author: TALIAFERRO, J,

text:
    No. 3991
    Second Circuit (Second Division)
    SPILLMAN v. TEXAS & PAC. RY. CO.
    (June 11, 1931. Opinion and Decree.)
    (July 16, 1931. Rehearing Refused.)
    (October 5, 1931. Writs of Certiorari and Review Refused by Supreme Court.)
    See, also, 10 La. App. 379, 120 So. 905.
    M. L. Dismukes, of Natchitoches, attorney for plaintiff, appellee.

      i

    Peterman, Dear & Peterman, of Alexandria, and Spencer, Gidiere, Phelps & Dunbar, of New Orleans, attorneys for defendant, appellant.
   TALIAFERRO, J,

Apparently this suit is. brought by Mrs. Artemise Madine Spill-man, individually and as natural tutrix of her five minor children, to recover damages of the defendant railway company to the amount of' $25,000, for the death of John Spillman, her alleged husband.

It is alleged in the petition that between the hours of 1 and. 2 o’clock, the morning of December 6, 1926, a freight train of defendant company, through the gross carelessness and negligence of its agents and employees, and by them operated, ran into and struck said John Spillman at or near milepost . 224 on defendant’s tracks in Natchitoches parish, inflicting injury upon him from which he died.

It is further alleged that deceased left his home in the town of Cloutierville, on the night of December 5th, to visit his father-in-law, who lived 2 miles south; that he followed the public road until it crossed the railroad right of way, and then adopted the right of way as the shorter "route to his destination; that said deceased never reached his destination, but was found ’ the morning of December 6th by a crew of workmen of defendant company in a reclining position, unconscious, along the edge of the line of cross-ties; that he was taken to his home promptly and the following night was sent by railroad to the Charity Hospital in New Orleans for treatment; that he died there December 19th of concussion of the brain and fracture of the skull inflicted by said •train of defendant, without regaining consciousness.

It is further alleged that defendant’s track, east and west of the spot where said accident occurred for .a distance of three miles, is straight and the view unobstructed; that said right of way was generally used by pedestrians going from place to place along the railroad to the knowledge of the company, its agents and employees, and without objection from them.

The deceased was»alleged to be 35 years of age at the time of his death, with a long life expectancy; that he earned an average of • $100 per month, which he expended in the support and comfort of his family.

Defendant’s answer admits its. Louisiana domicile and "corporate capacity as alleged, and that John Spillman was found at the ■time, place, and in the condition described in plaintiff’s petition, but in all other respects the allegations of fact contained in plaintiff’s petition are denied; and for further answer defendant says:

“That a shot gun, one shoe and a partially filled bottle of whiskey (commonly called ‘hootch’ or ‘corn liquor’) and identified as belonging to him, were found near the body of said John Spillman; that he was a trespasser on respondent’s right of way and was» under the influence of liquor, as he was reputed to be a frequent and inordinate user of alcoholic liquors; that between the hours, alleged in the second article of plaintiff’s original petition, namely, between one and two o’clock on the morning of December 6th, 1926, an extremely dense fog hung over that part of the track near the place where Spillman was found, and did not lift until after nine o’clock the following morning; that the only discoverable injury to the said Spill-man was a skull wound and laceration of the right side of the head near the ear; that any train or trains which passed the place where said Spillman is alleged to have been struck between one and two o’clock on the morning of Monday, December 6th, 1926, were manned by full train crews; that the engineer and fireman of any or all of said trains, were at their respective posts of duty in the cab of the engine; that neither they nor any member of the train crew or crews had any knowledge of having struck said John Spillman; that said train or trains were equipped with all modern appliances which were in complete order and operating perfectly; that there was no fault or negligence of any kind on the part of any #of respondent’s employees in charge of said train or trains; and that if it be proven, as alleged, that said John Spillman was struck by one of respondent’s trains (which is denied), then respondent avers that such striking and injury was due either wholly to the fault and negligence of said Spillman, or that he materially contributed thereto, and brought about the accident to himself by his. own fault, in consequence whereof your respondent is not liable in law to the said plaintiff upon her demands as made in th'is suit.”

There was judgment for Mrs. Spillman individually for $6,000, from which defendant appeals.

The present appeal is the second in this case. On first appeal the judgment of the lower court was reversed on account of a defect in the citation, and the case was remanded for further proceedings as the law directs. 10 La. App. 379, 120 So. 905.

Plaintiff has answered the appeal, praying that the judgment in her favor, individually, be increased to at least $10,000 or $15,000, and that the minors should be awarded judgment for the amount of difference between the judgment awarded her individually and the $25,000 sued for.

In this, court defendant filed an excep- ■ •tion of no cause or right of action to plaintiff’s petition. In oral argument and brief it is urged that no cause or right of action is. disclosed by plaintiff’s petition,, and that it is not affirmatively alleged, nor has it been proven, that petitioner, Artemise M. Spillman, and John Spillman, the deceased, were legally married, or that she has legally qualified as tutrix of her children.

A supplemental brief has been filed by plaintiff’s counsel wherein the lack of merit of this exception is discussed at length, and we are asked to overrule same, but, in the alternative, should we reach the conclusion that the exception is well founded, that the case be remanded to the district court for the purpose of introducing evidence to establish that Mrs. Spill-man had qualified as the natural tutrix of her children, and had been legally' married to the deceased, John Spillman.

Counsel for defendant do not contend that plaintiff and deceased were not lawfully married, nor that she has not qualified as natural tutrix to her minor children, but do assert strenuously that, inasmuch as no affirmative allegations on these questions are contained in the petition, and that no evidence was offered or received to establish either fact, no recovery can be had either by the widow or the minor children.

The petition in this case, after the caption, reads:

“The petition of Mrs. Artemise Madine Spillman, a resident of your said parish and state, individually and as natural tutrix of her minor children, Bessie, Emma, John Lloyd and Joseph Spillman, with respect represents and shows.”

This descriptive reference to Mrs. Spill-man as tutrix of her children, and to the children themselves, is the only one contained in the petition, excepting that in paragraph IX, after referring to the age of the deceased, his. industrious qualities and earning capacity, it is said:

“All of which amount he used in the support and maintenance and care and comfort of your petitioner and her minor children. That by his death they have suffered a very great loss.”

In several places in the petition reference is made by plaintiff to deceased as “her husband,’’ but nowhere therein is the slightest reference made to a marriage having been contracted between them.

Paragraph X of the petition reads as follows :

“Your petitioner has been injured and damaged by the gross carelessness and negligent killing of her husband, John Spill-man, by said Texas and Pacific Railway Company, its agents and employees, in the sum of Twenty-five Thousand Dollars as follows, to-wit:
“(a) For the grief, pain, sorrow, and mental distress of petitioner, caused by the violent and cruel death of petitioner’s husband, Five Thousand Dollars.
“(b) For the loss of her husband’s love and affection and companionship, Ten Thousand Dollars.
“(c) For the loss of her husband’s assistance and support, Ten Thousand Dollars.”

The prayer is that “she have judgment” against the railway company for $25,000, etc.

The question of the marriage herein discussed was not directly raised in the lower court, but all of the articles of the petition wherein deceased is referred to as the husband of' plaintiff are denied in defendant’s answer.

After this case was remanded for new trial by this court, in March, 1929, an amended petition was filed by plaintiff praying for another service on defendant. The first paragraph of this petition reads in part, viz.:

“The supplemental and amended petition of Mrs. Artemise Madine Spillman, a resident of the parish of Natchitoches,” etc.

The minors are not mentioned nor referred to.

She prays for judgment as follows: •

“Adopting all of the allegations of the said original petition and prayer thereof * * * prays that plaintiff do have and recover judgment in her favor,’’ etc.

The . judgment of the lower court is in favor of Mrs. Spillman, individually. No reference is made therein to the minors.

We have not found, nor have we been cited to, a case wherein the pleadings and ■the facts presented propositions like those we are now considering. Many cases are reported wherein the legality of marriages and legitimacy of claimants are put at issue and threshed out in the trial court.

Our Supreme Court has repeatedly held that a beneficiary under article 2315 of the Code, as amended, must be, in -the case of children, offspring of a union contracted in the manner of and pursuant to legal requirements; and, in case of the surviving widow, that her relation to deceased must have originated by virtue of a marriage engagement entered into and celebrated as provided by our laws. Green et al. v. New Orleans, S. & G. I. R. Co., 141 La. 120, 74 So. 717; Youchican v. Texas & P. Ry. Co., 147 La. 1080, 86 So. 551.

In Vaughan v. Dalton-Lard Lumber Co., 119 La. 61, 43 So. 926, the court ruled that this statute- was- sui generis, and was neither a law of inheritance nor a law of marriage. In that case it was held that a putative wife could not recover damages for the death of her husband.

In the Green case, 141 La. page 128, 74 So. 717, 719, Mr. Justice Monroe, discussing the question of the necessity of introducing proof to establish the marriage there in question, says:

. “In the instant case, it is not shown * * * that the slightest effort was made to find any written trace • or record of Martha Tillman’s alleged marriage to William Green. It may be said that, by not objecting, upon the trial, to the introduction of parol evidence, defendant waived its right to object in this court, and that may he true; but that doe's not relieve the plaintiffs of the obligation to prove that their parents were legally married,” etc.-

It is elemental that one claiming a right dependent upon a legal marriage must establish that fact, when denied, as he does any other circumstance connected with his cause of action.

In the case of Lynch v. Knoop, 118 La. 611, 43 So. 252, 8 L. R. A. (N. S.) 480, 118 Am. St. Rep. 391, 10 Ann. Cas. 807, the mother sued for damages, for the death of her minor daughter. Defendant filed an exception of no cause of action, and then answered, denying the legitimacy of the child on the ground that she was not the issue of a lawful marriage. The court, on the question of burden of proof, in syllabus, said:

“Defendant denied that plaintiff’s child was a legitimate daughter, and tendered an issue requiring proof of marriage. Plaintiff declined to furnish proof of her marriage, on the ground that the burden of proof was with defendant. The marriage, if there was a marriage, was peculiarly within her knowledge. If she held the proof, relief cannot be allowed, nor damages.” Jackson’S] case, 46 La. Ann. 236, 14 So. 514; McConnell v. City of New Orleans, 15 La. Ann. 410; Castagnie v. Bouliris, 43 La. Ann. 943, 10 So. 1.

The court, after deciding that plaintiff could not recover for the reason that she had not discharged the burden of proof on the issue vel non of legitimacy of her child, proceeded to decide the case on its merits and rejected plaintiff’s demand on that score also. In this case it was also held that the right of action under Act No. 71 of 1884, amending article 2315 of the Civil Code, in favor of the mother and minor children,v does not include a natural mother or natural child; that legitimate .relationship only was the legislative intent.

In the case at har, as defendant has not admitted that deceased was the lawful husband of plaintiff, but, on the contrary, denied each of her allegations specifically wherein deceased was referred to as her husband, the issue of marriage was sufficiently tendered to necessitate the introduction of affirmative and formal proof on part of plaintiff establishing such marriage. The burden was on her to do this.

Plaintiff has not alleged that she has been appointed and has qualified as natural tutrix of her minor children. No proof was offered or' received to establish that such had been done. She did not pray for judgment in their favor for any amount.

Our appreciation of the petition in this case is such that it cannot be construed to be a suit in behalf of the Spillman minors. The prayer of a petition characterizes the nature of the suit, and discloses for whom relief is sought. Myers v. Dawson, 158 La. 753, 104 So. 704.

We are of the opinion the exception of no cause of right of action, directed against Mrs. Spillman’s right to recover as surviving widow of deceased, for the reason that she had not alleged, nor proven, that she and deceased were legally married, is well founded.

However, having reached the conclusion that plaintiff is not entitled to recover on the merits, we will not remand the case for evidence on the question of the marriage mentioned, but, as the Supreme Court did in case of Lynch v. Knoop, supra, we shall decide the case on its merits and finally dispose of it.

Defendant propounds two /propositions of defense, viz.: (1) That it has not been proven that the injury of which John Spillman died was caused by its train; and (2) that, if the proof does show that its train inflicted the injury of which deceased died, his. own contributory negligence bars recovery by his widow, even though it be conceded that defendant’s employees were negligent in the operation of the train.

Plaintiff testified that her husband left their home in- the village of Derry, in Natchitoches parish, at the hour of 9 o’clock, Sunday night, December 5th, with his shotgun to go to her father’s place, a few miles distant, to join him in a duck hunt the next morning. He never reached his. destination, but was found the following morning at about 9 o’clock by a section crew of defendant on its right of way, some 12 or 15 feet from the rails, near milepost 224, less than 2 miles south of Derry, unconscious, talking incoherently, with a scalp wound or laceration 3 or 3% inches long, on level with the right ear. He was raised by Remus Lavespere, and with his aid was conducted to Lavespere’s home about one-fourth of a mile away, and there placed in an automobile and driven to his own home. That night he was sent to the Charity Hospital in New Orleans by railroad, where he died on December 19th, without regaining consciousness. The wound was X-rayed two or three times, at the hospital, but no fracture of the bones of the head was' found. The physician at Derry who examined deceased on December 6th also found no fracture. There was no other visible wound on .or injury to the body.

At the spot where deceased was discovered the morning of December 6th near the end of the cross-ties was also found his shotgun, his right shoe off, and a soda water bottle containing a small quantity of corn whisky. Blood signs were observe^. on the end of a cross-tie and on the ground where, as one of the witnesses expresses it, “he fell and rolled into the ditch.”

Only one witness was produced who claims to have seen the deceased on the railroad track the night of December 5th. This witness, Clifford Bell, testified that he had been hunting and marking cattle on Sunday, the 5th day of December, and returning home that night between the hours of 11 q’clock p. m. and 1:30 o’clock a. m., as~he emerged from the thick woods into the open country next to the defendant’s track east (south) of Derry he saw the light of a train as it rounded the curve at that place, moving south and approaching him; that he was traveling on horseback parallel to, and about 50 feet from, the track; that as the train’s light grew brighter and the distance between him and it lessened he observed an object on the track about 500 yards away, which distance, on reflection, he reduced to 250 or 300 yards; his testimony, in part, being as follows:

“Q. What kind of night was this?
“A. It had been raining, and it was drizzling a little bit.
“Q. With the light of the engine shining down there, how far were you from ■the object when you first saw it?
“A. When I met and looked at the object, how far, was I. from the object?
“Q. Yes.
“A. I was about — oh about 500 yards, probably nearer, I don’t think it was hardly that far.
“Q. About as near as you can guess, about how far was it?
“A. If you will give me time, I can tell right about how far it was.
“Q. Take all the time you want.
“A. About 250 or 300 yards from where I first made out the object.
“Q. How far were you from the object before you could clearly discern it was a human being?
“A. I was in about 100 yards, I was going to it and a little bit off, about 75 degree angle.
“By tbe Court:
“Q. What conclusion did you reach when you were 250 yards, as to what the object was?
“A. I was getting nearer to it, I was coining meeting it, and did not get quite up to it.
“By Mr. Dismukes:
“Q. What the judge wants to know, if you had any idea what the object was.
“A. I could tell it was a man, but could not tell who it was. I could not tell whether it was colored or white.
“Q. When you first saw it you could tell it was a human being?
“A. Yes, when the light got great enough, I could see it was a human being.
“Q. When you got within 100 yards.
“A. I was right opposite with it and the train passed by.”

He further states that this person was sitting on the end of the cross-ties, and that he was near to milepost 224; that he observed the man until the train was within a few feet of him, and after the train passed he saw no more of him; that the train was a freight of about 50 cars; that no whistle was blown nor bell rung as the train approached the man on the ties, and no stop made after passing where he had been sitting. He made no investigation to see if .the man had been injured, nor did he inform any one of the perilous circumstances he saw the man in, except possi1 bly one person, and did not know Spillman had been injured until the night of December 6th.

The petition declares that deceased was struck by a freight train between the hours of 1 o’clock and 2 o’clock a. m., December 6th. The evidence conclusively shows that no freight train passed the place where Spillman was found wounded between the hours of 10 o’clock p. m. December 5th and 5 o’clock a. m. December 6th. A passenger train (No. 22) of only 8 cars passed that point going south at about 1:47 o’clock the morning of tbe 6th. A drizzling rain fell the night of December 5th, and, when this passenger train passed Derry, a heavy fog hung over the tracks there and for several miles below. This fog was so dense as to interfere with the engineer’s lookout ahead of the train, and it continued until after 8 o’clock of next morning.

The engineer of the passenger train did not observe any one on the track about the point where Spillman was discovered, and therefore ‘did not sound any alarm. The conductor testified that in the vicinity of milepost 224, while he was at the rear end of the train, he saw an object stretched out, some 10 or 15 feet from the track, which had the appearance of being a yearling calf; that he glimpsed the object, which was on the right-hand side of the track, going south, through the reflection of the back-up light on the train’s rear. From the foregoing facts, deduced from the evidence, it is. certain that, if the deceased was struck by one of defendant’s trains, it was passenger train No. 22 which passed early the morning of December 6th. It seems to us that, if deceased had been hit by this passenger train, moving at the rate of 50 miles per hour, his body would have been hurled many feet away from the track and his skull fractured or torn away. The fact that no wounds were on his body, save the laceration of the scalp, and ■ that blood was found on the end of a cross-tie and on the ground nearby indicates to us strongly that a train did not inflict the injury, but supports the theory that deceased, while intoxicated, fell upon the cross-tie and wounded himself.

If deceased was not struck by this passenger train, .then there is nothing in the record to fix the time he was injured. He had evidently imbibed too freely. He had only traveled some 2 miles from his home when hurt. It is not improbable he fell on defendant’s track and the injury thus received, coupled with many hours of exposure to rain and cold before discovered, brought about physical conditions of which he died.

Against this theory, the evidence of the witness Bell is offered. This witness did not state that the train hit Spillman. , He did say that the man he saw was in a perilous position, sitting on the end of the cross-ties of the track over which the train passed. He did not think Seriously enough of the matter to investigate as to what happened, though only some 50 feet away. It is possible, as a coincidence, that this witness could have been in a position to have seen what he testified he did see, if such happened, but, as he is badly in error in many material points of his evidence, a shadow is cast against the verity of it as a whole. This witness lived at Derry. He hunted cattle back of Chopin some 8 miles away. Darkness comes early in December. He was returning home many hours after the shades of 'night made it impossible to recognize cattle in the woods. He was a close friend- of the deceased. He states that the train he saw was a freight, and that the hour was between 11 o’clock p. m., and 1:30 a. m. He is in error on both of these material points.

It is our opinion plaintiff has failed to establish to that degree of certainty required by law that her husband’s death was caused by injury inflicted by a train of defendant.

It is unnecessary to consider the alternative defense of defendant.

For the reasons hei ein assigned, it is ordered, adjudged, and decreed that the judgment of the lower court be, and same is hereby, reversed, annulled, and set aside, and plaintiff’s suit is dismissed, at her costs.


source: Caselaw Access Project

author: TALIAFERRO, J.

license: Public Domain

text:
    No. 4051
    Second Circuit
    NELMS ET AL. v. BOSWELL
    (July 16, 1931. Opinion and Decree.) -
    (August 12, 1931. Rehearing Refused.)

      M. L: Dismukes, of Natchitoches, attorney for plaintiffs, appellants.
    Boone & Boone, of Many, attorneys for defendant, appellee.
   TALIAFERRO, J.

This suit was instituted by Mrs. Mary Nelms, surviving widow of Jerry L. Nelms, deceased, individually and as natural tutrix of her minor children, viz., Zella Nelms, Ella Nelms, Burland Nelms, and Mabry Nelms, issue of her marriage to deceased, and by Edgar Nelms and Mrs. Bessie Honeycutt, wife of Leo Honeycutt, major heirs and children of deceased and his said widow, against Grover C. Boswell, to recover the sum of $15,000 damages alleged to have been sustained by them on account of the killing of their said husband and father by defendant’s automobile, December 5, 1929, while negligently and carelessly operated by defendant’s minor son, Palmer Boswell.

Plaintiffs allege that deceased had worked at an oil well, near Zwolle, in Sabine parish, the day he was killed, and when injured by the collision, of defendant’s car with his own, on the Many-Robeline gravel highway, he was returning to his home in or near Robeline; that the car of deceased, a Ford touring automobile, was going easterly in the direction of Robe-line, and the ear of defendant, a Chevrolet Six sedan, was going westerly in the direction of Many; that the car of defendant was being driven at a high rate of speed, about 60 miles per hour, as it approached deceased’s car, and realizing the danger created by the reckless and careless manner in which said car was being driven, deceased, endeavoring to avoid the danger and escape a collision, drove his own car to the (his) right side of the highway, near to the drain ditch, and brought it to a complete, or near complete, stop; but this effort was. vain, as defendant’s car, operated and driven as aforesaid, ran into and wrecked the car of deceased and inflicted injury to him of which he died within a very short time.

Defendant admits that his minor son was driving his car when it collided with the car of Jerry L. Nelms, deceased, and that said son was on an errand for him (defendant). All other allegations of fact in plaintiff’s petition are denied.

Defendant further avers that the collision that caused the death of said Nelms was due solely to his own carelessness and negligence, in that he left his side of the highway, turned his car lights into. the face of defendant’s son, and ran his own car into that of defendant, driven by said Palmer Boswell; that said son was driving on his side of the road at a slow rate of speed; but if said Palmer Boswell was in any manner negligent the said Nelms, who was drinking, was guilty of such contributory negligence as was the proximate cause of said collision and his death.

The district judge rejected plaintiffs’ demand and dismissed their suit. They prosecute appeal from this judgment.

The evidence establishes that deceased and two co-laborers, viz., Marshall Bryant and Owen Dillard, were en route to Robe-line from the scene of their labor, near Zwolle, in the Ford touring car of déceased, and were within one-fourth of a mile of Fort Jesup, when the accident occurred, about 7 o’clock p. m. Defendant’s car, driven by his son, was moving in the opposite (westerly) direction. The car of deceased was a 1924 model, while that of defendant was new and twice as. heavj" as that of deceased. After the collision the Ford car was pointing diagonally back towards Many with the hub of left rear wheel (that wheel and both front wheels having been crushed) in the roadside ditch and its right rear wheel on the edge of the highway. 'In other words, the position of this car, as result of the impact, was virtually reversed. Defendant’s car stopped within a few feet of the Ford car, about the center of, and diagonally across, the road. The two cars were so located after the collision as to interfere with traffic until 'the Chevrolet was moved. The left front wheel of defendant’s car was destroyed, left fender badly injured, and other damages inflicted to that side of the car, while the Ford Was virtually demolished. Its front was mashed in and left side stripped. Nelms and Bryant occupied the front seat and Dillard the rear seat of deceased’s car. Nelms was immediately removed to a sanitarium in Natchitoches and died within an hour after arriving there.

Bryant and Dillard testified as witnesses on the trial of the case. Their testimony with respect to the circumstances of the collision is practically the same and is as follows: That defendant’s car was first seen by them when it emerged into view over a rise in the road about 100 yards ahead of them and it proceeded down a grade in their direction at a rate of speed between 45 and 60 miles per hour; that the ear was zigzagging over the road with lights on; that when Nelms realized the reckless manner in which the approaching car was being driven, he “pulled” his car to., the. right side of the road and brought it to a near stop, and at this juncture and while thus situated defendant’s car ran into Nelms’ car. Bryant-testified that when he realized a collision was imminent he attempted to get out of the car but was not successful.’ He says he was thrown some 15 feet into the ditch, while Dillard was hurled through the ear’s top onto the road. Nelms, who was driving, remained in his seat, but was mortally wounded by the impact and was knocked unconscious. His left arm was broken in two places, a gash on the head, left leg broken, three ribs broken and stuck ’ into the lungs, and base of skull probably fractured.

Within a short distance of - the spot where the accident happened there is a crossroad. Near the intersection of the roads, on south side, at time of the- tragedy, lived Walter Stoker with his family. The night of the tragedy they were expecting Mrs. Stoker’s brother to stop by and see them. Mr. ■ Stoker testified that he saw the car of deceased as it approached, and slowed down near this crossing and for the moment assumed the car was. being driven by his brother-in-law and would turn into the road to his residence; that this car passed the roads’ intersection a very short distance, bad almost stopped, when he heard the noise of the collision; he did not have an unobstructed view of defendant’s car as it approached the place of- the accident, but could tell it was moving at a rapid rate of speed. This witness immediately went to the! scene of the accident and as quickly as it could be. done placed Nelms in a truck and with others .carried him to the sanitarium. His testimony is corroborated by that of his wife with respect to the movement of the Ford car in front of their residence to the moment of the collision.

Palmer Boswell testified that he had been to Ft. Jesup and was returning to his father’s home in Many when the accident occurred; .that he was on his side of the road and slowed down to about 25 miles per hour a% he approached deceased’s car and thought he would pass it ‘‘until he got nearly on it and it seemed like it turned straight into me” (quoting his own language). That it seemed to him the left front wheel of both cars locked. He states that the Ford car was traveling about 25 miles per hour, and he did not observe that it slowed down as it neared him. On cross-examination this witness stated that the car of deceased kept its side of the road until within 4“ or 5 yards of his car and then deliberately cut across the road and caused the collision; that he did not try to stop his car; that he was 16 years old at date of the collision, had been driving his father’s cars for two or three years, and this was the first accident he had had. That immediately- after the accident he went to a filling station not far distant and gave notice of the trouble, then assisted in starting the injured man to the sanitarium, and then phoned to his father about the accident. His version of the accident and its cause is not reasonable, nor is it borne out by the weight of evidence.

Defendant testified that after his son phoned him about the accident he informed several of the kinsmen of Mr. Nelms, by phone and then got a deputy sheriff to drive him to the scene of the accident, five and one-half miles; that before he arrived the cars had been moved from their respective positions after the collision, but that he, with others, examined the face of the road with a lighted lantern to ascertain exactly the spot where the cars came in contact, their line of travel before the collision, and reaction to the impact, and had no difficulty in doing this, although he admitted the weather was bad, the road was damp, and cars had passed the scene, going both ways, before this examination was made. He reached the conclusion, from this examination, based upon physical signs satisfactory to himself, that the collision took place on his son’s side of the highway, and his conclusion on this point, he states, is confirmed by the location of the shattered glass, of the windshields of both cars being found largely north of the center of the road at the spot he theorizes the cars came together. He reached the scene between 40 andi 60 minutes . after the accident. With respect to the location of the glass from both cars, it is shown that immediately after the Boswell car was removed from the center of the highway, before Nelms was started to the sanitarium, and before defendant arrived upon the scene, this glass was kicked by the witness Riley Stoker over the road and scattered more than it was before. Stoker states that the bulk of the glass was on Nelms’ side of the road before he scattered it. That he scattered it because he did not want to drive his truck over a pile of it. His evidence is corroborated by the witnesses Owen Dillard and Walter and Wallace Stoker.

Defendant and his son prepared a diagram of the locus in quo, constructed upon the physical evidences viewed by him and, we imagine, to a material extent, upon the son’s version of the accident, which was filed in evidence. We have not the benefit of this diagram, as it is not incorporated in the record before us.

Defendant is positive he traced the tracks of Nelms’ car from a bridge not far west of the place of collision to where it ran into his car, while other witnesses are positive there is no bridge within one-half mile of the place of the accident.

Very soon after Mr. Nelms was carried to the sanitarium, and while people were viewing the scene of the wreckage, Messrs, Harold, and Elden Dees drove up. The latter examined the road about the scene and states, that with the aid of a flash light he was able to follow the tracks of Nelms’ car from the bridge to. the point of collision; that the tracks indicated that the car had come out of the road at Stoker’s place and swung to the left side of the, road. He was positive defendant’s car was on its side of the road, and was equally positive he observed in the damp graVel ploughed signs caused by young Boswell applying the brakes to his car immediately before collision. It is well here to note that young Boswell testified that he made no effort to stop his car before the collision and that the Nelms’ car held its side of the road until within 4 or 5 yards of him, and then deliberately cut across the road and ran into his car. This witness is absolutely positive that he traced the tracks of the Ford car from the bridge to where it was after the collision. While doubtless he is sincere in his testimony and belief, yet we are unable to understand how this could have been done when considered in the light of the reversed position of this car after the accident, the disturbed condition of the gravel on the highway caused by the collision, and the many people who had gathered there and by cars passing. The tracks he traced from Walter Stoker’s place were probably those made by Riley Stoker’s truck, which did turn around there preparatory to the trip to Natchitoches with Nelms, after the accident. He is also positive he never discussed the case with either of the' Boswells or their attorney, but finally admitted he told Judge Boone about the location of the glass in the road.

Mr. Harold Dees testified that he was present when his brotner Elden looked at the tracks with a flash light; that “he flashed the light around and looked down the road,’’ but he (witness) “didn’t remember about it.” He could not remember anything about the tracks or the location of the broken glass.

Other witnesses on behalf of defendant to some extent, if not encirely, corroborate his testimony regarding the tracks of the cars and the location of the shattered glass when he arrived on the scene.

The only evidence in the record tending to support the charge that Nelms, the deceased, was drinking when killed, is that of a deputy sheriff and one or two others, to the effect that the Ford car smelled of whisky. No evidence of liquor was found in or about the car. The witnesses. Dillard and Bryant state positively deceased had not been drinking during the day, and the men who carried him to the sanitarium did not smell liquor on his breath. They lifted him from his car into the truck and from the truck into the sanitarium and, therefore, had ample opportunity to defect the odor of whisky had he been drinking. Plaintiffs’ counsel says the odor detected by defendant’s witnesses was not that of whisky but of the camphor used by some ladies in bathing the head of deceased while in the car after being injured. We incline to accept this theory as being correct.

The testimony of the two occupants of the Ford car with deceased at time of the accident, if worthy of ‘belief, certainly establishes carelessness and negligence on the part of plaintiff’s son in the. operation of his car. There is nothing in the record to affect their credibility. That evidence fixes responsibility for the tragedy costing the life of plaintiffs’ husband and father, and is to some extent corroborated by that of Walter Stoker and his wife, and by the position of the cars after the collision. These two witnesses (Bryant and Dillard) are positive defendant’s car was coming at a very rapid speed, downgrade, zigzagging across the highway, some 20 feet wide, which was wet at the time, and struck Nelms’ car while on his (right) side of the highway.

Defendant stresses the significance of the car tracks found about the place of the collision and the location of the shattered glass from both cars. When he saw the glass it had been scattered about the road intentionally. The man who scattered it said the bulk of the glass was originally on the Nelms side of the road. It is established by the evidence that there was glass on both sides of the center of the road, and that condition,' to our mind, would have been a most natural consequence of the collision.

The evidence about the tracks of the cars has no real probative weight, for the reasons heretofore mentioned.

Syllabus 1 of Goldsby v. Lowrey, 6 La. App. 450, has peculiar application to the facts of the case at bar. It reads:

“Physical facts speak for themselves and are entitled to great weight in determining the circumstances connected with a collision between two automobiles on a public highway; but the conclusions of witnesses based on the examination of markings. made by automobile tires on the graveled road are not sufficient to overcome the positive testimony of unimpeached witnesses who were present in the collision and testify to facts seen by them as they happened.”

■ If the Ford car had crossed the road and jammed the Chevrolet, as stated by young Boswell, the position of the cars after the* collision would have been different. The Chevrolet would most probably have gone into the ditch on its side of the road and the Ford left on the highway. Undoubtedly the cars were facing each other when they collided.

“Where the positions of the two automobiles after the collision corroborate the testimony of plaintiff’s son that he was. driving near the right hand side ditch when struck by defendant’s car coming in the opposite direction on the wrong. side of the road there will be judgment for plaintiff.” Hoggatt v. Lampton, 11 La. App. 47, 123 So. 399.
“In an automobile collision where plaintiff had almost stopped his car on the right side of the road when defendant drove his cat into him, although there was plenty room to pass, defendant was negligent and plaintiff was not negligent.” Robinson v. Landry, 1 La. App. 517.

We have studiously considered the record in this case and have weighed the evidence with care because upon the correct resolution of the evidence hinges a proper judgment in the case.

Appellate courts are reluctant to reverse the findings of the trial judge on questions of fact and should not do so, unless after due consideration of such questions and of the evidence interwoven with them, it is obvious he has erred.

We have reached the conclusion that the judge a quo fell into error in reaching a decision in this case in that he allowed the circumstantial evidence to outweigh positive testimony. We are unable to conceive why plaintiffs’ .demand was rejected unless this is true.

It is our opinion this unfortunate tragedy was caused by the carelessness and negligence of defendant’s son, as charged by plaintiffs, and, of course, under article 2318 of the Civil Code, defendant is responsible for the consequent damages.

The deceased was 44 years old at his death and in good health. He had been married to plaintiff Mary Nelms 26 years. He left one child aged 7 years, one aged 10 years, and two aged 17 years. He owned no property when killed but was. working in the oil fields at $4.50 per day. At times he received better wages than this. He is shown to have been a hard working man and rendered to his family the' compensation earned by his labor. His two major children were not dependent upon him for support.

Plaintiffs sue and pray for judgment • in globo for $15,000. Their- situation is such that we shall have to ' make separate awards to them.

For the reasons herein assigned, the judgment appealed from is reversed, annulled, and set aside, and it is now ordered, adjudged, and decreed that there be judgment in favor of Mrs. Mary Nelms, individually and as natural tutrix of her four minor children, named in her petition, and against defendant Grover C. Boswell, for the sum of $7,000, with legal interest thereon from judicial demand; one-half of said amount being awarded to Mrs. Nelms individually and the other half to her as tutrix of her said minor children. And it is further ordered, adjudged, and decreed that plaintiffs Edgar Nelms and Mrs. Bessie Honeycutt do each have and recover judgment against said Grover C. Boswell in the sum of $500, with legal interest thereon from judicial demand until paid; and that defendant .pay all costs of this suit.


author: McGREGOR, J.

text:
    No. 3446
    Second Circuit
    SELIGMAN ET AL. v. G. A. SCOTT & BROTHER
    (May 20, 1931. Opinion and Decree.)
    (July 14, 1931. Rehearing Refused.)
    (October 5, 1931. Writs of Certiorari and Review Refused by Supreme Court.)

      Frank W. Hawthorne and W. Dan Files, of Bastrop, attorneys for plaintiffs, appellees.
    Hudson, Potts, Bernstein & Sholars and Theus, Grisham, Davis & Leigh, of Monroe, attorneys for defendants, appellants.
   McGREGOR, J.

This suit was filed September 21, 1915, default was entered October 6, 1915, answer was filed on October 8, 1915, and trial was had on December 6 and 7, 1915. The case then lay dormant for nearly fourteen months until February 5, 1917, when a written motion was filed in open court by counsel for plaintiff, setting forth that one of the defendants had died since the trial and asking that the legal heirs and representatives of the deceased be made parties to the suit. The next four- minute entries, in the case are as follows:

March 6, 1922. Motion to fix cause for trial filed. (This was a written motion, but no action was taken on it.)

November 6, 1922. Case fixed for Thursday, November 9, 1922.

November 9, 1922. Case submitted without argument on behalf of plaintiff, with right reserved to defendants’ counsel to argue the case.

December 5, 1922. Motion for dismissal on plea of prescription. (This motion was based on plaintiff’s failure to prosecute for a period of five years, under Act 107 of 1898.)

It is apparent that the five years had elapsed from February 5, 1917, the date- of the filing of the motion by plaintiff' to make the heirs of one of the deceased defendants parties to the suit, until March 6, 1922, when the plaintiff filed a written motion to have the case set for trial. No aetiim was taken by the court on the motion, so on November 6, 1922, the case was formally set for argument on November 9, 1922, on which date the plaintiff submitted it without argument. The defendant did not argue the case, but on December 5, 1922, filed the motion to dismiss for Want of prosecution for five years.

Taking the extract from the minutes of the court as a guide, the motion to dismiss appears good, but the plaintiff calls our attention to the fact that when the motion of February 5, 1917, was filed it was necessary that citations be served on those sought to be made parties to the suit, and that these citations were issued on March 20, 1917, and served on March 24 and 26, 1917, respectively, it is contended that this action of the clerk in issuing the citations and of the sheriff in serving them were “steps” taken in the “prosecution of the suit by the plaintiff.” If they were, then the motion of the defendant to dismiss was not good and was properly overruled.

Article 3519 of the Civil Code of 1870 was amended by Act 107 of 1898, for the purpose of making certain that which had been uncertain. Up to and before the time of the amendment, it was the law that no suit could be prosecuted after it had been discontinued or abandoned. It was certain and known to all when a case could be claimed as having been discontinued, but there was doubt as to when it should be considered as having been abandoned. Act 107 of 1898, made this clear and certain by declaring that:

“Whenever the plaintiff having made his demand shall at any time before obtaining final judgment allow five years to elapse without having taken any steps in the prosecution thereof, he shall be considered as having abandoned the same.”

No' action taken by any person, other than the plaintiff can have the effect of keeping this abandonment from taking place, except that the defendant can waive it by definite action on his part. Nothing that the sheriff or clerk or any other officer does or fails to do can have any effect on the abandonment one way or the other. Plaintiff’s contention is that, because of the clerk delaying to issue the citations from February 5, 1917, until March 2.0th of that same year, they have the right to profit by this delay. If the clerk had issued the citations promptly, and if they had been served promptly, it is certain that the citations would have been served and returned before March 6, 1917, and the motion to dismiss would have to be sustained. If the filing of the motion to make new parties had been toward the end of a five-year period, and if, in order to count five years without any steps having been taken by the plaintiff in the prosecution of the suit, the defendant had shown that, although the motion had been filed' within the five-year period, the citations were issued and served after it had run, the plaintiff in that case would successfully contend that, when it filed the motion, it had taken the necessary “step” in the “prosecution” .to keep abandonment from being presumed or “considered.” It could and would be successful in contending that the issuing and serving of the citations were not “step's” taken by the plaintiff. To hold with plaintiff in its contention in this case would be tantamount to holding that a party to a suit can take advantage of his own faults and delays, for it could easily be supposed that a plaintiff might deliberately cause the officers of the court to. delay the performance. of their duties in issuing and serving the citations. Whenever an appeal is taken' on written motion of the appellant, and a citation of appeal is necessary and prayed for, the appellant is not held responsible for the failure of the officers of the court to issue and serve the same if he does all that is required of him in the matter of perfecting the appeal and lodging the case in the appellate court within the required time. So, in the present case the plaintiff took a “step” in the “prosecution” of this suit when it filed the motion to bring in new parties. It could not be held responsible for the failure of the officers of the court in their delay in issuing and serving the citations based on its motion, nor can it be permitted to take advantage of the same.

In their brief, counsel for plaintiff contend that the situation presented in this case is analogous to the interruption of prescription by the filing of a suit, in that prescription is not interrupted by the mere filing of the petition, but only takes place when the defendant is cited to appear and answer. We do not think that the cases are analogous. When a defendant succeeds in having a suit dismissed for the want of prosecution during a period of five years, that does not necessarily defeat the plaintiff’s right of action, for it might well be that his right of action has not yet prescribed. If a party permits five years to elapse without taking any “steps” in the “prosecution” of his suit, the defendant can have that suit dismissed, even though the plaintiff could bring another suit the next day if prescription has not run against the right for which he is suing. So it is clear that this is not what might be termed a five-year prescription, pure and simple. Under tlie express terms of the act, in order for the plaintiff to defeat the effort of a defendant to have his suit dismissed for lack of prosecution during a period of five years, it is necessary that the plaintiff himself take'some active “steps,” and that-is all that is necessary. The question of a clerk or sheriff following up .this “step” of the plaintiff with whatever is necessary for them to do can have no effect whatever on the rights of the plaintiff.

For the reasons assigned, the judgment appealed from is annulled and reversed; and it is ordered, adjudged, and decreed that the defendants’ motion to dismiss plaintiffs’ suit on account of failure by the plaintiffs to take any step in the prosecution thereof for a period of five years he and the same is hereby sustained, and that the said suit be and it is hereby dismissed, the plaintiffs to pay the costs in both courts.


author: JANVIER, J. WESTERFIELD, J., PER CURIAM.

text:
    No. 13,826
    Orleans
    AUTOMOBILE SECURITY CORP. v. RANDAZZA ET AL.
    (May 25, 1931. Opinion and Decree.)
    (July 1, 1931. Opinion and Decree on Rehearing.)
    (October 6, 1931. Writs of Certiorari and Review Refused by Supreme Court.)
    Epley & Parlongue, of New Orleans, attorneys for plaintiff, appellant.
    Roger Meunier, of New Orleans, attorney for Frank Cristina, defendant in rule and appellee.
   JANVIER, J.

Automobile Security Corporation obtained judgment against Gene-res Antonini and Peter Randazza for $50. For many months this judgment remained unsatisfied.

In an effort to collect the amount plaintiff caused to he issued a writ of fieri .facias and under that writ effected the seizure of an Essex automobile belonging to Antonini.

It was discovered that prior to the seizure the said automobile had been mortgaged by Antonini and that the mortgage had been properly and seasonably recorded.

If that mortgage is valid and subsisting, the rights of the holder thereof are superior to those of the seizing creditor, so far as the mortgaged automobile is concerned. Recognizing this, the seizing creditor, by rule, has called upon Cristina, holder of the said mortgage note, to' show cause why the said mortgage should not be canceled, it being alleged that the said note is violative of the provisions of section 13 of Act No. 7 of the Special Session of 1928 of the Legislature of Louisiana, which statute is commonly known as the Small Loan Law.

The said note stipulates to bear interest at the rate of 3% per cent per month and also contains an agreement for the payment of attorney’s fees at 15 per cent on the amount due in case of the employment of an attorney to effect collection, and it is charged that, since 3% per cent is the maximum interest charge permitted by the act, the stipulation for attorney’s fees in the event of the employment of an attorney renders the entire transaction usurious.

The court below held the transaction to be usurious and- that, in accordance with the provisions of the statute, no recovery whatever could be had under the mortgage note. Prom that judgment the mortgage holder has appealed.

Prior, to the enactment of the statute in question the policy of the state of Louisiana, announced in numerous decisions, was that the requirement that the maker of a note should pay attorney’s fees did not render the note usurious merely because the interest stipulated for was the maximum amount permitted by law.. It follows, then, that unless it can be held that the statute of 1928 specifically provides that the requirement of such fees shall render the transaction usurious, such result does not take place. Among the decisions to which we have referred as holding that attorney’s fees stipulated for do not render a note usurious merely because the interest charged is the maximum permitted by law is Race & Poster v. O.wen Bruen, 11 La. Ann.- 24/ in which the Supreme Court said:

“The defendant’s objection on the score of usury is, we think, untenable. Interest for money is the compensation which is paid by the borrower to the lender for its use. It is clear, therefore, that the stipulation in this case cannot be considered as the compensation for the use of the lender’s money, but the means only of securing that compensation. Thus, if the lender were obliged to pay at the expiration of the year the attorney’s commission of five per cent, it is evident that the interest for the use of his money would be reduced from eight to three per cent.”

See, also, Hailes v. Hynson et al., 12 Orleans App. 327; Seigel v. Drumm, 21 La. Ann. 8.

But counsel for the seizing creditor contend that the act of 1928 does specifically prohibit the stipulation for attorney’s fees. In attempting the interpretation of the said statute, we think it advisable to bear in mind that the said statute is . in the nature of a penal qne and that, therefore, it should be construed strictly, and any uncertainties should be resolved in favor of him who is sought to be penalized.

A careful study of the statute and particularly section 13, leads us .to the view that it was not contemplated .that there should be prohibited any necessary cost to which the lender might be put in securing the return of his loan. The language of the act seems to limit the prohibition to the collection of charges or costs required to bring the loan into existence, but we see nothing therein either specifically or impliedly prohibiting the stipulation for a necessary charge for collecting the loan. As a matter of fact, no matter what charge is stipulated for as attorney’s fees, if the borrower meets his obligation, such charge cannot be collected. As the Supreme Court said in Race & Poster v. Bruen, supra, “had the defendant performed punctually his obligations, as he had stipulated in the contract, it is certain that he would have had no just cause of complaint.”

Counsel for the seizing creditor calls to our attention the language used in the majority opinion in Davis Loan Company v. Blanchard, 14 La. App. 671, 130 So. 472. But that opinion did not become final. The decree was finally concurred in by all of the members of the court for the reasons that the facts of that case showed that the chattel niortgage had been executed not for the purpose of creating a real security, but solely for the purpose of furnishing a subterfuge under which an additional fee for passing the mortgage might be exacted, so that, under the facts of that case, there can be no doubt that the decree was correct. The question presented here was not- finally passed upon in that case.

Counsel for the seizing creditor has also cited certain cases from other states, in which there can be no doubt -that it has been held that the stipulation for the payment of attorney’s fees renders such a transaction usurious. It may be that in those states, prior jurisprudence had not established the doctrine that attorney’s fees, when stipulated for in ordinary notes, did not constitute usury. At any rate, such a doctrine has been established in Louisiana and we do not think that the statute in question either impliedly or specifically indicates that the framers thereof intended to change the rule in this regard.

Much capital is sought to be made of the fact that the financial condition' of persons who borrow under the so-called Small Loan Law is such that they have no alternative, and it is argued that, therefore, the statute should be liberally interpreted in their favor. It is very true that the business of lending money has been frowned upon from time immemorial, but it is also true and should be borne in mind that, without the money lender, the hardships of which the borrowers now complain would be many times greater. It is no doubt a misfortune to have to borrow money, ' but how much greater would be the misfortune were there no opportunity for borrowing. Sir Francis Bacon, in discussing the question of whether the evils of money lending outweigh the benefits to be derived therefrom, said that it is highly important “that there be left open a means to invite monied men to lend.” Whether the Russell-Sage Foundation, in the investigation made by it, came to the conclusion that in the charge approved by it there was to be included the necessary legal expense to which the lenders should be put, we have no means of determining, but we cannot escape tbe view that it was not the purpose to drive tbe money lenders out of business because, no matter what may bave been tbe views of that foundation, tbe results of its investigations would bave been of no benefit whatever if tbe money lenders had been thereby forced to seek other lines of more remunerative employment. Unquestionably then, it was intended that, though tbe rate of interest should be made for tbe benefit of tbe borrower as low as possible, it should nevertheless be allowed to remain sufficiently high to tempt those financially able to invest in tbe misfortunes of others to embark upon tbe more or less hazardous occupation of money lending. If, then, such was tbe purpose of tbe foundation, and 42 per cent per year was tbe rate arrived at as being necessary to tempt tbe investment of capital into tbe money lending business, surely to require capital to pay all tbe costs of collecting tbe more or less hazardous loans would defeat, in a large measure, tbe purpose intended to be accomplished.

We are limited in our investigation to tbe act itself and to tbe jurisprudence of this and other states, and a consideration of that statute and of tbe jurisprudence to which we bave referred leads us to tbe view that attorney’s fees may be stipulated for and that such stipulation does not render a transaction usurious, under tbe statute ■ in question, even though tbe interest charge is tbe maximum permitted by tbe statute. Since tbe transaction was not violative of tbe provisions of tbe statute, tbe rights of tbe mortgage bolder must prevail.

Tbe judgment appealed from is annulled, avoided and reversed, and tbe rule is dismissed at tbe cost of mover.

WESTERFIELD, J.,

dissenting. Tbe opinion in Davis Loan Company v. Blanchard, 14 La. App. 671, 130 So. 472, was prepared by me without tbe advantage of Seaboard Securities Company v. Jones, 40 Ga. App. 710, 151 S. E. 412; Jobson v. Masters, 32 Ga. App. 60, 122 S. E. 724; Fishburne v. Hartsfield Loan Co., 38 Ga. App. 784, 145 S. E. 495; London Realty Co. v. Riordan, 207 N. Y. 264, 100 N. E. 800, Ann. Cas. 1914C, 408. After reading tbe able opinions in tbe cited cases, I am convinced of tbe correctness of tbe views expressed in Davis Loan Company v. Blanchard.

I therefore respectfully dissent.

ON APPLICATION FOR REHEARING

PER CURIAM.

In our original opinion we stated that the court below bad held tbe note in question to be usurious and, through inadvertence, we decreed that tbe judgment of the trial court be reversed. We find that tbe trial court held that the transaction was not usurious and rendered judgment dismissing plaintiff’s rule. It was our intention ,to affirm the decree dismissing plaintiff’s rule, and it is now, therefore,

Ordered, adjudged and decreed that tbe decree rendered be and it is recalled and that tbe judgment appealed from be and it is affirmed and that tbe rule be and it is dismissed, at tbe cost of appellant.

The right is reserved to file application for rehearing.


author: CULPEPPEE, J.

text:
    No. 3851
    Second Circuit (Second Division)
    CITY OF SHREVEPORT v. BARNES
    (July 16, 1931. Opinion and Decree.)
    (August 12, 1931. Eeliearing Eefused.)
    (October 5, 1931. Writs of Certiorari and Review Eefused by Supreme Court.)
    A. M.- Pyburn, of Shreveport, attorney for plaintiff, appellee.
    Harry V. Booth, of Shreveport, attorney for defendant, appellant.
   CULPEPPEE, J.

This is a suit brought by rule under Act No. 55 of 1926, to have defendant, as plaintiff’s alleged lessee, vacate the leased premises. Defendant denied leasing the property from plaintiff, and alleged he was in possession under a lease from the Texas & Pacific Eailway Company, the true owner of the property. From a judgment in favor of plaintiff ordering defendant to vacate, the latter has appealed.

On November 22, 1926, defendant addressed the following letter to plaintiff:

“Shreveport, La., Nov. 22, 1926
“HON. MAYOE & COMMISSIONERS, CITY OF SHEEVEPOET, LA.
“Gentlemen:—
“Please accept this as my application to lease the lands as outlined by map attached belonging to the City, which is not and never has been used by the City for any purpose whatsoever, I desire as long as lease as I can get and will agree to keep the property up, clear out the underbrush, repair and replace the fencing, also I further agree to relinquish or release my rights at any time the City wants the property for its own use.
“This I think will be acceptable to you gentlemen as the City will not only save money, but really revenues will accrue to the City and the property kept in first class condition until such time as the city needs or wants to use it.
“May I ask you gentlemen to pass such resolutions as are necessary to give me proper administration of this property and as small a consideration in addition to the above as consistent with business judgment.
“Yours very truly,
(Signed) “C. J-. Barnes.”-

The map attached to the letter shows to be a rough sketch made by defendant, dated November 20, 1926, showing the land as being bounded on the east by Red river, west by right of way of the Texas & Pacific Railroad, north by right of way of Cotton Belt Railroad and Cotton Belt Railroad bridge crossing Red River, and south by an apparently imaginary and undesignated line running approximately east and west from Red River to the Texas & Pacific Railroad right of way. Across the area designated as the land in question on the map is written in defendant’s handwriting the following description of the land which the application was made to lease:

“Map of the land lying South of the Cotton Belt Bridge and between the T. and P. Railroad and Red River.”

Plaintiff, through its mayor, L.- E. Thomas, addressed the following reply to defendant’s letter, with defendant’s written acceptance in reply at bottom of page on which letter was written:

'“Shreveport, Louisiana, November 22, 1926
“Mr. C. J. Barnes, C/o L. & A. Railroad, City.
“Dear Sir:
“Replying to yours of the 22nd inst., I beg to advise that after discussing with the City Council the proposition, of leasing you the land lying below the Cotton Belt Railroad Bridge, to a point indicated in your letter, I wish to. advise that we will lease this to you for $50.00 per year in order to give you control over it, reserving the right of the City to retake possession of it at any time it may find it necessary to dq so.
“It will be necessary to specify the length of this tract so that there may be some definite meets and bounds to the land and it will also be necessary to draw up a lease.
“Very truly yours,
(Signed) L. E. Thomas,
Mayor.”
“1/31/27
“The above terms accepted, please make as long a lease as possible.
(Signed) C. J. Barnes.”

The above letters and map were attached to and made a part of plaintiff’s petition, and relied on by it as constituting the alleged contract of lease to defendant of the property in question, together with the allegation of fact that defendant went into possession of the property as lessee of plaintiff pursuant to the application, the reply thereto and acceptance, as above disclosed.

Plaintiff further alleges that defendant has never paid the $50 per yedr rental; that there is now past due and unpaid the rent for the years 1927 and 1928, which defendant has failed and refused to pay; and

“VI.
“That the City of Shreveport now finds it necessary to retake possession of the said leased premises.
“VII.
“That because of the failure of the said C. J. Barnes to pay the rent and because the City of Shreveport has found it necessary to re-take possession of the property, and has given due notice that it is necessary to re-take possession of same, the City of Shreveport now has the right to invoke the process of the Court to get possession of its property.”

The petition further sets out the fact of the passage of an ordinance bv the city authorizing legal proceedings under Act No. 55 of 1926, the proceedings had thereundex-, and prays for and obtained rule upon defendant to show cause why he should not vacate the property and deliver possession of same to the city.

Defendant filed answer of general denial, except to admit the correspondence attached to petition, but denies the legal significance thereto as alleged; admits not having paid plaintiff any rents and denies plaintiff ever at any time made demand for payment; admits receiving notice to vacate, and sets up as a special defense, the following alleged facts:

That in 1924 he began negotiations with the city of Shreveport (hereafter referred to as the city) with reference to a tract of approximately eighty acres of land, lying south' of the St. Louis S'. W. 'Railway Company property and between the Texas & Pacific right of way and Red river; that he was of the belief at that time, and for some time thereafter, that said property was lawfully owned by said city, “which error of fact is specially pleaded herein as defense to this suit”; that after various negotiations with the city, through its mayor and council, respondent addressed his letter of November 22, 1926, attached to plaintiff’s petition applying for a lease upon the property from said city; that the same day the city wrote respondent a letter, whereby the city agreed to lease said property to respondent, and (quoting)—

“further agreed that at a later date, a written lease would be entered into and it Was the understanding between the said City of Shreveport, through its Mayor, and your respondent, at that time, that the City of Shreveport would have such a lease drawn as would conform with the application for a lease and which would contain a proper description of said land, rental price and terms.”

Defendant further alleges he made numerous demands upon the city, through its mayor and council, subsequent to November 22, 1926, to execute such a lease as was agreed upon, but was instructed by the mayor on these occasions to go to the city engineer’s office and ascertain the status of the property, which defendant did do, and that the city engineer told respondent the property did not belong to the city. .

Defendant further alleges that after persistent efforts to obtain a lease from the city without success, he employed counsel, who discovered that the property did not belong to the city but was owned by the Texas & Pacific Railway Company, whereupon respondent then obtained consent of said railway company to occupy the property; that “he has since occupied and is now occupying (same) as a tenant by suffrance.”

Defendant further alleges he did not go into possession under any agreement or contract with the city, but went into possession under an agreement and contract with the Texas & Pacific Company, and is now holding possession by virtue of said agreement. Respondent therefore alleges that plaintiff cannot maintain this action for the reason, that—

(a) The city did not own nor have any claim of ownership pf the property now in respondent’s possession, at the time negotiations were begun by respondent to obtain a lease.

(b) That the relation of landlord and tenant does not exist between plaintiff and defendant, for the reason that no lease was ever entered into, but to the contrary negotiations were merely carried on which were never consummated.

(c) That no rent was ever paid and none demanded.

(d) That respondent is lawfully in possession under an agreement with the Texas & Pacific Railway Co.

(e) That respondent did not go into possession under an agreement or contract with the city.

Defendant prayed for an order calling the Texas & Pacific Railway Company in warranty. A blank for an order of call in warranty is attached to the answer, but is unsigned. The minutes of May 15, 1929, the date fixed for trial of rule, show that counsel for defendant asked the- court for an order for a call in warranty and that the request was refused upon objections by counsel for plaintiff. Neither the minutes nor the testimony show any reasons for the objection or ruling of the court refusing a call in warranty. The minutes show counsel for defendant excepted to the court’s ruling, but the exception does not appear to be urged in brief before this court. The case was submitted on brief before this court, without argument.

The trial of the rule was continued to May 18, on which day defendant filed an exception of no right or cause of action, which on its face does not disclose upon what ground it is founded. Defense counsel made a statement, however, recorded by the court reporter at page 17 of transcript, indicating that the exception was filed “on the theory that if anything, this was a mere agreement to lease; that the lease was never entered into, and consequently there is no lease, the documents attached to the petition merely showing that the lease was. to be entered into.” We assume the exception was leveled at that part of the pleadings and upon the theory as stated by counsel. Counsel also stated that the exception was overruled by the court. We assume that it was, although the minutes do not show that it was ever tried or in any way passed upon by the court. Such an exception would address itself more to the merits of the case, since plaintiff’s allegation is that de- j fendant went into possession as lessee under plaintiff, by virtue of his application to lease the property, the favorable reply thereto by plaintiff, followed by defendant’s acceptance upon the terms, con- . ditions and reservations as outlined by plaintiff. Plaintiff contends that under these circumstances it at least has the right to recover possession of its property. It will be noted that plaintiff is not suing to recover rents, but merely seeks to be restored to its former status. Taking the case from that viewpoint, we think plaintiff had a cause of action, and that if the court did overrule defendant’s exception, the ruling was correct.

Mr. L. E. Thomas, as mayor of the city, testifying, related the incidents of the negotiations had by and between him, as representing the city, and defendant, leading up to the written application of defendant of November 22, 1926, the mayor’s written reply thereto on same date, and his receipt of return of the letter from defendant with the latter’s acceptance written and signed at bottom of the letter, all of which was substantially as alleged in the petition. Being asked if he attempted to execute any further contract after he had written the letter of November 22, and had received same back with defendant’s written acceptance at bottom of his letter, Mr. Thomas answered as follows:

“I didn’t because that letter and the acceptance of it practically closed the contract because the terms are stated in the letter and the agreement is (was) accepted by Mr. Barnes signing.”

He says he had no further negotiations with Mr. Barnes. Asked if Mr. Barnes went into possession after this had been done, Mr. Thomas answered, “He did.” However, upon cross-examination, Mr. Thomas stated that Mr. Barnes went into possession of the property by virtue of a previous agreement had with him in the spring or summer previous, which was in. 1926. According to Mr. Thomas’ testimony, defendant came to him in the spring of 1926, and wanted to get permission to graze cattle on the land; that he, Mr. Thomas, Mr. Mayo and- Mr. Dixon, members of the city council of Shreveport, signed an agreement to defendant permitting him to graze his cattle on the land free of charge; that later on it was found that defendant was renting some of the land to other parties and collecting pay for it, and Mr. Thomas stopped him; that then it was that defendant began negotiations for a lease for pay which resulted in the written application of November 22, 1926.

. It will be noted in this connection that defendant filed a supplemental answer on the day previous to the trial,, in which he alleged he had been in actual, peaceable, notorious possession of the property described in his original answer since 1921. While defendant presumably intended, in setting up this allegation of possession, to establish possession independently in himself, and otherwise than through plaintiff, yet he does not allege such possession was as owner; neither does he allege in the supplemental answer that the possession therein alleged upon was under or through the Texas & Pacific Railway Co. In his original answer defendant alleged he began negotiations with plaintiff for a lease in 1924. Whatever may have been his intentions, whether to set up prior possession as owner, or as a squatter or through some person other than plaintiff, such would be of no avail to defendant in view of his judicial admission in answer that he subsequently negotiated with plaintiff for a lease upon the property, thereby recognizing plaintiff as owner. It is true that defendant alleges he was in error of the fact that plaintiff was not owner, yet he treated-plaintiff as the owner continuously throughout the entire negotiations, and for some time thereafter when trying, as he alleged, to induce plaintiff to reduce the lease to formal writing.

When defendant took the witness stand and was asked by his counsel as to when he first took possession of the property, opposing counsel interposed the following objection:

“That is objected to if its purpose is to show any possession in himself prior to the date of November 22, 1926, the date that he applied to the City Council to lease this property.”

And the court made the following ruling:

“Objection sustained insofar as it has that effect.”

As we take it, defendant was not' allowed to set up independent prior possession in himself, notwithstanding he had filed an amended answer alleging he had been in actual, peaceable, notorious possession since 1921. While it would seem that defendant should have been permitted to offer proof in support of that allegation, could hi's testimony alone have availed him anything in the face of his own record as otherwise made up? We think *it could not. Defendant admits in his answer having begun negotiations in 1924 with the city; that after various and sundry negotiations with said city through its council and mayor he addressed the application to them of November 22, 1926, for a lease. Defendant filed in evidence letters of December 4, 1924, March 24, and April 9, 1926, which he had received from the mayor, referring to these negotiations. In the letter of December 4, 1924, the mayor begins by saying:

“In compliance with your request, I wish to advise that the City qf Shreveport has no objection to your using the ground * * * it being understood that it" is only a permissive to you * * * it being understood that the City can take property at any time, without notice that it needs the same for its own use * *

Surely defendant could not hope to. be able to show independent possession in himself in view of these circumstances. It is clear, we think, from defendant’s own admissions, that possession was not as owner, nor was it through any one other than plaintiff. It is also clear that the same character of possession existed at the time of defendant’s application of November 22, 1926, and that possession was such as characterized that of tenant under plainljff as landlord; that on January 31, 1927, when defendant formally accepted-plaintiff’s offer to let defendant have the property at $50 per year until such time as plaintiff might call for it, he all the more certainly assumed the relationship toward plaintiff as that of tenant. Defendant does not pretend that he went into possession under the Texas & Pacific Railway Company until long after his acceptance of plaintiff’s proposition. It is not shown even then that defendant ever informed plaintiff of his alleged change of Relationship. It is true, defendant contends he never did assume such relationship towards plaintiff in the first place for the reason that he never did actually and in fact lease the property from plaintiff. We think such relationship existed as to warrant plaintiff the right to demand its property back and be restored to its former status, even if no valid and binding contract of lease was created. If the Texas & Pacific Railway Company is the lawful owner of the property in question, that would be a matter to be settled between it and the city of Shreveport. Mayor Thomas testifies the property belongs to the city. Defendant dealt with the city as owner of the property, and so recognized it throughout all his dealings, in this matter. We think defendant cannot be heard to deny such as being the case.

Counsel for plaintiff, in brief, argues that there was a valid and binding contract of lease entered into between plaintiff and defendant, thereby creating between them the relations of landlord and tenant, in that the three elements, viz.: the thing, the price and the consent, were all present. We. agree with him as to the existence of these three elements in this case, but' counsel for defendant contends that there was only a preliminary agreement to enter into a contract of lease and that it was understood that the preliminary agreement was to be later reduced to a formal .written lease, which was not done, and that being true, defendant had the right to withdraw from the agreement at any time before the formal written lease was executed. Counsel cites as authorities Hart v. Tremont Lbr. Co., 131 La. 847, 60 So. 368, 369, and Woodville v. Kantrowitz, 115 La. 810, 40 So. 174, as well as other decisions. The Hart case is not one involving a rent contract. It involves the question of recovery by plaintiff from defendant for work under a verbal contract which was to have been reduced to writing but was not so executed. The court said:

“In answer to the proposition that a written contract was necessary, we will state in general terms, by way of illustration, where there is a sale of real property * * * generally it cannot be enforced, unless an agreement or .some memorandum be written and signed. The same is true of personal property, where it is agreed that nothing shall be done before a written agreement has been signed.
“Here there was no written agreement, but the work was performed in accordance with the verbal agreement.”

We find in that case the court held defendant liable for so much of the work as was shown to have actually been done. The court in this connection said:

“There was tacit approval to such an extent that defendant cannot be heard to deny the contract, and cannot escape all liability because it peremptorily discharged, without cause, the plaintiff, and put an end to his work.”

The Woodville v. Kantrowitz case, cited supra, did involve an alleged rent contract, brought about very similar to the present case — -that is, by letter offering to take a lease and a reply of acceptance written at bottom of the offerer’s letter. Nothing further was done toward the execution of a formal written lease. Woodville, who was the owner of the premises and accepted the offer made to him by Kantrowitz, the person offering to take the lease, sued Kantrowitz, alleging he had suffered loss of $70 by reason of Kantrowitz’s failure to go into possession of the premises. The court rejected plaintiff’s demands for the reason that it found that there was no contract of lease ever entered into between the parties. The court enunciated the principle of law, that:

“Where, in a preliminary agreement for the lease of real estate, whether such agreement be verbal or in writing, it is stipulated that the lease shall be reduced to writing, the contract of lease is not completed until the writing is made and signed, and until then either party may withdraw.”

In the mayor’s letter of November 22, 1926, replying to defendant’s application of like date for a lease upon the property involved in this suit, he states:

“It will be necessary to specify the length of this tract so as that there may be some definite meets and bounds to the land and it will also be necessary to draw up a lease.”

The plain and unambiguous language used by the mayor would seem to place .the case in the class with that of the Woodville case, in so far as the question of a contract of lease vel non was created by virtue of the preliminary agreement. But in the Woodville case the defendant did not go into possession, therefore there was no tacit .acceptance. Suppose Kantrowitz had gone into possession, or that he was already in possession under some previous agreement with Woodville, and continued, that possession without paying rents. Can it be said for a moment that just because the agreement by which he entered upon the premises turned out not to be a valid and binding lease contract, Woodville would have been powerless to remove Kantrowitz, or to collect rent during Kantrowitz’s occupancy? Most assuredly not. Just as in the Hart v. Tremont Lbr. Co. case, supra, defendant was held to have to pay for the amount of work actually performed by reason of the tacit approval.

As stated previously, we think defendant’s possession from the beginning was, in his relationship to plaintiff, that of tenant under plaintiff; that it so continued on up to, during and after the negotiations had around the date of November 22, 1926, and plaintiff had the undoubted right to evict defendant in the manner and kind of proceedings brought, and to be restored to his former status as to the property.

For these reasons, we think the judgment appealed from should be affirmed, and it is so decreed.


author: WEBB, J.

text:
    No. 3360
    Second Circuit
    JACKSON v. PETRIE & McFARLAND
    (April 9, 1931. Opinion and Decree.)
    (May 20, 1931. Rehearing Refused.)
    (June 22, 1931. Writ of Certiorari and Review Granted by Supreme Court.)
    Pegues & Pegues, of Mansfield, attorneys for plaintiff, appellant.
    Lee & Williams, of Mansfield, attorneys for defendant, appellee.
   WEBB, J.

The defendant, Petrie & McFarland, a partnership composed of W. M. Petrie and J. F. McFarland, representing a number of fire insurance companies, with authority to bind the companies represented by it, on the application of plaintiff issued two policies of insurance on February 24, 1927, in two of the companies represented by it, purporting to cover certain property owned by plaintiff.

After the policies were issued, a clerk of defendant carried the policies to plaintiff’s place of business with instructions to deliver the policies to plaintiff on payment of the premiums; and, while the evidence is conflicting relative to whether or not the1 policies were delivered, it is conceded that the premiums were not paid and that the policies were returned to defendant, who kept the policies until May 6, 1927, when defendant marked the same “canceled” and sent the policies to the respective companies with which the insurance was placed.

On May 9, 1927, the property covered by the policies was destroyed by fire, and following plaintiff called on defendant for the policies, offering to pay the premiums, and requested that defendant give him the names of the companies with which the insurance was placed, which was refused by defendant; and plaintiff brought the present action to recover judgment for the amount of the policies, and plaintiff appears here as appellant from a judgment rejecting his demands.

Plaintiff’s pleading was involved, vague, and contradictory, but defendant did not file any exceptions to the pleadings and neither of the parties discussed the right of plaintiff to recover under the pleadings; and it appears that the cause was presented in the trial court, as here, solely on the question relative to whether or not de-, fendant gave credit to plaintiff for the premiums, it being apparently conceded that, if such was the case, defendant did not have the right to cancel the policies and Send same to the insurers, and was liable for the amount of the policies.

There is not any suggestion that either of the members of the defendant partnership expressly granted plaintiff time in which to pay the premiums, and plaintiff relies upon the circumstances and action of the parties prior to and subsequent to the issuance of the policies to show that credit was extended.

As stated the defendant was authorized to issue the policies, which were effective from their date; and, although it may have been the intention of the defendant to reqiuire payment of the premiums before delivery of the policies and that the policies would not be effective until delivery, there is not any evidence in the record indicating that plaintiff was advised of such intention; and, the evidence showing that defendant did not offer to deliver the policies until several days after they were issued, we are of the opinion that credit was. extended to plaintiff for the payment of the premiums, at least between the date of the issuance of the policies and the time the offer to deliver the policies was ma,de, and that the policies were in effect from the date they were issued until the date the offer to deliver the policies was made.

As stated, the evidence is conflicting relative to whether or not the policies were delivered, and the evidence was also conflicting relative to whether or not defendant’s clerk granted plaintiff time in which' to pay the premiums; but, passing the question relative to whether or not the policies were in fact delivered, or the authority of defendant’s clerk to grant plaintiff time in which to pay the "premiums (see Bodine v. Exchange Ins. Co., 51 N. Y. 117, 10 Am. Rep. 566), the evidence conclusively established that there was not any deman,d made on plaintiff for the payment of the premiums, and, although the policies were returned to defendant’s office, we are of the opinion that defendant was without power to cancel -the policies in the absence of any demand for payment of the premiums, and giving plaintiff notice that the policies would be canceled, and that therefore the polipies were in force and effect when the property was destroyed by fire.

“Where a policy of insurance is issued without prepayment of the premium, the inference is that the insurers intended to extend a credit for its. payment; that it was not at the option of the company to cancel the policy; that they only had the right to claim the dissolution of the contract for non-payment of the premium upon putting the other party in mora.’’ Latoix v. Germania Ins. Co., 27 La. Ann. 113; also, Pino v. Merchants’ Mutual Ins. Co., 19 La. Ann. 214, 92 Am. Dec. 529.

Since the appeal was filed here, plaintiff, W. F. Jackson, died, and his widow in community, Mrs. W. F. Jackson, and heirs, Mrs. R. B. Louies, Vernice and Bernice Jackson, have been made parties to the appeal.

Finding that the policies were in force at the time of the destruction of the property, we are of the opinion that plaintiff should have recovered judgment for the amount of the policies, or $800, with- legal interest as demanded. It is therefore ordered, adjudged, and decreed that the judgment appealed from be avoided and reversed; and it is- now ordered, adjudged, and decreed that Mrs. W. F. Jackson, Mrs. R. B. Louies, Vernice Jackson, and Bernice Jackson have and recover judgment against defendant partnership, Petrie & McFarland, and the individual members thereof, W. M. Petrie and J. F. McFarland, in solido in the sum of $800, with legal interest thereon from judicial demand, and all costs of suit.


text:
    No. 4012
    Second Circuit
    STATE OF LA. EX REL. GRAY v. PIPES ET AL.
    (April 9, 1931. Opinion and Decree.)
    (May 20, 1931. Rehearing Refused.)
    (June 22, 1931. Writ of Certiorari and Review Granted by Supreme Court.)
    Todd, Todd & Fraser, of Bastrop, and George Gunby, of Monroe, attorneys for plaintiff, appellee.
    Madison & Madison, of Monroe, attorneys for defendants, appellants.
   WEBB, J.

This case was tried at the same time as .the case of State ex rel. J. T. White v. Henry Mason, 133 So. 809, and State ex rel. A. P. Wimberly v. T. E. Barham, 133 So. 812, this day decided. Defendant appeals from a judgment rendered in favor of relator, recognizing him as entitled to the office of member of the Morehouse parish school board, ward 8 of said parish, and divesting defendant of said office.

The cases were presented here on the same briefs, and the present case involves the same issues as previously decided; but, in the present case, defendant accepted the federal office, postmaster, after he was elected, commissioned, sworn, and had entered and was exercising the duties of the said state office, member of the Morehouse parish school board, from ward 8 of said parish, and he had resigned the federal office a,t the -time of the trial in the lower court, which was especially pleaded in his answer.

The ruling in -the cause of State ex rel. J. T. White v. Henry Mason that the office of member of the parish school board was a state office and that the offices of postmaster and member of the school board are incompatible; within the meaning of section 4, article 19 of the Constitution, and the ruling on the plea in abatement, are applicable to the .same questions presented in the present case; and passing those questions, we consider first the special plea that defendant has resigned the federal office, and second, whether or not he vacated the state office by accepting the federal office.

While the evidence established that defendant had resigned the federal office before issue was joined, his resignation had not been accepted at the time of the trial, when he was still exercising the duties of the federal office; and it cannot be said that defendant was not then at least exercising the duties of one office under the state and another under the United States, and that defendant was at the time holding the state office in violation of law. But, passing that question, it is evident that, if the effect of defendant’s accepting and discharging the duties of the federal office was to cause a vacancy in .the state office, his subsequent resignation of the federal office would not restore him to the state office. Bunting v. Willis, 68 Va. 144, 21 Am. Rep. 338.

As stated in the prior opinion referred to, there has not been any decision in which the effect to be given to the violation of the prohibition has been considered, but in other jurisdictions it has been uniformly held that, where the federal office is accepted after the state office, the latter is vacated (People v. Leonard, 73 Cal. 230, 14 P. 853; State v. Sadler, 25 Nev. 131, 58 P. 284, 59 P. 546, 63 P. 128, 83 Am. St. Rep. 573; Pekete v. E. St. Louis, 315 Ill. 58, 145 N. E. 692, 40 A. L. R. 650), and, although the ruling is. based upon a rule of the common law, which, it is apparently urged, cannot be applied here in the absence of a legislative provision; yet the common-law rule has been applied in many cases where there was not any legislative provision (State v. Newhouse, 29 La. Ann. 824; State v. Arata, 32 La. Ann. 193; State v. Nockum, 41 La. Ann. 689, 6 So. 729); and, unless it may be said that defendant, having been vested with the legal title to the state office, could be divested of the title only by judicial proceedings, we do not see any reason why the rule should not be applied.

While there cannot be any doubt that in some cases where an officer, after having legally entered upon the discharge of the duties of an office, commits an act for which he may be deprived of the office, it is essential that he should be deprived of the office by judicial proceedings, but we are of the opinion that such is not the case where the act committed of itself deprives him of the right to the office.

Appellant concedes that .the prohibition against any one holding or exercising an office under this state and holding or exercising an office under another sovereignty, as contained in the first provision of section 4, article 19, of the Constitution, is self-operative; and it cannot be said, under the facts stated, that defendant had the right to hold or exercise the office which the Constitution declares he could not hold or exercise. It was not necessary, .therefore, that defendant should have been deprived of the title to such office by judicial proceedings prior to the appointment being made. State v. Beard, 34 La. Ann. 273-279; also State v. Jones, 19 Ind. 356, 81 Am. Dec. 403.

Defendant, by accepting .the federal office, vacated the stalfe office; the appointment of relator to fill the vacancy was valid and vested title to the office in relator; and the judgment recognizing relator as entitled to the office and ousting defendant from possession is therefore affirmed.