which the service rendered by the injured employee is recompensed under the contract of hiring in force at the time of the injury, and anything herein contained to the contrary notwithstanding the maximum compensation to be paid under this act, shall be twenty dollars per week, and the minimum compensation .shall be three dollars per week. * * *”

The deceased, at the time of his death, was receiving a daily wage of $5.20, and plaintiff should have had judgment for $20 a week for not exceeding 300 weeks, dating from the day of the accident, with legal interest on each payment from its maturity until paid, and for the additional sum of $150 for burial expenses of the deceased and reasonable contingent expenses in connection therewith, with legal interest thereon from judicial demand.

It is therefore ordered, adjudged, and decreed that the judgment appealed from be annulled, avoided, and reversed, and it is now ordered, adjudged, and decreed that the plaintiff, Mrs. Sallie Webb Carter, have and recover judgment, for the common benefit of herself and her two minor children, against the defendant the Missouri Pacific Railroad Company for compensation of $20 a week for not exceeding 300 wéeks; the first installment being decreed due December 26, 1926, with legal interest on each payment from its maturity until paid, and for $150, for the burial expenses of the deceased and reasonable contingent expenses in connection therewith, with legal interest thereon from judicial demand.

It is further ordered, adjudged, and decreed that the defendant the Missouri Pacific Railroad Company pay all costs of this suit.


source: Caselaw Access Project

author: CLAIBORNE, J.

license: Public Domain

text:
    No. 11,268
    Orleans
    JOYNES v. TOYE BROS. AUTO & TAXICAB CO., INC.
    (August 13, 1928. Opinion and Decree.)
    (October 15, 1928. Rehearing Refused.)
    Henry W. Robinson, of New Orleans, attorney for plaintiff, appellee.
    David Sessler and Gordon Boswell, of New Orleans, attorneys for defendant, appellant.
   CLAIBORNE, J.

This is a damage suit for physical injury.

The plaintiff alleged that on July 17, 1926, at 1:30 p. m., plaintiff and her husband were standing on the downtown lake side corner of Poydras and Baronne streets preparing to cross Baronne street on the downtown side of Poydras street going towards the river, waiting for the up traffic to pass in accordance with the traffic light signals; that when the red light signals flashed across Baronne street as a signal to vehicular traffic on that street to stop, and when the green light flashed across Poydras street as a signal to traffic on that street to move along the traffic officer beckoned to plaintiff to cross; that she started to cross Baronne street, and had proceeded a foot or two beyond the middle of the roadway, when a yellow cab of the defendant company, which had been driving up Baronne street, dashed up and into the Poydras street intersection; when the chauffeur realized that he had violated the traffic law by attempting to cross the intersection after the red light or stop signal had been flashed, he backed down the Baronne street intersection of Poydras street at a violent rate of speed without giving any signal, and struck plaintiff and knocked her down; that she was struck in the right hip and the head; that the blow bruised her body, arms and legs, and dislocated one of the vertebral joints at the lower end of the spinal column, causing her much pain; that she was taken for a day to ihe Charity Hospital, thence removed to the Baptist Hospital, where she continued unconscious for more than a day, and where she was still confined as a patient; that she still suffers from spells of nausea after every meal, and is in a condition of extreme nervousness— for all of which she claims $20,000 damages.

The defendant denied each and every allegation of plaintiff’s petition.

In a supplemental answer the defendants alleged:

“That at the time alleged, namely, on or about July 17, 1926, its Yellow Cab No. 147, operated by its employee, in the scope of his employment, was proceeding up Baronne street, on the right hand side of said street, in a proper manner and at a reasonable and moderate speed; and so driven, approached its intersection with Poydras street, whereupon respondent’s said driver noted that the traffic signal, namely, a hand manipulated semaphore located on the down town river corner of the intersection, showed green qr the ‘go’ signal for him to continue on up Baronne street and across Poydras street.
“2. That no pedestrians were then crossing Baronne street at the lower or downtown side of Poydras street and he proceeded onward as aforesaid and into the intersection, and had almost crossed over the intersection when a police officer stationed at and handling control of the aforementioned semaphore suddenly yelled to the driver to stop his cab.
“3. That in response to this (peremptory order of the officer, the driver immediately applied the brakes and the cab forthwith stopped with the loud screaking of the brakes usual to the sudden stopping of a taxicab.
“4. That the driver turned his head to the left and looked at the officer, who was gesticulating with one hand and pointing to the semaphore with the other, and that the driver saw that the semaphore had been turned to red, or stop signal, after he had entered the intersection and was proceeding across street, or coincident with his having done so.
“5. That this said change of the semaphore had been suddenly made without any signal by bell, whistle, or otherwise, and without the usual and customary interval between the signal of the intention to turn the semaphore and the actual turning of the semaphore.
“6. That after the cab was stopped, as aforementioned, in response to the orders of the police officer, the said officer did peremptorily order and command the driver to reverse his course, namely, back across the intersection; and in obedience to the said order and command of the officer, the driver did forthwith back his cab along the course and in the manner that the said officer did designate and order.
“7. That the driver did so back his cab in a careful and prudent manner and at a slow speed, all in accordance with the order and signals of the officer, who continued to beckon him backward; and that the driver relied on the main on the said signals, though he was also looking every moment or two as best he could, to see that no pedestrian or vehicle was in the street or about the place he was backing over.
“8. That he so backed across Poydras street, a distance of some 35 to 50 feet, during which time the officer continued to beckon and signal to him to continue; and that when the rear of his cab was at or about the downtown curb of Poydras street some one yelled to him that a lady had fallen down in the street to the rear of the cab, and he forthwith applied the brakes and brought the cab to an immediate stop.
“9. That for want of information sufficient to justify belief, respondent denies that the cab backed into or collided with the plaintiff; and says that if the. cab struck plaintiff, as ■ is alleged in the petition, then the accident resulted from no fault of respondent’s driver, who was backing and steering the cab under orders of the said officer, and in the manner he designated by and through his continuous signals; and notwithstanding that respondent’s driver was also keeping a lookout, as best he could, he relied on the signals of the officer, which he had a right to do and was obliged by law to do, which said officer was in a better position to see that plaintiff and other pedestrians did not walk or stand in the course of the backing cab.
“10. That the cab was so backing in plain view and with the noise usual to a taxicab motor in reverse gear, and that had plaintiff, looked and listened as a careful and prudent person would and should have done when walking across or standing in the driveway of a much traveled thoroughfare such as is Baronne street she would have heard and seen the cab, as it slowly backed towards her, in ample time to have avoided placing herself in its course, and in ample time to have gotten out of the way, all of which plaintiff failed to do, and that her failure to have looked and listened and to have avoided the accident was carelessness and fault that caused, or proximately contributed to the accident.
' “11. That while the cab was backing, as aforesaid no other vehicles were crossing or preparing to cross the intersection via Poydras or Baronne streets; that there was no reason whatever for ordering or compelling the cab to back across the intersection and that in so ordering and compelling the driver to so back across the intersection the police officer acted in an unreasonable and arbitrary manner and but for his unwarranted actions and continuous signals to the driver, the accident would not have occurred.”

The case was tried before a jury, who returned a verdict of $10,000 in favor of plaintiff, confirmed by a judgment.

Defendants have appealed.

Our attention is first directed to an objection to testimony made by defendant and overruled.

Thomas J. Burns, the defendant’s chauffeur at the time of the accident, as a witness for defendant was asked by plaintiff’s counsel:

"Q. Were you the Thomas Burns who pleaded guilty in the Criminal District Court on June 18, 1923, on the charge of gambling?”

To which question defendant’s counsel objected on the ground that it was irrelevant and immaterial. Being asked the purpose of the question, plaintiff’s counsel answered that it was to prove that the witness was “an improper and incompetent person to drive an automobile”; that he proposed to prove by the criminal court’s record a story of utter incompetency. The trial court overruled the objection. It was understood that defendant’s objection would apply to all such testimony.

The witness was then asked whether he | had not been charged with loitering on divers occasions, whether he had been arrested and charged with being a dangerous and suspicious character, with disturbing the peace.

We are of the opinion that such testimony was inadmissible, inasmuch as it. would not prove the witness as an “improper and incompetent” chauffeur. He might have been guilty of all those acts of omission and commission, and yet have been a skillful driver. But the questions were calculated possibly to arouse prejudice against the witness and the defendant on the part of some of the jurors unable to distinguish between relevant and irrelevant testimony.

The facts as we find them are very much as detailed in defendant’s voluminous answer.

They are as follows:

The plaintiff and her husband were standing upon the sidewalk on the downtown lake side of Baronne and Poydras streets, intending to cross Baronne street; just then defendant’s cab drove in front of them, running up upon the lake side of Baronne street, and entered Poydras street; when it had driven more than half of the width of Poydras street, the chauffeur realized or was told by a traffic officer, located on the downtown river corner of Baronne and Poydras, that the red light was on Baronne street and that he had disregarded it by advancing so much into Poydras street; the chauffeur then backed up into Baronne street inside of the white line on Poydras street; just then the plaintiff, who had been awaiting her opportunity, stepped into Baronne street to cross it; but she had not gotten beyond the first track towards the lake when she was struck by the backing cab, knocked down, and severely injured.

This was at 1:30 p. m.

It is evident that the accident happened through the negligence of the cab’s chauffeur. Whether he was ordered by the traffic officer to back, or whether he backed up spontaneously, is immaterial. If he did either negligently he is liable. He cannot lay the blame, which at least he shared, upon the officer. No one can set up as an excuse that he was told to commit an illegal act. But it is evident that he was told to do a legal act, to drive according to ordinances; and if he did that negligently he alone was liable.

The chauffeur was seated upon the front left side of his cab. The traffic officer was upon his left side in the rear; in backing, the chauffeur kept his eyes upon the officer upon his rear left side; he did not look towards the plaintiff, who was upon his rear right side. Nor is there a pretense that the chauffeur blew his horn or gave any other sign of his backing. Three witnesses swore that he was backing very fast, one of them, a passenger in his car, a stranger from another state. It is true that three experts, employees of the defendant, testify that the cab could not back more than 3y2 miles an hour. But the fact remains that the cab was backing fast and injured the plaintiff. Backing trains, or cars, or cabs, without necessary precaution, “ is negligence. Thornhill vs. Yellow Cab Co., 6 La. App. 789; Dill vs. Colley, 3 La. App. 308, 309.

It is as negligent to drive backward as it would be to drive with a blind chauffeur. The best evidence that the car was driven fast is that neither the plaintiff, nor the plaintiff’s husband, nor the two officers standing upon either side of the street upon the sidewalk, and another witness, had time to notify the plaintiff.

The case quoted by defendant of Shelley vs. Waguespack, 156 La. 256, 100 So. 417, is not in point; nor Folwell vs. Demack Motor Car Co., 144 La. 783, 81 So. 313; nor Biagi vs. New Amsterdam Casualty Co., 151 La. 925, 92 So. 387; nor Itzkovitch vs. Schorling, 155 La. 423, 99 So. 353.

But it is said that the plaintiff was negligent in not seeing the cab coming. We do not think so. She was standing on the corner, as we have seen, waiting for the uptown traffic, to pass so that she could step upon the. street to cross. The defendant’s cab passed in front of her traveling upon- her right. She had no reason to anticipate that the cab would reverse and back up towards her. Nor could she have been -required to guard against any vehicle upon -her right. Traffic was coming from the • left • side, and in that direction alone was she required to look. She had a right to believe that others would obey the • law.

She saw nothing coming and she proceeded to cross. Had it not been for defendant, she would have crossed in safety.

But admitting that plaintiff was negligent, defendant had the last clear chance to avoid the injury, and, failing to avoid it, he is liable.

The familiar example of the farmer tying his donkey in the middle of the road' solves the situation. Of course, the farmer was negligent, but the defendant who ran over and killed the donkey was liable, because by the exercise of ordinary care he might have avoided the injury. Kird vs. New Orleans & N. W. R. Co., 105 La. 229, 29 So. 729; Davies vs. Mann, 10 M. & W. 546 (1842); Meeson & Welsby, Exchequer.

There remains only the question of quantum of damages. Of course, courts must guard against the exaggeration of plaintiffs in stating their injuries, and against injuries not visible to the naked eye. Furlow vs. Maison Blanche Co., 2 La. App. 351.

The accident in this ease occurred on July 17, 1926. It consisted in a dislocation of the sacroiliac joint and a separation of the hip bone, and a slight tilting of the last lumbar vertebra, and a disturbance of the right leg called ankle clonus, causing much pain. She was taken to the hospital, and the next day to the. Baptist Hospital, where she remained off and on until December 25, 1926, and where she returned for consultations about every two weeks up to the date of the trial, November, 1927. She also suffered from nausea for some time, and is now very nervous. She wore a canvas brace or a plaster cast for some months extending over her hips, causing her much inconvenience. On the day of trial she walked with a stick.

There is no evidence of any expense on her part for doctors or drugs.

There has been a slow and gradual diminution of the pains. One doctor testified that the pain is going to disappear in the next few years.

Dr. C. S. Holbrook testified:

“A. I would say that she is very much improved over what she was last year.
“Q. What would you say as to the permanence of this condition?
“A. I think she will get entirely well. That is my opinion.
“Q. And how long a time will be required, in your opinion, for her to get entirely well?
“A. I should say, within some months, in six to twelve or twenty-four months, one would expect her to get well, possibly shorter, possibly longer.”

In the case of Granberry vs. Jarrau, 8845 Orleans Appeal, the plaintiff suffered two bones of the right foot broken, sprained ankle, hips bruised, back wrenched, and nervous shock, $2,000, quoting numerous authorities.

In the case of Shankland vs. Morris, 4 La. App. 326, 331, the injuries which the plaintiff received were described by the doctors as a displacement of the sacroiliac joint, and of the fifth lumbar vertebra, which they all agree is a permanent injury, and that the plaintiff will suffer pain from the injury where she assumes for an unusual time a position where the weight of the trunk is upon the lower spine and hips. The plaintiff suffered much pain from the injury and had become very nervous, $2,500.

In the case of Moeller vs. Morgan’s La. & Tex. R. R. & S. S. Co., 7 La. App. 559, the plaintiff suffered from a slight, separation -of the sacroiliac joint, a very painful back, and a seven-inch canvas belt, and was unable to do any heavy work. $700.

But the case before us is more aggravated, and we fix the damages at $5,000.

While there is no fixed standard of damages, there must be some uniformity.

Jones vs. Tremont Lumber Co., 139 La,. 621, 71 So. 862; Williams vs. Lumber Co., 125 La. 1088, 52 So. 167, 136 Am. St. Rep. 365, 19 Ann. Cas. 1244; Rice vs. Crescent City R. Co., 51 La. Ann. 108, 24 So. 791; McMahon vs. N. O. R. & L. Co., 127 La. 544, 53 So. 857, 32 L. R. A. (N. S.) 346; 2 La. Dig. 824 (1910).

It is therefore ordered that the judgment herein be amended and reduced from $10,000 to $5,000, and as thus amended that it be affirmed.


author: WESTERFIELD, J.

text:
    No. 11,002
    Orleans
    HATCHER v. BURLETT ET AL.
    (January 21, 1929. Opinion and Decree.)

      P. R. Livaudais and Wm. Boizelie, of New Oxleans, attorneys for plaintiff, ap•pellee and appellant.
    Buck, Walshe & Buck, and Prank W. Magne, of New Orleans, attorneys for defendant and appellant, Pasquale Tarantino.
    Jos. Rosenberg, of New Orleans, attorney for defendant and appellee, George B. Burlett.
   WESTERFIELD, J.

Plaintiff, a negro woman, was standing on the neutral ground, at the intersection of North Rampart and Gov. Nichols streets, waiting for a street car, when she was struck and injured by an automobile driven by the defendant George B. Burlett.

The defendant Terantino, it is alleged, was the owner of a mule which, at the time of the accident, was running away, and either bumped into or crossed the path of Burlett’s automobile, causing Burlett to be forced upon or to drive upon the neutral ground and strike plaintiff. Burlett is charged with negligence, in that he was driving too fast, and in permitting his attention to be engrossed by a lady passenger, to whom he was talking at the time of the accident.

Terantino’s responsibility is based upon his ownership of a dangerous animal, which was negligently permitted to escape from the stable lot and run unattended on the public streets.

The trial court absolved Burlett and held Terantino responsible for the accident, awarding judgment against him in the sum of $400.

There is the usual conflict of evidence in the record. Burlett and two witnesses, who were passengers in his car at the time, testified that the mule ran into his car, striking it violently and knocking it upon the neutral ground, causing it to strike the plaintiff before its movement could be stopped. Other witnesses say that the mule did not touch Burlett’s car at any point, and the driver of the mule, employed by Terantino, testified that there were no marks on the mule’s body, as there would have been, if the accident had been caused in the manner stated by Burlett, for it is unreasonable to suppose that the mule could have struck the automobile with sufficient violence to knock it out of its course without injuring the mule. Moreover the mule continued to work in harness after the accident as efficiently as it had performed prior to the accident.

We are satisfied that the accident was caused by the runaway mule, and are of the opinion that it is immaterial whether he ran into Burlett’s automobile or not, for the reason that it is manifest from the record that, if the mule did not run into the automobile, his crossing the path of the car created a situation of emergency, wffich caused Burlett to run upon the .neutral ground in an effort to avoid striking the mule; consequently the mule was to blame and was the proximate cause of the accident resulting in the injury of plaintiff, whether it struck the automobile or not.

We believe the judgment dismissing the suit as to Burlett is sustained by the evidence.

As to Terantino, his counsel strenuously denied that he was guilty of any negligence, and that, if the mule may be said to have caused the accident, the damage suffered by plaintiff was a risk assumed by her as a citizen in a community where domesticated animals are in common use. Zambelli vs. F. Johnson & Son Co., 115 La. 487, 39 So. 501.

We are referred to Martinez et al. vs. Bernhard, 106 La. 368, 30 So. 901, 55 L. R. A. 671, 87 Am. St. Rep. 306, where it was held:

“The owner, it is true, is liable for damages caused by his animal; but, to render him liable, it is necessary to prove that he is in some way negligent, or that he did not prevent the injury where it was reasonably to be expected that he should have prevented it.”

In Shawhan vs. Clarke, 24 La. Ann. 390, it was held that:

“A person owning a horse and buggy is not responsible to another for the damage caused by his horse running away with the buggy and running against another horse and buggy, if the running away of his horse was not caused by his carelessness or negligence, but was caused by some other person or agency over which he could exercise no control.”

In Moore vs. Edison, etc., Co., 43 La. Ann. 792, 9 So. 433, it was held that:

“A person is answerable for his negligence only so far as it is the natural and proximate cause of the injury, and not when the consequences arise from a conjunction of his fault with circumstances of an extraordinary nature.”

In all the cases cited by counsel for Terantino, the court held that there was an absence of negligence, or an extraordinary occurrence, which could not reasonably be anticipated. In the case at bar, the evidence convinces us of the negligence of defendant’s employee. To begin with, the presumption is that the owner is at fault, and the burden is on him to show that he is without fault and did all that he could .to prevent the injury. Bentz vs. Page, 115 La. 560, 39 So. 599.

The manner in which the mule escaped from the stable yard is explained by the witness, Swan, Terantino’s stable man and driver. Swan testified that he was in the act of raising the shafts of a wagon for the purpose of harnessing the mule, when it became frightened and ran off through the open stable gate. He does not claim that the animal was refractory or that it had been frightened by some unusual explosion dr loud noise, but that simply in his customary manner of harnessing the mule it became frightened and ran away. We consider that Swan was negligent in attempting to harness the mule with the stable gate open (he admits he knew it was open) and without being in a proper position to control the animal in the event of its taking fright during the process of harnessing. We think the law is properly stated in Shearman and Redfield, Law of Negligence, p. 1659, sec. 629, where the case of Zambelli vs. Johnson & Son Co., 115 La. 483, 39 So. 501, is cited among other cases in support of the text, which reads as follows:

“The owner of any kind of animal, whether it be wild or tame, is' chargeable with notice of its generic disposition to stray and liability to take fright. If its size and speed are such as to make it dangerous under such circumstances, the owner is bound to use ordinary care to keep it from straying; and if he neglects to do so, he will be liable for injuries committed by it while straying, which he ought, in prudence to have foreseen as likely to occur. For this reason, the owner of a horse is liable for damages done by it in running away, if he had not used due diligence to prevent its escape.”

See, also, Karstendiek vs. Jackson Brewing Co., 123 La. 346, 48 So. 958; Decker vs. McSorely, 111 Wis. 91, 86 N. W. 554.

In Trenchard vs. N. O. R. & L. Co., 123 La. 36, 48 So. 575, a suit not unlike the case at bar, the court said:

“This judgment we must affirm as against the owner of the horse. Article 2321, Civ. Code, provides that:
“ ‘The owner of an animal is answerable for the damage he has caused.’
“Conceding, for the argument, that this article is not to be taken literally, but merely as establishing a presumption of fault on the part of the owner of the animal, such as he may rebut by proof of entire absence of negligence on his part, the •defendant in this case, who left his horse unhitched and unattended in the street, is not entirely blameless, no' matter how much the animal may have been accustomed theretofore to stand when left in that way.”

The plaintiff, a woman passed middle age, was rendered unconscious by the accident, suffered contusions of the left knee and side, cuts back of her ear, and was confined to her bed for three weeks under the care of a doctor, who made several calls. She was about the house two weeks longer, and suffered with her knee for some little time thereafter, and was obliged to wear a knee-cap some six months after the injury. She was earning $7 a week as a washerwoman, and lost several weeks’ pay. Under the circumstances, the award of $400, as fixed by the trial court, is correct.

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


author: REYNOLDS, J.

text:
    No. 3435
    Second Circuit
    LOUISIANA CENT, LUMBER CO. v. WOMACK ET AL.
    (January 21, 1929. Opinion and Decree.)
    Stubbs & Thompson, of Monroe, attorneys for plaintiff, appellee.
    E. L. Walker, of Ruston, H. W. Ayres, of Jonesboro, and Theus, Grisham & Davis, of Monroe, attorneys for defendants, appellants.
   STATEMENT OF THE CASE.

REYNOLDS, J.

Plaintiff, Louisiana Central Lumber Company, alleging itself to be tbe record owner of tbe pine and cypress timber standing on the S.E.% of N.EA/i of section 3, township 14 north, range 1 east, in Jackson Parish, La., that it was worth-$1,000, and that People’s Bank, a corporation, and W. D. Womack and J. T. Pierce, had unlawfully cut part, and, unless restrained by the court, would cut the balance of it, and would remove the timber from the land and convert it to their own use, to plaintiff’s irreparable injury, obtained an injunction restraining them from cutting any more of the timber and a writ of sequestration impounding that cut.

Defendants admitted the cutting and the intent of the People’s Bank to convert the timber to its own use, and denied that plaintiff was the owner of the timber, and alleged that the People’s Bank was' the owner thereof, and set up title thereto under purchase at sheriff’s sale.

On these issues the case was tried, and there was judgment in favor of the plaintiff and against the defendants, decreeing the plaintiff to be the owner of the timber in controversy and perpetuating the injunction and sustaining the sequestration.

From this judgment, the defendants appealed.

OPINION.

The facts are few and simple and the case presents only a question of law.

On July 24, 1907, George Ellis and the Louisiana Central Lumber Company entered into a contract in words and figures as follows:

“State of Louisiana, Parish of Jackson.
“Know all men by these presents, that George Ellis, a resident of Jackson parish, state of Louisiana, for and in consideration of the sum of one hundred and seventy-five 00-100 dollars, the receipt whereof is hereby acknowledged, have sold and do by this act, grant, bargain, sell, transfer, convey, and deliver unto the Louisiana Central Lumber Company, a corporation, duly and legally organized and existing under the laws of the state of Missouri, the principal office of said corporation being at Kansas City, Missouri, its successors and assigns, with warranty of title, all of the merchantable pine timber growing, standing and being on the following described premises, to wit: SE% of NE% of Section (3) three Tp-14 NR (1) one East La. Mer. in Jackson parish, state of Louisiana, together with a right of way, fifty feet wide, for a tram road railroad and such other branch roads as may be necessary across said premises, for the purpose of transporting all timber belonging or which may belong to said Louisiana Central Lumber Company. And all spur, log yards, camping, building and roadway privileges on said premises, and such other facilities as are necessary for the cutting, hauling and removing of said timber therefrom for term of (20) twenty years from the date hereof.
“The title of the land herein described remaining in George Ellis, he retaining the use thereof for agricultural purposes, so far as not to interfere with the growing, standing and lying timber and the right to cut, haul, remove and transport the same herein granted the Louisiana Central Lumber Company, a corporation, its successors or assigns.
“Done and signed in the presence of the subscribing witnesses on this 24th day of July, A. D. 1907.
his
“George X Ellis.
mark
“Attest: A. J. McDaniel
“J. N. Gregory.
“State of Louisiana, Parish of Caldwell.
“Before me, the undersigned authority, this day personally appeared A. J. McDaniel, who, on oath, says he saw the maker of the foregoing deed sign it for the purposes and considerations herein set forth, and he and J. N. Gregory signed it as attesting witnesses, and now recognizes all the signatures thereto to be true and genuine.
“A. J. McDaniel.
“Sworn to and subscribed before me this the 22nd day of August, A. D. 1907.
“(Seal.) E. D.- Gardner, Notary Public.”

This act was filed for record on August 29, 1907, and, on the same day, was duly recorded in Book N, at page 131, of the record of Conveyances of the parish of Jackson.

On January 27, 1923, George Ellis and John W. King entered into a contract in words and figures as follows, to wit: “State of Louisiana, Parish of Jackson.

“Be it known, that this day, before me, J. B. Thornhill, Notary Public in and for said parish, duly commissioned and sworn, came and appeared George Ellis, a resident of the parish of Jackson, state of Louisiana, and a married man whose wife, before marriage, was Rosa Williams, now living with him, who declared that he is justly and legally indebted unto John W. King, a resident of the parish of Caldwell and state of Louisiana, a married man whose wife is Ada King (born Gregory) in the sum of two hundred eighty-two and 00-100 dollars, in evidence of which indebtedness he has this day made, executed and given his one certain promissory note, dated with this act, payable to the order of John W. King, made due and payable on the 27th day of January, 1924, with eight per cent, interest from date until paid and paraphed “Ne Varietur” of this date by me, Notary, to identify it herewith: And, in order to secure the payment of said note, interest and all costs, including ten per cent, attorney’s fees on amount sued for in event of suit for collection of said note, the said George Ellis declares that he does by these presents specially mortgage and hypothecate unto and in favor of said John W. King, his heirs and assigns, or any future holder of said note, the following described property, to wit: The East half of the Northeast quarter; the Northeast quarter of the Southeast quarter; the Southwest quarter of the Northeast quarter; ten (10) acres off the south side of the Northwest quarter of the Northeast quarter; all in Section 3, Township 14 North Range 1 East. All of said land lying and being in Jackson parish, Louisiana, and containing 170 acres, more or less, and being herein mortgaged with all the buildings and improvements thereon.
“It is especially agreed and understood that this mortgage is given and accepted as a first mortgage on the Northeast quarter of the Northeast quarter of Section 3 Township 14 North Range 1 East and as a second mortgage on the other land described herein.
“The said mortgagor further declares that he hereby waives and relinquishes in favor of the mortgagee or any future holder of the note herein any and all homestead claims or exemptions to which he is entitled by law upon said property.
“The said George Ellis hereby binds himself not to alienate, deteriorate or incumber said property to the prejudice of this mortgage, which shall import confession of judgment and waive benefit of appraisement. The certificate of mortgage is hereby waived by the' parties.
“Done and passed at my office in said parish of Caldwell in presence of J. B. May and E. B. Cottingham, Jr., competent witnesses, on this the 27th day of January, A. D. nineteen hundred and 23.
his
“George X Ellis.
mark
"J. W. King.
“Attest: J. B. May, M. D.
“E. B. Cottingham, Jr.
“(Seal.) J. B. Thornhill, Notary Public. “State of Louisiana, Parish of Caldwell.
“Be it known that this day, before me the undersigned authority, duly commissioned, sworn and qualified, in and for the parish of Caldwell and State of Louisiana, personally came and appeared Rosa Ellis (born Williams) wife of George Ellis, who appears for the purpose of aiding and authorizing his said wife, who hereby declares that she does hereby Join and concur in the above waiver and relinquishment of all of her homestead rights in the land described in the foregoing mortgage and consents thereto and further consents and concurs in all of the stipulations of the foregoing mortgage.
“Done and passed in my office in the parish of Caldwell, state of Louisiana, in the presence of H. T. Tobb and O. L. Womack, competent witnesses, on this the 14th day of May, 1923.
her
“Rosa X Ellis,
mark
his
“George X Ellis,
mark
“Attest: H. T. Tobb.
“O. L. Womack.
“(Seal.) S. M. Taylor, Notary Public.”

This act was filed for record on May 18, 1923, and on the same day duly recorded in Book L, at page 440, of the record of Mortgages of Jackson parish.

On July 5, 1927, George Ellis and the Louisiana Central Lumber Company entered into a contract in words and figures as follows, to wit:

“State of Louisiana, Parish of Jackson.
“Know all men by these presents, that George Ellis, a resident of Jackson parish, state of Louisiana,. for and in consideration of the sum of one hundred and 00-100 dollars, the receipt whereof is hereby acknowledged, have sold, and by this act grant, bargain, sell, transfer, convey and deliver unto the Louisiana Central Lumber Company, a corporation duly and legally organized and existing under the laws of the state of Missouri the principal office of said corporation being at Kansas City, Missouri, its successors and assigns, with full warranty of title, all of the merchantable pine and cypress timber growing, standing and being on the following described premises, to wit: S.E.% of N.E.% of Section 3 Township 14 North Range one East. One medium size cypress reserved for covering boards. In. Jackson parish, state of Louisiana, together with a right of way fifty feet -wide for a tram railroad and such branch roads as may be necessary across said premises, for the purpose of transporting all timber belonging or which may belong to said Louisiana Central Lumber Company. And all spur, log yards, camping, building and roadway privileges on said premises and such other facilities as are necessary for cutting, hauling and removing of said timber therefrom, for the term of three (3) years from the date hereof.
“This deed is given for the purpose of extending the time for cutting and removing the timber as given in a former deed. The title of the land herein described remaining in George Ellis he retaining the use thereof for agricultural purposes, so far as not to interfere with the growing, standing and lying timber and the right to cut, haul, remove and transport the same herein granted the Louisiana Central Lumber Company, a, corporation, its successors or assigns.
“Done and signed in the presence of the subscribing witnesses on this the 5th day of
his
July, A. D. 1927 George X Ellis.
mark
“Attest: A. J. McDaniel.
“H. J. Sellers.
“State of Louisiana, Caldwell parish.
“Before me, the undersigned authority, this day personally appeared A. J. McDaniel, who, on oath, says, he saw the maker of the foregoing deed sign it for the purposes and consideration therein set forth, and he and H. J. Sellers signed it as attesting witnesses, and now recognize all the signatures thereto to be true and genuine. “A. J. McDaniel.
“Sworn to and subscribed before me this 5 day of July, A. D. 1927.
“R. C. Cantrell, Notary Public. (Seal.)”

This act was filed for record on July 8, 1927, and was recorded on July 11, 1927, in Book 40, at page 314, of the record of Conveyances of Jackson parish.

The debt secured by the mortgage not being paid, the owner and holder thereof, John W. King, commenced proceedings, via executiva, on September 12, 1927, to have the mortgaged property seized and sold for the satisfaction thereof.

And the mortgaged property was duly seized and advertised to be sold, and was, by the sheriff of Jackson parish, on December 10, 1927, adjudicated to the People’s Bank for the price of $2,325.

A deed to carry into effect the sale, wherein the property sold was described as “E % of NE^A; NE!4 of SE%; SW% of NE% Section 3 Tp. 14 N. R. 1 E.” was duly executed by the sheriff to the People’s Bank, and was filed for record on December 30, 1927, and recorded on December 31, 1927, in Book 40, at page 561, of the record of Conveyances of Jackson Parish.

Neither in the petition for executory process, the order therefor, the seizure, advertisement of sale, or sheriff’s deed was the timber excluded.

The People’s Bank, as owner of the land and timber in virtue of the sheriff’s deed, undertook to cut and remove the timber, and was met by this suit and the writs of injunction and sequestration therein issued.

OPINION.

Plaintiff makes the alternative contentions:

1. That the contract of 1907 fixed no time limit for the removal of the timber; that the twenty-year limitation therein mentioned only refers to logging privileges; that its right to remove the timber subsisted until limited by agreement between itself and the landowner or judgment of the court; and that the contract of 1927 fixed a time limit therefor.
2. That, if the twenty-year limitation refers to the timber also, the sale of thq timber created a new and separate estate; that the mortgage did not purport to' affect this estate, and could not have affected it even had it purported to do so.

I. We cannot concede that the twenty-year limitation only refers to logging privileges. True,' the words expressing it áre found in that division of the contract relating to those privileges, but the rule is that, in interpreting contracts, the instrument as a whole must be considered and all its parts construed together.

So considered, we think the limitation also refers to the timber.

The duration of the logging privileges was a minor matter as compared with the duration of the right to remove the timber, and it is not probable that the purchaser would have exacted twenty years’ time for the former and not even one for the latter, especially so in view of the fact that it would have had logging privileges without expressly stipulating for them, since they follow as an accessory in a sale of timber.

And we are confirmed in this opinion by the interpretation put by plaintiff itself on that contract in the contract of 1927.

The latter is not a renewal of the former but a new purchase of the timber and the logging privileges for a new price. If the plaintiff had believed its time to remove the timber was indefinite, it could and doubtless would have had it definitely fixed by agreement with the landowner or judgment of the court without price.

We are of the opinion that where, as here, a landowner, having sold the growing timber on his land, with a fixed time for its removal, subsequently grants a mortgage on tbe land, he cannot thereafter, without permission of the mortgagee, again sell the timber or extend the time allowed for its removal, to the prejudice of the mortgage.

“The mortgage has the following effects: 1. That the debtor cannot sell, engage or mortgage the same property to other persons, to the prejudice of the mortgage which is already made to another creditor.” C. C. art. 3397.

This conclusion is not, we think, in conflict with that in Big Pine Lumber Co. vs. Hunt, 145 La. 342, 82 So. 363. Here a date was fixed before which the timber should be removed. There no date was fixed.

In that case, Mrs. Lewis, being the owner of both land and timber, sold the timber to Hunt, and in the deed reserved the timber on it to herself, without, however, fixing any time limit within which she should remove it. Thereafter she sbld timber to Louisiana Saw Mill Company, with a limit of six years’ time in which to remove it. Before the expiration of the six years, she extended the time to remove the timber, without the consent of Hunt, the landowner. And the question was, Was the extension valid quo ad Hunt? The court saying:

“Mrs. Lewis had the undoubted right to reserve to herself the ownership of the timber when she sold the land to the defendant, in 1905. This reservation by her was made without any time limit being fixed within which she was to remove the timber; and, until defendant had invoked the process of the court to fix a reasonable time within which the timber was to be removed by Mrs. Lewis, she had the indefinite time fixed in the act of sale in which to remove the same. This defendant has never done. Therefore Mrs. Lewis had the right to remove the timber for and during an indefinite time, and she had the right to transfer this right to remove to her assigns. It is true that she had limited, in 1905, in selling the timber to the Louisiana Saw Mill Company, the right to remove the pine timber to six years from that date; but she, at the same time, had the right to extend this limitation to cut and remove the timber before said term had expired, or to renew the right after it had expired, and the Louisiana Saw Mill Company had the right to transfer to plaintiff the pine timber owned by it, and the right to remove same within the extended time.”

Mrs. Lewis had an indefinite time in which to remove the timber, and she might have transferred to her vendee all 'of this indefinite time; but she only transferred to it a section of her indefinite time, tacitly retaining the balance of it.

“A sale of all the cypress timber fit for saw mill purposes on a certain tract of land, for a cash price, with the exclusive right and privilege to cut and remove the same for a period of five years, is a conveyance of only so many trees as the purchaser may cut and remove within the time designated, the balance remaining the property of the vendor.” St. Louis Cypress Co. vs. Thibodaux, 120 La. 834, 45 So. 742.

If Mrs. Lewis might have given her purchaser all of her indefinite time in the first instance, of course she could thereafter give it the remainder of that time or a part of it, not only on the principle of the greater containing the less, but also because, if the timber had not been removed within the six years, it would have reverted to her because her indefinite time had not been limited by contract or judgment of court, and, if it was hers, she might, of course, dispose of it again. Had she in the first instance granted, her purchaser all of her indefinite time to remove the timber, Hunt, the landowner, would not have been prejudiced, and would have had no right to complain. He could not have been prejudiced and had no right to complain because she subsequently gave that purchaser the balance of her time.

But, in the case at bar, the situation was different. Here a fixed time limit was put upon plaintiff’s right to remove the timber by its vendor. If the timber had not been removed within the time limit, it would have reverted to Ellis as the landowner.

“Standing timber is property subject to be acquired separately from the land on which it grows, but when sold it must be cut and removed within the period agreed on by the parties or fixed by the court in default of agreement, otherwise it reverts to the owner of the land. * * *” Ward vs. Hayes-Ewell Co., 155 La. 15, 98 So. 740.

Ellis, having mortgaged the land, could not thereafter engage the land to the prejudice of the mortgage. And it is immaterial, for this purpose, whether the contract of 1927 was a new sale of the timber or an extension of the twenty years’ time allowed to remove it. Either one engaged the land to the prejudice of the mortgage. Manifestly, if Ellis could give three more years’ time to remove the timber, he might equally weli give twenty more or even fifty and so render the mortgage worthless as a security; for who would pay taxes for fifty years or even twenty years on land for some one else to grow timber on.

We are of the opinion that plaintiff’s right to remove the timber under the contract of July 24, 1907, was limited to twenty years from that date.

Plaintiff, in brief, says:

“In the case here presented, the mortgage and the sheriff’s deed thereunder, contained no mention of the timber on the land and the defendants knew, or weye presumed to know from the recorded deed to Louisiana Central Lumber Company, that the timber had been sold an'd thereby segregated from the land. The timber was no longer an accessory to the land; it had been converted into a separate and distinct immovable estate; and, as an immovable estate, the timber thereon was, by fiction of law, as distinct and separate from the land on which it was growing as though it was not on or a part of the land. If the timber was not an accessory to the land when the mortgage was granted or the sheriff’s sale was made, then necessarily the People’s Bank did not acquire title to the timber by virtue of the sheriff’s sale made in foreclosure of the mortgage granted by Ellis to King. When Ellis sold the timber, there were two distinct separate immovable estates created. One, the land estate, vested in Ellis, the other, the timber estate, vested in Louisiana Central Lumber Company. In the Lumber Company was vested the absolute and unconditional ownership of the timber, with the right to go upon the land for the purpose of exercising its rights of ownership in and to the timber. If the timber was a separate and distinct immovable estate, title thereto being vested in Louisiana Central Lumber Company, then Ellis, when he granted the mortgage to King, did not mortgage the timber. If, as was held in Gray versus Edgar Lumber Company, the sale of land, with no mention of the timber and after the timber had been previously segregated and sold separate from the land, did not convey the timber, then, for the same reason, Ellis did not mortgage the timber when he granted the mortgage to King and made no mention of the timber in his contract of mortgage; and, too, as was held in the case of Gray versus Edgar Lumber Company, the segregation of timber from land for purposes of ownership destroys its character as an accessory, then Ellis, when he granted the mortgage to King, did not mortgage or hypothecate the timber as an accessory to the land mortgaged. No mention of the timber having been made in the contract of mortgage, the- legal situation is the same as though the timber growing on the land had been expressly excepted from the mortgage. If the mortgagor and mortgagee had excepted the timber from the contract of mortgage, they would have done only what the law and the previous sale contract of the timber had done. If the timber was not mortgaged, either as a separate estate or as an accessory, then Ellis had the right, as owner of the land, to extend the time for the removal of the timber. * * *”

II. The contention that the estate created by a sale of growing timber apart from the land on which it stands and without any time limit for its removal being fixed, is of perpetual duration is negatived by the jurisprudence on the subject.

In Shepherd vs. Davis Bros. Lumber Co., 121 La. 1011, 46 So. 999, a case where no time was fixed, the court said:

“In like manner, the nonfixing of a time within which the trees should be cut was insignificant, in view of the fact that, in case the purchaser delay unreasonably in the matter, the vendor could call upon the court to supply the defect of the contract in that respect by fixing a time.”

In Simmons vs. Tremont Lumber Co., 144 La. 719, 81 So. 263, the act of sale specified no time within which the timber should be removed, and after ten years from its date the landowner brought an action against the owner of the- timber seeking to have the latter’s rights in the timber to be decreed “prescribed, terminated, and extinguished, and the land freed from any and all the uses, burdens and incumbrances” resulting from the sale of the timber.

The court held that:

“Should the act of sale be considered one without a time limit, that defect might be cured. But this is not a suit calling upon the court to supply the defect by fixing a reasonable time within which the timber would have to be removed. Until a time limit has been fixed, and has expired, plaintiff shows no cause of action to have the timber declared forfeited to him, or that defendant’s title to the timber and rights under the contract are prescribed.”

In Kavanaugh vs. Frost-Johnson Lumber Co., 149 La. 972, 90 So. 275, it was said:

“Until a period is fixed by agreement of the parties, or by tire proper court, upon application made to it, the right to remove the timber remains in the grantee indefinitely.”

These decisions negative the theory that an estate in timber without time limit for removal is of perpetual duration. It is only of indefinite duration. The owner of the timber is entitled to a reasonable time in which to remove it, and both he and the landowner are entitled to have such time fixed by the court in event they are unable themselves to agree what is a reasonable time. If the duration of the estate in timber, where no time limit for its removal was fixed, were perpetual, then the court would be without authority to delimit it.

It is therefore ordered, adjudged, and decreed that the judgment appealed from be annulled, avoided, and reversed, the writs of injunction and sequestration are dissolved, the property sequestered is ordered restored to defendants, and plaintiff’s demands are rejected and its suit dismissed at its cost.

ODOM, J., dissents.


text:
    No. 3423
    Second Circuit
    COLQUETTE v. LOUISIANA CENT. LUMBER CO.
    (January 21, 1929. Opinion and Decree.)
    Julius T. Long, of Shreveport, attorney for plaintiff, appellee.
    Thornton, Gist & Richey, of Alexandria, attorneys for defendant, appellant.
   REYNOLDS, J.

This is a suit under the Workmen’s Compensation Act (Act No. 20 of 1914, as amended). The plaintiff is the widow of Robert G. Colquette, deceased, and seeks judgment against defendant for $15.47 a week for 300 weeks, beginning November 17, 1927, with legal interest on each installment from its maturity until paid, and for the further sum of $150, as and for burial expenses of the deceased and contingent expenses connected therewith. She alleged:

“That her husband, Robert G. Colquette, while in the employ of and working for the said Lumber Company, at Clarks, in Caldwell parish, Louisiana, for the daily rate of pay of three dollars and forty cents, seven days in the week, at the sawmill being then and there operated by said company, on November 27, 1927, while working in the engine room at night in connection with the operation of said engine, his right foot was caught and injured by the fuel chain therein, being seriously and permanently injured, bruised, and the tissues and bones in his leg so seriously and permanently injured and impaired, that the said injuries caused and brought about his death on February 14, 1928. That on account of said injuries, the deceased was not able to do any work of any character .from the date of his injuries until he died. That, because of said injuries, the bones in his foot and leg and ankle, the nerves, blood vessels, muscles, ligaments and tissues in those parts, became so infected, impaired and diseased that his heart, lungs, nerves throughout his body, kidneys and other parts of his body, became infected and seriously impaired, all materially aiding in his death and bringing same about. That his condition and injuries constantly grew worse from the time he was injured until his death. That, at the time of his death, the bones of his leg and foot were seriously and permanently diseased and impaired. That the said injury he received while thus working for said company was the direct cause of his death and produced and brought about any ailments or troubles he may have had when he died.”

She further alleged that she had incurred or assumed expenses amounting to $150 in connection with the death and burial of her husband.

She further alleged that the defendant had paid to the deceased compensation of $13.26 a week from the time of his injury until his death, and that it is entitled to credit for such payments.

The defendant admitted that the deceased was injured while in its employ and that he was earning $3.40 a day, but denied that there was any causal connection between the injury and his death, and averred that his dea,th was due to natural causes.

It further alleged that before his death it had paid the deceased as compensation for eight weeks $123.76, and that after his death it had paid to plaintiff $48.62 as the balance of compensation owing to the deceased at the time of his death.

On these issues the case was tried, and there was judgment in favor of the plaintiff and against the defendant for $6.63 a week for not exceeding 300 weeks, beginning February 14, 1928, with legal interest on each installment from its maturity until paid, less the amount of compensation paid by the defendant to the deceased, and for the further sum of $150 as and for burial expenses of the deceased.

The fees of the medical experts who testified in the case were fixed at $15 each.

From this judgment, the defendant has appealed.

The plaintiff has answered the appeal, and asks that the judgment be amended so as to — •

(1) Fix the fees of the medical experts Sanderson, Rigby, Ragan, Johnson and Corry at $20 each, and tax such fees as part of the costs of suit.

(2) Fix-.the period during which compensation shall be paid at 300 weeks, dating from November 27, 1927, the first payment to be due as of February 14, 1928.

(3) Increase the amount of the weekly payment from $6.63 to $7.73.

OPINION

Plaintiff’s husband was injured on November 27, 1927, and died on February 14, 1928. She contends that the cause of the death was blood poisoning super-induced by the injury. Defendant contends that the cause of the death was pneumonia, and that there was no causal relation between it and the injury. And the question for our determination is whether the death was the result of the injury or due to natural causes.

Dr. S. G. Hines testifies that he treated the injury of the deceased about an hour after it occurred.

“Q. What was the condition of his foot at that time?
“A. There was a slight amount of swelling — not very much at that time. He complained of no pain.
“Q. In what part of his leg was the swelling?
"A. In his right foot and ankle.
“Q. Were there any lesions or broken places in the skin?
“A. No, sir.
“Q. What treatment did you prescribe?
“A. Rest of the foot and local applications. Hot compresses and things like that, and anodynes to relieve him.
“Q. When did you see him at any time after that?
“A. I am not sure whether it was the morning following the injury or the second morning following the injury.
“Q. What was the condition at that time?
“A. There was quite a bit of swelling and ecchymosis.
“Q. Did you see him at any time after that, doctor, before his last illness?
“A. Yes, sir. I saw him at the Oasis.
“Q. When was that?
"A. Saturday morning previous to his death.
“Q. Where is the Oasis?
“A. Down town.
“Q. At the post-office, the post-office in the same building?
“A. Yes, sir.
“Q. How far was that from his home, doctor?
“A. About the distance of four blocks.
“Q. Was he walking on crutches or without crutches?
“A. He was sitting down, talking to his brother, when I saw him.
“Q. Did you see any crutches?
“A. I did not see any.
“Q. Did you say anything to him, or him to you, about his foot, that day?
“A. No, sir.
“Q. Did you visit him or prescribe any treatment for him or call for his account, on account of the injuries to his foot, after the first or second day after the injury?
“A. On Monday night, or it was really Tuesday morning, about 3:00 o’clock, before he died.
“Q. You called at 3:00 o’clock and he died at 9:30?
“A. Yes, sir.
“Q. What did you find when you got there?
“A. I found him delirious, trying to get out of bed. He had a temperature of 103; pulse 125.
“Q. What was the condition of his lungs ?
“A. There was quite a bit of bronchial breathing.
* * * * * *
“Q. Did you stay with him until he died, or how long did you stay, doctor?
“A. I was there possibly two hours and fifteen minutes, or something like that. I stayed quite a while to get him relieved.
“Q. What diagnosis did you make of the case at that time?
“A. A bad heart and pneumonia.'
“Q. From the history they gave you and the condition you found him in after making the examination, you testify that the cause of his death was pneumonia?
“A. Yes, sir; superinduced by a bad heart.
“Q. That caused his death?
“A. Yes, sir.
“Q. Did that injured foot have anything to do with his death?
“Á. I don’t think.”

Dr. Fred Hecom testified:

“Q. Did you know the deceased,' R. G-. Colquette, the husband of the plaintiff in this case?
“A. Yes, sir; I knew him.
“Q. Did you have occasion to treat his injured foot, following an accident in November, 192??
“A. No, I did not treat it; I examined it.
“Q. About when did you examine it?
“A. Several days after he sustained the injury I went to his house to make an examination of his injured foot for the purpose of .putting him on compensation pay.
“Q. What did you find his condition to be at that time?
“A. I found that he had a contused right leg.
“Q. At what point?
“A. In the region of the ankle, just above the ankle.
“Q. Was the skin broken anywhere, doctor?
“A. It was not.
“Q. Just an abrasion?
“A. I call it a contusion. I think the ligaments were wrenched. There were no cuts at all.
“Q. The skin was not broken?
“A. No; no cuts at all.
“Q. It was what we call a sprained ankle ?
“A. A sprained ankle is a very good term.
“Q. What is the treatment for a sprained ankle?
“A. Rest.
“Q. That is what you advised in this case?
“A. Tes, sir.
“Q. Did you see Mr. Colquette at any time after that before his last illness?
“A. I did.
“Q. What time?
“A. I met him on the street on Friday previous to his death on Tuesday, and also met him on the street on Saturday before his death on Tuesday, and previous to those two times he came to my office once.
“Q. When he came to your office, was he walking on crutches?
“A. When he came to my office he was.
“Q. What was he doing on Friday and Saturday before his death when you saw him on the street?
“A. On Friday, he was in the middle of the street in front of the boarding house, what we call the “Blue Goose.” He was on his way home, then, and said he had been over there sitting on the gallery talking.
“Q. Was he walking on crutches at that time?
“A. He had no crutches.
“Q. Where did you see him on Saturday?
“A. At the Oasis.
“Q. Was he walking on crutches at that time?
“A. He had no crutches at that time.
“Q. Did he make a statement to you about the condition of his leg?
"A. Yes, sir. He said he was in better condition than he had been in a long time, and said he was going back to work soon.
“Q. Did you visit him during his last illness?
“A. Yes, sir.
“Q. What was his condition then?
“A. He had pneumonia in both lungs.
“Q. There has been some evidence relative to the fact that he did not spit up anything? ■
“A. I found both lungs congested; both lungs consolidated; suffering from dysentery, a rapid pulse and comatose condition. Both lungs consolidated.
“Q. How did you ascertain that?
“A. By the use of a stethoscope.
“Q. No doubt about that condition, doctor?
“A. There was not.
“Q. There has been some testimony to the effect that this man possibly died from septic poisoning. Do you agree with Doctor Johnson, that septic poison is caused by a germ, that must get into the injury from outside?
“A. Septic poison might come from a number of different ways; the germs may enter the system from a, different manner.
“Q. Where you get septic poison from an injury, there would have to be a laceration or break in the skin?
“A. There would.
“Q. There is no such thing as septic poison from a bruise?
“A. The germ does not spring up. It must enter the system through some source. Through some wound or abrasion for it to enter.”

Plaintiff’s husband, died on February 14, 1928, and was buried the following day. On February 22, 1928, his body was exhumed in the presence of and was examined by Dr. O. C. Rigby, Dr. C. U. Johnson, and the undertaker, Mr. W. B. Corry.

Dr. Rigby testified that he examined the body, and that:

“The right foot and leg were found to be considerably larger than the left foot and leg. There was evidence of a cellulitis extending from the ankle to the knee on the outer surface of the right leg and right foot. The incision was made from the ankle towards the knee over the fibula of the right leg. Both the tibia and fibula were exposed, as were the bones of the foot. In moving these about, you could hear the bones of the foot grating together, establishing the fact that there was some diseased process in the bones of the right foot. The bones of the foot were found to be diseased and badly necrosed. They were soft, and so badly necrosed that one could take a knife and tear the bony tissues to pieces. The periosteum over these bones, in lots of places was eaten away by the disease. This diseased process extended on up to the ankle and up into the ankle joint on the tibia, the lower end of which showed diseased bone where the periosteum had been eaten away, and there was soft, purulent, honeycomb looking tissue. There was evidence of both periostitis and osteomyelitis of the tibia at its lower end, and the same disease existed as to the fibula. About three inches of the tibia and fibula were sawed off and placed in preservative for laboratory examination if necessary to look at.
“Q. With the history that was given to you, and which you have recited as being given you as the history of this dead man, Robert G. Colquette, and what you found, what have you to say about the conditions which you found in the bones of his leg, as having probably caused his death?
“A. Well, I think it certain that it did cause his death. We know that any bony infection, such as osteomyelitis, will give you general septicemia, and you will have death either from some heart complications or some septic condition, like septic pneumonia, following the osteomyelitis, and when brought on will terminate in death as general septicemia.
“Q. Was there any escape from death for that man, unless that condition was relieved ?
“A. No, sir.
$$$$$$
“Q. Now it is contended here, on the part of the defense, that this man died of pneumonia; that this, pneumonia was in no manner caused from the condition of that leg. What have you to say about that?
“A. Of course, it would be impossible for me to say that the man did not have pneumonia, but if he did have pneumonia I would naturally believe that it was due to the septic condition, from the affection of the foot and leg.
“Q. You say it is reasonably possible for this man to have died of some disease in which this diseased condition of the foot played an important part in the cause of his death?
“A. I think it played an important part in his death, it makes no difference what he died from.”

Dr. Johnson and the undertaker, W. B. Corry, testified, substantially, to the same findings and opinions as those of Dr. Rigby.

Dr. Thomas Ragan testified that he had listened to the testimony given by Dr. Rigby and had examined the section of bone removed from the ankle of the deceased by Dr. Rigby, and agreed with Dr. Rigby in the opinion that the condition of the foot of the deceased was the cause of his death.

He was asked:

“Q. The testimony is, that Mr. Colquette got hurt on November 27th, 1927, and he lingered along, walking on crutches, his foot still in a badly diseased condition, or in a diseased condition, so much so that he was not able to put it on the ground or walk, had to use a crutch or crutches. The evidence shows that he never did get well, and that on the night of February 13th he went to bed as usual early in the night, at least some time before eleven o’clock or about eleven o’clock, when he was taken with some kind of a rigor and died the next morning about nine-thirty. What have you to say about pneumonia, or influenzal pneumonia having set up and having been the sole cause of his death, in view of the fact that he had a leg like that, under those circumstances?
“A. Well, if pneumonia had been the cause of it, it would be a type of pneumonia, a progress of pneumonia, that I am not familiar with. I have never seen pneumonia develop in that way at all. That would be the last thing I would think of as being the cause of his death.
“Q. How long would it have taken for pneumonia to have set up to have caused his death?
“A. I think that four days is a rather early death from pneumonia.
“Q. Do you think it reasonable for a man to have been walking around with practically no apparent symptoms of pneumonia, of a disease such as pneumonia, for several days before he went to bed, with a diseased foot on him like that?
“A. No; a man doesn’t walk around with pneumonia; he is promptly prostrated.”

Dr. E. L. Sanderson testified that he had examined the hone cut out of the deceased’s foot, that it looked like the lower end of what is known as the tibia, or the large bone of the leg, right where it joins the ankle joint, and that it appeared to have been diseased, devitalized, or broken down, before death.

And he was asked:

“Q. Where a patient dies of sepsis — I believe you say is the proper word to call it?
“A. Yes.
“Q. What other complications usually attend it?
“A. A patient who has chronic sepsis —well, it is not necessary to make that statement. I will say this, that a patient usually, who dies of sepsis, dies with what we may call an acute sepsis, no matter how long he has had chronic sepsis. The thing usually flares up with acute exacerbation that causes death. This acute sepsis is ushered in by a chill, rapid rise in temperature and general severe constitutional symptoms. Usually, if this septic condition is in the leg, there will be a red line running to the groin of the body; if in the hand, it will run to the arm pit; but this acute sepsis, coming on, spreads up likewise to the body rapidly, localizing itself in the most vital organs of the body and causing all forms of heart condition. And, in practically every case where death ensues, pneumonia is present, called septic pneumonia. That is the usual terminus of acute sepsis.
“Q. Well, is that true pneumonia, that kind of pneumonia that you mention?
“A. Well, insofar as tlie physical signs are concerned, it is like any other pneumonia, and at an autopsy you could hardly tell the difference without the history.”

He was then given a history of the injury to the deceased and his condition subsequent thereto, and was asked:

“What, would you say, in all probability caused his death?”

And he answered:

“A. Taking for granted that the recitation of facts is true, I would say that this man had an injury to the bones of his foot and that from some part of his body infection reached his foot and that he was suffering from a process of low grade chronic infection. That on this day that he got worse, the infection became enlivened, and acute sepsis set in. In fact, that may have been and probably was the first instance of generalized infection. Up to that time it was, perhaps — in all ¡probability it was localized in his foot, but at this time it got away from his fo.ot and became general, going up his leg to his groin, where it first strikes the glands, and would naturally produce such symptoms as you have described. Later, passing this point, it went into his body and affected all ’ of his organs — lungs, heart, liver, and produced his death.”

Dr. P. K. Rand testified that he had examined the bones cut out of the foot of the deceased, and was asked:

“Q. In what condition did you find those bones, doctor?

And he answered that —

“The specimen represented the lower end of the tibia, and fibula, approximately zy2 inches in length. The upper end had been sawed off transversely, and the lower end disarticulated the ankle. A small part of the soft tissues, that is, the muscles, tendons, ligaments and blood vessels, etc., had been removed from the specimen. The tissues holding the two bones together were still intact. The articular surface which represented the upper portion of the ankle joint, showed the cartilage perfectly smooth. The bones, both the tibia and fibula, had most of the periosteum intact, and the bone itself was hard, firm and smooth. The marrow of the bone was present, although the part next to the ends of the bone had been lost or removed. I did not notice any unusual discoloration — the periosteum was not raised. There were no loose fragments of bone tissue — the consistency; of the bone was perfectly normal.”

He further testified that he found no evidence that the deceased was suffering from osteomyelitis; that, if he had been suffering with that disease in that particular bone when he died, the covering of the bone or periosteum would have been considerably thickened or separated from the bone itself by pus which was accumulated under the periosteum; that, where that disease exists, the hard, bony substance' breaks down and is more or less chalky, brittle, and pliable to the touch, with areas of bone scale on the elongated pieces of bone attached, and that none of these conditions existed in the bones he examined.

And he was given the history of the deceased’s condition, beginning with the injury and on down until his death, and was asked if, in his opinion, there was any connection between the condition of the ankle and the death, and he answered:

“I don’t see how there would be any connection at all.”

W. B. Corry testified that he was an undertaker and had assisted in the burial, of the ’deceased, and, in conjunction with Dr. Rigby, had subsequently disinterred the body. Asked what he did, he said:

“We viewed the whole body, but especially the lower extremities. The left leg was apparently normal in size and appearance, except for a scar or two on the left leg. The right leg was twenty-five per cent larger than the left leg, and inflamed from the ankle up to the knee, especially on the outside.
“Q. What indicated that inflammation?
“A. Red streaks running from the foot up towards the knee. We made an incision on the outer side of the leg, just below the ankle, extending toward the r-ight-knee, and examined the covering of the bone and the bony tissue itself and removed a section of the lower portion of the right leg and placed it in a glass jar for future examination."
“Q. Did you examine that bone?
“A. Yes, sir; the covering of the bone was thickened and inflamed and in places there was pus under the coverings of the bone; and the coverings were split and the bone examined and found to be necrotic.
******
“Q. What have you to say as to the condition you found there, being sufficient cause for that man’s death?
“A. There was plenty of trouble in his leg to have caused death from septicemia, commonly called blood poison,”

He was given a history of the case, and asked:

“Do you think it is possible, if that is anything like a correct history of his case, that pneumonia was the cause of his death?”

And he answered:

“The history doesn’t sound like it was from pneumonia at all. It sounds more like symptoms of blood poison setting up.”

Deceased’s daughter, Mrs. Burma Colquette Mason; his widow, the plaintiff; another daughter, Mrs. Zella Simms; her husband, J. E. Simms; W. B. Perkins, a local merchant; Charlie Delcoe, and C. C. Colquette, a son, all testified, in effect, that the deceased had never recovered from the injury to his foot, and that he could not dispense with the use of crutches.

The district judge, who heard and saw the witnesses testify, reached the conclusion that there was a causal connection shown between the injury to the deceased and his death, and we cannot say that he manifestly erred.

Platntiff asks that the amount of the weekly payment awarded her he increased from $6.63 to $7.73, that the duration, of the payments extend over not exceeding 300 weeks, dating from November 27, 1927, the first payment to her to be due as of February 14, 1928, and that the compensation for the period between the date of the accident, November 27, 1927, and that of the death of the deceased, February 14, 1928, be credited with the compensation paid by the defendant to the deceased during and for that space of time; and she also asks that the fees of the experts who testified in the case be increased from $15 to $20, and be taxed as a part of the costs of suit.

It was admitted on the trial that the deceased was earning $3.40 a day and working seven days in the week. The weekly payment awarded plaintiff was calculated on the basis of a six-day week. It should have been based upon a seven-day week. So ascertained, it amounts to $7.73.

We see no sufficient reason for increasing the amount of the fees allowed the experts. However, their fees should be taxed as part of the costs of suit.

The statute (Act No. 85 of 1926, section 8, subsec. 2, par. J) provides that:

“Where payments of compensation have been made to the employee before his death, the compensation for dependents as provided for in this section shall begin on the date of the last of such payments and shall not continue for more than three hundred weeks from the date of the accident.”

The deceased was injured on November 27, 1927, and died on February 14, 1928, and it was admitted on trial that defendant had paid him compensation during this period, aggregating $172.38, or foils weeks at $13.26 a week.

It is therefore ordered, adjudged and decreed that the judgment appealed from be amended so as to increase the amount of the weekly payment awarded plaintiff from $6.63 to .$7.73, the payments to begin as of date February 14, 1928, and to continue for not more than 300 weeks from November 27, 1927, each payment to bear legal interest from its maturity until paid; compensation for the space of time between the accident to and death of the deceased to be credited with and deemed satisfied by the payments aggregating $172.38 made by defendant to the deceased.

It is further ordered, adjudged and decreed that in all other respects the judgment appealed from be affirmed.


author: JANVIER, J.

text:
    No. 10,410
    Orleans
    PROVOSTY v. CLARK
    (January 21, 1929. Opinion and Decree.)

      Michel Provosty, of New Orleans, attorney for plaintiff, appellant.
    Hugh S. Suthon, of New Orleans, attorney for defendant, appellee.
   JANVIER, J.

Plaintiff is the owner of certain real estate in New Orleans fronting on Walnut street, and situated in square No. 58, which is bounded on the other three sides by Irma, Audubon, and Felicia streets. Defendant owns the property adjoining plaintiff’s property on its Felicia street side. The purpose of this action is to fix the boundary between these two properties.

Passing over for the moment the question of just how far the various surveyors differ from one another in their respective locations of this line, it seems quite evident that the principal question involved is whether we should locate the properties, and consequently their dividing line, with reference to the actual street corners as they exist, and have for many years existed, or should locate them in accordance with a theoretical plan of subdivision which was apparently prepared to show what would have been an ideal subdivision, but which was not in fact followed in all particulars.

In 1897 the section of New Orleans bounded by St. Charles avenue, Magazine street, Audubon Park, and Broadway, was, on a plan made by Daney, surveyor, theoretically subdivided. On this plan streets and squares were laid off. Whether it was intended later to change the actual streets and squares to fit this subdivision, or whether this plan was intended to be a picture of what actually existed, is not made certain by the record; but it seems quite evident that, whatever was the purpose of the plan, it does not represent the actual situation, which situation has certainly existed, as it now is for 30 or 40 years. On the Daney plan all the streets intersecting Walnut were given a width of 40 feet. The actual conditions are that each of the streets is 40 feet wide except Irma street and Felicia street. Irma street is actually 42 feet wide and Felicia street is actually 38 feet wide. Furthermore, whereas the Daney plan allots to each square a frontage on Walnut street of 300 feet, the true fact, according to all the surveyors, is that each of the squares contains a small fraction more than 300 feet frontage, and square No. 58 contains a frontage of 300 feet and 10 inches.

The expert appointed by the court, and the other surveyors who testified, with the exception of E. L. Eustis, followed the Daney plan in its entirety. That is to say, they fixed the boundary between the two properties in question by reference to a starting point at Magazine and Walnut streets, which point is shown on the Daney plan and which point is admitted to be correct. But neither they nor Daney took into consideration the fact that Irma street is in fact 42 feet wide instead of 40.

The principal question presented to us is whether we shall use the Daney starting point at Magazine and Walnut streets and no other; or whether we shall take into consideration the actual 'location of square No. 58. In other words, shall we commence our measurements at Magazine and Walnut and locate the boundary in question solely by reference to that point, or shall we accept square No. 58 as it is now located, and locate the boundary in dispute by reference to the actual corners of that square?

It is interesting to note that the property of defendant is described in the deed by which it was acquired as beginning: “80 feet from the corner of Felicia Street.” Does this mean 80 feet from the actual corner, or 80 feet from the theoretical corner?

The Court of Appeal for the Second Circuit, in Rosenblath vs. Marabella, 3 La. App. 584, said:

“Where a street is given as one of the boundaries in the sale of a lot of ground, the street as open and in actual (use) at the time of the sale rather than (the) street as platted should be considered to be the one intended by the parties to the sale.”

This seems to us to be logical, and it further seems that the defendant herself was entirely willing to accept actual conditions on that side of her property, as to accept them on that side would benefit her to the extent of the discrepancy between the Daney plan and the actual location of square No. 58. To allow her to accept actual conditions on that side, and to insist on the acceptance of the Daney plan for the location of the other side of her property, would give her the full benefit of the discrepancy, and in fact the full benefit of the “overage” which appears to exist in that square. As a matter of fact, accepting actual , conditions, and prorating the 10-inch overage among the various property owners in that square, results in the giving to the defendant of three inches and four lines more frontage that her title calls for. It seems undisputed that the Daney plan is wrong in many minor details, and if that entire section were redivided and re-laid out, in accordance with that plan, almost every square and almost every street would have boundaries slightly different from those now actually existing. To apply the Daney plan to that particular square in question, and to require that all boundaries in that square be relocated in accordance with that plan, would be disastrous. It is fair to presume that, if the boundary in question here is established in accordance with that plan, each affected property owner in the square would insist on the relocation of his boundary. If this were done, some of the boundaries would be placed either where actual improvements exist now, or so near to actual improvements as to require their removal.

We mention this to show that each of the property owners must have bought his property and must have erected his improvements with reference to actual conditions, and not with reference to theoretical ones. All in all, the Eustis plan seems to be based on actual conditions, which conditions the various purchasers could see when they bought, and this allocation of the “overage” is in accordance with what all of the purchasers expected to receive and are entitled to, and we therefore find it to be the correct one and establish the boundary in accordance therewith.'

It is therefore ordered, adjudged, and decreed that the judgment appealed from be reversed, and that the boundary be fixed in accordance with the plan of E. L. Eustis, dated May 18, 1923; defendant to pay costs.