author: WEBB, J. H. O. Carson,

text:
    No. 3806
    Second Circuit
    CARSON v. STEPHENS
    (July 5, 1930. Opinion and Decree.)
    (July 31, 1930. Rehearing Refused.)
    John T. Campbell, of Minden, attorney for plaintiff, appellee.
    Allen S. Drew, of Minden, attorney for defendant, appellant.
   WEBB, J. H. O. Carson,

plaintiff, a building contractor, entered into a contract with Jack Gladney, a negro, to furnish the material and construct a dwelling house and shop for Gladney at a fixed price to be paid on completion of the work, and, in compliance with his obligation, Carson was proceeding with the work, when Gladney advised him not to continue.

In the present action, Carson alleged that S. E. Stephens, defendant, had unlawfully and maliciously interfered, causing Gladney to breach the contract, by threatening Gladney with personal violence, and plaintiff prayed for judgment against Stephens for the value of the material and labor used by him in the work which had been done and the profit which he would have made on the contract.

Defendant excepted that the petition failed to state a cause of action, which was overruled, and he answered pleading, in effect, a general denial. On trial judgment was rendered in favor of plaintiff for the cost of labor used in the work, and defendant appeals, urging that the evidence failed to establish that he had made any threats of violence against Gladney or that Gladney had breached the contract due to any action of defendant.

The evidence established that when defendant learned for whom the work was being done he called upon several of the residents living in the „ neighborhood who, with plaintiff, called on Gladney, defendant being the spokesman; and while the evidence does not show any direct threat of violence was made, or that Gladney was even requested not to have the work continued, the record reflects, we think, with certainty that Gladney was made to understand he would not be permitted to use the building after the completion, either as a residence or shop, and that Gladney cancelled the contract in the belief that he would not be permitted to use the property for the purpose for which it was to be constructed, which the record does not indicate was an unlawful purpose.

While it is true that the evidence does not show that defendant bore any malice towards plaintiff, or that the action was intended to cause plaintiff damage, it is certain that plaintiff had a property right in the contract which was breached as the direct result of defendant’s alleged interference, and plaintiff was entitle'd to recover the actual damages resulting from defendant’s illegal action (Sandlin v. Coyle, 143 La. 121, 78 So. 261, L.R.A. 1918D, 389, and authorities there cited; R. C. L. vol. 15, pp. 52 et seq.).

The judgment appealed from is therefore affirmed.

DREW, J., recused.


source: Caselaw Access Project

author: ODOM, J.

license: Public Domain

text:
    No. 2949
    Second Circuit
    BABB v. HOLLINGSWORTH ET AL.
    (July 5, 1930. Opinion and Decree.)
    (July 31, 1930. Rehearing Refused.)

      John T. Campbell, of Minden, attorney for plaintiff, appellee.
    L. K. Watkins, of Minden, attorney for defendants, appellants.
   ODOM, J.

On December 30, 1925, plaintiff and defendant entered into a contract by which defendant agreed to sell plaintiff a tract of land situated in Red River parish, valued, at $47,950, to be paid as follows: $4,725 cash, and the balance to be paid by the delivery of a deed executed by Babb to Hollingsworth of certain real estate owned by Babb, situated in the parish of Webster, consisting of a farm of about ninety acres and all improvements thereon adjoining the town of Minden, valued at $21,000, and certain real estate situated in the town of Minden, valued at $3,500, said Babb to assume a mortgage on the Red River property amounting to $18,725.

At the time this agreement was signed, the plaintiff deposited his check for $750 with one J. H. Boss, who was acting as agent for defendant, with the understanding, it is alleged, that said check was not to be cashed unless and until the deal was closed. The deal was never closed, although Boss cashed the check and turned the proceeds over to Hollingsworth.

Plaintiff brought the present suit alleging that this contract of sale and exchange was conditioned upon the approval of the title to the properties owned by the respective parties; that plaintiff was furnished an abstract of the Red River property by Hollingsworth, upon an examination of which plaintiff refused to approve the title to the Red River property; whereupon, the plaintiff declined to complete the exchange of properties and demanded the return of his check for $750, which was refused. He alleged further that after he had declined to accept the title to Hollingsworth’s property on the advice of his attorney, the said Hollingsworth caused a copy of said contract to be filed and recorded in the conveyance records of Webster parish; that the recordation of said contract is a cloud upon the title to his property. He further alleged that because of the refusal of defendant to cancel said contract and erase the same from the records of Webster parish, it became necessary for him to employ an attorney to bring suit to cancel the same, at a cost to him of $750; that he has been damaged in the sum of $450 on account of the recordaticm of said contract; and that he is entitled to recover the sum of $750, the proceeds of the check which he deposited. He prayed for judgment “cancelling and annulling and decreeing of no force and effect the instrument recorded in Volume 70, page 349, and ordering the same can-celled and erased from the records of Webster Parish,” and for a money judgment against said defendants jointly and in solido in the full sum of $1,950.

Defendant excepted to the jurisdiction of the court ratione personae and ratione materiae and at the same time tendered an order directed to the clerk of the district court of Webster parish to cancel from the records the said contract.

Defendant answered denying generally the allegations of plaintiff’s petition, except the signing of the contract and its recordation, as alleged. He especially alleged that he had offered to comply in every respect with the agreement which he had entered into with plaintiff; that he' had furnished an abstract of his property; that plaintiff had promised to furnish an abstract of his Webster parish property, but had failed to do so; and that the failure to carry out the agreement was due to plaintiff’s fault and not to his own.

Further answering, defendant alleged that" he had tendered an order to the recorder to have the erasure made, “reserving all rights and claims your defendant had under said written agreement and denies that same has ever been cancelled or satisfied by John Babb in any particular. Answering further denies that there was any defects of title in the property that your defendant was to deed to John Babb.”

In reconvention defendant alleged that plaintiff had failed to comply with said agreement; that he was justly and legally entitled to a deed to the property that John Babb was to deed to him under the exchange agreement, and was entitled to receive the money that Babb agreed to pay him according to said agreement; and that on account of the said Babb’s failure to do so, he had been damaged to the extent of $10,000 as profit which he could have made on the deal; and in the alternative, alleged that he had sustained a loss in the same of the property that he was to deed to Babb in the sum of $6,000. He prayed for judgment against Babb in reconvention for these amounts.

It is perfectly clear that the main demand in this suit is for the cancellation of a contract involving the sale and exchange of properties valued at sums far beyond the maximum jurisdiction of this court. It is true that the money judgment demanded by plaintiff is for $1,950, which is less than our maximum jurisdiction. .But the demand for the money judgment is a mere incident to the main demand which, as stated, was for the cancellation of the contract and its erasure from the records.

We note that plaintiff states in his brief that he tendered in limine an order to have the contract erased from-the records and that the issue as to the validity of the contract passed out of the case. But a reading of the pleadings shows that such is not the case. Defendant in his answer and reconventional demand specifically states that while he is willing that the said contract be erased from the records, yet he reserved all rights which he had under the contract and alleged that the same was violated, not by himself, but by the plaintiff, for which violation of the comtraet he demanded damages in the sum of $10,000. Plaintiff asked not only that the contract be cancelled from the records, but asked further that the court decree the same null and of no force and effect. The issue as to the validity of the contract was carried through the entire case and was . submitted to the court for decision. The court rendered judgment decreeing, among other things, “that the instrument recorded in Volume 70, at page 349, of the Conveyance Records of Webster Parish, Louisiana, be declared null, void and of no force and effect, and that the same be cancelled and erased from the Conveyance Records of Webster Parish, Louisiana.”

The theory upon which the case was appealed to this court seems to be that the demand for a money judgment was the principal demand. But that is not true. The principal demand is for the canceling of a contract which involves property worth $47,950. The demand for a money judgment is purely incidental. The main demand controls. If the main demand had been for a money judgment and the invalidity of the contract had been urged by defendant for the purpose of defeating that demand, a different situation might be presented. See Heard v. Monroe Sand & Gravel Co., 165 La. 926, 116 So. 386; Monjure v. Cousins, 160 La. 208, 106 So. 785.

There has been no motion made to dismiss or to transfer the case, but this court ex officio takes notice of its lack of jurisdiction, and accordingly transfers the case to the Honorable Supreme Court, under the provisions of Act No. 19 of 1912. Appellant is given sixty days in which to perfect his appeal to the Supreme Court; costs of this appeal to be paid by appellant.


text:
    No. 3835
    Second Circuit
    LUDD v. VAN HOOSE ET AL.
    (July 5, 1930. Opinion and Decree.)
    (July 31, 1930. Rehearing Refused.)

      Herndon & Herndon, of Shreveport, attorneys for plaintiff, appellant.
    Jackson & Smith, of Shreveport, attorneys for defendants, appellees.
   ODOM, J.

This appeal is by plaintiff from a judgment rejecting his demands for compensation for disability alleged to have resulted from an injury received while at work for the defendant, Van Hoose, at a cotton gin. Plaintiff originally asked for compensation for three hundred weeks, but before this court his counsel ask for only eighteen weeks, plus $143 for hospital and surgical expenses.

The facts briefly stated are that the plaintiff, while at work for defendant Van Hoose on September 7, 1929, while engaged with another colored man in loading a bale of cotton onto a truck, strained himself to such an extent that he heard something “tear loose” in the inguinal region. This strain was caused when the other laborer lost or loosed his hold on the bale of cotton, which threw the weight on plaintiff. Plaintiff immediately told his co-laborer that he was hurt and could work no longer. Mr. Lipscomb, superintendent of the gin, who was on the premises at the time, was also immediately informed that plaintiff had hurt himself, and he sent plaintiff home and put another man in his place. That was on Saturday, the 7th. Plaintiff did not return to work during the following week, and on Monday, the 16th, Mr. Van Hoose, the defendant, called him up and asked him why he did not come back to work, and plaintiff told him that he was sick. Mr. Van Hoose then told plaintiff to come down so that he could find out what was the matter with him. Van Hoose says that when plaintiff came to him he seemed to be suffering and said that he had hurt himself while lifting a bale of cotton at the gin, and that he had a knot in his groin. Defendant then gave plaintiff light work for two or three days, after which plaintiff told him he could work no longer. Defendant then sent him to Dr. Harris who, upon examination, found that plain-. tiff was suffering from a well-developed inguinal hernia and advised an immediate operation. On being advised by Dr. Harris that an operation was necessary, defendant sent plaintiff to the Charity Hospital where he was examined by Dr. Boone, who confirmed or concurred in Dr. Harris’ diagnosis. The operation was scheduled to take place at the Charity Hospital, but, for some reason, plaintiff left there and went back to Dr. Harris who performed what is conceded to be a successful operation for hernia.

When plaintiff went to the Charity Hospital, he was examined by Dr. Boone who got from him a history of the case. Plaintiff told Dr. Boone that he had been injured while handling a bale of cotton at defendant’s gin, and told him further that he had been ruptured some two or three years before, and that since that time he had had a small knot in his groin about the size of the end of his thumb. Plaintiff says that he did not tell Dr. Boone he had been ruptured previously, but admits that he said he had a knot in his groin. We have no doubt that plaintiff told Dr. Boone what the doctor says he told him; but, in so far as the issues involved are concerned, it makes no differ-, ence what he told the doctor, in view of the facts which we shall presently state.

Up to the day on which plaintiff was lifting the bale of cotton and felt something “tear loose,” as he expresses it, he was able-bodied and did steady manual labor, except at short intervals when he was afflicted with indigestion. He had worked for defendant at' his gin during ginning seasons for four or five consecutive years, and there is no suggestion that he was not a good hand. Between ginning seasons, he hauled fertilizer and worked gardens and flower yards for white people. He suffered.no pain or inconvenience from the small knot, which he admits was in his groin, until the day on which he was lifting the cotton; but, from that day and moment up to the time he recovered from the operation, he was disabled and wholly incapacitated to perform any work of a reasonable character.

Now the defense is that plaintiff was afflicted with hernia at and previous to the moment he says he sustained the injury on September 7th, the contention that he had hernia being based upon the fact that plaintiff had a small knot in his groin. It is conceded, however, that he had theretofore suffered no inconvenience or disability, and conceded further that thereafter he was disabled.

The defense would unquestionably be good if it were true that plaintiff had an affliction, whether a hernia or some other, previous to the accident, which had developed to such stage or extent as to produce disability and, if it were true, that the accident had no connection with the disability complained of. But such is not the case.

If it be true that the knot in plaintiff’s inguinal region was what men learned in the medical profession would call a hernia (these doctors do not enlighten us on that point), the facts are that, whatever it was, it had given him no trouble, produced no inconvenience or disability; and the further facts are that the moment the weight of the bale of cotton was thrown upon him, bringing him under a strain, plaintiff felt a tearing or rupture of the tissues in the inguinal region which produced immediate disability, and thereafter he had a well-defined, well-developed hernia, the only relief from which was an operation. If plaintiff had hernia already, it was too slight and insignificant to produce any ill effects. It was only in process of development and had not developed to such an extent as to produce disability. Let it be conceded, therefore, that plaintiff was afflicted with hernia. The “inevitable rupture” did not take place until he strained himself lifting the bale of cotton.

Substituting the word “hernia” for the word “aneurism,” we express our view of the issue here involved in the language of the organ of the court in the case of Hicks et al. v. Meridian Lumber Co., 152 La. 975, 94 So. 903, 904:

“It is quite immaterial for the purposes of this case whether the alleged strain brought on the aneurism, or merely hastened the inevitable rupture; for this court would allow compensation in either case.”

Able counsel for the defendant are familiar with the jurisprudence. We quote the following from their brief:

“We know that there are a number of cases holding that where an employee has a dormant disease or an undeveloped affliction, he can recover compensation if the dormant disease is aroused or the affliction is developed in an accident to such an extent that the employee becomes disabled. We contend that there is an obvious distinction between cases of that kind and a progressive hernia. In the case of dormant disease the accident arouses the disease and puts it in motion. In the case of an undeveloped affliction, the accident causes the affliction to become active.”

The “obvious distinction” which counsel discover between the reported cases and the one at bar is not at all obvious to the members of this court. They say that hernia is a disease which progresses and will finally produce disability. Even so, the settled jurisprudence involving compensation eases is that, where an employee is afflicted with a disease which will ultimately and inevitably disable him, even in a short time, if his disability is hastened by an accident sustained while at work in the course and scope of his employment, he is entitled to compensation. The jurisprudence is so well settled on this point that citation of authority is unnecessary.

Counsel for defendant seem to think that plaintiff’s time to fall out had come; that the hernia was in process of development, and that he might have become disabled on this very day, even though he had not been lifting a bale of cotton. That may be true, but it is quite significant that he succumbed just as the weight of the bale of cotton was thrown upon him.

Plaintiff was totally disabled for at least eighteen weeks, and is entitled to compensation for that length of time, fixed at 65 per cent of his weekly wage, which was $18; he is also entitled to $143 for surgical and hospital expenses.

For the reasons assigned it is ordered and decreed that the judgment appealed from be reversed; and now ordered and decreed that plaintiff have judgment against and recover from defendant Gordon W. Van Hoose, and United States Casualty Company in solido, compensation at $11.70 per week for eighteen consecutive weeks, beginning on September 21, 1929, with legal interest on each weekly payment from the time due until paid, and, in addition thereto, the sum of $143 for surgical and hospital expenses, together with all costs of this suit in both courts.


author: JONES, J.

text:
    No. 10,239
    Orleans
    MADISON v. JACKSON
    (June 18, 1928. Opinion and Decree.)
    (July 2, 1928. Rehearing Refused.)
    Loys Charbonnet, of New Orleans, attorney for defendant, appellee.
    Woodville & Woodville, of New Orleans, attorneys for plaintiff, appellant.
   JONES, J.

This is a suit by one sister to recover $1400 from another sister for nursing services rendered a sick and decrepid old colored woman.

It was originally brought during the lifetime of Nancy Jackson and was served upon her just three days before her death. Later a supplemental petition was filed making the executor of defendant party to the ■ suit.

Prom a judgment dismissing plaintiff’s suit, this appeal is prosecuted.

Defendant filed an exception of no cause of action on the ground that the debt sued for was a community debt, as defendant had never been legally separated from her husband.

Earnest argument has been made in this court that the exception should have been maintained, as the husband is the lord and master of the community and responsible for the debts thereof. This argument is inapplicable here.

The evidence shows that the entire estate of the deceased was paraphernal, the principal asset being a house and lot in this city, partly inherited from her first husband and partly purchased from her twj) children. This real estate was inventoried at $1200. Besides this she had $73 in cash and other movables.

Although the record is voluminous and there is much evidence from many witnesses as to the visitors at plaintiff’s house during the last illness of defendant, which continued 14 months from June 23, 1922, to September 5, 1923, no mention is anywhere made of defendant’s husband, Will Jackson, who seems to have been living separate and apart from his wife for several years prior to her death, as he had ceased to live with the defendant long before she moved to plaintiff’s house.

Plaintiff testifies that defendant received her own rents as a rule, only once had she asked her to take a dollar from a tenant and give a receipt for it.

Defendant’s daughter testifies her mother got about $20 or $25 per month as rent from the house and also sick benefit from two insurance societies.

The executor, Louis Young, testifies his mother got at one time, when all the rooms of her house were filled, $38 per month for rent and that he paid her an additional sum each month. Unquestionably, therefore, defendant had reserved to herself the administration of her separate property.

Art. 2389 of the Civil Code provides:

“If all property of the wife be paraphernal, and she have reserved to herself the administration of it, she ought to bear a proportion of the marriage charges, equal, If need be, to one-half her income.”

In construing this article the Supreme Court said in Succession of Plauche, where the physician and nurse during the last illness of the wife filed claims against her separate estate:

“The trial judge erred however in allowing the whole amount of these two claims; they are community debts for one-half of which only the succession of the wife is liable.”

In Mrs. Lesdernier v. Her Husband, 45 La. Ann. 1364, the Supreme Court said:

“The wife can only be called to contribute one-half of the income of her paraphernal property of which she retains administration.”

In Chopin v. Harmon and His Wife, the court held that the wife was not hound because there was no proof that she had separate property under her administration.

We think that the wife’s estate here is liable to the extent of one-half her income, if the services and a value exceeding that sum be proved.

In his answer defendant denied articulately the allegations of petition as to her services, but in the trial of the case he attempted without objection to prove payment.

The evidence had the effect of enlarging the pleadings.

Wykoff v. Miller, 48 La. Ann. 475, 19 So. 478.

Young v. T. & P., 51 La. Ann. 295, 25 So. 69.

Blackburn v. La. R., Etc., Co., 128 La. 319, 54 So. 865.

O’Reilly v. Irwin, 143 La. 81, 78 So. 245.

Freiler Merc. Co. v. Chaney, 146 La. 138, 83 So. 436.

A plea of payment admits the validity of the debt.

McMieken v. Brent, 6 Martin (N. S.) 49.

Jones v. Bishop, 12 La. 397.

Dernfield v. Aymer, 3 Martin (N. S.) 270.

Gails v. Schooner Osceola, 14 La. Ann. 54.

Reiner’s v. St. Ceran, 23 La. Ann. 384.

Landry v. Délas, 25 La. Ann. 18.

Though the evidence is highly conflicting as to payment, we think the weight thereof is in favor of plaintiff, who rendered valuable services as a nurse under most trying circumstances, as the disease was painful and revolting.

The evidence shows that plaintiff received as a rule fr.om $25 to $30 per month in rent, but there is no proof as to her taxes, insurance or expenses, nor is there proof as to the amount of sick benefit insurance she received.

In the case of Mrs. Dauenhauer v. Succession of Samuel Brown, 47 Ann. 341, 16 So. 827, where a nurse, who had sued on a quantum meruit for her services during the last illness, had been allowed $2,800, the Supreme Court found the amount exorbitant, although the estate of the deceased was inventoried at $60,000. Though the plaintiff had faithfully nursed the deceased, who was in a helpless condition, and had discharged menial services about his person, the court fixed the compensation at $3.00 per day for 365 days.

Under the above decision we think that the value of the services of plaintiff have been exaggerated and that she could not recover the amount claimed were the estate much larger.

We fix the income of deceased at $27.50 per month and we think plaintiff entitled to recover for one-half of that amount for 14 months.

The judgment is reversed.

It is ordered, adjudged, and decreed that there be judgment in favor of plaintiffs, Archais F. Madison and Frederick Madison, against defendant, Louis N. Young, as executor of the estate of Nancy Jackson in the sum of $192.50, with legal interest from September 7, Í923, and all costs!


author: WESTERFIELD, J.

text:
    No. 11,088
    Orleans
    GREATER NEW ORLEANS HOMESTEAD ASSN. v. KORNER
    (May 5y 1930. Opinion and Decree.)
    (June 2, 1930. Rehearing Refused.)
    (August 19, 1930. Writ of Certiorari and Review Granted by Supreme Court.)
    J. D. Dresner and Monroe & Lemann, of New Orleans, attorneys for plaintiff, appellant.
    John E. Jackson and Baldwin J. Allen, of New Orleans, attorneys for Jordy Bros. Slate Company.
   ON SECOND MOTION TO DISMISS

WESTERFIELD, J.

On May 11, 1929, a motion to dismiss this appeal was filed on behalf of the Jordy Bros. Slate Company, appellee herein, upon the ground that the judgment appealed from had been consented to and acquiesced in. The motion was not filed within three days after the transcript had been lodged in this court or within three days of the time the cause was fixed for trial, and, upon the authority of Saxon v. Southwestern Brick & Tile Mfg. Co., 113 La. 637, 37 So. 540, we' declined to consider the motion upon the ground that it had been filed too late. See Greater New Orleans Homestead Association v. Henry T. Korner, 11 La. App. 59, 123 So. 181.

On April 21, 1930, when the case was again called for trial, another motion to dismiss was made on behalf of the Jordy Bros. Slate Company upon the ground that the appellant, plaintiff herein, through its counsel, J. D. Dresner, had approved the judgment appealed from and consented thereto.

It is objected that this second motion to dismiss should not be considered as it is based upon the identical grounds set up in the former motion, which has heretofore been overruled by this court, and that appellee cannot revive the issue already decided against it. In other words, a second motion to dismiss an appeal based upon the same grounds may not be entertained. We are referred to Duncan v. Duncan, 29 La. Ann. 829, and Levy v. Levy et al, 107 La. 576, 32 So. 117. In the Levy case it was held that “the same grounds cannot form the basis of a second motion to dismiss the appeal.” In the Duncan case the court said:

“The appellee can not be permitted thus to revive an issue already decided against him.”

If it be conceded that the present motion is based upon the same grounds as that urged in the former motion which we denied, the authorities cited appear to apply to cases where the issue presented by the second motion to dismiss have been considered and determined. Here we declined to consider the motion for the reason that we believed it to have been filed too late under the authorities relied upon. It appears, however, that we were in error, and that, where a motion to dismiss is not based upon any informality or irregularity in the taking or bringing up of the appeal, but upon want of legal right to appeal, as is the case here, the rule announced in Saxon v. Southwestern Brick Co., 113 La. 637, 37 So. 540, does not apply, and the motion may be filed at any time. Sample v. Wheless et al., 159 La. 844, 106 So. 325.

The basis of the present motion to dismiss is the alleged acquiescence by the appellant, the Greater New Orleans Homestead Association, in the judgment appealed from. Article 567 of the Code of Practice declares:

“The party against whom judgment has been rendered cannot appeal. 1. If such judgment have been confessed by him, or if he have acquiesced in the same, by executing it voluntarily.”

In Skinner v. Dameron, 5 Rob. 447, cited with approval in Sample v. Wheless et al., supra, the court said:

“We are not aware, that under our laws any particular form is required in confessing judgment. Any admission of the debt sued for, which is such, that it leaves no issue to be tried, is, in fact, a confession of judgment.”

In the present appeal the Greater New Orleans Homestead Association complains of a judgment rendered in a concursus proceeding whereupon the claim of the Jordy Bros. Slate Company has been recognized as enjoying priority to that of the appellant. When the case was called for trial in the lower court, the issue having been presented by a rule taken by the civil sheriff through his attorney, the late W. O. Hart, to rank the claim of creditors and distribute certain proceeds in his hands, all parties being represented by counsel including the present appellant, the following admission was dictated in the record:

“It is admitted that the amount due Jordy Bros. Slate Company is only 40% of the amount shown on the records in the mortgage office, 60% thereof having been paid.”

Counsel for Jordy Bros. Slate Company, believing that the amount and rank of its claim had been consented to and agreed upon, presented no further proof in support of it, and the court, evidently being of the same opinion, rendered judgment accordingly, in the sum of $109.38, that amount being 40 per cent of its recorded lien, whereupon this appeal was taken. It seems clear to us that it was the intention of counsel to consent to, and that the effect of his admission was to establish his acquiescence in, the judgment which was rendered below. We cannot ascribe any other reason for the • admission, which is unequivocal and unqualified.

We are of the opinion that the motion to dismiss the appeal may properly be considered by us, and that it should be maintained.

For the reasons assigned, the motion to dismiss the appeal is maintained, and this-appeal dismissed.

Motion to dismiss sustained.


author: WEBB, J.

text:
    No. 3825
    Second Circuit
    TAYLOR v. FELL (GUARDIAN FINANCE CO., Intervener)
    (July 5, 1930. Opinion and Decree.)
    J. C. Cappel and F. B. Cappel, of Alexandria, attorneys for appellants.
    Hakenyos, Provosty & Staples, and J. B. Nachman, of Alexandria, attorneys for appellee.
   WEBB, J.

This action was instituted by Henry Taylor and one of his mortgage creditors, Guardian Finance Company, to annul a judgment rendered in favor of John F. Fell, as receiver of Louisiana Title & Mortgage Company, Inc., against Henry Taylor with recognition of a mortgage on certain real estate to secure its payment, and to avoid a sale of the mortgaged property, made under a writ of fi. fa. issued upon the judgment, and to have a mortgage held by the Guardian Finance Company, Inc., recognized as of superior rank to the mortgage held by John F. Fell, as receiver, etc.

On trial judgment was rendered avoiding the sale, but rejecting 'the demand for nullity of the judgment, and decreeing the mortgage held by John F. Fell, as receiver, etc., in full force and effect; and this appeal is prosecuted by the trustee in the matter of Henry Taylor, bankrupt, and the Guardian Finance Company.

• Appellants contend that the evidence established that Taylor had not been cited, and that the court erred in refusing to annul the judgment, and that there was not any demand to have the mortgage held by Fell, as receiver, etc., declared to be in full force and effect, and that the decree in that respect should be avoided.

The basis of the demand for nullity of the judgment was that Taylor had not been served with process. The return of the officer who served the process, however, shows that domiciliary service was made as directed by section 9 of Act No. 179 of 1918, but, without any objectibn being made, evidence was permitted to be introduced tending to contradict the return of the officer, and to show that there was not any such person as “Francis Taylor,” to whom the return shows copy of the citation and petition were delivered.

The evidence established, however, that Taylor’s wife, Fannie Taylor, resided in the house occupied by him, and that she was at home at the time the service purports to have been made. The return made by the officers shows that the ¡person upon whom service was made informed the officer of her name, of the absence of Henry Taylor, and where he could be found; and considering the presumption that the return of the officer correctly sets forth the facts as to service (Wise-Miller v. Humphrey, 7 La. App. 268), and the testimony of the officer that service was made as shown by the return,; it is evident that the copy .of the petition and citation were handed to Taylor’s wife.

While it may be that the words “Fannie” and “Francis” are not idem sonans, and that a return showing service on Fannie Taylor would not be proof of serv-, ice on Francis Taylor, yet when the return shows that service was máde at the residence of the ' defendant by handing copy of the petition and citation to a person who stated that her name was “Francis Taylor,” and that she lived in the residence, and the evidence shows that defendant’s wife, Fannie Taylor, resided with him, and that she was at home at the time service was made, we think the presumption should be that “Francis Taylor” was the same as “Fannie. Taylor” (Chrast v. O’Connor, 41 Wash. 360, 83 Pac. 238; Galliano v. Kifoy, 94 Cal. 86, 29 Pac. 416); and we are of the opinion that the evidence established that domiciliary service was made on Henry Taylor, and that the decree rejecting the demand to annul the judgment was correct.

The contention that the decree declaring the mortgage held by Fell, as receiver, etc., was ultra petitionem, is not, we think, supported by the petition. Plaintiff especially prayed that the mortgage be decreed to have perempted for want of reinscription; but without regard to that, the decree cannot be considered as final in that respect, as the rights of any other mortgage creditors of Taylor could not be affected by the decree, as the rank of the mortgages is a matter which must be determined when the property is sold and the proceeds distributed. (See Miltenberger v. Dubroca, 34 La. Ann. 313; Articles 678, et seq., C. P.)

The judgment appealed from is therefore affirmed.


author: JANVIER, J.

text:
    No. 11,913
    Orleans
    W. H. HODGES & CO., INC., v. PENNSYLVANIA R. R. CO.
    (May 5, 1930. Opinion and Decree.)
    (June 16, 1930. Rehearing Refused.)
    (August 19, 1930. Writ of Certiorari and Review Granted by Supreme Court.)

      Prowell, McBride & Ray, and Welton P. Mouton, of New Orleans, attorneys for (plaintiff, appellant.
    Milling, Godchaux, Saal and Milling, of New Orleans, attorneys for defendant, appellee.
   JANVIER, J.

W. H. Hodges & Company, Inc., a Louisiana corporation, brought this action in the Civil District Court for the Parish of Orleans against the Pennsylvania Railroad Company, a corporation neither domiciled nor engaged in business in this state.

Jurisdiction in the Louisiana court is asserted solely because of the attachment of certain freight cars of defendant while on the line of an interstate carrier engaged in business in this state.

The Pennsylvania Railroad Company is a non-resident of Louisiana, has no place of business and is not engaged in business here, has no agent for the service of process and has not consented to be sued here.

The suit is based on damage alleged to have been sustained by two cows while in transit from Greenville, Illinois, to New Orleans, Louisiana, the Pennsylvania Railroad having been the initial carrier and plaintiff being the holder of the bill of lading. The action is, therefore, brought against the initial carrier under the provisions of the Carmack amendment to the Interstate Commerce Act.

The petition does not allege the exact point at which the negligent acts causing the damage were committed, though it may fairly be inferred that these acts occurred before the shipment reached the border of the state of Louisiana.

In oral argument it was conceded that the cause of action arose before the shipment reached the borders of the state of Louisiana and a reading of the brief of appellant indicates that there is no controversy on this point.

Defendant, appearing solely for the purpose of contending that the courts of this state are without jurisdiction, suggests two grounds on which it bases the contention that there is no jurisdiction here.

First: That the cause of action, being of a transitory character and not having arisen in Louisiana, the courts here can not obtain jurisdiction even by foreign attachment over the property of a non-resident corporation, which has no agent here and which is not engaged in business in this state.

Second: That if the laws of Louisiana permit its courts to assert jurisdiction in such a situation over a corporation engaged in interstate commerce, then those laws are violative of the commerce clause of the Constitution of the United States in that they permit and authorize an undue interference with interstate commerce.

In support of this second contention defendant calls to our attention Davis v. Farmers’ Cooperative Equity Co., 262 II. S. 312, 43 S. Ct. 556, 557, 7 L. Ed. 996, in which a statute of Minnesota was declared by the Supreme Court of the United States to violate the commerce clause of the Federal Constitution because that statute, as construed by the court of last resort of Minnesota, compelled every foreign interstate carrier to submit to suit in Minnesota as a condition to being permitted to maintain a soliciting agent within the state, whether the cause of action sued on arose within or without the state.

In declaring that such construction rendered the statute obnoxious, the Supreme Court of the United States said:

“This condition imposes upon interstate commerce a serious and unreasonable burden, which renders the statute obnoxious to the commerce clause. Compare Sioux Remedy Co. v. Cope, 235 U. S. 197, 203, 35 Sup. Ct. 57, 59 L. Ed. 193.
“That the claims against interstate carriers for personal injuries and for loss and damage of freight ai;e numerous; that the amounts demanded are large; that in many cases carriers deem it imperative, or advisable, to leave the determination of their liability to the courts; that litigation' in states and jurisdictions remote from that in which the cause of action arose entails absence of employees from their customary occupations; and that this -impairs efficiency in operation, and causes, directly and indirectly, heavy expense to the carriers — these are matters of common knowledge.. Facts of which we, also, take judicial notice, indicate that the burden upon interstate carriers imposed specifically by the statute here assailed is a heavy one; and that the resulting obstruction to commerce must be serious.”

It appears to us that the above reasoning applies with great force to the situation presented here and that the words, “That litigation in States and jurisdictions remote from that in which the cause of action arose entails absence of employees from their customary occupations; and that this impairs efficiency in operation, and causes, directly and indirectly, heavy expense to the carriers” cannot be lost sight of, as they seem to form the basis of a clear distinction between that case and the case of State of Missouri v. Taylor, 266 U. S. 200, 45 S. Ct. 47, 48, 69 L. Ed. 247, 42 A. L. R. 1232, 266 U. S. 1232, in which it was held that to permit a foreign corporation to be brought into court in a state in which it was not domiciled or engaged in business does not effect an undue and unnecessary interference with interstate commerce. We find that in only one particular do the facts of the Taylor 'case differ from those in the Davis case and that is, that as stated by the court, “For aught, that appears the negligence complained of. occurred within Missouri.”

We cannot see that any distinction between the facts of the Taylor case and those in the case at bar results from the fact that here only a judgment in rem is asked for because it appears that just as serious an interference with interstate commerce results from the attachment of property necessarily used by carriers in interstate commerce as results from the filing of a suit seeking a judgment in personam. In either case the carrier must send its employes into a foreign jurisdiction to present the defense and, in fact, in the case of a proceeding commenced by attachment, it must make hurried arrangements for furnishing bond, etc., and in the meantime, pending the making of these arrangements, serious delays to interstate commerce may result.

• In the case at bar the attachment was issued on October 18th and arrangements to release the attachment were not completed until October 22nd, four days later. Incalculable harm may have been done to the shipment contained in the cars which were attached during that period of delay.

Since we find no other distinction between the two. decisions of the United States Supreme Court to which we have referred, except that in the one (Davis v. Farmers’ Cooperative Equity Company, supra) in which it was held that the state statute, when construed as permitting a suit on a cause of action arising in another state, caused an unnecessary interference with interstate commerce and since; necessarily, there must be some fact which distinguishes the two cases, we have come to the conclusion that the principle enunciated in the Davis case controls the situation presented here, since here the cause of action arose before the shipment reached the state of Louisiana.

In view of the conclusion to which we have come, we find it unnecessary to consider and discuss the question presented in the first contention raised by the exceptor.

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


author: HIGGINS, J.

text:
    No. 11,668
    Orleans
    BARBETTA v. BLYTHE CO., INC.
    (June 16, 1930. Opinion and Decree.)
    (July 23, 1930. Rehearing Refused.) .
    (October 8, 1930. Writ of Certiorari and Review Refused by Supreme Court.)
    C. A. Buehler, of New Orleans, attorney for -plaintiff, appellee.
    A. D. Danziger, of New Orleans, attorney for defendant, appellant.
   HIGGINS, J.

This is a suit for the rescission of a contract for the sale of real estate and the return of the purchase price, and in the alternative for specific performance thereof. There was judgment by default and a motion for a new trial was denied by the judge a quo. The defendant has appealed.

The record shows that the defendant entered into a written contract for the sale of real estate with plaintiff’s minor son on May 17, 1926. The consideration of the contract was $760, $500 of which was paid in cash and the balance in installments, which were fully paid on August 18, 1926. On that date he also paid the sum of $3 cash to cover the fee for an act of sale. Thereafter plaintiff made numerous demands upon the defendant to pass an act of sale, conveying an unincumbered title to him. It appears that there was a mortgage of $50,000 on the property, and that defendant experienced difficulty in having this mortgage released. On December 20, 1926, defendant wrote the plaintiff that title would be passed in due course on securing mortgage and conveyance certificates.

During June, 1927, the attorney for the plaintiff called upon the president of the defendant company and demanded that the title be passed, and the president assured the attorney that as soon as the mortgage could be released the act of sale would be passed. On June 15, 1927, the attorney for the plaintiff wrote the defendant a letter demanding either the rescission and cancellation of the contract and the return of the purchase price, or that the title be immediately passed. The defendant, having failed to comply with this request, was formally placed in default on October 12, 1927, and still failing to comply with the contract the present suit was filed on December 30, 1927, and citation was served on January 3, 1928.

On January 5, 1928, the office of the attorney for the defendant wrote the plaintiff’s attorney a letter requesting additional time within which to file an answer to the suit, as he was out of the city. Counsel for the plaintiff acknowledged receipt of this letter on January 7, 1928, and consented thereto. It appears that there were some negotiations between the attorneys with a view of having the act of sale passed and on April 19, 1928, the attorney for the defendant wrote a letter stating that the title would be passed on May 10, *1928. On this date the defendant company was not prepared to deliver an unincumbered title, and plaintiff insisted that the contract be canceled and the money returned.

On June 8, 1928, a preliminary default was entered and confirmed on June 15, 1928.The attorney for the plaintiff, when placed on the witness stand, admitted that he did not notify the attorney for the defendant that the default would be confirmed, and that his client insisted that the case be pressed, but says he unsuccessfully endeavored to reach defendant’s attorney.

The motion for the new trial was based upon the fact that, since counsel for the plaintiff agreed to grant counsel for the defendant additional time within which to file an answer, and as negotiations were pending for the settlement of the matter by having the act of sale passed, the confirmation of the default was illegally taken and that a new trial should be granted.

We are of the opinion that it was never the intention of the attorneys of either party that an indefinite and unreasonable period of time would be granted within which to file an answer. We feel that counsel for plaintiff allowed every reasonable opportunity to the counsel for defendant to file an answer.

The dates as recited above show that the defendant company breached its agreement, particularly in view of the fact that the contract called, lor delivery of title within 30 days after the date of last payment. The last payment was made on August 18, 1928, including the fee for the deed. Notwithstanding 'the fact that additional reasonable time was granted, the title was not passed on May 10, 1928, as the attorney for the defendant stated it would be passed. Certainly after that date the agreement to allow additional time to file an answer-was at an end.

For the reasons assigned the judgment appealed from is affirmed.


author: WESTERFIELD, J. JANVIER, J.

text:
    No. 13,201
    Orleans
    KEITH v. THE T. & P. R. R. CO.
    (June 6, 1930. Opinion and Decree.)
    (July 23, 1930. Rehearing Refused.)
    (October 7, 1930. Writ of Certiorari and Review Granted by Supreme Court.)
    E. J. Thilberger and Jos. J. Cullinane, of New Orleans, attorneys for plaintiff, appellant.
    Spencer, Gidiere, Phelps & Dunbar, of New Orleans, attorneys for defendant, appellee.
   WESTERFIELD, J.

Eads B. Keith was killed on the 2d day of June, 1925. His widow, Mrs. Winnie Keith, brought suit on her own behalf and on behalf of her minor child, Etta N. Keith, in the civil district court for the parish of Orleans, alleging that her husband, when killed, was employed as a brakeman on a train operated by defendant, the Texas & Pacific Railroad Company, which ran from Boyce, La., to Addis, La., and that “in furtherance of his duty of signaling, switching, and otherwise performing the regular duties of a brakeman and while engaged in the performance of said duty, the train, which was switching at a siding near Lecompte, La., did negligently and without waiting to determine whether or not the deceased had an opportunity to board the train and without waiting for his signal did leave him at the said siding at Lecompte, La.”; that Lecompte, La., was a locality noted for its robberies, thugs, and other dangers, and that the employees of defendant were aware of that fact; that the employees on the train negligently failed to wait for the signal from Keith that he had closed the switch and was aboard the train; that one of the defendant’s employees inquired of the conductor as to whether or not Keith had boarded the train and requested that he stop the train and investigate whether or not Keith was aboard, and the said conductor refused to do so, merely answering that Keith was a railroad man and ought to have sense enough to catch the train; “that when the train crew did arrive at the next stop or station and it was finally determined that Keith was missing some of the employees went back and found Keith on or near the track dead with bullet holes in his body, having been killed while waiting for the train to return, which was within the scope of his duty”; “that your petitioner further avers that because of her husband’s death she is entitled, as aforesaid, under the Employers’ Liability Act of the State of Louisiana to a weekly compensation of Twenty Dollars ($20.00), per week with interest from the date the amounts due petitioner accrued for a period of three hundred (300) weeks for the common benefit of your petitioner and the said minor child, Etta N. Keith.”

The suit was filed on May 29, 1926. On June-7, 1926, defendant answered admitting that deceased was employed by it as a brakeman on one of its trains which ran from Boyce, La., to Addis, La., and that he was killed on the 2d day of June while engaged in switching operations near Lecompte, La. It also admitted that his death was caused by four gunshot wounds, evidence of which appeared upon his body when found by the employees of the railroad company, but denied all charges of negligence. For further answer defendant averred that the train upon which Keith was employed at the time of his death was engaged in interstate commerce because part of the freight which it carried was moved from points outside of the state of Louisiana to points within the state; that defendant’s liability with reference to the employment of Keith and the injury suffered by.him.is governed by the Employers’ Liability Act of Congress (45 USCA, secs. 51-59), and not by the Workmen’s Compensation Law of Louisiana (Act No. 20 of 1914, as amended).

On June 30, 1926, defendant’s counsel wrote to plaintiff’s counsel inclosing two copies of a stipulation which it was proposed should he signed by both parties. The stipulation which was executed as suggested reads as follows:

“It is stipulated and agreed by and between Mrs. Winnie Keith, plaintiff herein, through her attorneys, Habans & Coleman and E. J. Thilborger, and Texas '& Pacific Railway, Company, defendant herein through its attorneys, Spencer, Gidiere, Phelps & Dunbar, that at the time plaintiff’s husband, E. B. Keith, was shot and killed at Lecompte, Louisiana, said E. B. Keith was employed in interstate commerce by defendant, said Texas & Pacific Railway Company, a common carrier engaged in interstate commerce by railroad.”

In the letter referred to, the following sentence appears:

“Upon the signing of this stipulation, we shall make no objection to your filing a supplemental petition for the purpose of bringing Mrs. Keith’s case under the Federal Employers’ Liability Act.”

On June 30, 1927, Mrs. Keith, having in the meantime qualified as administratrix in the Texas court, filed a supplemental petition in which it is alleged “that by-agreement between counsel for plaintiff and defendant, your petitioner files herewith this supplemental and amended petition to take the place of the original petition filed herein, wherein the proceeding was previously brought under the Workmen’s Compensation Act of the State of Louisiana, wherein it is now brought under the Acts of United States .Congress governing employers’ liability.”

In this supplemental petition the amount of $64,000 is demanded for loss of her husband’s earnings of $50 per week for 72 weeks and for pain, suffering, and mental anguish. The former charges of negligence are repeated and other charges are added.

To this supplemental (petition the defendant answered denying any agreement between counsel which would permit of the substitution of the supplemental petition for the original petition, and answered specifically the other charges of negligence, denying them.

On May 21, 1929, by way of supplemental answer the defendant pleaded the preemption of plaintiff’s right of action under section 6 of the Federal Employers’ Liability Act of 1908, as -amended by Act of April 5, 1910, sec. 1, section 56 of title 45 of the Code of the Laws of the United States (45 USCA, sec. 56), which provides that:

“No action shall be maintained under this chapter unless commenced within two years from the day the cause of action accrued.”

The exception was maintained and plaintiff’s suit dismissed upon the ground that the supplemental petition was an alteration of the original petition to such an extent as to amount to a separate and distinct cause of action which, having been filed more than two years after the accrual of the right of action, could not be allowed. Plaintiff has appealed.

It will be observed that the stipulation of counsel agreeing that the death of deceased occurred at a time when he was employed and the defendant carrier engaged in interstate commerce was agreed upon on June 30, 1926, a little more than a year after the filing of the suit and some eleven months before the running of the two-year prescriptive period. This agreement and the letter of counsel accompanying it are relied upon by plaintiff as tantamount to a waiver of all objections to the supplemental petition whether of substance or of form. We do not so regard it, but it does appear to us that it amounted to a change in the character of the action made by consent within the two-year period which had the effect of bringing the suit within the purview of the Employers’ Liability Act without the necessity of specially mentioning it. Seaboard Air Line Railroad Co. v. Duvall, 225 U. S. 477, 32 S. Ct. 790, 56 L. Ed. 1171; Missouri, Kansas & Texas Railroad Company v. Wulf, 226 U. S. 570, 33 S. Ct. 135, 57 L. Ed. 355, Ann. Cas. 1914B, 134.

In Koennecke v. Seaboard Air Line Railroad Company, 101 S. C. 86, 85 S. E. 374, the Supreme Court of South Carolina held that in an action for the death of a railroad employee “evidence that he was engaged in interstate commerce was elicited without objection on the cross-examination of one of plaintiff’s witnesses, either party might, so long as the evidence remained in the record, claim the benefit of the federal statute, though the pleadings of neither asserted any right or immunity under it.” The reason for this announcement was stated to be that where the facts are not changed the cause of action is essentially the same, whether tried under the state or federal law, and that “it could rarely happen that a shifting from one to the other would work prejudicial surprise.”

The Supreme Court of the United States in affirming the Koennecke case, 239 U. S. 352, 36 S. Ct. 126, 127, 60 L. Ed. 324, said:

“The cause of action arose under a different law by the amendment, but the facts constituting the tort were the same.”

In Seaboard Air Line R. R. Co. v. Renn, 241 U. S. 290, 36 S. Ct. 567, 568, 60 L. Ed. 1006, an employee of a railroad company sued for personal injuries suffered through its negligence. The original pleadings failed to allege that, at the time plaintiff was injured, he was employed in and defendant engaged in interstate commerce. The court permitted an amendment after the running of the two-year prescriptive period. This was complained of by defendant upon the ground that “the original complaint did not state a cause of action under the act of Congress, that with the amendment the complaint would state a new cause of action under that act, and that, as more than two years had elapsed since the right of action accrued, the amendment could not be made the medium of introducing this new cause of action.” In discussing the action of the trial court in permitting the amendment, certain allegations of the original complaint were pointed out as not inconsistent with an action brought under the Federal Liability Law, though superfluous if the cause of action arose under the state law; the court saying:

“In these circumstances, while the question is not free from difficulty, we cannot say that the court erred in treating the original complaint as pointing, although only imperfectly, to a cause of action under the law of Congress. And this being so, it must be taken that the amendment merely expanded or amplified what was alleged in support of that cause of action, and related back to the commencement of the suit, which was before the limitation had expired.”

In Toledo, St. Louis & Western Railroad Company v. Slavin, 236 U. S. 454, 35 S. Ct. 306, 307, 59 L. Ed. 671, the court reviewed a decision of the Supreme Court of Ohio (88 Ohio St. 536, 106 N. E. 1077) affirming the trial court in overruling a contention of defendant to the effect that the case was governed by the Federal Employers’ Liability Law, upon the ground that that fact was made to appear only by evidence admitted over plaintiff’s objection, to the effect that the accident, for which the plaintiff sued, happened in interstate commerce, no reference to the Employers’ Liability Act being made in plaintiff’s complaint or in defendant’s answer. In reversing the action of, the state court, the Supreme Court of the United States held that: “When the plaintiff brought suit on the state statute, the defendant was entitled to disprove liability under the Ohio act, by showing that the injury had been inflicted while Slavin was employed in interstate business. And, if without amendment the case proceeded with the proof showing that the right of the plaintiff and the liability of the defendant had to be measured by the Federal statute, it was error not to apply and enforce the provisions of that law.”

In Central Vermont R. Co. v. White, 238 U. S. 507, 35 S. Ct. 865, 868, 59 L. Ed. 1433, Ann. Cas. 1916B, 252, the court said:

“The declaration contained no allegation that White was engaged in interstate commerce at the time of the collision. The company made this the ground of a plea in bar. The administratrix thereupon filed a replication admitting that the deceased was engaged in such commerce at the time of his death. The company demurred to the replication on the ground that it was a departure from the cause of action under the federal, employers’ liability law. This demurrer was overruled.” In approving this action of the trial court the Supreme Court said it was sufficient that the state court of appeals (87 Vt. 330, 89 A. 618) held the defect in the declaration “cured by the charge in the plea and the admission in the replication that White was employed in interstate commerce.”

We have thus far discussed the case from the standpoint of the effect of the agreement in the stipulation of counsel, and we believe that there is ample authority for the decision, that this agreement has the effect of amending the original petition before the running of the statute of limitation, so as to bring the action within the scope of the federal statute. This rule seems to us to present a consideration. of manifest equity, for as was said by Judge Moschzisker, in a very able dissenting opinion in Hogarty v. Philadelphia & R. R. Co., 255 Pa. 236, 99 A. 741, 749, 8 A. L. R. 1386, after reviewing a number of authorities, some of which we have used in our discussion, said:

“Thus from the authorities reviewed it may be seen that in causes like the one before us, whenever, by any formal method, it is properly made to appear, or whenever it is directly or impliedly conceded, whether by the pleadings or otherwise, that the accident under investigation happened to an employee of a defendant railroad during the course of interstate commerce, the court will regard this as a governing fact and apply the federal law; and, as suggested in one of the above-cited cases, when we consider that in the vast majority of instances the plaintiff has no way of knowing whether or not he was injured in- interstate commerce, while the defendant almost invariably has such knowledge, it is plain that the rule as stated is a just one. Moreover, it is a rule from which no material wrong can flow; for, as suggested in another of the cases, a party taken by surprise is always entitled to a continuance if the trial court be convinced that he may suffer harm.”

But we do not base our conclusion solely upon the effect of the stipulation of counsel, for without it there is ample authority for the proposition- that a petition or complaint may be amended after the running of the-two-year prescription period so as to introduce for the first time the question of interstate commerce and the application of the federal statute. Broom v. Southern R. Co., 115 Miss. 493, 76 So. 525; Nashville, Chattanooga & St. Louis R. R. v. Anderson, 134 Tenn. 666, 185 S. W. 677, L. R. A. 1918C, 1115 Ann. Cas. 1917D, 902; Seaboard Air Line R. R. Co. v. Koennecke, 239 U. S. 352, 36 S. Ct. 126, 60 L. Ed. 324; N. Y., etc., R. R. Co. v. Kinney, 260 U. S. 340, 43 S. Ct. 122, 67 L. Ed. 294. In the last-cited case the holding of the court as expressed in the syllabus was as follows:

“Where the original complaint in a railway engineer’s action for injuries sets forth facts that would have given a cause of action at common law under the statutes of New York or under the federal Employers’ Liability Act Comp. St., secs. 8657-8665 (45 USCA, secs. 51-59), as one or another law might govern, though alleging notice required by the New York statute, and to that extent pointing thereto, an amended complaint, alleging that the parties were engaged in interstate commerce, was not barred by limitations.”

The case of Missouri, Kansas & Texas Railroad Company v. Wulf, 226 U. S. 570, 33 S. Ct. 135, 137, 57 L. Ed. 355, Ann. Cas. 1914B, 134, is approved in the Kinney case. The Wulf case permitted a similar amendment to be made to the complaint as merely, an enlargement of the pleadings. But, says counsel, in this case the court said that “it was sufficiently averred that the deceased came to his death through injuries suffered while he was employed by tbe defendant railroad company in interstate commerce.” In speaking of this feature of the Wulf case, the Supreme Court in the Kinney case said:

“It is true that the fact of the injury arising in interstate commerce was pleaded by the defendant. But it was pleaded as a bar to the action as it then stood and only makes more marked the changes that the amendment introduced. We do not perceive that the effect of the amendment in that case distinguishes it from this. It really is a stronger case, because, as we have said, here the declaration was consistent with a wrong under the law of the State or of the United States as the facts might turn out.”

Defendant, however, relies on Union Pacific Railroad Company v. Wyler, 158 U. S. 285, 15 S. Ct. 877, 881, 39 L. Ed. 983. There is no question but that the Wyler case is inconsistent with the current of authority both before and since its appearance, and -we must regard the authority of that decision as being impeached by subsequent utterances from the same exalted source. The Wyler case held that in order to recover under a statute, the statute must be pleaded whether the facts were sufficient to bring the case within the statute, or not, because “it required the pleading of the statute to give them any vitality at all. As we have seen, that statute is not mentioned or intimated in the original declaration, and hence to have allowed the amendment offered would have been allowing the introduction of a new cause of action.”

Exactly the opposite to this Is held in Seaboard Air Line R. R. Co. v. Koennecke, 239 U. S. 352, 36 S. Ct. 126, 60 L. Ed. 324; Toledo, St. Louis & Western Railroad Company v. Slavin, 236 U. S. 454, 35 S. Ct. 306, 59 L. Ed. 671; Central Vermont R. Co. v. White, 238 U. S. 507, 35 S. Ct. 865, 59 L. Ed. 1433, Ann. Cas. 1916B, 252.

The case of Baltimore & Ohio S. W. R. R. Co. v. Carroll, decided February 24, 1930, 280 U. S. 491, 50 S. Ct. 182, 183, 74 L. Ed........., relied upon by counsel as an affirmance of the Wyler decision, presents, a totally different issue, because in the Carroll case the amendment sought to be made to the original suit was one where-, recovery was claimed for a death, the; original suit being brought for personal injuries, and it was held that the amendment constituted a different cause of action because, “although originating in the-same wrongful act or neglect, the two; claims are quite distinct, no part of either being embraced in the other. * * * One begins where the other ends, and a recovery upon both in the same action is not a double recovery for a single wrong, but a single recovery for a double wrong..”-

In Baltimore S. S. Co. v. Phillips, 274 U. S. 316, 47 S. Ct. 600, 602, 71 L. Ed. 1069, decided May 16, 1927, we find the following language:

“A cause of action does not consist of facts, but of the unlawful violation of a right which the facts show. The number and variety of the facts alleged do not establish more than one cause of action so long as their result, whether they be considered severally or in combination, is the violation of but one right by a single legal wrong. The mere multiplication of grounds of negligence alleged as causing the same injury does not result in multiplying the causes of action. ‘The facts are merely the means, and not the end. They do not constitute the cause of action, but they show its existence by making the wrong appear. “The thing, therefore, which in contemplation of law as its cause, becomes a -ground for action, is not the group of facts alleged in the declaration, bill, or indictment, but the result of these in a legal wrong, the existence of which, if true, they conclusively evince.” ’ ”

See also Berube v. Horton, 199 Mass. 421, 85 N. E. 474.

We are free to confess that the question before us is perplexing, as is clearly shown by the nicety of distinction which characterizes the jurisprudence on this subject. Some of these distinctions may be said to depend upon “the estimation of a hair,” but the trend of judicial opinion unquestionably favors the maintenance of the causes and the permission of amendments where necessary to that end.

In Louisiana the present attitude of our courts in permitting an amendment to a petition following the maintenance of an exception of no cause of action based upon insufficiency of allegation, when contrasted with the language of a justice of our Supreme Court who expressed the prevailing opinion some thirty years ago to the effect that a petition which discloses no cause of action is no petition, and hence there is nothing to amend, affords a conspicuous example of the trend of judicial thought.

The Supreme Court of the United States, in the Kinney case, supra, declared that a liberal rule should be given in these cases:

“Of course an argument can be made on the other side, but when a defendant has had notice from the beginning that the plaintiff sets up and is trying to enforce a claim against it because of specified conduct, the reasons for the statute of limitations do not exist, and we are of opinion that a liberal rule should be applied.”

This principle of liberality of construction is applied with increasing frequency and authority. The inflexible fiat of law, in its application, yields something of its austerity in a benignant gesture deferring to its underlying basis public sentiment and popular will.

In a very recent case Justice Holmes (Danovitz v. U. S., 50 S. Ct. 344, 345, 74 L. Ed. --------, decided May 5, 1930), without a dissent, based his conclusion solely upon the divine inspiration of a statute of the United States which prohibited the manufacture of intoxicating beverages. We say solely upon the celestial aura of the statute because, terrestrially considered, corks and containers, bottles and strainers form no part and discharge no function in the process of manufacture of alcoholic liquors, certainly not during the period of best development of the distillers’ art and technique, a fact which the court seemed to recognize, for it said that such articles were not used in the manufacture of liquor in the strictest sense, but “as the purpose of the Prohibition Act (27 USCA) was to ‘suppress the entire traffic’ condemned by the act * * * it should be liberally construed to the end of this suppression, and so directs. * * * The decisions under the revenue acts have little weight as against legislation under the afflatus of the Eighteenth Amendment.”

Our conclusions are that the judgment dismissing plaintiff’s suit is erroneous, and for the reasons herein assigned it is reversed, and it is now ordered that this case be remanded to the Civil District Court for further proceedings according to law and consistent with the views herein expressed.

JANVIER, J.

(dissenting). My associates concede that the question presented is a very close one and that the stipulation which, to some extent, is relied on by plaintiff, cannot be construed as a waiver of the period of pre-emption.

I believe that the most important thing to determine is whether or not the defendant will or may be prejudiced by allowing the amendment.

Being of the opinion that the proof necessary to the establishment of the allegations in the second or so-called amended petition must have been essentially different from what would have been required to establish those set forth in the original petition, I believe that the second petition was not an amendment of the first, but, in fact, constituted the setting up of a new and different cause of action.

In Clark v. Gulf, Mobile & Northern R. R. Co., 132 Miss. 627, 97 So. 185, 186, is found a ease resembling this one more closely than any of the others cited on either side, and in it the Supreme Court of Mississippi said:

“The original declaration is purely a suit to enforce an .unusual and exceptional right in derogation of the common law-given by this statute. The amendment stated facts for which a cause of action is given either under the common law or the federal Employers’ Liability Act, whichever law governs. By this amendment there was therefore a change from the Mississippi statute in derogation of the common law to the federal Employers’ Liability Act. This is a change or departure from law to law, and therefore the second count states a different cause of action. U. P. Railroad Co. v. Wyler, 158 U. S. 285, 15 S. Ct. 877, 39 L. Ed. 983, is directly in point and determinative of this question. In that case the converse of the question here presented was before the Supreme Court of the United States.”

Counsel for plaintiff relies much on New York Central & H. R. R. Co. v. Kinney, 260 U. S. 340, 43 S. Ct. 122, 67 L. Ed. 294, in which the Supreme Court said that the reason for the enforcement of the statute of limitation does not exist where the defendant has had notice that the plaintiff sets up and is trying to enforce a claim against it, because of conduct specified in the first petition. I, of course, agree with the reasoning of that decision, and I would readily concur in the majority opinion here if I felt that the first petition had set up conduct as a result of which recovery could be had under the second petition. But I believe that by the very reasoning of that decision the sustaining of the plea of' prescription is imperative here.

When the first petition was filed, defendant, it is true, was thereby put on notice that an accident had occurred and that plaintiff’s husband had been killed. But at the same time, and by the same petition, defendant was also put on notice that the suit was brought under the state Compensation Act. There was no alternative prayer that in the event that the state Compensation Act had no application defendant was liable by reason of the negligence of its employees, but the suit was brought solely and only under the state Compensation Act, and under that act the question of negligence vel non did not enter into the case.

More than two years later, by the amendment, defendant was told, “it is your negligence which caused the accident.” Thus, after being lulled into a sense of security so far as the necessity of disproving negligence was concerned, defendant, who may have allowed its employees to become scattered and may have allowed its records and statements to be destroyed or lost, found itself under the necessity of re-preparing the case on a new issue entirely.

As illustrative of the fact that in the many cases referred to in the majority opinion the amendment was allowed because both the original petition and the amended petition relied for recovery on negligence, I cite the decision of the Supreme Court of the United States in Seaboard Air Line R. R. Co. v. Koennecke, 239 U.. S. 352, 36 S. Ct. 126, 127, 60 L. Ed. 324, in which that court said:

“The cause of action arose under a different law by the amendment, but the facts constituting the tort were the same.”

It immediately appears that the two claims presented in that case both were alleged to result from tort or negligence, and that therefore the acts complained of were the same, whether the suit was tried under the first petition or under the amendment. But here, if the suit had been tried under the first allegation, negligence would have had no part whatever in the matter, while, if it had been tried under the second, negligence was the sole issue.

I think that all of the reasons for the enforcement of the period of pre-emption as fixed in the federal statute are extant here.

I therefore respectfully dissent.


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    No. 13,155
    Orleans
    NORMAN ET AL. v. LITTLE ET AL.
    (July 1, 1930. Opinion and Decree.)
    (July 23, 1930. Rehearing Refused.)
    (October 8, 1930. Writ of Certiorari and Review Refused by Supreme Court.)

      Wm. H. Talbot, Monroe & Lemann, and Nicholas Callan, of New Orleans, attorneys for plaintiffs, appellees.
    Eraste, Vidrine, Beard & O’Keefe, of New Orleans, attorneys for defendants, appellants.
   WESTERFIELD, J.

This is a suit by Mr. and Mrs. Ernest B. Norman on their own account and on behalf of their two minor children for the recovery of damages due to physical injuries and property loss resulting from a collision between their Lincoln sedan, which, at the time, was being driven by Mr. Norman, and a LaSalle roadster belonging to the defendant, Charles Little, and driven by his sister and co-defendant, Mrs. Leary. Mrs. Leary was never cited, and the case proceeded against Little alone. He answered, admitting the ownership of the LaSalle automobile, but denying the authority of Mrs. Leary to use it, and averring that, at the time of the accident, she had taken his car without his consent and was using it for purposes of her own and unconnected with his business. There was judgment below in favor of plaintiffs awarding Mrs. Norman $1,000, and Mr. Norman individually $2,106, and for the use and benefit of his minor child J. Robert Norman $100, and for the use and benefit of hip minor child Margaret Helen Norman $100, a total of $2,306. Defendant has appealed, and plaintiffs, in this court, have answered the appeal seeking to have the amount of the award increased.

On the question of negligence we, like the learned trial judge, find no difficulty in reaching the conclusion that the driver of defendant’s car was responsible for the accident. On this point we quote the following from the reasons for judgment which appear in the record:

“The case on the question of negligence is clearly with the plaintiff. All the evidence is to the effect that plaintiff’s car had come to the intersection of Carondelet and Philip Streets, had occupied it, when defendant’s car collided with it, while the defendant’s car was approaching Carondelet Street from the lake side — that is to say, approaching plaintiff’s ear on the left side of plaintiff’s car. In that situation, the plaintiff’s car had the right of way, and besides that, the plaintiff’s car was already in that intersection. The testimony of the witnesses on this point is corroborated by the physical facts, which show that the plaintiff’s car was struck somewhat in the rear of the center, head on, by the defendant's car. In this situation, it seems to be perfectly obvious that the fault was with the driver of the defendant’s car.”

As a matter of fact the question of the negligent operation of defendant’s car is not seriously disputed, the main reliance of defendant being upon the legal proposition advanced in regard to the agency of the driver of his car.

The defendant having admitted the ownership of the offending automobile, the presumption is that Mrs. Leary was his agent and that she was acting within the scope of her agency. See the case of Union Indemnity Co. v. Henry C. Faust, No. 9440 of our docket, decided March 10, 1924, unreported (see Louisiana and Southern Digest), where it was held that the driver of a truck which bore the name under which the defendant did business was presumed to be an employee of defendant and presumed to be acting within .the scope of his employment. Of course the presumption may be overcome by evidence to the contrary, and we now turn to a consideration of pertinent facts in the record to determine their probative force, as possibly overcoming this presumption.

Mrs. Leary, a native of Niagara Falls, N. Y., was visiting her brother, the defendant, Charles Little, at his residence No. 1640 South Carrollton avenue, this city, and, on the morning of the accident, had accompanied him to his office at No. 1301 Carondelet street, where he conducted the Star Employment Bureau, the brother and sister reaching the office about 7:30 a. m. Mr. Little’s business was an employment agency which obtained servants for householders and jobs for servants for a consideration, and, at the time of the collision, there was in his car with his sister a young negro man, presumably procured by him for and being delivered by his sister to some customer of his agency. At least there is no doubt of the fact that the negro was present in the car, and, as pointed out by the trial court, it is unlikely that Mrs. Leary, who was a white woman, would have had him along for companionship. The negro fled following the arrival of the police on the scene, and was not produced as a witness during the trial of the case, so we can only determine the purpose of his being in the car with Mrs. Leary by the probabilities of the situation, which point very clearly to the conclusion that he was in the car for some purpose in connection with the operation of defendant’s business. Mrs. Leary did not testify either. As a matter of fact, she was not cited and could not be found, notwithstanding the unusual efforts of plaintiff’s counsel, who employed detectives for the purpose of locating her. Her failure to appear and the absence from the record of any testimony by her taken by commission is a most damaging circumstance affecting defendant’s case. Defendant is shown to have had knowledge of his sister’s whereabouts; she was visiting him at the time of the accident; she left the city with him and removed to Bastrop, La., after the accident, and we can conceive of no reason why her testimony should not be in the record, unless it be upon the ground that its effect would have been adverse to defendant, a conclusion inevitable under the circumstances. United Motor Car Co. v. Finin, 12 La. App. 160, 125 So. 158; Geddes & Moss Undertaking & Embalming Co. v. Simkins, 4 La. App. 125; Succession of Rageur, 155 La. 97, 98 So. 853. The only evidence in the record which in the least supports defendant’s contention on the question of agency is the admission of counsel that if Miss Sibyl Barron, defendant’s stenographer, were present, she would testify that the defendant came out of his private office after his sister had left with the car and inquired for it and was told by Miss Barron that Mrs. Leary had taken it. This statement is relied upon for the purpose of establishing the fact that defendant knew nothing of the use of his automobile by his sister, but, in view of the other evidence to which we have referred, it can have little or no effect. The judgment finding the defendant liable is, we believe, amply supported by the record.

On the question of quantum the principal complaint of inadequacy relates to the award of $1,000 to Mrs. Norman. According to Dr. Landry, who treated Mrs. Norman, she suffered “a fracture of the left clavicle, or collar-bone, with marked contusions, bruising of the left chest,' left arm, left leg just below the knee, and both hips. There was marked ecchymosis, which is blue and black marks, a sign of hemorrhage under the skin and swelling, loss of motion, nervousness.” She was under treatment by Dr. Landry from the day of the accident, June 23, to the end of October, when she still complained of pain and did not have the free use of her arm. She suffered considerably after the union of the fracture in her collar bone, with an injury to the nerves, “traumatic neurosis.” The extent of Mrs. Norman’s injuries, it seems to us, were such as to justify a larger award than was made in Quintell v. Ferran, 147 La. 153, 84 So. 570, where a judgment of $1,000 for a broken collar bone was affirmed, because, in that case, the fracture appeared to be unaccompanied with the painful consequences which obtained in this instance. Our conclusion is that the award of a thousand dollars is inadequate and should be increased to $1,500.

. For the reasons assigned the judgment appealed from is amended so as to increase the amount awarded Mrs. Ernest B. Norman from $1,000 to $1,500, and, as thus amended, affirmed.

JANVIER, J. recused.


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    No. 11,758
    Orleans
    GRIFFIN v. NEELIS
    (January 27, 1930. Opinion and Decree.)
    (April 21, 1930. Rehearing Refused.)

      Montgomery & Montgomery, of New Orleans, attorneys for plaintiff, appellant.
    Milling, Godchaux, Saal & Milling, of New Orleans, attorneys for defendant, appellee.
   HIGGINS, J.

Plaintiff sued the defendants, Neelis and Dosher, in solido, for the sum of $2,000, with legal interest from March 14, 1918, until paid. Dosher filed an exception to the jurisdiction of the court ratione person», which was sustained by the. lower court, and from which no appeal was taken. On the trial on the merits there was judgment in favor of defendant Neelis, dismissing plaintiff’s suit, and plaintiff has appealed.

The voluminous record shows that plaintiff was a dredge boat captain and was working in Vermilion parish during the years of 1912-1913. He is an uneducated man, with very little business experience. After finishing the work under contract, he went to the Bank of Gueydan, where he had an account, for the purpose of withdrawing his money. The defendant Neelis was the cashier of the Bank of Gueydan and also the treasurer of the town of Gueydan. Neelis suggested to plaintiff, Griffin, that he was in a position to invest plaintiff’s money at 8 per cent, and Griffin gave Neelis a check for- $8,000, which was deposited in the Bank of Gueydan. Neelis was given full power and authority to draw against the deposit of $8,000, and from time to time loaned money to various parties for plaintiff’s account. The agreement between Neelis and plaintiff was a verbal one, and it is not clear as to just exactly what was said at that time, but it is admitted by the defendant Neelis that he did receive the money and invest it for plaintiff’s account. After considerable negotiations between plaintiff, who was a resident of New Orleans, and defendant Neelis, who was a resident of Gueydan, all of the $8,000 was properly accounted for, except the sum of $2,000, which is the basis of the present suit.

Plaintiff demanded the $2,000 from Neelis, who said that he had loaned the money to E. N. Dosher, one of the defendants (against whom the suit was dismissed on the exception to jurisdiction below), and produced an unsecured note alleged to have been signed by Dosher dated December 1, 1916, and payable to John T. Griffin, bearing 8 per cent interest, and payable December 1, 1917. Neelis had indorsed on the back of the note, in his handwriting, an extension of one year, on the principal and an acknowledgment of one year’s interest. The note is in Neelis’ handwriting, except the signature, which is Dosher’s.

On February 15, 1917, plaintiff wrote to defendant that he wanted an accounting, and wished to withdraw his money at once. Thereafter plaintiff made several more demands for a settlement, and finally employed Mr. Morvant, a certified public accountant, to make a trip to inspect and check the records of the Bank of Gueydan in order to obtain a proper settlement of the account. After checking the records, Mr. Morvant advised that there was a. balance on deposit in the bank to plaintiff’s credit of $6,219.61, and that Neelis had produced two notes, one signed by E. M. Dosher for $2,000, the subject-matter of the present litigation, and one signed by A. J. Cronk for $750. The accountant also advised that there was an item of interest on a note of one Baker. On May 7, 1917, plaintiff wrote defendant that he had received the statement, which was satisfactory to him, but the notes remained in the Bank of Gueydan in Neelis’ charge for collection, and he undertook to collect them. From this time until April, 1920, Neelis attempted to collect the note from Dosher, but without effect. Neelis then placed the note in the hands of his attorney, Judge Gordy, for collection, who made amicable demand on Dosher without avail, and on July 29, 1920, Neelis’ attorney sent the note to plaintiff’s attorney, after plaintiff had refused to advance the costs of court necessary to sue Dosher, claiming that he was looking to Neelis for payment. On September 1, 1922, plaintiff entered suit against the defendant, Dosher, as the maker of the note and against Neelis as borrower of the money or as trustee of the fund, or as the agent of plaintiff for the investment and collection of the money.

Neelis answered, denying that he had borrowed the money, or that he was the trustee of the fund, but admitted “that he had loaned out certain moneys of the plaintiff at plaintiff’s request to parties residing in Vermilion Parish, but he absolutely denies that he guaranteed the plaintiff the amount, or that he acted in any manner as the trustee for the plaintiff.” Defendant further admitted “that $2000.00 of plaintiff’s money, with, the knowledge and consent of plaintiff, was loaned to E. N. Dosher, and the said E. N. Dosher executed a note payable to plaintiff for the said amount, stipulating for the payment of interest and the said Dosher paid interest which was received by the said plaintiff and the said plaintiff extended payment of said note' from time to time. Finally, as the note was not paid by said Dosher, your respondent sent said note to attorney Gerdy, with the request that he collect same for the account of said plaintiff and that after the note went into the hands of Judge Gordy, your respondent had nothing more to do with it.”

After the testimony in the case was taken, and nearly six years after suit was filed, defendant Neelis, on' June 12, 1928, filed an exception of no cause of action and a plea of estoppel. The exception of no cause of action was referred to the merits by the lower court, but was not urged here, and our appreciation of the record shows that the exception was without merit. On the question of estoppel, defendant argues that the account was settled on May 7, 1917, when plaintiff wrote defendant, after Mr. Morvant had examined the bank’s books, as hereinbefore recited.

We think that the judgment of the district court, referring the plea of estoppel to the merits, was correct, because the record shows that, at the time that plaintiff wrote defendant Neelis, on May 7, 1917, Neelis had failed to inform plaintiff of the circumstances and facts surrounding the loaning of the money to Dosher and of the facts and circumstances surrounding his attempts to collect this money from Dosher. We do not consider the plea of estoppel well founded, for the additional reason that defendant Neelis has not been prejudiced or injured by the action of plaintiff in writing the letter of May 7, 1917, and Neelis in no way changed his position as a result of it.

We do not deem it necessary to consider whether plaintiff loaned the money to Neelis, or whether Neelis was the trustee of this fund to be invested, for we feel that we can rest our decision upon the ground that Neelis was the agent of plaintiff for the purpose of investing the fund of $8,000, and attending to its collection, both as to principal and interest.

The record is clear that Neelis was the agent of plaintiff for the purpose of investing the fund of $8,000 and attending to its collection. The admissions in his answer, his own testimony, and the testimony of plaintiff and his witnesses, convince us of that fact.

The next subject of inquiry is whether or not Neelis properly and legally conducted himself as the agent of plaintiff in the investment of his funds and their collection.

The evidence with reference to this issue shows that E. N. Dosher was a young farmer who had worked on Neelis’ farm and had demonstrated to Neelis’ satisfaction his industry and reliability. Neelis and I. L. Baker, Jr.; had bought this farm from X. L. Baker, Sr., on February 27, 1912, and Neelis had bought the interest of I. L. Baker, Jr., on February 16, 1914, thus making Neelis the owner of the farm. On February 1, 1915, Neelis sold the property to Dosher for $8,800; the full consideration being represented by .two mortgage notes of $4,400 each. Dosher testified that he and Neelis were in partnership in the operation of the farm, but Neelis denies this. However, we are convinced that Neelis was in partnership with Dosher in the operation of the farm, and was in partnership at the time he loaned Dosher the $2,000 represented by the note in question, and therefore the loan was for the mutual benefit of Dosher and Neelis, as partners.

Some dispute arose between Neelis and Dosher, and on March 17, 1919, a written agreement of compromise and settlement was entered into between them, after some negotiations between their respective attorneys, whereby Neelis agreed to have the property re-transferred to himself, assuming the two mortgage notes of $4,400 and two mortgage notes of $1,200 each of I. L. Baker, Sr., and I. L. Baker, Jr., all bearing on the property. In addition to this, Neelis agreed to pay Dosher $4,000 cash, less the sum of $1,124.62, with interest thereon represented by a note signed by Dosher, and which was owned by the Bank of Gueydan. Neelis deducted this amount from the $4,000, and paid the bank in cash, and the balance of the $4,000 was paid to Dosher’s attorney in cash.

The record shows that at this time, pending negotiations for the compromise settlement, and at the time of the compromise settlement Neelis had the Dosher note in his charge and care for collection, but, instead of deducting $2,000, with the accrued interest, from the $4,000, as he had done for the Bank of Gueydan with reference to its note of $1,124.62, he deliberately or negligently and carelessly, in breach of his duty and obligation to his principal, failed to do so.

The evidence convinces us that, at the time the plaintiff wrote Neelis on May 7, 1917, he did not know that there was any partnership existing between Dosher and Neelis, and therefore the statement in the plea of estoppel that the settlement of May 7, 1917, was made with a full knowledge of the facts and circumstances connected with the deposit of $8,000 is not true.

It is significant to note that in the compromise agreement of March 17, 1919, between Neelis and Dosher, nothing is said of the note of $2,000 that Dosher owed plaintiff. Dosher testified that he did not know of the existence of the $2,000 note until about August, 1920, when he received a letter from Judge Gordy, making demand for payment. He testifies that he had signed other notes for Neelis in connection with their partnership business, and that on one occasion, when Dosher’s brother wanted to borrow some money, Dosher signed the note in blank and left it with. Neelis, and was somewhat surprised when his brother came to the farm and informed him that he would have to come to the bank to sign the note, in order that he might get the $500. Upon coming to the bank, Dosher reminded Neelis that he had already signed the note for that purpose, which Neelis at first denied, but shortly afterwards laughingly said that he had "made a mistake and had torn the note up. When Dosher asked to be shown the pieces of the note, he said that they had been scattered about. Dosher then signed another note, which he left with Neelis to be filled out. That is the only way in .which he can account for the present note, and he denies that he owes it, claiming a full release by the compromise agreement of the partnership’s affairs.

We are convinced that it was only during the course of the trial that plaintiff ob tained full knowledge of the manner in which Neelis had handled this item of $2,000. We also note that Neelis loaned the money to Dosher on an unsecured note, and while, in his testimony, he says that Dosher made money during the years of 1917 and 1918, the fact remains that he did not collect anything on the principal of the note from Dosher.

Judge Pugh, the attorney for Dosher, testified that Dosher was without any assets that were subject to seizure, as his farm was incumbered to its full value, and the implements and mules on it were within the exemption provided by law. But, in spite of this fact, Neelis loaned Griffin's money to Dosher, who was his partner at the time,- $2,000 on an unsecured note. Notwithstanding the fact that he was constantly assuring plaintiff in his several letters that he was making every effort to collect the money, he deliberately or negligently failed to deduct it from the $4,000 which was in his possession at the time of the compromise settlement on March 17, 1919. Under the circumstances, we feel that Neelis was guilty of a breach of faith, and was negligent and careless in the discharge of his duties to his principal, and that the loss of $2,000, plus interest, sustained by the plaintiff, is the direct result of Neelis’ negligence.

In the ease of Collins v. Andrews, 6 Mart. (N. S.) 195 (page 102), the Supreme Court held that it is the duty of an agent to prove occurrences which prevented him from collecting debts placed in his hands for collection, or, in other words, to show due diligence.

In the case of Livaudais v. Denis, 4 La. Ann. 301, the court said:

“Either St. Avid knew the declaration of the dividend and neglected to collect it; or else he neglected to make due inquiry from time to time, and his ignorance must be attributed to his own fault. He knew that the insolvent estate was under administration, and that dividends had been already made; and it was his duty to use reasonable diligence, from time to time, by calling upon the syndic. If this had been done, it is fair to suppose he would have been equally successful with the other agent. It has been repeatedly held that, when obligations are placed in the hands of an agent for collection, it is not sufficient for him, after a lapse of time, to offer to return them, without showing that he exercised ordinary care and industry to get the money. Police jury v. Bullit, 8 Mart. (N. S.) 328. Collins v. Andrews, 6 Mart. (N. S.) 195.
“The amount of the obligation entrusted for collection is prima facie, the measure of damages sustained by the principal.”

In Blanc v. Mutual National Bank of New Orleans, 28 La. Ann. 923, 26 Am. Rep. 119, the court approved the principle announced in Livaudais v. Denis, 4 La. Ann. 301, that the amount of the obligation intrusted for collection is prima facie the measure of damages • suffered by the principal. The record shows that ¿Neelis not only failed to rebut the prima facie case of damages established by plaintiff, but convinces- us that plaintiff has lost the amount sued for as a result of Neelis’ fault.

For the reasons assigned, the judgment of the district court is annulled, avoided, and reversed, and it is now ordered, adjudged, and decreed that there be judgment in favor of John P. Griffin, plaintiff herein, and against John G. Neelis, defendant, in the full sum of $2,000, with legal interest from March 14, 1918, until paid, and all costs of these proceedings.